2006 Legislation
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HOUSE BILL NO. 540 – Morticians, licensure, requirements

HOUSE BILL NO. 540

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H0540...........................................................by BUSINESS
MORTICIANS - Amends and repeals existing law relating to morticians to
exempt cemeteries or their authorized agents selling values or burial
receptacles to the public; to revise requirements for a mortician's
license; to revise requirements for resident trainee licenses; to repeal
the authority of the Department of Health and Welfare to control the
handling of dead bodies; to exempt certain licensed insurance agents; to
revise definitions; to remove references to cemetery merchandise and
services; to require the presentation of licenses; to require the
maintenance of records; to revise provisions applicable to prearrangement
trust fund deposits; to revise requirements applicable to persons
advertising and marketing prearrangement sales contracts; and to require
funeral establishments or crematories that go out of business or sell
assets to disclose in writing the particulars of the contracts by their
agents.
                                                                        
02/02    House intro - 1st rdg - to printing
02/03    Rpt prt - to Bus

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 540
                                                                        
                                   BY BUSINESS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE STATE BOARD OF MORTICIANS;  AMENDING  SECTION  54-1104,  IDAHO
  3        CODE,  TO  EXEMPT  CEMETERIES OR THEIR AUTHORIZED AGENTS SELLING VALUES OR
  4        BURIAL RECEPTACLES TO THE PUBLIC; AMENDING SECTION 54-1109, IDAHO CODE, TO
  5        REVISE REQUIREMENTS FOR A MORTICIAN'S LICENSE; AMENDING  SECTION  54-1112,
  6        IDAHO  CODE, TO REVISE REQUIREMENTS FOR RESIDENT TRAINEE LICENSES; REPEAL-
  7        ING SECTION 54-1119, IDAHO CODE, RELATING TO THE AUTHORITY OF THE  DEPART-
  8        MENT  OF  HEALTH  AND WELFARE TO CONTROL HANDLING OF DEAD BODIES; AMENDING
  9        SECTION 54-1129, IDAHO  CODE,  TO  REVISE  TERMINOLOGY;  AMENDING  SECTION
 10        54-1130,  IDAHO  CODE,  TO EXEMPT CERTAIN LICENSED INSURANCE AGENTS AND TO
 11        MAKE TECHNICAL CORRECTIONS;  AMENDING  SECTION  54-1131,  IDAHO  CODE,  TO
 12        REVISE  DEFINITIONS;  AMENDING  SECTION  54-1132,  IDAHO  CODE,  TO REVISE
 13        DESCRIPTIVE LANGUAGE, TO REMOVE REFERENCES  TO  CEMETERY  MERCHANDISE  AND
 14        SERVICES, TO REQUIRE THE PRESENTATION OF LICENSES AND TO REQUIRE THE MAIN-
 15        TENANCE OF RECORDS; AMENDING SECTION 54-1133, IDAHO CODE, TO REVISE TERMI-
 16        NOLOGY  AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 54-1134, IDAHO
 17        CODE, TO REVISE PROVISIONS APPLICABLE TO PREARRANGEMENT TRUST FUND  DEPOS-
 18        ITS  AND  TO  MAKE  TECHNICAL CORRECTIONS; AMENDING SECTION 54-1136, IDAHO
 19        CODE, TO REVISE REQUIREMENTS APPLICABLE TO PERSONS ADVERTISING AND MARKET-
 20        ING PREARRANGEMENT SALES CONTRACTS; AMENDING SECTION 54-1137, IDAHO  CODE,
 21        TO PROVIDE REFERENCES TO FUNERAL ESTABLISHMENTS OR CREMATORIES REPRESENTED
 22        BY  SELLERS  AND  TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 54-1138,
 23        IDAHO CODE, TO REMOVE OBSOLETE LANGUAGE AND TO REQUIRE FUNERAL  ESTABLISH-
 24        MENTS OR CREMATORIES THAT GO OUT OF BUSINESS OR SELL ASSETS TO DISCLOSE IN
 25        WRITING THE PARTICULARS OF THE CONTRACTS ENTERED INTO BY THEIR AGENTS; AND
 26        AMENDING  SECTION 54-1142, IDAHO CODE, TO PROVIDE REFERENCES TO MORTICIANS
 27        AND TO MAKE GRAMMATICAL CORRECTIONS.
                                                                        
 28    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 29        SECTION 1.  That Section 54-1104, Idaho Code, be, and the same  is  hereby
 30    amended to read as follows:
                                                                        
 31        54-1104.  EXEMPTIONS  FROM PROVISIONS OF CHAPTER. There is hereby exempted
 32    from the terms and provisions of this chapter and from the enforcement of  the
 33    provisions hereof, the following:
 34        (1)  Manufacturers,  wholesalers and jobbers of caskets, funeral supplies,
 35    vaults or other burial receptacles not engaged in  performing  mortician  ser-
 36    vices  and not selling to the public, except when said sales to the public are
 37    sales with immediate delivery of the funeral supplies purchased.
 38        (2)  Cemeteries or their authorized agents selling vaults or burial recep-
 39    tacles to the public.
 40        (3)  Any duly authorized representative of any church, fraternal order  or
 41    other  association or organization honoring the dead who performs a funeral or
 42    other religious service under the authority of and pursuant to  the  religious
 43    tenets  or practices of such organization.  This exemption does not authorize,
                                                                        
