BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 1644 (Nielsen)
          As Amended June 2, 2010
          Hearing Date: June 29, 2010
          Fiscal: No
          Urgency: No
          TW:jd
                    

                                        SUBJECT
                                           
                                  Veterans' remains

                                      DESCRIPTION  

          This bill would require a cemetery authority, cemetery  
          corporation or association, or other entity in possession of  
          cremated remains to release to a veterans' remains organization,  
          as defined, personal information, as specified, regarding the  
          identity of a deceased veteran or dependent of a veteran for the  
          purpose of establishing veteran burial entitlement.  This bill  
          also would authorize the cemetery authority, cemetery  
          corporation or association, or other entity in possession of  
          cremated remains to release the cremains to the veterans'  
          remains organization, as specified, for the purpose of  
          interment.

          (This analysis reflects author's amendments to be offered in  
          Committee.)

                                      BACKGROUND  

          Since 1889, the Legislature has supported the designation of a  
          military veteran to be responsible for the disposition of the  
          remains of indigent veterans or their widows.  Accordingly, the  
          Legislature established a procedure whereby the local county  
          board of supervisors could designate a recipient for the purpose  
          of proper remains disposition. 

          This bill, sponsored by Vietnam Veterans of America, would  
          establish procedures whereby all (not just indigent) unclaimed  
          remains of veterans and veterans' dependents could be identified  
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          and designated to a veterans' remains organization for proper  
          burial.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that when a coroner takes custody of a  
          dead body pursuant to law, he or she shall make a reasonable  
          attempt to locate the family. (Gov. Code Sec. 27471(a).)

           Existing law  provides that, when no other person with a duty of  
          interment can be located, the entity with custody of the remains  
          can require the county coroner to take possession of and inter  
          the remains.  (Health & Saf. Code Sec. 7104.)
           
          Existing law  provides that a public entity having control of  
          remains to be interred at public expense shall use due diligence  
          to notify the relatives of the decedent.  (Health & Saf. Code  
          Sec. 7200.)
           
          Existing law  provides that a funeral director or cemetery  
          authority is responsible for the disposition of the remains of  
          decedents in the event no other individuals with higher  
          priority, as specified, are located to assume the  
          responsibility.  (Health & Saf. Code Sec. 7100.)  
           
          Existing law  provides that a cemetery authority is not liable  
          for the cremated remains of any person which have been left in  
          its possession for a period of one year, unless a written  
          contract has been entered into with the cemetery authority for  
          their care or unless permanent interment has been made.  (Health  
          & Saf. Code Sec. 7112.)

           Existing law  provides that the board of supervisors of each  
          county shall designate an honorably discharged military service  
          member to inter indigent veterans and widows of veterans.  (Mil.  
          & Vet. Code Sec. 942.)

           Existing law  provides that the military service member appointed  
          to inter the indigent veteran or veteran's widow must  
          investigate the ability of the deceased veteran's family and  
          their ability or inability to pay for the interment of the  
          veteran or veteran's widow.  (Mil. & Vet. Code Sec. 947.)

           Existing law  provides that if there is no family member able to  
          pay for the interment of the deceased veteran or veteran's  
          widow, the appointed military service member will inter the  
                                                                      



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          decedent.  (Mil. & Vet. Code Sec. 947.)

           Existing law  provides that the appointed military service member  
          must report back to the county board of supervisors regarding  
          the payment of expenses incurred during the interment of the  
          deceased veteran or veteran's widow.   (Mil. & Vet. Code Sec.  
          947.)

           Existing law  provides that a person who unlawfully disposes,  
          uses, or sells the body of an unclaimed dead person is guilty of  
          a misdemeanor.  (Health & Saf. Code Sec. 7208.)

           Existing law  provides that any person signing any authorization  
          for the interment or
          cremation of any remains warrants the truthfulness of any fact  
          set forth in the authorization, the identity of the person whose  
          remains are sought to be interred or cremated, and his or her  
          authority to order interment or cremation.  He or she is  
          personally liable for all damage resulting from breach of such  
          warranty.  (Health & Saf. Code Sec. 7110.)

