BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                              2013-2014 Regular Session


          AB 2399 (Peréz)
          As Amended April 24, 2014
          Hearing Date: June 24, 2014
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
           Organ and Tissue Donor Registry:  Driver's License Information

                                      DESCRIPTION  

          This bill would authorize an organ procurement organization, as  
          defined, to swipe a driver's license or identification card to  
          transmit information to the Donate Life California Organ and  
          Tissue Donor Registry (Registry) for the purpose of allowing an  
          individual to identify himself or herself as a registered organ  
          donor.  This bill would require information gathered or  
          transmitted to comply with the Department of Motor Vehicles  
          Information Security Agreement. 

          This bill would also revise the reference to general  
          characteristics of donors, described above, to instead refer to  
          aggregated data of donors and would require the Registrar's  
          annual report to include the aggregated data of donors as may be  
          determined by information transmitted to the Registry.

                                      BACKGROUND  

          California's Uniform Anatomical Gift Act (Act) regulates the  
          donations of anatomical gifts.  The Act specifies who may make a  
          gift and directs the manner in which a gift may be made,  
          amended, revoked, or refused to be made.  The National  
          Conference of Commissioners on Uniform State Laws (NCCUSL) first  
          proposed the Uniform Anatomical Gift Act in 1968, and it was  
          adopted by all 50 states.  The Act was subsequently revised and  
          adopted by 26 states in 1987, including California.  In 2006,  
          NCCUSL proposed revisions to the act to help to address the  
          critical need for donated organs by providing additional ways in  
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          which individuals may make organ, eye, and tissue donations. 

          Each year, Donate Life America, a not-for-profit alliance of  
          national organizations and state teams across the United States  
          committed to increasing organ, eye, and tissue donation, issues  
          a report card on the percentage of donors registered in each  
          state.  In 2012, California only had a donor designation rate of  
          27.6 percent, even though California enacted its Donate Life  
          California Organ and Tissue Donor Registry in 2005.  (Donate  
          Life America, National Donor Designation Report Card, The  
          Challenge to Register More Organ, Eye and Tissue Donors (2013)  
           [as of June 18, 2014] p. 6.)  The report  
          card also provides statistics about the state's donor  
          designation share, which is the total number of designated  
          donors, as a percentage of all state residents age 18 and older;  
          the goal is for every state to reach a minimum of 50 percent of  
          the donor designation share.  In 2012, California was at 34  
          percent of its donor designation share.  (Id.)

          There are currently more than 122,000 men, women, and children  
          awaiting organ transplants in the United States, and more than  
          21,000 (or 20 percent of the national total) are listed at  
          California transplant centers.  Of those waiting, one in three  
          will die due to a shortage of organs.

          In order to provide an expedited and easy way for Californians  
          to become registered donors, this bill would authorize an organ  
          procurement organization (OPO), as defined, to swipe a driver's  
          license or identification card to transmit information to the  
          Registry for the purpose of allowing an individual to identify  
          himself or herself as a registered organ donor.  This bill also  
          seeks to protect the information gathered or transmitted from  
          donors by requiring the OPO to complete and submit a DMV  
          Information Security Agreement, which prescribes specified  
          security measures that must be taken to protect information  
          collected.

          This bill was heard in the Senate Transportation and Housing  
          Committee on June 18, 2014, and passed out on a vote of 11-0.

                                CHANGES TO EXISTING LAW
           
           Existing law  , under the Uniform Anatomical Gift Act, governs the  
          donations of anatomical gifts by regulating who may make a gift,  
          how a gift may be made or refused to be made, how to document a  
                                                                      



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          gift or refusal, and how to amend or revoke a gift. (Health and  
          Saf. Code Sec. 7150 et seq.)
           
          Existing law  authorizes California's federally designated organ  
          procurement organizations (OPOs) to establish a nonprofit  
          organization which must establish and maintain the California  
          Organ and Tissue Donor Registry.  The OPOs established Donate  
          Life California as the registrar, and Donate Life California  
          established and maintains the California Organ and Tissue Donor  
          Registry (Registry).  (Health & Saf. Code Sec. 7150.90(a).)

           Existing law  requires Donate Life California to submit an annual  
          report to the State Public Health Officer and the Legislature  
          that includes the number of donors on the registry, the changes  
          in the number of donors on the registry, and the general  
          characteristics of donors as determined by the information  
          provided to Donate Life California by the DMV.  (Health & Saf.  
          Code Sec. 7150.90(d).)

           Existing law  authorizes an OPO reasonable access to the  
          Registry's records to ascertain whether an individual who is at  
          or near death is a donor but prohibits the OPO from using or  
          disclosing that information without the express consent of the  
          donor or person who makes an anatomical gift and from selling  
          that information.  Existing law also requires an OPO to comply  
          with all state and federal laws with respect to the protection  
          of a donor's or prospective donor's personally identifiable  
          information.  (Health & Saf. Code Sec. 7150.65.)

