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.;

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revising provisions for making an organ donation; adding

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additional persons to the list of persons who may donate a

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decedent's body; removing the provision prohibiting a

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

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

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additional mechanisms for making an anatomical gift

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including registering with the organ and tissue donor

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registry; revising the uniform donor card to specify the

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type of donation; deleting a statement of public policy

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that prohibits restrictions on who may receive an

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anatomical gift, a provision specifying who can accept a

17

gift, and a provision designating a physician to carry out

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

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requiring the Department of Highway Safety and Motor

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Vehicles to inform the donor registry of instances of

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making an anatomical gift and of withdrawal of an

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anatomical gift; deleting a provision requiring the Agency

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for Health Care Administration and the department to

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

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providing legislative intent with respect to establishing

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an online organ and tissue donor registry; requiring

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administration of the donor registry to be procured by

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competitive solicitation; specifying the duties of the

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contractor including the operation of the registry, a

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continuing public education program about organ donation,

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and the preparation of an annual report; authorizing the

32

agency to adopt rules relating to providing research

33

access to the registry; providing for funding and for

34

voluntary contributions to the registry; designating the

35

donor registry as the "Joshua Abbott Organ and Tissue

36

Donor Registry"; amending s. 765.516, F.S.; authorizing

37

revocation of an anatomical gift by a donor through

38

removal of his or her name from the registry; amending s.

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765.517, F.S.; revising provisions relating to

40

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

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

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

43

with respect to reporting suitable donor candidates at or

44

near the time of death; updating references to organ

45

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

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relating to an education program relating to anatomical

47

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

48

and tissue donor education panel; providing an effective

49

date.

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51

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

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53

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

54

read:

55

     765.203  Suggested form of designation.--A written

56

designation of a health care surrogate executed pursuant to this

57

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

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59

DESIGNATION OF HEALTH CARE SURROGATE

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61

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

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     In the event that I have been determined to be incapacitated

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to provide informed consent for medical treatment and surgical

64

and diagnostic procedures, I wish to designate as my surrogate

65

for health care decisions:

66

67

Name:

68

Address:

69

70

71

Phone:____________________

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

73

duties, I wish to designate as my alternate surrogate:

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Name:

75

Address:

76

77

78

Phone:____________________

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     I fully understand that this designation will permit my

80

designee to make health care decisions, except for anatomical

81

gifts, unless I have executed an anatomical gift declaration

82

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

83

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

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

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health care facility.

86

Additional instructions (optional):

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     I further affirm that this designation is not being made as

88

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

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

90

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

91

surrogate is.

92

Name:

93

Name:

94

Signed:

95

Date:

96

97

98

99

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

100

765.512, Florida Statutes, are amended to read:

101

     765.512  Persons who may make an anatomical gift.--

102

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

103

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

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

105

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

106

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

107

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

108

representative ad litem, or health care surrogate of an adult

109

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

110

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

111

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

112

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

113

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

114

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

115

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

116

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

117

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

118

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

119

actual notice of contrary indications by the decedent, the

120

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

121

legally sufficient evidence of the decedent's informed consent to

122

donate an anatomical gift and is legally binding.

123

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

124

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

125

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

126

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

127

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

128

gift after the donor's death.

129

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

130

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

131

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

132

absent actual notice of contrary indications by the decedent s.

133

765.510.

134

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

135

concerning an anatomical gift or designated a health surrogate

136

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

137

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

138

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

139

listed stated and in the absence of actual notice of contrary

140

indications by the decedent or actual notice of opposition by a

141

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

142

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

143

765.510:

144

     (a)  The spouse of the decedent;

145

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

146

     (c)  Either parent of the decedent;

147

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

148

     (e) An adult grandchild of the decedent;

149

     (f) A grandparent of the decedent;

150

     (g) Another adult who exhibited special care and concern

151

for the decedent;

152

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

153

of his or her death; or

154

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

155

a court of competent jurisdiction forthwith upon a petition heard

156

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

157

shall ascertain that no person of higher priority exists who

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

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

160

communication expressing a desire that his or her body or body

161

parts not be donated upon death.;

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163

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

164

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

165

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

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

167

reasonable search must be conducted which shows is made to show

168

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

169

grounds by the decedent.

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

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has actual notice of contrary indications by the donor decedent

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

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

174

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

175

donee shall not accept the gift.

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

177

read:

178

     765.514 Manner of making executing anatomical gifts.--

179

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

180

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

181

     (a) Signing an organ and tissue donor card.

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     (b) Registering online with the organ and tissue donor

183

registry.

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

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license or identification card issued by the Department of

186

Highway Safety and Motor Vehicles. Revocation, suspension,

187

expiration, or cancellation of the driver's license or

188

identification card does not invalidate the gift.

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

190

advance directive.

191

     (e) Executing a will that includes a provision indicating

192

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

193

becomes effective upon the death of the testator without waiting

194

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

195

invalid for testamentary purposes, the gift is nevertheless valid

196

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

197

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

198

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

199

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

200

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

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

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

203

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

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presence and the presence of two witnesses who must sign the

205

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

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

207

gift valid.

