1 SB288 H FIN AM 2 Rose 3348
4 The Committee on Finance moves to amend the bill on page two, by striking out 5 everything after the enacting clause and inserting in lieu thereof the following:
6 "ARTICLE 6. BOARD—OF FUNERAL AND CREMATORY
530-6-1. License or certificate required to practice.
2 The practice of preparing dead human bodies for burial or cremation and the subsequent 3 burial or cremation thereof has serious public health and safety considerations and should only 4 be practiced by a person who has specific training in those fields.
5 Therefore, the Legislature hereby finds that to protect the public interest a person must 6 have a license or certificate, as provided in this article, to provide funeral services and practice
7 cremation and to operate a funeral establishment and or
8 crematory in the State of West Virginia.
1 530-6-2. Short-title Definitions.
4 (a) "Apprentice" means a person who is preparing to become a funeral services licensee 5 and is learning the practice of embalmingt funeral directing, or cremation under the direct
6 suoervision and personal instruction of a funeral services license holder.
7 (b) "Board" means the West Virginia Board of Funeral Service Examiners.
8 (c) "Certificate" means the authorization to perform crematou services pursuant to this 9 article.
10 (d) "Cremains" means all human remains. including foreign matter cremated with the 11 human. recovered after the completion of cremation.
12 (e) "Cremation" means the mechanical or thermal process whereby a dead human body 13 is reduced to ashes and bone fragments and then further reduced by additional pulverization or 14 recremating when necessary.
15 (f) "Crematory" means a licensed place of business where a deceased human body is 16 reduced to ashes and bone fragments and includes a crematory that stands alone or is pan of 17 or associated with a funeral establishment.
18 (g) "Cremat0!Y operator" means a person certified by the secretary to operate a 19 crematory.
20 (h,) 'Crematory operator in charge" means a certified operator who accepts
21 responsibility for the operation of a crematory.
22 (i) "Deceased" means a dead human being for which a death certificate is required. 23 (i) "Embalming" means the practice of introducing chemical substances. fluids, or gases 24 used for the purpose of preservation or disinfection into the vascular system or hollow organs of 25 a dead human body by arterial or hypodermic injection for the restoration of the physical 26 appearance of a deceased.
27 (k) "Funeral" means a service. ceremony. or rites performed for the deceased with a
28 body present.
29 (l) "Funeral directing" means the business of engaging in the following:
30 (1) The shelter, custody, or care of a deceased;
31 (2) The preparation of a deceased for burial or other disposition:
32 (3) The arranging or supervising of a funeral or memorial service for a deceased; and 33 (4) The maintenance of a funeral establishment for the preparation. care. or disposition
34 of a deceased.
35 (m) "Funeral director" means a person licensed to practice funeral directing.
36 (n) "Funeral establishment" means a licensed place of business devoted to: The care, 37 preparation. and arrangements for the transporting. embalming. funeral. burial. or other 38 disposition of a deceased. A funeral establishment can include a licensed crematory.
39 (o) "Funeral service licensee" means a person licensed to practice embalming and
40 funeral directing.
41 (p) "License" means a license. which is not transferable or assignable, to:
42 (I) Practice embalming and funeral directing: or
43 (2) Operate a funeral establishment.
44 "Licensee" means a person holding a license issued under the provisions of this article. 45 (q)"Licensee in charge" means the holder of a funeral services license who accepts 46 responsibility for the operation of a funeral establishment.
47 (r) "Memorial service" means a service, ceremony, or rites performed for the deceased 48 without a body present.
49 (s) "Person" means an individual, partnership, association, corporation, not-for-profit 50 organization. or any other organization, 51 (t) "Registration" means a registration to be an apprentice to learn the practice of 52 embalming, funeral directing. or cremation.
1 530-6-3. Definitions Termination of West Virginia Board of Funeral Service Examiners;
2 transfer of functions and responsibilities to Secretary of State.
78 (a) The West Virginia Board of Funeral Service Examiners, previously established under 79 this article. shall terminate on June 30. 2018. Any license, certificate. or registration issued by 80 that board prior to July 1, 2018 shall remain in effect for the period specified at the time the 81 license. certificate. or registration was issued.
82 b Prior to Jul 1 2018 the board ma continue to receive a lications for licenses
83 certificates. and registrations and for renewal of the same as previously required by law. The 84 board and its staff shall continue to act on those applications and. up until the date of 85 termination. issue licenses, certificates. and registrations to applicants providing complete and 86 sufficient applications, as approgriate.
87 (c) Upon the effective date of the enactment of amendments to this section during the
88 2018 regular session of the Legislature, and prior to the termination of the board, complaints
89 alleging unprofessional conduct against any licensee, certificate holder. or registrant shall be 90 submitted to the Secretary of State for investigation.
91 (d) Prior to July 1. 2018, the board and its staff shall take ell reasonable and necessary
92 measures to terminate the board's existing contracts and leases effective June 30. 2018, under
93 the terms of those contracts. or, in coordination with the Secretary of State. arrange for the 94 transfer of those contracts and leases to the Secretary of State. The board and its staff shall 95 arrange for all records, data. equipment, and other tangible property owned by the board to be 96 transferred to the Secretary of State prior to July 1, 2018.
97 (e) On July 1. 2018. the Secretaty of State shall assume all powers, functions, and 98 duties of the former board as detailed in this article.
99 (f) All licenses, certificates. or registrations issued by the board after the effective date of 100 the amendment of this section in the 2018 regular session of the Legislature, but prior to the 101 termination of the board, shall be valid if signed both by the executive director of the board and 102 by any member of the board or. in the absence of any available member of the board. by the 103 Secretary of State.
