Senate Bill No. 162
(By Senators Bailey, Ross, Oliverio and Wagner)
____________
[Introduced January 24, 1995; referred to the Committee
on the Judiciary.]
____________
A BILL to amend and reenact article six, chapter thirty of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended, relating to embalmers and funeral directors;
board membership; officers, salary, expenses, meetings,
powers and duties; definitions; licensing required; practice
by unlicensed persons prohibited; examination for funeral
director/embalmer license, issuance of license; registration
as an apprentice funeral director/embalmer; license as a
funeral director/embalmer; courtesy card; continuing
education requirements; funeral establishment, branch,
crematory and mortuary services licenses; inspections;
surface transportation and removal services; cremation;
expiration and renewal of licenses; fees; advertising,
solicitation; unprofessional conduct; reciprocity; and
refusal to issue, suspension and revocation of licenses.
Be it enacted by the Legislature of West Virginia:
That article six, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 6. EMBALMERS AND FUNERAL DIRECTORS.
§30-6-1. Board of embalmers and funeral directors; membership;
term; oath.
The "West Virginia Board of Embalmers and Funeral
Directors," heretofore established shall be continued and shall
be composed of seven members, who shall be appointed by the
governor, by and with the advice and consent of the Senate, six
of whom shall be licensed, practicing funeral directors/embalmers
with a minimum of five consecutive years' experience in West
Virginia immediately preceding their appointment; the seventh
member shall be a lay member as provided in section four-a,
article one of this chapter. Members, before entering their
duties, shall take and subscribe to the oath of office prescribed
by the secretary of state.
The members of the board in office on the date this section
takes effect, in the year one thousand nine hundred ninety-five,
shall, unless sooner removed, continue to serve until their
respective terms expire and until their successors have been
appointed. Members of the board shall serve for a term of four
years.
§30-6-2. Officers; salary and expenses; meetings; powers and
duties; rules.
(a) The board shall select from its own members a president
and secretary. Each member shall be reimbursed for his or her traveling expenses, incident to his or her attendance upon the
business of the board, and in addition thereto, the sum of one
hundred dollars per day for each day actually spent upon the
business of the board.
(b) All expenses, per diem and compensation shall be paid
out of the receipts of the board, but shall at no time exceed the
receipts of the board. All fees and other moneys received by the
board pursuant to the provisions of this article shall be kept in
a separate fund and expended solely for the purposes of this
article. No part of this special fund shall revert to the
general funds of this state. The compensation provided by this
article and all expenses incurred under this article shall be
paid from this special fund. No compensation or expense incurred
under this article shall be a charge against the general funds of
this state.
(c) The board shall hold not less than two meetings during
each calendar year for the purpose of examining applicants for
licenses, such meeting or meetings to be held at such time and
place as the board shall determine. The time and place of such
meetings be announced by publication in the state register.
(d) The board may hold such other meetings as it may deem
necessary and may transact any business at such meetings. Four
or more members comprise a quorum authorizing the board to
transact such business as is prescribed under this article.
(e) The board may:
(1) Adopt and, from time to time, amend and enforce all rules, not inconsistent with this article, as may be necessary to
enable it to carry into effect the provisions of this article;
(2) Examine, license and renew the licenses of duly
qualified applicants who engage in funeral directing and
embalming;
(3) Register and regulate apprentices;
(4) License, inspect and regulate the operation of funeral
establishments;
(5) License, inspect and regulate the operation of
crematories;
(6) License, inspect and regulate the operation of surface
transportation and removal services engaged in providing
transportation of the human dead for hire;
(7) Conduct hearings upon charges calling for discipline of
a licensee or revocation or suspension of a license or licensee;
(8) Employ a qualified person, who shall not be a member of
the board, to serve as executive director to the board; and
(9) Employ other such persons as may be necessary to carry
on the work of the board.
§30-6-3. Definitions.
For the purpose of this article, the following terms shall
be construed in the following manner:
(a) "Advertisement" means the publication, dissemination,
circulation or placing before the public, or causing directly or
indirectly to be made, published, disseminated or placed before
the public, any announcement or statement in a newspaper, magazine or other publication or in the form of a book, notice,
circular, pamphlet, letter, handbill, poster, bill, sign placard,
card, label or tag or over any radio or television station;
(b) "Apprentice" means a person who is preparing to become
licensed in this state and is engaged in the learning of the
practice of funeral directing and embalming under the
instruction, direction and personal supervision of a person duly
licensed with the board as a funeral director/embalmer under the
provisions of this article, and who is duly registered as an
apprentice by the board prior to engaging in such activity;
(c) "Apprenticeship" means the diligent attention to
assigned duties and other matters performed in a licensed funeral
establishment in this state. The board by rule shall define the
terms of employment of an apprentice, which must include service
by the apprentice under actual working conditions and under the
personal supervision of a licensed funeral director/embalmer;
(d) "Arrangements conference" includes the time spent with
the next-of-kin, or other duly authorized or legally responsible
person, planning for the funeral and/or final disposition of a
dead human body;
(e) "Authorizing agent" means a person legally entitled to
order the cremation of human remains. The next-of-kin of the
deceased is the authorizing agent. In the absence of a
next-of-kin, an order from a court of appropriate jurisdiction
shall be obtained. In the case of indigents or any other
individuals whose final disposition is the responsibility of the state, a public official charged with arranging the final
disposition of the deceased, if legally authorized, may serve as
the authorizing agent. In the case of individuals who have
donated their bodies to science, and in which the institution is
charged with making arrangements, for the final disposition of
the deceased, a representative of the institution, if legally
authorized, may serve as the authorizing agent. If the deceased
has authorized their own cremation by a preneed arrangement, then
any person acting on those instructions will be considered
legally authorized, unless such authorization is in conflict with
the wishes of the deceased's next-of-kin;
(f) "Board" means the West Virginia board of embalmers and
funeral directors;
(g) "Branch" means a secondary location of a funeral
establishment;
(h) "Calcination" means the process whereby the body is
reduced by intense heat to a residue not as substantive as that
which follows cremation;
(i) "Committal service" means that final rite or ceremony
preceding the final disposition of the body;
(j) "Cremated remains" or "cremains" means all human remains
recovered after the completion of the cremation process,
including calcination and pulverization, which leaves only bone
fragments reduced to unidentifiable dimensions;
(k) "Cremation" means the reduction of the dead body by
direct flame to a residue which includes bone fragments;
(l) "Cremation container" means a container in which the
human remains are placed in the cremation chamber for a cremation
and which is required by the crematory authority if the remains
are not in a casket. A cremation container shall meet
substantially all of the following standards:
(1) Be composed of readily combustible materials suitable
for cremations;
(2) Be able to be closed in order to provide a complete
covering for human remains;
(3) Be resistant to leakage or spillage;
(4) Be rigid enough for handling with ease; and
(5) Be able to provide protection for the health, safety and
personal integrity of crematory personnel.
(m) "Crematory" means every place or premises devoted to or
used for cremation, including calcination and pulverization, of
dead human bodies;
(n) "Crematory authority" means the legal entity or the
authorized representative of the legal entity which is licensed
by the board to operate a crematory and perform cremation;
(o) "Disposition" means the final disposal of the body,
whether it be by earth interment, above-ground burial, cremation,
burial at sea or delivery to a medical institution for lawful
dissection and experimentation if the medical institution assumes
complete responsibility for disposal;
(p) "Disposition authority" means a licensed funeral
establishment, cremation authority, or other person or legal entity charged with the disposition of cremated remains;
(q) "Direct disposition" means only the disposition of a
body of a dead person as quickly as regulations of the state
medical investigator and secretary of health and human services
allow, without its preparation by embalming and without any
attendant religious services or other rites or ceremonies,
including graveside services;
(r) "Embalmer" means any person who for compensation
disinfects or preserves a dead human body, entire or in part by
the use of chemical substances, fluids or gases in the body, or
by the introduction of the same into the body by vascular or
hypodermic injection, or by direct application into the organs or
cavities, or by any other method intended to disinfect or
preserve a dead human body, or restore body tissues and
structures. The placing of any such chemicals or substances on
or in a dead human body by any person who is not a licensed
embalmer is a violation of this article, except that this does
not apply to a registered apprentice working under the
supervision of a licensed embalmer. All persons who are engaged
in the business of embalming or who profess to be engaged in such
business, or hold themselves out to the public as embalmers,
shall be licensed embalmers;
(s) "Embalming" means the business, practice, science or
profession of introducing into the vascular system or hollow
organs of a dead human body, by arterial or by hypodermic
injection, any chemical substance, fluids or gases used for the purpose of preservation or disinfection and the practice of
restorative art including the restoration or attempted
restoration of the appearance of the dead human body;
(t) "Full-time employment" means forty hours per week or
longer period of time. The board, at its discretion, may
redefine this term based on individual circumstances;
(u) "Funeral" or "funeral service" means a period following
death in which there are religious services or other rites or
ceremonies with the body of the deceased present;
(v) "Funeral director" means any person who for compensation
engages in or conducts, or who holds himself out as being
engaged, for compensation, in preparing, other than by embalming,
for the burial or disposition of dead human bodies, and
maintaining or operating a funeral establishment for the
preparation and disposition, or the care of dead human bodies.
