CHAPTER 225

FORMERLY

SENATE SUBSTITUTE NO. 1

TO

SENATE BILL NO. 116

AS AMENDED BY SENATE AMENDMENT NOS. 1, 2 AND 3 AND HOUSE AMENDMENT NOS. 2 AND 3

AN ACT TO AMEND TITLE 24, CHAPTERS 31 AND SO OF THE DELAWARE CODE RELATING TO FUNERAL SERVICES, AND PROVIDING FOR A BOARD OF FUNERAL SERVICES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House concurring therein):

Section I. Amend Chapter 31, Titre 24 of the Delaware Code by repealing §3101 through §3110 and §3112 through §3127 of said Chapter 31; repealing all of Chapter SO, Title 24 of the Delaware Code; and by substituting in lieu thereof new §3100 through §3110 and §3112 through §3123 to Chapter 31 of Title 24 of the Delaware Code to read as follows:

"CHAPTER 31. BOARD OF FUNERAL SERVICES

§3100. Purpose of Chapter and Objective of Board

Recognizing that the practice of funeral services is a privilege and not a natural right of Individuals, It is hereby deemed necessary as a matter of policy that It Is In the Interest of public health, safety, and welfare to provide laws and provisions concerning the granting of that privilege and Its subsequent use and control, and to provide rules and regulations to that end; and the public shall be properly protected against price fixing and the unprofessional, Improper, unauthorized and unqualified practice of funeral services and from unethical conduct by persons licensed to practice funeral services. Accomplishment of that purpose shall be the primary objective of the Board of Funeral Services. In meeting said objective, the Board shall develop

standards assuring professional competence; monitor complaints brought against practitioners regulated by the Board; adjudicate formal complaint hearings; promulgate rules and regulations; and Impose sanctions when necessary against practitioners.

§3101. Definitions

As used in this Chapter:

(1) 'Board' means the Board of Funeral Services of this state or any successor
thereof.

(2) 'Funeral Director' means a person engaged in the care of human remains or In
the disinfecting and preparing by embalming human remains for the funeral service, transportation, burial, entombment, or cremation.

(3) 'Non-resident Funeral Director' means a funeral director licensed in another
state, district, or foreign country.

(4) 'Funeral Services' means those services rendered for the disinfecting,
embalming, burial, entombment or cremation of human remains, including the sale of those goods and services usual to arranging and directing funeral services.

(5) 'Funeral Establishment' means any place used In the care and preparation of
human remains for funeral, burial, entombment, or cremation; said place shall also Include areas for embalming, the convenience of the bereaved for viewing and other services associated with human remains. A Funeral Establishment shall also include a
place or office In which the business matters associated with funeral services are conducted. Satellite funeral establishments existing as of the effective date of this statute shall not be required to include an area for embalming.

(6) 'Burial' means the Interment of human remains.

(1) 'Cremation' means burning human remains to ashes.

(2) 'Intern' means a person, duly registered with the Board, engaged In training
to become a licensed funeral director under the direction and personal No member of the Board of Funeral Services, while serving on the Board, shall be an officer of a local, state or national professional funeral services association nor have any financial interest In any funeral services college, school or cemetery.

(a) Vacancies occurring on the Board for any reason shall be filled by the
Governor.

(a) Each Board member shall receive compensation of $50 for each meeting attended, provided, however, that no Board member shall be compensated in excess of $500 In any calendar year for meetings attended.

§3104. Officers,_Meetings; Quorum

(a) In the same month of each year the members shall elect, from among their

number, a president and a secretary. Each officer shall serve for one (1) year and

shall not succeed him/herself in the same office.

(b) The Board shall hold a regularly scheduled business meeting at least once in
each quarter of a calendar year and at such other times as the president deems

necessary, or at the request of a majority of Board members. A notice of the meetings of the Board shall be posted in a public place and forwarded to the state professional funeral service associations at least one (1) week prior to said meeting. Special or emergency meetings may be held without notice, but a copy of the minutes of such meetings shall be made available to interested parties for a fee.

