Chapter 157

157.06(14) (14) Rights and duties of procurement organization and others.

157.06(14)(a) (a) A procurement organization shall do all of the following when a hospital refers an individual who is near death or who is deceased to the procurement organization:

157.06(14)(a)1. 1. If the individual is a prospective donor, make a reasonable search for any person under sub. (9) having priority to make an anatomical gift of the individual’s body or part.

157.06(14)(a)2. 2. If the individual referred is a minor who is a donor or who made an unrevoked refusal to make an anatomical gift, unless the procurement organization has actual knowledge that the minor was emancipated, conduct a reasonable search for the parents of the minor and provide the parents an opportunity to revoke or amend the anatomical gift or refusal relating to the minor.

157.06(14)(a)3. 3. If the procurement organization receives information about an anatomical gift of the individual’s body or part that under sub. (11) passes to a person other than the procurement organization, promptly advise the other person of relevant information regarding the anatomical gift.

157.06(14)(a)4. 4. If procurement organization personnel make a request of a family member of a potential donor to make an anatomical gift of organs, tissues, or eyes, ensure that the personnel make the request with discretion and sensibility with respect to the circumstances, views, and beliefs of the family of the potential donor.

157.06(14)(b) (b) When a hospital refers an individual at or near death to a procurement organization, the procurement organization may conduct any reasonable examination to determine whether a part of the individual that is or could be the subject of an anatomical gift is medically suitable for transplantation, therapy, research, or education. Unless otherwise prohibited by law, an examination under this paragraph may include an examination of all of the individual’s medical or dental records. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization has actual knowledge that the individual expressed a contrary intent.

157.06(14)(c) (c) Unless otherwise prohibited by law, at any time after a donor’s death, the person to whom the donor’s body or part passes under sub. (11) may conduct any reasonable examination, including an examination of all of the donor’s medical or dental records, to determine the medical suitability of the donor’s body or part for its intended purpose.

157.06(14)(d) (d) Subject to subs. (11) (g), (22m), and (23m), the rights of the person to whom an anatomical gift of a part passes under sub. (11) are superior to the rights of all others with respect to a part. The person may accept or reject an anatomical gift in whole or in part. A person who accepts an anatomical gift of a part shall cause the part to be removed from the donor’s body after the death of the donor and before embalming, burial, or cremation and without unnecessary mutilation.

157.06(14)(e) (e) A person who accepts an anatomical gift of an entire body may, subject to the terms of an anatomical gift and this section, allow embalming, burial, cremation, or use of the remains of the body in a funeral service.

157.06(14)(f) (f) A physician who attends a decedent at death or determines the time of death may not participate in the procedures for removing or transplanting a part from the decedent.

157.06(14)(g) (g) A physician or technician may remove from the body of a donor a donated part that the physician or technician is qualified to remove.

157.06(14m) (14m) Coordination of procurement and use; duties of hospitals. Each hospital shall do all of the following:

157.06(14m)(a) (a) Enter into agreements or affiliations with procurement organizations for coordination of procurement and use of bodies and parts that are the subject of anatomical gifts, including the following:

157.06(14m)(a)1. 1. An agreement with an organ procurement organization to notify the organ procurement organization or its designee in a timely manner of individuals whose death is imminent or who have died in the hospital.

157.06(14m)(a)2. 2. Agreements with at least one tissue bank and at least one eye bank to cooperate in the retrieval, processing, preservation, storage, and distribution of tissues and eyes to assure that all usable tissues and eyes are obtained from potential donors, as long as such agreements do not interfere with the procurement of organs.

157.06(14m)(b) (b) Ensure, in collaboration with the organ procurement organization with which the hospital has an agreement under par. (a) 1. that the family of each potential donor is informed of its options to donate organs, tissues, or eyes or to refuse to donate organs, tissues, or eyes.

157.06(14m)(c) (c) Ensure that the individual who requests family members of potential donors to make anatomical gifts of organs, tissues, or eyes is either an organ procurement representative or has completed a course on the methodology for approaching persons to request that they make anatomical gifts, which course is designed in conjunction with the tissue and eye bank community and offered or approved by the organ procurement organization with which the hospital has an agreement under par. (a) 1.

157.06(14m)(d) (d) Ensure that hospital personnel who make requests of family members of potential donors to make anatomical gifts of organs, tissues, or eyes make the requests with discretion and sensibility with respect to the circumstances, views, and beliefs of the families of potential donors.

157.06(14m)(e) (e) Ensure that the hospital works cooperatively with the procurement organizations with which it has agreements under par. (a) in educating staff on donation issues, reviewing death records to improve identification of potential donors, and maintaining potential donors while necessary testing and placement of potential donated organs, tissues, and eyes takes place.

157.06(15) (15) Discrimination in use of anatomical gifts prohibited.

