Laws, Rules and Regulations: an Update

Laws, Rules and Regulations: an Update
Featuring Ken Whittaker Whittaker Funeral Support Services, L.L.C. Plano, Texas

A MESSAGE FROM COMPLIANCE

“A License is a Bestowal of Trust”
The Need for a License “A License is a Bestowal of Trust” It is the responsibility of any licensee to renew a license on time and respond to the Commission when requested.

The Need for a License By statute, owners of any establishment licensed by the Commission “shall not” make funeral arrangements of any kind or embalm a dead human body unless they possess an individual funeral director/embalmer license issued by the TFSC. Just because one owns a funeral establishment does not waive this requirement.

A MESSAGE FROM THE COMMISSION

Please be Advised When the Commission receives a complaint against a licensee or a funeral establishment, failure to provide the requested documentation within fifteen (15) days of the notice submitted will result in the referral to the Commission for administrative action against the license(s) involved.

Please be Advised One of the most common questions asked relates to who has the right to control the disposition of a decedent’s body. This information is found under the Health and Safety Code, specifically Chapter

Please be Advised Additionally, under subsection “k” of Health and Safety Code, Chapter , a licensee can find the appropriate measures to be taken if there is a dispute amongst persons who may have the right to control the disposition of a decedent’s body.

DISPOSITION OF REMAINS; DUTY TO INTER.
Unless a decedent has left directions in writing for the disposition of the decedent’s remains as provided in Subsection (g), the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent’s remains, shall inter the remains, and are liable for the reasonable cost of interment:

DISPOSITION OF REMAINS; DUTY TO INTER.
The person designated in a written instrument signed by the decedent; The decedent’s surviving spouse; Any one of the decedent’s surviving adult children;

DISPOSITION OF REMAINS; DUTY TO INTER. (Continued)
4) Either one of the decedent’s surviving parents; 5) Any one of the decedent’s surviving adult siblings; or 6) Any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.

HEALTH AND SAFETY CODE Sec. DISPOSITION OF REMAINS; DUTY TO INTER. DURATION: This appointment becomes effective upon my death. PRIOR APPOINTMENTS REVOKED: I hereby revoke any prior appointment of any person to control the disposition of my remains.

HEALTH AND SAFETY CODE RELIANCE:
Sec. DISPOSITION OF REMAINS; DUTY TO INTER. RELIANCE: I hereby agree that any cemetery organization, business operating a crematory or columbarium or both, funeral director or embalmer, or funeral establishment who receives a copy of this document may act under it. Any modification or revocation of this document is not effective as to any such party until that party receives actual notice of the modification or revocation. No such party shall be liable because of reliance on a copy of this document.

In-Casket Identification
The Commission recently adopted TAC regarding in-casket identification. Texas Health & Safety Code 695 enacted by the 81st Legislature regarding In-Casket Identification effective September 1, 2009 requires a casket to contain identification of the deceased person.

In-Casket Identification
Texas Administrative Code requires the type of identification used to be durable and waterproof. “Each funeral home shall ensure each casket contains a durable, waterproof identification of the deceased person, including the person’s name, date of birth, and date of death. This information shall be inside the casket”. Examples of acceptable products may be found on the agency website under the “Agency News and Information” link.

Texas Administrative Code Rule 203
Texas Administrative Code Rule , In-Casket Identification Information _ The following identification method examples are considered to be durable and waterproof and comply with this rule: 1) metal identification tag; 2) vinyl hospital band; 3) vinyl tag with identification written in permanent marker;

Texas Administrative Code Rule , In-Casket Identification Information _ Funeral homes are exempt from subsection (a) of Rule if the deceased, family of the deceased, religious norms or cultural norms oppose such inclusion. A funeral home must keep a record of each instance of use of this exemption and on what grounds the exemption was applied.

There seems to be some confusion
The compliance staff receives questions regarding the laws and rules of the TFSC. There seems to be confusion regarding what is statute and what is rule. Laws are created or amended by the Texas Legislature; rules are enacted by the Commission.

The rules are proposed at a regularly scheduled Commission Meeting. The proposed rule is published in the Texas Register, given a 30 day comment period from the public, and then adopted by the Board of Commissioners at a subsequent meeting.

