Overview of Revised Uniform Anatomical Gift Act Pat Aiken-O’Neill, President EBAA Amanda Nerone, Regulatory Affairs Offi

1. Overview of Revised Uniform Anatomical Gift ActPat Aiken-O’Neill, President EBAAAmanda Nerone, Regulatory Affairs Officer EBAA

2. Current Status • The National Conference of Commissioners on Uniform State Laws (NCCUSL) approved the Revised UAGA at their meeting July 13, 2006. • The approved text is subject to revision by the Committee on Style of the NCCUSL. • The final styled version is expected in October.

3. Following finalization by the NCCUSL, the revised UAGA must be brought before each state for consideration and enactment. • Eye banks will play a crucial role in individual state legislative efforts

4. Overview of Revised UAGA as approved by the NCCUSL

5. Who May Make an Anatomical Gift Before Donor’s Death • ‘87 UAGA: an individual may make an anatomical gift of that individual’s body or part if the individual is at least 18 years of age • Revised UAGA: permits additional persons to make an anatomical gift before the donor’s death

6. Additional Persons • Donors under 18 yrs of age if: • An emancipated minor or • Authorized under state law to apply for a driver’s license • Agents of donors acting under a health-care POA or other record • Parents of donors under age 18 • Parents maintain the right to revoke the gift • Guardian of the donor

7. Manner of Making Anatomical Gift Before Donor’s Death • ‘87 UAGA: record of gift could be made by a donor card, will, or driver’s license • Revised UAGA: the gift can also be made by the donor on an ID card, upon a donor registry, or orally in limited circumstances.

8. The parents, agent, or guardian cannot make an anatomical gift for the benefit of a donor using licenses, ID cards, or wills.

9. If the Donor or Other Person Physically Cannot Sign • ‘87 UAGA: the document of gift must be signed by another individual and witnessed by 2 individuals • Revised UAGA: the 2 witnesses must be at least 18 years of age, one of whom is a disinterested witness

10. Disinterested witness: person other than spouse, child, parent, sibling, grandchild, grandparent, guardian, or other adult who exhibited special care and concern for the individual

11. During Terminal Illness or Injury The donor can make an anatomical gift by any form of communication • Must be addressed to at least two other individuals who are at least 18yo, and at least one is a disinterested witness • Ability to make an oral gift parallels ‘87 version’s right to make oral revocations and amendments

12. Amending or Revoking Anatomical Gift Before the Donor’s Death • ‘87 UAGA allowed amendments/ revocations by • Signed statements • Oral statements in the presence of two individuals • Any form of communication during a terminal illness or injury addressed to a physician • The delivery of a signed statement to a specified donee • Revised UAGA includes revocations made by later-dated documents of gifts, either expressly or by inconsistency

13. Example of later-dated document inconsistency • Person donates entire body in a will to Medical School A for research • Later, the donor signs a document of gift donating a kidney for transplant • The latter document of gift is only inconsistent with the prior document to the extent of the donated kidney, thus, the kidney would pass to the procurement organization, and the remaining body would pass to Medical School A

14. Revised UAGA allows a record of revocation or amendment to be signed by another individual acting at the direction of the donor or the “other person” and must • Be witnessed by two or more other individuals who are at least 18 yo; at least one must be a disinterested witness • State that it has been signed and witnessed at the request of the donor or “other person”

15. During terminal illness or injury, a donor may amend or revoke an anatomical gift by any form of communication • Addressed to at least two other individuals who are at least 18yo, one of whom must be a disinterested witness • Does not need to be addressed to a physician or surgeon, such as ‘87 version required

16. A donor or other person authorized to make an anatomical gift may also revoke the gift by destruction of the document of gift, if the destruction is done with the intent to revoke the gift • Note: A revocation is not a refusal, and does not bar another person from making an anatomical gift

