Bill Text: MS HB1159 | 2011 | Regular Session | Comm Sub
Bill Title: Funeral Service Practice Licensure Law; bring forward for purposes of amendment.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Failed) 2011-02-10 - Died In Committee [HB1159 Detail]
Download: Mississippi-2011-HB1159-Comm_Sub.html
MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Public Health and Human Services
By: Representative Holland
House Bill 1159
(COMMITTEE SUBSTITUTE)
AN ACT TO AMEND SECTION 73-11-41, MISSISSIPPI CODE OF 1972, TO DEFINE CERTAIN TERMS FOR THE PURPOSES OF THE FUNERAL SERVICE LICENSURE LAW; TO AMEND SECTION 73-11-43, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT MEMBERS OF THE STATE BOARD OF FUNERAL SERVICE, UPON THE EXPIRATION OF THEIR TERMS OF OFFICE, SHALL CONTINUE TO SERVE UNTIL THEIR SUCCESSORS HAVE BEEN APPOINTED AND CONFIRMED; TO DELETE THE PROVISION THAT LIMITS BOARD MEMBERS TO TWO CONSECUTIVE TERMS; TO AMEND SECTION 73-11-49, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE BOARD TO ADOPT RULES AND REGULATIONS CONSISTENT WITH LAW CONCERNING, BUT NOT LIMITED TO, TRAINEES, APPRENTICES AND PRECEPTORS, PRACTITIONERS OF FUNERAL SERVICE, FUNERAL DIRECTORS, EMBALMERS, FUNERAL ATTENDANTS, AND FUNERAL ESTABLISHMENTS AND BRANCHES; TO AMEND SECTION 73-11-51, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE STATE BOARD OF FUNERAL SERVICE TO REINSTATE A LICENSE FOR THE PRACTICE OF FUNERAL DIRECTING UPON PAYMENT OF ALL RENEWAL FEES IN ARREARS AND A REINSTATEMENT FEE IF APPLICATION FOR LICENSURE IS MADE BEFORE DECEMBER 31, 2011, BY A LICENSEE WHO IS AGE SIXTY-TWO OR OLDER WHO HELD A LICENSE FOR THE PRACTICE OF FUNERAL DIRECTING IN GOOD STANDING FOR NOT LESS THAN TEN YEARS BEFORE THE LICENSE EXPIRED; TO DELETE CERTAIN RECIPROCITY PROVISIONS; TO AMEND SECTION 73-11-53, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE BOARD TO ESTABLISH A TRAINEE AND APPRENTICESHIP PROGRAM; TO AMEND SECTION 73-11-55, MISSISSIPPI CODE OF 1972, TO ESTABLISH FOUR FUNERAL ESTABLISHMENT LICENSE CLASSIFICATIONS; TO PROVIDE THAT A FUNERAL ESTABLISHMENT WHERE EMBALMING IS CONDUCTED MUST CONTAIN CERTAIN FACILITIES; TO PROVIDE CERTAIN RESTRICTIONS ON ESTABLISHMENTS LICENSED ONLY AS A CREMATORY ESTABLISHMENT; TO AMEND SECTION 73-11-58, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS THAT SPECIFY WHO MAY AUTHORIZE THE DISPOSITION OF THE BODY WHERE THERE IS NO WRITTEN AUTHORIZATION LEFT BY THE DECEDENT; TO CREATE NEW SECTION 73-11-60, MISSISSIPPI CODE OF 1972, TO PROHIBIT FUNERAL ESTABLISHMENTS FROM RESPONDING TO A DEATH CALL UNLESS PROPERLY CONTACTED AND REQUESTED TO SO RESPOND; TO PROVIDE THAT NO PERSON OR ENTITY SUBJECT TO REGULATION UNDER THE FUNERAL SERVICE LICENSURE LAW SHALL REMOVE OR CAUSE TO BE REMOVED ANY DEAD HUMAN BODY FROM THE PLACE OF DEATH OR TAKE OR CAUSE TO TAKE CUSTODY OF A DEAD HUMAN BODY WITHOUT THE PERMISSION OF THE NEXT OF KIN OR AUTHORIZED REPRESENTATIVE; TO AMEND SECTION 73-11-69, MISSISSIPPI CODE OF 1972, TO AUTHORIZE CREMATORIES TO BE CONSTRUCTED ON OR ADJACENT TO ANY CEMETERY, ON OR ADJACENT TO ANY FUNERAL ESTABLISHMENT, OR AT ANY OTHER LOCATION CONSISTENT WITH LOCAL ZONING REGULATIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-11-41, Mississippi Code of 1972, is amended as follows:
73-11-41. The following terms shall have the meanings ascribed herein unless the context shall otherwise require:
(a) "Alternative container" is an unfinished wood box or other nonmetal receptacle or enclosure, without ornamentation or a fixed interior lining, which is designed for the encasement of human remains and which is made of fiberboard, pressed wood, composition materials (with or without an outside covering) or like materials.
