5823800 Consumer and Regulatory Affairs, Department of - Notice of Final Rulemaking - Amending 17 DCMR 31 & 33, regulations on Funeral Services Establishments
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DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS
NOTICE OF FINAL RULEMAKING
The Director of the Department of Consumer and Regulatory Affairs (DCRA), pursuant to the authority set forth in Section 1002 of the Second Omnibus Regulatory Reform Act of 1998, effective April 20, 1999 (D.C. Law 12-261, § 1002; D.C. Official Code § 47-2853.10(a)(12) (2015 Repl.)), Section 22a of the Budget Support Act of 2001, effective October 3, 2001 (D.C. Law 14-28, § 902(c); D.C. Official Code § 3-420 (2012 Repl.)), Mayor’s Order 2000-70, dated May 2, 2000, and Mayor’s Order 2007-216, dated October 5, 2007, hereby gives notice of the intent to adopt, in not less than thirty (30) days from the date of publication of this notice in the D.C. Register, amendments to Chapter 31 (Funeral Services Establishments) and Chapter 33 (General Rules: Funeral Directors, Veterinarians, Interior Designers and Real Estate Appraisers) of Title 17 (Business, Occupations, and Professionals), the District of Columbia Municipal Regulations (DCMR).
This rulemaking would serve as a general update to the professional license regulations which govern the licensure of funeral service establishments seeking to operate in the District of Columbia. Specifically, this rulemaking would clarify the procedures for the issuance of an establishment license to a surviving spouse of a licensed funeral director who operated a facility prior to his or her death, and updates the language concerning the minimum health and safety standards for facilities.
In addition, this rulemaking adopts the notice and hearing procedures established in Chapter 33 of Title 17 DCMR, and amends that chapter to ensure that applicants and licensees are afforded an opportunity to have a hearing reopened, for good cause shown, in any contested case brought before those boards that have adopted the procedures established in Chapter 33, which includes the Board of Funeral Directors.
No comments were received and no changes were made to the rules as published in a Notice of Proposed Rulemaking on October 30, 2015 at 62 DCR 014098. The DCRA Director adopted these rules as final on December 7, 2015, and they shall become effective on the date of the publication of this notice in the D.C. Register.
Chapter 31, FUNERAL SERVICES ESTABLISHMENTS, of Title 17 DCMR, BUSINESS, OCCUPATIONS, AND PROFESSIONALS, is amended as follows:
Section 3100, APPLICABILITY, is amended to read as follows:
3100 APPLICABILITY
3100.1 This chapter applies to applicants for licenses and licensed funeral services establishments.
3100.2 Chapter 30 (Funeral Licensure Directors) and Chapter 33 (General Rules: Funeral Directors, Veterinarians, Interior Designers and Real Estate Appraisers) of this title supplement this chapter.
Section 3101, [RESERVED], is amended to read as follows:
3101 CLASSES OF LICENSURE
3101.1 The following classes of licenses shall be issued to qualified applicants in accordance with D.C. Official Code §§ 3-405(e) and (f) (2012 Repl.):
(a) Funeral Home Establishment;
(b) Funeral Home Establishment – Surviving Spouse; and
(c) Funeral Home Establishment – Estate.
Section 3102, APPLICATION FOR A LICENSE, is amended to read as follows:
3102 APPLICATION FOR A LICENSE AS A FUNERAL HOME ESTABLISHMENT
3102.1 Each applicant for a license as a Funeral Home Establishment in the District of Columbia shall duly file with the Board an application on a form prescribed and provided by the Board.
3102.2 Each applicant shall attest to the truthfulness of the application before a notary public, who shall affix his or her seal to the application.
3102.3 The proper fees and all required documents shall accompany the application at the time of filing.
3102.4 If the applicant is an individual, the applicant shall provide the following:
(a) Proof that the applicant is an individual who is licensed and in good standing as a funeral director in the District of Columbia; and
(b) A business and a home address, which cannot be a post office box number.
