PROPOSED RULEMAKING
DEPARTMENT OF
PUBLIC WELFARE
[ 55 PA. CODE CHS. 283, 285 AND 1251 ]
Payment for Burial and Cremation
[37 Pa.B. 6534]
[Saturday, December 15, 2007]Statutory Authority
The Department of Public Welfare (Department), under the authority of sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. §§ 201(2) and 403(b)) proposes to adopt the proposed rulemaking as set forth in Annex A.
Purpose of Rulemaking
The purpose of this proposed rulemaking is to add a new Chapter 283 (relating to payment for burial and cremation) to replace the existing burial regulations in Chapter 285 (relating to payment for burial). Further, this rulemaking proposes to codify policies that have been in effect since a notice of rule change (NORC) was published at 30 Pa.B. 2957 (June 10, 2000). This proposed rulemaking increases the maximum payment to funeral directors for burial or cremation services to a standard $750 for all eligible individuals. This proposed rulemaking also increases the maximum level of contributions that may be made by another agency or individual towards burial expenses without reducing the Department payment. This amount is increased from $180 to $750. Additionally, this proposed rulemaking eliminates several restrictive requirements for burial, thus allowing families and funeral directors more flexibility and choice in planning and selecting burial goods and services. Finally, this proposed rulemaking amends cross-references in Chapter 1251 (relating to funeral directors' services) that reference Chapter 285 to conform to the addition of Chapter 283.
Background
Regulations governing maximum payment amounts for burial were adopted at 7 Pa.B. 2180 (August 5, 1977). The maximum allowance for burial services in Chapter 285 is inadequate and does not reflect the prevailing costs to provide burial and cremation services. The costs for transportation and preparation of the body, memorial services, gratuities to clergy and cemetery procedures have increased considerably since the adoption of the current regulations governing maximum payment. This proposed rulemaking is necessary to update the regulations to provide for a payment that more adequately covers the actual costs of burial and cremation goods and services.
The Department published prior proposed rulemaking to amend Chapter 285 at 34 Pa.B. 1774 (April 3, 2004). This prior proposed rulemaking proposed to amend only those sections of Chapter 285 related to the increase in the maximum payment and maximum level of contributions that reduce Department payment. Public comments received primarily from individuals in the funeral industry pointed out that the proposed amendments were still too restrictive and limited consumer choice. Based on these public comments and internal review, the Department concluded that Chapter 285 needed major revision and that a new chapter should be added to replace Chapter 285. This proposed rulemaking codifies not only requirements of the NORC but also incorporates new requirements in response to the public comments.
Requirements
The following is a summary of the specific provisions in the proposed rulemaking:
Chapter 283 (relating to payment for burial and cremation)
Cremation was always considered a compensable service under Chapter 285. To clarify that cremation is a compensable service, the Department proposes to add cremation to the title of the chapter.
§ 283.1 (relating to policy)
The Department proposes to establish the requirement that only a funeral director who is enrolled with the Department may be eligible for a payment for burial or cremation, or both, and includes a reference to the definition of a funeral director. This policy is consistent with § 1251.1 (relating to policy) under which the Department makes payment to enrolled funeral directors. Restricting payment to enrolled funeral directors is intended to protect the rights and dignity of both the deceased and individuals representing the deceased. The Department understands that other providers, such as cemeteries and crematoriums, may provide services for which payment is required. The Department expects the funeral director and the individual representing the deceased to reach an agreement regarding how the payment should be allocated.
§§ 283.3--283.7
The Department describes eligibility requirements for the request for payment, including who may make the request, when a request must be submitted and exceptions to this time frame. A request for payment of burial or cremation, or both, may be made by a family member, friend, fraternal organization representing the deceased or a funeral director on behalf of an individual. A request may also be made by another source if a certificate issued by the Anatomical Board of the Department of Health accompanies the request. A request for payment must be submitted on a form approved by the Department within 30 days of the date of death unless valid, unusual circumstances for the delay are provided. Additionally, this section describes the assistance status of the deceased who may be eligible for burial or cremation payment.