17. Refusal to Make Anatomical Gift • A person may bar another person from ever making an anatomical gift of his body or parts by making a refusal. • The refusal may be evidenced by • A signed record • The individual’s will • Any form of communication made during terminal illness or injury

18. The refusal may be revoked or amended: • in the same manner as a gift revocation or amendment • By subsequently making an anatomical gift that is inconsistent with the refusal

19. An agent, parent, or guardian cannot make a refusal binding on any other person. • No age limitation to sign a refusal. • However, if a minor has made a refusal and dies under the age of 18, the parents may revoke the refusal

20. Preclusive Effect of Anatomical Gift, Amendment, or Revocation • Revised UAGA substantially strengthens the respect due a decision to make or refuse to make an anatomical gift • Prior laws provided that a donor’s gift was irrevocable (except by the donor), but it has been common practice for recovery organizations to seek affirmation of that gift from a donor’s family, resulting in delays and quite often a reversal of the donor’s decision

21. The Revised Act intentionally disempowers families from making or refusing to make gifts in contravention to a donor’s wishes. • Under the strengthened language of the Revised Act, if a donor had made an anatomical gift, there is no reason to seek consent from the donor’s family, as they have no ability to give it legally.

22. This would not bar, nor should it bar, a recovery agency from advising the donor’s family of the donor’s express wishes. • The conversation should be focused more on what procedures will be followed to carry out the donor’s wishes than on seeking approval of the donation.

23. Example A donor over the age of 18 gifts the donor’s organs for transplantation by an appropriate document of gift. • All other person are barred from altering or revoking that gift, and have no legal authority or right to do so.

24. Who May Make an Anatomical Gift of Decedent’s Body or Part When a person had neither made an anatomical gift nor signed a refusal, the list of persons who can make an anatomical gift following the person’s death is expanded from prior law, including • persons acting as agents at the decedent’s death • grandchildren • adults who exhibited special care and concern for the decedent

25. Agents • Under other law, an agent’s power under a health-care power terminates when the principal dies • This act does not extend the agent’s relationship beyond the person’s death • It does, however, give the agent the first priority to make an anatomical gift on behalf of the decedent, unless expressly prohibited in health care POA

26. Order of Priority • Agent • Spouse • Adult children • Parents • Adult siblings • Adult grandchildren • Grandparents • An adult who exhibited special care and concern for decedent • Persons acting as the guardian • Any other person having authority to dispose of body

27. “Reasonably Available” • A person in a subsequent class cannot make an anatomical gift if a person in a prior class is reasonably available • Reasonably available: able to be contacted without undue effort and willing to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift

28. Unwillingness to make a decision • If a person with a priority to make a gift is “unwilling” to make a decision, that person is deemed not to be reasonably available. • The potential savings in human life justifies the position that the inability to express a decision is tantamount to not being available to make a decision.

29. Multiple members in a class • If more than one member of a class of priority is available (other than adults who exhibited special care and concern for the decedent), an anatomical gift may be made by any member of that class unless an objection by a member of that class is known • If an objection is known, a gift may be made only by a majority of reasonably available members of that class

30. Who May Receive Anatomical Gift Revised act specifically provides who the donee of a part is, if a specific donee is not named: If the gift is made for the purpose of transplantation or therapy: • And the part is an eye, the gift passes to the appropriate eye bank • And the part is a tissue, the gift passes to the appropriate tissue bank • And the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ to be allocated

31. If the part is an organ, eye or tissue and the gift is made for the purpose of research or education, the gift passes to the appropriate procurement organization • “Procurement organization” means an eye bank, OPO, or tissue bank

32. If only a general intent to be a donor is specified with words such as “donor”, “organ donor”, or a symbol: • If the part is an eye, the gift passes to the appropriate eye bank • If the part is a tissue, the gift passes to the appropriate tissue bank • If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ to be allocated

33. If a gift is made for more than one purpose, but the purposes are not prioritized, the gift must be used for transplantation or therapy, and if the gift cannot be used for transplantation or therapy, the gift may be used for research or education

34. If the purpose of an anatomical gift is not indicated on the document of gift, or the document specifies only a general intent to be a “donor”, the parts may be used only for transplantation or therapy.

