FSL Chapter 14R3 - Oversignt and Enforcement Actions

FUNERAL SERVICE LAW

IN THE UNITED STATES, 2nd ed.

A GUIDE FOR FUNERAL SERVICE STUDENTS

CHAPTER 14: OVERSIGHT AND ENFORCEMENT ACTION
(STATE LAWS)

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State Oversight and Enforcement Actions

� Administrative agencies are government bodies empowered to make and enforce rules and regulations. They are a part of the executive branch of a government.

� Rules and regulations written by these agencies are collectively called administrative law.

� Administrative agencies oversee and supervise activities of funeral service practitioners and funeral establishments.

� Violation of an administrative law may incur penalties and sanctions on a practitioner and/or the owner of a funeral establishment.

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Violation Penalties

� Funeral service regulations characteristically detail the expected or prohibited conduct of a funeral director, in addition to setting out requirements for the operation of funeral establishments.

� When a violation occurs, the regulatory agency may take action and impose sanctions on the funeral director and/or funeral establishment owner.

� Typically, penalties include warnings, suspensions, revocations, monetary fines, and/or the forfeiture or loss of licensing credentials.

� These actions are independent of any civil actions for tort offenses that may be related to the same incident or case, or any criminal behavior.

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Funeral Director Violations - Slide 1 of 2

Removal of human remains without

proper authority

Failure to surrender or dispose of

human remains on request

Embalming without authority

Committing acts which are illegal

Conducting a funeral without

proper authority

Performing duties outside

scope of licensure

Disposition of human remains

without authority
Unfit by reason of alcohol abuse

Unfit by reason of substance abuse

Misleading advertisements

Possession of an altered certificate,

license, registration, or diploma

Soliciting or employing solicitors for

human remains

False statements to obtain a license

Unfit due to a state of insanity

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Funeral Director Violations - Slide 2 of 2

Removal of human remains

without approval

Conviction of a criminal act involving

a felony or moral turpitude

Use of indecent or obscene language in

the immediate vicinity of a family

Mutilation in preparation or

restoration of human remains

Performing service outside

authorized geographical limits

Refusing to surrender a body when

properly ordered to do so

Willful false statement
on a death certificate

Untrustworthiness
in financial dealings

Failure to fulfill continuing
education requirements

Possession of a fraudulent certificate,

license, registration, or diploma

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Funeral Establishment Violations

Operating from a mobile location
Engaging in prohibited cross-marketing

activities with allied professionals

Failure to comply with OSHA standards

in a preparation room

Failure to meet minimum requirements
for arrangement, chapel, or prep rooms

Failure to have a general price list

Failure to comply with ADA standards

Failure to properly display an

establishment registration or license

Failure to provide casket and outer

burial container price lists

Failure to publicly display a general

price list

All of the grounds for action as listed

previously for funeral directors

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Enforcement Agency Procedures

� State agencies have written procedures for receiving and investigating

complaints about funeral directors and/or funeral establishments.

� When conducting an investigation and taking enforcement action, there are

typically up to eight connected events:

1. Complaints

5. Plaintiff’s case

2. Investigations

6. Respondent’s defense

3. Formal charges

7. The ruling

4. The hearing

8. An appeal?

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#1 Complaints

� Complaints about the conduct of a funeral director or the operation of a funeral establishment may come from any source.

� Most states require complaints be in writing and either verified under oath or by the witness of others.

� Anonymous complaints from consumers are not usually entertained directly but may trigger an informal inquiry that could lead to a formal complaint being filed by the agency itself.

� The majority of formal complaints are initiated by enforcement agency investigators as the result of their daily work in routinely conducting facility inspections.

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#2 Investigations

� The regulatory agency conducts an investigation using procedures and

measures similar to those to develop criminal cases.

� Following a thorough and comprehensive inquiry, the agency makes a

determination on how the matter should be handled.

� This may include:

� the dismissal of the complaint;

� an informal resolution by the parties involved; or

� the filing of formal administrative charges against the offender(s).

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#3 Formal Charges

� When formal charges are filed, the funeral director (or funeral establishment) is the respondent (person being charged) in the case

� A respondent must be given a written copy of the charges and provided with a date and time to appear for a hearing before the regulatory agency.

� The regulatory agency is the plaintiff (charging party).

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#4 TheHearing

� A hearing – sometimes referred to as a disciplinary action hearing – may take place before an administrative judge, state commissioner, or other government official authorized to hear administrative law matters.

� In some states, the hearing may be held before a panel of several officials, in which case one is the designated lead, presiding, or chief official.

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#5 Plaintiff’s Case & #6 Respondent’s Defense

� #5 Plaintiff- The plaintiff is the enforcement agency, represented by an agency official that presents the case against the respondent in front of the hearing officer (or panel). The plaintiff may call witnesses and submit evidence to prove the case. Strict rules of evidence are not usually followed in an administrative hearing, although evidence must be relevant and credible.

� #6 Respondent- The respondent has a right to address (respond to) the charges as presented by the plaintiff. The respondent may be represented by legal counsel and is allowed to call witnesses and submit evidence in their defense.

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#7 The Ruling

� After due consideration, the hearing officer or panel pronounces judgment on

the case.

� Each separate charge is judged to be either founded or unfounded.

� If a charge is judged to be unfounded, the charge is dismissed.

� If a charge is judged to be founded, the hearing officer may then impose sanctions and/or penalties.

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#8 An Appeal?

� If any of the charges against the respondent are judged to be founded by the hearing officer, the respondent has the right to dispute the ruling.

� Respondents may file an appeal before a judicial court of competent jurisdiction, such as a state district court or an appeals court.

� Both the plaintiff and the respondent would then be required to go before the applicable judicial forum to defend their respective positions on the case.

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Further Actions - Civil

� In addition to sanctions that may be imposed for violating administrative rules and regulations, the activities and conduct underlying the violation(s) could result in a case being filed in a civil or criminal court.

Civil

� If a tort – a private or civil wrong against a person or his or her property – occurred as a consequence of violating administrative rules, a consumer
could file a civil tort claim.

� With this claim they could pursue compensation for any injury or loss they believe was the result of an act or omission by the funeral director, the funeral establishment, and/or the funeral establishment owner.

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Further Actions - Criminal

Criminal

� If a crime – an action against society as a whole in violation of a constitution, statute, or ordinance – occurred as a consequence of violating administrative rules, the funeral director or funeral establishment owner could face criminal charges in a criminal court.

� States generally classify a crime as a misdemeanor for a minor offense or a felony for a major offense.

� Penalties for a criminal conviction may include fines and/or incarceration in a local jail or lockup for minor offenses, or a fine and incarceration in a state prison or penitentiary for major offenses.

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THE END

Author: Larry J Cleveland

Publisher: Hudson Valley Professional Services

PPT Release: #3 June 2022
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FUNERAL SERVICE LAW

IN THE UNITED STATES, 2nd ed.

A GUIDE FOR FUNERAL SERVICE STUDENTS