ARIZONA STATE SENATE
Forty-eighth Legislature, First Regular Session
FINAL AMENDED
FACT SHEET FOR S.B. 1099
revised uniform anatomical gift act
Purpose
Repeals existing laws related to anatomical gifts, and reenacts new procedures for: a) making, amending and revoking an anatomical gift; b) who may receive the gift; and c) the rights and duties of various organizations as they relate to anatomical gifts.
Background
An anatomical gift is a donation of organs and tissues to take effect on or after death. Organs that can be donated include the heart, intestines, kidneys, liver, lungs and pancreas. Tissues that may be donated include corneas, heart valves and skin. Donations may be used in people who have organ failure, who are blind or who have severe burns or serious diseases. Donations may also be used for research related to diseases, disabilities and injuries.
The Uniform Anatomical Gift Act, which was enacted by all 50 states and the District of Columbia, established the first comprehensive and uniform laws regarding organ and tissue donations. Arizona first adopted this act in 1970 and adopted a revised version in 1996. The Revised Arizona Anatomical Gift Act (Revised Act) authorizes persons to consent to, amend, revoke or refuse to make an anatomical gift. The Revised Act establishes the decision to donate as legally binding, sets forth the obligations for hospitals and organ procurement agencies with respect to obtaining consent of donation and immunizes hospitals, persons, requestors and other entities that comply with the Revised Act in good faith from civil liability.
For additional information regarding current laws related to anatomical gifts, please refer to the Organ and Tissue Donation Issue Brief, prepared by the Senate Research Staff. The Brief is located at: http://azleg.gov/briefs/Senate/ORGAN%20AND%20TISSUE%20DONATION.pdf
The National Conference of Commissioners on Uniform State Laws (NCCUSL) researches, drafts and promotes enactment of uniform state laws in areas where uniformity is desirable and practical. The Arizona Commission on Uniform State Laws (Commission) sends representatives to the NCCUSL and then recommends to the Legislature proposed uniform laws promulgated by the NCCUSL that are deemed appropriate for Arizona.
S.B. 1099 consists of the Commission’s recommendations to repeal the existing Revised Act and enact a new act that incorporates provisions from current law, as well as numerous changes. The provisions below denote only the changes from the existing law, including the addition of new responsibilities and requirements.
There is no anticipated fiscal impact to the state General Fund as a result of this legislation.
Provisions
1. Repeals existing laws related to anatomical gifts, and reenacts new procedures for: a) making, amending and revoking an anatomical gift; b) who may receive the gift; and c) the rights and duties of various organizations as they relate to gifts.
Making, Amending or Revoking a Gift
2. Applies the same procedures that apply to adult donors to minors who are emancipated or old enough to apply for a driver license.
3. Allows individuals to make an anatomical gift by registering with the donor registry.
4. Allows the following individuals (henceforth referred to as designees) to make, amend and revoke anatomical gifts during the life of the donor for transplantation, therapy, research or education, subject to the same requirements that apply to decisions made by the donors themselves: a) an agent of the donor, unless a power of attorney for health care or other record prohibits such an act; b) a parent of the donor, if the donor is an unemancipated minor; and c) the donor’s guardian.
5. Limits the instances in which nonwritten communication may be used to make, amend or revoke a gift or refuse to make a gift to instances of terminal injury or illness.
6. Requires one of the two witnesses to a nonwritten authorization of a document of gift or a record signed by another authorized individual to be a disinterested witness.
7. Allows another individual acting at the direction of the donor or the designee to amend or revoke an anatomical gift or refuse to make a gift if the donor or designee is physically unable to sign; requires this record to: a) be witnessed by at least two adults, one of whom is a disinterested witness and b) state that it has been signed and witnessed in that manner. Continues to allow an individual acting at the direction of the donor to make a gift.
8. Allows a later-executed document of gift that amends or revokes a previous anatomical gift or a portion thereof, either expressly or by inconsistency, to serve as a gift amendment.
9. Allows a document of gift to be revoked by the destruction or cancellation of the document of gift, or the portion of the document, with intent to revoke the gift.
10. Allows an individual to refuse to make a gift through the individual’s will.
11. Allows individuals to amend or revoke their refusal with the same procedures used to establish the refusal, by subsequently making a gift that is inconsistent with the refusal, or by destroying or canceling the record of the refusal with the intent to revoke it.
12. Prohibits, in the absence of an express, contrary indication by the donor, a person other than the donor from making, amending or revoking an anatomical gift if the donor has made or amended an anatomical gift. If a designee or another individual directed by the donor made or amended the gift, another person may not make, amend or revoke the gift. The revocation of a previous gift does not bar another person from making a gift if that person is permitted to do so by the bill.
13. Stipulates that, in the absence of an express contrary indication by the donor or the designee, the existence of an anatomical gift of a part of a body for a specified purpose does not limit the making of another gift of the part for another purpose.
