HB4200 98TH GENERAL ASSEMBLY

LRB098 14810 ZMM 49761 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB4200

Introduced , by Rep. Dan Brady

SYNOPSIS AS INTRODUCED:

See Index

Amends the Funeral Directors and Embalmers Licensing Code. Adds a new provision requiring that all funeral establishments be licensed by the Department of Financial and Professional Regulation. Provides that any licensed funeral director or funeral director and embalmer may seek licensure to operate a funeral establishment and shall be permitted to continue operating the funeral establishment so long as he or she remains in compliance with the Code's requirements for licensure. Further provides that a business entity such as a corporation that owns and operates more than one funeral establishment is required to obtain a single license for all of its funeral establishments within the State. Gives the Department of Financial and Professional Regulation the authority to conduct investigations of a licensed funeral establishment and commence disciplinary action when necessary. Makes other changes.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Funeral Directors and Embalmers Licensing Code is amended by changing Sections 1-10, 1-15, 1-20, 1-30, 5-5, 5-15, 5-18, 10-5, 15-45, 15-50, and 20-15 and by adding Sections 5-6 and 5-11 as follows:

(225 ILCS 41/1-10)

(Section scheduled to be repealed on January 1, 2023)

Sec. 1-10. Definitions. As used in this Code:

"Address of record" means the designated address recorded by the Department in the applicant's or licensee's application file or license file. It is the duty of the applicant or licensee to inform the Department of any changes of address and those changes must be made either through the Department's website or by contacting the Department.

"Applicant" means any person making application for a license. Any applicants or people who hold themselves out as applicants are considered licensees for purposes of enforcement, investigation, hearings, and the Illinois Administrative Procedure Act.

"Board" means the Funeral Directors and Embalmers Licensing and Disciplinary Board.

"Certificate of Death" means a certificate of death as referenced in the Illinois Vital Records Act.

"Department" means the Department of Financial and Professional Regulation.

"Funeral director and embalmer" means a person who is licensed and qualified to practice funeral directing and to prepare, disinfect and preserve dead human bodies by the injection or external application of antiseptics, disinfectants or preservative fluids and materials and to use derma surgery or plastic art for the restoring of mutilated features. It further means a person who restores the remains of a person for the purpose of funeralization whose organs or bone or tissue has been donated for anatomical purposes.

"Funeral director and embalmer intern" means a person licensed by the Department who is qualified to render assistance to a funeral director and embalmer in carrying out the practice of funeral directing and embalming under the supervision of the funeral director and embalmer.

"Embalming" means the process of sanitizing and chemically treating a deceased human body in order to reduce the presence and growth of microorganisms, to retard organic decomposition, to render the remains safe to handle while retaining naturalness of tissue, and to restore an acceptable physical appearance for funeral viewing purposes.

"Funeral director" means a person, known by the title of "funeral director" or other similar words or titles, licensed by the Department who practices funeral directing.

"Funeral establishment", "funeral chapel", "funeral home", or "mortuary" means a building or separate portion of a building having a specific street address or location and devoted to activities relating to the shelter, care, custody and preparation of a deceased human body and which may contain facilities for funeral or wake services.

"Licensee" means the owner and operator of a funeral establishment licensed under this Code or a person licensed under this Code as a funeral director, funeral director and embalmer, or funeral director and embalmer intern. Anyone who holds himself or herself out as a licensee or who is accused of unlicensed practice is considered a licensee for purposes of enforcement, investigation, hearings, and the Illinois Administrative Procedure Act.

"Owner" means the individual, partnership, corporation, limited liability company, association, trust, estate, or agent thereof, or other person or combination of persons who owns a funeral establishment or funeral business.

"Person" means any individual, partnership, association, firm, corporation, limited liability company, trust or estate, or other entity. "Person" includes both natural persons and legal entities.

"Secretary" means the Secretary of Financial and Professional Regulation.

(Source: P.A. 96-863, eff. 3-1-10; 96-1463, eff. 1-1-11; 97-1130, eff. 8-28-12.)