104 (1) If, due to resignation or retirement of its staff, the board is unable to complete the 105 review of applications for renewal of licenses or other authorizations to practice by June 30, 106 2018, as provided under this article. the Secretary of State may grant temporary authorizations 107 to aoplicants to continue to practice for up to 60 days while the applications are reviewed by the 108 secretary.
109 (2) If, due to resignation or retirement of the board's staff. and in the absence of any
110 members of the board. the board ceases to fulfill its statutory functions. the Secretary of State
11 1 may ask the State Auditor to find that no spending officer exists to authorize expenditures from 112 the Funeral Service Examiners Operating Fund. If the State Auditor makes this finding in writing. 113 the Secretary of State shall then be authorized to expend money from that fund to carry out the
114 requirements of this article until there is a transfer of moneys to the new special revenue
account created pursuant to 530-6-5 of this code.
(g) The Secretary of State shah 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.
530-64. Rule-making authority; carryover of existing
rules; authorization for emergency rules.
27 28 qt:taåified-r
39 (a) The Secretary of State shall propose rules for legislative approval in accordance with 40 the provisions of S29A-3-1 et seq. of this code to implement the provisions of this article 41 including. but not limited to. the following:
42 (1) The general practice of embalming, funeral directing. and cremating. and operating a 43 funeral establishment and crematocy.:
44 (2) The issuing and renewing of licenses. certificates, and courtesy cards, including
45 establishing a staggered biennial renewal schedule:
46 (3) The requirements for inactive licensees:
47 (4) The registration and regulation of apprentices:
48 (5) Establish a cremation procedure and crematory requirements;
49 (6) Establish inspection requirements for funeral establishments and crematories,
50 including an inspection of a new facility and annual inspections of existing facilities:
51 (7) Establish inspector and investigator requirements:
52 (8) Setting the fees charged under the provisions of this article:
53 (9) Setting the fines assessed under the provisions of this article:
54 (10) Setting requirements for continuing education for licensees;
55 (I l) Denying. suspending. revoking, reinstating, or limiting the practice of a licensee or 56 certificate of qualification:
57 (12) The investigation and resolution of complaints against persons licensed. certified, or
58 registered under this article:
59 (13) Establish advertising standards: and
60 (14) Propose any other rules necessay to effectuate the provisions of this article.
61 (b) All rules promulgated by the West Virginia Board of Funeral Service Examiners and 62 in effect on the effective date of the amendments to this article enacted during the 2018 regular 63 session of the Legislature shall remain in effect and may be applied or enforced by the
64 Secretary. of State until the secretary proposes new rules to supersede the rules currently in
65 effect: Provided. That these rules shall expire on July 1. 2021. if not superseded sooner. The 66 secretary is authorized to request the repeal, pursuant to the provisions of 529A-3-1 a(b) of this 67 codet of any rules previously. promulgated by the West Virginia Board of Funeral Service 68 Examiners.
69 (c) If the Secretacy of State chooses during the 2018 calendar year to proQose rules for
70 legislative approval to supersede or update the rules previously promulgated by the West 71 Vir inia Board of Funeral Service Examiners the secreta ma initiate the rule-makin rocess 72 with a notice of proposed rulemaking as provided within S29A-3-5 of this code prior to October
73 1, 2018. and. notwithstanding the time limit specified in $29A-3-12(a) of this codet the 74 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 76 legislative approval pursuant to this section, the secretary is also authorized to promulgate a corresponding emergency rule pursuant to the provisions of S29A-3-15 of this code.
530-6-5. Powers-of-the-board Crematory operator certificate requirements.
24 In order to operate a crematuy lawfully in this state, the operator must be certified by the 25 Secretary of State. The secretary shall issue a certificate to be a crematory operator to an 26 applicant who meets the following requirements:
27 (1) Has completed a class. authorized by the secretary. on cremation and operating a
29 (2) Has paid all the aQpropriate fees: and
30 (3) Has completed such other requirements as prescribed by the secretary.
1 530-6-6. Rule-making-authority Funeral service license requirements.
29 The Secretary of State shall issue a license to practice embalming and funeral directing. 30 which license shall be known as a funeral service license. to an applicant who meets the
31 following requirements:
32 (1) Is of good moral character:
33 (2) Is 18 years of age or older:
34 (3) Is a citizen of the United States or is eligible for employment in the United States:
35 (4) Holds a high school diploma or its equivalent:
36 (5) Has completed one of the following education requirements. as evidenced by a 37 transcript submitted to the secretary for evaluation:
38 (A) (i) Has an associate's deqree from an accredited college or university, or has
39 successfully completed at feast 60 semester hours or 90 quarter hours of academic work in an 40 accredited college or university toward a baccalaureate degree with a declared major field of 41 study: and
42 (ii) Has graduated from a school of mortuary science. accredited by the American Board 43 of Funeral Service Education, Inc., which requires as a prereguisite to graduation the
44 completion of a course of study of not less than 12 months: or
45 (B) Has a bachelor's degree in mortuary science from an accredited college or 46 university:
47 (6) Has completed an apprenticeship established by the Secretatu of State pursuant to
48 530-6-9 of this code: and
49 (7) Has paid all the appropriate fees.
1 530-6-7. Fees; special revenue account; administrative fines
2 (a) All fees and other moneys, except administrative fines, received by the boa-rd 3 Secretary of State shall be deposited in a separate special revenue fund in the state Treasury
4 and be used for the administration of this article.
7 the-General-R-eventte-F-und-:- The Secretary of State is authorized to expend moneys of the fund 8 from collections to carry out the grovisions of this article. No compensation or expense incurred 9 under this article is a charge against the General Revenue Fund.
