NY State Senate Bill 2009-S3910

Senate Bill S3910

Signed By Governor

2009-2010 Legislative Session

Sets forth an order of priority for organ donation and consent for such organ donation

download bill text pdf

Archive: Last Bill Status Via A904 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 26, 2009	signed chap.348
Aug 14, 2009	delivered to governor
Jul 16, 2009	returned to assembly passed senate 3rd reading cal.439 substituted for s3910a
Jul 16, 2009	substituted by a904a
Jun 01, 2009	advanced to third reading
May 27, 2009	2nd report cal.
May 26, 2009	1st report cal.439
May 21, 2009	print number 3910a
May 21, 2009	amend and recommit to health
Apr 03, 2009	referred to health

Votes

- Jul 16, 2009 - Floor Vote
  A904
  
  58
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  4
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jul 16, 2009
      
      aye (58)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Monserrate
      
      Montgomery
      
      Morahan
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      excused (4)
      
      Diaz
      
      Johnson
      
      Kruger
      
      Squadron

Bill Amendments

Original

A (Active)

2009-S3910 - Details

2009-S3910 - Summary

Sets forth an order of priority for organ donation including the person designated as the decedent's health care agent subject to a health proxy form, the person designated as the decedent's agent per a written statement and the domestic partner; defines domestic partner.

2009-S3910 - Sponsor Memo

                                 BILL NUMBER:  S3910

 TITLE OF BILL :
An act to amend the public health law, in relation to revising the
order of persons with priority for organ donation and consent for
organ donations


 PURPOSE :
To update the priority list of individuals who may consent to organ
and tissue donation.

 SUMMARY OF PROVISIONS :
This bill amends the list of people who may consent to organ donation
by adding the patient's designated health care proxy agent or
disposition-of-remains agent (if any), or domestic partner. The bill
lists in order of priority: the person designated as the decedent's
health care agent under Article 29-C of the Public Health Law; the
person designated as the decedent's disposition of remains agent in a
written instrument under Article 42 of the Public Health Law; spouse
or domestic partner; son or daughter 18 years of age or older; either
parent; sibling 18 years of age or older; guardian of the person of
the decedent at the time of his or her death; any other person
authorized or under obligation to dispose of the body. A health care
proxy or control of remains written instrument may limit the authority
of the agent or designated person. Defines "reasonably available" and

"domestic partner." Clarifies that the person who documents the
making, amending or revoking of an anatomical gift may, reasonably and
in good faith, accept such gift made by a person who represents that
he or she is entitled to consent to the donation.

 EXISTING LAW :
New bill.

 JUSTIFICATION :
This bill amends the list of people who may consent to organ donation
by adding the patient's designated health care proxy agent or
disposition-of-remains agent (if any), or domestic partner. The bill
lists in order of priority: the person designated as the decedent's
health care agent under Article 29-C of the Public Health Law; the
person designated as the decedent's disposition of remains agent in a
written instrument under Article 42 of the Public Health Law; spouse
or domestic partner; son or daughter 18 years of age or older; either
parent; sibling 18 years of age or older; guardian of the person of
the decedent at the time of his or her death; any other person
authorized or under obligation to dispose of the body. A health care
proxy or control of remains written instrument may limit the authority
of the agent or designated person.  Defines "reasonably available" and
"domestic partner." Clarifies that the person who documents the
making, amending or revoking of an anatomical gift may, reasonably and
in good faith, accept such gift made by a person who represents that
he or she is entitled to consent to the donation.

 LEGISLATIVE HISTORY :
This is a new bill.

 FISCAL IMPLICATIONS :
None.

 LOCAL FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
60 days after it becomes law.

2009-S3910 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3910

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 3, 2009
                               ___________

Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law, in relation to revising the order
  of persons with priority for organ  donation  and  consent  for  organ
  donations

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 4301 of the public health law, as amended by  chap-
ter  62 of the laws of 1994 and subdivisions 1 and 3 as amended by chap-
ter 639 of the laws of 2006, is amended to read as follows:
  S 4301. Persons who may execute an anatomical gift.  1. Any individual
of sound mind and eighteen years of age or more may give all or any part
of his or her body for any purpose specified in  section  four  thousand
three  hundred  two of this article, the gift to take effect upon death.
In any case where the donor has properly executed an organ  donor  card,
driver's  license  authorization to make an anatomical gift, pursuant to
paragraph (a) of subdivision one of section five  hundred  four  of  the
vehicle  and  traffic  law,  registered  in the New York state organ and
tissue donor registry under section  forty-three  hundred  ten  of  this
article,  or  has  otherwise  given  written  authorization for organ or
tissue donation, authorization for donation shall not be rescinded by an
objection by a member of any of the classes specified in paragraphs  (a)
through  [(f)]  (I)  of  subdivision  two of this section, except upon a
showing that the donor revoked the authorization.
  2. Any of the following persons, in the order of priority stated, may,
when persons in prior classes are not REASONABLY available, WILLING, AND
ABLE TO ACT, at the time of death, and in the absence of  actual  notice
of  contrary indications by the decedent, or actual notice of opposition
by a member of the same class or prior class specified in paragraph (a),
(b), (c), (d) [or], (e), (F), (G), (H) OR (I) of  this  subdivision,  or
reason  to believe that an anatomical gift is contrary to the decedent's

