Florida Senate - 2009                              CS for SB 766
       
       
       
       By the Committee on Health Regulation and Senator Oelrich
       
       
       
       
       588-02137-09                                           2009766c1
    1                        A bill to be entitled                      
    2         An act relating to anatomical gifts; amending s.
    3         765.511, F.S.; providing additional definitions;
    4         amending s. 765.512, F.S.; conforming terms; amending
    5         s. 765.513, F.S.; revising the list of donees that may
    6         accept anatomical gifts and the purposes for which
    7         such gifts may be used; amending ss. 765.514, 765.515,
    8         765.5155, and 765.51551, F.S.; conforming terms;
    9         amending s. 765.516, F.S.; revising provisions
   10         relating to a donor's amendment or revocation of an
   11         anatomical gift; amending s. 765.517, F.S.; revising
   12         provisions relating to a donee's use of an anatomical
   13         gift at the time of the donor's death; providing
   14         liability protection for the person making a gift and
   15         for the donor's estate; amending s. 765.521, F.S.;
   16         conforming terms; amending s. 765.522, F.S.; providing
   17         that the laws of this state govern the interpretation
   18         of a valid document of gift, and that a document of
   19         gift is presumed to be valid; amending ss. 765.53,
   20         765.541, 765.542, 765.543, 765.544, and 765.545, F.S.;
   21         conforming terms; creating s. 765.547, F.S.; requiring
   22         medical examiners and procurement organizations to
   23         cooperate and maximize opportunities for organ
   24         donations; authorizing the Florida Medical Examiners
   25         Commission to adopt rules; amending ss. 408.802 and
   26         408.820, F.S.; conforming terms; providing an
   27         effective date.
   28         
   29  Be It Enacted by the Legislature of the State of Florida:
   30         
   31         Section 1. Section 765.511, Florida Statutes, is amended to
   32  read:
   33         765.511 Definitions.—As used in this part, the term:
   34         (1)“Agency” means the Agency for Health Care
   35  Administration.
   36         (2)“Anatomical gift” or “gift” means a donation of all or
   37  part of a human body to take effect after the donor's death and
   38  to be used for transplantation, therapy, research, or education.
   39         (3)(1) “Bank” or “storage facility” means a facility
   40  licensed, accredited, or approved under the laws of any state
   41  for storage of human bodies or body parts thereof.
   42         (4)(2) “Death” means the absence of life as determined, in
   43  accordance with currently accepted medical standards, by the
   44  irreversible cessation of all respiration and circulatory
   45  function, or as determined, in accordance with s. 382.009, by
   46  the irreversible cessation of the functions of the entire brain,
   47  including the brain stem.
   48         (5)“Decedent” means a deceased individual whose body or
   49  body parts may be, or are, the source of an anatomical gift.
   50         (6)“Disinterested witness” means a witness other than a
   51  person listed in s. 765.512(3) or other family member.
   52         (7)“Document of gift” means any of the documents or
   53  mechanisms used in making an anatomical gift under s. 765.514.
   54         (8)(3) “Donor” means an individual who makes an anatomical
   55  a gift of all or part of his or her body.
   56         (9)“Donor registry” means a database that contains records
   57  of anatomical gifts and amendments to, or revocations of, such
   58  gifts.
   59         (10)“Eye bank” means an entity that is accredited by the
   60  Eye Bank Association of America or otherwise regulated under
   61  federal or state law to engage in the retrieval, screening,
   62  testing, processing, storage, or distribution of human eye
   63  tissue.
   64         (11)“Guardian” means a person appointed pursuant to
   65  chapter 744. The term does not include a guardian ad litem.
   66         (12)(4) “Hospital” means a hospital licensed, accredited,
   67  or approved under the laws of any state and includes a hospital
   68  operated by the United States Government or a state, or a
   69  subdivision thereof, although not required to be licensed under
   70  state laws.
   71         (13)“Identification card” means an official identification
   72  card issued by a governmental entity, state agency, or
   73  subdivision thereof.
   74         (14)“Organ procurement organization” means an entity that
   75  is designated as an organ procurement organization by the
   76  Secretary of the United States Department of Health and Human
   77  Services and that engages in the retrieval, screening, testing,
   78  processing, storage, or distribution of human organs.
   79         (15)“Part of the body” or “body part” means an organ, eye,
   80  or tissue of a human being. The term does not include the whole
   81  body.
   82         (16)(5) “Physician” or “surgeon” means a physician or
   83  surgeon licensed to practice under chapter 458 or chapter 459 or
   84  similar laws of any state. “Surgeon” includes dental or oral
   85  surgeon.
   86         (17)“Procurement” means any retrieval, recovery,
   87  processing, storage, or distribution of human organs or tissues
   88  for transplantation, therapy, research, or education.
   89         (18)“Procurement organization” means an organ procurement
   90  organization, eye bank, or tissue bank.
   91         (19)“Reasonably available” means able to be contacted by a
   92  procurement organization in a timely manner without undue
   93  effort, and willing and able to act in a manner consistent with
   94  existing medical protocols necessary for the making of an
   95  anatomical gift.
   96         (20)“Record” means information that is inscribed on a
   97  tangible medium or that is stored in an electronic or other
   98  medium and is retrievable in perceivable form.
