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Chapter 16     Entire Code
‹ Chapter 15  |  Chapter 17 › Printer Friendly Versions
Chapter 16  |  Article 16 - 19  |  Section 22

1 - STATE PUBLIC HEALTH SYSTEM

1A - UNIFORM CREDENTIALING FOR HEAL

1B - SKILLED NURSING FACILITIES FOR

1C - HEALTH CARE PROVIDER TRANSPARE

2 - LOCAL BOARDS OF HEALTH

2A - ALTERNATIVE METHOD OF ORGANIZI

2B - FAMILY PLANNING AND CHILD SPAC

2C - HOME HEALTH SERVICES

2D - CERTIFICATE OF NEED

2E - BIRTHING CENTERS

2F - PARENTAL NOTIFICATION OF ABORT

2G - SPECIAL SUPPLEMENTARY FOOD PRO

2H - PRIMARY CARE SUPPORT PROGRAM

2I - WOMEN'S RIGHT TO KNOW ACT

2J - PREVENTIVE CARE PILOT PROGRAM

2K - PROGRAMS OF ALL-INCLUSIVE CARE

3 - PREVENTION AND CONTROL OF COMMU

3A - REPOSITORY OF INFORMATION ON M

3B - PERTUSSIS

3C - AIDS-RELATED MEDICAL TESTING A

3D - TUBERCULOSIS TESTING, CONTROL,

4 - SEXUALLY TRANSMITTED DISEASES

4A - PRENATAL EXAMINATION

4B - AUTOPSIES ON BODIES OF DECEASE

4C - EMERGENCY MEDICAL SERVICES ACT

4D - AUTOMATED EXTERNAL DEFIBRILLAT

4E - UNIFORM MATERNAL SCREENING ACT

5 - VITAL STATISTICS

5A - CANCER CONTROL

5B - HOSPITALS AND SIMILAR INSTITUT

5C - NURSING HOMES

5D - ASSISTED LIVING RESIDENCES

5E - REGISTRATION AND INSPECTION OF

5F - HEALTH CARE FINANCIAL DISCLOSU

5G - OPEN HOSPITAL PROCEEDINGS

5H - CHRONIC PAIN CLINIC LICENSING

5I - HOSPICE LICENSURE ACT

5J - CLINICAL LABORATORIES QUALITY

5K - EARLY INTERVENTION SERVICES FO

5L - LONG-TERM CARE OMBUDSMAN PROGR

5M - OSTEOPOROSIS PREVENTION EDUCAT

5N - RESIDENTIAL CARE COMMUNITIES

5O - MEDICATION ADMINISTRATION BY U

5P - SENIOR SERVICES

5Q - THE JAMES TIGER MORTON CATASTR

5R - THE ALZHEIMER'S SPECIAL CARE S

5S - OLDER WEST VIRGINIANS ACT

5T - CARE HOME ADVISORY BOARD

5U - ARTHRITIS PREVENTION EDUCATION

5V - EMERGENCY MEDICAL SERVICES RET

5W - WEST VIRGINIA OFFICIAL PRESCRI

6 - HOTELS AND RESTAURANTS

7 - PURE FOOD AND DRUGS

8 - ELECTROLOGISTS

8A - NARCOTIC DRUGS

8B - DANGEROUS DRUGS ACT

9 - OFFENSES GENERALLY

9A - TOBACCO USAGE RESTRICTIONS

9B - IMPLEMENTING TOBACCO MASTER SE

9C - STATE TOBACCO GROWERS' SETTLEM

9D - ENFORCEMENT OF STATUTES IMPLEM

9E - DELIVERY SALES OF TOBACCO

9F - COUNTERFEIT CIGARETTES

10 - UNIFORM DETERMINATION OF DEAT

11 - SEXUAL STERILIZATION

12 - SANITARY DISTRICTS FOR SEWAGE

13 - SEWAGE WORKS AND STORMWATER W

13A - PUBLIC SERVICE DISTRICTS

13B - COMMUNITY IMPROVEMENT ACT

13C - DRINKING WATER TREATMENT REV

13D - REGIONAL WATER AND WASTEWATE

13E - COMMUNITY ENHANCEMENT ACT

14 - BARBERS AND COSMETOLOGISTS

15 - STATE HOUSING LAW

16 - HOUSING COOPERATION LAW

17 - NATIONAL DEFENSE HOUSING

18 - SLUM CLEARANCE

20 - AIR POLLUTION CONTROL

21 - BLOOD DONATIONS

22 - DETECTION AND CONTROL OF PHEN

22A - TESTING OF NEWBORN INFANTS F

22B - BIRTH SCORE PROGRAM

23 - TRANSFUSION OF BLOOD; TRANSPL

24 - STATE HEMOPHILIA PROGRAM

25 - DETECTION OF TUBERCULOSIS, HI

26 - WEST VIRGINIA SOLID WASTE MAN

27 - STORAGE AND DISPOSAL OF RADIO

27A - BAN ON CONSTRUCTION OF NUCLE

28 - ASSISTANCE TO KOREAN AND VIET

29 - HEALTH CARE RECORDS

29A - WEST VIRGINIA HOSPITAL FINAN

29B - HEALTH CARE AUTHORITY

29C - INDIGENT CARE

29D - STATE HEALTH CARE

29E - LEGISLATIVE OVERSIGHT COMMIS

29F - UNINSURED AND UNDERINSURED P

29G - WEST VIRGINIA HEALTH INFORMA

29H - INTERAGENCY HEALTH COUNCIL

29I - WEST VIRGINIA HEALTH CARE AU

