PART I GENERAL PROVISIONS

PART II HEALTH CARE SURROGATE

PART III LIFE-PROLONGING PROCEDURES

PART IV ABSENCE OF ADVANCE DIRECTIVE

PART V ANATOMICAL GIFTS

CHAPTER 765

765.101

Definitions.

(1) “Advance directive” means a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care or health information, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift made pursuant to

part V of this chapter.

(2) “Attending physician” means the physician who has primary responsibility for the treatment and care of the patient while the patient receives such treatment or care in a hospital as defined in s. 395.002(12).

(3) “Close personal friend” means any person 18 years of age or older who has exhibited special care and concern for the patient, and who presents an affidavit to the health care facility or to the primary physician stating that he or she is a friend of the patient; is willing and able to become involved in the patient’s health care; and has maintained such regular contact with the patient so as to be familiar with the patient’s activities, health, and religious or moral beliefs.

(4) “End-stage condition” means an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective.

(5) “Health care” means care, services, or supplies related to the health of an individual and includes, but is not limited to, preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure with respect to the individual’s physical or mental condition or functional status or that affect the structure or function of the individual’s body.

(6) “Health care decision” means:

(7) “Health care facility” means a hospital, nursing home, hospice, home health agency, or health maintenance organization licensed in this state, or any facility subject to

part I of

chapter 394.

(8) “Health care provider” or “provider” means any person licensed, certified, or otherwise authorized by law to administer health care in the ordinary course of business or practice of a profession.

(9) “Health information” means any information, whether oral or recorded in any form or medium, as defined in 45 C.F.R. s. 160.103 and the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. s. 1320d, as amended, that:

(10) “Incapacity” or “incompetent” means the patient is physically or mentally unable to communicate a willful and knowing health care decision. For the purposes of making an anatomical gift, the term also includes a patient who is deceased.

(11) “Informed consent” means consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.

(12) “Life-prolonging procedure” means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.

(13) “Living will” or “declaration” means:

(14) “Minor’s principal” means a principal who is a natural guardian as defined in s. 744.301(1); legal custodian; or, subject to

chapter 744, legal guardian of the person of a minor.

(15) “Persistent vegetative state” means a permanent and irreversible condition of unconsciousness in which there is:

(16) “Physician” means a person licensed pursuant to

chapter 458 or

chapter 459.

(17) “Primary physician” means a physician designated by an individual or the individual’s surrogate, proxy, or agent under a durable power of attorney as provided in

chapter 709, to have primary responsibility for the individual’s health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.

(18) “Principal” means a competent adult executing an advance directive and on whose behalf health care decisions are to be made or health care information is to be received, or both.

(19) “Proxy” means a competent adult who has not been expressly designated to make health care decisions for a particular incapacitated individual, but who, nevertheless, is authorized pursuant to s. 765.401 to make health care decisions for such individual.

(20) “Reasonably available” means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient’s health care needs.

(21) “Surrogate” means any competent adult expressly designated by a principal to make health care decisions and to receive health information. The principal may stipulate whether the authority of the surrogate to make health care decisions or to receive health information is exercisable immediately without the necessity for a determination of incapacity or only upon the principal’s incapacity as provided in s. 765.204.

(22) “Terminal condition” means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

History. — s. 2, ch. 92-199; s. 3, ch. 94-183; s. 46, ch. 96-169; s. 16, ch. 99-331; s. 3, ch. 2001-250; s. 131, ch. 2001-277; s. 104, ch. 2006-1; s. 28, ch. 2006-178; s. 2, ch. 2015-153.

765.102 Legislative findings and intent.

(1) The Legislature finds that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment. This right is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession.

(2) To ensure that such right is not lost or diminished by virtue of later physical or mental incapacity, the Legislature intends that a procedure be established to allow a person to plan for incapacity by executing a document or orally designating another person to direct the course of his or her health care or receive his or her health information, or both, upon his or her incapacity. Such procedure should be less expensive and less restrictive than guardianship and permit a previously incapacitated person to exercise his or her full right to make health care decisions as soon as the capacity to make such decisions has been regained.

(3) The Legislature also recognizes that some competent adults may want to receive immediate assistance in making health care decisions or accessing health information, or both, without a determination of incapacity. The Legislature intends that a procedure be established to allow a person to designate a surrogate to make health care decisions or receive health information, or both, without the necessity for a determination of incapacity under this chapter.

(4) The Legislature recognizes that for some the administration of life-prolonging medical procedures may result in only a precarious and burdensome existence.

In order to ensure that the rights and intentions of a person may be respected even after he or she is no longer able to participate actively in decisions concerning himself or herself, and to encourage communication among such patient, his or her family, and his or her physician, the Legislature declares that the laws of this state recognize the right of a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures or to designate another to make the health care decision for him or her in the event that such person should become incapacitated and unable to personally direct his or her health care.

(5) The Legislature recognizes the need for all health care professionals to rapidly increase their understanding of end-of-life and palliative care. Therefore, the Legislature encourages the professional regulatory boards to adopt appropriate standards and guidelines regarding end-of-life care and pain management and encourages educational institutions established to train health care professionals and allied health professionals to implement curricula to train such professionals to provide end-of-life care, including pain management and palliative care.

(6) For purposes of this chapter:

(7) The Department of Elderly Affairs, the Agency for Health Care Administration, and the Department of Health shall jointly create a campaign on end-of-life care for purposes of educating the public. This campaign should include culturally sensitive programs to improve understanding of end-of-life care issues in minority communities.

History. — s. 2, ch. 92-199; s. 1144, ch. 97-102; s. 17, ch. 99-331; s. 7, ch. 2000-295; s. 4, ch. 2001-250; ss. 132, 133, ch. 2001-277; s. 3, ch. 2015-153.

765.103 Existing advance directives.

History. — s. 2, ch. 92-199; s. 18, ch. 99-331.

765.104 Amendment or revocation.

(1) An advance directive may be amended or revoked at any time by a competent principal:

(2) Unless otherwise provided in the advance directive or in an order of dissolution or annulment of marriage, the dissolution or annulment of marriage of the principal revokes the designation of the principal’s former spouse as a surrogate.

(3) Any such amendment or revocation will be effective when it is communicated to the surrogate, health care provider, or health care facility. No civil or criminal liability shall be imposed upon any person for a failure to act upon an amendment or revocation unless that person has actual knowledge of such amendment or revocation.

