Title of Regulation: 18VAC65-40. Regulations for the Funeral Service Internship Program (amending 18VAC65-40-90, 18VAC65-40-110, 18VAC65-40-130, 18VAC65-40-220, 18VAC65-40-250, 18VAC65-40-280, 18VAC65-40-320, 18VAC65-40-340, 18VAC65-40-640).

Statutory Authority: §§ 54.1-2400 and 54.1-2817 of the Code of Virginia.

Public Hearing Information:

June 9, 2021 - 9 a.m. - Electronic only meeting through WebEx. Link to the meeting is https://covaconf.webex.com/covaconf/j.php?MTID=m868a4f502a8842fd890e02ecf0808f0e. Join by audio only through US toll free 1-866-692-4530 or US toll 1-517-466-2023. Meeting number (access code): 185 627 2752.

Public Comment Deadline: July 9, 2021.

Agency Contact: Corie Tillman-Wolf, 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 corie.wolf@dhp.virginia.gov.

Basis: Regulations for the Funeral Intern Program are 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. Authority for the board to take disciplinary action for failure to adequately supervise funeral service interns is found in § 54.1-2806 of the Code of Virginia. Authority to regulate funeral service interns is found in § 54.1-2817 of the Code of Virginia.

Purpose: The purpose of this regulatory action is to provide clear, enforceable regulations for the supervision and practice of interns so that interns and funeral homes are not misleading the public about an intern's status and that interns are being appropriately supervised to protect the public health and safety in the handling of human remains.

Substance: The Board of Funeral Directors and Embalmers has adopted proposed regulations to (i) reduce the number of hours required for an internship from 3,000 to 2,000 and specify that an extension beyond 48 months for completion of an internship will only be granted for extenuated circumstances; (ii) require supervisors to register for supervision of each funeral service intern with an expiration for the registration of 48 months or at the completion of the intern's training, whichever occurs first in order to allow the board to track active supervisors and make sure supervisors are in good standing; (iii) require that interns be identified to the public as interns in titles, correspondence, and communications with the public; (iv) clarify that a notice of renewal may be transmitted electronically, consistent with legislation that became effective on July 1, 2018; (v) specify that supervision must be provided under a funeral service licensee with an unrestricted license and restrict approval of supervisors with previous board action within the previous two years; (vii) remove language related to deduction of credit hours for late intern reports; (viii) clarify that an intern may not receive credit for training if they fail to submit a training report, rather than forfeiting partial credit for training; and (ix) clarify that disciplinary action may be imposed for failure to comply with the statutes or regulations of the Board of Funeral Directors and Embalmers.

Issues: The primary advantage to the public is more clarity in oversight of funeral interns and assurance that the persons supervising their practice hold appropriate licensure that is in good standing. All amendments are intended to provide additional consumer protection. There are no disadvantages to the public.

There are no advantages or disadvantages to the Commonwealth, except more clarity in regulation will assist the board in interpretation of the law.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Following a periodic review,¹ the Board of Funeral Directors and Embalmers (Board) proposes to: (1) reduce the number of hours required for a funeral service internship from 3,000 to 2,000, (2) require supervisors to register for the supervision of each funeral service intern, (3) prohibit licensees with disciplinary records within the last two years from supervising interns, and (4) require that interns be identified as interns in titles, correspondence, and communications with the public.

Background. During its periodic review of this regulation, the Board compared the number of hours required in Virginia to complete an internship to those required in other states, including Maryland (1,000 hours), North Carolina (2,000), and Kentucky (one year of full time training at 40 hours per week which appears to be 2,080 hours). The Board concluded Virginia appeared to be out of line with almost every other state. Also, a commenter on the periodic review noted that a Funeral Service Provider Workforce Study² showed that funeral service licensees are retiring or leaving the profession at a higher rate than licensees are entering the profession. The Board concurred with the commenter that the current 3,000-hour internship requirement is one factor that limits the ability to continually have a pool of qualified funeral service licensees. The Board further compared internship hours for other health professions, which range from one year for professions such as speech language pathologists to 2,000 hours as an administrator-in-training for a nursing home administrator. To qualify as an assisted living facility administrator (a profession with similar educational requirements), a person must have 30 hours of post-secondary education and 640 hours of training as an administrator-in-training.

