BILL ANALYSIS SENATE COMMITTEE ON VETERANS AFFAIRS JEFF DENHAM, CHAIRMAN Bill No: AB 1644 Author: Nielsen Version: As amended June 2, 2010 Hearing Date: June 22, 2010 Fiscal: No SUBJECT OF BILL Veterans' remains and internment PROPOSED LAW 1. Requires a cemetery authority, corporation, or association in possession of cremated remains to give information to a veterans' service organization (VSO) upon meeting the following conditions: VSO has determined the remains are a veteran or veteran dependent eligible for burial in national or state cemetery; VSO has made a reasonable effort to locate the agent or family member who has the right to control the remains; Agent or family member has made no attempt to claim the remains; and The remains have remained unclaimed for at least one year. 1. Exempts a cemetery authority, corporation, or association from "civil liability except in willful or wanton misconduct, if the conditions of this section are met." 2. Requires VSO to take all "reasonable steps" to inter remains received according to this chapter. 3. Exempts VSO from negligence if the VSO did not know or have reason to know that the remains were not released in compliance with this bill. 4. Defines terms to be used in the bill. EXISTING LAW AND BACKGROUND 1. California Military and Veterans Code (MVC) section 940 defines "veteran" as any honorably discharged veteran from the armed forces of the United States. 2. MVC section 940.5 includes cremation in the definition of "'burial' and 'internment'". 3. MVC section 941 exempts residents of the state veterans' homes from the definition of these sections. 4. MVC section 942 requires that each county board of supervisors (BOS) designate "an honorably discharged soldier, sailor or marine in the county?who shall cause to be decently interred the body of any veteran or widow of a veteran who dies in the county without having sufficient means to defray the expenses of burial, other than moneys paid or due and payable by the United States, pursuant to the World War adjusted compensation act."* The World War Adjusted Compensation Act was passed in 1924 over the veto of President John Calvin Coolidge. The compensation act was a series of payments over 20 years to help make veterans whole for the money they lost not working in the factories and other employ while those who did not serve stayed home and got promotions. Since 1944 is long passed, the clause regarding the Adjusted Compensation Act is no longer relevant. 5. MVC section 943 forbids the burial of any veteran Page 2 in a pauper's grave. 6. MVC section 944 provides for the burial of a veteran even if the person so designated by the county BOS is unavailable at the time to bury a veteran. 7. MVC section 946 provides that if a veteran dies in other than his county of residence that the county burying that veteran shall be reimbursed by the county of residence. 8. MVC section 948 requires the clerk of the BOS to make application to the proper authorities of the United States for a headstone as authorized by the Congress of the United States of America. 9. MVC section 949 requires BOS to "perpetually maintain" these graves. MVC sections 960, 960.5, and 961 all also deal with the required care of veterans' graves. 10. Defines "cremated remains" to mean the ashes and bone fragments of a human body that are left after cremation in a crematory, including ashes from the cremation container. (Health & Safety Code, (H&S) Section 7002.) 11. Defines "interment" to mean the disposition of human remains by entombment or burial in a cemetery or, in the case of cremated remains, by inurnment, placement or burial in a cemetery, or burial at sea. (H&S 7009.) 12. Requires licensed funeral directors, embalmers, and cemetery personnel, prior to disposition of cremated remains, to do all of the following: a) Remove the cremated remains from the place of cremation in a durable container. b) Keep the cremated remains in a durable container. c) Store the cremated remains in a place Page 3 free from exposure to the elements. d) Responsibly maintain the cremated remains. (H&S Sec. 7054.6(b).) e) Provides that the right to control the disposition of the remains of a deceased person and the location and conditions of interment, unless other directions have been given by the decedent, vests in, and the duty of disposition and the liability for the reasonable cost of disposition of the remains devolves upon, the following in the order named: (1) an agent under a power of attorney for health care, as provided; (2) the surviving spouse; (3) surviving adult children; (4) surviving parents; (5) surviving adult children; (6) surviving adult person in the next degree of kinship; (7) the public administrator when the deceased has sufficient assets. (H&S Sec. 7100(a).) COMMENT 1. This bill is to help take care of the unclaimed remains of veterans. At least since 1935 when California's Codes were reorganized the MVC has had provisions for taking care of the remains of indigent and/or unclaimed veterans and their spouses, which raises the question of "Why do we need to reinvent the wheel?" 