(b) "Board" means the State Board of Funeral Service of the State of Mississippi as created by Section 73-11-43, or any successor thereof.
(c) "Branch establishment" means an auxiliary or subsidiary facility or division of a main funeral establishment licensed under this chapter that is within seventy-five (75) miles of the main facility.
(d) "Casket" is defined as a rigid container that is designed for the encasement of human remains and that is usually constructed of wood, metal, fiberglass, plastic or like material and ornamented and lined with fabric which may or may not be combustible.
(e) "Cremation" means a two-part procedure whereby a dead human body or body parts shall be reduced by direct flame to residue which includes bone fragments and the pulverization of said bone fragments to coarse powdery consistency.
(f) "Crematory" is defined as any person, partnership or corporation that performs cremation. A crematory must comply with any applicable public health laws and rules and must contain the equipment and meet all of the standards established by the rules and regulations adopted by the board.
(g) "Certified crematory operator" means an individual who has completed the certification program as approved by the board.
(h) "Crematory operator" means the legal entity that operates a crematory and performs cremations.
(i) "Direct cremation" means a disposition of human remains by cremation without formal viewing, visitation or ceremony with the body present.
(j) "Embalming" means the disinfection of the dead human body by replacing certain body fluids with preserving and disinfecting chemicals.
(k) "First call" means the beginning of the relationship between the consumer and the licensed funeral director, funeral service practitioner and/or funeral establishment to take charge of a dead human body and/or have the body prepared for burial or disposition by embalming, cremation, or another method.
(l) "Funeral establishment" means a fixed place or premise duly licensed by the board that is devoted to or used in the immediate post-death activities of custody, shelter, care, preparation and/or embalming for final disposition of the body; or used for religious services or other rites or ceremonies associated with the final disposition of the human dead; or maintained or held out to the public by advertising or otherwise as such, for the convenience and comfort of the bereaved and the community for viewing or other services in connection with the human dead, and as the office or place for carrying on the profession of funeral service and/or funeral directing.
(m) "Licensee" means a person or entity who holds a license issued by the board.
(n) "License for funeral establishment" means a license issued to a place or premise devoted to or used in the immediate post-death activities of transportation, custody, shelter, care, preparation and/or embalming for final disposition of the body; or used for religious services or other rites or ceremonies associated with the final disposition of human dead; or maintained for the convenience and comfort of the bereaved and the community for viewing or other services in connection with the human dead, and as the office or place for carrying on the profession of funeral service and/or funeral directing.
(o) "License for the practice of funeral directing" means the license given to a person engaging in the "practice of funeral service" who is not engaged in the practice of embalming.
(p) "License for the practice of funeral service" means the license given to a person engaging in the "practice of funeral service," including the practice of embalming.
(q) "Practice of funeral service" means:
(i) Providing shelter, care and custody of the human dead;
(ii) Conducting immediate post-death activities;
(iii) Preparing of the human dead by embalming or other methods for burial or other disposition;
(iv) Being responsible for the transportation of the human dead, bereaved relatives and friends;
(v) Making arrangements, financial or otherwise, for the providing of such services;
(vi) The sale of funeral merchandise; or
(vii) The practice or performance of any function of funeral directing and/or embalming as presently known, including those stipulated herein.
This definition shall not include persons or corporations engaging only in the preneed sale of funeral merchandise or service.
(r) "Mortuary service establishment" means a place of business where dead human bodies are embalmed or otherwise prepared or held for burial, including the transportation of the bodies.
(s) "Resident trainee" means a person who is preparing to become licensed for the practice of funeral service or funeral directing and who is serving under the supervision and instruction of a person duly licensed for the practice of funeral service or funeral directing in this state.
(t) "Retort" means an enclosed space within which the cremation process takes place.
(u) "Trade embalmer" means an embalmer who does embalming for a licensed funeral establishment.
