BILL ANALYSIS
AB 1644
Page 1
Date of Hearing: March 23, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1644 (Nielsen) - As Amended: March 17, 2010
PROPOSED CONSENT (As Proposed to Be Amended)
SUBJECT : VETERANS' REMAINS
KEY ISSUE : SHOULD A CEMETARY AUTHORITY OR SIMILAR ENTITY BE
AUTHORIZED TO RELEASE THE CREMATED REMAINS OF A VETERAN TO A
VETERANS' SERVICE ORGANIZATION, PROVIDED THAT THE REMAINS HAVE
BEEN UNCLAIMED FOR AT LEAST ONE YEAR AND A REASONABLE EFFORT HAS
BEEN MADE TO LOCATE THE NEXT OF KIN, AS SPECIFIED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
The objective of this non-controversial bill is to help
facilitate ongoing efforts to locate, identify, and honorably
inter the unclaimed remains of forgotten veterans, a task that
is often left to volunteer groups like the Missing in Action
Project because, according to the author, most coroners and
funeral homes do not verify cremated remains for veteran's
status. This bill, sponsored by the Vietnam Veterans of
America, laudably requires a cemetery or similar entity, upon
the request of a veterans' service organization (VSO), to
release to the VSO certain pieces of information required by the
Department of Veterans Affairs to verify the status of a person
as either a veteran or the dependent of a veteran for purposes
of eligibility for burial in a national or state cemetery. This
bill exempts from civil liability any cemetery authority that,
upon request by the VSO, releases such information to the VSO so
it can verify the veteran status of the remains. In addition,
this bill permits a cemetery authority possessing any cremated
remains of a veteran that have gone unclaimed for at least one
year to release the remains to a veterans' service organization
as long as specified conditions have been met, including a
reasonable effort to locate the deceased veteran's next of kin,
and exempts the cemetery authority from civil liability, except
for willful or wanton misconduct, for this release. Finally,
this bill exempts from negligence any veterans' service
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organization that receives and inters remains pursuant to this
act, as long as it does not know or have reason to know that the
remains were not released in compliance with the specified
conditions. The bill is supported by numerous veterans'
organizations and has no known opposition.
SUMMARY : Authorizes a cemetery authority possessing any
cremated remains of a veteran that have gone unclaimed for one
year to release the remains to a veterans' service organization,
as defined, after specified conditions have been met, and
exempts both the cemetery authority and the veterans' service
organization from most civil liability, as provided, if the
transfer of the cremated remains complies with these
requirements. Specifically, this bill :
1)Requires a cemetery authority, cemetery corporation or
association, or other entity (hereafter "cemetery authority")
in possession of the cremated remains of a veteran, upon the
request of a veterans' service organization (VSO), to release
to the VSO information required by the Department of Veterans
Affairs to verify the status of a person as either a veteran
or the dependent of a veteran for purposes of eligibility for
burial in a national or state cemetery.
2)Defines "veterans' service organization" as an association or
other entity organized for the benefit of veterans that has
been recognized or chartered by the U.S. Congress, including a
member or employee of an eligible nonprofit veterans'
corporation, association or entity that specifically deals
with verification and veterans' burials.
3)Permits the cemetery entity to release cremated remains to a
veterans' service organization for the purpose of interment,
and exempts the entity from civil liability, when all of the
following conditions have been met:
a) The VSO has verified that the person is either a veteran
or the dependent of a veteran, eligible for burial in a
national or state cemetery.
b) The cemetery entity has made a reasonable effort to
locate the agent or family member who has the right to
control the remains.
c) An agent or family member who has the right to control
the remains has made no attempt to claim the remains.
d) The remains have been in the cemetery entity's
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possession for at least one year.
4)Requires the VSO to take all reasonable steps to inter remains
it receives pursuant to these provisions, and exempts a VSO
that receives and inters remains from liability for negligence
if the VSO does not know or have reason to know that the
remains were not released in compliance with this act.
EXISTING LAW :
1)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 Section 7002.) (All further reference
to the Health & Safety Code, unless otherwise noted.)
2)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. (Section 7009.)
3)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 free from exposure
to the elements.
d) Responsibly maintain the cremated remains. (Section
7054.6(b).)
4)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. (Section 7100(a).)
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5)Provides that a funeral director or cemetery authority shall
have complete authority to control the disposition of the
remains, and to proceed to recover usual and customary charges
for the disposition, when both of the following apply:
a) None of the persons described in the above categories
(1) to (6) can be found after reasonable inquiry or
contacted by reasonable means OR the funeral director or
cemetery authority has knowledge that no such persons
exist.
b) The public administrator fails to assume responsibility
for disposition of the remains within seven days after
having been given written notice of the facts. (Section
7100(b).)