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00375-02-9

S. 3910                             2

religious or moral beliefs, give all or any part of the decedent's  body
for  any purpose specified in section four thousand three hundred two of
this article:
  (a)  THE  PERSON  DESIGNATED AS THE DECEDENT'S HEALTH CARE AGENT UNDER
ARTICLE TWENTY-NINE-C OF THIS CHAPTER, SUBJECT TO ANY WRITTEN  STATEMENT
IN THE HEALTH CARE PROXY FORM,
  (B) THE PERSON DESIGNATED AS THE DECEDENT'S AGENT IN A WRITTEN INSTRU-
MENT  UNDER  ARTICLE  FORTY-TWO  OF THIS CHAPTER, SUBJECT TO ANY WRITTEN
STATEMENT IN THE WRITTEN INSTRUMENT,
  (C) the spouse,
  (D) THE DOMESTIC PARTNER,
  [(b)] (E) a son or daughter eighteen years of age or older,
  [(c)] (F) either parent,
  [(d)] (G) a brother or sister eighteen years of age or older,
  [(e)] (H) a guardian of the person of the decedent at the time of  his
death,
  [(f)]  (I)  any  other  person  authorized  or under the obligation to
dispose of the body.
  3.  FOR THE PURPOSES OF THIS  SECTION,  "REASONABLY  AVAILABLE"  MEANS
THAT  A PERSON TO BE CONTACTED CAN BE CONTACTED WITHOUT UNDUE EFFORT AND
WILLING AND ABLE TO ACT IN A  TIMELY  MANNER  CONSISTENT  WITH  EXISTING
MEDICAL CRITERIA NECESSARY FOR THE MAKING OF AN ANATOMICAL GIFT.
  4. FOR THE PURPOSES OF THIS SECTION, "DOMESTIC PARTNER" MEANS A PERSON
WHO, WITH RESPECT TO ANOTHER PERSON:
  (A) IS FORMALLY A PARTY IN A DOMESTIC PARTNERSHIP OR SIMILAR RELATION-
SHIP  WITH  THE  OTHER  PERSON, ENTERED INTO PURSUANT TO THE LAWS OF THE
UNITED STATES OR ANY STATE, LOCAL OR FOREIGN JURISDICTION, OR REGISTERED
AS THE DOMESTIC PARTNER OF THE PERSON WITH ANY  REGISTRY  MAINTAINED  BY
THE  EMPLOYER  OF  EITHER  PARTY  OR ANY STATE, MUNICIPALITY, OR FOREIGN
JURISDICTION; OR
  (B) IS FORMALLY RECOGNIZED AS A BENEFICIARY OR  COVERED  PERSON  UNDER
THE OTHER PERSON'S EMPLOYMENT BENEFITS OR HEALTH INSURANCE; OR
  (C)  IS  DEPENDENT  OR MUTUALLY INTERDEPENDENT ON THE OTHER PERSON FOR
SUPPORT, AS EVIDENCED BY THE TOTALITY OF THE CIRCUMSTANCES INDICATING  A
MUTUAL  INTENT  TO  BE  DOMESTIC  PARTNERS INCLUDING BUT NOT LIMITED TO:
COMMON OWNERSHIP OR JOINT LEASING OF REAL OR PERSONAL  PROPERTY;  COMMON
HOUSEHOLDING,  SHARED  INCOME  OR  SHARED  EXPENSES; CHILDREN IN COMMON;
SIGNS OF INTENT TO MARRY OR BECOME DOMESTIC PARTNERS UNDER PARAGRAPH (A)
OR (B) OF THIS SUBDIVISION; OR THE LENGTH OF THE  PERSONAL  RELATIONSHIP
OF THE PERSONS.
  EACH  PARTY  TO  A  DOMESTIC PARTNERSHIP SHALL BE CONSIDERED TO BE THE
DOMESTIC PARTNER OF  THE  OTHER  PARTY.  "DOMESTIC  PARTNER"  SHALL  NOT
INCLUDE A PERSON WHO IS RELATED TO THE OTHER PERSON BY BLOOD IN A MANNER
THAT WOULD BAR MARRIAGE TO THE OTHER PERSON IN NEW YORK STATE. "DOMESTIC
PARTNER"  SHALL  ALSO  NOT  INCLUDE ANY PERSON WHO IS LESS THAN EIGHTEEN
YEARS OF AGE OR WHO IS THE ADOPTED CHILD OF THE OTHER PERSON OR  WHO  IS
RELATED  BY  BLOOD IN A MANNER THAT WOULD BAR MARRIAGE IN NEW YORK STATE
TO A PERSON WHO IS THE LAWFUL SPOUSE OF THE OTHER PERSON.
  5. The donee shall not accept the gift  under  the  following  circum-
stances:
  (a)  the  donee  has actual notice of contrary indication by the dece-
dent;
  (b) where the donor has not properly executed  an  organ  donor  card,
driver's  license  authorization to make an anatomical gift, pursuant to
paragraph (a) of subdivision one of section five  hundred  four  of  the
vehicle  and  traffic  law,  registered  in the New York state organ and

