Bill Text: MS SB2090 | 2023 | Regular Session | Engrossed
Bill Title: Board of Funeral Services; revise provisions related to.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2023-03-28 - Approved by Governor [SB2090 Detail]
Download: Mississippi-2023-SB2090-Engrossed.html
MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary, Division A
By: Senator(s) England
Senate Bill 2090
(As Passed the Senate)
AN ACT TO AMEND SECTION 73-11-51, MISSISSIPPI CODE OF 1972, TO REVISE THE LICENSING REQUIREMENTS FOR FUNERAL DIRECTORS TO REQUIRE APPLICANTS TO HAVE SERVED AS A RESIDENT TRAINEE FOR NOT LESS THAN TWELVE MONTHS UNDER THE SUPERVISION OF A LICENSED FUNERAL DIRECTOR; TO AMEND SECTION 73-11-53, MISSISSIPPI CODE OF 1972, TO REVISE CERTAIN TIME REQUIREMENTS RELATED TO THE FUNERAL DIRECTOR TRAINEE AND APPRENTICESHIP PROGRAM; TO BRING FORWARD SECTION 73-11-57, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; TO CREATE NEW SECTION 73-11-57.2, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT NO PERSON OR ENTITY SHALL ENGAGE IN ANY ACTIVITY FOR WHICH A LICENSE IS REQUIRED UNDER THE CHAPTER WITHOUT HOLDING SUCH LICENSE IN GOOD STANDING; TO PROVIDE THAT A PERSON MAY NOT BE, ACT AS, OR ADVERTISE OR HOLD HIMSELF OR HERSELF OUT TO BE A FUNERAL SERVICE, A FUNERAL DIRECTOR, OR A CERTIFIED CREMATORY OPERATOR UNLESS HE OR SHE IS CURRENTLY LICENSED BY THE BOARD; TO AUTHORIZE THE BOARD OF FUNERAL SERVICE TO ISSUE ADMINISTRATIVE COMPLAINTS TO ANY PERSON OR ENTITY WHO IT BELIEVES HAS VIOLATED PROVISIONS OF THE LAW; TO ALLOW THE BOARD TO IMPOSE A FINE OF UP TO $5,000.00 FOR VIOLATIONS OF THE CHAPTER; TO AUTHORIZE THE BOARD TO HOLD AND CONDUCT HEARINGS ON SUBJECT VIOLATIONS; TO AUTHORIZE THE BOARD TO ISSUE AN EMERGENCY ORDER UPON AN UNLICENSED PERSON OR ENTITY; TO EMPOWER THE BOARD TO FILE FOR AN INJUNCTION SEEKING ENFORCEMENT OF THE EMERGENCY ORDER; TO PROVIDE THAT AN AGGRIEVED PARTY MAY APPEAL FROM THE ASSESSMENT AND LEVY OF A MONETARY PENALTY; TO AMEND SECTION 73-11-58, MISSISSIPPI CODE OF 1972, TO REVISE CERTAIN TIME REQUIREMENTS RELATED TO THE DISPOSITION OF DECEDENT'S BODIES BY FUNERAL SERVICE PRACTITIONERS; TO PRECLUDE AT-FAULT PARTIES FROM DECIDING THE DISPOSITION OF A DECEDENT'S REMAINS; TO AMEND SECTION 73-11-69, MISSISSIPPI CODE OF 1972, TO REVISE THE NOTICE REQUIREMENT BEFORE A CREMATORY OR FUNERAL ESTABLISHMENT MAY DISPOSE OF UNCLAIMED REMAINS; TO AMEND SECTION 73-11-71, MISSISSIPPI CODE OF 1972, TO REVISE THE WRITTEN ACKNOWLEDGMENT FORM THAT IS OBTAINED FROM THE PERSON ENTITLED TO CONTROL THE DISPOSITION OF CREMATED REMAINS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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 * * * twelve
(12) 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. The issuance of a license or temporary permit by reciprocity to a military-trained applicant, military spouse or person who establishes residence in this state shall be subject to the provisions of Section 73-50-1 or 73-50-2, as applicable.
(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.
(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) 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.
