Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (amending 18VAC65-20-10, 18VAC65-20-50, 18VAC65-20-60, 18VAC65-20-70, 18VAC65-20-130, 18VAC65-20-151, 18VAC65-20-152, 18VAC65-20-153, 18VAC65-20-154, 18VAC65-20-170, 18VAC65-20-171, 18VAC65-20-240, 18VAC65-20-400, 18VAC65-20-435, 18VAC65-20-436, 18VAC65-20-440, 18VAC65-20-500, 18VAC65-20-510, 18VAC65-20-580, 18VAC65-20-700).

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

Public Hearing Information:

January 14, 2020 - 10 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, 2nd Floor, Suite 201, Board Room 4, Henrico, Virginia.

March 10, 2020 - 9:45 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, 2nd Floor, Suite 201, Training Room 2, Henrico, Virginia.

Public Comment Deadline: March 20, 2020.

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 of the Board of Funeral Directors and Embalmersare promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the board with authority to promulgate regulations to administer the regulatory system. Section 54.1-2803 of the Code of Virginia provides the specific powers and duties of board.

Purpose: The purpose of this regulatory action is to provide clear, enforceable provisions. Both the licensees and the public need clarity on these matters so that public health and safety is not jeopardized.

Substance: The board is amending its regulations governing the practice of funeral services by clarifying certain provisions, updating provisions, and strengthening rules for surface transportation and removal and courtesy cards.

Changes include a new definition for "affiliation" of a branch to the main establishment, an allowance for newly licensed persons to be exempt from continuing education for the first renewal, an allowance for a funeral establishment experiencing an emergency to utilize the building in another establishment until restoration, a requirement for a registered surface transportation and removal service to hold liability insurance, an allowance for a crematory to test operation of a retort before it is registered, and establishment of grounds for disciplinary action in the case of an inappropriate sexual relationship between a supervisor and funeral intern.

Issues: The primary advantage of the amendments to the public is assurance of proper care of the human remains of loved ones and retention of important documents in event of a change of ownership. There are no disadvantages to the public. The only advantage to the Commonwealth is more clarity in regulation, which will assist the board in interpretation of the law. There are no disadvantages to 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 amend 18VAC65-20 Regulations of the Board of Funeral Directors and Embalmers in order to implement the results of a periodic review. Accordingly, the Board proposes to make a number of changes to the regulation, the majority of which serve to clarify or update existing requirements. Examples of such changes include: allowing the board to send renewal notices electronically, defining "affiliation" as it applies to branches or chapels that may be affiliated with a funeral home, moving information on renewal fees and late fees from the text to the table that contains the overall fee structure that is in the current regulation, and adding "inappropriate sexual contact" between a supervisor and an intern to the list of practices that are considered unprofessional conduct. The following section summarizes the more substantive changes.

Background. The proposed amendments were developed as part of a periodic review completed in 2018, and thus affect almost all aspects of service provision. The most substantive changes are briefly summarized below:

1. Providers of Surface Transport and Removal (ST&R) services would be required to inform the Board within 14 days (rather than 30) if the manager of record has changed. This would make the requirements consistent with the requirements for managers of record at funeral establishments and crematories (18VAC65-20-60 Accuracy of information).

2. Providers of ST&R services would be required to provide proof of bonding or liability insurance coverage related to the operation of the service (18VAC65-20-400 Registration of surface transportation and removal services).

3. Courtesy card holders would be explicitly prohibited from "establishing or engaging generally in the business of funeral directing and embalming in Virginia" (18VAC65-20-440 Courtesy Cards). The courtesy card is intended to allow limited practice (removal, arranging, embalming) in occasional circumstances, but not general practice in Virginia. Such circumstances typically arise when a death occurs in Virginia but the family of the deceased is in another state and wishes to hire funeral director who is familiar to them from that state.

4. In order to renew a courtesy card, the courtesy card holder would be required to provide evidence of an active and unrestricted license for funeral service, funeral directing, or embalming from the licensing authorities in the state in which they practice (18VAC65-20-130 Renewal of license; registration). While these requirements are already in place for first-time courtesy card applicants, renewal applicants are currently only required to submit a form and a fee.

5. Licensees applying for their first renewal would now be exempt from the continuing education requirements (18VAC65-20-151 Continued competency requirements for renewal of an active license).