30 - WEST VIRGINIA HEALTH CARE DEC

30A - MEDICAL POWER OF ATTORNEY

30B - HEALTH CARE SURROGATE ACT

30C - DO NOT RESUSCITATE ACT

31 - COMMUNITY RIGHT TO KNOW

32. ASBESTOS ABATEMENT

33 - BREAST AND CERVICAL CANCER PR

34 - LICENSURE OF RADON MITIGATORS

35 - LEAD ABATEMENT

36 - NEEDLESTICK INJURY PREVENTION

37 - BODY PIERCING STUDIO BUSINESS

38 - TATTOO STUDIO BUSINESS

39 - PATIENT SAFETY ACT

40 - STATEWIDE BIRTH DEFECTS INFOR

41 - ORAL HEALTH IMPROVEMENT ACT

42 - COMPREHENSIVE BEHAVIORAL HEAL

43 - ENGINE COOLANT AND ANTIFREEZE

44 - THE PULSE OXIMETRY NEWBORN TE

45 - TANNING FACILITIES

WVC 16- CHAPTER 16. PUBLIC HEALTH.
WVC 16 - 19 - ARTICLE 19. ANATOMICAL GIFT ACT.

WVC 16 - 19 - 1 §16-19-1. Short title.
This article may be cited as the "Revised Anatomical Gift Act."

WVC 16 - 19 - 2 §16-19-2. Applicability.
This article applies to an anatomical gift or to an amendment to, revocation of or refusal to make an anatomical gift, whenever made.

WVC 16 - 19 - 3 §16-19-3. Definitions.
As used in this article:

(1) "Adult" means an individual who is at least eighteen (18) years of age.

(2) "Agent" means an individual:

(A) Authorized by a medical power of attorney to make health care decisions on behalf of a prospective donor; or

(B) Expressly authorized by any other record signed by the donor to make an anatomical gift on his or her behalf.

(3) "Anatomical gift" means a donation of all or part of a human body, to take effect after the donor's death, for the purpose of transplantation, therapy, research or education.

(4) "Authorized person" means a person other than the donor who is authorized to make an anatomical gift of the donor's body or part by section four or section nine of this article.

(5) "Certification of death" means a written pronouncement of death by an attending physician. Certification is required before an attending physician can allow removal of any part from the decedent's body for transplant purposes.

(6) "Decedent" means a deceased individual whose body is or may be the source of an anatomical gift. The term "decedent" includes a stillborn infant and, subject to restrictions imposed by law other than this article, a fetus.

(7) "Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent or guardian of or another adult who exhibited special care and concern for an individual who has made, amended, revoked or refused to make an anatomical gift. The term "disinterested witness" does not include a person to whom an anatomical gift may pass pursuant to section eleven of this article.

(8) "Document of gift" means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a driver's license, identification card or donor registry.

(9) "Donor" means an individual whose body or part is the subject of an anatomical gift.

(10) "Donor registry" means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.

(11) "Driver's license" means a license or permit issued by the Division of Motor Vehicles to operate a vehicle.

(12) "Eye bank" means a person licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage or distribution of human eyes or portions of human eyes.

(13) "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health or welfare of an individual. The term "guardian" does not include a guardian ad litem.

(14) "Hospital" means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state or a subdivision of a state.