                                           2
                                                                        
  1    permit or allow such person to perform the functions of a mortician or funeral
  2    director under section 54-1102 (11) or (19), Idaho Code, unless  he  shall  be
  3    licensed as required by law.
  4        (4)  Notwithstanding  any  other  provision  of law, the person having the
  5    right to control the disposition of the remains of the deceased person  pursu-
  6    ant  to  section 54-1142, Idaho Code, or such person's designee, or a licensed
  7    funeral director, may initiate the process  of cremation by operation  of  the
  8    retort while under the direct personal supervision of a licensed mortician.
                                                                        
  9        SECTION  2.  That  Section 54-1109, Idaho Code, be, and the same is hereby
 10    amended to read as follows:
                                                                        
 11        54-1109.  REQUIREMENTS FOR MORTICIAN LICENSE -- REQUIREMENTS  FOR  FUNERAL
 12    DIRECTOR  LICENSE  -- LICENSE BY ENDORSEMENT. (1) The board shall issue to any
 13    person a mortician's license to practice as a mortician and perform  mortician
 14    services  within the state of Idaho who has complied with and fulfilled all of
 15    the following requirements:
 16        (a)  Has attained the age of twenty-one (21) years.
 17        (b)  Is of good moral character.
 18        (c)  Has completed and received credit for at least  sixty  (60)  semester
 19        hours' or ninety (90) quarter-hours' instruction in a duly accredited col-
 20        lege  or  university  and  has obtained at least a C grade average for all
 21        courses of instruction; provided, however, at least three-fourths (3/4) of
 22        all of such credits must be for courses in the  fields  of  liberal  arts,
 23        business or science as defined and specified by the board of morticians.
 24        (d)  Has successfully completed a course in an embalming school accredited
 25        by  the  American  board of funeral service education, inc., or such other
 26        embalming school as approved by the board of morticians.
 27        (e)  Has practiced as a licensed resident trainee in the  state  of  Idaho
 28        under  the  personal  supervision of a licensed resident mortician for not
 29        less than twelve (12) months, and has assisted in making at least  twenty-
 30        five (25) funeral arrangements and in conducting at least twenty-five (25)
 31        funerals,  and  in  embalming at least twenty-five (25) dead human bodies;
 32        provided, however, such practice as a licensed  resident  trainee  of  the
 33        state  of  Idaho  may  be  filled and performed either before or after the
 34        required post-high school education.
 35        (f)  Has filed an application with the board as required by  this  chapter
 36        and paid the required filing fee therefor.
 37        (g)  Has  passed  the  required  examination prepared and conducted by the
 38        board of morticians. Provided further, that the board shall determine com-
 39        pliance with all of the above qualifications, except this paragraph relat-
 40        ing to examinations, at the time the applicant files  his  application  as
 41        hereinafter  provided and before the examination is conducted by the board
 42        of morticians.
 43        (2)  The board shall issue to any person a  funeral  director  license  to
 44    practice  as  a  funeral director and perform funeral director services within
 45    the state of Idaho who has complied with and fulfilled all  of  the  following
 46    requirements:
 47        (a)  Has attained the age of twenty-one (21) years.
 48        (b)  Is of good moral character.
 49        (c)  Has  completed  and  received  at least sixty (60) semester hours' or
 50        ninety (90) quarter-hours' instruction from a duly accredited  college  or
 51        university  and has obtained at least a C grade average for all courses of
 52        instruction; provided, however, at least three-fourths (3/4) of  all  such
 53        credits  must  be  for  courses in the fields of liberal arts, business or
                                                                        
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  1        science as defined and specified by the board.
  2        (d)  Has successfully completed at  least  fifteen  (15)  semester  credit
  3        hours or the equivalent from a mortuary college accredited by the American
  4        board  of  funeral  service education, inc., or such credits as are other-
  5        wise approved by the board, with course of study to include business  law,
  6        psychology, sociology, funeral service counseling, funeral service manage-
  7        ment and other classes that relate to conducting funeral business.
  8        (e)  Has  practiced  as a licensed trainee in the state of Idaho under the
  9        personal supervision of a licensed mortician for not less than twelve (12)
 10        months, and has assisted in  making  at  least  twenty-five  (25)  funeral
 11        arrangements and in conducting at least twenty-five (25) funerals.
 12        (f)  Has  successfully  passed  the required examination as established by
 13        the rules of the board. An applicant shall not be qualified  to  take  the
 14        examination until all other requirements have been met.
 15        (g)  Has  filed  an application with the board as required by this chapter
 16        and paid the required fees.
 17        (3)  Any person holding a current, valid license in another state or  ter-
 18    ritory  having  substantially  similar  requirements to those existing in this
 19    state, may be granted a license without examination, provided:
 20        (a)  The applicant files with the board a  certified  statement  from  the
 21        examining board of the state or territory in which the applicant holds his
 22        license,  verifying  the  license  and  showing  the  basis upon which the
 23        license was granted; and
 24        (b)  The applicant pays the license fee; and
 25        (c)  The applicant satisfies the board that he understands  the  laws  and
 26        rules of this state as to funeral service.
 27        (4)  A  person holding a current, valid license in another state or terri-
 28    tory with requirements significantly lower than those of this state who has at
 29    least five (5) consecutive years of experience as  a  licensee  in  the  other
 30    state  or  territory prior to application, may apply for a license to practice
 31    in this state without meeting the full requirements of subsection (1)  or  (2)
 32    of this section. Upon payment of the license fee and passing such test of pro-
 33    ficiency as the board shall require including, but not limited to, a knowledge
 34    of  the laws and administrative rules of this state as to funeral service, the
 35    board shall grant a license.
                                                                        