(4) Any patient for whom a medical proxy has been recognized under s. 765.401 and for whom any previous legal disability that precluded the patient’s ability to consent is removed may amend or revoke the recognition of the medical proxy and any uncompleted decision made by that proxy. The amendment or revocation takes effect when it is communicated to the proxy, the health care provider, or the health care facility in writing or, if communicated orally, in the presence of a third person.

History. — s. 2, ch. 92-199; s. 47, ch. 96-169; s. 19, ch. 99-331; s. 12, ch. 2002-195; s. 4, ch. 2015-153.

765.105 Review of surrogate or proxy’s decision.

(1) The patient’s family, the health care facility, or the primary physician, or any other interested person who may reasonably be expected to be directly affected by the surrogate or proxy’s decision concerning any health care decision may seek expedited judicial intervention pursuant to rule 5.900 of the Florida Probate Rules, if that person believes:

(2) This

section does not apply to a patient who is not incapacitated and who has designated a surrogate who has immediate authority to make health care decisions 1 or receive health information, or both, on behalf of the patient.

History. — s. 2, ch. 92-199; s. 4, ch. 94-183; s. 5, ch. 2015-153.

765.106 Preservation of existing rights.

History. — s. 2, ch. 92-199; s. 5, ch. 94-183.

765.107 Construction.

(1) This

chapter shall not be construed to repeal by implication any provision of s. 766.103, the Florida Medical Consent Law. For all purposes, the Florida Medical Consent Law shall be considered an alternative to provisions of this section.

(2) Procedures provided in this

chapter permitting the withholding or withdrawal of life-prolonging procedures do not apply to a person who never had capacity to designate a health care surrogate or execute a living will.

History. — s. 2, ch. 92-199; s. 20, ch. 99-331.

765.108 Effect with respect to insurance.

History. — s. 2, ch. 92-199.

765.109 Immunity from liability; weight of proof; presumption.

(1) A health care facility, provider, or other person who acts under the direction of a health care facility or provider is not subject to criminal prosecution or civil liability, and will not be deemed to have engaged in unprofessional conduct, as a result of carrying out a health care decision made in accordance with the provisions of this chapter. The surrogate or proxy who makes a health care decision on a patient’s behalf, pursuant to this chapter, is not subject to criminal prosecution or civil liability for such action.

(2) The provisions of this

section shall apply unless it is shown by a preponderance of the evidence that the person authorizing or effectuating a health care decision did not, in good faith, comply with the provisions of this chapter.

History. — s. 2, ch. 92-199.

765.110 Health care facilities and providers; discipline.

(1) A health care facility, pursuant to Pub. L. No. 101-508, ss. 4206 and 4751, shall provide to each patient written information concerning the individual’s rights concerning advance directives and the health care facility’s policies respecting the implementation of such rights, and shall document in the patient’s medical records whether or not the individual has executed an advance directive.

(2) A health care provider or health care facility may not require a patient to execute an advance directive or to execute a new advance directive using the facility’s or provider’s forms. The patient’s advance directives shall travel with the patient as part of the patient’s medical record.

(3) A health care provider or health care facility shall be subject to professional discipline and revocation of license or certification, and a fine of not more than $1,000 per incident, or both, if the health care provider or health care facility, as a condition of treatment or admission, requires an individual to execute or waive an advance directive.

(4) The Department of Elderly Affairs for hospices and, in consultation with the Department of Elderly Affairs, the Department of Health for health care providers; the Agency for Health Care Administration for hospitals, nursing homes, home health agencies, and health maintenance organizations; and the Department of Children and Families for facilities subject to

part I of

chapter 394 shall adopt rules to implement the provisions of the section.

History. — s. 2, ch. 92-199; s. 6, ch. 94-183; s. 243, ch. 94-218; s. 48, ch. 96-169; s. 284, ch. 99-8; s. 21, ch. 99-331; s. 293, ch. 2014-19.

765.1103 Pain management and palliative care.

(1) A patient shall be given information concerning pain management and palliative care when he or she discusses with the primary physician, or such physician’s designee, the diagnosis, planned course of treatment, alternatives, risks, or prognosis for his or her illness. If the patient is incapacitated, the information shall be given to the patient’s health care surrogate or proxy, court-appointed guardian as provided in

chapter 744, or attorney in fact under a durable power of attorney as provided in

chapter 709. The court-appointed guardian or attorney in fact must have been delegated authority to make health care decisions on behalf of the patient.

(2) Health care providers and practitioners regulated under

chapter 458,

chapter 459, or

chapter 464 must, as appropriate, comply with a request for pain management or palliative care from a patient under their care or, for an incapacitated patient under their care, from a surrogate, proxy, guardian, or other representative permitted to make health care decisions for the incapacitated patient. Facilities regulated under

chapter 395,

chapter 400, or

chapter 429 must comply with the pain management or palliative care measures ordered by the patient’s physician.

History. — s. 8, ch. 2000-295; s. 5, ch. 2001-250; s. 134, ch. 2001-277; s. 105, ch. 2006-197; s. 6, ch. 2015-153.

765.1105 Transfer of a patient.

(1) A health care provider or facility that refuses to comply with a patient’s advance directive, or the treatment decision of his or her surrogate or proxy, shall make reasonable efforts to transfer the patient to another health care provider or facility that will comply with the directive or treatment decision. This

chapter does not require a health care provider or facility to commit any act which is contrary to the provider’s or facility’s moral or ethical beliefs, if the patient:

(2) A health care provider or facility that is unwilling to carry out the wishes of the patient or the treatment decision of his or her surrogate or proxy because of moral or ethical beliefs must within 7 days either:

History. — s. 4, ch. 92-199; s. 11, ch. 94-183; s. 1148, ch. 97-102; s. 30, ch. 99-331; s. 7, ch. 2015-153.

765.1115 Falsification, forgery, or willful concealment, cancellation, or destruction of directive or revocation or amendment; penalties.

(1) Any person who willfully conceals, cancels, defaces, obliterates, or damages an advance directive without the principal’s consent or who falsifies or forges the revocation or amendment of an advance directive of another, and who thereby causes life-prolonging procedures to be utilized in contravention of the previously expressed intent of the principal, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any person who falsifies or forges the advance directive of another or who willfully conceals or withholds personal knowledge of the revocation of an advance directive, with the intent to cause a withholding or withdrawal of life-prolonging procedures contrary to the wishes of the principal, and who thereby because of such act directly causes life-prolonging procedures to be withheld or withdrawn and death to be hastened, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History. — s. 4, ch. 92-199; s. 31, ch. 99-331.

