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SB288 SUB1 Senate Bill 288 History

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WEST virginia legislature

2018 regular session

Committee Substitute

for

Senate Bill 288

By Senators Gaunch, Maynard, Boso, Clements, Jeffries, Maroney, Palumbo, Smith, Takubo, Weld, and Cline

[Originating in the Committee on Government Organization;

Reported on February 9, 2018]

 

 

A BILL to repeal §30-6-22a, §30-6-23, §30-6-24, §30-6-25, §30-6-26, §30-6-27, §30-6-28, §30-6-29, §30-6-30, and §30-6-31 of the Code of West Virginia, 1931, as amended; and to amend and reenact §30-6-1, §30-6-2, §30-6-3, §30-6-4, §30-6-5, §30-6-6, §30-6-7, §30-6-8, §30-6-9, §30-6-10, §30-6-11, §30-6-12, §30-6-13, §30-6-14, §30-6-15, §30-6-16, §30-6-17, §30-6-18, §30-6-19, §30-6-20, §30-6-21, and §30-6-22 of said code, all relating to regulation of cremation, embalming, and funeral service directing; defining terms; terminating the Board of Funeral Service Examiners; transferring the functions of the board to the Secretary of State; specifying timeline and duties for the transfer of functions and property; providing special provisions and authority to Secretary of State to facilitate transfer; providing rule-making authority for Secretary of State; continuing existing rules previously promulgated by the board; authorizing Secretary of State to request repeal of rules previously promulgated by the board; establishing timeline for promulgation of rules by Secretary of State in 2018; authorizing the promulgation of emergency rules; creating special revenue account; eliminating special revenue account utilized by Board of Funeral Service Examiners and transferring funds; providing for the transfer of assets and liabilities to new account; providing for periodic sweep of funds into General Revenue Fund; eliminating outdated and obsolete language; authorizing Secretary of State to grant funeral service license; updating requirements for funeral service license; reclassifying certificate to operate crematory as license; authorizing Secretary of State to grant license to operate crematory; updating requirements for license to operate crematory; updating language related to license reciprocity and courtesy card holders to give authority to Secretary of State; authorizing Secretary of State to enter into reciprocity agreements; authorizing Secretary of State to issue registration to be an apprentice; updating requirements for licensure of funeral establishments; authorizing Secretary of State to issue funeral establishment license; updating requirements for licensure of crematories; authorizing Secretary of State to issue crematory license; modifying requirements for inspectors and inspections; authorizing Secretary of State to appoint inspectors; updating requirements for renewal of licenses, courtesy cards, and registrations; eliminating requirement for Board of Funeral Service Examiners to provide continuing education; modifying order of persons authorized to give written permission for cremation; updating language concerning preneed affidavit; requiring Secretary of State to refuse to issue license, renewal, or registration if certain requirements not met; authorizing Secretary of State to take action against licensee, registrant, or applicant under certain circumstances; requiring Secretary of State establish means for public to submit complaints; requiring Secretary of State to investigate all complaints received; setting procedures for investigations; specifying powers and procedures for conducting hearings and rendering disposition of contested cases; granting the authority to suspend or revoke an authorization to practice without a prior hearing under certain circumstances; setting burden of proof; providing right of appeal from determination of Secretary of State; authorizing informal disposition; making violations of article a criminal act; establishing criminal penalties; authorizing Secretary of State or interested person to seek injunctions for violations of article; providing for referral of criminal matters to appropriate authorities; permitting criminal actions to be brought by Attorney General, United States Attorney, or local prosecuting attorney; providing that single act is evidence of violation; providing for certain inapplicability of article; and correcting references and updating terms throughout.

Be it enacted by the Legislature of West Virginia:


ARTICLE 6. BOARD OF FUNERAL SERVICE EXAMINERS And crematory LICENSURE.


§30-6-1. License required to practice.

The practice of preparing dead human bodies for burial or cremation and the subsequent burial or cremation thereof has serious public health and safety considerations and should only be practiced by a person who has specific training in those fields.

Therefore, the Legislature hereby finds that to protect the public interest a person must have a license, as provided in this article, to provide funeral services and practice embalming, funeral directing and cremation and to operate a funeral establishment and or crematory in the State of West Virginia.


§30-6-2. Short title Definitions.

This article shall be known and may be cited as the “West Virginia Funeral Service Examiners Act”.

“Apprentice” means a person who is preparing to become a funeral services licensee and is learning the practice of embalming, funeral directing, or cremation under the direct supervision and personal instruction of a funeral services license holder.

“Board” means the West Virginia Board of Funeral Service Examiners.

“Cremains” means all human remains, including foreign matter cremated with the human, recovered after the completion of cremation.

“Cremation” means the mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments and then further reduced by additional pulverization or recremating when necessary.

“Crematory” means a licensed place of business where a deceased human body is reduced to ashes and bone fragments and includes a crematory that stands alone or is part of or associated with a funeral establishment.

“Crematory operator” means a person licensed by the secretary to operate a crematory.

“Crematory operator in charge” means a licensed crematory operator who accepts responsibility for the operation of a crematory.

“Deceased” means a dead human being for which a death certificate is required.

“Embalming” means the practice of introducing chemical substances, fluids, or gases used for the purpose of preservation or disinfection into the vascular system or hollow organs of a dead human body by arterial or hypodermic injection for the restoration of the physical appearance of a deceased.

“Funeral” means a service, ceremony, or rites performed for the deceased with a body present.

“Funeral directing” means the business of engaging in the following:

(1) The shelter, custody, or care of a deceased;

(2) The preparation of a deceased for burial or other disposition;

(3) The arranging or supervising of a funeral or memorial service for a deceased; and

(4) The maintenance of a funeral establishment for the preparation, care, or disposition of a deceased.

“Funeral director” means a person licensed to practice funeral directing.

“Funeral establishment” means a licensed place of business devoted to: The care, preparation, and arrangements for the transporting, embalming, funeral, burial, or other disposition of a deceased. A funeral establishment can include a licensed crematory.

“Funeral service licensee” means a person licensed to practice embalming and funeral directing.

“License” means a license, which is not transferable or assignable, to:

(1) Practice embalming and funeral directing; or

(2) Operate a crematory or a funeral establishment.

(p) “Licensee” means a person holding a license issued under the provisions of this article.

“Licensee in charge” means the holder of a funeral services license who accepts responsibility for the operation of a funeral establishment.

“Memorial service” means a service, ceremony, or rites performed for the deceased without a body present.

“Person” means an individual, partnership, association, corporation, not-for-profit organization, or any other organization.

“Registration” means a registration to be an apprentice to learn the practice of embalming, funeral directing, or cremation.


§30-6-3. Definitions Termination of West Virginia Board of Funeral Service Examiners; transfer of functions and responsibilities to Secretary of State.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(a) “Apprentice” means a person who is preparing to become a licensed funeral director and embalmer and is learning the practice of embalming, funeral directing or cremation under the direct supervision and personal instruction of a duly licensed embalmer or funeral director.

(b) “Authorized representative” means a person legally authorized or entitled to order the cremation of the deceased, as established by rule. An authorized representative may include in the following order of precedence:

(1) The deceased, who has expressed his or her wishes regarding the disposal of their remains through a last will and testament, an advance directive or preneed funeral contract, as defined in section two, article fourteen, chapter forty-five of this code;

(2) The surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent’s death;

(3) An individual previously designated by the deceased as the person with the right to control disposition of the deceased’s remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time;

(4) The deceased’s next of kin;

(5) A court order;

(6) A public official who is charged with arranging the final disposition of an indigent deceased; or

(7) A representative of an institution who is charged with arranging the final disposition of a deceased who donated his or her body to science.

(c) “Board” means the West Virginia Board of Funeral Service Examiners.

(d) “Certificate” means a certification by the board to be a crematory operator.

(e) “Courtesy card holder” means a person who only practices funeral directing periodically in West Virginia and is a licensed embalmer and funeral director in a state which borders West Virginia.

(f) “Cremated remains” or “cremains” means all human remains, including foreign matter cremated with the human, recovered after the completion of cremation.

(g) “Cremation” means the mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments and then further reduced by additional pulverization, burning or recremating when necessary.

(h) “Crematory” means a licensed place of business where a deceased human body is reduced to ashes and bone fragments and includes a crematory that stands alone or is part of or associated with a funeral establishment.

(i) “Crematory operator” means a person certified by the board to operate a crematory.

(j) “Crematory operator in charge” means a certified crematory operator who accepts responsibility for the operation of a crematory.

(k) “Deceased” means a dead human being for which a death certificate is required.