10 (b) Any amounts received as administrative fines imposed pursuant to this article shall 1 1 be deposited into the General Revenue Fund of the state Treasury.
12 (c) On June 30. 2019, and each year thereafter. any amounts in the Funeral Services 13 Licensing Fund over $250,000 shall revert to the General Revenue Fund.
1 530-6-8. Embalmer—license—requirements Licenses and certificates or eauivalent
2 authorizations from another state; courtesy cards.
38 (a) The secretary shall issue a funeral service license or a certificate to be a crematory 39 operator to an applicant of good morel character who holds a valid license or a certificate or its 40 equivalent to practice from another state or iurisdiction if the applicant demonstrates that:
41 (I) He or she holds a license or certificate or its equivalent to practice in another state or 42 jurisdiction which was granted after completion of educational requirements substantially.
43 equivalent to those required in this state:
44 (2) He or she holds a license or its equivalent to practice in another state which was 45 granted after passing, in that or another statet an examination that is substantially. equivalent to 46 the examination required in this state;
47 (3) Reciprocal rights are provided by such other state or jurisdiction to holders of funeral 48 services licenses and certificates granted in this state;
49 (4) He or she is not currently being investigated by a disciplinary authority of another 50 state, does not have charges pending against his or her license or something eguivalent to 51 practice and has never had a license or equivalent authorization to practice revoked:
52 (5) He or she has not previously failed an examination for funeral service license in this
54 (6) He or she has paid the application fee specified by rule: and
55 (7) He or she has completed such other action as required by rules promulgated by the 56 secretary.
57 (b) The Secretary of State may enter into reciprocal agreements with funeral services 58 and crematory licensing authorities in other states for the mutual recognition of licenses 59 between states.
60 (c) The secretary may issue courtesy cards. beginning on July 1 , 2018, to funeral 61 services license holders in the states bordering on West Virginia:
62 (1) A courtesy card may only be issued after the:
63 (A) Application for a courtesy card is made on a form prescribed by the secretary:
64 (B) Payment of a fee: and
65 (C) Adherence to such other requirements as specified by the secretacy by rule;
66 (2) A courtesy card may only be issued under the following conditions:
67 (A) Holders of courtesy cards shall not be permitted to open or operate a place of 68 business for the purpose of conducting funerals, embalming bodies, or cremating in the State of
69 West Virginia: and
70 (B) Holders of courtesy cards shall not be permitted to maintain an office or agency in 71 this state for the purpose of conducting funerals. embalming bodies. or cremating in the State of 72 West Virginia:
73 (3) A violation of S30-6-8(c)(2) of this code shall be sufficient cause for the secretary to
74 immediately revoke or cancel the courtesy card of the violator.
530-6-9. Funeral-director-fie-e-n-se-reqtiiremenf-s Apprenticeship.
10 (a) The Secretary of State shall issue a registration to be an apprentice to a funeral
11 services licensee to an applicant who meets the following requirements:
12 (1) Is of good moral character and temperate habits:
13 (2) Is 18 years of age or older;
(3) Is a citizen of the United States or eligible for employment in the United States:
15 (4) Has a high school diploma or its equivalent:
16 (5) Has completed one of the education requirements for a funeral service licensee as 17 set out in 530-6-6(5) of this code;
18 (6) Is not attending school and will not be attending school during the apprenticeship
19 period: and
20 (7) Has paid the appropriate fees.
21 (b) The secretary may set the requirements for an apprenticeship. including the manner 22 in which it shall be served and the length of time. which shall not be more than one year.
23 (c) No funeral services licensee shall be permitted to register or have registered more 24 than five apprentices under his or her license at the same time.
1 530-6-10. Funeral establishment license
21 (a) Every funeral establishment in West Virginia shall be licensed prior to opening a 22 funeral establishment for business to the pubjjc. The secretary shall issue a license to operate a 23 funeral establishment to an applicant who meets the following requirements:
24 (1) The place of business has been approved by the secretary as having met all the 25 requirements and qualifications to be a funeral establishment as are reguired by this article and 26 legislative rules promulgated pursuant thereto:
27 (2) Notify the secretary. in writing. at least 30 days before the proposed opening date. so
28 there can be an inspection of the funeral establishment:
29 (3) Show proof that the funeral establishment passed an annual inspection:
30 (4) Show that the funeral establishment employs a licensee in charge:
31 (5) Show that the licensee in charge will manage the funeral establishment and be
32 responsible for alt business conducted and services performed therein:
33 (6) Pay all the appropriate fees: and
34 (7) Complete such other requirements as specified by the secretary.
35 (b) Every separate funeral establishment shall be operated under the supervision and 36 management of a licensee in charge. Each funeral establishment shall display in all advertising 37 the name of the licensee in charge of the establishment. All funeral establishments shall 38 prominently display within the funeral establishment the license of the licensee in charge.
39 (c) Each funeral establishment license shall be valid for only one funeral establishment
40 to be located at a specific street address. There shall be a separate license issued and a 41 separate fee assessed to operate additional funeral establishments by the same applicant. The 42 funeral establishment license shall be prominently displayed within the funeral establishment. 43 (d) The holder of a funeral establishment license who ceases to operate the funeral 44 establishment at the location specified in the application shall, within 20 days thereafter. 45 surrender the funeral establishment license to the secretary, end the license shatl be canceled 46 by the secretary. In the event of the death of an individual who was the holder of a funeral 47 establishment license, it shall be the duty of the holder's personal representative to surrender 48 the funeral establishment license within 120 days of qualifying as the personal representative. 49 (e) If a licensee or certificate holder in charge ceases to be employed by a funeral 50 establishment. then the holder of the funeral establishment license shall notify the secretary 51 within 30 days of the cessation. Within 30 days after such notification, the holder of a funeral 52 establishment license shall execute a new application for a funeral establishment license 53 specifying the name of the new licensee in charge. A funeral establishment is prohibited from 54 operating more than 30 days without a licensee in charge.