(225 ILCS 41/1-15)

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

Sec. 1-15. Funeral directing; definition. Conducting or engaging in or representing or holding out oneself as conducting or engaged in any one or any combination of the following practices constitutes the practice of funeral directing:

(a) The practice of preparing, otherwise than by embalming, for the burial, cremation, or disposition and directing and supervising the burial or disposition of deceased human remains or performing any act or service in connection with the preparing of dead human bodies. Preparation, direction, and supervision shall not be construed to mean those functions normally performed by cemetery and crematory personnel.

(b) The practice of operating a place for preparing for the disposition of deceased human bodies or for caring for deceased human bodies before their disposition. Nothing in this Code shall prohibit the ownership and management of such a place by an unlicensed owner if the place is operated in accordance with this Code and the unlicensed owner does not engage in any form of funeral directing. An unlicensed owner may interact with consumers while a licensed funeral director is present in accordance with this Section.

(c) The removal of a deceased human body from its place of death, institution, or other location. A licensed funeral director and embalmer intern may remove a deceased human body from its place of death, institution, or other location without another licensee being present. The licensed funeral director may engage others who are not licensed funeral directors, licensed funeral director and embalmers, or licensed funeral director and embalmer interns to assist in the removal if the funeral director directs and instructs them in handling and precautionary procedures and accompanies them on all calls. The transportation of deceased human remains to a cemetery, crematory or other place of final disposition shall be under the immediate direct supervision of a licensee unless otherwise permitted by this Section. The transportation of deceased human remains that are embalmed or otherwise prepared and enclosed in an appropriate container to some other place that is not the place of final disposition, such as another funeral home or common carrier, or to a facility that shares common ownership with the transporting funeral home may be performed under the general supervision of a licensee, but the supervision need not be immediate or direct.

(d) The administering and conducting of, or assuming responsibility for administering and conducting of, at need funeral arrangements.

(e) The assuming custody of, transportation, providing shelter, protection and care and disposition of deceased human remains and the furnishing of necessary funeral services, facilities and equipment.

(f) Using in connection with a name or practice the word "funeral director", "undertaker", "mortician", "funeral home", "funeral parlor", "funeral chapel", or any other title implying that the person is engaged in the practice of funeral directing.

Within the existing scope of the practice of funeral directing or funeral directing and embalming, only a licensed funeral director, a licensed funeral director and embalmer, or a licensed funeral director and embalmer intern under the restrictions provided for in this Code, and not any other person employed or contracted by the licensee, may engage in the following activities at-need: (1) have direct contact with consumers and explain funeral or burial merchandise or services or (2) negotiate, develop, or finalize contracts with consumers. This paragraph shall not be construed or enforced in such a manner as to limit the functions of persons regulated under the Illinois Funeral or Burial Funds Act, the Illinois Pre-Need Cemetery Sales Act, the Cemetery Oversight Act, the Cemetery Care Act, the Cemetery Association Act, the Illinois Insurance Code, or any other related professional regulatory Act.

The practice of funeral directing shall not include the phoning in of obituary notices, ordering of flowers for the funeral, or reporting of prices on the firm's general price list as required by the Federal Trade Commission Funeral Rule by nonlicensed persons, or like clerical tasks incidental to the act of making funeral arrangements.

The making of funeral arrangements, at need, shall be done only by licensed funeral directors or licensed funeral directors and embalmers. Licensed funeral director and embalmer interns may, however, assist or participate in the arrangements under the direct supervision of a licensed funeral director or licensed funeral director and embalmer.

(Source: P.A. 97-1130, eff. 8-28-12; 98-432, eff. 1-1-14.)

(225 ILCS 41/1-20)

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

Sec. 1-20. Funeral directing and embalming; definition. "The practice of funeral directing and embalming" means:

(a) The practice of preparing, otherwise than by embalming, for the burial, cremation, or disposition and directing and supervising the burial or disposition of deceased human remains or performing any act or service in connection with the preparing of dead human bodies. Preparation, direction, and supervision shall not be construed to mean those functions normally performed by cemetery and crematory personnel.

