S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6941
 
                             I N  S E N A T E
 
                              January 6, 2020
                                ___________
 
 Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the public health law, in relation  to  definitions  and
   conforming  changes  pertaining  to  anatomical  gifts; and to amend a
   chapter of the laws of 2019 amending the public health law relating to
   anatomical gifts, as proposed in legislative bills numbers  S.  6000-A
   and A. 7800-A, in relation to making technical corrections thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 1 of a chapter of the laws of  2019,  amending  the
 public  health law relating to anatomical gifts, as proposed in legisla-
 tive bills numbers S. 6000-A and A.   7800-A,  is  amended  to  read  as
 follows:
   Section  1.  Legislative intent. The purpose of this legislation is to
 incorporate the amended provisions of the Uniform  Anatomical  Gift  Act
 (UAGA) as drafted by the National Conference of Commissioners on Uniform
 State  Laws to enhance the organ donation process.  The UAGA was enacted
 in 1968 following the first successful heart transplant and was  revised
 in 1987 and 2006 to clarify consent rules and other processes. While New
 York  has  made  recent  improvements to its organ donation registry and
 processes, it still faces a severe organ shortage.  It is estimated that
 bringing New York's anatomical gift consent rules alone  into  agreement
 with  the  UAGA  would  result  in increased numbers of organ donors and
 would save lives through transplantation. Provisions of this act  should
 not  be  construed  to  interfere with a [potential] PROSPECTIVE donor's
 recorded intent to make a whole body donation  in  instances  where  the
 [potential]  PROSPECTIVE  donor's  body is suitable for such donation at
 death, nor does the gift of a whole body preclude  donation  for  trans-
 plant,  unless such use is expressly refused by the donor or the author-
 izing party.
   § 2. Subdivisions 4, 11 and 12 of section 4300 of  the  public  health
 law,  as  added by section 1 of part A of a chapter of the laws of 2019,
 amending the public health law relating to  definitions  and  conforming
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

 S                                                          LBD11680-11-9

 S. 6941                             2
 
 changes pertaining to anatomical gifts, as proposed in legislative bills
 numbers S. 6000-A and A. 7800-A, are amended to read as follows:
   4.  "Document  of  gift" means an organ donor card, whole body [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, authorization to make an anatomical
 gift pursuant to any of the  methods  in  subdivision  five  of  section
 forty-three  hundred  ten of this article, or any other written authori-
 zation for an anatomical gift. The term "document of  gift"  includes  a
 statement  on  a  driver's license, identification card, enrollment in a
 donor registry, or any other anatomical gift document valid pursuant  to
 the  laws  of  this  or any other state OR OF ANY DOCUMENT OF GIFT VALID
 PURSUANT TO THE LAWS OF ANY OTHER COUNTRY APPEARING ON A LIST  OF  COUN-
 TRIES  MAINTAINED  BY THE COMMISSIONER FOR SUCH PURPOSE AND PUBLISHED ON
 THE DEPARTMENT'S WEBSITE.
   11. ["Human paired organ donation" means the donation and  receipt  of
 human organs under the following circumstances:
   (a)  An  individual  (referred  to  in  this subdivision as the "first
 donor") desires to make a living donation of a human organ  specifically
 to  a  particular  patient  (referred  to  in this subdivision as "first
 patient"), but such donor is biologically incompatible as  a  donor  for
 such patient.
   (b)  A  second  individual  (referred  to  in  this subdivision as the
 "second donor") desires to make a  living  donation  of  a  human  organ
 specifically  to a second particular patient (referred to in this subdi-
 vision as the "second patient"), but such donor is  biologically  incom-
 patible as a donor for such patient.
   (c)  Subject  to paragraph (d) of this subdivision, the first donor is
 biologically compatible as a donor of  a  human  organ  for  the  second
 patient, and the second donor is biologically compatible as a donor of a
 human organ for the first patient.
   (d)  If  there  is  any  additional donor-patient pair as described in
 paragraph (a) or (b) of this subdivision, each donor  in  the  group  of
 donor-patient  pairs  is  biologically  compatible as a donor of a human
 organ for a patient in such group.
   (e) All donors and  patients  in  the  group  of  donor-patient  pairs
 (whether  two  pairs, or more than two pairs) enter into a single agree-
 ment to donate and receive such human organs, respectively, according to
 such biological compatibility in the group.
   (f) Other than as described in paragraph (e) of this  subdivision,  no
 valuable  consideration  is  knowingly  acquired, received, or otherwise
 transferred with respect to the human organs referred to in  such  para-
 graph.
   12.]  "Non-transplant anatomic bank" means any person or facility that
 solicits, retrieves, performs donor selection and/or testing, preserves,
 transport,  allocates,  distributes,  acquires,  processes,  stores,  or
 arranges  for  the  storage  of non-transplant anatomic parts, including
 whole bodies, body segments, organs, or tissues from living or  deceased
 donors,  for  education and/or research purposes specifically authorized
 by section forty-three hundred two of this article. The following  shall
 not constitute a non-transplant anatomic bank:
   (a)  Any  person  or entity that stores non-transplant anatomic parts,
 except whole bodies and body segments, solely for purposes  of  research
 and/or education conducted by such person; provided the person or entity
 maintains  on  its  premises a properly executed anatomical gift consent
 document, and

