Bill Text: FL S0862 | 2010 | Regular Session | Introduced

---

Bill Title: Funeral and Burial Arrangements [SPSC]

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2010-04-30 - Died in Committee on Health Regulation [S0862 Detail]

Download: Florida-2010-S0862-Introduced.html

---

 
Florida Senate - 2010                                     SB 862 
 
By Senator Bullard 
39-00838A-10                                           2010862__ 
1                        A bill to be entitled 
2         An act relating to funeral and burial arrangements; 
3         amending s. 382.011, F.S.; authorizing a medical 
4         examiner to record the identity of certain persons who 
5         may have unlawfully participated in the death of a 
6         decedent; providing immunity for such findings; 
7         directing a medical examiner to provide to the funeral 
8         director findings of the identity of certain persons 
9         who may have unlawfully participated in a decedent’s 
10         death; requiring a medical examiner to report the 
11         arrest of certain individuals to the funeral director; 
12         amending s. 406.135, F.S.; narrowing a public-records 
13         exemption to authorize the parent or adult child of a 
14         decedent to obtain autopsy records; prohibiting 
15         disclosure of autopsy records; providing penalties; 
16         amending s. 497.005, F.S.; redefining the term 
17         “legally authorized person” for purposes of the 
18         Florida Funeral, Cemetery, and Consumer Services Act; 
19         amending s. 732.804, F.S.; prohibiting a person who 
20         may have unlawfully participated in the death of a 
21         decedent, or who has been arrested for unlawfully 
22         participating in the death of a decedent, from making 
23         decisions relating to the decedent’s body and funeral 
24         and burial arrangements; providing an effective date. 
25 
26  Be It Enacted by the Legislature of the State of Florida: 
27 
28         Section 1. Section 382.011, Florida Statutes, is amended to 
29  read: 
30         382.011 Medical examiner determination of cause of death.— 
31         (1) In the case of any death or fetal death due to causes 
32  or conditions listed in s. 406.11, or where the death occurred 
33  more than 30 days after the decedent was last treated by a 
34  physician unless the death was medically expected as certified 
35  by an attending physician, or where there is reason to believe 
36  that the death may have been due to unlawful act or neglect, the 
37  funeral director or other person to whose attention the death 
38  may come shall refer the case to the medical examiner of the 
39  district in which the death occurred for investigation and 
40  determination of the cause of death. 
41         (2) The medical examiner shall complete and sign the 
42  medical certification of cause of death of the death or fetal 
43  death certificate within 72 hours after notification, whether or 
44  not final determination of the cause of death has been 
45  established, unless an extension has been granted as provided 
46  under s. 382.008. Any amendment fees prescribed in s. 382.0255 
47  shall be waived when a later determination of cause of death is 
48  made. 
49         (3) A medical examiner, in consultation with a law 
50  enforcement agency, may make a finding that a spouse, child, 
51  parent, sibling, grandchild, grandparent, or person in the next 
52  degree of kinship to the decedent may have unlawfully 
53  participated in the decedent’s death. If such a finding is made, 
54  the medical examiner shall provide it to the funeral director 
55  who first assumed custody of the decedent’s body. Afterwards the 
56  finding must accompany the burial-in-transit permit. A medical 
57  examiner or law enforcement agency is not liable for findings 
58  made in good faith pursuant to this subsection. 
59         (4) A medical examiner must report to the funeral director 
60  who first assumed custody of a decedent’s body, the arrest of a 
61  spouse, child, parent, sibling, grandchild, grandparent, or 
62  person in the next degree of kinship to the decedent for 
63  unlawfully participating in the decedent’s death. A report of an 
64  arrest shall accompany the burial-in-transit permit. A medical 
65  examiner does not have a duty to report an arrest that occurs 
66  after the decedent’s body has been released. 
67         (5)(3) The funeral director shall retain the responsibility 
68  for preparation of the death or fetal death certificate, 
69  obtaining the necessary signatures, filing with the local 
70  registrar in a timely manner, and disposing of the remains when 
71  the remains are released by the medical examiner. 
72         Section 2. Section 406.135, Florida Statutes, is amended to 
73  read: 
74         406.135 Autopsies; confidentiality of photographs and video 
75  and audio recordings; exemption.— 
76         (1) For the purpose of this section, the term “medical 
77  examiner” means any district medical examiner, associate medical 
78  examiner, or substitute medical examiner acting pursuant to this 
79  chapter, as well as any employee, deputy, or agent of a medical 
80  examiner or any other person who may obtain possession of a 
81  photograph or audio or video recording of an autopsy in the 
82  course of assisting a medical examiner in the performance of his 
83  or her official duties. 
84         (2) A photograph or video or audio recording of an autopsy 
85  held by a medical examiner is confidential and exempt from s. 
86  119.07(1) and s. 24(a), Art. I of the State Constitution, except 
87  that a surviving spouse, parent, or adult child of the decedent 
88  may view and copy a photograph or video recording or listen to 
89  or copy an audio recording of the deceased spouse’s autopsy of 
90  the decedent. If there is no surviving spouse, then the 
91  surviving parents shall have access to such records. If there is 
92  no surviving spouse or parent, then an adult child shall have 
93  access to such records. 
94         (3)(a) A The deceased’s surviving relative, with whom 
95  authority rests to obtain such records, may designate in writing 
96  an agent to obtain such records. 
97         (b) A local governmental entity, or a state or federal 
98  agency, in furtherance of its official duties, pursuant to a 
99  written request, may view or copy a photograph or video 
100  recording or may listen to or copy an audio recording of an 