           Existing law  permits an individual who renews or applies for a  
          driver's license or identification card with the Department of  
          Motor Vehicles (DMV) to give his or her consent to be an organ  
          and tissue donor upon death.  The DMV must then transmit donors'  
          names, addresses, dates of birth, and drivers' license numbers  
          to the donor registry.  (Veh. Code Sec. 12811; Health & Saf.  
          Code Sec. 7150.20(a)(1).)

           Existing law  requires the DMV to submit an annual report to  
          Donate Life California and to the Legislature, as well as  
          quarterly updates, detailing voluntary contributions it has  
          collected and a non-identifiable summary of applicants,  
          including, dates of application, methods of application, ZIP  
          codes, gender, and dates of birth.  (Veh. Code Sec.  
          12811(b)(9)(C).)

           Existing law  provides that information obtained by Donate Life  
                                                                      



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          California for donation registry purposes can only be used for  
          those purposes and prohibits further dissemination of that  
          information by Donate Life California.  (Veh. Code Sec.  
          12811(b)(13).)

           Existing law  authorizes a business to swipe a driver's license  
          or identification card in any electronic device for the  
          following purposes:
           to verify the individual's age or the authenticity of the  
            driver's license or identification card;
           to comply with a legal requirement to record, retain, or  
            transmit that information; and
           to collect or disclose personal information required for  
            reporting, investigating, or preventing fraud, abuse, or  
            material misrepresentation.  (Civ. Code Sec. 1798.90.1(a).)

           Existing law  defines "business" as a proprietorship,  
          partnership, corporation, or any other form of commercial  
          enterprise, and provides that a business swiping a driver's  
          license or identification card for any other purpose is subject  
          to a misdemeanor punishable by up to one year in county jail, a  
          fine of up to $10,000, or both.  (Civ. Code Sec. 1798.90.1(b),  
          (c).)

           Existing federal law  , the Federal Information Security  
          Management Act of 2002 (FISMA), requires an organization  
          requesting to be connected to a state Department of Motor  
          Vehicles to complete and submit a Department of Motor Vehicles  
          Information Security Agreement to the DMV and comply with  
          National Institute of Standards and Technology and DMV security  
          controls.  (44 U.S.C. Sec. 3541.)
           
           This bill  would authorize an OPO to swipe a driver's license or  
          identification card issued by the DMV in any electronic device  
          to transmit information to the Donate Life California Organ and  
          Tissue Donor Registry for the purposes of allowing an individual  
          to identify himself or herself as a registered organ donor. 

           This bill  would require that information gathered or transmitted  
          by an OPO to comply with the Department of Motor Vehicles  
          Information Security Agreement.

           This bill  would prohibit an OPO from retaining or using any of  
          the information obtained by swiping a driver's license for any  
          purpose other than to transmit the information to the Donate  
          Life California Organ and Tissue Donor Registry.
                                                                      



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           This bill  would define "organ procurement organization" to mean  
          a person designated by the Secretary of the federal Department  
          of Health and Human Services as an organ procurement  
          organization.

           This bill  would require the annual Donate Life California to  
          submit to the State Public Health Officer and the Legislature to  
          include aggregated data of donors instead of general  
          characteristics of donors and aggregated data of donors as may  
          be determined by information transmitted to the registry through  
          swiping the driver's license as provided above to identify an  
          individual as a registered organ donor.  (Health & Saf. Code  
          Sec. 7150.90(d).)

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Organ procurement organizations [(OPOs)]often participate in  
            community events to encourage individuals to become organ  
            donors.  The use of paper forms at these events is often a  
            barrier to being added to the Registry due to length of time  
            to complete, illegible writing, etc. 

            Allowing for the use of electronic transmission would be  
            faster and more accurate.  Technology exists through a device  
            attached to an iphone and an electronic sign-up sheet is then  
            completed so that registrations are captured quickly and  
            safely (information is encrypted and once submitted to the  
            registry database, it's deleted).

            [This bill would authorize OPOs] to securely and  
            electronically register individuals to the Donate Life  
            California Organ and Tissue Donor Registry (Registry) as organ  
            donors using their driver's license or identification card.

          2.  Expanding use of information encoded in driver's licenses  

          Existing law, enacted under the Identity Theft Prevention and  
          Assistance Act, prohibits businesses from "swiping" the magnetic  
          strips on driver's licenses except to verify age or authenticate  
          the license and prohibits businesses that swipe a license in  
          this manner from retaining or further using the encoded  
                                                                      



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          information, except where otherwise authorized by law.  (Civ.  
          Code Sec. 1798.90.1.)  Additionally, the Federal Information  
          Security Management Act of 2002 (FISMA) (44 U.S.C. Sec. 3541),  
          requires an organization requesting to be connected to a state  
          Department of Motor Vehicles to complete and submit a Department  
          of Motor Vehicles Information Security Agreement, and comply  
          with DMV security controls and the following National Institute  
          of Standards and Technology compliance steps:
           categorize the information to be protected;
           select minimum baseline controls;
           refine controls using a risk assessment procedure;
           document the controls in the system security plan;
           implement security controls in appropriate information  
            systems;
           assess the effectiveness of the security controls once they  
            have been implemented;
           determine agency-level risk to the mission or business case;
           authorize the information system for processing; and
           monitor the security controls on a continuous basis.