S. 3910                             3

tissue donor registry under section  forty-three  hundred  ten  of  this
article,  or  otherwise  given written authorization for organ or tissue
donation, or has revoked any such authorization, and the gift is opposed
by  a person or persons in the highest priority available of the classes
specified in paragraph (a), (b), (c), (d) [or], (e), (F),  (G),  (H)  OR
(I) of subdivision two of this section; or
  (c) the donee has reason to believe that an anatomical gift is contra-
ry to the decedent's religious or moral beliefs.
  [4.]  6.  A  gift  of all or part of a body authorizes any examination
necessary to assure medical  acceptability  of  gift  for  the  purposes
intended.
  [5.]  7.  The rights of the donee created by the gift are paramount to
the rights of others except as provided by section four  thousand  three
hundred eight of this article.
  8.  THE  PERSON  WHO  DOCUMENTS THE MAKING, AMENDING OR REVOKING OF AN
ANATOMICAL GIFT, ACTING REASONABLY AND IN GOOD FAITH IN ACCORDANCE  WITH
THIS ARTICLE, MAY ACCEPT AN ANATOMICAL GIFT UNDER THIS ARTICLE MADE BY A
PERSON  WHO  REPRESENTS  THAT  HE  OR  SHE IS ENTITLED TO CONSENT TO THE
DONATION.
  S 2. Section 4351 of the public health law, as added by chapter 668 of
the laws of 1997 and subdivision 4 as amended by chapter 639 of the laws
of 2006, is amended to read as follows:
  S 4351. Duties of hospital administrators, organ procurement organiza-
tions, eye banks and tissue banks. 1. (a) When the death of a person  in
a  hospital  has occurred or is imminent, the hospital shall contact the
federally designated organ procurement organization in order to  make  a
preliminary  determination  of  the  suitability of the person for organ
donation, except where not required by paragraph (c)  of  this  subdivi-
sion.
  (b)  Where  contact  with  the  federally designated organ procurement
organization is not required under criteria developed regionally by  the
federally  designated  organ  procurement  organization  subject  to the
approval of such criteria by the department, the hospital shall  contact
the  appropriate  eye  bank or tissue bank, except where not required by
paragraph (c) of this subdivision.
  (c)  The  federally  designated  organ  procurement  organization,  in
consultation  with  the tissue procurement providers, may issue criteria
under which a hospital shall not be required to make the  contact  under
this subdivision.
  (d)  All  hospitals  shall select at least one eye bank or tissue bank
for the procurement of tissue, as defined in section forty-three hundred
sixty of this chapter. A hospital shall notify the federally  designated
organ  procurement  organization  of  its  choice  of tissue procurement
providers. If a hospital selects more than one eye bank or  tissue  bank
as  a  procurement  provider, it may specify a rotation of referrals for
purposes of tissue procurement.
  2. Where the federally designated organ procurement organization,  eye
bank  or  tissue  bank  is contacted, it shall, in consultation with the
hospital, after appropriate medical screening (which may  include  sero-
logical  testing if applicable) determine suitability for organ, eye and
tissue donation, as appropriate.  Where  a  federally  designated  organ
procurement  organization is contacted, it shall contact the appropriate
eye bank or tissue bank with respect to suitability for  eye  or  tissue
donation.
  3.  If  the  federally  designated organ procurement organization, eye
bank or tissue bank determines  that  organ,  eye  or  tissue  donation,

S. 3910                             4

respectively,  is not appropriate based on established medical criteria,
this shall be noted by hospital personnel on the patient's  record,  and
no further action with respect to organ, eye or tissue donation, respec-
tively, is necessary.
  4.  Where  a  patient is a suitable candidate for organ, eye or tissue
donation and where the patient has not properly executed an organ  donor
card,  driver's license authorization to make an anatomical gift, pursu-
ant to paragraph (a) of subdivision one of section five hundred four  of
the  vehicle and traffic law, registered in the New York state organ and
tissue registry under section forty-three hundred ten of  this  article,
or  otherwise  given  written  authorization  for  organ,  eye or tissue
donation, the hospital or its designee shall cause a timely  request  to
be  made  to  any of the following persons, in order of priority stated,
when persons in prior classes are not REASONABLY available, WILLING, AND
ABLE TO ACT, and in the absence of actual notice of contrary  intentions
by  the  decedent, or actual notice of opposition by a person or persons
in the highest priority available of the classes specified in  paragraph
(a),  (b),  (c),  (d), [or] (e), (F), (G) OR (H) of this subdivision, or
other reason to believe  that  an  anatomic  gift  is  contrary  to  the
decedent's  religious beliefs, to consent to the gift of all or any part
of the decedent's body for any purpose specified in article  forty-three
of this chapter:
  (a)  THE  PERSON  DESIGNATED AS THE DECEDENT'S HEALTH CARE AGENT UNDER
ARTICLE TWENTY-NINE-C OF THIS CHAPTER, SUBJECT TO ANY WRITTEN  STATEMENT
IN THE HEALTH CARE PROXY FORM;
  (B) THE PERSON DESIGNATED AS THE DECEDENT'S AGENT IN A WRITTEN INSTRU-
MENT  UNDER  ARTICLE  FORTY-TWO  OF THIS CHAPTER, SUBJECT TO ANY WRITTEN
STATEMENT IN THE WRITTEN INSTRUMENT;
  (C) the spouse;
  (D) THE DOMESTIC PARTNER;
  [(b)] (E) a son or daughter eighteen years of age or older;
  [(c)] (F) either parent;
  [(d)] (G) a brother or sister eighteen years of age or older;
  [(e)] (H) a guardian of the person of the decedent at the time of  his
or her death.
  5.    FOR  THE  PURPOSES OF THIS SECTION, "REASONABLY AVAILABLE" MEANS
THAT A PERSON TO BE CONTACTED CAN BE CONTACTED WITHOUT UNDUE EFFORT  AND
WILLING  AND  ABLE  TO  ACT  IN A TIMELY MANNER CONSISTENT WITH EXISTING
MEDICAL CRITERIA NECESSARY FOR THE MAKING OF AN ANATOMICAL GIFT.
  6. FOR THE PURPOSES OF THIS SECTION, "DOMESTIC PARTNER" MEANS A PERSON
WHO, WITH RESPECT TO ANOTHER PERSON:
  (A) IS FORMALLY A PARTY IN A DOMESTIC PARTNERSHIP OR SIMILAR RELATION-
SHIP WITH THE OTHER PERSON, ENTERED INTO PURSUANT TO  THE  LAWS  OF  THE
UNITED STATES OR ANY STATE, LOCAL OR FOREIGN JURISDICTION, OR REGISTERED
AS  THE  DOMESTIC  PARTNER OF THE PERSON WITH ANY REGISTRY MAINTAINED BY
THE EMPLOYER OF EITHER PARTY OR  ANY  STATE,  MUNICIPALITY,  OR  FOREIGN
JURISDICTION; OR
  (B)  IS  FORMALLY  RECOGNIZED AS A BENEFICIARY OR COVERED PERSON UNDER
THE OTHER PERSON'S EMPLOYMENT BENEFITS OR HEALTH INSURANCE; OR
  (C) IS DEPENDENT OR MUTUALLY INTERDEPENDENT ON THE  OTHER  PERSON  FOR
SUPPORT,  AS EVIDENCED BY THE TOTALITY OF THE CIRCUMSTANCES INDICATING A
MUTUAL INTENT TO BE DOMESTIC PARTNERS  INCLUDING  BUT  NOT  LIMITED  TO:
COMMON  OWNERSHIP  OR JOINT LEASING OF REAL OR PERSONAL PROPERTY; COMMON
HOUSEHOLDING, SHARED INCOME OR  SHARED  EXPENSES;  CHILDREN  IN  COMMON;
SIGNS OF INTENT TO MARRY OR BECOME DOMESTIC PARTNERS UNDER PARAGRAPH (A)

