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Bill Analysis

Legislative Service Commission


Sub. H.B. 392
125th General Assembly
(As Passed by the General Assembly)

ACT SUMMARY CONTENT AND OPERATION
Background
Anatomical gifts
Ohio law defines "anatomical gift" as a donation of all or part of a human body to take effect upon or after death (R.C. 2108.01).  Any individual of sound mind can make an anatomical gift, but if the individual is under age 18, the document creating the gift must be signed by a parent or guardian (R.C. 2108.02).  The following persons or entities may become donees of anatomical gifts (R.C. 2108.03): Living wills
A living will (referred to under Ohio law as "a declaration") is a legal document governing the use or continuation, or the withholding or withdrawal, of life-sustaining treatment[1] to an individual (referred to as "a declarant").  For a declaration to be valid, all of the following requirements must be met: Depending on whether the declarant intends the declaration to apply when the declarant is in a terminal condition, in a permanently unconscious state, or in either of these circumstances, the declarant's declaration must use either or both of the terms "terminal condition" and "permanently unconscious state" and must define or otherwise explain these terms in a manner that is substantially consistent with the definitions of these terms in Ohio law.[2]  (R.C. 2133.02.)
Provision for anatomical gifts
The act preserves the ability of an individual to make an anatomical gift by all of the following means available under previous law: The act adds that an individual may make an anatomical gift of all or part of the individual's body by specifying the intent to make an anatomical gift in a space provided in the individual's declaration.  When an individual declares the intent to make an anatomical gift in the individual's declaration, the act provides that the declaration serves as a document other than a will in which a declarant makes an anatomical gift, the declaration is considered as having satisfied the requirements for making an anatomical gift in a document other than a will, and the declaration is subject to the anatomical gift law to the extent the declaration specifies the intent of the individual to make an anatomical gift.  (R.C. 2108.04(B)(3) and 2133.16(B).)
Form for anatomical gifts
The act requires a printed declaration form to include a section, before the signature line, specifically designed for an individual to declare the individual's intent to make an anatomical gift (R.C. 2133.07(B)).  The anatomical gift section of the declaration must conform substantially to a form provided for in the act (a reproduction of this form appears in COMMENT 1, below) (R.C. 2108.10(A) and 2133.07(B)).
Under the act, a printed declaration form must also include a donor registry enrollment form.  The enrollment form must be a separate page or a portion of a page that the individual can detach and send to the Bureau of Motor Vehicles (BMV) to be included in the registry the BMV maintains to identify people who have agreed to make anatomical gifts through a designation on the person's driver's license (the donor registry).  The donor registry enrollment form must conform substantially to a form provided in the act (a reproduction of this form appears in COMMENT 2, below).  (R.C. 2133.07(C).)  The act provides that any person who sends the enrollment form to the BMV requesting inclusion in the donor registry must be included (R.C. 2108.18(A)(2)).
The act specifies that the changes made to the Revised Code sections related to printed declaration forms take effect 90 days after the act's effective date (Section 3).  The act also provides that those changes do not affect the validity of a declaration executed before the effective date of the changes (Section 4).
Amendment and revocation of anatomical gifts
Continuing law
Continuing law permits an individual to amend or revoke an anatomical gift.  If the will, card, or other document of anatomical gift has been delivered to a specified donee, the donor may amend or revoke the anatomical gift by any of the following means: If a document of anatomical gift has not been delivered to a donee, the donor may revoke the document of gift in any manner specified above or by destruction, cancellation, or mutilation of the document and all executed copies of it.
If an anatomical gift has been made by will, the gift may be amended or revoked in any manner for the amendment or revocation of anatomical gifts when the document of gift has been delivered to a donee (see above) or in the manner provided for amendment or revocation of wills.[3]  (R.C. 2108.06, not in the act.)
The act
The act provides that an individual who makes an anatomical gift through a declaration may amend the anatomical gift under the circumstances and by any of the means provided for individuals who have already delivered a will, card, or other document of anatomical gift to a donee (see above).  An individual who makes an anatomical gift through a declaration may revoke the gift under the circumstances and by any of the means provided for individuals who have already delivered a will, card, or other document of anatomical gift to a donee or by cancellation of the individual's intent to make the anatomical gift as specified in the declaration.  (R.C. 2133.16(C) and (D).)[4]
Refusal to make an anatomical gift
Under the act, an individual may refuse to make an anatomical gift of all or part of the individual's body by specifying the intent of the individual to refuse to make the anatomical gift in a space provided in the declaration.  (R.C. 2133.16(E).)
No requirement to make or amend an anatomical gift
The act expressly states that a declarant is not required to make, amend, or refuse to make an anatomical gift in a space provided in a declaration or otherwise limited by the act in making, amending, or refusing to make an anatomical gift.  The failure of a declarant to indicate in the space provided in the declaration the intent of the declarant to make an anatomical gift or to refuse to make an anatomical gift does not create a presumption of the intent of the declarant with respect to the matter of making or refusing to make an anatomical gift.  (R.C. 2133.16(F).)
Second Chance Trust Fund Advisory Committee
Under prior law, the Second Chance Trust Fund Advisory Committee[5] had 11 members, including a representative of an Ohio organ procurement organization that is a member of the Organ Procurement and Transplantation Network, a representative of an Ohio tissue bank that is an accredited member of the American Association of Tissue Banks and is not affiliated with an organ procurement association, a representative of an Ohio eye bank that is certified by the Eye Bank Association of America and is not affiliated with an organ procurement association, and a representative of the Ohio Hospital Association.
The Committee members representing an Ohio organ procurement organization, tissue bank, or eye bank had to be from different organ procurement and distribution service areas designated by the U.S. Secretary of Health and Human Services.  (R.C. 2108.17.)
The act makes changes to the membership requirements for the Committee.  It eliminates the requirement that the tissue bank and eye bank committee members not be affiliated with an organ procurement organization and the requirement that the organ procurement organization, tissue bank, and eye bank members be from different organ procurement and distribution service areas.  In addition, the act requires that the member representing the Ohio Hospital Association also be representative of a hospital that has either a transplant program or a Level I or Level II trauma center.
The act expands the Committee's membership from 11 to 13 members.  The two new members are to be affiliated with recovery agencies or members of the public.  The Director of Health is to appoint the new members.  The new members, as is the case for the other non-legislative members of the Committee, are not to serve more than two consecutive terms.
Under the act, members, except the legislative members, must be geographically and demographically representative of the state.  The act provides that no more than three of these members can be affiliated with the same recovery agency or group of recovery agencies.  The act requires that recovery agencies that recover only one type of organ, tissue, or part, as well as those that recover more than one type of organ, tissue, or part, be represented.  (R.C. 2108.17.)
COMMENT 1
ANATOMICAL GIFT (optional)
Upon my death, the following are my directions regarding donation of all or part of my body:
In the hope that I may help others upon my death, I hereby give the following body parts:
____________________________________________________________________________________________________________________________________
for any purpose authorized by law:  transplantation, therapy, research, or education.
If I do not indicate a desire to donate all or part of my body by filling in the lines above, no presumption is created about my desire to make or refuse to make an anatomical gift.
COMMENT 2
DONOR REGISTRY ENROLLMENT FORM  (optional)
To register for the Donor Registry, please complete this form and send it to the Ohio Bureau of Motor Vehicles.  This form must be signed by two witnesses.  If the donor is under age eighteen, one witness must be the donor's parent or legal guardian.
. . .  Please include me in the donor registry.
. . .  Please remove me from the donor registry.
Full Name (please print) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Mailing address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Phone . . . . . . . . . . . . . . . . . . . . . . . . .       Date of Birth . . . . . . . . . . . . . . . . . . . . . .
Driver License or ID Card No.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Social Security No.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . .  On my death, I make an anatomical gift of my organs, tissues, and eyes for any purpose authorized by law.
OR
. . .  On my death, I make an anatomical gift of the following specified organs, tissues, or eyes for any purposes indicated below.
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Purposes:
      . . .  Any purpose authorized by law
         . . .  Transplantation
         . . .  Therapy
         . . .  Research
         . . .  Education
         . . .  Advancement of medical science
         . . .  Advancement of dental science
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of donor registrant                                   Date
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Witness signature
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Witness signature
HISTORY