           This bill  would authorize a local county board of supervisors to  
          designate a member of a Veterans' Remains Organization as a  
          recipient of the remains of an indigent, abandoned, or unclaimed  
          veteran or dependent of a veteran for the purpose of interment.   

           
          This bill  , upon request of a Veterans' Remains Organization, as  
          defined, would require a cemetery authority, cemetery  
          corporation or association, or other entity in possession of the  
          cremated remains of a veteran or dependent of a veteran, after  
          having verified the status of the Veterans' Remains Organization  
          as an organization authorized by the Veterans Administration and  
          the National Personnel Records Center or as an organization  
          authorized by the local county board of supervisors to verify  
          and inter unclaimed cremated remains of American veterans, to  
          release Veteran Status Information, as defined, to a Veterans'  
          Remains Organization. 
           
          This bill  would specify that the use or disclosure of Veteran  
          Status Information obtained by a Veterans' Remains Organization  
          shall be permitted only for the purpose of verifying veteran  
          interment benefits of the deceased veteran or dependent of a  
          veteran with the Department of Veterans Affairs and shall not be  
          used or disclosed for any other purpose. 

                                                                      



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           This bill  would authorize the cemetery authority, cemetery  
          corporation or association, or other entity in possession of the  
          cremated remains of a veteran or dependent of a veteran, after  
          having verified the status of the Veterans' Remains Organization  
          as an organization authorized by the Veterans Administration and  
          the National Personnel Records Center or as an organization  
          authorized by the local county board of supervisors to verify  
          and inter unclaimed cremated remains of American veterans,  to  
          release the cremated remains of the veteran or dependent of a  
          veteran to a Veterans' Remains Organization for the sole purpose  
          of interment, under statute, when all of the following  
          conditions have been met:
             (1) the Veterans' Remains Organization shall verify the  
               interment benefits of the deceased veteran or dependent of  
               a veteran with the Department of Veterans Affairs and  
               provide documentation of such verification to the cemetery  
               authority, cemetery corporation or association, or other  
               entity that the decedent is a veteran or a dependent of a  
               veteran, eligible for burial in a national or state  
               cemetery;
             (2)  the Veterans' Remains Organization shall make a  
               reasonable effort to locate the agent or family member who  
               has the right to control the cremated remains of the  
               veteran or dependent of a veteran;
             (3)  an agent or family member who has the right to control  
               the cremated remains of the veteran or dependent of a  
               veteran has made no attempt to claim the cremated remains;  
               and
             (4)  the cremated remains have been in the possession of the  
               cemetery authority, cemetery corporation or association, or  
               other entity for a period of at least one year.
           
          This bill  would prescribe that the cemetery authority, cemetery  
          corporation or association, or other entity that releases  
          Veteran Status Information or cremated remains of the veteran or  
          dependent of a veteran, under statute, shall not be subject to  
          civil liability, except for gross negligence.

           This bill  would require a Veterans' Remains Organization to take  
          all reasonable steps to inter the cremated remains of a veteran  
          or dependent of a veteran received, under statute. 

           This bill  would prescribe that a Veterans' Remains Organization  
          that receives and inters the cremated remains of a veteran or  
          dependent of a veteran under statute shall not be liable for  
          negligence if the Veterans' Remains Organization does not know  
                                                                      



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          or have reason to know that the cremated remains of the veteran  
          or dependent of a veteran were not released, under statute, by  
          the cemetery authority, cemetery corporation or association, or  
          other entity. 

           This bill  would encourage local county boards of supervisors to  
          appoint personnel from a Veterans' Remains Organization to inter  
          indigent veterans or dependents of veterans. 

           This bill  would define "Veteran Status Information" to mean the  
          data required by the Department of Veterans Affairs to verify  
          the status of a decedent as either a veteran or the dependent of  
          a veteran for purposes of eligibility for burial in a national  
          or state cemetery, including the person's name, service number,  
          social security number, date of birth, date of death, place of  
          birth, branch of the service, and military rank.  

           This bill  would define "Veterans' Remains Organization" 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. 







                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
          Current law does not address the disposition of unclaimed  
          cremated remains, or cremains of veterans.  The goal is to  
          locate, identify, and honorably inter the unclaimed remains of  
          forgotten veterans.
          