          All data transferred to or from the DMV or other third party  
          servers is encrypted utilizing the most up-to-date protocols to  
          maintain the privacy and confidentiality of data while it is  
          transported over the Internet.  These security controls and  
          compliance steps were enacted to protect the confidentiality,  
          integrity, and availability of DMV information and the  
          information systems authorized to process, store, and transmit  
          that information.  This bill would authorize an OPO to swipe the  
          driver's license of an individual, who desires to become an eye,  
          tissue, or organ donor, for the purpose of transmitting the  
          individual's information to the Donate Life California Organ and  
          Tissue Donor Registry. 

          Donate Life California, sponsor, asserts that California  
          "remains in the bottom quartile registration-wise when compared  
          to other states, with our donor designation rate below the  
          national average of 45%.  With only 32% of California drivers  
          having checked "YES!" to donation, this means we must explore  
          other avenues of signing individuals up for the registry.   
          Allowing Donate Life California to safely and securely register  
          Californians electronically with their driver license or ID  
          while in the field provides that additional avenue - and another  
          opportunity to save lives."

          Notably, an OPO is already authorized to access the Registry's  
          donor records for the purpose of ascertaining whether an  
                                                                      



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          individual who is at or near death is a donor.  (Health & Saf.  
          Code Sec. 7150.65.)  An OPO is prohibited from using or  
          disclosing that information without the express consent of the  
          donor or person who makes an anatomical gift and from selling  
          that information.  Existing law also requires an OPO to comply  
          with all state and federal laws with respect to the protection  
          of a donor's or prospective donor's personally identifiable  
          information.  (Health & Saf. Code Sec. 7150.65.)  An OPO can  
          retrieve donor information from the Registry, and this bill  
          would allow the OPO to send information to the Registry, while  
          maintaining existing confidentiality requirements for  
          information collected through swiping driver's licenses.  In  
          this way, this bill would help identify individuals who want to  
          opt-in to the donor Registry, expedite donor registration, and  
          further the state's goal of expanding the donor Registry.

          3.  Opposition's concerns
           
          The California Right to Life Committee (CRLC) expresses numerous  
          concerns, most of which relate to existing law provisions  
          authorizing organ donor signup through the driver's license  
          application.  CRLC raises questions as to whether OPO  
          representatives educate potential donors as to whether brain  
          death is actually true death and whether OPO representatives  
          explain that organs may be removed from an individual that is  
          not actually clinically dead.  CRLC also questions whether, if  
          an individual does not indicate "no" on the driver's license  
          application, the presumption will be that the person actually  
          meant to indicate "yes."


           Support  :  American Academy of Pediatrics; California Transplant  
          Donor Network; Sierra Donor Services

           Opposition  :  California Right to Life Committee, Inc.

                                        HISTORY
           
           Source  :  Donate Life California

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 718 (Calderon, 2005) would have expanded the ability of  
          businesses to electronically collect information from a driver's  
                                                                      



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          license or identification card. AB 718 was held in the Assembly  
          Committee on Judiciary.

          SB 602 (Figueroa, Ch. 533, Stats. 2003) enacted the Identity  
          Theft Prevention and Assistance Act which, among other things,  
          authorized a business to swipe a driver's license or  
          identification care in any electronic device for specified  
          purposes and prohibited the business from retaining or using any  
          of the information obtained for any purpose other than those  
          authorized.

          AB 1689 (Lieber, Ch. 629, Stats. 2007) repealed, revised, and  
          recast the Uniform Anatomical Gift Act.

          SB 689 (Speier, Ch. 665, Stats. 2005) required the DMV,  
          beginning July of 2006, to collect organ and tissue donor  
          designation information on its applications for drivers'  
          licenses and identification cards, and linked the DMV with the  
          California Organ and Tissue Donation Registry.

          SB 112 (Speier, Ch. 405, Stats. 2003) transferred responsibility  
          for establishing the California Organ and Tissue Donation  
          Registry from the California Health and Human Services Agency to  
          a nonprofit entity established by California's federally  
          designated organ procurement organizations.

          SB 108 (Speier, Ch. 740, Stats. 2001) created the Organ and  
          Tissue Donor Registry in the California Health and Human  
          Services Agency and required the DMV to provide information and  
          a standardized form to applicants for drivers' licenses and  
          identification cards who wish to become organ donors.

           Prior Vote  :

          Senate Committee on Transportation and Housing (Ayes 11, Noes 0)
          Assembly Floor (Ayes 76, Noes 0)
          Assembly Committee on Appropriations (Ayes 17, Noes 0)
          Assembly Committee on Judiciary (Ayes 10, Noes 0)

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