   99         (21)“Sign” or “signed” means, with the present intent to
  100  authenticate or adopt a record, to execute or adopt a tangible
  101  symbol, or attach to or logically associate an electronic
  102  symbol, sound, or process with the record.
  103         (22)“Tissue bank” means an entity that is accredited by
  104  the American Association of Tissue Banks or otherwise regulated
  105  under federal or state law to engage in the retrieval,
  106  screening, testing, processing, storage, or distribution of
  107  human tissue.
  108         Section 2. Subsections (1), (4), (5), (6), and (7) of
  109  section 765.512, Florida Statutes, are amended to read:
  110         765.512 Persons who may make an anatomical gift.—
  111         (1) Any person who may make a will may make an anatomical
  112  gift give all or part of his or her body for any purpose
  113  specified in s. 765.513. The gift is effective upon the death of
  114  the donor.
  115         (a) If the decedent makes an anatomical gift by one of the
  116  methods listed in s. 765.514(1), and in the absence of actual
  117  notice of contrary indications by the decedent, the document or
  118  entry in the donor organ and tissue registry is legally
  119  sufficient evidence of the decedent's informed consent to donate
  120  an anatomical gift.
  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
  125  modify, deny, or prevent a donor's wish or intent to make an
  126  anatomical gift after the donor's death.
  127         (4) A donee may not accept an anatomical gift if the donee
  128  has actual notice of contrary indications by the donor or actual
  129  notice that an anatomical a gift by a member of a class is
  130  opposed by a member of a prior class.
  131         (5) The person authorized by subsection (3) may make the
  132  anatomical gift after the decedent's death or immediately before
  133  the decedent's death.
  134         (6) An anatomical A gift of all or part of a body
  135  authorizes:
  136         (a) Any examination necessary to assure medical
  137  acceptability of the gift for the purposes intended.
  138         (b) The decedent's medical provider, family, or a third
  139  party to furnish medical records requested concerning the
  140  decedent's medical and social history.
  141         (7) Once the anatomical gift has been made, the rights of
  142  the donee are paramount to the rights of others, except as
  143  provided by s. 765.517.
  144         Section 3. Section 765.513, Florida Statutes, is amended to
  145  read:
  146         765.513 Persons and entities that may become Donees;
  147  purposes for which anatomical gifts may be made.—
  148         (1) The following persons or entities may become donees of
  149  anatomical gifts of bodies or parts of them for the purposes
  150  stated:
  151         (a)(1) Any procurement organization or accredited hospital,
  152  surgeon, or physician for medical or dental school, college, or
  153  university for education, or research, advancement of medical or
  154  dental science, therapy, or transplantation.
  155         (2)Any accredited medical or dental school, college, or
  156  university for education, research, advancement of medical or
  157  dental science, or therapy.
  158         (3)Any bank or storage facility for medical or dental
  159  education, research, advancement of medical or dental science,
  160  therapy, or transplantation.
  161         (b)(4) Any individual specified by name for therapy or
  162  transplantation needed by him or her.
  163         (2)If multiple purposes are set forth in the document of
  164  gift but are not set forth in any priority order, the anatomical
  165  gift shall be used first for transplantation or therapy, if
  166  suitable. If the gift cannot be used for transplantation or
  167  therapy, the gift may be used for research or education.
  168         (3)However, The Legislature declares that the public
  169  policy of this state prohibits restrictions on the possible
  170  recipients of an anatomical gift on the basis of race, color,
  171  religion, gender sex, national origin, age, physical disability
  172  handicap, health status, marital status, or economic status, and
  173  such restrictions are hereby declared void and unenforceable.
  174         Section 4. Section 765.514, Florida Statutes, is amended to
  175  read:
  176         765.514 Manner of making anatomical gifts.—
  177         (1) A person may make an anatomical a gift of all or part
  178  of his or her body under s. 765.512(1) by:
  179         (a) Signing an organ and tissue donor card.
  180         (b) Registering online with the organ and tissue donor
  181  registry.
  182         (c) Signifying an intent to donate on his or her driver's
  183  license or identification card issued by the Department of
  184  Highway Safety and Motor Vehicles. Revocation, suspension,
  185  expiration, or cancellation of the driver's license or
  186  identification card does not invalidate the gift.
  187         (d) Expressing a wish to donate in a living will or other
  188  advance directive.
  189         (e) Executing a will that includes a provision indicating
  190  that the testator wishes to make an anatomical gift. The gift
  191  becomes effective upon the death of the testator without waiting
  192  for probate. If the will is not probated or if it is declared
  193  invalid for testamentary purposes, the gift is nevertheless
  194  valid to the extent that it has been acted upon in good faith.
  195         (f) Expressing a wish to donate in a document other than a
  196  will. The document must be signed by the donor in the presence
  197  of two witnesses who shall sign the document in the donor's
  198  presence. If the donor cannot sign, the document may be signed
  199  for him or her at the donor's direction and in his or her
  200  presence and the presence of two witnesses who must sign the
  201  document in the donor's presence. Delivery of the document of
  202  gift during the donor's lifetime is not necessary to make the
  203  gift valid. The following form of written document is sufficient
  204  for any person to make an anatomical gift give all or part of
  205  his or her body for the purposes of this part:
  206                         UNIFORM DONOR CARD                        
  207  The undersigned hereby makes this anatomical gift, if medically
  208  acceptable, to take effect on death. The words and marks below
  209  indicate my desires:
  210  I give:
  211         (a) .... any needed organs, tissues, or eyes;
  212         (b) .... only the following organs, tissues, or eyes
  213            ...[Specify the organs, tissues, or eyes]...           