 S. 6941                             3
 
   (i) such person or entity is a legal donee pursuant to section  forty-
 three  hundred two of this article and obtains all organs/tissues from a
 tissue bank or non-transplant anatomic bank licensed by the  department;
 or
   (ii)  is  a general hospital conducting pathology services or research
 on non-transplant anatomic parts including whole bodies, recovered  from
 within the facility from a living or deceased source;
   (b) Any person or entity whose activities within the state of New York
 are limited to distribution of non-transplant anatomic parts to a tissue
 bank or non-transplant anatomic bank licensed by the department;
   (c)  Any  person or entity that uses prepared slides and/or human-der-
 ived stem cell lines for purposes of education and/or research; and
   (d) An employee of the federal government, provided an anatomical gift
 consent document has been executed in  accordance  with  section  forty-
 three hundred one of this article.
   12. "ORGAN" SHALL HAVE THE SAME DEFINITION AS IN ARTICLE FORTY-THREE-B
 OF  THIS  CHAPTER,  BUT  SHALL  NOT  BE  APPLIED TO HEART VALVES FOR THE
 PURPOSES OF THIS ARTICLE.
   § 3. Subdivision 4 of section 4301 of the public health law, as  added
 by  section  1  of part B of a chapter of the laws of 2019, amending the
 public health law relating to changes in anatomical gift revocation  and
 amendment,  as  proposed  in  legislative bills numbers S. 6000-A and A.
 7800-A, is amended to read as follows:
   4. Any gift by a person designated in subdivision two of this  section
 shall  be by a document signed by him or her or made by his or her tele-
 graphic, recorded telephonic, or other recorded message. Where a gift is
 made under this subdivision, either:   (a) the authorizing  party  shall
 indicate  in the document or message that he or she has no actual notice
 of contrary indications by the decedent and no reason to believe that an
 anatomical gift  is  contrary  to  the  decedent's  religious  or  moral
 beliefs; or (b) an agent of the [federally designated] organ procurement
 organization or of the donee shall make reasonable efforts to inquire of
 the  authorizing party or otherwise determine that the authorizing party
 has no actual notice of contrary indications  by  the  decedent  and  no
 reason  to believe that an anatomical gift is contrary to the decedent's
 religious or moral beliefs.
   § 4. Section 4305 of the public health law, as amended by section 2 of
 part B of a chapter of the laws of 2019, amending the public health  law
 relating  to  changes  in  anatomical  gift revocation and amendment, as
 proposed in legislative bills  numbers  S.  6000-A  and  A.  7800-A,  is
 amended to read as follows:
   § 4305. Amendments or revocation of the gift. 1. An individual who has
 created  a  document  of  gift may ONLY amend or revoke [the] HIS OR HER
 gift by:
   (a) a record signed, SUBSEQUENTLY TO THE CREATION OF THE  DOCUMENT  OF
 GIFT by:
   (i) [the donor] SUCH INDIVIDUAL;
   (ii)  another  person authorized to make the anatomical gift ON BEHALF
 OF SUCH INDIVIDUAL; or
   (iii) another [individual] PERSON acting  at  the  direction  of  [the
 donor] SUCH INDIVIDUAL or other person authorized to make the anatomical
 gift  if [those individuals are physically] SUCH INDIVIDUAL IS unable to
 sign; or
   (b) an oral statement of revocation, SUBSEQUENT TO THE CREATION OF THE
 GIFT, made BY SUCH INDIVIDUAL in the presence of two persons,  at  least
 one of whom is a disinterested witness; or

