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 (more) AB 1644 (Nielsen) Page 2 of ? 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 AB 1644 (Nielsen) Page 3 of ? 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. AB 1644 (Nielsen) Page 4 of ? 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 AB 1644 (Nielsen) Page 5 of ? 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 AB 1644 (Nielsen) Page 6 of ? 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. AB 1644 (Nielsen) Page 7 of ? 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 AB 1644 (Nielsen) Page 8 of ? 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. AB 1644 (Nielsen) Page 9 of ? 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 dischargedsoldier, sailor, or marine in the county who has served in or with the army or navy of theveteran 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 orwidowspouse 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 withouthavingsufficient 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' AB 1644 (Nielsen) Page 10 of ? 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 AB 1644 (Nielsen) Page 11 of ? 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 AB 1644 (Nielsen) Page 12 of ? 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) **************