765.112 Recognition of advance directive executed in another state.

History. — s. 2, ch. 92-199.

765.113 Restrictions on providing consent.

(1) Abortion, sterilization, electroshock therapy, psychosurgery, experimental treatments that have not been approved by a federally approved institutional review board in accordance with 45 C.F.R.

part 46 or 21 C.F.R.

part 56, or voluntary admission to a mental health facility.

(2) Withholding or withdrawing life-prolonging procedures from a pregnant patient prior to viability as defined in s. 390.0111(4).

History. — s. 2, ch. 92-199; s. 7, ch. 94-183; s. 87, ch. 99-3.

765.201

Short title.

History. — s. 3, ch. 92-199.

765.202 Designation of a health care surrogate.

(1) A written document designating a surrogate to make health care decisions for a principal or receive health information on behalf of a principal, or both, shall be signed by the principal in the presence of two subscribing adult witnesses. A principal unable to sign the instrument may, in the presence of witnesses, direct that another person sign the principal’s name as required herein. An exact copy of the instrument shall be provided to the surrogate.

(2) The person designated as surrogate shall not act as witness to the execution of the document designating the health care surrogate. At least one person who acts as a witness shall be neither the principal’s spouse nor blood relative.

(3) A document designating a health care surrogate may also designate an alternate surrogate provided the designation is explicit. The alternate surrogate may assume his or her duties as surrogate for the principal if the original surrogate is not willing, able, or reasonably available to perform his or her duties. The principal’s failure to designate an alternate surrogate shall not invalidate the designation of a surrogate.

(4) If neither the designated surrogate nor the designated alternate surrogate is willing, able, or reasonably available to make health care decisions on behalf of the principal and in accordance with the principal’s instructions, the health care facility may seek the appointment of a proxy pursuant to

part IV.

(5) A principal may designate a separate surrogate to consent to mental health treatment in the event that the principal is determined by a court to be incompetent to consent to mental health treatment and a guardian advocate is appointed as provided under s. 394.4598. However, unless the document designating the health care surrogate expressly states otherwise, the court shall assume that the health care surrogate authorized to make health care decisions under this

chapter is also the principal’s choice to make decisions regarding mental health treatment.

(6) A principal may stipulate in the document that the authority of the surrogate to receive health information or make health care decisions, or both, is exercisable immediately without the necessity for a determination of incapacity as provided in s. 765.204.

(7) Unless the document states a time of termination, the designation shall remain in effect until revoked by the principal.

(8) A written designation of a health care surrogate executed pursuant to this

section establishes a rebuttable presumption of clear and convincing evidence of the principal’s designation of the surrogate.

History. — s. 3, ch. 92-199; s. 8, ch. 94-183; s. 49, ch. 96-169; s. 1797, ch. 97-102; s. 8, ch. 2015-153.

765.203 Suggested form of designation.

History. — s. 3, ch. 92-199; s. 1145, ch. 97-102; s. 9, ch. 2000-295; s. 1, ch. 2008-223; s. 9, ch. 2015-153.

765.2035 Designation of a health care surrogate for a minor.

(1) A natural guardian as defined in s. 744.301(1), legal custodian, or legal guardian of the person of a minor may designate a competent adult to serve as a surrogate to make health care decisions for the minor. Such designation shall be made by a written document signed by the minor’s principal in the presence of two subscribing adult witnesses. If a minor’s principal is unable to sign the instrument, the principal may, in the presence of witnesses, direct that another person sign the minor’s principal’s name as required by this subsection. An exact copy of the instrument shall be provided to the surrogate.

(2) The person designated as surrogate may not act as witness to the execution of the document designating the health care surrogate.

(3) A document designating a health care surrogate may also designate an alternate surrogate; however, such designation must be explicit. The alternate surrogate may assume his or her duties as surrogate if the original surrogate is not willing, able, or reasonably available to perform his or her duties. The minor’s principal’s failure to designate an alternate surrogate does not invalidate the designation.

(4) If neither the designated surrogate or the designated alternate surrogate is willing, able, or reasonably available to make health care decisions for the minor on behalf of the minor’s principal and in accordance with the minor’s principal’s instructions, s. 743.0645(2) shall apply as if no surrogate had been designated.

(5) A natural guardian as defined in s. 744.301(1), legal custodian, or legal guardian of the person of a minor may designate a separate surrogate to consent to mental health treatment for the minor. However, unless the document designating the health care surrogate expressly states otherwise, the court shall assume that the health care surrogate authorized to make health care decisions for a minor under this

chapter is also the minor’s principal’s choice to make decisions regarding mental health treatment for the minor.

(6) Unless the document states a time of termination, the designation shall remain in effect until revoked by the minor’s principal. An otherwise valid designation of a surrogate for a minor shall not be invalid solely because it was made before the birth of the minor.

(7) A written designation of a health care surrogate executed pursuant to this

section establishes a rebuttable presumption of clear and convincing evidence of the minor’s principal’s designation of the surrogate and becomes effective pursuant to s. 743.0645(2)(a).

History. — s. 10, ch. 2015-153.

765.2038 Designation of health care surrogate for a minor; suggested form.

History. — s. 11, ch. 2015-153.

765.204 Capacity of principal; procedure.

(1) A principal is presumed to be capable of making health care decisions for herself or himself unless she or he is determined to be incapacitated. While a principal has decisionmaking capacity, the principal’s wishes are controlling. Each physician or health care provider must clearly communicate to a principal with decisionmaking capacity the treatment plan and any change to the treatment plan prior to implementation of the plan or the change to the plan. Incapacity may not be inferred from the person’s voluntary or involuntary hospitalization for mental illness or from her or his intellectual disability.

(2) If a principal’s capacity to make health care decisions for herself or himself or provide informed consent is in question, the primary or attending physician shall evaluate the principal’s capacity and, if the evaluating physician concludes that the principal lacks capacity, enter that evaluation in the principal’s medical record.

If the evaluating physician has a question as to whether the principal lacks capacity, another physician shall also evaluate the principal’s capacity, and if the second physician agrees that the principal lacks the capacity to make health care decisions or provide informed consent, the health care facility shall enter both physician’s evaluations in the principal’s medical record.