S. 3910                             5

OR  (B)  OF THIS SUBDIVISION; OR THE LENGTH OF THE PERSONAL RELATIONSHIP
OF THE PERSONS.
  EACH  PARTY  TO  A  DOMESTIC PARTNERSHIP SHALL BE CONSIDERED TO BE THE
DOMESTIC PARTNER OF  THE  OTHER  PARTY.  "DOMESTIC  PARTNER"  SHALL  NOT
INCLUDE A PERSON WHO IS RELATED TO THE OTHER PERSON BY BLOOD IN A MANNER
THAT WOULD BAR MARRIAGE TO THE OTHER PERSON IN NEW YORK STATE. "DOMESTIC
PARTNER"  SHALL  ALSO  NOT  INCLUDE ANY PERSON WHO IS LESS THAN EIGHTEEN
YEARS OF AGE OR WHO IS THE ADOPTED CHILD OF THE OTHER PERSON OR  WHO  IS
RELATED  BY  BLOOD IN A MANNER THAT WOULD BAR MARRIAGE IN NEW YORK STATE
TO A PERSON WHO IS THE LAWFUL SPOUSE OF THE OTHER PERSON.
  7. The person initiating the request shall be designated by a hospital
and shall be a representative of a federally designated  organ  procure-
ment  organization, eye bank, tissue bank, or a designated requestor. As
used in this section a "designated requestor" shall mean  a  person  who
has completed a course provided by a federally designated organ procure-
ment  organization, eye bank or tissue bank, whichever is applicable, on
how to approach potential donor families  and  request  organ,  eye,  or
tissue donation.
  [6.] 8. Any employee or agent of a federally designated organ procure-
ment  organization,  eye  bank  or  tissue  bank acting pursuant to this
section shall be held to the same standard of  confidentiality  as  that
imposed on employees of the hospital.
  [7.]  9.  THE PERSON WHO DOCUMENTS THE MAKING, AMENDING OR REVOKING OF
AN ANATOMICAL GIFT, ACTING REASONABLY AND IN GOOD  FAITH  IN  ACCORDANCE
WITH THIS ARTICLE, MAY ACCEPT AN ANATOMICAL GIFT UNDER THIS ARTICLE MADE
BY  A PERSON WHO REPRESENTS THAT HE OR SHE IS ENTITLED TO CONSENT TO THE
DONATION.
  10. The provisions of subdivision three of section forty-three hundred
six of this chapter shall apply to this section. To the extent permissi-
ble under such subdivision, any person or organization  acting  pursuant
to  this  section,  shall  be  legally  responsible for any negligent or
intentional act or omission committed by such entity or its employees or
agents.
  [8.] 11. A gift made pursuant to the request required by this  section
shall  be  executed  pursuant to applicable provisions of article forty-
three of this chapter.
  [9.] 12. The commissioner shall establish regulations  concerning  the
training  of  persons  who may be designated to perform the request, and
the procedures to be employed in making it.
  [10.] 13. The commissioner shall establish such additional regulations
as are necessary for the implementation of this section.
  S 3. Paragraph (f) of subdivision 5 of  section  2981  of  the  public
health  law,  as added by chapter 540 of the laws of 2000, is amended to
read as follows:
  (f) A  health  care  proxy  may  include  the  principal's  wishes  or
instructions  regarding  organ  and  tissue  donation  AND MAY LIMIT THE
HEALTH CARE AGENT'S AUTHORITY TO CONSENT TO ORGAN OR TISSUE DONATION  OR
DESIGNATE  ANOTHER  PERSON  TO  DO SO, UNDER ARTICLE FORTY-THREE OF THIS
CHAPTER. Failure to state wishes or instructions shall not be  construed
to imply a wish not to donate.
  S  4. Section 4201 of the public health law is amended by adding a new
subdivision 4-a to read as follows:
  4-A. A WRITTEN INSTRUMENT UNDER THIS SECTION MAY LIMIT THE DISPOSITION
OF REMAINS AGENT'S AUTHORITY TO CONSENT TO ORGAN OR TISSUE  DONATION  OR
DESIGNATE  ANOTHER  PERSON  TO  DO SO, UNDER ARTICLE FORTY-THREE OF THIS

S. 3910                             6

CHAPTER. FAILURE TO STATE WISHES OR INSTRUCTIONS SHALL NOT BE  CONSTRUED
TO IMPLY A WISH NOT TO DONATE.
  S  5.  This  act shall take effect on  the sixtieth day after it shall
have become a law.

co-Sponsors

2009-S3910A (ACTIVE) - Details

2009-S3910A (ACTIVE) - Summary

2009-S3910A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3910A

 TITLE OF BILL :
An act to amend the public health law, in relation to revising the
order of persons with priority for organ donation and consent for
organ donations


 PURPOSE :
To update the priority list of individuals who may consent to organ
and tissue donation.