SECTION 2. Section 73-11-43, Mississippi Code of 1972, is amended as follows:
73-11-43. There is * * * created the State Board of Funeral Service which shall consist of seven (7) members, one (1) funeral service licensee and one (1) funeral director licensee to be appointed from each Mississippi Supreme Court district. Three (3) members shall have been licensed for the practice of funeral service under this chapter for five (5) consecutive years and/or have had at least five (5) consecutive years' experience as a funeral director and embalmer in this state immediately preceding his appointment. Three (3) members shall have been licensed for the practice of funeral directing under this chapter for five (5) consecutive years and/or have had at least five (5) consecutive years' experience as a funeral director immediately preceding his appointment. One (1) member shall be a public member and be appointed from the public at large. The members of the board shall be appointed by the Governor with the advice and consent of the Senate. All appointments shall be for terms of four (4) years from the expiration date of the previous term. Upon the expiration of his or her term of office, a board member shall continue to serve until his or her successor has been appointed and confirmed. Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position which becomes vacant, subject to the advice and consent of the Senate at the next regular session of the Legislature. Appointments for vacancies in office, except those from the public at large, may be made from a joint list of four (4) qualified persons, two (2) each submitted by the Mississippi Funeral Directors Association and the Mississippi Funeral Directors and Morticians Association. Nothing in this chapter or any other statute shall preclude the members of the State Embalming Board from serving as members of the State Board of Funeral Service.
SECTION 3. Section 73-11-49, Mississippi Code of 1972, is amended as follows:
73-11-49. (1) The board is authorized to select from its own membership a chairman, vice chairman and secretary-treasurer. Election of officers shall be held at the first regularly scheduled meeting of the fiscal year.
(2) All members of the board shall be reimbursed for their necessary traveling expenses and mileage incident to their attendance upon the business of the board, as provided in Section 25-3-41, and shall receive a per diem as provided in Section 25-3-69 for every day actually spent upon the business of the board, not to exceed twenty (20) days per year unless authorized by a majority vote of the board.
(3) All monies received by the board shall be paid into a special fund in the State Treasury to the credit of the board and shall be used by the board for paying the traveling and necessary expenses and per diem of the members of the board while on board business, and for paying other expenses necessary for the operation of the board in carrying out and involving the provisions of this chapter.
(4) The board shall employ an administrator of the board, who shall have complete supervision and be held responsible for the direction of the office of the board, shall have supervision over field inspections and enforcement of the provisions of this chapter, shall have such other duties as may be assigned by the board, shall be responsible and answerable to the board. The board may employ such other clerical assistants and employees as may be necessary to carry out the provisions of this chapter, and the terms and conditions of such employment shall be determined by the board in accordance with applicable state law and rules and regulations of the State Personnel Board.
(5) The board, when it shall deem necessary, shall be represented by an assistant attorney general duly appointed by the Attorney General of this state, and may also request and receive the assistance of other state agencies and county and district attorneys, all of whom are authorized to provide the assistance requested.
(6) The board shall have subpoena power in enforcing the provisions of this chapter.
(7) The board may adopt * * * rules and regulations consistent with law concerning, but not limited to, trainees, apprentices and preceptors, practitioners of funeral service, funeral directors, embalmers, funeral attendants, and funeral establishments and branches. These rules and regulations shall not become effective unless promulgated and adopted in accordance with the provisions of the Mississippi Administrative Procedures Law (Section 25-43-1.101 et seq.). * * *
(8) The board may designate the administrator to perform inspections under this chapter, may employ an individual to perform such inspections or may contract with any other individual or entity to perform such inspections. Any individual or entity that performs such inspections shall have the right of entry into any place in which the business or practice of funeral service and/or funeral directing is carried on or advertised as being carried on, for the purpose of inspection, for the investigation of complaints coming before the board and for such other matters as the board may direct.
(9) The board * * * shall not adopt any rule or regulation requiring dead bodies to be embalmed except as required by * * * rule or otherwise by the State Department of Health.
SECTION 4. Section 73-11-51, Mississippi Code of 1972, is amended as follows:
73-11-51. (1) No person shall engage in the business or practice of funeral service, including embalming, and/or funeral directing or hold himself out as transacting or practicing or being entitled to transact or practice funeral service, including embalming, and/or funeral directing in this state unless duly licensed under the provisions of this chapter.
(2) The board is authorized and empowered to examine applicants for licenses for the practice of funeral service and funeral directing and shall issue the proper license to those persons who successfully pass the applicable examination and otherwise comply with the provisions of this chapter.
