CHAPTER 453

FORMERLY

HOUSE BILL NO. 580

AS AMENDED BY HOUSE AMENDMENT NO. 2 AS AMENDED BY HOUSE AMENDMENT NO. 1 TO HOUSE AMENDMENT NO. 2

AN ACT TO AMEND TITLES 16 AND 21, DELAWARE CODE, RELATING TO ORGAN AND TISSUE PROCUREMENT, ALSO TO BE KNOWN AS THE GIFT OF LIFE INITIATIVE, AND CREATING A VOLUNTARY ORGAN AND TISSUE AWARENESS TRUST FUND.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section1. Amend § 1018, Chapter 10, Title 16, Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

"§ 1018. Maintaining anatomical gifts data.

(a) All hospitals covered by this section shall, if possible, ascertain from a patient upon an inpatient admission whether or not the patient has a validly executed donor card, will, other document of gift, or drivers license or identification card evidencing an anatomical gift. A hospital shall ascertain this information by including an inquiry on the hospital admission form to read as follows:

'Do you have a validly executed donor card, will, other document of gift, or drivers license or identification card evidencing an anatomical gift?'

The absence of a document of anatomical gift, in and of itself, shall not create any presumption regarding the patient's wishes regarding anatomical donation.

(b) All hospitals shall maintain as a part of a patient's permanent record such pertinent information about any anatomical gift which will facilitate the carrying out of the patient's wishes in the event of the patient's death. Upon the death of a patient who has made an anatomical gift, such hospital shall make every reasonable effort to contact without delay the person, institution or organization to which such gift has been made."

Section 2. Amend § 2710, Chapter 27, Title 16, Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

"§ 2710. Definitions.

As used in subchapters II and III of this chapter.

(1) 'Acute care general hospital' means a hospital that provides diagnostic and therapeutic services to patients for a variety of medical conditions both surgical and nonsurgical and in which the average length of stay for all patients is less than 30 days.

(2) 'Anatomical donation' or 'anatomical donor' means a human body part donation or a human body part donor.

(3) 'Bank or storage facility' means a facility licensed, accredited or approved under the laws of any state for storage of human bodies or parts thereof.

(4) 'Decedent' means a deceased individual and includes a stillborn infant or fetus.

(6) 'Donor' means an individual who makes a gift of all or part of the individual's body.

(0) 'Fund' means the Organ and Tissue Donor Awareness Trust Fund.

(1) 'Hospital' means a hospital licensed, accredited or approved under the laws of any state and includes a hospital operated by the United States government, a state or a subdivision thereof, although not required to be licensed under state laws.

(2) 'OPO' means the federally certified organ procurement organization for the State of Delaware.

(0) 'Part' includes organs, tissues, eyes, bones, arteries, blood, other fluids and other portions of a human body, and 'part' includes 'parts'.

(1) 'Person' means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association or any other legal entity.

(0) 'Physician' or 'surgeon' means a physician or surgeon licensed or authorized to practice under the laws of any state.

(1) 'Recovery specialist' means a medical professional licensed by this or another state or technician trained in accordance with federal standards pursuant to 42 U.S.C. § 274(b) and nationally accredited standards for human body part removal.

(2) 'State' includes a state, district, commonwealth, territory, insular possession and any other area subject to the legislative authority of the United States of America."

Section 3. Amend § 2712(3), Chapter 27, Title 16, Delaware Code by deleting the word "or" after the word "bank" and by adding the words "or OPO" before the words "for medical or dental education".

Section 4. Amend § 2713(d), Chapter 27, Title 16, Delaware Code, by striking said subsection in its entirety and substituting in lieu thereof the following:

"(d) Notwithstanding § 2716(b) of this title, the donor may designate in the donor's will, card or other document of gift the surgeon, physician, or recovery specialist to carry out the appropriate procedures. In the absence of a designation or if the designee is not available, the donee or other person authorized to accept the gift may employ or authorize any surgeon, physician, or recovery specialist for the purpose or, in the case of a gift of eyes, donee or authorized person may employ or authorize an undertaker licensed by the State or a qualified eye bank technician on the staff of the Medical Eye Bank of Delaware or the Lion's Eye Bank of Delaware Valley who has successfully completed a course in eye enucleation approved by the Medical Examiner of the State to enucleate eyes for the gift after certification of death by a physician. A qualified undertaker or eye bank technician acting in accordance with this subsection shall be free from civil and criminal liability with respect to the eye enucleation."