 SUMMARY OF PROVISIONS :
This bill amends the list of people who may consent to organ donation
by adding the patient's designated health care proxy agent or
dispositional-remains agent (if any), or domestic partner. The bill
lists in order of priority: the person designated as the decedent's
health care agent under Article 29-C of the Public Health Law; the
person designated as the decedent's disposition of remains agent in a
written instrument under Article 42 of the Public Health Law; spouse
or domestic partner; son or daughter 18 years of age or older; either
parent; sibling 18 years of age or older; guardian of the person of
the decedent at the time of his or her death; any other person
authorized or under obligation to dispose of the body. A health care
proxy or control of remains written instrument may limit the authority
of the agent or designated person. Defines "reasonably available" and

"domestic partner." Clarifies that the person who documents the
making, amending or revoking of an anatomical gift may, reasonably and
n good faith, accept such gift made by a person who s that he or she
is entitled to consent to the donation.

 EXISTING LAW :
New bill.

 JUSTIFICATION :
This bill amends amends the list of people who may consent to organ
donation by adding the patient's designated health care proxy agent or
disposition-of-remains agent (if any), or domestic partner.  The bill
lists in order of priority:  the person designated as the decedent's
health care agent under Article 29-C of the Public Health Law; the
person designated as the decedent's disposition of remains agent in a
written instrument under Article 42 of the Public Health Law; spouse
or domestic partner; son or daughter 18 years of age or older; either
parent; sibling 18 years of age or older; guardian of the person of
the decedent at the time of his or her death; any other person
authorized or under obligation to dispose of the body.  A health care
proxy or control of remains written instrument may limit the authority
of the agent or designated person. Defines "reasonably available" and
"domestic partner."  Clarifies that the person who documents the
making, amending or revoking of an anatomical gift may, reasonably and
in good faith, accept such gift made by a person who represents that
he or she is entitled to consent to the donation.

 LEGISLATIVE HISTORY :
This is a new bill.

 FISCAL IMPLICATIONS :
None.

 LOCAL FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
60 days after it becomes law.

2009-S3910A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3910--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 3, 2009
                               ___________

Introduced  by Sens. DUANE, MONSERRATE, MONTGOMERY, SERRANO, THOMPSON --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Health -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the public health law, in relation to revising the order
  of  persons  with  priority  for  organ donation and consent for organ
  donations

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 4301 of the public health law, as amended by chap-
ter 62 of the laws of 1994 and subdivisions 1 and 3 as amended by  chap-
ter 639 of the laws of 2006, is amended to read as follows:
  S 4301. Persons who may execute an anatomical gift.  1. Any individual
of sound mind and eighteen years of age or more may give all or any part
of  his  or her body for any purpose specified in section [four thousand
three] FORTY-THREE hundred two of this article, the gift to take  effect
upon  death.  In any case where the donor has properly executed an organ
donor card, driver's license authorization to make an  anatomical  gift,
pursuant  to  paragraph  (a)  of subdivision one of section five hundred
four of the vehicle and traffic law, registered in the  New  York  state
organ and tissue donor registry under section forty-three hundred ten of
this  article, or has otherwise given written authorization for organ or
tissue donation, authorization for donation shall not be rescinded by an
objection by a member of any of the classes specified in paragraphs  (a)
through  [(f)]  (H)  of  subdivision  two of this section, except upon a
showing that the donor revoked the authorization.
  2. Any of the following persons, in the order of priority stated, may,
when persons in prior classes are not REASONABLY available, WILLING, AND
ABLE TO ACT, at the time of death, and in the absence of  actual  notice
of  contrary indications by the decedent, or actual notice of opposition
by a member of the same class or prior class specified in paragraph (a),