  214  for the purpose of transplantation, therapy, medical research,
  215  or education;
  216         (c) .... my body for anatomical study if needed.
  217  Limitations or special wishes, if any:
  218   ...(If applicable, list specific donee;this must be arranged in 
  219                     advance with the donee.)...                   
  220  Signed by the donor and the following witnesses in the presence
  221  of each other:
  222  ...(Signature of donor)...        ...(Date of birth of donor)...
  223  ...(Date signed)...                       ...(City and State)...
  224  ...(Witness)...                                  ...(Witness)...
  225  ...(Address)...                                  ...(Address)...
  226         (2) The anatomical gift may be made to a donee listed in s.
  227  765.513, and the donee may be specified by name.
  228         (3) Any anatomical gift by a health care surrogate
  229  designated by the decedent pursuant to part II of this chapter
  230  or a member of a class designated in s. 765.512(3) must be made
  231  by a document signed by that person or made by that person's
  232  witnessed telephonic discussion, telegraphic message, or other
  233  recorded message.
  234         Section 5. Section 765.515, Florida Statutes, is amended to
  235  read:
  236         765.515 Delivery of donor document.—
  237         (1) If an anatomical a gift is made pursuant to s. 765.521,
  238  the completed donor registration card shall be delivered to the
  239  Department of Highway Safety and Motor Vehicles and the
  240  department must communicate the donor's intent to the organ and
  241  tissue donor registry, but delivery is not necessary to the
  242  validity of the gift. If the donor withdraws the gift, the
  243  records of the Department of Highway Safety and Motor Vehicles
  244  must be updated to reflect such withdrawal and the department
  245  must communicate the withdrawal to the organ and tissue donor
  246  registry for the purpose of updating the registry.
  247         (2) If an anatomical a gift is made by the donor to a
  248  specified donee, the document of gift, other than a will, may be
  249  delivered to the donee to expedite the appropriate procedures
  250  immediately after death, but delivery is not necessary to the
  251  validity of the gift. The Such document of gift may be deposited
  252  in any hospital, bank, storage facility, or registry office that
  253  accepts such documents for safekeeping or to facilitate the
  254  donation of organs and tissue after death.
  255         (3) At the request of any interested party upon or after
  256  the donor's death, the person in possession shall produce the
  257  document of gift for examination.
  258         Section 6. Section 765.5155, Florida Statutes, is amended
  259  to read:
  260         765.5155 Organ and tissue Donor registry; education
  261  program.—
  262         (1) The Legislature finds that:
  263         (a) There is a shortage of organ and tissue donors in this
  264  state willing to provide the organs and tissue that could save
  265  lives or enhance the quality of life for many persons.
  266         (b) There is a need to encourage the various minority
  267  populations of this state to donate organs and tissue.
  268         (c) A statewide organ and tissue donor registry having an
  269  online donor registration process coupled with an enhanced
  270  program of donor education will lead to an increase in the
  271  number of organ and tissue donors registered in this state, thus
  272  affording more persons who are awaiting organ or tissue
  273  transplants the opportunity for a full and productive life.
  274         (2) The agency for Health Care Administration and the
  275  Department of Highway Safety and Motor Vehicles shall jointly
  276  contract for the operation of a an organ and tissue donor
  277  registry and education program. The contractor shall be procured
  278  by competitive solicitation pursuant to chapter 287,
  279  notwithstanding any exemption in s. 287.057(5)(f). When awarding
  280  the contract, priority shall be given to existing nonprofit
  281  groups that are based within the state, have expertise working
  282  with organ and tissue procurement organizations, have expertise
  283  in conducting statewide organ and tissue donor public education
  284  campaigns, and represent the needs of the organ and tissue
  285  donation community in the state.
  286         (3) The contractor shall be responsible for:
  287         (a) The development, implementation, and maintenance of an
  288  interactive web-based organ and tissue donor registry that,
  289  through electronic means, allows for online organ donor
  290  registration and the recording of organ and tissue donation
  291  records submitted through the driver's license identification
  292  program or through other sources.
  293         1. The registry must be maintained in a manner that allows,
  294  through electronic and telephonic methods, immediate access to
  295  organ and tissue donation records 24 hours a day, 7 days a week.
  296         2. Access to the registry must be through coded and secure
  297  means to protect the integrity of the data in the registry.
  298         (b) A continuing program to educate and inform medical
  299  professionals, law enforcement agencies and officers, other
  300  state and local government employees, high school students,
  301  minorities, and the public about the laws of this state relating
  302  to anatomical gifts and the need for anatomical gifts.
  303         1. Existing community resources, when available, must be
  304  used to support the program and volunteers may assist the
  305  program to the maximum extent possible.
  306         2. The contractor shall coordinate with the head of a state
  307  agency or other political subdivision of the state, or his or
  308  her designee, to establish convenient times, dates, and
  309  locations for educating that entity's employees.