6. In the event of an emergency that prevents the use of a funeral establishment the impacted service providers may receive approval from the Board to continue to operate out of another licensed funeral establishment for up to 60 days, with a 30-day extension if they show good cause (18VAC65-20-170 Requirements for an establishment license). Although the Board previously allowed this as a hardship waiver, the proposed addition of this provision to the regulations would allow small or independent funeral homes that don't have branches or affiliates to plan for contingencies that might require evacuating the establishment for an extended period of time.

7. Applicants for funeral service licensure by examination were previously required to submit an application package at least 30 days prior to the date of a state examination, and could have provided unofficial mortuary school transcripts in their applications. However, the state examination is now computerized, so the proposed amendment would remove the 30-day requirement and specifically require official transcripts (18VAC65-20-240 Requirements for funeral service licensure by examination).

8. In instances where the funeral establishment is sold, and when transferred documents include preneed contracts, the new owner would be required to retain and maintain those documents in accordance with the existing regulations that currently apply to price lists, itemized statements, and embalming reports (18VAC65-20-700 Retention of Documents).

Estimated Benefits and Costs. In general, the proposed amendments add clarity to a number of current requirements, which is likely to benefit regulants and consumers. According to the Department of Health Professions, items 1 and 2 relating to ST&R services have been promulgated in response to specific incidents that had been reported to the Board where customers have been "left high and dry" without a registered ST&R provider and/or suffered delays. Requiring ST&R businesses to report updated information regarding the manager of record may help the Board respond to such situations in a timely manner.

However, greater consumer protection also incurs certain costs. For any ST&R service providers that may have found it profitable to operate without liability insurance, the proposed requirement is clearly costly. Such firms may be able to absorb the costs, pass them on to customers, or may have to exit the industry depending on their size, the competition they face, and whether or not they already have liability insurance. Smaller providers that find it prohibitively expensive to acquire liability insurance may also have been less likely to implement all of the necessary safety precautions for transporting human remains. On the other hand, providers who newly acquire liability insurance as a result of this proposal and remain in business may pass along their additional costs to their customers. Hence, consumers may face a mix of costs and benefits depending on the providers in their local market.

Although obtaining liability insurance could impose a cost to ST&R services as discussed, it appears that most funeral establishments already require evidence of liability insurance when contracting with ST&R service providers. The Department of Planning and Budget contacted two small, family-owned Virginia licensed ST&R companies during its review. Both companies stated that they currently maintain liability insurance, and that it is required by the funeral homes that they work with. To the extent that surviving individuals or families directly contract with ST&R companies, it is possible that they did not inquire about or require liability insurance. The proposal to require liability insurance may thus be beneficial for such individuals or families.

Items 3 and 4 relating to courtesy card holders could potentially limit operations in the state by those without a Virginia license, to the extent that courtesy card holders were previously operating with a lapsed or restricted license, or exceeding the privileges afforded to them by the card. At the same time, items 5 and 7, related to first-time license applicants and first-time renewals respectively, make the requirements more flexible, thereby marginally benefiting individuals wishing to obtain a Virginia license. This is likely to benefit current (1,463) and future funeral service licensees and the customers they serve.

Items 6 and 8 potentially benefit small and independent funeral establishments, including crematoriums. Larger funeral service providers with multiple branches and facilities may have been able to respond to a flood or fire by relocating any remains and scheduled funerals within their service network at fairly short notice. However, smaller establishments with a single location would normally stand to lose business to a competitor. The ability to plan for such emergencies and contract with other establishments to use their facility enables the independent facilities to keep their customers and honor their contracts. Similarly, the provision that the new owners of a funeral services business maintain preneed contracts could be used to encourage individuals and families to enter into preneed contracts with small independent funeral homes without worrying about whether those establishments will still be in business when their services become necessary. This in turn could benefit the smaller providers by allowing them to "lock in" some future demand for their services.

Businesses and Other Entities Affected. The proposed amendments affect 420 licensed funeral establishments and 79 licensed branch establishments, 110 courtesy card holders who are licensed in another jurisdiction, 44 registered ST&R services, 115 registered crematories, and 1,463 funeral service licensees with current active licenses.

Localities² Affected.³ The proposed amendments do not introduce new costs for local governments and are unlikely to affect any locality in particular, assuming all localities have at least one funeral services establishment.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment in the industry. Even if some businesses may face new costs, the demand for funeral services as a whole is unlikely to respond to a marginal change in prices, which insulates workers in the funeral services industry.

