AN ACT
RELATING TO THANATOPRACTICE;
CLARIFYING SECTIONS OF THE THANATOPRACTICE ACT; PROVIDING FOR CIVIL PENALTIES
FOR UNLICENSED PRACTICE OF THANATOPRACTICE; AMENDING AND ENACTING SECTIONS OF
THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. Section 61-32-4 NMSA 1978 (being Laws 1993,
Chapter 204, Section 4) is amended to read:
"61-32-4. LICENSE REQUIRED.--
A. Unless licensed to practice under the
Thanatopractice Act, a person shall not:
(1) practice as a funeral service practitioner,
associate funeral service practitioner, assistant funeral service practitioner,
funeral service intern or direct disposer;
(2) use the title or represent himself as a
funeral service practitioner, associate funeral service practitioner, assistant
funeral service practitioner, funeral service intern or direct disposer or use
any other title, abbreviation, letters, figures, signs or devices that indicate
the person is licensed to practice as a funeral service practitioner, associate
funeral service practitioner, assistant funeral service practitioner, funeral
service intern or direct disposer; or
(3) maintain, manage or operate a funeral
establishment, a commercial establishment, a direct disposition establishment
or a crematory.
B. A person who engages in the practice or acts
in the capacity of a funeral service practitioner, associate funeral service
practitioner, assistant funeral service practitioner, funeral service intern or
direct disposer in this state, with or without a New Mexico license, is subject
to the jurisdiction of the state and to the administrative jurisdiction of the
board and is subject to all penalties and remedies available for a violation of
a provision of the Thanatopractice Act.
C. A person who maintains, manages or operates a
funeral establishment, commercial establishment, direct disposition
establishment or a crematory in this state, with or without a New Mexico
establishment or crematory license, is subject to the jurisdiction of the state
and to the administrative jurisdiction of the board and is subject to all
penalties and remedies available for a violation of a provision of the
Thanatopractice Act."
Section 2. Section 61-32-8 NMSA 1978 (being Laws 1993,
Chapter 204, Section 8, as amended) is amended to read:
"61-32-8. INSPECTION--ACCESS--COUNSEL.--
A. Inspection of establishments and crematories,
including all records, financial or otherwise, is authorized during regular
business hours. Acceptance of a license
shall include permission for the board or its designee to enter the premises
without legal process.
B. An establishment or crematory shall maintain
business records required by law or rule at the establishment or crematory.
C. The board shall be represented by the
attorney general. The board may employ
special counsel, upon approval of the attorney general, to review and prosecute
cases of consumer complaints against any person, establishment or crematory
licensed pursuant to the Thanatopractice Act.
Payment for the services shall be by the board."
Section 3. Section 61-32-9 NMSA 1978 (being Laws 1993,
Chapter 204, Section 9, as amended) is amended to read:
"61-32-9. REQUIREMENTS FOR LICENSURE--FUNERAL SERVICE
PRACTITIONER--FUNERAL SERVICE INTERN--DIRECT DISPOSER--ASSOCIATE FUNERAL
SERVICE PRACTITIONER--ASSISTANT FUNERAL SERVICE PRACTITIONER--TEMPORARY
LICENSES.--
A. A license to practice as a funeral service
practitioner shall be issued to any person who files a completed application,
accompanied by the required fees and documentation, and who submits
satisfactory evidence that he:
(1) is at least eighteen years of age;
(2) has served as a licensed funeral service
intern for not less than twelve months, under the supervision of a licensed
funeral service practitioner. During the
training period, the applicant shall have assisted in the embalming of at least
fifty bodies, making of at least fifty funeral arrangements and the directing
of at least fifty funerals;
(3) has successfully completed any examination,
including a jurisprudence examination, prescribed by board rules;
(4) has not been convicted of unprofessional
conduct or incompetency;
(5) has graduated from an institution accredited
by the American board of funeral service education or any other successor
recognized by the United States office of education for funeral service
education; and
(6) has successfully completed at least sixty
semester hours of academic and professional instruction in an accredited
college or university; provided, however, that an assistant funeral service
practitioner need not satisfy the provisions of Paragraphs (5) and (6) of this
subsection if the assistant funeral service practitioner has successfully
completed examinations required by the board for practice as an associate
funeral service practitioner and a funeral service practitioner.
