VITAL STATISTICS CONFERENCE 2013 LAW AND ETHICS

purpose Provide an introduction and overview of the law and rules governing the funeral service industry. Provide a refresher course in ethics for Funeral Directors & Embalmers. Provide an opportunity for discussion between licensees and those in other fields working with vital statistics.

Introduction TO THE LAW Texas Occupations Code Chapter 651.001 to .658 Subchapter F. & H.—Sections .251 to .354—Individual & Establishment Licensing Requirements Subchapter I.—Sections .401 to .460— Practice by License Holder** Subchapter K. to N.—Sections .501 to .658—Administrative Penalties & Disciplinary Actions

Introduction TO THE rules Texas Administrative Code Chapter 201 to 209 Chapter 201—Licensing and Enforcement – Practice & Procedure Chapter 203—Licensing and Enforcement – Specific Substantive Rules**

Practice by License Holder Chap. 651.401—First Call .402—Funeral Director and Establishment .403—Funeral Director in Charge .404—Consumer Brochure .405—Retail Price List .406—Purchase Agreement .451 to .459—Unethical Conduct .460—Prohibited Practices Related to Other Legal Requirements

First Call– .401 Funeral Director or Embalmer must direct and personally supervise pickup. Unlicensed employee must not discuss funeral arrangements with family. Unlicensed employee can set appointment with Funeral Director and family. Unlicensed employee cannot discuss laws or regulations. Funeral Director who does not directly supervise is strictly accountable for compliance.

Funeral Director and the Funeral Establishment– .402 Funeral Director may provide services for compensation when acting as a licensed employee of a licensed funeral establishment. Funeral Director may provide services for compensation when acting as a licensed agent, subcontractor, or assignee of a licensed funeral establishment.

Funeral Director in Charge (FDIC)— .403 & .459(c) A funeral establishment shall designate a FDIC and notify the Commission. A funeral establishment shall promptly notify the Commission of any change in FDIC. FDIC is directly responsible for all funeral and embalming business at the establishment. FDIC may be charged with violations of the law and rules in the establishment. FDIC commits a violation by not providing a Funeral Director or Embalmer for a first call.

Consumer Brochure– .404 Funeral establishments shall provide each prospective customer with the Facts About Funeral Brochure. A funeral establishment may make copies of the brochure if the Commission is unable to provide the number needed.

Retail Price List– .405 A printed list of the retail price of items or services provided by the establishment. Must contain the name, address, and telephone number of the establishment. Must contain the effective date for the stated prices. Must include price of: transferring a deceased person, embalming, viewing and funeral services at the establishment, vehicles, caskets, outer enclosures, etc.

Purchase Agreement– .406 Establishment contact information. Amount paid or owed to a another person on behalf of the customer. Commission contact information. How to file a complaint with the Commission. Signed by the Funeral Director making the arrangements. “Charges are only for those items that you selected or that are required. If we are required by law or by a cemetery or crematory to use any items, we will explain the reasons in writing below.”

Unethical Acts– .451 - .459 Misleading, deceptive or fraudulent acts. Making a false statement or forgery of signature on a death certificate. False advertising. Engaging in fraudulent or unprofessional conduct in providing funeral services. Dishonest conduct or negligence in embalming that injures the public. Misappropriation of funds including retaining for an unreasonable time excess funds paid by a customer.

Prohibited Practices– .460 Failure to provide purchase agreement. Failure to retain required documents for two years and failure to provide to Commission. Violation of Commission Rule, Order or an Agreement with the Commission. Violation of Health and Safety Code 193. (Filing of Death Cert.) Violation of Finance Code Chapter 154 (Prepaid Funeral Services) or a Rule adopted under Chapter 651.

Disciplinary Actions– TOC 651.501 - .552 Disciplinary powers of the Commission— .501 Charging FDIC with violation— .5011 License Denial and Revocation— .502 - .5025 Temporory License Suspension— .5026 Warning and Reprimand— .503 - .504 Probation— .505 Right to a hearing at SOAH— .506 Effect of multiple violations— .507 Administrative penalty— .551 - .552

Misrepresentations– TAC 203.8 Making a false statement or forgery of signature on a death certificate. Engaging in fraudulent or unprofessional conduct in providing funeral services. Dishonest conduct or negligence in embalming that injures the public.

Misrepresentations– TAC 203.8 Representing that state or local law requires a deceased person be embalmed. Representing that a casket is required for direct cremations. Representing that a law or rule requires the purchase of any funeral good or service that it does not.

Unprofessional Conduct– TAC 203.24 Providing a funeral or embalming in violation of Chapter 651 or the Rules. Failing to keep or furnish records. Operating an establishment in an unsanitary manner. Obstructing a Commission employee’s duties. Conduct that is willful, flagrant, or shameless showing a moral indifference to the standards of the community.

Unprofessional Conduct– TAC 203.24 Engaging in fraud, false representation, or concealments of facts. Deceit or misrepresentations. Communicating with the Commission during a contested case. Trying to influence a complainant or witness during a contested case. Violating any law or rule.

Consequences of Criminal Convictions— TAC 203.33 Suspension, revocation, or denial of a license for felony or misdemeanor. Revocation for felony imprisonment. Factors to determine if conviction relates to a Chapter 651 occupation. Factors and crimes used to determine a person’s fitness to perform Chapter 651 occupations. Duty to disclose all convictions before and after license is issued.