Effects on the Use and Value of Private Property. The value of small, independent funeral establishments could potentially increase if the proposed changes have the effect of encouraging planning for emergencies and preneed contracts. The proposal to require liability insurance for ST&R companies may reduce the value of any such firms that did not already have liability insurance. Real estate development costs are not affected.

Adverse Effect on Small Businesses:⁴

Types and Estimated Number of Small Businesses Affected. The proposed amendments affect 420 licensed funeral establishments and 79 licensed branch establishments, 44 registered ST&R services and 115 registered crematories. However, the Board has no estimate of the number of small businesses affected. It is likely that most individual establishments and branch establishments would meet the criteria to be a small business. However, some of these establishments may be owned by large national companies.

Costs and Other Effects. ST&R companies that are small businesses and did not previously have liability insurance could be adversely affected by the new requirement but only to the extent that they are unable to pass on these costs to their customers.

Small independent funeral establishments stand to potentially benefit from proposed provisions that encourage emergency planning and signing preneed contracts.

Alternative Method that Minimizes Adverse Impact. There is no alternative that would meet policy goals and have lower adverse impact.

______________________________

²"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

³§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁴Pursuant 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."

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:

The proposed amendments clarify and update provisions and include (i) a new definition for "affiliation" of a branch to the main establishment, (ii) an allowance for newly licensed persons to be exempt from continuing education for the first renewal, (iii) an allowance for a funeral establishment experiencing an emergency to utilize the building in another establishment until restoration, (iv) a requirement for a registered surface transportation and removal service to hold liability insurance, (v) an allowance for a crematory to test operation of a retort before it is registered, and (vi) establishment of grounds for disciplinary action in the case of an inappropriate sexual relationship between a supervisor and funeral intern.

CHAPTER 20
REGULATIONS GOVERNING THE PRACTICE OF THE BOARD OF FUNERAL DIRECTORS AND EMBALMERS SERVICES

Part I
General Provisions

18VAC65-20-10. Definitions.

Words and terms used in this chapter shall have the definitions ascribed in § 54.1-2800 of the Code of Virginia or in 16 CFR Part 453, Funeral Industry Practices, of the Federal Trade Commission, which is incorporated by reference in this chapter. In addition, the following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Affiliation" or "affiliated" means a relationship involving a degree of common or subsidiary ownership between two establishments or entities.

"Branch" or "chapel" means a funeral service establishment that is affiliated with a licensed main establishment and that conforms with the requirements of § 54.1-2811 of the Code of Virginia.

"Courtesy card" means the card issued by the board which that grants limited and restricted funeral service privileges in the Commonwealth to out-of-state funeral service licensees, funeral directors, and embalmers.

"Cremation container" means a container in which human remains are transported to the crematory and placed in the retort for cremation.

"Cremation urn" means a wood, metal, stone, plastic, or composition container or a container of other material, which is designed for encasing cremated ashes.

"Cremation vault" or "cremation outer burial container" means any container that is designed for encasement of an inner container or urn containing cremated ashes. Also known as a cremation box.

"FTC" means the Federal Trade Commission.

"Manager of record" means a funeral service licensee or licensed funeral director who is responsible for the direct supervision and management of a funeral service establishment or branch facility.

18VAC65-20-50. Posting of license.

A. Each licensee shall post an original or photocopy of his license in a place conspicuous to consumers of funeral services in each establishment or branch where he is employed practices.

B. The establishment license shall be posted in a place conspicuous to consumers of funeral services.

18VAC65-20-60. Accuracy of information.

A. All changes in the address of record or the public address, if different from the address of record, or in the name of a licensee or registrant shall be furnished to the board within 30 days after the change occurs.

B. Any change in ownership or manager of record for an establishment or crematory shall be reported to the board within 14 days of the change.

C. A surface transportation and removal service shall notify the board within 30 14 days of any change in the name of the manager on of record with the board.

D. All notices required by law and by this chapter to be mailed provided by the board to any registrant or licensee shall be validly given when mailed to the latest address of record on file with the board and shall not relieve the licensee, funeral service intern, establishment, crematory, or firm of obligation to comply. Renewal notices may be mailed or sent electronically by the board.

18VAC65-20-70. Required fees.

