HB0305ham001 99TH GENERAL ASSEMBLY

Rep. Dan Brady

Filed: 3/17/2015

09900HB0305ham001 LRB099 04234 MLM 32592 a

AMENDMENT TO HOUSE BILL 305

AMENDMENT NO. ______. Amend House Bill 305 by replacing everything after the enacting clause with the following:

"Section 5. The Funeral Directors and Embalmers Licensing Code is amended by adding Section 15-57 and changing Section 15-75 as follows:

(225 ILCS 41/15-57 new)

Sec. 15-57. Refrigeration or embalming after 72 hours.

(a) The licensee, or anyone else lawfully permitted to do so under this Code, may either refrigerate or embalm a deceased human body that is removed from the place of death by an authorized licensee and transported to the funeral establishment where it is to be prepared for final disposition after 72 hours have passed since the body's arrival at the funeral establishment. A funeral establishment may only refrigerate or embalm a body under this Section if it does not receive instruction from the person making the funeral arrangements regarding how the body is to be disposed of within this 72-hour time period and no religious ritual or protocol is known to be in conflict with either refrigeration or embalming of the remains.

(b) In addition to the disclosures required under subparagraph (C) of paragraph (36) of subsection (b) of Section 15-75 of this Code, a licensee shall clearly disclose on the written statement of services furnished to the person making the funeral arrangements that the licensee may refrigerate or embalm a deceased human body after 72 hours under this Section. The disclosure shall be made in writing and must appear directly next to the prices charged by the funeral establishment for refrigeration and embalming. The funeral establishment may not charge the person making the arrangements for the costs associated with refrigeration or embalming performed pursuant to this Section if this disclosure is not made.

(225 ILCS 41/15-75)

(Section scheduled to be repealed on January 1, 2023)

Sec. 15-75. Violations; grounds for discipline; penalties.

(a) Each of the following acts is a Class A misdemeanor for the first offense, and a Class 4 felony for each subsequent offense. These penalties shall also apply to unlicensed owners of funeral homes.

(1) Practicing the profession of funeral directing and embalming or funeral directing, or attempting to practice the profession of funeral directing and embalming or funeral directing without a license as a funeral director and embalmer or funeral director.

(2) Serving or attempting to serve as an intern under a licensed funeral director and embalmer without a license as a licensed funeral director and embalmer intern.

(3) Obtaining or attempting to obtain a license, practice or business, or any other thing of value, by fraud or misrepresentation.

(4) Permitting any person in one's employ, under one's control or in or under one's service to serve as a funeral director and embalmer, funeral director, or funeral director and embalmer intern when the person does not have the appropriate license.

(5) Failing to display a license as required by this Code.

(6) Giving false information or making a false oath or affidavit required by this Code.

(b) The Department may refuse to issue or renew, revoke, suspend, place on probation or administrative supervision, reprimand, or take other disciplinary or non-disciplinary action as the Department may deem appropriate, including imposing fines not to exceed $10,000 for each violation, with regard to any license under the Code for any one or combination of the following:

(1) Fraud or any misrepresentation in applying for or procuring a license under this Code or in connection with applying for renewal of a license under this Code.

(2) Conviction by plea of guilty or nolo contendere, finding of guilt, jury verdict, or entry of judgment or by sentencing of any crime, including, but not limited to, convictions, preceding sentences of supervision, conditional discharge, or first offender probation, under the laws of any jurisdiction of the United States: (i) that is a felony or (ii) that is a misdemeanor, an essential element of which is dishonesty, or that is directly related to the practice of the profession.

(3) Violation of the laws of this State relating to the funeral, burial or disposition of deceased human bodies or of the rules and regulations of the Department, or the Department of Public Health.

(4) Directly or indirectly paying or causing to be paid any sum of money or other valuable consideration for the securing of business or for obtaining authority to dispose of any deceased human body.

(5) Professional incompetence, gross negligence, malpractice, or untrustworthiness in the practice of funeral directing and embalming or funeral directing.

(6) (Blank).

(7) Engaging in, promoting, selling, or issuing burial contracts, burial certificates, or burial insurance policies in connection with the profession as a funeral director and embalmer, funeral director, or funeral director and embalmer intern in violation of any laws of the State of Illinois.