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     (b) The following form of written document is instrument

209

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

210

her body for the purposes of this part:

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212

UNIFORM DONOR CARD

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214

The undersigned hereby makes this anatomical gift, if medically

215

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

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indicate my desires:

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218

I give:

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

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

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parts

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

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part(s)]

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225

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

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education;

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

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Limitations or special wishes, if any:

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

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advance with the donee.])

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232

Signed by the donor and the following witnesses in the presence

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of each other:   (Signature of donor)

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(Date of birth of donor)

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(Date signed)

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(City and State)

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  (Witness)

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(Witness)

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  (Address)

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(Address)

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

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

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

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

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

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

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

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expressed indication that the donor desired otherwise. However,

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the Legislature declares that the public policy of this state

251

prohibits restrictions on the possible recipients of an

252

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

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

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status, or economic status, and such restrictions are hereby

255

declared void and unenforceable. The physician who becomes a

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donee under this subsection shall not participate in the

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procedures for removing or transplanting a part.

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

259

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

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physician to carry out the appropriate procedures. In the

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

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

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authorize any surgeon or physician for the purpose.

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

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

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

267

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

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telephonic discussion, telegraphic message, or other recorded

269

message.

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

271

read:

272

     765.515 Delivery of donor document; organ and tissue donor

273

registry.--

274

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

275

established by the Agency for Health Care Administration and the

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Department of Highway Safety and Motor Vehicles under the

277

authority of s. 765.521, the completed donor registration card

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shall be delivered to the Department of Highway Safety and Motor

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Vehicles and the department must communicate the donor's intent

280

to the organ and tissue donor registry processed in a manner

281

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

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

283

records of the Department of Highway Safety and Motor Vehicles

284

must shall be updated to reflect such withdrawal and the

285

department must communicate the withdrawal to the organ and

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tissue donor registry for the purpose of updating the registry.

287

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

288

by the Agency for Health Care Administration and the Department

289

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

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

291

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

292

expedite the appropriate procedures immediately after death, but

293

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

294

document may be deposited in any hospital, bank, storage

295

facility, or registry office that accepts such documents for

296

safekeeping or to facilitate the donation of organs and tissue

297

for facilitation of procedures after death.

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

299

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

300

document for examination.

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     (4) The Agency for Health Care Administration and the

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Department of Highway Safety and Motor Vehicles shall develop and

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implement an organ and tissue donor registry which shall record,

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through electronic means, organ and tissue donation documents

305

submitted through the driver license identification program or by

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other sources. The registry shall be maintained in a manner

307

which will allow, through electronic and telephonic methods,

308

immediate access to organ and tissue donation documents 24 hours

309

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

310

agencies, and other parties identified by the agency by rule

311

shall be allowed access through coded means to the information

312

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

313

registry shall be paid from the Florida Organ and Tissue Donor

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Education and Procurement Trust Fund created by s. 765.52155.

315

Funds deposited into the Florida Organ and Tissue Donor Education

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and Procurement Trust Fund shall be utilized by the Agency for

317

Health Care Administration for maintaining the organ and tissue

318

donor registry and for organ and tissue donor education.

319

     Section 5.  Section 765.5155, Florida Statutes, is created

320

to read:

321

     765.5155 Organ and tissue donor registry; education

322

program.--

323

     (1) The Legislature finds that:

324

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

325

state willing to provide the organs and tissue that could save

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lives or enhance the quality of life for many persons.

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

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populations of this state to donate organs and tissue.

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

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online donor registration process coupled with an enhanced

331

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

332

of organ and tissue donors registered in this state, thus

333

affording more persons who are awaiting organ or tissue

334

transplants the opportunity for a full and productive life.

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     (2) The Agency for Health Care Administration and the

336

Department of Highway Safety and Motor Vehicles shall jointly

337

contract for the operation of an organ and tissue donor registry

338

and education program. The contractor shall be procured by

339

competitive solicitation pursuant to chapter 287, notwithstanding

340

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

341

priority shall be given to existing nonprofit groups that are

342

based within the state, have expertise working with organ and

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tissue procurement organizations, have expertise in conducting

344

statewide organ and tissue donor public education campaigns, and

345

represent the needs of the organ and tissue donation community in

346

the state.

347

     (3) The contractor shall be responsible for:

348

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

349

interactive web-based organ and tissue donor registry that,

350

through electronic means, allows for online organ donor

351

registration and the recording of organ and tissue donation

352

records submitted through the driver's license identification

353

program or through other sources.

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

355

through electronic and telephonic methods, immediate access to

356

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

357

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

358

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

359

     (b) A continuing program to educate and inform medical

360

professionals, law enforcement agencies and officers, other state

361

and local government employees, high school students, minorities,

362

and the public about the laws of this state relating to

363

anatomical gifts and the need for anatomical gifts.

364

     1. Existing community resources, when available, must be

365

used to support the program and volunteers may assist the program

366

to the maximum extent possible.

367

     2. The contractor, for the sole purpose of furthering its

368

educational program, shall, in coordination with the head of the

369

applicable entity or his or her designee, have access to the

370

buildings and workplace areas of all state agencies and political

371

subdivisions of the state.