 S. 6941                             4
 
   (c)  a  later-executed  document  of gift MADE BY SUCH INDIVIDUAL that
 amends or revokes a previous anatomical gift or portion of an anatomical
 gift either expressly or by inconsistency; or
   (d)  a  statement  during a terminal illness or injury addressed to an
 attending physician and communicated to the donee MADE BY SUCH  INDIVID-
 UAL; or
   (e)  a  signed  card  or document, found on [the prospective  donor's]
 SUCH INDIVIDUAL'S person or in [the prospective donor's]  SUCH  INDIVID-
 UAL'S effects; or
   (f) [the] SUCH individual's will, CREATED SUBSEQUENTLY TO THE CREATION
 OF  THE DOCUMENT OF GIFT, whether or not the will is admitted to probate
 or invalidated after [the] SUCH individual's death.
   2. (a) Subject to paragraphs (b) and  (c)  of  this  subdivision,  [an
 individual]  A PERSON authorized to make an anatomical gift ON BEHALF OF
 ANOTHER INDIVIDUAL pursuant to subdivision two  of  section  forty-three
 hundred one of this article may revoke or amend such gift by:
   (i) a record signed by [the donor] THAT INDIVIDUAL; or
   (ii)  an  oral  statement of revocation, SUBSEQUENT TO THE CREATION OF
 THE DOCUMENT OF GIFT, made BY THAT INDIVIDUAL in  the  presence  of  two
 persons, at least one of whom is a disinterested witness; or
   (iii)  a  later-executed  document  of  gift  that amends or revokes a
 previous anatomical gift or portion of an anatomical gift MADE  BY  THAT
 INDIVIDUAL, either expressly or by inconsistency.
   (b)  If  more  than one member of a class listed in subparagraph (iv),
 (vi), (vii), or (viii) of paragraph (a) of subdivision  two  of  section
 forty-three  hundred one of this article is reasonably available, a gift
 made pursuant to subdivision two of section forty-three hundred  one  of
 this article [may] SHALL be amended OR REVOKED only if a majority of the
 reasonably  available  members  agree  [to  the amending of the gift, or
 revoked only if a majority of the reasonably available members agree  to
 the revoking of the gift or if they are equally divided as to whether to
 revoke the gift].
   (c)  [A]  AN  AMENDMENT  OR revocation is effective only if, before an
 incision has been made to remove a part from the donor's body or  before
 invasive procedures have begun to prepare the recipient, the procurement
 organization,  transplant  hospital, or physician or technician knows of
 the revocation.
   3. Any document of gift may be revoked in the manner set out in subdi-
 vision one or two of this section or by  destruction,  cancellation,  or
 mutilation of the document and all executed copies thereof.
   4.  Any  gift  made  by a will may be revoked or amended in the manner
 provided for revocation or amendment of wills or as provided in subdivi-
 sion one of this section.
   5. In the absence of contrary indications by the donor,  a  revocation
 or  amendment  of  an  anatomical  gift is not a refusal to make another
 anatomical gift NOT OTHERWISE PROHIBITED BY THE REVOCATION OR AMENDMENT,
 either by the prospective donor or another person specified in  subdivi-
 sion two of section forty-three hundred one of this article.
   §  5. The public health law is amended by adding a new article 43-A to
 read as follows:
 