  310         (c) Preparing and submitting an annual written report to
  311  the agency for Health Care Administration by December 31 of each
  312  year. The report must include:
  313         1. The number of donors on the registry and an analysis of
  314  the registration rates by location and method of donation;
  315         2. The characteristics of donors as determined from
  316  registry information submitted directly by the donors or by the
  317  Department of Highway Safety and Motor Vehicles;
  318         3. The annual dollar amount of voluntary contributions
  319  received by the contractor;
  320         4. A description of the educational campaigns and
  321  initiatives implemented during the year and an evaluation of
  322  their effectiveness in increasing enrollment on the registry;
  323  and
  324         5. An analysis of Florida's registry compared with other
  325  states' donor registries.
  326         (4) Costs for the organ and tissue donor registry and
  327  education program shall be paid by the agency for Health Care
  328  Administration from the funds deposited into the Health Care
  329  Trust Fund pursuant to ss. 320.08047 and 322.08, which are
  330  designated for maintaining the organ and tissue donor registry
  331  and education program. In addition, the contractor may receive
  332  and use voluntary contributions to help support the registry and
  333  provide education.
  334         (5) The organ and tissue donor registry established by this
  335  section is designated as the “Joshua Abbott Organ and Tissue
  336  Registry.”
  337         Section 7. Section 765.51551, Florida Statutes, is amended
  338  to read
  339         765.51551 Organ and tissue Donor registry; public records
  340  exemption.—
  341         (1) Information held in the organ and tissue donor registry
  342  which identifies a donor is confidential and exempt from s.
  343  119.07(1) and s. 24(a), Art. I of the State Constitution.
  344         (2) Such information may be disclosed to the following:
  345         (a) Organ, tissue, and eye Procurement organizations that
  346  have been certified by the agency for Health Care Administration
  347  for the purpose of ascertaining or effectuating the existence of
  348  a gift under s. 765.522.
  349         (b) Persons engaged in bona fide research if the person
  350  agrees to:
  351         1. Submit a research plan to the agency that specifies the
  352  exact nature of the information requested and the intended use
  353  of the information;
  354         2. Maintain the confidentiality of the records or
  355  information if personal identifying information is made
  356  available to the researcher;
  357         3. Destroy any confidential records or information obtained
  358  after the research is concluded; and
  359         4. Not directly or indirectly contact, for any purpose, any
  360  donor or donee.
  361         (3) This section is subject to the Open Government Sunset
  362  Review Act in accordance with s. 119.15 and shall stand repealed
  363  on October 2, 2013, unless reviewed and saved from repeal
  364  through reenactment by the Legislature.
  365         Section 8. Section 765.516, Florida Statutes, is amended to
  366  read:
  367         765.516 Donor amendment of the terms of or the revocation
  368  of anatomical the gift.—
  369         (1) A donor may amend the terms of or revoke an anatomical
  370  gift by:
  371         (a) The execution and delivery to the donee of a signed
  372  statement witnessed by at least two adults, at least one of whom
  373  is a disinterested witness.
  374         (b) An oral statement that is made in the presence of two
  375  persons, one of whom is must not be a family member, and
  376  communicated to the donor's family or attorney or to the donee.
  377  An oral statement is effective only if the procurement
  378  organization, transplant hospital, or physician or technician
  379  has actual notice of the oral amendment or revocation before an
  380  incision is made to the decedent's body or an invasive procedure
  381  to prepare the recipient has begun.
  382         (c) A statement made during a terminal illness or injury
  383  addressed to an attending physician, who must communicate the
  384  revocation of the gift to the procurement organization that is
  385  certified by the state.
  386         (d) A signed document found on or about the donor's person.
  387         (e) Removing his or her name from the organ and tissue
  388  donor registry.
  389         (f)A later-executed document of gift which amends or
  390  revokes a previous anatomical gift or portion of an anatomical
  391  gift, either expressly or by inconsistency.
  392         (g)By the destruction or cancellation of the document of
  393  gift or the destruction or cancellation of that portion of the
  394  document of gift used to make the gift with the intent to revoke
  395  the gift.
  396         (2) Any anatomical gift made by a will may also be amended
  397  or revoked in the manner provided for the amendment or
  398  revocation of wills or as provided in paragraph (1)(a)
  399  subsection (1).
  400         Section 9. Section 765.517, Florida Statutes, is amended to
  401  read:
  402         765.517 Rights and duties at death.—
  403         (1) The donee, pursuant to as specified under the
  404  provisions of s. 765.515(2), may accept or reject an anatomical
  405  the gift. If the donee accepts a gift of the entire body or a
  406  part of the body to be used for research or education scientific
  407  purposes other than a transplant, the donee may authorize
  408  embalming and the use of the body in funeral services, subject
  409  to the terms of the gift. If the gift is of a part of the body,
  410  the donee shall cause the part to be removed without unnecessary
  411  mutilation upon the death of the donor and before or after
  412  embalming. After removal of the body part, custody of the
  413  remainder of the body vests in the surviving spouse, next of
  414  kin, or other persons under obligation to dispose of the body.
  415         (2) The time of death shall be determined by a physician
  416  who attends the donor at the donor's death or, if there is no
  417  such physician, the physician who certifies the death. After
  418  death, those physicians or the donor's primary care and in the
  419  absence of other qualified personnel, this physician may
  420  participate in, but may shall not obstruct, the procedures to
  421  preserve the donor's organs or tissues and may shall not be paid
  422  or reimbursed for such participation by, nor be associated with
  423  or employed by, a, an organ procurement organization, tissue
  424  bank, or eye bank. These physicians may This physician shall not
  425  participate in the procedures for removing or transplanting a
  426  part. However, this subsection does not prevent a physician from
  427  serving in a voluntary capacity on the board of directors of a
  428  procurement organization or participating on any board, council,
  429  commission, or similar body related to the organ and tissue
  430  procurement system.