3102.5 If the applicant is a business entity, an authorized agent of the applicant shall provide the following:
(a) Proof that the applicant is properly organized under applicable District and federal law;
(b) Proof that at least one (1) of the applicant’s owners is a funeral director who is licensed and in good standing in the District of Columbia. Acceptable proof of ownership may include, but is not limited to, the following:
(1) Stock certificates;
(2) Corporate registration documents;
(3) Articles of organization;
(4) Partnership agreements; or
(5) Tax forms;
(c) Proof that the applicant has employed a designated funeral director who is licensed and in good standing in the District of Columbia to be responsible for the daily operation of the funeral services establishment;
(d) If the applicant is a corporation, the names and street addresses of each of its directors and principal officers, and a copy of the certificate of incorporation; and
(e) If the applicant is a partnership, the names and street addresses of each of the general partners.
3102.6 To be eligible for licensure, each applicant shall obtain a basic business license in accordance with D.C. Official Code § 3-405(e) (2012 Repl.).
Section 3103, PRE-LICENSURE INSPECTION, is amended to read as follows:
3103 PRE-LICENSURE INSPECTIONS
3103.1 To be eligible for licensure as a funeral services establishment, an applicant shall pass all inspections of its premises which are required for approval of a basic business license, including but not limited to the following:
(a) An inspection conducted by the District of Columbia Fire Department to determine compliance with fire safety requirements; and
(b) An on-site certificate of occupancy inspection to determine compliance with building safety requirements.
3103.2 To be eligible for licensure as a funeral services establishment, an applicant shall pass an inspection of its premises, conducted by the Board or its designee, to determine compliance with § 3110 of this chapter.
3103.3 The Board shall send a written report of the findings of its inspection to the applicant no later than thirty (30) business days after the conclusion of the inspection.
3103.4 Any deficiencies noted in the Board’s inspection report must be corrected by the applicant within thirty (30) business days of the issuance of the report.
3103.5 The Board may deny the application if the deficiencies have not been corrected within the time period required by the Board pursuant to § 3104.4. Applicants who wish to contest the findings of the Board shall be given an opportunity for a hearing in accordance with the Act and Chapter 33 of this title.
3103.6 If an application is denied pursuant to § 3103.5, the applicant may reapply for a license after deficiencies are corrected by submitting a new application and fee in accordance with this chapter.
Section 3104, ISSUANCE AND DISPLAY OF LICENSE, is amended to read as follows:
3104 ISSUANCE AND DISPLAY OF LICENSE
3104.1 The Director shall issue a license to a funeral services establishment if the Board determines that it is in compliance with the Act and this chapter.
3104.2 For the protection of the health, welfare, or safety of the public, the Board may refuse to approve the issuance or renewal of a license in a name that is as follows:
(a) Misleading or would constitute false advertising;
(b) Implies a partnership, association, or corporation where one does not exist;
(c) Includes the name of a person not otherwise licensed;
(d) Is in violation of the law;
(e) Is a name that has been used by any person whose license is suspended or revoked; or
(f) Is a name that is deceptively similar to that used by another licensee.
3104.3 The Director shall issue a license only for the premises and person or persons named as applicants in the application. The license is not valid for use by any person or at any location other than that designated on the license.
3104.4 A licensee shall display the license and certificate of occupancy in a conspicuous place on the premises.
Section 3105, TERM OF LICENSE, is amended to read as follows:
3105 TERM OF LICENSE
3105.1 Except as provided in § 3107.8 of this chapter, all licenses issued pursuant to this chapter and the Act shall expire on December 31st of each odd numbered year, constituting a license cycle.
3105.2 The Board may change the license cycle for administrative convenience.
3105.3 If the Board changes the license cycle, the term of a license that is in effect on the date of the Board's determination to change the cycle may, at the Board's discretion, be extended up to three (3) years in order to permit an orderly transition. Any extension of the license term implemented under this section shall only be made by Board resolution.
Section 3106, RENEWAL OF LICENSE, is amended to read as follows:
3106 RENEWAL OF LICENSE
3106.1 A holder of a license shall meet all of the requirements for initial licensure prior to the issuance of the renewal.
3106.2 A holder of a license as a Funeral Home Establishment – Surviving Spouse may be eligible for licensure renewal as long as the spouse remains unmarried.
3106.3 A holder of a license as a Funeral Home Establishment – Estate shall not be eligible for licensure renewal.
3106.4 At least sixty (60) days prior to the expiration of a license, the Board shall send a renewal notice by first class mail to the holder of a license at the licensee’s address on record with the Board.