 36        SECTION 3.  That Section 54-1112, Idaho Code, be, and the same  is  hereby
 37    amended to read as follows:
                                                                        
 38        54-1112.  REQUIREMENTS FOR RESIDENT TRAINEE LICENSE. The board shall issue
 39    to any person a resident trainee license to practice as a resident trainee and
 40    perform  services at a particular establishment under the personal supervision
 41    of a specified licensed mortician within the state of Idaho who  has  complied
 42    with and fulfilled all of the following requirements:
 43        (1)  Has attained the age of eighteen (18) years, and is a resident of the
 44    state of Idaho.
 45        (2)  Is of good moral character.
 46        (3)  Has  graduated  from  an  accredited  high  school or has received an
 47    equivalent education as determined by the standards set and established by the
 48    state board of education.
 49        (4)  Has filed an application with the board as required by  this  chapter
 50    and  paid the required filing fee. Provided further, that the board shall make
 51    the determination of qualifications of all applicants within a reasonable time
 52    after the filing of an application with the board. Provided further, no person
 53    shall be eligible to be licensed as a resident trainee who has practiced as  a
                                                                        
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  1    resident trainee or apprentice for a total cumulative period of more than  two
  2    three (23) years in the state of Idaho.
                                                                        
  3        SECTION  4.  That  Section 54-1119, Idaho Code, be, and the same is hereby
  4    repealed.
                                                                        
  5        SECTION 5.  That Section 54-1129, Idaho Code, be, and the same  is  hereby
  6    amended to read as follows:
                                                                        
  7        54-1129.  DECLARATION  OF  INTENT.  It  is the purpose of sections 54-1129
  8    through 54-1138, Idaho Code, to provide for the certification authorization of
  9    persons selling or offering for sale prearrangement sales contracts,  to  pro-
 10    vide  for  the  creation  and  administration of prearrangement sales contract
 11    trust funds to assure funds for the performance  to  purchasers  who  contract
 12    through  prearrangement  sales contracts for the purchase of funeral and ceme-
 13    tery merchandise and funeral and cemetery services, and  to  provide  for  the
 14    disbursement and allocation of trust funds upon the certified person's perfor-
 15    mance  of  his  contractual  obligations. The sections of Idaho Code specified
 16    herein shall not affect the provisions of sections 54-1101 through 54-1121 and
 17    sections 54-1126 through 54-1128, Idaho Code.
                                                                        
 18        SECTION 6.  That Section 54-1130, Idaho Code, be, and the same  is  hereby
 19    amended to read as follows:
                                                                        
 20        54-1130.  SCOPE  AND  EXCEPTIONS. A.(1)  Sections 54-1129 through 54-1138,
 21    Idaho Code, apply to all persons who sell or offer for sale prepaid funeral or
 22    cemetery merchandise or services, except that persons who are licensed  insur-
 23    ance  agents  selling  contracts of life insurance where the contracts of life
 24    insurance do not identify specific funeral goods, services or supplies  to  be
 25    purchased with the insurance proceeds, shall be exempt from the provisions  of
 26    sections 54-1129 through 54-1138, Idaho Code.
 27        B.(2)  Sections 54-1133, 54-1134 and 54-1135, Idaho Code, do not apply to:
 28        (1a)  Agreements  to  sell  or  sales  made  for  rights  of  interment or
 29        entombment in a cemetery section, lawn crypt section, mausoleum or  colum-
 30        barium  which  are in existence at the time of initial payment on the con-
 31        tract, or
 32        (2b)  Agreements to sell or sales made for  monuments  and  grave  markers
 33        that will be delivered and installed upon performance of payment.
                                                                        