6)Provides that no action shall lie against any cemetery
authority relating to 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. Further provides that no licensed
funeral director shall be liable in damages for the lawful
disposition of any cremated human remains.
COMMENTS : This non-controversial bill, sponsored by the Vietnam
Veterans of America, permits a cemetery authority possessing any
cremated remains ("cremains") of a veteran that have gone
unclaimed for one year to release the remains to a veterans'
service organization after specified conditions have been met,
including a reasonable effort to locate the deceased veteran's
next of kin. The bill exempts the cemetery authority from civil
liability for releasing the cremated remains, provided the
conditions were met prior to release. In addition, this bill
exempts from negligence any veterans' service organization that
receives and inters remains pursuant to this act, as long as it
does not know or have reason to know that the remains were not
released in compliance with this act.
The laudable objective of this bill is to help facilitate
ongoing efforts to locate, identify, and honorably inter the
unclaimed remains of forgotten veterans, a task that is often
left to volunteer groups like the Missing in Action Project
(MIAP) because, according to the author, most medical examiners
and coroners do not verify cremains for veteran's status. It is
unknown how many unclaimed cremains of veterans exist in
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California, but the number could potentially be in the
thousands. According to a 2005 article submitted by the author,
the Oregon State Hospital revealed that it was in possession of
3,500 unclaimed cremated remains, simply locked away in storage.
These cremains span a period of deaths from the 1890's to the
1970's. ("Elda's Ashes," The Oregonian , May 31, 2005.)
According to MIAP, it is estimated that up to 1,000 of these
cremains are veterans. (http://www.miap.us.)
Need for the bill: According to the author, this bill is needed
to revise state law to help facilitate the efforts of national
veterans' service organizations dedicated to locating,
identifying, and interring the unclaimed cremated remains of
American veterans. After a VSO locates unclaimed cremains in
the possession of a funeral home or other entity, its next step
is to obtain sufficient information to verify the veteran status
of the decedent. Without access to this information, the VSO
can not proceed with any plans for interment. To this end, this
bill requires cemetery authorities to release, upon request by a
VSO, specified information to verify the status of the person as
either a veteran or the dependent of a veteran for the purpose
of determining eligibility for burial in a veterans cemetery.
The bill specifies that the data that must be released upon
request is the same data required by the Department of Veteran
Affairs for the purpose of verifying veteran status, including
the person's name, service number, SSN, date of birth, date of
death, place of birth, branch of service, and military rank.
After a VSO identifies the unclaimed cremains of a veteran, it
will procure for each a dignified resting place in a state or
national veterans cemetery. Generally speaking, in most states,
the cemetery authority or funeral home possessing the cremains
must follow certain requirements for transferring the cremains
to the veterans cemetery, where the VSO will work to coordinate
a full military service.
California is one of the few states, however, that does not have
a statute that directly addresses the release of unclaimed
cremains. Current state law only allows the release of remains
to family members, an agent under power of attorney for health
care, if known, or the public administrator if the deceased has
sufficient assets. If the person died indigent and no surviving
next of kin can be identified, there may be no other party to
which the remains can legally be released. If the person was a
veteran, this may prevent the VSO from carrying out a military
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burial service to honor the deceased veteran. This bill would,
under these circumstances, permit the cemetery authority or
funeral home to release the cremains of the veteran to a
veteran's service organization, provided that specified
conditions are met.
Only Recognized Veterans' Organizations Are Authorized by This
Bill. For purposes of this bill, the only "veterans' service
organizations" that are authorized to receive and inter the
cremated remains of veterans are associations or other entities
organized for the benefit of veterans that have been recognized
and chartered by the United States Congress. This requirement
acts as a safeguard against the possibility that any individual
in the state can quickly form his or her own organization and
lay claim to the right to receive and inter unclaimed cremains
from a cemetery authority or funeral home. Some of the more
well-known national veterans' organizations that have been
recognized by Congress are the Disabled American Veterans,
Veterans of Foreign Wars, the American Legion, the Legion of
Honor, the Missing in Action Project, and the Vietnam Veterans
of America (the sponsor of this bill.)
Cemetery Authority Not Liable for Release of Information or
Release of Remains After Conditions Met. This bill exempts from
civil liability any cemetery authority that, upon request by the
VSO, releases information to the organization to verify veteran
status of the remains. The potential civil liability associated
with release of the information specified in this bill is
probably minimal, because deceased persons generally have few
privacy rights in personal information than living individuals.
