The Office of General Counsel issued the following informal opinion on July 17, 2002, representing the position of the New York State Insurance Department.
Re: Health Insurance Coverage, Organ Donors
May an insurer covering the recipient of a organ donation require the donor, if living, to make a claim to his or her insurance company for costs associated with harvesting the donated organ and only pay the donors medical costs either if the donors insurer refuses or the donor is not insured?
There is no statute or regulation that would prohibit such a practice.
The inquirer is a transplant coordinator at medical center and you deal with kidney transplants.
The inquirer represents that historically the costs associated with harvesting organs from both living donors and cadavers have been paid by the recipients health insurer as part of the costs of the organ transplant. The inquirer indicates that recently some insurers of organ recipients, where the coverage encompasses the costs of organ transplants for their insureds, have directed living donors to submit the bills attendant upon their hospitalization to their own insurer and will pay those costs only if the donors insurer refuses or if the donor is not insured. The insurers practices involving costs attendant upon harvesting cadaveric donations has not changed.
The inquirer represents that some donors may be financially at risk if they have policies or contracts that have caps and would not want to exhaust a finite resource for surgery that would not benefit them. Other donors, the inquirer represents, are angered at the thought of having to pay to make an anatomical gift. The inquirer asserts that some donors contend that requiring them to reveal their own insurance information violates the right to donor confidentiality as defined in cadaver donor regulations.
Finally, the inquirer represent s that the position of the recipients insurers is illogical since they continue to pay for the costs associated with harvesting of cadaveric organs and "the cost of a living donor kidney transplants are cheaper than a cadaver transplant".
There are no provisions of the New York Insurance Law or the regulations promulgated thereunder governing which insurer, that of the living donor or recipient, should pay for the harvesting of organs from living donors.
The statutory regulation of organ transplants began with the passage by the United States Congress of the National Organ Transplant Act, Pub. L. No. 98-507 (1984), which, inter alia, enacted 42 U.S.C.A. § 274e (West 1991):
(a) Prohibition. It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.
. . .
(c) Definitions For purposes of subsection (a): . . . (2) 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. . . .
The legislative history of 42 U.S.C.A. § 274e, 84 U.S. Code Congressional and Administrative News 3992, indicates that the purpose was to prohibit commercial trafficking in human organs. The Federal enactment was soon followed by a similar enactment in New York, 1985 N.Y. Laws 122. The New York statute, New York Public Health Law § 4307 (McKinney 2002), is almost identical to 42 U.S.C.A. 274e:
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 commissioner 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. Any person who violates this section shall be guilty of a misdemeanor.
Subsequently, 1994 N.Y. Laws 323, the New York Legislature enacted New York Public Health Law § 4308 (McKinney 2002):
Notwithstanding any other provision of law, no physician, hospital or other health care provider may charge the donor's estate, family or insurer for any cost incurred in testing or removing a human organ or tissue from a donor and such charge shall be void and unenforceable.
New York Public Health Law § 4308, by its terms, is limited to cadaveric donations. There is nothing in the legislative history to indicate the statute may be applied to organ donations from living donors.
There is no provision in the New York Insurance Law or New York Public Health Law, or the regulations promulgated thereunder, including the statutes regulating organ donation, New York Public Health Law Article 43, that would make it illegal for an insurer, as a condition of covering a living donors medical costs, to require the donor to exhaust his or her own insurance. Accordingly, the insurers actions are not presently illegal.
For further information you may contact Principal Attorney, Alan Rachlin, at the New York City Office.