157.06(15)(a) (a) Except as provided in pars. (c) and (d), no hospital or transplant hospital may, solely on the basis of an individual’s disability, do any of the following:

157.06(15)(a)1. 1. Consider an individual ineligible to receive an anatomical gift.

157.06(15)(a)2. 2. Deny an individual any medical services or other services related to organ transplantation, including diagnostic services, surgery, postoperative treatment, and counseling.

157.06(15)(a)3. 3. Refuse to refer an individual to a transplant hospital or an organ transplant specialist for the purpose of being evaluated for or receiving an anatomical gift.

157.06(15)(a)4. 4. Refuse to place the individual on an organ transplant waiting list.

157.06(15)(a)5. 5. Place the individual on an organ transplant waiting list at a lower priority position than the position at which the individual would have been placed if the individual did not have a disability, unless the individual is placed at a lower priority position because the individual’s disability relates directly to the medical need of the individual to receive the organ transplant and the individual’s relative placement on the waiting list is reflective of the individual’s medical need for the organ transplant.

157.06(15)(b) (b) No person may refuse an individual insurance coverage for any procedure associated with being evaluated for or receiving an anatomical gift, including posttransplantation and posttransfusion care, solely on the basis of the individual’s physical or mental disability.

157.06(15)(c) (c)

157.06(15)(c)1. 1. A hospital or transplant hospital may consider an individual’s disability when making treatment or coverage decisions or recommendations related to organ transplantation, but only if a physician finds that the disability is medically significant to the receipt of the anatomical gift following an individualized evaluation of the individual.

157.06(15)(c)2. 2. If the examining physician determines that the individual has the necessary support system to assist the individual in complying with posttransplantation medical requirements, an individual’s inability to independently comply with those requirements may not be considered to be medically significant for purposes of subd. 1.

157.06(15)(d) (d) This subsection does not apply to eye transplants or services related to the provision of an eye transplant.

157.06(15)(e) (e) An individual may bring an action for a violation of this subsection in the circuit court of the county where a violation occurs or the county where the individual resides. The circuit court shall give priority on its docket and expedited review to an action brought under this paragraph. The court shall hold a hearing within 30 days of the filing of the action. In an action brought under this paragraph, the court may grant injunctive or other equitable relief, including requiring that auxiliary aids and services be made available for the individual if and when necessary for the receipt of an organ transplant. In issuing any order for auxiliary aids and services under this subsection, the circuit court shall specify the party responsible for paying for the auxiliary aids and services and for how long the services are to be provided.

157.06(17) (17) Prohibited acts related to records. Any person who intentionally falsifies, forges, conceals, defaces, or obliterates a record of gift, an amendment or revocation of a record of gift, or a record of refusal for pecuniary gain is guilty of a Class H felony, except that notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $50,000.

157.06(18) (18) Immunity.

157.06(18)(a) (a) A person who acts, or in good faith attempts to act, in accordance with this section or with the applicable anatomical gift law of another state is not liable for the act in a civil action, criminal prosecution, or administrative proceeding.

157.06(18)(b) (b) A person who makes an anatomical gift and the person’s estate are not liable for any injury or damage that results from the making of the anatomical gift or the use of the body or any part that is the subject of the anatomical gift.

157.06(18)(c) (c) A person may rely on a representation made by an individual purporting to be an individual listed under sub. (9) (a) 2., 3., 4., 5., 6., 7., or 8. as to the individual’s relation to a donor or prospective donor in determining whether an anatomical gift of the donor’s or prospective donor’s body or part has been made, amended, or revoked.

157.06(19) (19) Law governing validity; choice of law as to making of anatomical gift; presumption of validity.

157.06(19)(a) (a) An anatomical gift is valid if made in accordance with any of the following:

157.06(19)(a)1. 1. This section.

157.06(19)(a)2. 2. The laws of the state or country where it was made.

157.06(19)(a)3. 3. The laws of the state or country where the individual making the anatomical gift was domiciled, had a place of residence, or was a national at the time the anatomical gift was made.

157.06(19)(b) (b) If an anatomical gift is valid under this subsection, the law of this state governs the interpretation of the anatomical gift.

157.06(19)(c) (c) A person may presume that an anatomical gift or an amendment of an anatomical gift is valid unless the person has actual knowledge that it was not validly made or was revoked.

157.06(20) (20) Donor Registry. The department of health services may establish a donor registry. If the department of health services establishes a donor registry under this subsection, the department of transportation, department of natural resources, and department of revenue shall cooperate with the department of health services in establishing the donor registry. The department of health services shall promulgate administrative rules governing any donor registry established under this subsection.