(l) “Embalmer” means a person licensed to practice embalming.

(m) “Embalming” means the practice of introducing chemical substances, fluids or gases used for the purpose of preservation or disinfection into the vascular system or hollow organs of a dead human body by arterial or hypodermic injection for the restoration of the physical appearance of a deceased.

(n) “Funeral” means a service, ceremony or rites performed for the deceased with a body present.

(o) “Funeral directing” means the business of engaging in the following:

(1) The shelter, custody or care of a deceased;

(2) The preparation of a deceased for burial or other disposition;

(3) The arranging or supervising of a funeral or memorial service for a deceased; and

(4) The maintenance of a funeral establishment for the preparation, care or disposition of a deceased.

(p) “Funeral director” means a person licensed to practice funeral directing.

(q) “Funeral establishment” means a licensed place of business devoted to: the care, preparation and arrangements for the transporting, embalming, funeral, burial or other disposition of a deceased. A funeral establishment can include a licensed crematory.

(r) “Funeral service licensee” means a person licensed after July 1, 2003, to practice embalming and funeral directing.

(s) “License” means a license, which is not transferable or assignable, to:

(1) Practice embalming and funeral directing;

(2) Operate a crematory or a funeral establishment.

(t) “Licensee” means a person holding a license issued under the provisions of this article.

(u) “Licensee in charge” means a licensed embalmer and funeral director who accepts responsibility for the operation of a funeral establishment.

(v) “Memorial service” means a service, ceremony or rites performed for the deceased without a body present.

(w) “Mortuary” means a licensed place of business devoted solely to the shelter, care and embalming of the deceased.

(x) “Person” means an individual, partnership, association, corporation, not-for-profit organization or any other organization.

(y) “Registration” means a registration issued by the board to be an apprentice to learn the practice of embalming, funeral directing or cremation.

(z) “State” means the State of West Virginia.

(a) The West Virginia Board of Funeral Service Examiners, previously established under this article, shall terminate on June 30, 2018. Any license, certificate, or registration issued by that board prior to July 1, 2018 shall remain in effect for the period specified at the time the license, certificate, or registration was issued.

(b) Prior to July 1, 2018, the board may continue to receive applications for licenses, certificates, and registrations and for renewal of the same as previously required by law. The board and its staff shall continue to act on those applications and, up until the date of termination, issue licenses, certificates, and registrations to applicants providing complete and sufficient applications, as appropriate.

(c) Upon the effective date of the enactment of amendments to this section during the 2018 regular session of the Legislature, and prior to the termination of the board, complaints alleging unprofessional conduct against any licensee, certificate holder, or registrant shall be submitted to the Secretary of State for investigation.

(d) Prior to July 1, 2018, the board and its staff shall take all reasonable and necessary measures to terminate the board’s existing contracts and leases effective June 30, 2018, under the terms of those contracts, or, in coordination with the Secretary of State, arrange for the transfer of those contracts and leases to the Secretary of State. The board and its staff shall arrange for all records, data, equipment, and other tangible property owned by the board to be transferred to the Secretary of State prior to July 1, 2018.

(e) On July 1, 2018, the Secretary of State shall assume all powers, functions, and duties of the former board, as detailed in this article.

(f) All licenses, certificates, or registrations issued by the board after the effective date of the amendment of this section in the 2018 regular session of the Legislature, but prior to the termination of the board, shall be valid if signed both by the executive director of the board and by any member of the board or, in the absence of any available member of the board, by the Secretary of State.

(1) If, due to resignation or retirement of its staff, the board is unable to complete the review of applications for renewal of licenses or other authorizations to practice by June 30, 2018, as provided under this article, the Secretary of State may grant temporary authorizations to applicants to continue to practice for up to 60 days while the applications are reviewed by the secretary.

(2) If, due to resignation or retirement of the board’s staff, and in the absence of any members of the board, the board ceases to fulfill its statutory functions, the Secretary of State may ask the State Auditor to find that no spending officer exists to authorize expenditures from fund 8504, known as the Funeral Service Examiners Operating Fund. If the State Auditor makes this finding in writing, the Secretary of State shall then be authorized to expend money from that fund to carry out the requirements of this article until there is a transfer of moneys to the new special revenue account created pursuant to §30-6-5 of this code.

(g) The Secretary of State shall educate members of the public concerning the transfer of responsibilities from the Board of Funeral Service Examiners to the Secretary of State, including the manner in which complaints alleging violations of this article or misconduct by licensees under this article may be submitted to the Secretary of State.


§30-6-4. Board of funeral service examiners Rule-making authority; carryover of existing rules; authorization for emergency rules.

(a) The “West Virginia Board of Embalmers and Funeral Directors” is hereby continued and shall, after June 30, 2002, be known as the “West Virginia Board of Funeral Service Examiners”. The members of the board in office on July 1, 2002 shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) Commencing with the board terms beginning July 1, 2002, the board shall consist of seven members appointed for terms of four years by the Governor, by and with the advice and consent of the Senate. Five members must be licensed embalmers and funeral directors, and one member must be a citizen member who is not licensed, certified or registered under the provisions of this article and who is not a person who performs any services related to the practice of embalming or funeral directing. Commencing with the board terms beginning July 1, 2002, the Governor shall appoint, by and with the advice and consent of the Senate, one person who operates a crematory in West Virginia which person shall replace the current board member whose term ended on June 30, 2002. The crematory operator who is appointed for the term commencing July 1, 2002, shall register and be certified, pursuant to the provisions of this article. Any crematory operator appointed thereafter shall be certified, pursuant to the provisions of this article.

(c) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment and each member must be a resident of this state during the appointment term. Each certified member must abide by the provisions of subsection (b) of this section. Board members must represent at least four different geographic regions of the state.

(d) No member may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(e) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(f) Any member of the board immediately and automatically forfeits his or her membership if he or she has his or her license or certificate to practice suspended or revoked by the board, is convicted of a felony under the laws of any state or the United States or becomes a nonresident of this state.

(g) The board shall annually elect one of its members as president and one of its members as secretary.

(h) Each member of the board shall receive compensation and expense reimbursement in accordance with section eleven, article one of this chapter.

(a) The Secretary of State shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article including, but not limited to, the following:

(1) The general practice of embalming, funeral directing, and cremating, and operating a funeral establishment and crematory;

(2) The issuing and renewing of licenses, certificates, and courtesy cards, including establishing a staggered biennial renewal schedule;

(3) The requirements for inactive licensees;

(4) The registration and regulation of apprentices;

(5) Establish a cremation procedure and crematory requirements;

(6) Establish inspection requirements for funeral establishments and crematories, including an inspection of a new facility and annual inspections of existing facilities;

(7) Establish inspector and investigator requirements;

(8) Setting the fees charged under the provisions of this article;

(9) Setting the fines assessed under the provisions of this article;

(10) Setting requirements for continuing education for licensees;

(11) Denying, suspending, revoking, reinstating, or limiting the practice of a licensee or certificate of qualification;

(12) The investigation and resolution of complaints against persons licensed, certified, or registered under this article;

(13) Establish advertising standards; and

(14) Propose any other rules necessary to effectuate the provisions of this article.

(b) All rules promulgated by the West Virginia Board of Funeral Service Examiners and in effect on the effective date of the amendments to this article enacted during the 2018 regular session of the Legislature shall remain in effect and may be applied or enforced by the Secretary of State until the secretary proposes new rules to supersede the rules currently in effect: Provided, That these rules shall expire on July 1, 2021, if not superseded sooner. The secretary is authorized to request the repeal, pursuant to the provisions of §29A-3-1a(b) of this code, of any rules previously promulgated by the West Virginia Board of Funeral Service Examiners.

(c) If the Secretary of State chooses during the 2018 calendar year to propose rules for legislative approval to supersede or update the rules previously promulgated by the West Virginia Board of Funeral Service Examiners, the secretary may initiate the rule-making process with a notice of proposed rulemaking as provided within §29A-3-5 of this code prior to October 1, 2018, and, notwithstanding the time limit specified in §29A-3-12(a) of this code, the Legislative Rule-Making Review Committee shall consider and review the rules for approval for introduction in the 2019 regular session of the Legislature. If the secretary proposes a rule for legislative approval pursuant to this section, the secretary is also authorized to promulgate a corresponding emergency rule pursuant to the provisions of §29A-3-15 of this code.


§30-6-5. Powers of the board Fees; special revenue account; administrative fines.

