§ 3106 License; registration required; responsibility.
(a) No person shall engage in the practice of funeral services or hold himself or herself out to the public in this State as being qualified to practice funeral services; or use in connection with that person's name, or display any sign or advertise in any manner as being a funeral director or provide funeral services, or otherwise assume or use, any title or description conveying or tending to convey the impression that the person is qualified to practice funeral services, unless such person has been duly licensed under this chapter.
(b) Practitioners regulated under this chapter shall observe and be subject to all federal, 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 office the same as other practitioners.
(c) Whenever a license to practice as a funeral director in this State has expired or been suspended or revoked, it shall be unlawful for the person to practice funeral services in this state.
(d) No person shall act as an intern or hold himself or herself out as a funeral services intern unless such person has been duly registered by the Board under this chapter.
§ 3107 Qualifications of applicants for licensure; judicial review; report to Attorney General.
(a) An applicant who is applying for licensure as a funeral director under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person:
(1) Has graduated from an accredited high school, or its equivalent, and has received an Associate Degree or its equivalent in mortuary science, consisting of 60-credit hours, from a school fully accredited by the American Board of Funeral Services Education, or its successor.
(2) Has achieved the passing score, as established by an independent testing service, on the written, standardized examination on funeral services recognized by the Conference of Funeral Service Examining Boards, or its successor.
(3) Has achieved the passing score, as established by an independent testing service, on a written, validated examination based solely on the laws of Delaware governing the profession of funeral services. In conjunction with the independent testing service, said examination shall be administered by the Division of Professional Regulation, which shall have sole authority to contract for the validated examination.
(4) Has satisfactorily completed an internship in this state of 1 year's duration, under the auspices of a licensed Delaware funeral director. An applicant is responsible for arranging the internship. If, after contacting 20 firms, the applicant is unable to obtain an internship within 6 months, the applicant shall so stipulate in an affidavit presented to the Board. The Board shall determine whether the applicant has pursued a position as intern to the applicant's fullest capability. The Board shall have 6 months from the date it receives the affidavit 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 for licensure.
(5) Shall not have been the recipient of any administrative penalties regarding the applicant's practice of funeral services, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations and/or has not entered into any "consent agreements" which contain conditions placed by a Board on the applicant's professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure.
(6) Shall not have any impairment related to drugs, alcohol or a finding of mental incompetence by a physician that would limit the applicant's ability to undertake the practice of funeral services in a manner consistent with the safety of the public.
(7) Shall not have a criminal conviction record, nor pending criminal charge relating to an offense, the circumstances of which substantially relate to the practice of funeral services. Applicants who have criminal conviction records or pending criminal charges shall require appropriate authorities to provide information about the record or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the record or charge is substantially related to the practice of funeral services. However, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(7), if it finds all of the following:
a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service.
b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service.
c. The applicant is capable of practicing funeral services in a competent and professional manner.
d. The granting of the waiver will not endanger the public health, safety or welfare.
(8) Shall provide such information as may be required on an application form designed and furnished by the Board and approved by the Division of Professional Regulation. 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 residence or require personal references. The applicant shall not be required to submit a police report as a condition of application for licensure or internship.
(b) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.
(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification, has imposed higher or different standards for that person than for other applicants or licensees, or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.
(d) The Board shall not violate an applicant's rights during the application and internship process for licensure as a funeral director in this State.
66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, §§ 11-14; 74 Del. Laws, c. 262, § 66; 75 Del. Laws, c. 436, § 35; 77 Del. Laws, c. 199, § 26; 78 Del. Laws, c. 44, §§ 50, 51.;
§ 3108 Limited license.
Upon payment to the Board of a fee, established by the Division, and completion of an application on forms provided by the Board, the Board shall issue a limited license to a person, who is validly licensed as a funeral director by another state of the United States, its possessions, territory or the District of Columbia; provided, that a similar privilege is granted by that jurisdiction to Delaware licensed funeral directors. A limited license will allow the licensee to make a removal of a dead human body in this State; 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 complete the family history portion of the death certificate; to sign the death certificate in the licensee's capacity as a licensed funeral director; and to execute any other procedures necessary to arrange for the final disposition of a dead human body.
§ 3109 Reciprocity.
(a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who shall present proof of current licensure in good standing in another state, the District of Columbia or territory of the United States, whose standards for licensure are substantially similar to those of this State, as determined by the board, and who meets the following criteria:
(1) The applicant's license is in "good standing" is defined in § 3107(a)(5) through (7) of this title; and
(2) The applicant has achieved a passing score on the exam required by § 3107(a)(3) of this title.
(b) An applicant, who is licensed in a state whose standards are not substantially similar to those of this State, shall have practiced for at least 3 of the past 5 years in another jurisdiction; provided however, that the applicant meets all other qualifications for reciprocity in this section.
(c) An applicant from a state that separately licenses funeral directors and embalmers must have both licenses to qualify for licensure under subsection (b) of this section.
(d) It shall be the responsibility of the applicant to provide verification of all information required by § 3107 of this title.
§ 3110 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 Professional Regulation in its service on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the licensure biennium.
§ 3111 Licensure; renewal of license; lapsed license; inactive status; special exception.
(a) The Board shall issue a license to each applicant, who meets the requirements of this title for licensure as a funeral director and who pays the fees established under § 3110 of this title. Prior to practicing in this State, each applicant shall file for and obtain an occupational license from the Division of Revenue in accordance with Chapter 23 of Title 30.
(b) Each license shall be renewed biennially, in such manner as is determined by the Division, and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the Board.