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00375-03-9

S. 3910--A                          2

(b), (c), (d) [or], (e), (F), (G) OR (H) of this subdivision, or  reason
to  believe  that an anatomical gift is contrary to the decedent's reli-
gious or moral beliefs, give all or any part of the decedent's body  for
any  purpose  specified  in  section  [four  thousand three] FORTY-THREE
hundred two of this article:
  (a) THE PERSON DESIGNATED AS THE DECEDENT'S HEALTH  CARE  AGENT  UNDER
ARTICLE  TWENTY-NINE-C OF THIS CHAPTER, SUBJECT TO ANY WRITTEN STATEMENT
IN THE HEALTH CARE PROXY FORM,
  (B) THE PERSON DESIGNATED AS THE DECEDENT'S AGENT IN A WRITTEN INSTRU-
MENT UNDER ARTICLE FORTY-TWO OF THIS CHAPTER,  SUBJECT  TO  ANY  WRITTEN
STATEMENT IN THE WRITTEN INSTRUMENT,
  (C)  the  spouse,  IF  NOT  LEGALLY SEPARATED FROM THE PATIENT, OR THE
DOMESTIC PARTNER,
  [(b)] (D) a son or daughter eighteen years of age or older,
  [(c)] (E) either parent,
  [(d)] (F) a brother or sister eighteen years of age or older,
  [(e)] (G) a guardian of the person of the decedent at the time of  his
death,
  [(f)]  (H)  any  other  person  authorized  or under the obligation to
dispose of the body.
  3.  FOR THE PURPOSES OF THIS  SECTION,  "REASONABLY  AVAILABLE"  MEANS
THAT  A PERSON TO BE CONTACTED CAN BE CONTACTED WITHOUT UNDUE EFFORT AND
WILLING AND ABLE TO ACT IN A  TIMELY  MANNER  CONSISTENT  WITH  EXISTING
MEDICAL CRITERIA NECESSARY FOR THE MAKING OF AN ANATOMICAL GIFT.
  4. FOR THE PURPOSES OF THIS SECTION, "DOMESTIC PARTNER" MEANS A PERSON
WHO, WITH RESPECT TO ANOTHER PERSON:
  (A) IS FORMALLY A PARTY IN A DOMESTIC PARTNERSHIP OR SIMILAR RELATION-
SHIP  WITH  THE  OTHER  PERSON, ENTERED INTO PURSUANT TO THE LAWS OF THE
UNITED STATES OR ANY STATE, LOCAL OR FOREIGN JURISDICTION, OR REGISTERED
AS THE DOMESTIC PARTNER OF THE PERSON WITH ANY  REGISTRY  MAINTAINED  BY
THE  EMPLOYER  OF  EITHER  PARTY  OR ANY STATE, MUNICIPALITY, OR FOREIGN
JURISDICTION; OR
  (B) IS FORMALLY RECOGNIZED AS A BENEFICIARY OR  COVERED  PERSON  UNDER
THE OTHER PERSON'S EMPLOYMENT BENEFITS OR HEALTH INSURANCE; OR
  (C)  IS  DEPENDENT  OR MUTUALLY INTERDEPENDENT ON THE OTHER PERSON FOR
SUPPORT, AS EVIDENCED BY THE TOTALITY OF THE CIRCUMSTANCES INDICATING  A
MUTUAL  INTENT  TO  BE  DOMESTIC  PARTNERS INCLUDING BUT NOT LIMITED TO:
COMMON OWNERSHIP OR JOINT LEASING OF REAL OR PERSONAL  PROPERTY;  COMMON
HOUSEHOLDING,  SHARED  INCOME  OR  SHARED  EXPENSES; CHILDREN IN COMMON;
SIGNS OF INTENT TO MARRY OR BECOME DOMESTIC PARTNERS UNDER PARAGRAPH (A)
OR (B) OF THIS SUBDIVISION; OR THE LENGTH OF THE  PERSONAL  RELATIONSHIP
OF THE PERSONS.
  EACH  PARTY  TO  A  DOMESTIC PARTNERSHIP SHALL BE CONSIDERED TO BE THE
DOMESTIC PARTNER OF  THE  OTHER  PARTY.  "DOMESTIC  PARTNER"  SHALL  NOT
INCLUDE A PERSON WHO IS RELATED TO THE OTHER PERSON BY BLOOD IN A MANNER
THAT WOULD BAR MARRIAGE TO THE OTHER PERSON IN NEW YORK STATE. "DOMESTIC
PARTNER"  SHALL  ALSO  NOT  INCLUDE ANY PERSON WHO IS LESS THAN EIGHTEEN
YEARS OF AGE OR WHO IS THE ADOPTED CHILD OF THE OTHER PERSON OR  WHO  IS
RELATED  BY  BLOOD IN A MANNER THAT WOULD BAR MARRIAGE IN NEW YORK STATE
TO A PERSON WHO IS THE LAWFUL SPOUSE OF THE OTHER PERSON.
  5. The donee shall not accept the gift  under  the  following  circum-
stances:
  (a)  the  donee  has actual notice of contrary indication by the dece-
dent;
  (b) where the donor has not properly executed  an  organ  donor  card,
driver's  license  authorization to make an anatomical gift, pursuant to