Anatomical Gifts of Decedents
14. Maintains the existing classes of priority for individuals to make anatomical gifts of a decedent’s body or parts with the following changes:
a) adds the decedent’s adult grandchildren.
b) adds the decedent’s grandparents.
c) adds the decedent’s guardians.
d) adds any other person who has the authority to dispose of the decedent’s body.
15. Allows an anatomical gift to be made, amended or revoked if there are objections by an individual member of any given class (within the specified priority levels), but requires a majority of the members of the class who are reasonably available to make the decision. In the instances of revocation of the gift, if the members of a class are equally divided as to whether to revoke the gift, the gift may be revoked.
16. Requires a member of the class to be “reasonably available” in order to be considered. Reasonably available is defined as a person who is able to be contacted by a procurement organization without undue effort and who is willing and able to be contacted in a timely manner consistent with existing medical criteria necessary for making an anatomical gift.
17. Allows the parents of an unemancipated minor who dies to revoke or amend anatomical gifts or revoke the minor’s refusal of an anatomical gift.
Persons Who May Receive Gifts
18. Allows an anatomical gift for research or education to be made to any appropriate person.
19. Specifies the following procedures for the distribution of parts if the gift does not name a specified donee, but does identify a purpose:
a) if the purpose is for transplantation or therapy:
(i) for eyes, the appropriate eye bank
(ii) for tissues, the appropriate tissue bank.
(iii) for organs, the organ procurement organization.
b) if the purpose is for research or education, the appropriate procurement organization.
20. Specifies the following procedures for the distribution of parts if the gift does not name a specified donee or a purpose, names more than one purpose at the same level of priority or the gift cannot be transplanted:
a) for eyes, the appropriate eye bank.
b) for tissues, the appropriate tissue bank.
c) for organs, the organ procurement organization.
21. Requires, if there is more than one purpose listed in the document of gift or the gift does not specify a purpose, the gift to be used for transplantation or therapy, if suitable. Allows the gift to be used for research or education if not suitable.
22. Requires, unless an individual is designated by the donor as the recipient of the organ, the anatomical gift to be given to the organ procurement organization as the custodian of the organ. Stipulates that unless a specific individual is designated, the bill does not affect the allocation or organs for transplantation or therapy.
23. Requires, if an anatomical gift cannot be distributed as otherwise specified, custody of the body to be given to a person who has the obligation to dispose of the body or part.
24. Prohibits a person from accepting an anatomical gift if the person knows the gift was not made as required by the bill.
Procurement Organizations
25. Defines a procurement organization as an organ procurement organization, eye bank, tissue bank or a specified storage facility.
26. Requires the organ procurement organization, when it receives a hospital referral, to make a reasonable search of any donor registry to determine if the individual has an anatomical gift.
27. Requires the procurement organization to be given reasonable access to the information in the records.
28. Allows the organ procurement organization or appropriate eye or tissue bank, rather than an unspecified individual, to conduct any reasonable examination necessary to ensure the medical suitability of a part of a person at or near death; requires measures necessary to ensure the medical suitability of the part to be continued unless the hospital or procurement organization knows the individual expressed a contrary intent.
29. Allows individuals and entities that may receive donations pursuant to the bill to conduct examinations for medical suitability at any time after a donor’s death, unless otherwise prohibited by law.
30. Requires a procurement organization to make a reasonable search for an individual who has the priority to make an anatomical gift on behalf of a prospective donor. Requires the procurement organization to notify a person to whom an anatomical gift was made.
Donor Registry
31. Maintains the requirement that an organ procurement organization establish a donor registry.
32. Requires the Motor Vehicle Division (MVD) to cooperate with the organ procurement organization that administers a donor registry to transfer to the donor registry all relevant information regarding a donor’s anatomical gift.
33. Requires the donor registry to allow a donor or the donor’s designee to include on the registry a statement or a symbol that the donor has made an anatomical gift.
34. Prohibits personally identifiable information on a registry about a donor or prospective donor from being used or disclosed without consent of the donor or the person who made the anatomical gift for any purpose other than determining if a donor who is at or near death has made, amended or revoked the gift.
35. Stipulates that the requirements for the donor registry do not prohibit any person from establishing another registry that is not established by or under contract with the state. Requires other registries to comply with the same requirements that apply to the contracted registry.
County Medical Examiner Responsibilities
36. Allows a county medical examiner to release for transplantation, therapy, research or education an entire body that is the subject of an anatomical gift, subject to the same procedural requirements that apply to the release of a body part for those purposes.
37. Removes the responsibility of the county medical examiner to locate a deceased person’s medical records and contact persons to make the decision to make an anatomical gift. Limits the responsibility for these functions to an organ procurement organization.
38. Requires a county medical examiner to release to specified entities the name, contact information, and available medical and social history of a decedent whose body is under the jurisdiction of the medical examiner.
