Anatomical Gifts

Amends Hawaii's Uniform Anatomical Gift Act to:  (1) Require all
acute care hospitals in Hawaii at or near the time of every
individual death, to report to the organ procurement organization
(OPO) by telephone to determine suitability for organ donation of
the individual in question.  (2) Require the OPO and hospital
representatives to cooperatively develop protocols for presenting
the option to donate.  (3) Prohibits family members from
overriding the donor's wishes when evidenced by a document of
gift.  (4) Limits liability of any person who relies in good
faith on the document of gift, except for gross negligence,
recklessness, or intentional misconduct.  (5) Require the OPO and
hospital representatives to conduct an annual death record
review.  (6) Authorize the assessment of a fine for
noncompliance.  (7) Establish a state organ donation advisory
committee.  (8) Authorize the Lt. Governor to actively promote
organ, tissue, and other anatomical gift efforts.

HOUSE OF REPRESENTATIVES                H.B. NO.547        
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Findings and purpose.  The legislature finds
 2 that there exists in the State a shortage of organ and tissue
 3 donors to provide the organs and tissue that could save lives or
 4 enhance the quality of life for many persons.  There are many
 5 more patients on the waiting list for a kidney, liver, heart,
 6 lung, or other solid organs than there are donated organs.  As a
 7 result many patients die before they can be given a second chance
 8 at life.
 9      The legislature further finds that particular difficulties
10 exist in making members of various minority groups aware of the
11 need for anatomical gifts.  For various reasons minorities appear
12 to be at increased risk to suffer illnesses such as diabetes,
13 that destroy healthy organs and require replacement.  The chances
14 of finding a good organ match is increased if the donor is of the
15 same ethnic group as the transplant recipient.  Minority ethnic
16 groups must be educated in the great need among their own people
17 for anatomical gifts.  The legislature finds that more education
18 and discussion among families are necessary to encourage organ
19 donation.

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 1      The purpose of this Act is to increase the number of
 2 patients being asked to donate organs, to expand educational
 3 efforts across all ethnic, religious, and age groups, and to
 4 increase the supply of organs for waiting transplant recipients.
 5      SECTION 2.  Chapter 327, Hawaii Revised Statutes, is amended
 6 by adding three new sections to be appropriately designated and
 7 to read as follows:
 8      "327-A  Required referral.  (a)  On or before the
 9 occurrence of each death in an acute care hospital, the hospital
10 shall report to the appropriate organ, tissue, or eye recovery
11 agency in order to determine the suitability of the individual
12 for organ, tissue, and eye donation.  This contact shall be noted
13 on the patient's medical record.
14      (b)  If the hospital administrator or designee has received
15 actual notice of opposition from any of the persons named in
16 section 327-3 and the decedent was not in possession of a valid
17 document of gift, the gift of all of any part of the decedent's
18 body shall not be requested.
19      (c)  Each acute care hospital shall develop within one year
20 of the effective date of this Act, with the concurrence of the
21 hospital medical staff, a protocol for identifying potential
22 organ and tissue donors.  The protocol shall require that at or

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 1 near the time of every individual death, an acute care hospital
 2 shall contact by telephone the local organ procurement
 3 organization to determine suitability for organ, tissue, and eye
 4 donation of the individual in question.  Each hospital shall
 5 designate a person to contact the organ procurement organization
 6 along with the appropriate data about each affected individual
 7 necessary to begin assessment for suitability for recovery of
 8 anatomical gifts.  The acute care hospital's protocol shall
 9 specify the kind of information that shall be available prior to
10 making the contact, including but not limited to the patient's
11 age and cause of death.  The organ procurement organization in
12 consultation with the patient's attending physician, or designee,
13 shall determine the suitability for donation.  If the organ
14 procurement organization in consultation with the patient's
15 attending physician or designee determines that donation is not
16 appropriate based on established medical criteria, this shall be
17 noted by the hospital personnel on the patient's record, and no
18 further action shall be necessary.  If the organ procurement
19 organization in consultation with the patient's attending
20 physician or designee determines that the patient is a suitable
21 candidate for anatomical donation, the acute care hospital and
22 the organ procurement organization, separately or together, shall