A person who acts as a funeral director without holding a funeral
director/embalmer license violates this article. A person who is
engaged in the business of funeral directing or who professes to
be engaged in that business or who holds himself out to the
public as a funeral director must be licensed as a funeral
director;
(w) "Funeral directing" or "directing a funeral" means the
acts of any person, partnership, association, corporation or
other organization, associated with or arranging for the
disposition of human remains for compensation from the time of
the first call until interment or entombment services are completed, or until the body is released for transport to a
crematorium, or released to a public carrier;
(x) "Funeral establishment" means any place of business or
premise maintained and operated by a person, partnership,
association, corporation or other organization used or devoted to
such activities as are incident, convenient or related to the
shelter, care, preparation and arrangements, financial and
otherwise, for the embalming, funeral, transportation, burial or
other disposition or custody of the body or for religious
services or other rites or ceremonies associated with the
disposition of human dead, or maintained for the convenience and
comfort of the bereaved and the community for viewing or other
services in connection with human dead or as the office or place
for carrying on the profession of funeral service and includes
"trade service," "trade embalmer," "mortuary service" or any
related term which designates activities relating to the shelter,
care, custody and preparation of a deceased human body;
(y) "Funeral service" means services performed incident to
funeral ceremonies or for the care and preparation of deceased
human bodies for burial, cremation or other disposition and
includes embalming;
(z) "Graveside service" means when and where the complete
funeral rites or ceremonies are conducted only at graveside.
Such rite or ceremony is not what is generally construed as the
committal service, which follows the funeral;
(aa) "Licensee-in-charge" means every person, firm, partnership or corporation, engaged in the business or practice
of funeral directing shall employ full-time a licensed funeral
director embalmer in charge of such business, and shall be
responsible for all transactions conducted and services performed
therein, including the care, preparation, disposal or burial of
dead human bodies and the management of funerals;
(bb) "Mortuary service" means any place of business or
premise maintained and operated by a person, partnership,
association, corporation or other organization used or devoted to
such activities as are incident, convenient or related to the
shelter, care, preparation and arrangements, financial and
otherwise, for the embalming, funeral, transportation, burial or
other disposition or custody of the body or for religious
services or other rites or ceremonies associated with the
disposition of human dead, or maintained for the convenience and
comfort of the bereaved and the community for viewing or other
services in connection with human dead or as the office or place
for carrying on the profession of funeral service and includes
"trade service," "trade embalmer," "mortuary service" or any
related term which designates activities relating to the shelter,
care, custody and preparation of a deceased human body;
(cc) "Person" means a natural person, corporation,
partnership, venture, association, agency, organization or other
entity;
(dd) "Personal supervision" means that a licensed funeral
director/embalmer is required to be physically present at the specified place and time of the provision of acts of funeral
service;
(ee) "Practice of funeral service" means a person engaging
in providing shelter, care and custody of human dead; in the
practice of preparing human dead by embalming or other methods
for burial or other disposition; in transportation of human dead,
bereaved relatives and friends; in making arrangements at or
prior to need, financial or otherwise, for the providing of such
services or the sale of funeral merchandise, whether for present
or future use; or, in general, engaging in the practice or
performing any functions of funeral directing or embalming as
presently known;
(ff) "Professional service" means embalming, funeral
services and the arrangements conference;
(gg) "Trade embalmer" means any place of business or premise
maintained and operated by a person, partnership, association,
corporation or other organization used or devoted to such
activities as are incident, convenient or related to the custody
and preparation of human dead, and includes "trade service,"
"trade embalmer," "mortuary service" or any related term which
designates activities relating to the shelter, care, custody and
preparation of a deceased human body;
(hh) "Transport service firm" and "removal service firm"
means any person, partnership, enterprise, corporation,
association, society, other legal entity or other form of
organization which engages in providing transportation of the human dead for hire;
(ii) "To make arrangements" means advising or counseling or
entering into agreements about specifics for a funeral service,
graveside service, disposition or direct disposition, in advance
of or following death.
§30-6-4. Licensing required; practice by unlicensed persons
prohibited; examination for funeral director/embalmer -
issuance of license.
(a) In order to safeguard life and health and to prevent the
spread of contagious diseases, and to improve sanitary conditions
and public health generally, it is required that only properly
qualified persons may engage in funeral directing, embalming,
operating a funeral establishment, crematory, mortuary service
and transportation/removal service. Any person engaged therein
in this state shall be licensed by the board prior to engaging
therein.
(b) The board shall determine the qualifications necessary
to enable any person to lawfully engage in the practice of
funeral service and to operate a funeral establishment or direct
disposition establishment. The board shall examine all
applicants for licenses for the practice of funeral service and
shall issue the proper license to all those persons who
successfully pass such examination.
(c) It is unlawful for any person not licensed as a funeral
director/embalmer as provided herein to engage in funeral
directing or embalming. It is unlawful for any person, partnership, firm, association or corporation, not licensed as
herein provided, to engage in the operation of a funeral
establishment, crematory, mortuary service and
transportation/removal service.
(d) In addition to the qualifications set forth in section
six of this article, every person desiring to enter into the
practice of funeral directing and embalming, except as herein
provided, shall pass an examination to determine his knowledge
and fitness therefor, as required by this article.
(e) The board shall determine the subjects of examination,
and their scope, content and character, which in any examination
shall be the same for all applicants. Examinations shall be held
a minimum of two times each year and the board shall give thirty
days' notice in advance of the time and place of the
examinations.
(f) If the board finds upon examination that the applicant
has a reasonable knowledge of the profession of funeral service,
passes the examination with a score of not less than seventy-five
percent, and has all the requirements and qualifications herein
stated, and has complied with all the rules of the board applying
to funeral director/embalmers, the board shall, upon receipt of
a fee as set by the board, issue to the applicant a license to
engage in the practice of funeral directing and embalming. The
license shall be signed by all members of the board and attested
to by its seal.
§30-6-5. Application for registration as an apprentice funeral
director/embalmer.
(a) Every person desiring to engage in the practice or
business of funeral directing and embalming is required to
complete a one-year apprentice program as outlined by the board
under the supervision of a licensed funeral director/embalmer
actively and lawfully engaged in the practice of embalming and
funeral directing in this state: The apprenticeship shall
consist of diligent attention to the work in the course of
regular and steady employment and not as a side issue to another
employment.
(b) Every person desiring to register as an apprentice
funeral director/embalmer shall make application to the board
accompanied by a fee as set by the board. The application must
be verified under oath, containing the name and address of the
applicant, showing him or her to:
(1) Be eighteen years of age or older;
(2) Be a citizen of the United States;
(3) Be of good moral character and temperate habits;
(4) Be a high school graduate evidenced by a certificate or
diploma, or having the equivalent of a high school education, to
the satisfaction of the board;
(5) Hold an associate degree, baccalaureate degree or
higher, from an accredited college or university as evidenced by
a transcript submitted to the board for evaluation; and
(6) Be employed by a licensed funeral establishment. For
the purpose of this section, "regular and steady employment" means a forty-hour week or a longer period of time set at the
discretion of the person by whom he is employed.
(c) The board shall, in its rules, set forth the
requirements to be met during the apprentice program, including,
but not limited to:
(1) Assisting in the operation of embalming not less than
thirty-five dead human bodies under the direct supervision of a
licensed funeral director/embalmer; and
(2) Assisting in arranging and conducting not less than
thirty-five funeral services under the direct supervision of a
licensed funeral director/embalmer.
(d) Any person registered as an apprentice funeral
director/embalmer who changes his or her place of employment
shall immediately notify the board, in writing, of the change of
employment and the dates thereof.
(e) All renewals received after the thirty-first day of July
of each year are considered delinquent. The board may impose
late penalties and reinstatement fees or order the apprentice who
is delinquent in his or her renewal to cease practicing until a
renewal application has been received by the board, or both.
§30-6-6. Application for funeral director/embalmer license.
(a) No person may engage in or hold himself or herself out
as engaging in, or discharge any of the duties of the business or
profession of funeral directing or embalming, or preserving in
any manner dead human bodies, in this state unless he or she
holds a funeral director/embalmer license issued by the board.
To be licensed for the practice of embalming and funeral
directing, a person shall:
(1) Be eighteen years of age or older;
(2) Be a citizen of the United States;
(3) Be of good moral character and temperate habits;
(4) Hold a high school diploma or its equivalent;
(5) Hold an associate degree, baccalaureate degree or higher
degree from an accredited college or university, as evidenced by
a transcript submitted for evaluation, prior to beginning a one-
year course of apprenticeship as described in subdivision (6) of
this subsection and prior to obtaining a diploma of graduation
from a school of mortuary science as described in subdivision (7)
of this subsection;
(6) Have completed a one-year course of apprenticeship under
the supervision of a licensed funeral director/embalmer actively
and lawfully engaged in the practice of embalming and funeral
directing in this state, as described in section five of this
article;
(7) Possess a diploma of graduation from a school of
mortuary science which requires as a prerequisite to graduation
the completion of a course of study not less than twelve months'
duration, and which school of mortuary science must be one
accredited by the American Board of Funeral Service Education,
Inc., and duly approved by the board;
(8) Pass with an average score of not less than seventy-five
percent the Conference of Funeral Service Examining Boards, inc., examination at a testing site provided by the conference.
