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.