(c) A majority of members shall constitute a quorum, and no action shall be taken without the affirmative vote of at least three (3) members. Any member who falls to attend three (3) consecutive meetings, or who fails to attend at least half of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed.

(d) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Professional Regulation. At any hearing where evidence Is presented, such hearing shall be recorded. Transcripts shall be made at the request and expense of any party.

§3105. Powers and Duties; Immunity

(a) The Board of Funeral Services shall have the authority to

(1) Formulate rules and regulations, with appropriate notice to those affected where such notice can reasonably be given. Each rule or regulation Shall Implement or clarify a specific section of this chapter;

(2) Designate the application form to be used by all applicants and process all applications;

(1) Designate a written examination, prepared by a national professional
organization recognized by the American Board of Funeral Services Education. The examination shall be taken by persons applying for licensure, except for applicants who qualify for licensure by reciprocity;

(1) Provide for the administration of all examinations, Including notice and
information to applicants;

(2) Grant licenses to all persons who meet the qualifications for licensure;

(1) Receive complaints from the public and from practitioners, evaluate such
complaints and take such action within its powers as the Board deems appropriate;

(1) Determine whether or not a practitioner shall be the subject of a
disciplinary hearing and, if so, conduct such hearing In accordance with this chapter and the Administrative Procedures Act;

(B) Where It has been determined after a disciplinary hearing that penalties or sanctions should be imposed, designate and Impose the appropriate sanction or penalty after time for appeal has elapsed;

(9) Bring proceeOngs In the courts for the enforcement of this chapter;

(1) Provide for the rules for continuing funeral services education as a
prerequisite for license renewal for those practitioners under 65 years of age; provided, however, that In establishing rules for continuing funeral services education, the Board shall consider potential economic hardship on single
practitioners and other licensees, and shall not Impose rules that are likely to place undue economic hardship on licensees. Relicensing shall not consist of, nor
be dependent upon, retesting for those practitioners under 65 years of age, provided, however, that In establishing rules for continuing funeral services education, the Board shall consider potential economic hardship on single
practitioners and other licensees, and shall not Impose rules that are likely to place undue economic hardship on licensees;

(b) The Board may require by subpoena the attendance and testimony of witnesses and the production of papers, records or other documentary evidence.

(c) The members of the Board shall not be subject to, and shall be immune from, claims, suits, liability, damages or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken, or performed, or recommendation made, so long as such member of the Board acted in good faith and without malice in carrying out the responsibilities, authority, duties, powers, and privileges of the office conferred by law upon them under this Chapter or any other provisions of the Delaware or federal law or rules or regulations or duly adopted rule or regulation of the Board. Good faith is presumed unless otherwise proven and malice Is required to be proven by the complainant.

(d) No member of the Board shall In any manner whatsoever discriminate against any applicant or person holding or applying for a license to practice funeral services by reason of sex, race, color, age, creed or national origin.

(a) No member shall participate In any action of the Board involving directly or
Indirectly any person related in any way by blood or marriage to said member.

§3106. Qualifications of Applicants for Licensure; Judicial Review; Report to Attorney General

(a) An applicant who Is applying for examination and ilcensure shall have the

following qualifications:

(1) He/she shall have graduated from an accredited high school or its
equivalent and have completed at least two years of academic training at an accredited college or university, and have completed one (1) year of academic training In funeral services from a school or college fully accredited by the American Board of Funeral Services Education or its successor.

(1) Each applicant shall have satisfactorily completed an examination as
authorized pursuant to §3105 (a)(3).

(2) Each applicant shall satisfactorily complete an Internship of one year's
duration under the auspices of a licensed Delaware funeral services practitioner. An applicant Is responsible for arranging his/her own internship. If, after
contacting 20 firms, the applicant Is unable to obtain an internship within six months, he/she shall so stipulate in an affidavit presented to the Board. The
Board shall determine whether the applicant has pursued a position as Intern to

his/her fullest capability. The Board shall have six months from the date It

receives the affadavit to place the applicant In an internship. If no position has

been made available, the applicant shall be issued a license upon satisfaction of all other requirements.

