MortSci 2012
Massachusetts Funeral Law
Disclaimer: While every effort was made to ensure the accuracy and completeness of the Funeral Laws and regulations available on the State’s website, the documents are not official, and the state agencies preparing this website and the Compiler are not responsible for any errors or omissions which may occur in these files. Only the current published volumes of the States Laws are considered valid
Massachusetts
239 CMR 3.00: Registration Requirements; Standards of Business and Professional Practice 3.01: Definitions For purposes of 239 CMR 3.00 through 239 CMR 5.00, the following terms shall have the following meanings: Apprentice Embalmer - means any individual engaged in learning the practice of embalming under the instruction and personal supervision of a duly registered embalmer; provided that no individual shall serve as an apprentice embalmer until he has been registered as such by the Board pursuant to 239 CMR 3.02. Board - means the Massachusetts Board of Registration in Embalming and Funeral Directing. Embalmer - means any individual engaged, or holding himself or herself out as engaged, in the business, practice, science, or profession of embalming, whether on his or her own behalf or in the employ of a registered and licensed funeral director. Funeral Director - means any individual engaged, or holding himself or herself out as engaged, in the business, practice or profession of funeral directing. Licensed Funeral Establishment - means a fixed place or establishment owned or maintained by a person, partnership, corporation, association or other organization which has been duly registered by the Board pursuant to M.G.L. c. 112, ยง 84 and which is located, constructed, equipped and operated for the purpose of providing sanitary handling, preparation, disposition and care of dead human bodies. Person - means an individual; a corporation; a partnership; a limited liability company or foreign limited liability company as defined in M.G.L. c. 156C, ยง 1; a registered limited liability partnership or foreign registered limited liability partnership as defined in M.G.L. c. 108A, ยง 1; a society; an association; an organization; or any other business entity, however named. Profession and Business of Embalming and Funeral Directing - includes, but shall not be limited to, the sale or provision of any of the following goods or services: (a) Consulting with members of the general public about, and/or making arrangements concerning the disposition of human remains, including arrangements for cremation for compensation; (b) Removing a human body from the place of death; (c) Transporting human remains; (d) Embalming;
(e) Performing restorative and cosmetic work on human remains, including hairdressing; (f) Dressing, and retail sale of clothing for use in dressing, human remains; (g) Casketing of human remains; (h) sale of caskets, either at retail or at wholesale, and/or rental of caskets to the general public; (i) Arranging for disposition of flowers used in funerals or funeral services; (j) Making arrangements for obituaries and death notices in newspapers, radio and television; (k) Making cemetery, cremation and/or anatomical gift arrangements at the request of the decedent or the decedent's family; (l) Providing hearses, flower vehicles, limousines and sedans in connection with a funeral; (m) Arranging for religious services and clergy at the interment of human remains; (n) Providing assistants during visiting hours and at the funeral service, and for other funeral service related functions and responsibilities; (o) Securing and processing required documents, such as death certificates, burial/transfer permits, certified copies of death certificates, and visas for foreign shipment of human remains; (p) Making arrangements with medical examiners; (q) Providing acknowledgement cards, register books, local and long distance telephone messages and telegrams in connection with a funeral; (r) Preparing, negotiating or executing any pre-need funeral contract, or receiving, controlling or managing any funds tendered as payment for the funeral goods and/or services identified in such a pre-need funeral contract, as defined in 239 CMR 4.00; or (s) Engaging in such other activities as are considered to be a part of the business, practice, science or profession of embalming or funeral directing, as commonly practiced. Registered Funeral Director - means any funeral director registered with the Board pursuant to M.G.L. c. 112, ยง 83. Registered Certified Funeral Director - means a funeral director registered with the Board pursuant to M.G.L. c. 112, ยง 83 and licensed by a city or town pursuant to M.G.L. c. 114, ยง 49, who is employed on a full-time basis at a licensed funeral establishment, but who does not hold a 10% ownership interest in a licensed funeral establishment as set forth in 239 CMR 3.02(7)(a). Registered Licensed Funeral Director - means a funeral director registered with the Board pursuant to M.G.L. c. 112, ยง 83 and licensed by a city or town pursuant to M.G.L. c. 114, ยง 49, who holds an ownership interest of at least ten percent in one or more licensed funeral establishments as set forth in 239 CMR 3.02(7)(a).
3.02: Registration Requirements and Examinations (1) Registration as Apprentice Embalmer. Any individual desiring to become an apprentice embalmer shall make application to the Board on a form provided for that purpose. Said application shall contain all of the following information: (a) Satisfactory written proof that the applicant is of good moral character; (b) Satisfactory written proof that the applicant holds a high school diploma or its equivalent; (c) Satisfactory written proof that the applicant is or will be employed on a full-time basis by only one sole proprietorship, partnership, corporation, association, limited liability partnership, limited liability company, or other business entity which operates one or more duly licensed funeral establishments in Massachusetts; (d) The name and address of the sole proprietorship, partnership, corporation, association, limited liability partnership, limited liability company, or other business entity which employs or will employ the applicant; (e) The name and funeral director's registration number of the registered licensed funeral director who serves as chief executive officer or chief operating officer of the sole proprietorship, partnership, corporation, association, limited liability partnership, limited liability company, or other business entity which employs the applicant; (f) The name and registration number of the registered embalmer or registered funeral director to whom the applicant will be registered, and who will be responsible for providing instruction and direct personal supervision of the applicant's activities as an apprentice embalmer at all times; and (g) A check or money order, made payable to the Commonwealth of Massachusetts, in the amount of the registration fee as determined by the Executive Office of Administration and Finance pursuant to M.G.L. c. 7, ยง 3B. (2) Registration as an Embalmer. Any individual desiring to become a registered embalmer shall make application to the Board on a form provided for that purpose. Said application shall contain written proof satisfactory to the Board that: (a) The applicant is eighteen years of age or over; (b) The applicant is of good moral character; (c) The applicant has a high school diploma or its equivalent; (d) The applicant has graduated from a school or program of instruction in mortuary science of not less than nine months duration which, as of the date of his or her graduation, meets the accreditation requirements of the American Board of Funeral Service Education, or its equivalent as determined by the Board; (e) The applicant has served as a duly registered apprentice embalmer for a period of not less than two years under the instruction and personal supervision of a duly registered embalmer or funeral director; (f) The applicant has, during the period of service as a registered apprentice embalmer required under 239 CMR 3.02(2)(e), personally embalmed not less than 50 dead human bodies; and (g) The applicant has achieved a passing grade on the embalmer's registration examination prescribed by the Board.
Said application shall be accompanied by a check or money order, made payable to the Commonwealth of Massachusetts, in the amount of the registration fee as established by the Executive Office of Administration and Finance pursuant to M.G.L. c. 7, ยง 3B. (3) Registration as a Funeral Director. Any individual who desires to become registered as a funeral director shall make application to the Board on a form provided for that purpose. Said application shall be accompanied by written proof satisfactory to the Board that: (a) The applicant is 18 years of age or over; (b) The applicant is of good moral character; (c) The applicant is presently registered with the Board as a duly registered embalmer in good standing, or is the surviving spouse of a duly registered licensed funeral director; (d) The applicant has a high school diploma or its equivalent; (e) The applicant has graduated from a school or program of instruction in mortuary science of not less than nine months duration which, as of the date of his or her graduation, met the accreditation requirements of the American Board of Funeral Service Education, or the equivalent thereof as determined by the Board; and (f) The applicant has achieved a passing grade on the funeral director registration examination prescribed by the Board. Said application shall be accompanied by a check or money order, made payable to the Commonwealth of Massachusetts, in the amount of the registration fee established by the Executive Office of Administration and Finance pursuant to M.G.L. c. 7, ยง 3B. (4) Frequency of Examinations. Examinations for registration as an embalmer shall be held at least two times per year at the discretion of the Board. Examinations for registration as a funeral director shall be held at least two times per year at the discretion of the Board. The Board shall give reasonable advance notice of the dates established for these examinations. (5) Application Deadline. Applications for examinations for registration as an embalmer or as a funeral director shall not be accepted unless they are filed with the Board at least 30 days prior to the examination date established by the Board. (6) Status as Registered Certified Funeral Director. Any registered funeral director who desires to become a registered certified funeral director shall be granted such status by the Board, provided that he or she shall first appear before the Board, together with a duly-authorized representative of his or her employer (who shall be a registered licensed funeral director) and submit satisfactory written proof that: (a) The applicant is employed on a full-time basis by his or her employer; and (b) The applicant's name will not be used in any form of advertising for his or her employer. The Board shall then grant the applicant the status of registered certified funeral director. Such status shall remain in effect as long as the applicant remains a full-time employee of his or her employer. If that registered certified funeral
director leaves that employment, he or she shall report that fact, in writing, to the Board, at which time his or her status as a registered certified funeral director shall be terminated. The status of registered certified funeral director is not transferable. (7) Status as Registered Licensed Funeral Director. Any registered funeral director who desires to become a registered licensed funeral director shall be granted such status by the Board, provided that he or she shall first appear before the Board and submit satisfactory written proof of both of the following: (a) Proof that he or she holds an ownership interest of not less than 10% in the corporation, partnership or firm which holds the funeral establishment certificate for, and operates, the funeral establishment in question. Where the funeral establishment is operated by a corporation, the applicant must show that he or she owns at least 10% of the issued and outstanding stock of that corporation.Where the funeral establishment is operated by a partnership, the applicant must show that he or she owns at least a 10% share of that partnership; and (b) Proof that he or she has been continuously employed in a funeral establishment by said corporation, partnership or firm. A letter presented by the owner or majority stockholder of said corporation, partnership or firm showing such employment shall be sufficient to meet this requirement.
3.03: Employment of Apprentice Embalmers A licensed funeral establishment may employ apprentice embalmers to prepare or assist in the preparation of dead human bodies for burial, cremation or other final disposition, provided that all of the following conditions are met: (1) Each apprentice embalmer so employed is duly registered with the Board pursuant to 239 CMR 3.02; (2) Each apprentice embalmer is employed on a full-time basis by only one sole proprietorship, partnership, corporation, association, limited liability partnership, limited liability company, or other business organization which operates one or more duly licensed funeral establishments in the Commonwealth of Massachusetts; (3) Each apprentice embalmer so employed is registered to a duly registered embalmer or registered funeral director employed by the same entity which employs that apprentice embalmer. The apprentice embalmer shall work at all times under the instruction and personal supervision of that registered embalmer or registered funeral director, who shall be held responsible for all acts or omissions of that apprentice embalmer which occur while that apprentice embalmer is registered to him or her; (4) The registered licensed funeral director who serves as the chief executive or chief operating officer of the sole proprietorship, partnership, corporation, association, limited liability partnership, limited liability company or other business organization which employs that apprentice embalmer shall also be held responsible for all acts or omissions of that apprentice embalmer which occur in the course of that apprentice embalmer's employment with that entity; (5) Each apprentice embalmer so employed complies with any and all applicable requirements of M.G.L. c. 112, §§ 82 through 87, 239 CMR 3.00 through 5.00, and any and all other federal, state and local laws and regulations pertaining to the business or profession of embalming and funeral directing;
(6) The entity which employs an apprentice embalmer notifies the Board, in writing, of any change in the identity of the registered embalmer or funeral director to whom that apprentice embalmer is registered, and of any change in the name and address of the licensed funeral establishment(s) in which each such apprentice embalmer works; (7) If there is a change in the employment status of any such apprentice embalmer, the entity which employed that apprentice embalmer submits to the Board a written affidavit indicating the length of time that the apprentice embalmer was employed as such; and (8) The total number of apprentice embalmers employed by any one entity does not exceed one apprentice embalmer for each fifty cases, or fraction thereof, for which funeral goods or services were provided by that entity during the preceding calendar year. Upon the request of the Board, or a duly authorized representative thereof, a licensed funeral establishment shall furnish to the Board satisfactory written proof of employment for any apprentice embalmer employed by said funeral establishment and registered under 239 CMR 3.03.
3.04: Ownership of Funeral Establishments; Disclosure of Ownership (1) A corporation, limited liability company, partnership, limited liability partnership, association or other business entity may engage in the profession and business of embalming and funeral directing only if: (a) a controlling interest in said entity is held by one or more registered licensed funeral directors; (b) the business of that entity is under the direction and control of a registered licensed funeral director, who shall be held responsible for ensuring that the entity complies with all applicable laws and regulations governing embalming and funeral directing; and (c) if that entity is a limited liability company or limited liability partnership, that entity meets the insurance requirements of 239 CMR 3.16. (2) Display of Ownership Information. (a) Every licensed funeral establishment shall display on a sign, located either immediately outside or immediately inside the main entrance, all of the following ownership information: 1.
The name of every registered licensed funeral director who holds at least a 10% ownership interest in the corporation, limited liability company, partnership, limited liability partnership, association, organization, or other business entity which operates said funeral establishment; and
2.
The names of any and all corporations, limited liability companies, partnerships, or limited liability partnerships which either directly or indirectly hold an ownership interest of 10% or more in the corporation, limited liability company, partnership, limited liability partnership, association or other business entity which operates that funeral establishment.
The lettering on said signs shall be not less than one inch in height.
(b) Where an ownership interest of 10% or more in a licensed funeral establishment is held, either directly or indirectly, by one or more corporations, limited liability companies, partnerships or limited liability partnerships, the name, complete headquarters address and telephone number of each such corporation, limited liaiblity company, partnership or limited liability partnership shall also be listed on the business letterhead stationery, invoices, and all advertising materials used by said funeral establishment.
3.05: Inspections; Powers and Duties of Investigators (1) A Board investigator shall have the right to enter into and inspect any licensed funeral establishment at any time during regular business hours for the purpose of inspecting such records and conducting such investigations as may reasonably be necessary to ensure that that funeral establishment, and its agents or employees, are in compliance with all applicable requirements of M.G.L. c. 112, §§ 82 through -87, 239 CMR 3.00 through 5.00, and all other applicable federal, state and local laws or regulations. (2) A Board investigator may visit any place where the operation of embalming is being conducted or where a funeral is in process of being directed, provided, however, that such visitation shall be made in a respectful and decorous manner. (3) A Board investigator shall in no way be connected with the work or business of an Embalmer or Funeral Director in any establishment. (4) Interference with or obstruction of the Board or any investigator authorized by the Board in the performance of their respective duties by a registered person, shall be considered sufficient cause for suspension or revocation of such registration.