2. If we do need to reinvent the wheel, then the next question is, "Why divide the policy across two different codes and put the new terms into the Health & Safety Code?" 3. As evidenced by MVC sections 940-962 (most of which were mentioned in the existing law and background section of this analysis). The state now has jurisdiction over this matter. Does the Legislature want to switch this responsibility from the counties, which it has jurisdiction over and can hold accountable, to service organizations that it has no jurisdiction over and cannot hold accountable? Page 4 4. In addition to service organizations, this bill allows "a member or employee of an eligible nonprofit veterans' corporation, association, or entity that specifically deals with verification and veterans' burials" to receive veterans' remains. 5. Veteran Service Organizations (VSO) are chartered in Washington, D.C., but counties are chartered within the state. While the Veterans' of Foreign Wars (VFW), the American Legion (The Legion), and the Vietnam Veterans' of America (VVA) are familiar to legislators, the list is full of organizations that even members of this committee would likely not be aware of or recognize. Congress and the National Veterans' Administration have currently chartered 54 different entities to work on behalf of veterans. (Source: http://veterans.house.gov/links/ ) Members of the committee as well as the State Senate as a whole, may want to ask if they are comfortable relying on the judgment of entities in Washington D.C.'s as to what is or is not a legitimate organization for claiming veterans' remains here in California? Given the numerous organizations and the broad language that allows any "employee" of any "entity" associating itself with "veterans' burials" to receive veterans' remains, could increase burial scandals such as the 1,000 cremains of people found in the Contra Costa Airport in 1997 or the storage locker cremains of 96 found in Georgia in 2009. 6. Background information provided by the author and sponsor states this bill is necessary to allow unclaimed remains of veterans to be properly interred and that several other states have enacted similar legislation. California has long recognized the need for the proper interment of veterans remains, including cremains, and Page 5 already has a system in place that it administers through the counties. The present system goes beyond simple internment and guarantees a proper grave, a proper headstone, and proper care into perpetuity. 7. Given existing state law, the question must be raised as to why VSOs have not applied under MVC section 942 to become those officers designated by their county BOS to do this work through the channels that exist now? Certainly as a bona fide officer of the county, with the authority to do what is necessary to properly inter all veterans in the county, that officer would have the ability to request the proper information from the funeral home as well as provide the remains to a VA cemetery once verified. 8. Some small amendments may be needed in the present pertinent code sections, such as raising the $10 limit on the amount of time county staff can spend processing the paperwork with VA for a headstone, but those small issues can easily be taken care of through amendments to the existing code section. 9. REQUIRED AMENDMENTS - a) "Veteran Remains Organization" is defined for the purposes of this section to mean any entity recognized by the Veterans Administration and the National Personnel Records Center as an organization authorized to verify and inter unclaimed cremated remains of American veterans. The term includes a member or employee of a Veteran Remains Organization as defined. b) The committee should amend this language into the 900s section of the Military and Veterans Code to keep all the same subject matter in the same section of code. c) County BOS are encouraged to appoint Page 6 personnel from a Veterans Remains Organization as defined to fulfill the role created in MVC 942. d) Amend MVC section 942 to include Veterans Remains Organization as defined in suggested amendment "a". PRIOR ACTIONS Assembly Judiciary 10-0 Assembly Veterans 9-0 Assembly Floor 75-0 None of the members of this committee were seated for the 1935, 1949, 1955, or 1983 amendments. SUPPORT Vietnam Veterans of America, California State Council (Sponsor) AMVETS, Department of California CA Association of County Veteran Service Officers (CVSO) American Legion, Department of California OPPOSE None received Page 7