The board has all the powers set forth in article one of this chapter and in addition may:

(1) Sue and be sued in its official name as an agency of this state;

(2) Hire, fix the compensation of and discharge an executive director;

(3) Hire, fix the compensation of and discharge the employees necessary to enforce the provisions of this article;

(4) Set the requirements to be an inspector;

(5) Examine and determine the qualifications of any applicant for a license;

(6) Determine the qualifications of any applicant for a certificate;

(7) Set cremation procedures and requirements;

(8) Set the fees charged under the provisions of this article;

(9) Set the fines assessed under the provisions of this article;

(10) Issue, renew, deny, suspend, revoke or reinstate licenses and certificates and discipline licensees and certificate holders;

(11) Set the continuing education requirements for licensees and certificate holders;

(12) Investigate alleged violations of the provisions of this article and the rules promulgated hereunder, and orders and final decisions of the board;

(13) Conduct hearings upon charges calling for discipline of a licensee or revocation or suspension of a license;

(14) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

(15) Take all other actions necessary and proper to effectuate the purposes of this article.

(a) There is hereby created a new special revenue account in the State Treasury to be known as the Funeral Services Licensing Fund. All fees and other moneys, except fines, received by the Secretary of State under the provisions of this article shall be deposited in this fund. The Secretary of State is authorized to expend moneys of the fund from collections to carry out the provisions of this article. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) The Funeral Services Examiners Operating Fund, fund 8504, shall terminate on June 30, 2018, and any moneys in the fund at that time shall be transferred to the Funeral Services Licensing Fund. Any outstanding debts or liabilities that exist at the time of the termination of the Funeral Service Examiners Operating Fund shall carry over to be debts or liabilities of the Funeral Services Licensing Fund.

(c) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund.

(d) On June 30, 2019, and each year thereafter, any amounts in the Funeral Services Licensing Fund over $250,000 shall revert to the General Revenue Fund.


§30-6-6. Rule-making authority Funeral service license requirements.

(a) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article including, but not limited to, the following:

(1) The general practice of embalming, funeral directing and cremating, and operating a funeral establishment and crematory: Provided, That the board cannot require that an applicant for a license to operate a funeral establishment or crematory have either an embalmer’s or funeral director’s license, or a certificate to operate a crematory.

(2) The examinations administered under this article;

(3) The issuing and renewing of licenses, certificates and courtesy cards, including establishing a staggered biennial renewal schedule;

(4) The requirements for inactive licensees;

(5) The registration and regulation of apprentices;

(6) Establish a cremation procedure and crematory requirements;

(7) Establish inspection requirements for funeral establishments and crematories, including an inspection of a new facility and annual inspections of existing facilities;

(8) Establish inspector and investigator requirements;

(9) Setting the fees charged under the provisions of this article;

(10) Setting the fines assessed under the provisions of this article;

(11) Implementing requirements for continuing education for licensees;

(12) Denying, suspending, revoking, reinstating or limiting the practice of a licensee or certificate of qualification;

(13) The investigation and resolution of complaints against persons licensed, certified or registered under this article;

(14) Establish advertising standards; and

(15) Propose any other rules necessary to effectuate the provisions of this article.

(b) All rules in effect on the effective date of this article shall remain in effect until they are withdrawn, revoked or amended.

The Secretary of State shall issue a license to practice embalming and funeral directing, which license shall be known as a funeral service license, to an applicant who meets the following requirements:

(1) Is of good moral character;

(2) Is 18 years of age or older;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Holds a high school diploma or its equivalent;

(5) Has completed one of the following education requirements, as evidenced by a transcript submitted to the secretary for evaluation:

(A) (i) Has an associate’s degree from an accredited college or university, or has successfully completed at least 60 semester hours or 90 quarter hours of academic work in an accredited college or university toward a baccalaureate degree with a declared major field of study; and

(ii) Has graduated from a school of mortuary science, accredited by the American Board of Funeral Service Education, Inc., which requires as a prerequisite to graduation the completion of a course of study of not less than 12 months; or

(B) Has a bachelor’s degree in mortuary science from an accredited college or university;

(6) Has completed an apprenticeship established by the Secretary of State pursuant to §30-6-9 of this code; and

(7) Has paid all the appropriate fees.


§30-6-7. Fees; special revenue account; administrative fines Crematory operator license requirements.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury and be used for the administration of this article. Except as may be provided in section eleven, article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

In order to operate a crematory lawfully in this state, the operator must be licensed by the Secretary of State. The secretary shall issue a license to be a crematory operator to an applicant who meets the following requirements:

(1) Has completed a class, authorized by the secretary, on cremation and operating a crematory;

(2) Has paid all the appropriate fees; and

(3) Has completed such other requirements as prescribed by the secretary.


§30-6-8. Embalmer license requirements Licenses or equivalent from another state; courtesy cards.

(a) The board shall issue a license to practice embalming to an applicant who:

(1) Is of good moral character;

(2) Is eighteen years of age or over;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Has a high school diploma or its equivalent;

(5) Has completed one of the following education requirements, as evidenced by a transcript submitted to the board for evaluation:

(A) (i) Has an associate degree from an accredited college or university; or

(ii) Has successfully completed at least sixty semester hours or ninety quarter hours of academic work in an accredited college or university toward a baccalaureate degree with a declared major field of study; and (iii) Has graduated from a school of mortuary science, accredited by the American Board of Funeral Service Education, Inc., which requires as a prerequisite to graduation the completion of a course of study of not less than twelve months; or

(B) Has a bachelor degree in mortuary science from an accredited college or university;

(6) Has completed a one-year apprenticeship, under the supervision of a licensed embalmer and funeral director actively and lawfully engaged in the practice of embalming and funeral directing in this state, which apprenticeship consisted of:

(A) Diligent attention to the work in the course of regular and steady employment and not as a side issue to another employment; and

(B) The apprentice taking an active part in:

(i) The operation of embalming not less than thirty-five dead human bodies; and

(ii) Conducting not less than thirty-five funeral services;

(7) Passes, with an average score of not less than seventy-five percent, the following examinations:

(A) The National Conference of Funeral Services examination at a testing site provided by the national conference, which passage is a condition precedent to taking the state law examination;

(B) The state law examination administered by the board, which examination must be offered at least twice each year; and

(C) Any other examination required by the board; and

(8) Has paid all the appropriate fees.

(b) A license to practice embalming issued by the board prior to July 1, 2012, shall for all purposes be considered a license issued under this section: Provided, That a person holding a license issued prior to July 1, 2012, must renew the license pursuant to the provisions of this article.

(a) The secretary shall issue a funeral service license or a license to be a crematory operator to an applicant of good moral character who holds a valid license or its equivalent to practice from another state if the applicant demonstrates that:

(1) He or she holds a license or its equivalent to practice in another state which was granted after completion of educational requirements substantially equivalent to those required in this state;

(2) He or she holds a license or its equivalent to practice in another state which was granted after passing, in that or another state, an examination that is substantially equivalent to the examination required in this state;

(3) Reciprocal rights are provided by such other state to holders of funeral services licenses granted in this state;

(4) He or she is not currently being investigated by a disciplinary authority of another state, does not have charges pending against his or her license or something equivalent to practice and has never had a license or equivalent authorization to practice revoked;

(5) He or she has not previously failed an examination for funeral service license in this state;

(6) He or she has paid the application fee specified by rule; and

(7) He or she has completed such other action as required by rules promulgated by the secretary.

(b) The Secretary of State may enter into reciprocal agreements with funeral services and crematory licensing authorities in other states for the mutual recognition of licenses between states.

(c) The secretary may issue courtesy cards, on July 1, to funeral services license holders in the states bordering on West Virginia:

(1) A courtesy card may only be issued after the:

(A) Application for a courtesy card is made on a form prescribed by the secretary;

(B) Payment of a fee; and

(C) Adherence to such other requirements as specified by the secretary by rule;

(2) A courtesy card may only be issued under the following conditions:

(A) Holders of courtesy cards shall not be permitted to open or operate a place of business for the purpose of conducting funerals, embalming bodies, or cremating in the State of West Virginia; and

(B) Holders of courtesy cards shall not be permitted to maintain an office or agency in this state for the purpose of conducting funerals, embalming bodies, or cremating in the State of West Virginia;

(3) A violation of §30-6-8(c)(2) of this code shall be sufficient cause for the secretary to immediately revoke or cancel the courtesy card of the violator.


§30-6-9. Funeral director license requirements Apprenticeship.

(a) The board shall issue a license to practice funeral directing to an applicant who meets the following requirements:

(1) Holds an embalmer’s license issued by the board; and

(2) Has paid all the appropriate fees.

(b) A license to practice funeral directing issued by the board prior to July 1, 2002, shall for all purposes be considered a license issued under this section: Provided, That a person holding a license issued prior to July 1, 2002, must renew the license pursuant to the provisions of this article.