3.06: Establishments (1) Every licensed funeral establishment shall: (a) Be accessible to individuals with disabilities to the extent required by all applicable provisions of the Americans with Disabilities Act (42 U.S.C. 12101 et seq., and 28 CFR Part 35) and by all applicable provisions of any other federal or state laws and regulations; (b) Include a chapel sufficiently large and sufficiently equipped for the conduct of an average funeral service; such chapel shall contain a minimum of 300 square feet of floor space. (c) Not contain any living quarters on the floor used for the funeral establishment without the prior written permission of the Board. Said permission shall not be granted unless the applicant provides satisfactory written assurances that such living quarters will not be used for the conduct of any funeral or visitation, or for the provision of any food or refreshments before, during or after a funeral or visitation; (d) Include a preparation room equipped with sanitary flooring, a flush rim sink, floor drain and ventilation, a reduced pressure backflow preventer or air gap separation at the meter or property line, and the necessary equipment, instruments and supplies for the preparation and embalming of dead human bodies for burial and transportation. Such
preparation room and equipment shall comply with all applicable requirements of 239 CMR 3.07 and 239 CMR 3.12, and all applicable requirements of other federal, state and local laws, including but not limited to all applicable regulations of the United States Occupational Safety and Health Administration; (e) Contain such toilets, lavatories and other sanitary facilities for men and women as may be required by applicable federal, state and local laws and regulations; (f) Where the establishment consists of more than one building or more than one lot of land, said buildings and/or lots shall be adjoining and connecting (this rule shall not apply to any funeral establishment opened prior to December 3, 1943 unless there has been a change of address for said establishment since that date); and (g) Removals of dead human bodies into funeral establishments established after December 1, 1949 shall be completely concealed from public view. (2) No funeral establishment certificate shall be granted to any funeral establishment unless the owners of said establishment certify, in writing and under the pains and penalties of perjury, that said funeral establishment is in compliance with all applicable requirements of the Americans with Disabilities Act (42 U.S.C. 12101, et seq., and 28 CFR Part 35) and all applicable requirements of the United States Occupational Safety and Health Administration.
3.07: Preparation Room (1) Every licensed funeral establishment shall have at least one preparation room for the preparation for burial or other disposition of all dead human bodies. Said preparation room shall be at least 12' x 14' in size, and shall be strictly private at all times. (2) No person shall be allowed in the preparation room while a dead human body is being prepared for burial or other final disposition except persons duly registered or licensed by the Board pursuant to M.G.L. c. 112, §§ 82 through 87, public officials engaged in the discharge of their official duties, students who are duly enrolled in a recognized mortuary school, duly licensed nurses employed in the case, and members of the decedent's immediate family or persons authorized by them in writing. The provisions of this paragraph shall be printed on a placard and conspicuously displayed or posted on the exterior of each door to each preparation room in the funeral establishment. Failure to post said placards shall constitute grounds for disciplinary action by the Board. (3) Each preparation room in a funeral establishment shall be equipped with a tile or cement floor. Rubber tile, rubber matting or linoleum may be used provided that it is not less than 3/16" thick, and that, if it is used as a floor covering, it is laid over a floor constructed of cement or other waterproof substance. Wooden floors overlaid with metal or other waterproof materials may be accepted in lieu of cement floors. (4) Each preparation room shall also contain the following: one standard-type sanitary operating table; one flush-rim sink, one floor drain; one reduced pressure or air gap separation backflow prevention device located at the water meter or property line; one sanitary waste receptacle which is opened by a foot pedal; and a standard-type instrument sterilizer.
(5) Every preparation room shall comply with all applicable state and local laws, regulations and ordinances regarding ventilation and, in the absence of such laws, shall be ventilated so as to ensure that no deleterious odors are allowed to remain therein and that the odors therefrom are not permitted to enter into any other part of the funeral establishment or any part of any adjoining premises. (6) An embalmer's kit shall contain, at a minimum, all items which are reasonably necessary for proper embalming and/or preparation of a dead human body for burial, cremation or other final disposition in light of currently accepted standards of professional practice. (7) All equipment which is used to aspirate or remove blood or other potentially infectious materials, as defined in 239 CMR 3.12, or which comes into contact with blood or other potentially infectious materials, shall be maintained and used in a manner which prevents conversion of blood or other potentially infectious materials to aerosol or airborne particles.
3.08: Medical Examiner (1) Every Embalmer and Funeral Director shall report to the Medical Examiner all deaths which he, as an authorized public official, should investigate. Such deaths include all deaths believed to have been caused by injury or trauma (including resulting septicemia); all deaths believed to have been caused by the action of chemical (i.e., drugs or poisons), thermal or electrical agents; all deaths following abortions; all deaths believed to have resulted from occupational injuries or infections; all sudden deaths of persons not disabled by a recognized disease; and all deaths of persons found dead. Persons registered by the Board shall consult the medical examiner of the district prior to making any removal when in doubt. (2) No embalming fluid or any substitute therefor shall be injected into the body of any person supposed to have died by violence or under suspicious circumstances without prior authorization from the Medical Examiner of the state in which the death occurs.
3.09: Control Over Arrangements and Disposition of Human Remains Every registered embalmer, registered funeral director, and licensed funeral establishment shall comply with the following rules with respect to control over funeral arrangements and disposition of human remains: (1) If a licensed funeral establishment is a party to a pre-need funeral services contract, as defined in 239 CMR 4.01, for the benefit of the deceased person, and said contract is still in effect at the time of that person's death, the terms of that contract shall control the nature of the funeral goods and services to be provided, the manner in which funeral services are to be conducted for the deceased, and the final disposition of the deceased person's remains to the full extent provided in that contract. No licensed funeral establishment, nor any of its agents or employees, may cancel or materially alter any of the arrangements specified in that contract, even if requested to do so by a member of the deceased person's family or any other person, unless: (a) Compliance with the terms of the original contract would result in a violation of any applicable federal, state or local law or regulation; or
(b) The funeral establishment is ordered to do so by a court of competent jurisdiction. (2) Where there is no pre-need funeral services contract with the licensed funeral establishment in effect at the time of death for the benefit of the deceased person, or to the extent that any such contract does not fully specify the nature of the funeral arrangements to be provided, said funeral establishment and its agents or employees shall give effect first to any wishes of the deceased person regarding the nature of the funeral goods and services to be provided, the manner in which funeral services are to be conducted, and/or the final disposition of the deceased person's remains, which have been expressed in any written document which was signed by the deceased person in the presence of a witness. In the absence of an order from a court of competent jurisdiction to the contrary, said written document shall be sufficient legal authorization for implementation of the arrangements specified therein. (3) To the extent that there is no pre-need funeral services contract in effect at the time of death for the benefit of the deceased person, and no other valid written document indicating the wishes of the deceased person with respect to the nature of the funeral goods and services to be provided, the manner in which funeral services are to be conducted, or the final disposition of the deceased person's remains, the funeral establishment and its agents or employees shall follow the directions of the deceased person's surviving kin, in the following order of priority, which is specified in M.G.L. c. 113, ยง 8: (a) the surviving spouse of the deceased; (b) the surviving adult children of the deceased; (c) the surviving parent(s) of the deceased; (d) the surviving brother(s) or sister(s) of the deceased; (e) the guardian of the person of the deceased at the time of his or her death; (f) any other person authorized or obligated by law to dispose of the remains of the deceased.
3.10: Removal, Preparation and Transportation - Other General Requirements (1) For purposes of 239 CMR 3.10, the following terms shall have the following meanings: (a) Remove or removal shall mean the moving of a dead human body from a home, hospital, or other place of death to a licensed funeral establishment for the purpose of preparing it for burial or cremation. (b) Ship or shipment shall mean to convey a dead human body by train, boat, airplane, express or motor freight, or other means of transportation, either within, into, or out of the Commonwealth of Massachusetts after said body has been prepared for burial or cremation. (c) Transport shall mean to convey a dead human body in a closed hearse or other vehicle used exclusively for the purpose of transporting dead human bodies or funeral equipment, either within, into or out of Massachusetts for any purpose other than that referred to in the definition of remove or ship in 239 CMR 3.10(1)(a).
(2) In order to recognize the inherent dignity of the human body and protect the public health, sufficient preservation and/or disinfection and refrigeration shall be applied to each dead human body to guarantee temporary protection against excessive decomposition. (3) Removals shall not be made from any place of death unless a death certificate or other appropriate death pronouncement form, signed by a duly licensed physician, the medical examiner or another person duly authorized by law to sign such certification forms, is in the possession of the funeral director. (4) No licensed funeral establishment, nor any agent or employee thereof, shall handle, move or transport any dead human body except under the supervision of, and with the personal attendance in the vehicle of, a person registered by the Board. (5) No person registered by this Board or his agent or employee shall remove, transport or otherwise convey a dead human body except in a closed hearse or other vehicle used exclusively for the purpose of transporting dead human bodies within the Commonwealth of Massachusetts. Said vehicles shall be designed or equipped in such a manner as to ensure that any dead human body transported therein is concealed from public view. Said vehicles shall be registered and designated as hearses by the Registry of Motor Vehicles. A person duly registered by this Board shall be in personal attendance in the vehicle during any removal, transportation or conveyance of a dead human body. (6) Vehicles registered and equipped as hearses and bearing hearse plates may be used only for removal or transportation of dead human bodies, transportation of flowers, transportation of funeral equipment, transportation of a clergyperson or other funeral service officiant if such is the custom of the deceased, and/or transportation of other funeral establishment personnel. (7) If a body has not been embalmed, and the body is to be buried or cremated within the Commonwealth of Massachusetts within 50 hours after death, said body shall be prepared by a registered embalmer. Said embalmer shall thoroughly wash, disinfect and sanitize said body; close all orifices with treated absorbent cotton; envelop the entire body with clean sheeting or with provided clothing; and take any other appropriate steps necessary to ensure that there will be no offensive leakage or odors from the body prior to burial, cremation or other final disposition. (8) If a body has not been embalmed, and said body is to be buried or cremated within the Commonwealth of Massachusetts, but said burial or cremation will not occur within 50 hours after death, said body shall be prepared by a registered embalmer as required by 239 CMR 3.10(7), and shall also be placed in a refrigeration unit designed to accept dead human bodies and retard decomposition by maintaining temperatures between 34 and 39째F if such refrigeration equipment is reasonably available. (9) A body, once interred or placed in a receiving vault, shall not be transported or shipped from the cemetery where it lies unless it is encased in a hermetically sealed or air-tight casket, box or container. A body embalmed by a registered embalmer and placed in a receiving vault for not over 30 days shall be excepted from 239 CMR 3.10. (10) In all cases of cremation, a suitable casket or alternative container shall be used. If a casket is used, that casket may later be re-used as long as: (a) The casket is equipped with a removable liner or insert; (b) The removable liner or insert is completely removed and replaced with a new liner or insert after each use;
(c) No such casket is used or re-used after any non-removable portion of that casket has been soiled, stained or otherwise contaminated by or from any human remains placed therein, or has been placed within a rental casket insert; (d) The customer who rents or re-uses that casket has been informed, in writing, that the casket may have been used previously and that it will be reclaimed by the funeral establishment from which he or she has rented or obtained it immediately prior to final disposition of the deceased; and (e) The customer who rents or re-uses that casket has signed a written disclosure or authorization form verifying that he or she has received all of the information required by 239 CMR 3.10(10) in writing and that he or she authorizes the funeral establishment to use the removable liner or insert selected by him or her for the final disposition of the deceased.
3.11: Conduct of Funerals (1) All funerals conducted by a licensed funeral establishment shall be conducted under the direct supervision of a registered licensed funeral director or registered certified funeral director. A registered funeral director who is not also licensed or certified may assist in the conduct of a funeral, but only in the presence of a registered licensed funeral director or registered certified funeral director. (2) Removal, Viewing, Identification and Embalming Procedures. (a) When a licensed funeral establishment is called upon to remove a body and accept responsibility for it, said body shall be held at said funeral establishment, or at such other location as the Medical Examiner may direct, until such time as the body can be buried or cremated in accordance with applicable state or local laws. (b) A licensed funeral establishment which has accepted responsibility for the care of any dead human body may properly require that said body be viewed and identified by the next of kin or duly authorized legal representative of the deceased at said funeral establishment prior to any cremation, burial, medical school donation or anatomical gift donation, if said body has not previously been viewed and identified by said next of kin or duly authorized legal representative elsewhere. (c) A licensed funeral establishment shall obtain written permission to embalm, or a written acknowledgment of the decision not to embalm, from the next of kin or the duly authorized legal representative of the deceased, for each dead human body which is placed under its care and for which it has accepted responsibility. Said permission or acknowledgment shall be obtained by a registered funeral director. (d) Where a dead human body is under the care of a licensed funeral establishment which has accepted responsibility for it, and said body is to be cremated, said funeral establishment shall also obtain written authorization for cremation of said body from the medical examiner, in addition to the normally-required physician certifications, prior to cremation of said body. Said authorization shall be obtained while said body is in the funeral establishment. (e) For purposes of 239 CMR 3.11(2)(a) through (d), all identifications, authorizations and permissions shall be obtained first from the decedent's next of kin, in the order of priority specified for anatomical gifts in M.G.L. c. 113, ยง 8. If none of the next of kin are available, said identifications, authorizations or permissions may then be obtained from the duly
authorized legal representative of the deceased, the individual designated as the health care proxy for the deceased pursuant to M.G.L. c. 201D, or the individual possessing a power of attorney for health care executed by the decedent. (3) Refreshments - In order to preserve the public health, no individual registered with the Board, or other agent or employee of any licensed funeral establishment, shall provide, handle or serve any food or liquid refreshments in connection with any burial or funeral. (4) Disposition of Unclaimed Cremains - Upon receipt of any cremated human remains, the licensed funeral establishment receiving such cremated remains shall contact the next of kin or duly authorized representative of the decedent who made the cremation arrangements. If, after a period of 180 days from the date of cremation, the cremated remains of a deceased person have not been claimed by the next of kin or the duly authorized representative of the decedent, the licensed funeral establishment shall send written notice, by certified mail, return receipt requested, to the next of kin or duly authorized representative of the decedent at their last known address as shown in the records of the funeral establishment. If, after an additional period of 60 days from the date on which that notice was mailed, the cremated remains still have not been claimed, the funeral establishment may dispose of the cremated remains as provided in M.G.L. c. 114, ยง 43M. The funeral establishment shall maintain a permanent written record identifying the site of final disposition.