(c) Any licensee whose license lapses as a result of a failure to renew may regain the license within 12 months of such lapse upon payment to the Board of a fee established by the Division, and evidence of successful completion of continuing education courses required by the Board.
(d) Any licensee, upon written request to the Board, may be placed on inactive status not to exceed 5 years. Such person may reenter practice upon notification to the Board of an intention to do so, provided said person has satisfied all continuing education requirements prescribed by the Board. The fee to reenter practice shall be in accordance with § 3110 of this title.
(e) Notwithstanding subsection (b) of this section, in the event a funeral director, who was previously licensed in Delaware, and who allowed that funeral director's license to lapse for a period in excess of 12 months, is applying for licensure under this section, the Board shall grant a license to such applicant, subject, however, to completion of the continuing education requirements set forth in subsection (b) of this section; formal submission of a completed written application on forms provided by the Board; successful completion of the state law examination required by § 3105 of this title; and payment of a reinstatement fee established by the Division.
§ 3112 Grounds for discipline.
(a) A practitioner licensed under this chapter shall be subject to disciplinary actions set forth in § 3114 of this title, if, after a hearing, the Board finds that the funeral director has:
(1) Employed or knowingly cooperated in fraud or material deception in order to acquire a license as a funeral director; has impersonated another person holding a license, or allowed another person to use that practitioner's license, or aided or abetted a person not licensed as a funeral director to represent himself or herself as a funeral director;
(2) Illegally, incompetently or negligently practiced funeral services;
(3) Been convicted of a crime that is substantially related to the provision of funeral services or any offense which would limit the ability of the practitioner to carry out the practitioner's professional duties with due regard for the health and safety of the public; a copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor;
(4) Excessively used or abused drugs either in the past or currently; excessive use or abuse of drugs shall mean any use of narcotics, controlled substances, or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs the practitioner's ability to perform the work of a funeral director;
(5) Engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities;
(6) Violated a lawful provision of this chapter, or any lawful regulation established thereunder;
(7) Had that practitioner's license as a funeral director suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record; and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute one or more of the acts defined in this chapter. Every person licensed as a funeral director in this State shall be deemed to have given consent to the release of this information by the Board of Funeral Services or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses;
(8) Failed to notify the Board that the practitioner's license as a funeral director in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof;
(9) A physical condition such that the performance of funeral services is or may be injurious or prejudicial to the public; or
(10) Has solicited a customer or potential customer to grant a power of attorney to the funeral director, or a business associate, employee, or family member of the funeral director, or to make any of the foregoing an heir of the customer or potential customer.
(b) Where a practitioner fails to comply with the Board's request that the practitioner attend a hearing, the Board may petition the Superior Court to order such attendance, and the said Court or any judge assigned thereto shall have the jurisdiction to issue such order.
(c) Subject to this chapter and subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board, and no practitioner's right to practice funeral services 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.
§ 3113 Complaints.
All complaints shall be received and investigated by the Division of Professional Regulation in accordance with § 8735 of Title 29, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation.
When it is determined that an individual is engaging, or has engaged, in the practice of funeral services, or is using the title "funeral director" and is not licensed under the laws of this State, the Board shall apply to the Office of the Attorney General to issue a cease and desist order after formally warning the unlicensed practitioner in accordance with this chapter.
Any complaints involving allegations of unprofessional conduct or incompetence shall be investigated by the Division of Professional Regulation.
§ 3114 Disciplinary sanctions.
(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that one or more of the conditions or violations set forth in § 3112 of this title applies to a practitioner regulated by this chapter:
(1) Issue a letter of reprimand;
(2) Censure a practitioner;
(3) Place a practitioner on probationary status, and require the practitioner to:
a. Report regularly to the Board upon the matters which are the basis of the probation;
b. Limit all practice and professional activities to those areas prescribed by the Board;
(4) Suspend any practitioner's license;
(5) Revoke any practitioner's license;
(6) Impose a monetary penalty not to exceed $500 for each violation.
(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.
(c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person's license, pending a hearing, upon the written order of the Secretary of State or the Secretary's designee, with the concurrence of the Board chair or the Board chair's designee. An order temporarily suspending a license may not be issued unless the person or the person's attorney received at least 24 hours' written or oral notice before the temporary suspension so that the person or the person's attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. An order of temporary suspension pending a hearing may remain in effect for no longer than 60 days from the date of the issuance of the order unless the temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license has been temporarily suspended pursuant to this section may request an expedited hearing. The Board shall schedule the hearing on an expedited basis, provided that the Board receives the request within 5 calendar days from the date on which the person received notification of the decision to temporarily suspend the person's license.
(d) 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.
(e) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter.
§ 3115 Hearing procedures.
(a) If a complaint is filed with the Board pursuant to § 8735 of Title 29, alleging violation of § 3112 of this title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing shall be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29.
(b) All hearings shall be informal without use of 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 decision. The Board's decision shall be mailed immediately to the practitioner.
(c) Where the practitioner is in disagreement with the action of the Board, the practitioner may appeal the Board's decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to the practitioner. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with § 10144 of Title 29.
§ 3116 Reinstatement of a suspended license; removal from probationary status; replacement of license.
(a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation.
(b) Where a license or registration has been suspended due to the licensee's inability to practice pursuant to this chapter, the Board may reinstate such license, if, after a hearing, the Board is satisfied that the licensee is again able to perform the essential functions of a funeral director, with or without reasonable accommodations; and/or, there is no longer a significant risk of substantial harm to the health and safety of the individual or others.
(c) Applicants for reinstatement must pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this chapter may also be required, as appropriate.
(d) A new license to replace any license lost, destroyed or mutilated may be issued subject to the rules of the Board. A charge shall be made for such issuance.