§ 3106 License; registration required; responsibility.
(a) No person shall, without a license, engage in the practice of funeral services; hold himself or herself out to the public in this State as being qualified to practice funeral services; use or display in connection with that person's name any sign or advertise in any manner as being a funeral director or provider of 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.
(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, including 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 and, if the individual is a sole proprietor, the establishment permit shall also be revoked.
(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.
(f) No person or entity outside of this State shall broker funeral services within this State without being a duly-licensed Delaware funeral director operating from a duly licensed Delaware funeral establishment.
§ 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, 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 fines, formal reprimands, license suspensions or revocation other than for nonpayment of license renewal fees, and probationary limitations; and shall not have 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 or 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. After a hearing at which is it determined, or a 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, the applicant may not, at the time of the application, 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) Has provided such information as may be required on an application form designed and furnished by the Board and approved by the Division. No application form shall require a picture of the applicant, except where required for verification of identity for testing purposes; information relating to citizenship, place of birth, or length of state residence; or 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, imposed higher or different standards for that person than for other applicants or licensees, or, 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; 80 Del. Laws, c. 194, § 2.;
§ 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, return the body to another state or country, return dead bodies from another state or country to this State for final disposition, complete the family history portion of the death certificate, sign the death certificate in the licensee's capacity as a licensed funeral director, and 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 presents 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 all of the following criteria:
(1) The applicant's license is in "good standing" as defined in § 3107(a)(5) through (7) of this title.
(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 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 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, 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 licensee may reenter practice upon notification to the Board of an intention to do so, provided the licensee 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 allowed his or her 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 to the applicant complying with all of the following:
(1) Completion of the continuing education requirements set forth in subsection (b) of this section.
(2) Formal submission of a completed, written application on forms provided by the Board.
(3) Successful completion of the state law examination required by § 3105 of this title.
(4) 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 1 or more of the following:
(1) The funeral director has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a funeral director, 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) The funeral director has illegally, incompetently, or negligently practiced funeral services.
(3) The funeral director has 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 of the conviction.
(4) The funeral director has used or abused drugs either in the past or currently. For the purposes of this subsection, "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) The funeral director has engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities.
(6) The funeral director has violated a lawful provision of this chapter, or any lawful regulation established under this chapter.
(7) The practitioner's license as a funeral director was suspended or revoked, or other disciplinary action was taken by the appropriate licensing authority in another jurisdiction, provided 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 1 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 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, in his or her capacity as a funeral director in another state, has been subjected to discipline, or the practitioner's license as a funeral director in another state 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.
(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 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.
(a) All complaints shall be received and investigated by the Division 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.
(b) 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 Attorney General to issue a cease and desist order, after formally warning the unlicensed practitioner in accordance with this chapter.
(c) Any complaints involving allegations of unprofessional conduct or incompetence shall be investigated by the Division.
§ 3114 Disciplinary sanctions.
(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that 1 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 $1,000 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 which alleges a violation of § 3112 of this title is filed with the Board pursuant to § 8735 of Title 29, 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 and 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 or 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 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 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.