3.12: Required Precautions Against Bloodborne and Other Pathogens (1) For purposes of 239 CMR 3.12, the following terms shall have the following meanings: (a) Blood - means human blood, human blood components, and products made from human blood. (b) Bloodborne Pathogens - means pathogenic microorganisms that are present in human blood and can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus (HBV) and human immunodeficiency virus (HIV). (c) Contaminated - means the presence or the reasonably anticipated presence of blood or other potentially infectious materials on an item or surface. (d) Contaminated Laundry - means laundry which has been soiled with blood or other potentially infectious materials. (e) Occupational Exposure - means actual or reasonably anticipated skin, eye, mucous membrane or parenteral contact with blood or other potentially infectious materials which results or may result from the performance of an employee's duties. (f) Other Potentially Infectious Materials - means: 1.
The following human body fluids: semen, vaginal secretions, cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva, urine, feces, any body fluid that is visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids;
2.
Any unfixed tissue or organ (other than intact skin) from a human (living or dead); and
3.
HIV-containing cell or tissue cultures, organ cultures, and HIV- or HBV-containing culture medium or other solutions, and blood, organs, or other tissues from experimental animals infected with HIV or HBV.
(g) Personal Protective Equipment - means specialized clothing or equipment worn by an employee for protection against a hazard. General work clothes not intended to function as protection against a hazard are not considered to be personal protective equipment. (h) Remove - means the moving of a dead human body from a home, hospital, or other place of death to a licensed funeral establishment for the purpose of preparing it for burial or cremation. (i) Ship or Shipment - means to convey a dead human body by train, boat, airplane, express or motor freight or other means of transportation either within, into or out of Massachusetts after said body has been prepared for burial or cremation. (j) Source Individual - means any individual, living or dead, whose blood or other potentially infectious materials may be a source of occupational exposure to the employee. Examples include, but are not limited to, hospital or clinic patients, clients in institutions for the developmentally disabled, trauma victims, clients of drug and alcohol treatment facilities, residents of hospices and nursing homes, human remains, and individuals who donate or sell blood or blood components. (k) Sterilize - means the use of a physical or chemical procedure to destroy all microbial life including highly resistant bacterial endospores. (l) Transport - means to convey a dead human body in a closed hearse or other vehicle used exclusively for the purpose of transporting dead human bodies and/or funeral equipment, either within, into or out of Massachusetts for any purpose other than that referred to in the definitions of remove or ship set forth in 239 CMR 3.12; (m) Universal Precautions - means an approach to infection control in which all human blood and certain human body fluids are to be treated as if known to be infectious for HIV, HBV and other bloodborne pathogens. (2) As part of their function of being "health care responsible", every embalmer or funeral director shall adopt all proper means to safeguard the public health, including but not limited to the use of "universal precautions" during the embalming or preparation of a body, as set forth in 239 CMR 3.12. (3) Every person, while engaged in removal of a dead human body from the place of death to a licensed funeral establishment, shall be provided with and shall use the following personal protective clothing and equipment to protect against exposure to bloodborne pathogens: (a) Disposable latex gloves shall be worn for barrier protection against contact with blood or other potentially infectious materials. Non-disposable autopsy, kevlar or rubber gloves shall be worn for additional protection if warranted. Nondisposable gloves shall be cleaned and carefully inspected for punctures, tears or other damage after each use. Damaged gloves, whether disposable or non-disposable, shall be replaced immediately. Other soiled clothing shall be removed before the removal of gloves. Gloves shall be carefully removed to avoid skin contact with the exterior of the gloves; and
(b) The body being removed shall be enclosed in a body bag or other suitable, sealed container which will prevent leakage or escape of blood or other potentially infectious materials during removal from the place of death to the licensed funeral establishment accepting responsibility for the care and preparation of said body. (4) Every person, while engaged in actually preparing a dead human body for burial or cremation, shall be provided with and shall use the following personal protective clothing and equipment to protect against exposure to bloodborne pathogens: (a)Disposable latex gloves shall be worn for barrier protection against contact with blood or other potentially infectious materials. Other soiled clothing or equipment shall be removed before the removal of gloves. Gloves shall be carefully removed to avoid skin contact with the exterior of the gloves. (b) Non-disposable autopsy, kevlar or rubber gloves shall be worn for additional protection if warranted. If nondisposable gloves are used, they shall be cleaned and carefully inspected for punctures, tears or other damage after each use. Damaged gloves shall be replaced immediately. Other soiled clothing or equipment shall be removed before the removal of gloves. Gloves shall be carefully removed to avoid skin contact with the exterior of the gloves. (c) Disposable face masks shall be worn for barrier protection against sprays of blood or other potentially infectious materials to the mouth or nose. Soiled masks shall be replaced immediately. (d) Goggles shall be worn for barrier protection against sprays of blood or other potentially infectious materials to the eyes and for vapor protection against exposure to formaldehyde. (e) Face shields shall be worn for barrier protection against sprays of blood or other potentially infectious materials to the face. (f) Gowns which are impervious to moisture, are washable or disposable, and are long-sleeved shall be worn for barrier protection against skin contact with chemicals, blood or other potentially infectious materials. Soiled gowns shall be replaced immediately. (g) Disposable head and shoe covers shall be worn for barrier protection against blood or other potentially infectious materials. (5) All instruments, appliances and equipment used in the preparation of a dead human body shall be used and maintained in a manner which prevents, insofar as is reasonably possible, conversion of blood or other potentially infectious bodily fluids or materials into aerosols or airborne particles. (6) Every funeral establishment shall ensure proper disposal of personal protective clothing and equipment. Disposable items contaminated with blood or other potentially infectious materials shall be placed immediately in an appropriately labeled disposal container and removed in accordance with applicable federal, state and local laws and regulations governing hazardous waste disposal. Nondisposable items contaminated with blood or other potentially infectious materials shall be placed immediately in an appropriately labeled laundry container. (7) No sheets or linens which have come in contact with a dead human body shall be re-used unless they have first been thoroughly laundered and disinfected. No other materials or supplies of any kind which have come in contact with a dead human body shall be used more than once. Contaminated laundry shall be handled as little as possible with a
minimum of agitation, shall be bagged or containerized at the location where it was used, and shall not be sorted or rinsed at the location of use. Contaminated laundry shall be placed and transported in bags or containers which are labeled or color-coded in accordance with the applicable requirements of the United States Occupational Safety and Health Administration. (8) All instruments, appliances and equipment used in the preparation of a dead human body shall be thoroughly cleansed and sterilized in accordance with all applicable state and federal laws and regulations, including but not limited to all applicable regulations of the United States Occupational Safety and Health Administration and the Massachusetts Department of Public Health, immediately at the conclusion of each individual case. (9) Each preparation room in a funeral establishment shall be equipped with proper and convenient receptacles for refuse, bandages, cotton and other waste materials and supplies, and all such refuse, bandages, cotton and other waste materials shall be disposed of in accordance with all applicable federal, state and local laws governing disposal of hazardous waste. (10) Whenever a dead human body is transported within, into or out of Massachusetts prior to being embalmed or otherwise prepared for burial or cremation, all persons engaged in the transportation of said body or who may come into physical contact with that body during transportation shall follow the precautions required by 239 CMR 3.12(3). (11) Whenever a dead human body is transported or shipped within, into or out of Massachusetts after being embalmed or otherwise prepared for burial or cremation, the use of disposable gloves shall be required only for persons who come into actual physical contact with the body itself. Said body shall be transported or shipped in a sealed casket, body bag or other appropriate sealed container which will prevent leakage or escape of blood or other potentially infectious materials during such shipment or transportation. (12) Notwithstanding the provisions of 239 CMR 3.12(1) through (11), where a body is dead of a disease which has been identified by the Massachusetts Department of Public Health or the Center for Disease Control as one which requires precautions above and beyond those required by 239 CMR 3.12(1) through (11), a licensed funeral establishment and its agents and employees shall follow such additional precautions as may be required or recommended by the Center for Disease Control with respect to said body. (13) In accordance with the regulations of the United States Occupational Safety and Health Administration (29 CFR 1910.1030), every embalmer or funeral director shall inform all workers performing tasks in and for any funeral establishment, including any trade embalmers or other workers who are not directly employed by that establishment, about bloodborne pathogen exposure risks associated with specific tasks, how to protect themselves and others from exposure, and the actions to be taken in the event of an exposure incident.
3.13: Code of Conduct and Professional Ethics (1) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall engage in, or hold any ownership interest in, any other business which is related to the disposition of human remains, including but not limited to any cemetery; crematorium; retail or wholesale casket, urn or vault sales or rental enterprise; monument sales enterprise; or other similar business.
(2) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall perform or offer to perform any function or service which falls within the scope of the "profession and business of embalming and funeral directing", as defined in 239 CMR 3.01, unless: (a) That function or service is or will be provided by or through one or more funeral establishments licensed by the Board; and (b) All advertising, marketing or public relations materials (including but not limited to all print or electronic media advertisements, business cards, letters, signs, stationery, etc.) used to advertise or promote the availability of that function or service indicate, in a manner reasonably calculated to attract the attention of the general public, that that function or service is or will be provided through one or more named funeral establishments which are licensed as such in Massachusetts by the Board. (3) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by a funeral establishment licensed by the Board, shall establish, maintain, own or operate any corporation, partnership, limited liability company, limited liability partnership, society, association or other business entity, however named, for the purpose of referring members of the general public to licensed funeral establishments in which he or she holds an ownership interest or is employed. (4) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by a funeral establishment licensed by the Board, shall make or cause to be made any representation which indicates that an organization or other entity which performs any function or service which falls within the scope of the "profession and business of embalming and funeral directing" as defined in 239 CMR 3.01 is a society, fund, trust or other not-for-profit organization or entity unless such organization or entity is, in fact, a not-for-profit organization or entity. (5) A person who is registered with the Board, or who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall not, either directly or through any other person acting with his or her express or implied knowledge or consent: (a) Solicit for human remains (except through general advertising), or give anything of value to anyone who solicits or refers any business to him or her or to the licensed funeral establishment in which he or she holds an ownership interest or is employed; or (b) Solicit or accept anything of value in exchange for recommending, referring any person to, or employing any business or service related to the disposition of human remains. (6) A person who is registered with the Board, or who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall not, either directly or through another person acting with his or her express or implied knowledge or consent, recommend, refer any person to, or employ any business or service related to the disposition of human remains if that business or service is owned, operated or controlled by one or more of his or her relatives. For purposes of 239 CMR 3.13(6), a relative is a person's spouse, parent, grandparent, step-parent, child, grandchild, step-child, brother, sister, half-brother, half-sister, son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, sister-in-law, niece, nephew, aunt or uncle.
(7) A person who is registered with the Board, or who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall not disclose confidential or private information about any member of any household or family which he or she serves, or comment on the condition of any dead human body entrusted to his or her care. (8) A person who is registered with the Board, or who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall not breach the confidence of a client, or engage in any other conduct adverse to the interests of that client based on information obtained in confidence. (9) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall engage in any unfair or deceptive business practice, misrepresent merchandise in any manner, deceptively alter merchandise labels, or knowingly attempt to induce any person to spend more money on funeral arrangements than is commensurate with the means of the person liable for such expense. (10) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall engage in any false, deceptive or misleading advertising or marketing practices. (11) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall make the rendering of professional services dependent upon the amount of money paid or the certainty of payment. (12) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall: (a) fail or refuse to give a general price list containing all information required by 15 CFR Part 453 to any person who requests one in person; or (b) fail or refuse to give out accurate information from that general price list, and any other readily available information requested, to any person who contacts that person or funeral establishment by telephone, to the extent required by 15 CFR Part 453. (13) No person who is registered with the Board as a funeral director, or who is employed in a funeral establishment licensed by the Board, shall fail or refuse to give an itemized written statement of funeral costs to any person making funeral arrangements or arranging for the shipment, transportation or other disposition of a deceased person, in accordance with the requirements of M.G.L. c. 112, ยง 84B. (14) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall refuse to provide funeral goods and services for any person, or refuse to make funeral arrangements for any person, because said person is, or is believed to be, infected with the human immunodeficiency (HIV) virus. (15) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall impose any additional fee or surcharge as a condition for
providing funeral goods or services, or making funeral arrangements, for any person because that person is, or is believed to be, infected with the human immunodeficiency (HIV) virus. (16) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall discriminate in any way against employees or present or prospective customers on the basis of race, color, religious creed, national origin, sex, sexual orientation, age, ancestry, marital status, status as a veteran or member of the armed forces, blindness, hearing impairment, or any physical or mental disability with respect to terms or conditions of employment or the availability, provision or performance of any function or service. (17) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall provide or offer to provide grief or bereavement counseling services unless: (a) The person actually providing such grief or bereavement counseling services is registered by the Board as a funeral director; or (b) The person actually providing such grief or bereavement counseling services is an independent contractor providing such services through an arms-length contractual agreement with one or more licensed funeral establishments, and is duly licensed by the Commonwealth as a psychiatrist, clinical psychologist, social worker, psychiatric nurse mental health specialist, or allied mental health professional. (18) No person who is registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall solicit, receive or agree to receive any fee, monetary compensation or other valuable consideration in exchange for referring a customer or member of a deceased person's family to any person who provides grief and bereavement counseling services. (19) Persons registered with the Board, and persons who hold an ownership interest in or are employed by any funeral establishment licensed by the Board, shall be fair with present or prospective customers with respect to quality of merchandise, freedom of choice, quality of service, and reasonableness of price, and shall not misrepresent any material fact with respect to such matters. (20) Persons registered with the Board, and persons who hold an ownership interest in or are employed by any funeral establishment licensed by the Board, shall be fair with competitors; shall respect contractual arrangements which those competitors have made with customers; shall act equitably in forwarding or transferring cases; shall respect customary or contractual arrangements with employees of such competitors; and shall refrain from disparaging or defaming competitors with respect to price, service, merchandise or professional reputation. (21) Persons registered with the Board, and persons who hold an ownership interest in any funeral establishment licensed by the Board, shall provide safe and healthful working conditions for all employees; and shall comply with all government regulations and such collective bargaining agreements as they may enter into with their employees. (22) No person registered with the Board, nor any person who holds an ownership interest in or is employed by any funeral establishment licensed by the Board, shall engage in, authorize, or aid or abet fraud, deceit, misrepresentation
of any material fact, provision of any false or forged evidence, or bribery in connection with any application for the issuance or renewal of any license or registration issued by the Board. (23) The Board may take disciplinary action against any person registered with the Board who has been subjected to disciplinary action or denial of licensure by another jurisdiction. (24) The Board may take disciplinary action against any person registered with the Board who has been convicted of, or who has pleaded guilty or no lo contendere to, any criminal offense. (25) Violation of any provision of 239 CMR 3.14, any other provision of 239 CMR 3.00 through 239 CMR 5.00, any provision of M.G.L. c. 112, §§ 82 through 87, or any other state or federal law or regulation pertaining to the profession or business of embalming or funeral directing, by any person registered with the Board shall be grounds for disciplinary action by the Board. (26) The registered funeral director who serves as the chief executive officer or chief operating officer of any funeral establishment licensed by the Board shall be responsible for any and all acts or omissions of any person who holds an ownership interest in, or is employed by, that funeral establishment, and may be disciplined by the Board for any such acts or omissions which constitute violations of 239 CMR 3.00 through 5.00, M.G.L. c. 112, §§ 82 through 87, or any other state or federal law or regulation pertaining to the profession or business of embalming and funeral directing. (27) The Board may also, after hearing, suspend, revoke, or take other disciplinary action against, the funeral establishment certificate of any funeral establishment licensed by the Board for any acts or omissions of any person who holds an ownership interest in, or is employed by, that funeral establishment if such acts or omissions constitute violations of 239 CMR 3.00 through 5.00, M.G.L. c. 112, §§ 82 through 87, or any other state or federal law or regulation pertaining to the profession or business of embalming and funeral directing.