  431         (3) The organ procurement organizations organization,
  432  tissue bank, or eye bank, or hospital medical professionals
  433  under the direction thereof, may perform any and all tests to
  434  evaluate the deceased as a potential donor and any invasive
  435  procedures on the deceased body in order to preserve the
  436  potential donor's organs. These procedures do not include the
  437  surgical removal of an organ or penetrating any body cavity,
  438  specifically for the purpose of donation, until:
  439         (a) It has been verified that the deceased's consent to
  440  donate appears in the organ and tissue donor registry or a
  441  properly executed donor card or document of gift is located; or
  442         (b) If a properly executed donor card or document of gift
  443  cannot be located or the deceased's consent is not listed in the
  444  organ and tissue donor registry, a person specified in s.
  445  765.512(2) or (3) has been located, has been notified of the
  446  death, and has granted legal permission for the donation.
  447         (4) All reasonable additional expenses incurred in the
  448  procedures to preserve the donor's organs or tissues shall be
  449  reimbursed by the organ procurement organization, tissue bank,
  450  or eye bank.
  451         (5) A person who acts in good faith and without negligence
  452  in accord with the terms of this part or under the anatomical
  453  gift laws of another state or a foreign country, or attempts in
  454  good faith to do so, is not liable for damages in any civil
  455  action, is not or subject to prosecution for his or her acts in
  456  any criminal proceeding, and is not subject to discipline,
  457  penalty, or liability in any administrative proceeding.
  458         (6) The provisions of this part are subject to the laws of
  459  this state prescribing powers and duties with respect to
  460  autopsies.
  461         (7)The person making an anatomical gift and the donor's
  462  estate are not liable for any injury or damages that result from
  463  the making or use of the gift.
  464         (8)In determining whether an anatomical gift has been
  465  made, amended, or revoked under this part, a person may rely
  466  upon the representation of an individual listed in s. 765.512,
  467  relating to the individual's relationship to the donor or
  468  prospective donor, unless the person knows that the
  469  representation is untrue.
  470         Section 10. Section 765.521, Florida Statutes, is amended
  471  to read:
  472         765.521 Donations as part of driver license or
  473  identification card process.—
  474         (1) The agency for Health Care Administration and the
  475  Department of Highway Safety and Motor Vehicles shall develop
  476  and implement a program encouraging and allowing persons to make
  477  anatomical gifts as a part of the process of issuing
  478  identification cards and issuing and renewing driver licenses.
  479  The donor registration card distributed by the Department of
  480  Highway Safety and Motor Vehicles shall include the information
  481  required by the uniform donor card under s. 765.514 and such
  482  additional information as determined necessary by the
  483  department. The department shall also develop and implement a
  484  program to identify donors, which includes notations on
  485  identification cards, driver licenses, and driver records or
  486  such other methods as the department develops to clearly
  487  indicate the individual's intent to make an anatomical gift
  488  donate the individual's organs, tissues, or eyes. A notation on
  489  an individual's driver license or identification card that the
  490  individual intends to make an anatomical gift donate organs,
  491  tissues, or eyes satisfies all requirements for consent to organ
  492  or tissue donation. The agency for Health Care Administration
  493  shall provide the necessary supplies and forms from funds
  494  appropriated from general revenue or contributions from
  495  interested voluntary, nonprofit organizations. The department
  496  shall provide the necessary recordkeeping system from funds
  497  appropriated from general revenue. The Department of Highway
  498  Safety and Motor Vehicles and the agency for Health Care
  499  Administration shall incur no liability in connection with the
  500  performance of any acts authorized herein.
  501         (2) The Department of Highway Safety and Motor Vehicles,
  502  after consultation with and concurrence by the agency for Health
  503  Care Administration, shall adopt rules to implement the
  504  provisions of this section according to the provisions of
  505  chapter 120.
  506         (3) Funds expended by the agency for Health Care
  507  Administration to carry out the intent of this section may shall
  508  not be taken from any funds appropriated for patient care.
  509         Section 11. Section 765.522, Florida Statutes, is amended
  510  to read:
  511         765.522 Duty of certain hospital administrators; liability
  512  of hospital administrators and, organ procurement organizations,
  513  eye banks, and tissue banks.—
  514         (1)When used in this section, “hospital” means any
  515  establishment licensed under chapter 395 except psychiatric and
  516  rehabilitation hospitals.
