Senate Bill No. 146
(By Senator Bailey)
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[Introduced February 28, 1997; referred to the Committee
on the Judiciary.]
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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, meeting, powers and duties; definitions; licensing required; practice by unlicensed persons prohibited; examination for funeral director/embalmer license, issuance of license; registration as an intern funeral director/embalmer; license as a funeral director/embalmer; courtesy care; 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. FUNERAL SERVICE.
§30-6-1. Purpose.
The purpose of this article is to regulate the removal, preparation, transportation, arrangement for disposition and final disposition of dead human remains for protection of the public and its health.
§30-6-2. Scope.
This article requires that in this state no person or entity may, for compensation, take charge of, remove, transport, prepare for final disposition, or in any manner arrange, direct or supervise a funeral service, memorial or graveside service for dead human remains without first obtaining a license as required by this article.
This article does not apply to public officials or public institutions acting under the provisions of the law and within the scope of their authority nor to certain anatomical associations, medical schools, accredited schools of mortuary science or any other lawful use of dead human remains held for anatomical study. This article does not apply to the performance of the lawful duties of licensed medical personnel and may not be interpreted to interfere with the customs or rites of any recognized religious or cultural group.
§30-6-3. Definitions.
(a) For the purpose of this article, the following terms have the meanings set forth in this section:
(1) "Board" means the West Virginia board of funeral service;
(2) "Crematory" means every place or premises devoted to or used for cremation, including calcination and pulverization, of dead human remains;
(3) "Funeral service practitioner" means any person who for compensation engages in or conducts, or holds himself or herself out as being engaged in the care, preparation for burial or disposition of dead human remains, or who, for compensation, disinfects or preserves a dead human body by the use of chemical substances, fluids or gases in the body, or by the introduction of chemical substances, fluids or gases into the body by vascular or hypodermic injection, or by any other method intended to disinfect or preserve a dead human body, or restore body tissues and structures;
(4) "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 the 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 service or other rites or ceremonies associated with the disposition of dead human remains; or maintained for the convenience and comfort of the bereaved and the community for viewing or other services in connection with dead human remains 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 dead human remains: Provided, That this definition does not include those places of business or premises devoted solely to the burial or entombment of dead human remains;
(5) "Intern" means a person who is preparing to become licensed in this state and is engaged in learning the practice of funeral service under the instruction, direction and personal supervision of a person duly licensed with the board as a funeral service practitioner under the provisions of this article, and who is duly registered as an intern by the board prior to engaging in the activity;
(6) "Person" means a natural person, corporation, partnership, venture, association, agency, organization or other entity; and
(7) "Transportation removal service" means any person, partnership, enterprise, corporation, association, society, other legal entity or other form of organization which engages in providing transportation of dead human remains.
(b) The board shall propose any rules, subject to legislative approval, necessary to further define the terms used in this article.
§30-6-4. Board of funeral service; terms; compensation; expenses; civil immunity.
The "West Virginia Board of Funeral Service," heretofore established as the "West Virginia of Embalmers and Funeral Directors," is 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 members shall be licensed funeral service practitioners with a minimum of five consecutive years' experience in West Virginia immediately preceding the appointment. The seventh member shall be a lay member.
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, 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. The board shall select from its own membership a president and secretary. Each member of the board shall receive one hundred dollars for each day actually spent in attending meetings of the board, or of its committees, and shall also be reimbursed for all reasonable and necessary expenses actually incurred in the discharge of the duties under the provisions of this article.
The board shall use the office of the attorney general as legal advisor. The board and each of its members and employees have civil immunity from suit for decisions made by the board while acting within the scope of their authority as board members or employees.
§30-6-5. Same -- Duties.
(a) The board shall hold not less than two meetings during each calendar year. The time and place of the meetings shall be announced by publication in the state register. Four or more members comprise a quorum authorizing the board to take action in accord with this article.
(b) The board shall enforce the provisions of this article.
(c) The board shall propose legislative rules, subject to legislative approval, in accordance with article three, chapter twenty-nine-a of this code, as may be necessary to establish the procedure for and enforce the provisions of this article.
