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  

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               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  

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          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?

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             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  

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               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  

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                    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













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