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Introduced Version House Bill 4340 History

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Key: Green = existing Code. Red = new code to be enacted

WEST VIRGINIA LEGISLATURE

2022 REGULAR SESSION

Introduced

House Bill 4340

By Delegates Rohrbach, D. Jeffries, Summers, Reed, Tully, Pack, G. Ward, Bates, Worrell, Rowan, and Jennings

[Introduced January 21, 2022; Referred to the Committee on Health and Human Resources then the Judiciary]

A BILL to amend and reenact §16-19-9, §16-19-14 and §16-19-22 of the Code of West Virginia, 1931, as amend; and to amend and reenact §61-12-3 of said code, all relating to anatomical gifts; authorizing the Department of Health and Human Resources as guardian to make an anatomical gift without a court order; clarifying the duties of procurement organization with regard to state medical examiner;  requiring the state medical examiner to cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts; authorizing procurement organizations to conduct a test or examination which is reasonably necessary to evaluate the medical suitability of the body or part for its intended purpose; requiring a prosecuting attorney who denies the release of a body or part that is the subject of an anatomical gift to consult with the procurement organization about the proposed recovery; and authorizing the state’s chief medical examiner to enter into contracts and agreements with a procurement organization when necessary to facilitate the efficient and economical recovery of anatomical gifts.

Be it enacted by the Legislature of West Virginia:


CHAPTER 16. PUBLIC HEALTH.

ARTICLE 19. ANATOMICAL GIFT ACT.

§16-19-9. Who may make anatomical gift of decedent's body or part.

(a) Unless barred by section seven or section eight of this article, an anatomical gift of a decedent’s body or part for purpose of transplantation, therapy, research or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:

(1) A person holding a medical power of attorney or another agent of the decedent at the time of death who could have made an anatomical gift under section four of this article immediately before the decedent's death;

(2) The spouse of the decedent, unless in the six (6) months prior to the decedent's death the spouse has lived separate and apart from the decedent in a separate place of abode without cohabitation an action for divorce is pending;

(3) Adult children of the decedent;

(4) The person acting as the guardian of the decedent at the time of death. If the guardian is the Department of Health and Human Resources, the department may make an anatomical gift of a decedent’s body or part for purpose of transplantation, therapy, research or education without a court order;

(5) An appointed health care surrogate;

(6) Parents of the decedent;

(7) Adult siblings of the decedent;

(8) Adult grandchildren of the decedent;

(9) Grandparents of the decedent; or

(10) An adult who exhibited special care and concern for the decedent; or

(11) A person authorized or obligated to dispose of the decedent’s body.

(b) If there is more than one member of a class entitled to make an anatomical gift, any member of the class may make the anatomical gift unless he or she, or a person to whom the anatomical gift may pass pursuant to section eleven of this section, knows of an objection by another member of the class. If an objection is known, the majority of the members of the same class must be opposed to the donation in order for the donation to be revoked. In the event of a tie vote, the attending physician or advanced nurse practitioner shall appoint a health care surrogate to decide whether to make an anatomical gift of the decedent's body or part for the purpose of transplantation, therapy, research or education the anatomical gift may proceed despite the objection by a member or members of a class.

(c) A person may not make an anatomical gift if, at the time of the decedent’s death, a person in a prior class is reasonably available to make or to object to the making of an anatomical gift.


§16-19-14. Rights and duties of procurement organization and others.

 (a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Division of Motor Vehicles and any donor registry it knows of for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.

(b) The Division of Motor Vehicles shall allow a procurement organization reasonable access to information in the division's records to ascertain whether an individual at or near death is a donor. The Commissioner of the Division of Motor Vehicles shall propose legislative rules for promulgation pursuant to §29A-3-1 et seq. of this code to facilitate procurement agencies' access to records pursuant to this subsection.

(c) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the prospective donor expressed a contrary intent.

(d) Unless prohibited by law, at any time after a donor's death, a person to whom a decedent's part passes under section eleven of this article may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.

(e) Unless prohibited by law, an examination under subsection (c) or (d) of this section may include an examination of all medical and dental records of the donor or prospective donor.

(f) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.

(g) Upon referral by a hospital under subsection (a) of this section, a procurement organization shall make a reasonable search for any person listed in section nine of this article having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended or revoked, it shall promptly advise the other person of all relevant information.

(h) Except as provided in and section twenty-two of this article, the rights of the person to whom a part passes under section eleven of this article are superior to the rights of all others. A person may accept or reject an anatomical gift, in whole or in part. Subject to the terms of the document of gift and this article, a person that accepts an anatomical gift of an entire body may allow embalming, burial or cremation, and use of remains in a funeral service. If the gift is of a part, the person to whom the part passes under section eleven of this article shall, upon the death of the donor and before embalming, burial or cremation, cause the part to be removed without unnecessary mutilation.

