PROPOSED RULEMAKING
STATE BOARD OF FUNERAL DIRECTORS
[49 PA. CODE CH. 13]
Unprofessional Conduct
[35 Pa.B. 1208] The State Board of Funeral Directors (Board) proposes to amend § 13.202 (relating to unprofessional conduct) to read as set forth in Annex A.
Effective Date
The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
The proposed rulemaking is authorized under sections 11(a)(5) and 16(a) of the Funeral Director Law (act) (63 P. S. §§ 479.11(a)(5) and 479.16(a)).
Background, Need and Description of the Proposed Amendment
Section 11(a)(5) of the act authorizes the Board to discipline licensees for ''misconduct in the carrying on of the profession'' of funeral director. Although the act does not define the term ''misconduct,'' the Board in its disciplinary actions has applied prior court interpretation of the term. See, for example, Toms v. State Board of Funeral Directors, 800 A.2d 342, 349 (Pa. Cmwlth. 2002) (misconduct is a breach of the generally accepted canons of ethics and propriety governing the reverential and respectful burial of the dead). Acting under its statutory authority, the Board has listed in § 13.202 various acts that the Board considers to be misconduct. Recent disciplinary cases before the Board concerning professional misconduct have inspired the Board to expand that list. Including acts of misconduct in the regulation serves to put licensees on notice of what the Board considers to be misconduct.
A funeral director might come into possession of funds of a decedent or intended for a decedent, even if the funeral director does not provide funeral goods or services for that decedent. Proposed § 13.202(13) would prohibit a funeral director from retaining funds for goods or services that the funeral director has not provided or that exceed the value of funeral goods and services that the funeral director has provided. This provision would permit the funeral director a reasonable amount of time to ascertain that any person to whom the funeral director would transfer the funds is entitled to receive them.
Section 8 of the act (63 P. S. § 479.8) sets forth various forms of organization that may engage in the practice of funeral directing, including as sole proprietor or partnership and certain corporations. Anyone practicing funeral directing in any of these forms must be licensed by the Board. Proposed § 13.202(14) would prohibit a funeral director from performing funeral director services on behalf of an establishment that the funeral director knows, or should know, is not properly licensed to engage in funeral directing.
A funeral director shall release a decedent's remains upon request of the family. Section 13.201(5) (relating to professional responsibilities) provides that the professional responsibility of a funeral director includes releasing remains to the funeral director chosen by the family if the remains were removed prior to contacting the family. A funeral director may not refuse to release a decedent's remains as a means to enforce payment for services or merchandise. See Toms at 349. Proposed § 13.202(15) would codify this prohibition. Enforcement of a payment obligation must be through other means, such as subsequent billing or legal process.
Because it is the last opportunity to do so, proposed § 13.202(16) would prohibit a funeral director from refusing a reasonable request of a member of the decedent's immediate family to pay final respects. The immediate family would include the decedent's spouse, parents, grandparents, siblings, children and grandchildren. The provision does not require the funeral director to permit any of these persons to participate in a funeral service. Instead, upon request, the funeral director shall make available a reasonable opportunity to pay final respects, regardless of any instructions from the funeral director's customer who is paying for the funeral director's services.
Section 13(c) of the act (63 P. S. § 479.13(c)) prohibits a person who is not licensed as a funeral director, either directly or through an agent, from entering into a contract with a person then living to provide funeral services at the time of the person's subsequent death. This provision prohibits any unlicensed person from engaging in preneed sales, even on behalf of a funeral director. See Ferguson v. State Board of Funeral Directors, 566 A.2d 670 (Pa. Cmwlth. 2001), appeal denied, 566 Pa. 670, 782 A.2d 549. Proposed § 13.202(17) would prohibit a funeral director from aiding any person or entity that the funeral director has reason to believe is attempting through unlicensed persons or entities to engage in preneed sales.
