Bill Text: AZ HB2408 | 2018 | Fifty-third Legislature 2nd Regular | Introduced
Bill Title: Board of funeral directors; repeal
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-01-18 - House read second time [HB2408 Detail]
Download: Arizona-2018-HB2408-Introduced.html
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REFERENCE TITLE: board of funeral directors; repeal |
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State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
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HB 2408 |
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Introduced by Representative Mosley
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AN ACT
amending sections 11‑600, 13‑2926, 20-1241.01, 32-321 and 32-506, Arizona Revised Statutes; repealing title 32, chapter 12, Arizona Revised Statutes; amending section 32‑2194.03, Arizona Revised Statutes; repealing section 32-2194.31, Arizona Revised Statutes; amending sections 36-301, 36‑831.01 and 41‑1092, Arizona Revised Statutes; repealing section 41‑3022.22, Arizona Revised Statutes; appropriating monies; relating to the board of funeral directors and embalmers.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 11-600, Arizona Revised Statutes, is amended to read:
11-600. Burial of indigent deceased; disposal of property
A. When a death investigation has been completed by the county medical examiner or alternate medical examiner and no other person takes charge of the body of the deceased, the examiner shall cause the body to be delivered to the funeral establishment, licensed pursuant to title 32, chapter 12, article 4, closest geographically to the place where the body is pronounced dead, for preservation, disinfection and final disposition. The medical examiner or alternate medical examiner may establish geographical areas within the county and a rotation system whereby the bodies are delivered equally in sequence to all licensed funeral establishments in each geographical area. All licensed funeral establishments in any incorporated city or town shall be in the same geographical area. Area boundaries in unincorporated areas shall be drawn so as to approximate equal distances between incorporated cities or towns in which a licensed funeral establishment or establishments exist. Upon On request of any licensed funeral establishment, in writing, they shall be removed from participation in the receipt of medical examiner cases until they rescind their request. If there is not sufficient property in the estate of the deceased to pay the necessary expenses of the burial, the expenses shall be a legal charge against the county. Upon On determination of indigency, the funeral establishment shall perform the normal county indigent burial, in the manner and for the fee then being paid by the county, or release the body, upon on county request, without fee, to the funeral establishment designated by the county for other indigent burials.
B. Notwithstanding subsection A of this section, the county medical examiner or alternate medical examiner may cause the body to be delivered to a community college under the jurisdiction of a community college district as defined in section 15‑1401, if the community college has an accredited mortuary science program. On acceptance of the body and with proper authorization, the community college mortuary science program shall preserve and disinfect the body, prepare it for final disposition and deliver the body to a licensed funeral establishment pursuant to subsection A of this section for final disposition. For the purposes of this subsection, proper authorization may be provided by the next of kin pursuant to section 36‑831, subsection A or the public fiduciary of the county.
C. Within thirty days after the examination, the medical examiner or alternate medical examiner shall deliver to the public fiduciary of the county or the legal representative of the deceased any money or property found upon on the body.
Sec. 2. Section 13-2926, Arizona Revised Statutes, is amended to read:
13-2926. Abandonment or concealment of a dead body; classification
A. It is unlawful for a person to knowingly move a dead human body or parts of a human body with the intent to abandon or conceal the dead human body or parts.
B. This section does not apply to the disposition, transportation or other handling of dead human remains for any purpose authorized under title 32, chapter 12, title 32, chapter 20, article 6 and title 36, chapters 3 and 7.
C. A person who violates this section is guilty of a class 5 felony.
Sec. 3. Section 20-1241.01, Arizona Revised Statutes, is amended to read:
20-1241.01. Scope of article
A. This article applies to the replacement of policies and contracts except for the following:
1. Credit life insurance.
2. Except as provided in subsection B of this section, group policies and contracts that do not involve direct solicitation of individuals by an insurance producer.
3. Policies and contracts used to fund prearranged funeral agreements as defined in section 32‑1301.
4. Except as provided in subsection C of this section, a policy or contract that is used to fund any of the following:
(a) An employee pension and welfare plan as defined by and that is subject to the employee retirement income security act of 1974 (29 United States Code sections 1001 through 1461).
(b) A plan described by sections 401(a), 401(k) or 403(b) of the internal revenue code, where the plan, for purposes of the employee retirement income security act of 1974, is established or maintained by an employer.