3106.5 The failure of a holder of a license to receive the notice required by § 3106.1 of this section does not relieve the holder of the responsibility of renewing the license.
3106.6 A holder of a license who fails to renew before the expiration date may renew the license within sixty (60) days after expiration upon paying the required late fee. Upon renewal, the holder shall be deemed to have possessed a valid license during the period between the expiration of the license and its renewal.
3106.7 If a holder of a license fails to renew the license within sixty (60) days after its expiration, the license shall be deemed to have lapsed on the date of expiration and the holder shall be required to apply for reinstatement of the expired license and pay the required reinstatement fee in accordance with D.C. Official Code § 47-2853.15 (2012 Repl.) and § 3308 of Chapter 33 (GENERAL RULES: FUNERAL DIRECTORS, VETERINARIANS, INTERIOR DESIGNERS AND REAL ESTATE APPRAISERS) of this title.
Section 3107, REINSTATEMENT OF A LICENSE, is amended to read as follows:
3107 APPLICATION FOR A LICENSE AS A FUNERAL HOME ESTABLISHMENT - SURVIVING SPOUSE AND ESTATE
3107.1 Upon the death of a funeral director licensed to operate a funeral services establishment, a surviving spouse or the estate of the funeral director may apply for a license to continue operating the funeral services establishment for the remainder of the licensure period.
3107.2 The surviving spouse or representative of the estate shall notify the Board within ten (10) days of the death of the funeral director of the intent to continue operating the funeral services establishment.
3107.3 Within thirty (30) days of the death of the funeral director, an applicant for a license as a Funeral Home Establishment – Surviving Spouse or Funeral Home Establishment – Estate shall duly file an application on a form prescribed and provided by the Board.
3107.4 The proper fees and all required documents shall accompany the application at the time of filing.
3107.5 The surviving spouse or representative of the estate shall attest to the truthfulness of the application before a notary public, who shall affix his or her seal to the application.
3107.6 The surviving spouse or representative of the estate shall provide the following:
(a) Proof of the death of the funeral director who was licensed to operate the establishment;
(b) Proof that the applicant was married to the funeral director at the time of his or her death; or
(c) Proof of the applicant’s authority to act on behalf of the estate of the deceased funeral director;
(d) Proof that the applicant has employed a designated funeral director who is licensed and in good standing in the District of Columbia to be responsible for the daily operation of the funeral services establishment; and
(e) A business or a home address, which cannot be a post office box number.
3107.7 A surviving spouse who is licensed pursuant to this section may be eligible for licensure renewal as long as the spouse remains unmarried.
3107.8 The estate of a funeral director which receives a license pursuant to this section shall be licensed for a period of three (3) years from the date of the funeral director’s death, and the license shall not be eligible for renewal at the end of the licensure period.
Section 3108, REQUIRED NOTIFICATIONS, is amended to read as follows:
3108 REQUIRED NOTIFICATIONS
3108.1 A licensee shall notify the Board of the termination of the business relationship between the licensee and a funeral director who is an owner of the funeral services establishment within ten (10) business days of the occurrence.
3108.2 The notice required by § 3108.1 shall:
(a) Be signed by a registered owner or the designated funeral director of the funeral services establishment;
(b) State the date of the termination; and
(c) State whether the licensee intends to continue to operate the funeral services establishment, and, if so, include the name, license number, street address, and ownership interest of any new owner.
3108.3 A licensee shall notify the Board of the termination of the business relationship between the licensee and its designated funeral director within ten (10) business days of the occurrence.
3108.4 The notice required by § 3108.3 shall:
(a) Be signed by a registered owner or the designated funeral director of the funeral services establishment;
(b) State the date of the termination; and
(c) State whether the licensee intends to continue to operate the funeral services establishment, and, if so, include the name and license number of the new designated funeral director. The new designated funeral director shall submit a notarized letter of acceptance in accordance with § 3112 of this chapter.
3108.5 A licensee desiring to change the location of a funeral services establishment within the District shall apply for a new license for the funeral services establishment in accordance with this chapter.
3108.6 A licensee shall submit a written notification to the Director within ten (10) days of hiring or terminating an apprentice funeral director and shall state the name, street address, and license number of the apprentice funeral director and the date on which he or she was employed or terminated.