§ 283.11 (relating to standards for providing burial or cremation, or both)
The Department describes the standards to which funeral directors shall adhere when providing services for burial or cremation, or both. These standards include abiding by legal requirements, commonly accepted practices of the funeral industry and a written agreement between the funeral director and the individual handling the funeral arrangements. This written agreement will include provisions for payment, including payment for interment if services for interment are selected. This agreement should protect families by assuring that payment will be made for certain items or services specified in the agreement.
The Department did not include specific minimum requirements for goods and services in Chapter 283. This allows greater flexibility and freedom of choice between the funeral director and the individual handling the funeral arrangements.
§§ 283.21 and 283.22 (relating to Department payment; and resources that do not reduce Department payment)
The Department describes the maximum payment for burial or cremation, or both, and the maximum value of contributions that may be made by friends, family or other agencies without reducing the Department payment.
§ 283.23 (relating to resources from which the Department will seek to collect)
The Department describes resources that do not reduce the Department payment, but from which the Department will seek recovery.
§ 283.24 (relating to resources reducing Department payment)
The Department describes resources that reduce the Department payment.
§ 283.31 (relating to funeral director violations)
The Department describes that it can take action against a funeral director if a funeral director has or appears to have violated a regulation under Chapters 1101 and 1251 (relating to general provisions; and funeral directors' services). The Department believes that the written agreement included in § 283.11 will protect consumers and allow for allocation of resources to ensure the complete burial process, cremation process, or both. The Department does not penalize funeral directors for failure to apportion payments, unless a funeral director fails to pay another service provider in accordance with the written agreement between the funeral director and the individual handling the funeral arrangements for the deceased.
§§ 1251.1, 1251.21, 1251.23, 1251.42, 1251.51, 1251.71 and 1251.81
The Department proposes to amend the cross-references that reference Chapter 285 in these sections since Chapter 283 will be replacing Chapter 285.
Affected Individuals and Organizations
This proposed rulemaking affects individuals acting on behalf of deceased individuals who were eligible and authorized for or receiving cash assistance at the time of death. This proposed rulemaking affords individuals responsible for making funeral arrangements more flexibility and choice in planning and selecting burial and cremation goods and services.
Funeral directors who are enrolled with the Department are the beneficiaries of increased payments that more adequately cover the actual cost of burial and cremation goods and services. In addition, other individuals in the funeral industry may receive increased compensation for services rendered if these services are a part of the agreement between the funeral director and the individual handling the funeral arrangements.
Accomplishments and Benefits
This proposed rulemaking benefits individuals acting on behalf of a deceased individual by allowing more flexibility and choice in planning and selecting burial and cremation goods and services.
This proposed rulemaking also benefits funeral directors and may benefit other members of the funeral industry by providing increased payments that more adequately cover the actual costs of burial and cremation goods and services. Increased payments reduce uncompensated costs that are incurred by funeral directors and may reduce costs incurred by other service providers.
Fiscal Impact
From Fiscal Year (FY) 2000-2001 through FY 2006-2007, the Department incurred an average annual increase in expenditures of $360,000 since the maximum payment was raised from $350 to $750 in Fiscal Year (FY) 2000-2001. Of this overall increase, $140,400 is due to the increased payment amount and $219,600 is due to an increase in the number of claims paid. The estimated increase in annual expenditures for FY 2007-2008 is $433,000.
The proposed rulemaking reduces the uncompensated costs for services that are incurred by funeral directors and may reduce uncompensated costs for other individuals in the funeral industry.
Paperwork Requirements
This proposed rulemaking does not increase paperwork requirements.
Effective Date
This proposed rulemaking will be effective upon final publication in the Pennsylvania Bulletin, with two exceptions. The proposed amendment to §§ 283.21 and 283.22(2) are effective retroactive to July 3, 2000, to coincide with the effective date of the NORC.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to the Department at the following address: Edward J. Zogby, Director, Bureau of Policy, Room 431, Health and Welfare Building, Harrisburg, PA 17120, (717) 787-4081 within 30 calendar days after the date of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference Regulation No. 14-510 when submitting comments.