(c) A governmental or church plan as defined in section 414 of the internal revenue code, a governmental or church welfare benefit plan, or a deferred compensation plan of a state or local government or a tax exempt organization pursuant to section 457 of the internal revenue code.
(d) A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor.
5. An application to the existing insurer that issued the existing policy or contract:
(a) To exercise a contractual change or a conversion privilege.
(b) If the existing insurer is replacing the existing policy or contract pursuant to a program filed with and approved by the director.
(c) If a term conversion privilege is exercised among corporate affiliates.
6. Existing life insurance that is a nonrenewable and nonconvertible term life insurance policy that will expire in five years or less.
7. Proposed life insurance that is to replace life insurance under a binding or conditional receipt issued by the same insurer.
8. New coverage that is provided under a policy or contract if the insured's employer or an association of which the insured is a member bears all costs.
9. Immediate annuities that are purchased with proceeds from an existing contract. Immediate annuities purchased with proceeds from an existing policy are subject to this article.
10. Structured settlements as defined in section 12‑2901.
11. The reinstatement of a life insurance policy pursuant to section 20‑1213.
B. Group policies and contracts involving direct solicitation are subject to this article.
C. Notwithstanding subsection A of this section, this article applies to a policy or contract that is used to fund any plan or arrangement that meets all of the following requirements:
1. The plan or arrangement is funded solely by contributions an employee elects to make on a pretax or after tax basis.
2. The insurer has been notified that plan participants may choose from among two or more contract providers or policy providers.
3. The insurance producer directly solicits individual employees for the purchase of the contract or policy.
D. Registered contracts are exempt from the requirements of this article with respect to the provision of illustrations or policy summaries. Premium or contract contribution amounts and identification of the appropriate prospectus or offering circular are required.
Sec. 4. Section 32-321, Arizona Revised Statutes, is amended to read:
32-321. Nonapplicability of chapter
This chapter does not apply to the following persons while in the proper discharge of their professional duties:
1. Practices done for the treatment of physical or mental ailments or disease by medical practitioners licensed pursuant to this title.
2. Services performed without compensation in case of emergency or in domestic administration.
3. Commissioned physicians and surgeons serving in the armed forces of the United States or other federal agencies.
4. Students attending schools licensed pursuant to this chapter while they are on school premises during school hours.
5. Persons licensed pursuant to chapter 5 or 12 of this title.
6. Shampoo assistants who shampoo hair under the direction of a barber licensed pursuant to this chapter.
7. Services performed by and for persons in the custody of the state department of corrections.
Sec. 5. Section 32-506, Arizona Revised Statutes, is amended to read:
32-506. Nonapplicability of chapter
This chapter does not apply to the following persons while in the proper discharge of their professional duties:
1. Practices for the treatment of physical or mental ailments or disease by medical practitioners licensed pursuant to this title.
2. Commissioned physicians and surgeons who are serving in the armed forces of the United States or other federal agencies.
3. Persons who are licensed pursuant to chapter 3 or 12 of this title.
4. Students who are attending schools licensed pursuant to this chapter while they are on school premises during school hours.
5. Persons employed by theatrical groups who apply makeup, oils and cosmetics.
6. Persons who sell makeup, oils and cosmetics and who apply such products during the process of selling such products.
7. Shampoo assistants who shampoo hair under the direction of a cosmetologist or hairstylist licensed pursuant to this chapter.
8. Services performed by and for persons in the custody of the state department of corrections.
9. Persons who apply makeup, oils and cosmetics to patients in a hospital, nursing home or residential care institution with the consent of the patient and the hospital, nursing home or residential care institution.
10. Persons who provide a service that results in tension on hair strands or roots by twisting, wrapping, weaving, extending, locking or braiding, if the service does not include the application of dyes, reactive chemicals or other preparations to alter the color of the hair or to straighten, curl or alter the structure of the hair.
11. Persons who provide threading.
12. Persons who provide tanning services by means of airbrushing, tanning beds or spray tanning.
13. Persons who apply makeup, including eyelash enhancements. This paragraph does not apply if a person is engaging in the practice of aesthetics or cosmetology. A person who is exempt pursuant to this paragraph shall post a sign in a conspicuous location in the person's place of business notifying the public that the person's services are not regulated by the board.