(a) The Secretary of State shall issue a registration to be an apprentice to a funeral services licensee to an applicant who meets the following requirements:

(1) Is of good moral character and temperate habits;

(2) Is 18 years of age or older;

(3) Is a citizen of the United States or eligible for employment in the United States;

(4) Has a high school diploma or its equivalent;

(5) Has completed one of the education requirements for a funeral service licensee as set out in §30-6-6(5) of this code;

(6) Is not attending school and will not be attending school during the apprenticeship period; and

(7) Has paid the appropriate fees.

(b) The secretary may set the requirements for an apprenticeship, including the manner in which it shall be served and the length of time, which shall not be more than one year.

(c) No funeral services licensee shall be permitted to register or have registered more than five apprentices under his or her license at the same time.


§30-6-10. Funeral service license requirements Funeral establishment license requirements.

(a) Commencing July 1, 2003, the board shall issue a license to practice embalming and funeral directing, which license shall be known as a funeral service license, to an applicant who meets the following requirements:

(1) Is of good moral character;

(2) Is eighteen years of age or over;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Holds a high school diploma or its equivalent;

(5) Has completed one of the education requirements for an embalmer’s license, set out in subdivision (5), subsection (a), section eight of this article; and

(6) Has paid all the appropriate fees.

(b) A license to practice embalming and funeral directing issued by the board prior to July 1, 2003, shall for all purposes be considered a license issued under this section.

(c) A person holding a license to practice embalming and funeral directing issued prior to July 1, 2003, must after July 1, 2003, renew his or her license pursuant to the provisions of this section.

(d) After July 1, 2003, wherever the terms “license to practice embalming and funeral directing” or “embalming and funeral directing license” are used in the code, the term “funeral service license” shall apply.

(a) Every funeral establishment in West Virginia shall be licensed prior to opening a funeral establishment for business to the public. The secretary shall issue a license to operate a funeral establishment to an applicant who meets the following requirements:

(1) The place of business has been approved by the secretary as having met all the requirements and qualifications to be a funeral establishment as are required by this article and legislative rules promulgated pursuant thereto;

(2) Notify the secretary, in writing, at least 30 days before the proposed opening date, so there can be an inspection of the funeral establishment;

(3) Show proof that the funeral establishment passed an annual inspection;

(4) Show that the funeral establishment employs a licensee in charge;

(5) Show that the licensee in charge will manage the funeral establishment and be responsible for all business conducted and services performed therein;

(6) Pay all the appropriate fees; and

(7) Complete such other requirements as specified by the secretary.

(b) Every separate funeral establishment shall be operated under the supervision and management of a licensee in charge. Each funeral establishment shall display in all advertising the name of the licensee in charge of the establishment. All funeral establishments shall prominently display within the funeral establishment the license of the licensee in charge.

(c) Each funeral establishment license shall be valid for only one funeral establishment to be located at a specific street address. There shall be a separate license issued and a separate fee assessed to operate additional funeral establishments by the same applicant. The funeral establishment license shall be prominently displayed within the funeral establishment.

(d) The holder of a funeral establishment license who ceases to operate the funeral establishment at the location specified in the application shall, within 20 days thereafter, surrender the funeral establishment license to the secretary, and the license shall be canceled by the secretary. In the event of the death of an individual who was the holder of a funeral establishment license, it shall be the duty of the holder’s personal representative to surrender the funeral establishment license within 120 days of qualifying as the personal representative.

(e) If a licensee in charge ceases to be employed by a funeral establishment, then the holder of the funeral establishment license shall notify the secretary within 30 days of the cessation. Within 30 days after such notification, the holder of a funeral establishment license shall execute a new application for a funeral establishment license specifying the name of the new licensee in charge. A funeral establishment is prohibited from operating more than 30 days without a licensee in charge.

(f) A licensee whose funeral service license has been revoked or a holder of a license to operate a funeral establishment whose license to operate has been revoked shall not operate, either directly or indirectly, or hold any interest in any funeral establishment or crematory: Provided, That a holder of a license to operate a funeral establishment whose license to operate has been revoked is not prohibited from leasing any property owned by him or her for use as a funeral establishment, so long as the property owner does not participate in the control or profit of the funeral establishment except as lessor of the premises for a fixed rental not dependent upon earnings.

(g) Failure to comply with any of these provisions shall be grounds for revocation of a funeral establishment license.

§30-6-11. Crematory operator certificate requirements Crematory license requirements.


(a) All crematory operators shall be certified by the board. The board shall issue a certificate to be a crematory operator to an applicant who meets the following requirements:

(1) Has completed a class, authorized by the board, on cremation and operating a crematory;

(2) Has paid all the appropriate fees; and

(3) Has completed such other requirements as prescribed by the board.

(b) All persons currently operating crematories shall by January 1, 2003, register with the board. By July 1, 2003, all persons currently operating crematories shall obtain a certificate to operate a crematory, pursuant to the provisions of this section.

(c) All certificates must be renewed biennially upon or before July 1.

(d) After July 1, 2003, all licensed crematories must have a certified crematory operator in charge.

(a) Every crematory shall be licensed in West Virginia. The secretary shall issue a crematory license to an applicant who meets the following requirements:

(1) The place of business has been approved by the secretary as having met all the requirements and qualifications to be a crematory as are required by this article;

(2) The crematory conforms with all local building codes;

(3) The crematory meets all applicable environmental standards;

(4) Notify the secretary, in writing, at least 30 days before the proposed opening date so there can be an inspection of the crematory;

(5) Show proof that the crematory passed the inspection;

(6) Have a licensed crematory operator in charge;

(7) Pay all the appropriate fees; and

(8) Complete such other requirements as specified by the secretary.

(b) Every separate crematory shall be operated under the supervision and management of a licensee in charge. Each crematory shall display in all advertising the name of the licensee in charge of the establishment. All crematories shall prominently display within the funeral establishment the license of the licensee in charge.

(c) Each crematory license shall be valid for only one crematory to be located at a specific street address. There shall be a separate license issued and a separate fee assessed to operate additional crematories by the same applicant. The crematory license shall be prominently displayed within the crematory.

(d) The holder of a crematory license who ceases to operate the crematory at the location specified in the application shall, within 20 days thereafter, surrender the crematory license to the secretary, and the license shall be canceled by the secretary. In the event of the death of an individual who was the holder of a crematory license, it shall be the duty of the holder’s personal representative to surrender the crematory license within 120 days of qualifying as the personal representative.

(e) If a licensed crematory operator in charge ceases to be employed by a crematory, then the holder of the crematory license shall notify the secretary within 30 days of the cessation. Within 30 days after such notification, the holder of a crematory license shall execute a new application for a crematory license specifying the name of the new certified crematory operator in charge. A crematory is prohibited from operating more than 30 days without a licensed crematory operator in charge.

(f) A holder of a crematory license whose certificate to operate has been revoked or a holder of a crematory license whose license has been revoked shall not operate, either directly or indirectly, or hold any interest in any crematory or funeral establishment: Provided, That a holder of a crematory license whose license has been revoked is not prohibited from leasing any property owned by him or her for use as a crematory, so long as the property owner does not participate in the control or profit of the crematory except as lessor of the premises for a fixed rental not dependent upon earnings.

(g) Failure to comply with any of these provisions shall be grounds for revocation of a crematory license.


§30-6-12. Licenses or equivalent from another state; license or certificate to practice in this state Inspector and inspection requirements.

The board may issue a license to practice embalming and funeral directing or a certificate to be a crematory operator to an applicant of good moral character who holds a valid license or its equivalent to practice from another state if the applicant demonstrates that:

(1) He or she holds a license or its equivalent to practice in another state which was granted after completion of educational requirements substantially equivalent to those required in this state;

(2) He or she holds a license or its equivalent to practice in another state which was granted after passing, in that or another state, an examination that is substantially equivalent to the examination required in this state;

(3) Reciprocal rights are provided by such other state to holders of funeral director’s or embalmer’s licenses granted in this state. Such reciprocal licenses may be renewed biennially upon payment of the renewal license fee;

(4) He or she is not currently being investigated by a disciplinary authority of another state, does not have charges pending against his or her license or something equivalent to practice and has never had a license or something equivalent to practice revoked;

(5) He or she has not previously failed an examination for licensure as an embalmer or funeral director in this state;

(6) He or she has paid the application fee specified by rule; and

(7) Has completed such other action as required by the board.

(a) The secretary shall appoint one or more persons to serve as inspectors of funeral establishments and crematories.