Successfully passing the conference examination is a condition
precedent to taking the state licensing examination administered
by the board;
(9) Pass with a score of not less than seventy-five percent
the state licensing examination administered by the board. The
board shall offer the state licensing examination at least twice
each year;
(10) Pass other further examination as the board considers
necessary to ascertain his or her qualification and ability to
engage in the practice of funeral directing and embalming; and
(11) Furnish satisfactory proof to the board that his or her
business or profession of funeral directing and embalming is to
be conducted in a fixed place or establishment equipped for the
care and preparation for burial or disposition of dead human
bodies.
(b) All renewals received after the thirty-first day of July
of each year are considered delinquent. The board may impose
late penalties and reinstatement fees or order the licensee to
cease practicing until a renewal application has been received by
the board and a license is issued, or both.
(c) Applicable penalties may be imposed by the board whether
or not the violator holds a valid current license issued to an
individual.
§30-6-7. Application for courtesy card.
(a) The board may issue annual nonrenewable courtesy cards to a licensed funeral director of the states bordering on West
Virginia who:
(1) Makes application on a form prescribed by the board;
(2) Maintains a license in good standing with that state;
and
(3) Pays to the board a license fee set by the board.
(b) The courtesy card:
(1) Allows the holder to make a removal of a dead human body
in this state and to return the body to another state or country;
(2) Allows the holder to return a dead human body from
another state or country to this state for final disposition;
(3) Allows the holder to sign the death certificate in the
holder's capacity as a licensed funeral director; but
(4) Does not allow the holder to operate a funeral
establishment, be an employee of a West Virginia funeral
establishment, make funeral arrangements, conduct funerals or
conduct embalming in this state.
(c) Applications for courtesy cards shall be approved by the
board before issuance. A courtesy card issued by the board is
not transferrable.
§30-6-8. Continuing education requirements as a prerequisite to
license renewal; board's authority; compliance
deadlines; standards of approval; approval of sponsors,
programs and activities; exemptions for inactive
licensees; reinstatement.
(a) The board of embalmers and funeral directors is authorized to establish continuing education requirements as a
prerequisite to renewal of licenses for funeral directors and
embalmers.
(1) Only those courses approved by the board will be
accepted for purposes of fulfilling the continuing education
requirement.
(2) Each licensee shall complete during a three-year period
a minimum of twenty-four hours of continuing education relating
to the field of embalming and/or funeral directing, approved by
the board.
(3) It is the responsibility of each licensee to ensure that
the board is properly notified of his or her acquiring the hours
of continuing education.
(b) The continuing education compliance period shall begin
the first day of January, one thousand nine hundred ninety-six,
and continue until the thirty-first day of December, one thousand
nine hundred ninety-nine, and shall continue every three years
thereafter. Carryover of continuing education hours from one
three-year period to the next is not permitted. Each funeral
director and embalmer licensed to practice in this state shall
return to the executive director of the board evidence
satisfactory to the board that the required number of course
hours for the previous three-year period have been completed.
(c) Persons who become licensed after the beginning of any
three-year period shall be exempt from the continuing education
requirement as follows:
(1) If licensed during the first year of the three-year
period, the licensee is exempt from eight hours of continuing
education;
(2) If licensed during the second year of the three-year
period, the licensee is exempt from sixteen hours of continuing
education;
(3) If licensed during the third year of the three-year
period, the licensee is exempt from continuing education for that
three-year period.
(d) A continuing education activity shall be qualified for
approval if the board determines that:
(1) It constitutes an organized program of learning
(including a workshop or symposium) which contributed directly to
the professional competency of the licensee;
(2) It pertains to common subjects or other subject matters
which integrally related to the practice of funeral service;
(3) It is conducted by individuals who by reason of a
special education, training and experience should be considered
experts concerning the subject matter of the program, and is
accompanied by a paper, manual or written outline which
substantially pertains to the subject matter of the program.
Except as may be allowed, no licensee shall receive credit
exceeding six hours of the total required for self-study,
including video programs or correspondence work, or by other
similar means as authorized by the board.
(e)(1) An organization or person which desires accreditation as a sponsor of courses, program or other continuing education
activities, shall apply for accreditation to the board stating
its education history for the preceding two years, including
approximate dates, subjects offered, total hours of instruction
presented, and the names and qualifications of instructors. All
accredited sponsors shall report to the board in writing the
education programs conducted during the preceding calendar year
on a form approved by the board. The board may at any time
reevaluate an accredited sponsor. If after the reevaluation the
board finds there is basis for consideration of revocation of the
accreditation, the board shall give notice by certified mail to
that sponsor.
(2) An organization or person other than an accredited
sponsor, which desires prior approval of a course, program or
other continuing education activity, or who desires to establish
accreditation of an activity prior to attendance, shall apply for
approval to the board at least sixty days in advance of the
commencement of the activity on a form provided by the board.
The board shall approve or deny the application in writing within
sixty days of receipt of the application. The application shall
state the dates, subjects offered, total hours of instruction,
names and qualifications of speakers and other pertinent
information.
(3) A licensee seeking credit for attendance and
participation in an educational activity which was not conducted
by an accredited sponsor nor otherwise approved shall submit to the board, within thirty days after completion of such activity,
a request for credit, including a brief resume of the activity,
its dates, subjects, instructors and their qualifications, the
number of credit hours requested, and a letter certifying the
licensee was in attendance and completed the activity. Within
ninety days after receipt of an application the board shall
advise the licensee in writing by ordinary mail whether the
activity is approved and the number of hours allowed. A licensee
not complying with the requirements of this subdivision may be
denied credit for the activity.
(4) The board may monitor or review any continuing education
program already approved by the board and upon evidence of
significant variation in the program presented from the program
approved may disapprove all or any part of the approved hours
granted the program.
(f) The board may, in individual cases involving disability
or illness, grant waivers of the minimum education requirements
or extensions of time within which to fulfill the requirements or
make the required reports. No waiver or extension of time may be
granted unless written application is made on forms provided by
the board and signed by the licensee and an appropriately
licensed health care profession, and the waiver is acceptable to
the board. Waivers of the minimum educational requirements may
be granted by the board for any period of time not to exceed one
calendar year. In the event that the disability or illness upon
which a waiver has been granted continues beyond the period of the waiver, the licensee must reapply for an extension of the
waiver. The board may, as a condition of any waiver granted,
require the applicant to make up a certain portion or all of the
minimum educational requirements waived by such methods as may be
prescribed by the board.
(g) A licensee who is not engaged in the practice of funeral
service in West Virginia, residing within or without the state of
West Virginia, may be granted a waiver of compliance and obtain
a certificate of exemption upon written application to the board.
The application shall contain a statement that the applicant will
not engage in the practice of funeral service in West Virginia
without first complying with all rules governing reinstatement
after exemption. The application for a certificate of exemption
shall be submitted upon the form provided by the board.
(h) Inactive licensees who have been granted a waiver of
compliance of continuing education requirements and obtained a
certificate of exemption shall, prior to engaging in the practice
of funeral service, satisfy the following requirements for
reinstatement:
(1) Submit written application for reinstatement to the
board upon forms provided by the board with the application fee
for license renewal;
(2) Furnish in the application evidence of one of the
following:
(A) The full-time practice of funeral service in another
state of the United States and completion of the continuing education for each year of inactive status substantially
equivalent in the opinion of the board to that required under
this article; or
(B) Completion of eighteen hours of board-approved
continuing education.
§30-6-9. License required to operate; application for funeral
establishment license, branch license, crematory,
mortuary service license; transportation/removal
service; and renewal.
(a) Every funeral establishment, branch, crematory and
mortuary service operating or desiring to operate in West
Virginia shall obtain a license as provided in this section.
(b) Every person, partnership, firm, association or
corporation desiring to operate a funeral establishment, branch,
crematory or mortuary service, shall make application to the
board on a form prescribed and furnished by the board accompanied
by payment of a fee as set by the board. The application shall
be made by any person, partnership, firm, association or
corporation having controlling interest in funeral establishment.
(c) The application shall be signed by the applicant and by
the individual who is licensed by this board as a funeral
director/embalmer and in charge and responsible for all
transactions conducted and services performed therein. If the
funeral establishment, branch, crematory or mortuary service is
owned by a person not licensed as a funeral director/embalmer, or
by a partnership, association or corporation, then such owner shall have employed and place in charge a person who is duly
licensed by this board as a funeral director/embalmer to manage,
conduct and have supervision of the work or business of the
establishment and be responsible therefor.
