Bill Text: HI HB1961 | 2022 | Regular Session | Introduced

Hawaii House Bill 1961 (Prior Session Legislation)

HI State Legislature page for HB1961

Introduced

Bill Title: Relating To Burials.

Spectrum: Partisan Bill (Democrat 8-0)

Status: (Introduced - Dead) 2022-01-28 - Referred to HHH, JHA, CPC, referral sheet 3 [HB1961 Detail]

Download: Hawaii-2022-HB1961-Introduced.html

HOUSE OF REPRESENTATIVES	H.B. NO.	1961
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO BURIALS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that there has been a recent increase of interest in traditional Native Hawaiian practices for burials amongst Native Hawaiians and non‑Native Hawaiians. The cultural significance of iwi kupuna (ancestral bones) is deeply rooted in Native Hawaiian oral traditions, language, and culture. Native Hawaiian burial traditions acknowledge the natural cycles of life and death, and kupuna offer spiritual sustenance to present generations. Iwi are vital to the perpetuation of living Native Hawaiians, as they are the lasting embodiment of ancestors and a continuous genealogical link from the past to present and future generations.

The legislature further finds that traditional Native Hawaiian burials include the practices for treatment of human remains, which involve reducing the remains to its skeletal components and interring the iwi in a kapa or lauhala container. A traditional Native Hawaiian burial utilizes modern technology to effect the removal of the flesh and fluids from a human corpse in a manner leaving the bones intact and unharmed. The traditional Native Hawaiian treatment of human remains is safe, feasible, and cost effective using modern flame crematories or other similar operations.

Modern treatment of corpses often involves chemicals, such as embalming fluids, which can be harmful to the environment when buried, as the chemicals will eventually be released into the soil and aquifers. Prioritizing traditional Native Hawaiian burial techniques, such as alkaline hydrolysis, is a cleaner, gentler, and more environmentally friendly process than modern treatment of human remains. Further, traditional Native Hawaiian burials are more cost effective than modern burial techniques. Smaller burial plots are required, and the cost of caskets is avoided. Thus, the decrease in space required for a burial plot will result in an increase in the carrying capacities for cemeteries.

Currently, the department of health does not have rules or policies addressing traditional Native Hawaiian burial practices. The adoption of rules and policies to address traditional Native Hawaiian burial practices would encourage and promote the use of those practices. The Hawaii Administrative Rules regulate the embalming, transportation, and burial of human remains, and include requirements relating to the encasement and interment of the deceased. However, these rules do not specifically address or expressly accommodate the partial cremation and burial of human remains, as is consistent with Native Hawaiian traditional practices.

The purpose of this Act is to:

(1) Include the use of traditional Native Hawaiian burial practices in the treatment and disposal of human remains, including the use of alkaline hydrolysis; and

(2) Require the department of health to adopt rules to implement this Act.

SECTION 2. Section 327-32, Hawaii Revised Statutes, is amended to read as follows:

"§327-32 Administration; duties of health officers. Every head officer of a hospital, nursing home, correctional facility, funeral parlor, or mortuary and every county medical examiner or coroner and every state or county officer, and every other person who has possession, charge, or control of any unclaimed dead human body that may [~~be cremated~~] undergo cremation or alkaline hydrolysis at public expense pursuant to section 346-15 shall:

(1) Exercise due diligence to notify the relatives[,] and friends of the decedent, any representative of a fraternal society of which the deceased was a member, and any legally responsible party; and

(2) Submit in writing to the department of human services a description of the efforts used in making the determination that the dead human body is unclaimed in accordance with section 346-15, if payment for cremation is sought.

Nothing in this section shall be construed to affect the requirements relating to the filing of a certificate of death with the department of health pursuant to chapter 338."

SECTION 3. Section 327-36, Hawaii Revised Statutes, is amended to read as follows:

"§327-36 Final disposition of anatomical gifts. A person or procurement organization that holds a dead human body as a result of an anatomical gift shall, when the body is deemed of no further value for purposes of transplantation, therapy, research, or education, be responsible for the final disposition of that dead human body and all of its parts, except those parts used for transplantation. The person or procurement organization shall dispose of the remains by cremation[,] or alkaline hydrolysis, except as otherwise provided in section 327-14 or as directed in a document of gift, subject to any required disposition permits."