(b) Each inspector shall inspect a specific region, as designated by the secretary. Any person being employed as an inspector is prohibited from inspecting in the region in which he or she practices.

(c) All inspections shall be conducted in a manner so as not to interfere with the conduct of business within the funeral establishment or crematory. The secretary or an inspector retained by the secretary has the authority to enter, at all reasonable hours, for the purpose of inspecting the premises in which the business of embalming, funeral directing, or cremating is conducted.

(d) All of an inspector’s expenses, per diem, and compensation shall be paid out of the receipts of the secretary, but the allowances shall at no time exceed the receipts of the secretary received pursuant to this article.

(e) The secretary is authorized to set fees for inspections: Provided, That there shall be no fee for an annual inspection.


§30-6-13. Courtesy cards License and courtesy card renewal; conditions of renewal.

(a) The board may issue biennial courtesy cards, on July 1, to licensed funeral directors and licensed embalmers in the states bordering on West Virginia, after the:

(1) Application for a courtesy card is made on a form prescribed by the board;

(2) Payment of a fee; and

(3) Adherence to such other requirements as specified by the board.

(b) A courtesy card may be issued under the following conditions:

(1) Holders of courtesy cards shall not be permitted to open or operate a place of business for the purpose of conducting funerals, embalming bodies or cremating in the State of West Virginia; and

(2) Holders of courtesy cards shall not be permitted to maintain an office or agency in this state for the purpose of conducting funerals, embalming bodies or cremating in the State of West Virginia.

(c) A violation of this section shall be sufficient cause for the board to immediately revoke or cancel the courtesy card of the violator.

(a) The secretary shall biennially on July 1, and pursuant to a staggered schedule, renew a funeral service license or a license to be a crematory operator to every licensee or certificate holder desiring to continue in active practice or service.

(b) The secretary shall charge a fee for each renewal and a late fee for nonrenewal of a license or certificate.

(c) The secretary shall require as a condition for the renewal of a funeral service license or a license to be a crematory operator that each licensee participate in continuing education.

(1) The secretary shall establish continuing education requirements for each licensee to complete during a license period. The secretary shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to specify the amount and types of education to be completed and the manner in which licensees and education providers may apply for approval of courses offered.

(2) Hours of continuing education may be obtained by attending and participating in programs, meetings, seminars, or activities approved by the secretary. It is the responsibility of each licensee to finance his or her costs of continuing education.

(3) Any holder of a funeral services license 65 years or older with at least 10 years’ experience is entitled to be issued, after payment of a fee, a funeral service license emeritus and is exempt from all continuing education requirements. The emeritus license shall entitle the holder to all the rights and privileges of the license previously held by the licensee.

(d) Any person holding a funeral service license or licensed to be a crematory operator who does not desire to continue in active practice shall notify the secretary, in a manner specified by the secretary, and pay a fee, and shall, during such period, be listed by the secretary as being inactive. At such time a person desires to return to active practice, he or she must notify the secretary, in a manner specified by the secretary, and complete all the continuing education requirements.

(e) All funeral establishment licenses must be renewed biennially, by a staggered schedule, upon or before July 1, and the holder must pay a renewal fee. A holder of a funeral establishment license that fails to pay fees for either the principal establishment or additional establishments by July 1 of the renewal year is subject to a penalty, a reinstatement fee for each establishment, and the required renewal fee.

(f) All crematory licenses must be renewed biennially, by a staggered schedule, upon or before July 1, and the holder must pay a renewal fee. A holder of a crematory license that fails to pay fees for either the principal establishment or additional establishments by July 1 of the renewal year is subject to a penalty, a reinstatement fee for each establishment, and the required renewal fee.

(g) Any courtesy card issued pursuant to this article must be renewed annually.


§30-6-14. License and certificate renewal; conditions of renewal Requirements for cremating.

(a) The board shall biennially on July 1, and pursuant to a staggered schedule, renew a license to practice embalming and funeral directing or a certificate to be a crematory operator to every licensee or certificate holder desiring to continue in active practice or service.

(b) The board shall charge a fee for each renewal and a late fee for nonrenewal of a license or certificate.

(c) The board shall require as a condition for the renewal of a license to practice embalming and funeral directing or a certificate to be a crematory operator that each licensee participate in continuing education: Provided, That any licensed embalmer or funeral director sixty-five years or older with at least ten years experience as a licensed embalmer or licensed funeral director, is entitled to be issued, after payment of a fee, a license as an embalmer emeritus or funeral director emeritus and is exempt from all continuing education requirements. The emeritus license shall entitle the holder to all the rights and privileges of the license previously held by the licensee.

(d) Any person licensed to practice embalming and funeral directing or certified to be a crematory operator who does not desire to continue in active practice shall notify the board, in a manner specified by the board, and pay a fee, and shall, during such period, be listed by the board as being inactive. At such time a person desires to return to active practice, he or she must notify the board, in a manner specified by the board, and complete all the continuing education requirements.

(a) A crematory shall obtain written permission prior to cremating a dead human body. The written permission shall be obtained from persons in the following order of precedence:

(1) The deceased, who has expressed his or her wishes regarding the disposal of his or her remains through a last will and testament, an advance directive, or preneed funeral contract, as defined in §47-14-2 of this code;

(2) An individual previously designated by the deceased as the person with the right to control disposition of the deceased’s remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time;

(3) The surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of the decedent’s death;

(4) The deceased’s next of kin;

(5) A court order;

(6) A public official who is charged with arranging the final disposition of an indigent deceased; or

(7) A representative of an institution who is charged with arranging the final disposition of a deceased who donated his or her body to science.

(b) The written permission shall be on a standard form, prescribed by the secretary, and shall contain the following information:

(1) The identity of the deceased;

(2) The name of the person authorizing the cremation and the relationship, if any, to the deceased;

(3) Permission for the crematory to perform the cremation;

(4) The name of the person who will claim the cremains from the crematory; and

(5) Any other information required by the secretary.

(c) A crematory shall obtain a permit or authorization for cremation from the county medical examiner, the assistant county medical examiner, or the county coroner of the county wherein the death occurred and do such other acts as required by §61-12-9 of this code: Provided, That a crematory may obtain a permit or authorization for cremation from the chief medical examiner if:

(1) The crematory is unable to obtain a permit from the county medical examiner, the assistant county medical examiner, or the county coroner of the county wherein the death occurred; or

(2) The crematory has concerns following authorization by county personnel regarding the identity or cause of death of the deceased.

(d) The permit or authorization for cremation shall be on forms prescribed by the chief medical examiner. A permit or authorization for cremation may be done by facsimile.

(e) All crematories shall implement a cremation procedure. The secretary shall, by rule, establish the minimum standards for the cremation procedure, which shall include:

(1) An identification process for bodies;

(2) A tracking process for bodies from the time a body is delivered to a crematory through the time the cremains are claimed by the authorized person;

(3) Obtaining all the required signatures, as specified by the secretary, on the written permission for cremation;

(4) Only cremating one dead human body at a time and prohibiting comingling of cremains;

(5) The specified time period a crematory is required to keep unclaimed cremains;

(6) How to dispose of unclaimed cremains;

(7) A record-keeping process for cremations; and

(8) Any other requirements necessary to effectuate the provisions of this article.

(f) The secretary shall establish requirements for:

(1) The equipment needed to complete the cremation process; and

(2) The containers needed to store the cremains.

§30-6-15. Continuing education Right of disposition; preneed contract; affidavit on disposition of remains; role of county commission; liability of funeral home.


(a) The board shall conduct annually a school of instruction to apprize funeral directors and embalmers of the most recent scientific knowledge and developments affecting their profession. This school shall qualify as continuing education and shall fulfill as many continuing education required hours as the board specifies. Qualified lecturers and demonstrators may be employed by the board for this purpose. The board shall give notice of the time and place at which the school will be held for all licensed funeral directors and embalmers: Provided, That the location of any school of continuing education shall accommodate the geographic diversity of the embalmers and funeral directors of this state.

(b) Hours of continuing education may be obtained by attending and participating in board-approved programs, meetings, seminars or activities. It is the responsibility of each licensee to finance his or her costs of continuing education.

(c) Compliance with the requirements of continuing education, as specified by the board, is a prerequisite for license renewal.

(a) Notwithstanding §30-6-14 of this code, a person who is 18 years of age or older and of sound mind, by entering into a preneed funeral contract, as defined in §47-14-2 of this code, may direct the location, manner, and conditions of the disposition of the person’s remains and the arrangements for funeral goods and services to be provided upon the person’s death. The disposition directions and funeral prearrangements that are contained in a preneed funeral contract are not subject to cancellation to revision unless any resources set aside to fund the preneed funeral contract are insufficient under the terms of the preneed funeral contract to carry out the disposition directions and funeral prearrangements contained in the contract.