          The Missing in America Project, a supporter of this bill,  
          writes:

            [The identification and interment process of veteran remains]  
            is a tedious and arduous task as current laws are not  
                                                                      



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            sufficient in detail and clarity to enable open working  
            relationships with entities in possession of cremated remains.  
             Confusion and inconsistency, in the knowledge that  
            information on a decedent is public record leads to inaction  
            or refusal to provide the information required by the  
            Department of Veterans Affairs under US Code, title 38 to  
            receive his veterans benefits.

            It is essential as outlined in [this] bill that entities in  
            possession of cremated remains release the required  
            information upon request by authorized groups and work to  
            inter the veteran with the full military honors and the  
            respect that is due them.  This also must be accomplished  
            without fear of repercussions for doing the honorable thing.

            [T]his vital piece of legislation [will] provide a proper  
            resting place for those veterans that are unclaimed on shelves  
            and in storage rooms unclaimed or abandoned.  We must now  
            enable those entities who have guarded and protected these  
            veterans for years, to step forward and allow them to provide  
            the final and dignified resolution for their efforts without  
            fear of repercussions.

          2.  The bill, as currently in print, raises concerns regarding the  
            release of personal information of deceased veterans  

          This bill, as currently in print, would require a cemetery  
          authority, cemetery corporation or association, or other entity  
          (Cemetery Entities) in possession of the cremated remains of a  
          veteran or dependent of a veteran, to release Veteran Status  
          Information to a Veterans' Remains Organization for  
          identification and confirmation of veteran burial benefits.  The  
          bill also would authorize the Cemetery Entities to release the  
          cremains of veterans and dependents of veterans for proper  
          burial.  However, this bill does not provide a requirement to  
          verify the identity of the individual requesting the personal  
          information or cremains.  Accordingly, the Cemetery Entities  
          could release the Veteran Status Information (which includes the  
          date of birth and Social Security number of the veteran or  
          dependent of a veteran) and cremains to anyone, without being  
          required to verify that the individual requesting the  
          information and cremains was in fact a member of a qualified  
          Veterans' Remains Organization.  Further, the Veterans' Remains  
          Organization would be required to verify veterans' burial  
          benefits, but they are not required to provide proof of such  
          verification to the Cemetery Entities.
                                                                      



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          Committee staff recommends that, in order to properly remove  
          civil liability on the part of a Cemetery Entity as would be  
          provided under this bill, there must be a check on the release  
          of a decedent's personal information and cremains.  The Cemetery  
          Entities should be required to verify that the personal  
          information and cremains are released to an authorized veterans'  
          remains organization, as defined, and the proposed amendments  
          would achieve this.  The National Personnel Records Center  
          maintains a list of veteran organizations authorized by the  
          Veterans Administration and the National Personnel Records  
          Center to verify and inter unclaimed cremated remains of  
          American veterans.   The list of veterans' organizations  
          authorized to inter cremains (a veterans' remains organization)  
          is different from the general list of veterans' organizations  
          which can help verify veterans benefits (a veterans' service  
          organization).  Because a veterans' service organization may not  
          be among the veterans' organizations specifically authorized to  
          inter veterans' remains, the proposed amendments also would  
          replace the definition of "veterans' service organization" with  
          a definition of "veterans' remains organization." 

          Additionally, the local county board of supervisors maintains a  
          list of veteran organizations authorized by the local county  
          board of supervisors to inter remains of American veterans and  
          their dependents.  The Cemetery Entity could contact either of  
          these entities to confirm the relationship of the individual  
          requesting the personal information and cremains.  Requiring the  
          Cemetery Entity to verify the identity of the individual  
          requesting the personal information and cremains will help to  
          make certain that the cremains of veterans and their dependents  
          are properly honored rather than improperly released by a  
          Cemetery Entity and subsequently disposed of by potential  
          identity thieves.  For this reason, the author agreed to accept  
          the proposed amendments.  (See Comment 5 for the language of the  
          amendments.)

          Further, this bill, as currently in print, would provide its  
          provisions under the Health and Safety Code.  In the Veterans  
          Affairs Committee hearing on June 22, 2010, the author agreed to  
          amend the bill to properly place the bill's provisions under the  
          Military and Veterans Code. (See Comment 5 for the language of  
          the amendments.)

