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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
]]]] 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
3
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
4
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
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