The adopted rule may be adopted with or without changes, depending on the comments received. If there are any questions regarding the procedure for rule proposal and/or adoption, one may visit the Texas Secretary of State website at

Anyone inquiring should then click on the “State Rules and Open Meetings” link. s may be requested through the Texas Register for any rule action taken by the Commission.

About the FDIC Each licensed funeral establishment must at all times have a designated funeral director in charge, who is ultimately responsible for compliance with all mortuary, health and vital statistics laws in the funeral establishment.

About the FDIC/EIC A funeral establishment must designate a FDIC at the time it receives its establishment license, and any time the FDIC changes, the establishment must notify the Commission, on a form prescribed by the Commission, within 15 days. Commercial Embalming Establishments must at all times have a designated embalmer in charge.

Mortuary Law Exam For those taking the Mortuary Law Exam, the Commission no longer mails the test scores, they are now posted on the Commissions website. You can visit the website and click on the link titled “Mortuary Law Exam”. Then click on the link titled “Law Exam Results”, and go to the last four digits of your social security number.

Mortuary Law Exam Texas Mortuary Law Exam scores are valid for 24 months. If a provisional licensee has not met full licensure requirements within 24 months from the date of initially taking the Mortuary Law Exam, they will be required to retake the exam before exiting the provisional program.

New From the TFSC and TFDA

The Funeral Consumers Alliance of Texas Proposes These Changes of Rules & Laws:
The commission shall prepare and disseminate to the general public, information of consumer interest explaining matters relating to funerals, explaining the right of families and individuals in Texas to conduct home funerals or make funeral arrangements with or without the services of a funeral director, including information that a body can lawfully be released to a disposition agent without the services of a funeral director.

If the discussion regarding permission to embalm takes place during First Call, thus generating the need to present the General Price List, the consumer has the right to know the cost for embalming before giving permission and that public viewing an unembalmed deceased body is not forbidden and should not be used as an excuse for requiring that embalming must be performed before allowing a public viewing.

A waiting period of 24 to 48 hours before seeking authorization to embalm will allow the consumer time to make a better, calmer, educated decision and give the funeral service provider time to determine who has the right of final disposition, thus avoiding confusion and giving the consumer time to make a calmer, more well advised determination regarding embalming and its cost.

The commission will notify complainants upon the final disposition of any complaint and will provide complainants a case summary, informal conference notes, respondent’s complaint history, the executive director’s recommendation to the commission and the disposition and penalty, if any, made relating to the complaint.

A funeral director in charge of a licensed funeral establishment that maintains a website on the internet must provide on the website a full and complete current General Price List, Casket Price List, Outer Burial Container Price List, and Urn Price List of the funeral establishment that includes all of the information provided on each of its written Price Lists.

New From the Legislature: HB 1893

HB 1893 The bill allows incumbent members of the Funeral Service Commission to serve more than one term if reappointed by the governor and confirmed by the senate.

HB 1893 The bill allows an employee of a funeral establishment to apply for a provisional license prior to attending mortuary school but does not require an employee of a funeral establishment to apply for a provisional license before attending mortuary school.

HB 1893 This bill does not in any fashion delete the law requiring a person to graduate from a mortuary science school in order to achieve a funeral director’s or embalmer’s license, nor does it change the requirement that one must pass both the Texas laws examination and the National Board Exams.

HB 1893 The bill removes the “personal” in personal supervision except for the six months required personal supervision which may be a longer period of time but not less. The FSC will determine whether or not a provisional license holder may move from personal to general supervision.

HB 1893 The bill states that “After a provisional license holder who has practiced under the personal supervision of a funeral director or embalmer for at least six months and has attained a score of at least 75% on the Texas laws examination, the funeral director or embalmer in charge of training may

HB 1893 submit to the commission an affidavit of proficiency for the provisional license holder. If the FSC approves the affidavit of proficiency, the provisional license holder may practice under the general supervision of a funeral director or embalmer.

HB 1893 The funeral director or embalmer supervising the provisional license holder shall determine the appropriate manner of providing general supervision of the provisional license holder.”

HB 1893 In the committee substitute, the funeral director or embalmer will not have to be physically present during “general supervision”. Rather, he/she must be on the premises of the funeral establishment at the time a service is provided by a provisional licensee.

