1997 Regular Session
To: Public Health and Welfare
By: Senator(s) Canon
Senate Bill 2322
AN ACT RELATING TO THE PRACTICE OF FUNERAL SERVICE; TO AMEND SECTION 73-11-51, MISSISSIPPI CODE OF 1972, TO CLARIFY THE AUTHORITY OF THE BOARD OF FUNERAL SERVICE TO ISSUE TEMPORARY FUNERAL SERVICE OR FUNERAL DIRECTING WORK PERMITS, TO PRESCRIBE CERTAIN EDUCATIONAL QUALIFICATIONS FOR LICENSURE AS A FUNERAL DIRECTOR AND TO PRESCRIBE CONTINUING EDUCATION REQUIREMENTS FOR RENEWAL OF A FUNERAL DIRECTING OR FUNERAL SERVICE LICENSE; TO AMEND SECTION 73-11-56, MISSISSIPPI CODE OF 1972, TO PRESCRIBE FEES FOR THE REVIEW OF CONTINUING EDUCATION CREDITS BY THE BOARD; TO CODIFY SECTIONS 73-11-65 THROUGH 73-11-85, MISSISSIPPI CODE OF 1972, TO ENACT THE MISSISSIPPI CREMATORY ACT, TO PROVIDE DEFINITIONS, TO ESTABLISH A MISSISSIPPI CREMATORY AUTHORITY AND PROVIDE FOR ITS MEMBERSHIP, TO REQUIRE ANY LEGAL ENTITY MAINTAINING A CREMATORY IN THIS STATE TO BE LICENSED BY THE MISSISSIPPI CREMATORY AUTHORITY ACTING ON BEHALF OF THE BOARD OF FUNERAL SERVICES, TO AUTHORIZE THE BOARD TO ISSUE REGULATIONS RELATING TO THE MAINTENANCE OF A CREMATORY AND TO TAKE DISCIPLINARY ACTION AGAINST LICENSEES, TO GRANT SUBPOENA AUTHORITY TO THE BOARD RELATING TO CREMATORY LICENSURE AND INSPECTIONS, TO PROVIDE CERTAIN PROCEDURES RELATIVE TO CREMATION AND THE DISPOSITION OF CREMATED REMAINS, TO PROVIDE FOR THE LIABILITY OF CREMATORY OPERATORS, TO PRESCRIBE FEES TO BE CHARGED BY THE BOARD FOR LICENSING CREMATORY OPERATORS AND APPLICANTS AND TO PROVIDE RULEMAKING AUTHORITY; TO AMEND SECTION 75-63-1, MISSISSIPPI CODE OF 1972, TO PROVIDE DEFINITIONS FOR THE REGULATION OF PRE-NEED FUNERAL CONTRACTS BY THE STATE BOARD OF FUNERAL SERVICE, TO PROVIDE SPECIFIC REQUIREMENTS FOR THE SALE OF PRE-NEED FUNERAL CONTRACTS IN THE STATE INCLUDING THE IDENTITY OF THE PROVIDER OF THE SERVICES AND PERSONAL PROPERTY BEING SOLD; TO CODIFY SECTION 75-63-2, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT NO PERSON MAY SELL OR PROVIDE PRE-NEED FUNERAL CONTRACTS WITHOUT BEING LICENSED BY THE STATE BOARD OF FUNERAL SERVICES AND TO PROVIDE FOR LICENSURE APPLICATION, FEES AND RULEMAKING AUTHORITY RELATING TO SUCH LICENSURE; TO AMEND SECTION 75-63-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT 80% OF THE PURCHASE PRICE OF THE PROPERTY OR SERVICES IN THE PRE-NEED CONTRACT SHALL BE DEPOSITED INTO A TRUST FUND ESTABLISHED FOR THAT PURPOSE; TO AMEND SECTIONS 75-63-7, 75-63-9, 75-63-11, 75-63-15, 75-63-17, 75-63-18, 75-63-21 AND 73-11-63, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE ADMINISTRATION OF THE TRUST FUNDS ESTABLISHED HEREUNDER, TO EMPOWER THE CHANCERY COURTS TO EXERCISE JURISDICTION OVER SUCH TRUSTS, TO PROVIDE FOR CERTAIN REPORTS AND NOTICES OF TRUST OPERATION AND IN CONFORMITY THERETO; TO AMEND SECTION 75-63-19, MISSISSIPPI CODE OF 1972, TO EXCLUDE CERTAIN SALES AND TRANSACTIONS FROM REGULATION UNDER THIS CHAPTER; TO AMEND SECTION 75-63-23, MISSISSIPPI CODE OF 1972, TO PRESCRIBE CRIMINAL AND CIVIL PENALTIES FOR VIOLATION OF SAID PROVISIONS RELATING TO THE REGULATION OF PRE-NEED FUNERAL SERVICE CONTRACTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-11-51, Mississippi Code of 1972, is amended as follows:
73-11-51. (1) No person shall engage in the business or practice of funeral service, including embalming, and/or funeral directing or hold himself out as transacting or practicing or being entitled to transact or practice funeral service, including embalming, and/or funeral directing in this state unless duly licensed pursuant to the provisions of this chapter.
(2) The board is authorized and empowered to examine applicants for licenses for the practice of funeral service and funeral directing and shall issue the proper license to those persons who successfully pass the applicable examination and otherwise comply with the provisions of this chapter. The board may issue a temporary funeral service or funeral directing work permit before a license is granted, prior to the next regular meeting of the board, if the applicant for a license has complied with all requirements, rules and regulations of the board. The temporary permit will expire at the next regular meeting of the board.
(3) To be licensed for the practice of funeral directing under this chapter, a person must (a) be at least eighteen (18) years of age; (b) have a high school diploma or the equivalent thereof; (c) have served as a resident trainee for not less than twenty-four (24) months under the supervision of a person licensed for the practice of funeral service or funeral directing in this state; (d) have successfully passed a written and/or oral examination as prepared or approved by the board; and (e) be of good moral character. The board is authorized to substitute postsecondary education in lieu of the resident traineeship required under paragraph (c), to be applied on a month-for-month basis not to exceed twelve (12) months.
