No. 43092 (Amendment): Rule R156-9. Funeral Service Licensing Act Rule

(Amendment)

DAR File No.: 43092
Filed: 07/16/2018 01:06:03 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

These proposed amendments conform this rule to changes enacted by H.B. 121 during the 2018 General Session, and clarify and update certain licensing requirements as recommended by the Division of Occupational and Professional Licensing in collaboration with the Funeral Service Board.

Summary of the rule or change:

In Section R156-9-302a, effective June 2017, the Utah Funeral Service Law and Rule Examination required for all applicants for licensure under the Funeral Services Licensing Act -- funeral directors, funeral director interns, and preneed sales agents -- was updated and restructured into two new exams. These two new exams are: 1) the "Utah Funeral Service Director Law and Rule Examination", now required for applicants for licensure as a funeral service director or funeral service intern; and 2) the "Utah Preneed Funeral Arrangement Sales Agent Law and Rule Examination", now required for applicants for licensure as a preneed sales agent. These proposed amendments update this rule to refer to these examination requirements. In Section R156-9-304, these proposed amendments make a minor formatting change for clarity. In Section R156-9-401, these proposed amendments incorporate alkaline hydrolysis into facility/staff requirements for funeral service establishments, in accordance with statutory changes made by H.B. 121 (2018). In Section R156-9-607, these proposed amendments remove the reference to a Division-provided model guaranteed preneed funeral arrangement contract form. Contract requirements are defined by statute and specific forms used should be at the discretion of the establishment and their legal counsel. Minor formatting changes are also made for clarity.

Statutory or constitutional authorization for this rule:

Subsection 58-1-106(1)(a)
Section 58-9-504
Subsection 58-1-202(1)(a)

Anticipated cost or savings to:

the state budget:

In Sections R156-9-302a, R156-9-304, and R156-9-607, these proposed changes only update definitions and ensure that this rule encompasses current practice in the profession, and make formatting changes for clarity. Accordingly, these amendments are not expected to impact state government revenues or expenditures. In Section R156-9-401, these proposed amendments, which incorporate references to the alkaline hydrolysis process into facility/staff requirements for funeral service establishments, only conform this rule to practices required by H.B. 121 (2018); accordingly, the Division of Occupational Professional Licensing (Division) estimates that there will be no impact on state agencies over and above that included in the Fiscal Note for H.B. 121 (2018), available online at: https://le.utah.gov/2018/bills/static/HB0121.html#58-9-617. No other fiscal impact to the state is expected, beyond a minimal cost to the Division of approximately $75 to print and distribute the rule once the proposed amendments are made effective.

local governments:

In Sections R156-9-302a, R156-9-304, and R156-9-607, these proposed changes only update definitions and ensure that this rule encompasses current practice in the profession, and make formatting changes for clarity. Accordingly, these amendments are not expected to impact local governments revenues or expenditures. In Section R156-9-401, these proposed amendments, which incorporate references to the alkaline hydrolysis process into facility/staff requirements for funeral service establishments, only conform this rule to practices required by H.B. 121 (2018); accordingly, the Division estimates that there will be no impact on local governments over and above that included in the fiscal note for H.B. 121 (2018), available online at: https://le.utah.gov/2018/bills/static/HB0121.html#58-9-617.

small businesses:

In Sections R156-9-302a, R156-9-304, and R156-9-607, these proposed changes only update definitions and ensure that this rule encompasses current practice in the profession, and make formatting changes for clarity. Accordingly, these amendments are not expected to impact small businesses revenues or expenditures. In Section R156-9-401, these proposed amendments, which incorporate references to the alkaline hydrolysis process into facility/staff requirements, will apply to all small businesses required to be licensed as funeral service establishments in Utah. There are 140 funeral service establishment licensees in Utah, with approximately 91 small businesses currently participating in the Utah Funeral Homes and Funeral Services industry (NAICS 812210). However, because these proposed amendments only conform this rule to practices already required by H.B. 121 (2018), the Division estimates that there will be no impact on any of these small businesses over and above that included in the fiscal note for H.B. 121 (2018), available online at: https://le.utah.gov/2018/bills/static/HB0121.html#58-9-617.

persons other than small businesses, businesses, or local governmental entities:

In Sections R156-9-302a, R156-9-304, and R156-9-607, these proposed changes only update definitions and ensure that this rule encompasses current practice in the profession, and make formatting changes for clarity. Accordingly, these amendments are not expected to impact other persons. In Section R156-9-401, these proposed amendments only apply to facilities required to be licensed as funeral service establishments in Utah, which are all either small businesses or non-small businesses, and accordingly will not apply to other persons. Additionally, these proposed amendments merely conform this rule to practices already required by H.B. 121 (2018). Therefore, the Division estimates that there will be no impact on other persons over and above any impact included in the fiscal note for H.B. 121 (2018), available online at: https://le.utah.gov/2018/bills/static/HB0121.html#58-9-617.