(1) An applicant shall not have been professionally penalized or convicted of drug addiction, convicted of willfully violating the confidence of a client, nor have been professionally penalized or convicted of fraud.

(2) Each applicant shall provide such information as may be required on an

application form designed and furnished by the Board. No application form shall

require a picture of the applicant except where required for verification of identity for testing purposes, require information relating to citizenship, place of birth or length of state residency, nor require personal references.

(b) Where an applicant feels the Board has refused or rejected his/her application without justification; has Imposed higher or different conditions than for other applicants; or has in some other manner contributed to or caused the failure of such person's application, the applicant may appeal to the Superior Court.

(a) Where the Board has found to Its satisfaction that an applicant has been
intentionally fraudulent, or that false Information has been Intentionally supplied, It shall report Its findings to the Attorney General for further action.

§3107. Examinations

The Board shall, upon request of an applicant, administer an examination based solely upon the laws of Delaware governing the profession. In conjunction with an Independent testing organization, said examination shall be prepared, given and corrected by the Division of Professional Regulation, which shall report all examination results to the Board.

§3108 Reciprocity

(a) Upon payment to the Board of a fee and on submission of a written application on forms provided by the Board, the Board shall issue a license to a funeral service Practitioner who Is licensed as a funeral service practitioner by another state of the United States, its possessions or the District of Columbia, provided that:

(I) The requirements for ilcensure or registration In such other state,

possessions or District of Columbia at the time of licensure or registration are

equal to or greater than the requirements set forth In this Chapter as determined by the Board; and

(2) The applicant shall successfully complete an examination as prescribed by Section 3107 of this Chapter.

(b) Upon payment to the Board of a fee and on submission of written application on forms provided by the Board, the Board shall issue a limited license to a person who Is licensed as a funeral service practitioner by another state of the United States, Its possessions or the District of Columbia. provided that a similar privilege Is granted to Delaware licensees by that jurisdiction. A limited license will allow Its holder to make a removal of a dead human body in this State and to return the body to another state or country, to return dead bodies from another state or country to this State for final disposition, to fill out the family history portion of the death certificate, to sign the death certificate in the holder's capacity as a licensed funeral service practitioner, and to execute any other procedures necessary to arrange for the final disposition of a dead human body.

(c) Upon receipt of an application for reciprocity pursuant to either subsection (a) or (b) of this section, the Board shall contact each board which has previously licensed the applicant to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event there is a
disciplinary proceeding or unresolved complaint pending, the applicant shall not be licensed until the proceeding or complaint has been resolved.

§3109. Fees

The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board as well as the proportional expenses Incurred by the Division of Profes ional Regulation in its services on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for an activity not specified In this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year, the Division of Professional Regulation, or any other state agency acting In its behalf, shall compute for each separate service or activity. the appropriate fee for the coming year.

§3103. Licensure; Renewal of License

(a) Each person who has passed the written examination, who has been admitted to practice In this State by reciprocity, or who has otherwise qualified for a license shall, prior to practicing In this State, file for and obtain an occupational license from the Division of Revenue In accordance with Chapter 23 of Title 30.

The Board shall forthwith issue a license to each person who has qualified for same under the provisions of this chapter and who has complied with all rules and regulations of the Board.

(a) Each license shall expire biennially and may be renewed upon payment of the
renewal fee along with the evidence of completion of continuing education courses as may be required by the rules and regulations set forth by the Board. The Secretary of the Board shall notify every registrant of the date of expiration of his/her license and the amount of fee that shall be required at least one month prior to the expiration

thereof. Failure to give or receive such notice shall not prevent the license from

becoming invalid after Its expiration date. Any licensee whose license lapses as a

result of a failure to renew may regain his/her license within twelve months of such lapse upon payment to the Board of an amount not to exceed two times the biennial relicensure fee along with evidence of successful completion of required continuing education courses. Otherwise, licensure may be regained solely by filing a new application for licensure and fulfilling the requirements as spelled out In this Chapter.

(b) Any licensee may, upon written request, be placed on inactive status not to

exceed five years. The renewal fee of such person shall be In accordance with §3109 of

this Chapter. Such person may re-enter practice upon notification to the Board of

hislher intention to do so, Provided said person has satisfied all continuing education requirements prescribed by the Board.