(4) To be licensed for the practice of funeral service under this chapter, a person must (a) be at least eighteen (18) years of age; (b) have a high school diploma or the equivalent thereof; (c) have satisfactorily completed twelve (12) months or more of academic and professional instruction from an institution accredited by the American Board of Funeral Service Education or any other successor recognized by the United States Department of Education for funeral service education; (d) have served as a resident trainee for not less than twelve (12) months, either prior to or after graduation from an accredited institution mentioned above, under the supervision of a person licensed for the practice of funeral service in this state or having the prior equivalent license of this state; (e) have successfully passed a written and/or oral examination as prepared or approved by the board; and (f) be of good moral character.
(5) All applications for examination and license for the practice of funeral service or funeral directing shall be upon forms furnished by the board and shall be accompanied by an examination fee, a licensing fee and a nonrefundable application fee in amounts fixed by the board in accordance with Section 73-11-56. The fee for an initial license, however, may be prorated in proportion to the period of time from the date of issuance to the date of biennial license renewal prescribed in subsection (8) of this section. All applications for examination shall be filed with the board office at least sixty (60) days prior to date of examination. A candidate shall be deemed to have abandoned the application for examination if he does not appear on the scheduled date of examination unless such failure to appear has been approved by the board.
(6) The practice of funeral service or funeral directing must be engaged in at a licensed funeral establishment, at least one (1) of which is listed as the licensee's place of business; and no person, partnership, corporation, association or other organization shall open or maintain a funeral establishment at which to engage in or conduct or hold himself or itself out as engaging in the practice of funeral service or funeral directing until such establishment has complied with the licensing requirements of this chapter. A license for the practice of funeral service or funeral directing shall be used only at licensed funeral establishments; however, this provision shall not prevent a person licensed for the practice of funeral service or funeral directing from conducting a funeral service at a church, a residence, public hall, lodge room or cemetery chapel, if such person maintains a fixed licensed funeral establishment of his own or is in the employ of or an agent of a licensed funeral establishment.
(7) Any person holding a valid, unrevoked and unexpired license in another state or territory having requirements substantially similar to those of this state may apply for a license to practice in this state by filing with the board a certified statement from the secretary of the licensing board of the state or territory in which the applicant holds his license certifying to his qualifications and good standing with that board by having successfully passed a written and/or oral examination on the Mississippi Funeral Service licensing law and rules and regulations as prepared or approved by the board, and by paying a nonrefundable application fee set by the board pursuant to Section 73-11-56. If the board finds that the applicant has fulfilled substantially similar requirements, the board shall grant such license upon receipt of a fee in an amount equal to the renewal fee set by the board for a license for the practice of funeral service or funeral directing, as the case may be, in this state. * * *
(8)(a) Any person holding a license for the practice of funeral service or funeral directing may have the same renewed for a period of two (2) years by making and filing with the board an application therefor within thirty (30) days preceding the expiration of his license on forms provided by the board and upon payment of a renewal fee in an amount set by the board in accordance with Section 73-11-56. The board shall mail a notice of the due date for payment of the renewal fee to the last known address of each licensee at least thirty (30) days prior to such date. The board may prescribe by rule continuing education requirements of up to eight (8) hours for the renewal of a funeral directing or funeral service license, and may charge a fee for reviewing, approving or rejecting continuing education credits in an amount set by the board in accordance with Section 73-11-56.
No more than five (5) hours may be carried forward into the next licensing period. The board by regulation may exempt from continuing education requirements licensees sixty-five (65) years of age with ten (10) years' experience.
(b) If the renewal fee is not paid on or before the date that it is due, a late fee, as prescribed by Section 73-11-56, in addition to the regular renewal fee, shall be required. A period of thirty (30) days shall be allowed after the expiration of a license, during which time the license may be renewed on the payment of the renewal fee plus the applicable late fee. If a person fails to renew his license during the aforesaid thirty-day period, the license of such person shall by operation of law automatically expire and become void without further action of the board. The board may reinstate such license if application for licensure is made within a period of five (5) years, upon payment of the renewal fee for the current year, all fees in arrears, late fees and a reinstatement fee as set by the board. After such five-year period, the license may be reinstated only by payment of the renewal fee for the current year, all renewal fees in arrears, late fees plus a reinstatement fee and by the licensee successfully passing a written and/or oral examination as prepared or approved by the board.
(c) The expiration date of each license issued or renewed shall be established by rules and regulations of the board. Subject to the provisions of this subsection, each license shall be renewable in a biennial basis upon filing of a renewal application and upon payment of the renewal fee established pursuant to Section 73-11-56. To provide for a system of biennial renewal of licenses, the board may provide by rules and regulations that licenses issued or renewed for the first time after July 1, 1994, may expire less than two (2) years from the date of issuance or renewal. In each case in which a license is issued or renewed for a period of time less than two (2) years, the board shall prorate to the nearest whole month the license or renewal fee established pursuant to Section 73-11-56. The provisions of this paragraph (c) shall not apply to the resident trainee certificate or period of resident traineeship under Section 73-11-53.
(9) Any person holding on July 1, 1984, a license to practice embalming shall be entitled to a license for either of the named licenses upon meeting the same terms and conditions as are herein provided for the renewal of licenses of those who may be licensed after July 1, 1984. Any person in this state engaged in the practice of funeral directing on July 1, 1984, either as an owner of a funeral establishment or an employee thereof, who has had experience as a funeral director for at least two (2) years within the five (5) years immediately preceding July 1, 1984, shall be entitled to a license for funeral directing upon meeting the same terms and conditions as are herein provided for the renewal of licenses for the practice of funeral directing. However, from and after July 1, 1991, the board shall issue licenses only as provided for under the provisions of subsections (3) and (4) of this section.