(8) Refusing, without cause, to surrender the custody of a deceased human body upon the proper request of the person or persons lawfully entitled to the custody of the body.

(9) Taking undue advantage of a client or clients as to amount to the perpetration of fraud.

(10) Engaging in funeral directing and embalming or funeral directing without a license.

(11) Encouraging, requesting, or suggesting by a licensee or some person working on his behalf and with his consent for compensation that a person utilize the services of a certain funeral director and embalmer, funeral director, or funeral establishment unless that information has been expressly requested by the person. This does not prohibit general advertising or pre-need solicitation.

(12) Making or causing to be made any false or misleading statements about the laws concerning the disposition of human remains, including, but not limited to, the need to embalm, the need for a casket for cremation or the need for an outer burial container.

(13) (Blank).

(14) Embalming or attempting to embalm a deceased human body without express prior authorization of the person responsible for making the funeral arrangements for the body. This does not apply to cases where embalming is directed by local authorities who have jurisdiction or when embalming is required by Section 15-57 of this Code or any other applicable State or local law. A licensee may embalm without express prior authorization if a good faith effort has been made to contact family members and has been unsuccessful and the licensee has no reason to believe the family opposes embalming.

(15) Making a false statement on a Certificate of Death where the person making the statement knew or should have known that the statement was false.

(16) Soliciting human bodies after death or while death is imminent.

(17) Performing any act or practice that is a violation of this Code, the rules for the administration of this Code, or any federal, State or local laws, rules, or regulations governing the practice of funeral directing or embalming.

(18) Performing any act or practice that is a violation of Section 2 of the Consumer Fraud and Deceptive Business Practices Act.

(19) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud or harm the public.

(20) Taking possession of a dead human body without having first obtained express permission from the person holding the right to control the disposition in accordance with Section 5 of the Disposition of Remains Act or a public agency legally authorized to direct, control or permit the removal of deceased human bodies.

(21) Advertising in a false or misleading manner or advertising using the name of an unlicensed person in connection with any service being rendered in the practice of funeral directing or funeral directing and embalming. The use of any name of an unlicensed or unregistered person in an advertisement so as to imply that the person will perform services is considered misleading advertising. Nothing in this paragraph shall prevent including the name of any owner, officer or corporate director of a funeral home, who is not a licensee, in any advertisement used by a funeral home with which the individual is affiliated, if the advertisement specifies the individual's affiliation with the funeral home.

(22) Charging for professional services not rendered, including filing false statements for the collection of fees for which services are not rendered.

(23) Failing to account for or remit any monies, documents, or personal property that belongs to others that comes into a licensee's possession.

(24) Treating any person differently to his detriment because of race, color, creed, gender, religion, or national origin.

(25) Knowingly making any false statements, oral or otherwise, of a character likely to influence, persuade or induce others in the course of performing professional services or activities.

(26) Willfully making or filing false records or reports in the practice of funeral directing and embalming, including, but not limited to, false records filed with State agencies or departments.

(27) Failing to acquire continuing education required under this Code.

(28) (Blank).

(29) Aiding or assisting another person in violating any provision of this Code or rules adopted pursuant to this Code.

(30) Failing within 10 days, to provide information in response to a written request made by the Department.

(31) Discipline by another state, District of Columbia, territory, foreign nation, or governmental agency, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section.

(32) (Blank).

(33) Mental illness or disability which results in the inability to practice the profession with reasonable judgment, skill, or safety.

(34) Gross, willful, or continued overcharging for professional services, including filing false statements for collection of fees for which services are not rendered.

(35) Physical illness, including, but not limited to, deterioration through the aging process or loss of motor skill which results in a licensee's inability to practice under this Code with reasonable judgment, skill, or safety.

(36) Failing to comply with any of the following required activities:

(A) When reasonably possible, a funeral director licensee or funeral director and embalmer licensee or anyone acting on his or her behalf shall obtain the express authorization of the person or persons responsible for making the funeral arrangements for a deceased human body prior to removing a body from the place of death or any place it may be or embalming or attempting to embalm a deceased human body, unless required by State or local law. This requirement is waived whenever removal or embalming is directed by local authorities who have jurisdiction. If the responsibility for the handling of the remains lawfully falls under the jurisdiction of a public agency, then the regulations of the public agency shall prevail.