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 1 initiate a request by a designated requester who shall be a
 2 person trained by the organ procurement organization.  The
 3 protocol shall encourage discretion and sensitivity to family
 4 circumstances in all discussions regarding donations of tissue or
 5 organs.  The protocol shall take into account the deceased
 6 individual's religious beliefs or nonsuitability for organ and
 7 tissue donation.  As used in this section, "designated requester"
 8 means a person who has completed a course offered by an organ
 9 procurement organization on how to approach families and request
10 organ or tissue donation.
11      (d)  The department of health shall conduct annual death
12 record reviews at each acute care hospital to determine the
13 hospital's compliance with this section.  The department may
14 delegate its duty to conduct annual death record reviews to the
15 local organ procurement organization.  There shall be no cost
16 assessed against a hospital for a review of death records
17 pursuant to this subsection.
18      The department of health may impose an administrative fine
19 of up to $500 for each instance of noncompliance.  For purposes
20 of this section, noncompliance means any failure on the part of
21 an acute care hospital to contact an organ procurement
22 organization at or near the death of each individual.

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 1      327-B  Advisory committee on anatomical gifts.  (a)  There
 2 is established within the department of health for administrative
 3 purposes the advisory committee on anatomical gifts consisting of
 4 at least fifteen members appointed by the governor as provided in
 5 section 26-34.  Members shall serve without compensation but
 6 shall be reimbursed for expenses, including travel expenses,
 7 necessary for the performance of their duties.  Members shall be
 8 selected from among transplant recipients, donor families, health
 9 care providers, clergy, and organ, tissue, and eye procurement
10 organizations.  Additional members shall be selected from the
11 department of education, the department of health, and the
12 department of commerce and consumer affairs.  Professional
13 associations of attorneys, health care providers, teachers, and
14 nurses, as well as organ, tissue, and eye transplant donors,
15 recipients, and the public may be consulted for nominees to the
16 advisory committee.  Every effort shall be made to select members
17 from every island and from rural and urban areas for maximum
18 geographic representation.  Members shall serve for four years
19 and may be removed for incompetence or misconduct.  A majority of
20 the members then serving shall constitute a quorum.  Members
21 shall select their own chairperson who shall serve for two years.
22      (b)  The committee shall meet at least semiannually or at

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 1 the call of the chairperson to:
 2      (1)  Evaluate current donation rates and suggest methods to
 3           increase anatomical gifts;
 4      (2)  Propose legislative, regulatory, or other policy
 5           changes to increase anatomical gifts;
 6      (3)  Cooperate with the lieutenant governor and the local
 7           organ procurement organization to promote educational
 8           programs to increase awareness of organ donation needs;
 9           and
10      (4)  Engage in any other informational, educational, and
11           promotional efforts that will help to increase organ,
12           tissue, and eye donations.
13      (c)  The lieutenant governor shall be the primary government
14 official to promote organ donation awareness and shall serve as
15 an ex officio member of the advisory committee.  The lieutenant
16 governor shall assist in any way to promote educational programs
17 to promote organ donation.
18      327-C  Organ and tissue education special fund.  The Hawaii
19 organ and tissue education special fund is established in the
20 state treasury and shall be administered by the office of the
21 lieutenant governor.  The fund shall be used for educational
22 purposes to promote organ, tissue, and eye donation programs in

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 1 schools and other public places including motor vehicle
 2 registration offices, busses, libraries, and government offices."
 3      SECTION 3.  Chapter 286, Hawaii Revised Statutes, is amended
 4 by adding a new section  to be appropriately designated and to
 5 read as  follows:
 6      "286-A  Organ and tissue education fee.  Notwithstanding
 7 any other law to the contrary, an additional fee of $1 for each
 8 certificate of registration or driver's license application or
 9 renewal shall be collected annually by the director of finance of
10 each county, to be deposited into the organ and tissue education
11 special fund pursuant to section 327-C."
12      SECTION 4.  Chapter 327, Hawaii Revised Statutes is amended
13 as follows:
14      1.  By amending subsection (h) of section 327-2 to read:
15      "(h)  An anatomical gift that is not revoked by the donor
16 before death is irrevocable and [does not require the consent or
17 concurrence of any person after the donor's death.] the intent of
18 a decedent to give all or any part of the decedent's body as a
19 gift pursuant to this chapter as evidenced by the possession of a
20 donor card, donor designation on a driver's license, advance
21 directive, or other document of gift, shall not be revoked by any
22 person, nor shall the consent of any other person be necessary to