                               ARTICLE 43-A
            ANATOMICAL GIFT DUTIES OF HOSPITALS AND PROCUREMENT
                               ORGANIZATIONS

 S. 6941                             5
 
 SECTION 4351. DUTIES  OF  HOSPITAL  ADMINISTRATORS,  ORGAN   PROCUREMENT
                 ORGANIZATIONS, BANKS OR STORAGE FACILITIES.
   § 4351. DUTIES OF HOSPITAL ADMINISTRATORS, ORGAN PROCUREMENT ORGANIZA-
 TIONS, EYE BANKS OR TISSUE BANKS. 1. (A) WHEN THE DEATH OF A PERSON IN A
 HOSPITAL  HAS  OCCURRED  OR  IS IMMINENT, THE HOSPITAL SHALL CONTACT THE
 ORGAN PROCUREMENT ORGANIZATION IN ORDER TO MAKE A  PRELIMINARY  DETERMI-
 NATION OF THE SUITABILITY OF THE PERSON FOR ORGAN DONATION, EXCEPT WHERE
 NOT  REQUIRED  BY  PARAGRAPH (C) OF THIS SUBDIVISION.  IF A HOSPITAL HAS
 ASCERTAINED THAT THE INDIVIDUAL EXPRESSED A DESIRE NOT TO RECEIVE  LIFE-
 SUSTAINING  TREATMENT,  PURSUANT TO SECTION FORTY-THREE HUNDRED SIX-B OF
 THIS CHAPTER, THE HOSPITAL SHALL MAKE THE ORGAN PROCUREMENT ORGANIZATION
 AWARE.
   (B) WHERE CONTACT WITH  THE  ORGAN  PROCUREMENT  ORGANIZATION  IS  NOT
 REQUIRED  UNDER  CRITERIA  DEVELOPED REGIONALLY BY THE 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  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  ORGAN  PROCUREMENT
 ORGANIZATION OF ITS CHOICE OF TISSUE PROCUREMENT PROVIDER. IF A HOSPITAL
 SELECTS MORE THAN ONE EYE BANK OR TISSUE BANK, IT MAY SPECIFY A ROTATION
 OF REFERRALS FOR PURPOSES OF TISSUE PROCUREMENT.
   2.  WHERE  THE ORGAN PROCUREMENT ORGANIZATION, EYE BANK OR TISSUE BANK
 IS CONTACTED, IT SHALL, IN CONSULTATION WITH THE HOSPITAL, AFTER  APPRO-
 PRIATE  MEDICAL  SCREENING  (WHICH  MAY  INCLUDE  SEROLOGICAL TESTING IF
 APPLICABLE) DETERMINE SUITABILITY FOR ORGAN, EYE AND TISSUE DONATION, AS
 APPROPRIATE. WHERE AN ORGAN PROCUREMENT ORGANIZATION  IS  CONTACTED,  IT
 SHALL  CONTACT  THE  APPROPRIATE EYE BANK OR TISSUE BANK WITH RESPECT TO
 SUITABILITY FOR EYE OR TISSUE DONATION.
   § 6. Subdivisions 5 and 8 of section 4302 of the public health law, as
 added by section 1 of part C of a chapter of the laws of 2019,  amending
 the  public  health  law relating to uses and dispositions of anatomical
 gifts, as proposed in legislative bills numbers S. 6000-A and A. 7800-A,
 are amended to read as follows:
   5. If a document of gift specifies only a general intent  to  make  an
 anatomical gift by words such as "donor", "organ donor" or "body donor",
 or  [by] a [symbol or] statement of similar import, the gift may be used
 only for transplantation or therapy, and the gift passes  in  accordance
 with subdivision six of this section.
   8.  If a [potential] PROSPECTIVE donor has been referred to a procure-
 ment organization or tissue bank pursuant to state or federal  law,  and
 the  procurement  organization has determined that the gift is medically
 unsuitable for transplant,  or  to  the  extent  that  a  non-transplant
 anatomical gift may still be honored after a gift has been made pursuant
 to  a  superseding  document  of gift, then the procurement organization
 shall make reasonable efforts to determine whether the donor has  previ-
 ously made a gift of his or her body or parts for education or research,
 and  the procurement organization informed of such gift shall notify the
 non-transplant anatomic bank of the gift  consistent  with  the  donor's
 intent.
   § 7. Section 4304 of the public health law, as amended by section 1 of
 part  D of a chapter of the laws of 2019, amending the public health law