S. 3910--A                          3

paragraph (a) of subdivision one of section five  hundred  four  of  the
vehicle  and  traffic  law,  registered  in the New York state organ and
tissue donor registry under section  forty-three  hundred  ten  of  this
article,  or  otherwise  given written authorization for organ or tissue
donation, or has revoked any such authorization, and the gift is opposed
by a person or persons in the highest priority available of the  classes
specified  in paragraph (a), (b), (c), (d) [or], (e), (F), (G) OR (H) of
subdivision two of this section; or
  (c) the donee has reason to believe that an anatomical gift is contra-
ry to the decedent's religious or moral beliefs.
  [4.] 6. A gift of all or part of a  body  authorizes  any  examination
necessary  to  assure  medical  acceptability  of  gift for the purposes
intended.
  [5.] 7. The rights of the donee created by the gift are  paramount  to
the rights of others except as provided by section [four thousand three]
FORTY-THREE hundred eight of this article.
  8.  THE  PERSON  WHO  DOCUMENTS THE MAKING, AMENDING OR REVOKING OF AN
ANATOMICAL GIFT, ACTING REASONABLY AND IN GOOD FAITH IN ACCORDANCE  WITH
THIS ARTICLE, MAY ACCEPT AN ANATOMICAL GIFT UNDER THIS ARTICLE MADE BY A
PERSON  WHO  REPRESENTS  THAT  HE  OR  SHE IS ENTITLED TO CONSENT TO THE
DONATION.
  S 2. Section 4351 of the public health law, as added by chapter 668 of
the laws of 1997 and subdivision 4 as amended by chapter 639 of the laws
of 2006, is amended to read as follows:
  S 4351. Duties of hospital administrators, organ procurement organiza-
tions, eye banks and tissue banks. 1. (a) When the death of a person  in
a  hospital  has occurred or is imminent, the hospital shall contact the
federally designated organ procurement organization in order to  make  a
preliminary  determination  of  the  suitability of the person for organ
donation, except where not required by paragraph (c)  of  this  subdivi-
sion.
  (b)  Where  contact  with  the  federally designated organ procurement
organization is not required under criteria developed regionally by  the
federally  designated  organ  procurement  organization  subject  to the
approval of such criteria by the department, the hospital shall  contact
the  appropriate  eye  bank or tissue bank, except where not required by
paragraph (c) of this subdivision.
  (c)  The  federally  designated  organ  procurement  organization,  in
consultation  with  the tissue procurement providers, may issue criteria
under which a hospital shall not be required to make the  contact  under
this subdivision.
  (d)  All  hospitals  shall select at least one eye bank or tissue bank
for the procurement of tissue, as defined in section forty-three hundred
sixty of this chapter. A hospital shall notify the federally  designated
organ  procurement  organization  of  its  choice  of tissue procurement
providers. If a hospital selects more than one eye bank or  tissue  bank
as  a  procurement  provider, it may specify a rotation of referrals for
purposes of tissue procurement.
  2. Where the federally designated organ procurement organization,  eye
bank  or  tissue  bank  is contacted, it shall, in consultation with the
hospital, after appropriate medical screening (which may  include  sero-
logical  testing if applicable) determine suitability for organ, eye and
tissue donation, as appropriate.  Where  a  federally  designated  organ
procurement  organization is contacted, it shall contact the appropriate
eye bank or tissue bank with respect to suitability for  eye  or  tissue
donation.

S. 3910--A                          4

  3.  If  the  federally  designated organ procurement organization, eye
bank or tissue bank determines  that  organ,  eye  or  tissue  donation,
respectively,  is not appropriate based on established medical criteria,
this shall be noted by hospital personnel on the patient's  record,  and
no further action with respect to organ, eye or tissue donation, respec-
tively, is necessary.
  4.  Where  a  patient is a suitable candidate for organ, eye or tissue
donation and where the patient has not properly executed an organ  donor
card,  driver's license authorization to make an anatomical gift, pursu-
ant to paragraph (a) of subdivision one of section five hundred four  of
the  vehicle and traffic law, registered in the New York state organ and
tissue registry under section forty-three hundred ten of this  [article]
CHAPTER,  or  otherwise  given  written  authorization for organ, eye or
tissue donation, the hospital or  its  designee  shall  cause  a  timely
request to be made to any of the following persons, in order of priority
stated,  when  persons  in  prior  classes are not REASONABLY available,
WILLING, AND ABLE TO ACT, and in the absence of actual notice of contra-
ry intentions by the decedent, or  actual  notice  of  opposition  by  a
person or persons in the highest priority available of the classes spec-
ified  in  paragraph  (a),  (b),  (c), (d), [or] (e), (F) OR (G) of this
subdivision, or other reason to believe that an anatomic gift is contra-
ry to the decedent's religious beliefs, to consent to the gift of all or
any part of the decedent's body for any  purpose  specified  in  article
forty-three of this chapter:
  (a)  THE  PERSON  DESIGNATED AS THE DECEDENT'S HEALTH CARE AGENT UNDER
ARTICLE TWENTY-NINE-C OF THIS CHAPTER, SUBJECT TO ANY WRITTEN  STATEMENT
IN THE HEALTH CARE PROXY FORM;
  (B) THE PERSON DESIGNATED AS THE DECEDENT'S AGENT IN A WRITTEN INSTRU-
MENT  UNDER  ARTICLE  FORTY-TWO  OF THIS CHAPTER, SUBJECT TO ANY WRITTEN
STATEMENT IN THE WRITTEN INSTRUMENT;
  (C) the spouse, IF NOT LEGALLY SEPARATED  FROM  THE  PATIENT,  OR  THE
DOMESTIC PARTNER;
  [(b)] (D) a son or daughter eighteen years of age or older;
  [(c)] (E) either parent;
  [(d)] (F) a brother or sister eighteen years of age or older;
  [(e)]  (G) a guardian of the person of the decedent at the time of his
or her death.
  5.  FOR THE PURPOSES OF THIS  SECTION,  "REASONABLY  AVAILABLE"  MEANS
THAT  A PERSON TO BE CONTACTED CAN BE CONTACTED WITHOUT UNDUE EFFORT AND
WILLING AND ABLE TO ACT IN A  TIMELY  MANNER  CONSISTENT  WITH  EXISTING
MEDICAL CRITERIA NECESSARY FOR THE MAKING OF AN ANATOMICAL GIFT.
  6. FOR THE PURPOSES OF THIS SECTION, "DOMESTIC PARTNER" MEANS A PERSON
WHO, WITH RESPECT TO ANOTHER PERSON:
  (A) IS FORMALLY A PARTY IN A DOMESTIC PARTNERSHIP OR SIMILAR RELATION-
SHIP  WITH  THE  OTHER  PERSON, ENTERED INTO PURSUANT TO THE LAWS OF THE
UNITED STATES OR ANY STATE, LOCAL OR FOREIGN JURISDICTION, OR REGISTERED
AS THE DOMESTIC PARTNER OF THE PERSON WITH ANY  REGISTRY  MAINTAINED  BY
THE  EMPLOYER  OF  EITHER  PARTY  OR ANY STATE, MUNICIPALITY, OR FOREIGN
JURISDICTION; OR
  (B) IS FORMALLY RECOGNIZED AS A BENEFICIARY OR  COVERED  PERSON  UNDER
THE OTHER PERSON'S EMPLOYMENT BENEFITS OR HEALTH INSURANCE; OR
  (C)  IS  DEPENDENT  OR MUTUALLY INTERDEPENDENT ON THE OTHER PERSON FOR
SUPPORT, AS EVIDENCED BY THE TOTALITY OF THE CIRCUMSTANCES INDICATING  A
MUTUAL  INTENT  TO  BE  DOMESTIC  PARTNERS INCLUDING BUT NOT LIMITED TO:
COMMON OWNERSHIP OR JOINT LEASING OF REAL OR PERSONAL  PROPERTY;  COMMON
HOUSEHOLDING,  SHARED  INCOME  OR  SHARED  EXPENSES; CHILDREN IN COMMON;