(b) As to any matter not addressed in a preneed funeral contract as described in §30-6-15(a) of this code and except as provided in §30-6-15(c) of this code, the right to control the disposition of the remains of a deceased person, the location, manner, and conditions of disposition, and arrangements for funeral goods and services to be provided vests in the following, in the order named, provided that the person is 18 years or older and is of sound mind:

(1) A person designated by the decedent as the person with the right to control the disposition in an affidavit executed by a person who is 18 years of age or older and of sound mind before a notary public in substantially the following form:

“I, ________________, do hereby designate ___________________ with the right to control the disposition of my remains upon my death. I ___ have/ ____ have not attached specific directions concerning the disposition of my remains with which the designee shall substantially comply, provided that these directions are lawful and there are sufficient resources in my estate to carry out the directions.

______________________________

Signed

State of _______________

County of ______________

I, _________________________, a Notary Public of said County, do certify that _____________________________________, as principal whose name is signed to the writing above bearing date on the ______ day of _________, 20____, has this day acknowledged the same before me.

Given under my hand this ______ day of ______, 20__.

My commission expires: _______________________________

____________________________

Notary Public”;

(2) The surviving spouse of the decedent;

(3) The sole surviving child of the decedent or, if there is more than one child, the majority of the surviving children. However, fewer than one half of the surviving children shall be vested with the rights under this section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving children;

(4) The surviving parent or parents of the decedent. If one of the surviving parents is absent, the remaining parent shall be vested with the rights and duties under this section after reasonable efforts have been unsuccessful in locating the absent surviving parent;

(5) The surviving brother or sister of the decedent or, if there is more than one sibling of the decedent, the majority of the surviving siblings. However, less than the majority of surviving siblings shall be vested with the rights and duties under this section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving siblings;

(6) The surviving grandparent of the decedent or, if there is more than one surviving grandparent, the majority of the grandparents. However, fewer than the majority of the surviving grandparents shall be vested with the rights and duties under this section if they have used reasonable efforts to notify all other surviving grandparents of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving grandparents;

(7) The guardian of the decedent at the time of the decedent’s death if one had been appointed;

(8) The personal representative of the estate of the decedent;

(9) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may exercise the right of disposition;

(10) If the disposition of the remains of the decedent is the responsibility of the state or a political subdivision of the state, the public officer, administrator, or employee responsible for arranging the final disposition of decedent’s remains; or

(11) In the absence of any person under §30-6-15(b)(1) through §30-6-15(b)(10) of this code, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent’s remains, including the funeral director with custody of the body, after attesting in writing that a good faith effort has been made to no avail to contact the individuals under §30-6-15(b)(1) through §30-6-15(b)(10) of this code.

(c) A person entitled under law to the right of disposition forfeits that right, and the right is passed on to the next qualifying person as listed in §30-6-15(b) of this code, in the following circumstances:

(1) Any person charged with murder or voluntary manslaughter in connection with the decedent’s death and whose charges are known to the funeral director. However, if the charges against that person are dismissed or if the person is acquitted of the charges, the right of disposition is returned to the person;

(2) Any person who does not exercise his or her right of disposition within two days of notification of the death of decedent or within three days of decedent’s death, whichever is earlier;

(3) If the person and the decedent are spouses and a petition to dissolve the marriage was pending at the time of decedent’s death.

(d) Any person signing a funeral service agreement, cremation authorization form, or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated, or otherwise disposed of, and the party’s authority to order the disposition. A funeral home has the right to rely on that funeral service agreement or authorization and shall have the authority to carry out the instructions of the person or persons the funeral home reasonably believes holds the right of disposition. The funeral home has no responsibility to independently investigate the existence of any next of kin or relative of the decedent where a means of disposition is fully set forth in a preneed funeral contract or other written directive of the deceased in accordance with this section. If there is more than one person in a class who are equal in priority and the funeral home has no knowledge of any objection by other members of that class, the funeral home may rely on and act according to the instructions of the first person in the class to make funeral and disposition arrangements, if no other person in that class provides written objections to the funeral home.

(e) No funeral establishment or funeral director who relies in good faith upon the instructions of a preneed funeral contract, written directive of the deceased, or an individual claiming the right of disposition in accordance with this section shall be subject to criminal or civil liability or subject to disciplinary action under this section for carrying out the disposition of the remains in accordance with those instructions.


§30-6-16. Inspector and inspection requirements Review of applications by Secretary of State; refusal to issue or renew; suspension or revocation of license; disciplinary action.

(a) All inspectors employed by the board to inspect funeral establishments and crematories, pursuant to the provisions of this article, shall have a West Virginia embalmer’s license and a West Virginia funeral director’s license.

(b) Each inspector shall inspect a specific region, as designated by the board. Any person being employed as an inspector is prohibited from inspecting in the region in which he or she practices. If there is only one inspector, a board member, who is not from the region where the inspector practices, is authorized to inspect the facilities in the region where the inspector practices.

(c) All inspections shall be conducted in a manner so as not to interfere with the conduct of business within the funeral establishment or crematory. The board has the authority to enter, at all reasonable hours, for the purpose of inspecting the premises in which the business of embalming, funeral directing or cremating is conducted.

(d) All of an inspector’s expenses, per diem and compensation shall be paid out of the receipts of the board, but the allowances shall at no time exceed the receipts of the board.

(e) The board is authorized to set fees for inspections: Provided, That there shall be no fee for an annual inspection.

(a) The secretary shall refuse to issue or renew a license or registration if the applicant fails to satisfy any of the requirements set forth for licensure, certification, or registration in this article.

(b) The secretary may refuse to issue, refuse to renew, suspend, revoke or limit any license, registration or practice privilege of a licensee or registration holder for any of the following reasons:

(1) Fraud or deceit in obtaining or maintaining a license;

(2) Failure by any licensee, or certificate or registration holder to maintain compliance with requirements for issuance or renewal of a license, certificate, or registration or to timely notify the secretary as required in this article;

(3) Dishonesty, fraud, professional negligence in the performance of services, or a willful departure from accepted standards and professional conduct;

(4) Violation of any provision of this article or any rule, including the violation of any professional standard or rule of professional conduct, or public health laws;

(5) Conviction of a felony or any crime of dishonesty or fraud under the laws of the United States or this state, or conviction of any similar crime under the laws of any other state if the underlying act or omission involved would have constituted a crime under the laws of this state;

(6) Any conduct adversely affecting upon the licensee’s or certificate or registration holder’s fitness to perform professional services;

(7) The use of false, misleading, or unethical advertising by any licensee, or certificate or registration holder, or applicant for a license or certificate of registration;

(8) Upon satisfactory proof that a funeral services licensee, or a licensed crematory operator has taken undue advantage of his or her patrons or has committed a fraudulent act in the conduct of business;

(9) Solicitation of business by the licensee, or certificate or registration holder, or any agents, assistants, or employees, whether such solicitation occurs after death or while death is impending, as specified by the secretary: Provided, That this subdivision does not prohibit proper advertising;

(10) If a licensee, or certificate or registration holder, knowingly permits a person not licensed, not certified, or not registered to engage in the profession of embalming, funeral directing, or cremation;

(11) If a licensee, or certificate or registration holder, knowingly permits a person not licensed, not certified, or not registered to use his or her license number or numbers for the purpose of practicing, or discharging any of the duties of the professions of embalming, funeral directing, or cremation;

(12) Employment by the licensee of persons as cappers, steerers, or solicitors, or other such persons to obtain funeral or cremation business;

(13) Employment, directly or indirectly, of any apprentice, agent, assistant, embalmer, employee or other person, on part or full time, or on commission, for the purpose of calling upon individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral director, funeral establishment, or crematory;

(14) The buying of business by the licensee, or certificate or registration holder, or any agents, assistants, or employees, or the direct or indirect payment or offer of payment of a commission by the licensee, or certificate or registration holder, or any agent, assistants, or employees, for the purpose of securing business;

(15) Gross immorality; and

(16) Chronic or persistent inebriety or addiction to alcohol, narcotics, or other substance.

§30-6-17. Apprenticeship Written complaint procedure; notice; requirement to investigate.


(a) After January 1, 2003, the board shall issue a registration to be an apprentice funeral director or apprentice embalmer to an applicant who meets the following requirements:

(1) Is of good moral character and temperate habits;

(2) Is eighteen years of age or over;

(3) A citizen of the United States or be eligible for employment in the United States;

(4) Has a high school diploma or its equivalent;

(5) Has completed one of the education requirements for an embalmer’s license, as set out in subdivision (5), subsection (a), section eight of this article;

(6) Is not attending school and will not be attending school during the apprenticeship period; and

(7) Has paid the appropriate fees.