101  autopsy, and unless otherwise required in the performance of 
102  their duties, the identity of the deceased shall remain 
103  confidential and exempt. 
104         (c) The custodian of the record, or his or her designee, 
105  may not permit any other person, except an agent designated in 
106  writing by a the deceased’s surviving relative with whom 
107  authority rests to obtain such records, to view or copy such 
108  photograph or video recording or listen to or copy an audio 
109  recording without a court order. 
110         (4)(a) The court, upon a showing of good cause, may issue 
111  an order authorizing any person to view or copy a photograph or 
112  video recording of an autopsy or to listen to or copy an audio 
113  recording of an autopsy and may prescribe any restrictions or 
114  stipulations that the court deems appropriate. 
115         (b) In determining good cause, the court shall consider 
116  whether such disclosure is necessary for the public evaluation 
117  of governmental performance; the seriousness of the intrusion 
118  into the family’s right to privacy and whether such disclosure 
119  is the least intrusive means available; and the availability of 
120  similar information in other public records, regardless of form. 
121         (c) In all cases, the viewing, copying, listening to, or 
122  other handling of a photograph or video or audio recording of an 
123  autopsy must be under the direct supervision of the custodian of 
124  the record or his or her designee. 
125         (5) A surviving spouse, parent, and adult child of a 
126  decedent shall be given reasonable notice of a petition filed 
127  with the court to view or copy a photograph or video recording 
128  of an autopsy or a petition to listen to or copy an audio 
129  recording, a copy of such petition, and reasonable notice of the 
130  opportunity to be present and heard at any hearing on the 
131  matter. If there is no surviving spouse, then such notice must 
132  be given to the parents of the deceased, and if the deceased has 
133  no living parent, then to the adult children of the deceased. 
134         (6) A relative authorized to receive a copy of an autopsy 
135  report under this section may not disclose the contents of the 
136  report. 
137         (7)(6)(a) Any custodian of a photograph or video or audio 
138  recording of an autopsy who willfully and knowingly violates 
139  this section commits a felony of the third degree, punishable as 
140  provided in s. 775.082, s. 775.083, or s. 775.084. 
141         (b) Any person who willfully and knowingly violates a court 
142  order issued pursuant to this section commits a felony of the 
143  third degree, punishable as provided in s. 775.082, s. 775.083, 
144  or s. 775.084. 
145         (8)(7) A criminal or administrative proceeding is exempt 
146  from this section, but unless otherwise exempted, is subject to 
147  all other provisions of chapter 119, provided however that this 
148  section does not prohibit a court in a criminal or 
149  administrative proceeding upon good cause shown from restricting 
150  or otherwise controlling the disclosure of an autopsy, crime 
151  scene, or similar photograph or video or audio recordings in the 
152  manner prescribed herein. 
153         (9)(8) This exemption shall be given retroactive 
154  application. 
155         Section 3. Subsection (37) of section 497.005, Florida 
156  Statutes, is amended to read: 
157         497.005 Definitions.—As used in this chapter: 
158         (37) “Legally authorized person” means, in the priority 
159  listed, the decedent, when written inter vivos authorizations 
160  and directions are provided by the decedent. The term may 
161  include the following relatives in the priority listed who have 
162  not been disqualified under s. 732.804:; the surviving spouse, 
163  unless the spouse has been arrested for committing against the 
164  deceased an act of domestic violence as defined in s. 741.28 
165  that resulted in or contributed to the death of the deceased; a 
166  son or daughter who is 18 years of age or older; a parent; a 
167  brother or sister who is 18 years of age or older; a grandchild 
168  who is 18 years of age or older; a grandparent; or any person in 
169  the next degree of kinship. In addition, the term may include, 
170  if no family member exists or is available, the guardian of the 
171  dead person at the time of death; the personal representative of 
172  the deceased; the attorney in fact of the dead person at the 
173  time of death; the health surrogate of the dead person at the 
174  time of death; a public health officer; the medical examiner, 
175  county commission, or administrator acting under part II of 
176  chapter 406 or other public administrator; a representative of a 
177  nursing home or other health care institution in charge of final 
178  disposition; or a friend or other person not listed in this 
179  subsection who is willing to assume the responsibility as the 
180  legally authorized person. Where there is a person in any 
181  priority class listed in this subsection, the funeral 
182  establishment shall rely upon the authorization of any one 
183  legally authorized person of that class if that person 
184  represents that she or he is not aware of any objection to the 
185  cremation of the deceased’s human remains by others in the same 
186  class of the person making the representation or of any person 
187  in a higher priority class. 
188         Section 4. Section 732.804, Florida Statutes, is amended to 
189  read: 
190         732.804 Provisions relating to disposition of the body.— 
191         (1) Before issuance of letters, any person may carry out 
192  written instructions of the decedent relating to the decedent’s 
193  body and funeral and burial arrangements. The fact that 
194  cremation occurred pursuant to a written direction signed by the 
195  decedent that the body be cremated is a complete defense to a 
196  cause of action against any person acting or relying on that 
197  direction. 
198         (2) A person may not make decisions relating to a 
199  decedent’s body and funeral and burial arrangements if: 
200         (a) A medical examiner, in consultation with a law 
201  enforcement agency pursuant to s. 382.011, has found that the 
202  person may have unlawfully participated in the decedent’s death; 
203  or 
204         (b) The person has been arrested for unlawfully 
205  participating in the decedent’s death. 
206         Section 5. This act shall take effect July 1, 2010.