Anatomical Gifts

Amends Hawaii's Uniform Anatomical Gift Act to:  require all
acute care hospitals in Hawaii to report to the organ procurement
organization (OPO) by telephone to determine suitability for
organ donation; requires the OPO and hospital representatives to
cooperatively develop protocols for presenting the option to
donate; prohibits family members from overriding the donor's
wishes when evidenced by a document; limits liability of any
person who relies in good faith on the document, except for gross
negligence, recklessness, or intentional misconduct; requires the
OPO and hospital representatives to conduct an annual death
record review; establishes a state organ donation advisory
committee; and authorizes the Lt. Governor to actively promote
organ, tissue, and other anatomical gift efforts. (SD1)

THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



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

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 1 patients being asked to donate organs, to expand educational
 2 efforts across all ethnic, religious, and age groups, and to
 3 increase the supply of organs for waiting transplant recipients.
 4      SECTION 2.  Chapter 286, Hawaii Revised Statutes, is amended
 5 by adding a new section to be appropriately designated and to
 6 read as follows:
 7      "286-A  Organ and tissue education fee.  Notwithstanding
 8 any other law to the contrary, a voluntary fee of $1 for each
 9 certificate of registration or driver's license application or
10 renewal shall be collected annually by the director of finance of
11 each county, to be deposited into the organ and tissue education
12 special fund pursuant to section 327-C."
13      SECTION 3.  Chapter 327, Hawaii Revised Statutes, is amended
14 by adding four new sections to part IV to be appropriately
15 designated and to read as follows:
16      "327-A  Required referral.  (a)  On or before the
17 occurrence of each death in an acute care hospital, the hospital
18 shall report to the appropriate organ, tissue, or eye recovery
19 agency in order to determine the suitability of the individual
20 for organ, tissue, and eye donation.  This contact shall be noted
21 on the patient's medical record.
22      (b)  Each acute care hospital shall develop within one year
23 of the effective date of this Act, with the concurrence of the

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

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 1 the organ procurement organization, separately or together, shall
 2 initiate a request by a designated requester who shall be a
 3 person trained by the organ procurement organization.  The
 4 protocol shall encourage discretion and sensitivity to family
 5 circumstances in all discussions regarding donations of tissue or
 6 organs.  The protocol shall take into account the deceased
 7 individual's religious beliefs or nonsuitability for organ and
 8 tissue donation.  As used in this section, "designated requester"
 9 means a person who has completed a course offered by an organ
10 procurement organization on how to approach families and request
11 organ or tissue donation.
12      (c)  The organ procurement organization shall conduct annual
13 death record reviews at each acute care hospital to determine
14 compliance with required referrals; provided that the reviews
15 shall be at no cost to the hospital.
16      327-B  Advisory committee on anatomical gifts.  (a)  There
17 is established within the department of health for administrative
18 purposes the advisory committee on anatomical gifts.  The
19 committee shall consist of at least twenty members but not more
20 than twenty-five members appointed by the governor as provided in
21 section 26-34.  Members shall serve without compensation but
22 shall be reimbursed for expenses, including travel expenses,
23 necessary for the performance of their duties.  There shall be at

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 1 least one member representing each of the following categories:
 2      (1)  Transplant physicians;
 3      (2)  Organ Donor Center of Hawaii;
 4      (3)  Hawaii Lions Eye Bank and Makana Foundation;
 5      (4)  Minority Organ Tissue Transplant Education Program;
 6      (5)  St. Francis Transplant Center;
 7      (6)  National Kidney Foundation of Hawaii;
 8      (7)  Hawaii Medical Association;
 9      (8)  Hawaii Nurses Association;
10      (9)  American Heart Association;
11     (10)  Hawaii Healthcare Association;
12     (11)  Donor family members;
13     (12)  Transplant Recipients International Organization;
14     (13)  Transplant candidates;
15     (14)  Clergy;
16     (15)  Department of education;
17     (16)  Department of health;
18     (17)  Representatives of the general public, including but
19           not limited to individuals from the fields of law,
20           theology, ethics, health care financing, the social and
21           behavioral sciences, and labor and management unrelated
22           to the field of healthcare.
23      Every effort shall be made to select members from every