HB 1893 The term of the provisional license program must be at least 12 consecutive months but not more than 24 consecutive months. The commission may extend the term of the provisional license program for not more than 12 additional months for a provisional license holder who requests and receives an extension based on hardship…

HB 1893 This legislation establishes a provisional license for funeral home employees. The purpose is to allow a provisional to enter a program that includes experiencing the profession prior to attending mortuary school.

HB 1893 Mortuary schools are not prohibited from recruiting students who are not at the time they are recruited involved in this provisional license program nor are they prohibited from aiding them in applying while in school. The provisional licensee could attend mortuary school anytime during or following the duration of the provisional license.

The Provisional Program New News

Attention Provisional Licensees
Effectively immediately, provisionals are no longer required to have a sponsor. However, pursuant to TAC 203.6, Provisional Licensees, are now required to report directly to the FDIC or the EIC, whichever is applicable.

Attention Provisional Licensees
It is the responsibility of the provisional licensee and the FDIC and /or the EIC to schedule case work sufficient for the successful completion of the provisional program. Also, it is the responsibility of the FDIC and/or EIC to ensure the provisional under their employment has direct supervision at all times.

Are You Ready to Exit the Provisional Program?
It is the responsibility of the FDIC/EIC to notify the Commission in writing that a provisional licensee is ready to become fully licensed. ALL program requirements must be met before being ready to exit the program and become fully licensed.

The provisional licensee must meet the 12 consecutive month requirement. The Commission will need to have on file: a final college transcript showing the date it was conferred, a passing Texas Mortuary Law Exam and either passing the Texas State Board Exam or National Board Exam scores.

A provisional licensee is only required to submit an Amendment to Registration of Provisional License form when there is a change of employment or when adding another establishment for additional casework. The Commission does not require submission of supervisors’ names.

Information Every Texas Licensee Should Know
The point of contact for questions and information regarding the new electronic death registration, is Sandra Lackey at the State Registrars Office. She can be reached at , ext All questions should be directed to Ms. Lackey and not the Commission.

“Mortuary Law” for the State of Texas is found primarily in the Texas Occupations Code Chapter 651, Health and Safety Code, Chapter 716, and the Texas Administrative Code Chapters 201, 203, 205, 207 and 209. All codes can be found on the agency website under “Governing Laws”.

Licensees are expected to know what is considered a prohibited act and this is found in the Texas Occupations Code, Chapter 651, sections The administrative penalties associated with these prohibited acts are found in the TAC Chapter 201 under Disciplinary Guidelines. Texas law allows a penalty range of not less than $100 or more than $5,000 for each violation. Suspension or revocation may also be warranted.

Cemetery and Crematory New News

Perpetual Care Cemetery Registration
The Texas Department of Banking shall provide annually to the commission a list of perpetual care cemeteries, including the address and other contact information for each cemetery. The commission shall annually register each perpetual care cemetery on that list. A perpetual care cemetery is not required to pay a registration fee or renewal fee under this chapter.

Texas Occupations Code 651.658
Requires all crematories to report to the Texas Funeral Service Commission, no later than January 30th every year, in writing, an annual report of the total number of cremations performed for the prior calendar year. The report may be faxed, ed or sent regular mail with a postmark no later than January 30th! In the event reports are not received, a late penalty of $ PER DAY will be imposed until the annual report is received by the Commission. The Commission has no authority to waive or reduce the late fee.

“NEW”: If there have been any changes in the general price list of the crematory, a copy should be submitted to the Commission for the files. It is important to renew the crematory establishment license prior to the expiration date printed on the bottom of the license.

Anyone planning to open a crematory on cemetery, funeral home or commercial embalming establishment property, it is imperative that they acquaint themselves with the laws and requirements. This information is on the website under “Cemeteries and Crematories”. Should anyone have questions or concerns regarding Crematories, contact Cindy Martinez at , and for Cemeteries, please contact Sandy Gonzalez at

Information Retention on Cremation
Chapter (b) of the Health and Safety Code states “A record must be kept on file at least until the fifth anniversary of the cremation”. If the death is under investigation, Article 49.04(c) of the Code of Criminal Procedures requires the records to be kept for a period of 10 years from the date of cremation of the body named on the certificate.