Section 3109, FEES, is amended to read as follows:
3109 RIGHT OF ENTRY AND INSPECTION
3109.1 The Board, or its designee, shall have the right, after presenting credentials, to enter a funeral services establishment.
3109.2 A licensee or applicant shall give the Board, or its designee, access to records, policies and procedures, contracts, and any other information that the Board deems necessary to determine the funeral services establishment’s compliance with the Act or this chapter.
Section 3110, [RESERVED], is amended to read as follows:
3110 MINIMUM STANDARDS FOR FUNERAL SERVICES ESTABLISHMENTS
3110.1 The practice of funeral directing in the District shall only be conducted at a licensed funeral services establishment.
3110.2 A funeral services establishment shall include the following:
(a) A chapel or viewing room used for funeral services;
(b) An arrangement office or area used for making funeral arrangements and for related business matters; and
(c) A preparation room, to be used exclusively for the preparation, preservation (including embalming), or other care of human remains.
3110.3 A preparation room shall be clean and sanitary at all times, and shall be equipped with the following:
(a) Adequate lighting on all working surfaces;
(b) Hot and cold running water;
(c) A system for ventilation that complies with current Occupational Safety and Health Administration (OSHA) standards;
(d) Floor, wall, ceiling, and working surfaces made of light-colored tile or other hard, smooth, durable, nonporous, and washable material;
(e) Cabinets, closets, or shelves for proper storage of instruments and supplies;
(f) Adequate sewage disposal, waste disposal, and drainage equipment and facilities which meet the current requirements of the District of Columbia Hazardous Waste Management Act of 1977, effective March 16, 1978, as amended (D.C. Law 2-64; D.C. Official Code §§ 8-1301, et seq., and implementing rules);
(g) Doors and windows, if any, that are rigid and tight-closing and that the windows are maintained to obstruct any view into the preparation room;
(h) A non-porous table for preparing or preserving human remains; and
(i) Disinfectants for the proper sterilization of the preparation room, equipment, and instruments.
3110.4 Temporary storage of uncasketed human remains awaiting burial or other final disposition shall take place only in a preparation room or in a storage room. Unembalmed human remains that are stored for over twenty-four (24) hours shall be stored in a refrigerated storage room, unless other instructions are received from the Office of the Chief Medical Examiner.
3110.5 A funeral services establishment shall have a business telephone number in working order for its registered address, the number of which shall be listed in the name of the business.
3110.6 A funeral services establishment shall display a sign that states the name of the establishment as registered with the Director. The sign shall be conspicuously located at or near the main entrance and shall be visible from the exterior of the establishment. The lettering on the sign shall be legible and have a minimum height of one and one-half (1-1/2) inches.
3110.7 A funeral services establishment shall use only its name as registered with the Director in telephone listings, publications, advertisements, or while otherwise conducting business.
3110.8 A funeral services establishment shall provide telephone information, a casket price list, an outside receptacle price list, and a general price list as required by the Funeral Industry Practices Rules of the Federal Trade Commission (16 Code of Federal Regulations (C.F.R.) § 453.2, as amended).
Section 3111, VARIANCES, is amended to read as follows:
3111 VARIANCES
3111.1 The Board may excuse the inability of an applicant or licensee to conform to the requirements of § 3110 of this chapter, by grant of a variance to the applicant or licensee, upon the Board’s determination of the following:
(a) To deny the variances would result in undue hardship to the applicant or licensee;
(b) Compensating factors are present which give adequate protection to the health, safety, and welfare of the public; and
(c) The variance can be granted without impairing the purposes of this chapter or the Act.
3111.2 To apply for a variance an applicant or licensee shall state, on a form provided by the Board, the reasons a variance should be granted based upon factors listed in § 3111.1.
3111.3 An applicant or licensee shall submit a request for a variance within twenty (20) business days of the issuance of the inspection report of the Board referenced in § 3103.3 of this chapter.
3111.4 The Director shall maintain a written record of each variance granted or denied by the Board, and shall make the record available for public inspection.