55 (f) A licensee or certificate holder whose funeral service license has been revoked or a 56 holder of a license or certificate to operate a funeral establishment whose license to operate has
57 been revoked shall not operate, either directly or indirectly, or hold any interest in any funeral
58 establishment or crematory for so long as the funeral service license or license or certificate to
59 operate a funeral establishment is revoked: Provided, That a holder of a license or certificate to
60 operate a funeral establishment whose license or certificate to operate has been revoked is not
61 prohibited from leasing any property owned by him or her for use as a funeral establishment. so 62 long as the property owner does not participate in the control or profit of the funeral 63 establishment except as lessor of the premises for a fixed rental not dependent upon earnings. 64 (g) Failure to comply with any of these provisions shall be grounds for revocation of a
65 funeral establishment license.
66 530-6-11. Crematory operator certificate requirements.
1 (a) All crematory operators shall be certified by the
13 secretary, who shall issue a crematory certificate to an applicant who meets the 14 following requirements:
15 (1) The place of business has been approved by the secretary as having met all the
16 requirements and qualifications to be a crematory as are required by this article;
(2) The crematory conforms with all local building codes;
18 (3) The crematory meets all applicable environmental standards;
19 (4) Notify the secretary, in writing, at (east 30 days before the proposed opening date so
20 there can be an inspection of the crematory;
21 (5) Show proof that the crematory passed the inspection;
22 (6) Have a certified crematory operator in charge;
23 (7) Pay all the appropriate fees; and
24 (8) Complete such other requirements as specified by the secretary.
25 (b) Every separate crematory shall be operated under the supervision and management 26 of a certificate holder in charge. Each crematory shall display in all advertising the name of the 27 certificate holder in charge of the establishment. All crematories shall prominently display within 28 the funeral establishment the certificate of the certificate holder in charge.
29 (c) Each crematory certificate shall be valid for only one crematory to be located at a
30 specific street address. There shall be a separate certificate issued and a separate fee 31 assessed to operate additional crematories by the same applicant. The crematory certificate 32 shall be prominently displayed within the crematory.
33 (d) The holder of a crematory certificate who ceases to operate the crematory at the 34 location specified in the application shall, within 20 days thereafter, surrender the crematory 35 certificate to the secretary, and the license shall be canceled by the secretary. In the event of 36 the death of an individual who was the holder of a crematory certificate the holder's personat 37 representative shall surrender the crematory certificate within 120 days of qualifying as the 38 personal representative.
39 (e) If a certified crematory operator in charge ceases to be employed by a crematory, 40 then the holder of the crematory certificate shall notify the secretary within 30 days of the 41 cessation. Within 30 days after such notification, the holder of a crematory certificate shall
42 execute a new application for a crematory certificate specifying the name of the new certified 43 crematory operator in charge. A crematory is prohibited from operating more than 30 days 44 without a certified crematory operator in charge.
45 (f) A holder of a crematory certificate whose certificate to operate has been revoked or a
46 holder of a crematory cettificate whose certificate has been revoked shall not operate, either
47 directly or indirectly, or hold any interest in any crematory or funeral establishment: Provided
48 That a holder of a crematory certificate whose certificate has been revoked is not prohibited
49 from leasing any property owned by him or her for use as a crematory, so long as the property 50 owner does not participate in the control or profit of the crematory except as lessor of the 51 premises for a fixed rental not dependent upon earnings.
52 (g) Failure to comply with any of these provisions shall be grounds for revocation of a
this-state Inspector and inspection requirements.
(a) The secretary shall appoint one or more persons to serve as inspectors of funeral 23 establishments and crematories.
(b) Each inspector shall inspect a specific region, as designated by the secretary. Any
25 person being employed as an inspector is prohibited from inspecting in the region in which he or 26 she practices.
27 (c) All inspections shall be conducted in a manner so as not to interfere with the conduct 28 of business within the funeral establishment or crematory. The secretary or an inspector 29 retained by the secretary has the authority to enter, at all reasonable hours, for the purpose of 30 inspecting the premises in which the business of embalming, funeral directing, or cremating is 31 conducted.
32 (d) Ail of an inspector's expenses, per diem, and compensation shall be paid out of the 33 receipts of the secretary, but the allowances shall at no time exceed the receipts of the 34 secretary received pursuant to this article.
35 (e) The secretary is authorized to set fees for inspections: Provided, That there shall be no fee 36 for an annual inspection.
1 530-6-13. Gotmesy—eards License, certificate, and courtesy card renewal; conditions of
I l West-Virginia-rand
17 (a) The secretary shall biennially on July 1 , and pursuant to a staggered schedule, 18 renew a funeral service •license or a certificate to be a crematory operator to every licensee or 19 certificate holder desiring to continue in active practice or service.
20 (b) The secretary shall charge a fee for each renewal and a late fee for nonrenewal of a 21 license or certificate.
22 (c) The secretary shall require as a condition for the renewal of a funeral service license
23 or a certificate to be a crematory operator that each licensee or certificate holder participate in 24 continuing education.