Attorney General Opinion
Opinion No. GA-0218 states that Chapter 716 of the Health and Safety Code permits a person authorized to dispose of remains of a deceased individual to contract directly for cremation services, but only if the crematory is also licensed as a funeral establishment or if the authorizing agent receives written authorization from either a justice of the peace or medical examiner of the county in which the death occurred.

Crematory News An opinion has been issued regarding whether or not a county may request cremation of an unidentified deceased pauper. Opinion number GA-0543 which can be found on the Attorney General’s website at A crematory cannot receive an unidentified person for cremation.

Interment of Veterans All veterans are eligible to be interred in the Veterans Cemetery unless one of three things has occurred: The veteran received a dishonorable discharge The veteran was convicted of a capital crime that carried a possible sentence of life in prison or the death penalty The veteran committed treason against the United States of America

Interment of Veterans The funeral director must telephone the Scheduling Center at to schedule the service and also submit a copy of the decedent’s DD214 for verification of eligibility. Veterans who have been incarcerated for one reason or another are not denied the right to be interred and honored for their service to this country, unless one of the previous bulleted items has occurred.

Interment of Veterans It has come to the attention of the Commission the previous information is not being followed by some industry licensees. Attention to this matter and corrective action are requested. Due to a high volume of calls regarding assistance with indigent funerals/burials, the Commission requests that persons having information applicable to your area should call Sandra Gonzalez at (512)

Felony Convictions Texas Occupation Code , Effect of a Criminal Conviction; License Denial

Provisional License Requirements
Must be enrolled in or a certified graduate of an accredited mortuary program Submit application and fees to the Commission prior to starting the program

Provisional License Application
To receive a provisional license: Forward a transcript or letter of enrollment from the mortuary college Print the application and FDIC letter from the website at Application must be completed and submitted with the last page of the FDIC letter and appropriate fees

Provisional License Program
12 to 24 months 60 case credits (10 “Completes” in last three months) Embalmers require 6 autopsies Meet all examination requirements

How to Receive Case Credit
To receive a case credit you must perform 6 functions denoted with an asterisk on the training report A provisional licensee is required to submit original training reports to the FDIC/EIC. FDIC/EIC maintains a copy and all supporting documents.

How to get “Complete” Case Credit
Must perform ten functions listed on the training report, six of which must be noted with an asterisk. Completes are not counted until the last three months of your provisional program A provisional licensee is required to maintain ALL casework done while in the program.

Documenting Embalming Cases
Each case on training report must have Instructor’s Embalming Affidavit and Authorization to Embalm Each Affidavit should be completed within 30 days of embalming procedure FDIC/EIC and licensee must maintain these documents.

Examination Requirements
Not required to start the provisional program but must be completed prior to becoming licensed Must pass the National Board Exam with 75% or better Must pass the Texas State Mortuary Law Exam with 75% or better

National Board Exams Embalmer, only, is required to take the science portion of the National Board Exam A dual licensee is required to take both portions (arts/science) of the National Board Exam Funeral Director, only, is required to take the State Board Examination

Texas State Mortuary Law Exam
Administered in Austin - fourth Friday of each month (except Nov. and Dec.) Application and $50.00 Fee required Scores valid for 24 months (After 24 months reexamination is required for licensing)

Provisional Licensee Responsibility
YOU must keep track of the number of cases reported for credit. You must maintain copies of training reports and all supporting documents reported for 2 years.

Provisional Licensee Responsibility
YOU are responsible for getting your paperwork signed and in the FDIC/EIC hands on a regular and timely basis YOU must let the Commission know of any changes in employment, supervision or residence immediately

FDIC/EIC Responsibility
Ensures the provisional licensee gets the cases needed and that the paperwork is correct. Maintains copies of all reported cases for 2 years. Coordinates with other Supervisors to make it happen.

FDIC/EIC Responsibility
The FDIC/EIC receives copy of training reports and supporting documents each month. He (she) records the number of cases licensee receives credit for. Once provisional licensee has worked for consecutive 12 months, completed 60 cases and met all exam requirements, the sponsor submits all required paperwork to the Commission.