  517         (1)(2)If Where, based on accepted medical standards, a
  518  hospital patient is a suitable candidate for organ or tissue
  519  donation, the hospital administrator or the hospital
  520  administrator's designee shall, at or near the time of death,
  521  notify the appropriate procurement organization organ, eye, or
  522  tissue recovery program, which shall access the organ and tissue
  523  donor registry created by s. 765.5155 or any other donor
  524  registry to ascertain the existence of an entry in the registry
  525  which that has not been revoked, a donor card, or a document of
  526  gift executed by the decedent. In the absence of an entry in the
  527  donor registry, a document of gift donor card, organ donation
  528  sticker or organ donation imprint on a driver's license, or
  529  other properly executed document, the procurement organization
  530  organ, eye, or tissue recovery program shall request:
  531         (a) The patient's health care surrogate, as authorized in
  532  s. 765.512(2); or
  533         (b) If the patient does not have a surrogate, or the
  534  surrogate is not reasonably available, any of the persons
  535  specified in s. 765.512(3), in the order and manner listed,
  536  to consent to the anatomical gift of all or any part of the
  537  decedent's body for any purpose specified in this part. Except
  538  as provided in s. 765.512, in the absence of actual notice of
  539  opposition, consent need only be obtained from the person or
  540  persons in the highest priority class reasonably available.
  541         (3) A document of gift is valid if made pursuant to a
  542  request required by this section shall be executed in accordance
  543  with this part or the laws of the state or country where it was
  544  executed and where the person making the anatomical gift was
  545  domiciled, has a place of residence, or was a citizen at the
  546  time the document of gift was executed pursuant to s. 765.514.
  547         (4) The agency for Health Care Administration shall
  548  establish rules and guidelines concerning the education of
  549  individuals who may be designated to perform the request and the
  550  procedures to be used in making the request. The agency is
  551  authorized to adopt rules concerning the documentation of the
  552  request, where such request is made.
  553         (5)If a document of gift is valid under this section, the
  554  laws of this state govern the interpretation of the document of
  555  gift.
  556         (6)A document of gift or amendment of an anatomical gift
  557  is presumed to be valid unless it was not validly executed or
  558  was revoked.
  559         (7)(5) There shall be no civil or criminal liability
  560  against any organ procurement organization, eye bank, or tissue
  561  bank certified under s. 765.542, or against any hospital or
  562  hospital administrator or designee who complies, when complying
  563  with the provisions of this part and agency the rules of the
  564  agency for Health Care Administration or if when, in the
  565  exercise of reasonable care, a request for organ donation is
  566  inappropriate and the gift is not made according to this part
  567  and agency the rules of the agency for Health Care
  568  Administration.
  569         (8)(6) The hospital administrator or a designee shall, at
  570  or near the time of death of a potential organ donor, directly
  571  notify the affiliated organ procurement organization designated
  572  by the United States Department of Health and Human Services of
  573  the potential organ donor. The This organ procurement
  574  organization must offer any organ from such a donor first to
  575  patients on a Florida-based local or state organ sharing
  576  transplant list. For the purpose of this subsection, the term
  577  “transplant list” includes certain categories of national or
  578  regional organ sharing for patients of exceptional need or
  579  exceptional match, as approved or mandated by the Organ
  580  Procurement and Transplantation Network, or its agent. This
  581  notification may not be made to a tissue bank or eye bank in
  582  lieu of the organ procurement organization unless the tissue
  583  bank or eye bank is also designated as an organ procurement
  584  organization by the United States Department of Health and Human
  585  Services.
  586         Section 12. Subsections (1), (5), and (6) of section
  587  765.53, Florida Statutes, are amended to read:
  588         765.53 Organ Transplant Advisory Council; membership;
  589  responsibilities.—
  590         (1) There is hereby created within the agency for Health
  591  Care Administration A statewide technical Organ Transplant
  592  Advisory Council is created within the agency, consisting of
  593  twelve members who are physicians licensed under chapter 458 or
  594  chapter 459, to represent the interests of the public and the
  595  clients of the Department of Health or the agency. The members
  596  shall be physicians licensed according to chapter 458 or chapter
  597  459. A person employed by the agency may not be appointed as a
  598  member of the council.
  599         (5) Members of the council shall receive no compensation,
  600  but shall be reimbursed for per diem and travel expenses by the
  601  agency for Health Care Administration in accordance with the
  602  provisions of s. 112.061 while engaged in the performance of
  603  their duties.
  604         (6) The responsibilities of the council shall be to
  605  recommend to the agency for Health Care Administration
  606  indications for adult and pediatric organ transplants. The
  607  council shall also formulate guidelines and standards for organ
  608  transplants and for the development of End Stage Organ Disease
  609  and Tissue/Organ Transplant programs. The recommendations,
  610  guidelines, and standards developed by the council are
  611  applicable only to those health programs funded through the
  612  agency for Health Care Administration.
  613         Section 13. Section 765.541, Florida Statutes, is amended
  614  to read:
  615         765.541 Certification of procurement organizations engaged
  616  in the practice of cadaveric organ and tissue procurement.—The
  617  agency for Health Care Administration shall:
  618         (1) Establish a program for the certification of
  619  organizations, corporations agencies, or other entities engaged
  620  in the procurement of organs, tissues, and eyes for
  621  transplantation.;
  622         (2) Adopt rules that set forth appropriate standards and
  623  guidelines for the program in accordance with ss. 765.541
  624  765.546 and part II of chapter 408. These standards and
  625  guidelines must be substantially based on the existing laws of
  626  the Federal Government and this state and the existing standards
  627  and guidelines of the United Network for Organ Sharing (UNOS),
  628  the American Association of Tissue Banks (AATB), the South
  629  Eastern Organ Procurement Foundation (SEOPF), the North American
  630  Transplant Coordinators Organization (NATCO), and the Eye Bank
  631  Association of America (EBAA). In addition, the agency for
  632  Health Care Administration shall, before adopting these
  633  standards and guidelines, seek input from all organ procurement
  634  organizations, tissue banks, and eye banks based in this state.;
  635         (3) Collect, keep, and make available to the Governor and
  636  the Legislature information regarding the numbers and
  637  disposition of organs, and tissues, and eyes procured by each
  638  certified procurement organization. entity;
