1

A bill to be entitled

2

An act relating to organ and tissue donation; amending s.

3

765.203, F.S.; deleting a provision in the form that

4

designates a health care surrogate that provides an

5

exception for anatomical gifts; amending s. 765.512, F.S.;

6

revising provisions for making an organ donation; adding

7

additional persons to the list of persons who may donate a

8

decedent's body; removing the provision prohibiting a

9

spouse from making a donation if the decedent's adult son

10

or daughter objects; amending s. 765.514, F.S.; providing

11

additional mechanisms for making an anatomical gift

12

including registering with the organ and tissue donor

13

registry; revising the uniform donor card to specify the

14

type of donation; deleting a statement of public policy

15

that prohibits restrictions on who may receive an

16

anatomical gift, a provision specifying who can accept a

17

gift, and a provision designating a physician to carry out

18

appropriate procedures; amending s. 765.515, F.S.;

19

requiring the Department of Highway Safety and Motor

20

Vehicles to inform the donor registry of instances of

21

making an anatomical gift and of withdrawal of an

22

anatomical gift; deleting a provision requiring the Agency

23

for Health Care Administration and the department to

24

maintain a donor registry; creating s. 765.5155, F.S.;

25

providing legislative intent with respect to establishing

26

an online organ and tissue donor registry; requiring

27

administration of the donor registry to be procured by

28

competitive solicitation; specifying the duties of the

29

contractor including the operation of the registry, a

30

continuing public education program about organ donation,

31

and the preparation of an annual report; providing for

32

funding and for voluntary contributions to the registry;

33

designating the donor registry as the "Joshua Abbott Organ

34

and Tissue Donor Registry"; amending s. 765.516, F.S.;

35

authorizing revocation of an anatomical gift by a donor

36

through removal of his or her name from the registry;

37

amending s. 765.517, F.S.; revising provisions relating to

38

verification of a donor's consent at death; amending s.

39

765.521, F.S.; conforming a cross-reference; amending s.

40

765.522, F.S.; revising duties of hospital administrators

41

with respect to reporting suitable donor candidates at or

42

near the time of death; updating references to organ

43

procurement organizations; repealing s. 765.5215, F.S.,

44

relating to an education program relating to anatomical

45

gifts; repealing s. 765.5216, F.S., relating to the organ

46

and tissue donor education panel; providing an effective

47

date.

48

49

Be It Enacted by the Legislature of the State of Florida:

50

51

     Section 1.  Section 765.203, Florida Statutes, is amended to

52

read:

53

     765.203  Suggested form of designation.--A written

54

designation of a health care surrogate executed pursuant to this

55

chapter may, but need not be, in the following form:

56

57

DESIGNATION OF HEALTH CARE SURROGATE

58

59

Name:_____(Last)_____(First)_____(Middle Initial)_____

60

     In the event that I have been determined to be incapacitated

61

to provide informed consent for medical treatment and surgical

62

and diagnostic procedures, I wish to designate as my surrogate

63

for health care decisions:

64

65

Name:

66

Address:

67

68

69

Phone:____________________

70

     If my surrogate is unwilling or unable to perform his or her

71

duties, I wish to designate as my alternate surrogate:

72

Name:

73

Address:

74

75

76

Phone:____________________

77

     I fully understand that this designation will permit my

78

designee to make health care decisions, except for anatomical

79

gifts, unless I have executed an anatomical gift declaration

80

pursuant to law, and to provide, withhold, or withdraw consent on

81

my behalf; to apply for public benefits to defray the cost of

82

health care; and to authorize my admission to or transfer from a

83

health care facility.

84

Additional instructions (optional):

85

     I further affirm that this designation is not being made as

86

a condition of treatment or admission to a health care facility.

87

I will notify and send a copy of this document to the following

88

persons other than my surrogate, so they may know who my

89

surrogate is.