372

     (c) Preparing and submitting an annual written report to

373

the Agency for Health Care Administration by December 31 of each

374

year. The report must include:

375

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

376

the registration rates by location and method of donation;

377

     2. The characteristics of donors as determined from

378

registry information submitted directly by the donors or by the

379

Department of Highway Safety and Motor Vehicles;

380

     3. The annual dollar amount of voluntary contributions

381

received by the contractor;

382

     4. A description of the educational campaigns and

383

initiatives implemented during the year and an evaluation of

384

their effectiveness in increasing enrollment on the registry; and

385

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

386

states' donor registries.

387

     (4) The Agency for Health Care Administration may adopt

388

rules to authorize persons engaged in bona fide research to

389

access records in the registry if the researcher agrees to:

390

     (a) Submit a research plan to the agency that specifies the

391

exact nature of the information requested and the intended use of

392

the information;

393

     (b) Maintain the confidentiality of the records or

394

information if personal identifying information is made available

395

to the researcher;

396

     (c) Destroy any confidential records or information

397

obtained after the research is concluded; and

398

     (d) Not directly or indirectly contact, for any purpose,

399

any donor or donee.

400

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

401

education program shall be paid by the Agency for Health Care

402

Administration from the Florida Organ and Tissue Donor Education

403

and Procurement Trust Fund created in s. 765.52155. In addition,

404

the contractor may receive and use voluntary contributions to

405

help support the registry and provide education.

406

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

407

section is designated as the "Joshua Abbott Organ and Tissue

408

Registry."

409

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

410

section 765.516, Florida Statutes, to read:

411

     765.516  Amendment of the terms of or the revocation of the

412

gift.--

413

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

414

gift by:

415

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

416

donor registry.

417

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

418

Statutes, is amended to read:

419

     765.517  Rights and duties at death.--

420

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

421

bank, or hospital medical professionals under the direction

422

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

423

as a potential donor and any invasive procedures on the deceased

424

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

425

procedures do not include the surgical removal of an organ or

426

penetrating any body cavity, specifically for the purpose of

427

donation, until:

428

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

429

donate appears in the organ and tissue donor registry or a

430

properly executed donor card or document is located; or,

431

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

432

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

433

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

434

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

435

and has granted legal permission for the donation.

436

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

437

Statutes, is amended to read:

438

     765.521  Donations as part of driver license or

439

identification card process.--

440

     (1)  The Agency for Health Care Administration and the

441

Department of Highway Safety and Motor Vehicles shall develop and

442

implement a program encouraging and allowing persons to make

443

anatomical gifts as a part of the process of issuing

444

identification cards and issuing and renewing driver licenses.

445

The donor registration card distributed by the Department of

446

Highway Safety and Motor Vehicles shall include the information

447

required by the uniform donor card under s. 765.514 material

448

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

449

information, and include such additional material, as determined

450

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

451

Highway Safety and Motor Vehicles shall also develop and

452

implement a program to identify donors, which includes program

453

shall include notations on identification cards, driver licenses,

454

and driver records or such other methods as the department

455

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

456

individual has completed a donor registration card, making a

457

notation on the front of the driver license or identification

458

card that clearly indicate indicates the individual's intent to

459

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

460

notation on an individual's driver license or identification card

461

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

462

satisfies is deemed sufficient to satisfy all requirements for

463

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

464

Administration shall provide the necessary supplies and forms

465

from through funds appropriated from general revenue or

466

contributions from interested voluntary, nonprofit organizations.

467

The department of Highway Safety and Motor Vehicles shall provide

468

the necessary recordkeeping system from through funds

469

appropriated from general revenue. The Department of Highway

470

Safety and Motor Vehicles and the Agency for Health Care

471

Administration shall incur no liability in connection with the

472

performance of any acts authorized herein.

473

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

474

Florida Statutes, are amended to read:

475

     765.522  Duty of certain hospital administrators; liability

476

of hospital administrators, organ procurement organizations, eye

477

banks, and tissue banks.--

478

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

479

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

480

hospital administrator or the hospital administrator's designee

481

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

482

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

483

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

484

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

485

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

486

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

487

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

488

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

489

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

490

administrator or designee shall request:

491

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

492

permitted in s. 765.512(2); or

493

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

494

surrogate is not reasonably available, any of the persons

495

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

496

priority stated in s. 765.512(3),

497

498

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

499

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

500

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

501

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

502

priority class reasonably available.

503

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

504

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

505

notify the affiliated Health Care Financing Administration

506

designated organ procurement organization designated by the

507

United States Department of Health and Human Services of the

508

potential organ donor. This organ procurement organization must

509

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

510

based local or state organ sharing transplant list. For the

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

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certain categories of national or regional organ sharing for

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patients of exceptional need or exceptional match, as approved or

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mandated by the Organ Procurement and Transplantation Network, or

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its agent United Network for Organ Sharing. This notification may

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

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organ procurement organization unless the tissue bank or eye bank

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is also a Health Care Financing Administration designated as an

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organ procurement organization by the United States Department of

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Health and Human Services.

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     Section 10. Sections 765.5215 and 765.5216, Florida

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Statutes, are repealed.

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