A. The following fees shall apply for initial licensure or registration:

	1. License to practice funeral service or as a funeral director or an embalmer	$325
	2. Funeral service establishment license	$600
	3. Surface transportation and removal service registration	$325
	4. Courtesy card	$325
	5. Crematory	$250
	6. Waiver of full-time manager requirement	$150

 B. The following fees shall apply for renewal of licensure or registration:

	1. License to practice funeral service or as a funeral director or an embalmer	$225
	2. Funeral service establishment license	$400
	3. Surface transportation and removal service registration	$300
	4. Courtesy card	$300
	5. Crematory	$200
	6. Waiver of full-time manager requirement	$100
	7. Inactive funeral service, funeral director, or embalmer license	$115

C. The following fees shall apply for late renewal of licensure or registration up to one year following expiration:

	1. License to practice funeral service or as a funeral director or an embalmer	$75
	2. Funeral service establishment license	$135
	3. Surface transportation and removal service registration	$100
	4. Courtesy card	$100
	5. Crematory	$75
	6. Waiver of full-time manager requirement	$35
	7. Inactive funeral service, funeral director, or embalmer license	$40

D. The following fees shall apply for reinstatement of licensure or registration:

	1. License to practice funeral service or as a funeral director or an embalmer	$400
	2. Establishment license	$635
	3. Surface transportation and removal service registration	$425
	4. Courtesy card	$425
	5. Crematory	$275
	6. Reinstatement following suspension	$1,000
	7. Reinstatement following revocation	$2,000

E. Other fees.

	1. Change of manager or establishment name	$100
	2. Verification of license or registration to another state	$50
	3. Duplicate license, registration, or courtesy card	$25
	4. Duplicate wall certificates	$60
	5. Change of ownership	$100
	6. Nonroutine reinspection (i.e., structural change to preparation room, change of location or ownership)	$400

F. Fees for approval of continuing education providers.

	1. Application or renewal for continuing education provider	$400
	2. Late renewal of continuing education provider approval	$100
	3. Review of additional courses not included on initial or renewal application (per application for review of additional courses not per individual course)	$300

G. For each renewal in the two years after January 14, 2015, the following shortfall reduction fee shall be assessed:

	1. License to practice funeral service or as a funeral director or an embalmer	$40
	2. Funeral service establishment license	$75
	3. Surface transportation and removal service registration	$60
	4. Courtesy card	$60
	5. Crematory 6. Continuing education provider	$40 $75

18VAC65-20-130. Renewal of license; registration.

A. A person, establishment, crematory, courtesy card holder, or surface transportation and removal service that desires to renew its license or registration for the next year shall, not later than the expiration date as provided in 18VAC65-20-120, submit the renewal form and applicable fee.

1. In order to renew an active funeral service, funeral director, or embalmer license, a licensee shall be required to comply with continuing competency requirements set forth in 18VAC65-20-151.

2. The board shall not renew a license for any licensee who fails to attest to compliance with continuing competency requirements on the renewal form.

3. In order to renew a courtesy card, the courtesy card holder shall provide documentation of current, unrestricted licensure for funeral service, funeral directing, or embalming from the licensing authority in the states in which the courtesy card holder is licensed to practice.

B. A person who or entity that desires to renew an expired license for up to one year following expiration shall comply with requirements of subsection A of this section and also submit the applicable fee for late renewal.

C. A person who or entity which that fails to renew a license, registration, or courtesy card by the expiration dates prescribed in 18VAC65-20-120 shall be deemed to have an invalid license, registration, or courtesy card and continued practice may subject the licensee to disciplinary action by the board.

18VAC65-20-151. Continued competency requirements for renewal of an active license.

A. Funeral service licensees, funeral directors, or funeral embalmers shall be required to have completed a minimum of five hours per year of continuing education offered by a board-approved sponsor for licensure renewal in courses that emphasize the ethics, standards of practice, preneed contracts, and funding, or federal or state laws and regulations governing the profession of funeral service.

1. One hour per year shall cover compliance with laws and regulations governing the profession, and at least one hour per year shall cover preneed funeral arrangements. The one-hour requirement on compliance with laws and regulations may be met once every two years by attendance at a meeting of the board or at a committee of the board or an informal conference or formal hearing.