Estimated Benefits and Costs. One of the proposed changes represents a 1,000-hour reduction in the time required to complete a funeral service internship, which corresponds to 125 eight-hour business days or 25 full-working weeks (six months). Although interns earn some money during their internships, they would likely earn more as a full-time employee. The opportunity to increase their earning potential six months earlier is clearly beneficial to the interns.

The impact on the pool of interns is two-fold. On one hand, a funeral service intern would be able to complete the program about six months earlier under the proposed regulation. This change would decrease the current pool of interns. On the other hand, the Department of Health Professions (DHP) points out that the relatively high number of required internship hours currently discourages some potential candidates from obtaining their licenses in Virginia. To the extent that a decrease in the number of hours would encourage internships, funeral homes would benefit from an increase in the pool of interns. Whether one of these opposite impacts would dominate the other is not clear.

Similarly, the impact on affected funeral establishments is not clear. Generally, under the new rule funeral establishments that currently employ interns would likely pay higher wages to replace lower-cost intern labor six months earlier, assuming another intern cannot be hired. However, whether existing establishments can easily replace interns who would complete their training earlier than before will depend on the interaction of the two opposing factors noted and how they jointly impact the intern pool, which cannot be determined.

DHP does not expect any reduction in the quality of services offered by interns who would get their certificates six months early. This expectation is supported by the fact that the statutory requirements (that an intern assist in embalming at least 25 bodies and conduct at least 25 funerals), the requirement to pass the licensing examination, and the inspection requirements to ensure minimum quality remain the same.

The Board also proposes to require intern supervisors to register for the supervision of each intern, and that the registration expire after 48 months or at the completion of the interns training, whichever occurs first. No fee is proposed for this registration. According to the Board, the intent of this rule is to ensure that the Board is aware of who is currently supervising interns, so there is greater accountability and consistency. Currently, 567 persons are registered as supervisors, but there are only 186 interns. As a result, the Board contends that the majority of those registered are not actively supervising interns, since each supervisor may have two interns. This change will place on the supervisor the burden of sending registration documents for each intern supervised.

The Board further proposes to prohibit someone who has been disciplined within the past two years from supervising an intern. Since the professionalism, skills, and integrity of the supervisor is critical to training an intern for competency in the profession, the Board is concerned about the effect upon competency if a supervisor has recently been disciplined by the Board. Supervisors with a disqualifying record would lose the ability to supervise an intern under this change.

Finally, the Board proposes to require that interns be identified as interns in titles, correspondence, and communications with the public. The intent of the additional language is protection for consumers so that they understand that a person is receiving training in a funeral home and is not a licensed funeral service provider.

Businesses and Other Entities Affected. There are 420 licensed funeral establishments, and another 79 are licensed as branch establishments. Both individual establishments and branch establishments hold licenses, but either may be owned by large national companies. There are 1,463 funeral service licensees with current, active licenses; 567 licensees are also registered as supervisors. In the 4th quarter of FY 2019, there were 186 funeral interns.³ The proposed amendments would introduce additional burden in terms of the newly required registration for each intern and prohibition of supervision if someone has been disciplined within the past two years. An adverse economic impact on businesses is indicated because there do not appear to be any offsetting direct benefit to the burden and the prohibition.

Localities⁴ Affected.⁵ The proposed amendments should not affect any locality more than others. The proposed amendments do not introduce costs for localities.

Projected Impact on Employment. The proposal to reduce the number of hours required for an internship from 3,000 to 2,000 would allow interns to start earning higher wages six months earlier. This may change their employment status but is unlikely to directly affect total employment. The impact on the available pool of interns is mixed due to competing opposite effects of the reduction in internship hours as discussed above.

Effects on the Use and Value of Private Property. The proposed amendments would not substantively affect the use and value of private property. No significant effect is expected on real estate development costs.

Adverse Effect on Small Businesses.⁶

Types and Estimated Number of Small Businesses Affected. The proposed amendments affect licensed funeral establishments and branch establishments that employ interns, most if not all of which are likely small businesses.⁷ As indicated, DHP reports 567 licensees are registered as supervisors, but there were only 186 funeral interns.

