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RULE PROPOSALS
VOLUME 42, ISSUE 15
ISSUE DATE: AUGUST 2, 2010
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF MORTUARY SCIENCE OF NEW JERSEY

 

Proposed Amendments: N.J.A.C. 13:36-1.8, 4.9, 5.17 and 5.18

Recordkeeping; Participation of Unlicensed Persons; Removal of Human Remains; Authorization; Disposition of Human Remains

Authorized By: State Board of Mortuary Science of New Jersey , William Mandeville, Executive Director.

Authority: N.J.S.A. 45:7-38 and 45:1-15.1.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2010-161.

Submit comments by October 1, 2010 to:
William Mandeville, Executive Director
State Board of Mortuary Science of New Jersey
124 Halsey Street
P.O. Box 45009
Newark , New Jersey 07101

The agency proposal follows:

Summary

The State Board of Mortuary Science of New Jersey (the Board) is proposing several amendments to the rules in Chapter 36 in order to clarify a registered mortuary's responsibilities with respect to the participation of unlicensed persons in the removal and preparation of bodies for final disposition. N.J.A.C. 13:36-4.9(b) currently permits unlicensed persons to perform religious and/or ritual preparations of dead human bodies. The rule also permits unlicensed persons to perform tasks on behalf of the registered mortuary for which a license is not required. One such task is the removal of bodies. The Board is proposing a new N.J.A.C. 13:36-4.9(c) to provide that a registered mortuary shall retain professional responsibility for all activities conducted by any unlicensed person participating in the preparation of dead human bodies as outlined in subsection (b), in order to eliminate any confusion that may exist with respect to the level of oversight a registered mortuary is required to exercise over unlicensed persons performing certain tasks. The proposed amendments also provide that a registered mortuary shall be responsible for ensuring that all unlicensed persons utilize universal precautions and comply with applicable Board rules concerning the handling of human remains. The Board believes that the proposed amendments to N.J.A.C. 13:36-4.9 are necessary in order to protect the health, safety and welfare of the general public. The proposed amendments will help to ensure that all persons who handle human remains will take appropriate steps to prevent the spread of infection during the transportation or preparation of a human body for final disposition.

The Board is also proposing to amend N.J.A.C. 13:36-5.17, which concerns the removal of human remains, to provide that all removals of human remains must be made pursuant to the direction of a registered mortuary, consistent with the proposed amendments to N.J.A.C. 13:36-4.9. The proposed amendments also provide that the mortuary shall be responsible for ensuring that all persons providing removal services utilize universal precautions and comply with applicable Board regulations.

The Board is proposing to amend N.J.A.C. 13:36-5.18, which concerns the disposition of human remains. N.J.A.C. 13:36-5.18(a) currently imposes requirements upon licensed practitioners with respect to the disposition of human remains and provides, in part, that a practitioner must comply with Department of Health and Senior Service rules and shall not remove any part or dispose of human remains, except as permitted by law and as authorized by the person legally entitled to grant disposition authorization. The Board is proposing to amend subsection (a) to clarify that whenever human remains are entrusted to the care of a registered mortuary, the mortuary shall retain professional responsibility for the remains from the point of removal to the final place of disposition. Proposed new subsection (b) clarifies that notwithstanding the fact that the registered mortuary retains responsibility for final disposition of remains, a licensed practitioner must be present at the time of final disposition, consistent with the provisions of N.J.A.C. 13:36-8.10. Proposed new subsection (b) continues to require a licensed practitioner to comply with Department of Health and Senior Service rules and precludes a practitioner from removing or disposing of any body part, except as permitted by law and as authorized by the person legally entitled to grant disposition authorization. In light of the proposed amendments to N.J.A.C. 13:36-4.9 and 5.17, the Board is proposing amendments to its recordkeeping rule, set forth at N.J.A.C. 13:36-1.8. The proposed amendments clarify a mortuary's recordkeeping requirements with respect to religious and/or ritual preparation services and removal services. Currently, paragraph (c)4 provides that funeral records must contain the name and license number of the practitioner or intern who provided embalming and/or sanitary care services. The Board is proposing to delete the reference to "sanitary care services" in paragraph (c)4 and is proposing two new paragraphs, (c)5 and 6, concerning religious and/or ritual preparations and removal. The proposed amendment requires funeral records to contain the name and license number of the practitioner or intern who provided religious and/or ritual preparation services and removal services and the location where such services were provided. If the services were provided by someone other than a licensee or intern, the funeral record must include the name and address of the person and, if applicable, the entity that provided the services. The Board believes that the proposed amendments are necessary to ensure that funeral records accurately reflect what role, if any, that unlicensed persons play in the disposition of human remains.

The Board has provided a 60-day comment period for this notice of proposal. Therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The Board believes that proposed amendments to N.J.A.C. 13:36-4.9, 5.17 and 5.18 will have a positive impact upon licensed practitioners of mortuary science, registered mortuaries and the consumers they serve by clarifying the professional obligations of registered mortuaries and practitioners with respect to the participation of unlicensed persons in the removal and preparation of human remains and with respect to final disposition of remains. The Board also believes that the proposed amendments to N.J.A.C. 13:36-1.8, which require funeral records to include the name and address of all persons who participate in the removal or preparation of the remains, will positively impact practitioners, registered mortuaries and consumers by helping to ensure that funeral records are as complete and accurate as possible. The Board also believes that the proposed amendments to N.J.A.C. 13:36-4.9 and 5.17, requiring registered mortuaries to ensure that unlicensed persons providing removal and religious and/or ritual preparation services utilize universal precautions will have a positive impact upon consumers. The Board believes that the proposed amendments will help to ensure that all persons that handle human remains take appropriate steps to prevent the spread of infection during the transportation and preparation of a human body for final disposition.