25 (1) The secretary shall establish continuing education requirements for each licensee or 26 certificate holder to complete during a license period. The secretary shall propose rules for 27 legislative approval in accordance with the provisions of S29A-3-1 et seq. of this code to specify 28 the amount and types of education to be completed and the manner in which licensees, 29 certificate holders, and education providers may apply for approval of courses offered.
30 (2) Hours of continuing education may be obtained by attending and participating in 31 programs, meetings, seminars, or activities approved by the secretary. It is the responsibility of 32 each licensee or certificate holder to finance his or her costs of continuing education.
33 (3) Any holder of a funeral services license or certificate holder 65 years or older with at 34 least 10 years' experience is entitled to be issued, after payment of a fee, a funeral service 35 license emeritus or a crematory operator certificate emeritus and is exempt from all continuing 36 education requirements. The emeritus license or certificate shall entitle the holder to all the 37 rights and privileges of the license or certificate previously held by the licensee or certificate 38 holder.
39 (d) Any person holding a funeral service license or certificate to be a crematory operator 40 who does not desire to continue in active practice shall notify the secretary, in a manner 41 specified by the secretary, and pay a fee, and shall, during such period, be listed by the 42 secretary as being inactive. At such time a person desires to return to active practice, he or she 43 must notify the secretary, in a manner specified by the secretary, and complete all the 44 continuing education requirements.
45 (e) All funeral establishment licenses and certificates to be a crematory operator shall be
46 renewed biennially, by a staggered schedule, upon or before July 1, and the holder must pay a 47 renewal fee. A holder of a funeral establishment license or certificate that fails to pay fees for 48 either the principal establishment or additional establishments by July 1 of the renewal year is 49 subject to a penalty, a reinstatement fee for each establishment, and the required renewal fee. 50 (f) All certificates to be a crematory operator must be renewed biennially, by a staggered 51 schedule, upon or before July 1, and the holder must pay a renewal fee. A holder of a crematory 52 certificate that fails to pay fees for either the principal establishment or additional establishments 53 by July 1 of the renewal year is subject to a penalty, a reinstatement fee for each establishment,
54 and the required renewal fee.
55 (g) Any courtesy card issued pursuant to this article must be renewed annually.
1 530-6-14. Requirements for
22 (a) A crematory shall obtain written permission prior to cremating a dead human body.
23 The written permission shall be obtained from persons in the following order of precedence:
24 (1) The deceased, who has expressed his or her wishes regarding the disposal of his or 25 her remains through a last will and testament, an advance directive, or preneed funeral contract, 26 as defined in 547-14-2 of this code;
27 (2) An individual previously designated by the deceased as the person with the right to 28 control disposition of the deceased's remains in a writing signed and notarized by the deceased: 29 Provided, That no person may be designated to serve in such capacity for more than one 30 nonrelative at any one time;
31 (3) The surviving spouse of the deceased, unless a petition to dissolve the marriage was
32 pending at the time of the decedent's death; 33 (4) The deceased's next of kin;
34 (5) A court order;
35 (6) A public official who is charged with arranging the final disposition of an indigent 36 deceased; or
37 (7) A representative of an institution who is charged with arranging the final disposition
38 of a deceased who donated his or her body to science.
39 (b) The written permission shall be on a standard form, prescribed by the secretary, and
40 shall contain the following information:
41 (1) The identity of the deceased;
42 (2) The name of the person authorizing the cremation and the relationship, if any, to the d eCeased ;
44 (3) Permission for the crematory to perform the cremation;
45 (4) The name of the person who will claim the cremains from the crematory; and
46 (5) Any other information required by the secretary.
47 (c) A crematory shall obtain a permit or authorization for cremation from the county
48 medical examiner, the assistant county medical examiner, or the county coroner of the county 49 wherein the death occurred and do such other acts as required by 561-12-9 of this code: 50 Provided, That a crematory may obtain a permit or authorization for cremation from the chief 51 medical examiner if:
52 (1) The crematory is unable to obtain a permit from the county medical examiner, the 53 assistant county medical examiner, or the county coroner of the county wherein the death 54 occurred; or
55 (2) The crematory has concerns following authorization by county personnel regarding 56 the identity or cause of death of the deceased.
57 (d) The permit or authorization for cremation shah be on forms prescribed by the chief 58 medical examiner. A permit or authorization for cremation may be done by facsimile. 59 (e) All crematories shall implement a cremation procedure. The secretary shall, by rule,
60 establish the minimum standards for the cremation procedure, which shall include:
61 (1) An identification process for bodies;
62 (2) A tracking process for bodies from the time a body is delivered to a crematory
63 through the time the cremains are claimed by the authorized person;
64 (3) Obtaining all the required signatures, as specified by the secretary, on the written 65 permission for cremation;
66 (4) Only cremating one dead human body at a time and prohibiting comingling of
68 (5) The specified time period a crematory is required to keep unclaimed cremains;
69 (6) How to dispose of unclaimed cremains;
70 (7) A record-keeping process for cremations; and
71 (8) Any other requirements necessary to effectuate the provisions of this article.
72 (f) The secretary shall establish requirements for: 73 (1) The equipment needed to complete the cremation process; and
74 (2) The containers needed to store the cremains.
75 530-6-15. eon-tintti-ng—edueati-on Right of disposition; preneed contract; affidavit on
76 disposition of remains; role of county commission; liability of funeral home.
(a) Notwithstanding 530-6-14 of this code, a person who is 18 years of age or older and
15 of sound mind, by entering into a preneed funeral contract, as defined in 547-14-2 of this code, 16 may direct the location, manner, and conditions of the disposition of the person's remains and 17 the arrangements for funeral goods and services to be provided upon the person's death. The 18 disposition directions and funeral prearrangements that are contained in a preneed funeral
19 contract are not subject to cancellation to revision unless any resources set aside to fund the 20 preneed funeral contract are insufficient under the terms of the preneed funeral contract to carry 21 out the disposition directions and funeral prearrangements contained in the contract.