157.06(21) (21) Effect of anatomical gift on advance health care directive. If a prospective donor executed a declaration, as defined in s. 154.02 (1), or a power of attorney for health care instrument under ch. 155, measures necessary to ensure the medical suitability of an organ for transplantation or therapy may not be withheld or withdrawn from the prospective donor unless the declaration or power of attorney for health care instrument expressly provides to the contrary.

157.06(22m) (22m) Authorization by coroner or medical examiner; no evidence of anatomical gift.

157.06(22m)(ag) (ag) If a decedent is within the custody of a coroner or medical examiner and if there is no evidence that an anatomical gift of the decedent’s body or part has been made or that the decedent has refused to make an anatomical gift, the coroner or medical examiner shall contact by telephone the organ procurement organization designated for the region in which the death occurs. The coroner or medical examiner shall provide the organ procurement organization with information, if known to the coroner or medical examiner, concerning the decedent’s age, the cause of the decedent’s death and, if available, the decedent’s medical history.

157.06(22m)(am) (am) The coroner or medical examiner may release and permit the removal of a part from a decedent specified in par. (ag) within that official’s custody, for transplantation or therapy, including to a tissue bank under the requirements of sub. (24m), if all of the following apply:

157.06(22m)(am)1. 1. The official has received a request for the part from a hospital, physician, or organ procurement organization.

157.06(22m)(am)2. 2. The official has made a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent’s medical records and, subject to sub. (25m), inform persons listed in sub. (9) of their option to make, or object to making, an anatomical gift.

157.06(22m)(am)3. 3. The official does not have actual knowledge of a refusal to make an anatomical gift or contrary indication by the decedent or of an objection by a person having priority to act as listed in sub. (9).

157.06(22m)(am)4. 4. The removal will be by a physician, except for the following:

157.06(22m)(am)4.a. a. In the case of eyes, the removal may be by a physician or by an enucleator.

157.06(22m)(am)4.b. b. In the case of tissue or bone, the removal may be by a physician or by a technician.

157.06(22m)(am)5. 5. The removal will not interfere with any autopsy or investigation.

157.06(22m)(am)6. 6. The removal will be in accordance with accepted medical standards.

157.06(22m)(am)7. 7. Cosmetic restoration will be done to the decedent’s body, if appropriate.

157.06(22m)(b) (b) A coroner or medical examiner who releases, and permits the removal of a part under this subsection shall maintain a permanent record of the name of the decedent, the name of the person making the request, the date and purpose of the request, the part requested, and the name of the person to whom it was released.

157.06(23m) (23m) Authorization by coroner or medical examiner; potential donations of organs and tissue.

157.06(23m)(a) (a) Subject to par. (b), for a decedent who meets the criteria for a determination of death under s. 146.71, who is a donor, and who is within the jurisdiction of a coroner or medical examiner under ch. 979, any vascularized organ that is the subject of an anatomical gift may be removed by a physician, within a time period compatible with preservation of the organ for purposes of transplantation or therapy, if all of the following take place:

157.06(23m)(a)1. 1. Immediately after the hospital in which the donor or potential donor is located contacts the organ procurement organization designated for the region of which the hospital is a part concerning the potential donation, the organ procurement organization shall, by oral conversation, provide notice to the coroner or medical examiner or his or her designee of the referral of the donor or potential donor and shall provide notice of the referral to the district attorney or his or her designee.

157.06(23m)(a)2. 2. The coroner or medical examiner or his or her designee has the opportunity to be present during the scheduled removal of the vascularized organ if, in the judgment of the coroner, medical examiner, or designee, the organ may be necessary in determining the cause of death.

157.06(23m)(b) (b) If, in the judgment of the coroner, medical examiner, or designee specified in par. (a) the vascularized organ may be necessary in determining the cause of death, the coroner, medical examiner, or designee may order a biopsy of the vascularized organ or, if the coroner, medical examiner, or designee is present during the scheduled removal, he or she may deny removal of the vascularized organ. If denial of removal is a possibility, the organ procurement organization shall make a good faith effort to consult with a forensic pathologist designated by the coroner, medical examiner, or designee as to the pathologist’s opinion concerning the necessity of the vascularized organ in determining the cause of death. If the biopsy is ordered or the removal is denied, the coroner, medical examiner, or designee shall specify, in writing as part of any death report required under ch. 979, any reasons for determining that the vascularized organ may be involved in the cause of death.

157.06(23m)(c) (c) For a decedent specified under par. (a), as authorized under the requirements of this section by the coroner, medical examiner, or designee with jurisdiction over the decedent, any part other than a vascularized organ that is a subject of an anatomical gift may be removed by a physician and any part that is tissue or bone may be removed by a technician or tissue bank employee, within a time period compatible with preservation of the part for purposes of transplantation or therapy.