 34        SECTION  7.  That  Section 54-1131, Idaho Code, be, and the same is hereby
 35    amended to read as follows:
                                                                        
 36        54-1131.  DEFINITIONS. As used in sections 54-1132 through 54-1143,  Idaho
 37    Code:
 38        (1)  "Authorized  person or seller" means any person holding a current and
 39    valid mortician license or funeral director license.
 40        (2)  "Beneficiary" means the person who is to receive the funeral or ceme-
 41    tery merchandise or funeral or cemetery services.
 42        (2)  "Certified person or seller" means any person holding  a  certificate
 43    of  registration or who is registered to sell or offer for sale prearrangement
 44    sales contracts.
 45        (3)  "Funeral or cemetery merchandise" means  personal  property  normally
 46    and  customarily  sold  by  funeral  establishments, cemeteries, and crematory
 47    establishments including, but not limited to, caskets or  other  primary  con-
 48    tainers,  burial  vaults,  casket-vaults,  grave  liners,  funeral clothing or
                                                                        
                                           5
                                                                        
  1    accessories, monuments, grave markers and cremation urns. It shall include:
  2        (a)  Merchandise identified for the purchaser or  the  beneficiary  to  be
  3        manufactured for future delivery and use.
  4        (b)  Merchandise  that  has been manufactured and held by the manufacturer
  5        for future delivery and use.
  6        (c)  Merchandise that has been manufactured and delivered to  and  in  the
  7        possession of the seller, who has placed it, until needed, in storage.
  8        (4)  "Funeral or cemetery services" means those services normally and cus-
  9    tomarily  performed  by  a  funeral  service  practitioner, mortician, funeral
 10    establishment, cemetery or crematory establishment in conjunction with funeral
 11    or memorial services, interment, entombment or cremation.
 12        (5)  "Guaranteed contract" means a written prearrangement  sales  contract
 13    that  guarantees  the  beneficiary  funeral or cemetery services or funeral or
 14    cemetery merchandise contained in the contract  and  under  which  no  charges
 15    other  than  the  sales price contained in the contract shall be required upon
 16    delivery of the merchandise or performance of the funeral  and  cemetery  ser-
 17    vices.
 18        (6)  "Nonguaranteed  contract"  means  a written prearrangement sales con-
 19    tract that does not guarantee the beneficiary any specific funeral or cemetery
 20    merchandise or services. Any funds paid under this contract are only a deposit
 21    to be applied toward the final cost of the funeral or cemetery merchandise  or
 22    services.
 23        (7)  "Prepaid  prearrangement sale or prearrangement sales contract" means
 24    any contract for the sale, other than a contract  of  life  insurance  entered
 25    into  by  an  insurance  company,  that  has  as its purpose the furnishing of
 26    funeral or cemetery merchandise or funeral or cemetery services in  connection
 27    with  the  final  disposition  or  commemoration of the memory of a dead human
 28    body, for use at a time determinable by the death of  the  person  or  persons
 29    whose  body or bodies are to be disposed and where the sale terms require pay-
 30    ment or payments to be made at a currently determinable time.
 31        (8)  "Primary container" means  a  casket,  rental  casket,  casket-vault,
 32    chapel-vault  urn  or  other  container that serves as the repository for dead
 33    human remains.
 34        (9)  "Public cemetery" means a cemetery owned and operated by  a  cemetery
 35    district organized under Idaho law, or by a municipal corporation or political
 36    subdivision of the state of Idaho.
 37        (10) "Purchaser"  means  a  beneficiary  or a person acting on behalf of a
 38    beneficiary who enters into a prearrangement sales contract with  a  certified
 39    person  under  which  any  payment  or  payments  made  under the contract are
 40    required to be deposited in trust.
 41        (11) "Secondary container" means a vault, grave liner, urn or  other  con-
 42    tainer  purchased  by  the buyer for a burial or required by the cemetery that
 43    will be the repository for the primary container.
 44        (12) "Trustee" means any bank, trust company or savings institution autho-
 45    rized to do business in the state of Idaho where accounts are insured with the
 46    federal deposit insurance corporation, the federal savings and loan  insurance
 47    corporation or other similar agency of the United States government.
                                                                        
 48        SECTION  8.  That  Section 54-1132, Idaho Code, be, and the same is hereby
 49    amended to read as follows:
                                                                        
 50        54-1132.  CERTIFICATE OF  AUTHORITY  --  DISPLAY  OF  LICENSE  --  RECORDS
 51    REQUIREMENTS.  -- DISPLAY OF CERTIFICATE. (1) No individual may sell a prepaid
 52    contract or provide funeral or cemetery merchandise  or  funeral  or  cemetery
 53    services  pursuant  to a prepaid contract without first obtaining a valid cer-
                                                                        