22 (b) As to any matter not addressed in a preneed funeral contract as described in 530-623 15(a) of this code and except as provided in 530-6-15(c) of this code, the right to control the
24 disposition of the remains of a deceased person, the location, manner, and conditions of
25 disposition, and arrangements for funeral goods and services to be provided vests in the 26 following, in the order named, provided that the person is 18 years or older and is of sound 27 mind:
28 (1) A person designated by the decedent as the person with the right to control the 29 disposition in an affidavit executed by a person who is 18 years of age or older and of sound 30 mind before a notary public in substantially the following form:
31 do hereby designate with the right to 32 control the disposition of my remains upon my death. I have/ have not attached 33 specific directions concerning the disposition of my remains with which the designee shall 34 substantially comply, provided that these directions are lawful and there are sufficient resources
35 in my estate to carry out the directions.
38 State of
39 County of
40 a Notary Public of said County, do certify that 41 as principal whose name is signed to the writing
42 above bearing date on the day of 20 , has this day acknowledged the
43 same before me.
44 Given under my hand this day of 20
45 My commission expires:
47 Notary Public";
48 (2) The surviving spouse of the decedent;
49 (3) The sole surviving child of the decedent or, if there is more than one child, the 50 majority of the surviving children. However, fewer than one half of the surviving children shall be
51 vested with the rights under this section if they have used reasonable efforts to notify all other 52 surviving children of their instructions and are not aware of any opposition to those instructions 53 on the part of more than one half of all surviving children;
54 (4) The surviving parent or parents of the decedent If one of the surviving parents is 55 absent, the remaining parent shall be vested with the rights and duties under this section after 56 reasonable efforts have been unsuccessful in locating the absent surviving parent;
57 (5) The surviving brother or sister of the decedent or, if there is more than one sibling of 58 the decedent, the majority of the surviving siblings. However, less than the majority of surviving 59 siblings shall be vested with the rights and duties under this section if they have used 60 reasonable efforts to notify all other surviving siblings of their instructions and are not aware of 61 any opposition to those instructions on the pan of more than one half of all surviving siblings; 62 (6) The surviving grandparent of the decedent or, if there is more than one surviving 63 grandparent, the majority of the grandparents. However, fewer than the majority of the surviving 64 grandparents shall be vested with the rights and duties under this section if they have used 65 reasonable efforts to notify all other surviving grandparents of their instructions and are not
66 aware of any opposition to those instructions on the part of more than one half of all surviving grandparents; 68 (7) The guardian of the decedent at the time of the decedent's death if one had been
70 (8) The personal representative of the estate of the decedent;
71 (9) The person in the classes of the next degree of kinship, in descending order, under
72 the laws of descent and distribution to inherit the estate of the decedent. If there is more than
73 one person of the same degree, any person of that degree may exercise the right of disposition; 74 (10) If the disposition of the remains of the decedent is the responsibility of the state or a 75 political subdivision of the state, the public officer, administrator, or employee responsible for 76 arranging the final disposition of decedent's remains; or
77 (11) In the absence of any person under S30-6-15(b)(1) through of this 78 code, any other person willing to assume the responsibilities to act and arrange the final
79 disposition of the decedent's remains, including the funeral director with custody of the body, 80 after attesting in writing that a good faith effort has been made to no avail to contact the 81 individuals under through of this code.
82 (c) A person entitled under law to the right of disposition forfeits that rightl and the right 83 is passed on to the next qualifying person as listed in 530-6-15(b) of this code, in the following 84 circumstances:
85 (I) Any person charged with murder or voluntary manslaughter in connection with the 86 decedent's death and whose charges are known to the funeral director. However, if the charges 87 against that person are dismissed or if the person is acquitted of the charges, the right of 88 disposition is returned to the person;
89 (2) Any person who does not exercise his or her right of disposition within two days of 90 notification of the death of decedent or within three days of decedent's death, whichever is 91 earlier;
92 (3) If the person and the decedent are spouses and a petition to dissolve the marriage 93 was pending at the time of decedent's death.
94 (d) Any person signing a funeral service agreement, cremation authorization form, or any 95 other authorization for disposition shall be deemed to warrant the truthfulness of any facts set 96 forth therein, including the identity of the decedent whose remains are to be buried, cremated, 97 or otherwise disposed of, and the party's authority to order the disposition. A funeral home has
98 the right to rely on that funeral service agreement or authorization and shall have the authority
99 to carry out the instructions of the person or persons the funeral home reasonably believes 100 holds the right of disposition. The funeral home has no responsibility to independently 101 investigate the existence of any next of kin or relative of the decedent where a means of 102 disposition is fully set forth in a preneed funeral contract or other written directive of the 103 deceased in accordance with this section. If there is more than one person in a class who are 104 equal in priority and the funeral home has no knowledge of any objection by other members of 105 that class, the funeral home may rely on and act according to the instructions of the first person 106 in the class to make funeral and disposition arrangements, if no other person in that class 107 provides written objections to the funeral home.
108 (e) No funeral establishment or funeral director who relies in good faith upon the 109 instructions of a preneed funeral contract, written directive of the deceased, or an individual 1 10 claiming the right of disposition in accordance with this section shall be subject to criminal or 11 1 civil liability or subject to disciplinary action under this section for carrying out the disposition of 112 the remains in accordance with those instructions.
