Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (adding 18VAC65-20-236).

Statutory Authority: §§ 54.1-2400 and 54.1-2805 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 6, 2019.

Effective Date: February 21, 2019.

Agency Contact: Corie Tillman Wolf, Executive Director, Board of Funeral Directors and Embalmers, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4479, FAX (804) 527-4471, or email fanbd@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of§ 54.1-2400 of the Code of Virginia, which provides the Board of Funeral Directors and Embalmers the authority to promulgate regulations to administer the regulatory system. Section 54.1-2805 of the Code of Virginia authorizes the board to promulgate regulations allowing students to assist with embalming in funeral establishments.

Purpose: The purpose of the amended regulation is compliance with the legislation passed by the General Assembly authorizing mortuary school students to assist with embalming in licensed funeral establishments in accordance with regulations promulgated by the board. The regulations are necessary to ensure a safe environment for such training, appropriate instruction in embalming, and awareness by consumers that training is occurring is the establishment. Regulations will protect not only the students and instructors but will further protect the safety and welfare of the public by having future licensees become more proficient embalmers.

Rationale for Using Fast-Track Rulemaking Process: Legislation passed by the General Assembly authorizes "a person who is duly enrolled in a mortuary education program in the Commonwealth may assist in embalming while under the immediate supervision of a funeral service licensee or embalmer with an active, unrestricted license issued by the Board, provided that such embalming occurs in a funeral service establishment licensed by the Board and in accordance with regulations promulgated by the Board." The regulations promulgated by the board are intended to facilitate such practice while protecting consumers of funeral services. They were developed in conjunction with the mortuary science programs, are consistent with their accrediting standards, and were unanimously adopted by the board. Therefore, the amendments should not be controversial.

Substance: To comply with the legislation of the 2018 General Assembly, regulations require (i) the establishment participating in training to have a current, unrestricted license and meet certain accreditation standards for training; (ii) specific instruction in embalming for students in the context of an embalming laboratory course; (iii) a limitation on the number of students who may be supervised and a requirement that the supervisor be physically present with the student who is assisting with embalming tasks; (iv) information on the embalming authorization form noting participation of students in the establishment; and (v) the name of the student and supervisor on the embalming report.

Issues: The advantage to the public is students who seek to become funeral service licensees will have a wider range of opportunities for embalming and training and will be more proficient after graduation. The mortuary school programs will see significant savings from a reduction in the number of cadavers they will need to purchase. There are no disadvantages for the public; there are adequate safeguards in the regulation to ensure an embalming with student assistance will be done properly under close supervision. There are no advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 186 of the 2018 Acts of Assembly,¹ the Board of Funeral Directors and Embalmers (Board) proposes to establish requirements for students assisting with embalming at licensed funeral establishments.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Practical experience in embalming is a required part of obtaining a degree in mortuary science. Currently, such practical experience can only be obtained at the two mortuary education programs in the Commonwealth: John Tyler Community College and Tidewater Community College.

Chapter 186 established that "a person who is duly enrolled in a mortuary education program in the Commonwealth may assist in embalming while under the immediate supervision of a funeral service licensee or embalmer with an active, unrestricted license issued by the Board, provided that such embalming occurs in a funeral service establishment licensed by the Board and in accordance with regulations promulgated by the Board." In this action, the Board establishes rules by which this can happen.

This is beneficial in that it potentially provides the opportunity for mortuary students to have a greater range of experience in embalming, thus better preparing them to practice as a funeral service licensee. Also, according to the Department of Health Professions (DHP), the quality of available cadavers would typically be higher at funeral service establishments compared to those available to the community colleges.

Further, there may be significant cost savings to the mortuary school programs at the community colleges. One community college reported that it "will cut budget costs for the practical embalming component that is required by accrediting agency. Our program spends $2,100 per cadaver for the cadaver, transportation and cremation which equates to about $80,000 per academic year."² Through the enabling legislation and subsequent regulations, the program estimates that those costs will be cut in half.

Businesses and Entities Affected. According to DHP, there are 437 licensed funeral establishments that could potentially serve as a training site for student embalmers. All or most likely qualify as small businesses. There are two community colleges in the Commonwealth that have mortuary education programs.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments may result in mortuary students assisting in licensed mortuary establishments. The value of these private businesses is unlikely to be significantly affected.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments do not significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

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¹See http://leg1.state.va.us/cgi-bin/legp504.exe?181+ful+CHAP0186

²Source: Department of Health Professions

Agency's Response to Economic Impact Analysis: The Board of Funeral Directors and Embalmers concurs with the analysis of the Department of Planning and Budget.

Summary:

Pursuant to Chapter 186 of the 2018 Acts of Assembly, which allows a mortuary student to assist with embalming at a funeral establishment, the amendments require that (i) an establishment participating in student training has a current, unrestricted license and meets certain accreditation standards for training; (ii) students receive specific instruction in the context of an embalming laboratory course; (iii) a supervisor may supervise no more than three students and must be physically present when a student is assisting with embalming tasks; (iv) the embalming authorization form discloses the possible participation of students in embalming; and (v) the embalming report contains the name of the student and the signature of the supervisor if a student assisted in embalming.

18VAC65-20-236. Requirements for students assisting with embalming.

In accordance with § 54.1-2805 of the Code of Virginia, a student who is duly enrolled in a mortuary education program in the Commonwealth and who is not registered with the board as a funeral intern may assist in embalming in a funeral service establishment provided the following requirements are met:

1. The funeral establishment holds a current, unrestricted licensed issued by the board;

2.The funeral establishment and funeral service licensee or embalmer providing student supervision meet the accreditation standards of the American Board of Funeral Service Education and the Commission on Accreditation for off-campus embalming instruction;

3. Students shall receive instruction and shall observe embalming of a dead human body prior to assisting with an embalming in a funeral service establishment and shall assist with embalming in conjunction with an embalming laboratory course;

4. A funeral service licensee or embalmer may supervise up to three students under his immediate supervision, which shall mean the supervisor is physically and continuously present in the preparation room with the students to supervise each task to be performed;

5. A funeral service establishment shall include on the form granting permission to embalm information disclosing that the establishment is a training facility for mortuary education students and that a student may be assisting the licensee with embalming; and

6. The embalming report shall include the names of students assisting with an embalming and shall be signed by the supervisor.