90

Name:

91

Name:

92

Signed:

93

Date:

94

95

96

97

     Section 2.  Subsections (1), (2), (3), and (4) of section

98

765.512, Florida Statutes, are amended to read:

99

     765.512  Persons who may make an anatomical gift.--

100

     (1)  Any person who may make a will may give all or part of

101

his or her body for any purpose specified in s. 765.513. s.

102

765.510, The gift is effective to take effect upon the death of

103

the donor. An anatomical gift made by an adult donor and not

104

revoked by the donor as provided in s. 765.516 is irrevocable

105

after the donor's death. A family member, guardian,

106

representative ad litem, or health care surrogate of an adult

107

donor who has made an anatomical gift pursuant to subsection (2)

108

may not modify, deny, or prevent a donor's wish or intent to make

109

an anatomical gift from being made after the donor's death.

110

     (a)(2) If the decedent makes has executed an agreement

111

concerning an anatomical gift, by one of the methods listed in s.

112

765.514(1), signing an organ and tissue donor card, by expressing

113

his or her wish to donate in a living will or advance directive,

114

or by signifying his or her intent to donate on his or her

115

driver's license or in some other written form has indicated his

116

or her wish to make an anatomical gift, and in the absence of

117

actual notice of contrary indications by the decedent, the

118

document or entry in the organ and tissue registry is evidence of

119

legally sufficient evidence of the decedent's informed consent to

120

donate an anatomical gift and is legally binding.

121

     (b) An anatomical gift made by a qualified donor and not

122

revoked by the donor, as provided in s. 765.516, is irrevocable

123

after the donor's death. A family member, guardian,

124

representative ad litem, or health care surrogate may not modify,

125

deny, or prevent a donor's wish or intent to make an anatomical

126

gift after the donor's death.

127

     (2) A health care Any surrogate designated by the decedent

128

pursuant to part II of this chapter may give all or any part of

129

the decedent's body for any purpose specified in s. 765.513

130

absent actual notice of contrary indications by the decedent s.

131

765.510.

132

     (3) If the decedent has not made executed an agreement

133

concerning an anatomical gift or designated a health surrogate

134

pursuant to part II of this chapter to make an anatomical gift

135

pursuant to the conditions of subsection (2), a member of one of

136

the classes of persons listed below, in the order of priority

137

listed stated and in the absence of actual notice of contrary

138

indications by the decedent or actual notice of opposition by a

139

member of the same or a prior class, may give all or any part of

140

the decedent's body for any purpose specified in s. 765.513 s.

141

765.510:

142

     (a)  The spouse of the decedent;

143

     (b)  An adult son or daughter of the decedent;

144

     (c)  Either parent of the decedent;

145

     (d)  An adult brother or sister of the decedent;

146

     (e) An adult grandchild of the decedent;

147

     (f) A grandparent of the decedent;

148

     (g) A close personal friend, as defined in s. 765.101;

149

     (h)(f) A guardian of the person of the decedent at the time

150

of his or her death; or

151

     (i)(g) A representative ad litem who shall be appointed by

152

a court of competent jurisdiction forthwith upon a petition heard

153

ex parte filed by any person, who which representative ad litem

154

shall ascertain that no person of higher priority exists who

155

objects to the gift of all or any part of the decedent's body and

156

that no evidence exists of the decedent's having made a

157

communication expressing a desire that his or her body or body

158

parts not be donated upon death.;

159

160

but no gift shall be made by the spouse if any adult son or

161

daughter objects, and provided that Those of higher priority who,

162

if they are reasonably available must be, have been contacted and

163

made aware of the proposed gift, and further provided that a

164

reasonable search must be conducted which shows is made to show

165

that there would have been no objection to the gift on religious

166

grounds by the decedent.

167

     (4) A donee may not accept an anatomical gift if the donee

168

has actual notice of contrary indications by the donor decedent

169

or, in the case of a spouse making the gift, an objection of an

170

adult son or daughter or actual notice that a gift by a member of

171

a class is opposed by a member of the same or a prior class, the

172

donee shall not accept the gift.