Persons with a disability who require an auxiliary aid or service may submit comments by using the AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 29, 2007, the Department submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a Regulatory Analysis Form prepared by the Department. A copy of this form is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has any comments, recommendations or objections to any portion of the proposed rulemaking, it may notify the Department and the Committees within 30 days after the close of the public comment period. The notification shall specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review by the Department, the General Assembly and the Governor, of any comments, recommendations or objections raised, prior to final publication of the regulation.
ESTELLE B. RICHMAN,
SecretaryFiscal Note: 14-510. (1) General Fund; (2) Implementing Year 2007-08 is $433,000; (3) 1st Succeeding Year 2008-09 is $438,000; 2nd Succeeding Year 2009-10 is $442,000; 3rd Succeeding Year 2010-11 is $445,000; 4th Succeeding Year 2011-12 is $448,000; 5th Succeeding Year 2012-13 is $451,000; (4) 2006-07 Program--$671,472,000; 2005-06 Program--$945,950,000; 2004-05 Program--$842,991,000; (7) Medical Assistance Outpatient; (8) recommends adoption. Funds have been included in the budget to cover these increases.
Annex A
TITLE 55. PUBLIC WELFARE
PART II. PUBLIC ASSISTANCE MANUAL
Subpart I. OTHER INCOME MAINTENANCE PROGRAMS
CHAPTER 283. PAYMENT FOR BURIAL AND CREMATION GENERAL PROVISIONS
Sec. 283.1. Policy. REQUIREMENTS
283.3. Requirements for payment. 283.4. Assistance status of deceased. 283.5. Source of request for payment. 283.6. Submission of form for payment. 283.7. Date of request for payment. STANDARDS
283.11. Standards for providing burial or cremation, or both. PAYMENTS
283.21. Department payment. 283.22. Resources that do not reduce Department payment. 283.23. Resources from which the Department will seek to collect. 283.24. Resources reducing Department payment. VIOLATIONS
283.31. Funeral director violations.
GENERAL PROVISIONS § 283.1. Policy.
(a) The Department will pay for expenses related to burial or cremation, or both.
(b) The Department will pay a funeral director, or anyone acting for him, if the funeral director is the following:
(1) A funeral director as defined in section 2(1) of the Funeral Director Law (63 P. S. § 479.2(1)).
(2) Enrolled with the Department.
REQUIREMENTS § 283.3. Requirements for payment.
The requirements of §§ 283.4--283.7 shall be met for the Department to pay expenses related to burial or cremation, or both. These requirements apply regardless of where death occurs.
§ 283.4. Assistance status of deceased.
The deceased individual shall have been a recipient of Cash Assistance--Temporary Assistance for Needy Families (TANF), General Assistance (GA), State Blind Pension (SBP), Supplemental Security Income (SSI) or State Supplementary Payment (SSP)--at the time of death. This includes:
(1) An individual who was determined eligible for cash assistance, including SBP, regardless of whether the individual had received a cash assistance benefit.
(i) Eligibility for payment begins with the date on which eligibility for cash assistance begins.
(ii) Eligibility for payment extends through the period covered by the last cash assistance benefit for which the individual was eligible.
(2) A former assistance recipient whose assistance had been discontinued due to hospitalization and who died while hospitalized within 3 months from the date of his admission.
(3) A child born dead to an assistance recipient.
(4) A child of an assistance recipient who died so soon after birth that assistance could not be authorized.
(5) A member of a recipient's family who formerly received assistance with the family, returned to the residence, was planning to apply for assistance and died before assistance could be authorized.
§ 283.5. Source of request for payment.
(a) The Department will accept a request for payment for burial or cremation, or both, if the request is made by one of the following:
(1) A relative.
(2) A friend.
(3) The representative of a fraternal society of which the deceased was a member.
(4) The representative of a charitable or religious organization.
(5) A funeral director acting on behalf of an individual described in paragraphs (1)--(4).
(b) If the request for payment comes from another source, the request must be accompanied by a certificate issued by the Anatomical Board, Department of Health, declaring the body unfit for anatomical purposes.