SECTION 4. Section 346-15, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) All unclaimed dead human bodies shall [~~be cremated.~~] undergo cremation or alkaline hydrolysis. The department may bear the cost of the mortuary [~~and~~], crematory, or alkaline hydrolysis services for unclaimed dead human bodies furnished by any licensed provider of mortuary or crematory services. Payments for [~~mortuary and crematory~~] these services shall be made to the extent of the cost, or in the sum of $800 in total, whichever is less, for each unclaimed dead human body. Individuals who have possession, charge, or control of any unclaimed dead human body to [~~be cremated~~] undergo cremation or alkaline hydrolysis at public expense shall have sixty days from the date of the deceased's death to submit in writing to the department its determination that the dead human body is unclaimed and its application for payment for cremation[.] or alkaline hydrolysis. The county medical examiners or coroners shall have no time limitation by which to submit their written determination that the dead human body is unclaimed and their application for payment for cremation[.] or alkaline hydrolysis."

SECTION 5. Section 531B-2, Hawaii Revised Statutes, is amended by adding five new definitions to be appropriately inserted and to read as follows:

""Alkaline hydrolysis" or "hydrolysis" means the reduction of human remains to bone fragments and essential elements in a licensed hydrolysis facility using heat, pressure, water, and base chemical agents.

"Cremated remains" means all human remains recovered after the completion of the cremation, which may possibly include the residue of any foreign matter, including but not limited to casket material, bridgework, or eyeglasses that were cremated with the human remains.

"Cremation" means the irreversible process of reducing human remains to bone fragments (skeletal remains) through heat and evaporation.

"Hydrolysis equipment" means the equipment, machinery, or unit specifically designed and built for the purposes of processing human remains using alkaline hydrolysis. "Hydrolysis equipment" includes but is not limited to prebuilt and prepackaged hydrolysis units or equipment that is erected on site of the facility.

"Hydrolysis facility" means a structure, room, or other space in a building or structure containing hydrolysis equipment, to be used for alkaline hydrolysis."

SECTION 6. Section 531B-6, Hawaii Revised Statutes, is amended to read as follows:

"[[]§531B-6[]] Forfeiture of right to direct disposition. A person entitled under law to the right of disposition shall forfeit that right, and the right is passed on to the next person in the order of priority as listed in section 531B-4, under the following circumstances:

(1) The person is charged with murder or manslaughter in connection with the decedent's death, and the charges are known to the funeral director or manager of the funeral establishment, cemetery, mortuary, [or] crematory[;], or hydrolysis facility; provided that if the charges against the person are dismissed, or if the person is acquitted of the charges, the right of disposition is returned to that person, unless the dismissal or acquittal occurs after the final disposition has been completed;

(2) The person does not exercise the person's right of disposition within five days of notification of the decedent's death or within seven days of the decedent's death, whichever is earlier;

(3) The person and the decedent are spouses, civil union partners, or reciprocal beneficiaries, and at the time of the decedent's death, proceedings for annulment, divorce, or separation had been initiated or a declaration for termination of the reciprocal beneficiary relationship had been filed; or

(4) The probate court pursuant to section 531B-7 determines that the person entitled to the right of disposition and the decedent were estranged at the time of death."

SECTION 7. Section 531B-7, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) The following provisions shall apply to the court's determination under this section:

(1) If two or more persons with the same priority class hold the right of disposition and cannot agree by majority vote regarding the disposition of the decedent's remains, or there are any persons who claim to have priority over any other person, any of these persons or a funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility with custody of the remains may file a petition asking the probate court to make a determination in the matter; and

(2) In making a determination in a case where there are two or more persons with the same priority class who cannot agree by majority vote, the probate court may consider the following:

(A) The reasonableness and practicality of the proposed funeral arrangements and disposition;

(B) The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition;

(C) The desires of the person or persons who are ready, able, and willing to pay the cost of the funeral arrangements and disposition;

(D) The convenience and needs of other families and friends wishing to pay respects;

(E) The desires of the decedent; and

(F) The degree to which the funeral arrangements would allow maximum participation by all wishing to pay respect.