1 530-6-16. inspector-and-inspeetion-reqttirements-Review of applications by Secretary of 2 State; refusal to issue or renew; suspension or revocation of license; disciplinary
20 (a) The secretary shall refuse to issue or renew a license, certificate, or registration if the 21 applicant fails to satisfy any of the requirements set forth for licensure, certification, or 22 registration in this article,
23 (b) The secretary may refuse to issue, refuse to renew, suspend, revoke, or limit any 24 license, certificate, registration or practice privilege of a licensee, certificate or registration
25 holder for any of the following reasons:
26 (1) Fraud or deceit in obtaining or maintaining a license or certificate;
27 (2) Failure by any licensee, or certificate, or registration holder to maintain compliance 28 with requirements for issuance or renewal of a license, certificate, or registration or to timely
29 notify the secretary as required in this article;
30 (3) Dishonesty, fraud, professional negligence in the performance of services, or a willful 31 departure from accepted standards and professional conduct;
32 (4) Violation of any provision of this article or any rule, including the violation of any 33 professional standard or rule of professional conduct, or public health laws;
34 (5) Conviction of a felony or any crime of dishonesty or fraud under the laws of the 35 United States or this state, or conviction of any similar crime under the laws of any other state if 36 the underlying act or omission involved would have constituted a crime under the laws of this 37 state;
38 (6) Any conduct adversely affecting upon the licensee's or certificate or registration 39 holder's fitness to perform professional services;
40 (7) The use of false, misleading, or unethical advertising by any licensee, or certificate or 41 registration holder, or applicant for a license or certificate of registration;
42 (8) Upon satisfactory proof that a funeral services licensee, or a certified crematory 43 operator has taken undue advantage of his or her patrons or has committed a fraudulent act in 44 the conduct of business;
45 (9) Solicitation of business by the licensee, or certificate or registration holder, or any 46 agents, assistants, or employees, whether such solicitation occurs after death or while death is 47 impending, as specified by the secretary: Provided, That this subdivision does not prohibit 48 proper advertising;
49 (10) If a licensee, or certificate or registration holder, knowingly permits a person not 50 licensed, not certified, or not registered to engage in the profession of embalming, funeral 51 directing, or cremation;
52 (11) If a licensee, or certificate or registration holder, knowingly permits a person not 53 licensed, not certified, or not registered to use his or her license number or numbers for the 54 purpose of practicing, or discharging any of the duties of the professions of embalming, funeral 55 directing, or cremation;
56 (12) Employment by the licensee or certificate holder of persons as cappers, steerers, or 57 solicitors, or other such persons to obtain funeral or cremation business;
58 (13) Employment, directly or indirectly, of any apprentice, agent, assistant, embalmer, 59 employee or other person, on part or full time, or on commission, for the purpose of calling upon 60 individuals or institutions by whose influence dead human bodies may be turned over to a 61 particular funeral director, funeral establishment, or crematory;
62 (14) The buying of business by the licensee, or certificate or registration holder, or any 63 agents, assistants, or employees, or the direct or indirect payment or offer of payment of a 64 commission by the licensee, or certificate or registration holder, or any agent, assistants, or
65 employees, for the purpose of securing business;
66 (15) Gross immorality; and
67 (16) Chronic or persistent inebriety or addiction to alcohol, narcotics, or other substance. 68 530-6-17. Apprenticeship-Written complaint procedure; notice: requirement
69 to investigate.
19 (a) The Secretary of State shall establish a means for members of the public to submit 20 complaints concerning persons or establishments licensed or certified by the Secretary of State 21 pursuant to the provisions of this article. Those means shall include, but not be limited to, 22 electronic, written, and telephonic means.
23 (b) Upon receipt of a written complaint filed against any licensee, or certificate or 24 registration holder, the secretary shall provide a copy of the complaint to the licensee, or 25 certificate or registration holder, who shall be given a reasonable opportunity to submit a written 26 response to the allegations. Prior to a determination that probable cause exists, the secretary 27 may withhold the name of the complaining party.
28 (c) The secretary shall investigate the complaint and may initiate the investigation
29 without waiting until receiving a response from the party identified in the complaint. If the
30 secretary finds upon investigation that probable cause exists that the licensee, or certificate or 31 registration holder, has violated any provision of this article or the rules promulgated hereunder, 32 then the secretary shall serve the licensee or registration holder, with a written statement of
33 charges and a notice specifying the date, time, and place of the hearing.
1 530-6-18. Funeraå-estab+ishment-heense-tequiremen-ts Hearing procedure.
37 38 39 40 41 42
43 44 45
51 (a) The Secretary of State shall afford any applicant an opportunity to be heard in person 52 or by counsel when a determination is made to deny, revoke, or suspend an applicant's license, 53 certificate or application for license or certificate, including a renewal of a license or certificate. 54 The applicant has 15 days from the date of receiving written notice of the Secretary of State's 55 adverse determination to request a hearing on the matter of denial, suspension, or revocation. 56 The action of the Secretary of State in granting, renewing, or in refusing to grant or to renew a 57 license or certificate is subject to review by the Circuit Court of Kanawha County or other court 58 of competent jurisdiction.
59 (b) If the secretary proposes to suspend, revoke, limit, take other disciplinary action, or 60 refuse to renew any license, certificate, or registration, the secretary shall give written notice of 61 the action, including a statement of charges setting forth the reasons for the action, and notice 62 of the date, time, and place for a hearing.