(c) A former licensee, who has been penalized for the violation of a provision of this chapter, or whose license has been suspended or revoked, and who subsequently is permitted to apply for reinstatement, shall satisfy all continuing education
requirements of the Board, successfully complete the examination required by the Board, and shall pay all appropriate fees before becoming eligible for relicensure.

§3112. Complaints

Any practitioner or member of the public who has a question or complaint concerning an aspect of the practice of the profession regulated In this chapter may, during the regular business hours of a business day, contact the Board or the Division of Professional Regulation; or voice such question or complaint at a business meeting of the Board.

The Board shall investigate any complaint, including oral and anonymous complaints; and shall follow through on those complaints which, upon investigation, appear to be valid and well-founded. In cases where the complainant is known to the Board it shall, within six weeks after receipt of the complaint, notify the complainant whether or not

it will take any action in the matter. If the Board decides to take no action it

shall, by letter, state Its reasons therefor. A record shall be kept of each

complaint, formal or informal, for a period of at least five years.

§3113. Hearings and Appeals Procedures

(a) Upon receipt of a complaint against a practitioner, the Board shall determine what action, If any, it shall take. Where the Board has determined to take further
action, the matter shall be heard by the Board within three months from the date on which the complaint was received, unless circumstances surrounding the complaint warrant a lengthier investigation. The Board shall fix the time and place for a full
hearing of the matter and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing, to be personally delivered or served upon the practitioner at least thirty days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service will be effected In the same manner as with civil litigation.

(a) All hearings shall be informal without the rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this Chapter as it deems necessary. The Board's decision shall be In writing and shall include its reasons for such a decision. A copy of the decision shall be mailed Immediately to the complainant and to the

practitioner. The Board's decision shall become effective on the thirtieth day after the date it is mailed or served on the practitioner, unless there Is an appeal to the Superior Court within that time.

(a) Where either the complainant or the practitioner Is In disagreement with the action of the Board, either party may appeal the Board's decision to the Superior Court within thirty days of service, or of the postmarked date of the Board's decision. Upon such appeal, the Court shall hear the evidence de novo, and the filing of an appeal shall act as a stay of the Board's decision, pending final determination of the appeal.

§3114. Violations; Grounds for Professional Discipline

(a) Practitioners regulated under this Chapter shall be subject to those disciplinary actions set forth In §31I5 if, after a hearing, the Board finds:

(I) The willful violation of any privileged communication by the practitioner;

(2) The practitioner has employed or knowingly cooperated In fraud or material deception In order to be licensed, or be otherwise authorized to practice funeral services,

(3) Illegal, incompetent or negligent conduct In the practice of funeral
services,

(4) Conviction for excessive use or abuse of drugs, Including alcohol,
narcotics or chemicals;

(5) The practitioner has been convicted of a felony or crime involving moral turpitude;

(6) The practitioner has engaged In any dishonorable, unethical or
unprofessional conduct likely to deceive, defraud or harm the public; advertised the practice of funeral services in a false or misleading manner; knowingly performed any act which in any way assists unauthorized, unlicensed or unregistered persons to practice funeral services;

(7) The practitioner has violated a lawful provision of this Chapter or any lawful regulation established hereunder

(b) A practitioner shall be subject to non-disciplinary remedial action If, after a hearing, the Board finds that there is a danger to the practitioner's clients or to the public due to:

(1) Physical illness or loss of motor skill including, but not limited to, deterioration through the aging process; or

(1) Temporary emotional disorder or mental illness; or

(1) Permanent emotional disorder or mental Illness.

(c) If a practitioner's physical or mental capacity to practice safely is at issue in a non-disciplinary remedial proceeding, the Board may order a practitioner to submit to a reasonable physical or mental examination. Failure to comply w)th a lawful order to submit to such an examination shall render the practitioner liable to temporary suspension or revocation of license in accordance with §3115.