(12) 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 2. 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 whereby persons desiring to apprentice as a funeral service or funeral director 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 funeral
service trainee and apprenticeship program shall be completed within no less than
twelve (12) months or more than eighteen (18) months under the direct supervision
of a funeral director or funeral service licensee of the board. The funeral director
trainee and apprenticeship program shall be completed within no less than * * * twelve (12) months or more than * * *
eighteen (18) 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 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 3. Section 73-11-57, Mississippi Code of 1972, is brought forward as follows:
73-11-57. (1) The board, upon satisfactory proof at proper hearing and in accordance with the provisions of this chapter and the regulations of the board, may suspend, revoke, or refuse to issue or renew any license under this chapter, reprimand or place the holder of a license on a term of probation, and/or take any other action in relation to a license as the board may deem proper under the circumstances upon any of the following grounds:
(a) The employment of fraud or deception in applying for a license or in passing the examination provided for in this chapter;
(b) The erroneous issuance of a license to any person;
(c) The conviction of a felony by any court in this state or any federal court or by the court of any other state or territory of the United States; having been convicted of or pled guilty to a felony in the courts of this state or any other state, territory or country which would prevent a person from holding elected office. Conviction, as used in this paragraph, shall include a deferred conviction, deferred prosecution, deferred sentence, finding or verdict of guilt, an admission of guilty, or a plea of nolo contendere;
(d) The practice of embalming under a false name or without a license for the practice of funeral service;
(e) The impersonation of another funeral service or funeral directing licensee;
(f) The permitting of a person other than a funeral service or funeral directing licensee to make arrangements for a funeral and/or form of disposition;
(g) Violation of any provision of this chapter or any rule or regulation of the board;
(h) Having had a license for the practice of funeral service or funeral directing suspended or revoked in any jurisdiction, having voluntarily surrendered his license in any jurisdiction, having been placed on probation in any jurisdiction, having been placed under disciplinary order(s) or other restriction in any manner for funeral directing and/or funeral service, or operating a funeral establishment (a certified copy of the order of suspension, revocation, probation or disciplinary action shall be prima facie evidence of such action);
(i) Solicitation of dead human bodies by the licensee, his agents, assistants or employees, whether such solicitation occurs after death or when death is imminent; if the person solicited has made known a desire not to receive the communication, or if the solicitation involves coercion, duress or harassment, or if the solicitation takes place at the residence of the client or prospective client and is uninvited by the client or prospective client and has not been previously agreed to by the client or prospective client; however, this shall not be deemed to prohibit general advertising;
(j) Employment directly or indirectly of any apprentice, agent, assistant, employee, or other person, on a part-time or full-time basis or on commission, for the purpose of calling upon individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral establishment;
(k) Failure to give full cooperation to the board and/or its designees, agents or other representatives in the performance of official duties of the board. Such failure to cooperate includes, but is not limited to:
(i) Not furnishing any relevant papers or documents requested by or for the board;
(ii) Not furnishing, in writing, an adequate explanation covering the matter contained in a complaint filed with the board;
(iii) Not responding without cause to subpoenas issued by the board, whether or not the licensee is the party charged in any preceding before the board;
(iv) Not reasonably providing access, as directed by the board for its authorized agents or representatives seeking to perform reviews or inspections at facilities or places utilized by the license holder in the practice of funeral service or funeral directing and/or in performing any other activity regulated by the board under this chapter;
(v) Failure to provide information within the specified time allotted and as required by the board and/or its representatives or designees;
(vi) Failure to cooperate with the board or its designees or representatives in the investigation of any alleged misconduct or interfering with a board investigation by willful misrepresentation of facts;
(vii) Deceiving or attempting to deceive the board regarding any matter under investigation, including altering or destroying any records; and
(viii) Failure, without good cause, to cooperate with any request by the board to appear before it;
(l) Knowingly performing any act that in any way assists an unlicensed person to practice funeral service or funeral directing;
(m) Knowingly making a false statement on death certificates;
(n) Conviction of a crime involving moral turpitude;
(o) Violating any statute, ordinance, rule or regulation of the state or any of its boards, agencies or political subdivisions affecting the registration of deaths or the handling, custody, care or transportation of dead human bodies; or
(p) Unprofessional conduct in the practice of funeral service or funeral directing which includes, but is not limited to:
(i) Retaining a dead human body for the payment of a fee for the performance of services that are not authorized;
(ii) Knowingly performing any act which in any way assists an unlicensed person to practice funeral service or funeral directing;
(iii) Being guilty of any dishonorable conduct likely to deceive, defraud or harm the public;
(iv) Any act or omission in the practice of funeral service or directing which constitutes dishonesty, fraud or misrepresentation with the intent to benefit the licensee, another person or funeral establishment, or with the intent to substantially injure another person, licensee or funeral establishment; or
(v) Any act or conduct, whether the same or of a different character than specified above, which constitutes or demonstrates bad faith, incompetency or untrustworthiness; or dishonest, fraudulent or improper dealing; or any other violation of the provisions of this chapter, the rules and regulations established by the board or any rule or regulation promulgated by the Federal Trade Commission relative to the practice of funeral service or funeral directing.