                                           6
                                                                        
  1    tificate of authority holding a current  and  valid  mortician  license  or  a
  2    funeral director license issued by the board. Any individual who sells prepaid
  3    contracts  or  provides  funeral merchandise or funeral services pursuant to a
  4    prepaid contract shall present a copy of his or her current and valid individ-
  5    ual license to the purchaser for purposes of identification before engaging in
  6    the activity of selling a prearrangement sales contract.
  7        A certificate of authority for public cemeteries shall be  issued  by  the
  8    governing  board, city council or board of county commissioners having overall
  9    supervision and control of the cemetery. A certificate of authority  for  pri-
 10    vately  owned  cemeteries shall be issued by the Idaho board of cemeterians. A
 11    certificate of authority for persons licensed  under  chapter  11,  title  54,
 12    Idaho Code, shall be issued by the state board of morticians.
 13        (2)  Any individual seeking to obtain a certificate of authority must sub-
 14    mit  a  statement who sells a prepaid contract or provides funeral merchandise
 15    or funeral services pursuant to a prepaid contract shall maintain records that
 16    includes the following:
 17        (a)  The types of prepaid contracts to be written; and
 18        (b)  The name and address of the place of business of or businesses repre-
 19        sented by the individual.; and
 20        (c)  Any information deemed necessary by the  certificating  authority  to
 21        show  evidence  of  good moral character, a reputation for fair dealing in
 22        business matters, and the absence of a criminal record.
 23        (3)  Upon issuance, the certificate of authority shall be posted conspicu-
 24    ously in the holder's place of business.
 25        (4)  Any individual holding a certificate shall present a copy of the cer-
 26    tificate to the purchaser before engaging in the activity of selling a  prear-
 27    rangement  sales contract Any funeral establishment or crematory that provides
 28    funeral merchandise or funeral services pursuant to a prepaid  contract  shall
 29    maintain records upon the licensed premises that include the following:
 30        (a)  The number of such contracts executed and a copy of each contract;
 31        (b)  The total value of such contracts;
 32        (c)  The name of each purchaser of a contract;
 33        (d)  The  amount of money collected and paid in trust and deposited pursu-
 34        ant to such contracts; and
 35        (e)  The name of the trustee.
                                                                        
 36        SECTION 9.  That Section 54-1133, Idaho Code, be, and the same  is  hereby
 37    amended to read as follows:
                                                                        
 38        54-1133.  FORM  AND  CONTENT  OF  CONTRACT -- PRICE DISCLOSURE. A.(1) Each
 39    contract shall be written  in  clear  understandable  language  and  shall  be
 40    printed or typed in easy-to-read type, size, and style.
 41        B.(2)  Each  contract  shall  identify the seller, seller's certificate of
 42    authority license number, purchaser, and the beneficiary  if  other  than  the
 43    purchaser.
 44        C.(3)  Each  contract  shall specify the services and/or merchandise to be
 45    provided, as well as a statement of the law regarding substitution as provided
 46    in section 54-1137, Idaho Code.
 47        D.(4)  Each contract shall set forth the  purchase  price  and  the  terms
 48    under which it is to be paid.
 49        E.(5)  Each  contract shall conform to other state or federal regulations,
 50    including price disclosure. It is the contract seller's duty  to  comply  with
 51    such regulations.
 52        F.(6)  Each  contract shall state clearly whether it is a guaranteed price
 53    contract or a nonguaranteed price contract.
                                                                        
                                           7
                                                                        
  1        G.(7)  Each contract shall state clearly whether  it  is  a  revocable  or
  2    nonrevocable trust.
  3        H.(8)  Each contract shall state the amount of money to be placed in trust
  4    and  the name of the trustee, but the contract may provide that the seller may
  5    designate a new trustee to obtain higher interest earnings on the trust funds.
  6        I.(9)  Each contract shall explain the disposition  of  the  interest  and
  7    include a statement of the fees, expenses and taxes which may be deducted from
  8    the  interest  pursuant to section 54-1134, Idaho Code, and a statement of the
  9    purchaser's responsibility for taxes owed on the interest.
 10        J.(10)  Each contract shall explain the  purchaser's  cancellation  rights
 11    pursuant to section 54-1135, Idaho Code.
                                                                        