(d) Where a practitioner fatis to comply with the Board's request that he/she

submit to an examination or attend a hearing, the Board may petition the Superior Court to order such examination or attendance, and said Court or any judge assigned thereto shall have jurisdiction to Issue such order.

(e) Subject to the provisions of Subchapter IV, Chapter 101, Title 29 of the Delaware Code, no license shall be restricted, suspended or revoked by the Board; and no practitioner's right to practice shall be limited by the Board, until such practitioner has been given notice and an opportunity to be heard in accordance with the Administrative Procedures Act.

§3115. Remedial Actions and Disciplinary Sanctions

(a) The Board may impose any of the following sanctions, partially, singly, or In combination, when it finds that one of the conditions or violations set forth in §3114 applies to a practitioner regulated under this Chapter:

(1) Privately censure a practitioner;

(2) Publicly censure a practitioner;

(3) Issue a public letter of reprimand;

(4) Piece a practitioner on probationary status, and require the practitioner to:

(1) Report regularly to the Board upon the matters which are the basis for the probation;

(11) Limit all practice and professional activities to those areas prescribed by the Board, and/or

(111) Continue or renew his/her professional education until the required

degree of skill has been attained in those areas which are the basis of the probation;

(5) Suspend a practitioner's license; or

(6) Revoke a practitioner's license.

(b) The Board may withdraw or reduce- conditions of probation when it finds that

deficiencies requiring such action have been remedied.

(c) Where the Board has placed a practitioner on probationary status under certain deficiencies or conditions, and the Board has determined that such restrictions or conditions are being or have been violated by the practitioner, It may, after a hearing on the matter, suspend or revoke the practitioner's license.

(d) The Board may temporarily suspend a practitioner's license In advance of a

final adjudication, or during the appeals process, with twenty-four (24) hours written notice to the licensee, but only In cases where there is a clear and immediate danger to the health and safety of the public If the licensee is allowed to continue to practice. Such suspension may be appealed to the Superior Court.

(e) Where a license has been suspended due to a disability of the licensee, the Board may reinstate such license, if, after a hearing, the Board Is satisfied that the licensee is able to practice with reasonable skill and safety.

(f) As a condition for reinstatement of a suspended license, a removal from

probationary status, the Board may Impose such disciplinary or corrective measures as are authorized under this Chapter.

§3116. Practicing Funeral Services Without a License; Penalties

(a) No person shall represent him/herself to the public as a funeral director, or display any sign or advertise in any manner as being a funeral director, or provide funeral services without first obtaining from the Board the license or licenses required under the provisions of this Chapter.

(a) Where the Board has determined that a person Is practicing funeral services
within this State without having lawfully obtained a license therefor, or that a person previously ',tensed is unlawfully practicing although the license has been suspended or

revoked, the Board shall formally warn such person in writing. If the offense

continues, the Board shall make a forma) complaint to the Attorney General. The

complaint shall include all evidence known to, or in the possession of, the Board.

(a) Where a person not currently licensed as a funeral director Is tried and
convicted of unlawfully practicing funeral services in violation of this Chapter such offender shall, upon the first offense, be fined five hundred dollars ($500) or imprisoned for not less than one (1) month nor more than one (I) year, or both, and upon a second or any subsequent offense, she,' be fined not less than one thousand dollars ($1000) or imprisoned for not less than six (6) months nor more than one (1) year, or both, and shall pay all costs; provided, however, that where it Is alleged that such violation has resulted In injury to any person, the offender shall be charged and tried under the applicable provisions of Title II.

§3117. Funeral Service Practitioners Subiect to Regulation

Funeral service practitioners shall observe and be subject to all State and municipal regulations relating to the control of contagious and Infectious diseases, and any and all matters pertaining to public health, reporting to the proper health officer the same as other practitioners.

§3118. Filing of False Documents; Penalty

Whoever files or attempts to file as his/her own diploma, certificate or license of another or a forged, false affidavit of identification or qualification Is guilty of a felony and shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1000), and imprisoned for not more than three (3) years.

