THE GROUNDS FOR DISCIPLINE
The legislature created several different statutes relating to disciplining those licensee ~ worf~~~ in the funeral home industry. Some of the statutes apply alike to funeral homes, funeral directors, funeral director interns, and embalmers while some do not apply to funeral homes but do apply to the types of licenses. In general the grounds for disciplining a licensee may a~ described as regulating specific license abuse, funeral home management, consumer protection, and establishing a standard of professional conduct.
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The statutes that apply to ~u~iec-al hom~ ~ w~l1 as funeral
directQ.r~~nd_t.he—o-t-her -lirensees, are I.C. 25—15-8-1 and I.C.
25-15-8-1.5. Both statutes refer to licensees that do something listed in the statutes and a licensee is defined as "a person who has been issued a license under" I.C. 25—15~ and a person includes FUNERAL HOME DRAFT 151
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both human beings and business entities~ therefore funeral homes as well as its personnel are affected by these two statutes. Taking the second statute first, for the reason that it s the shorter, there can be no license displayed4to the public that has been revoked by the Board or has expired.~ The first statute is much longer and includes provisions that can be characterized as oriented to consumer protection and professional conduct. The prohibited conduct is as follows:
(INSERT 25—15—8—1)
The regulations include some of the statutory prohibitions for all licensees~~ while adding some of their own. The regulations create a duty of confidentiality for all licensees; ~ ~ disclo~_or discuss the private matters of the families they serve.~ No licensee can dispose of human remains other than in strict compliance with the regulations establ ,hed by the Indiana board of health and local health of ficials.~4 There are other regulations dealing with the disposal of human remains: cremations must have a burial peri~t and written authority of a family member or decedent s executor~~ that an emballnina room is required for preparing any human remains for disposition~ and human remains donated to the state anatomical board are to be embalmed as required by state 1a~ ‘P~The regulations also create a duty upon all licensees to supervise and prevent other licensees from engaging in~ conduct as well as not engaging themselves in certain conduct:~ a)using of alcohol or other intoxicating substances
that will prevent the licensee from performing the duties and
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services which he is licensed to perform~~ b) failing to obtain a
permit for removal ,or burial of a body prior to internment or other
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disposaI~~ c) embalming a body without first having obtained the authority to do from the person legally entitled to authorize the embalming, or embalming a body at the direction someone who does not have the legal authority to have the body embalmed; d) condoning a non—licensee who is not exempted under I.C.
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25-15-2-10~~to perform funeral services~ and e) violating "any part of IC 25-15-2 thru (sic) and including I~25-15-8 or any part of the regulations promulgated thereunder. ~ It is under 832 IAC 2-2-4(6) that the greatest duty for all licensees may have been created, for all licensees have the duty of not allowing another licensee from violating any of the statutes or regulations regulating the funeral home industry. Funeral homes cannot allow tj~eir funeral directors or funeral director interns or embalmers f~w violat these laws nor can funeral directors allow their funeral homes or funeral home director interns or embalmers to violate these laws~J short2 everyone has a duty to keep an eye on the other fellow or risk losing their own license.
Aside from the general regulations applicable to all licensees there is one statutory section applicable only to funeral home licensees. Under I.C. 25—15—8—2 the funeral home cannot operate in the same location as another funeral home licensee±~ or operate at any location withoutt~funeral home license (and if there is more han one location without a separate license for each location)~ . The funeral home must be operated by a manager who is a licensed funeral director and the funeral home must file an
affidavit with the Board stating the identity of the managing
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funeral director~, and every act of funeral service performed by
the funeral home must be supervised by a funeral directot~~ and accomplished by either a licensed funeral director or licensed
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funeral director intern~~ If the managing funeral director is not licensed to perform embalming the funeral home must employ a licensed eni~a1mer or a funeral director licensed to perform embalming. Nor can the funeral home allow someone with an inactive license to provid7juneral services or engage in the practice of funeral service~4~ The current funeral home license and the current managing funeral director s license (or their dupl~c~te~ must be displayed in a public area of the funeral hom~~. While the specific provision of I.C. 25-15-8-2(5) does not require the license to be the current license, I.C. 25—8—1.5 requJ~es that expired licenses not be displayed to the public.~~j
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~—~t~t the most current insPection(certificate be on display in the embalming room or main of fice. ~~ The funeral home licensee must construct and equip the funeral home according to the standards set by the Board and then continue to operate according to the Board s regulations. Each year the funeral home is to file a report with the Board with the following information: a) if the funeral home is owned by an individual, the name of the funeral home and the individual s principal address; 2) the location of the funeral home; 3) if the licensee is not an individual, the names and principal addresses of the directors or the executive officers of the funeral director licensees; 4) the name of the manager of the funeral home; 5) the name and principal address ,-~f each practioner employed by the funeral home and the period t time the practioner worked for the funeral home; and 6) any other information required by the Board. Lastly, the funeral home licensee must keep available at the facility copies of all price lists and contracts (including prenp1e~ contracts) for inspection by the Board or the Board s inspector.~ ~
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The remaining categories of licensees (funeral director, funeral director intern, and embalmer) are subject to the constraints of I.C. 25-15-8-1 and I.C. 25-15-8-1.5 but also several other general purpose statutes and statutes relating specifically to the type of license. There are three statutes that applies to all practioners, one that applies to all practioners who are not exempted persons, and one that applies to all practoners who are not exempted person or embalmers.
The first statute concerns itself with practioners who sell or
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offer funeral goods or services to the public. ~~If the practioner
fails to act compassionately, disclose prices relating to a funeral, answer questions (including telephone inquires) accurately and to the reasonable satisfaction of the inquiring person, disclose that embalming human remains is not always required by law but may be desirable if viewing or visitation precedes disposition, explain which outer burial containers meet cemetery qualification (if any), explain requirements (including cremation requirements) for caskets and other alternative containers, disclose whether the cash advance price of each funeral goods or funeral service described as "cash advance" or "accommodation" or "cash disbursement" or a similar term is equal to the cost of the item to the funeral home selling it, and disclose whether the cash advance price of each goods or services obtained from a third party and paid on behalf of the consumer by the funeral home licensee for which the practioner is an agent i~~~ual to the cost of the item to the funeral home selling ~ As this statute applies to practioners and practioners is not defined by either the statutes or the regulations, it must be assumed that this statute applies to funeral directors,, funeral director interns, and embalmers. The