(d) All applications must be verified under oath, on a form
provided by the board, and must include the:
(1) Name of the funeral establishment, branch, crematory or
mortuary service;
(2) Physical location and mailing address;
(3) Number of employees;
(4) Names, addresses and license numbers of all licensed
funeral director/embalmers and apprentices, with designation as
to whether they are part-time or full-time employees;
(5) Licensee-in-charge certification of responsibility;
(6) If owned by a corporation, attach a list of all
shareholders and their respective percent of interest in the
corporation; and
(7) A copy of the current West Virginia business license.
(e) A license to operate a funeral establishment, branch,
crematory or mortuary service shall be accompanied by the
required fee. All licenses issued pursuant to this section shall
expire on the thirtieth day of June of each calendar year and the
renewal date for any license shall be the first day of July of
each calendar year. If an application is found satisfactory, the
executive director of the board shall issue to the applicant a
license to operate a funeral establishment, branch, crematory or mortuary service: Provided, That the executive director may hold
issuance of a license hereunder until the next regularly
scheduled board meeting, at which time the board shall determine
if the application is satisfactory. The board in its discretion
may require more information from an applicant to ascertain his
or her qualifications before issuing a license to operate.
A funeral establishment, branch, crematory or mortuary
service which fails to pay license fees by the first day of July
of each calendar year is subject to a penalty of one hundred
dollars and a reinstatement fee of one hundred dollars per
license in addition to the license fee.
(f) A license to operate a funeral establishment, branch,
crematory or mortuary service shall be issued separately and
shall be valid only for one specific street address or location.
(g) Each separate funeral establishment, branch, crematory
or mortuary service shall have its own license, which shall be
prominently displayed.
(h) The holder of a license who ceases to operate at the
location specified in the application shall within twenty days
thereafter surrender the license to the board and it shall be
canceled; except in the event of the death of an individual who
was the holder of the license, it shall be the duty of the
holder's personal representative to surrender the license within
one hundred twenty days of qualifying as such personal
representative.
(i) The holder of a license, issued pursuant to this section, shall notify the board within thirty days if for any
reason the licensed funeral director/embalmer whose name is
signed to the application ceases to be employed. Within thirty
days after such notification the holder of the license may
execute a new application for a license signed by the applicant
and by the licensed funeral director/embalmer who shall be in
charge of and responsible for all transactions conducted and
services performed within the facility.
(j) A licensee whose funeral director's license, embalmer's
license or holder of a license to operate a funeral
establishment, branch, crematory or mortuary service, has been
revoked or suspended under this article shall not operate, either
directly or indirectly, be employed in or hold any interest in
any funeral establishment, branch, crematory or mortuary service.
(k) The board may in its discretion refuse to issue or renew
a license pursuant to this section or may fine, discipline,
suspend or revoke any license granted hereunder by the board, and
may probate any license suspension for failure to comply with any
of these provisions.
§30-6-10. Inspection of funeral establishments, crematories;
mortuary service; trade embalming service; and surface
transportation/removal services.
(a)(1) All funeral establishments, crematories, surface
transportation and removal services (hereinafter referred to as
"funeral service facilities") shall be subject to inspection by
the board at all times with or without notice. The inspection shall include, but not be limited to, all offices, closets,
rooms, refrigeration room, preparation room, casket areas,
alternate container areas, chapels, vehicles used in the funeral
business, grounds contiguous to the funeral establishment,
funeral arrangement agreements and other documents used in the
funeral business.
(2) All new facilities shall be inspected and shall receive
a satisfactory rating prior to the issuance of an establishment
license and shall comply with the criteria set forth in this
section and provide any further documentation the board deems
necessary to approve issuance of a license.
The inspector shall visit and inspect the location stated
by the applicant for a funeral establishment license, crematory
license, surface transportation and removal service and report to
the board so that they may determine if the applicant has met
with the requirements of the law for engaging in the business,
practice or profession of funeral service.
(3) All existing funeral service facilities shall be
inspected and shall comply with the criteria set forth in this
section.
(4) All funeral service facilities shall be inspected by the
board to ensure protection of the public health, safety and
welfare, and the board shall be notified by the owner of the
funeral service facility at least thirty days before the
following occurs:
(A) A facility moves to a new location;
(B) Ownership of a facility is changed or otherwise
transferred; or
(C) Major alterations or modifications in the physical
structure of a facility are made.
(5) The board may inspect when a complaint is made regarding
a specific funeral service facility and an inspection is
required.
(6) The inspector may visit any place where the operation
of embalming or cremation is being conducted or where a funeral
is in process of being directed, when it may be deemed necessary
to secure evidence: Provided, That the visitation shall be made
in a respectful and decorous manner, as may be fitting the
presence of the dead.
(7) The inspector shall make a record of the date of each
inspection which shall be signed by the inspector and the
owner/manager or licensee-in-charge, showing that an inspection
was made, and shall also make a separate record of the findings
of the inspection.
(8) The inspector shall in no way be connected with the work
or business of funeral service in any facility he or she
inspects.
(9) The members of the board and executive director of the
board have the right to execute the duties of inspector at any
time.
(10) Interference with or obstruction of the board or any
inspector authorized by the board in the performance of their respective duties by any licensed person shall be considered
sufficient cause for suspension or revocation of such license.
(11) Each funeral service facility shall comply with the
provisions of infectious medical waste, 64CSR56, for generators
of infectious medical waste.
(b) The board shall inspect funeral service facilities on
the basis of the following:
(1) It shall be the duty of the inspector of the board to
inspect funeral service facilities for the following:
(A) To see that the facilities are maintained in a clean and
sanitary manner;
(B) To see that suitable equipment for the proper conduct
of the facility is properly maintained therein;
(C) To see that the facility license and licenses of all
funeral directors/embalmers employed there are conspicuously
displayed; and
(D) To check the apprentices registered and employed.
(2) A preparation room shall be equipped as follows:
(A) Adequate ventilation, including an exhaust fan with
proper screening adequate to exchange the air in the room with
outside air at least twelve (12) times per hour;
(B) Operating table with nonporous surface, such as
porcelain, stainless steel, metal lined or fiberglass;
(C) Sanitary floors and walls with nonporous surface;
(D) Sanitary waste receptacles;
(E) A hand sink with hot and cold water, a service sink and a floor drain connected to central sewage system or septic tank.
The floor drain may be replaced with an alternative method of
removal of body fluids which meet current sanitation requirements
of the state;
(F) The following instruments and equipment shall be
properly maintained:
(i) A machine for embalming or gravity equipment;
(ii) Aspirator;
(iii) Master trocar;
(iv) Aneurism needle;
(v) Scalpel;
(vi) Drain tube;
(vii) Arterial tube;
(viii) Scissor;
(ix) Surgical needles;
(x) Injector and needles;
(xi) Eye caps;
(xii) Surgeon's thread;
(xiii) Head rest;
(xiv) Razor and blades;
(xv) Absorbent cotton;
(xvi) Antiseptic soap;
(xvii) Disposable sheet(s);
(xviii) Towels;
(xix) Disinfectants and antiseptic solutions;
(xx) Tubing;
(xxi) Disposable surgical gloves;
(xxii) Clean gowns or aprons, preferably impervious to
water;
(xxiii) Eye wash station.
(c) The following are the minimum supplies for embalming
dead human bodies:
(1) Two bottles arterial fluid per body;
(2) One bottle of cavity fluid per body;
(3) Supply of hardening compound for autopsies.
(d) The preparation room shall be maintained in a clean and
sanitary condition. The preparation room must be private and
cannot be located near a public passageway. The preparation room
entry door(s) must be labeled as "private" or "authorized entry
only." This sign must be conspicuous and readable and must be
permanently affixed to the door. The lettering on the sign shall
not be smaller than one inch high.
(e) All windows and exterior doors are to be screened or
permanently closed and must be installed in such a way that the
room shall be obstructed from view from the outside and so that
fumes and odors are prevented from entering other parts of the
building.
(f) A first aid emergency kit for personnel use shall
contain the minimum first aid supplies and be immediately
accessible outside the door to the preparation room.
(g) Every funeral establishment or branch facility shall be
equipped with a sanitary restroom facility which operates and is separate from the preparation room.
(h) If embalming services are offered, the establishment
from which the arrangements are made shall have either:
(1) A preparation room on the premises in conformity with
this article; or
(2) Be a branch of a licensed establishment which has a
preparation room on the premises in conformity with this article;
or
(3) Have a contractual agreement for embalming services with
a licensed establishment which has a preparation room on the
premises in conformity with this article.
(i) The funeral establishment shall have on site or
immediately available sufficient sealed containers of a type
required for the transportation of bodies with contagious
diseases.
(j) Where caskets are displayed, the prices shall be
conspicuously displayed.
(k) Each funeral service facility shall display at the
public entrance the name of the facility and the name of the
full-time licensee-in-charge.
§30-6-11. Surface transportation and removal services.
(a) The board shall require any person, partnership,
enterprise, corporation, association, society, or other legal
entity or other form of organization which engages in providing
transportation of the human dead for hire, hereinafter referred
to as "surface transportation" or "removal services" to be licensed.
(b) All persons proposing to operate and each owner of a
surface transportation or removal service shall submit an
application package for registration which shall include:
(1) Completed and signed application;
(2) Fee as prescribed by the board;
(3) Additional documentation as may be required by the board
to determine eligibility of the applicant.