(15) "Identification card" means an identification card issued by the Division of Motor Vehicles pursuant to section one, article two, chapter seventeen-b of this code.

(16) "Know" means to have actual knowledge. It does not include constructive notice and other forms of imputed knowledge.

(17) "Medical examiner" means an individual appointed pursuant to article twelve, chapter sixty-one of this code to perform death investigations and to establish the cause and manner of death. The term "medical examiner" includes any person designated by the medical examiner to perform any duties required by this article.

(18) "Minor" means an individual who is under eighteen (18) years of age.

(19) "Organ procurement organization" means a nonprofit entity designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization pursuant to 42 U.S.C. §273(b).

(20) "Parent" means another person's natural or adoptive mother or father whose parental rights have not been terminated by a court of law.

(21) "Part" means an organ, an eye or tissue of a human being. The term does not include the whole body.

(22) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(23) "Physician" means an individual authorized to practice medicine or osteopathy under the law of any state.

(24) "Physician assistant" has the meaning provided in section sixteen, article three, chapter thirty of this code.

(25) "Procurement organization" means an eye bank, organ procurement organization or tissue bank.

(26) "Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research or education. The term "prospective donor" does not include an individual who has made a refusal.

(27) "Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.

(28) "Recipient" means an individual into whose body a decedent's part has been or is intended to be transplanted.

(29) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(30) "Revocation" means the affirmative declaration of the potential donor's withdrawal of their decision to make or not make a document of gift. It does not have the same meaning as a refusal but only establishes that the potential donor chooses not to make an affirmative declaration of their wishes.

(31) "Refusal" means a record created under section seven of this article that expressly states an individual's intent to bar other persons from making an anatomical gift of his or her body or part.

(32) "Sign" means to execute or adopt a tangible symbol or attach to or logically associate with the record an electronic symbol, sound or process, with the present intent to authenticate or adopt a record.

(33) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(34) "Surrogate" means an individual eighteen years of age or older who is reasonably available, is willing to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care decisions and is identified or selected by the attending physician or advanced nurse practitioner in accordance with the provisions of article thirty of this chapter as the person who is to make those decisions in accordance with the provisions of this article.

(35) "Technician" means an individual qualified to remove or process parts by an organization that is licensed, accredited or regulated under federal or state law. The term "technician" includes an enucleator, i.e., an individual who removes or processes eyes or parts of eyes.

(36) "Tissue" means a portion of the human body other than an organ or an eye. The term "tissue" does not include blood unless the blood is donated for the purpose of research or education.

(37) "Tissue bank" means a person that is licensed, accredited or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage or distribution of tissue.

(38) "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.

WVC 16 - 19 - 3 A §16-19-3a. Recovery of corneas; conditions; liability of medical examiner.

(a) In any case where a patient is in need of corneal tissue for a transplant, the chief medical examiner, assistant medical examiner, regional pathologist or any other person designated to perform an autopsy in accordance with article twelve, chapter sixty-one of this code, may provide a cornea for transplant, under rules, regulations and procedures established by the chief medical examiner, upon the request of the medical eye bank of West Virginia, incorporated, under the following conditions:

(1) The body of the decedent having a suitable cornea for the transplant is under the jurisdiction of the chief medical examiner and an autopsy is required, in accordance with article twelve, chapter sixty-one of this code;

(2) The decedent's next of kin makes no objection; and

(3) Transplanting of the cornea will not interfere with the course of any subsequent investigation or autopsy or alter the postmortem facial appearance.

(b) Neither the chief medical examiner, any assistant medical examiner, regional pathologist or any other person designated to perform an autopsy in accordance with section ten, article twelve, chapter sixty-one of this code and who provides a cornea in accordance with the provisions of this section, nor the medical eye bank of West Virginia, incorporated, shall be liable for any civil damages if the decedent's next of kin subsequently contends that his authorization was required.

WVC 16 - 19 - 4 §16-19-4. Who may make anatomical gift before donor's death.
Subject to section eight of this article, an anatomical gift may be made during the life of the donor for the purpose of transplantation, therapy, research or education by:

(1) The donor, if the donor is an adult;

(2) The donor, if the donor is a minor and is emancipated or sixteen (16) years of age or older;

(3) An agent of the donor, unless the medical power of attorney or other record prohibits the agent from making an anatomical gift;

(4) A parent of the donor, if the donor is an unemancipated minor; or

(5) The donor's guardian.