173

     Section 3.  Section 765.514, Florida Statutes, is amended to

174

read:

175

     765.514 Manner of making executing anatomical gifts.--

176

     (1) A person may make a gift of all or part of his or her

177

the body under s. 765.512(1) may be made by will:

178

     (a) Signing an organ and tissue donor card.

179

     (b) Registering online with the organ and tissue donor

180

registry.

181

     (c) Signifying an intent to donate on his or her driver's

182

license or identification card issued by the Department of

183

Highway Safety and Motor Vehicles. Revocation, suspension,

184

expiration, or cancellation of the driver's license or

185

identification card does not invalidate the gift.

186

     (d) Expressing a wish to donate in a living will or other

187

advance directive.

188

     (e) Executing a will that includes a provision indicating

189

that the testator wishes to make an anatomical gift. The gift

190

becomes effective upon the death of the testator without waiting

191

for probate. If the will is not probated or if it is declared

192

invalid for testamentary purposes, the gift is nevertheless valid

193

to the extent that it has been acted upon in good faith.

194

     (f)(2)(a) Expressing a wish to donate in A gift of all or

195

part of the body under s. 765.512(1) may also be made by a

196

document other than a will. The gift becomes effective upon the

197

death of the donor. The document must be signed by the donor in

198

the presence of two witnesses who shall sign the document in the

199

donor's presence. If the donor cannot sign, the document may be

200

signed for him or her at the donor's direction and in his or her

201

presence and the presence of two witnesses who must sign the

202

document in the donor's presence. Delivery of the document of

203

gift during the donor's lifetime is not necessary to make the

204

gift valid.

205

     (b) The following form of written document is instrument

206

shall be sufficient for any person to give all or part of his or

207

her body for the purposes of this part:

208

209

UNIFORM DONOR CARD

210

211

The undersigned hereby makes this anatomical gift, if medically

212

acceptable, to take effect on death.  The words and marks below

213

indicate my desires:

214

215

I give:

216

     (a) ____ any needed organs, tissues, or eyes parts;

217

     (b) ____ only the following organs, tissues, or eyes or

218

parts

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[Specify the organs, tissues, or eyes organ(s) or

220

part(s)]

221

222

for the purpose of transplantation, therapy, medical research, or

223

education;

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     (c)  ____ my body for anatomical study if needed.

225

Limitations or special wishes, if any:

226

[(If applicable, list specific donee; this must be arranged in

227

advance with the donee.])

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229

Signed by the donor and the following witnesses in the presence

230

of each other:   (Signature of donor)

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(Date of birth of donor)

232

(Date signed)

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(City and State)

234

  (Witness)

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(Witness)

236

  (Address)

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(Address)

238

239

     (2)(3) The gift may be made to a donee listed in s. 765.513

240

and the donee may be specified by name. If the donee is not

241

specified by name, the gift may be accepted by the attending

242

physician as donee upon or following the donor's death. If the

243

gift is made to a specified donee who is not available at the

244

time and place of death, the attending physician may accept the

245

gift as donee upon or following death in the absence of any

246

expressed indication that the donor desired otherwise. However,

247

the Legislature declares that the public policy of this state

248

prohibits restrictions on the possible recipients of an

249

anatomical gift on the basis of race, color, religion, sex,

250

national origin, age, physical handicap, health status, marital

251

status, or economic status, and such restrictions are hereby

252

declared void and unenforceable. The physician who becomes a

253

donee under this subsection shall not participate in the

254

procedures for removing or transplanting a part.

255

     (4) Notwithstanding s. 765.517(2), the donor may designate

256

in his or her will or other document of gift the surgeon or

257

physician to carry out the appropriate procedures. In the

258

absence of a designation or if the designee is not available, the

259

donee or other person authorized to accept the gift may employ or

260

authorize any surgeon or physician for the purpose.

261

     (3)(5) Any gift by a health care surrogate designated by

262

the decedent pursuant to part II of this chapter or a member of a

263

class designated in s. 765.512(3) must be made by a document

264

signed by that person or made by that person's witnessed

265

telephonic discussion, telegraphic message, or other recorded

266

message.