(3) To be licensed for the practice of funeral directing under this chapter, a person must furnish satisfactory evidence to the board that he or she:
(a) Is at least eighteen (18) years of age;
(b) Has a high school diploma or the equivalent thereof;
(c) Has served as a resident trainee for not less than twenty-four (24) months under the supervision of a person licensed for the practice of funeral service or funeral directing in this state;
(d) Has successfully passed a written and/or oral examination as prepared or approved by the board; and
(e) Is of good moral character.
(4) To be licensed for the practice of funeral service under this chapter, a person must furnish satisfactory evidence to the board that he or she:
(a) Is at least eighteen (18) years of age;
(b) Has a high school diploma or the equivalent thereof;
(c) Has successfully completed twelve (12) months or more of academic and professional instruction from an institution accredited by the United States Department of Education for funeral service education and have a certificate of completion from an institution accredited by the American Board of Funeral Service Education or any other successor recognized by the United States Department of Education for funeral service education;
(d) Has served as a resident trainee for not less than twelve (12) months, either before or after graduation from an accredited institution mentioned above, under the supervision of a person licensed for the practice of funeral service in this state and in an establishment licensed in this state;
(e) Has successfully passed the National Conference of Funeral Examiners examination and/or such other examination as approved by the board; and
(f) Is of good moral character.
(5) All applications for examination and license for the practice of funeral service or funeral directing shall be upon forms furnished by the board and shall be accompanied by an examination fee, a licensing fee and a nonrefundable application fee in amounts fixed by the board in accordance with Section 73-11-56. The fee for an initial license, however, may be prorated in proportion to the period of time from the date of issuance to the date of biennial license renewal prescribed in subsection (8) of this section. All applications for examination shall be filed with the board office at least sixty (60) days before the date of examination. A candidate shall be deemed to have abandoned the application for examination if he does not appear on the scheduled date of examination unless such failure to appear has been approved by the board.
(6) The practice of funeral service or funeral directing must be engaged in at a licensed funeral establishment, at least one (1) of which is listed as the licensee's place of business; and no person, partnership, corporation, association or other organization shall open or maintain a funeral establishment at which to engage in or conduct or hold himself or itself out as engaging in the practice of funeral service or funeral directing until such establishment has complied with the licensing requirements of this chapter. A license for the practice of funeral service or funeral directing shall be used only at licensed funeral establishments; however, this provision shall not prevent a person licensed for the practice of funeral service or funeral directing from conducting a funeral service at a church, a residence, public hall, lodge room or cemetery chapel, if such person maintains a fixed licensed funeral establishment of his own or is in the employ of or an agent of a licensed funeral establishment.
(7) Any person holding a valid, unrevoked and unexpired nonreciprocal license in another state or territory having requirements greater than or equal to those of this state as determined by the board may apply for a license to practice in this state by filing with the board a certified statement from the secretary of the licensing board of the state or territory in which the applicant holds his license certifying to his qualifications and good standing with that board. He/she must also successfully pass a written and/or oral examination on the Mississippi Funeral Service licensing law and rules and regulations as prepared or approved by the board, and must pay a nonrefundable application fee set by the board. If the board finds that the applicant has fulfilled aforesaid requirements and has fulfilled substantially similar requirements of those required for a Mississippi licensee, the board shall grant such license upon receipt of a fee in an amount equal to the renewal fee set by the board for a license for the practice of funeral service or funeral directing, as the case may be, in this state. The board may issue a temporary funeral service or funeral directing work permit before a license is granted, before the next regular meeting of the board, if the applicant for a reciprocal license has complied with all requirements, rules and regulations of the board. The temporary permit will expire at the next regular meeting of the board.
(8) (a) Except as provided in Section 33-1-39, any person holding a license for the practice of funeral service or funeral directing may have the same renewed for a period of two (2) years by making and filing with the board an application on or before the due date. Payment of the renewal fee shall be in an amount set by the board in accordance with Section 73-11-56. The board shall mail the notice of renewal and the due date for the payment of the renewal fee to the last known address of each licensee at least thirty (30) days before that date. It is the responsibility of the licensee to notify the board in writing of any change of address. An application will be considered late if the application and proper fees are not in the board's office or postmarked by the due date. Failure of a license holder to receive the notice of renewal shall not exempt or excuse a license holder from the requirement of renewing the license on or before the license expiration date.
