Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (amending 18VAC65-20-170, 18VAC65-20-435, 18VAC65-20-630).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 16, 2011.

Effective Date: March 3, 2011.

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 provides the Board of Funeral Directors and Embalmers the authority to promulgate regulations, administer a registration and renewal program, and discipline regulated professionals. In addition, specific statutory authority for the Board of Funeral Directors and Embalmers to regulate and inspect funeral service establishments and crematories is found in § 54.1-2803 of the Code of Virginia.

Purpose: Clarification that the crematory manager does not have to be a licensed funeral director or funeral service provider will allow crematories that only deal directly with licensed funeral establishments to hire persons who are trained and certified in the operation of a crematory but without all the education, examination, and experience required to become a licensee. Crematories that deal directly with the public in providing cremation services are required to be licensed establishments and have a licensee as the manager of record. In either case, the crematory manager and persons who operate the retort in a crematory are required to hold certification to ensure that the facility is being operated consistent with current emission standards and other requirements that protect the health and safety of the public and protect the dignity and integrity of human remains.

Rationale for Using Fast-Track Process: The regulatory changes were discussed and agreed upon with the participation of funeral service providers, crematory certification organizations, and advocacy representatives at an open meeting of the board. Therefore, the board does not anticipate any objection to the proposed changes.

Substance: This fast-track action makes the time frame for notification of a change in ownership or management consistent with the notification requirement in 18VAC65-20-60. In 18VAC65-20-435, the amendments replace the term "manager of record" and clarify that the manager of a crematory is not required to be a licensed funeral provider. The amendments also add the complete name of the appendices referenced for ease of compliance by licensees.

Issues: The advantages to the public are clarification of current requirements to ensure that crematory managers and operators hold certification but are not required to become funeral service licensees. Current certification assures competency for operators while not placing an unnecessary burden of licensure for the managers. With the steady increase in cremations, the increased availability of crematories to provide cremation service to establishments may help to contain costs for families. There are no disadvantages. With clarification in the regulation, there is less confusion among licensees and owners and therefore less staff time spent in explaining the rules and the board's intent. There are no other advantages or 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 proposes to 1) clarify that the notification time frame for a change in ownership or management is consistent throughout the regulations, 2) clarify that the manager of a crematory is not required to be a licensed funeral provider, and 3) add the complete name of the forms referenced in the regulations.

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

Estimated Economic Impact. The Board of Funeral Directors and Embalmers proposes to 1) clarify that owner or licensed manager is required to request a reinspection of the establishment within 30 days following a change in ownership, but is not required to notify the board within 30 days which is established as 14 days in 18VAC65-20-60, 2) clarify that the manager of a crematory is not required to be a licensed funeral provider, and 3) add the complete name of the forms referenced in the regulations.

According to the Department of Health Professions all of the proposed changes are clarifications of the current requirements and do not represent a change in current policy or practice. Thus, no significant economic effect is expected other than reducing the likelihood for potential misunderstandings and the communication costs that may be associated with such misunderstandings.

Businesses and Entities Affected. There are approximately 507 licensed funeral establishments in Virginia. Of these, approximately 76 are stand-alone crematories that do not do business directly with the general public.

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

Projected Impact on Employment. No significant effect on employment is expected.

Effects on the Use and Value of Private Property. No significant effect on the use and value of private property is expected.

Small Businesses: Costs and Other Effects. Even though of the 507 licensed funeral establishments approximately 350 would be considered as small businesses, the proposed changes do not create any significant costs or other effects on small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected.

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

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 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, 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 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 the Department of Planning and Budget's 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:

This fast-track action makes the time frame for notification of a change in ownership or management consistent with 18VAC65-20-60, clarifies that the manager of a crematory is not required to be a licensed funeral provider, and adds the complete name of the forms referenced in the regulation.

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 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 45 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 notify the board, 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.

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 of record for the crematory shall be included on the application. The owner of the crematory shall not abridge the authority of the crematory manager of record relating to compliance with the laws governing the practice of funeral services and regulations of the board.

B. Every crematory, regardless of how owned, shall have a manager of record 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 requirements of the Occupational Health and Safety Administration (OSHA). Every crematory manager of record registered by the board prior to July 8, 2009, shall have one year from that date to obtain such certification.

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 of record; 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. Every operator in a crematory registered by the board prior to July 8, 2009, shall have one year from that date to obtain such certification. 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. 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.

Part VIII
Pricing Standards and Forms

18VAC65-20-630. Disclosures.

Funeral providers shall make all required disclosures and provide accurate information from price lists pursuant to the rules of the Federal Trade Commission. Price lists shall comply with requirements of the FTC and shall contain the information included in Appendices I, II, and III of this chapter:

APPENDIX I - General Price List;

APPENDIX II - Casket Price List, Outer Burial Container Price List; and

APPENDIX III - Itemized Statement of Funeral Goods and Services Selected.

FORMS (18VAC65-20)

Funeral Service Provider Application (rev. 4/08).

Application for Courtesy Card (rev. 7/08).

Funeral Service Establishment Application (rev. 3/08).

Application for Notification of Establishment Changes (rev. 7/08).

Waiver of Full-time Manager Application (rev. 7/08).

Crematory Registration Application (rev. 4/09).

Verification of State Licensure Form (rev. 3/08).

Surface Transportation and Removal Service Application (rev. 6/08).

Continuing Education Provider Application (rev. 3/08).

Continuing Education Summary Form (rev. 7/07).

Application for Reinstatement as a Funeral Service Provider (rev. 4/08).

Application for Reinstatement of Funeral Service Establishment (eff. 4/08).

Appendix I: General Price List (rev. 7/07).

Appendix II: Casket Price List; Outer Burial Container Price List (rev. 7/07).

Appendix III: Itemized Statement of Funeral Goods and Services Selected (rev. 7/07).

Funeral Service Provider Application (rev. 3/10).

Application for Reinstatement as a Funeral Service Provider (rev. 3/10).

Verification of State Licensure Form (rev. 3/10).

Courtesy Card Application (rev. 3/10).

Surface Transportation & Removal Services Application (rev. 5/10).

Crematory Registration Application (rev. 3/10).

Continuing Education Provider Application (rev. 3/10).

Continuing Education Summary Form (rev. 3/10).

Funeral Service Establishment Application (rev. 5/10).

Application for Notification of Establishment Changes (rev. 3/10).

Waiver of Full-Time Manager Application (rev. 3/10).

Application for Reinstatement Funeral Service Establishment (rev. 3/10).

Appendix I. General Price List (rev. 8/10).

Appendix II. Casket Price List, Outer Burial Container Price List (rev. 3/10).

Appendix III. Itemized Statement of Funeral Goods and Services Selected (rev. 3/10).