 12        SECTION  10.  That Section 54-1134, Idaho Code, be, and the same is hereby
 13    amended to read as follows:
                                                                        
 14        54-1134.  PREARRANGEMENT TRUST FUND DEPOSITS. A.(1) Within ten (10)  busi-
 15    ness days of receipt, funds received by the seller in payments of the any pre-
 16    paid  contract  shall  be  deposited delivered to the funeral establishment or
 17    crematory represented by the seller for deposit in trust. The  funeral  estab-
 18    lishment  or  crematory  shall  within five (5) business days after receipt of
 19    such funds deposit the funds in trust as follows:
 20        (1a)  Fifty per cent percent (50%) of the amount received in payment for a
 21        marker, monument or  secondary  container  shall  be  deposited  with  the
 22        trustee  to  be  held in trust; provided however, the first fifty per cent
 23        percent (50%) of the fifty per cent percent (50%), or twenty-five per cent
 24        percent (25%) of the total, may be collected, accounted for and applied to
 25        the seller's cost of purchase with the remainder to be deposited in trust.
 26        No amount need be held in trust for those items which are fully  purchased
 27        by the seller and stored for the purchaser at seller's expense in a bonded
 28        warehouse.
 29        (2b)  Upon  the  sale of all other funeral or cemetery merchandise or ser-
 30        vices there shall be deposited in trust the amount of eighty-five per cent
 31        percent (85%) of the amounts received.
 32        B.(2)  Funds deposited in trust shall be identified in the records of  the
 33    trustee  by  the  name  of  the purchaser and beneficiary and adequate records
 34    shall be maintained to allocate all earnings to each prearrangement sales con-
 35    tract. Nothing shall prevent the trustee from commingling the deposits in  any
 36    such  trust  fund  account for purposes of managing and investing the funds. A
 37    common trust fund account shall be identified by the name of the trustee.
 38        C.(3)  The certificating authority board shall as often as it  deems  rea-
 39    sonably necessary, examine the trust account, records, documents and contracts
 40    of the seller. The certificating authority shall determine the reasonable cost
 41    of such examination, which shall be paid to the certificating authority by the
 42    seller. Each seller is hereby required to file not less than annually with the
 43    certificating  authority a certified audit report revealing the number of such
 44    contracts or agreements executed by him during the preceeding year, the  total
 45    value of said  contracts or agreements, the amount of money collected and paid
 46    in  trust pursuant to said contracts or agreements and the name of the trustee
 47    and those funeral establishments and crematories represented by the seller.
 48        D.(4)  The interest income from the trust on all contracts may be used  to
 49    pay reasonable trustee fees and administrative expenses incurred in the admin-
 50    istration  of the trust and taxes. The certificating authority board shall, by
 51    rule, establish a limit on the amount  of  fees  and  expenses  which  may  be
 52    deducted from the interest income and the trustee shall not exceed said limit.
 53        E.(5)  At  the  time  of  providing  the  services and/or merchandise, any
                                                                        
                                           8
                                                                        
  1    interest income  remaining  after  payment  of  trustee  fees,  administrative
  2    expenses and taxes shall be disbursed as follows:
  3        (1a)  On a guaranteed price prepaid contract, to the seller.
  4        (2b)  On  a  nonguaranteed price prepaid contract, to the purchaser or the
  5        purchaser's estate.
  6        F.(6)  Any person engaging in prearrangement sales who enters into a  com-
  7    bination  sale  which involves the sale of items subject to trust and any item
  8    not subject to trust shall be prohibited from increasing the  sales  price  of
  9    those items not subject to trust with the purpose of allocating a lesser sales
 10    price to items which require a trust deposit.
                                                                        
 11        SECTION  11.  That Section 54-1136, Idaho Code, be, and the same is hereby
 12    amended to read as follows:
                                                                        
 13        54-1136.  SOLICITATION -- LIMITATIONS. (1) The right of a seller  to  law-
 14    fully advertise shall not be restrained, nor shall general advertising be pro-
 15    hibited.
 16        (2)  Advertising  and  marketing of prearrangement sales contracts is per-
 17    mitted provided that:
 18        (a)  The seller clearly identifies himself and his product.
 19        (b)  The seller shows his certificate of authority  a  current  and  valid
 20        license   as  provided in section 54-1132, Idaho Code. If the marketing is
 21        by telephone, the seller must possess a current and valid license and dis-
 22        close his certificate of authority the license number.
 23        (c)  The seller makes an appointment with the  prospective  buyer  if  the
 24        meeting is at a place other than the seller's place of business.
 25        (3)  Advertising  and  marketing of prearrangement sales contracts is per-
 26    mitted provided that any contract seller shall not:
 27        (a)  Directly or indirectly call upon  or  employ  any  agent,  assistant,
 28        employee,  independent contracting person or any other person to call upon
 29        individuals or persons in hospitals, rest homes, or  similar  institutions
 30        for the purpose of soliciting prepaid contracts for making funeral or cem-
 31        etery or final disposition arrangements without first having been specifi-
 32        cally requested to do so by such person or by his next of kin.
 33        (b)  Solicit for dead human bodies for the purpose of providing funeral or
 34        cemetery  services,  final disposition, or cemetery or funeral merchandise
 35        when such solicitation occurs where death is reasonably pending  or  after
 36        death.
 37        (c)  Solicit or accept or pay any consideration for recommending specified
 38        persons to cause a dead human body to be provided funeral or cemetery ser-
 39        vices  or funeral or cemetery merchandise, or the services of a crematory,
 40        mausoleum or cemetery except where such arrangement is subject to  a  pre-
 41        paid contract.
 42        (d)  Be involved in solicitation which comprises an uninvited invasion of
 43        personal  privacy at the personal residence of a person unless the solici-
 44        tation has been previously and expressly requested by the  person  solici-
 45        ted.
                                                                        
 46        SECTION  12.  That Section 54-1137, Idaho Code, be, and the same is hereby
 47    amended to read as follows:
                                                                        
 48        54-1137.  SUBSTITUTIONS -- MERCHANDISE, SERVICES OR PROVIDER. A.(1) If the
 49    particular merchandise or service specified in the contract is unavailable  at
 50    the  time  of  delivery, the funeral establishment or crematory represented by
 51    the seller shall furnish merchandise and services  similar  in  style  and  at
                                                                        