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 1 render that gift valid and effective.
 2      Any person, hospital, or organization that relies on the
 3 document of gift and acts in good faith in accordance with the
 4 provisions of this chapter shall not be subject to criminal or
 5 civil liability from any action taken under this chapter.  The
 6 immunity provided by this subsection shall not extend to such
 7 person, hospital, or organization if damages result from the
 8 gross negligence, recklessness, or intentional misconduct to the
 9 decedent."
10      2.  By repealing section 327-5.
11      ["327-5  Routine inquiry and required request; search and
12 notification.(a)  On or before admission to a hospital, or as
13 soon as possible thereafter, a person designated by the hospital
14 shall ask each patient who is at least eighteen years of age:
15 "Are you an organ or tissue donor?"  If the answer is affirmative
16 the person shall request a copy of the document of gift.  The
17 person designated shall make available basic information
18 regarding the option to make or refuse to make an anatomical
19 gift.  The answer to the question, an available copy of any
20 document of gift or refusal, if any, to make an anatomical gift,
21 and any other relevant information, shall be placed in the
22 patient's medical record.

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 1      (b)  If, at or near the time of death of a patient, there is
 2 no medical record that the patient has made or refused to make an
 3 anatomical gift, the hospital administrator or a representative
 4 designated by the administrator shall discuss the option to make
 5 or refuse to make an anatomical gift and request the making of an
 6 anatomical gift pursuant to section 327-3.  The request shall be
 7 made with reasonable discretion and sensitivity to the
 8 circumstances of the family including a reciprocal beneficiary.
 9 A request is not required if the gift is not suitable, based upon
10 accepted medical standards, for a purpose specified in section
11 327-6.  An entry shall be made in the medical record of the
12 patient, stating the name and affiliation of the individual
13 making the request, and of the name, response, and relationship
14 to the patient of the person to whom the request was made.  The
15 director of health may adopt rules to implement this subsection.
16      (c)  The following persons shall, at the person's discretion
17 and if time and resources permit, and if doing so would be
18 inoffensive to anyone in the vicinity of the body, make a
19 reasonable search of the person and the person's immediate
20 personal effects for a document of gift or other information
21 identifying the bearer as a donor or as an individual who has
22 refused to make an anatomical gift:

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 1      (1)  A law enforcement officer, firefighter, paramedic, or
 2           other emergency rescuer attending an individual who the
 3           searcher believes to be dead or near death; and
 4      (2)  A hospital, upon the admission of an individual at or
 5           near the time of death, if there is not immediately
 6           available any other source of that information.
 7      (d)  If a document of gift or evidence of refusal to make an
 8 anatomical gift is located by the search required by subsection
 9 (c)(1), and the individual or body to whom it relates is taken to
10 a hospital, the hospital shall be notified of the contents and
11 the document or other evidence shall be sent to the hospital.
12      (e)  If, at or near the time of death of a patient, a
13 hospital knows that an anatomical gift has been made pursuant to
14 section 327-3 or a release and removal of a part has been
15 permitted pursuant to section 327-4, or that a patient or an
16 individual identified as in transit to the hospital is a donor,
17 the hospital shall notify the donee if one is named and known to
18 the hospital; if not, it shall notify an appropriate procurement
19 organization.  The hospital shall cooperate in the implementation
20 of the anatomical gift or release and removal of a part.
21      (f)  A person who fails to discharge the duties imposed by
22 this section is not subject to criminal or civil liability but is

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 1 subject to appropriate administrative sanctions."]
 2      SECTION 5.  In codifying the new sections added to chapter
 3 327, Hawaii Revised Statutes, by section 2 of this Act, the
 4 revisor of statutes shall substitute appropriate section numbers
 5 for the letters used in the new sections' designations in this
 6 Act.
 7      SECTION 6.  Statutory material to be repealed is bracketed.
 8 New statutory material is underscored.
 9      SECTION 7.  This Act shall take effect upon its approval.
11                           INTRODUCED BY:  _______________________