If the principal has designated a health care surrogate or has delegated authority to make health care decisions to an attorney in fact under a durable power of attorney, the health care facility shall notify such surrogate or attorney in fact in writing that her or his authority under the instrument has commenced, as provided in

chapter 709 or s. 765.203. If an attending physician determines that the principal lacks capacity, the hospital in which the attending physician made such a determination shall notify the principal’s primary physician of the determination.

(3) The surrogate’s authority commences either upon a determination under subsection (2) that the principal lacks capacity or upon a stipulation of such authority pursuant to s. 765.101(21). Such authority remains in effect until a determination that the principal has regained such capacity, if the authority commenced as a result of incapacity, or until the authority is revoked, if the authority commenced immediately pursuant to s. 765.101(21).

Upon commencement of the surrogate’s authority, a surrogate who is not the principal’s spouse shall notify the principal’s spouse or adult children of the principal’s designation of the surrogate. Except if the principal provided immediately exercisable authority to the surrogate pursuant to s. 765.101(21), in the event that the primary or attending physician determines that the principal has regained capacity, the authority of the surrogate shall cease, but recommences if the principal subsequently loses capacity as determined pursuant to this section.

A health care provider is not liable for relying upon health care decisions made by a surrogate while the principal lacks capacity. At any time when a principal lacks capacity, a health care decision made on the principal’s behalf by a surrogate is effective to the same extent as a decision made by the principal. If a principal possesses capacity, health care decisions of the principal take precedence over decisions made by the surrogate that present a material conflict.

(4) Notwithstanding subsections (2) and (3), if the principal has designated a health care surrogate and has stipulated that the authority of the surrogate is to take effect immediately, or has appointed an agent under a durable power of attorney as provided in

chapter 709 to make health care decisions for the principal, the health care facility shall notify such surrogate or agent in writing when a determination of incapacity has been entered into the principal’s medical record.

(5) A determination made pursuant to this

section that a principal lacks capacity to make health care decisions shall not be construed as a finding that a principal lacks capacity for any other purpose.

(6) If the surrogate is required to consent to withholding or withdrawing life-prolonging procedures,

part III applies.

History. — s. 3, ch. 92-199; s. 1146, ch. 97-102; s. 22, ch. 99-331; s. 10, ch. 2000-295; s. 23, ch. 2013-162; s. 12, ch. 2015-153.

765.205 Responsibility of the surrogate.

(1) The surrogate, in accordance with the principal’s instructions, unless such authority has been expressly limited by the principal, shall:

(2) The surrogate may authorize the release of health information to appropriate persons to ensure the continuity of the principal’s health care and may authorize the admission, discharge, or transfer of the principal to or from a health care facility or other facility or program licensed under

chapter 400 or

chapter 429.

(3) If, after the appointment of a surrogate, a court appoints a guardian, the surrogate shall continue to make health care decisions for the principal, unless the court has modified or revoked the authority of the surrogate pursuant to s. 744.3115. The surrogate may be directed by the court to report the principal’s health care status to the guardian.

History. — s. 3, ch. 92-199; s. 9, ch. 94-183; s. 50, ch. 96-169; s. 23, ch. 99-331; s. 11, ch. 2000-295; s. 6, ch. 2001-250; s. 135, ch. 2001-277; s. 106, ch. 2006-197; s. 13, ch. 2015-153.

765.301

Short title.

History. — s. 4, ch. 92-199; s. 24, ch. 99-331.

765.302 Procedure for making a living will; notice to physician.

(1) Any competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. If the principal is physically unable to sign the living will, one of the witnesses must subscribe the principal’s signature in the principal’s presence and at the principal’s direction.

(2) It is the responsibility of the principal to provide for notification to her or his primary physician that the living will has been made. In the event the principal is physically or mentally incapacitated at the time the principal is admitted to a health care facility, any other person may notify the physician or health care facility of the existence of the living will. A primary physician or health care facility which is so notified shall promptly make the living will or a copy thereof a part of the principal’s medical records.

(3) A living will, executed pursuant to this section, establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.

History. — s. 4, ch. 92-199; s. 1147, ch. 97-102; s. 25, ch. 99-331; s. 14, ch. 2015-153.

765.303 Suggested form of a living will.

(1) A living will may, BUT NEED NOT, be in the following form:

(2) The principal’s failure to designate a surrogate shall not invalidate the living will.

History. — s. 4, ch. 92-199; s. 35, ch. 99-6; s. 26, ch. 99-331; s. 12, ch. 2000-295; s. 15, ch. 2015-153.

765.304 Procedure for living will.

(1) If a person has made a living will expressing his or her desires concerning life-prolonging procedures, but has not designated a surrogate to execute his or her wishes concerning life-prolonging procedures or designated a surrogate under

part II, the person’s primary physician may proceed as directed by the principal in the living will. In the event of a dispute or disagreement concerning the primary physician’s decision to withhold or withdraw life-prolonging procedures, the primary physician shall not withhold or withdraw life-prolonging procedures pending review under s. 765.105. If a review of a disputed decision is not sought within 7 days following the primary physician’s decision to withhold or withdraw life-prolonging procedures, the primary physician may proceed in accordance with the principal’s instructions.

(2) Before proceeding in accordance with the principal’s living will, it must be determined that:

History. — s. 4, ch. 92-199; s. 10, ch. 94-183; s. 27, ch. 99-331; s. 16, ch. 2015-153.

765.305 Procedure in absence of a living will.

(1) In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to

part II unless the designation limits the surrogate’s authority to consent to the withholding or withdrawal of life-prolonging procedures.

(2) Before exercising the incompetent patient’s right to forego treatment, the surrogate must be satisfied that:

History. — s. 4, ch. 92-199; s. 28, ch. 99-331; s. 13, ch. 2000-295.

765.306 Determination of patient condition.

History. — s. 4, ch. 92-199; s. 13, ch. 94-183; s. 29, ch. 99-331; s. 14, ch. 2000-295; s. 17, ch. 2015-153.

765.309 Mercy killing or euthanasia not authorized; suicide distinguished.

(1) Nothing in this

chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

(2) The withholding or withdrawal of life-prolonging procedures from a patient in accordance with any provision of this

chapter does not, for any purpose, constitute a suicide.

History. — s. 4, ch. 92-199.

765.401 The proxy.

(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:

(2) Any health care decision made under this part must be based on the proxy’s informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

(3) Before exercising the incapacitated patient’s rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest.