3.14: Price Disclosure to Consumer A licensed funeral establishment, and/or its agents or employees, shall give, or cause to be given to the person or persons making funeral arrangements, or otherwise arranging for shipment, transportation or other disposition of a deceased person, at the time such arrangements are completed or prior to the time of rendering the service, including the selected merchandise, a written statement showing to the extent then known: (a) The price of the merchandise and service that the person or persons making such arrangements have selected and what basically is included therein. (b) The price of each of the supplemental items of service and/or merchandise agreed upon by the parties involved. (c) The estimated amount involved for each of the items for which the licensed funeral establishment will advance monies as an accommodation to the person or persons making such funeral arrangements. (d) No licensed funeral establishment in the Commonwealth of Massachusetts shall bill or cause to be billed, any item that is referred to as a "Cash Advanced" item unless the net amount paid for such item or items by the funeral service item is the same amount as is billed the licensed funeral establishment.
3.15: Advisory Ruling Any interested person or his or her attorney may at any time request an advisory ruling with respect to the applicability to any person, property or factual situation of any statute or regulation enforced or administered by the Board. The request shall be addressed to the Board and sent to the secretary by certified mail or delivered in person during normal business hours. All requests shall be signed by the person making it or his or her attorney, contain his or her address or the address of his or her attorney, and state clearly and concisely the substance or nature of the request. The request may be accompanied by any supporting data, views or arguments. Upon receipt of the request, the Board shall consider it and render its opinion in writing. The Board may at any time rescind an advisory ruling. When an advisory ruling is rendered, a copy of the ruling shall be sent to the person requesting it or his or her attorney.
3.16: Limited Liability Partnerships and Companies (1) For purposes of 239 CMR 3.16, the following terms shall have the following meanings, unless the context otherwise requires: (a) Board - means the Massachusetts Board of Registration in Embalming and Funeral Directing (b) LLP - means any "registered limited liability partnership" or "foreign registered limited liability partnership", as defined in M.G.L. c. 108A, ยง 1. (c) LLC - means any "limited liability company" or "foreign limited liability company", as defined by M.G.L. c. 156C, ยง 2. (d) Profession and Business of Embalming and Funeral Directing - means the "profession and business of embalming and funeral directing" as defined in 239 CMR 3.01. (e) Registered Licensed Funeral Director - means a "registered licensed funeral director" as defined in 239 CMR 3.01. (2) An LLC or LLP may engage in the profession and business of embalming and funeral directing only if: (a) A controlling interest in that LLC or LLP is held by one or more registered licensed funeral directors; (b) The business of that LLC or LLP is under the direction and control of a registered licensed funeral director, who shall be held responsible for ensuring that that LLC or LLP complies with all applicable laws and regulations governing embalming and funeral directing; (c) The LLC or LLP meets the professional liability insurance requirements set forth in 239 CMR 3.16(3); and (d) The LLC or LLP does not hold an ownership interest in, or engage in, any business other than the profession and business of embalming and funeral directing as defined in 239 CMR 3.01. (3) Required Insurance and Capital Program for LLCs and LLPs (a) An LLC or LLP which engages in the profession and business of embalming and funeral directing in Massachusetts shall maintain in good standing professional liability insurance which meets the following minimum standards:
1.
The insurance shall cover negligence, wrongful acts, and errors and omissions;
2.
The insurance shall insure the LLC and its members, as required by M.G.L. c. 156C, ยง 65, or the LLP and its partners as required by M.G.L. c. 108A, ยง 45(8)(a);
3.
The insurance shall be in an amount of at least $50,000, plus the product of $15,000 multiplied by the number of owners and employees of the LLC or LLP who are registered licensed funeral directors, but not in excess of $500,000 in the aggregate;
4.
The requirements of 239 CMR 3.16(3)(a)3. shall be considered satisfied if the LLC or LLP maintains insurance sufficient to provide coverage at a level of at least $300,000 for each claim with an aggregate top limit of liability for all claims during any one year of at least $1,000,000; and
5.
The insurance required by 239 CMR 3.16(3) may provide that it does not apply to: a.
Any dishonest, fraudulent, criminal or malicious act or omission of the insured LLC or LLP or any partner, member or employee thereof; or
b.
Bodily injury to, or sickness, disease or death of, any person; or
c.
Injury to or destruction of any tangible property, including the loss of use thereof.
6.
Such insurance policies may contain reasonable provisions with respect to policy periods, territory, claims, conditions and other usual matters.
(b) An LLC or LLP which engages in the profession and business of embalming and funeral directing in Massachusetts is not required to maintain the insurance required by 239 CMR 3.16(3)(a) if: 1.
That LLC or LLP maintains a designated and segregated capital fund equal to the amount of insurance required by 239 CMR 3.16(3)(a)3. or 4.; and
2.
Such funds are specifically designated and segregated for the satisfaction of judgments against the LLC or its members, or the LLP orits partners, based on negligence, wrongful acts, or errors and omissions, by means of: a.
Deposit in trust, or in bank escrow, of such funds in the form of cash, bank certificates of deposit, or United States Treasury obligations; or
b.
A bank letter of credit or insurance company bond.
(c) Upon any cancellation or other interruption in the insurance coverage required by 239 CMR 3.16(3)(a), or any failure to maintain the designated and segregated capital required by 239 CMR 3.16(3)(b), an LLC or LLP shall immediately cease engaging in the profession and business of embalming and funeral directing until such time as the LLC or LLP is in compliance with 239 CMR 3.16(3). (d) An LLC or LLP shall notify the Board in writing, within five business days, if the insurance coverage required by 239 CMR 3.16(3)(a) is cancelled or otherwise interrupted, or if the designated and segregated capital required by 239 CMR 3.16(3)(b) falls below the amount required by 239 CMR 3.16(3)(b). Failure to provide such notice to the Board shall subject the LLC or LLP, and its members or partners who are registered licensed funeral directors, to disciplinary action by the Board pursuant to M.G.L. c. 112, ยง 84(j).
(e) An LLC or LLP may be required to provide verification of compliance with 239 CMR 3.16(3)(a) or 239 CMR 3.16(3)(b), satisfactory to the Board, at the time it applies for a funeral establishment certificate, or at any other time upon request by the Board. REGULATORY AUTHORITY 239 CMR 3.00: M.G.L. c. 112, § 85.
4.01: Definitions For purposes of 239 CMR 4.00 et seq., the following terms shall have the following meanings unless the context in which they are used clearly indicates otherwise: Beneficiary – means the individual for whom funeral goods and services are to be provided under the terms of a preneed funeral contract. Board - means the Board of Registration in Embalming and Funeral Directing. Buyer - means the person entering into a pre-need funeral contract with a licensed funeral establishment. Cost-Protected Pre-Need Funeral Contract - means a pre-need funeral contract in which: a.
a licensedfuneral establishment agrees to provide a specifically-identified set of funeral goods and/or services for a named beneficiary upon his or her death;
b.
the beneficiary has established a funeral trust account, or purchased a pre-need insurance policy, which is to be used to pay for those funeral goods and services;
c.
the beneficiary has fully funded the funeral trust account, or fully paid for the pre-need insurance policy, within a specified period of time after the pre-need funeral contract is made; and
d.
the licensed funeral establishment has agreed to accept the funds available in the beneficiary's funeral trust account or pre-need insurance policy at the time of the beneficiary's death as payment in full for all funeral goods and services provided by the funeral establishment, and, to the extent specifically provided in the contract, for nonfuneral establishment charges or "cash-advance item" charges as well, so that there will be no additional cost to the beneficiary or his or her estate for those goods, services and charges at the time of the beneficiary's death.
Funeral Goods and/or Services - means those goods and services which are customarily provided in the business of embalming and funeral directing, as commonly practiced, including but not limited to usage of facilities and those goods and services identified in 239 CMR 3.01. Funeral Trust Account - an account established in any federal or state-chartered banking institution having trust powers, or any trust company, located in the Commonwealth of Massachusetts, in which funds are deposited or invested pursuant to the terms of a pre-need funeral contract for the purpose of paying for funeral goods and/or services at a future time. Itemized Statement of Funeral Goods and Services or Itemized Statement – means a written itemized statement showing to the extent then known the price of funeral goods and/or services selected by a person, the price of each
supplemental item of goods and/or services to be provided, the estimated amount for each item for which the funeral establishment will advance monies as an accommodation to the person or persons making the funeral arrangements, and all other information required by M.G.L. c. 112, § 84B, 239 CMR 3.14, and 16 15 CFR 453.2. Licensed Funeral Establishment - means a fixed place or establishment owned or maintained by a person, partnership, corporation, association or other organization which has been duly registered by the Board pursuant to M.G.L. c. 112, § 84 and which is located, constructed, equipped and operated for the purpose of providing sanitary handling, preparation, disposition and care of dead human bodies. Non-Funeral Establishment Charges or "Cash Advance Item" Charges – means the costs of goods or services which are provided for a beneficiary in connection with his or her funeral by a supplier or vendor other than a funeral establishment licensed in Massachusetts, but which are partially or fully paid for by a Massachusetts licensed funeral establishment with funds in a funeral trust account or pre-need insurance policy or annuity on behalf of, and as an accommodation to, that beneficiary. Pre-Need Funeral Contract – means any written agreement between a buyer and a licensed funeral establishment in which: a.
the licensed funeral establishment agrees, prior to the death of a named beneficiary, to furnish funeral goods and/or services for that named beneficiary upon his or her death, and
b.
the buyer, pursuant to that agreement, transfers or tenders funds to the licensed funeral establishment for the purpose of paying all or part of the cost of those funeral goods and/or services at the time they are actually provided.
Pre-Need Insurance Policy or Annuity - means any policy, certificate, agreement or contract of insurance issued by an insurance company, the proceeds of which are to be utilized to pay for funeral goods and/or services furnished to a named beneficiary. Trustee - means a federal or state-chartered banking institution within the Commonwealth of Massachusetts having trust powers, or a trust company within the Commonwealth of Massachusetts, to which funds have been transferred in trust for the purpose of paying for funeral goods and/or services for a named beneficiary, and which is charged with the fiduciary duty of managing and administering those funds for the benefit for that named beneficiary.
4.02: - Creation and Content of Pre-Need Funeral Contracts 1.
Parties to Pre-Need Funeral Contracts - All pre-need funeral contracts shall be between a buyer and a licensed funeral establishment.
2.
Who May Prepare Pre-Need Funeral Contracts - No person shall prepare, negotiate or execute a pre-need funeral contract with a buyer or potential buyer; or receive, control or manage any funds tendered as payment for the funeral goods and/or services identified in such a pre-need funeral contract; unless he or she is duly registered with the Board as a registered licensed funeral director or registered certified funeral director.
3.
Location of Offices in Which Pre-Need Funeral Contracts May Be Prepared - All pre-need centers or offices which engage in the preparation, negotiation or execution of pre-need funeral contracts or arrangements shall be located within a duly licensed funeral establishment.
4.
Provision of Buyer's Guide Required - A copy of a Buyer's Guide to Pre-Need Funeral Contracts, approved by the Board, shall be furnished to every person or identifiable group of persons who enter into negotiations or discussions with a registered licensed funeral director or registered certified funeral director regarding a pre-need funeral contract prior to the signing of any such contract by the parties. A Buyer's Guide to Pre-Need Funeral Contracts shall, at a minimum, inform the consumer that: 1.
A consumer can pre-plan his or her funeral arrangements without paying for such arrangements in advance;
2.
The cost of the funeral goods and services purchased through a pre-need funeral contract may be higher or lower at the time of the beneficiary's death than the amounts set forth in the contract, and the beneficiary's rights and obligations with respect to such changes in price are determined by the contract;
3.
There are various methods of financing pre-need funeral contracts, including but not limited to trusts, pre-need insurance policies, funeral insurance, traditional life insurance policies, annuities, and separatelycreated Medicaid-compliant burial accounts;
4.
