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Introduced Version House Bill 4167 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2018 regular session

Introduced

House Bill 4167

By Delegates Graves, Hamrick, Jennings, Iaquinta, Howell, Pyles, Hill, Criss, Diserio, and Paynter

[Introduced January 17, 2018; Referred
to the Committee on Government Organization then Finance.]

A BILL to repeal §30-6-8, and §30-6-9 of the Code of West Virginia, 1931, as amended; to amend and reenact §30-6-3, §30-6-4, §30-6-5, §30-6-6, §30-6-7, §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, §30-6-20, §30-6-21, §30-6-22, §30-6-23, §30-6-24, §30-6-25, §30-6-26, §30-6-28, and §30-6-29 of said code; and to amend said code by adding thereto a new section, designated §30-6-4a, all relating to regulation of cremation, embalming, and funeral service directing; terminating the Board of Funeral Service Examiners; transferring the functions of the board to the Secretary of State; amending definitions; specifying duties for the transfer of functions and property; providing special provisions and authority to the Secretary of State to facilitate the transfer; continuing the effect of existing rules and authorizing the promulgation of emergency rules; creating a special revenue account; terminating the prior special revenue account; providing for the transfer of assets and liabilities; repealing provisions for obsolete forms of licenses; updating the requirements for renewal of licenses; 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; providing for referral of criminal matters to appropriate authorities; and correcting references and updating terms throughout.

Be it enacted by the Legislature of West Virginia:


ARTICLE 6. BOARD OF FUNERAL SERVICE EXAMINERS.


§30-6-3. Definitions.


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 §45-14-2 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 granted prior to July 1, 2018, 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 licensed by the secretary 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; or

(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 “Secretary” means the West Virginia Secretary of State.

§30-6-4. Board of funeral service examiners Termination of board of funeral service examiners, transfer of functions and responsibilities.


(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 board of funeral service examiners shall terminate on June 30, 2018.  Any license, certificate, or registration issued by the 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 the termination of the board, the board may continue to receive applications for licenses, certificates, and registrations and for renewal of them as previously required by law. The board and its staff shall continue to act on those applications and, until the date of termination, issue licenses, certificates, and registrations to applicants providing complete and sufficient applications.

(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 the termination of the board, the board and its staff shall take all reasonable and necessary measures to terminate the board’s existing contracts and leases by June 30, 2018, under the terms of those contracts. 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 prior to the date of termination.

(e) On July 1, 2018, the Secretary of State shall assume all powers, functions and duties of the former Board of Funeral Service Examiners as detailed in the provisions of this article. The Secretary of State may, within his or her discretion and under terms to be determined by the secretary, employ any person previously employed by the board.

§30-6-4a. Special provisions and authority to facilitate transfer of functions.


(a) To comply with the intent of §30-1-7 of this code, 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.

(b) 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 may grant temporary authorizations to applicants to continue to practice for up to sixty days while the applications are reviewed by the secretary.

(c) If, due to resignation or retirement of the board’s staff, and in the absence of any members of the board, the secretary may request that the State Auditor find that no spending officer exists to authorize expenditures from the Operating Fund of the Board of Funeral Service Examiners. If the State Auditor makes this finding in writing, the Secretary of State shall then be authorized to expend money from the Operating Fund to pay employees and purchase commodities necessary to carry out the requirements of this article until there is a transfer of moneys to a new special revenue account created pursuant to §30-6-7 of this code.

§30-6-5. Powers of the board secretary.


(a) The board Secretary of State 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) (2) Hire, fix the compensation of, and discharge the employees necessary to enforce the provisions of this article;

(4) (3) Set the requirements to be an inspector;

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

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

(7) (6) Set cremation procedures and requirements;

(8) (7) Set By legislative rule, set the fees charged under the provisions of this article;

(9) (8) Set By legislative rule, set the fines assessed under the provisions of this article;

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

(11) (10) Set By legislative rule, set the continuing education requirements for licensees and certificate holders;

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

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

(13) 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;

(14) Propose rules in accordance with the provisions of §29A-3-1 et seq. 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.

(b) The secretary may not delegate the authority to sign licenses, to issue an order, or render disposition of a complaint under the provisions of this article, but all other powers and functions may be exercised by an employee acting under the control and direction of the secretary.


§30-6-6. Rule-making authority, carryover of existing rules, authorization for emergency rules.

(a) The board 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: 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 promulgated by the West Virginia Board of Funeral Service Examiners and in effect on the effective date of this article the amendments to this article enacted during the 2018 regular session of the Legislature shall remain in effect until they are withdrawn, revoked, or amended and may be applied or enforced by the Secretary of State until the secretary proposes new rules to supersede the rules currently in effect.

(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 rule-making 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 and 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.

(d) 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 board.

§30-6-7. Fees; special revenue account; administrative fines.