157.06(23m)(d) (d) A physician, technician, or tissue bank employee who removes cardiovascular tissue from a decedent under this subsection shall, upon request of the coroner or medical examiner, file with the coroner or medical examiner with jurisdiction over the decedent a report detailing the condition of the cardiovascular tissue and its relationship to the cause of death. The report may include a biopsy or medically approved sample, if available, from the part.

157.06(23m)(e) (e)

157.06(23m)(e)1. 1. A physician who removes an organ from a decedent under this subsection shall complete a form, as specified in sub. (26m) (a).

157.06(23m)(e)2. 2. A physician, technician, or tissue bank employee who removes tissue, other than cardiovascular tissue, from a decedent under this subsection shall complete a form, as specified in sub. (26m) (b).

157.06(23m)(e)3. 3. After completing a form under this paragraph, the physician, technician, or tissue bank employee shall transmit the form to the coroner or medical examiner with jurisdiction over the decedent.

157.06(24m) (24m) Authorization by coroner or medical examiner; tissue banks.

157.06(24m)(a) (a)

157.06(24m)(a)1. 1. If a decedent is within the custody of a coroner or medical examiner, and the death occurred in a hospital, any release of the decedent for potential donation of tissue shall be to the tissue bank with which the hospital has an agreement under sub. (14m) (a) 2. However, if such a tissue bank is unwilling to receive the tissue donation, the tissue bank shall so notify the coroner or medical examiner.

157.06(24m)(a)2. 2. Upon receipt of a notification under subd. 1., the coroner or medical examiner may notify any other tissue bank with which the coroner or medical examiner has an agreement under par. (b) of the availability of the decedent as a potential tissue donor.

157.06(24m)(a)3. 3. Upon receipt of a notification under subd. 2., the tissue bank so notified, if willing to receive the tissue donation, shall contact a reasonably available person, under the priority established in sub. (9), to request that the person make an anatomical gift of all or a part of the decedent’s tissue.

157.06(24m)(a)4. 4. If the coroner or medical examiner informs the hospital that subds. 2. and 3. apply and that consent has been given for an anatomical gift, the hospital shall transfer the decedent to the coroner or medical examiner.

157.06(24m)(b) (b) When a decedent is within the custody of a coroner or medical examiner, the death occurred outside a hospital or the decedent was transferred to the coroner or medical examiner under par. (a) 4., and the coroner or medical examiner refers the decedent as a potential tissue donor, any such referral shall be made under the following conditions:

157.06(24m)(b)1. 1. Subject to subds. 2., 3., and 4., the coroner or medical examiner, after considering a tissue bank’s history, services, traditional referral patterns, geographic service area, and tissue distribution record and any other criteria required for consideration by the corporation counsel of the applicable county, enters into a written, general referral agreement with one or more tissue banks to which the coroner or medical examiner shall refer decedents for potential donation of tissue.

157.06(24m)(b)2. 2. Any agreement under subd. 1. is subject to review and approval by all of the following:

157.06(24m)(b)2.a. a. The corporation counsel of the applicable county.

157.06(24m)(b)2.b. b. The county board of the applicable county. Within 60 days after any approval by the corporation counsel and transmittal of the agreement to the county board, the county board may approve or disapprove the agreement. If the county board takes no action, the agreement is approved.

157.06(24m)(b)3. 3. A tissue bank under this paragraph is accredited by the American Association of Tissue Banks or audited at least once every 2 years by an organization that is accredited by the American Association of Tissue Banks.

157.06(24m)(b)4. 4. All of the following applies to an agreement by a coroner or medical examiner with one or more tissue banks to which the coroner or medical examiner refers decedents for potential donation of tissue:

157.06(24m)(b)4.a. a. Any such agreement that is entered into after April 13, 2006, shall conform to the requirements of subds. 1. to 3.

157.06(24m)(b)4.b. b. Any such agreement that exists on April 13, 2006, shall conform to the requirements of subds. 1. to 3. by October 1, 2007, unless the agreement expires before that date and is not renegotiated or renewed under subd. 4. a.

157.06(25m) (25m) Consent for or limitation on certain uses of bones or tissue; requirements.

157.06(25m)(a) (a) A hospital, organ procurement organization, tissue bank, coroner, or medical examiner that provides a record of gift to a person who may make an anatomical gift under sub. (4) or (9) shall include in the record of gift the following sentences: “I understand that donated bones or tissues, including skin, may have numerous uses, including for reconstructive and cosmetic purposes, and that multiple organizations, including nonprofit and for-profit organizations, may recover, process, or distribute the donations. I further understand that I may, by this record, limit the use of the bones or tissues, including skin, that are donated or types of organizations that recover, process, or distribute the donation.”

157.06(25m)(b) (b) The record of gift under par. (a) shall include, following the 2nd sentence required in par. (a), all of the following: