SENATE BILL 281

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Bernadette M. Sanchez

AN ACT

RELATING TO THANATOPRACTICE; EXPANDING THE SCOPE OF PRACTICE OF DIRECT DISPOSERS; AMENDING SECTIONS OF THE THANATOPRACTICE ACT.

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

     SECTION 1. Section 61-32-3 NMSA 1978 (being Laws 1993, Chapter 204, Section 3, as amended) is amended to read:

     "61-32-3. DEFINITIONS.--As used in the Thanatopractice Act:

          A. "assistant funeral service practitioner" means a person licensed to engage in practice at a funeral establishment or commercial establishment, licensed pursuant to the Thanatopractice Act, as an assistant funeral service practitioner as provided in that act;

          B. "associate funeral service practitioner" means a person licensed to engage in practice at a funeral establishment or commercial establishment, licensed pursuant to the Thanatopractice Act, as an associate funeral service practitioner as provided in that act;

          C. "board" means the board of thanatopractice;

          D. "committal service" means a service at a place of interment or entombment [that] whether or not it follows a funeral conducted at another location;

          E. "cremains" means cremated remains;

          F. "cremation" means the reduction of a dead human body by direct flame to a residue, which includes bone fragments;

          G. "crematory" means every place or premises that is devoted to or used for cremation and pulverization of the cremains;

          H. "crematory authority" means the individual who is ultimately responsible for the operation of a crematory;

          I. "department" means the regulation and licensing department;

          J. "direct disposer" means a person licensed to engage [solely] in providing direct disposition at a direct disposition establishment, licensed pursuant to the Thanatopractice Act, as provided in that act;

          K. "direct disposition" means [only] the disposition of a dead human body as quickly as possible, [without a funeral, graveside service, committal service or memorial service whether public or private] which may include a funeral with cremains, a committal service or a memorial service and without embalming of the body unless embalming is required by the place of disposition;

          L. "direct supervision" means the supervising funeral service practitioner is physically present with and in direct control of the person being trained;

          M. "disposition" means the final disposal of a dead human body, whether it be by earth interment, above-ground interment or entombment, cremation, burial at sea or delivery to a medical school, when the medical school assumes complete responsibility for the disposal of the body following medical study;

          N. "embalming" means the disinfection, preservation and restoration, when possible, of a dead human body by a licensed funeral service practitioner, a licensed associate funeral service practitioner or a licensed funeral service intern under the supervision of a licensed funeral service practitioner;

          O. "ennichement" means interment of cremains in a niche in a columbarium, whether in an urn or not;

          P. "entombment" means interment of a casketed body or cremains in a crypt in a mausoleum;

          Q. "establishment" means every office, premises or place of business where the practice of funeral service or direct disposition is conducted or advertised as being conducted and includes commercial establishments that provide for the practice of funeral service or direct disposition services exclusively to licensed funeral or direct disposition establishments or a school of medicine;

          R. "funeral" means a period following death in which there is an organized, purposeful, time-limited, group-centered ceremony or rite, whether religious or not, with the body or the cremains of the deceased present;

          S. "funeral merchandise" means that personal property offered for sale in connection with the transportation, funeralization or disposition of a dead human body, including the enclosure into which a dead human body is or cremains are directly placed, and excluding mausoleum crypts, interment enclosures preset in a cemetery and columbarium niches;

          T. "funeral service intern" means a person licensed to be in training for the practice of funeral service under the supervision and instruction of a funeral service practitioner at a funeral establishment or commercial establishment, licensed pursuant to the Thanatopractice Act;

          U. "funeral service practitioner" means a person licensed to engage in the practice of funeral service at a funeral establishment or commercial establishment, licensed pursuant to the Thanatopractice Act, as provided in that act;

          V. "general supervision" means the supervising funeral service practitioner is not necessarily physically present in the establishment with the person being trained, but is available for advice and assistance;

          W. "graveside service" means a funeral held at the graveside only, excluding a committal service that follows a funeral conducted at another location;

          X. "jurisprudence examination" means an examination prescribed by the board on the statutes, rules and regulations pertaining to the practice of funeral service or direct disposition, including the Thanatopractice Act, the rules of the board, state health regulations governing human remains and the Vital Statistics Act;

          Y. "licensee in charge" means a funeral service practitioner who is ultimately responsible for the conduct of a funeral or commercial establishment and its employees or a direct disposer who is ultimately responsible for the conduct of a direct disposition establishment and its employees;

          Z. "make arrangements" means advising or counseling about specific details for a funeral, graveside service, committal service, memorial service, disposition or direct disposition;

          AA. "memorial service" means a gathering of persons for recognition of a death without the presence of the body or cremains of the deceased;

          BB. "practice of funeral service" means those activities allowed under the Thanatopractice Act by a funeral service practitioner, associate funeral service practitioner, assistant funeral service practitioner or funeral service intern;

          CC. "pulverization" means the process that reduces cremains to a granular substance; and

          DD. "thanatopractice" means those immediate post-death activities related to the dead human body, its care and disposition, whether with or without rites or ceremonies, but not including disposition of the body by a school of medicine following medical study."

     SECTION 2. Section 61-32-5 NMSA 1978 (being Laws 1993, Chapter 204, Section 5, as amended) is amended to read:

     "61-32-5. BOARD CREATED.--

          A. There is created the "board of thanatopractice".

          B. The board is administratively attached to the department.

          C. The board consists of six members. [Three] Two members shall be funeral service practitioners who have been licensed in this state for at least five years; [two members] one member shall represent the public and shall not have been licensed for the practice of funeral service or direct disposition in this state or any other jurisdiction and shall not ever have had any financial interest, direct or indirect, in any funeral, commercial or direct disposition establishment or crematory; [and one member] two members shall be [a] licensed direct [disposer or] disposers who have been licensed in this state for at least five years; and one member shall be a health care practitioner who has been licensed in this state for at least five years.

          D. Members of the board shall be appointed by the governor for terms of four years. Each member shall hold office until [his] the member's successor is duly qualified and appointed. Vacancies shall be filled for [any] an unexpired term in the same manner as original appointments.

          E. Members of the board shall be reimbursed as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

          F. A simple majority of the board members currently serving constitutes a quorum.

          G. The board shall hold at least two regular meetings each year and shall meet at such other times as it deems necessary.

          H. No board member shall serve more than two full consecutive terms. The board shall recommend removal of any board member who has three unexcused absences from properly noticed meetings within a twelve-month period and may recommend removal of a board member for any other just cause.

          I. The board shall elect a [chairman] chair and other officers as deemed necessary to administer its duties."

     SECTION 3. Section 61-32-17 NMSA 1978 (being Laws 1993, Chapter 204, Section 17, as amended) is amended to read:

     "61-32-17. DIRECT DISPOSER--SCOPE OF PRACTICE-- LIMITATIONS.--

          A. Except as otherwise provided in the Thanatopractice Act, a direct disposer may transport and dispose of a dead human body and participate in any rites or ceremonies after final disposition of the body.

          B. Prior to interment, entombment or other final disposition of the body or cremains, a direct disposer [shall not] may:

                (1) participate in any rites or ceremonies in connection with the final disposition of the body;

                (2) provide facilities for any such rites or ceremonies; and

                (3) have the body embalmed [unless] if embalming is required by the place of disposition."

     SECTION 4. 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 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] having 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)] (3) reclaiming, transporting or causing to be transported a dead human body after written release for disposition; or

                [(5)] (4) 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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