(2) Any person, including a member of the board, may initiate a complaint against a licensee of the board by filing with the board a written complaint on a form prescribed by the board.
(a) Upon receipt of a properly verified complaint, the board shall send a copy of the complaint to the affected licensee by certified mail to the address of such licensee appearing of record with the board. The licensee shall answer the complaint in writing within twenty (20) days after receipt of the complaint. The licensee shall mail a copy of his, her or its response to the board and the complainant. Upon receipt of the licensee's response or lapse of twenty (20) days, the board is authorized to investigate a complaint that appears to show the existence of any of the causes or grounds for disciplinary action as provided in Section 73-11-57. Upon finding reasonable cause to believe that the charges are not frivolous, unfounded or filed in bad faith, the board may, in its discretion, cause a hearing to be held, at a time and place fixed by the board, regarding the charges that a violation of this chapter has occurred. The board shall order a hearing for the licensee to appear and show cause why he/she should not be disciplined for a violation of this chapter.
(b) The board shall give the complainant and the affected licensee twenty (20) days' notice of any hearing upon a complaint. Such notice shall be by United States certified mail.
(c) Any party appearing before the board may be accompanied by counsel.
(d) Before commencing a hearing, the chairman or designee of the board shall determine if all parties are present and ready to proceed. If the complainant fails to attend a hearing without good cause shown, the complaint shall be dismissed summarily and all fees and expenses of convening the hearing shall be assessed to, and paid by, the complainant. If any affected licensee fails to appear for a hearing without good cause shown, such licensee shall be presumed to have waived his right to appear before the board and be heard.
(e) Upon the chair's determination that all parties are ready to proceed, the chair or designee shall call the hearing to order and the complainant and the licensee may give opening statements. The board may order the sequestration of nonparty witnesses.
(f) The complainant shall then present his, her or its complaint. The licensee, any counsel and any member or designee of the board may ask questions of witnesses.
(g) The licensee shall then present his, her or its case in rebuttal. The complainant, any counsel and any member or designee of the board may ask questions of witnesses.
(h) At the completion of the evidence, all parties may give closing statements.
(i) At the conclusion of the hearing, the board may either decide the issue at that time or take the case under advisement for further deliberation. The board shall render its decision not more than ninety (90) days after the close of the hearing and shall forward the decision to the last-known business or residence address of the parties.
(3) The board, on its own motion, may file a formal complaint against a licensee.
(4) The board may temporarily suspend a license under this chapter without any hearing, simultaneously with the institution of proceedings under this section, if it finds that the evidence in support of the board's determination is clear, competent and unequivocal and that the licensee's continuation in practice would constitute an imminent danger to public health and safety.
(5) The board may, upon satisfactory proof that the applicant or licensee has been guilty of any of the offenses above enumerated, take the action authorized by this section against an applicant or licensee of the board upon a majority vote of the board members, after a hearing thereon. The board is vested with full power and authority to hold and conduct such hearings, compel the attendance of witnesses and the production of books, records and documents, issue subpoenas therefor, administer oaths, examine witnesses, and do all things necessary to properly conduct such hearings. The board may waive the necessity of a hearing if the person accused of a violation admits that he has been guilty of such offense. Any person who has been refused a license or whose license has been revoked or suspended may, within thirty (30) days after the decision of the board, file with the board a written notice stating that he feels himself aggrieved by such decision and may appeal therefrom to the circuit court of the county and judicial district of residence of the person, or if the person is a nonresident of the State of Mississippi, to the Circuit Court of the First Judicial District of Hinds County. The circuit court shall determine the action of the board was in accord or consistent with law, or was arbitrary, unwarranted or an abuse of discretion. The appeal shall be perfected upon filing notice of the appeal with the circuit court and by the prepayment of all costs, including the cost of the preparation of the record of the proceedings by the board. An appeal from the circuit court judgment or decree may be reviewed by the Supreme Court as is provided by law for other appeals. An appeal of a decision or order of the board does not act as a supersedeas.
(6) In addition to any other power that it has, the board may, upon finding that an applicant or licensee has committed any of the violations listed in Section 73-11-57(1), impose a monetary penalty as follows:
(a) For the first violation of any of the subparagraphs of subsection (1) of this section, a monetary penalty of not more than Five Hundred Dollars ($500.00).