267

     Section 4.  Section 765.515, Florida Statutes, is amended to

268

read:

269

     765.515 Delivery of donor document; organ and tissue donor

270

registry.--

271

     (1) If a gift is made pursuant to through the program

272

established by the Agency for Health Care Administration and the

273

Department of Highway Safety and Motor Vehicles under the

274

authority of s. 765.521, the completed donor registration card

275

shall be delivered to the Department of Highway Safety and Motor

276

Vehicles and the department must communicate the donor's intent

277

to the organ and tissue donor registry processed in a manner

278

specified in subsection (4), but delivery is not necessary to the

279

validity of the gift. If the donor withdraws the gift, the

280

records of the Department of Highway Safety and Motor Vehicles

281

must shall be updated to reflect such withdrawal and the

282

department must communicate the withdrawal to the organ and

283

tissue donor registry for the purpose of updating the registry.

284

     (2) If a gift is not made through the program established

285

by the Agency for Health Care Administration and the Department

286

of Highway Safety and Motor Vehicles under the authority of s.

287

765.521 and is made by the donor to a specified donee, the

288

document, other than a will, may be delivered to the donee to

289

expedite the appropriate procedures immediately after death, but

290

delivery is not necessary to the validity of the gift. Such

291

document may be deposited in any hospital, bank, storage

292

facility, or registry office that accepts such documents for

293

safekeeping or to facilitate the donation of organs and tissue

294

for facilitation of procedures after death.

295

     (3) At On the request of any interested party upon or after

296

the donor's death, the person in possession shall produce the

297

document for examination.

298

     (4) The Agency for Health Care Administration and the

299

Department of Highway Safety and Motor Vehicles shall develop and

300

implement an organ and tissue donor registry which shall record,

301

through electronic means, organ and tissue donation documents

302

submitted through the driver license identification program or by

303

other sources. The registry shall be maintained in a manner

304

which will allow, through electronic and telephonic methods,

305

immediate access to organ and tissue donation documents 24 hours

306

a day, 7 days a week. Hospitals, organ and tissue procurement

307

agencies, and other parties identified by the agency by rule

308

shall be allowed access through coded means to the information

309

stored in the registry. Costs for the organ and tissue donor

310

registry shall be paid from the Florida Organ and Tissue Donor

311

Education and Procurement Trust Fund created by s. 765.52155.

312

Funds deposited into the Florida Organ and Tissue Donor Education

313

and Procurement Trust Fund shall be utilized by the Agency for

314

Health Care Administration for maintaining the organ and tissue

315

donor registry and for organ and tissue donor education.

316

     Section 5.  Section 765.5155, Florida Statutes, is created

317

to read:

318

     765.5155 Organ and tissue donor registry; education

319

program.--

320

     (1) The Legislature finds that:

321

     (a) There is a shortage of organ and tissue donors in this

322

state willing to provide the organs and tissue that could save

323

lives or enhance the quality of life for many persons.

324

     (b) There is a need to encourage the various minority

325

populations of this state to donate organs and tissue.

326

     (c) A statewide organ and tissue donor registry having an

327

online donor registration process coupled with an enhanced

328

program of donor education will lead to an increase in the number

329

of organ and tissue donors registered in this state, thus

330

affording more persons who are awaiting organ or tissue

331

transplants the opportunity for a full and productive life.

332

     (2) The Agency for Health Care Administration and the

333

Department of Highway Safety and Motor Vehicles shall jointly

334

contract for the operation of an organ and tissue donor registry

335

and education program. The contractor shall be procured by

336

competitive solicitation pursuant to chapter 287, notwithstanding

337

any exemption in s. 287.057(5)(f). When awarding the contract,

338

priority shall be given to existing nonprofit groups that are

339

based within the state, have expertise working with organ and

340

tissue procurement organizations, have expertise in conducting

341

statewide organ and tissue donor public education campaigns, and

342

represent the needs of the organ and tissue donation community in

343

the state.

