Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (amending 18VAC65-20-436).

Statutory Authority: §§ 54.1-2400 and 54.1-2803 of the Code of Virginia.

Public Hearing Information:

October 7, 2014 - 10 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, 2nd Floor, Suite 201, Board Room #2, Henrico, Virginia 23233

Public Comment Deadline: December 5, 2014.

Agency Contact: Lisa Russell Hahn, Executive Director, Board of Funeral Directors and Embalmers, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4424, FAX (804) 527-4637, or email lisa.hahn@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia establishes the general powers and duties of health regulatory boards including the responsibility of the Board of Funeral Directors and Embalmers to promulgate regulations, administer a registration and renewal program, and discipline regulated professionals.

Chapter 377 of the 2010 Acts of the Assembly amended § 54.1-2818.1 of the Code of Virginia and provided the specific mandate to adopt regulations for identification of human remains as a prerequisite for cremation.

Purpose: The intent of the regulatory action is compliance with the second enactment of Chapter 377 of the 2010 Acts of the Assembly. While the statute is fairly explicit about the prerequisites for cremation, the regulation further amplifies how visual identification can be done – through viewing the remains or a photograph or by use of unique identifiers and markings. If positive identification must be used, the regulations specify who may be consulted for that purpose.

In order to ensure that authorization for cremation can be obtained in accordance with § 54.1-2818.1 in a timely manner, the proposed regulation expands on the statutory mandate for visual identification or, if that is not feasible, positive identification. Visual identification may be accomplished by viewing unique identifiers or markings (tattoos, birth marks, etc.). If positive identification must be used, a crematory may consult with law enforcement for fingerprints, DNA, etc., with the local medical examiner, or with medical personnel at a hospital or other facility. The proposed amendments clarify the statute for better implementation, and families or designated persons are able to achieve closure in a more humanely and timely manner. Proper identification of human remains prior to cremation is essential to the health, safety, and welfare of the public because it is necessary to ensure that misidentified or unidentified persons are not cremated. Cremation eliminates the possibility that a lost loved one could later be identified or that the remains may provide evidence in a criminal investigation.

Substance: Section 54.1-2818.1 of the Code of Virginia requires "visual identification" of the deceased before cremation; proposed regulations clarify that visual identification may be made by viewing unique identifiers or markings on the remains. Further, the Code of Virginia allows the use of positive identification if visual identification is not possible. Proposed regulations clarify that a crematory may use positive identification of the deceased in consultation with law enforcement, a medical examiner, or medical personnel.

Issues: The primary advantage to the public is further clarification of the statutory requirements for identification of a body prior to cremation. The proposed amendments allow the statute to be more clearly implemented, and families or designated persons are able to achieve closure in a more humanely and timely manner. There are no disadvantages. While there are no advantages or disadvantages to the agency, greater clarity of law and regulation can resolve questions and issues that are sometimes fielded by board staff.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. To comply with the second enactment of Chapter 377 of the 2010 Acts of the Assembly, the Board of Funeral Directors and Embalmers (Board) proposes to amend its regulations by 1) adding references to the specific Code of Virginia section that sets legislative rules for identification of decedents before they are cremated, 2) adding language that specifies decedents may be identified by viewing unique identifiers or markings on the decedent and 3) clarifying that crematories must consult with law enforcement, a medical examiner or medical personnel before identifying a body when visual identification is not possible.

Result of Analysis. Benefits likely outweigh costs for these proposed regulatory changes.

Estimated Economic Impact. Current regulations note that crematories must take certain actions in accordance with the Code of Virginia. The Board now proposes to add the specific Code references (§ 54.1-2818.1, § 54.1-2825 and § 54.1-2984) to which regulated entities can refer in the Code. The Board also proposes to specify that decedents may be identified by unique identifiers or markings and that crematories must identify decedents for whom visual identification is not possible in consultation with law enforcement, a medical examiner or medical personnel.

Adding Code references and clarifying that positive identification (with fingerprints, DNA, dental records, etc.) must be made in consultation with official entities who would ascertain who the decedent is will benefit readers of these regulations and owners of crematories by making the regulations more understandable. No entity is likely to incur costs on account of these changes.