(b) If the renewal fee is not paid on or postmarked by the due date, the license of such person shall by operation of law automatically expire and become void without further action of the board. The board may reinstate such license if application for licensure is made within a period of five (5) years, upon payment of the renewal fee for the current year, all renewal fees in arrears, and a reinstatement fee. After a period of five (5) years, the licensee must make application, pay the current renewal fee, all fees in arrears, and pass a written and/or oral examination as prepared or approved by the board. Notwithstanding the five-year limitation for reinstatement of licenses, the board shall reinstate a license for the practice of funeral directing upon payment of all renewal fees in arrears and a reinstatement fee if application for licensure is made before December 31, 2011, by a licensee who is age sixty-two (62) or older who held a license for the practice of funeral directing in good standing for not less than ten (10) years before the license expired.
(9) No license shall be assignable or valid for any person other than the original licensee.
(10) The board may, in its discretion, if there is a major disaster or emergency where human death is likely to occur, temporarily authorize the practice of funeral directing and funeral service by persons licensed to practice in another state but not licensed to practice in this state. Only persons licensed in this state, however, may sign death certificates.
(11) A person who is licensed for the practice of funeral service by another state is authorized to make a removal of a deceased person, embalm a deceased person or conduct a funeral or burial service in this state, and a funeral director who is licensed by another state is authorized to conduct a funeral or burial service in this state, in the same manner and to the same extent as provided by the laws of that state to persons licensed by the State of Mississippi for the practice of funeral service or for the practice of funeral directing. The board is authorized to enter into written agreements with those states detailing the manner and extent to which persons licensed by the State of Mississippi may practice funeral service or directing in that state.
(12) Any funeral service technology or mortuary science program accredited by the American Board of Funeral Service Education in the State of Mississippi, as well as students enrolled in such a program, shall be exempt from licensing under this chapter when embalming or otherwise preparing a deceased human body for disposition as part of a student practicum experience, when the student is directly supervised by an instructor or preceptor who holds a current funeral service license. This exemption shall apply to practicum experiences performed at an accredited institution of funeral service technology or mortuary science program or at a duly licensed funeral establishment or commercial mortuary service. Nothing in this subsection shall be construed to allow any funeral service technology or mortuary science program, or those students enrolled in such a program, to engage in practicum experiences for remuneration.
(13) Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64.
SECTION 5. Section 73-11-53, Mississippi Code of 1972, is amended as follows:
73-11-53. (1) The State Board of Funeral Service is authorized to establish a trainee and apprenticeship program under which persons desiring to apprentice as a funeral service or funeral directing trainee may be issued a resident traineeship certificate to practice funeral directing or funeral service under the direct on premises supervision of a sponsoring Mississippi-licensed funeral director or funeral service practitioner.
(2) A person desiring to become a resident trainee for the practice of funeral service or funeral directing shall make application to the board. Such application shall be verified by the licensee under whom the applicant is serving, and shall be accompanied by a nonrefundable application fee in an amount set by the board in accordance with Section 73-11-56. When the board is satisfied as to the qualifications of an applicant, it shall issue a certificate of resident traineeship.
(3) The board shall have the power to suspend or revoke a certificate of a resident traineeship for violation of any provision of this chapter.
(4) A resident trainee must serve the apprenticeship in a funeral establishment that is licensed by the State of Mississippi and the preceptor must be a Mississippi-licensed funeral service practitioner or funeral director who is employed by a
Mississippi-licensed funeral establishment and actively practicing within the State of Mississippi. The trainee and apprenticeship program shall consist of at least one thousand (1,000) working or training hours to be completed within no less than twelve (12) months under the direct supervision of a funeral director or funeral service licensee of the board.
(5) A resident trainee may serve under the supervision of more than one (1) preceptor under conditions established by board rules and regulations. The board may also adopt rules that will allow training at more than one (1) funeral establishment under special circumstances.
(6) A resident traineeship certificate shall be valid for one (1) year. The board may renew a resident traineeship certificate if the trainee applies for renewal on a form provided by the board, shows that the training activity continues to satisfy applicable requirements and pays a renewal fee as set by the board. The fee and application will be considered late if the fee and application are not in the office or show a postmark of December 31. Applications received late may be reinstated by the payment of a renewal fee, a reinstatement fee and other applicable fees. Failure to receive a renewal notice does not exempt a resident trainee from the required renewal of his/her traineeship.
(7) A resident trainee shall not advertise or hold himself or herself out as a funeral director, funeral service practitioner, embalmer or use any other title or abbreviation indicating that the trainee is a funeral director, funeral service practitioner or embalmer. A resident trainee does not have the rights and duties of a funeral director or funeral service licensee and is only authorized to act under the direct supervision of the approved preceptor.