WVC 16 - 19 - 4 A §16-19-4a. Request for consent to an anatomical gift.

(a) Where, based on accepted medical standards, a patient is a suitable candidate for organ or tissue donation, the person in charge of a hospital, or his or her designated representative other than a person connected with the determination of death, shall at the time of death request persons listed in this section for consent to an anatomical gift. In the order of priority stated and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, any of the following persons may give all or any part of the decedent's body for any purpose specified in this article:

(a) The spouse;

(b) An adult son or daughter;

(c) Either parent;

(d) An adult brother or sister.

(e) A guardian of the person of the decedent at the time of his death.

Where the person in charge of a hospital or his or her designee has received actual notice of opposition from any of the persons named in this subsection or where there is otherwise reason to believe that an anatomical gift is contrary to the decedent's religious beliefs, such gift of all or any part of the decedent's body shall not be requested. Where a donation is requested, consent or refusal need only be obtained from the person or persons in the highest priority class available.

(b) Where a donation is requested, the person in charge of a hospital or his designated representative shall complete a certificate of request for an anatomical gift, on a form supplied by the hospital. Said certificate shall include a statement to the effect that a request for consent to an anatomical gift has been made, and shall further indicate thereupon whether or not consent was granted, the name of the person granting or refusing the consent, and his or her relationship to the decedent. Upon completion of the certificate, said person shall attach the certificate of request for an anatomical gift to the death certificate.

(c) A gift made pursuant to the request required by this section shall be executed pursuant to applicable provisions of article nineteen of this chapter.

(d) The director of health shall establish regulations concerning the training of hospital employees who may be designated to perform the request, and the procedures to be employed in making it.

(e) The director of health shall establish such additional regulations as are necessary for the implementation of this section.

(f) No hospital or person in charge of a hospital or his or her designated representatives shall be liable for damages for any action taken in good faith in the administering of the provisions of the article.

WVC 16 - 19 - 5 §16-19-5. Manner of making anatomical gift before donor's death.
(a) A donor may make an anatomical gift:

(1) By authorizing a statement or symbol to be imprinted on his or her driver's license or identification card indicating that he or she has made an anatomical gift;

(2) In a will;

(3) During a terminal illness or injury, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness; or

(4) As provided in subsection (b) of this section.

(b) (1) A donor or a person authorized by section four of this article may make a gift by:

(A) A donor card or other record signed by the donor or the authorized person; or

(B) Authorizing a statement or symbol indicating that the donor has made an anatomical gift to be included on a donor registry.

(2) If the donor or the authorized person is physically unable to sign a record, another individual may sign at the direction of the donor or the authorized person if the document of gift:

(A) Is witnessed and signed by at least two adults, at least one of whom is a disinterested witness; and

(B) Contains a statement that it has been signed and witnessed as required by paragraph (A) of this subdivision.

(c) Revocation, suspension, expiration or cancellation of a driver's license or identification card upon which an anatomical gift is indicated does not invalidate the gift.

(d) An anatomical gift made by will takes effect upon the donor's death regardless of whether the will is probated. Invalidation of the will after the donor's death does not invalidate the gift.

WVC 16 - 19 - 6 §16-19-6. Amending or revoking anatomical gift before donor's death.
(a) Subject to section eight of this article, a donor or a person authorized pursuant to section four of this article may amend or revoke an anatomical gift by:

(1) (A) A record signed and dated by the donor or the authorized person.

(B) If the donor or the authorized person is physically unable to sign a record, another individual may sign at the direction of the donor or the authorized person if the document of gift:

(i) Is witnessed and signed by at least two adults, at least one of whom is a disinterested witness; and

(ii) Contains a statement that it has been signed and witnessed as required by subparagraph (i) of this paragraph; or

(2) A later-executed document of gift that amends or revokes a previous anatomical gift, or portion of an anatomical gift, either expressly or by inconsistency.

(b) Subject to section eight of this article, a donor or a person authorized by section four of this article may revoke an anatomical gift by destroying or cancelling the document of gift, or the relevant portion of the document of gift, with the intent to revoke the gift.

(c) During a terminal illness or injury, a donor may amend or revoke an anatomical gift that was not made in a will by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness.

(d) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (a) of this section.