(B) A licensee shall clearly mark the price of any casket offered for sale or the price of any service using the casket on or in the casket if the casket is displayed at the funeral establishment. If the casket is displayed at any other location, regardless of whether the licensee is in control of that location, the casket shall be clearly marked and the registrant shall use books, catalogues, brochures, or other printed display aids to show the price of each casket or service.

(C) At the time funeral arrangements are made and prior to rendering the funeral services, a licensee shall furnish a written statement of services to be retained by the person or persons making the funeral arrangements, signed by both parties, that shall contain: (i) the name, address and telephone number of the funeral establishment and the date on which the arrangements were made; (ii) the price of the service selected and the services and merchandise included for that price; (iii) a clear disclosure that, with the exception of refrigeration or embalming performed pursuant to Section 15-57 of this Code, the person or persons making the arrangement may decline and receive credit for any service or merchandise not desired and not required by law or the funeral director or the funeral director and embalmer; (iv) the supplemental items of service and merchandise requested and the price of each item; (v) the terms or method of payment agreed upon; and (vi) a statement as to any monetary advances made by the registrant on behalf of the family. The licensee shall maintain a copy of the written statement of services in its permanent records. All written statements of services are subject to inspection by the Department.

(D) In all instances where the place of final disposition of a deceased human body or the cremated remains of a deceased human body is a cemetery, the licensed funeral director and embalmer, or licensed funeral director, who has been engaged to provide funeral or embalming services shall remain at the cemetery and personally witness the placement of the human remains in their designated grave or the sealing of the above ground depository, crypt, or urn. The licensed funeral director or licensed funeral director and embalmer may designate a licensed funeral director and embalmer intern or representative of the funeral home to be his or her witness to the placement of the remains. If the cemetery authority, cemetery manager, or any other agent of the cemetery takes any action that prevents compliance with this paragraph (D), then the funeral director and embalmer or funeral director shall provide written notice to the Department within 5 business days after failing to comply. If the Department receives this notice, then the Department shall not take any disciplinary action against the funeral director and embalmer or funeral director for a violation of this paragraph (D) unless the Department finds that the cemetery authority, manager, or any other agent of the cemetery did not prevent the funeral director and embalmer or funeral director from complying with this paragraph (D) as claimed in the written notice.

(E) A funeral director or funeral director and embalmer shall fully complete the portion of the Certificate of Death under the responsibility of the funeral director or funeral director and embalmer and provide all required information. In the event that any reported information subsequently changes or proves incorrect, a funeral director or funeral director and embalmer shall immediately upon learning the correct information correct the Certificate of Death.

(37) A finding by the Department that the license, after having his or her license placed on probationary status or subjected to conditions or restrictions, violated the terms of the probation or failed to comply with such terms or conditions.

(38) (Blank).

(39) Being named as a perpetrator in an indicated report by the Department of Children and Family Services pursuant to the Abused and Neglected Child Reporting Act and, upon proof by clear and convincing evidence, being found to have caused a child to be an abused child or neglected child as defined in the Abused and Neglected Child Reporting Act.

(40) Habitual or excessive use or abuse of drugs defined in law as controlled substances, alcohol, or any other substance which results in the inability to practice with reasonable judgment, skill, or safety.

(41) Practicing under a false or, except as provided by law, an assumed name.

(42) Cheating on or attempting to subvert the licensing examination administered under this Code.

(c) The Department may refuse to issue or renew or may suspend without a hearing, as provided for in the Department of Professional Regulation Law of the Civil Administrative Code of Illinois, the license of any person who fails to file a return, to pay the tax, penalty or interest shown in a filed return, or to pay any final assessment of tax, penalty or interest as required by any tax Act administered by the Illinois Department of Revenue, until the time as the requirements of the tax Act are satisfied in accordance with subsection (g) of Section 2105-15 of the Department of Professional Regulation Law of the Civil Administrative Code of Illinois.

(d) No action may be taken under this Code against a person licensed under this Code unless the action is commenced within 5 years after the occurrence of the alleged violations. A continuing violation shall be deemed to have occurred on the date when the circumstances last existed that give rise to the alleged violation.