(d) The board shall maintain records, conduct investigations and hold hearings as are necessary to carry out the provisions of this article.
§30-6-6. Same -- Powers.
The board may:
(a) Examine and determine the qualifications and fitness of any applicant for a license to engage in the practice of funeral directing or embalming; operate a funeral establishment, mortuary service, crematory or transportation and removal service;
(b) Issue, renew, deny, suspend or revoke licenses, levy fines, issue compliance orders, enter into settlements, agreements and compromises as are necessary to ensure proper enforcement of this article;
(c) Conduct inspections, subpoena records of licensees, conduct investigations and disciplinary hearings as are necessary to ensure enforcement of this article. All disciplinary actions of the board are subject to judicial review and all records of disciplinary actions shall be made public;
(d) Establish a schedule of reasonable fees for the licensing and registration of funeral service practitioners, funeral directors, embalmers, interns, funeral establishments, mortuary services, crematories and transportation or removal services, or both;
(e) Provide a state licensing examination to be administered by the board no less than two times per year; and
(f) Employ such full-time or part-time professional, clerical or special personnel as may be necessary to ensure enforcement of this article, and the purchase or rent necessary office space, equipment and supplies.
§30-6-7. License to practice funeral service.
(a) No person may, for compensation, take charge of, prepare for final disposition or in any manner direct or supervise a funeral service, memorial or graveside service for dead human remains without first obtaining a license to practice funeral service as is provided in this article.
(b) The qualifications for the license shall be set by the board except that all licensees shall:
(1) Be eighteen years of age or older;
(2) Hold an associate degree, baccalaureate degree or higher degree from an accredited college or university;
(3) Complete a one-year course of internship under the supervision of a funeral service practitioner licensed in this state;
(4) Possess a diploma of graduation from an accredited school of mortuary science;
(5) Pass with an average score of not less than seventy-five percent the examinations of the conference of funeral service examining boards, incorporated; and
(6) Pass with the score of not less than seventy-five percent the state licensing examination administered by the board.
(c) The board shall establish other requirements and procedures to be used for licensure, to ensure the nontransfer of licenses, to provide for display of licenses, the licensing fees to be charged by the board and the period for which a license is valid and the requirement for renewal of licenses.
§30-6-8. Same -- Internship.
(a) No person may be licensed as funeral service practitioner unless that person has first served an internship. The board shall establish the criteria and procedures for registration and for an internship and for ensuring compliance with those criteria and procedures.
(b) The qualifications for registration shall be set by the board except that all persons shall be eighteen years of age or older and hold an associate degree, baccalaureate degree or higher degree from an accredited college or university. The degree shall be obtained prior to obtaining a diploma of graduation from an accredited school of mortuary science.
§30-6-9. Same -- Reciprocity.
The board may grant reciprocal licenses to persons who hold current licenses in other states: Provided, That the recognition may not be extended to individuals from other states unless reciprocal rights are provided by the other states to holders of licenses in this state. No person is entitled to a reciprocal licenses as a funeral service practitioner unless he or she furnishes proof that he or she has, in the state in which he or she is regularly licensed, complied with requirements substantially equal to those set out in this article. The board shall set the standards and procedures for the issuing of reciprocal licenses by rules proposed, subject to legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of the code.
§30-6-10. Same -- Courtesy card.
The board may issue annual nonrenewal courtesy cards to licensed funeral directors of the states bordering West Virginia. The board shall set the standards and procedures for issuing courtesy cards by rule proposed, subject to legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code. Holders of courtesy cards may not open or operate a place of business for the purpose of conducting funerals or embalming bodies in this state nor may they maintain an office or agency in this state.
§30-6-11. Same -- Compliance.
Any person or entity who fails to comply with the requirements of this article or the rules of the board regarding the requirements of licensure for the handling of dead human remains is subject to disciplinary action by the board.
All persons or entities licensed under this article or serving as interns shall fully cooperate with the board at all times. Failure to cooperate is grounds for disciplinary action.