§ 283.6. Submission of form for payment.
The individual requesting payment or the funeral director on behalf of the individual requesting payment shall submit the request on a form approved by the Department in accordance with § 283.7 (relating to date of request for payment). This form shall be completed by the individual requesting payment and the funeral director.
§ 283.7. Date of request for payment.
This form to request payment shall be submitted to the Department within 30 days of the date of death with the following exceptions:
(1) When there are unusual circumstances and the individual requesting payment or the funeral director submits valid reasons for the delay. In this case, the individual requesting payment or the funeral director shall submit the form to the Department within 30 days from the date of the request for payment.
(2) When the funeral director is waiting for notification regarding a resource that may reduce the Department payment according to § 283.24 (relating to resources reducing Department payment). Under these circumstances, the individual requesting payment or the funeral director shall submit the form to the Department within 15 days from the date the funeral director receives payment from the resource or a notification regarding payment from the resource, whichever is sooner.
STANDARDS § 283.11. Standards for providing burial or cremation, or both.
The funeral director shall provide services for burial or cremation, or both, in accordance with the following:
(1) Commonly accepted funeral industry practices established under the Funeral Director Law (63 P. S. §§ 479.1--479.20).
(2) Requirements for professional and vocational standards for funeral directors under 49 Pa. Code Chapter 13 (relating to state board of funeral directors).
(3) Federal standards required by the Federal Trade Commission as specified at 16 CFR Part 453 (relating to funeral industry practices).
(4) A written agreement between the funeral director and the individual handling the funeral arrangements for the deceased. The agreement will include provisions for funeral directors to provide payment for other services, including payment for interment, if services for interment are requested.
PAYMENT § 283.21. Department payment.
The Department's total payment for burial or cremation, or both, is $750 for goods and services and interment charges. The Department will make a total payment not to exceed $750 for a deceased individual who was eligible and authorized for cash assistance at the time of death.
§ 283.22. Resources that do not reduce Department payment.
Resources that are not considered in determining the Department payment include:
(1) Small contributions, such as articles of clothing, the use of cars to carry the funeral party, newspaper obituary, flowers and religious services.
(2) Contributions in money, goods or services by an agency or individual, including legally responsible relatives, up to a total of $750.
§ 283.23. Resources from which the Department will seek to collect.
Under the following circumstances, the Department payment is not reduced by the value of the resources described in § 283.24 (relating to resources reducing Department payment), but instead the Department will seek recovery if resources:
(1) Are reported to the funeral director after the deadline date as set forth in § 283.7 (relating to date of request for payment), and the funeral director does not collect from these resources.
(2) Become available only after the Department pays for burial or cremation, or both.
§ 283.24. Resources reducing Department payment.
(a) When an individual submits a payment form to the Department, the Department will determine the resources available to meet expenses.
(b) Resources may be in the estate of the deceased, payable on behalf of the deceased to the estate or to another individual, or contributed on behalf of the deceased.
(c) The combined value of the following contributions in money, goods or services by an agency or individual, except as specified in § 283.22 (relating to resources that do not reduce Department payment), reduces the Department payment:
(1) The contributions and resources made by an agency or individual.
(2) Burial reserve in the estate of the deceased, and the value of a burial reserve and burial space as set forth in § 177.2 (relating to definitions).
(3) Cash on hand in the estate of the deceased.
(4) Other personal property in the estate of the deceased that may be readily converted into cash, and is not needed to meet a living requirement for the survivors.
(5) Life insurance death benefits payable to legally responsible relatives or individuals or organizations that paid insurance premiums by agreement with the insured that the benefits are used for burial.
(6) Burial benefits from a lodge or fraternal organization.
(7) A lump-sum death benefit from the Social Security Administration (SSA) as defined in 20 CFR 401.25 (relating to terms defined) payable to a surviving spouse or to a funeral director.
(i) The individual who assumed responsibility for payment of the funeral expenses may authorize that the lump-sum payment be paid to the funeral director.