SECTION 6. Section 73-11-55, Mississippi Code of 1972, is amended as follows:
73-11-55. (1) No person or party shall conduct, maintain, manage or operate a funeral establishment or branch thereof unless a license for each such establishment has been issued by the board and is conspicuously displayed in such funeral establishment. In case of funeral services held in any private residence, church, cemetery, cemetery chapel, cemetery facility, or lodge hall, no license shall be required.
(2) There shall be four (4) funeral establishment license classifications:
(a) A full-service funeral establishment;
(b) A branch establishment;
(c) A mortuary service establishment; and
(d) A crematory establishment, set up under Section 73-11-69.
(3) To be licensed as a funeral establishment, a place or premise must be at a fixed and specified address or location and must be used for immediate post-death activities, whether used for the custody, shelter, care, preparation and/or embalming of the human dead. Every funeral establishment shall be under the charge and personal supervision of a Mississippi funeral director licensee or a Mississippi funeral service licensee. The licensee in charge and the licensee with personal supervisory responsibilities need not be the same licensee. Each licensed funeral establishment shall be inspected at least once during each licensing period. Such inspections may be unannounced. After inspection of a funeral establishment, if the board cites the funeral establishment for failure to comply with any provision of this chapter or a rule or regulation of the board, the funeral establishment shall resolve the violation to the satisfaction of the board and be in full compliance with this chapter and board rules and regulations not later than thirty (30) days after the board files the inspection report.
(4) (a) A funeral establishment where embalming is conducted must contain an embalming room with a sanitary floor, walls and ceiling, adequate sanitary drainage and disposal facilities, including running water and exhaust fans. A full service funeral establishment must also have adequate casket and/or vault selection room, holding facilities and proper room or rooms in which rites and ceremonies may be held. A funeral establishment shall be subject to an inspection at least once during a two-year license period. Each new establishment must be inspected before the opening. All portions of each facility licensed under this section shall be kept in a clean and sanitary condition.
(b) A branch establishment must contain an office and/or an arrangement room, and a room for viewing and/or a chapel or proper place for ceremonies. A branch establishment need not meet all requirements specified in paragraph (a) of this subsection and need not be under the personal supervision of a Mississippi funeral director licensee or a Mississippi funeral service licensee.
If the branch meets all requirements of a funeral establishment as specified in paragraph (a) of this subsection, such establishment must be under the charge and personal supervision of a Mississippi funeral director licensee or a Mississippi funeral service licensee.
(c) A commercial mortuary service is a funeral establishment that embalms and transports for licensed funeral establishments and does not sell any services or merchandise directly or at retail to the public.
(d) A crematory establishment shall have the authority to cremate dead human bodies and to transport dead human bodies to and from the establishment and must meet the requirements of Section 73-11-69. An establishment licensed only as a crematory establishment is prohibited from the care and preparation of dead human bodies other than by cremating and shall also be prohibited from embalming, making funeral arrangements or cremation arrangements with any person or party that is not licensed by the board, conducting visitations and funeral ceremonies, and furnishing any funeral service in connection with the disposition of dead human bodies or selling funeral merchandise.
(5) Applications for funeral establishment licenses, branch establishment licenses or commercial mortuary service licenses shall be made on blanks furnished by the board and shall be accompanied by a fee in an amount fixed by the board under Section 73-11-56. All establishment licenses shall be issued for a period of two (2) years, except initial licenses may be prorated from the date of issuance to the next renewal date.
Renewal funeral establishment and branch establishment license applications and license fees shall be due and payable to the board on or before the expiration date of the license. The board shall mail the notice of renewal and the due date for payment of the renewal fee at least thirty (30) days before that date. Failure of the license holder to receive the notice of renewal shall not exempt or excuse the holder from the requirement of renewing the license on or before the license expiration date.
(6) If the renewal fee is not paid on or postmarked by the due date, the license shall by operation of law automatically expire and become void without further action of the board. All establishments whose licenses have expired under this section may be reinstated by filing with the board an application for reinstatement, submitting to an inspection during which time the licensee in charge of such establishment shall be interviewed by the board or its designee and by paying all renewal fees, a reinstatement fee, and other applicable fees.
(7) No license shall be assignable or transferable or valid for any establishment other than the original licensee. License fees and application fees are nonrefundable.
(8) A license for each new establishment shall not be issued until an inspection has been made, license and inspection fees have been paid, and the licensee in charge and/or owners of such establishment has been interviewed by the board or its designee.
(9) The board is authorized to establish rules and regulations for the issuance of a special funeral establishment work permit.
