Senate Bill No. 438

(By Senator Love)

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[Introduced March 24, 1997; referred to the Committee
on Government Organization; and then to the Committee on Finance.]
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A BILL to amend chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article six-a, relating to crematory licensing and regulations.

Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article six-a, to read as follows:
 ARTICLE 6A. CREMATORY LICENSING AND REGULATIONS.
§30-6A-1. Short title.
This article may be cited as the "Crematory Regulation Act".
§30-6A-2. Definitions.
(a) "Alternative container" means a receptacle, other than a casket, in which human remains are transported to the crematory and placed in the cremation chamber for cremation. An alternative container shall be: (1) Composed of readily combustible materials suitable for cremation; (2) able to be closed in order to provide a complete covering for the human remains; (3) resistant to leakage or spillage; (4) rigid enough for handling with ease; and (5) able to provide protection for the health, safety, and personal integrity of crematory personnel. The name of deceased and dates of birth and death shall be permanently inscribed on top lid.
(b) "Authorizing agent" means a person legally entitled to order the cremation and final disposition of specific human remains.
(c) "Body parts" means limbs or other portions of the anatomy that are removed from a person or human remains for medical purposes during treatment, surgery, biopsy, autopsy or medical research or human bodies or any portion of bodies that have been donated to science for medical research purposes.
(d) "Burial transit permit" means a permit for disposition of a dead human body as required by state law.
(e) "Casket" means a rigid container that is designed for the encasement of human remains, is usually constructed of wood, metal or like material and ornamented and lined with fabric, and may or may not be combustible with name of the deceased permanently inscribed on top lid with dates of birth and death.
(f) "Change of ownership" means a transfer of more than fifty percent of the stock or assets of a crematory.
(g) "Cremated remains" means all human remains recovered after the completion of the cremation, which may possibly include the residue of an foreign matter including casket material, bridgework or eyeglasses, that was cremated with the human remains.
(h) "Cremation" means the technical process, using heat and flame, that reduces human remains to bone fragments. The reduction takes place through heat and evaporation. Cremation includes the processing, and may include the pulverization, of the bone fragments.
(i) "Cremation chamber" means the enclosed space within which the cremation takes place.
(j) "Crematory" means the building or portion of a building that houses the cremation room and the holding facility owned by a licensed West Virginia funeral establishment.
(k) "Funeral director" means a person known by the title of "funeral director", "funeral director and embalmer", or other similar words or titles, licensed by the state to practice funeral directing or funeral directing and embalming.
(l) "Human remains" means the body of a deceased person, including any form of body prosthesis that has been permanently attached or implanted in the body.
(m) "Pulverization" means the reduction of identifiable bone fragments after the completion of the cremation process to granulated particles by manual or mechanical means.
(n) "Scattering area" means an area which may be designated by a cemetery and located on dedicated cemetery property where cremated remains, which have been removed from their container, can be mixed with, or placed on top of, the soil or ground cover.
(o) "Urn" means a receptacle designed to encase the cremated remains, with name, dated of birth and death permanently inscribed.
§30-6A-3. Establishment of crematory and registration of crematory authority.
(a) Only licensed funeral establishments doing business in this state, as a funeral establishment, corporation and operate a crematory in this state and provide the necessary appliances and facilities for the cremation of human remains in accordance with this article.
(b) A crematory shall be subject to all local, state, and funeral health and environmental protection requirements and shall obtain all necessary licenses and permits from the state department of health and human resources and the federal department of health and human services.
(c) A crematory may be constructed on or adjacent to any cemetery, on or adjacent to any funeral establishment, or at any other location consistent with local zoning regulations.
(d) An application for registration as a crematory shall be in writing on forms furnished by the attorney general. Application shall be accompanied by a fee of two hundred fifty dollars and shall contain all of the following:
(1) The full name and address, both residence and business, of the applicant if the applicant is an individual; the full name and address of every member if the applicant is a partnership; the full name and address of every member of the board of directors if the applicant is an association; and the name and address of every officer, director, and shareholder holding more than twenty-five percent of the corporation stock if the applicant is a corporation.
(2) The address and location of the crematory.
(3) A description of the type of structure and equipment to be used in the operation of the crematory.
(4) Any further information that the crematory inspector reasonably may require.
(e) Each crematory shall file an annual report with the crematory inspector to be appointed by the attorney general, accompanied with a two hundred fifty dollar fee, providing any changes required in the information provided under subsection (d) of this section, or indicating that no changes have occurred. The annual report shall be filed by a crematory on or before the fifteenth day of March of each calendar year, in the office of the attorney general. If the fiscal year of a crematory is other than on a calendar year basis, then the crematory shall file the report required by this section within seventy-five days after the end of its fiscal year. The attorney general shall, for good cause shown, grant an extension for the filing of the annual report upon the written request of the crematory. An extension may not exceed sixty days. If a crematory fails to submit an annual report to the crematory inspector within the time specified in this section, the crematory inspector shall impose upon the crematory a penalty of five dollars for each and every day the crematory remains delinquent in submitting the annual report.