(ii) The Department, at the request of the funeral director, may authorize that the lump-sum payment be paid to the funeral director if:
(A) The individual who assumed responsibility for payment of the funeral expenses does not authorize the payment to the funeral director.
(B) The SSA determines that the individual who arranged burial did not assume responsibility.
(iii) The Department will not pay costs for burial or cremation, or both, until definite information about payment of the lump-sum death benefit is provided by the funeral director.
(8) The lump-sum death benefit from railroad retirement payable to a surviving spouse or a funeral director.
(9) Benefits available from county commissioners on behalf of deceased widows of deceased veterans.
(10) Benefits available for burial in a National cemetery.
(11) Workers compensation benefits designated for burial or cremation, or both, if death results from an accident or injuries sustained in connection with the employment of the deceased.
(12) Awards resulting from accidental death not connected with the employment of the deceased. Pending awards do not reduce the Department payment. When an award is pending, the Department will pay for burial or cremation, or both, and seek recovery when the award is made.
(13) Department of Veterans Affairs death benefits.
(14) Death benefits from United Mine Workers of America welfare and retirement or health and retirement funds.
VIOLATIONS § 283.31. Funeral director violations.
If the Department learns that a funeral director has or appears to have violated a regulation, the Department will determine whether further action is needed in accordance with Chapters 1101 and 1251 (relating to general provisions; and funeral directors' services).
CHAPTER 285. (Reserved) (Editor's Note: The following sections are proposed to be deleted: §§ 285.1, 285.3 and 285.4 which appear in pages 285-1 to 285-13, serial pages (291137) to (291138), (278375) to (278378), (310007) to (310008) and (278381) to (278385).)
PART III. MEDICAL ASSISTANCE MANUAL
CHAPTER 1251. FUNERAL DIRECTORS' SERVICES
GENERAL PROVISIONS § 1251.1. Policy.
The Department provides payment for funeral directors' services rendered to eligible deceased recipients by funeral directors who are enrolled as providers under the program. Payment shall be subject to this chapter and Chapters [285] 283 and 1101 (relating to payment for burial and cremation; and general provisions).
SCOPE OF BENEFITS § 1251.21. Scope of benefits for the categorically needy.
Categorically needy recipients who were receiving a money payment at the time of their death as set forth in § [285.3] 283.4 (relating to [requirements] assistance status of deceased) are eligible for funeral directors' services listed in Chapter 1150 (relating to MA Program payment policies) and the MA Program fee schedule hereto subject to the conditions and limitations of this chapter and Chapter [285] 283 (relating to payment for burial and cremation).
§ 1251.23. Scope of benefits for State Blind Pension recipients.
State Blind Pension recipients are eligible for funeral directors' services subject to the conditions and limitations of this chapter and Chapter [285] 283 (relating to payment for burial and cremation).
PROVIDER PARTICIPATION § 1251.42. Ongoing responsibilities of providers.
In addition to the applicable responsibilities of providers established in § 1101.51 (relating to ongoing responsibilities of providers), funeral directors shall, as a condition of participation comply fully with §§§ [285.4(a)--(c)(relating to procedures)] 283.1, 283.3, 283.11, 283.21 and 283.22.
PAYMENT FOR FUNERAL DIRECTORS' SERVICES § 1251.51. General payment policy.
Payment shall be made for funeral directors' services subject to the conditions and limitations established in Chapter [285] 283 (relating to payment for burial and cremation).
UTILIZATION CONTROL § 1251.71. Scope of claims review procedures.
Claims submitted for payment under the MA Program are subject to the utilization control procedures established in Chapters [285] 283 and 1101 (relating to payment for burial and cremation; and general provisions).
ADMINISTRATIVE SANCTIONS § 1251.81. Provider misutilization.
Providers determined to have billed for services inconsistent with MA Program regulations or to have otherwise violated the standards set forth in the provider agreement, are subject to the sanctions described in Chapter 1101 (relating to general provisions) and § [285.4(e)] 283.31 (relating to [procedures] funeral director violations).
[Pa.B. Doc. No. 07-2308. Filed for public inspection December 14, 2007, 9:00 a.m.]
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