(4) Nothing in this

section shall be construed to preempt the designation of persons who may consent to the medical care or treatment of minors established pursuant to s. 743.0645.

History. — s. 5, ch. 92-199; s. 12, ch. 94-183; s. 32, ch. 99-331; s. 15, ch. 2000-295; s. 7, ch. 2001-250; s. 136, ch. 2001-277; s. 13, ch. 2002-195; s. 5, ch. 2003-57.

765.404 Persistent vegetative state.

(1) The person has a judicially appointed guardian representing his or her best interest with authority to consent to medical treatment; and

(2) The guardian and the person’s primary physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient. If there is no medical ethics committee at the facility, the facility must have an arrangement with the medical ethics committee of another facility or with a community-based ethics committee approved by the Florida Bio-ethics Network.

The ethics committee shall review the case with the guardian, in consultation with the person’s primary physician, to determine whether the condition is permanent and there is no reasonable medical probability for recovery. The individual committee members and the facility associated with an ethics committee shall not be held liable in any civil action related to the performance of any duties required in this subsection.

History. — s. 33, ch. 99-331; s. 18, ch. 2015-153.

765.510 Legislative declaration.

History. — s. 1, ch. 74-106; s. 113, ch. 75-220; s. 3, ch. 84-264; s. 60, ch. 2001-226.

765.511

Definitions.

(1) “Agency” means the Agency for Health Care Administration.

(2) “Anatomical gift” or “gift” means a donation of all or part of a human body to take effect after the donor’s death and to be used for transplantation, therapy, research, or education.

(3) “Bank” or “storage facility” means a facility licensed, accredited, or approved under the laws of any state for storage of human bodies or body parts.

(4) “Death” means the absence of life as determined, in accordance with currently accepted medical standards, by the irreversible cessation of all respiration and circulatory function, or as determined, in accordance with s. 382.009, by the irreversible cessation of the functions of the entire brain, including the brain stem.

(5) “Decedent” means a deceased individual whose body or body parts may be, or are, the source of an anatomical gift.

(6) “Department” means the Department of Highway Safety and Motor Vehicles.

(7) “Disinterested witness” means a witness other than a person listed in s. 765.512(3) or other family member.

(8) “Document of gift” means any of the documents or mechanisms used in making an anatomical gift under s. 765.514.

(9) “Donor” means an individual who makes an anatomical gift of all or part of his or her body.

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

(11) “Eye bank” means an entity that is accredited by the Eye Bank Association of America or otherwise regulated under federal or state law to engage in the retrieval, screening, testing, processing, storage, or distribution of human eye tissue.

(12) “Guardian” means a person appointed pursuant to

chapter 744. The term does not include a guardian ad litem.

(13) “Hospital” means a hospital licensed, accredited, or approved under the laws of any state and includes a hospital operated by the United States Government or a state, or a subdivision thereof, although not required to be licensed under state laws.

(14) “Identification card” means an official identification card issued by a governmental entity, state agency, or subdivision thereof.

(15) “Organ procurement organization” means an entity that is designated as an organ procurement organization by the Secretary of the United States Department of Health and Human Services and that engages in the retrieval, screening, testing, processing, storage, or distribution of human organs.

(16) “Part of the body” or “body part” means an organ, eye, or tissue of a human being. The term does not include the whole body.

(17) “Physician” or “surgeon” means a physician or surgeon licensed to practice under

chapter 458 or

chapter 459 or similar laws of any state. “Surgeon” includes dental or oral surgeon.

(18) “Procurement” means any retrieval, recovery, processing, storage, or distribution of human organs or tissues for transplantation, therapy, research, or education.

(19) “Procurement organization” means an organ procurement organization, eye bank, or tissue bank.

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

(21) “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.

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

(23) “Tissue bank” means an entity that is accredited by the American Association of Tissue Banks or otherwise regulated under federal or state law to engage in the retrieval, screening, testing, processing, storage, or distribution of human tissue.

History. — s. 1, ch. 74-106; s. 113, ch. 75-220; s. 973, ch. 97-102; s. 5, ch. 98-68; s. 61, ch. 2001-226; s. 1, ch. 2009-218.

765.512 Persons who may make an anatomical gift.

(1) Any person who may make a will may make an anatomical gift of his or her body.

(2) A health care surrogate designated by the decedent pursuant to

part II of this

chapter may give all or any part of the decedent’s body for any purpose specified in s. 765.513 absent actual notice of contrary indications by the decedent.

(3) If the decedent has not made an anatomical gift or designated a health surrogate, a member of one of the classes of persons listed below, in the order of priority listed and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of a prior class, may give all or any part of the decedent’s body for any purpose specified in s. 765.513:

(4) A donee may not accept an anatomical gift if the donee has actual notice of contrary indications by the donor or actual notice that an anatomical gift by a member of a class is opposed by a member of a prior class.

(5) The person authorized by subsection (3) may make the anatomical gift after the decedent’s death or immediately before the decedent’s death.

(6) An anatomical gift authorizes:

(7) Once the anatomical gift has been made, the rights of the donee are paramount to the rights of others, except as provided by s. 765.517.

History. — s. 1, ch. 74-106; s. 45, ch. 75-220; s. 4, ch. 84-264; s. 62, ch. 85-62; s. 5, ch. 95-423; s. 974, ch. 97-102; s. 6, ch. 98-68; s. 12, ch. 99-331; s. 62, ch. 2001-226; s. 2, ch. 2003-46; s. 2, ch. 2008-223; s. 2, ch. 2009-218.

765.513 Donees; purposes for which anatomical gifts may be made.

(1) The following persons or entities may become donees of anatomical gifts of bodies or parts of them for the purposes stated:

(2) If multiple purposes are set forth in the document of gift but are not set forth in any priority order, the anatomical gift shall be used first 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.

(3) The Legislature declares that the public policy of this state prohibits restrictions on the possible recipients of an anatomical gift on the basis of race, color, religion, gender, national origin, age, physical disability, health status, marital status, or economic status, and such restrictions are void and unenforceable.

History. — s. 1, ch. 74-106; s. 45, ch. 75-220; s. 1, ch. 94-305; s. 975, ch. 97-102; s. 7, ch. 98-68; s. 63, ch. 2001-226; s. 3, ch. 2009-218; s. 20, ch. 2013-138.

765.514 Manner of making anatomical gifts.

(1) A person may make an anatomical gift of all or part of his or her body under s. 765.512(1) by:

(2) The anatomical gift may be made to a donee listed in s. 765.513, and the donee may be specified by name.

