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
(more)
AB 2399 (Peréz)
Page 2 of ?
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
AB 2399 (Peréz)
Page 3 of ?
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
AB 2399 (Peréz)
Page 4 of ?
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.
AB 2399 (Peréz)
Page 5 of ?
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
AB 2399 (Peréz)
Page 6 of ?
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
AB 2399 (Peréz)
Page 7 of ?
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
AB 2399 (Peréz)
Page 8 of ?
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)
**************
AB 2399 (Peréz)
Page 9 of ?