August 8, 2005
RECENT ORGAN DONATION LEGISLATION AND ISSUES
By: Saul Spigel, Chief Analyst
You asked for a summary of (1) recent Connecticut legislation concerning organ donors and implementation activities, (2) any 2004 and 2005 legislation in neighboring states, and (3) other issues related to kidney donation and transplant.
Connecticut enacted three laws in 2004 and 2005 dealing with organ donation. PAs 04-122 and 05-121 facilitate the work of federally designated organ procurement organizations (OPOs) by allowing them to link directly to the Department of Motor Vehicles in order to expedite the validation of an individual's donor status. PA 04-122 also made several changes to Connecticut's anatomical gift law to, among other changes, expand the ways a donor can make a gift, require doctors to act according to the donor's wishes in certain circumstances, and expand the documents a donor can use to make his or her wishes known. PA 04-95 allows workers to take unpaid leave to donate an organ or bone marrow.
The Connecticut Donor Registry began operation this year through two OPOs serving the state. The New England Organ Bank is the OPO for southwestern Connecticut while LifeChoice Donor Services, Inc. is the OPO for the other six Connecticut counties.
DMV's website now contains several pages on organ donation, including links to various organ donation organizations, see DMV Organ Donation. DMV and the Connecticut Coalition for Organ and Tissue Donation annually sponsor a poster contest open to all public, private, and parochial high school students Grades 9 -12. The goal of the contest is to educate young adults and their families about the importance of organ and tissue donation. They considered, but did not pass bills giving tax credits for donations, required driver's training couriers or donations, and establishing recognition programs for donors.
The only organ donor legislation passed in our neighboring states in 2004 or 2005 was a New York bill eliminating the requirement that two people witness a document making an anatomical donation.
In 2003, Wisconsin became the first state to allow living donors to take a tax deduction (for up to $10,000) for their unreimbursed expenses in a transplant, including travel, lodging, and lost wages. Georgia and South Carolina have followed suit, and legislation has been introduced in at least a dozen other states. Federal law gave tacit endorsement to this approach in 2004.
RECENT CONNECTICUT LEGISLATION
Facilitating Organ Donations (PA 04-122, as amended by 05-121)
PA 04-122 amended the law on organ and tissue donation (an OLR report on this topic, 2003-R-0805, is attached) by:
1. requiring the departments of Motor Vehicles (DMV) and Information Technology (DOIT) to enter into an agreement with an organ procurement organization to provide it access to information on drivers who intend to be organ or tissue donors;
2. expanding the definition of “document of gift” for purposes of making an anatomical gift;
3. requiring health care providers and procurement organizations to act according to the donor's intentions under certain circumstances;
4. expanding the ways a donor can amend or revoke a gift;
5. changing the ways in which a person can refuse to make an anatomical gift;
6. adding procurement organizations to those who must make a reasonable search for a document of gift or other information about a person's intentions;
7. allowing certain testing as part of a reasonable examination to determine if an anatomical gift is medically suitable;
8. allowing a procurement organization to access and review a person's medical record for suitability under certain conditions; and
9. allowing disclosure to a procurement organization of HIV-related information in order to assess donor suitability.
It took effect October 1, 2004.
DMV-DOIT Agreement With Organ Procurement Organization. The act requires the DMV commissioner and DOIT's chief information officer to provide OPOs with access to names, birth dates, and other relevant information of operator license holders who have registered their intent to be organ donors with DMV. This can include electronic transmission of initial information and periodic updates. PA 05-121 broadened this requirement to include people with DMV-issued identity cards.
The act redefines “procurement organization” as a person licensed, accredited, or approved under federal law, or laws of any state, as a nonprofit organ and tissue procurement organization to procure, distribute, or store human bodies or parts. Previously, a procurement organization had to have some type of state-sanctioned status.
DMV cannot charge a fee for this access, but it can charge the OPO reasonable administrative costs. Information provided can only be used to identify license holders as organ and tissue donors.
Disclosure Of Personal Information From a Motor Vehicle Record; Donor Registry. The act specifically allows DMV to disclose personal information from a motor vehicle record to any individual, organization, or entity including personal information about people who have consented to become organ and tissue donors in a donor registry established by an OPO. It defines a “donor registry” as an electronic database that a procurement organization develops and maintains to identify donors.
The individual, organization, or entity must sign and file with DMV a statement on a DMV-approved form, under penalty for false statement, that the information will be used as stated. DMV can require supporting documentation or information.
Making an Anatomical Gift. State law allows someone at least 18 years old to (1) make an anatomical gift for any of the purposes allowed by law, (2) limit an anatomical gift to one or more of these purposes, or
(3) refuse to make such a gift. By law, an anatomical gift can be made by a “document of gift,” usually signed by the donor, which means a card, a statement attached to or imprinted on a driver's license, a will, or other
writing used to make an anatomical gift. PA 04-122, expand these documents of gift to include (1) an organ and tissue donor card, (2) inclusion in an organ donor registry, and (3) an indication on a signed motor vehicle operator's license application or renewal form.