[page=1675] Economic Impact

The Board believes that registered mortuaries may incur administrative costs associated with complying with the increased recordkeeping requirements set forth in the proposed amendments to N.J.A.C. 13:36-1.8. In addition, registered mortuaries may also be impacted by the proposed amendments to N.J.A.C. 13:36-4.9 and 5.17 to the extent that they incur administrative costs to ensure that unlicensed persons providing religious and/or ritual preparation and removal services observe universal precautions. The Board believes that any economic impact that may be borne by registered mortuaries as a result of the proposed amendments will be outweighed by the benefit to consumers in ensuring that a registered mortuary retains professional responsibility for human remains entrusted to its care at all times, and that all persons participating in funeral preparations, including unlicensed persons, utilize universal precautions, thereby, decreasing the chances of spreading infection.

Federal Standards Statement

A Federal standards analysis is not required because the proposed amendments are governed by N.J.S.A. 45:7-32 et seq. The proposed amendments are not subject to any Federal requirements or standards.

Jobs Impact

The Board does not believe that the proposed amendments will result in the creation or loss of jobs in the State.

Agriculture Industry Impact

The Board does not believe that the proposed amendments will have any impact on the agriculture industry of the State.

Regulatory Flexibility Analysis

Currently, the Board licenses approximately 1,700 practitioners of mortuary science and registers approximately 720 mortuaries. If Board licensees and registrants are considered "small businesses" within the meaning of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., then the following analysis applies.

The proposed amendments will not impose any reporting requirements upon practitioners of mortuary science or upon the owners of registered mortuaries in the State. The proposed amendments will, however, impose various recordkeeping and compliance requirements upon both licensees and owners of registered mortuaries. These requirements are discussed in the Summary above.

No additional professional services will be needed to comply with the proposed amendments. The costs of compliance with the proposed amendments are discussed in the Economic Impact statement above. The Board believes that the proposed amendments should be uniformly applied all licensed practitioners of mortuary science and all owners of registered mortuaries in the State in order to ensure the health, safety and welfare of the general public in the provision of mortuary services and, therefore, no differing compliance requirements for any licensees or registrants are provided based upon the size of the business.

Smart Growth Impact

The Board does not believe that the proposed amendments will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.

Housing Affordability Impact

The proposed amendments will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the proposed amendments concern the removal and preparation of human remains for final disposition.

Smart Growth Development Impact

The proposed amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2 or within designated centers under the State Development and Redevelopment Plan in New Jersey because the proposed amendments concern the removal and preparation of human remains for final disposition.

Full text of the proposed amendments follows (additions indicated in boldface thus ; deletions indicated in brackets [thus]):

SUBCHAPTER 1. ADMINISTRATION

13:36-1.8 Recordkeeping

(a)-(b) (No change.)

(c) [Such] Funeral records shall include the following if applicable:

1.-3. (No change.)

4. The name and license number of the practitioner or intern who provided embalming [and/or sanitary care] services;

5. The name and license number of the practitioner or intern who provided religious and/or ritual preparation services, and the location where such services were provided. If religious and/or ritual preparation services were provided by other than a licensee or intern, the name and address of the person and, if applicable, the entity that provided the religious and/or ritual preparation services;

6. The name and license number of the practitioner or intern who provided removal services. If removal services were provided by other than a licensee or intern, the name and address of the person and, if applicable, the entity that provided the removal services;

Recodify existing 5.-8. as 7.-10. (No change in text.)

SUBCHAPTER 4. LICENSE AND REGISTRATION GENERALLY

13:36-4.9 Participation of unlicensed persons

(a)-(b) (No change.)

(c) A registered mortuary shall retain professional responsibility for all activities conducted by any unlicensed person participating in the preparation of dead human bodies pursuant to (b) above, and shall ensure that such persons utilize universal precautions as set forth in N.J.A.C. 13:36-6.4 and comply with all applicable Board rules.

[(c)] (d) (No change in text.)

SUBCHAPTER 5. MORTUARIES

13:36-5.17 Removal of human remains; authorization

(a) No person shall remove human remains from any residence or institution without first securing authorization consenting to the removal from the next of kin or a person legally entitled to grant said authorization.

(b) All removals of human remains shall be made pursuant to the direction of a registered mortuary.

(c) A registered mortuary shall ensure that all persons providing removal services utilize universal precautions as set forth in N.J.A.C. 13:36-6.4 and comply with all applicable Board rules.

13:36-5.18 Disposition of human remains

(a) Whenever human remains are entrusted to the care of a [licensed practitioner of] registered mortuary [science] for [a] disposition, the [practitioner shall conform to the requirements of N.J.A.C. 8:9 and shall not remove any part or dispose of the remains in any manner whatsoever except as permitted by law and as authorized by the person legally entitled to grant said authorization] registered mortuary shall retain professional responsibility for the remains from the point of removal to the final place of disposition .

(b) Notwithstanding (a) above, a licensed practitioner of mortuary science shall be present at the time of final disposition of human remains, consistent with N.J.A.C. 13:36-8.10, and shall comply with the requirements of N.J.A.C. 8:9 and shall not remove any body part or dispose of the remains in any manner, except as permitted by law and as authorized by the person legally entitled to grant said authorization.

[(b)] (c) (No change in text.)

   
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