Additionally, the Board proposes to amend § 13.202(11) concerning the requirement that a funeral director obtain permission from the family prior to furnishing embalming or other services or merchandise. A funeral director might be unable to locate family members, despite making reasonable good-faith attempts to locate them. However, there may be very good reasons why certain services must be provided at that time. The proposed amendment would permit the funeral director to provide these necessary services, so long as the funeral director has no reason to think the family would refuse. This proposed amendment is consistent with the Federal Trade Commission's Amended Funeral Rule (15 CFR 453.5), which provides that it is an unfair or deceptive trade practice for a provider of funeral services to embalm a deceased human body for a fee unless the law requires embalming, the family has given prior approval or the provider is unable to contact an appropriate person to give approval for embalming after exercising due diligence, has no reason to believe the family does not want embalming and obtains subsequent approval for embalming already performed. In general, the proposed amendment to § 13.202(11) would permit a funeral director to charge for funeral services provided prior to obtaining permission by obtaining that permission after the fact. However, the proposed amendment to § 13.202(11) would not permit a funeral director to charge for embalming provided prior to obtaining permission, unless the embalming is necessary and appropriate for other services, such as public viewing, selected by the person paying for the overall funeral goods and services.
Impact of the Proposed Rulemaking
The Board solicited input from and provided an exposure draft of this proposed amendment to funeral directors and organizations. In addition, the Board considered the impact the amendment would have on the regulated community and on public health, safety and welfare. The Board finds that the proposed amendment addresses a compelling public interest as described in this preamble.
Fiscal Impact and Paperwork Requirements
The proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will impose no additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Sunset Date
The Board continuously monitors the cost effectiveness of its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 2, 2005, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Michelle Smey, Administrator, State Board of Funeral Directors, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-4814 (Unprofessional conduct) when submitting comments.
JOSEPH A. FLUEHR, III, FD,
ChairpersonFiscal Note: 16A-4814. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND
VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND
OCCUPATIONAL AFFAIRS
CHAPTER 13. STATE BOARD OF
FUNERAL DIRECTORS
STANDARDS OF PRACTICE AND CONDUCT § 13.202. Unprofessional conduct.
Unprofessional conduct includes the following:
* * * * * (11) Furnishing embalming, other services or merchandise without having obtained written permission from a family member or other person authorized by law to make funeral arrangements for the deceased. Oral permission to embalm, followed by a confirmatory e-mail, fax, telex, telegram, mailgram or other written confirmation will be acceptable.
(i) A funeral director who has made reasonable attempts, without success, to locate family members or other persons authorized by law to make funeral arrangements for a deceased may provide embalming or other services without having obtained permission when there is a legitimate need to provide that service at that time and no facts known to the funeral director suggest that any authorized person, if requested, would refuse to give permission.
(ii) A funeral director who has provided funeral service without obtaining prior permission may not charge for the service unless:
(A) The provision of services without prior permission is authorized by this paragraph.
(B) The person paying for funeral goods and services agrees to pay for the previously unauthorized service.
(iii) A funeral director who has embalmed without obtaining prior permission may not charge or accept payment for the embalming unless:
(A) The embalming without prior permission is authorized by this paragraph.
(B) Embalming is necessary and appropriate for other services, such as a public viewing, subsequently selected by the person paying for funeral goods and services.
* * * * * (13) Retaining funds intended to pay for funeral goods and services when the funeral director and establishment have not provided any funeral goods and services or when the amount of funds retained is in excess of the value of funeral goods and services actually provided by the funeral director or establishment. A funeral director may preserve the funds for a reasonable amount of time for a person to demonstrate a legal entitlement to receive the funds or to receive payment of funds owed to the decedent.
(14) Performing funeral services on behalf of a funeral entity that the funeral director knew, or should have known, was not in compliance with section 8 of the act (63 P. S. § 479.8), regarding conduct of business.
(15) Refusing to release remains until consideration, whether earned or not, has been paid.
(16) Refusing the reasonable request of any known member of a decedent's immediate family the opportunity to pay final respects, regardless of who is paying for funeral services or merchandise. For purposes of this paragraph, the immediate family includes spouse, sibling, parent, grandparent, child and grandchild.
(17) Aiding any person or entity that the funeral director has reason to believe is attemptingthrough unlicensed persons or entities to engage in the sale of funeral services for a person then living.
[Pa.B. Doc. No. 05-278. Filed for public inspection February 11, 2005, 9:00 a.m.]
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