 S. 6941                             6
 
 relating to delivery of documents of gift, as  proposed  in  legislative
 bills numbers S. 6000-A and A. 7800-A, is amended to read as follows:
   § 4304. Delivery of document of gift. If the gift is made by the donor
 to a specified donee, the will, card or other document or a copy [there-
 of] OF THE EXECUTED DOCUMENT, may be delivered to him or her to expedite
 the  appropriate procedures immediately after death; however delivery is
 not necessary to the validity of the gift.  On request of an  interested
 party  upon  or  after the donor's death, the person in possession shall
 produce the document for examination.
   § 8. Subdivisions 1, 3 and 4 of section 4306 of the public health law,
 as amended by section 1 of part E of a chapter  of  the  laws  of  2019,
 amending  the  public health law relating to rights and duties of donees
 at death, as proposed in legislative bills  numbers  S.  6000-A  and  A.
 7800-A, are amended to read as follows:
   1.  The  donee  may  accept or reject the gift. If the donee accepts a
 gift of the entire body, [he or she] THE DONEE may, subject to the terms
 of the gift, authorize embalming and the use  of  the  body  in  funeral
 services.    If  the  gift  is of a part of the body, the donee upon the
 death of the donor and prior to embalming, may  cause  the  part  to  be
 removed  without  unnecessary  mutilation.  After  removal  of the part,
 custody of the remainder of the body vests in the surviving spouse, next
 of kin, or other persons under obligation to dispose of the body.
   3. (a) (I) A person who acts in good faith in accord with the terms of
 this article or with the anatomical gift laws of another  [jurisdiction]
 STATE, is not liable for damages in any civil action or subject to pros-
 ecution in any criminal proceeding for his or her act.
   (II)  A  PERSON  WHO  ACTS IN GOOD FAITH IN ACCORD WITH THE ANATOMICAL
 GIFT LAWS OF ANOTHER COUNTRY IS NOT LIABLE  FOR  DAMAGES  IN  ANY  CIVIL
 ACTION  OR  SUBJECT TO PROSECUTION IN ANY CRIMINAL PROCEEDING FOR HIS OR
 HER ACT PROVIDED THAT:
   (A) SUCH COUNTRY HAS ANATOMICAL GIFT LAWS SIMILAR IN REQUIREMENTS  AND
 EFFECTS TO THE ANATOMICAL GIFT LAWS OF THIS STATE;
   (B)  SUCH COUNTRY APPEARS ON A LIST OF SUCH COUNTRIES PROMULGATED AS A
 REGULATION BY THE DEPARTMENT FOR SUCH PURPOSE; AND
   (C) SUCH COUNTRY APPEARED ON SUCH LIST AT THE TIME OF SUCH ACT.
   (b) A 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]  THE  PERSON  is  AN  AUTHORIZED
 PERSON  UNDER  SECTION  FORTY-THREE  HUNDRED  ONE OF THIS ARTICLE AND IS
 entitled to consent to the donation.
   (c) An entity under section forty-three  hundred  two  or  forty-three
 hundred  ten  of this article or a health care professional, or an agent
 or  employee  thereof,  who  or  which  documents,  records,   recovers,
 procures, obtains, or utilizes an organ or tissue in reasonable and good
 faith  reliance  on information provided to or contained in the New York
 state donate life registry shall not be liable in any civil or  criminal
 action or proceeding for action based on such reliance.
   4. Any employee or agent of [a federally designated] AN organ procure-
 ment organization, eye bank or tissue bank acting pursuant to this arti-
 cle  shall  be  held  to  the  same  standard of confidentiality as that
 imposed on employees of a hospital.
   § 9. Subdivision 1 of section 4306-a of  the  public  health  law,  as
 added  by section 1 of part F of a chapter of the laws of 2019, amending
 the public health law relating to interactions  between  advance  direc-