(a) All fees and other moneys, except administrative fines, received by the board prior to its termination 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. The Operating Fund of the Board of Embalmers and Funeral Directors shall terminate on June 30, 2018, and any moneys in the fund at that time shall be transferred to a new special revenue account in the State Treasury to be known as the Cremation and 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. Any outstanding debts or liabilities that exist at the time of the termination of the Operating Fund of the Board of Embalmers and Funeral Directors shall carry over to be debts or liabilities of the Cremation and Funeral Services Licensing Fund. No compensation or expense incurred under this article is a charge against the General Revenue Fund. inadequate

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

§30-6-8. Embalmer license requirements.



[Repealed.]

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


(a) Commencing July 1, 2003, the board The secretary 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 of this code Has completed one of the following education requirements, as evidenced by a transcript submitted to the secretary 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;

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

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


(a) All crematory operators shall be certified In order to operate a crematory lawfully in this state, the operator must be licensed by the board secretary. The board secretary shall issue a certificate license 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) (b) All certificates must be renewed biennially upon or before July 1.

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

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


(a) The board secretary may shall issue a license to practice embalming and funeral directing funeral service license or a certificate of registration 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 authorization 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 rules promulgated by the secretary.

(b) If granted by the secretary, reciprocal licenses may be renewed biennially upon payment of the renewal license fee.

§30-6-13. Courtesy cards.


(a) The board secretary 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 secretary;

(2) Payment of a fee; and

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

(b) A courtesy card may only 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 secretary to immediately revoke or cancel the courtesy card of the violator.

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


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

(b) The board secretary 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) (c) Any person licensed to practice embalming and funeral directing or certified licensed 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 secretary, and pay a fee, and shall, during such period, be listed by the board secretary as being inactive. At such time a person desires to return to active practice, he or she must notify the board secretary, in a manner specified by the board secretary, and complete all the continuing education requirements.

§30-6-15. Continuing education.


(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 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.

(b) Hours of continuing education may be obtained by attending and participating in board-approved 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.

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

(d) 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.

§30-6-16. Inspector and inspection requirements.


(a) All inspectors employed by the board secretary 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 secretary. 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 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 board secretary, but the allowances shall at no time exceed the receipts of the board.

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

§30-6-17. Apprenticeship.


(a) After January 1, 2003, the board The secretary 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 a funeral service licensee as set out in §30-6-10(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) 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 secretary approval

(c) (b) The board 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.

(d) (c) 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.

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


(a) Every funeral establishment in West Virginia shall be licensed prior to opening a funeral establishment for business to the public. The board 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 board secretary as having met all the requirements and qualifications to be a funeral establishment as are required by this article and by rules of the secretary;

(2) Notify the board secretary, 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 secretary.

(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 secretary and the license shall be canceled by the board 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 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 secretary 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

§30-6-20. Crematory license requirements.

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

(1) The place of business has been approved by the board 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 board secretary, 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 secretary.

(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 secretary and the license shall be canceled by the board 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 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) (h) After July 1, 2003, all licensed crematories must have a certified crematory operator in charge.

(k) (i) 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 secretary 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.

§30-6-21. Requirements for cremating.


(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 secretary as specified in rules. 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 §45-14-2 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.

(b) The written permission shall be on a standard form, prescribed by the board 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 board 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 board by rules the secretary, by rule 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 secretary, 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 secretary shall establish requirements for:

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

(2) The containers needed to store the cremains.

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


(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 §47-14-2 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.

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


(a) The board secretary may refuse to renew, suspend, revoke, or limit, or refuse to renew any license, certificate or registration or practice privilege of a licensee, or certificate or registration holder and may take disciplinary action against a licensee, or certificate or registration holder after a hearing; Provided, That 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 sixty 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 thirty 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.

(b) The board secretary may refuse to issue, refuse to renew, suspend, revoke or limit any license, certificate or registration or practice privilege of a licensee, or certificate 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 board 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 which 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 licensed embalmer, a licensed funeral director, or a certified 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 board 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.

(b) If the board suspends, revokes, refuses to renew or limits any license, certificate or registration or practice privilege, the board 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. The hearing shall be held in accordance with the provisions of this article.

(c) 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.

§30-6-24. Complaints; investigations; alternatives for disposition.


(a) Upon receipt of a written complaint filed against any licensee, or certificate or registration holder, the board 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.

(b) The board may 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 board 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 board secretary shall serve the licensee, or certificate or registration holder, with a written statement of charges and a notice specifying the date, time, and place of the hearing. The hearing shall be held in accordance with the provisions of this article.

(c) In addition to other sanctions imposed, the board 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.

(d) 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.

§30-6-25. Hearing and judicial review procedure and burden of proof.


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


(b) Any licensee, or certificate or registration holder, adversely affected by any decision of the board 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 said article

(b) 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.

§30-6-26. Reinstatement.


If the board 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 board secretary by rule.


§30-6-28. Injunctions.


When, as a result of an investigation under this article or otherwise, the board 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 board 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.

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


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

(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.

 

NOTE: The purpose of this bill is to terminate the Board of Funeral Service Examiners and to reassign its duties and responsibilities to the Secretary of State.

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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