(3) Any anatomical gift by a health care surrogate designated by the decedent pursuant to

part II of this

chapter or a member of a class designated in s. 765.512(3) must be made by a document signed by that person or made by that person’s witnessed telephonic discussion, telegraphic message, or other recorded message.

History. — s. 1, ch. 74-106; s. 45, ch. 75-220; s. 1, ch. 83-171; s. 2, ch. 94-305; s. 6, ch. 95-423; s. 976, ch. 97-102; s. 8, ch. 98-68; s. 13, ch. 99-331; s. 64, ch. 2001-226; s. 3, ch. 2008-223; s. 4, ch. 2009-218.

765.515 Delivery of donor document.

(1) If an anatomical gift is made pursuant to s. 765.521, the completed donor registration card shall be delivered to the department, and the department must communicate the donor’s intent to the donor registry, but delivery is not necessary to the validity of the gift. If the donor withdraws the gift, the records of the department must be updated to reflect such withdrawal, and the department must communicate the withdrawal to the donor registry for the purpose of updating the registry.

(2) If an anatomical gift is made by the donor to a specified donee, the document of gift, other than a will, may be delivered to the donee to expedite the appropriate procedures immediately after death, but delivery is not necessary to the validity of the gift. The document of gift may be deposited in any hospital, bank, storage facility, or registry office that accepts such documents for safekeeping or to facilitate the donation of organs and tissue after death.

(3) At the request of any interested party upon or after the donor’s death, the person in possession shall produce the document of gift for examination.

History. — s. 1, ch. 74-106; s. 45, ch. 75-220; s. 2, ch. 83-171; s. 1, ch. 87-372; s. 7, ch. 95-423; s. 33, ch. 96-418; s. 9, ch. 98-68; s. 65, ch. 2001-226; s. 17, ch. 2008-9; s. 4, ch. 2008-223; s. 5, ch. 2009-218.

765.5155 Donor registry; education program.

(1) The Legislature finds that:

(2) The agency and the department shall jointly contract for the operation of a donor registry and education program. The contractor shall be procured by competitive solicitation pursuant to

chapter 287, notwithstanding an exemption under s. 287.057(3)(e). When awarding the contract, priority shall be given to existing nonprofit groups that are based within the state, have expertise working with procurement organizations, have expertise in conducting statewide organ and tissue donor public education campaigns, and represent the needs of the organ and tissue donation community in the state.

(3) The contractor shall be responsible for:

(4) Costs for the donor registry and education program shall be paid by the agency from the funds deposited into the Health Care Trust Fund pursuant to ss. 320.08047 and 322.08, which are designated for maintaining the donor registry and education program. In addition, the contractor may receive and use voluntary contributions to help support the registry and provide education.

(5) The donor registry established by this

section is designated as the “Joshua Abbott Organ and Tissue Registry.”

History. — s. 5, ch. 2008-223; s. 6, ch. 2009-218; s. 40, ch. 2010-151; s. 20, ch. 2013-154.

765.51551 Donor registry; public records exemption.

(1) Information held in the donor registry which identifies a donor is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(2) Such information may be disclosed to the following:

History. — s. 1, ch. 2008-222; s. 7, ch. 2009-218; s. 1, ch. 2013-65.

765.516 Donor amendment or revocation of anatomical gift.

(1) A donor may amend the terms of or revoke an anatomical gift by:

(2) Any anatomical gift made by a will may also be amended or revoked in the manner provided for the amendment or revocation of wills or as provided in paragraph (1)(a).

History. — s. 1, ch. 74-106; s. 113, ch. 75-220; s. 3, ch. 83-171; s. 8, ch. 95-423; s. 977, ch. 97-102; s. 10, ch. 98-68; s. 66, ch. 2001-226; s. 3, ch. 2003-46; s. 6, ch. 2008-223; s. 8, ch. 2009-218; s. 19, ch. 2015-153.

765.517 Rights and duties at death.

(1) The donee, pursuant to s. 765.515(2), may accept or reject an anatomical gift. If the donee accepts a gift to be used for research or education purposes, the donee may authorize embalming and the use of the body in funeral services, subject to the terms of the gift. If the gift is of a part of the body, the donee shall cause the part to be removed without unnecessary mutilation upon the death of the donor and before or after embalming. After removal of the body part, custody of the remainder of the body vests in the surviving spouse, next of kin, or other persons under obligation to dispose of the body.

(2) The time of death shall be determined by a physician who attends the donor at the donor’s death or, if there is no such physician, the physician who certifies the death. After death, those physicians or the donor’s primary care physician may participate in, but may not obstruct, the procedures to preserve the donor’s organs or tissues and may not be paid or reimbursed for such participation, nor be associated with or employed by, a procurement organization. These physicians may not participate in the procedures for removing or transplanting a part.

However, this subsection does not prevent a physician from serving in a voluntary capacity on the board of directors of a procurement organization or participating on any board, council, commission, or similar body related to the organ and tissue procurement system.

(3) The procurement organizations, or hospital medical professionals under the direction thereof, may perform any and all tests to evaluate the deceased as a potential donor and any invasive procedures on the deceased body in order to preserve the potential donor’s organs. These procedures do not include the surgical removal of an organ or penetrating any body cavity, specifically for the purpose of donation, until:

(4) All reasonable additional expenses incurred in the procedures to preserve the donor’s organs or tissues shall be reimbursed by the procurement organization.

(5) A person who acts in good faith and without negligence in accord with the terms of this part or under the anatomical gift laws of another state or a foreign country, or attempts to do so, may not be subject to any civil action for damages, may not be subject to any criminal proceeding, and may not be subject to discipline, penalty, or liability in any administrative proceeding.

(6) The provisions of this part are subject to the laws of this state prescribing powers and duties with respect to autopsies.

(7) The person making an anatomical gift and the donor’s estate are not liable for any injury or damages that result from the making or use of the gift.

(8) In determining whether an anatomical gift has been made, amended, or revoked under this part, a person may rely upon the representation of an individual listed in s. 765.512, relating to the individual’s relationship to the donor or prospective donor, unless the person knows that the representation is untrue.

History. — s. 1, ch. 74-106; s. 45, ch. 75-220; s. 4, ch. 83-171; s. 9, ch. 95-423; s. 978, ch. 97-102; s. 14, ch. 99-331; s. 67, ch. 2001-226; s. 7, ch. 2008-223; s. 9, ch. 2009-218.