Costs and Other Effects. Additional burdens in terms of the newly required registration for each intern and prohibition of supervision if someone has been disciplined within the past two years as discussed are also applicable to the businesses that are small in size.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

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¹https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1642

²https://townhall.virginia.gov/l/GetFile.cfm?File=22\5221\8787\AgencyStatement_DHP_8787_v3.pdf

³Data source: Department of Health Professions

^4"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.

⁵§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁶Pursuant 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."

⁷Virginia Employment Commission records indicate that as of the first quarter of 2019, the Commonwealth had: a) 349 Funeral Homes and Funeral Services firms, all of which had fewer than 500 employees, and b) 131 Cemeteries and Crematories firms, all of which had fewer than 500 employees.

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

Summary:

The proposed amendments (i) reduce the number of hours required for an internship to 2,000; (ii) require supervisors to register for supervision of each funeral service intern with an expiration for the registration of 48 months or at the completion of the intern's training, whichever occurs first, in order to allow the board to track active supervisors and make sure supervisors are in good standing; (iii) require that interns be identified to the public as interns in titles, correspondence, and communications with the public; (iv) clarify that a notice of renewal may be transmitted electronically, consistent with legislation that became effective on July 1, 2018; (v) specify that supervision must be provided under a funeral service licensee with an unrestricted license and restrict approval of supervisors with previous board action within the previous two years; (vi) remove language related to deduction of credit hours for late intern reports; (vii) clarify that an intern may not receive credit for training if the intern fails to submit a training report, rather than forfeiting partial credit for training; and (viii) clarify that disciplinary action may be imposed for failure to comply with the statutes or regulations of the Board of Funeral Directors and Embalmers.

18VAC65-40-90. Renewal of registration.

A. The funeral service intern registration shall expire on March 31 of each calendar year and may be renewed by submission of the renewal notice and prescribed fee.

B. A person who fails to renew a registration by the expiration date shall be deemed to have an invalid registration. No credit will be allowed for an internship period served under an expired registration.

C. The funeral service intern is responsible for notifying the board within 14 days of any changes in name, address, employment, or supervisor. Any notices shall be validly given when mailed to the address on record with the board. Renewal notices may be mailed or sent electronically.

18VAC65-40-110. Reinstatement Renewal or reinstatement of expired registration.

A. A funeral service intern whose registration has expired may be reinstated renewed within one year following expiration by payment of the current renewal fee and the late renewal fee.

B. A funeral service intern whose registration has been expired for more than one year shall apply for reinstatement by submission of an application and payment of a reinstatement fee. The board may consider reinstatement of an expired registration for up to three years following expiration.

C. When a registration is not reinstated within three years of its expiration date, a new application for registration shall be filed and a new internship begun.

18VAC65-40-130. Funeral service internship.

A. The internship shall consist of at least 3,000 2,000 hours of training to be completed within no less than 12 months and no more than 48 months. For good cause shown, the The board may grant an extension of time for completion of an internship only for extenuating circumstances.

B. The funeral service intern shall be assigned a work schedule of not less than 20 hours nor more than 60 hours per week in order to receive credit for such training. For good cause shown, the board may waive the limitation on an intern's work schedule.

C. A funeral service intern shall receive training in all areas of funeral service.

D. A funeral service intern shall be identified to the public as a funeral service intern in a title used, name tag worn, and any correspondence or communication in which the intern's name is used.

18VAC65-40-220. Qualifications of training site.

A. The board shall approve only an establishment or two combined establishments to serve as the training site or sites that:

1. Have a full and unrestricted Virginia license;

2. Have complied in all respects with the provisions of the regulations of the Board of Funeral Directors and Embalmers; and

3. Have 50 or more funerals and 50 or more bodies for embalming over a 12-month period for each person to be trained. This total must be maintained throughout the period of training. If the establishment does not meet the required number of funerals or embalmings, the funeral service intern may seek approval for an additional training site.

B. The board may grant approval for a resident trainee an intern to receive all or a portion of the embalming training at a facility of state or federal government or an accredited educational institution.

18VAC65-40-250. Requirements for supervision.