Each such financing method has certain briefly-described tax, Medicare and Medicaid eligibility, and cancellation consequences;
5.
The consumer has a legal right to cancel such a pre-need funeral contract within ten days of its execution without penalty;
6.
Cancellation or revocation of a pre-need funeral contract after the expiration of the ten-day "coolingoff" period may have adverse consequences in terms of eligibility for Medicaid or other government benefits programs; and
7.
The funeral establishment will report any changes in the pre-need funeral contract, or withdrawals of funds which were originally received in connection with that contract, to the applicable governmental authority responsible for the administration of Medicaid or other governmental benefits programs to the extent that such reporting is required by law.
5.
Required Form and Contents of Pre-Need Funeral Contracts. a.
All pre-need funeral contracts shall be in writing and shall be prepared and executed on one of the Pre-Need Funeral Contract forms prescribed by the Board.
b.
Each pre-need funeral contract shall be complete and shall contain all information specified on the form used, including but not limited to: 1.
The signature of the buyer, and
2.
The signature of the registered licensed funeral director or registered certified funeral director who is acting as the authorized representative of the contracting funeral establishment.
c.
Each pre-need funeral contract shall: 1.
State conspicuously on the first page of the contract, in a manner reasonably calculated to attract the attention of a reasonable person, whether or not the buyer has selected specific funeral goods and/or services; and
2.
Be accompanied by an itemized statement of funeral goods and services which meets the requirements of the Federal Trade Commission Funeral Rule (15 CFR Part 453), M.G.L. c. 112, s. 84B and 239 CMR 3.14, which shall be attached to that pre-need funeral contract and incorporated by reference into that contract. a.
If the buyer has selected specific funeral goods and/or services, the itemized statement of funeral goods and services shall specify the prices for each identified funeral good or service selected by the buyer to the extent known at the time the pre-need funeral contract is prepared.
b.
If the buyer has not selected any specific funeral goods and/or services, the itemized statement of funeral goods and services shall have the words "No Goods or Services Selected" clearly and conspicuously marked thereon.
d.
Each pre-need funeral contract shall indicate, in the spaces designated for such information on the Boardprescribed pre-need funeral contract form: 1.
The percentage of the total cost of the funeral which is attributable to the goods and services which are being provided directly by the licensed funeral establishment itself, which shall be calculated by dividing the total cost of the goods and services being provided by the funeral establishment itself, as set forth in the itemized statement of funeral goods and services required by 239 CMR 4.02(5)(c), by the total cost of the funeral as set forth in that itemized statement; and
2.
The percentage of the total cost of the funeral which is attributable to goods and services provided by suppliers or vendors other than the licensed funeral establishment (the non-funeral establishment charges or "cash advance item" charges), which shall be calculated by dividing the total cost of the goods and services being provided by suppliers or vendors other than the licensed funeral establishment (the non-funeral establishment charges or "cash advance item" charges), as set forth in the "cash advance items" section of the itemized statement of funeral goods and services required by 239 CMR 4.02(5)(c), by the total cost of the funeral as set forth in that itemized statement.
The percentages so calculated shall be rounded off to the nearest whole number (e.g., 75.28% = 75%, 75.67%= 76%) and the sum of such percentages shall in all cases equal one hundred (100) percent.** e. 1.
Each pre-need funeral contract shall recite: The amount of money which the buyer has paid or transferred to the funeral establishment in connection with that contract at the time the contract was made;
2.
The amount(s) of any future payment(s) which are to be made by the buyer in order to fully fund that contract and the date(s) on which such payments are due;
3.
Whether the money paid or transferred to the funeral establishment in connection with that contract was placed in a funeral trust account or used to pay for a pre-need insurance policy; and
4.
The identity of the banking institution which serves as trustee of the funeral trust account established pursuant to 239 CMR 4.09, or the insurance company which issued the pre-need insurance policy pursuant to 239 CMR 4.10, whichever applies.
f.
Each pre-need funeral contract shall recite conspicuously on its face whether it is revocable or irrevocable, and that an attempt to revoke or cancel an irrevocable pre-need funeral contract after the expiration of the ten-day
"cooling-off" period described in 239 CMR 4.07(1) may have adverse consequences in terms of eligibility for Medicaid or other government benefit programs. g.
If the buyer has not paid or transferred any funds to the funeral establishment in connection with a proposed pre-need funeral contract, any document which sets forth the terms and provisions of a proposed pre-need funeral contract shall be treated as a non-binding pre-need funeral contract estimate pursuant to 239 CMR 4.02(6) below.
h.
A proposed or attempted pre-need funeral contract shall be deemed null and void and unenforceable by either party if: 1.
The parties fail to prepare and execute the pre-need funeral contract on one of the Pre-Need Funeral Contract forms prescribed by the Board;
2.
The parties fail to fully and properly complete any portion of the prescribed Pre-Need Funeral Contract Form used; or
3.
The parties fail to comply with any other applicable provision of 239 CMR 4.02(5) with respect to the preparation or execution of the proposed or attempted pre-need funeral contract.
In such event, any and all monies paid or transferred to the funeral establishment by the buyer in connection with the proposed pre-need funeral contract shall be returned to the buyer immediately, without penalty or deduction of any kind. i. Notwithstanding the provisions of 239 CMR 4.02(5)(h) above, a proposed or attempted pre-need funeral contract which has not been signed by one or both parties shall be treated as a non-binding pre-need funeral estimate pursuant to 239 CMR 4.02(6) below. j.
The licensed funeral establishment shall furnish a complete, fully-executed copy of the pre-need funeral contract to the buyer at the time the pre-need contract is made. In the event that the beneficiary of the pre-need contract is someone other than the buyer, the funeral establishment shall furnish an additional fully-executed copy of the pre-need funeral contract to the beneficiary not later than five (5) business days after the pre-need contract is made.
6.
Non-Binding Pre-Need Funeral Estimates - A licensed funeral establishment may issue a non-binding estimate or proposal for a pre-need funeral contract to a buyer or potential buyer, as long as: .
The estimate or proposal is prepared and issued on the Pre-Need Funeral Contract Form prescribed by the Board;
a.
The estimate or proposal specifies the funeral goods or services which the issuing funeral establishment proposes to provide; and
b.
The estimate or proposal contains, or is accompanied by, an itemized statement of funeral goods and services which meets the requirements of 239 CMR 4.02(5) above and which specifies the prices for each identified funeral good or service which the funeral establishment proposes to provide to the extent known at the time the estimate is prepared.
Any such estimate or proposal expires and becomes null and void after a specified period of time, not to exceed thirty (30) days from the date of its issuance, unless the buyer or potential buyer, prior to that expiration date, enters
into a pre-need funeral contract which meets the requirements of 239 CMR 4.02(5) and tenders full or partial payment of the specified price for the identified funeral goods and services to the funeral establishment which issued the estimate. 7.
Sale of Monuments or Interment Space Prohibited - Registered licensed funeral directors and registered certified funeral directors who prepare, negotiate and/or execute pre-need funeral contracts shall arrange only for funeral goods and/or services, and shall not sell interment space or monuments in such contracts. Nothing in this section shall be construed to prohibit a licensed funeral establishment from contracting with a vendor or supplier which is not a licensed funeral establishment for the purchase of a monument or interment space on behalf of the beneficiary pursuant to the terms of a pre-need funeral contract which specifically identifies that monument or interment space as one of the cash-advance items selected by the buyer.
4.03: Notice of Changes Affecting Pre-Need Contracts Required 1.
A licensed funeral establishment shall send written notice of any proposed cessation of the funeral establishment's operation to the buyer (and beneficiary, if different) of each pre-need funeral contract, via certified mail, return receipt requested, at least ten days prior to the effective date of that proposed cessation of operations. Such notice shall inform the buyer (and beneficiary, if different) of their right to: a.
Transfer that pre-need funeral contract and all funds connected with that contract to another licensed funeral establishment of their choice, or
b.
Cancel that pre-need funeral contract, if it is revocable, and receive a refund of all funds connected with that contract pursuant to 239 CMR 4.07(3).
2.
A licensed funeral establishment shall send written notice of any transfer of ownership of that funeral establishment, or sale of any portion of its assets, to the buyer (and beneficiary, if different) of every pre-need funeral contract to which it is a party, via certified mail, return receipt requested, not later than ten days after the effective date of said transfer or sale. Such notice shall request that the buyer inform the funeral establishment, in writing, whether the buyer wishes to: a.
Transfer that pre-need funeral contract, and assign all funds paid in connection with that contract, to the new owner(s) of that funeral establishment;
b.
Transfer that pre-need funeral contract, and assign all funds paid in connection with that contract, to another licensed funeral establishment of their choice, or
c.
Cancel that pre-need funeral contract, if it is revocable, and receive a refund of all funds paid in connection with that contract pursuant to 239 CMR 4.07(3).
In the event that the buyer does not respond to this notice within thirty (30) days after the date on which the notice was sent, there shall be a rebuttable presumption that the pre-need funeral contract and all funds connected with that contract have been transferred to the new owner(s) of the transferee funeral establishment.
3.
In the event that a licensed funeral establishment enters into an assignment for the benefit of creditors or other debt reorganization plan, or institutes bankruptcy or receivership proceedings under state or federal law, the funeral establishment shall send to the buyer (and beneficiary, if different) of each pre-need funeral contract to which it is a party, via certified mail, return receipt requested, a written explanation of how their rights and obligations under the pre-need funeral contract will be affected by that event.
4.04: Amendment of Pre-Need Funeral Contracts 1.
Except as provided in 239 CMR 4.04(2), a pre-need funeral contract may be amended by the licensed funeral establishment, the buyer, or the buyer's legal representative, at any time prior to the death of the beneficiary of that contract. The party proposing the change shall give written notice of the proposed change to the other party at least ten days prior to the effective date of the proposed change. All such amendments shall be in writing, and no such amendment shall be effective unless signed by both parties to the contract.
2.
A pre-need funeral contract shall not be amended or modified, except by order of a court of competent jurisdiction, if: a.
The amendment or modification would convert a pre-need funeral contract which was irrevocable at the time it was originally made into a revocable contract, and such an amendment or modification would adversely affect the eligibility of the contract beneficiary for Medicaid or any other government benefits program; or
b.
The amendment or modification would modify or eliminate any price-protection provision which was included in a price-protected pre-need funeral contract at the time it was originally made.
4.05: Substitution of Goods or Services If any funeral good or service which was selected by the buyer and identified in a pre-need funeral contract at the time that contract was created is unavailable at the time of the death of the beneficiary of that contract, the licensed funeral establishment which is responsible for performing that pre-need funeral contract shall provide the beneficiary of the contract with a good or service selected by the buyer, or if the buyer is unavailable, the beneficiary's next–of-kin, whose fair market value is equal to or greater than the value of the good or service which is now unavailable. Where the preneed funeral contract was a cost-protected pre-need funeral contract, as defined in 239 CMR 4.01, the substituted good or service shall be provided to the contract beneficiary at no additional cost.
4.06: Transfer of Pre-Need Funeral Contracts 1.
Upon receipt of written authorization to do so from the buyer of a pre-need funeral contract, or the buyer's legal representative, a licensed funeral establishment shall transfer or assign that pre-need funeral contract to another licensed funeral establishment designated by that buyer or legal representative, provided that the funeral
establishment to whom the contract is to be transferred or assigned has indicated in writing that it will agree to honor that contract. The terms of the contract shall not be modified at the time of the transfer, but may be amended by means of a written agreement between the buyer and the transferee funeral establishment after the transfer of the contract and all funds connected with that contract has been completed. All such amendments shall be subject to the limitations on amendments of pre-need funeral contracts, as set forth in 239 CMR 4.04. 2.
In the event of any transfer or assignment of a pre-need funeral contract pursuant to 239 CMR 4.06(1): a.
if any funds received by the transferor funeral establishment from the buyer in connection with that pre-need funeral contract are being held in a funeral trust account pursuant to 239 CMR 4.09, all such funds shall be transferred to the transferee funeral establishment within ten (10) business days, as provided in 239 CMR 4.09(5). The transferee funeral establishment shall furnish written confirmation to the buyer, and the beneficiary (if different), that these funds have been received by the transferee funeral establishment and deposited in a funeral trust account which meets the requirements of 239 CMR 4.09 not later than thirty (30) days after the transfer or assignment of the pre-need funeral contract occurs. The transferee funeral establishment shall notify the buyer, in writing, of the identity and location of the banking institution in which the funds were deposited and which will serve as the trustee of the new funeral trust account.
b.
If any funds received by the transferor funeral establishment from the buyer in connection with that pre-need funeral contract were used to purchase a pre-need insurance policy pursuant to 239 CMR 4.10, the transferor funeral establishment shall send a copy of the buyer's written authorization for transfer of that preneed funeral contract to the insurance company which issued the pre-need insurance policy and request that the insurance company take all necessary and appropriate steps to modify the insurance policy so that the transferee funeral establishment may receive payment for any funeral goods and services it provides to the beneficiary of that policy. The transferor funeral establishment shall furnish written confirmation to the buyer, and the beneficiary (if different), that the request for transfer of the pre-need funeral contract and appropriate modification of the insurance policy have been sent to the insurance company which issued the pre-need insurance policy not later than thirty (30) days after the transfer or assignment of the pre-need funeral contract occurs.
4.07: Cancellation of Pre-Need Funeral Contracts 1.
Any buyer of a pre-need funeral contract may cancel that contract and receive a full refund of all monies paid connected with that contract , without penalty, at any time within ten days after signing said contract. After the expiration of this ten-day "cooling off period" a pre-need funeral contract may be canceled in accordance with 239 CMR 4.07(3).
2.
Where an application by the buyer or contract beneficiary of a pre-need funeral contract for government benefits is pending, the buyer may waive his/her right to cancel said contract within this ten-day "cooling off" period, but only by signing a written waiver of that right. Said waiver shall not affect the buyer's right to transfer that preneed funeral contract pursuant to 239 CMR 4.06.
3.