  639         (4) Monitor procurement organizations participating
  640  facilities and agencies for program compliance.; and
  641         (5) Provide for the administration of the Organ and Tissue
  642  Procurement and Transplantation Advisory Board.
  643         Section 14. Section 765.542, Florida Statutes, is amended
  644  to read:
  645         765.542 Certification of organ procurement organizations,
  646  tissue banks, and eye banks.—
  647         (1) The requirements of part II of chapter 408 apply to the
  648  provision of services that require licensure pursuant to ss.
  649  765.541-765.546 and part II of chapter 408 and to entities
  650  licensed or certified by or applying for such licensure or
  651  certification from the agency for Health Care Administration
  652  pursuant to ss. 765.541-765.546. A person An organization,
  653  agency, or other entity may not engage in the practice of organ
  654  procurement in this state without being designated as an organ
  655  procurement organization by the secretary of the United States
  656  Department of Health and Human Services and being appropriately
  657  certified by the agency for Health Care Administration. As used
  658  in this subsection, the term “procurement” includes the
  659  retrieval, processing, or distribution of human organs. A
  660  physician or organ procurement organization based outside this
  661  state is exempt from these certification requirements if:
  662         (a) The organs are procured for an out-of-state patient who
  663  is listed on, or referred through, the United Network for Organ
  664  Sharing System; and
  665         (b) The organs are procured through an agreement of an
  666  organ procurement organization certified by the state.
  667         (2) A person An organization, agency, or other entity may
  668  not engage in tissue procurement in this state unless it is
  669  appropriately certified as a tissue bank by the agency for
  670  Health Care Administration. As used in this subsection, the term
  671  “procurement” includes any retrieval, processing, storage, or
  672  distribution of human tissue for transplantation.
  673         (3) A person An organization, agency, or other entity may
  674  not engage in the practice of eye procurement in this state
  675  without being appropriately certified as an eye bank by the
  676  agency for Health Care Administration. As used in this
  677  subsection, the term “procurement” includes the retrieval,
  678  processing, or distribution of human eye tissue. Funeral
  679  directors or direct disposers who that retrieve eye tissue for
  680  an eye bank certified under this subsection are exempt from the
  681  certification requirements under this subsection.
  682         (4) A limited certificate may be issued to a tissue bank or
  683  eye bank, certifying only those components of procurement which
  684  the bank has chosen to perform. The agency for Health Care
  685  Administration may issue a limited certificate if it determines
  686  that the tissue bank or eye bank is adequately staffed and
  687  equipped to operate in conformity with the rules adopted under
  688  this section.
  689         Section 15. Subsection (3) of section 765.543, Florida
  690  Statutes, is amended to read:
  691         765.543 Organ and Tissue Procurement and Transplantation
  692  Advisory Board; creation; duties.—
  693         (3) The board shall:
  694         (a) Assist the agency for Health Care Administration in the
  695  development of necessary professional qualifications, including,
  696  but not limited to, the education, training, and performance of
  697  persons engaged in the various facets of organ and tissue
  698  procurement, processing, preservation, and distribution for
  699  transplantation;
  700         (b) Assist the agency for Health Care Administration in
  701  monitoring the appropriate and legitimate expenses associated
  702  with organ and tissue procurement, processing, and distribution
  703  for transplantation and developing methodologies to assure the
  704  uniform statewide reporting of data to facilitate the accurate
  705  and timely evaluation of the organ and tissue procurement and
  706  transplantation system;
  707         (c) Provide assistance to the Florida Medical Examiners
  708  Commission in the development of appropriate procedures and
  709  protocols to ensure the assure continued improvement in the
  710  approval and release of potential organ and tissue donors by the
  711  district medical examiners and associate medical examiners;
  712         (d) Develop with and recommend to the agency for Health
  713  Care Administration the necessary procedures and protocols
  714  required to assure that all residents of this state have
  715  reasonable access to available organ and tissue transplantation
  716  therapy and that residents of this state can be reasonably
  717  assured that the statewide procurement transplantation system is
  718  will be able to fulfill their organ and tissue requirements
  719  within the limits of the available supply and according to the
  720  severity of their medical condition and need; and
  721         (e) Develop with and recommend to the agency for Health
  722  Care Administration any changes to the laws of this state or
  723  administrative rules or procedures required to ensure assure
  724  that the statewide organ and tissue procurement and
  725  transplantation system is will be able to function smoothly,
  726  effectively, and efficiently, in accordance with the Federal
  727  Anatomical Gift Act and in a manner that assures the residents
  728  of this state that no person or entity profits from the
  729  altruistic voluntary donation of organs or tissues.
  730         Section 16. Section 765.544, Florida Statutes, is amended
  731  to read
  732         765.544 Fees; organ and tissue donor education and
  733  procurement.—
  734         (1) In accordance with s. 408.805, an applicant or a
  735  certificateholder shall pay a fee for each application submitted
  736  under this part, part II of chapter 408, and applicable rules.
