2013 New York Consolidated Laws
PBH - Public Health
Article 43-A - (4351) REQUEST FOR CONSENT TO AN ANATOMICAL GIFT
4351 - Duties of hospital administrators, organ procurement organizations, eye banks and tissue banks.

 
    §   4351.   Duties   of  hospital  administrators,  organ  procurement
  organizations, 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
  subdivision.
    (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
  serological  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,
  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,
  respectively, 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,
  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 registry under section forty-three hundred ten of this
  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
  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), (e), (f) or (g) 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
  instrument 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;
    (d) a son or daughter eighteen years of age or older;
    (e) either parent;
    (f) a brother or sister eighteen years of age or older;
    (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
  relationship 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.
    7. The person initiating the request shall be designated by a hospital
  and  shall  be  a  representative  of  a  federally   designated   organ
  procurement  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  procurement  organization,  eye bank or tissue bank, whichever is
  applicable, on how to approach  potential  donor  families  and  request
  organ, eye, or tissue donation.
    8.  Any  employee or agent of a federally designated organ procurement
  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.
    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
  permissible 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.
    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.
    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.
    13. The commissioner shall establish such  additional  regulations  as
  are necessary for the implementation of this section.