Sec. 6. Repeal
Title 32, chapter 12, Arizona Revised Statutes, is repealed.
Sec. 7. Section 32-2194.03, Arizona Revised Statutes, is amended to read:
32-2194.03. Issuance or denial of certificate of authority; voidable sale; order prohibiting sale; investigations by commissioner; public hearings; summary orders
A. After examination of a cemetery application, the commissioner, unless there are grounds for denial, shall issue a certificate of authority authorizing the sale in this state of cemetery plots within the cemetery. The commissioner shall notify the state board of funeral directors and embalmers when the commissioner issues a certificate of authority pursuant to this section.
B. The commissioner may deny issuance of a certificate of authority on any of the following grounds:
1. Failure to comply with any of the provisions of this article or the rules of the commissioner pertaining to this article.
2. The sale of plots within the cemetery would constitute misrepresentation to or deceit or fraud of the purchasers.
3. The applicant has procured or attempted to procure a certificate of authority under the provisions of this chapter for itself or another by fraud, misrepresentation or deceit or by filing an original or renewal application which that is false or misleading.
4. Inability to deliver title or other interest contracted for.
5. Inability to demonstrate that adequate financial or other arrangements acceptable to the commissioner have been made for installation of all off‑site and other cemetery facilities.
6. Failure to make a showing show that the plots can be used for the purpose for which they are offered.
7. Failure to provide in the contract or other writing the use or uses for which the plots are offered, together with any covenants or conditions relative to such plots.
8. Failure to include in the contract the disclosure provisions required as provided by section 32‑2194.04.
9. The owner, agent, officer, director or partner, trust beneficiary holding ten per cent percent or more beneficial interest or, if a corporation, any stockholder owning ten per cent percent or more of the stock in such corporation has:
(a) Been convicted of a felony or misdemeanor involving fraud or dishonesty or involving conduct of any business or a transaction in real estate, cemetery property, time‑share intervals or membership camping campgrounds or contracts.
(b) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate or cemetery property, time‑share intervals, membership camping contracts or campgrounds, or securities or involving consumer fraud or the racketeering laws of this state.
(c) Had an administrative order entered against the applicant by a real estate regulatory agency or security regulatory agency.
(d) Had an adverse decision or judgment entered against the applicant involving fraud or dishonesty or involving the conduct of any business in or a transaction in real estate, cemetery property, time‑share intervals or membership camping campgrounds or contracts.
(e) Disregarded or violated any of the provisions of this chapter or the rules of the commissioner pertaining to this chapter.
(f) Participated in, operated or held an interest in any entity to which subdivision (b), (c), (d) or (e) of this paragraph applies.
10. Failure to satisfy the commissioner that sufficient land has been dedicated for the operation of the cemetery to make it financially secure with respect to the trust fund requirements of this article.
C. A cemetery owner or operator shall not sell or offer for sale any plots without first obtaining a certificate of authority as provided in this section. Any sale of plots before the issuance of the certificate of authority is voidable by the purchaser. An action by the purchaser to void such a transaction shall be brought within three years of after the date of execution of the purchase agreement by the purchaser. In any such action, the prevailing party is entitled to reasonable attorney fees as determined by the court.
D. An applicant objecting to the denial of a certificate of authority by the commissioner, within thirty days after receipt of the order of denial, may file a written request for a hearing. The commissioner shall hold the hearing within twenty‑five days after the request unless the party requesting the hearing requests a postponement. If the hearing is not held within twenty‑five days after the request for a hearing is received, plus the period of any such postponement, or if a proposed decision is not rendered within forty‑five days after submission, the order of denial shall be rescinded and a certificate of authority shall be issued.
E. On the commissioner's own motion or if the commissioner has received a complaint and has satisfactory evidence that the cemetery owner or agent is violating any provision of this article or the rules of the commissioner or has engaged in any unlawful practice as defined in section 44‑1522 with respect to the sale of cemetery plots or deviated from the conditions under which the certificate of authority was issued, the commissioner may investigate the cemetery project and examine the books and records of the cemetery owner or agent. For the purpose of examination, the cemetery owner or agent shall keep and maintain records of all sales transactions and monies the cemetery owner or agent received at the broker's main office or at an off‑site storage location in this state if the owner or agent provides prior written notification of the street address of the off‑site storage location to the department. The cemetery owner or agent shall make the records accessible to the commissioner on reasonable notice and demand.