2. One hour of the five hours required for annual renewal may be satisfied through delivery of professional services, without compensation, to low-income individuals receiving health services through a local health department or a free clinic organized in whole or primarily for the delivery of those services. One hour of continuing education may be credited for one hour of providing such volunteer services, as documented by the health department or free clinic. For the purposes of continuing education credit for volunteer service, an approved sponsor shall be a local health department or free clinic.

B. Courses must be directly related to the scope of practice of funeral service. Courses for which the principal purpose is to promote, sell, or offer goods, products, or services to funeral homes are not acceptable for the purpose of credit toward renewal.

C. The board may grant an extension for good cause of up to one year for the completion of continuing education requirements upon written request from the licensee prior to the renewal date. Such extension shall not relieve the licensee of the continuing education requirement.

D. The board may grant an exemption for all or part of the continuing education requirements for one renewal cycle due to circumstances determined by the board to be beyond the control of the licensee.

E. A licensee shall be exempt from the continuing education requirements for the first renewal following the date of initial licensure by examination in Virginia.

18VAC65-20-152. Continuing education providers.

A. Unless disqualified by action of the board, courses offered by the following providers are approved for continuing education credit:

1. Local, state, or federal government agencies;

2. Regionally accredited colleges and universities; or

3. Board-recognized national, regional, state, and local associations or organizations as follows:

a. National Funeral Directors Association and state chapters;

b. National Funeral Directors and Morticians Association and state chapters;

c. Association of Independent Funeral Homes of Virginia;

d. Cremation Association of North America;

e. American Board of Funeral Service Education;

f. International Conference of Funeral Service Examining Boards;

g. Virginia Morticians Association; and

h. Other similar associations or organizations as approved by action of the board.

B. Course providers not listed in subsection A of this section may apply for approval by the board as continuing education providers.

1. To be considered for board approval, a continuing education provider shall submit 60 days prior to offering a continuing education course:

a. Documentation of an instructional plan and course objectives for the continuing education courses course that meet meets the criteria set forth in 18VAC65-20-151 B;

b. A syllabus of the course or courses to be offered with the credentials of the course instructors, a description of each session, including number of continuing education hours; and

c. The continuing education provider fee set forth under 18VAC65-20-70.

2. Board approval of continuing education providers under this subsection shall expire on July 1 of each year and may be renewed upon resubmission of documentation on courses and instructors and the provider fee as required by the board.

3. Continued Renewed approval of a continuing education provider may be granted without submission of the provider an additional course review fee if the provider submits a statement that courses and instructors offered for the coming year will not change from the previous year. If there will be additions or alterations to the continuing education offerings of a provider, resubmission of course documentation and a provider an additional course review fee is required.

4. If additional courses are submitted for board approval beyond those courses submitted with an initial or renewal application, the continuing education provider shall remit the fee for review under 18VAC65-20-70.

C. Continuing education providers approved under subsection A or B of this section shall:

1. Maintain and provide to the board upon request documentation of the course titles and objectives and of licensee attendance and completion of courses for a period of two years;

2. Monitor attendance at classroom or similar educational experiences for compliance with law and regulations; and

3. Provide a certificate of completion for licensees who successfully complete a course.

18VAC65-20-153. Documenting compliance with continuing education requirements.

A. All licensees with active status are required to maintain original documentation of continuing education for a period of two years after the corresponding annual renewal period.

B. After the end of each renewal period, the board may conduct a random audit of licensees to verify compliance with the requirement for that renewal period.

C. Upon request, a licensee shall provide documentation within 14 days as follows:

1. Official transcripts showing credit hours earned from an accredited institution; or

2. Certificates of completion from approved providers.

D. Compliance with continuing education requirements, including the subject and purpose of the courses as prescribed in 18VAC65-20-151 B, the maintenance of records and the relevance of the courses to the category of licensure is the responsibility of the licensee. The board may request additional information if such compliance is not clear from the transcripts or certificates.

E. Continuing education hours required by disciplinary order shall not be used to satisfy renewal requirements.

18VAC65-20-154. Inactive license.

A. A funeral service licensee, a funeral director, or an embalmer who holds a current, unrestricted license in Virginia shall, upon a request for inactive status on the renewal application and submission of the required renewal fee of $115, be issued an inactive license. The fee for late renewal up to one year following expiration of an inactive license shall be $40.

1. An inactive licensee shall not be entitled to perform any act requiring a license to practice funeral service in Virginia.