For example, the Privacy Act of 1974 (5 U.S.C. 552a), pertaining
to the release of information maintained by government agencies,
does not specifically provide for the exercise of privacy rights
on behalf of decedents.
In addition, the cemetery authority is exempt from civil
liability for releasing cremains to a VSO for the purpose of
interment pursuant to this act, provided that specified
conditions are met: (1) the VSO has verified the person is a
veteran or dependent of a veteran eligible for burial in a
national or state cemetery; (2) the cemetery entity has made a
reasonable effort to locate the person who has the right to
control the remains; (3) that person with the right to control
the remains has made no attempt to claim the remains; and (4)
the remains have been in the cemetery's possession for at least
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one year. These conditions are intended to ensure that only
remains of verified veterans are released for interment, and
only after a reasonable time and effort has been made to locate
the person or family member who has the right to control the
remains, if any exists.
Author's Amendments : The author has proposed to amend the bill
to clarify that a reasonable effort by the cemetery entity or
the VSO to locate the person who has the right to control the
remains is sufficient to satisfy this condition. This
recognizes that, where some cemeteries simply may not have the
time or resources to make an effort to locate the family of each
possible veteran whose remains have gone unclaimed, the mission
of a VSO makes this effort a higher priority. In addition, the
author has also proposed to clarify that the grant of immunity
to a cemetery authority for release of remains, even when all
conditions have been met, does not extend to willful or wanton
misconduct-an approach mirrored in several other states. The
amendments are:
On page 3, line 1, after "entity" insert "or veterans'
service organization"
On page 3, line 10, after "liability" insert ", except for
willful or wanton misconduct,"
Veterans' Service Organization Conditionally Not Liable for
Negligence For Receiving and Interring Remains. This bill
exempts a VSO that receives and inters remains pursuant to this
act from liability for negligence for receiving and interring
veterans' cremains if it does not know or have reason to know
that the remains were not released in compliance with these
provisions. This bill does not exempt the VSO from civil
liability for willful and wanton misconduct (i.e. rising above
negligence), an approach consistent with similar laws in other
states.
According to the Vietnam Veterans of America, "because (VSOs)
have run into hesitation from some funeral homes to release
information and/or remains, (this) legislation is needed to give
funeral homes the ability to release the remains for burial
without fear of litigation." A representative of the Missing in
America Project informed the Committee that recently, in Red
Bluff, California, the son of a veteran who had the authority to
control disposition threatened to bring a lawsuit after
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discovering the unclaimed remains of his father had been buried
by MIAP in a veterans cemetery without his knowledge, while the
son had been serving time in prison. The lawsuit was ultimately
avoided after the veteran's body was disinterred and relocated,
but the example illustrates the sponsor's contention that threat
of legal action is a real problem facing VSOs, who are largely
comprised of unpaid volunteers simply seeking to honor forgotten
veterans.
The potential liability of a VSO under this bill, as proposed to
be amended, essentially reduces to a determination whether
conditions (3) and (4) have been met because both condition (1)
and (after the author's proposed amendment) condition (2)
involve actions taken by the VSO itself. If, however, the
cemetery authority concealed any previous attempt by a family
member to claim the remains or misrepresented that it had
possessed the remains at least one year, then this bill would
still exempt the VSO from liability for negligence as long as it
did not know or have reason to know that either of these
conditions were in fact not met.
ARGUMENTS IN SUPPORT : Missing in America Project, a nonprofit
corporation that to date has interred over 632 veterans
throughout the nation, including 133 veterans and spouses in
California, writes in support:
It is essential that entities in possession of
cremated remains release the required information upon
request by authorized groups and work to inter the
veteran with full military honors and the respect that
is due them. Invariably, a relative or someone that
is not the known "Next of Kin" steps forward after the
interment to object and threaten legal action (despite
the fact that) MIAP always mails 30 day notification
letters or post in a newspaper the intent to bury in a
VA or State Veterans cemetery.
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.
REGISTERED SUPPORT / OPPOSITION :
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Support
Vietnam Veterans of America, California State Council (sponsor)
Missing in America Project
AMVETS- Department of California
California Association of County Veterans Service Officers
V.E.T.S. (Victory Ensured Through Service)
Submarine Veterans of the Northern California Area, Cuttlefish
Base
Patriot Guard Riders and California Veterans
Old Guard Riders, Inc.
Maurice Johannessen AMVETS Post 4
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334