(10) The board may, in its discretion, in the event of a major disaster or emergency where human death is likely to occur, temporarily authorize the practice of funeral directing and funeral service by persons licensed to practice in another state but not licensed to practice in this state, provided that such services are only rendered by members of disaster mortuary teams authorized by federal or appropriate local authorities to provide such services. Only persons licensed in this state, however, may sign death certificates.
SECTION 2. Section 73-11-56, Mississippi Code of 1972, is amended as follows:
73-11-56. On or before October 1 of each year, the board shall determine the amount of funds that will be required during the next ensuing two (2) years to properly administer the laws which the board is directed to enforce and administer and by rule and regulation shall fix fees in such reasonable sums as may be necessary for such purposes within the following limitations: Funeral establishment:
Application fee, not more than $150.00
Inspection fee, not more than 75.00
Funeral establishment license fee,
not more than 150.00
Branch establishment license fee,
not more than 150.00
Commercial mortuary service license fee,
not more than 150.00
Renewal application and license fee,
not more than 300.00
Special work permit 150.00
Application fee, not more than $ 50.00
Reciprocal application fee, not more than 100.00
License fee, not more than 75.00
Renewal license fee, not more than 75.00
Work permit, not more than 50.00
Examination fee Cost of the examination
Application fee, not more than $ 50.00
Reciprocal application fee, not more than 100.00
License fee, not more than 50.00
Renewal license fee, not more than 50.00
Work permit, not more than 50.00
Examination fee Cost of the examination
Resident trainee certificate:
Funeral service application fee,
not more than $ 50.00
Funeral director application fee,
not more than 50.00
Funeral service renewal application fee,
not more than 50.00
Funeral director renewal application fee,
not more than 50.00
Duplicate license fee, not more than $ 25.00
Reinstatement of lapsed license fee,
not more than one-half (1/2) of
the applicable license fee.
Late fees, not more than one-half (1/2)
of the applicable license fee.
Review of continuing education credits,
not to exceed 25.00
At least thirty (30) days prior to the expiration date of any license issued by the board, the board shall notify the licensee of the applicable renewal fee therefor.
The fees established by the board under this section immediately before July 1, 1991, shall continue in effect until such fees are fixed by the board by rules and regulations as provided in this section.
SECTION 3. The following provision shall be codified as Section 73-11-65, Mississippi Code of 1972:
73-11-65. Sections 73-11-65 through 73-11-85 shall be known and may be cited as the Mississippi Crematory Act.
SECTION 4. The following provision shall be codified as Section 73-11-67, Mississippi Code of 1972:
73-11-67. As used in Sections 73-11-67 through 73-11-85, Mississippi Code of 1972, unless the context requires otherwise:
(a) "Authorizing agent" means a person legally entitled to order the cremation of human remains. An authorizing agent shall be, in order of priority, a spouse, an adult child, a parent, any adult sibling, guardian or close relation of the deceased. In the case of indigents or any other individuals whose final disposition is the responsibility of the state, a public official charged with arranging the final disposition of the deceased, if legally authorized, may serve as the authorizing agent. In the case of individuals whose death occurred in a nursing home or other private institution, and in which the institution is charged with making arrangements for the final disposition of the deceased, a representative of the institution, if legally authorized, may serve as the authorizing agent.
(b) "Board" means the State Board of Funeral Service.
(c) "Casket" means a rigid container which is designed for the encasement of human remains and which is usually constructed of wood, metal or other rigid material and ornamented and lined with fabric.
(d) "Closed container" means any container in which cremated remains can be placed and closed in a manner so as to prevent leakage or spillage of cremated remains or the entrance of foreign material.
(e) "Cremated remains" means all human remains recovered after the completion of the cremation process, including pulverization which leaves only bone fragments reduced to unidentifiable dimensions.
(f) "Cremation" means the technical process, using heat, that reduces human remains to bone fragments.
(g) "Cremation chamber" means the enclosed space within which the cremation process takes place. Cremation chambers covered by this chapter shall be used exclusively for the cremation of human remains.
(h) "Cremation container" means the container in which the human remains are placed in the cremation chamber for a cremation. A cremation container must meet all of the standards established by the rules adopted by the board.
(i) "Crematory" means the building or portion of a building that houses the cremation chamber and that may house the holding facility, business office or other part of the crematory business. A crematory must comply with any applicable public health laws and rules and must contain the equipment and meet all of the standards established by the rules adopted by the board.
(j) "Crematory authority" means the Mississippi Crematory Authority.
(k) "Crematory operator" means the legal entity which is licensed by the board to operate a crematory and perform cremations.
(l) "Holding facility" means an area within or adjacent to the crematory, designated for the retention of human remains prior to cremation. A holding facility must comply with any applicable public health laws and rules and must meet all of the standards established by the rules adopted by the board.
(m) "Human remains" means the body of a deceased person, or part of a body or limb that has been removed from a living or deceased person.
(n) "Niche" means a compartment or cubicle for the memorialization or permanent placement of an urn containing cremated remains.
(o) "Scattering area" means a designated area for the scattering of cremated remains.
(p) "Temporary container" means a temporary receptacle for cremated remains, usually made of cardboard, plastic film or similar material designed to hold the cremated remains until an urn or other permanent container is acquired.
(q) "Urn" means a receptacle designed to permanently encase the cremated remains.
SECTION 5. The following provision shall be codified as Section 73-11-69, Mississippi Code of 1972:
73-11-69. (1) The Mississippi Crematory Authority is established as a committee within the board. The Crematory Authority shall suggest rules to the board for the carrying out and enforcement of the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972.
(2) The Crematory Authority shall initially consist of three (3) members appointed by the Governor, with the advice and consent of the Senate, and two (2) members of the board appointed by the board. The Governor may consider a list of recommendations from the Cremation Association of Mississippi.
