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)
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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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