Section 5. Amend § 2716(b), Chapter 27, Title 16, Delaware Code by adding the phrase "recovery specialist," after the words "funeral director" and before the words "or eye bank technician" as they appear therein.

Section 6. Amend Subchapter III, Chapter 27, Title 16, Delaware Code by adding the words "and Establishment of Organ and Tissue Donation Awareness Trust Fund" after the word "Gift" in the subchapter title.

Section 7. Amend § 2721, Chapter 27, Title 16, Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

'§ 2721. Request for anatomical gifts.

(a) Identification of potential anatomical donors. At or near the time of death of any patient age 75 years or less in an acute care general hospital, the attending physician or hospital designee shall make contact with the OPO in order to determine the suitability for organ, tissue and eye donation for any purpose specified under this chapter. This contact and the disposition shall be noted in the patient's medical record.

(b) Protocol for referral of potential anatomical donors to OPO.

1. The person designated by the acute care general hospital to contact the OPO shall have the following information available:

(A) patient's name and identifier number;

(B) patient's age;

(C) anticipated cause of death;

(D) past medical history; and

(E) other pertinent medical information.

2. The OPO, in consultation with the patient's attending physician or his designee or the hospital's designee shall determine suitability for donation. This determination must be made prior to the initiation of any request of the persons identified under § 2711(c) of this chapter for anatomical donation.

(A) If the OPO determines that donation is not appropriate based on established medical criteria, this shall be noted by hospital personnel in the patient's record and no further action shall be necessary.

(B) If the OPO determines that the patient is a suitable candidate for anatomical donation, a request shall be initiated by informing the appropriate persons under § 2711(c) of this chapter of the option to donate organs, tissue or eyes. The request for anatomical donation shall be made by a representative of the OPO in consultation with the attending physician or the hospital designee. In those cases where the attending physician desires to approach the family to discuss organ or tissue donation, he or she may do so when accompanied by a representative of the OPO. The person making the request shall ask persons pursuant to § 2711(c) of this chapter whether the deceased had a validly executed donor card, will, other document or gift, driver's license or identification card evidencing an anatomical gift. If there is no such evidence of an anatomical gift, then the person designated under § 2711(c) of this chapter shall be informed in accordance with this chapter of the option to donate organs, tissue or eyes.

(C) Each hospital may designate tissue recovery provider(s) to serve the hospital. Each hospital shall notify the OPO in writing of designation(s) it makes, if any Hospital designated tissue recovery provider(s) shall work cooperatively with the OPO to support the development and/or release of any consent or medical information regarding a potential donor.

3. Within one year of enactment of this section, each acute care general hospital in the state shall develop and implement a protocol for referring potential anatomical donors as provided in this section. The protocol shall require that, at or near the time of the death of any patient age 75 years or less, the acute care general hospital shall contact by telephone the OPO to determine suitability for anatomical donation of the potential donor. The protocol shall encourage discretion and sensitivity to family circumstances and beliefs in all discussions regarding donations of organs, tissue or eyes.

(A) Limitation. If the hospital staff advises the OPO that the hospital staff has received actual notice that the decedent did not wish to be an anatomical donor, the gift of all or any part of the decedent's body shall not be requested.

(B) Medical Record Reviews. Death Medical record reviews must be performed annually in each acute care general hospital for the sole purpose of determining anatomical donor potential at the hospital. The hospital may perform the medical record review or may designate the OPO to conduct the review. If the hospital chooses to conduct its own review, it must do so in accordance with clinical specifications and guidelines established by the OPO. If the hospital conducts the review, the OPO must provide the necessary training to hospital personnel conducting the review. The hospital must report the results of the review to the OPO no later than 45 days following the completion of the review. If the hospital designates the OPO to conduct the review, the OPO shall provide the hospital with written assurance that the OPO shall maintain the confidentiality of patient identifying information."

Section 8. Amend § 2723 and § 2724, Chapter 27, Title 16, Delaware Code, by striking said sections in their entirety and substituting in lieu thereof the following:

"§ 2723. Recovery of human body parts by recovery specialist.

A recovery specialist may recover a human body part for any purpose specified in this chapter. A physician shall not be required to be present during the recovery procedure. Nothing in this section shall be construed to limit a physician or other person authorized by law to recover human body parts pursuant to law.

§ 2724. Organ donation designation on driver's license.

Beginning as soon as practicable but no later than July I, 1998, the Delaware Division of Motor Vehicles shall modify the driver's license and identification card application process and renewal system to obtain information regarding an individual's consent to anatomical donation, including a process to allow persons under age 18 to register as donors with parental consent as defined in § 2711(b). The following question shall be asked:

"Do you wish to have the organ donor designation printed on your driver's license?"