2. The holder of an inactive license shall not be required to meet continuing education requirements, except as may be required for reactivation in subsection B of this section.

B. A funeral service licensee, a funeral director, or an embalmer who holds an inactive license may reactivate his license by:

1. Paying the difference between the renewal fee for an inactive license and that of an active license for the year in which the license is being reactivated; and

2. Providing proof of completion of the number of continuing competency hours required for the period in which the license has been inactive, not to exceed three years.

Part III
Requirements for Licensure

18VAC65-20-170. Requirements for an establishment license.

A. No person shall maintain, manage, or operate a funeral service establishment in the Commonwealth, unless such establishment holds a license issued by the board. The name of the funeral service licensee or licensed funeral director designated by the ownership to be manager of record for the establishment shall be included on the license.

B. Except as provided in § 54.1-2810 of the Code of Virginia, every funeral service establishment and every branch or chapel of such establishment, regardless of how owned, shall have a separate manager of record who has responsibility for the establishment as prescribed in 18VAC65-20-171. The owner of the establishment shall not abridge the authority of the manager of record relating to compliance with the laws governing the practice of funeral services and regulations of the board.

C. At least 30 days prior to opening an establishment, an owner or licensed manager seeking an establishment license shall submit simultaneously a completed application, any additional documentation as may be required by the board to determine eligibility, and the applicable fee. An incomplete package will be returned to the licensee. A license shall not be issued until an inspection of the establishment has been completed and approved.

D. Within 30 days following a change of ownership, the owner or licensed manager shall request a reinspection of the establishment, submit an application for a new establishment license with documentation that identifies the new owner, and pay the licensure and reinspection fees as required by 18VAC65-20-70. Reinspection of the establishment may occur on a schedule determined by the board, but shall occur no later than one year from the date of the change.

E. The application for licensure of a branch or chapel shall specify the name of the main establishment and contain an attestation of the affiliation of the branch or chapel and the main establishment.

F. In the event of an emergency requiring the evacuation or discontinued use of a funeral establishment, the impacted establishment may be approved by the board to continue operations out of another licensed funeral establishment for a period of no more than 60 days. The impacted establishment may request an extension of emergency operations for an additional 30 days upon good cause shown. In requesting approval for conducting emergency operations under this section, the impacted funeral establishment shall submit documentation that identifies the manager of record for both the impacted establishment and establishment for emergency operations and any agreement for emergency usage.

18VAC65-20-171. Responsibilities of the manager of record.

A. Every funeral establishment shall have a manager of record who is employed full time by and in charge of the establishment.

B. The manager shall be fully accountable for the operation of the establishment as it pertains to the laws and regulations governing the practice of funeral services, to include but not be limited to:

1. Maintenance of the facility within standards established in this chapter;

2. Retention of reports and documents as prescribed by the board in 18VAC65-20-700 during the period in which he serves as manager of record; and

3. Reporting to the board of any changes in information as required by 18VAC65-20-60; and

4. Correcting or seeking corrections of any deficiencies identified during the course of an inspection of the establishment.

18VAC65-20-240. Requirements for funeral service licensure by examination.

A. Application requirements. 1. Applicants shall submit official mortuary school transcripts and national examination board scores as part of an application package, including the required fee and any additional documentation as may be required to determine eligibility.

2. An individual applying for the state examination shall submit the application package not less than 30 days prior to an examination date. The board may, for good cause shown by the applicant, waive the time for the filing of any application.

B. National examination requirements. Prior to applying for licensure by examination, every applicant shall pass the National Board Examination of the International Conference of Funeral Service Examining Boards.

C. State examination requirements. All applicants shall pass the Virginia State Board Examination.

Part IV
Registration

18VAC65-20-400. Registration of surface transportation and removal services.

All persons applying to own or operate a surface transportation and removal service, according to requirements of § 54.1-2819 of the Code of Virginia, shall submit an application package for registration which shall include:

1. A completed and signed application;

2. The fee prescribed in 18VAC65-20-70 A 3;

3. Additional documentation as may be required by the board to determine eligibility of the applicant, including, but not limited to, evidence of training of the service manager and staff in compliance with standards of the Occupational Safety and Health Administration (OSHA) for universal precautions and blood-borne bloodborne pathogens, and proof of bonding or liability insurance coverage related to the operation of the service; and

4. The name of the manager for the service.

18VAC65-20-435. Registration of crematories.