344

     (3) The contractor shall be responsible for:

345

     (a) The development, implementation, and maintenance of an

346

interactive web-based organ and tissue donor registry that,

347

through electronic means, allows for online organ donor

348

registration and the recording of organ and tissue donation

349

records submitted through the driver's license identification

350

program or through other sources.

351

     1. The registry must be maintained in a manner that allows,

352

through electronic and telephonic methods, immediate access to

353

organ and tissue donation records 24 hours a day, 7 days a week.

354

     2. Access to the registry must be through coded and secure

355

means to protect the integrity of the data in the registry.

356

     (b) A continuing program to educate and inform medical

357

professionals, law enforcement agencies and officers, other state

358

and local government employees, high school students, minorities,

359

and the public about the laws of this state relating to

360

anatomical gifts and the need for anatomical gifts.

361

     1. Existing community resources, when available, must be

362

used to support the program and volunteers may assist the program

363

to the maximum extent possible.

364

     2. The contractor shall coordinate with the head of a state

365

agency or other political subdivision of the state, or his or her

366

designee, to establish convenient times, dates, and locations for

367

educating that entity's employees.

368

     (c) Preparing and submitting an annual written report to

369

the Agency for Health Care Administration by December 31 of each

370

year. The report must include:

371

     1. The number of donors on the registry and an analysis of

372

the registration rates by location and method of donation;

373

     2. The characteristics of donors as determined from

374

registry information submitted directly by the donors or by the

375

Department of Highway Safety and Motor Vehicles;

376

     3. The annual dollar amount of voluntary contributions

377

received by the contractor;

378

     4. A description of the educational campaigns and

379

initiatives implemented during the year and an evaluation of

380

their effectiveness in increasing enrollment on the registry; and

381

     5. An analysis of Florida's registry compared with other

382

states' donor registries.

383

     (4) Costs for the organ and tissue donor registry and

384

education program shall be paid by the Agency for Health Care

385

Administration from the funds deposited into the Health Care

386

Trust Fund pursuant to ss. 320.08047 and 322.08, which are

387

designated for maintaining the organ and tissue donor registry

388

and education program. In addition, the contractor may receive

389

and use voluntary contributions to help support the registry and

390

provide education.

391

     (5) The organ and tissue donor registry established by this

392

section is designated as the "Joshua Abbott Organ and Tissue

393

Registry."

394

     Section 6.  Paragraph (e) is added to subsection (1) of

395

section 765.516, Florida Statutes, to read:

396

     765.516  Amendment of the terms of or the revocation of the

397

gift.--

398

     (1)  A donor may amend the terms of or revoke an anatomical

399

gift by:

400

     (e) Removing his or her name from the organ and tissue

401

donor registry.

402

     Section 7.  Subsection (3) of section 765.517, Florida

403

Statutes, is amended to read:

404

     765.517  Rights and duties at death.--

405

     (3)  The organ procurement organization, tissue bank, or eye

406

bank, or hospital medical professionals under the direction

407

thereof, may perform any and all tests to evaluate the deceased

408

as a potential donor and any invasive procedures on the deceased

409

body in order to preserve the potential donor's organs.  These

410

procedures do not include the surgical removal of an organ or

411

penetrating any body cavity, specifically for the purpose of

412

donation, until:

413

     (a) It has been verified that the deceased's consent to

414

donate appears in the organ and tissue donor registry or a

415

properly executed donor card or document is located; or,

416

     (b) If a properly executed donor card or document cannot be

417

located or the deceased's consent is not listed in the organ and

418

tissue donor registry, a person specified in s. 765.512(2) or (3)

419

s. 765.512(3) has been located, has been notified of the death,

420

and has granted legal permission for the donation.

421

     Section 8.  Subsection (1) of section 765.521, Florida

422

Statutes, is amended to read:

423

     765.521  Donations as part of driver license or

424

identification card process.--

425

     (1)  The Agency for Health Care Administration and the

426

Department of Highway Safety and Motor Vehicles shall develop and

427

implement a program encouraging and allowing persons to make

428

anatomical gifts as a part of the process of issuing

429

identification cards and issuing and renewing driver licenses.