(f) All records relating to the registration and annual report of the crematory required to be filed under this section shall be subject to inspection by the attorney general upon reasonable notice.
(g) The annual fee for each crematorium shall be two hundred fifty dollars yearly with a five dollar fee for each cremation accomplished. Cremation inspectors shall be appointed by the West Virginia attorney general. Qualifications for inspectors must be West Virginia licensed funeral director and embalmer and owner or officer of a West Virginia crematorium.
§30-6A-4. Authorizing agent.
(a) The following persons, in the priority listed, shall have the right to serve as an authorizing agent:
(1) The individual who was the spouse of the decedent at the time of the decedent's death.
(2) Any person acting on the instructions of a decedent who authorized his or her own cremation through the execution, on a preneed basis.
(3) Any person serving as executor or legal representative of a decedent's written instructions.
(4) The decedent's surviving adult children. If there is more than one adult child, any adult child, who confirms in writing the notification of all other adult children, may serve as the authorizing agent, unless the crematory receives a written objection to the cremation from another adult child.
(5) The decedent's surviving parent. If the decedent is survived by two parents, either parent may serve as the authorizing agent unless the crematory receives a written objection to the cremation from the other parent.
(6) The person in the next degree of kinship under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may serve as the authorizing agent.
(7) In the case of indigents or any other individuals whose final disposition is the responsibility of the state or any of its instrumentalities, a public administrator, medical examiner, coroner, state appointed guardian, or any other public official charged with arranging the final disposition of the decedent may serve as the authorizing agent.
(8) In the case of individuals who have donated their bodies to science or whose death occurred in a nursing home or other private institution, who have executed cremation authorization forms, a representative of the institution may serve as the authorizing agent.
(b) In the case of body parts, a representative of the institution that has arranged with the crematory to cremate the body part may serve as the authorizing agent.
§30-6A-5.Authorization to cremate.
(a) A crematory may not cremate human remains until it has received all of the following:
(1) A cremation authorization form signed by an authorizing agent. The cremation authorization form shall be provided by the crematory and shall contain, at a minimum, the following information:
(A) The identity of the human remains and the time and date of death, authorizing agent or person they designate, shall identify the deceased human remains in a casket or alternative container with deceased name, date of birth and death permanently inscribed on container. The attending funeral director may take on that responsibility.
(B) The name of the funeral director or funeral establishment that obtained the cremation authorization.
(C) Notification as to whether the death occurred from a disease declared by the division of health to be infectious, contagious, communicable or dangerous to the public health.
(D) The name of the authorizing agent and the relationship between the authorizing agent and the decedent.
(E) A representation that the authorizing agent does in fact have the right to authorize the cremation of the decedent.
(F) Authorization for the crematory to cremate the human remains.
(G) A representation that the human remains do not contain a pacemaker or any other material or implant that may be potentially hazardous or cause damage to the cremation chamber or the person performing the cremation.
(H) The name of the person authorized to receive the cremated remains from the crematory.
(I) The manner in which final disposition of the cremated remains is to take place, if known, if the cremation authorization form does not specify final disposition in a grave, crypt, niche or scattering area, then the form may indicate that the cremated remains will be held by the crematory for thirty days before they are released, unless they are picked up from the crematory prior to that time, in person, by the authorizing agent. At the end of the thirty days the crematory may return the cremated remains to the authorizing agent if no final disposition arrangements are made; or at the end of thirty days the crematory may dispose of the cremated remains.
(b) A specific statement as to whether the authorizing agent or their representative has made arrangement for any type of viewing of the decedent before cremation, or for a service with the decedent present before cremation in connection with the cremation, and if so, the date and time of the viewing or service and whether the crematory is authorized to proceed with the cremation upon receipt of the human remains. If not, the attending funeral director shall identify the deceased in a casket, or alternative container with the name of deceased inscribed on top lid.
(c) The signature of the authorizing agent, attesting to the accuracy of all representations contained on the cremation authorization form.
(d) The cremation authorization form, other than preneed cremation forms, shall also be signed by a funeral director or other representative of the funeral establishment that obtained the cremation authorization. That individual shall merely execute the cremation authorization form as a witness and may not be responsible for any of the representations made by the authorizing agent, unless the individual has actual knowledge to the contrary. In addition, the funeral director or funeral establishment shall warrant to the crematory that the human remains delivered to the crematory are the human remains identified on the cremation authorization form.
(e)A completed and executed burial transit permit indicating that the human remains are to be cremated.
(f)An authorizing agent who signs a cremation authorization form shall be deemed to warrant the truthfulness of any facts set forth on the cremation authorization form, including that person's authority to order the cremation;
(g)After an authorizing agent has executed a cremation authorization form, the authorizing agent may revoke the authorization form, and instruct the crematory to cancel the cremation to release or deliver the human remains to another crematory or funeral establishment. The instructions shall be provided to the crematory in writing. A crematory shall honor any instructions receives the instructions prior to beginning the cremation of the human remains.