(b) The practice of operating a place for preparing for the disposition of deceased human bodies or for caring for deceased human bodies before their disposition. Nothing in this Code shall prohibit the ownership and management of such a place by an unlicensed owner if the place is operated in accordance with this Code and the unlicensed owner does not engage in any form of funeral directing and embalming.

(c) The removal of a deceased human body from its place of death, institution or other location. A licensed funeral director and embalmer intern may remove a deceased human body from its place of death, institution, or other location without another licensee being present. The licensed funeral director and embalmer may engage others who are not licensed funeral directors and embalmers, licensed funeral directors, or licensed funeral director and embalmer interns to assist in the removal if the funeral director and embalmer directs and instructs them in handling and precautionary procedures and accompanies them on all calls. The transportation of deceased human remains to a cemetery, crematory or other place of final disposition shall be under the immediate, direct supervision of a licensee unless otherwise permitted by this Section. The transportation of deceased human remains that are embalmed or otherwise prepared and enclosed in an appropriate container to some other place that is not the place of final disposition, such as another funeral home or common carrier, or to a facility that shares common ownership with the transporting funeral home may be performed under the general supervision of a licensee, but the supervision need not be immediate or direct.

(d) The administering and conducting of, or assuming responsibility for administering and conducting of, at need funeral arrangements.

(e) The assuming custody of, transportation, providing shelter, protection and care and disposition of deceased human remains and the furnishing of necessary funeral services, facilities and equipment.

(f) Using in connection with a name or practice the word "funeral director and embalmer", "embalmer", "funeral director", "undertaker", "mortician", "funeral home", "funeral parlor", "funeral chapel", or any other title implying that the person is engaged in the practice of funeral directing and embalming.

(g) The practice of embalming or representing or holding out oneself as engaged in the practice of embalming of deceased human bodies or the transportation of human bodies deceased of a contagious or infectious disease.

Within the existing scope of the practice of funeral directing or funeral directing and embalming, only a licensed funeral director, a licensed funeral director and embalmer, or a licensed funeral director and embalmer intern under the restrictions provided for in this Code, and not any other person employed or contracted by the licensee, may engage in the following activities at-need: (1) have direct contact with consumers and explain funeral or burial merchandise or services or (2) negotiate, develop, or finalize contracts with consumers. This paragraph shall not be construed or enforced in such a manner as to limit the functions of persons regulated under the Illinois Funeral or Burial Funds Act, the Illinois Pre-Need Cemetery Sales Act, the Cemetery Oversight Act, the Cemetery Care Act, the Cemetery Association Act, the Illinois Insurance Code, or any other related professional regulatory Act.

The practice of funeral directing and embalming shall not include the phoning in of obituary notices, ordering of flowers for the funeral, or reporting of prices on the firm's general price list as required by the Federal Trade Commission Funeral Rule by nonlicensed persons, or like clerical tasks incidental to the act of making funeral arrangements.

The making of funeral arrangements, at need, shall be done only by licensed funeral directors or licensed funeral directors and embalmers. Licensed funeral director and embalmer interns may, however, assist or participate in the arrangements under the direct supervision of a licensed funeral director or licensed funeral director and embalmer.

(Source: P.A. 96-1463, eff. 1-1-11; 97-1130, eff. 8-28-12.)

(225 ILCS 41/1-30)

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

Sec. 1-30. Powers of the Department. Subject to the provisions of this Code, the Department may exercise the following powers:

(1) To authorize examinations to ascertain the qualifications and fitness of applicants for licensing as a licensed funeral director and embalmer and pass upon the qualifications of applicants for licensure.

(1.5) To ascertain the qualifications and fitness of applicants for licensing as a licensed funeral establishment and pass upon the qualifications of applicants for licensure.

(2) To examine the records of a licensed funeral director, or licensed funeral director and embalmer, or licensed funeral establishment from any year or any other aspect of funeral directing and embalming as the Department deems appropriate.