If a pre-need funeral contract was revocable at the time it was originally created, the buyer who signed that pre-need funeral contract, or his/her legal representative, may cancel that pre-need funeral contract at any time after the expiration of the ten-day "cooling off" period specified in 239 CMR 4.07(1) above by sending written notice of such cancellation, via certified mail, return receipt requested, to the licensed funeral establishment. a.
If a funeral trust account has been established to fund that pre-need funeral contract, the funeral establishment shall forward a copy of said notice of cancellation to the named trustee of said funeral trust account, and take all steps necessary to ensure that all funds contained in that funeral trust account are refunded to the buyer, without penalty, within ten (10) days after the notice of cancellation is received by the trustee of the funeral trust account.
b.
If a pre-need insurance policy was purchased to fund that pre-need funeral contract, the licensed funeral establishment shall forward a copy of the notice of cancellation of that pre-need funeral contract to the insurance company which issued the pre-need insurance policy.
4.
If a pre-need funeral contract was irrevocable at the time it was originally created, such a contract shall not be cancelled by either party except by order of a court of competent jurisdiction. Such a contract may, however, be transferred to another licensed funeral establishment in accordance with 239 CMR 4.06.
5.
No licensed funeral establishment, or agent or employee thereof, shall impose any surcharge, fee or other penalty (monetary or otherwise) upon any person who seeks to exercise his or her rights to cancel a pre-need funeral contract under 239 CMR 4.07.
4.08: Restrictions on Use or Disposition of Funds Received in Connection with PreNeed Funeral Contracts 1.
Prohibition Against Personal or Business Uses - No licensed funeral establishment, nor any agent or employee thereof, shall use or pledge any funds which are received in connection with any pre-need funeral contract for any personal use, payment of the operating expenses of any funeral establishment, issuance of a loan to any person, as collateral for any loan, or for any purpose other than those expressly authorized by that pre-need funeral contract and 239 CMR 4.00.
2.
Funeral Trust Account or Pre-Need Insurance Policy Required - All funds received from a buyer by a licensed funeral establishment, or by any employee or agent thereof, in connection with any pre-need funeral contract shall be: a.
Deposited in a funeral trust account which meets the requirements of 239 CMR 4.09 not later than five (5) business days after the expiration of the "cooling-off" period described in 239 CMR 4.07(1); or
b.
Paid to an insurance company for the purchase of a pre-need insurance policy or annuity pursuant to 239 CMR 4.10 not later than five (5) business days after the expiration of the "cooling-off" period described in 239 CMR 4.07(1).
Each time a licensed funeral establishment receives any funds in connection with any pre-need funeral contract to which it is a party, that funeral establishment shall furnish the buyer, and the beneficiary (if different), with written confirmation that such funds have been deposited in a funeral trust account or used to purchase a pre-need
insurance policy, as required by this section, not later than thirty (30) days after such funds are received. Such written confirmation shall bear the signature of a duly-authorized representative of the banking institution in which the funeral trust account has been established, or a duly-authorized representative of the insurance company which issued the pre-need insurance policy, whichever applies. 3.
Reimbursement for Newly Imposed Taxes or Governmental Fees Permitted - Notwithstanding the provisions of 239 CMR 4.08(1), a licensed funeral establishment may require a customer to reimburse said funeral establishment for any local, state or federal taxes or fees imposed after the execution of the pre-need funeral contract, including but not limited to any value-added or sales taxes, for which the funeral establishment is held responsible by the taxing authority or governmental entity. In cases where the pre-need funeral contract is funded in full or in part, said reimbursement shall be considered an additional sum to be paid by the customer, and the funeral establishment shall not be required to deduct it from any income which accrues on the amount initially placed with the funeral establishment for investment in a pre-need funeral trust account or pre-need insurance policy or annuity.
4.
Access to Pre-Need Contract Funds - Neither a licensed funeral establishment, nor any agent or employee thereof, shall have access to any of the funds received by that funeral establishment in connection with any preneed funeral contract for any purpose other than: a.
Obtaining payment for the actual costs of funeral goods and/or services provided to the beneficiary, or for cash advance non-funeral establishment charges connected with the funeral of that beneficiary, upon presentation of the documentation required by 239 CMR 4.08(5);
b.
Transferring those funds to another funeral trust account, or to a pre-need insurance policy or annuity, upon written authorization to do so from the buyer, the beneficiary of the pre-need funeral contract (if different from the buyer), or the duly authorized legal representative of the buyer or beneficiary;
c.
Transferring those funds to another licensed funeral establishment in connection with a transfer of the underlying pre-need funeral contract, pursuant to and in accordance with the requirements of 239 CMR 4.06; or
d.
Refunding those funds to the buyer or the beneficiary upon receipt of a written notice of cancellation of the pre-need funeral contract from the buyer, the beneficiary of the pre-need contract (if different from the buyer) or the duly authorized legal representative of the buyer or beneficiary, to the extent permitted by 239 CMR 4.07.
5.
Documentation Required for Payment for Services Rendered – Before obtaining or receiving payment for funeral goods and/or services rendered to the beneficiary of any pre-need funeral contract pursuant to 239 CMR 4.08(4)(a), the licensed funeral establishment shall present both of the following to the named trustee of the funeral trust account, or the duly authorized representative of the insurer which issued the pre-need insurance policy or annuity, which was used to fund that pre-need funeral contract: a.
A certified copy of the death certificate for the beneficiary; and
b.
A written statement, signed by a registered licensed funeral director, certifying that the pre-need funeral contract has been performed in full.
6.
Allocation and Disposition of Pre-Need Funeral Contract Funds – At the time of the contract beneficiary's death, the funds available in any funeral trust account established in connection with that pre-need funeral contract pursuant to 239 CMR 4.09, and/or in any pre-need insurance policies purchased in connection with that pre-need funeral contract pursuant to 239 CMR 4.10, shall be apportioned between the cost of the goods and services
provided directly by the licensed funeral establishment and the cost of the goods and services provided by vendors other than the licensed funeral establishment (the non-funeral establishment charges or "cash advance item" charges) in accordance with the percentages calculated pursuant to 239 CMR 4.02(5)(d). a.
If the pre-need funeral contract contained cost-protection provisions pertaining to the costs of the goods and services provided directly by the licensed funeral establishment, and the amount of funds to be applied to the costs of those goods and services pursuant to this section exceeds the actual cost of those goods and services at the time of the contract beneficiary's death, the licensed funeral establishment may retain the resulting surplus funds.
b.
If the pre-need funeral contract contained cost-protection provisions pertaining to the costs of the goods and services provided directly by the licensed funeral establishment, and the amount of funds to be applied to the costs of those goods and services pursuant to 239 CMR 4.08 (6) is not sufficient to cover the actual cost of those goods and services at the time of the contract beneficiary's death, the licensed funeral establishment shall bear the resulting loss and shall not bill the estate of the contract beneficiary, or any other person, for the deficiency.
c.
If the pre-need funeral contract contained cost-protection provisions pertaining to the costs of the goods and services provided by vendors other than the licensed funeral establishment, and the amount of funds to be applied to the costs of those goods and services pursuant to 239 CMR 4.08 (6) exceeds the actual cost of those goods and services at the time of the contract beneficiary's death, the licensed funeral establishment may retain the resulting surplus funds.
d.
If the pre-need funeral contract contained cost-protection provisions pertaining to the costs of the goods and services provided by vendors other than the licensed funeral establishment, and the amount of funds to be applied to the costs of those goods and services pursuant to 239 CMR 4.08 (6) is not sufficient to cover the actual cost of those goods and services at the time of the contract beneficiary's death, the licensed funeral establishment shall bear the resulting loss and shall not bill the estate of the contract beneficiary, or any other person, for the deficiency.
e.
If the pre-need funeral contract did not contain cost-protection provisions pertaining to the costs of the goods and services provided directly by the licensed funeral establishment, and the amount of funds to be applied to the costs of those goods and services pursuant to 239 CMR 4.08(6) exceeds the actual cost of those goods and services at the time of the contract beneficiary's death, the licensed funeral establishment shall refund the resulting surplus to the estate of the contract beneficiary. In such event, the amount refunded may be subject to claims of the Commonwealth or the United States.
f.
If the pre-need funeral contract did not contain cost-protection provisions pertaining to the costs of the goods and services provided directly by the licensed funeral establishment, and the amount of funds to be applied to the costs of those goods and services pursuant to 239 CMR 4.08 (6) is not sufficient to cover the actual cost of those goods and services at the time of the contract beneficiary's death, the licensed funeral establishment may bill the estate of the contract beneficiary for the deficiency.
g.
If the pre-need funeral contract did not contain cost-protection provisions pertaining to the costs of the goods and services provided by vendors other than the licensed funeral establishment, and the amount of funds to be applied to the costs of those goods and services pursuant to 239 CMR 4.08 (6) exceeds the actual cost of those goods and services at the time of the contract beneficiary's death, the licensed funeral establishment shall
refund the resulting surplus to the estate of the contract beneficiary. In such event, the amount refunded may be subject to claims of the Commonwealth or the United States. h.
If the pre-need funeral contract did not contain cost-protection provisions pertaining to the costs of the goods and services provided by vendors other than the licensed funeral establishment, and the amount of funds to be applied to the costs of those goods and services pursuant to 239 CMR 4.08 (6) is not sufficient to cover the actual cost of those goods and services at the time of the contract beneficiary's death, the licensed funeral establishment may bill the estate of the contract beneficiary for the deficiency.
7.
Final Statement of Allocation of Funds to be Furnished to Beneficiary's Estate in Certain Cases – If a pre-need funeral contract is not a cost-protected contract with respect to all of the funeral goods and services identified in that contract, the licensed funeral establishment shall prepare, and furnish to the estate of the contract beneficiary at the time of the contract beneficiary's death, an addendum to the written itemized statement of funeral goods and services required by 15 CFR Part 453 and M.G.L. c. 112, s. 84B which shows: a.
The total amount of funds in the pre-need funeral trust account(s) and/or pre-need insurance policies for that beneficiary which were available at the time of the contract beneficiary's death;
b.
The amount of funds available in the pre-need funeral trust account(s) and/or pre-need insurance policies which was applied to the costs of the goods and services which were provided directly by the licensed funeral establishment itself; and
c.
The amount of funds available in the pre-need funeral trust account(s) and/or pre-need insurance policies which was applied to the costs of the goods and services provided by vendors other than the licensed funeral establishment (the non-funeral establishment charges or "cash advance item" charges).
Failure to provide such information accurately and completely in writing to the estate of the contract beneficiary shall constitute a violation of 239 CMR 4.00.
4.09: Funeral Trust Accounts (1) All funeral trust accounts shall be established and administered in compliance with the requirements of 239 CMR 4.09. (2) Creation of Funeral Trust Accounts - Where a pre-need funeral contract will be funded through a funeral trust account, the licensed funeral establishment shall deposit all funds received in connection with that pre-need funeral contract in a funeral trust account within five business days after the expiration of the "cooling-off" period described in 239 CMR 4.07(1). Every such funeral trust account shall: a.
Designate a federal or state-chartered banking institution which has trust powers, or a trust company, within the Commonwealth of Massachusetts as the trustee of said funeral trust account;
b.
Designate the person for whom the funeral goods and/or services are to be provided as the beneficiary of said funeral trust account;
c.
Indicate that the funds are to be used solely for the purpose of paying for funeral goods and/or services and non-funeral establishment charges ("cash advance item" charges) as indicated in the itemized statement required by 239 CMR 4.02(5); and
d.
Provide that the entire account balance shall be payable to the licensed funeral establishment which provides the specified funeral goods and/or services to the beneficiary at time of death in accordance with 239 CMR 4.00.
(3) Investment Requirements The funds placed in a funeral trust account may be invested in any form of investment which may lawfully be established or maintained by the trust department of the banking institution or trust company which is serving as the trustee of that funeral trust account. All funds deposited in that funeral trust account shall be invested and managed in accordance with M.G.L. c. 203C. (4) Common or Commingled Trust Accounts Funds received in connection with more than one pre-need funeral contract may be deposited in a single common or commingled funeral trust account under the terms of a single trust instrument, provided that: (a) The common or commingled funeral trust account is established and administered in accordance with all applicable requirements of 239 CMR 4.09; and (b) Separate records, which meet the requirements of 239 CMR 4.12(1) (e) , are maintained for each customer whose funds are deposited in the common or commingled funeral trust account. (5) Obligations to Locate Trust Beneficiary. (a) If a licensed funeral establishment which is a party to a pre-need funeral contract does not provide the funeral goods and/or services for the beneficiary of that contract upon his/her death, then, upon receipt of a certified copy of the death certificate of such beneficiary, the trustee of any funeral trust account established to fund said pre-need funeral contract shall pay the assets of said funeral trust account to the estate or legal representative of the named beneficiary in accordance with the applicable requirements of 239 CMR 4.09. (b) If a licensed funeral establishment has not received notice of the death of the named beneficiary of a pre-need funeral contract for whom a funeral trust account has been established under 239 CMR 4.09 within 110 years of the beneficiary's date of birth, said funeral establishment shall take all reasonable steps to contact that beneficiary or his/her legal representative to inform them of the existence of said funeral trust account. A written notice of the existence of said funeral trust account, sent via certified mail, return receipt requested, to the last known address of the trust beneficiary and his/her legal representative shall be sufficient to satisfy the requirements of 239 CMR 4.09(5)(b). (c) If, after a reasonable search, a licensed funeral establishment is unable to locate the beneficiary of said funeral trust account, the funeral establishment shall notify the trustee of the account, and the trustee shall turn over all funds in the funeral trust account to the Treasurer of the Commonwealth, in accordance with the laws of the Commonwealth. Any such transfer of funds to the Treasurer of the Commonwealth shall constitute a complete release of all obligations of such licensed funeral establishment pursuant to the pre-need funeral contract.
4.10: Pre-Need Insurance Policies and Annuities (1) Any agent or employee of any licensed funeral establishment who sells or otherwise provides insurance policies or annuities as a method for funding pre-need funeral contracts shall comply with all applicable state and federal laws and regulations pertaining to the conduct of the business of insurance, including but not limited to all licensing requirements of the Massachusetts Division of Insurance. (2) Any agent or employee of any licensed funeral establishment who sells or otherwise provides insurance policies or annuities as a method for funding pre-need funeral contracts shall, prior to accepting any funds as payment for the issuance of any such insurance policy or annuity, make all of the disclosures required by the Massachusetts Division of Insurance to the prospective purchaser of said insurance policy or annuity. In addition to the disclosures required by the Massachusetts Division of Insurance, the agent or employee of the funeral establishment shall also disclose: a.
