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

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 16, 2015.

Effective Date: January 15, 2016.

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 and to administer a registration program. Section 54.1-2814.1 of the Code of Virginia authorizes the board to prescribe procedures for registration as a cremator.

Purpose: The goal of the proposal is to allow use of a more efficient and cost-effective retort or unit that emits fewer air particulates and uses less fuel. Those aspects of the unit contribute to efforts to protect the environment and the health and safety of the public.

Rationale for Using Fast-Track Process: This amendment updates the current regulation for consistency with newer technology but maintains the policy of not allowing the commingling of cremains by a crematory. The amendment will facilitate but not mandate usage of the newer type of retort or unit; it is not controversial and was unanimously supported by board members.

Substance: Currently, regulations do not allow a crematory to cremate the human remains of more than one person simultaneously in the same retort or cremation unit. This amendment will allow cremation of more than one person provided the remains are separated into different chambers within the same retort or unit.

Issues: The primary advantage to the public is the fuel efficiency and the emission of fewer air particulates; it will facilitate usage of a more efficient cremation unit by crematories. There are no disadvantages because the policy of separating cremains is not amended.

There are no advantages and disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Funeral Directors and Embalmers (Board) proposes to allow crematories to use a newer and more fuel efficient cremation technology.

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

Estimated Economic Impact. These regulations establish standards for crematories. Currently, crematories are not allowed to cremate human remains of more than one person simultaneously in the same retort or cremation unit. However, according to Department of Health Professions (DHP), there are new retort units with multiple incineration chambers available in the cremation industry which make it possible to cremate the remains of more than one person simultaneously without comingling the cremains.

The Board proposes to allow the use of the newer cremation technology provided the remains are separated into different chambers within the same retort or unit. According to DHP, the units with multiple chambers are more fuel efficient. They also take up less space than two single units. Thus, crematories that utilize such technology are likely to realize some savings in their fuel and space costs and emit fewer air particulates.

Businesses and Entities Affected. The proposed regulations will affect crematories that choose to use the newer type of cremation units. While the Board has no data on the type of cremation units used by crematories, there are currently a total of 106 licensed crematories in Virginia.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

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

Effects on the Use and Value of Private Property. The proposed changes will allow the use of more fuel efficient technology and make it possible for crematories to realize some savings if they invest in newer technology. Thus, a small positive impact on their profitability and value may be expected if they choose to implement the new technology.

Small Businesses: Costs and Other Effects. The proposed changes do not impose any costs on small businesses. All crematories are considered small businesses. Thus, other effects on small businesses are the same as discussed above.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed changes do not have an adverse impact on small businesses.

Real Estate Development Costs. No impact on real estate development costs is expected.

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 for amendments to 18VAC65-20.

Summary:

The amendments allow a crematory to cremate human remains of more than one person in the same unit provided the remains and ashes are kept in separate chambers.

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. 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 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 chamber of the retort or cremation unit, 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.