(c) In the event of a dispute regarding the right of disposition, a funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility shall not be liable for refusing to accept the remains, to inter or otherwise dispose of the remains of the decedent, or complete the arrangements for the final disposition of the remains until it receives a court order or other written agreement signed by the parties in the disagreement that the dispute has been resolved or settled.

If the funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility retains the remains for final disposition while the parties are in disagreement, it may embalm or refrigerate and shelter the body, or both, while awaiting the final decision of the probate court and may add the cost of embalming or refrigeration and sheltering to the cost of final disposition.

If a funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility brings an action under this section, it may add the legal fees and court costs associated with a petition under this section to the cost of final disposition.

This section shall not be construed to require or impose a duty upon a funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility to bring an action under this section.

A funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility and its officers, directors, managers, members, partners, or employees may not be held criminally or civilly liable for choosing not to bring an action under this section."

SECTION 8. Section 531B-8, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) A funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility shall have the right to rely on the funeral service agreement, cremation authorization form, or any other authorization form, including the identification of the decedent, and shall have the authority to carry out the instructions of the person or persons whom the funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility reasonably believes to hold the right of disposition.

(c) The funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility shall have no responsibility to verify the identity of the decedent or contact or independently investigate the existence of any person who may have a right of disposition. If there is more than one person in the same priority class pursuant to section 531B-4 and the funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility has no knowledge of any objection by other members of the priority class, it may rely on and act according to the instructions of the first person in the priority class to make funeral and disposition arrangements; provided that no other person in the priority class provides written notice to the funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility of that person's objections."

SECTION 9. Section 531B-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A funeral director or manager of a funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility shall have complete authority to direct and control the final disposition and disposal of a decedent's remains and to proceed under this chapter to recover reasonable charges for the final disposition and disposal if:

(1) The funeral director or manager:

(A) Has no knowledge that any of the persons described in section 531B-4(a)(1) through [[](a)(10)[]] exist;

(B) Has knowledge that the person or persons who may or do have the right of disposition cannot be found after reasonable inquiry or reasonable attempts to contact; or

(C) Has knowledge that the person or persons who may or do have the right of disposition have lost this right pursuant to section 531B-6; and

(2) The appropriate public authority fails to assume responsibility for disposition of the remains within thirty-six hours after having been given written notice of the decedent's death. Written notice may be given by hand delivery, certified mail, facsimile transmission, or electronic mail transmission."

SECTION 10. Section 531B-11, Hawaii Revised Statutes, is amended to read as follows:

"[[]§531B-11[]] Immunity. No funeral establishment, cemetery, mortuary, [or] crematory, or hydrolysis facility or any of its officers, directors, members, partners, funeral directors, managers, or employees who reasonably rely in good faith upon the instructions of an individual claiming the right of disposition shall be subject to criminal or civil liability or administrative or disciplinary action for carrying out the disposition of the remains in accordance with the instructions."

SECTION 11. Section 841-10, Hawaii Revised Statutes, is amended to read as follows:

"§841-10 Decent burial. When any coroner or deputy coroner takes an inquest upon the dead body of a stranger or indigent person or, being called for that purpose, does not think it necessary, on view of the body, that any inquest should be taken, the coroner or deputy coroner shall cause the body to be decently buried or [~~cremated.~~] undergo cremation or alkaline hydrolysis. A burial-transit permit authorizing a burial [or], cremation, or alkaline hydrolysis shall be secured from the local agent of the department of health by the person in charge of [~~such~~] the burial [or], cremation[.], or alkaline hydrolysis."

SECTION 12. The department of health shall adopt rules pursuant to chapter 91, Hawaii Revised Statutes, to implement this Act.

SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

Report Title:

Human Remains; Alkaline Hydrolysis; Department of Health

Description:

Includes the use of traditional Native Hawaiian burial practices in the treatment and disposal of human remains, including the use of alkaline hydrolysis. Requires the Department of Health to adopt rules.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.