(c) The following are not within the jurisdiction of a
surface transportation or removal service:
(1) Arranging or conducting funerals;
(2) Offering to or providing for the care or preparation,
including embalming or cremation, of dead human bodies;
(3) Selling or providing funeral related goods and services.
(d) A person employed or operating a surface transportation
or removal service shall not in any manner misrepresent himself
to the public as being an official of any local jurisdiction, the
state of West Virginia, federal or any other governmental body
unless granted such authority. This shall include the name and
title of the company or service, uniforms, equipment, vehicles,
and any other instruments used or proffered by the service or its
agents. The board shall be the sole determinant of the
appropriateness of the pertinent qualities of the service and
staff in enforcing this subsection.
(e) The registration of a surface transportation and removal
service shall expire on the thirtieth day of June of each calendar year.
§30-6-12. Cremation.
(a) Establishment of crematory and licensure of crematory
authority.
(1) Any person doing business in this state, or any funeral
establishment, corporation, partnership, joint venture, voluntary
organization or any other entity may erect, maintain and operate
a crematory in this state and provide the necessary appliances
and facilities for the cremation of human remains in accordance
with the provisions of this article.
(2) A crematory shall conform with all local building codes
and all applicable environmental standards.
(3) A crematory may be constructed on or adjacent to any
funeral establishment that is zoned commercial or industrial, or
at any other location consistent with local zoning regulations.
(4) Application for licensure as a crematory authority shall
be on forms furnished and prescribed by the board. Application
shall be in writing and shall contain the name of the applicant,
the address and location of the crematory, a description of the
type of structure and equipment to be used in the operation of
the crematory and any further information as the board may
reasonably require. The board shall examine the premises and
structure to be used as a crematory, and shall issue a license to
the crematory authority, if the applicant meets all requirements
of this article. In the event of a change of ownership of a
crematory, at least thirty days prior to the change, the new owners of crematory authority shall provide the board with their
names and addresses.
(5) No person, funeral establishment, corporation,
partnership, joint venture, voluntary organization or any other
entity may cremate any human remains, except in a crematory
licensed for this express purpose and under the limitations
provided in this article.
(6) No cremations of the bodies of deceased persons may be
performed except by a crematory authority holding a valid,
current license issued by the board.
(7) All crematory licenses issued by the board shall expire
on the thirtieth day of June of each year, and must be renewed on
or before the first day of July following the date of expiration.
Renewal license fees, as established by the board, must accompany
each original and renewal applications.
(8) All renewals received after the thirty-first day of July
of each year are considered delinquent. The board may impose
late penalties and reinstatement fees or order a crematory
authority that is delinquent in its renewal to cease operation
until a renewal application has been received by the board and
crematory authority license issued.
(9) Hospitals licensed by the state of West Virginia may
operate a facility that incinerates surgical waste, human body
parts that have been surgically removed, or fetal remains with
the permission of the next-of-kin, without an additional license
issued by the board, and without the assistance of a licensed funeral establishment unless:
(A) They are holding themselves out to the public to be a
licensed crematory authority; or
(B) They offer cremation services to the public for the
bodies of deceased persons except for the instances listed in
this subsection.
(b) Authorization and record keeping.
(1) Except as otherwise provided in this article, a
crematory authority may not cremate human remains until it has
received:
(A) A cremation authorization form from the chief medical
examiner's office, as required by section nine, article twelve,
chapter sixty-one of this code; and
(B) A cremation authorization form signed by an authorizing
agent which identifies the funeral director arranging the
cremation. The cremation authorization form shall be provided by
the crematory authority and should contain the following
information:
(i) The identity of the human remains;
(ii) The name of the authorizing agent and the relationship
between the authorizing agent and the deceased;
(iii) Authorization for the crematory authority to cremate
the human remains;
(iv) A representation that the authorizing agent is aware
of no objection to the human remains being cremated by any person
who has a right to control the disposition of the human remains; and
(v) The name of the person authorized to claim the cremated
remains from the crematory authority.
(2) If an authorizing agent is not available to execute the
cremation authorization form, that person may delegate that
authority to another person in writing, or, if located outside of
the area, by sending the crematory authority a telegram,
registered letter or facsimile transmission that contains the
name, address, and relationship of the sender to the deceased and
the name and address of the individual to who authority is
delegated, indemnifying the delegated individual and the
crematory authority from all liability concerning the cremation.
Upon receipt of the written delegation document or a copy of this
telegram, the crematory authority shall allow this individual to
serve as the authorizing agent and execute the cremation
authorization form, and the crematory authority shall be entitled
to rely upon the cremation authorization form.
(3) A crematory authority should maintain the necessary
records as set out in this article.
(4) Upon the receipt of human remains, the crematory
authority shall furnish to the person who delivers such human
remains a receipt signed by both the crematory authority and the
person who delivers the human remains showing:
(A) The date of delivery;
(B) The name of the person from whom the human remains were
received and that person's employer;
(C) The name of the person who received the human remains
on behalf of the crematory authority;
(D) The name and license number of the crematory authority;
and
(E) The name of the deceased.
(5) A completed and executed burial transit permit, as
provided in the laws of the state of West Virginia, indicating
that the human remains are to be cremated:
(A) A representation of a completed West Virginia death or
fetal death certificate, signed by the certifier, showing the
cause of death, and otherwise ready for filing; and
(B) Any other documentation required by any county or
municipality.
(6) A crematory authority shall not accept unidentified
human remains. If the crematory authority takes custody
subsequent to the human remains being placed within a cremation
container, the crematory authority shall place appropriate
identification upon the exterior of the cremation container.
(c) Cremation containers.
(1) The crematory authority shall require that human remains
be placed in a cremation container prior to cremation unless the
remains are already in a casket.
(2) Except as provided in subdivisions one and three of this
subsection, no crematory authority may make or enforce any rules
requiring that human remains be placed in a casket before
cremation or that human remains be cremated in a casket, nor shall the crematory refuse to accept human remains for cremation
for the reason that they are not in a casket.
(3) Human remains delivered to a crematory shall not be
removed from the cremation container and the cremation container
shall be cremated with the human remains, unless the crematory
authority has been provided with written instructions to the
contrary by the authorizing agent.
(4) Authorized cremation authority personnel may open the
cremation container for inspection of the body.
(d) Cremation procedures.
(1) In the event a death comes under the authority of the
medical examiner, the human remains shall not be received by the
crematory authority until authorization to cremate has been
received from the medical examiner. In the event the crematory
authority is also authorized to perform funerals as well as
cremation, this restriction on the receipt of the human remains
shall not be applicable, but cremation may not take place until
authorized by the medical examiner.
(2) A crematory authority shall hold human remains, prior
to their cremation, according to the following provisions of this
subsection:
(A) Whenever a crematory authority is unable to cremate the
human remains immediately upon taking custody thereof, the
crematory authority shall place the human remains in a holding
facility;
(B) A crematory authority shall not be required to accept for holding a cremation container from which there is evidence of
leakage of the body fluids from the human remains therein;
(C) If human remains received by the crematory authority are
not embalmed, they shall be held no longer than twenty-four hours
unless within a refrigerated facility.
(3) No member of the general public may be permitted in the
crematory area while any human remains are in the crematory area
awaiting cremation, being cremated or being removed from the
cremation chamber.
(4) The unauthorized, simultaneous cremation of the human
remains of more than one person within the same cremation chamber
is forbidden, unless the crematory authority shall have received
specific written authorization to do so from all authorizing
agents for the human remains to be so cremated. Such written
authorization shall include an indemnification to exempt the
crematory authority from all liability for commingling of the
product of the cremation process.
(5) Immediately prior to being placed within the cremation
chamber, the identification of the human remains, as indicated on
the cremation container, shall be removed from the cremation
container and placed near the cremation chamber control panel
where it shall remain in place until the cremation process is
complete.
(6) Upon completion of the cremation, and insofar as
possible, all recoverable residue of the cremation process shall
be removed from the cremation chamber. Insofar as possible, all residue of the cremation process shall then be separated from
anything other than bone fragments and then be processed so as to
reduce them to unidentifiable particles. Anything other than the
particles shall be removed from the cremated residuals as far as
possible and shall be disposed of by the crematory authority.
(7) Cremated remains shall be packed according to the
following provisions of this subdivision:
(A) The cremated remains with proper identification shall
be placed in a temporary container or urn. The temporary
container or urn contents shall not be contaminated with any
other object, unless specific authorization has been received
from the authorizing agent or as provided in paragraph (B) of
this subdivision;
(B) The cremated remains with proper identification shall
be placed within the temporary container or urn ordered by the
authorizing agent;
(C) If the cremated remains will not fit within the
dimensions of a temporary container or urn, the remainder of the
cremated remains shall be returned to the authorizing agent or
its representative in a separate container;
(D) When a temporary container is used to return the
cremated remains, that container shall be placed in a suitable
box and all box seams taped closed to increase the security and
integrity of that container. The outside of the container shall
be clearly identified with the name of the deceased person whose
cremated remains are contained therein and the name of the cremation authority;
(E) If the cremated remains are to be shipped, the temporary
container or designated receptacle ordered by the authorizing
agent shall be packed securely in a suitable, sturdy container
which is not fragile and is sealed properly. Cremated remains
shall be shipped only by a method which has an internal tracing
system available and which provides a receipt signed by the
person accepting delivery.