(3) The term of the member of the Crematory Authority appointed by the Governor shall be three (3) years. The terms of the members appointed by the board, including the members initially appointed pursuant to this subsection, shall be coterminous with their terms on the board. Any vacancy occurring in a seat appointed by the Governor shall be filled by the Governor. Any vacancy occurring in a seat appointed by the board shall be filled by the board.
(4) The members of the Crematory Authority shall receive per diem and necessary travel and subsistence expenses in accordance with the provisions of Section 25-3-69, Mississippi Code of 1972, for all time actually spent upon the business of the Crematory Authority. All expenses, salaries and per diem provided for in this act shall be paid from funds received under the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, and shall in no manner be an expense to the state.
(5) The Crematory Authority shall select from its members a chairman, a vice-chairman and a secretary who shall serve for one (1) year or until their successors are elected and qualified. No two (2) offices may be held by the same person. The Crematory Authority, with the concurrence of the board, shall have the authority to engage adequate staff as deemed necessary to perform its duties.
(6) The Crematory Authority shall hold at least one (1) meeting in each year. In addition, the Crematory Authority may meet as often as the proper and efficient discharge of its duties shall require. Two (2) members shall constitute a quorum.
SECTION 6. The following provision shall be codified as Section 73-11-71, Mississippi Code of 1972:
73-11-71. (1) Any person doing business in this state, or any cemetery, funeral establishment, corporation, partnership, joint venture, voluntary organization or any other entity may erect, maintain and conduct a crematory in this state and may provide the necessary appliances and facilities for the cremation of human remains, provided that such person has secured a license as a crematory operator in accordance with the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972.
(2) A crematory may be constructed on or adjacent to any cemetery, on or adjacent to any funeral establishment that is zoned commercial or industrial, or at any other location consistent with local zoning regulations.
(3) Application for a license as a crematory operator shall be made on forms furnished and prescribed by the board. The board shall examine the premises and structure to be used as a crematory and shall issue a license to the crematory operator if the applicant meets all the requirements and standards of the board and the requirements of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972. In the event of a change of ownership of a crematory, at least thirty (30) days prior to the change the new owners shall provide the board with the name and address of the new owners.
(4) Every application for licensure shall identify the individual who is responsible for overseeing the management and operation of the crematory. The crematory operator shall keep the board informed at all times of the name and address of the manager.
(5) No person, cemetery, funeral establishment, corporation, partnership, joint venture, voluntary organization or any other entity shall cremate any human remains, except in a crematory licensed for this express purpose and under the limitations provided in Sections 73-11-65 through 73-11-85, Mississippi Code of 1972.
(6) Whenever the board finds that an owner, partner or officer of a crematory operator or an applicant to become a crematory operator, or that any agent or employee of a crematory operator or an applicant to become a crematory operator, with the direct or implied permission of such owner, partner or officer, has violated any provision of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, or is guilty of any of the following acts, and when the board also finds that the crematory operator or applicant has thereby become unfit to practice, the board may suspend, revoke or refuse to issue or renew the license, in accordance with the procedures of Section 73-11-57, Mississippi Code of 1972:
(a) Conviction of a felony or a crime involving fraud or moral turpitude;
(b) Fraud or misrepresentation in obtaining or renewing a license or in the practice of cremation;
(c) False or misleading advertising;
(d) Gross immorality, including being under the influence of alcohol or drugs while performing cremation services;
(e) Using profane, indecent or obscene language in the presence of a dead human body, and within the immediate hearing of the family or relatives of a deceased, whose body has not yet been cremated or otherwise disposed of;
(f) Violating or cooperating with others to violate any of the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, or of the rules of the board;
(g) Violation of any state law or municipal or county ordinance or regulation affecting the handling, custody, care or transportation of dead human bodies;
(h) Refusing to surrender promptly the custody of a dead human body or cremated remains upon the express order of the person lawfully entitled to the custody thereof;
(i) Indecent exposure or exhibition of a dead human body while in the custody or control of a licensee.
(7) The board is empowered to regulate and inspect crematories and crematory operators and to enforce as provided by law the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, and the rules adopted hereunder.
(8) The board shall have the power to administer oaths and issue subpoenas requiring the attendance of persons and the production of papers and records before the board in any hearing, investigation or proceeding conducted by it or conducted jointly with the Crematory Authority. Members of the board's staff or the sheriff or other appropriate official of any county of this state shall serve all notices, subpoenas and other papers given to them by the president of the board for service in the same manner as process issued by any court of record. Any person who neglects or refuses to obey a subpoena issued by the board shall be guilty of contempt of court, punishable according to law.
SECTION 7. The following provision shall be codified as Section 73-11-73, Mississippi Code of 1972:
73-11-73. The board shall establish requirements for record keeping and authorizations, and it shall be a violation of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, for any crematory operator to fail to comply with the requirements.
SECTION 8. The following provision shall be codified as Section 73-11-75, Mississippi Code of 1972:
73-11-75. (1) No human body shall be cremated before the crematory operator receives a death certificate signed by the attending physician or an authorization for cremation signed by a medical examiner.
(2) Human remains shall not be cremated within twenty-four (24) hours after the time of death, unless such death was a result of an infectious, contagious or communicable and dangerous disease as listed by the State Department of Health, and unless such time requirement is waived in writing by the medical examiner, county health director or attending physician where the death occurred. In the event such death comes under the jurisdiction of the medical examiner, the human remains shall not be received by the crematory operator until authorization to cremate has been receiving in writing from the medical examiner of the county in which the death occurred. In the event the crematory operator is authorized to perform funerals as well as cremation, this restriction on the receipt of human remains shall not be applicable.
(3) No unauthorized person shall be permitted in the crematory area while any human remains are in the crematory area awaiting cremation, being cremated, or being removed from the cremation chamber. Relatives of the deceased, the authorizing agent, medical examiners and law enforcement officers in the execution of their duties shall be authorized to have access to the holding facility and crematory facility.
(4) The simultaneous cremation of the human remains of more than one person within the same cremation chamber is forbidden.