(e) Nothing in this Section shall be construed or enforced to give a funeral director and embalmer, or his or her designees, authority over the operation of a cemetery or over cemetery employees. Nothing in this Section shall be construed or enforced to impose duties or penalties on cemeteries with respect to the timing of the placement of human remains in their designated grave or the sealing of the above ground depository, crypt, or urn due to patron safety, the allocation of cemetery staffing, liability insurance, a collective bargaining agreement, or other such reasons.

(f) All fines imposed under this Section shall be paid 60 days after the effective date of the order imposing the fine.

(g) The Department shall deny a license or renewal authorized by this Code to a person who has defaulted on an educational loan or scholarship provided or guaranteed by the Illinois Student Assistance Commission or any governmental agency of this State in accordance with item (5) of subsection (a) of Section 2105-15 of the Department of Professional Regulation Law of the Civil Administrative Code of Illinois.

(h) In cases where the Department of Healthcare and Family Services has previously determined a licensee or a potential licensee is more than 30 days delinquent in the payment of child support and has subsequently certified the delinquency to the Department, the Department may refuse to issue or renew or may revoke or suspend that person's license or may take other disciplinary action against that person based solely upon the certification of delinquency made by the Department of Healthcare and Family Services in accordance with item (5) of subsection (a) of Section 2105-15 of the Department of Professional Regulation Law of the Civil Administrative Code of Illinois.

(i) A person not licensed under this Code who is an owner of a funeral establishment or funeral business shall not aid, abet, assist, procure, advise, employ, or contract with any unlicensed person to offer funeral services or aid, abet, assist, or direct any licensed person contrary to or in violation of any rules or provisions of this Code. A person violating this subsection shall be treated as a licensee for the purposes of disciplinary action under this Section and shall be subject to cease and desist orders as provided in this Code, the imposition of a fine up to $10,000 for each violation and any other penalty provided by law.

(j) The determination by a circuit court that a licensee is subject to involuntary admission or judicial admission as provided in the Mental Health and Developmental Disabilities Code, as amended, operates as an automatic suspension. The suspension may end only upon a finding by a court that the licensee is no longer subject to the involuntary admission or judicial admission and issues an order so finding and discharging the licensee, and upon the recommendation of the Board to the Secretary that the licensee be allowed to resume his or her practice.

(k) In enforcing this Code, the Department, upon a showing of a possible violation, may compel an individual licensed to practice under this Code, or who has applied for licensure under this Code, to submit to a mental or physical examination, or both, as required by and at the expense of the Department. The Department may order the examining physician to present testimony concerning the mental or physical examination of the licensee or applicant. No information shall be excluded by reason of any common law or statutory privilege relating to communications between the licensee or applicant and the examining physician. The examining physician shall be specifically designated by the Department. The individual to be examined may have, at his or her own expense, another physician of his or her choice present during all aspects of this examination. The examination shall be performed by a physician licensed to practice medicine in all its branches. Failure of an individual to submit to a mental or physical examination, when directed, shall result in an automatic suspension without hearing.

A person holding a license under this Code or who has applied for a license under this Code who, because of a physical or mental illness or disability, including, but not limited to, deterioration through the aging process or loss of motor skill, is unable to practice the profession with reasonable judgment, skill, or safety, may be required by the Department to submit to care, counseling, or treatment by physicians approved or designated by the Department as a condition, term, or restriction for continued, reinstated, or renewed licensure to practice. Submission to care, counseling, or treatment as required by the Department shall not be considered discipline of a license. If the licensee refuses to enter into a care, counseling, or treatment agreement or fails to abide by the terms of the agreement, the Department may file a complaint to revoke, suspend, or otherwise discipline the license of the individual. The Secretary may order the license suspended immediately, pending a hearing by the Department. Fines shall not be assessed in disciplinary actions involving physical or mental illness or impairment.

In instances in which the Secretary immediately suspends a person's license under this Section, a hearing on that person's license must be convened by the Department within 15 days after the suspension and completed without appreciable delay. The Department shall have the authority to review the subject individual's record of treatment and counseling regarding the impairment to the extent permitted by applicable federal statutes and regulations safeguarding the confidentiality of medical records.

An individual licensed under this Code and affected under this Section shall be afforded an opportunity to demonstrate to the Department that he or she can resume practice in compliance with acceptable and prevailing standards under the provisions of his or her license.

(Source: P.A. 97-1130, eff. 8-28-12; 98-756, eff. 7-16-14.)".