The act also specifies that, in the absence of a revocation or amendment of any document of gift, state-licensed health care providers and procurement organizations must act according to the donor's intention and can take appropriate actions to effect the anatomical gift.
Amending or Revoking an Anatomical Gift. The act expands the ways in which a donor can amend or revoke a gift not made by will by additionally allowing (1) any form of communication during a terminal illness or injury addressed to a physician and (2) delivery of a signed statement to an OPO. Previously, only a signed statement or delivery of a signed statement to a specified donee who had received a document of gift was allowed.
Refusal to Make a Gift. By law, a person can refuse to make an anatomical gift by (1) a writing signed in the same manner as a document of gift, (2) a statement attached to or imprinted on the donor's driver's license, or (3) any other writing used to identify the person as refusing to make a gift. The refusal may be an oral statement or other form of communication during a terminal illness or injury.
This act eliminates the particular option of refusing to make an anatomical gift through the statement or imprint on the license. It also requires that the refusal during the terminal illness or injury be addressed to a physician.
Discussions About an Anatomical Gift. If at or near the time of death no record exists of a patient making or refusing to make an anatomical gift, the law requires hospital staff to discuss donor options. The act clarifies that this applies when there is no document of gift or other record indicating a person's actions.
Reasonable Search for a Document of Gift. The act adds an OPO to those who must make a reasonable search for a document of gift or other information identifying whether the individual is a donor or one who has refused. The law also requires (1) law enforcement officers,
firemen, paramedics, or other emergency rescuers to do this and (2) hospitals to conduct a search when someone at or near death is admitted if no other source of information is available.
Disclosure of HIV-Related Information. The law prohibits anyone obtaining confidential HIV-related information from disclosing or being compelled to disclose the information except to certain individuals as prescribed by law. The act allows disclosure to a procurement organization in order to assess donor suitability.
Taking Family Medical Leave for Organ Donation (PA 04-95)
PA 04-95 provides unpaid leave for state and private-sector employees to donate an organ or bone marrow under the state's two family and medical leave acts (FMLAs), which provide such employees with unpaid leave. While the two laws are similar, they differ in the maximum amount of unpaid leave allowed over two years: 24 weeks under the state employee FMLA and 16 weeks under the private sector FMLA. Both laws require an employee to get his original job back, or an equivalent one, upon return from leave.
The act requires written physician certification for state employee organ or bone-marrow donation before the leave starts, but it does not require similar certification for private-sector employees. It requires a private-sector employee seeking leave to donate to make a reasonable effort to schedule the procedure so as not to disrupt unduly the employer's operation and, when possible, provide at least 30-days notice before the leave begins.
When an employee requests intermittent leave or a reduced schedule that is foreseeable based on the organ or bone-marrow donation, the employer can temporarily transfer the employee to an available alternative position, with the same pay and benefits, that better accommodates the recurring leave periods. This arrangement must not conflict with any prevailing collective bargaining agreement.
The act specifies employees eligible for the donor leave may elect, or the employer may require them, to use any accrued paid vacation, personal, or sick leave for part of the FMLA leave. All the above provisions, for procedure scheduling, intermittent leave, and use of accrued paid leave, already apply to leave requests for the employee's or qualifying relative's serious health condition.
This law took effect October 1, 2004.
RECENT LEGISLATION IN NEIGHBORING STATES
The only organ donor legislation passed in our neighboring states in 2004 or 2005 was a New York law eliminating the requirement that two people witness a document making an anatomical donation.
Several bills concerning donation were introduced in New York, Massachusetts, and Rhode Island in 2005. They included bills to
● give a $1,000 estate tax credit to donors (NY)
● mandate coursework on organ donation in driver's training programs (NY, MA)
● give OPOs access to motor vehicle department information on donors (MA)
● give state employees unpaid leave for donations (MA)
● require medical examiners to give OPOs all information needed to facilitate donation (RI)
● provide state employees information on organ donation during the open enrollment process for their health care insurance (MA)
● establish a “medal of life/gift of life” recognition program for donors (MA)
The 1984 National Organ Transplant Act prohibits payment of “valuable consideration” for making an organ donation. While this law prevents trafficking in organs from living people who need money, because donating an organ can entail considerable medical, travel, and lost income expenses, it is a roadblock to donation.
In 2003, Wisconsin became the first state to allow living donors to take a tax deduction for up to $10,000 for their unreimbursed expenses in a transplant, including travel, lodging, and lost wages. Georgia and South Carolina have followed suit, and legislation has been introduced in at least a dozen other states. Federal law gave tacit endorsement to this approach in 2004. The federal Organ Donation and Recovery Improvement Act (sponsored by Senators Dodd and Frist) provides $5 million through September 2009 to help cover travel and other expenses for people who make living donations of organs.
The new federal law also provides $15 million for Department of Health and Human Services (HHS) grants to states for donor awareness, public education, and outreach activities; and $3 million for hospital-based “organ coordinators.” It also requires the HHS secretary to report to Congress on the ethical implications of incentives, including financial incentives, to increase donations at death.