All persons or entities who are not licensed under this article are prohibited from using any title that would indicate the person is engaged in the activity of a licensed funeral service practitioner.
Licensed persons or entities may not pay to receive business, solicit business, advertise in a false or misleading manner, use unlicensed persons to perform the duties of licensees or engage in unprofessional conduct.
§30-6-12. Funeral establishment license.
No person licensed as a funeral service practitioner or any other person or entity may maintain or operate premises devoted to or used for the holding, care or preparation of dead human remains for final disposition or for the arrangement of those activities without first obtaining a license to operate a funeral service establishment from the board.
The board shall proposepromulgate rules, subject to legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, for the handling by funeral establishments of dead human remains. The rules shall at a minimum require the proper handling of dead human remains so as to protect the health and welfare of the public and require records to be kept.
§30-6-13. Mortuary service license.
No person licensed as a funeral service practitioner or any other person or entity may, for compensation, maintain, manage or operate premises devoted to or used for the holding, care or preparation of dead human remains without first obtaining a license to operate a mortuary service from the board.
The board shall propose rules, subject to legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, for the handling by mortuary services of dead human remains. The rules shall at a minimum require the proper handling of dead human remains so as to protect the health and welfare of the public and require records to be kept.
§30-6-14. Crematory license.
No person licensed as a funeral service practitioner or any other person or entity may, for compensation, maintain, manage or operate premises devoted to or used in the holding and cremation of dead human remains without first obtaining a license to operate a crematory from the board.
No dead human remains may be cremated without first obtaining proper written permission for that cremation from the person or persons who have the authority to give permission.
No crematory may accept dead human remains for cremation unless the remains are properly contained and unless proper cremation procedures as established by the rules of the board are followed.
No crematory may dispose of cremated remains except as provided in the rules of the board.
The board shall propose rules, subject to legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, for the handling by crematory of dead human remains. The rules shall at a minimum require the proper handling of dead human remains and disposal of cremated remains so as to protect the health and welfare of the public and require records to be kept.
§30-6-15. Transportation and removal service license.
No person or entity may, for compensation, engage in providing transportation or removal of dead human remains without first obtaining a license to operate a transportation and removal service license from the board.
The board shall propose rules, subject to legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, for the handling by transportation and removal services of dead human remains. The rules shall at a minimum require the proper handling of dead human remains so as to protect the health and welfare of the public and require records to be kept. The rules shall provide requirements and procedures for the use, issuance and display of the licenses, including the fees for the license to be charged by the board.
Any person or entity who fails to comply with the requirements of this article or the rules of the board regarding the requirements of licensure for the handling of dead human remains is subject to disciplinary action by the board.
Any person or entity who is not licensed under this article is prohibited from using any title that would indicate they are engage in the activity of a licensed funeral service practitioner.
No licensed person or entity may pay to receive business, solicit business, advertise in a false or misleading manner, use unlicensed persons to perform the duties of licensees or engage in unprofessional conduct.
The rules proposed by the board shall provide for the proper enforcement of this section.
§30-6-16. License; expiration; renewal.
All licenses, permits and registrations issued pursuant to this article expire on the thirtieth day of June of each calendar year and the renewal date for all licenses, permits and registrations is the first day of July of each calendar year.
(a) The board shall set by rule fees relating to the licensing or registering of individuals, which shall be sufficient to enable the board to carry out effectively their responsibilities of licensure or registration and discipline of individuals subject to their authority.
(b) Any person who is currently licensed as of the effective date of this article under prior state law as a funeral director or embalmer shall be licensed to practice funeral service. All licenses shall be renewed on an annual basis and any license that is not renewed automatically lapses and is subject to late penalties and reinstatement fees. Any person whose license to practice funeral service has lapsed for one year or longer shall 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 internship and take the current state licensing examination.
(c) All licenses to operate a funeral service establishment, mortuary service, crematory or transportation/removal service shall be renewed on an annual basis and any license that is not renewed automatically lapses.