(5) Crematory operators shall comply with standards established by the board for the reduction and pulverization of human remains by the cremation process.
SECTION 9. The following provision shall be codified as Section 73-11-77, Mississippi Code of 1972:
73-11-77. (1) The authorizing agent shall provide the person with whom cremation arrangements are made with a signed statement specifying the ultimate disposition of the cremated remains, if known. A copy of this statement shall be retained by the crematory operator.
(2) The authorizing agent is responsible for the disposition of the cremated remains. If, after a period of thirty (30) days from the date of cremation, the authorizing agent or his representative has not specified the ultimate disposition or claimed the cremated remains, the crematory operator or the person in possession of the cremated remains may dispose of the cremated remains only in a manner permitted in this section. The authorizing agent shall be responsible for reimbursing the crematory operator for all reasonable expenses incurred in disposing of the cremated remains pursuant to this section. A record of such disposition shall be made and kept by the person making such disposition. Upon disposing of cremated remains in accordance with this section, the crematory operator or person in possession of the cremated remains shall be discharged from any legal obligation or liability concerning such cremated remains.
(3) In addition to the disposal of cremated remains in a crypt, niche, grave or scattering garden located in a dedicated cemetery, or by scattering over uninhabited public land, the sea or other public waterways pursuant to subsection (6) of this section, cremated remains may be disposed of in any manner on the private property of a consenting owner, upon direction of the authorizing agent. If cremated remains are to be disposed of by the crematory operator on private property, other than dedicated cemetery property, the authorizing agent shall provide the crematory operator with the written consent of the property owner.
(4) Except with the express written permission of the authorizing agent no person may:
(a) Dispose of or scatter cremated remains in such a manner or in such a location that the cremated remains are commingled with those of another person. This paragraph shall not apply to the scattering of cremated remains at sea or by air from individual closed containers or to the scattering of cremated remains in an area located in a dedicated cemetery and used exclusively for such purposes.
(b) Place cremated remains of more than one person in the same closed container. This paragraph shall not apply to placing the cremated remains of members of the same family in a common closed container designed for the cremated remains of more than one person.
(5) Cremated remains shall be delivered by the crematory operator to the individual specified by the authorizing agent on the cremation authorization form. The representative of the crematory operator and the individual receiving the cremated remains shall sign a receipt indicating the name of the deceased, and the date, time and place of the receipt. After this delivery, the cremated remains may be transported in any manner in this state, without a permit, and disposed of in accordance with the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972.
(6) Cremated remains may be scattered over uninhabited public land, a public waterway or sea, subject to health and environmental standards, or on the private property of a consenting owner pursuant to subsection (3) of this section. A person may utilize a boat or airplane to perform such scattering. Cremated remains shall be removed from their closed container before they are scattered.
SECTION 10. The following provision shall be codified as Section 73-11-79, Mississippi Code of 1972:
73-11-79. (1) Any person signing a cremation authorization form shall be deemed to warrant the truthfulness of any facts set forth in the cremation authorization form, including the identity of the deceased whose remains are sought to be cremated and that person's authority to order such cremation.
(2) A crematory operator shall have authority to cremate human remains upon the receipt of a cremation authorization form signed by an authorizing agent. There shall be no liability of a crematory operator that cremates human remains pursuant to such authorization, or that releases or disposes of the cremated remains pursuant to such authorization.
(3) A crematory operator shall not be responsible or liable for any valuables delivered to the crematory operator with human remains.
(4) A crematory operator shall not be liable for refusing to accept a body or to perform a cremation until it receives a court order or other suitable confirmation that a dispute has been settled if:
(a) It is aware of any dispute concerning the cremation of human remains;
(b) It has a reasonable basis for questioning any of the representations made by the authorizing agent; or
(c) For any other lawful reason.
(5) If a crematory operator is aware of any dispute concerning the release or disposition of the cremated remains, the crematory operator may refuse to release the cremated remains until the dispute has been resolved or the crematory operator has been provided with a court order authorizing the release or disposition of the cremated remains. A crematory operator shall not be liable for refusing to release or dispose of cremated remains in accordance with this subsection.
SECTION 11. The following provision shall be codified as Section 73-11-81, Mississippi Code of 1972:
73-11-81. (1) The board may set and collect fees not to exceed the following amounts from licensed crematory operators and applicants:
(a) Licensee application fee $400.00
(b) Annual renewal fee 150.00
(c) Late renewal penalty 75.00
(d) Re-inspection fee 100.00
(e) Per cremation fee 10.00
(2) The funds collected pursuant to this section shall become part of the special fund of the board. The cost of the maintenance of the Crematory Authority shall be deemed a general expense of the board. The board shall keep an accurate accounting of all the receipts and expenditures made pursuant to Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, and shall provide a current report of such to the Crematory Authority biannually.
SECTION 12. The following provision shall be codified as Section 73-11-83, Mississippi Code of 1972:
73-11-83. (1) A crematory operator may employ a licensed funeral director for the purpose of arranging cremations with the general public, transporting human remains to the crematory and processing all necessary paperwork. Nothing in this provision may be construed to require a licensed funeral director to perform any functions not otherwise required by law to be performed by a licensed funeral director.
(2) A crematory operator may adopt reasonable rules consistent with Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, for the management and operation of a crematory. Nothing in this subsection may be construed to prevent a crematory operator from adopting rules which are more stringent than the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972.
(3) Nothing in Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, shall prohibit or require the performance of cremations by crematory operators for or directly with the public, or exclusively for or through licensed funeral directors.
(4) Nothing in Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, may be construed to prohibit a crematory operator from transporting human remains.
(5) Nothing in Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, may be construed to relieve the holder of a license issued hereunder from obtaining any other licenses or permits required by law.
SECTION 13. The following provision shall be codified as Section 73-11-85, Mississippi Code of 1972:
73-11-85. (1) The board is authorized to adopt and promulgate such rules for the carrying out and enforcement of the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, as may be necessary and as are consistent with the laws of this state. The board shall adopt rules only after consideration of the Crematory Authority's suggested rules. The board may perform such other acts and exercise such other powers and duties as may be provided in Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, and otherwise by law and as may be necessary to carry out the powers herein conferred.