Adding language to these regulations that allows visual identification of a decedent's unique identifiers or markers (scars, birth marks, tattoos, etc.) will benefit family members or friends who have to identify their deceased loved ones. These individuals will have the option of only viewing the identifying markers on the deceased, or even pictures of the identifying markers, which may make identification a less traumatic experience. Again, no entity is likely to incur costs on account of this change.

Businesses and Entities Affected. The Department of Health Professions reports that there are 97 crematories registered in the Commonwealth.

Localities Particularly Affected. No localities will be particularly affected by these proposed regulations.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur any additional expense on account of these regulatory changes.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur any additional expense on account of these regulatory changes.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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

Summary:

The proposed amendments (i) specify that decedents may be identified by viewing unique identifiers or markings on the decedents and (ii) clarify that crematories must consult with law enforcement, a medical examiner, or medical personnel before identifying a body when visual identification is not possible.

18VAC65-20-436. Standards for registered crematories or funeral establishments relating to cremation.

A. Authorization to cremate.

1. A crematory shall require a cremation authorization form executed in person or electronically in a manner that provides a copy of an original signature in accordance with § 54.1-2818.1 of the Code of Virginia.

2. The cremation authorization form shall include an attestation of visual identification of the deceased from a viewing of the remains or a photograph signed by the person making the identification. Visual identification may be made by viewing unique identifiers or markings on the remains. The identification attestation shall either be given on the cremation authorization form or on an identification form attached to the cremation authorization form.

3. In the event visual identification is not feasible, a crematory may use other positive identification of the deceased in consultation with law enforcement, a medical examiner, or medical personnel as a prerequisite for cremation pursuant to § 54.1-2818.1 of the Code of Virginia.

B. Standards for cremation. The following standards shall be required for every crematory:

1. Every crematory shall provide evidence at the time of an inspection of a permit to operate issued by the Department of Environmental Quality (DEQ).

2. A crematory shall not knowingly cremate a body with a pacemaker, defibrillator or other potentially hazardous implant in place.

3. A crematory shall not cremate the human remains of more than one person simultaneously in the same retort, unless the crematory has received specific written authorization to do so from the person signing the cremation authorization form.

4. A crematory shall not cremate nonhuman remains in a retort permitted by DEQ for cremation of human remains.

5. Whenever a crematory is unable to cremate the remains within 24 hours upon taking custody thereof, the crematory shall maintain the remains in refrigeration at approximately 40° Fahrenheit or less, unless the remains have been embalmed.

C. Handling of human remains.

1. Human remains shall be transported to a crematory in a cremation container and shall not be removed from the container unless the crematory has been provided with written instructions to the contrary by the person who signed the authorization form. A cremation container shall substantially meet all the following standards:

a. Be composed of readily combustible materials suitable for cremation;

b. Be able to be closed in order to provide complete covering for the human remains;

c. Be resistant to leakage or spillage; and

d. Be rigid enough for handling with ease.

2. No crematory shall require that human remains be placed in a casket before cremation nor shall it require that the cremains be placed in a cremation urn, cremation vault or receptacle designed to permanently encase the cremains after cremation. Cremated remains shall be placed in a plastic bag inside a rigid container provided by the crematory or by the next-of-kin for return to the funeral establishment or to the next-of-kin. If cremated remains are placed in a biodegradable container, a biodegradable bag shall be used. If placed in a container designed for scattering, the cremated remains may be placed directly into the container if the next-of-kin so authorized in writing.

3. The identification of the decedent shall be physically attached to the remains and appropriate identification placed on the exterior of the cremation container. The crematory operator shall verify the identification on the remains with the identification attached to the cremation container and with the identification attached to the cremation authorization. The crematory operator shall also verify the identification of the cremains and place evidence of such verification in the cremation record.

D. Recordkeeping. A crematory shall maintain the records of cremation for a period of three years from the date of the cremation that indicate the name of the decedent, the date and time of the receipt of the body, and the date and time of the cremation and shall include:

1. The cremation authorization form signed by the person authorized by law to dispose of the remains and the form on which the next-of-kin or the person authorized by § 54.1-2818.1 of the Code of Virginia to make the identification has made a visual identification of the deceased or evidence of positive identification if visual identification is not feasible;

2. The permission form from the medical examiner;

3. The DEQ permit number of the retort used for the cremation and the name of the retort operator; and

4. The form verifying the release of the cremains, including date and time of release, the name of the person and the entity to whom the cremains were released and the name of the decedent.