(8) Embalming or refrigeration shall not be required for a
forty-eight hour period after death prior to cremation when an
authorizing agent has indicated a preference for cremation as the
form of final disposition. This twenty-four hour extension of
the board's time limit for embalming or refrigeration does not
apply if death was the result of an infectious or communicable
disease as defined by the proper regulatory authorities.
(e) Disposition of cremated remains.
(1) The authorizing agent shall be required to provide the
person with whom cremation arrangements are made with a signed
statement specifying the disposition of the cremated remains. A
copy of this statement shall be retained by the crematory
authority.
(2) The authorizing agent is responsible for the disposition
of the cremated remains. If, after a period of sixty days from
the date of cremation, the authorizing agent or his or her
representative has not specified the ultimate disposition or
claimed the cremated remains, the disposition authority or the person in possession of the cremated remains may dispose of the
cremated remains in any manner permitted by law. The authorizing
agent shall be responsible for reimbursing the disposition
authority for all reasonable expenses incurred in disposing of
the cremated remains pursuant to this section. A record of such
disposition shall be made and kept by the person making such
disposition.
(3) In addition to disposing of cremated remains in a crypt,
niche, grave or scattering garden located in a dedicated
cemetery, or by scattering over uninhabited public lands, the sea
or other public waterways pursuant to subsection (f), cremated
remains may be disposed of in any manner on the private property
of a consenting owner, upon direction of the authorizing agent.
If cremated remains are to be disposed of on private property,
other than dedicated cemetery property, the authorizing agent
shall provide the disposition authority with the written consent
of the property owner.
(4) Except with the express written permission of the
authorizing agent no person may:
(A) Dispose of or scatter cremated remains in such a manner
or in such a location that the cremated remains are commingled
with those of another person. The provisions of this paragraph
does not apply to the scattering of cremated remains at sea or by
air from individual closed containers or to the scattering of
cremated remains in an area located in a dedicated cemetery and
used exclusively for such purposes.
(B) Place cremated remains of more than one person in the
same closed container. This paragraph does not apply to placing
the cremated remains of members of the same family in a common
closed container designed for the cremated remains of more than
one person.
(5) Cremated remains shall be delivered by the crematory
authority to the individual specified by the authorizing agent on
the cremation authorization form. The representative of the
crematory authority and the individual receiving the cremated
remains shall sign a receipt indicating the name of the deceased,
and the date, time and place of the receipt. The crematory
authority shall retain a copy of this receipt. After this
delivery, the cremated remains may be transported in any manner
in this state, without a permit, and disposed of in accordance
with the provisions of state law and this article.
(6) Cremated remains may be scattered over uninhabited
public lands, a public waterway or sea, subject to health and
environmental standards, or on the private property of a
consenting owner, pursuant to subdivision (3), subsection (e) of
this section, if they are reduced to a particle size of one-
eighth inch or less. A person may utilize a boat or airplane to
perform such scattering. Cremated remains shall be removed from
their closed container before they are scattered.
(f) Administration.
(1) A crematory authority may enact additional reasonable
rules, not inconsistent with applicable law and this article, for the management and operation of a crematory. Nothing in this
provision shall prevent a crematory authority from enacting rules
which are more stringent than the provisions contained in this
article.
(2) Violations of this article shall be punishable in
accordance with all applicable law pertaining to the board. Any
person doing business in this state, or any cemetery, funeral
establishment, corporation, partnership, joint venture, voluntary
or religious organization or any other entity is prohibited from:
(A) Maintaining or operating a building or structure within
this state as a crematory without a license or in violation of
the law and rules of the board or other applicable regulatory
bodies;
(B) Holding oneself out to the public as a crematory
authority without being licensed under this article, or
performing a cremation without a cremation authorization form
signed by the chief medical examiner and an authorizing agent;
(C) Signing a cremation authorization form with the actual
knowledge that the form contains false or incorrect information;
(D) Performing a cremation in other than a licensed
crematory;
(E) Violating any other provision of this article.
(3) Applicable penalties may be imposed by the board whether
or not the violator holds a valid current license issued to an
individual, funeral establishment, crematory authority, transport
service, or other entity.
(g) Preneed cremation arrangements.
(1) Any preneed contract sold by, or preneed funeral
arrangements made with a cemetery, funeral establishment or any
other party, that includes a cremation, may specify the ultimate
disposition of the cremated remains, pursuant to subdivision (2),
subsection (e) of this section, and that portion of the agreement
shall be initialed by the individual making the arrangements. In
the event no additional or different instructions are provided to
the crematory authority by the authorizing agent at the time of
death, the crematory authority shall be authorized to release or
dispose of the cremated remains as indicated in the preneed
arrangement.
(2) Any person, on a preneed basis, may authorize their own
cremation and the disposition of their cremated remains, on a
preneed cremation authorization and signed by the person as
authorizing agent and by two witnesses. The person shall have
the option of designating the crematory authority. A copy of
this form shall be retained by the person and a copy sent to the
crematory authority, if designated. Any person shall have the
right to transfer or cancel this authorization at any time prior
to their death, by providing written notice to all applicable
parties:
(A) At the time of such person's death, any person in
possession of an executed preneed cremation authorization form
and any person charged with making arrangements for the final
disposition of the deceased who has knowledge of the existence of an executed preneed cremation authorization form, shall use their
best efforts to ensure that the deceased is cremated and disposed
of according to the instructions contained on the preneed
cremation authorization form;
(B) The provision of this Section shall only be applicable
if the cremation is not in conflict with the wishes of the
next-of-kin of the deceased. The next-of-kin of the deceased
shall have the right to choose another form of final disposition,
other than cremation, at the time of the person's death, unless
such change is in conflict with current West Virginia law.
(h) Sanitation and fire safety.
(1) The crematory, cremation chamber, and all related
buildings and equipment shall be maintained in a clean and
sanitary manner. All equipment in and related to the crematory
shall be maintained in good condition according to the directions
given by the manufacturer of the equipment and the appropriate
regulatory authorities.
(2) Crematory authorities applying for licensure after the
promulgation of this article shall construct their crematory in
such a manner as to meet the following minimum standards:
(A) The floor of the crematory shall be of concrete and not
covered with a flammable material;
(B) The walls and ceiling of the crematory shall be of
fireproof and/or fire retardant materials;
(C) The crematory shall have adequate ventilation and
adequate entrances and exits for the protection of the public and authority personnel.
(3) No flammable material shall be stored within five feet
of the cremation chamber.
(i) Miscellaneous.
(1) Acceptance of a license issued by the board gives a
board representative the right to inspect the crematory and the
records of the crematory authority at any time.
(2) The holders of licenses issued by the board shall also
hold current, unexpired licenses issued by all other applicable
regulatory agencies. Failure to hold such other licenses or
permits shall be considered a violation of this article.
(3) Personal items placed or caused to be placed in the
cremation container with the body of the deceased shall not be
removed by the crematory authority or its representatives. This
provision does not apply if items could cause harm to the
crematory or to the crematory authority personnel during the
cremation process.
(4) Any items removed from the cremation container shall be
returned to the authorizing agent.
(5) All cremations of human remains in this state shall be
arranged through the holder of a valid, current funeral
establishment license as issued by this board, either by a
licensed funeral director or other representative of the
establishment, except as otherwise noted in this article.
(6) Records required by this article of crematory
authorities, disposition authorities, and other parties, shall be kept for a minimum of five years from the date of cremation.
§30-6-13. Expiration; renewal of licenses; fees.
All licenses and certificates of registration issued
pursuant to this article shall expire on the thirtieth day of
June of each calendar year and the renewal date for all licenses
and certificates shall be the first day of July of each calendar
year.
The board may set and collect fees, not to exceed the
following amounts:
A. Funeral establishment:
Initial application $300.00
Renewal of license 200.00
Branch
Initial application250.00
Renewal of license150.00
Crematory:
Initial application300.00
Renewal of license200.00
Mortuary service:
Initial application300.00
Renewal of license200.00
Late renewal
Penalty100.00
Reinstatement fee100.00
Surface transportation and/or
removal service:
Initial application300.00
Renewal of license200.00
Late renewal
Penalty100.00
Reinstatement fee100.00
Inspection fee75.00
Reinspection fee100.00
B. Funeral director/embalmer:
Initial license200.00
Renewal of funeral director/
embalmer license100.00
Renewal of funeral director license50.00
Renewal of embalmer license50.00
Reciprocal application fee200.00
Initial license200.00
Renewal of reciprocal funeral director/
embalmer license100.00
Late renewal penalty - 30 days late50.00
Reinstatement fee - 30 days late50.00
Late renewal penalty - 60 days late100.00
Reinstatement fee - 60 days late100.00
Licensing examination fee200.00
Any person who has been duly licensed as a funeral
director/embalmer, funeral director, or embalmer, but who fails
to renew his license for a period of one year or more must make
application to the board for a new license in compliance with the provisions of this article relating to unlicensed persons and
may, at the discretion of the board, be required to serve a
one-year apprenticeship as outlined hereunder.