(2) The provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, shall not apply to the cremation of human remains and medical waste performed by licensed hospitals and medical schools, and the office of the Chief Medical Examiner when the disposition of such human remains and medical waste is the legal responsibility of said institutions.
(3) A violation of any of the provisions of Sections 73-11-65 through 73-11-85, Mississippi Code of 1972, is a misdemeanor punishable by imprisonment for up to six (6) months and a fine up to One Thousand Dollars ($1,000.00).
(4) No person, firm or corporation may request or authorize cremation or cremate a dead human body when he has information indicating a crime or violence of any sort in connection with the cause of death unless such information has been conveyed to the state or county medical examiner and permission from the state or county medical examiner to cremate has thereafter been obtained.
SECTION 14. Section 75-63-1, Mississippi Code of 1972, is amended as follows:
75-63-1. (1) For the purposes of this chapter, the following terms shall have the meanings specified, unless the context clearly requires another meaning:
(a) "Board" means the Mississippi State Board of Funeral Service as created pursuant to Section 73-11-33 et seq.
(b) "Beneficiary" means the person specified in the pre-need contract upon who's death funeral services or merchandise shall be provided or delivered; this person may also be the purchaser of the pre-need funeral contract.
(c) "Casket" means a rigid container which is designed for the encasement of human remains and which is usually constructed of wood, metal or other rigid material and ornamented and lined with fabric.
(d) "Licensee" means the person who has applied for and has been granted a license to sell pre-need funeral contracts under this chapter.
(e) "Outer burial container" means any container which is designed for placement in the grave around the casket, including, but not limited to, containers commonly known as burial vaults, grave boxes and grave liners.
(f) "Person" means any person, firm, partnership, association, corporation or other legal entity.
(g) "Pre-need contract" means any agreement or contract, or any series or combination of agreements or contracts, whether funded by trust deposits or life insurance policies or annuities, which has for a purpose the furnishing or performance of funeral services or the furnishing or delivery of any personal property, merchandise or services of any nature in connection with the final disposition of a dead human body. Nothing in this chapter is intended to regulate the content of a life insurance policy or a tax-deferred annuity.
(h) "Provider" means a person who is obligated for furnishing or performing funeral services or the furnishing or delivery of any personal property, merchandise or services of any nature in connection with the final disposition of a dead human body.
(i) "Purchaser" means the person who originally paid the money under or in connection with a pre-need funeral contract.
(j) "Pre-need trust funds" means the entire amount paid to a seller, exclusive of finance charges paid by the purchaser, and credit life, accident or disability insurance premiums, upon any agreement or contract, or series or combination of agreements or contracts, for the purpose of performing funeral services or furnishing personal property, merchandise or services of any nature in connection with the final disposition of a dead human body, including, but not limited to, the retail price paid for such services and personal property and merchandise. Pre-need funeral trust funds shall not include insurance policies if used to fund the pre-need contract.
(k) "Purchase price" means the sales proceeds less finance charges on retail installment contracts.
(l) "Seller" means the person who sells or offers to sell the pre-need contract to a purchaser, whether funded by a trust agreement, life insurance policy or tax deferred annuity.
A seller must be a provider or have an enforceable agreement with a provider.
(2) Except as hereinafter provided, no person * * * shall, directly or indirectly or through an agent, enter into a contract, agreement, or mutual understanding, or any series or combination of contracts, agreements or mutual understandings with any purchaser, which has for a purpose the furnishing or performance of funeral services, or the furnishing or delivery of any personal property, merchandise or services of any nature in connection with the final disposition of a dead human body for future use at a time determinable by the death of the person or persons whose body or bodies are to be so disposed of, but does not mean the furnishing of a cemetery lot, crypt, niche or mausoleum.
(3) No pre-need funeral contract shall be sold in this state unless there is a provider for the services and personal property being sold. If the seller is not a provider, then the seller shall have a binding agreement with a provider, and the identity of the provider and the nature of the agreement between the seller and the provider shall be disclosed in the pre-need contract at the time of the sale and before the receipt of any sales proceeds. Any subsequent change made in the identity of the provider shall be approved in writing by the purchaser or beneficiary within thirty (30) days after it occurs. The failure to disclose the identity of the provider, the nature of the agreement between the seller and provider, or any changes thereto to the purchaser or beneficiary constitutes an intentional violation of this chapter.
SECTION 15. The following provision shall be codified as Section 75-63-2, Mississippi Code of 1972:
75-63-2. (1) No person may offer or sell pre-need contracts or offer to make or make any funded funeral prearrangements without first securing a license from the board. There shall be two (2) types of licenses: a pre-need company license and a pre-need sales license. Funeral establishments holding a valid funeral establishment license pursuant to Section 73-11-55, Mississippi Code of 1972, shall be granted a pre-need company license.
(2) Employees and agents of entities holding a valid pre-need company license, upon meeting the qualifications to engage in pre-need funeral planning as established by the board, shall be eligible for a pre-need sales license. The board shall establish the pre-need funeral planning activities that are permitted and prohibited under a pre-need sales license. The board shall adopt rules establishing such qualifications and activities no later than twelve (12) months following the ratification of this act.
(3) Pre-need sales licensees may sell pre-need funeral contracts and make funded funeral prearrangements only on behalf of one (1) pre-need company licensee; provided, however, they may sell pre-need funeral contracts and make funeral prearrangement for any number of licensed pre-need funeral companies that are wholly owned by or affiliated with, through common ownership or contract, the same entity; provided, however, in the event they engage in selling insurance policies, they shall meet the licensing requirements of the Commissioner of Insurance.
(4) Application for a license shall be in writing, signed by the applicant and duly verified on forms furnished by the board. Each application shall contain at least the following: the full name and addresses (both residence and place of business) of the applicant, and every officer and director thereof if the applicant is a partnership, association or corporation and any other information as the board shall deem necessary.