That the amount to be refunded to the buyer if the insurance policy is cancelled prior to the death of the beneficiary will be determined by the cash surrender value provisions of the insurance policy; and
b.
That the funeral establishment, or its agent or employee, will be paid a commission on the sale of the insurance policy.
(3) No licensed funeral establishment, nor any agent or employee thereof, shall require any buyer to purchase any insurance policy or annuity as a condition for entering into any pre-need funeral contract. (4) Any person who purchases a pre-need insurance policy or annuity from any agent or employee of any licensed funeral establishment who is duly licensed as an insurance agent by the Massachusetts Division of Insurance, may cancel said policy or annuity without penalty any time within ten days after said policy or annuity contract is delivered to him or her by surrendering the policy or annuity contract to either the insurance company which issued said policy or annuity or the agent from whom it was purchased. Upon surrender of such policy or annuity, the purchaser shall be entitled to a full refund of all payments made in connection with said policy or annuity. No licensed funeral establishment, nor any agent or employee thereof, shall impose any penalty or surcharge (monetary or otherwise) on any person exercising said right of cancellation. (5) The requirements of 239 CMR 4.10 shall apply to any and all forms of insurance which are sold or utilized for the purpose of providing funding for a pre-need funeral contract, regardless of how named.
4.11: Marketing Of Pre-Need Funeral Products (1) No agent or employee of any licensed funeral establishment shall visit or call upon any patient in a hospital, convalescent or nursing home, rest home, charitable home for the aged, infirmary maintained in a town, intermediate care facility for the mentally retarded, or other health care facility, for the purpose of soliciting or inducing such patient to enter into any pre-need funeral contract, or for the purpose of soliciting or inducing such patient to establish a funeral trust account or purchase a pre-need insurance policy or annuity, unless said agent or employee has been authorized to do so by the patient or his/her legal representative to do so prior to the visit.
(2) A licensed funeral establishment, or any agent or employee thereof, may utilize telephonic communications for the purpose of soliciting or inducing any person to enter into a pre-need funeral contract, establish a funeral trust account, or purchase any pre-need insurance policy or annuity, provided that: (a) The prospective customer is informed at the beginning of the telephonic communication that the telephonic communication is being made for the purpose of inducing him or her to enter into a pre-need funeral contract, establish a funeral trust account, or purchase a pre-need insurance policy or annuity; and (b) The telephonic communication is terminated immediately upon any request to do so from the prospective customer. (3) No agent or employee of any licensed funeral establishment shall solicit or attempt to induce any person to enter into a pre-need funeral contract, establish any funeral trust account, or purchase any pre-need insurance policy or annuity by any method or means which is false, deceptive, misleading, coercive, intimidating or threatening. (4) No licensed funeral establishment, nor any agent or employee thereof, shall knowingly induce or attempt to induce any person to cancel or revoke any pre-existing pre-need funeral contract, funeral trust account, or pre-need insurance policy or annuity. (5) Advertising of Pre-need Funeral Products. (a) Advertising of pre-need funeral contracts, funeral trust accounts and/or pre-need insurance policies or annuities by any licensed funeral establishment, or agent or employee thereof, shall not be false, deceptive or misleading. (b) All advertising of pre-need funeral contracts, funeral trust accounts and/or pre-need insurance policies or annuities shall disclose all of the following information: a.
The type of product (e.g., funeral trust account, pre-need insurance policy, annuity, etc.) which is to be, or may be, used to fund the pre-need funeral contract; and
b.
The nature of the relationship between the agent who solicits the purchase of the product, the funeral establishment which is to provide the funeral goods and/or services, the buyer, and the individual or institution which will receive and/or hold any funds paid by the buyer in connection with the purchase of the product.
(c) All advertising of pre-need funeral contracts, funeral trust accounts, and/or pre-need insurance policies or annuities by a licensed funeral establishment, or any agent or employee thereof, shall comply with all other applicable state and federal laws and regulations pertaining to such advertising.
4.12: Recordkeeping Requirements 1.
Each licensed funeral establishment shall maintain a separate, legible written record for each pre-need funeral contract to which that funeral establishment is a party. Said records shall be maintained at all times on the premises of that funeral establishment, or on the premises of another specifically-identified licensed funeral establishment within the Commonwealth which is owned and operated by the same proprietor, corporation, partnership,
association, limited liability company, limited liability partnership or other business entity. At a minimum, such records shall contain all of the following information: a.
A fully-executed copy of the pre-need funeral contract;
b.
A fully-executed copy of each amendment or modification of the terms of that pre-need funeral contract;
c.
In the case of any pre-need funeral contract which was transferred to another funeral establishment after its original execution, the name and address of the funeral establishment to which that pre-need funeral contract was transferred and written documentation that the buyer and/or beneficiary has authorized that transfer;
d.
In the case of any pre-need funeral contract which has been performed (i.e., the funeral goods and services specified in that contract have been provided to the beneficiary of that contract), a copy of the death certificate for the beneficiary of that pre-need funeral contract and written documentation that the funeral goods and services specified in that contract were provided;
e.
Where the funding source for the funeral goods and services to be provided pursuant to that pre-need funeral contract is a funeral trust account: 1.
The name, address, date of birth and social security number of the named trust beneficiary;
2.
Copies of bank statements and deposit slips from the bank or financial institution which is holding the funds deposited in the funeral trust account which show the date on which the funeral trust was originally established, the amount of money originally deposited in the funeral trust account at the time the funeral trust account was originally established, and the date and amount of each subsequent deposit in the funeral trust account, if any;
3.
The name and address of the bank or financial institution which is holding the funds deposited in the funeral trust account;
4.
The balance in the funeral trust account, on a monthly basis;
5.
A description of the form and manner in which the trust funds are invested;
6.
A copy of the individual trust agreement, or, in the case of a common or commingled funeral trust account established pursuant to 239 CMR 4.09(4), a copy of the Master Trust Agreement for the common account; and
7.
Written documentation sufficient to demonstrate compliance with all applicable requirements of 239 CMR 4.00 with respect to all changes in the terms or provisions of the funeral trust account; and
f.
Where the funding source for the funeral goods and services to be provided pursuant to that pre-need funeral contract is a pre-need insurance policy or annuity: 1.
the name and address of the insurance company which issued the policy or annuity;
2.
the amount of money originally paid to that insurance company for the issuance of that policy or annuity; and
3. 2.
the face value of that insurance policy or annuity. In the case of any common or commingled funeral trust account established pursuant to 239 CMR 4.09(4), a
separate written record which complies with the requirements of 239 CMR 4.12(1) above shall be maintained for each separate trust beneficiary.
3.
Any and all records established and maintained pursuant to 239 CMR 4.12 shall be available upon request, at any time during regular business hours, to any duly authorized representative of the Board for inspection.
4.
Any and all records required by 239 CMR 4.12 shall be made available by the licensed funeral establishment during regular business hours, to the buyer of the pre-need funeral contract to whom those records pertain, the beneficiary of the pre-need funeral contract to whom those records pertain, or the legal representative of either, for inspection within ten days after receipt of any written request from any such person to examine such records. Upon the written request of the buyer, the contract beneficiary, or the legal representative of either, the licensed funeral establishment shall furnish copies of all such records to the requesting party. The licensed funeral establishment may charge a reasonable fee, not to exceed the actual costs of reproduction, for such copies.
5.
Every licensed funeral establishment shall file with the Board, on or before June 30 of each calendar year, a written report setting forth the following information: a.
The number of pre-need funeral contracts entered into during the preceding calendar year;
b.
The total number of pre-need funeral contracts to which the funeral establishment is a party;
c.
The funding method used to finance each pre-need funeral contract to which the licensed funeral establishment is a party;
d.
The number of pre-need funeral contracts to which the licensed funeral establishment was a party and which were performed during the preceding calendar year;
e.
The number of pre-need funeral contracts to which the licensed funeral establishment was a party which were transferred during the preceding calendar year;
f.
The number of pre-need funeral contracts to which the licensed funeral establishment was a party which were cancelled during the preceding calendar year;
g.
The names and addresses of all banks, trust companies, and insurance companies holding any funds received in connection with any such pre-need funeral contracts during the preceding calendar year; and
h.
The location within the Commonwealth of Massachusetts where its records pertaining to pre-need funeral contracts are maintained.
Said report shall be made in such form and manner as the Board may direct. 6.
Upon request by any authorized representative of the Board in connection with any official inquiry, a licensed funeral establishment shall furnish complete written information regarding the total amount of assets being held in connection with pre-need funeral contracts by each institution or company identified pursuant to 239 CMR 4.12(6) which is holding any such funds.
4.13: Penalties Violation of any provision of this chapter shall be considered a violation of M.G.L. c. 112, ยง 84A(j), and may also be considered "gross misconduct in the practice of the profession" within the meaning of M.G.L. c. 112, ยง 61, and shall constitute grounds for disciplinary action by the Board.
4.14: Effective Date 1.
The provisions of 239 CMR 4.00 shall apply in full to all pre-need funeral contracts which are established on or after January 1, 2004.
2.
With respect to any and all pre-need funeral contracts established prior to January 1, 2004: a.
Such pre-need funeral contracts shall be in compliance with the record-keeping requirements of 239 CMR 4.12 no later than June 30, 2004; and
b.
All other requirements of 239 CMR 4.00 shall apply to the administration and performance of such pre-need funeral contracts as of January 1, 2004.
REGULATORY AUTHORITY 239 CMR 4.00: M.G.L. c. 112, ยง 85.
5.01: Purpose The purpose of 239 CMR 5.00 is to require all registered embalmers and registered funeral directors to obtain continuing education as a condition for renewal of their licenses in order to maintain the high standards of the profession and business of funeral directing, and to establish criteria for approval of continuing education programs to be used in fulfilling such continuing education requirements.
5.02: Definitions For purposes of 239 CMR 5.00, the following terms shall have the following meanings: Board - means the Massachusetts Board of Registration in Embalming and Funeral Directing. Contact Hour - means a unit of measurement of organized learning experience lasting 50 consecutive minutes. Registration Period - means the one-year period between registration renewals beginning on November 1 of each calendar year and ending on October 31 of the next calendar year.
5.03: Establishment of Continuing Education Requirement (1) Beginning November 1, 1998, every registered embalmer and registered funeral director shall complete a minimum of five contact hours of continuing education prior to the end of each registration period in courses or programs approved by the Board as a condition for renewal of his or her registration. (2) In addition to any continuing education required by 239 CMR 5.03(1), every apprentice embalmer, registered embalmer and registered funeral director employed by a licensed funeral establishment shall obtain sufficient continuing
education contact hours to be in compliance with the regulations of the United States Occupational Safety and Health Administration regarding information on bloodborne pathogen exposure risks and protection from such risks, as delineated in 239 CMR 3.12(13) and 29 CFR 1910.1030. (3) The Board may modify the minimum number of hours of continuing education required for any registered embalmer or registered funeral director, and/or extend the deadline for completion of such continuing education requirements, upon a showing by the registered embalmer or registered funeral director that such requirements impose an undue hardship due to unforeseen circumstances. (4) A registered embalmer or registered funeral director shall not be required to complete the continuing education required by 239 CMR 5.03(1) for the registration period in which he/she obtains his or her initial registration as an embalmer or funeral director in order to obtain renewal of said registration for the following registration period, but shall be required to obtain such continuing education for all subsequent renewals. Nothing in this paragraph shall exempt a registered embalmer or registered funeral director from having to obtain the continuing education in bloodborne pathogen risks required by 239 CMR 3.12(13) and 239 CMR 5.03(2).
5.04: Criteria for Approval of Continuing Education Programs A continuing education course or program may be used to satisfy the continuing education requirements set forth in 239 CMR 5.03 only if it is a formally organized course of program which is primarily instructional in nature and contributes directly to professional competence in the profession and business of funeral directing. Such courses or programs must meet the following criteria in order to be approved for continuing education credit: (1) The course or program shall be given by a sponsor approved by the Board, or approved for an individual registrant by the Board; (2) An outline of the course shall be prepared and distributed to all attendees. Said outline shall state the number of continuing education contact hours provided; (3) The course or program shall be at least 50 consecutive minutes in length; (4) The course or program shall be conducted by a qualified instructor; (5) The number of continuing education contact hours to be awarded to attendees shall be determined by the sponsor or, in the case of a course or program approved for an individual registrant, approved by the Board; (6) The course or program shall cover appropriate subject matter, which shall include but shall not be limited to: (a) Business administration; (b) Religious customs and traditions relating to funerals; (c) Natural sciences; (d) Management service systems, cost and budget systems, mergers and acquisitions, data processing, etc.; (e) Pre-need services;
(f) Embalming and restorative arts; (g) Massachusetts laws and regulations governing funeral service; (h) Funeral service counseling; (i) Funeral service merchandising; and (j) Sanitation and infection control. (7) The course or program shall be available to all licensees.
5.05: Sponsor Requirements (1) A sponsor of a continuing education course or program shall be recognized and approved by the Board upon submission of a completed application for approval of said course or program, provided that said sponsor meets all of the following requirements: (a) The sponsor establishes and maintains an accurate record of course attendance showing the date of the program or course, the location at which the program or course was given, the name of each person who attended, and the license or registration number of each person who attended; (b) The sponsor issues certificates or other written evidence of completion of the course or program to each person who attends the entire course or program; (c) The sponsor does not issue certificates or other written evidence of completion of the course or program until the course or program is completed; (d) The course or program meets all applicable requirements of 239 CMR 5.04; and (e) The sponsor maintains a copy of the course or program outline, and all records required by 239 CMR 5.04 and 239 CMR 5.05(1)(a) for a period of at least four years from the date on which the course or program is presented. (2) The Board may grant approval to sponsors and/or individual continuing education courses or programs by resolution, and may likewise withdraw or rescind such approval for good cause shown.