(3) To investigate any and all funeral directing and embalming activity, as well as the activity of any funeral establishment.

(4) To conduct hearings on proceedings to refuse to issue or renew licenses or to revoke, suspend, place on probation, reprimand, or otherwise discipline a license under this Code or take other non-disciplinary action.

(5) To adopt all necessary and reasonable rules and regulations for the effective administration of this Code.

(6) To prescribe forms to be issued for the administration and enforcement of this Code.

(7) To maintain rosters of the names and addresses of all licensees and all persons whose licenses have been suspended, revoked, denied renewal, or otherwise disciplined within the previous calendar year. These rosters shall be available upon written request and payment of the required fee as established by rule.

(8) To contract with third parties for services necessary for the proper administration of this Code including, without limitation, investigators with the proper knowledge, training, and skills to properly inspect funeral homes and investigate complaints under this Code.

(Source: P.A. 96-1463, eff. 1-1-11; 97-1130, eff. 8-28-12.)

(225 ILCS 41/5-5)

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

Sec. 5-5. Funeral director license License requirement. It is unlawful for any person to practice, or to attempt to practice, funeral directing without a license as a funeral director issued by the Department.

No person shall practice funeral directing unless he or she is they are employed by or contracted with a fixed place of practice or establishment that is licensed under this Code and devoted to the care and preparation for burial or for the transportation of deceased human bodies.

No person shall practice funeral directing independently at the fixed place of practice or establishment of another licensee unless that person's name is published and displayed at all times in connection therewith.

(Source: P.A. 97-1130, eff. 8-28-12; revised 11-14-13.)

(225 ILCS 41/5-6 new)

Sec. 5-6. Funeral establishment license requirement. It is unlawful for any person or group of associated persons including, but not limited to, a partnership, limited liability company, or corporation, to own and operate a funeral establishment that is not licensed by the Department. Any qualified group of associated persons that owns and operates more than one funeral establishment in the State shall be issued by the Department a single license that identifies each such funeral establishment.

(225 ILCS 41/5-11 new)

Sec. 5-11. Funeral establishment license; display. Every holder of a license for a funeral establishment shall display it in a conspicuous place in the funeral establishment owned and operated by the licensee. If the licensee owns and operates more than one funeral establishment in the State, the licensee shall display the license in a conspicuous place in one such funeral establishment and display a notice of this location in a conspicuous place in each other funeral establishment owned and operated by the licensee.

(225 ILCS 41/5-15)

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

Sec. 5-15. Renewal; reinstatement; restoration. The expiration date and renewal period for each license issued under this Article shall be set by rule. The holder of a license for a funeral establishment or as a licensed funeral director may renew his or her the license during the month preceding the expiration date of the license by paying the required fee. A licensee licensed funeral director whose license has expired may have the license reinstated within 5 years from the date of expiration upon payment of the required reinstatement fee. The reinstatement shall be effective as of the date of reissuance of the license.

Any licensee licensed funeral director whose license has been expired for more than 5 years may have the license restored only by fulfilling the requirements of the Department's rules and by paying the required restoration fee. However, any licensee licensed funeral director whose license has expired while he or she has been engaged (1) in federal service on active duty with the United States Army, Navy, Marine Corps, Air Force, or Coast Guard, or the State Militia called into the service or training of the United States of America or (2) in training or education under the supervision of the United States preliminary to induction into the military service may have his or her license restored without paying any lapsed renewal fees or restoration fee or without passing any examination if, within 2 years after termination of the service, training or education other than by dishonorable discharge, he or she furnishes the Department with an affidavit to the effect that he or she has been so engaged and that his or her service, training or education has been so terminated.