765.518 Eye banks.

(1) Any state, county, district, or other public hospital may purchase and provide the necessary facilities and equipment to establish and maintain an eye bank for restoration of sight purposes.

(2) The Department of Education may have prepared, printed, and distributed:

History. — s. 1, ch. 74-106; s. 45, ch. 75-220; s. 462, ch. 77-147; s. 68, ch. 2001-226.

765.5185 Corneal removal by medical examiners.

(1) In any case in which a patient is in need of corneal tissue for a transplant, a district medical examiner or an appropriately qualified designee with training in ophthalmologic techniques may, upon request of any eye bank authorized under s. 765.518, provide the cornea of a decedent whenever all of the following conditions are met:

(2) Neither the district medical examiner nor the medical examiner’s appropriately qualified designee nor any eye bank authorized under s. 765.518 may be held liable in any civil or criminal action for failure to obtain consent of the next of kin.

History. — s. 1, ch. 77-172; s. 1, ch. 78-191; s. 979, ch. 97-102; s. 69, ch. 2001-226; s. 111, ch. 2002-1.

765.519 Enucleation of eyes by licensed funeral directors.

History. — s. 1, ch. 74-106; s. 45, ch. 75-220; s. 1, ch. 80-157; s. 70, ch. 2001-226; s. 148, ch. 2004-301.

765.521 Donations as part of driver license or identification card process.

(1) The agency and the department shall develop and implement a program encouraging and allowing persons to make anatomical gifts as a part of the process of issuing identification cards and issuing and renewing driver licenses. The donor registration card distributed by the department shall include the information required by the uniform donor card under s. 765.514 and such additional information as determined necessary by the department.

The department shall also develop and implement a program to identify donors which includes notations on identification cards, driver licenses, and driver records or such other methods as the department develops to clearly indicate the individual’s intent to make an anatomical gift. A notation on an individual’s driver license or identification card that the individual intends to make an anatomical gift satisfies all requirements for consent to organ or tissue donation.

The agency shall provide the necessary supplies and forms from funds appropriated from general revenue or contributions from interested voluntary, nonprofit organizations. The department shall provide the necessary recordkeeping system from funds appropriated from general revenue. The department and the agency shall incur no liability in connection with the performance of any acts authorized herein.

(2) The department, after consultation with and concurrence by the agency, shall adopt rules to implement the provisions of this

section according to the provisions of

chapter 120.

(3) Funds expended by the agency to carry out the intent of this

section may not be taken from funds appropriated for patient care.

History. — s. 1, ch. 75-71; s. 1, ch. 77-16; s. 463, ch. 77-147; s. 1, ch. 77-174; ss. 1, 2, ch. 80-134; s. 5, ch. 83-171; s. 10, ch. 95-423; s. 71, ch. 2001-226; s. 8, ch. 2008-223; s. 10, ch. 2009-218.

765.522 Duty of hospital administrators; liability of hospital administrators and procurement organizations.

(1) If, based on accepted medical standards, a hospital patient is a suitable candidate for organ or tissue donation, the hospital administrator or the hospital administrator’s designee shall, at or near the time of death, notify the appropriate procurement organization, which shall access the donor registry created by s. 765.5155 or any other donor registry to ascertain the existence of an entry in the registry which has not been revoked or a document of gift executed by the decedent. In the absence of an entry in the donor registry, a document of gift, or other properly executed document, the procurement organization shall request:

(2) A document of gift is valid if executed in accordance with this part or the laws of the state or country where it was executed and where the person making the anatomical gift was domiciled, has a place of residence, or was a citizen at the time the document of gift was executed.

(3) The agency shall establish rules and guidelines concerning the education of individuals who may be designated to perform the request and the procedures to be used in making the request. The agency is authorized to adopt rules concerning the documentation of the request, where such request is made.

(4) If a document of gift is valid under this section, the laws of this state govern the

interpretation of the document of gift.

(5) A document of gift or amendment of an anatomical gift is presumed to be valid unless it was not validly executed or was revoked.

(6) There shall be no civil or criminal liability against any procurement organization certified under s. 765.542 or against any hospital or hospital administrator or designee who complies with the provisions of this part and agency rules or if, in the exercise of reasonable care, a request for organ donation is inappropriate and the gift is not made according to this part and agency rules.

(7) The hospital administrator or a designee shall, at or near the time of death of a potential donor, directly notify the affiliated organ procurement organization of the potential organ donor. The organ procurement organization must offer any organ from such a donor first to patients on a Florida-based local or state organ sharing transplant list.

For the purpose of this subsection, the term “transplant list” includes certain categories of national or regional organ sharing for patients of exceptional need or exceptional match, as approved or mandated by the Organ Procurement and Transplantation Network, or its agent. This notification may not be made to a tissue bank or eye bank in lieu of the organ procurement organization unless the tissue bank or eye bank is also designated as an organ procurement organization.

History. — s. 1, ch. 86-212; s. 2, ch. 87-372; s. 13, ch. 95-423; s. 980, ch. 97-102; s. 12, ch. 98-68; s. 15, ch. 99-331; s. 75, ch. 2001-226; s. 104, ch. 2003-1; s. 9, ch. 2008-223; s. 11, ch. 2009-218.

765.53 Organ Transplant Advisory Council; membership; responsibilities.

(1) A statewide technical Organ Transplant Advisory Council is created within the agency, consisting of twelve members who are physicians licensed under

chapter 458 or

chapter 459, to represent the interests of the public and the clients of the Department of Health or the agency. A person employed by the agency may not be appointed as a member of the council.

(2) The Secretary of Health Care Administration shall appoint all members of the council to serve a term of 2 years.

(3) The Secretary of Health Care Administration shall fill each vacancy on the council for the balance of the unexpired term. Priority consideration must be given to the appointment of an individual whose primary interest, experience, or expertise lies with clients of the Department of Health and the agency. If an appointment is not made within 120 days after a vacancy occurs on the council, the vacancy must be filled by the majority vote of the council.

(4) The members of the council shall elect a chairperson. The term of the chairperson shall be for 2 years, and an individual may not serve as chairperson for more than two consecutive terms.

(5) Members of the council shall receive no compensation, but shall be reimbursed for per diem and travel expenses by the agency in accordance with s. 112.061 while engaged in the performance of their duties.