WVC 16 - 19 - 7 §16-19-7. Refusal to make anatomical gift; effect of refusal.
(a) An individual may express his or her refusal to make an anatomical gift of his or her body or body parts by:

(1) A record signed by the individual. If the individual is physically unable to sign, another person acting at the direction of the individual may sign if the refusal:

(A) Is witnessed and signed by at least two adults, at least one of whom is a disinterested witness, at the request of the individual; and

(B) Contains a statement that it has been signed and witnessed as provided in paragraph (A) of this subdivision;

(2) The individual's will, regardless of whether the will is admitted to probate or invalidated after the individual's death; or

(3) During a terminal illness or injury of the individual, any form of communication made by the individual addressed to at least two adults, at least one of whom is a disinterested witness.

(b) An individual who has made a refusal may amend or revoke the refusal:

(1) In the manner provided in subsection (a) of this section for making a refusal;

(2) By subsequently making an anatomical gift pursuant to section five of this article that is inconsistent with the refusal; or

(3) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.

(c) Except as otherwise provided in section eight of this article, in the absence of an express, contrary indication set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of his or her body or part bars all other persons from making an anatomical gift of the individual's body or part.

WVC 16 - 19 - 7 A §16-19-7a. Prohibition of sales and purchases of human organs.

It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer for valuable consideration any human organ for use in human transplantation. The term human organ means the human kidney, liver, heart, lung, bone marrow, and any other human organ or tissue as may be designated by the director of health but shall exclude blood. The term "valuable consideration" does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ, or expenses incurred by nonprofit agencies or corporations to recover expenses incurred while offering services related to the location, maintenance and distribution of said human organs, or expenses incurred by nonprofit agencies or corporations to recover expenses incurred while offering services related to the location, maintenance and distribution of said human organs. Any person who violates this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars.

WVC 16 - 19 - 8 §16-19-8. Preclusive effect of anatomical gift, amendment, or revocation.
(a) Except as otherwise provided in subsections (g) and (f) of this section, in the absence of an express, contrary indication by the donor who has made or amended an anatomical gift, a person other than the donor is barred from making, amending or revoking an anatomical gift of the donor's body or part.

(b) If an authorized person makes an unrevoked anatomical gift or an amendment to an anatomical gift of the donor's body or part, no other person may make, amend or revoke the anatomical gift after the donor's death.

(c) A revocation of an anatomical gift by the donor or by another individual who is authorized to act on behalf of the donor under any section of this Act, is not a refusal. Following the revocation, the donor, or any person authorized by any section of this act to act on behalf of the donor before the donor's death, or any person authorized to act on behalf of the decedent after the decedent's death, may subsequently make an anatomical gift of the body or part thereof.

(d) In the absence of an express, contrary indication by the donor or the person authorized to make an anatomical gift under section four of this article, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.

(e) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under section four of this article, an anatomical gift of a part for one purpose is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under section five or section ten of this article.

(f) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part.

WVC 16 - 19 - 9 §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;

(3) Adult children of the decedent;

(4) The person acting as the guardian of the decedent at the time of death;

(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.

(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.

(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.

WVC 16 - 19 - 10 §16-19-10. Manner of making, amending, or revoking anatomical gift of decedent's body or part.
(a) A person authorized to make an anatomical gift under section nine of this article may do so by:

(1) A document of gift signed by the authorized person; or

(2) An oral communication by the authorized person that is electronically recorded or is contemporaneously reduced to a record and signed by the person receiving the oral communication.

(b) An anatomical gift by a person authorized by section nine of this article may be amended or revoked orally or in writing by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by the authorized person may be revoked only if a majority of the members of the same class are opposed to the anatomical gift. In the event of a tie vote, a health care surrogate shall be appointed to decide whether to honor, amend or revoke the anatomical gift of the decedent's body or part.

(c) A revocation under subsection (b) of this section is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital or physician or technician knows of the revocation.

WVC 16 - 19 - 11 §16-19-11. Persons who may receive anatomical gift; purpose of anatomical gift.
(a) An anatomical gift may be made to the following persons named in the document of gift:

(1) A hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education;

(2) An individual designated by the person making the anatomical gift as the recipient of the part; or

(3) An eye bank or tissue bank.

(b) If an anatomical gift is made to an individual under subdivision (2), subsection (a) of this section and the donated body part cannot be transplanted into the named individual, in the absence of an express, contrary indication by the person making the anatomical gift, the part passes pursuant to subsection (g) of this section;

(c) If a document of gift makes an anatomical gift and identifies the purpose for which the gift may be used but does not designate a person described in subsection (a) of this section to receive the gift, the following rules apply:

(1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank.

(2) If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank.

(3) If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ.

(4) If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.

(d) If the document of gift states more than one purpose of an anatomical gift but does not specify the priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.

(e) If the document of gift does not identify the purpose of the anatomical gift, the gift may be used only for transplantation or therapy and passes in accordance with subsection (g) of this section.

(f) If a document of gift specifies only a general intent to make an anatomical gift by using words such as "donor", "organ donor", or "body donor", or by a symbol or statement of similar import, the gift may be used for transplantation, research or therapy and passes in accordance with subsection (g) of this section.

(g) For purposes of subsections (b), (e), and (f) of this section, and anatomical gift passes in the following manner:

(1) If the part is an eye, the gift passes to the appropriate eye bank.

(2) If the part is tissue, the gift passes to the appropriate tissue bank.

(3) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.

(h) An anatomical gift of an organ for transplantation or therapy, other than a gift to an individual described in subdivision (2), subsection (a) of this section, passes to an organ procurement organization as custodian of the organ.

(i) If an anatomical gift does not pass pursuant to subsections (a) through (h) of this section or the body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part.

(j) A person may not accept an anatomical gift if he or she knows that:

(1) The gift was not effectively made pursuant to this article; or

(2) The decedent made a refusal under section seven of this article that was not revoked.

(k) For purposes of subsection (j), if a person knows that an anatomical gift was made in a document of gift, the person is presumed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift in the same document of gift.

(l) Except as provided in subdivision (2), subsection (a) of this section, nothing in this article affects the allocation of organs for transplantation or therapy.

WVC 16 - 19 - 12 §16-19-12. Search and notification.
(a) A law-enforcement officer, firefighter, paramedic or other emergency rescuer finding an individual he or she reasonably believes is dead or near death shall as soon as practical make a reasonable search of the individual for a document of gift or other information identifying the individual as a donor or as having made a refusal. If a document of gift or a refusal is located by the search and the individual is taken to a hospital, the person who conducted the search shall send the document of gift or refusal to the hospital.

(b) If no other source of the information is immediately available, hospital staff shall search an individual reasonably believed to be dead or near death as soon as practical after the arrival at the hospital for a document of gift or other information identifying the individual as a donor or as having made a refusal.

(c) A medical examiner shall conduct a reasonable search of an individual whose body is placed in his or her custody for a document of gift or other information identifying the individual as a donor or as having made a refusal.

(d) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section but may be subject to administrative sanctions.

WVC 16 - 19 - 13 §16-19-13. Delivery of document of gift not required; right to examine.
(a) A document of gift need not be delivered during the donor's lifetime to be effective.

(b) Upon or after an individual's death, a person in possession of a document of gift or a refusal with respect to the decedent shall allow: (1) A person authorized to make or object to the making of an anatomical gift with respect to the decedent; or (2) a person to whom the gift could pass under section eleven of this article to examine and copy the document of gift or refusal.

WVC 16 - 19 - 14 §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 article three, chapter twenty-nine-a 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.

WVC 16 - 19 - 15 §16-19-15. Coordination of procurement and use.
Each hospital licensed in this state shall enter into agreements or affiliations with procurement organizations for coordinating procurement and use of anatomical gifts.

WVC 16 - 19 - 16 §16-19-16. Prohibited acts; sale or purchase of parts prohibited.
(a) Except as provided in subsection (b) of this section, a person who knowingly buys or sells, for valuable consideration, a part for transplantation or therapy is guilty of a felony, and upon conviction thereof, shall be fined not more than fifty thousand dollars ($50,000) or imprisoned in a state correctional facility for a term of not more than five years, or both fined and imprisoned.

(b) A person who, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces or obliterates a document of gift, an amendment or revocation of a document of gift or a refusal is guilty of a felony, and upon conviction thereof, shall be fined not more than fifty thousand dollars ($50,000) or imprisoned in a state correctional facility for a term of not more than five years.

(c) Nothing in this section prohibits a person from charging reasonable amounts for the costs of removing, processing, preserving, quality control, storing, transporting, implanting or disposing of a part.

WVC 16 - 19 - 17 §16-19-17. Immunity.
(a) A person, including a medical examiner, who acts in accordance with this article or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution or administrative proceeding.

(b) Neither the person making an anatomical gift nor the donor's estate is liable for any injury or damage that results from the making or use of the gift.