35. Only a donor’s parts are subject to a general gift; more specific language is required to make an anatomical gift of the whole body. • Referral requirements removed from UAGA, due to enactment of Medicare and Medicaid Programs: Conditions of Participation

36. Search and Notification • A reasonable search of an individual dead or near death shall be made by emergency rescuers or a hospital for a document of gift or a refusal. • If the individual is taken to a hospital, and the document of gift or refusal is found, the document shall be sent to the hospital.

37. Rights and Duties of Procurement Organizations and Others • When a patient at or near death is referred to a procurement organization, the procurement organization is required to conduct a reasonable search of any donor registry it knows to exist for the geographic area in which that individual resides • A procurement organization must be allowed reasonable access to the state department of motor vehicles to ascertain whether the individual is a donor

38. Procurement organizations may conduct a reasonable examination to determine medical suitability of any part, including relevant medical records, reflecting the HIPPA exemption

39. If the donor is under 18 years of age, a procurement organization shall conduct a reasonable search for the parents to provide them with an opportunity to amend or revoke a gift or revoke a refusal • Recovery organizations have an obligation to make a reasonable search for persons with a priority to make an anatomical gift.

40. Law Governing Validity; Choice of Law as to Execution of Document of Gift; Presumption of Validity • New to UAGA: Assures that a document of gift valid either in the place where executed or the place where the person making the gift resided would be valid in the state adopting this section • A person can presume a document of gift to be valid unless the person has actual knowledge that it was not validly executed or was revoked

41. Donor Registry • Authorizes state agencies to establish or contract for the establishment of a donor registry • The registry must meet certain requirements • Must provide a centralized, electronic database that allows by signed record, a statement or symbol to be entered in the registry indicating the person made, amended, or revoked an anatomical gift • Must be accessible to procurement organizations • Must be accessible seven days a week, 24 hrs/ day

42. Effect of Anatomical Gift on Advance Health Care Directive • Life support may not be withdrawn from the prospective donor if it is necessary to ensure viability of organs as the subject of an anatomical gift. • Eases tension between preserving the organs for possible donation, and the patient’s health-care directive • An individual could expressly provide otherwise in the directive

43. Cooperation between Coroner and Procurement Organization Provisions allow for coroners and procurement organizations to collaborate to maximize recovery of anatomical gifts • Unless the coroner denies recovery, the coroner shall conduct a post-mortem exam of the body or parts within a time period compatible with their preservation for the purpose of the anatomical gift

44. Facilitation of Anatomical Gift from Decedent Whose Body is Under Jurisdiction of Coroner • Coroner shall release post-mortem results to the procurement organization • The coroner may review medical records possessed by other persons if the coroner determines them to be relevant • Requested information must be shared with the coroner expeditiously to allow the coroner to conduct a medicolegal investigation

45. If an anatomical gift has been made, and the coroner determines the recovery of the part will not interfere with the post-mortem exam, the procurement organization and coroner shall cooperate in the timely removal of the part.

46. The coroner shall consult with the procurement organization or transplant surgeon if he initially believes the recovery may interfere with the investigation. After consultation: • The coroner may allow recovery • If he intends to deny recovery, the coroner shall attend the removal of the part at the request of the procurement organization, and decide if the part may be recovered

47. If the coroner denies recovery, he shall provide a written record explaining the specific reasons for not allowing the recovery of the part • If the coroner allows recovery, the procurement organization, upon request, shall provide a record describing the conditions of the part or other information that may assist in the post-mortem examination

48. If a coroner is required to be present at a post-mortem examination as requested by the procurement organization, the procurement organization shall reimburse the coroner upon request, for the additional costs incurred