C. Apprentice:
Initial registration fee$150.00
Renewal of apprentice funeral director/
embalmer registration75.00
Renewal of apprentice funeral director registration35.00
Renewal of apprentice embalmer registration35.00
Late renewal penalty - 30 days late50.00
Reinstatement fee - 30 days late50.00
Any person who has been duly registered as an apprentice and
fails to renew his registration, after a period of thirty days
his registration will automatically be canceled and must make
application to the board for a new registration in compliance
with the provisions of this article relating to unlicensed
persons.
D. Courtesy card:
Initial application$150.00
Courtesy card100.00
E. Other fees:
Duplicate license fee$25.00
Copy fee for public records of the board (per page).50
Verification of license to another state50.00
Any person, firm, or corporation submitting to the board a
check which is dishonored and returned shall be charged a bad check fee of twenty dollars per check. Until the worthless check
has been made good and the processing fee and any applicable late
payment penalties have been paid, any license, authority or
privilege which has been issued or given based on the worthless
check is invalid.
§30-6-14. Advertising; false, fraudulent, deceptive and
misleading advertising.
(a) It is the policy of the board of embalmers and funeral
directors that advertising by persons and entities licensed or
registered pursuant to this article shall be regulated to protect
the health, safety and welfare of the public, while not abridging
any rights guaranteed by the Constitution of the United States
and the state of West Virginia.
(b) As used in this article, the terms "advertisement" and
"advertising" mean any statements, oral or written, disseminated
to or before the public or any portion thereof, with the intent
of furthering the purpose, either directly or indirectly, of
selling funeral services or merchandise or inducing members of
the public to enter into any obligation to purchase such funeral
services or merchandise and include the use of such mediums as
newspaper, radio, television, billboards, church bulletins,
school publications, trade journals, stationery, contracts and
other similar periodical publications.
(c) All advertising by licensees and registrants shall be
only in the name of such funeral service facility as reflected by
the records of the board. The content of the advertising must include the name of the facility, its address and telephone
number and the name of the licensed funeral director/embalmer in
charge. It may also include a description of the service
facilities, as well as general information pertaining to the
business. It may also include the total cost of minimum adult
services. In all advertisements relating to the minimum cost of
the adult services, the following must be observed and conformed
to, in their entirety:
(1) Any advertised casket price will be construed to mean
the cost of the casket and all necessary items for a complete
funeral service. However, the cemetery costs, opening grave
costs, vault costs or excess mileage costs are not considered to
be necessary to constitute a complete funeral;
(2) Any funeral service facility advertising any merchandise
used in connection with the business shall carry in stock a
sample of the merchandise for a period of not less than thirty
days after advertisement publication and must be able to meet any
and all demands for such items, with no increase in price, for
the stated period of not less than thirty days;
(d) No licensee or registrant may disseminate or cause
dissemination of any advertisement or advertising which is in
any way false, fraudulent, deceptive and misleading. Any
advertisement or advertising shall be deemed by the board to be
fraudulent, false, deceptive or misleading if it:
(1) Contains a misrepresentation of facts; or
(2) Has the capacity or tendency to mislead or deceive because in its content or in the context in which it is presented
it makes only a partial disclosure of relevant facts; or
(3) Has the capacity or tendency to create false or
unjustified expectations; or
(4) Contains false, fraudulent, deceptive or misleading
representations relating to the quality or quantity of the
services; or
(5) Represents that funeral goods or services will delay the
natural decomposition of human remains for a long-term or
indefinite time; or
(6) Represents that funeral goods have protective features
or will protect the body from gravesite substances over or beyond
that offered by the written warranty of the manufacturer; or
(7) Contains any representations or claims which the
licensee referred to in the advertising fails to perform; or
(8) Contains any other representation, statement or claim
which has the capacity or tendency to mislead or deceive; or
(9) Contains the words "free," "without charge" or other
words with similar connotations having the effect of misleading
the public.
§30-6-15. Solicitation.
(a) "Solicitation" means a direct or indirect contact with
the family, next-of-kin, or one who has custody of a person who
is deceased or near death for the purpose of securing the right
to provide funeral services or merchandise for the deceased or
the person near death. "Solicitation" does not include any method of advertising by publication or broadcasting.
(b) Business shall not be solicited, directly or indirectly,
by any means other than by legitimate advertising not forbidden
by law.
(c) The offering or making of any payment or allowance or
rebate, refund, commission, gratuity, credit, unearned discount
or recess allowance or other valuable consideration as an
inducement to employment is improper solicitation.
(d) The offer or making of any payment of money or other
valuable consideration to any burial association, person, firm or
corporation for the purpose of producing or procuring business is
improper solicitation.
(e) No person engaged in any manner in the care and
disposition of the dead may organize, promote, participate in or
be a party to any enterprise, plan or scheme that restricts or
has for its purpose the restriction of the freedom of choice in
the open market of a person or persons having the legal right of
such choice regarding contracts, purchases or arrangements with
reference to any part of a funeral service, or interferes with
free and open competition in this state or imposes upon the
public in any manner.
(f) The following acts by persons or entities licensed or
registered under the provisions of this article, or their
representatives or agents, are solicitation:
(1) Uninvited visits or telephone calls to any person for
the purpose of getting business. Sending of flowers or gifts to the sick shall be presumed to be for the purpose of getting
business;
(2) Uninvited solicitation to any relatives or other
responsible representatives of any person for the purpose of
getting business; or
(3) Uninvited calls or visits to the relatives or personal
representatives of undisposed deceased persons for the purpose of
getting business; or
(4) Payment by an individual or licensee of any moneys or
anything of value to any person, hospital, hospice, clinic,
nursing home, or ambulance service for the purpose of soliciting
business.
(g) The board may initiate action against a funeral service
facility or in regard to the license of the funeral service
facility or its licensee-in-charge whenever a licensee,
apprentice, or any other person, whether employee, agent or
representative, or one in any manner associated with a funeral
service facility, shall solicit business or offer any inducement,
pecuniary or otherwise, for the purpose of securing or attempting
to secure business for such funeral service facility.
§30-6-16. Unprofessional conduct.
(a) The board may in its discretion refuse to issue or renew
a license or may fine, discipline, suspend or revoke any license
granted by the board, and may probate any license suspension if
the board finds that the applicant or licensee has engaged in
unprofessional conduct as set forth in this section.
(b) For the purpose of this section, "unprofessional
conduct" includes, but is not limited to:
(1) Providing funeral goods and services or performing acts
of embalming in violation of this article and applicable health
and vital statistic laws and rules;
(2) Refusing or failing to keep, maintain or furnish any
record or information required by law or rule;
(3) Operating a funeral establishment in an unsanitary
manner;
(4) Failing to practice funeral directing or embalming in
a manner consistent with the public health or welfare;
(5) Obstructing a board employee in the lawful performance
of such employee's duties of enforcing this article and board
rules or instructions;
(6) The copying, retaining, repeating, or transmitting in
any manner the questions contained in any examination
administered by the board;
(7) Physically abusing or threatening to physically abuse
a board employee during the performance of his lawful duties;
(8) Engaging in conduct which is willful, flagrant or
shameless or which shows a moral indifference to standards of the
community;
(9) In the practice of funeral directing or embalming
engaging in:
(A) "Fraud" which means an intentional perversion of truth
for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or her, or to surrender
a legal right, or to issue a license; a false representation of
a matter of fact, whether by words or by conduct, by false or
misleading allegations, or by concealment of that which should
have been disclosed, which deceives or is intended to deceive
another;
(B) "Deceit" which means the assertion, as a fact, of that
which is not true by any means whatsoever to deceive or defraud
another; and
(C) "Misrepresentation" which means a manifestation by words
or other conduct which is a false representation of a matter of
fact.
(c) Solicitation of dead human bodies by a licensed funeral
director/embalmer, or a certified apprentice, or an agent, an
assistant, employee or any other person acting in behalf of the
licensee with the knowledge and consent, expressed or implied,
when the solicitation occurs, before or after death, is
prohibited.
(d) The publication, dissemination, or placing before the
public an advertisement or announcement with regard to any
merchandise or services which is untrue or fraudulent, is
prohibited.
(e) Loaning one's funeral director/embalming license,
borrowing or using such license which was issued to another, is
prohibited. Knowingly aiding or abetting any person in obtaining
a license in an improper manner is prohibited.
(f) The interference of a funeral director/embalmer,
directly or indirectly, in any manner or through any other
person, with another funeral director/embalmer who has lawful
charge of a dead human body, is prohibited.
(g) The use of misleading or deceptive advertising or
merchandise, either directly or indirectly, is prohibited.
(h) The disclosure by a licensee of confidences, privacies,
or secrets of the domestic life of any family, the knowledge of
which was acquired through professional relationship with the
family, is prohibited.