(b) Any person that commences an apprenticeship prior to January 1, 2003, may continue to serve such apprenticeship and is not subject to the requirements set forth in this section, but is subject to board approval.

(c) The board may set the requirements for an apprenticeship, including the manner in which it shall be served and the length of time, which shall not be more than one year.

(d) No licensed funeral director or licensed embalmer shall be permitted to register or have registered more than five apprentices under his or her license at the same time.

(a) The Secretary of State shall establish a means for members of the public to submit complaints concerning persons or establishments licensed or certified by the Secretary of State pursuant to the provisions of this article. Those means shall include, but not be limited to, electronic, written, and telephonic means.

(b) Upon receipt of a written complaint filed against any licensee, or certificate or registration holder, the secretary shall provide a copy of the complaint to the licensee, or certificate or registration holder, who shall be given a reasonable opportunity to submit a written response to the allegations. Prior to a determination that probable cause exists, the secretary may withhold the name of the complaining party.

(c) The secretary shall investigate the complaint and may initiate the investigation without waiting until receiving a response from the party identified in the complaint. If the secretary finds upon investigation that probable cause exists that the licensee, or certificate or registration holder, has violated any provision of this article or the rules promulgated hereunder, then the secretary shall serve the licensee or registration holder, with a written statement of charges and a notice specifying the date, time, and place of the hearing.


§30-6-18. Funeral establishment license requirements Hearing procedure.

(a) Every funeral establishment in West Virginia shall be licensed prior to opening a funeral establishment for business to the public. The board shall issue a license to operate a funeral establishment to an applicant who meets the following requirements:

(1) The place of business has been approved by the board as having met all the requirements and qualifications to be a funeral establishment as are required by this article;

(2) Notify the board, in writing, at least thirty days before the proposed opening date, so there can be an inspection of the funeral establishment;

(3) Show proof that the funeral establishment passed the inspection;

(4) Show that the funeral establishment has employed a licensee in charge;

(5) Show that the licensee in charge is a licensed funeral director;

(6) Show that the licensee in charge will manage the funeral establishment and be responsible for all business conducted and services performed therein;

(7) Pay all the appropriate fees; and

(8) Complete such other requirements as specified by the board.

(b) All funeral establishment licenses must be renewed biennially, by a staggered schedule, upon or before July 1, and pay a renewal fee.

(c) Each funeral establishment license shall be valid for only one funeral establishment to be located at a specific street address. There shall be a separate license issued and a separate fee assessed to operate additional funeral establishments by the same applicant.

(d) A holder of a funeral establishment license that fails to pay fees for either the principal establishment or additional establishments by July 1, of the renewal year is subject to a penalty, a reinstatement fee for each establishment and the required renewal fee.

(e) The holder of a funeral establishment license who ceases to operate the funeral establishment at the location specified in the application shall, within twenty days thereafter, surrender the funeral establishment license to the board and the license shall be canceled by the board. In the event of the death of an individual who was the holder of a funeral establishment license, it shall be the duty of the holder’s personal representative to surrender the funeral establishment license within one hundred twenty days of qualifying as the personal representative.

(f) If a licensee in charge ceases to be employed by a funeral establishment, then the holder of the funeral establishment license shall notify the board within thirty days of the cessation. Within thirty days after such notification, the holder of a funeral establishment license shall execute a new application for a funeral establishment license specifying the name of the new licensee in charge. A funeral establishment is prohibited from operating more than thirty days without a licensee in charge.

(g) A licensee whose embalmer’s or funeral director’s license has been revoked or a holder of a license to operate a funeral establishment whose license to operate has been revoked shall not operate, either directly or indirectly, or hold any interest in any funeral establishment or crematory: Provided, That a holder of a license to operate a funeral establishment whose license to operate has been revoked is not prohibited from leasing any property owned by him or her for use as a funeral establishment, so long as the property owner does not participate in the control or profit of the funeral establishment except as lessor of the premises for a fixed rental not dependent upon earnings.

(h) Failure to comply with any of these provisions shall be grounds for revocation of a funeral establishment license.

(i) A license to operate a funeral establishment issued by the board prior to July 1, 2002, shall for all purposes be considered a license issued under this section: Provided, That a funeral establishment holding a license issued prior to July 1, 2002, must renew the license pursuant to this section.

(a) The Secretary of State shall afford any applicant an opportunity to be heard in person or by counsel when a determination is made to deny, revoke, or suspend an applicant’s license or application for license, including a renewal of a license.  The applicant has 15 days from the date of receiving written notice of the Secretary of State’s adverse determination to request a hearing on the matter of denial, suspension, or revocation. The action of the Secretary of State in granting, renewing, or in refusing to grant or to renew a license is subject to review by the Circuit Court of Kanawha County or other court of competent jurisdiction.

(b) If the secretary proposes to suspend, revoke, limit, take other disciplinary action, or refuse to renew any license, certificate, or registration, the secretary shall give written notice of the action, including a statement of charges setting forth the reasons for the action, and notice of the date, time, and place for a hearing.

(c) The secretary may, without first holding a hearing, act under the following circumstances:

(1) The secretary is authorized to suspend or revoke a certificate, license, registration, or authority to practice prior to a hearing if the person’s continuation in practice constitutes an immediate danger to the public; or

(2) After due diligence, if the secretary cannot locate a person licensed under the provisions of this chapter within 60 days of a complaint being filed against the licensee, then the secretary may suspend the license, certificate, registration or authority of the person without holding a hearing. If, after additional due diligence and 30 days after the suspension of the person’s license, certificate, registration, or authority, the secretary still cannot locate the person licensed under the provisions of this article, then the secretary may revoke the license, certificate, registration, or authority of the person without holding a hearing.

(d) The secretary shall have authority to issue subpoenas for the attendance of witnesses and the production of records and tangible evidence, administer oaths, and preside at hearings, and to employ, or contract for, an administrative hearing examiner to carry out these functions on the secretary’s behalf.

(e) A hearing on a statement of charges shall be held in accordance with the provisions for hearing set forth in §29A-5-1 et seq. of this code and procedures specified by rule by the secretary.

(f) No sanction may be imposed against a licensee and no license may be revoked, suspended, or subject to sanction unless the secretary finds by a preponderance of evidence, after hearing or by consent of the licensee, that the licensee has engaged in conduct prohibited by the provisions of this article.

(g) Following a hearing, the Secretary of State shall issue his or her decision, which shall be in writing and shall set forth the reasons for the decision.

(h) Disciplinary action includes, but is not limited to, a reprimand, censure, probation, suspension of license, administrative fine not to exceed $1,000 per day per violation, and mandatory attendance at continuing education seminars. In addition to other sanctions imposed, the secretary may require a licensee, or certificate or registration holder to pay the costs of the proceeding if the licensee, or certificate or registration holder is in violation of any provision of this article or the rules promulgated hereunder.

 (i) Any licensee, or certificate or registration holder, adversely affected by any decision of the secretary entered after a hearing, may obtain judicial review of the decision in accordance with §29A-5-4 of this code and may appeal any ruling resulting from judicial review in accordance with §29A-5-4 of this code.

(j) Pursuant to the provisions of §29A-5-1 of this code, the secretary may enter into informal disposition of any contested case or investigation by stipulation, agreed settlement, consent order, or default. Further, the secretary may suspend a final determination and place a licensee on probation if the secretary has found the licensee to be in violation of standards of practice or provisions of this article.

(k) If the secretary has suspended, revoked, or refused to renew a license, certificate, or registration, the licensee, or certificate or registration holder, shall be afforded an opportunity to demonstrate the qualifications to resume practice. The application for reinstatement shall be in writing and subject to the procedures specified by the secretary by rule.


§30-6-19. Funeral establishment to be managed by a licensee in charge; license displayed Unlawful acts.

(a) Every separate funeral establishment in this state offering the services set forth in this article shall be operated under the supervision and management of a licensee in charge who is licensed as a funeral director in this state.

(b) Each separate funeral establishment in this state offering the services set forth in this article shall have its own license, which license shall be prominently displayed within the funeral establishment.

(c) All funeral establishments shall display in all advertising the name of the licensee in charge of the establishment.

(d) All funeral establishments shall prominently display within the funeral establishment the license of the licensee in charge.

(e) A licensee in charge shall supervise each separate establishment.

(a) It is unlawful for any person not licensed or certified under the provisions of this article to practice or offer to practice embalming, funeral directing, cremation, or to operate a funeral establishment or crematory in this state.