(d) Any person who is currently registered as of the effective date of this article under prior state law as an apprentice funeral director/embalmer shall be registered as an intern to practice funeral service. All registrations shall be renewed on an annual basis and any registration not renewed automatically lapses. Any person whose intern registration has lapsed for sixty days or longer shall make application to the board for a new registration in compliance with the provisions of this article relating to unlicensed persons. An intern registration may not be renewed more than four times. The board shall allow one additional year of internship upon a written application to the board which shows good cause.
The board shall establish procedures as it determines necessary to administer the provisions of this section.
§30-6-22. Complaints; reporting obligations; form; response; and immunity.
(a) Any unit of government, person or entity may file a complaint of violation of this article with the board. The board shall establish procedures to be used in reporting a complaint, including the forms for reporting and manner in which the board shall respond to the reports.
(b) Persons or entities who in good faith report violations of this article are immune from civil or criminal actions brought as a result of the reporting.
§30-6-23. Funeral industry practices.
(a) It is a violation of this article for any licensee to engage in any unfair or deceptive practice with respect to price disclosure, misrepresentations of embalming requirements or requirements for cremation or requirements for the purchase of certain goods or services, the providing of services without prior approval and the failure to retain documents required under this article.
(b) All funeral establishments and mortuary services licensed under this article shall have preparation and embalming rooms which meet the minimum requirements for the facilities as are established by the rules of the board for the protection of the health and welfare of the public.
(c) The board shall propose rules, subject to legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, establishing minimum embalming standards and minimum standards for the handling of infectious waste by licensees for the protection of the health and welfare of the public.
(d) The board shall propose rules to ensure that every license complies with the applicable provisions of the federal Americans with Disabilities Act that are at a minimum equal to the requirements for accommodations imposed by the act. The board shall encourage all licensees to include in their pesonnel policies a statement of affirmative compliance with the act as it pertains to qualified individuals with disabilities.
(e) The board shall ensure that every licensee complies with the current federal trade commission, trade regulation rule for funeral industry practices, 16 CFR Part 453.
§30-6-24. Correction orders; administrative penalty orders; injunctive relief; and cease and desist orders.
(a) The West Virginia board of funeral service may issue corrective orders requiring compliance with the provisions of this article. The orders are subject to judicial review and are enforceable by court order or other remedies including disciplinary action by the board against any licensee.
(b) The board may issue administrative penalty orders which impose fines upon licensees for the violation of the provisions of this article. The orders are subject to judicial review and are enforceable by court order or other remedies including disciplinary action by the board against any licensee.
(c) The board may bring an action for injunctive relief in any state court for the purpose of enjoining violations of this article.
(d) The board may issue cease and desist orders requiring licensees or other persons or entities to cease violating the provisions of this article. The orders are subject to judicial review and are enforceable by court order or other remedies, including disciplinary action by the board against any licensee.
(e) All remedies and orders and disciplinary actions provided in this article are not exclusive but are cumulative and more than one action may be taken at the same time against any licensee or other person or entity.
§30-6-25. License permit; denial; refusal to reissue; revocation; suspension; limitation; and additional remedies.
(a) The board may deny, refuse to renew, revoke or suspend any license or permit issued under this article if the licensee, at any time, fails to meet minimum standards for licensing, submits false or misleading information, or both, to the board, violates any provisions of this article, any lawful order of the board or any law of another state in the area of funeral service licensure which results in disciplinary action by that state, is convicted of a crime or otherwise engages in conduct which is unprofessional as defined by the board, becomes incompetent, or becomes delinquent in taxes owed to this state or obligations of family or child support.
(b) Action by the board may only be taken through administrative due process which includes a hearing and opportunity for judicial review.
(c) In addition to all other remedies for the violation of this article the board may recover from any licensees, persons or entities the costs incurred in the enforcement of this article including, but not limited to, court costs, legal fees, investigative expenses, staff time and witness fees.

NOTE: The purpose of this bill is to create the West Virginia board of funeral service, to establish standards for the practice of funeral service and to conform with changes made to chapter thirty, article one of the code of West Virginia, passed March 9, 1996.

This article has been completely rewritten, therefore, strike-throughs and underscoring have been omitted.