Compliance costs for affected persons:

Comments by the department head on the fiscal impact the rule may have on businesses:

I have reviewed the proposed filing for the above-referenced rule and considered the fiscal impact that this rule may have on businesses. I direct that my comments about this rule's fiscal impact on businesses be inserted at the appropriate place on the notice form to be filed with the Office of Administrative Rules for publication of this rulemaking action. In Section R156-9-302a, effective June 2017, the Utah Funeral Service Law and Rule Examination required for all applicants for licensure under the Funeral Services Licensing Act - funeral directors, funeral director interns, and preneed sales agents - was updated and restructured into two new exams. These two new exams are: 1) the "Utah Funeral Service Director Law and Rule Examination", now required for applicants for licensure as a funeral service director or funeral service intern; and 2) the "Utah Preneed Funeral Arrangement Sales Agent Law and Rule Examination", now required for applicants for licensure as a preneed sales agent. These proposed amendments update this rule to refer to these examination requirements. In Section R156-9-304, these proposed amendments make a minor formatting change for clarity. In Section R156-9-401, these proposed amendments incorporate alkaline hydrolysis into facility/staff requirements for funeral service establishments, in accordance with statutory changes made by H.B. 121 (2018). In Section R156-9-607, these proposed amendments remove the reference to a Division-provided model guaranteed preneed funeral arrangement contract form. Contract requirements are defined by statute and specific forms used should be at the discretion of the establishment and their legal counsel. Minor formatting changes are also made for clarity. The proposed amendments which conform Section R156-9-401 to H.B. 121 (2018), will not impact small businesses any more than the enrolled bill, which already has a fiscal note (available online at: https://le.utah.gov/2018/bills/static/HB0121.html#58-9-617). The other amendments to this rule have no fiscal impact.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

Robyn Barkdull at the above address, by phone at 801-530-6727, by FAX at 801-530-6511, or by Internet E-mail at rbarkdull@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/31/2018

Interested persons may attend a public hearing regarding this rule:

08/15/2018 09:00 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 475, Salt Lake City, UT

This rule may become effective on:

09/07/2018

Authorized by:

Mark Steinagel, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Person

Total Fiscal Costs:

Fiscal Benefits

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Persons

Total Fiscal Benefits:

Net Fiscal Benefits:

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

Appendix 2: Regulatory Impact to Non - Small Businesses

In Section R156-9-401, these proposed amendments, which incorporate references to the alkaline hydrolysis process into facility/staff requirements, will apply to any non-small businesses required to be licensed as funeral service establishments in Utah. There are currently 140 funeral service establishment licensees in Utah, and there is at least one non-small business currently participating in the Utah Funeral Homes and Funeral Services industry (NAICS 812210). However, because these proposed amendments only conform this rule to practices already required by H.B. 121 (2018), the Division estimates that there will be no impact on any of these non-small businesses over and above that included in the Fiscal Note for H.B. 121 (2018), available online at: https://le.utah.gov/2018/bills/static/HB0121.html#58-9-617.

The head of the Department of Commerce, Francine A. Giani, has reviewed and approved this fiscal analysis.

R156. Commerce, Occupational and Professional Licensing.

R156-9. Funeral Service Licensing Act Rule.

R156-9-302a. Qualifications for Licensure - Examination Requirements.

In accordance with Subsections 58-1-203(1)(d) and 58-1-301(3), the qualifications for licensure in Subsections 58-9-302(1)(g), 58-9-302(2)(e), 58-9-302(4)(e) and 58-9-306(6) and (7) are defined, clarified, or established as follows:

(1) An applicant for licensure as a funeral service director shall pass:

(a) the National Board Examinations (science and art sections) of the Conference of Funeral Service Examining Boards, which[~~. The examination~~] may be taken while the individual is enrolled in an approved funeral service school; and

(b) the Utah Funeral Service Director Law and Rule Examination, with a score of at least 75%.

(2) An applicant for licensure as a [~~funeral service director,~~ ]funeral service intern[~~, preneed sales agent~~] or funeral service director by endorsement shall pass the Utah Funeral Service Director Law and Rule Examination , with a score of at least 75%.

(3) An applicant for licensure as a preneed sales agent shall pass the Utah Preneed Funeral Arrangement Sales Agent Law and Rule Examination, with a score of at least 75%.

([3]4) An individual who fails the Utah Funeral Service Director Law and Rule Examination , or the Utah Preneed Funeral Arrangement Sales Agent Law and Rule Examination, may retake the failed examination:

(a) no more than three times within a [~~six~~]three month period; and

(b) no earlier than three months following any failure thereafter.

R156-9-304. Continuing Professional Education - Funeral Service Directors.

In accordance with Subsections 58-1-203(1)(g) and 58-1-308(3)(b) and Section 58-9-304, the continuing education requirements for funeral service directors is defined, clarified or established as follows:

(1) Continuing professional education shall consist of 20 hours of qualified continuing professional education in each preceding two-year period of licensure or expiration of licensure.