In addition to any other requirement for renewal of a license or reinstatement or restoration of an expired license, as a condition for the renewal, reinstatement, or restoration of a license as a licensed funeral director, each licensee shall provide evidence to the Department of completion of at least 12 hours of continuing education during the 24 months preceding the expiration date of the license, or in the case of reinstatement or restoration, during the 24 months preceding application for reinstatement or restoration. The continuing education sponsors shall be approved by the Board. In addition, any qualified continuing education course for funeral directors offered by a college, university, the Illinois Funeral Directors Association, Funeral Directors Services Association of Greater Chicago, Cook County Association of Funeral Home Owners, Inc., Illinois Selected Morticians Association, Inc., Illinois Cemetery and Funeral Home Association, National Funeral Directors Association, Selected Independent Funeral Homes, National Funeral Directors and Morticians Association, Inc., International Order of the Golden Rule, or an Illinois school of mortuary science shall be accepted toward satisfaction of the continuing education requirements.

The Department shall establish by rule a means for verification of completion of the continuing education required by this Section. This verification may be accomplished through audits of records maintained by licensees, by requiring the filing of continued education certificates with the Department or a qualified organization selected by the Department to maintain these records, or by other means established by the Department.

Except as otherwise provided in this paragraph, a person who is licensed as a funeral director under this Code and who has engaged in the practice of funeral directing for at least 40 years shall be exempt from the continuing education requirements of this Section. Licensees who have not engaged in the practice of funeral directing for at least 40 years by January 1, 2016 shall not receive this exemption after that date. In addition, the Department shall establish by rule an exemption or exception, for a limited period of time, for funeral directors who, by reason of advanced age, health or other extreme condition should reasonably be excused from the continuing education requirement upon the approval of the Secretary. Those persons, identified above, who cannot attend on-site classes, shall have the opportunity to comply by completing home study courses designed for them by sponsors.

(Source: P.A. 96-1463, eff. 1-1-11; 97-1130, eff. 8-28-12.)

(225 ILCS 41/5-18)

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

Sec. 5-18. Inactive status.

(a) Any licensee funeral director who notifies the Department in writing on forms prescribed by the Department may elect to place his or her license on an inactive status and shall, subject to rules of the Department, be excused from payment of renewal fees and completion of continuing education requirements until he or she notifies the Department in writing of an intent to restore or reinstate the license to active status.

(b) Any licensee who has permitted his or her license to expire or who has had his or her license on inactive status may have the license restored by making application to the Department, by filing proof acceptable to the Department of his or her fitness to have the license restored, and by paying the required fees. Proof of fitness may include sworn evidence certifying to active lawful practice in another jurisdiction. If the licensee has not maintained an active practice in another jurisdiction satisfactory to the Department, then the Department shall determine by an evaluation program, established by rule, his or her fitness for restoration of the license and shall establish procedures and requirements for restoration. Any licensee whose license is on inactive status shall not practice funeral directing or own and operate a funeral establishment in the State.

(c) Any licensee whose license is on inactive status or in a non-renewed status shall not engage in the practice of funeral directing or own and operate a funeral establishment in the State, or use the title or advertise that he or she performs the services of a licensed funeral director or that he or she owns and operates a licensed funeral establishment. Any person violating this Section shall be considered to be practicing without a license and shall be subject to the disciplinary provisions of this Code.

(Source: P.A. 97-1130, eff. 8-28-12.)

(225 ILCS 41/10-5)

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

Sec. 10-5. License requirement. It is unlawful for any person to practice or attempt to practice funeral directing and embalming without being licensed by the Department.

No person shall practice funeral directing and embalming unless he or she is they are employed by or contracted with a fixed place of practice or establishment that is licensed under this Code and devoted to the care and preparation for burial or for the transportation of deceased human bodies.

No person shall practice funeral directing and embalming independently at the fixed place of practice or establishment of another licensee unless his or her name shall be published and displayed at all times in connection therewith.

No licensed intern shall independently practice funeral directing and embalming; however, a licensed funeral director and embalmer intern may under the immediate personal supervision of a licensed funeral director and embalmer assist a licensed funeral director and embalmer in the practice of funeral directing and embalming.

No person shall practice as a funeral director and embalmer intern unless he or she possesses a valid license in good standing to do so in the State of Illinois.

(Source: P.A. 97-1130, eff. 8-28-12; revised 11-14-13.)