430

The donor registration card distributed by the Department of

431

Highway Safety and Motor Vehicles shall include the information

432

required by the uniform donor card under s. 765.514 material

433

specified by s. 765.514(2)(b) and may require such additional

434

information, and include such additional material, as determined

435

may be deemed necessary by the that department. The department of

436

Highway Safety and Motor Vehicles shall also develop and

437

implement a program to identify donors, which includes program

438

shall include notations on identification cards, driver licenses,

439

and driver records or such other methods as the department

440

develops to may develop. This program shall include, after an

441

individual has completed a donor registration card, making a

442

notation on the front of the driver license or identification

443

card that clearly indicate indicates the individual's intent to

444

donate the individual's organs, tissues, or eyes tissue. A

445

notation on an individual's driver license or identification card

446

that the individual intends to donate organs, or tissues, or eyes

447

satisfies is deemed sufficient to satisfy all requirements for

448

consent to organ or tissue donation. The Agency for Health Care

449

Administration shall provide the necessary supplies and forms

450

from through funds appropriated from general revenue or

451

contributions from interested voluntary, nonprofit organizations.

452

The department of Highway Safety and Motor Vehicles shall provide

453

the necessary recordkeeping system from through funds

454

appropriated from general revenue. The Department of Highway

455

Safety and Motor Vehicles and the Agency for Health Care

456

Administration shall incur no liability in connection with the

457

performance of any acts authorized herein.

458

     Section 9.  Subsections (2) and (6) of section 765.522,

459

Florida Statutes, are amended to read:

460

     765.522  Duty of certain hospital administrators; liability

461

of hospital administrators, organ procurement organizations, eye

462

banks, and tissue banks.--

463

     (2)  Where, based on accepted medical standards, a hospital

464

patient is a suitable candidate for organ or tissue donation, the

465

hospital administrator or the hospital administrator's designee

466

shall, at or near the time of death, notify the appropriate

467

organ, eye, or tissue recovery program, which shall access the

468

organ and tissue donor registry created by s. 765.5155 s.

469

765.515(4) to ascertain the existence of an entry in the registry

470

that has not been revoked, a donor card, or a document executed

471

by the decedent. In the absence of an entry in the donor

472

registry, a donor card, organ donation sticker or organ donation

473

imprint on a driver's license, or other properly executed

474

document, the organ, eye, or tissue recovery program hospital

475

administrator or designee shall request:

476

     (a) The patient's health care surrogate, as authorized

477

permitted in s. 765.512(2); or

478

     (b)  If the patient does not have a surrogate, or the

479

surrogate is not reasonably available, any of the persons

480

specified in s. 765.512(3), in the order and manner listed of

481

priority stated in s. 765.512(3),

482

483

to consent to the gift of all or any part of the decedent's body

484

for any purpose specified in this part. Except as provided in s.

485

765.512, in the absence of actual notice of opposition, consent

486

need only be obtained from the person or persons in the highest

487

priority class reasonably available.

488

     (6)  The hospital administrator or a designee shall, at or

489

near the time of death of a potential organ donor, directly

490

notify the affiliated Health Care Financing Administration

491

designated organ procurement organization designated by the

492

United States Department of Health and Human Services of the

493

potential organ donor. This organ procurement organization must

494

offer any organ from such a donor first to patients on a Florida-

495

based local or state organ sharing transplant list. For the

496

purpose of this subsection, the term "transplant list" includes

497

certain categories of national or regional organ sharing for

498

patients of exceptional need or exceptional match, as approved or

499

mandated by the Organ Procurement and Transplantation Network, or

500

its agent United Network for Organ Sharing. This notification may

501

must not be made to a tissue bank or eye bank in lieu of the

502

organ procurement organization unless the tissue bank or eye bank

503

is also a Health Care Financing Administration designated as an

504

organ procurement organization by the United States Department of

505

Health and Human Services.

506

     Section 10. Sections 765.5215 and 765.5216, Florida

507

Statutes, are repealed.

508

     Section 11.  This act shall take effect July 1, 2008.