Supervisor Responsibility
Must personally supervise and instruct the Provisional Licensee for at least the first six months of the provisionals’ program Must personally sign and date the embalming affidavits within thirty (30) days of the embalming procedure Must sign the Training Reports as they correspond with the cases performed

Personal Supervision Rule 203.27
Supervisor must be in the same room at the same time the activity is performed.

Direct Supervision Means in the same room. Requires the physical presence of a licensed funeral director or embalmer at the specified place and time the service is provided (this is the person who signs the training reports and other paperwork as a supervisor).

Overview Continue working under supervision, documenting work and submitting monthly training reports until an exit letter is received from the Commission. Failure to do so will result in license being cancelled and having to start provisional program all over.

What's New?

TAC 203.38 Reinstatement of Funeral Director and/or Embalmer Licenses
Licensee may after 5 years from the effective date of such cancellation or revocation, petition the Commission or Board for reinstatement of license.

Provisional License Renewal TOC 651.305(c)
If a Provisional licensee fails to timely pay the renewal fee, the Commission shall impose a late fee equal to the amount of the license renewal fee, suspend the license and notify the provisional license holder of the suspension.

Employment Reports If a provisional license holder leaves employment, the funeral director or embalmer shall prepare an affidavit showing the length of time employed and the number of cases handled while employed there. The original affidavit shall be filed with the Commission within 15 days and a copy given to the provisional.

Continuing Education New News

Rule 203.30 Approved providers Provider responsibilities
Credit hours required Credit hours granted Exemptions/waivers Failure to comply

Commission Must Approve Providers
Provider not approved until the TFSC communicates in writing they have been accepted and assigns provider number and course number

Providers From a Variety of Sources:
Private businesses Accredited colleges and universities National or state funeral industry associations Other state agencies Accredited mortuary colleges

Provider Responsibilities
Provide quality education Comply with rule Verify attendance Provide certificates Maintain records for 2 years

Credit Hours Required 16 hours each 2 year renewal period
Includes 6 mandatory hours

Mandatory Hours Ethics - 2 credit hours Law updates - 2 credit hours
T.O.C. 651 T.A.C. 201 and 203 Vital statistics - 2 credit hours Health and safety code chapters 193, T.A.C chapter 181

Credit Hours Granted One credit hour for each 50 minutes of participation Supervisor of provisional - maximum of 5 Presenter or instructor of CE - maximum of 5 All 16 hours may be obtained through independent study with a maximum of 3 hours credit per program Maximum of 4 hours per renewal for commission meetings

Carrying Over Credit Hours
Maximum of 10 hours Mandatory classes not eligible to be carried over Not all hours eligible to be carried over

Credit Hours Required Reduced for Retirees
Active Retired on 65th birthday Continuing Education requirements reduced 10 hours required includes 3 mandatory courses

CE Exemptions/Waivers
First time renewal of license, if renewal is within 12 months of initial licensure by examination Retired, inactive Active military Documented hardship approved in writing, by executive director, at least 30 days before renewal.

Failure to Comply Rejection of renewal $300 non-compliance fee
May be used every other 2 year renewal period Does not waive mandatory hours

Overview of Continuing Education
16 hours each 2 year renewal 6 mandatory May get all 16 hours through independent study Non-compliance fee does not waive mandatory hours Non-compliance fee may only be used every other 2 year renewal period

Funeral Directing Acts associated with or arranging for the disposition of a dead human body, performed by a person for compensation, from the time of first call until: inurnment, interment, or entombment services are complete; or the body is permanently out of this state

The wording of this new definition negates TAC , which states that the responsibility of the funeral director ends when the body is turned over to the cemetery staff for burial. This Rule will be amended to reflect the new statutory mandate.

New Statutory Language: The fact that a funeral director contracts for cemetery or crematory services, included as part of a package arrangement, does NOT limit the director’s liability to the customer for those services.

Licensing and Renewals New News

Section A person who is otherwise eligible may renew an unexpired license by paying the required renewal fee before the expiration date. A person whose license has expired may not engage in activities that require a license until the license has been renewed.

Expired License More than 90 days but less that 1 year – pay 2 x normal fee More than 1 year – may not renew the license - may obtain a new license by complying with the requirements and procedures, including examination requirements

Rules Committee The Commission is working with a Rules Committee made up of licensees, consumer advocates and other interested parties to examine and update all the Rules in 22 TAC 203.