(i) Knowingly employing unlicensed persons in the practice
of funeral service as defined in this article, is prohibited.
(j) Knowingly concealing information relative to violations
of this article, is prohibited.
(k) Giving false or forged evidence to the board or a member
thereof for the purpose of obtaining a license or registration,
is prohibited.
§30-6-17. Reciprocity.
(a) The board may recognize licenses issued to funeral
directors/embalmers from other states: Provided, That such
recognition may not be extended to individuals from other states
unless reciprocal rights are provided by such other states to
holders of funeral director/embalmer licenses in this state.
(b) A nonresident of this state who holds a valid license
as a funeral director/embalmer issued by another state or
provincial authority may apply for a license as a funeral director/embalmer in this state by submitting written application
to the board on the prescribed form, accompanied by:
(1) A fee as set by the board;
(2) Certification by the state regulatory agency which
issued the license, reciting that the license has not been
canceled, suspended or revoked; the licensing requirements in
effect at the time the applicant was licensed; the scores
achieved on examinations; the date of issuance of a funeral
director/embalmer license; and, other documents as the board may
deem necessary to determine the qualifications of the applicant;
(3) An authorization signed by the applicant for the board
to perform a thorough background investigation.
(c) If the board determines that the nonresident applicant
meets or exceeds the minimum qualifications required for funeral
director/embalmers in this state and that the nonresident
applicant has held a valid funeral director/embalmer license for
a period of not less than two years, the board may permit the
applicant to take the state licensing examination. If the
applicant received a grade of seventy-five percent or better on
such examination, the board may, upon receipt of a fee as set by
the board, issue to the applicant the appropriate license.
(d) The board may, in its discretion, refuse to issue a
funeral director/embalmer license to an applicant who is not a
resident of this state.
§30-6-18. Refusal to issue, suspension, summary suspension or
revocation of license; grounds; procedures for hearing; injunction proceedings; judicial review;
appeal; legal representation for board.
(a) The board of embalmers and funeral directors may refuse
to issue a license to practice funeral directing, embalming,
operate a funeral establishment, crematory, mortuary service,
surface transportation and/or removal service, apprentice
registration or courtesy card, or after issuance refuse to renew,
fine, discipline, suspend, summary suspend or revoke the same,
for any of the following causes:
(1) The presentation to the board of any transcript,
diploma, license or certificate illegally or fraudulently
obtained, or one obtained from an institution which is not
reputable, or one which has been altered in any way, or the
practice of fraud or deceit in obtaining or attempting to obtain
a license or certificate of registration.
(2) The applicant's or licensee's guilt of gross ignorance
or gross inefficiency in his or her profession.
(3) The applicant's or licensee's conviction of a felony;
and a certified copy of the record of the court of conviction
shall be sufficient proof of such conviction.
(4) The applicant's or licensee's announcing or otherwise
holding himself or herself out to the public as a funeral
director/embalmer without first complying with the requirements
established by the board and been issued a license by the board.
(5) The applicant's or licensee's guilt of unprofessional conduct as set forth in section sixteen of this article and, in
addition, the following acts or any of them shall be conclusively
presumed to be unprofessional conduct:
(A) Guilt of fraud or deception;
(B) The commission of a criminal operation or conviction of
a crime involving moral turpitude;
(C) Chronic or persistent inebriety or addiction to
narcotics or drugs;
(D) Guilt of the violation of divulging any confidence,
privacy or secrets of the domestic life in any home wherein
called upon to serve;
(E) Gross immorality;
(F) Guilt of employing "cappers," "steerers" or "solicitors"
or other such persons to obtain business;
(G) The obtaining of any fees by fraud or misrepresentation;
(H) Employment directly or indirectly, or directing or
permitting any suspended or unlicensed person so employed, to
perform duties of any kind;
(I) Practice funeral directing or embalming under any name
or trade name or under any name other than his/her own true name;
(J) Professional connection or association with, or lending
his or her name to another, for the illegal practice of funeral
directing or embalming, or professional connection or association
with any person, firm or corporation holding himself, themselves
or itself out in any manner contrary to this article;
(K) Advertisement of professional superiority or the performance of professional services in a superior manner;
(L) Advertisement in any manner calculated to, or tending
to, deceive or mislead the public.
(6) Violation of any provisions of this article or any laws
or rules of this state; or, violation of any provisions of the
Federal Trade Commission, Trade Regulation Rule for Funeral
Industry Practices, 16 CFR Part 453.
(7) The use of false, misleading or unethical advertising.
(8) A licensee taking undue advantage of his or her patrons
or committing a fraudulent act in the conduct of his or her
business.
(9) Solicitation of business by the licensee, his or her
agents, assistants or employees, whether such solicitation occurs
before or after death.
(10) Employment directly or indirectly of any licensee,
agent, assistant, employee or other person, on a part-time or
full-time basis, 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 licensee or firm.
(11) The buying of business by the licensee, his or her
agents, assistants or employees, or the direct or indirect
payment or offer of payment of a commission by the licensee, his
or her agent, assistants or employees for the purpose of securing
business.
(b) The board may independently initiate suspension or
revocation proceedings as well as initiate suspension or revocation proceedings based on information received from any
person.
The board shall initiate investigations as to professional
incompetence or other reasons for which a licensed embalmer or
funeral director may be adjudged unqualified.
The board may bring legal proceedings to enjoin a person,
partnership, association, corporation or other organization
violating the provisions of this article or any rule of the board
from practicing embalming, funeral directing, or operating a
funeral establishment, as the case may be, until such person,
partnership, association, corporation or other organization
complies with the requirements of this article and the rules of
the board.
(c) Whenever it appears to the board that any person has
been or is violating or is about to violate any provision of this
article, any reasonable rule promulgated hereunder, the board may
issue a summary suspension pending a final decision on the
merits.
(d) Whenever the board denies an application for any
original or renewal license or suspends or revokes any license it
shall make and enter an order to that effect and serve a copy
thereof on the applicant or licensee, as the case may be, by
certified mail, return receipt requested. Such order shall state
the grounds for the action taken and shall require that any
license suspended or revoked thereby shall be returned to the
board by the holder within five days after receipt of the copy of the order.
(e) Any person adversely affected by any order shall be
entitled to a hearing thereon if, within twenty days after
receipt of a copy thereof, he files with the board a written
demand for such hearing. The board may require the person
demanding such hearing to give reasonable security for the costs
thereof, and, if such person does not substantially prevail at
such hearing, such costs shall be assessed against him or her and
may be collected.
(f) Upon receipt of a written demand for a hearing, the
board shall set a time and place therefor not less than ten nor
more than thirty days thereafter. Any scheduled hearing may be
continued by the board upon its own motion or for good cause
shown by the person demanding the hearing.
(g) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern the hearing
and the administrative procedures in connection with the
following such hearing, with like effect as if the provisions of
said article five were set forth in this subsection.
(h) Any such hearing shall be conducted by a quorum of the
board. For the purpose of conducting any such hearing any member
of the board or its executive director may issue subpoenas and
subpoenas duces tecum which shall be enforced, as specified in
section one, article five of chapter twenty-nine-a, and all of
section one provisions dealing with subpoenas and subpoenas duces
shall apply to subpoenas and subpoenas duces tecum issued for the purpose of a hearing hereunder.
(i) At any such hearing the person who demanded the same may
represent himself or be represented by an attorney-at-law
admitted to practice in this state. Upon request by the board,
it shall be represented at any such hearing by the attorney
general or his assistants without additional compensation.
(j) After any such hearing and consideration of all of the
testimony, evidence and record in the case, the board shall
render its decision in writing. A copy of such decision shall be
served by certified mail, return receipt requested, upon the
person demanding such hearing and his attorney of record, if any.
The decision of the board shall be final unless reversed, vacated
or modified upon judicial review thereof.
(k) Any person who has been refused a license for any cause
or whose license has been suspended or revoked may file with the
executive director of the board, within thirty days after the
decision of the board, a written notice of appeal therefrom to
the circuit court of the county within which such person resides.
Upon the filing of such notice, the executive director of the
board shall transmit to the clerk of the court the record of such
proceedings. The court shall thereupon hear and determine the
case as in other cases of appeal. The judgement of the circuit
court may be reviewed upon proceedings in error in the supreme
court of appeals.
(l) Any person adversely affected by a decision of the board
rendered after a hearing held in accordance with the provisions of this article shall be entitled to judicial review thereof.
All of the pertinent provisions of section four, article five,
chapter twenty-nine-a of this code apply to and govern such
judicial review with like effect as if the provisions of said
section four were set forth in this section.
(m) Legal counsel and services for the board in all appeal
proceedings in any circuit court and the supreme court of appeals
shall be provided by the attorney general or his or her
assistants and in any circuit court by the prosecuting attorney
of the county as well, all without additional compensation.
(n) The board's members and employees are exempt from civil
liability for any decision made or any act done in good faith in
the performance of any duty or the exercise of any power granted
under this article.
NOTE: The purpose of this bill is to completely rewrite the
law governing embalmers and funeral directors. The law is
modernized and expanded to include such things as detailed
cremation standards.
This article has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.