(i) Neither the physician or the physician assistant who attends the decedent at death nor the physician or the physician assistant who determines the time of death may participate in the procedures for removing or transplanting a part from the decedent.

(j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.

(k) A medical examiner shall cooperate with any procurement organization to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.

(l) A part may not be removed from the body of a decedent under a medical examiner’s jurisdiction for transplantation, therapy, research, or education, nor delivered to a person for research or education, unless the part is the subject of an anatomical gift.

(m) Upon the request of a procurement organization, the medical examiner shall release to the procurement organization the name, contact information, name of the next of kin, and available medical and social history of a decedent whose body is under the medical examiner’s jurisdiction. If the decedent’s body or part is medically suitable for transplantation, therapy, research, or education, the medical examiner shall release the post-mortem examination results to the procurement organization. The procurement organization may not make a subsequent disclosure of the post-mortem examination results or other information received from the medical examiner unless the subsequent disclosure is relevant to transplantation, therapy, research, or education.

(n) If a hospital refers an individual whose death is imminent or who has died in a hospital to an organ procurement organization, and 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 the individual:

(1) Has not indicated in any 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

(2) Has not indicated in any document an intention to deny making or refusing to make an anatomical gift; or

(3) Amended or revoked an anatomical gift in any document, 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 body part that is or may be the subject of an anatomical gift.

(o) Testing and examination conducted pursuant to subsection (n) 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 the provision of a ventilator or other life-sustaining measures, or a revocation or amendment to an anatomical gift.  The results of tests and examinations conducted pursuant to subsection (n) shall be used or disclosed only:

(1) To evaluate medical suitability for donation and to facilitate the donation process; and

(2) As otherwise required or permitted by law.

(p) A hospital may not withdraw or withhold any measures necessary to maintain the medical suitability of a body part that may be the subject of an anatomical gift until the organ procurement organization or designated requestor, as appropriate, has had the opportunity to advise the applicable persons under this article of the option to make an anatomical gift and has received or been denied authorization to proceed with recovery of the part.   

(q) Subject to the individual's wishes under §16-19-11(c)(3) of this code, after an individual’s death persons who may receive anatomical gift pursuant to §16-19-11 of this code may conduct any test or examination reasonably necessary to evaluate the medical suitability of the body or part for its intended purpose.

(r) The provisions of this section may not be construed to preclude a medical examiner from performing an investigation of a decedent under the medical examiner’s jurisdiction. 


§16-19-22. Facilitation of anatomical gift from decedent whose body is under jurisdiction of medical examiner.

(a) Except as provided in subsection (e) of this section, the medical examiner shall, upon request of a procurement organization, release to the procurement organization the name, contact information and available medical and social history of a decedent whose body is in the custody of the medical examiner. If the decedent's body or part is medically suitable for transplantation, therapy, research or education, the medical examiner shall release post-mortem examination results after being paid in accordance with the fee schedule established in rules to the procurement organization, subject to subsection (e) of this section. The procurement organization may make a subsequent disclosure of the post-mortem examination results or other information received from the medical examiner only if relevant to transplantation or therapy.

(b) The medical examiner may conduct a medicolegal examination by reviewing all medical records, laboratory test results, x-rays, other diagnostic results and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the medical examiner which the medical examiner determines may be relevant to the investigation.

(c) A person with any information requested by a medical examiner pursuant to subsection (b) of this section shall provide that information as soon as possible to allow the medical examiner to conduct the medicolegal investigation within a period compatible with the preservation of parts for the purpose of transplantation, therapy, research or education.

(d) If the medical examiner determines that a post-mortem examination is not required or that a post-mortem examination is required but that the recovery of the part that is the subject of an anatomical gift will not interfere with the examination, the medical examiner and procurement organization shall cooperate in the timely removal of the part from the decedent for the purpose of transplantation, therapy, research or education.

(e) If the decedent's death is the subject of a criminal investigation, the medical examiner may not release the body or part that is the subject of an anatomical gift or the social history, medical history or post-mortem examination results without the express authorization of the prosecuting attorney of the county having jurisdiction over the investigation

(f) If an anatomical gift of a part from the decedent under the jurisdiction of the medical examiner has been or might be made, but the medical examiner initially believes that the recovery of the part could interfere with the post-mortem investigation into the decedent's cause or manner of death, the medical examiner shall consult with the procurement organization about the proposed recovery. After the consultation, the medical examiner may allow deny the recovery at his or her discretion. The medical examiner may attend the removal procedure for the part before making a final determination not to allow the procurement organization to recover the part.