Facts About Funerals The Consumer Brochure must be on display in a prominent manner in every licensed facility and presented to consumers when arrangements are discussed.

Personal Supervision Rule Supervisor must be in the same room at the same time the activity is performed

Cemetery and Crematory New News

Cemeteries and Crematories TFSC is required to inspect a cemetery or crematory if a consumer complaint is received - Complainants have the right to attend any proceeding resulting from their complaint

Cemeteries and Crematories Crematories may now be located on property adjacent to funeral home property. They must comply with all city codes and requirements.

Cemeteries and Crematories Crematories may now also be located on property adjacent to embalming service establishment property. They too must comply with all city codes and requirements.

Cemeteries and Crematories Must Register with TFSC Notify customers where complaints may be filed Provide consumers with a retail price list Disclose consumers choices in selecting service and goods Provide itemized purchase agreements

Cemeteries and Crematories Must Not: Mislead Consumers. False or misleading statements to consumers about cemetery or crematory purchases is prohibited.

Crematories are now required to be licensed and the owner/operator must be certified: Approved providers for crematory owner/operator certification: Cremation Association of North America (CANA) Matthews Cremation Group B&L Cremations Systems, Inc. Crematory Manufacturing & Service, Inc.

Attorney General Opinion No. JC-0505 Re: Whether a casket constitutes “funeral merchandise” for purposes of Chapter 651 of the Occupations Code, and related questions (RQ-0477-JC)

Summary JC-0505 While a casket constitutes funeral merchandise for the purposes of Chapter 651 of the Occupations Code, the sale of a casket for an imminent burial, without more, does not constitute an act of funeral directing.

Summary JC-0512 With respect to cemetery and crematory owners or operators required to register with the TFSC, Chapter 651 of the Occupations Code limits the Commission to regulating the conduct expressly described in sections , , , , and

Summary JC-0512 (cont. 2) Section (c) of the Occupations Code, however, requires the Commission to investigate all complaints relating to such owners or operators; it does not limit the Commission’s investigative duty to complaints alleging conduct described in sections , , , , and of the Occupations Code.

Summary JC-0512 (cont. 3) The Commission may dismiss a complaint if an investigation of the complaint does not reveal a violation of sections , , , , and The Commission is required to maintain as part of a complaint file, the results of an investigation of a complaint that the Commission has dismissed because the complaint does not involve a violation of Chapter 651.

Summary JC-0512 (cont. 4) Section of the Occupations Code allows the Commission to inspect a cemetery or crematory only if the complaint involves a violation of sections , , , , and of the Occupations Code.

Are There Any Questions?

The End

Let’s Take a Short Break

Also Helping to Sponsor This Program is
Mr. David Patterson with Global Mortuary Affairs

The Texas Funeral Service Commission website has a wealth of information at www.tfsc.state.tx.us.
Should anyone have a question with regard to death care, the Commission staff at

Please be Advised The Commission receives many phone calls throughout the day which are directed to the Division of Consumer Affairs and Compliance. Many of these calls presented by licensees can be addressed by visiting the Commission website and clicking on the link titled “Governing Laws”.

Please be Advised Another call frequently received by Compliance is in regards to the complaint process. One can visit the Commission’s website and click on the link titled “Complaint Procedures”. They should then click on the link titled “Complaint Resolution Process Chart” This provides a layout of the complaint process.

Texas Administrative Code Rule , In-Casket Identification Information _ The following identification method examples are considered to be durable and waterproof and comply with this rule: 4) Teslin™ or teslin-like material waterproof cards with identification written in permanent marker; 5) A card with identification written in permanent marker that is laminated on both sides and sealed;

Texas Administrative Code Rule , In-Casket Identification Information _ The following identification method examples are considered to be durable and waterproof and comply with this rule: 6) A card or paper with identification written in permanent marker that is sealed within a zip lock plastic bag; 7) Tyvek™ or other durable spun bonded olefin material cards with identification written in permanent marker; and 8) Paper with identification written in permanent marker placed inside the casket memorial record tube or capsule located on the outside of the casket.

Laws, Rules and Regulations: an Update

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