A. Training shall be conducted under the direct supervision of a licensee or licensees approved by the board. Credit shall only be allowed for training under direct supervision.

B. The board shall approve only funeral service licensees, licensed funeral directors, or licensed embalmers to give funeral training who have a full and unrestricted Virginia funeral license, have at least two consecutive years in practice as a funeral service licensee, funeral director, or embalmer and are employed full time in or under contract with the establishment, facility, or institution where training occurs. The board will not approve registration of a supervisor who has been subject to board disciplinary action within the most recent two years.

C. A supervisor licensed as an embalmer or a funeral director shall provide supervision only in the areas of funeral practice for which he is licensed. A supervisor shall ensure that a funeral service intern receives training under the direct supervision of a licensee who has a current license in good standing.

D. A supervisor shall register with the board for each funeral service intern for whom the supervisor is providing supervision. Such registration shall expire 48 months after registration or at the completion of the intern's training, whichever occurs first. If the intern has been granted an extension beyond 48 months for extenuating circumstances, the supervisor may continue to provide supervision for a time period specified by the board.

D. E. Failure to register as a supervisor may subject the licensee to disciplinary action by the board.

E. F. If a supervisor is unable or unwilling to continue providing supervision, the funeral service intern shall obtain a new supervisor. Credit for training shall resume when a new supervisor is approved by the board and the intern has paid the prescribed fee for the change of supervisor.

G. No more than two funeral service interns shall be concurrently registered under any one person licensed for the practice of funeral service, funeral directing, or embalming.

18VAC65-40-280. Supervisor application package.

A. A licensee seeking approval by the board as a supervisor of an intern shall submit a completed application and any additional documentation as may be required to determine eligibility for each intern to be supervised.

B. The application for supervision of a funeral service intern shall be signed by the establishment manager and by the persons who will be providing supervision for embalming and for the funeral services.

18VAC65-40-320. Reports to the board.

A. The intern, the supervisor or supervisors, and the establishment shall submit a written report to the board at the end of every 1,000 hours of training. The report shall:

1. Specify the period of time in which the 1,000 hours has been completed and verify that the intern has actually served in the required capacity during the preceding period; and

2. Be received in the board office no later than 14 days following the end of the completion of 1,000 hours. Late reports may result in additional time being added to the internship.

B. If the internship is terminated or interrupted prior to completion of 1,000 hours or if the intern is changing supervisors or training sites, the intern and the supervisor shall submit a partial report to the board with a written explanation of the cause of program termination or interruption or of the change in training or supervision.

1. The partial report shall provide the amount of time served and the dates since the last reporting period. Credit for partial reports shall be given for the number of hours of training completed.

2. Partial reports shall be received in the board office no later than 14 days after the interruption or termination of the internship or after the change in supervisors or training sites. Credit may be deducted for late reports.

18VAC65-40-340. Supervisors' responsibilities.

A. The supervisor shall provide the intern with all applicable laws and regulations or sections of regulations relating to the funeral industry.

B. The supervisor shall provide the intern with copies of and instruction in the use of all forms and price lists employed by the funeral establishment.

C. The supervisor shall provide the intern with instruction in all aspects of funeral services and shall allow the intern under direct supervision to conduct all necessary arrangements for assist in conducting a minimum of 25 funerals.

D. The embalming supervisor shall provide instruction on all necessary precautions, embalming functions, and reporting forms and shall allow the intern under direct supervision to perform assist in the performance of a minimum of 25 embalmings.

E. The supervisor shall provide the intern with instruction in making preneed funeral arrangements and instruction on the laws and regulations pertaining to preneed funeral contracts and disclosures.

F. The supervisor shall provide instruction on cremation and on the laws and regulations pertaining to cremation.

G. If a training site does not offer preneed funeral planning or cremation services, the supervisor shall arrange for such training at another licensed funeral establishment that does.

18VAC65-40-640. Disciplinary action.

The board may refuse to issue or renew a license, registration, or approval to any applicant; and may suspend for a stated period of time or indefinitely, or revoke any license, registration, or approval, or reprimand any person, or place his license or registration on probation with such terms and conditions and for such time as it may designate or impose a monetary penalty for failure to comply with the laws or regulations of the Board of Funeral Directors and Embalmers.