(225 ILCS 41/15-45)

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

Sec. 15-45. Practice without license; injunction; cease and desist order; civil penalties.

(a) The practice of funeral directing and embalming or funeral directing or the operation of a funeral establishment by any person who has not been issued a license by the Department, whose license has been suspended or revoked, or whose license has not been renewed is hereby declared to be inimical to the public welfare and to constitute a public nuisance. The Secretary may, in the name of the People of the State of Illinois through the Attorney General of the State of Illinois, or the State's Attorney of any county in which the violation is alleged to have occurred in the State of Illinois, apply for an injunction in the circuit court to enjoin any person who has not been issued a license or whose license has been suspended or revoked, or whose license has not been renewed, from practicing funeral directing and embalming or funeral directing or operating a funeral establishment. Upon the filing of a verified complaint in court, the court, if satisfied by affidavit or otherwise that the person is or has been practicing funeral directing and embalming or funeral directing or is or has been operating a funeral establishment without having been issued a license or after his or her license has been suspended, revoked, or not renewed, may issue a temporary restraining order or preliminary injunction, without notice or bond, enjoining the defendant from further practicing funeral directing and embalming or funeral directing or from further operating the funeral establishment. A copy of the verified complaint shall be served upon the defendant and the proceedings shall thereafter be conducted as in other civil cases. If it is established that the defendant has been or is practicing funeral directing and embalming or funeral directing or has been or is operating a funeral establishment without having been issued a license or has been or is practicing funeral directing and embalming or funeral directing or has been or is operating a funeral establishment after his or her license has been suspended, revoked, or not renewed, the court may enter a judgment perpetually enjoining the defendant from further practicing funeral directing and embalming or funeral directing or from further operating a funeral establishment. In case of violation of any injunction entered under this Section, the court may summarily try and punish the offender for contempt of court. Any injunction proceeding shall be in addition to, and not in lieu of, all penalties and other remedies in this Code.

(b) Whenever, in the opinion of the Department, any person or other entity violates any provision of this Code, the Department may issue a notice to show cause why an order to cease and desist should not be entered against that person or other entity. The rule shall clearly set forth the grounds relied upon by the Department and shall provide a period of 7 days from the date of the rule to file an answer to the satisfaction of the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued immediately.

(c) (Blank).

(Source: P.A. 96-1463, eff. 1-1-11; 97-333, eff. 8-12-11; 97-1130, eff. 8-28-12.)

(225 ILCS 41/15-50)

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

Sec. 15-50. Practice by corporation, limited liability company, partnership, or association. No corporation, limited liability company, partnership or association of individuals, as such, shall be issued a license as a licensed funeral director and embalmer or licensed funeral director, nor shall any corporation, limited liability company, partnership, firm or association of individuals, or any individual connected therewith, publicly advertise any corporation, partnership, or association of individuals as being licensed funeral directors and embalmers or licensed funeral directors. Nevertheless, nothing in this Act shall restrict funeral director licensees or funeral director and embalmer licensees from forming professional service corporations under the Professional Service Corporation Act or from having these corporations registered for the practice of funeral directing. Nor shall anything in this Code prohibit a corporation, limited liability company, partnership, or association from owning and operating a licensed funeral establishment.

No funeral director licensee or funeral director and embalmer licensee, and no partnership or association of those licensees, formed since July 1, 1935, shall engage in the practice of funeral directing and embalming or funeral directing under a trade name or partnership or firm name unless in the use and advertising of the trade name, partnership or firm name there is published in connection with the advertising the name of the owner or owners as the owner or owners.

(Source: P.A. 96-863, eff. 3-1-10; 97-1130, eff. 8-28-12.)

(225 ILCS 41/20-15)

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

Sec. 20-15. Home rule. The regulation and licensing provided for in this Code are exclusive powers and functions of the State. A home rule unit may not regulate or license funeral establishments, funeral directors, funeral director and embalmers, or any activities relating to the services of funeral directing and embalming. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

(Source: P.A. 96-1463, eff. 1-1-11; 97-1130, eff. 8-28-12.)