(b) For the second violation of any of the subparagraphs of subsection (1) of this section, a monetary penalty of not more than One Thousand Dollars ($1,000.00).
(c) For the third and any subsequent violation of any of the subparagraphs of subsection (1) of this section, a monetary penalty of not more than Five Thousand Dollars ($5,000.00).
(d) For any violation of any of the subparagraphs of subsection (1) of this section, those reasonable costs that are expended by the board in the investigation and conduct of a proceeding for licensure revocation or suspension, including, but not limited to, the cost of process service, court reporters, expert witnesses and investigators.
(7) The power and authority of the board to assess and levy such monetary penalties hereunder shall not be affected or diminished by any other proceeding, civil or criminal, concerning the same violation or violations except as provided in this section.
(8) A licensee shall have the right of appeal from the assessment and levy of a monetary penalty as provided in this section under the same conditions as a right of appeal is provided elsewhere for appeals from an adverse ruling, order or decision of the board.
(9) Any monetary penalty assessed and levied under this section shall not take effect until after the time for appeal shall have expired.
(10) A monetary penalty assessed and levied under this section shall be paid to the board by the licensee upon the expiration of the period allowed for appeal of such penalties under this section or may be paid sooner if the licensee elects.
With the exception of subsection (5)(d) of this section, monetary penalties collected by the board under this section shall be deposited in the State Treasury to the credit of the State Board of Funeral Service. Any monies collected by the board under subsection (5)(d) of this section shall be deposited into the special fund operating account of the board.
(11) When payment of a monetary penalty assessed and levied by the board against a licensee in accordance with this section is not paid by the licensee when due under this section, the board shall have power to institute and maintain proceedings in its name for enforcement of payment in the chancery court of the county and judicial district of residence of the licensee, or if the licensee is a nonresident of the State of Mississippi, in the Chancery Court of the First Judicial District of Hinds County, Mississippi.
(12) In any administrative or judicial proceeding in which the board prevails, the board shall have the right to recover reasonable attorney fees.
(13) In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 4. The following shall be codified as Section 73-11-57.2, Mississippi Code of 1972:
73-11-57.2 (1) No person or entity shall engage in any activity for which a license is required under this chapter, without holding such licensure in good standing.
(2) A person may not be, act as, or advertise or hold himself or herself out to be a funeral service, a funeral director, or a certified crematory operator unless he or she is currently licensed by the board.
(3) When the board has reasonable cause to believe that any person or entity not licensed under this chapter has violated any provision of this chapter or any rule adopted under this chapter, the board may issue an administrative complaint to such person or entity, alleging violation of this chapter and providing notice therein of intent by the board to order such person to cease and desist from the alleged violation of this chapter, to take corrective action, including payment of restitution to persons adversely affected by the violation, to pay the board's reasonable costs of investigation and prosecution, or to impose a fine of up to Five Thousand Dollars ($5,000.00) upon such person for each violation of this chapter alleged in the administrative complaint.
When issuing an administrative complaint to such person or entity, the board shall order a hearing for the subject individual or entity to appear and show cause why he/she should not be disciplined for a violation of this chapter. Any party appearing before the board may be accompanied by counsel. The board is vested with full power and authority to hold and conduct such hearings, compel the attendance of witnesses and the production of books, records and documents, issue subpoenas therefor, administer oaths, examine witnesses, and do all things necessary to properly conduct such hearings.
(4) Where the board determines that an emergency exists regarding any violation of this chapter by any unlicensed person or entity, the board may issue and serve an emergency order upon such unlicensed person or entity. Such an emergency order may impose such prohibitions and requirements as are reasonably necessary to protect the public health, safety and welfare. Such emergency order shall be effective on the date of service on the unlicensed person or entity.
(a) For the purpose of enforcing such an emergency order, the board may file in circuit court for an injunction or other order seeking enforcement of the emergency order. The court shall issue its injunction or other order enforcing the emergency order pending administrative resolution of the matter under subsection (3) of this section, unless the court determines that such action would work a manifest injustice under the circumstances. Venue for judicial actions under this section shall be, at the election of the board, in the Circuit Court of Rankin County or in a circuit court of a county where the respondent resides or has a place of business.
(b) After serving an emergency order on any person or entity, the board shall within ten (10) days issue and serve upon the same person or entity an administrative complaint as set forth in subsection (3) of this section, except that, absent order of a court to the contrary, the emergency order will be effective throughout the pendency of proceedings under subsection (3) of this section.
(5) For the purpose of this section, the violation of this chapter by a person who is not licensed under this chapter or by any person who aids and abets the unlicensed activity shall be presumed to be irreparable harm to the public health, safety, or welfare.