          3.  Next of Kin  

                                                                      



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          This bill seeks to put to final rest the cremains of unclaimed  
          veterans and their dependents.  Under existing law, a Cemetery  
          Entity is not permitted to release cremains to veteran  
          organizations for the proper interment of the cremains of  
          veterans and their dependents.  Only individuals authorized by a  
          local county board of supervisors may request remains of  
          indigent veterans and their widows to properly inter them.   
          (Mil. & Vet. Code Sec. 942.)  For these reasons, Cemetery  
          Entities are reluctant to release the cremains to the Veterans'  
          Remains Organization in the event next of kin surfaces and makes  
          a claim to the cremains.  

          This bill would provide that, in order for a Veterans' Remains  
          Organization to take possession of cremains, the Cemetery Entity  
          must be in possession of the remains for at least one year.   
          This provision provides enough time for the next of kin to take  
          possession of the cremains.   Further, this bill requires the  
          Veteran's Remains Organization to provide notice to all known  
          next of kin of the Veterans' Remains Organization's intent to  
          inter the remains.  Should no next of kin step forward to claim  
          the cremains after being given such notice, the Veterans'  
          Remains Organization could step in to provide proper interment.

          4.  Liability of Cemetery Entity for gross negligence  

          The bill, as currently in print, provides for a release from  
          civil liability, except for wanton and willful misconduct, by  
          the Cemetery Entity.  However, the Cemetery Entity should be  
          held accountable in the event that none of the procedures  
          detailed in this bill for producing personal information and  
          cremains are followed.  Should the Cemetery Entity fail to  
          conduct any investigation into the validity of the Veterans'  
          Remains Organization, the Cemetery Entity should be liable for  
          gross negligence for failing to perform such investigation.  In  
          order to provide a measure whereby Cemetery Entities will  
          attempt to comply with the request for personal information and  
          possession of cremains by the Veterans' Remains Organization,  
          Cemetery Entities should not be held liable for negligent  
          conduct in performing the requirements under the proposed  
          amendments to this bill.  

          5.    Amendments to address concerns  

          In response to the above concerns, the author has agreed to the  
          following amendments.  

                                                                      



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             Amendments:

             Strike out entire contents of the bill and insert:

            SECTION 1. Section 942 of the Military and Veterans Code, is  
            amended to read:

            The board of supervisors of each county shall designate an  
            honorably discharged  soldier, sailor, or marine in the county  
            who has served in or with the army or navy of the  veteran of  
            the United States military or a member of a Veterans' Remains  
            Organization as defined in Section 951, and who shall cause to  
            be decently interred the body of any veteran or  widow  spouse  
            or the eligible dependent of a veteran as defined by the  
            United States Department of Veterans Affairs for compensation  
            purposes who dies in the county.  This section shall apply to  
            all indigent, abandoned, or unclaimed veterans and dependents  
            of veterans, including those deceased veterans and dependents  
            of veterans 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.

            SECTION 2.  Chapter 5, article 2 (commencing with Section 951)  
            is added to Division 4 of the Military and Veterans Code, to  
            read:

            951. As used in this chapter, the following definitions shall  
            apply:
            (a) "Veteran Status Information" means the data required by  
            the Department of Veterans Affairs to verify the status of a  
            decedent as either a veteran or the dependent of a veteran for  
            purposes of eligibility for burial in a national or state  
            cemetery, including the person's name, service number, social  
            security number, date of birth, date of death, place of birth,  
            branch of the service, and military rank. 
             (b)  "Veterans' Remains Organization" means 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  
            Veterans' Remains Organization as defined.