(b) Any person who knowingly violates any provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 or confined in the county or regional jail not more than one year, or both fined and imprisoned.


§30-6-20. Crematory license requirements Injunction; criminal proceedings.

(a) Every crematory shall be licensed in West Virginia. The board shall issue a crematory license to an applicant who meets the following requirements:

(1) The place of business has been approved by the board as having met all the requirements and qualifications to be a crematory as are required by this article;

(2) The crematory conforms with all local building codes;

(3) The crematory meets all applicable environmental standards;

(4) Notify the board, in writing, at least thirty days before the proposed opening date so there can be an inspection of the crematory;

(5) Show proof that the crematory passed the inspection;

(6) Have a certified crematory operator in charge;

(7) Pay all the appropriate fees; and

(8) Complete such other requirements as specified by the board.

(b) All crematory licenses must be renewed biennially, by a staggered schedule, upon or before July 1, and pay a renewal fee.

(c) Each crematory license shall be valid for only one crematory to be located at a specific street address. There shall be a separate license issued and a separate fee assessed to operate additional crematories by the same applicant.

(d) A holder of a crematory license that fails to pay fees for either the principal crematory or additional crematories by July 1, of the renewal year is subject to a penalty, a reinstatement fee for each crematory and the required renewal fee.

(e) The holder of a crematory license who ceases to operate the crematory at the location specified in the application shall, within twenty days thereafter, surrender the crematory license to the board and the license shall be canceled by the board. In the event of the death of an individual who was the holder of a crematory license, it shall be the duty of the holder’s personal representative to surrender the crematory license within one hundred twenty days of qualifying as the personal representative.

(f) A holder of a certificate to operate a crematory whose certificate to operate has been revoked or a holder of a crematory license whose license has been revoked shall not operate, either directly or indirectly, or hold any interest in any crematory or funeral establishment: Provided, That a holder of a crematory license whose license has been revoked is not prohibited from leasing any property owned by him or her for use as a crematory, so long as the property owner does not participate in the control or profit of the crematory except as lessor of the premises for a fixed rental not dependent upon earnings.

(g) Failure to comply with any of these provisions shall be grounds for revocation of a crematory license.

(h) All persons that operate crematories shall by January 1, 2003, register with the board. By July 1, 2003, all persons that operate crematories shall obtain a crematory license, pursuant to the provisions of this section.

(i) All crematory licenses must be renewed biennially upon or before July 1.

(j) After July 1, 2003, all licensed crematories must have a certified crematory operator in charge.

(k) If a certified crematory operator in charge ceases to be employed by a crematory, then the holder of the crematory license shall notify the board within thirty days of the cessation. Within thirty days after such notification, the holder of a crematory license shall execute a new application for a crematory license specifying the name of the new certified crematory operator in charge. A crematory is prohibited from operating more than thirty days without a certified crematory operator in charge.

(a) When, as a result of an investigation under this article or otherwise, the secretary or any other interested person believes that any person: (1) Has engaged, is engaging, or is about to engage in the practice of embalming, funeral directing, or cremating without a license or certificate; (2) has operated, is operating, or is about to operate a funeral establishment or crematory; or (3) is in violation of any of the provisions of this article, the secretary or any other interested person may make application to any court of competent jurisdiction for an order enjoining the acts or practices and, upon a showing that the person has engaged or is about to engage in any act or practice, an injunction, restraining order, or another appropriate order may be granted by the court without bond.

(b) When, as a result of an investigation under this article or otherwise, the secretary has reason to believe that a person has knowingly violated the provisions of this article, the secretary may bring its information to the attention of the Attorney General, United States Attorney, local prosecuting attorney, or other appropriate law-enforcement officer. Appropriate criminal proceedings may thereafter be instituted by the Attorney General, in coordination with the local prosecuting attorney, the United States Attorney, or the law-enforcement officer.


§30-6-21. Requirements for cremating Single act evidence of practice.

(a) A crematory shall obtain written permission prior to cremating a dead human body. The written permission shall be obtained from persons authorized by the board as specified in rules.

(b) The written permission shall be on a standard form, prescribed by the board, and shall contain the following information:

(1) The identity of the deceased;

(2) The name of the person authorizing the cremation and the relationship, if any, to the deceased;

(3) Permission for the crematory to perform the cremation;

(4) The name of the person who will claim the cremains from the crematory; and

(5) Any other information required by the board.

(c) A crematory shall obtain a permit or authorization for cremation from the county medical examiner, the assistant county medical examiner or the county coroner of the county wherein the death occurred and do such other acts as required by section nine, article twelve, chapter sixty-one of this code: Provided, That a crematory may obtain a permit or authorization for cremation from the chief medical examiner if:

(1) The crematory is unable to obtain a permit from the county medical examiner, the assistant county medical examiner or the county coroner of the county wherein the death occurred; or

(2) The crematory has concerns following authorization by county personnel regarding the identity or cause of death of the deceased.

(d) The permit or authorization for cremation shall be on forms prescribed by the chief medical examiner. A permit or authorization for cremation may be done by facsimile.

(e) All crematories shall implement a cremation procedure. The board, by rules, shall establish the cremation procedure which shall include:

(1) An identification process for bodies;

(2) A tracking process for bodies from the time a body is delivered to a crematory through the time the cremains are claimed by the authorized person;

(3) Obtaining all the required signatures, as specified by the board, on the written permission for cremation;

(4) Only cremating one human body at a time and prohibiting comingling of cremains;

(5) The specified time period a crematory is required to keep unclaimed cremains;

(6) How to dispose of unclaimed cremains;

(7) A record-keeping process for cremations; and

(8) Any other requirements necessary to effectuate the provisions of this article.

(f) The board shall establish requirements for:

(1) The equipment needed to complete the cremation process; and

(2) The containers needed to store the cremains.

In any action brought or any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order, or conviction without evidence of a general course of conduct.

§30-6-22. Disposition of body of deceased person; penalty Inapplicability of article.


(a) No public officer, employee, physician or surgeon, or other person having a professional relationship with the deceased, shall send, or cause to be sent to an embalmer, funeral director or crematory operator the body of a deceased without first inquiring the desires of the deceased who has designated his or her wishes regarding the disposal of their remains through a last will and testament, an advance directive or preneed funeral contract, as defined in section two, article fourteen, chapter forty-five of this code; the surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent’s death; and, an individual previously designated by the deceased as the person with the right to control disposition of the deceased’s remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time. If there is no last will and testament, advance directive or preneed funeral contract, surviving spouse, or designated person, then the authority and direction of any next of kin or person who may be chargeable with the funeral expenses of the deceased shall be used as to the disposal of the body of the deceased. The provisions of this subsection are not applicable if the remains of the decedent are subject to disposition pursuant to subsection (b) of this section.

(b) Notwithstanding any provision of this code to the contrary, a United States Department of Defense Record of Emergency Data Form (DD Form 93) executed by a declarant who dies while serving in a branch of the United States Military as defined in 10 U. S. C. §1481 constitutes a valid form of declaration instrument and governs the disposition of the declarant’s remains. The person named in the form as the person authorized to direct disposition of the remains may arrange for the final disposition of the declarant’s last remains.

(c) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500, nor more than $1,000, or imprisoned not less than ten days nor more than ninety days, or both.

The provisions of this article do not apply to or interfere with:

(1) The duties of an officer of any local or state board of health who, in compliance with local or state board of health rules, may be charged with the duty of preparation for burial of a dead human body when death was caused by a virulent, communicable disease;

(2) The duties of an officer of a medical college, county medical society, anatomical association, or other recognized person carrying out his or her responsibilities of dealing with indigent dead human bodies who are held subject for anatomical study; or

(3) The customs or rites of any religious sect in the burial of its dead: Provided, That embalming shall only be performed by a funeral services license holder.

§30-6-22a. Right of disposition; preneed contract; affidavit on disposition of remains; role of county commission; liability of funeral home.


[Repealed.]

§30-6-23. Refusal to issue or renew, suspension or revocation of license; disciplinary action.


[Repealed.]

§30-6-24. Complaints; investigations.


[Repealed.]

§30-6-25. Hearing and judicial review.


[Repealed.]

§30-6-26. Reinstatement.


[Repealed.]

§30-6-27. Unlawful acts.


[Repealed.]

§30-6-28. Injunctions.


[Repealed.]

§30-6-29. Criminal proceedings; penalties.


[Repealed.]

§30-6-30. Single act evidence of practice.


[Repealed.]

§30-6-31. Inapplicability of article.


[Repealed.]

 

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

 

 

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