TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF FUNERAL DIRECTORS AND EMBALMERS

Final Regulation

Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (amending 18VAC65-20-10, 18VAC65-20-60, 18VAC65-20-435; adding 18VAC65-20-436).

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

Effective Date: July 8, 2009.

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.

Summary:

The  amendments include standards for crematories that are registered or are a part of a licensed funeral establishment to include requirements for (i) a manager of record who is a certified crematory operator and who is responsible for compliance with state and federal rules for crematories; (ii) certification of all persons who operate a retort; (iii) due diligence in the identification of the remains and authorization to cremate; (iv) safe and ethical operation of a crematory; (v) handling of human remains; and (vi) recordkeeping.

Changes made to the proposed regulation (i) require a crematory to observe a 24-hour waiting period between the time of death and the cremation when a visual identification is not made, (ii) allow a crematory 24 hours to cremate remains after taking custody rather than immediately, (iii) require a biodegradable bag to be used if a biodegradable container is used for remains, and (iv) allow cremated remains in a container designed for scattering to be placed directly in the container if the next-of-kin so authorizes in writing.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

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:

"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 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.

18VAC65-20-60. 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. All notices required by law and by this chapter to be mailed 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.

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 manager of record for the crematory shall be included on the application. The owner of the crematory 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.

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 [ who has (ii) ] received training in compliance with requirements of the Occupational Health and Safety Administration (OSHA). Every manager of record registered by the board prior to [ (the effective date of this section) 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 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 [ (the effective date of this section) 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.

B. 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.

C. 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.

18VAC65-20-436. Standards for registered crematories or funeral establishments that operate a crematory.

A. Authorization to cremate.

[ 1. ] In accordance with § 54.1-2818.1 of the Code of Virginia, a crematory shall require a cremation authorization form executed in person or electronically in a manner that provides a copy of an original signature of the next-of-kin or the person designated pursuant to § 54.1-2825 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 made, a crematory shall observe a 24-hour waiting period between the time of death and the cremation pursuant to § 54.1-2818.1 of the Code of Virginia. ]

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

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

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

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

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

5. Whenever a crematory is unable to cremate the remains [ immediately within 24 hours ] upon taking custody thereof, the crematory shall maintain the remains in refrigeration at 40 degrees 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 his designee has made a visual identification of the deceased;

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.

NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.

[ FORMS (18VAC65-20)

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

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

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

Notification of Change Application (rev. 4/08).

Waiver of Full-time Manager Application (rev. 4/08).

Application for Crematory Registration Application (rev. 4/08) 4/09).

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

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

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

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

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

Application for Reinstatement of Funeral Service Establishment (eff. 3/08).

Appendix I: General Price List (rev. 12/02).

Appendix II: Casket Price List; Outer Burial Container Price List (rev. 12/02).

Appendix III: Itemized Statement of Funeral Goods and Services Selected (rev. 12/02). ]

VA.R. Doc. No. R08-786; Filed May 20, 2009, 11:22 a.m.