(5) An application for a pre-need funeral company license shall be accompanied by a nonrefundable application fee of not more than One Hundred Fifty Dollars ($150.00). The board shall set the amount of the application fees and renewal fees by rule, but the fees shall not exceed One Hundred Fifty Dollars ($150.00). Each pre-need funeral company licensee shall pay annually to the board on or before June 30 of each year a license renewal fee of not more than One Hundred Fifty Dollars ($150.00).
(6) An application for a pre-need sales license shall be accompanied by a nonrefundable application fee of not more than Fifty Dollars ($50.00). The board shall set the amounts of the application fees and renewal fees by rule, but the fees shall not exceed Fifty Dollars ($50.00).
(7) Fees collected under this chapter shall be used for the expenses of the board in carrying out the provisions of this chapter.
SECTION 16. Section 75-63-3, Mississippi Code of 1972, is amended as follows:
75-63-3. (1) Any person * * * entering into any such pre-need contract as the seller or the provider shall deposit an amount of money equal to not less than eighty percent (80%) of the purchase price of such property or services as stated in the contract, into a trust fund established for that purpose. Such deposit shall be made not later than fifteen (15) days after the end of the month in which such contract is executed; except in the event that payment for the property and/or service shall be made by the consumer in installments, eighty percent (80%) of each installment payment shall be deposited to the trust within fifteen (15) days of the last day of the month within which such payment was made.
(2) Each initial deposit as to each contract into the trust fund shall be identified by the seller by furnishing the trustee with the name of the purchaser, a copy of the contract containing a statement of the value of such property or services and a description of the personal property and/or services to be furnished or provided by the seller thereunder. Nothing therein contained shall prohibit the trustee from commingling the deposits in any such trust fund for purposes of the management thereof and the investment of funds therein.
SECTION 17. Section 75-63-7, Mississippi Code of 1972, is amended as follows:
75-63-7. To insure the adequacy of the trust funds for their intended purpose, the net income therefrom shall remain therein and be reinvested and compounded except the income of the trust fund may be used to defer reasonable expenses of the trustee in connection with the administration of the trust funds. Except as provided in Section 75-63-9, none of the original principal shall be returned to the seller even though such principal, at the end of any annual period, on December 31, is in excess of the then requirements to fulfill any particular pre-need contract or portion thereof.
SECTION 18. Section 75-63-9, Mississippi Code of 1972, is amended as follows:
75-63-9. Except as provided in Section 75-63-7, the funds held in trust shall remain intact until detailed certification of the provider has been delivered to the trustee of the delivery of the property and/or services provided for in such pre-need contract, at which time funds on deposit covering such items plus the net income shall be delivered to the seller. Any trustee accepting the trust fund under the provisions of this chapter may rely upon the detailed certification of provider as herein required to be made, and shall not be liable to anyone for such reliance. If, after payment to the seller for items delivered pursuant to the pre-need contract, the pre-need contract is completed but there remain funds with the trustee or there are still funds allocated to the particular item which has been delivered, in either event, such excess funds shall be delivered to seller. All funds still in the trustee's hands seventy-five (75) years after their receipt shall be then returned to the seller.
SECTION 19. Section 75-63-11, Mississippi Code of 1972, is amended as follows:
75-63-11. If for any reason the seller, who has entered into a pre-need contract for the sale of such personal property and/or the performing of such services and has made the deposit herein required to be made, cannot or does not perform all provisions of said pre-need contract promptly as to delivery of the property covered by said contract after request to do so, the family, legal representative or next of kin of the purchaser shall be entitled to receive from the trustee the amount of money on deposit to the credit of that particular pre-need contract, including interest. An affidavit of the family, legal representative or next of kin to that effect, delivered to the trustee, shall be sufficient authority to the trustee to make such a payment without any liability to the person making the deposit of such money into the trust fund or to any other person. Nothing herein contained shall relieve the seller under any such contract of his liability for nonperformance. Each pre-need contract covered by this chapter shall provide that in the event that the purchaser, his family, legal representative or next of kin requests the seller to deliver the property or provide the service described in the pre-need contract to or at a location which is more than fifty (50) miles from the location where the pre-need contract was executed by the purchaser and which is deemed by the seller to be impractical for the seller to deliver the property or provide the services, then the seller shall return to the purchaser, his family, legal representative or next of kin all sums, including interest, paid by the consumer for such property and/or services.
SECTION 20. Section 75-63-15, Mississippi Code of 1972, is amended as follows:
75-63-15. (1) Every trustee of a pre-need trust fund shall annually prepare and file with the seller a detailed accounting and report of such fund on or before March 31 of each year for the calendar year ending the preceding December 31 or within ninety (90) days after the end of the fiscal year of the trust agreement, which report shall include, among other things, properly itemized, the securities in which monies in the fund are invested.
(2) Every seller shall keep accurate books of account and records of all transactions concerning pre-need funds, and a copy of all agreements made in connection with pre-need funds. Such records shall be kept and be available for inspection and copy by any purchaser, or the purchaser's family, legal representative or next of kin, at the usual place of the seller's business, for at least one (1) year after the termination of the agreement which they evidence.
SECTION 21. Section 75-63-17, Mississippi Code of 1972, is amended as follows:
75-63-17. All trusts created pursuant to this chapter shall have corporate entities as trustees. The trust fund established under the provisions of this chapter shall be administered under the jurisdiction of the chancery court of the chancery court district wherein the seller is located or if the seller be located outside of the State of Mississippi then in the chancery court of the chancery court district wherein the purchaser resides. Trust funds maintained under this chapter for more than one (1) seller may be commingled or commingled with other funeral or burial related trust funds and shall be administered under the jurisdiction of the Hinds County Chancery Court and filed with the clerk thereof. The chancery courts so having jurisdiction shall have full jurisdiction over the reports and accounting of trustees, amount of surety bond required, and investment of funds. The courts may waive the surety bond and control over investments in the case of trusts placed with an established bank or corporate trustee.