            952. (a) A cemetery corporation or association, or other  
            entity in possession of the cremated remains of a veteran or  
            dependent of a veteran shall, upon request of a Veterans'  
                                                                      



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            Remains Organization and after verifying the status of the  
            Veterans' Remains Organization as an organization currently  
            authorized by the Veterans Administration and the National  
            Personnel Records Center or as an organization authorized by  
            the local county board of supervisors to verify and inter  
            unclaimed cremated remains of American veterans, release  
            Veteran Status Information to the Veterans' Remains  
            Organization.
            (b)  The use or disclosure of Veteran Status Information  
            obtained by a Veterans' Remains Organization pursuant to  
            subsection (a) shall be permitted only for the purpose of  
            verifying veteran interment benefits of the deceased veteran  
            or dependent of a veteran with the Department of Veterans  
            Affairs and shall not be used or disclosed for any other  
            purpose.
            (c) The cemetery authority, cemetery corporation or  
            association, or other entity in possession of the cremated  
            remains of a veteran or dependent of a veteran may, upon  
            request of a Veterans' Remains Organization and after  
            verifying the status of the Veterans' Remains Organization as  
            an organization currently authorized by the Veterans  
            Administration and the National Personnel Records Center or as  
            an organization authorized by the local county board of  
            supervisors to verify and inter unclaimed cremated remains of  
            American veterans, release the cremated remains of the veteran  
            or dependent of a veteran to a Veterans' Remains Organization  
            for the sole purpose of interment, subject to Section 943 and  
            Sections 7110 and 7208 of the Health and Safety Code, when all  
            of the following conditions have been met:
                       (1) The Veterans' Remains Organization shall verify the  
            interment benefits of the deceased veteran or dependent of a  
            veteran with the Department of Veterans Affairs and provide  
            documentation of such verification to the cemetery authority,  
            cemetery corporation or association, or other entity that the  
            decedent is a veteran or a dependent of a veteran, eligible  
            for burial in a national or state cemetery.
            (2) The Veterans' Remains Organization shall make a reasonable  
            effort to locate the agent or family member who has the right  
            to control the cremated remains of the veteran or dependent of  
            a veteran.  
            (3)  The Veterans' Remains Organization shall provide notice  
            to all known agents or family members who have the right to  
            control the cremated remains of the veteran or dependent of a  
            veteran of the Veteran's Remains Organization's intent to  
            claim the cremains of the veteran or dependent of a veteran  
            for the purpose of providing a proper burial of the cremains  
                                                                      



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            of the veteran or dependent of a veteran in accordance with  
            Section 943 and Sections 7110 and 7208 of the Health and  
            Safety Code.
            (4) An agent or family member who has the right to control the  
            cremated remains of the veteran or dependent of a veteran has  
            made no attempt to claim the cremated remains.
            (5) The cremated remains have been in the possession of the  
            cemetery authority, cemetery corporation or association, or  
            other entity for a period of at least one year.
            (d) The cemetery authority, cemetery corporation or  
            association, or other entity that releases Veteran Status  
            Information or cremated remains of the veteran or dependent of  
            a veteran pursuant to this section shall not be subject to  
            civil liability, except for gross negligence, if all of the  
            conditions of this section are met.

            953. (a) A Veterans' Remains Organization shall take all  
            reasonable steps to inter the cremated remains of a veteran or  
            dependent of a veteran received in accordance with this  
            chapter.
            (b) A Veterans' Remains Organization that receives and inters  
            the cremated remains of a veteran or dependent of a veteran  
            pursuant to this chapter shall not be liable for negligence if  
            the Veterans' Remains Organization does not know or have  
            reason to know that the cremated remains of the veteran or  
            dependent of a veteran were not released by the cemetery  
            authority, cemetery corporation or association, or other  
            entity in compliance with Section 952(a) and (c).

            954. County boards of supervisors are encouraged to appoint  
            personnel from a Veterans' Remains Organization, as defined in  
            Section 940.6, to fulfill the role created in Section 942.  


           Support  :  The American Legion; AMVETS - Department of  
          California; California Association of County Veterans Service  
          Officers; Maurice Johannessen AMVETS Post 4; Missing in America  
          Project; Patriot Guard Rider; Robert F. Pasero, California State  
          Chaplain; Submarine Veterans of the Northern California Area  
          (Cuttlefish Base); Veterans of Foreign Wars of the United States  
          Department of California; Victory Insured Through Service

           Opposition :  None Known

                                        HISTORY
           
                                                                      



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           Source  :  Vietnam Veterans of America

           Related Pending Legislation  :  None Known

           Prior Legislation  :  See Background.

           Prior Vote  :

          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Veterans Affairs (Ayes 8, Noes 0)
          Assembly Floor (Ayes 75, Noes 0)

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