B. A license to practice as a funeral service
intern shall be issued to any person who files a completed application,
accompanied by the required fees and documentation, and who submits
satisfactory evidence that he:
(1) is at least eighteen years of age;
(2) has graduated from high school or the
equivalent;
(3) has submitted proof of employment and
supervision as required by board rules.
Except as may be allowed by board rule, a license as a funeral service
intern is not ambulatory and is issued for a specific funeral establishment
only;
(4) has successfully completed any examination,
including a jurisprudence examination, prescribed by board rules; and
(5) has not been convicted of unprofessional
conduct or incompetency.
C. A license to practice as a direct disposer
shall be issued to any person who files a completed application, accompanied by
the required fees and documentation, and who submits satisfactory evidence that
he:
(1) is at least eighteen years of age;
(2) has graduated from high school or the
equivalent;
(3) has successfully completed any examination,
including a jurisprudence examination, prescribed by board rules; and
(4) has not been convicted of unprofessional
conduct or incompetency.
D. A license to practice as an assistant funeral
service practitioner shall be issued to any person who, prior to June 18, 1993,
held a valid license as an assistant funeral service practitioner and who was
qualified to receive a renewal license on July 1, 1993.
E. A license to practice as an associate funeral
service practitioner shall be issued to any person who files a completed
application, accompanied by the required fees and documentation, and who
submits satisfactory evidence that he:
(1) has been licensed as an assistant funeral
service practitioner;
(2) has successfully completed any examination,
including a jurisprudence examination, prescribed by board rules; and
(3) has not been convicted of unprofessional
conduct or incompetency.
F. The board may adopt by rule requirements for
issuing a temporary license that will be valid until the next scheduled board
meeting."
Section 4. Section 61-32-10 NMSA 1978 (being Laws 1993,
Chapter 204, Section 10, as amended) is amended to read:
"61-32-10. LICENSURE BY CREDENTIALS.--After successful
completion of a jurisprudence examination, the board may license an applicant
as a funeral service practitioner, provided the applicant possesses a valid license
or its equivalent for the practice of funeral service issued by the appropriate
examining board under the laws of any other state or territory of the United
States, the District of Columbia or any foreign nation, and provided the
applicant has actively practiced five out of the last ten years in another
state, territory or foreign nation as a licensed funeral service practitioner
or its equivalent."
Section 5. Section 61-32-11 NMSA 1978 (being Laws 1993,
Chapter 204, Section 11, as amended) is amended to read:
"61-32-11. LICENSURE OF ESTABLISHMENTS--FUNERAL
ESTABLISHMENTS--COMMERCIAL ESTABLISHMENTS--DIRECT DISPOSITION
ESTABLISHMENTS--CREMATORIES.--
A. Funeral establishment licenses shall only be
granted under the following terms and conditions:
(1) applications for licensure shall be upon
forms furnished by the board and shall be accompanied by the required fee;
(2) the establishment shall be maintained at a
specific location primarily devoted to the practice of funeral service and
shall comply with the following minimum requirements:
(a) a chapel shall be present in which funerals
may be conducted;
(b) a display room shall be present for
displaying caskets and other funeral merchandise; and
(c) a preparation room shall be present with
necessary drainage and ventilation and necessary instruments and supplies for
the preparation and embalming of dead human bodies for burial or other
disposition or transportation; and
(3) a license shall not be issued or renewed by
the board unless the establishment is in compliance with the Thanatopractice
Act and board rules.
B. Commercial establishment licenses shall only
be granted under the following terms and conditions:
(1) applications for licensure shall be upon
forms furnished by the board and shall be accompanied by the required fee;
(2) the establishment shall be maintained at a
specific location primarily devoted to the practice allowed for a commercial
establishment and shall comply with the following minimum requirements:
(a) a preparation room shall be present with the
necessary drainage and ventilation and necessary instruments and supplies for
the preparation and embalming of dead human bodies for burial or other
disposition and transportation; and
(b) an office shall be present for conducting
business; and
(3) a license shall not be issued or renewed by
the board unless the establishment is in compliance with the Thanatopractice
Act and board rules.