39. Requires the county medical examiner to release to a procurement organization postmortem examination results of a decedent whose body is medically suitable for donation; limits further disclosure of this information to instances relevant to transplantation or therapy.
40. Limits the subsequent disclosure of postmortem examination results by the procurement organization to instances relevant to transplantation or therapy.
Immunity and Classification of Offenses
41. Classifies as a class 6 felony intentionally falsifying, forging, concealing, defacing or obliterating a document of gift, an amendment or revocation of gift, or a refusal of gift.
42. Exempts all individuals who act in good faith related to procurement of parts from civil and criminal liability and administrative proceedings. Acts are presumed to be in good faith unless done with intent to maliciously cause injury.
43. Allows individuals to relay on representations of the individuals who are permitted to make gifts on behalf of a donor, unless the person knows the representation to be untrue.
Miscellaneous
44. Requires consultation to determine a donor’s intent if a donor’s anatomical gift is in conflict with the donor’s living will or health care directive; allows another person authorized by law to resolve the conflict if the donor is unable to do so.
45. Prohibits measures necessary to ensure the medical suitability of an organ for transplant or therapy from being withheld or withdrawn until the conflict is resolved as long as the measures are not contraindicated by appropriate end of life care.
46. Specifies procedures for “appropriate consultation” and for resolving the conflict.
47. Presumes a document of gift to be of value if it is executed according to Arizona law, the laws of the state or country where it was executed, or the laws of the state or country where the person making the gift lived, had a residence or was a national.
48. Stipulates that, if the document of gift is valid, Arizona laws govern its interpretation. Allows a person to presume the document of gift or any amendment is valid.
49. Requires hospitals to enter into agreement or affiliations with one or more procurement organizations for coordination of procurement and use of anatomical gifts.
50. Specifies that a document of gift does not have to be delivered within a donor’s lifetime to be effective.
51. Requires, in applying and construing the laws related to anatomical gifts, consideration to be given to the need to promote uniformity among states that enact this law.
52. Declares that the bill modifies, limits and supersedes the Electronic Signatures in Global and National Commerce Act, but does not modify, limit or supersede the provisions that: a) allow electronic signatures for signatures, contracts or the transaction records for transactions in or affecting interstate or foreign commerce or b) exempt the electronic delivery of signatures for court orders, notices or documents; notices of the cancellation of utility services or other specified documents related to an individual’s primary residence from electronic signature requirements.
53. Transfers donor registry records for records made under existing law to the donor registry established pursuant to the bill.
54. Defines relevant terms.
55. Becomes effective on the general effective date.
Amendments Adopted by Committee
1. Changes references related to MVD donor records to the donor registry.
2. Returns county medical examiner responsibilities to current law, except as noted.
3. Allows individuals who can authorize anatomical gifts under current law to continue to do so.
4. Allows donor registry records under current law to transfer to the registry authorized by the bill.
5. Includes “storage facility” in the definition of “procurement organization.”
6. Allows individuals to execute a document of gift by registering with the donor registry.
7. Makes technical and conforming changes.
Amendments Adopted by House of Representatives
1. Includes an organ or an eye in the definition of “tissue” for the purposes of the bill, as long as the organ or eye is donated for research or education purposes.
2. Requires a county health officer to follow the same procedures as a county medical examiner when releasing a body and permitting the removal of parts.
3. Removes the requirement that a law enforcement officer or firefighter make a reasonable search of an individual who is dead or near death for information identifying the individual as a donor.
4. Restructures the procedures for when a prospective donor has a declaration or health care directive that conflicts with an anatomical gift.
5. Allows a medical examiner to release for transplantation, therapy, research or education an entire body that is the subject of an anatomical gift, subject to the same procedural requirements that apply to the release of a body part for those purposes.
6. Removes the responsibility of the medical examiner to locate a deceased person’s medical records and contact persons to make the decision to make an anatomical gift.
7. Allows the county medical examiner’s release of the name, contact information and medical and social history of a decedent to a procurement organization to occur under procedures adopted by the medical examiner rather than upon request of a procurement organization. Requires the release of the same information to a designated donee of an anatomical gift.
8. Make technical and conforming changes.
Amendments Adopted by Conference Committee
1. Removes the requirement a hospital or paramedic make a reasonable search of an individual who is dead or near death for information identifying the individual as a donor.
2. Conforms references to living wills and health care directives to existing statutory terms for those documents.
3. Makes technical and conforming changes.
Senate Action House Action
HEALTH 2/15/07 DPA 7-0-0-0 HEALTH 3/14/07 DPA 9-0-0-1
3rd Read 2/27/07 30-0-0-0 3rd Read 4/17/07 51-7-2-0
Final Read 6/14/07 19-0-11-0 Final Read 6/18/07 50-10-0-0
Signed by the Governor 7/2/07
Chapter 281
Prepared by Senate Research
July 12, 2007
BKL/jas