                                           9
                                                                        
  1    least equal in quality of material and workmanship.
  2        B.(2)  The evaluation of quality shall be based on objective criteria.
  3        C.(3)  The person making arrangements for the funeral of the contract ben-
  4    eficiary  shall  choose  the  goods and/or services to be substituted and this
  5    choice must be reasonable based on the standards in subsections A  (1)  and  B
  6    (2) of this section.
  7        D.(4)  If the funeral establishment or crematory represented by the seller
  8    is  unable  to  provide merchandise and services or acceptable substitute mer-
  9    chandise or services under the terms of the contract, then the person  respon-
 10    sible  for arrangements for the funeral of the contract beneficiary may choose
 11    another provider and the funds in the trust shall be used to pay for the  mer-
 12    chandise and services of the substitute provider.
                                                                        
 13        SECTION  13.  That Section 54-1138, Idaho Code, be, and the same is hereby
 14    amended to read as follows:
                                                                        
 15        54-1138.  ENFORCEMENT PENALTY -- DISCLOSURE  OF  CONTRACTS  UPON  SALE  OF
 16    BUSINESS.  (1) Sections 54-1129 through 54-1143, Idaho Code, shall be enforced
 17    by the Idaho state board of  morticians,  or  by  the  Idaho  state  board  of
 18    cemeterians, depending upon whether the seller is a mortician/funeral director
 19    or  cemeterian,  who  shall  have authority to promulgate rules to enforce the
 20    provisions.
 21        (2)  Any person violating  the  provisions  of  sections  54-1129  through
 22    54-1143,  Idaho Code, shall be guilty of a misdemeanor unless such act is pun-
 23    ishable as a felony elsewhere under law.
 24        (3)  No funeral service or funeral merchandise  provider,  be  it  funeral
 25    home  or  cemetery  or third party seller, establishment or crematory shall go
 26    out of business or sell a substantial part or all of its assets to  any  other
 27    person or firm without first disclosing in writing the full particulars of all
 28    prearrangement sales contracts entered into by such seller its agents, includ-
 29    ing  the  date  of  such contract, the purchaser thereof, the beneficiary, the
 30    amount of the trust, the name and location of trustee, and the merchandise  or
 31    services to be provided under the terms of the contract.
                                                                        
 32        SECTION  14.  That Section 54-1142, Idaho Code, be, and the same is hereby
 33    amended to read as follows:
                                                                        
 34        54-1142.  AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL  PLAN.  (1)  If  the
 35    decedent  has  not  made  a  prearranged  funeral plan as set forth in section
 36    54-1139, Idaho Code, the right to control the disposition of the remains of  a
 37    deceased person vests in, and devolves upon the following in the order named:
 38        (a)  The  person designated in a written document executed by the decedent
 39        and acknowledged in the same manner as required for instruments  conveying
 40        real  property,  and  subject to such limitations, restrictions, or direc-
 41        tions, as may be set forth in such document;
 42        (b)  The person designated as agent under a durable power of attorney  for
 43        health  care executed by the decedent, unless such durable power of attor-
 44        ney for health care contains  express  and  clear  language  denying  such
 45        right;
 46        (c)  The  person designated in a durable power of attorney executed by the
 47        decedent, if such power of attorney contains express  and  clear  language
 48        granting such right to the agent named in such power of attorney;
 49        (d)  The competent surviving spouse of the decedent;
 50        (e)  A majority of the competent surviving adult children of the decedent,
 51        provided  that  less  than one-half (1/2) of the competent surviving adult
                                                                        