SECTION 22. Section 75-63-18, Mississippi Code of 1972, is amended as follows:
75-63-18. (1) Within thirty (30) days after the end of the calendar or the business' fiscal year, each pre-need business shall file with the clerk of the chancery court having jurisdiction over the administration of its pre-need trust fund an annual account, which account shall contain the following information:
(a) The name of the business, the date of incorporation, if incorporated, and the location of such business or businesses;
(b) The amounts of sales of all property and services for which payment has been made * * * during the preceding calendar or fiscal year;
(c) The amounts paid into the pre-need trust fund, and the income earned therefrom during the preceding fiscal year; and
(d) The names and addresses of the owners of the business and, if incorporated, its officers and directors, and any change of control which has occurred during the past fiscal or calendar year.
(2) Within forty-five (45) days after the time by which the trustee's accounting and report is required to be filed with the pre-need business, as provided by Section 75-63-15, the business shall file a copy of such accounting and report with the clerk of the chancery court having jurisdiction thereof.
(3) As a condition to the transfer of any pre-need trust fund monies from one trust institution to another, the business for which such fund is maintained shall, not less than thirty (30) days prior to the time when such transfer is to occur, file with the chancery clerk a written notice of intent to transfer accompanied with a letter of intent to receive such trust fund monies from the trust institution to which such trust fund monies are to be transferred. Such fund monies shall be transferred directly from the existing trust institution to the receiving trust institution.
(4) Prior to any sale or transfer of any pre-need business or a controlling interest therein, an independent audit of the pre-need trust fund shall be performed at the expense of the seller and/or buyer or transferor and transferee and filed with the chancery clerk. Such audit shall be current within thirty (30) days of the proposed sale or transfer.
(5) Each chancery clerk shall maintain a properly indexed book in which there shall be kept, preserved and open for public inspection a copy of each record, report and notice required to be filed with the chancery clerk under the provisions of this chapter. For filing and indexing the records, reports and notices under this chapter, the chancery clerk shall be authorized to charge such fees as are provided in Section 25-7-9 for the recording and indexing of deeds.
(6) The clerk of the chancery court having jurisdiction shall, upon the failure to timely receive any of the records, reports or notices provided for under this chapter, immediately give notice by registered letter to the owner or owners of such business, or, if incorporated, its officers and directors at its or their last known address, that such records, reports or notices have not been received. Failure of such persons to file such records, reports or notices within fifteen (15) days after such registered letter is mailed shall, in the absence of clear justification or excuse, constitute a misdemeanor and each owner and, if incorporated, its officers and directors, shall be subject to the penalties provided for in Section 75-63-23.
(7) Whenever it reasonably appears to the court upon complaint filed with the chancery court having jurisdiction thereof by any purchaser, or the family, legal representative or next of kin of any such purchaser, of any property or services contracted for under the provisions of this chapter that (a) such business is insolvent or about to become insolvent; or (b) that no merchandise trust fund has been established for such business or, if established, the trust fund does not contain such funds as are required to be contained therein, the court shall order a private audit and examination of any pre-need trust fund of such business and of all the books, records and papers employed in the transaction of such business.
In the event that such audit and examination shows that the business is insolvent or is about to become insolvent or that a sufficient trust fund is not established or being maintained for such business, the court shall exercise such jurisdiction and make and issue such orders and decrees as may be necessary to correct and enforce compliance with the provisions of this chapter and all such other orders and decrees as shall be just, equitable and in the public interest, including the appointment of receivers to continue or terminate the operation of such business.
(8) All the necessary expenses of any examination or audit performed or court proceedings conducted under the provisions of subsection (7) of this section shall be paid by the owner or owners of such business or, if incorporated, its officers and directors, and in the event that a sale of any such business is ordered by the court, the proceeds of such sale shall first be applied to the costs expended under the provisions of subsection (7) of this section.
SECTION 23. Section 75-63-19, Mississippi Code of 1972, is amended as follows:
75-63-19. This chapter shall not apply to: (a) the sale of outer burial containers, memorials, scrolls, vases, foundations, bases or any other similar merchandise where the seller delivers at the time of the execution of the contract or upon final payment, should the payment be made in installments, a valid warehouse receipt as contemplated in Uniform Commercial Code-Documents of Title, Section 75-7-101 et seq.; or (b) property or services included within the coverage provisions of insurance policies or contracts of insurance, including burial insurance contracts under the provisions of Section 83-37-11 et seq.
SECTION 24. Section 75-63-21, Mississippi Code of 1972, is amended as follows:
75-63-21. Any provision of any such pre-need contract which purports to waive any provision of this chapter shall be void.
SECTION 25. Section 75-63-23, Mississippi Code of 1972, is amended as follows:
75-63-23. (1) Any person, partnership, corporation or organization violating the provisions of this chapter shall be punished by a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00) or confined in the county jail for a period not exceeding one (1) year, or both. If the person violating the provisions of this chapter is a corporation or association, any prison term imposed shall be upon the officer responsible for the violation.
(2) In addition to the criminal penalties prescribed above, the board may take disciplinary action against any licensed provider or seller and/or may assess fines in the manner of and utilize the procedures provided in Section 73-11-57, Mississippi Code of 1972.
SECTION 26. Section 73-11-63, Mississippi Code of 1972, is amended as follows:
73-11-63. Nothing herein shall be construed to authorize the regulation or licensing of cemeteries or cemetery chapels * * * by the board, except the regulation or licensing of any funeral establishment operated by a cemetery, or the registration, regulation or licensing of a pre-need seller or provider pursuant to Section 73-63-1 et seq, Mississippi Code of 1972, the regulation or licensing of crematories pursuant to Section 73-11-65 et seq., Mississippi Code of 1972.
SECTION 27. This act shall take effect and be in force from and after July 1, 1997.