A. At least 30 days prior to opening a crematory, any person intending to own or operate a crematory shall apply for registration with the board by submitting a completed application and fee as prescribed in 18VAC65-20-70. The name of the individual designated by the ownership to be the crematory manager shall be included on the application. The owner of the crematory shall not abridge the authority of the crematory manager relating to compliance with the laws governing the practice of funeral services and regulations of the board. The designated crematory manager may be the manager of record of a funeral establishment colocated on the same premises.

B. Every crematory, regardless of how owned, shall have a manager who has (i) achieved certification by the Cremation Association of North America (CANA); the International Cemetery, Cremation and Funeral Association (ICCFA); or other certification recognized by the board and (ii) received training in compliance with standards of the Occupational Health and Safety Administration (OSHA) for universal precautions and blood-borne bloodborne pathogens.

C. The manager shall be fully accountable for the operation of the crematory as it pertains to the laws and regulations governing the practice of funeral services, to include but not be limited to:

1. Maintenance of the facility within standards established in this chapter;

2. Retention of reports and documents as prescribed by the board in 18VAC65-20-436 during the period in which he serves as crematory manager; and

3. Reporting to the board of any changes in information as required by 18VAC65-20-60.

D. All persons who operate the retort in a crematory shall have certification by the Cremation Association of North America (CANA); the International Cemetery, Cremation and Funeral Association (ICCFA); or other certification recognized by the board. Persons receiving training toward certification to operate a retort shall be allowed to work under the supervision of an operator who holds certification for a period not to exceed six months.

E. A crematory providing cremation services directly to the public shall also be licensed as a funeral service establishment or shall be a branch of a licensed establishment.

F. When a crematory application is pending and the conduct of a cremation is necessary to ensure the proper function of retort equipment, the board may authorize the crematory to conduct a test cremation prior to registration. Once the crematory equipment is deemed functional and an initial crematory inspection is completed, the board may issue the crematory a registration to operate.

G. The board may take disciplinary action against a crematory registration for a violation of § 54.1-2818.1 of the Code of Virginia or for the inappropriate handling of dead human bodies or cremains.

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 of the remains 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 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 next of kin for return to the funeral establishment or to the next-of-kin 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 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 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.

Part V
Issuance of Courtesy Cards

18VAC65-20-440. Courtesy cards.

A. An out-of-state person applying for a courtesy card pursuant to § 54.1-2801 B of the Code of Virginia shall hold a valid license for funeral service, funeral directing, or embalming in another state, territory, or the District of Columbia.

B. An applicant for a courtesy card shall submit:

1. A completed application and prescribed fee; and

2. Verification of a current, unrestricted licensure for funeral service license in good standing from the applicant's licensing authority, funeral directing, or embalming from the licensing authorities in the states in which the courtesy card holder is licensed to practice.

C. The holder of a Virginia courtesy card shall only engage in the practice for which he is currently licensed in another jurisdiction. The privilege to practice shall not include the right to establish or engage generally in the business of funeral directing and embalming in Virginia.

Part VI
Refusal, Suspension, Revocation, and Disciplinary Action

18VAC65-20-500. Disciplinary action.

In accordance with the provisions of § 54.1-2806 of the Code of Virginia, the following practices are considered unprofessional conduct and may subject the licensee to disciplinary action by the board:

1. Breach of confidence. The unnecessary or unwarranted disclosure of confidences by the funeral licensee.

2. Unfair competition.

a. Interference by a funeral service licensee, funeral director, or registered surface transportation and removal service when another has been called to take charge of a dead human body and the caller or agent of the caller has the legal right to the body's disposition.

b. Consent by a funeral service licensee or funeral director to take charge of a body unless authorized by the person or his agent having the legal right to disposition.

3. False advertising.

a. No licensee or registrant shall make, publish, disseminate, circulate, or place before the public, or cause directly or indirectly to be made, an advertisement of any sort regarding services or anything so offered to the public which that contains any promise, assertion, representation, or statement of fact which is untrue, deceptive, or misleading.

b. The following practices, both written and verbal, shall constitute false, deceptive, or misleading advertisement within the meaning of subdivision 4 of § 54.1-2806 of the Code of Virginia:

(1) Advertising containing inaccurate statements; and

(2) Advertisement which gives a false impression as to ability, care, and cost of conducting a funeral, or that creates an impression of things not likely to be true.

c. The following practices are among those which that shall constitute an untrue, deceptive, and misleading representation or statement of fact:

(1) Representing that funeral goods or services will delay the natural decomposition of human remains for a long term or indefinite time; and

(2) Representing that funeral goods have protective features or will protect the body from gravesite substances over or beyond that offered by the written warranty of the manufacturer.