SECTION 7. Section 73-11-58, Mississippi Code of 1972, is amended as follows:
73-11-58. (1) If a decedent has left no written authorization for the cremation and/or disposition of the decedent's body as permitted by law, any of the following * * * persons, in the order of priority listed below, may authorize any lawful manner of disposition of the decedent's body by completion of a written instrument:
(a) The person designated by the decedent as authorized to direct disposition pursuant to Public Law No. 109-163, Section 564, as listed on the decedent's United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died during military service, as provided in 10 USC Section 1481(a)(1) through (8), in any branch of the United States Armed Forces, United States Reserve Forces or National Guard.
(b) The surviving spouse.
(c) A surviving child who is at least eighteen (18) years of age * * *.
(d) Either surviving parent.
(e) A surviving sibling who is at least eighteen (18) years of age * * *.
(f) A person acting as a representative of the decedent under a signed authorization of the decedent.
(g) The guardian of the person of the decedent at the time of the decedent's death, if a guardian has been appointed.
(h) A person in the class of the next degree of kinship, in descending order, who, under state law, would inherit the decedent's estate if the decedent died intestate who are at least eighteen (18) years of age * * *.
(i) A person who has exhibited special care and concern for the decedent and is willing and able to make decisions about the cremation and disposition.
* * *
(j) In the case of individuals who have donated their bodies to science or whose death occurred in a nursing home or private institution and in which the institution is charged with making arrangements for the final disposition of the decedent, a representative of the institution may serve as the authorizing agent in the absence of any of the above.
(k) In the absence of any of the above, any person willing to assume responsibility for the cremation and disposition of the decedent.
(l) In the case of indigents or any other individuals whose final disposition is the responsibility of the state or any of its instrumentalities, a public administrator, medical examiner, coroner, state-appointed guardian, or any other public official charged with arranging the final disposition of the decedent may serve as the authorizing agent.
(2) No funeral establishment shall accept a dead human body from any public officer or employee or from the official of any institution, hospital or nursing home, or from a physician or any person having a professional relationship with a decedent, without having first made due inquiry as to the desires of the persons who have the legal authority to direct the disposition of the decedent's body. If any persons are found, their authority and directions shall govern the disposal of the remains of the decedent. Any funeral establishment receiving the remains in violation of this subsection shall make no charge for any service in connection with the remains before delivery of the remains as stipulated by the persons having legal authority to direct the disposition of the body. This section shall not prevent any funeral establishment from charging and being reimbursed for services rendered in connection with the removal of the remains of any deceased person in case of accidental or violent death and rendering necessary professional services required until the persons having legal authority to direct the disposition of the body have been notified.
(3) A person who does not exercise his or her right to dispose of the decedent�s body under subsection (1) of this section within five (5) days of notification or ten (10) days from the date of the death, whichever is earlier, shall be deemed to have waived his or her right to authorize disposition of the decedent�s body or contest disposition in accordance with this section. If, during that time period, the funeral director, funeral service practitioner and/or funeral establishment has been provided contrary written consent from members of a higher or equal priority as to the disposition of the decedent�s body, the licensed funeral director or funeral service practitioner or funeral establishment shall act in accordance with the directive of the greatest number of consents received from members of the class. If that number is equal, the funeral director or funeral service practitioner and/or the funeral establishment shall act in accordance with the earlier consent unless the person(s) providing the later consent is granted an order from a court of competent jurisdiction in which the funeral establishment is located.
(4) If no consent for the embalming, cremation or other disposition of a dead human body from any of the relatives or interested persons or institutions listed above in subsection (1) is received within ten (10) days of the decedent�s death, the coroner for, or other person designated by, the county in which the funeral establishment is located is authorized to sign the consent authorizing the disposition of the decedent�s remains.
(5) If none of the parties listed above in subsection (1) is financially capable of providing for the cremation, embalming or disposition of a dead human body, the coroner for, or other person designated by, the county in which the funeral establishment is located is authorized to sign the consent authorizing the disposition of the decedent�s remains.
(6) The licensed funeral director, funeral service practitioner or funeral establishment shall have authority to control the disposition of the remains of a decedent and proceed to recover the costs for the disposition when: (a) none of the persons or parties described above in subsection (1)(a) through (k) assume responsibility for the disposition of the remains and (b) the coroner or other public official designated in subsection (1)(l) fails to assume responsibility for disposition of the remains within seven (7) days after having been given written notice of the facts. Written notice may be made by personal delivery, United States mail, facsimile or transmission. The method of disposition must be in the least costly and most environmentally sound manner that complies with law, and that does not conflict with known wishes of the decedent.