  737  The amount of the fee shall be as follows:
  738         (a) An initial application fee of $1,000 from organ
  739  procurement organizations and tissue banks and $500 from eye
  740  banks.
  741         (b) Annual fees to be used, in the following order of
  742  priority, for the certification program, the advisory board,
  743  maintenance of the organ and tissue donor registry, and the
  744  organ and tissue donor education program in the following
  745  amounts, which may not exceed $35,000 per organization:
  746         1. Each general organ procurement organization shall pay
  747  the greater of $1,000 or 0.25 percent of its total revenues
  748  produced from procurement activity in this state by the
  749  certificateholder during its most recently completed fiscal year
  750  or operational year.
  751         2. Each bone and tissue procurement organization agency or
  752  bone and tissue bank shall pay the greater of $1,000 or 0.25
  753  percent of its total revenues from procurement and processing
  754  activity in this state by the certificateholder during its most
  755  recently completed fiscal year or operational year.
  756         3. Each eye bank shall pay the greater of $500 or 0.25
  757  percent of its total revenues produced from procurement activity
  758  in this state by the certificateholder during its most recently
  759  completed fiscal year or operational year.
  760         (2) The agency for Health Care Administration shall specify
  761  by rule the administrative penalties for the purpose of ensuring
  762  adherence to the standards of quality and practice required by
  763  this chapter, part II of chapter 408, and applicable rules of
  764  the agency for continued certification.
  765         (3)(a) Proceeds from fees, administrative penalties, and
  766  surcharges collected pursuant to this section must be deposited
  767  into the Health Care Trust Fund.
  768         (b) Moneys deposited in the trust fund pursuant to this
  769  section must be used exclusively for the implementation,
  770  administration, and operation of the certification program and
  771  the advisory board, for maintaining the organ and tissue donor
  772  registry, and for organ and tissue donor education.
  773         (4) As used in this section, the term “procurement activity
  774  in this state” includes the bringing into this state for
  775  processing, storage, distribution, or transplantation of organs
  776  or tissues that are initially procured in another state or
  777  country.
  778         Section 17. Section 765.545, Florida Statutes, is amended
  779  to read:
  780         765.545 Physician supervision of cadaveric organ and tissue
  781  procurement coordinators.—Organ Procurement organizations,
  782  tissue banks, and eye banks may employ coordinators, who are
  783  registered nurses, physician's assistants, or other medically
  784  trained personnel who meet the relevant standards for organ
  785  procurement organizations, tissue banks, or eye banks as adopted
  786  by the agency for Health Care Administration under s. 765.541,
  787  to assist in the medical management of organ donors or in the
  788  surgical procurement of cadaveric organs, tissues, or eyes for
  789  transplantation or research. A coordinator who assists in the
  790  medical management of organ donors or in the surgical
  791  procurement of cadaveric organs, tissues, or eyes for
  792  transplantation or research must do so under the direction and
  793  supervision of a licensed physician medical director pursuant to
  794  rules and guidelines to be adopted by the agency for Health Care
  795  Administration. With the exception of organ procurement surgery,
  796  this supervision may be indirect supervision. For purposes of
  797  this section, the term “indirect supervision” means that the
  798  medical director is responsible for the medical actions of the
  799  coordinator, that the coordinator is operating under protocols
  800  expressly approved by the medical director, and that the medical
  801  director or his or her physician designee is always available,
  802  in person or by telephone, to provide medical direction,
  803  consultation, and advice in cases of organ, tissue, and eye
  804  donation and procurement. Although indirect supervision is
  805  authorized under this section, direct physician supervision is
  806  to be encouraged when appropriate.
  807         Section 18. Section 765.547, Florida Statutes, is created
  808  to read:
  809         765.547Cooperation between medical examiner and
  810  procurement organization.—
  811         (1)A medical examiner and procurement organization shall
  812  cooperate with each other in order to maximize opportunities to
  813  recover anatomical gifts for the purpose of transplantation,
  814  therapy, research, or education.
  815         (2)The Florida Medical Examiners Commission shall adopt
  816  rules establishing cooperative responsibilities between medical
  817  examiners and procurement organizations to facilitate and
  818  expedite completion of the medical examiner's responsibilities
  819  under chapter 406 in a manner that will maximize opportunities
  820  to recover anatomical gifts.
  821         (3)This part does not supersede any part of chapter 406
  822  relating to medical examiners and the disposition of dead
  823  bodies.
  824         Section 19. Subsection (30) of section 408.802, Florida
  825  Statutes, is amended to read:
  826         408.802 Applicability.—The provisions of this part apply to
  827  the provision of services that require licensure as defined in
  828  this part and to the following entities licensed, registered, or
  829  certified by the agency, as described in chapters 112, 383, 390,
  830  394, 395, 400, 429, 440, 483, and 765:
  831         (30) Organ, and tissue, and eye procurement organizations
  832  agencies, as provided under part V of chapter 765.
  833         Section 20. Subsection (29) of section 408.820, Florida
  834  Statutes, is amended to read:
  835         408.820 Exemptions.—Except as prescribed in authorizing
  836  statutes, the following exemptions shall apply to specified
  837  requirements of this part:
  838         (29) Organ, and tissue, and eye procurement organizations
  839  agencies, as provided under part V of chapter 765, are exempt
  840  from s. 408.810(5)-(10).
  841         Section 21. This act shall take effect July 1, 2009.
  842