20 PA Cons Stat § 8617 (2021)
2021 Pennsylvania Consolidated & Unconsolidated Statutes|Title 20 - DECEDENTS, ESTATES AND FIDUCIARIES|Chapter 86 - Anatomical Gifts|Section 8617 - Requests for anatomical gifts

§ 8617. Requests for anatomical gifts. (a) Procedure.--A hospital located in this Commonwealth shall notify the applicable designated organ procurement organization or a third party designated by the organ procurement organization of an individual whose death is imminent or who has died in the hospital. Notification shall be made in a timely manner to ensure that examination, evaluation and ascertainment of donor status as specified in subsection (d) may be completed within a time frame compatible with the donation of organs and tissues for transplant. The notification shall be made without regard to whether the person has executed an advance health care directive.  (b) Referrals.--If an organ procurement organization receives a referral of an individual whose death is imminent or who has died in a hospital, the organ procurement organization shall make a reasonable search of the records of the Donate Life PA Registry or the applicable State donor registry that the organ procurement organization knows exists for the geographic area in which the individual resided or resides in order to ascertain whether the individual has made an anatomical gift.  (c) Document of gift.-- (1) If the individual whose death is imminent or has died in the hospital has a document of gift which authorizes an anatomical donation, including registration with the Donate Life PA Registry, the organ procurement organization representative or the designated requestor shall attempt to notify a person listed in section 8611(b) (relating to persons who may execute anatomical gift) of the gift.  (2) If no document of gift is known to the organ procurement organization representative or the designated requestor, then the organ procurement organization representative or the designated requestor shall ask the persons listed in section 8611(b) whether the individual had a validly executed document of gift. If there is no evidence of an anatomical gift by the individual, the organ procurement organization representative or the designated requestor shall notify a person listed in section 8611(b) of the option to donate organs and tissues. The notification shall be performed in accordance with a protocol that encourages discretion and sensitivity to family circumstances in all discussions regarding donations of organs and tissues. The protocol shall take into account the individual's religious beliefs or nonsuitability for organ and tissue donation.  (3) The hospital administrator or the hospital administrator's designated representative shall indicate in the medical record of the individual the information under this paragraph. The information shall also be communicated by the hospital administrator or the hospital administrator's designee to the organ procurement organization or designated requestor, as appropriate:  (i) whether or not a document of gift is known to exist and whether a gift was made; (ii) if a gift was made, the name of the person granting the gift and that person's relationship to the individual; and  (iii) all of the following: (A) Whether the individual executed an advance health care directive, living will, power of attorney, health care power of attorney, will or other document, including a do-not-resuscitate (DNR) order, evidencing an intention to limit, withdraw or withhold life-sustaining measures.  (B) Whether the individual indicated in an advance health care directive, living will, power of attorney, health care power of attorney, will or other document an intention to limit the anatomical gifts of the individual in any way, including the intention to limit an anatomical gift to parts of the body which do not require a ventilator or other life-sustaining measures, or to deny making or refusing to make an anatomical gift.  (C) Whether the individual amended or revoked an anatomical gift in any document specified in this subparagraph or in any other document or in accordance with section 8615 (relating to amendment or revocation of gift).  (d) Testing.-- (1) This subsection shall apply if: (i) a hospital refers an individual whose death is imminent or who has died in a hospital to an organ procurement organization;  (ii) the organ procurement organization, in consultation with the individual's attending physician or a designee, determines, based upon a medical record review and other information supplied by the individual's attending physician or a designee, that the individual may be a prospective donor; and  (iii) the individual has not: (A) indicated in an advance health care directive, a living will, power of attorney, health care power of attorney, will, DNR order or other document an intention to either limit the anatomical gifts of the individual to parts of the body which do not require a ventilator or other life-sustaining measures or indicated an intention to deny making or refusing to make an anatomical gift; or  (B) amended or revoked an anatomical gift in any document specified in subsection (c)(3) or in any other document or in accordance with section 8615.  (2) If the requirements of paragraph (1) are met, the following shall apply: (i) Subject to the wishes expressed by the individual under subsection (c)(3), the organ procurement organization may conduct a blood or tissue test or minimally invasive examination which is reasonably necessary to evaluate the medical suitability of a part that is or may be the subject of an anatomical gift. Testing and examination under this subparagraph shall comply with a denial or refusal to make an anatomical gift or any limitation expressed by the individual with respect to the part of the body to donate or a limitation in the provision of a ventilator or other life-sustaining measures, as specified in subsection (c)(3) or a revocation or amendment to an anatomical gift as specified in a document in subsection (c)(3) or in any other document or in accordance with section 8615. The results of tests and examinations under this subparagraph shall be used or disclosed only:  (A) to evaluate medical suitability for donation and to facilitate the donation process; and  (B) as required or permitted by law. (ii) Subject to the wishes expressed by the individual under subsection (c)(3), the hospital may not withdraw any measures which are necessary to maintain the medical suitability of the part until the organ procurement organization or designated requestor, as appropriate, has had the opportunity to advise the applicable persons as set forth in section 8611(b) of the option to make an anatomical gift and has received or been denied authorization to proceed with recovery of the part.  (3) (Deleted by amendment). (4) (Deleted by amendment). (e) Testing after death.--Subject to the individual's wishes under subsection (c)(3), after an individual's death, a person to whom an anatomical gift may pass under section 8612 (relating to persons who may become donees; purposes for which anatomical gifts may be made) may conduct a test or examination which is reasonably necessary to evaluate the medical suitability of the body or part for its intended purpose.  (1) (Deleted by amendment). (2) (Deleted by amendment). (3) (Deleted by amendment). (4) (Deleted by amendment). (f) Guidelines.-- (1) The Department of Health, in consultation with organ procurement organizations, tissue procurement providers and the Hospital Association of Pennsylvania, donor recipients and family appointed pursuant to section 8622(c)(3) (relating to The Governor Robert P. Casey Memorial Organ and Tissue Donation Awareness Trust Fund) shall, within six months of the effective date of this subchapter, do all of the following:  (i) Establish guidelines regarding efficient procedures facilitating the delivery of anatomical gift donations from receiving hospitals to organ procurement organizations and tissue providers.  (ii) Develop guidelines to assist hospitals in the selection and designation of tissue procurement providers.  (2) Each organ procurement organization and each tissue procurement provider operating within this Commonwealth shall, within six months of the effective date of this chapter, file with the Department of Health, for public review, its operating protocols.  (f.1) Scope.--The determination under this section may include copying of records necessary to determine the medical suitability of the body or part. This subsection includes medical, dental and other health-related records.  (f.2) Recipients.-- (1) Subject to the provisions of this subchapter, the rights of the person to whom a part passes under section 8612 shall be superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part.  (2) Subject to the wishes of the individual under subsection (c)(3) and this subchapter, a person that accepts an anatomical gift of an entire body may allow embalming, burial or cremation and the use of remains in a funeral service. If the gift is of a part, the person to whom the part passes under section 8612, upon the death of the individual and before embalming, burial or cremation, shall cause the part to be removed without unnecessary mutilation.  (f.3) Physicians.-- (1) Neither the physician who attends the individual at death nor the physician who determines the time of the individual's death may participate in the procedures for removing or transplanting a part from the individual.  (2) Subject to the individual's wishes under subsection (c)(3), and subject to paragraph (1), a physician or technician may remove a donated part from the body of an individual that the physician or technician is qualified to remove.  (f.4) Coordination of procurement and use.-- (1) A hospital shall enter into agreements or affiliations with organ procurement organizations for coordination of procurement and use of anatomical gifts.  (2) The organ procurement organization, hospital personnel and other individuals involved in the anatomical donation process shall limit the testing and examination of the individual under this section so as to comply with the wishes of the individual under subsection (c)(3).  (g) Death record review.-- (1) The Department of Health shall make annual death record reviews at acute care general hospitals to determine their compliance with subsection (a).  (2) To conduct a review of an acute care general hospital, the following apply: (i) The department shall select to carry out the review the Commonwealth-licensed organ procurement organization designated by the Centers for Medicare and Medicaid Services for the region within which the acute care general hospital is located. For an organ procurement organization to be selected under this subparagraph, the organization must not operate nor have an ownership interest in an entity which provides all of the functions of a tissue procurement provider.  (ii) If there is no valid selection under subparagraph (i) or if the organization selected under subparagraph (i) is unwilling to carry out the review, the department shall select to carry out the review any other Commonwealth-licensed organ procurement organization. For an organ procurement organization to be selected under this subparagraph, the organization must not operate nor have an ownership interest in an entity which provides all of the functions of a tissue procurement provider.  (iii) If there is no valid selection under subparagraph (ii) or if the organization selected under subparagraph (ii) is unwilling to carry out the review, the department shall carry out the review using trained department personnel.  (3) There shall be no cost assessed against a hospital for a review under this subsection. (4) If the department finds, on the basis of a review under this subsection, that a hospital is not in compliance with subsection (a), the department may impose an administrative fine of up to $500 for each instance of noncompliance. A fine under this paragraph is subject to 2 Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of Commonwealth agencies) and Ch. 7 Subch. A (relating to judicial review of Commonwealth agency action). Fines collected under this paragraph shall be deposited into the fund.  (5) An organ procurement organization may, upon request and payment of associated fees, obtain certified copies of death records of a donor from the Division of Vital Records of the department.  (h) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:  "Designated requestor." A hospital employee completing a course offered by a designated organ procurement organization on how to approach potential donor families and request organ or tissue donation.  "Noncompliance." Any failure on the part of a hospital to contact an organ procurement organization as required under subsection (a).  (Dec. 20, 2000, P.L.881, No.120, eff. imd.; Oct. 23, 2018, P.L.594, No.90)     2018 Amendment. Section 11(3) of Act 90 provided that the amendment of section 8617 shall take effect upon publication of the notice under section 8629.  2000 Amendment. See sections 2, 3 and 4 of Act 120 in the appendix to this title for special provisions relating to references to Organ Donation Awareness Trust Fund, use of existing forms by Department of Revenue and use of existing forms by Department of Transportation.  Cross References. Section 8617 is referred to in sections 8619, 8622 of this title.