(g) (f) If the medical examiner denies recovery of the part, he or she shall:

(1) Provide the procurement organization with a written explanation of the specific reasons for not allowing recovery of the part; and

(2) Include in the medical examiner's records the specific reasons for denying recovery of the part.

(h) (g) If the medical examiner allows recovery of a part, the procurement organization shall, upon request, cause the physician or technician who removes the part to provide the medical examiner with a written report describing the condition of the part, a biopsy, a photograph or any other information and observations that would assist in the post-mortem examination.

(i) (h) A medical examiner who decides to be present at a removal procedure pursuant to subsection (f) of this section is entitled to reimbursement for the expenses associated with appearing at the recovery procedure from the procurement organization which requested his or her presence.

(j) (i) A medical examiner performing any of the functions specified in this section shall comply with all applicable provisions of article twelve, chapter sixty-one of this code.


CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 12. POSTMORTEM EXAMINATIONS.

§61-12-3. Office of chief medical examiner established; appointment, duties, etc., of chief medical examiner; assistants and employees; promulgation of rules.

(a) The office of chief medical examiner is hereby established within the division of health in the Department of Health and Human Resources. The office shall be directed by a chief medical examiner, who may employ pathologists, toxicologists, other forensic specialists, laboratory technicians, and other staff members, as needed to fulfill the responsibilities set forth in this article.

(b) All persons employed by the chief medical examiner shall be responsible to him or her and may be discharged for any reasonable cause. The chief medical examiner shall specify the qualifications required for each position in the office of chief medical examiner, and each position shall be subject to rules prescribed by the secretary of the Department of Health and Human Resources.

(c) The chief medical examiner shall be a physician licensed to practice medicine or osteopathic medicine in the State of West Virginia, who is a diplomat of the American board of pathology in forensic pathology, and who has experience in forensic medicine. The chief medical examiner shall be appointed by the director of the division of health to serve a five-year term unless sooner removed, but only for cause, by the Governor or by the director.

(d) The chief medical examiner shall be responsible to the director of the division of health Commissioner of the Bureau for Public Health in all matters except that the chief medical examiner shall operate with independent authority for the purposes of:

(1) The performance of death investigations conducted pursuant to section eight of this article;

(2) The establishment of cause and manner of death; and

(3) The formulation of conclusions, opinions or testimony in judicial proceedings.

(e) The chief medical examiner, or his or her designee, shall be available at all times for consultation as necessary for carrying out the functions of the office of the chief medical examiner.

(f) The chief medical examiner shall cooperate with procurement organizations as defined in §16-19-3 of this code to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education. The chief medical examiner may enter into contracts and agreements with a procurement organization when necessary to facilitate the efficient and economical recovery of anatomical gifts, including contracts or agreements authorizing persons approved or assigned by the procurement organization to perform a specific type of duty or duties at the office of the chief medical examiner.

(g) The Secretary of the Department of Health and Human Resources is hereby directed to propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code concerning:

(1) The proper conduct of medical examinations into the cause of death;

(2) The proper methods and procedures for postmortem inquiries conducted by county medical examiners and coroners;

(3) The examination of substances taken from human remains in order to determine the cause and manner of death; and

(4) The training and certification of county medical examiners and coroners; and

(5) The procedures necessary to maximize the recovery of anatomical gifts for the purpose of transplantation, therapy, research, or education.

(g) (h) The chief medical examiner is authorized to prescribe specific forms for record books and official papers which are necessary to the functions and responsibilities of the office of the chief medical examiner.

(h) (i) The chief medical examiner, or his or her designee, is authorized to order and conduct an autopsy in accordance with the provisions of this article and this code. The chief medical examiner, or his or her designee, shall perform an autopsy upon the lawful request of any person authorized by the provisions of this code to request the performance of the autopsy.

(i) (j) The salary of the chief medical examiner and the salaries of all assistants and employees of the office of the chief medical examiner shall be fixed by the Legislature from funds appropriated for that purpose. The chief medical examiner shall take an oath and provide a bond as required by law. Within the discretion of the director of the division of health Commissioner of the Bureau for Public Health, the chief medical examiner and his or her assistants shall lecture or instruct in the field of legal medicine and other related subjects to the West Virginia University or Marshall university school of medicine, the West Virginia school of osteopathic medicine, the West Virginia state police, other law-enforcement agencies and other interested groups.

 

NOTE: The purpose of this bill is to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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