ACTIONDATEJOURNAL ENTRY
    Introduced
02-03-04p.         1592
    Reported, H. Juvenile &
    Family Law

04-27-04

p.         1792
    Passed House (96-0)
05-05-04pp.       1843-1844
    Reported, S. Health, Human
    Services, & Aging

05-26-04

p.         2044
    Passed Senate (31-0)
05-26-04pp.       2051-2052
    House concurred in Senate amendments (98-0)

05-26-04

pp.       2079-2080




04-hb392-125.doc/kl




* The Legislative Service Commission had not received formal notification of the effective date at the time this analysis was prepared.  Additionally, the analysis may not reflect action taken by the Governor.
[1] "Life-sustaining treatment" means any medical procedure, treatment, intervention, or other measure that, when administered to a qualified patient or other patient, will serve principally to prolong the process of dying (R.C. 2133.01(Q)).
[2] "Terminal condition" means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a declarant's or other patient's attending physician and one other physician who has examined the declarant or other patient, both of the following apply:  (1) there can be no recovery, and (2) death is likely to occur within a relatively short time if life-sustaining treatment is not administered (R.C. 2133.01(AA)).  "Permanently unconscious state" means a state of permanent unconsciousness in a declarant or other patient that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by the declarant's or other patient's attending physician and one other physician who has examined the declarant or other patient, is characterized by both of the following:  (1) irreversible unawareness of one's being and environment, and (2) total loss of cerebral cortical functioning, resulting in the declarant or other patient having no capacity to experience pain or suffering (R.C. 2133.01(U)).
[3] R.C. 2107.084 and R.C. 2107.33 govern the modification and revocation of wills.
[4] If the will, card, or other document of gift or an executed copy thereof, has been delivered to a specified donee, the donor may amend or revoke the anatomical gift by:  (1) the execution and delivery to the donee of a signed statement, (2) an oral statement made in the presence of two persons and communicated to the donee, (3) a statement during a terminal illness or injury addressed to the physician attending the donor and communicated to the donee, and (4) a signed card or document found on the donor's person or in the donor's effects.
The donor may revoke any document of gift which has not been delivered to the donee, in any manner specified in the preceding paragraph or by destruction, cancellation, or mutilation of the document and all executed copies of it.  Any anatomical gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills or as provided in the preceding paragraph.  (R.C. 2108.06.)
[5] The Committee's duties include all of the following: (1) making recommendations to the Director of Health for anatomical gift related projects for funding from the Second Chance Trust Fund, (2) consulting with the Registrar of Motor Vehicles in formulating proposed rules regarding the BMV donor registry and anatomical gift designations, (3) as requested, consulting with the Registrar or Director on other matters related to organ donation, and (4) approving brochures, written materials, and electronic media regarding anatomical gifts and anatomical gift procedures for use in driver training schools (R.C. 2108.17(H)).