S. 3910--A                          5

SIGNS OF INTENT TO MARRY OR BECOME DOMESTIC PARTNERS UNDER PARAGRAPH (A)
OR (B) OF THIS SUBDIVISION; OR THE LENGTH OF THE  PERSONAL  RELATIONSHIP
OF THE PERSONS.
  EACH  PARTY  TO  A  DOMESTIC PARTNERSHIP SHALL BE CONSIDERED TO BE THE
DOMESTIC PARTNER OF  THE  OTHER  PARTY.  "DOMESTIC  PARTNER"  SHALL  NOT
INCLUDE A PERSON WHO IS RELATED TO THE OTHER PERSON BY BLOOD IN A MANNER
THAT WOULD BAR MARRIAGE TO THE OTHER PERSON IN NEW YORK STATE. "DOMESTIC
PARTNER"  SHALL  ALSO  NOT  INCLUDE ANY PERSON WHO IS LESS THAN EIGHTEEN
YEARS OF AGE OR WHO IS THE ADOPTED CHILD OF THE OTHER PERSON OR  WHO  IS
RELATED  BY  BLOOD IN A MANNER THAT WOULD BAR MARRIAGE IN NEW YORK STATE
TO A PERSON WHO IS THE LAWFUL SPOUSE OF THE OTHER PERSON.
  7. The person initiating the request shall be designated by a hospital
and shall be a representative of a federally designated  organ  procure-
ment  organization, eye bank, tissue bank, or a designated requestor. As
used in this section a "designated requestor" shall mean  a  person  who
has completed a course provided by a federally designated organ procure-
ment  organization, eye bank or tissue bank, whichever is applicable, on
how to approach potential donor families  and  request  organ,  eye,  or
tissue donation.
  [6.] 8. Any employee or agent of a federally designated organ procure-
ment  organization,  eye  bank  or  tissue  bank acting pursuant to this
section shall be held to the same standard of  confidentiality  as  that
imposed on employees of the hospital.
  [7.]  9.  THE PERSON WHO DOCUMENTS THE MAKING, AMENDING OR REVOKING OF
AN ANATOMICAL GIFT, ACTING REASONABLY AND IN GOOD  FAITH  IN  ACCORDANCE
WITH THIS ARTICLE, MAY ACCEPT AN ANATOMICAL GIFT UNDER THIS ARTICLE MADE
BY  A PERSON WHO REPRESENTS THAT HE OR SHE IS ENTITLED TO CONSENT TO THE
DONATION.
  10. The provisions of subdivision three of section forty-three hundred
six of this chapter shall apply to this section. To the extent permissi-
ble under such subdivision, any person or organization  acting  pursuant
to  this  section,  shall  be  legally  responsible for any negligent or
intentional act or omission committed by such entity or its employees or
agents.
  [8.] 11. A gift made pursuant to the request required by this  section
shall  be  executed  pursuant to applicable provisions of article forty-
three of this chapter.
  [9.] 12. The commissioner shall establish regulations  concerning  the
training  of  persons  who may be designated to perform the request, and
the procedures to be employed in making it.
  [10.] 13. The commissioner shall establish such additional regulations
as are necessary for the implementation of this section.
  S 3. Paragraph (f) of subdivision 5 of  section  2981  of  the  public
health  law,  as added by chapter 540 of the laws of 2000, is amended to
read as follows:
  (f) A  health  care  proxy  may  include  the  principal's  wishes  or
instructions  regarding  organ  and  tissue  donation  AND MAY LIMIT THE
HEALTH CARE AGENT'S AUTHORITY TO CONSENT TO ORGAN OR TISSUE DONATION  OR
DESIGNATE  ANOTHER  PERSON  TO  DO SO, UNDER ARTICLE FORTY-THREE OF THIS
CHAPTER. Failure to state wishes or instructions shall not be  construed
to imply a wish not to donate.
  S  4. Section 4201 of the public health law is amended by adding a new
subdivision 4-a to read as follows:
  4-A. A WRITTEN INSTRUMENT UNDER THIS SECTION MAY LIMIT THE DISPOSITION
OF REMAINS AGENT'S AUTHORITY TO CONSENT TO ORGAN OR TISSUE  DONATION  OR
DESIGNATE  ANOTHER  PERSON  TO  DO SO, UNDER ARTICLE FORTY-THREE OF THIS

S. 3910--A                          6

CHAPTER. FAILURE TO STATE WISHES OR INSTRUCTIONS SHALL NOT BE  CONSTRUED
TO IMPLY A WISH NOT TO DONATE.
  S  5.  This  act shall take effect on  the sixtieth day after it shall
have become a law.

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Senate Bill S3910

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Sponsored By

Thomas K. Duane