C. Direct disposition establishment licenses
shall only be granted under the following terms and conditions:
(1) applications for licensure shall be upon
forms furnished by the board and shall be accompanied by the required fee;
(2) the establishment shall be maintained at a
specific location primarily devoted to the practice allowed for a direct
disposer and shall comply with the following minimum requirements:
(a) a room shall be present with necessary
drainage and ventilation for housing a refrigeration unit;
(b) a refrigeration unit,
thermodynamically controlled with a minimum storage area of twelve and one-half
cubic feet per body, shall be present for sheltering of dead human bodies prior
to burial or other disposition or transportation;
(c) an office shall be present for conducting
business;
(d) necessary supplies for safely handling
unembalmed dead human bodies; and
(e) if funeral merchandise is made available, a
display room shall be present for displaying caskets and other funeral
merchandise; and
(3) no license shall be issued or renewed by the
board unless the establishment is in compliance with the Thanatopractice Act
and board rules.
D. Crematory licenses shall only be granted
under the following terms and conditions:
(1) applications for licensure shall be upon
forms furnished by the board and shall be accompanied by the required fee;
(2) the crematory shall be maintained at a
specific location, including a funeral, commercial or direct disposition
establishment, primarily devoted to the practice allowed for a crematory and
shall comply with the following minimum requirements:
(a) a room shall be present with necessary
ventilation for housing a cremation retort;
(b) a cremation retort shall be present for
cremating dead human bodies; and
(c) a unit to pulverize cremated dead human
bodies shall be present; and
(3) no license shall be issued or renewed by the
board unless the crematory is in compliance with the Thanatopractice Act and
board rules.
E. The board may adopt by rule additional
requirements in the interest of public health, safety and welfare."
Section 6. Section 61-32-18 NMSA 1978 (being Laws 1993,
Chapter 204, Section 18) is amended to read:
"61-32-18. COMMERCIAL ESTABLISHMENTS--SCOPE OF
PRACTICE--LIMITATIONS.--
A. The scope of practice of a commercial
establishment depends on the entity for whom the commercial establishment is
acting as an agent and is subject to the following terms and conditions:
(1) when acting under the direction of a licensed
funeral establishment, the commercial establishment may:
(a) engage in transportation of dead human
bodies, file a certificate of death, obtain certified copies thereof and obtain
necessary permits for transportation or cremation;
(b) embalm;
(c) provide forwarding services;
(d) provide direct disposition; and
(e) arrange for identification of a dead human
body by family members only, prior to disposition or transportation;
(2) when acting under the direction of a licensed
direct disposition establishment, the commercial establishment may:
(a) engage in transportation of dead human
bodies, file a certificate of death, obtain certified copies thereof and obtain
necessary permits for transportation or cremation;
(b) embalm only when embalming is required by the
place of disposition; and
(c) provide direct disposition; and
(3) when acting under the direction of a school
of medicine, the commercial establishment may:
(a) engage in transportation of dead human
bodies, file a certificate of death, obtain certified copies thereof and obtain
necessary permits for transportation or cremation; and
(b) embalm.
B. A licensed commercial establishment shall not
engage in any activity, or act for any entity, not specifically permitted in
this section.
C. The licensee in charge shall certify to the
board that the establishment will not exceed the scope of practice allowed by
law."
Section 7. Section 61-32-19.1 NMSA 1978 (being Laws 1999,
Chapter 284, Section 13) is amended to read:
"61-32-19.1. CREMATORY--SCOPE OF PRACTICE--LIMITATIONS.--
A. The scope of practice of a crematory and its
crematory authority is limited to cremation of dead human bodies and
pulverization of cremains. A crematory
and its crematory authority shall act as an agent of licensed funeral,
commercial or direct disposition establishments and schools of medicine. A crematory and its crematory authority may:
(1) engage in transportation of dead human bodies
to the crematory; and
(2) cremate dead human bodies and pulverize
cremains.