§3119. Cremation

(a) Where not previously Identified, human remains may not be cremated until it has been identified by either the next of kin, the person authorized to make funeral arrangements or the medical examiner. This subsection shall not apply to disposition
of human remains by any school of anatomy, medicine or dentistry.

(a) Human remains may not be transported to a crematory wtthout using a cot or a receptacle.

§3120. Processing Human Remains Where Investigation of Death Is Required

No person licensed under this Chapter shall remove or embalm human remains when he/she has Information Indicating that an Investigation of death Is required pursuant to §4706 of Title 29 of the Delaware Code,

§3121. Funeral Establishment Permit; Circumstances for Termination and Continuation

(a) The Board shall Issue a Funeral Establishment Permit when an applicant meets

the following requirements:

(1) That the funeral establishment shall be conducting funeral services from a building that Is appropriate as defined In §3101 of this Chapter.

(1) that the funeral establishment shall have In charge full time therein a person licensed In accordance with this Chapter, provided, however, that this subsection (2) shall not apply to funeral establishments maintained, operated or conducted prior to September 6, 1972.

(1) That the funeral establishment property shall be properly zoned by the local zoning authority.

(4) That the funeral establishment has acquired all appropriate business

licenses issued by the Division of Revenue.

(b) A Funeral Establishment Permit shall be conspicuously displayed in said

funeral establishment. In case of funeral services held in any private residence,

church, or lodge hall, no permit shall be required.

(a) Applications for Funeral Establishment Permits shall be made on forms supplied by the Board. Applications shall be filed biennially In such manner as determined by the Division of Professional Regulation, and shall be accompanied by a fee determined by the Board pursuant to §3109 of this Chapter.

(a) A holder of a Funeral Establishment Permit shall not allow the unauthorized practice of funeral services by him/herself or agents on or off the premises of said funeral establishment.

(a) In the event of the death, disability or circumstance that prevents the direct supervision and management by the funeral director of the funeral establishment, said permit is void, except under the following conditions:

(1) Where a funeral establishment has been operated by a funeral director
under his/her own license, his/her estate may continue the funeral establishment under the supervision and management of a licensed funeral director of this State until such time as the estate may be settled, but for no more than two (2) years after the date of the decedent's death;

(1) Where a funeral establishment has been operated by a corporation, said corporation may continue operating and assume all responsibilities of the funeral establishment as long as an officer of the corporation is a licensed funeral director.

§3122 Interstate Transportation of Human Remains

(a) Under circumstances where human remains are to be interred outside of this

State the custodian of those remains must obtain for the non-resident funeral director an Interstate transportation of human remains form prior to surrendering said remains to a non-resident funeral director. The interstate transportation of human remains form shall be designed by the Board and contain the following information:

(1) The complete legal name and address of the deceased.

(1) The certificate or license number and state of issuance of the
transporting non-resident funeral director.

(2) The complete address of the transporting non-resident funeral director,

(1) The carrier vehicle identification or registration number of the
transporting vehicle.

(2) The signature of the non-resident funeral director or his/her agent.

(b) The interstate transportation of human remains form shall be retained by the

issuing funeral director. This section shall not prevent the interstate transportation of human remains form from being incorporated Into the State's death certificate.

§3!23. Penalties

Except as provided elsewhere in this Chapter and in Title 5, Chapter 3 of the Delaware Code, any person who violates this Chapter shall be fined no less than $500 nor more than $1000, be imprisoned no less than six (6) months nor more than three (3) years, or both."

Section 2. The licenses of all persons licensed in Delaware as funeral directors on

the effective date of this Act shall continue to be valid, and- shall not in any way be Invalidated or otherwise affected by this Act.

Section 3. The five persons constituting the State Board of Funeral Service

Practitioners on the effective date of this Act shall continue in office as members of the Board of Funeral Services until the expiration of the terms for which they were appointed.

Section 4. If any provision of this Act or the application thereof to any person or

circumstances is held invalid, the invalidity shall not affect other provisions or

applications of the Act which can be given effect without the invalid provision or application, and to this end, the provisions of this Act are severable.

Section 5. The provisions of this Act shall become effective thirty (30) days after

its enactment Into law.

Approved April 12, 1988.