4. Inappropriate handling and storage of dead human bodies, consistent with § 54.1-2811.1 of the Code of Virginia and regulations of the board. Transportation and removal vehicles shall be of such nature as to eliminate exposure of the deceased to the public during transportation. During the transporting of a human body, consideration shall be taken to avoid unnecessary delays or stops during travel.

5. Failure to furnish price information disclosing the cost to the purchaser for each of the specific funeral goods and funeral services used in connection with the disposition of deceased human bodies.

6. Conducting the practice of funeral services in such a manner as to constitute a danger to the health, safety, and well-being of the staff or the public.

7. Inability to practice with skill or safety because of physical, mental, or emotional illness, or substance abuse.

8. Failure to register as a supervisor for a funeral service intern or failure to provide reports to the board as required by the Code of Virginia and 18VAC65-40-320.

9. Failure to comply with applicable federal and state laws and regulations, including requirements for continuing education.

10. Inappropriate sexual contact between a supervisor and a funeral service intern if the sexual contact is a result of the exploitation of trust, knowledge, or influence derived from the professional relationship or if the contact has had or is likely to have an adverse effect on the practice of funeral services or on intern training.

Part VII
Standards for Embalming and Refrigeration

18VAC65-20-510. Embalming.

A. In accordance with the provisions of subdivision 26 of § 54.1-2806 and subsection B of § 54.1-2811.1 of the Code of Virginia, express permission by a next of kin for embalming means written authorization to embalm as a specific and separate statement on a document or contract provided by the funeral establishment. Express permission may include direct, verbal authorization to embalm, provided it is followed as soon as possible by a written document or statement signed by the next of kin confirming the verbal authorization to embalm and including the time, date, and name of the person who gave verbal authorization.

B. Every funeral establishment shall record and maintain a separate, identifiable report for each embalming procedure conducted, which shall at a minimum include the following information:

1. The name of the deceased and the date of death;

2. The date and location of the embalming;

3. The name and signature of the embalmer and the Virginia license number of the embalmer; and

4. If the embalming was performed by a funeral service intern, the name and signature of the supervisor; and

5. The name of each student and the signature of the supervisor of any mortuary science student who assisted in the embalming.

18VAC65-20-580. Preparation room equipment.

The preparation room or rooms shall be equipped with:

1. A ventilation system which operates and is appropriate to the size and function of the room;

2. Running hot and cold water;

3. Flush or slop sink connected with public sewer or with septic tank where no public sewer is available;

4. Metal, fiberglass, or porcelain morgue table;

5. Covered waste container;

6. Instruments and apparatus for the embalming process;

7. A means or method for the sterilization or disinfection of reusable instruments by chemical bath or soak; autoclave (steam); or ultraviolet light;

8. Disinfectants and antiseptic solutions;

9. Clean gowns or aprons, preferably impervious to water;

10. Rubber gloves for each embalmer or, intern, or student using the room;

11. An electric aspirator or hydroaspirator equipped with a vacuum breaker;

12. An eye wash station that is readily accessible; and

13. A standard first aid kit, which that is immediately accessible, either in the preparation room or outside the door to the preparation room.

18VAC65-20-700. Retention of documents.

A. The following retention schedule shall apply:

1. Price lists shall be retained for three years after the date on which they are no longer effective;

2. Itemized statements shall be retained for three years from the date on which the arrangements were made; and

3. Embalming reports shall be retained at the location of the embalming for three years after the date of the embalming.

B. The manager of record shall be responsible for retention and maintenance of all required documents.

C. Documents shall be maintained on the premises of the funeral establishment and made available for inspection.

D. In instances where the funeral establishment is sold, documents shall be transferred to the new owner, unless the existing firm is relocating to a new facility. The new owner shall retain transferred documents in accordance with the provisions of this section. When transferred documents include preneed contracts, the documents shall be retained and maintained in accordance with the provisions of the Code of Virginia and regulations of the board.