(2) If a renewal period is shortened or extended to effect a change of renewal cycle or if an initial license is granted for a period of less than two years, the continuing professional education hours required for that period shall be increased or decreased [~~accordingly as a pro rata amount of the requirements of a two-year period~~]proportionately.

(3) The standards for qualified continuing professional education are:

(a) College classes, seminars, or workshops sponsored by professional associations in areas related to funeral service will generally qualify for continuing professional education (CPE) if the education contributes to the professional competence and knowledge of the funeral service director and if the program complies with the standards set forth under Subsection (b).

(b) CPE programs shall meet the following standards:

(i) the course shall be formally organized and be primarily instructional;

(ii) the sponsor shall prepare an outline of the course which shall be retained for a minimum of four years following the presentation;

(iii) the sponsor shall list the hour rating of the course in the course outline. One hour of CPE shall be credited for each 50 minute period of instruction;

(iv) the sponsor shall record and keep an accurate record of course attendance including the date, place, and the name of the licensed funeral service directors attending the course; and

(v) the sponsor shall issue a certificate of completion listing the time, date, place, name of licensee, number of hours of CPE completed and the course title.

(c) Formal correspondence or other individual study programs which require registration shall provide evidence of satisfactory completion including test results and meet all other requirements as specified in this section will qualify.

(d) Each semester hour of college credit shall equal 15 hours of CPE. A quarter hour shall equal ten hours of CPE.

(4) Upon written request from the licensee, the Board may waive the requirement for CPE as provided in Section R156-1-308d.

(5) The licensee is responsible to insure that the program will qualify for CPE. Each licensee shall keep an accurate record of CPE on forms supplied by the Division. The records shall be maintained for a minimum of four years.

(6) The Division in collaboration with the Board shall perform random audits to determine if the licensee is in compliance with the CPE requirements. If audited, or upon request by the Division, the licensee is responsible to submit documentation of compliance with CPE requirements.

R156-9-401. Facility/Staff Requirements.

(1) The funeral service establishment is responsible for the maintenance and safe operation of equipment used in funeral services and to insure that the facility is in compliance with the local or state health, fire and life safety codes. All [~~mortuaries~~]funeral service establishments shall be kept and maintained in a clean and sanitary condition , and all refrigeration units, embalming tables, sinks, receptacles, instruments, and other appliances used in embalming, [~~and~~ ]cremation, or alkaline hydrolysis of dead human bodies shall be thoroughly cleansed and disinfected.

(2) The funeral service director is responsible to comply with the standards established by the Occupational Safety and Health Administration for the Federal Government and for the State of Utah.

(3) A funeral establishment or a number of funeral establishments under one management shall contain:

(a) a preparation room equipped with tile, cement, or composition floor, necessary drainage and ventilation. Every preparation room shall be provided with proper and convenient receptacles for refuse, bandages, cotton and other waste materials and supplies. All refuse, bandages, cotton, and other waste materials shall be destroyed in a sanitary manner, in accordance with health regulations.

(b) necessary instruments, supplies and proper protective clothing for the preparation and embalming of dead human bodies for burial, transportation, or other disposition.

(4) The care and preparation of the body for burial or other disposition of all human dead bodies shall be strictly private. No one shall be allowed in the embalming room while a dead body is being embalmed, except the licensed embalmer, intern, staff, public officials in the discharge of their duties and upon request, members of the immediate family of the deceased.

R156-9-607. Contract Forms - Division Model.

(1) [To assist applicants for a funeral service establishment license, the Division shall publish a model guaranteed preneed funeral arrangement contract form which meets the requirements of Section 58-9-701.

~~(2)~~ ]In accordance with [~~the provisions of~~ ]Subsection 58-9-302(3)(e), a funeral service establishment [~~must submit to the Division a copy of the preneed contract form it intends to market for initial licensure and then~~]shall ensure that if any amendments are made to [~~the preneed section in the future~~], any form of contract or agreement that is filed with its application for licensure, the amendments [~~shall~~ ]meet the requirements [~~set forth in~~]of Section 58-9-701 before [~~the~~]that contract or agreement is[~~form may be~~] used in any marketing or sale of[~~the licensee's~~] preneed funeral arrangements[~~plan under that contract form~~].

([3]2) In accordance with the provisions of Subsection 58-9-701(2)(a), easy-to-read type size is [~~hereby~~ ]defined to be of a type size large enough to accommodate no more than six lines per vertical inch and no more than 15 characters per horizontal inch.

([4]3) After April 30, 2007, a new preneed contract form is not required to contain a clause indicating that the Division has approved the contract. Preneed contract forms approved prior to April 30, 2007 , shall continue to contain a clause indicating approval by the Division.

KEY: funeral industries, licensing, funeral service directors, preneed funeral arrangements

Date of Enactment or Last Substantive Amendment: [~~October 9, 2014~~]2018

Notice of Continuation: April 26, 2016

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 58-9-504