B. After completion of the cremation process, if
a crematory and its crematory authority have not been instructed by its agent
to return the cremains to the person that initiated the cremation services
contract or to arrange for the interment, entombment or ennichement of the
cremains, the crematory authority shall return, or cause to be returned, the
cremains to the establishment no later than thirty days after the date of
cremation.
C. A crematory and its crematory authority shall
maintain a system or process that ensures that any dead human body in the
crematory's possession can be specifically identified throughout all phases of
the cremation process.
D. A crematory shall keep an accurate record of
all cremations performed for a period of not less than seven years.
E. The crematory and its crematory authority
shall certify to the board that the crematory will not exceed the scope of
practice allowed by law.
F. A licensed crematory shall not engage in any
activity not specifically permitted in this section."
Section 8. Section 61-32-20 NMSA 1978 (being Laws 1993,
Chapter 204, Section 20, as amended) is amended to read:
"61-32-20. EMBALMING.--
A. All dead human bodies not disposed of within
twenty-four hours after death or release or receipt by the establishment or
crematory shall be embalmed in accordance with the Thanatopractice Act or
stored under refrigeration as determined by board rule, unless otherwise
required by regulation of the office of the state medical investigator or the
secretary of health or by orders of an authorized official of the office of the
state medical investigator, a court of competent jurisdiction or other
authorized official.
B. A dead human body shall not be embalmed
except by a funeral service practitioner, an associate funeral service
practitioner or a funeral service intern under the supervision of a funeral
service practitioner.
C. When embalming is not required under the
provisions of this section, a dead human body shall not be embalmed without
express authorization by the:
(1) surviving spouse or next of kin;
(2) legal agent or personal representative of the
deceased; or
(3) person assuming responsibility for final
disposition.
D. When embalming is not required and prior to
obtaining authorization for the embalming, a dead human body may be washed and
other health procedures, including closing of the orifices, may be performed
without authorization.
E. When a dead human body is embalmed, the
funeral service practitioner or associate funeral service practitioner who
embalms the body or the funeral service intern who embalms the body and the
funeral service practitioner who supervises the embalming shall, within
twenty-four hours after the embalming procedure, complete and sign an embalming
case report describing the elapsed time since death, the condition of the
remains before and after embalming and the embalming procedures used. The embalming case report shall be kept on
file at the establishment for a period of not less than seven years following
the embalming.
F. Except as provided in Subsection A of this
section, embalming is not required."
Section 9. Section 61-32-22 NMSA 1978 (being Laws 1993,
Chapter 204, Section 22, as amended) is amended to read:
"61-32-22. INACTIVE STATUS.--
A. A funeral service practitioner, associate
funeral service practitioner or direct disposer who has a current license may
request that the license be placed on inactive status. Except as provided in Subsection E of this
section, the board shall approve each request for inactive status.
B. A license placed on inactive status may be
renewed within a period not to exceed five years following the date the board
granted the inactive status.
C. Renewal of an inactive license requires
payment of renewal and reinstatement fees as set forth by board rule and
compliance with the following requirements:
(1) certification by the licensee that he has not
engaged in the practice of funeral service or direct disposition in this state
during the inactive status;
(2) compliance with continuing education
requirements established by board rule; and
(3) successful completion of an examination,
which shall be administered at the discretion of the board, to certify
continuing competency.
D. Disciplinary proceedings may be initiated or
continued against a licensee who has been granted inactive status.
E. A license shall not be placed on inactive
status if the licensee is under investigation or if disciplinary proceedings
have been initiated."
Section 10. 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 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 commission, bonus or rebate in consideration of recommending or causing a
dead human body to be disposed of in any 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 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 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 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."
Section 11. A new section of the Thanatopractice Act is
enacted to read:
"UNLICENSED
ACTIVITY--CIVIL PENALTY.--The board may impose a fine as set forth in the
Thanatopractice Act on a person who is found to have acted without a license in
violation of the Thanatopractice Act by a court or an administrative proceeding
as provided for in the Thanatopractice Act."
Section 12. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2003.
HB
431
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