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 1 island and from rural and urban areas for maximum geographic
 2 representation.  Members shall serve for four years and may be
 3 removed for incompetence or misconduct.  A majority of the
 4 members then serving shall constitute a quorum.  Members shall
 5 select their own chairperson who shall serve for two years.
 6      (b)  The committee shall meet at least semiannually or at
 7 the call of the chairperson to:
 8      (1)  Promote educational programs to increase awareness of
 9           organ donation needs; and
10      (2)  Engage in any other informational, educational, and
11           promotional efforts to help increase organ, tissue, and
12           eye donation.
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.  (a)  The
19 Hawaii organ and tissue education special fund is established in
20 the 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
23 schools and other public places including motor vehicle

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 1 registration offices, busses, libraries, and government offices.
 2      (b)  Moneys in the Hawaii organ and tissue education special
 3 fund shall be expended as follows:
 4      (1)  Thirty per cent for the minority organ tissue
 5           transplant education program;
 6      (2)  Twenty per cent for the organ procurement organization
 7           in Hawaii for the development of education programs;
 8           and
 9      (3)  Fifty per cent to Hawaii's coalition of organ donation
10           agencies for public education programs and activities.
11      327-D  Good faith reliance.  A person, hospital, or
12 organization that relies on a document of gift under section
13 327-2(b) and acts in good faith in accordance with this chapter,
14 shall not be subject to criminal or civil liability for any
15 action taken in accordance with the requirements of this chapter;
16 provided that this section shall not apply to gross negligence,
17 recklessness, or intentional misconduct towards the decedent."
18      SECTION 4.  Section 286-109.5, Hawaii Revised Statutes, is
19 amended to read as follows:
20      "286-109.5  Designation of anatomical gift[.]; access to
21 database.  (a)  The examiner of drivers shall design and
22 implement a system to request anatomical gift information from
23 all applicants for a driver's license or license renewal, at the

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 1 time of application, including a method of directly imprinting on
 2 a license an applicant's designation of whether the applicant
 3 wishes to be an organ donor.  The request shall elicit whether
 4 the applicant wishes to be an organ donor in the event of the
 5 applicant's death.
 6      (b)  The examiner of drivers shall adopt rules pursuant to
 7 chapter 91 to allow an appropriate organ, tissue, and eye
 8 recovery agency or organ procurement organization twenty-four
 9 hour telephone access to the drivers' licensing database
10 information, solely for the purpose of determining whether a
11 driver has indicated a willingness to be an organ donor under
12 subsection (a), if the information is requested by a designated
13 requester under section 327-A(b)."
14      SECTION 5.  Section 327-5, Hawaii Revised Statutes, is
15 repealed.
16      ["327-5  Routine inquiry and required request; search and
17 notification.(a)  On or before admission to a hospital, or as
18 soon as possible thereafter, a person designated by the hospital
19 shall ask each patient who is at least eighteen years of age:
20 "Are you an organ or tissue donor?"  If the answer is affirmative
21 the person shall request a copy of the document of gift.  The
22 person designated shall make available basic information
23 regarding the option to make or refuse to make an anatomical

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                                     S.B. NO.           S.D. 1

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

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

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 1      (f)  A person who fails to discharge the duties imposed by
 2 this section is not subject to criminal or civil liability but is
 3 subject to appropriate administrative sanctions."]
 4      SECTION 6.  In codifying the new sections added to chapter
 5 286 or 327, Hawaii Revised Statutes, by sections 2 and 3 of this
 6 Act, respectively the revisor of statutes shall substitute
 7 appropriate section numbers for the letters used in the new
 8 sections' designations in this Act.
 9      SECTION 7.  Statutory material to be repealed is bracketed.
10 New statutory material is underscored.
11      SECTION 8.  This Act shall take effect upon its approval.