(7) A funeral director, funeral service, and/or funeral establishment licensee acting in accordance with this section, or attempting in good faith to act in accordance with this section, shall not be subject to criminal prosecution or civil liability for carrying out the otherwise lawful instruction of the person or persons described in this section.
(8) The liability for the reasonable cost of the final disposition of the remains of the decedent devolves upon the individual or entity authorizing the disposition and/or upon the estate of the decedent and, in cases when the county board of supervisors has the right to control the disposition of the remains under this section, upon the county in which the death occurred.
SECTION 8. The following shall be codified as Section 73-11-60, Mississippi Code of 1972:
73-11-60. (1) A funeral establishment and its employees, licensees, and/or representatives shall not respond to a death call unless properly contacted and requested to so respond. No person or entity subject to regulation under this chapter shall remove or cause to be removed any dead human body from the place of death or take or cause to take custody of a dead human body without the permission of the next of kin or authorized representative, in the order of priority specified in Section 73-11-58, of the deceased.
(2) Dead human bodies may be picked up on first call or removed by a funeral director or funeral service practitioner licensed by the board or pursuant to the direction of such licensed funeral director or funeral service practitioner. When a licensed funeral director or funeral service practitioner directs another to make a first call or removal of a dead human body, he or she accepts, in every manner, full responsibility for all aspects of the first call or removal.
(3) A licensed funeral establishment or other licensee of the board shall not embalm or cremate a dead human body without the prior written or oral consent of the next of kin or authorizing agent or representative of the deceased for each body which is placed under its care and custody. In determining who the proper next of kin is or authorizing agent or representation of the deceased, the order of priority is the same as provided in Section 73-11-58.
(4) The licensed funeral establishment or licensee responsible for the embalming or cremation of the dead human body must create a written record of an oral consent given pursuant to this section that includes all of the following:
(a) The name of the authorizing agent.
(b) The relation of the authorizing agent to the deceased.
(c) The date and time that consent was given.
(d) The name of the person who obtained the consent.
(e) Any other information required by the board.
SECTION 9. Section 73-11-69, Mississippi Code of 1972, is amended as follows:
73-11-69. (1) No person or party shall conduct, maintain, manage or operate a crematory unless a license for each such crematory has been issued by the board and is conspicuously displayed in such crematory.
(2) The operator of a crematory facility shall issue a certificate of cremation to the family of each person cremated in the facility. In addition, the operator of the crematory facility shall maintain a log of all cremations performed in the facility, and this log shall match the certificates of cremation that have been issued by the facility.
(3) No operator of a crematory facility shall knowingly represent that an urn or temporary container contains the recovered cremated remains of specific decedent or of body parts removed from a specific decedent when it does not. This subsection does not prohibit the making of such a representation because of the presence in the recovered cremated remains of de minimis amounts of the cremated remains of another decedent or of body parts.
(4) The board shall inspect each licensed crematory facility during each licensure period, and at such other times as necessary, to verify that the crematory facility is in compliance with the requirements of this section. Any person who operates a crematory facility in this state without a license, or any person who otherwise violates any provision of this section, is guilty of a felony. Upon conviction for a violation of this section, in addition to any penalty that may be imposed by the court, the board may revoke the person's crematory facility license.
(5) If the retort of a crematory becomes in need of repair, then the operator of the crematory shall notify the board in writing and by telephone within forty-eight (48) hours of discovery of the need to repair, and no cremation shall be made from the time of discovery until satisfactory proof is provided to the board that the repair has been made.
(6) The board may promulgate such rules and regulations as deemed necessary for the proper licensure and regulation of crematory facilities in this state. Such rules and regulations shall include, but not be limited to, the following: crematory facility requirements, identification of deceased human beings, cremation process, processing of remains, comingling of human remains, disposition of cremated remains, removal of human remains and proper documentation requirements as prescribed by state agencies.
(7) Any crematory or funeral establishment may dispose of any remains unclaimed by the family after twelve (12) months after cremation by scattering or burial upon a final notification to the next of kin by certified mail to their last known address.
(8) The crematory retort operator must be a certified crematory operator as defined in Section 73-11-41.
(9) No crematory facility licensed by the board shall be used for the cremation of deceased animals.
(10) A crematory may be constructed on or adjacent to any cemetery, on or adjacent to any funeral establishment, or at any other location consistent with local zoning regulations.
SECTION 10. This act shall take effect and be in force from and after July 1, 2011.