Section 3112, [RESERVED], is amended to read as follows:
3112 APPOINTMENT OF DESIGNATED FUNERAL DIRECTOR
3112.1 A funeral services establishment shall appoint a designated funeral director who is licensed and in good standing in the District of Columbia to be responsible for the daily operation and management of the funeral services establishment.
3112.2 To be registered as a designated funeral director, an owner and a funeral director shall submit a notarized letter of acceptance, which reflects the funeral director’s intent to assume the role and responsibilities in connection with the funeral services establishment.
3112.3 If a designated funeral director is temporarily unable, for any reason, to carry out his or her responsibilities, the owner may assign a licensed funeral director to act as a temporary manager for not more than thirty (30) days. If the temporary manager will serve in that capacity for more than fifteen (15) days, the owner shall notify the Board of the temporary designation in writing.
3112.4 If a designated funeral director resigns, is terminated, or is unable carry out his or her responsibilities for more than thirty (30) days, the owner shall immediately notify the Board and a new designated funeral director must be appointed.
3112.5 No funeral services establishment shall be permitted to operate unless a designated funeral director, or temporary manager, has been duly appointed in accordance with this section.
Section 3116, MINIMUM STANDARDS FOR FUNERAL SERVICES ESTABLISHMENTS, is amended to read as follows:
3116 [RESERVED]
Section 3120, GROUNDS FOR DENIAL, REVOCATION, OR OTHER DISCIPLINARY ACTION, is amended to read as follows:
3120 [RESERVED]
Section 3122, COMPLAINTS; INVESTIGATIONS, is amended to read as follows:
3122 [RESERVED]
Section 3123, RIGHT OF ENTRY AND INSPECTION, is amended to read as follows:
3123 [RESERVED]
Section 3125, NOTICE OF INTENDED ACTION AND OPPORTUNITY FOR A HEARING, is amended to read as follows:
3125 [RESERVED]
Section 3126, FAILURE TO REQUEST A HEARING OR FAILURE TO APPEAR, is amended to read as follows:
3126 [RESERVED]
Section 3127, HEARING NOTICE PROCEDURES, is amended to read as follows:
3127 [RESERVED]
Section 3128, SERVICE, is amended to read as follows:
3128 [RESERVED]
Section 3129, REPRESENTATION, is amended to read as follows:
3129 [RESERVED]
Section 3131, MOTIONS AND OTHER PLEADINGS, is amended to read as follows:
3131 [RESERVED]
Section 3133, CONDUCT OF HEARINGS, is amended to read as follows:
3133 [RESERVED]
Section 3134, EVIDENCE AT THE HEARING, is amended to read as follows:
3134 [RESERVED]
Section 3136, CONDUCT OF PARTIES AND COUNSEL AT HEARINGS, is amended to read as follows:
3136 [RESERVED]
Section 3138, DECISIONS, is amended to read as follows:
3138 [RESERVED]
Section 3139, REOPENING A HEARING, is amended to read as follows:
3139 [RESERVED]
Section 3140, RECONSIDERATION, is amended to read as follows:
3140 [RESERVED]
Section 3141, JUDICIAL REVIEW; RECORD ON APPEAL, is amended to read as follows:
3141 [RESERVED]
Section 3149, COMPUTATION OF TIME, is amended to read as follows:
3149 [RESERVED]
Section 3199, DEFINITIONS, is amended by adding or amending the following terms and definitions:
Designated funeral director – A funeral director, licensed and in good standing in the District of Columbia, who has been appointed by a funeral services establishment, and registered with the Board, to be responsible for the daily operation and management of the funeral services establishment.
Funeral services establishment – A licensed funeral home establishment, of any class, at an authorized location in the District where funeral services are provided or the practice of funeral directing is performed.
Chapter 33, GENERAL RULES: FUNERAL DIRECTORS, VETERINARIANS, INTERIOR DESIGNERS AND REAL ESTATE APPRAISERS, is amended as follows:
Section 3316, FAILURE TO REQUEST A HEARING OR FAILURE TO APPEAR, is amended as follows:
A new Subsection 3316.6 is added to read as follows:
3316.6 If, because of accident, sickness, or other good cause, a respondent does not receive notices of a hearing or fails to appear for a hearing, the respondent may, within fifteen (15) days from the date a service of the decision, file a petition with the Board in accordance with § 3334 of this chapter to request that the hearing be reopened.
