Bar News - July 21, 2006
Elder Law: Organ Bank Counsel Outlines New Law, Agency’s Role
By: By John E. Laboe Secretary, Elder Law, Estate Planning and Probate Law Section
Alexandra Glazier, general counsel to the New England Organ Bank (NEOB) addressed the NHBA’s Elder Law, Estate Planning and Probate Law Section on June 6, 2006, to discuss the role of the NEOB and the importance of a properly prepared “document of gift” by the organ donor until SB 281-FN takes effect at the end of this month. The new law, among other things, recognizes a driver’s license organ donor designation as a legally effective document of gift, which is not currently the case.
The procurement, donation and use of organs and human tissue are regulated by the federal government. The federal regulatory entities involved are the Centers for Medicare and Medicaid Services (CMS), the Federal Drug Administration (FDA) and the United Network for Organ Sharing (UNOS, which regulates the “waiting list”). The actual procurement activity is conducted through public charitable §501(c)(3) entities called Organ Procurement Organizations (OPOs) and Tissue Procurement Organizations (TPOs). The NEOB is an OPO and it seeks to recover organs for the purpose of conducting organ/tissue transplants.
The NEOB is the exclusive OPO for the regional territory defined as the New England region. It is, therefore, the exclusive “keeper” of the waiting list for New Hampshire and the other five states in the region. NEOB’s mission statement includes these objectives: to maximize the recovery of organs and tissues for transplantation; and, to ensure fair and equitable allocation of organs and tissues.
Glazier explained that the level of organ procurement falls far short of the actual need in the Northeast region. There are currently 4,000 people on the waiting list for an organ transplant, and many people die waiting for an organ to be donated for them. In 2005, 30 people in New Hampshire alone died waiting for an organ.
Both legal and societal factors contribute to the shortfall in donated organs, she said. Fortunately, there is a new change in state law, SB 281-FN, which will amend RSA 260, RSA 263 and RSA 291-A to correct some of the legal barriers and impediments that have existed to realizing a higher volume of successful organ donations.
A shocking fact is that only 1 percent of all deaths are considered “qualified—medically” for organ donation. Stringent federal regulations govern the circumstances and criteria that must be satisfied before a would-be donor’s organs are medically acceptable. This makes every opportunity for a legally qualified donation inordinately precious.
Criteria for tissue donation for transplant are not as stringent as those for the donation of whole organs. Taken simplistically, the difference between organs versus tissue is that “tissue” refers to parts of, or segments of organs, or more “generic” tissue (for example, skin) that is not part of an organ.
Glazier emphasized that individuals should not take it upon themselves to presume that they are or would not be medically qualified to be donors. The decision as to “suitability for organ donation” is done at the time of death.
In response to a question from a section member, Glazier advised that the single most needed organ is the kidney. She stated further that when a donor is identified that is both medically qualified and legally cleared, the number of organs taken is usually three to four, but as many as six.
One of the key impediments to successful organ donation has been the absence or “presumed absence” of an available and legally reliable document of gift. Contrary to common perception and belief, the designation of organ donor on a would-be donor’s driver’s license is not an acceptable document of gift for purposes of the statute.
Consequently, the NEOB’s established policy is to presume that there is no document of gift available. (This problem is being remedied under SB 281-FN, effective July 31, 2006.) The historic use of “donor cards” is entirely obsolete.
With the presumption of “no document of gift,” the NEOB then proceeds to solicit “first-person consent” from the appropriate family member(s). Rather than have the would-be donor’s intention be determined by the organ donor symbol on his/her driver’s license, the entire issue is put into the hands (and control) of another family member. NEOB’s experience has demonstrated that approximately 50 percent of the time the family refuses to consent to the organ donation—without regard to the donor’s intent. This has produced a situation in the entire New England region in which there are only approximately 250 organ donors per year (1,200 tissue donors per year). Glazier referenced a recent social study on these issues and mentioned the interesting finding from the study that women were more likely to consent to the donation of their deceased husband’s organs and/or tissue, than were the men to consent to the donation of their deceased wife’s organs and/or tissue.
Essentially, SB 281-FN will remedy this dilemma and construe the driver’s license designation as a legally effective document of gift, thereby alleviating the need to seek family consent to an otherwise legally enforceable election of organ gift. The new presumption will be that the driver’s license symbol (and the procedures and related registry and recordkeeping) will be entirely effective to achieve the organ gift.
Under the new statutory schema, once an election to donate has been made, the donor’s name is entered into the “registry.” Upon an individual’s death, hospitals are federally mandated to contact the NEOB which will then check the registry. If the individual’s name is in the registry, the organs are then legally available to be harvested for donated use. Glazier expected that all current donors would have to (or at least should) re-register after July 31, 2006 to be treated under these new rules.
Glazier recommended the inclusion of specific language in the HCPOA (Health Care Power of Attorney) clearly expressing the intention of the gift—or conversely, the intention not to make such a gift. The donor’s intention with regard to a donation for purposes of research as opposed to transplantation is a matter of important focus and concern.
Use of organs for research for many people would evoke an entirely different (though not unrelated) set of concerns. For example, many people would want their gifts to be solely for the purpose of transplantation. These distinctions of organ vs. tissue, and transplant vs. research may be important to some people and can be dealt with in detail in the HCPOA.
Attention was drawn to the use of the NH Dept. of Motor Vehicles’ change-of-address form to indicate someone’s desire to be an organ donor. This is an effective way to make the gift legally effective. Glazier advised that the new law would not solve the past problem on a retroactive basis, and that completing the change-of-address form electing anew to be an organ donor would, perhaps, be the best way to be assured of being properly added to the registry (or bank) of donors.
For more information on this subject, contact Alexandra Glazier at firstname.lastname@example.org.