§30-6A-6. Recordkeeping.
(a)The crematory shall furnish to the person who delivers human remains to the crematory a receipt signed by both the crematory and the person who delivers the human remains, showing the date and time of the delivery, the type of casket or alternative container that has delivered, the name of the person from whom the human remains were received and the name of the funeral establishment or other entity with whom the person is affiliated, the name of the person who received the human remains on behalf of the crematory, and the name of the decedent. The crematory shall retain a copy of this receipt in its permanent records.
(b)Upon its release of cremated remains, the crematory shall furnish to the person who receives the cremated remains from the crematory a receipt signed by both the crematory and the person who receives the cremated remains, showing the date and time of the release, the name of the person to whom the cremated remains were released and the name of the funeral establishment, cemetery, or other entity with whom the person is affiliated, the name of the person who released the cremated remains on behalf of the crematory, and the name of the decedent. The crematory shall retain a copy of this receipt in its permanent records.
(c)A crematory shall maintain at its place of business a permanent record of each cremation that took place at its facility which shall contain the name of the decedent, the date of the cremation, and the final disposition of the cremated remains.
(d)The crematory shall maintain a record of all cremated remains disposed of by the crematory.
(e)Upon completion of the cremation, the crematory shall file the burial transit permit as required by law and transmit a photocopy of the burial transit permit along with the cremated remains to whoever receives the cremated remains are to be interred, entombed, inured or placed in a scattering area, in which case the crematory shall retain a copy of the burial transit permit and shall send the permit, along with the cremated remains, which shall file the permit with the designated agency after the interment, entombment, inurnment or scattering has taken place.
(f)All cemeteries shall maintain a record of all cremated remains that are disposed of on their property, provided that the cremated remains were properly transferred to the cemetery and the cemetery issued a receipt acknowledging the transfer of the cremated remains.
§30-6A-7. Cremation containers.
(a)No crematory shall make or enforce any rules requiring that any human remains be placed in a casket before cremation or that human remains be cremated in a casket. No crematory shall refuse to accept human remains for cremation because the remains are not in a casket.
(b)No crematory shall accept human remains unless they are delivered to the crematory in a casket or an alternative container permanently marked with name and date of birth and death inscribed. If the human remains are delivered to the crematory in an alternative container.
§30-6A-8. Cremation procedures.
(a)Human remains may not be cremated within twenty-four hours after the time of death, as indicated on the medical examiner's/coroner's certificate of death. In any death, the human remains may not be cremated by the crematory until a cremation permit has been received from the coroner or medical examiner of the county in which the death occurred and the crematory has received a cremation authorization form, executed by an authorizing agent.
(b)The casket or the alternative container shall be cremated with the human remains or destroyed, unless the crematory has notified the authorizing agent to the contrary on the cremation authorization form and obtained the written consent of the authorizing agent.
(c)A crematory may not remove any dental gold, body parts, organs, or any item of value prior to or subsequent to a cremation without previously having received specific written authorization from the authorizing agent and written instructions for the delivery of these items to the authorizing agent. Under no circumstances shall a crematory profit from making or assisting in any removal of valuables.
(d)If all of the recovered cremated remains will not fit within the receptacle that has been selected, the remainder of the cremated remains shall be returned to the authorizing agent or the agent's designee in a separate container. The crematory may not return to an authorizing agent or the agent's designee more or less cremated remains than were removed from the cremation chamber.
(e)A crematory shall maintain an identification system that shall ensure that it shall be able to identify the human remains in its possession throughout all phases of the cremation process.
§30-6A-9. Disposition of cremated remains.
(a) Cremated remains may be disposed of by placing them in a grave, crypt or niche, by scattering them in a scattering area, as defined in this article, or in any manner on the private property of a consenting owner.
(b) After delivery, the crematory shall be discharged from any legal obligation or liability concerning the cremated remains.
§30-6A-10. Limitation of liability.
(a)A crematory that has received an executed cremation authorization form, may not be liable for cremating the human remains designated by the cremation authorization form.
§30-6A-11. Crematory licensure and regulations.
Licensure Requirements:
(1)A funeral establishment with crematory may be operated only if it possesses a license valid for that establishment or crematory. Application to the cremation inspector for licensure shall be made on a form which will be provided upon request and shall require submission of the proper fee.
(2)A license may be issued to a funeral establishment only, and if such business has a licensed funeral director in full and continuous charge.
§30-6A-12. Penalties.
Violation of this article shall be punishable as follows:
(1)Performing a cremation without receipt of a cremation authorization form signed by an authorizing agent shall be a Class IV felony.
(2) By an unlicensed crematorium shall be guilty of a felony.
(3)Signing a cremation authorization form with the actual knowledge that the form contains false or incorrect information shall be a Class IV felony.
(4)A violation of any other provision of this article shall be a Class B misdemeanor.



NOTE: The purpose of this bill is to establish a crematorium regulation act.
This article is new; therefore, strike-throughs and underscoring have been omitted.