(6) Any administrative complaint or emergency order under this section may be served in person by a board employee or by certified mail, return receipt requested, to the subject's place of residence or business, or by other means authorized by law.
(7) An aggrieved party shall have the right of appeal from the assessment and levy of a monetary penalty as provided in this section under the same conditions as a right of appeal is provided elsewhere for appeals from an adverse ruling, order or decision of the board.
SECTION 5. Section 73-11-58, Mississippi Code of 1972, is amended as follows:
73-11-58. (1) Residents of the state shall have the right to direct their own disposition without interference from others, regardless of their relationship. This right of self-authorization can be executed through the use of the Self-Directed Disposition Authorization document. This document shall supersede the wishes and rights commonly executed by the next of kin. 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 majority of the
surviving * * * children who * * *
are at least eighteen (18) years of age and can be located within five
(5) days from the date of death.
(d) A grandchild who is at least eighteen (18) years of age.
(e) Either surviving parent.
(f) A surviving sibling who is at least eighteen (18) years of age.
(g) A person acting as a representative of the decedent under a signed authorization of the decedent.
(h) The guardian of the person of the decedent at the time of the decedent's death, if a guardian has been appointed.
(i) 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 and who is at least eighteen (18) years of age.
(j) 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.
(k) 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.
(l) In the absence of any of the above, any person willing to assume responsibility for the cremation and disposition of the decedent.
(m) 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) The provisions of subsection (1) of this section shall not apply to any listed person, regardless of priority, when that person has been finally adjudicated by a court of competent jurisdiction to be at fault for the decedent's death, whether that liability be criminal or civil. Such persons shall be barred and precluded from deciding the disposition of the decedent's body.
(a) Upon motion by the state or any person listed in subsection (1) of this section in the chancery court of the county of the decedent's residence, the chancellor shall designate the next available person listed in subsection (1) of this section and such person may then authorize any lawful manner of disposition of the decedent's body by completion of a written instrument.
(b) If a criminal prosecution arising from the decedent's death is actively ongoing at the time of the disposition of the decedent's remains, the chancellor may request a bond be filed with the court in the sum of Five Thousand Dollars ($5,000.00) by the moving party before granting the motion.
( * * *3) 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.
( * * *4) 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 * * * from the date of
the death 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 the aforesaid time period, the funeral director, funeral service practitioner
and/or funeral establishment has been provided contrary written consent from members
of the same class with the highest priority as to the disposition of the decedent's
body, the licensed funeral director or 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, and such order will be filed and paid for by the family of the deceased
within twenty (20) days from the date of death.
( * * *5) 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) of this section 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.
( * * *6) If none of the parties listed above
in subsection (1) of this section 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.
( * * *7) 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 (l) assume responsibility for the disposition of the remains, and
(b) the coroner or other public official designated in subsection (1)(m) 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.
( * * *8) 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
instructions of the person or persons described in this section.
( * * *9) 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 6. 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, commingling 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 * * *.
(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 7. Section 73-11-71, Mississippi Code of 1972, is amended as follows:
73-11-71. (1) Upon the completion of each cremation, and insofar as is practicable, all of the recoverable residue of the cremation process shall be removed from the crematory and placed in a separate container so that the residue may not be commingled with the cremated remains of other persons. Cremated remains of a dead human shall not be divided or separated without the prior written consent from the person entitled to control the disposition of the cremated remains.
(2) Written acknowledgement from the person entitled to control the disposition of the cremated remains shall be obtained by the person with whom arrangements are made for disposition of the remains on a form that includes, but is not limited to, the following information:
"The human body burns with the casket, container or other material in the cremation chamber. Some bone fragments are not combustible at the incineration temperature and, as a result, remain in the cremation chamber. During the cremation, the contents of the chamber may be moved to facilitate incineration. The chamber is composed of ceramic or other material which disintegrates slightly during each cremation and the produce of that disintegration is commingled with the cremated remains. Nearly all of the contents of the cremation chamber, consisting of the cremated remains, disintegrated chamber material, and small amounts of residue from previous cremations, are removed together and crushed, pulverized or ground to facilitate inurnment or scattering. Some residue remains in the cracks and uneven places of the chamber. Periodically, the accumulation of this residue is removed and interred or scattered in a dedicated cemetery property or appropriate area."
The acknowledgment shall be filed and retained for at least three (3) years by the person who disposes of or inters the remains.
SECTION 8. This act shall take effect and be in force from and after July 1, 2023, and shall stand repealed on June 30, 2023.