 S. 6941                             7
 
 tives  and anatomical gifts, as proposed in legislative bills numbers S.
 6000-A and A. 7800-A, is amended to read as follows:
   1. If a [patient] PROSPECTIVE DONOR in a hospital has a declaration or
 advance  health  care  directive  [or proxy document pursuant to article
 twenty-nine-C of this chapter,] and terms of the declaration,  directive
 or  proxy  document concerning life-sustaining treatment are in conflict
 with the express or implied terms of a potential  anatomical  gift  with
 regard to the administration of measures necessary to ensure the medical
 suitability  of  a  part for transplantation or therapy, the prospective
 donor's attending physician and the prospective donor  shall  confer  to
 resolve the conflict. FOR PURPOSES OF THIS SECTION, AN ADVANCE DIRECTIVE
 SHALL  MEAN  A WRITTEN OR ORAL INSTRUCTION BY THE ADULT PATIENT RELATING
 TO THE PROVISION OF HEALTH CARE TO THE PATIENT  WHEN  AN  ADULT  BECOMES
 INCAPACITATED,  INCLUDING  BUT  NOT  LIMITED  TO  A HEALTH CARE PROXY, A
 CONSENT TO THE ISSUANCE OF AN ORDER NOT TO RESUSCITATE OR  OTHER  ORDERS
 FOR LIFE-SUSTAINING TREATMENT RECORDED IN A PATIENT'S MEDICAL RECORD, OR
 A LEGALLY-RECOGNIZED STATEMENT OF WISHES OR BELIEFS.
   §  10.  Subdivision  1  of  section  4307 of the public health law, as
 amended by section 1 of part G of a chapter of the laws of 2019,  amend-
 ing  the  public health law relating to prohibition of sales or purchase
 of human organs, as proposed in legislative bills numbers S. 6000-A  and
 A. 7800-A, is amended to read as follows:
   1.  It shall be unlawful for any person to knowingly acquire, receive,
 or otherwise transfer for valuable consideration any  part  for  use  in
 human  transplantation.    The  term  "valuable  consideration" does not
 include the reasonable payments associated with the removal, transporta-
 tion, implantation, processing, preservation, quality control, and stor-
 age of a part or  the  expenses  of  travel,  housing,  and  lost  wages
 incurred  by  the  donor  of a human [organ] PART in connection with the
 donation of the [organ or human paired organ]  PART OR LIVING  donation.
 Any  person who violates this section shall be guilty of a class E felo-
 ny.
   § 11. This act shall take effect immediately; provided, however,  that
 sections  one through ten of this act shall take effect on the same date
 and in the same manner as a chapter of the laws of  2019,  amending  the
 public  health  law  relating  to  definitions  and  conforming  changes
 pertaining to anatomical gifts, as proposed in legislative bills numbers
 S. 6000-A and A. 7800-A, takes effect.