(c) In determining whether an anatomical gift has been made, amended or revoked under this article, a person to whom a gift passes may rely upon an individual's representations that he or she is the donor or a person authorized to make a gift of the body or part pursuant to subsection (a), section nine of this article, unless the person to whom the gift may pass knows that the representation is untrue.

WVC 16 - 19 - 18 §16-19-18. Law governing validity; choice of law as to execution of document of gift; presumption of validity.
(a) A document of gift is valid if executed in accordance with:

(1) This article;

(2) The laws of the state or country where it was executed; or

(3) The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed.

(b) If a document of gift is valid under this section, the law of this state governs the interpretation of the document of gift.

(c) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked.

WVC 16 - 19 - 19 §16-19-19. Donor registry.
(a) The Division of Motor Vehicles may establish or contract for the establishment of a donor registry.

(b) The Division of Motor Vehicles shall cooperate with a person that administers any donor registry established or contracted for pursuant to this section or recognized for the purpose of transferring to the donor registry all relevant information regarding a donor's making, amendment to, or revocation of an anatomical gift.

(c) A donor registry must:

(1) Allow a donor or person authorized under section four of this article to include on the donor registry a statement or symbol that the donor has made, amended or revoked an anatomical gift;

(2) Be accessible to a procurement organization to allow it to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended or revoked an anatomical gift; and

(3) Be accessible for purposes of paragraphs (1) and (2) of this subsection twenty-four hours a day, seven days a week.

(d) Personally identifiable information on a donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor or person that made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, whether the donor or prospective donor has made, amended or revoked an anatomical gift.

(e) This section does not prohibit any person from creating or maintaining a donor registry that is not established by or under contract with the state. Any private donor registry must comply with subsections (c) and (d) of this section.

WVC 16 - 19 - 20 §16-19-20. Effect of anatomical gift on advance health-care directive.
(a) In this section:

(1) "Advance health-care directive" means a medical power of attorney or a record signed or authorized by a prospective donor containing the prospective donor's direction concerning a health-care decision for the prospective donor.

(2) "Declaration" means a record signed by a prospective donor specifying the circumstances under which a life support system may be withheld or withdrawn from the prospective donor.

(3) "Health-care decision" means any decision regarding the health care of the prospective donor.

(b) If a prospective donor has a declaration or advance health care directive, the terms of which are in conflict with the express or implied terms of a potential anatomical gift with regard to administration of measures necessary to ensure the medical suitability of a part for transplantation or therapy, the attending physician and the prospective donor shall confer to resolve the conflict.

(1) If the prospective donor is incapable of resolving the conflict, an agent acting under the prospective donor's declaration or directive, or, if none or the agent is not reasonably available, another person authorized by law other than this article to make health-care decisions on behalf of the prospective donor, shall act for the donor to resolve the conflict as quickly as possible.

(2) A procurement organization and any person authorized to make an anatomical gift on behalf of a prospective donor pursuant to section nine of this article shall provide any information relevant to the resolution of the conflict.

(3) Pending resolution of the conflict, measures necessary to ensure the medical suitability of a part may not be withheld or withdrawn from the prospective donor unless doing so is contraindicated by appropriate end-of-life care.

WVC 16 - 19 - 21 §16-19-21. Cooperation between medical examiner and procurement organization.
(a) A medical examiner shall cooperate with a procurement organization to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research or education.

(b) If a medical examiner receives notice from a procurement organization that an anatomical gift was or might have been made with respect to a decedent whose body is in the custody of the medical examiner, the medical examiner shall endeavor to conduct a post-mortem examination in a manner and within a period compatible with its preservation for the purposes of the gift, unless the medical examiner denies recovery in accordance with section twenty-two of this article.

(c) While the decedent's body is in the custody of a medical examiner, a part may not be removed for transplantation, therapy, research or education or the body delivered for research and education unless the part or the body is the subject of an anatomical gift. This subsection does not preclude a medical examiner from performing a medicolegal investigation upon the decedent's body or parts while in his or her custody.

WVC 16 - 19 - 22 §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 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) 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) 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) 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) 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.

WVC 16 - 19 - 23 §16-19-23. Relation to Electronic Signatures in Global and National Commerce Act.
This act modifies, limits and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §7001 et seq., but does not modify, limit or supersede Section 101(a) of that act, 15 U.S.C. Section 7001, or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

Note: WV Code updated with legislation passed through the 2014 1st Special Session
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