5.06: Responsibilities of Individual Registrants (1) Each apprentice embalmer, registered embalmer or registered funeral director shall maintain a record of all continuing education courses or programs he or she has completed for a period of not less than four consecutive registration periods, inclusive of the registration period during which the course or program was completed. (2) Each apprentice embalmer, registered embalmer or registered funeral director, as part of his or her application for renewal of his or her registration, shall attest under the pains and penalties of perjury that he or she has completed the number of continuing education hours required by 239 CMR 5.03. Such attestation shall be made on a form prescribed and provided by the Board. (3) Upon written request by the Board, an apprentice embalmer, registered embalmer or registered funeral director shall furnish to the Board such information as the Board may reasonably require about any or all continuing education
courses or programs completed by said registrant. An apprentice embalmer, registered embalmer or registered funeral director who is requested to submit such verification of his or her continuing education activities shall submit written verification of all of the following: (a) The name of the school, institution, organization or other sponsor conducting the course or program in question; (b) The location at which the course or program in question was presented; (c) The title of the course or program in question; (d) The date on which the course or program in question was presented; (e) The number of hours of continuing education credit being claimed for the course or program in question; and (f) The name of the individual authorizing the award of continuing education credit for the course or program in question. (4) Failure or refusal to provide timely proof of completion of the number of continuing education hours required by 239 CMR 5.03 upon the request of the Board shall constitute grounds for disciplinary action by the Board.
5.07: Appeal Process In the event that an application for approval of a specific continuing education course or program, or for approval as a sponsor of continuing education courses or programs, is denied by the Board, the applicant shall have the right, upon written request, to have the Board's decision reviewed and reconsidered. As part of said review process, the applicant may appear personally before the Board and shall have the right to present any additional information which may reasonably have a bearing on the issue of whether the application for approval should be approved.
5.08: Continuing Education Requirements for License Reinstatement A registered embalmer or registered funeral director whose registration has lapsed or expired may have his or her registration reinstated if he or she submits an application for reinstatement of that registration on a form provided for that purpose by the Board; pays all renewal and late fees required by law; and submits proof of completion of all continuing education hours normally required under 239 CMR 5.03 for the period from the date of his or her last registration renewal to the date of his or her application for reinstatement. In the event that such an application for reinstatement is submitted prior to the expiration date of a particular registration period, the continuing education required for that registration period shall be prorated appropriately.
5.09: Board Responsibilities It shall be the responsibility of the Board to: (1) Establish a system for verifying continuing education information submitted by applicants for renewal of registration; (2) Establish deadlines for the submission of documentation of completion of continuing education hours; (3) Establish and maintain a record of current registrants; (4) Review, and approve or deny, applications for approval of continuing education courses, programs and sponsors;
(5) Review and decide upon any and all appeals filed pursuant to 239 CMR 5.07; (6) Conduct ongoing evaluations of the continuing education process; and (7) Supervise related continuing education activities as necessary and appropriate.
REGULATORY AUTHORITY: 239 CMR 5.00: M.G.L. c. 112, ยง 85.
Section 1 Duties of director PREVNEXT
Section 1. The director of professional licensure shall supervise the work of the several boards of registration and examination included in the division of professional licensure. He shall recommend changes in the methods of conducting examinations and transacting business and shall make such reports to the governor and council as they may require or as the director may deem expedient. The commissioner of public health shall supervise the work of the board of registration in nursing, the board of registration in pharmacy, the board of registration of physician assistants, the board of registration of perfusionists, the board of registration of nursing home administrators, the board of registration in dentistry and the board of registration of respiratory therapists. He shall recommend changes in the methods of conducting examinations and transacting business, and shall make such reports to the governor as he may require or the director may deem expedient. The commissioner of public health shall consult with the chair of the board of registration in medicine concerning the operations of the board. Section 1A Issuance of license or certificate to engage in business or profession; statement of obligation to report certain injuries of children PREVNEXT
Section 1A. Whenever any person required to report under the provisions of section fifty-one A of chapter one hundred and nineteen is issued or reissued a license or certificate to engage in a business or profession, the issuing agency shall send such person a statement informing them of their obligations under said section fifty-one A. Such statement shall contain a statement that such person understands his obligations under said section fifty-one A and the punishment for failure to comply, which shall be signed by such person and returned to the issuing agency. In compliance with the provisions of this section, the issuing agency may include such required statement on application forms for such licenses or certificates.
Regarding Conditions Requiring A Funeral Establishment To Obtain A New Establishment Certificate
Policy #10-01 August 24, 2010 The following guidelines are followed by the Board of Registration in Embalming and Funeral Directing for the purpose of advising licensees when they must seek a new establishment certificate for a funeral establishment.
Policy: One or more duly licensed Type 3 Funeral Directors must own more than a fifty percent stake in a funeral establishment for that establishment to obtain a funeral establishment certificate and legally operate. Pursuant to MGL c. 112, ยง83, a funeral establishment certificate shall be deemed automatically cancelled when a change of ownership takes place. The purpose of this policy is to advise the profession as to when conditions require issuance of a new establishment certificate and render the old one invalid (and thus require operations out of said establishment to cease until a new certificate is issued). A. Sale/Transfer of stocks/shares of the funeral establishment A new funeral establishment certificate must be obtained whenever there is a change in the holding of the stocks/shares of the funeral establishment such that the original funeral director(s) holding more than a fifty percent share transfers such shares so that he/she/they hold less than fifty percent. No change in ownership is deemed to have occurred for Board purposes when shares are transferred between funeral directors who were original (over 50%) owners of the funeral establishment, such that majority control transfers from one director to the other and not to any new party. B. Death of a Funeral Director who has a non-licensed surviving spouse According to MGL c. 112, ยง83, the Board may provide some form of licensure to a surviving spouse of a deceased funeral director. As such a spouse may not necessarily have the education or skills necessary to provide funeral directing and embalming services, the Board interprets this section to allow the surviving spouse to count as a funeral director for ownership purposes. For such a widow to qualify and not require a new establishment certificate, 1) the deceased funeral director must have been validly licensed upon death (not suspended, revoked, or expired), and 2) the surviving spouse must employ a duly licensed funeral director to provide services in the establishment. C. Disciplinary action against a funeral director Discipline against a funeral director shall require a new establishment certificate when the funeral director holds more than a fifty percent share in the establishment and: a. His/her funeral directing license(s) have expired b. Is revoked by the Board c. Is suspended for more than one (1) year* D. Name and location changes
A new establishment certificate will be required whenever the name and/or location of the funeral establishment changes. However, for name changes only, the funeral establishment need only file the first three pages of the establishment certificate application and need not certify disability compliance or provide other documentation normally required for a funeral establishment. E. Time for compliance Upon change of ownership, an existing funeral establishment may operate for a maximum of thirty (30) days after the change without being issued a new funeral establishment certificate. An establishment certificate must be filed within ten (10) days of the change in ownership. This transition period is not permitted for funeral establishments whose license has been revoked and/or the owner holding more than a fifty percent share has been revoked, such establishments must cease operations immediately. * For suspensions of less than one year, the Board must give written approval to have a validly licensed funeral director to operate the establishment during the pendency of the suspension. Absent this approval, such establishments may not operate.
Regarding Funeral Establishment Name Changes Policy #08-05 December 2, 2008
Purpose: To clarify the requirements for funeral establishment name changes.
Policy: In order to change the name of a funeral establishment a registered licensed funeral director (Type 3) registered to the establishment must file an application for a new establishment certificate. The following information is required to be provided with the completed funeral establishment certificate application: Business or trade name prior to and after the name change. The applicant will be notified by the Board if a board appearance is required.
Regarding Temporary Coverage Policy #08-04 October 21, 2008
Purpose:
To clarify the language in M.G.L. c. 112, section 84: "The profession of funeral directing shall be conducted or practiced at a fixed place or establishment, and no person, partnership, corporation, association or other organization shall open or maintain a place or establishment at which to practice such profession unless an establishment certificate has been granted by said board. Such certificate shall be for one location only; provided, that this shall not prevent a registered funeral director from conducting a funeral in another licensed establishment, nor from a church, nor from a private residence from which funeral services are not regularly conducted, a public lodge or hall room, providing such person maintains a fixed place or establishment of his own conforming to the above requirements."
Policy: A Registered Licensed Funeral Director (Type 3) may temporarily offer services at another establishment in cases of vacation, suspension (with Board approval), illness or disability. Services offered at the other funeral home are limited to services incidental to temporary coverage at another funeral home.
Regarding Accessibility of Funeral Establishments Policy #08-03 October 21, 2008
Purpose: The purpose of this policy is to offer guidance to licensee's transferring Establishment Certificates.
Policy: 239 CMR 3.06 (1) (a) requires that all licensed funeral establishments "[b]e accessible to individuals with disabilities to the extent required by all applicable provisions of the Americans with Disabilities Act (42 U.S.C. 12101 et seq., and 28 CFR Part 35) and by all applicable provisions of any other federal or state laws and regulations." In order to satisfy this requirement, the Board has required parties transferring ownership of a funeral establishment to have either an architect or the local building official having jurisdiction over the site of the funeral home certify that the building housing the funeral establishment is in compliance with "all applicable provisions of the Americans with Disabilities Act (42 U.S.C. 12101 et seq., and 28 CFR Part 35) and by all applicable provisions of any other federal or state laws and regulations." The Board will now accept certification from either an architect or the local building official having jurisdiction over the site of the funeral home certify that the building housing the funeral establishment is in compliance with 521 CMR Section 11.
Regarding Funeral Establishments Operating With Invalid Establishment Certificates Policy #08-02
August 19, 2008
Purpose The purpose of this policy is address invalid establishment certificates.
Policy The Board will open a formal complaint if it learns of a funeral home operating under an invalid establishment certificate (e.g. one issued to the previous owner). The establishment will be offered an opportunity to cure the deficiency by filing a complete application for an establishment certificate within thirty (30) days. The establishment will also be offered the opportunity to resolve the complaint short of a formal hearing by paying a one thousand ($1,000.00) dollar fine for unlicensed practice. Continued operation of the establishment thirty (30) days from the date that the consent agreement was sent to the operator of the establishment without filing an application for an establishment certificate will be treated as a subsequent violation of the unlicensed practice statute. A subsequent violation may also provide a basis for denial of an application for an establishment certificate filed on an untimely basis. In cases of death or incapacity of an owner, the estate or guardian shall be allowed thirty (30) days to notify the Board of the death or incapacity prior to the opening of a complaint. Thereafter, the new owner shall be afforded a reasonable time (based on the circumstances surrounding the death or incapacity) to file a complete application for an establishment certificate.
Discussion Pursuant to M.G.L. c. 112, s. 83: "[t]he profession of funeral directing shall be conducted or practiced at a fixed place or establishment, and no person, partnership, corporation, association or other organization shall open or maintain a place or establishment at which to practice such profession unless an establishment certificate has been granted by said board. ... An establishment's certificate shall remain in force indefinitely unless revoked by the board or until there has been a change in the ownership of the establishment, which shall automatically cancel said certificate." (emphasis added) It is the Board's position that operating with an expired/lapsed establishment certificate is unlicensed practice. Pursuant to M.G.L. c. 112, s. 65A, "each board of registration under the supervision of the division of professional licensure ... may, after a consent agreement between the parties or after an opportunity for an adjudicatory proceeding held pursuant to chapter 30A, assess and collect a civil administrative penalty not to exceed $1,000 for the first violation and a civil administrative penalty not to exceed $2,500 for a second or subsequent violation upon a person who, without holding the required license, certificate, registration or authority, engages in the practice of a trade or profession for which a license, certificate, registration or authority is required."
Regarding Registered Embalmers who have allowed their license to lapse for more than one (1) year Policy #08-01 June 3, 2008 (amended January 25, 2011)
Purpose: The purpose of this policy is to offer guidance to funeral directors and embalmers who have allowed their license to embalm to lapse. Policy: Funeral directors and embalmers who have allowed their license to expire for more than one (1) year shall be subject to payment of the accrued penalties and shall be required to meet the provisions of section eighty-three relative to original registration. Including: submitting an application with all fees (application fee, late fee, and back licensure fees); providing proof of completion of all continuing education required during the period the license was expired, and achieving a passing score on the state examination. The applicant will have one hundred and eighty (180) days from submitting the application to complete the process. If an applicant fails to complete the process within one hundred and eighty (180) days he/she must appear before the Board to request an extension.
Discussion: Pursuant to M.G.L. c. 112, s. 84 "If no application for renewal or for revival of a funeral director’s or embalmer’s certificate is made within said twenty days, the holder thereof may within one year of the original date of expiration of the certificate apply for renewal of the same upon the payment to the board of a penalty at the rate of one dollar each week beyond the date of said twenty-day revival period. If at the expiration of one year no application for renewal has been made, the board will remove the former registrant’s name from its books. If such former registrant, after the expiration of the one year, applies for registration, he shall be subject to payment of the accrued penalties, and shall be required to meet the provisions of section eighty-three relative to original registration." 239 CMR 3.02 (2) states: "[a]ny individual desiring to become a registered embalmer shall make application to the Board on a form provided for that purpose. Said application shall contain written proof satisfactory to the Board that…(g) The applicant has achieved a passing grade on the embalmer's registration examination prescribed by the Board." In addition, 239 CMR 3.02(3) states: “[a]ny individual who desires to become registered as a funeral director shall make application to the Board on a form provided for that purpose. Said application shall be accompanied by written proof satisfactory to the Board that… (f) The applicant has achieved a passing grade on the funeral director registration examination prescribed by the Board.” The Board interprets the above statute and regulation to require that funeral directors and embalmers who have allowed their license to expire for more than one (1) year shall be required to submit an application for licensure with all fees (application fee, late fee, and back licensure fees); provide proof of completion of all continuing education required during the period the license was expired, and achieving a passing score on the state examination. In the event an embalmer or funeral director is suspended, the first date of suspension shall be considered the first date of license expiration for purposes of this statute. The applicant will have one hundred and eighty (180) days from submitting the application to meet the requirements. If the applicant fails to meet the requirements within one hundred (180) days he/she must appear before the Board and request an extension of time.