Only an affirmative response of an individual shall be noted on the front of the driver's license or identification card with the word "Organ Donor" and recorded in the individual's computer record with the Division of Motor Vehicles. The OPO shall be given access to the foregoing donor information 24 hours a day through the Division of Motor Vehicles computer database. Notwithstanding the Driver's Privacy Protection Act, Title 21, Section 305, the Division of Motor Vehicles is authorized to provide the OPO with the foregoing donor information. The OPO shall not be assessed a fee or other charges for such access. The donor designation on the driver's license or identification card shall be deemed sufficient to satisfy all requirements for consent to organ and tissue donation."

Section 9. Amend § 2726, Chapter 27, Title 16, Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

"§ 2726. Liability.

A person or agency that acts in good faith in accord with the terms of this subchapter is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for that act."

Section 10. Amend Chapter 27, Title 16, Delaware Code, by adding the following new sections:

"§ 2727. Consent not necessary for anatomical donation.

Notwithstanding any law to the contrary, if a validly executed donor card, advance health care directive, will, other document of gift, driver's license or identification card evidencing an anatomical gift exists, consent at the time of death is not necessary to render the gift valid.

§ 2728. Organ and Tissue Donor Awareness Trust Fund Contributions.

The Delaware Department of Finance shall provide a space on the face of the state individual income tax return for the 1998 tax year and each year thereafter whereby an individual may voluntarily designate a contribution of any amount desired to the Fund. The amount so designated by an individual on the state income tax return form shall be deducted from the tax refund to which the individual is entitled or added to the individual's payment and shall not constitute a charge against the income tax revenues due the state.

§ 2729. Organ and Tissue Donation Awareness Trust Fund.

(a) There is hereby created a special fund in the State Treasury to be known as the Organ and Tissue Donor Awareness Trust Fund.

(b) All contributions to the Organ and Tissue Donation Awareness Trust Fund received by the Department of Revenue shall be deposited into the Organ and Tissue Donor Awareness Trust Fund within 20 days after receipt of such funds.

(c) Monies deposited into the Fund and interest which accrues from those funds are hereby appropriated to the Organ and Tissue Donor Awareness Board as a continuing appropriation, to be distributed by the board in the manner provided in and for the purposes delineated in § 2730. Funds in the Organ and Tissue Donor Awareness Fund shall not lapse.

§ 2730. Organ and Tissue Donor Awareness Board.

(a) There is hereby established an Organ and Tissue Donor Awareness Board comprised of 9 members to be appointed by the Governor. The members of the board shall include a representative of the federally certified organ procurement organization serving Delaware, a representative of an eye bank located in Delaware, a transplant recipient, a donor family member, a physician having special interest in area of transplantation, a current officer, employee or board member of a Delaware acute care general hospital, one representative each from the Department of Health and Social Services, the Department of Education and the Division of Motor Vehicles. Members of the board shall serve for 3 year terms and may be appointed to successive terms by the Governor. Members of the board shall serve without compensation, but shall be reimbursed for all reasonable and necessary travel and other expenses incurred in the performance of their duties under this section.

(b) The board shall have the power and its duty shall be:

(1) to develop donor awareness programs in Delaware, including but not limited to a promotional campaign to encourage Delaware residents to register as donors through the state's driver's license program; educational programs in secondary schools; and an education and awareness campaign for Delaware State employees;

(2) from monies in the Organ and Tissue Donor Awareness Trust Fund or otherwise made available to the Board, to award grants or make and enter into contracts with any person, association, partnership or corporation for the

development, design and implementation of donor awareness programs in Delaware;

(3) to appoint officers, agents, employees and servants, and to prescribe their duties and fix their compensation, provided that the board shall have the authority to obtain staff support, office space, equipment and supplies from any state department, with or without compensation;

(4) to make and execute contracts and other instruments necessary or convenient for the conduct of its business and the exercise of the authority of the board;

(5) to apply for and accept appropriations, grants, loans and other assistance from, and to enter into contracts, agreements or other transactions with the Federal Government, the state government, political subdivisions, persons, associations, partnerships or corporations for the development, design and implementation of donor awareness programs in Delaware;

(0) to do all acts and things necessary to carry out the powers granted to it by this act."

Section 11. Amend § 2718(b)(5), Chapter 27, Title 21, Delaware Code, by striking said paragraph in its entirety.

Approved July 16, 1998