                                           10
                                                                        
  1        children shall be vested with the right to control the disposition of  the
  2        remains of the decedent if they have used reasonable efforts to notify all
  3        other  competent surviving adult children of their instructions to dispose
  4        of the decedent's remains and are not aware of  any  opposition  to  those
  5        instructions on the part of more than one-half (1/2) of all competent sur-
  6        viving adult children;
  7        (f)  The  competent  surviving parents or parent of the decedent, provided
  8        that if one (1) of the competent surviving parents is absent, the  remain-
  9        ing  competent  surviving parent shall be vested with the right to control
 10        the disposition of the remains of the decedent  after  reasonable  efforts
 11        have  been made and are unsuccessful in locating the absent competent sur-
 12        viving parent;
 13        (g)  The person appointed by a court of competent jurisdiction as the per-
 14        sonal representative or administrator of the estate of the decedent;
 15        (h)  The person nominated as the personal representative of the estate  of
 16        the decedent in the will of the decedent;
 17        (i)  The  competent  adult  person or persons entitled to inherit from the
 18        decedent under the intestate  succession  laws  of  the  state  of  Idaho,
 19        respectively in the next degree of kinship, provided that if there is more
 20        than  one  (1) competent surviving adult person of the same degree of kin-
 21        ship, the majority of those persons, and provided further that  less  than
 22        the  majority  of  competent surviving adult persons of the same degree of
 23        kinship shall be vested with the right to control the disposition  of  the
 24        remains  of  the decedent if those persons have used reasonable efforts to
 25        notify all other competent surviving adult persons of the same  degree  of
 26        kinship of their instructions to dispose of the decedent's remains and are
 27        not  aware of any opposition to those instructions on the part of one-half
 28        (1/2) or more of all competent surviving adult persons of the same  degree
 29        of kinship.
 30        (2)  If any person to whom the right of control has vested pursuant to the
 31    foregoing  has  been  charged  with first or second degree murder or voluntary
 32    manslaughter in connection with the decedent's death, and  those  charges  are
 33    known to the mortician or funeral director or cemetery authority, the right of
 34    control  is relinquished and passed on to the next qualifying person as listed
 35    above as if the charged person did not exist; provided however,  that  if  the
 36    charges against such person are dropped, or if such person is acquitted of the
 37    charges, the right of control is returned to the person.
 38        (3)  For purposes of this section:
 39        (a)  "Adult"  means  an  individual  who  is eighteen (18) years of age or
 40        older;
 41        (b)  "Child" means a natural or adopted child of the decedent;
 42        (c)  "Competent" means the individual has not been declared incompetent by
 43        a court of law, or who has been declared competent by a court of law after
 44        a prior declaration of incompetence;
 45        (d)  "Durable power of attorney" means a power of  attorney  described  in
 46        section  15-5-501,  Idaho  Code, or any similar document properly executed
 47        under the laws of another jurisdiction; and
 48        (e)  "Durable power of  attorney  for  health  care"  means  the  document
 49        described  in  chapter  45,  title 39, Idaho Code, or any similar document
 50        properly executed under the laws of another jurisdiction;
 51        (f)  "Will" means any testamentary device which is valid under  the  Idaho
 52        probate  code,  including, but not limited to, sections 15-2-503, 15-2-504
 53        and 15-2-506, Idaho Code, whether or not originally executed in, or  under
 54        the laws of, the state of Idaho.
 55        (4)  (a) A   cemetery  authority,  or  a  licensed  mortician  or  funeral
                                                                        
                                           11
                                                                        
  1        director, or a licensed hospital or its authorized personnel,  may  permit
  2        or  assist in, and a physician may perform, an autopsy of any remains of a
  3        decedent in its custody:
  4             (i)   If the decedent, prior to his death, authorizes an  autopsy  in
  5             his will or in another written instrument, including, but not limited
  6             to, a durable power of attorney for health care; or
  7             (ii)  Upon   the  receipt  of  a  written  authorization  signed  by,
  8             telegrammed from, or received by facsimile transmission from, a  per-
  9             son  representing himself to be the person who is entitled under this
 10             section to control the disposition of the remains of the decedent, or
 11             to be a coroner or any other duly authorized public officer; or
 12             (iii) Upon the receipt of an oral  authorization  obtained  by  tele-
 13             phone,  and recorded on tape or other recording device, from a person
 14             representing himself to be the person who is entitled under this sec-
 15             tion to control the disposition of the remains of the decedent, or to
 16             be a coroner or any other duly authorized public officer.
 17        (b)  A cemetery authority, or a licensed mortician or funeral director, of
 18        or a licensed hospital or its authorized personnel, is not liable for per-
 19        mitting or assisting, and a physician is not  liable  for  performing,  an
 20        autopsy  pursuant  to  the authorization provided in paragraph (a) of this
 21        subsection unless he has actual notice that such representation is  untrue
 22        at  the  time the autopsy is performed. If such authorization is contained
 23        in a will, the autopsy may be performed regardless of the validity of  the
 24        will  in  other  respects  and  regardless  of whether the will may not be
 25        offered for, or admitted to, probate until a later date.
 26        (c)  This subsection shall not authorize the obtaining of an oral authori-
 27        zation by telephone, recorded on tape or other recording device,  for  the
 28        autopsy  of  a deceased person if it is made known to the physician who is
 29        to perform the autopsy that the deceased person was, at the  time  of  his
 30        death, a member of a religion or group which opposes autopsies.

Statement of Purpose / Fiscal Impact


                      STATEMENT OF PURPOSE
                                
                            RS 15376

     Amending section 54-1104, Idaho Code, to allow cemetery
authorized agents to sell vaults; amending section 54-1109, Idaho
Code to add requirements for arranging and conducting funeral
services for mortician license; amending section 54-1112, Idaho
Code to increase time allowed for practice as a trainee; deleting
section 54-1119, Idaho Code; amending sections 54-1129, 54-1130,
54-1131, 54-1132, 54-1133, 54-1134, 54-1136, 54-1137, 54-1138 to
clarify the sale of funeral merchandise and funeral services and
clarify life insurance.  These changes were necessary to protect
the public and clarify who can sell funeral merchandise and
services; amending 54-1142, Idaho Code to add morticians to those
in authority in absence of prearranged funeral plans.


                          FISCAL NOTE

     There is no fiscal impact on general or dedicated funds.




CONTACT
Name:     Rayola Jacobsen
Agency:   Occupational License, Bureau
Phone:    334-3233


STATEMENT OF PURPOSE/FISCAL NOTE                              H 540