HOUSE BILL 168

49th legislature - STATE OF NEW MEXICO - second session, 2010

INTRODUCED BY

Al Park

AN ACT

RELATING TO THANATOPRACTICE; PROHIBITING FUNERAL HOMES FROM HOLDING A BODY PENDING PAYMENT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 61-32-24 NMSA 1978 (being Laws 1993, Chapter 204, Section 24, as amended) is amended to read:

     "61-32-24. DISCIPLINARY PROCEEDINGS--JUDICIAL REVIEW.--

          A. The board, in accordance with the procedures set forth in the Uniform Licensing Act, may take disciplinary action against any licensee, temporary licensee or applicant.           B. The board has the authority to take any action set forth in Section 61-1-3 NMSA 1978 upon a finding by the board that the applicant or licensee is guilty of any of the following acts of commission or omission:

                (1) conviction of an offense punishable by incarceration in a state penitentiary or federal prison, provided the board receives a copy of the record of conviction, certified to by the clerk of the court entering the conviction, which shall be conclusive evidence of the conviction;

                (2) fraud or deceit in procuring or attempting to procure a license;

                (3) gross negligence or incompetence;

                (4) unprofessional or dishonorable conduct, which includes:

                     (a) misrepresentation or fraud;

                     (b) false or misleading advertising;

                     (c) solicitation of dead human bodies by the licensee, [his] or the licensee's agents, assistants or employees, whether the solicitation occurs after death or while death is impending, provided that this shall not be deemed to prohibit general advertising;

                     (d) solicitation or acceptance by a licensee of [any] a commission, bonus or rebate in consideration of recommending or causing a dead human body to be disposed of in [any] a cemetery, mausoleum or crematory;

                     (e) using any funeral merchandise previously purchased, in whole or in part, except for transportation purposes, without prior written permission of the person selecting or paying for the use of the merchandise; and

                     (f) failing to make disposition of a dead human body in the enclosure or container that was purchased for that purpose by the arrangers;

                (5) violation of [any of] the provisions of the Thanatopractice Act or [any] a rule of the board;

                (6) violation of any local, state or federal ordinance, law or regulation affecting the practice of funeral service, direct disposition or cremation, including the Prearranged Funeral Plan Regulatory Law or any regulations ordered by the superintendent of insurance;

                (7) willful or negligent practice beyond the scope of the license issued by the board;

                (8) refusing to release properly a dead human body to the custody of the person or entity who has the legal right to effect the release, [when] whether or not the authorized cost has been paid;

                (9) failure to secure a necessary permit required by law for removal from this state or cremation of a dead human body;

                (10) knowingly making a false statement on a certificate of death;

                (11) failure to give full cooperation to the board or one of its committees, staff, inspectors, agents or an attorney for the board in the performance of official duties;

                (12) has had a license, certificate or registration to practice revoked, suspended or denied in any jurisdiction, territory or possession of the United States or another country for actions of the licensee or applicant similar to acts described in this subsection. A certified copy of the record of the jurisdiction taking the disciplinary action is conclusive evidence of the violation;

                (13) failure to supervise adequately subordinate personnel;

                (14) conduct unbecoming a licensee or detrimental to the safety or welfare of the public;

                (15) employing fraudulent billing practices; or

                (16) practicing funeral service, direct disposition or cremation without a current license.

          C. In addition to the offenses listed in Subsection B of this section, the board has the authority to take any action set forth in Section 61-1-3 NMSA 1978 upon a finding by the board that a person who is licensed as or is an applicant for a license as a funeral service practitioner, associate funeral service practitioner, assistant funeral service practitioner or funeral service intern is guilty of any of the following acts of commission or omission:

                (1) practicing funeral service without a license or aiding or abetting an unlicensed person to practice funeral service; or

                (2) permitting an associate funeral service practitioner, assistant funeral service practitioner or a funeral service intern to exceed the limitations set forth in the provisions of the Thanatopractice Act or the rules of the board.

          D. In addition to the offenses listed in Subsection B of this section, the board has the authority to take any action set forth in Section 61-1-3 NMSA 1978 upon a finding by the board that a direct disposer licensee or applicant or a direct disposition establishment licensee or applicant is guilty of any of the following acts of commission or omission:

                (1) embalming, restoring, acting as a cosmetician or in any way altering the condition of a dead human body, except for washing and dressing;

                (2) causing a body to be embalmed when embalming is not required by a place of disposition;

                (3) prior to interment, entombment or other final disposition of a dead human body, participating in any rites or ceremonies in connection with such final disposition of the body or providing facilities for any such rites or ceremonies;

                (4) reclaiming, transporting or causing to be transported a dead human body after written release for disposition; or

                (5) practicing direct disposition without a license or aiding or abetting an unlicensed person to practice direct disposition.

          E. In addition to the offenses listed in Subsection B of this section, the board has the authority to take any action set forth in Section 61-1-3 NMSA 1978 upon a finding by the board that a crematory licensee or applicant or a crematory authority is guilty of any of the following acts of commission or omission:

                (1) engaging or [holding oneself out] making any representation as engaging in the practice of funeral service or direct disposition, unless the applicant or crematory authority has a license to practice funeral service or direct disposition;

                (2) operating a crematory without a license or aiding and abetting a crematory to operate without a license; or

                (3) engaging in conduct or activities for which a license to engage in the practice of funeral service or direct disposition is required or aiding and abetting an unlicensed person to engage in conduct or activities for which a license to practice funeral service or direct disposition is required.

          F. Unless exonerated by the board, persons who have been subjected to formal disciplinary sanctions by the board shall be responsible for the payment of costs of the disciplinary proceedings, which include costs for:

                (1) court reporters;

                (2) transcripts;

                (3) certification or notarization;

                (4) photocopies;

                (5) witness attendance and mileage fees;

                (6) postage for mailings required by law;

                (7) expert witnesses; and

                (8) depositions.

          G. All fees, fines and costs imposed on an applicant, licensee, establishment or crematory shall be paid in full to the board before an initial or renewal license may be issued."

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