63 (c) The secretary may, without first holding a hearing, act under the following 64 circumstances:
65 (1) The secretary is authorized to suspend or revoke a certificate, license, registration, or 66 authority to practice prior to a hearing if the person's continuation in practice constitutes an 67 immediate danger to the public; or
68 (2) After due diligence, if the secretary cannot locate a person licensed or certified under 69 the provisions of this chapter within 60 days of a complaint being filed against the licensee or 70 certificate holder, then the secretary may suspend the license, certificate, registration or
71 authority of the person without holding a hearing. If, after additional due diligence and 30 days
72 after the suspension of the person's license, certificate, registration, or authority, the secretary 73 still cannot locate the person licensed under the provisions of this article, then the secretary 74 may revoke the license, certificate, registration, or authority of the person without holding a 75 hearing.
76 (d) The secretary shall have authority to issue subpoenas for the attendance of
77 witnesses and the production of records and tangible evidence, administer oaths, and preside at 78 hearings, and to employ, or contract for, an administrative hearing examiner to carry out these 79 functions on the secretary's behalf.
80 (e) A hearing on a statement of charges shall be held in accordance with the provisions 81 for hearing set forth in S29A-5-1 et seq. of this code and procedures specified by rule by the 82 secretary.
83 (f) No sanction may be imposed against a licensee or certificate holder and no license or 84 certificate may be revoked, suspended, or subject to sanction unless the secretary finds by a 85 preponderance of evidence, after hearing or by consent of the licensee or certificate holder, that
86 the licensee or certificate holder has engaged in conduct prohibited by the provisions of this article.
88 (g) Following a hearing, the Secretary of State shall issue his or her decision, which shall 89 be in writing and shall set forth the reasons for the decision.
90 (h) Disciplinary action includes, but is not limited to, a reprimand, censure, probation,
91 suspension of license, administrative fine not to exceed $1 ,000 per day per violation, and 92 mandatory attendance at continuing education seminars. 'n addition to other sanctions 93 imposed, the secretary may require a licensee, or certificate or registration holder to pay the 94 costs of the proceeding if the licensee, or certificate or registration holder is in violation of any 95 provision of this article or the rules promulgated hereunder.
96 (i) Any licensee, or certificate or registration holder, adversely affected by any decision 97 of the secretary entered after a hearing, may obtain judicial review of the decision in accordance 98 with S29A-5-4 of this code and may appeal any ruling resulting from judicial review in 99 accordance with S29A-5-4 of this code.
100 (j) Pursuant to the provisions of S29A-5-1 of this code, the secretary may enter into 101 informal disposition of any contested case or investigation by stipulation, agreed settlement, 102 consent order, or default. Further, the secretary may suspend a final determination and place a 103 licensee on probation if the secretary has found the licensee to be in violation of standards of 104 practice or provisions of this article.
105 (k) If the secretary has suspended, revoked, or refused to renew a license, certificate, or 106 registration, the licensee, or certificate or registration holder, shall be afforded an opportunity to 107 demonstrate the qualifications to resume practice. The application for reinstatement shall be in
108 writing and subject to the procedures specified by the secretary by rule.
2 displayed Unlawful acts.
(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
18 misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 or confined in
19 the county or regional jail not more than one year, or both fined and imprisoned.
530-6-20. erematoty-lieense-reqtiirements Injunction; criminal proceedings.
49 (a) When, as a result of an investigation under this article or othewise, the secretary or 50 any other interested person believes that any person: (1) Has engaged, is engaging, or is about 51 to engage in the practice of embalming, funeral directing, or cremating without a license or 52 certificate; (2) has operated, is operating, or is about to operate a funeral establishment or 53 crematory; or (3) is in violation of any of the provisions of this article, the secretary or any other 54 interested person may make application to any court of competent jurisdiction for an order 55 enjoining the acts or practices and, upon a showing that the person hes engaged or is about to 56 engage in any act or practice, an injunction, restraining order, or another appropriate order may 57 be granted by the court without bond,
58 (b) When, as a result of an investigation under this article or otherwise, the secretary has 59 reason to believe that a person has knowingly violated the provisions of this article, the 60 secretary may bring its information to the attention of the Attorney General, United States 61 Attorney, local prosecuting attorney, or other appropriate law-enforcement officer. Appropriate 62 criminal proceedings may thereafter be instituted by the Attorney General, in coordination with
63 the local prosecuting attorney, the United States Attorney, or the law-enforcement officer.
530-6-21. Requirements40r-eremating Single act evidence of practice.
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.
530-6-22. Inapplicability of
26 The provisions of this article do not apply to or interfere with:
27 (1) The duties of an officer of any local or state board of health who, in compliance with 28 local or state board of health rules, may be charged with the duty of preparation for burial of a 29 dead human body when death was caused by a virulent, communicable disease;
30 (2) The duties of an officer of a medical college, county medical society, anatomical 31 association, or other recognized person carrying out his or her responsibilities of dealing with 32 indigent dead human bodies who are held subject for anatomical study; or 33 (3) The customs or rites of any religious sect in the burial of its dead: Provided, That
34 embalming shall only be performed by a funeral services license holder.
35 530-6-22a. Right of disposition; preneed contract; affidavit on 36 disposition of remains; role of county commission; liability of funeral home.
2 530-6-23. Refusal to issue or renew, suspension or revocation of
3 license; disciplinary action.
1 [Repealed. ]
2 530-6-24. Complaints; investigations. 1 [Repealed
2 530-6-25. Hearing and judicial review.
2 530-6-26. Reinstatement.
2 530-6-27. Unlawful acts.
2 530-6-28. Injunctions.
2 530-6-29. Criminal proceedings; penalties.
2 530-6-30. Single act evidence of practice.
2 530-6-31. Inapplicability of article.