(6) The responsibilities of the council shall be to recommend to the agency indications for adult and pediatric organ transplants. The council shall also formulate guidelines and standards for organ transplants and for the development of End Stage Organ Disease and Tissue/Organ Transplant programs. The recommendations, guidelines, and standards developed by the council are applicable only to those health programs funded through the agency.

(7) The council shall meet at least annually or upon the call of the chairperson or the Secretary of Health Care Administration.

History. — ss. 1, 2, ch. 86-208; ss. 88, 89, ch. 86-220; s. 3, ch. 87-50; s. 8, ch. 91-49; s. 52, ch. 91-297; s. 5, ch. 91-429; s. 3, ch. 94-305; s. 50, ch. 97-101; s. 1, ch. 99-299; s. 6, ch. 2000-305; s. 33, ch. 2003-1; s. 12, ch. 2009-218.

765.541 Certification of procurement organizations; agency responsibilities.

(1) Establish a program for the certification of organizations, corporations, or other entities engaged in the procurement of organs, tissues, and eyes for transplantation.

(2) Adopt rules that set forth appropriate standards and guidelines for the program in accordance with ss. 765.541-765.546 and

part II of

chapter 408. These standards and guidelines must be substantially based on the existing laws of the Federal Government and this state and the existing standards and guidelines of the United Network for Organ Sharing (UNOS), the American Association of Tissue Banks (AATB), the South-Eastern Organ Procurement Foundation (SEOPF), the North American Transplant Coordinators Organization (NATCO), and the Eye Bank Association of America (EBAA). In addition, the agency shall, before adopting these standards and guidelines, seek input from all procurement organizations based in this state.

(3) Collect, keep, and make available to the Governor and the Legislature information regarding the numbers and disposition of organs, tissues, and eyes procured by each certified procurement organization.

(4) Monitor procurement organizations for program compliance.

(5) Provide for the administration of the Organ and Tissue Procurement and Transplantation Advisory Board.

History. — ss. 2, 9, ch. 91-271; s. 5, ch. 91-429; s. 5, ch. 94-305; s. 33, ch. 2003-1; s. 201, ch. 2007-230; s. 13, ch. 2009-218.

765.542 Requirements to engage in organ, tissue, or eye procurement.

(1) The requirements of

part II of

chapter 408 apply to the provision of services that require licensure pursuant to ss. 765.541-765.546 and

part II of

chapter 408 and to entities licensed or certified by or applying for such licensure or certification from the agency pursuant to ss. 765.541-765.546. A person may not engage in the practice of organ procurement in this state without being designated as an organ procurement organization by the Secretary of the United States Department of Health and Human Services and being appropriately certified by the agency. A physician or organ procurement organization based outside this state is exempt from these certification requirements if:

(2) A person may not engage in tissue procurement in this state unless it is appropriately certified as a tissue bank by the agency.

(3) A person may not engage in the practice of eye procurement in this state without being appropriately certified as an eye bank by the agency. Funeral directors or direct disposers who retrieve eye tissue for an eye bank certified under this subsection are exempt from the certification requirements under this subsection.

(4) A limited certificate may be issued to a tissue bank or eye bank, certifying only those components of procurement which the bank has chosen to perform. The agency may issue a limited certificate if it determines that the tissue bank or eye bank is adequately staffed and equipped to operate in conformity with the rules adopted under this section.

History. — s. 3, ch. 91-271; s. 6, ch. 94-305; s. 33, ch. 2003-1; s. 202, ch. 2007-230; s. 14, ch. 2009-218.

765.543 Organ and Tissue Procurement and Transplantation Advisory Board; creation; duties.

(1) There is hereby created the Organ and Tissue Procurement and Transplantation Advisory Board, which shall consist of 14 members who are appointed by and report directly to the Secretary of Health Care Administration. The membership must be regionally distributed and must include:

(2) The advisory board members may not be compensated for their services except that they may be reimbursed for their travel expenses as provided by law. Members of the board shall be appointed for 3-year terms of office.

(3) The board shall:

History. — ss. 4, 9, ch. 91-271; s. 5, ch. 91-429; s. 7, ch. 94-305; s. 7, ch. 2000-305; s. 33, ch. 2003-1; s. 15, ch. 2009-218.

765.544 Fees; organ and tissue donor education and procurement.

(1) In accordance with s. 408.805, an applicant or a certificateholder shall pay a fee for each application submitted under this part,

part II of

chapter 408, and applicable rules. The amount of the fee shall be as follows:

(2) The agency shall specify by rule the administrative penalties for the purpose of ensuring adherence to the standards of quality and practice required by this chapter,

part II of

chapter 408, and applicable rules of the agency for continued certification.

(3)(

a) Proceeds from fees, administrative penalties, and surcharges collected pursuant to this

section must be deposited into the Health Care Trust Fund.

(4) As used in this section, the term “procurement activity in this state” includes the bringing into this state for processing, storage, distribution, or transplantation of organs or tissues that are initially procured in another state or country.

History. — s. 5, ch. 91-271; s. 8, ch. 94-305; s. 32, ch. 96-418; ss. 3, 4, ch. 98-68; s. 54, ch. 2002-1; s. 33, ch. 2003-1; s. 203, ch. 2007-230; s. 19, ch. 2008-9; s. 16, ch. 2009-218.

765.545 Physician supervision of cadaveric organ and tissue procurement coordinators.

History. — s. 6, ch. 91-271; s. 9, ch. 94-305; s. 1035, ch. 95-148; s. 34, ch. 2003-1; s. 17, ch. 2009-218.

765.546 Procurement of cadaveric organs for transplant by out-of-state physicians.

(1) The organs are being procured for an out-of-state patient who is listed on, or referred through, the United Network for Organ Sharing System; and

(2) The organs are being procured through the auspices of an organ procurement organization certified in this state.

History. — s. 7, ch. 91-271; s. 33, ch. 2003-1.

765.547 Cooperation between medical examiner and procurement organization.

(1) A medical examiner and procurement organization shall cooperate with each other in order to maximize opportunities to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.

(2) The Florida Medical Examiners Commission shall adopt rules establishing cooperative responsibilities between medical examiners and procurement organizations to facilitate and expedite completion of the medical examiner’s responsibilities under

chapter 406 in a manner that will maximize opportunities to recover anatomical gifts.

(3) This part does not supersede any part of

chapter 406 relating to medical examiners and the disposition of dead bodies.

History. — s. 18, ch. 2009-218.