F. The commissioner On the commissioner's own motion or if the commissioner has received a complaint and has satisfactory evidence that any of the grounds exist as provided in subsection B of this section or that any person has engaged in any unlawful practice as defined in section 44‑1522 with respect to the sale of cemetery plots or has deviated from the conditions under which the certificate of authority was issued, before or after the commissioner issues the certificate of authority as provided in this section, the commissioner may conduct an investigation of such a matter, issue a summary order as provided in section 32‑2157, or hold a public hearing and, after the hearing, may issue such an order or orders as the commissioner deems necessary to protect the public interest and ensure compliance with the law, rules or certificate of authority, or the commissioner may bring an action in any court of competent jurisdiction against the person to enjoin the person from continuing such a violation or engaging in a violation or doing any act or acts in furtherance of a violation. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by a person of any unlawful practices or which that may be necessary to restore to any person in interest any monies or property, real or personal, which that may have been acquired by means of any practice declared to be unlawful in this article.
G. If it appears to the commissioner that a person has engaged in or is engaging in a practice declared to be unlawful by this article and that such the person is concealing assets or has made arrangements to conceal assets or is about to leave this state, the commissioner may apply to the superior court, without notice, for an order appointing a receiver of the assets of such the person or for a writ of ne exeat, or both.
H. The court On receipt of an application for the appointment of a receiver or for a writ of ne exeat, or both, the court shall examine the verified application of the commissioner and such other evidence that the commissioner may present to the court. If satisfied that the interests of the public require the appointment of a receiver or the issuance of a writ of ne exeat without notice, the court shall issue an order appointing the receiver or issue the writ, or both. If the court determines that the interests of the public will not be harmed by the giving of notice, the court shall set a time for a hearing and require that such a notice be given as the court deems satisfactory.
I. If the court appoints a receiver without notice, the court shall further direct that a copy of the order appointing a receiver be served on the person engaged in or engaging in a practice declared to be unlawful under this article by delivering such the order to the last address of the person which that is on file with the real estate department. The order shall inform the person that he has of the right to request a hearing within ten days after the date of the order, and, if requested, the hearing shall be held within thirty days after the date of the order.
Sec. 8. Repeal
Section 32-2194.31, Arizona Revised Statutes, is repealed.
Sec. 9. Section 36-301, Arizona Revised Statutes, is amended to read:
36-301. Definitions
In this chapter, unless the context otherwise requires:
1. "Administrative order" means a written decision issued by an administrative law judge or quasi‑judicial entity.
2. "Amend" means to make a change, other than a correction, to a registered certificate by adding, deleting or substituting information on that certificate.
3. "Birth" or "live birth" means the complete expulsion or extraction of a product of human conception from its mother, irrespective of the duration of the pregnancy, that shows evidence of life, with or without a cut umbilical cord or an attached placenta, such as breathing, heartbeat, umbilical cord pulsation or definite voluntary muscle movement after expulsion or extraction of the product of human conception.
4. "Certificate" means a record that documents a birth or death.
5. "Certified copy" means a written reproduction of a registered certificate that a local registrar, a deputy local registrar or the state registrar has authenticated as a true and exact written reproduction of a registered certificate.
6. "Correction" means a change made to a registered certificate because of a typographical error, including misspelling and missing or transposed letters or numbers.
7. "Court order" means a written decision issued by:
(a) The superior court, an appellate court or the supreme court or an equivalent court in another state.
(b) A commissioner or judicial hearing officer of the superior court.
(c) A judge of a tribal court in this state.
8. "Current care" means that a health care provider has examined, treated or provided care for a person for a chronic or acute condition within eighteen months preceding that person's death. Current care does not include services provided in connection with a single event of emergency or urgent care. For the purposes of this paragraph, "treated" includes prescribing medication.
9. "Custody" means legal authority to act on behalf of a child.
10. "Department" means the department of health services.
11. "Electronic" means technology that has electrical, digital, magnetic, wireless, optical or electromagnetic capabilities or technology with similar capabilities.
12. "Evidentiary document" means written information used to prove the fact for which it the document is presented.
13. "Family member" means:
(a) A person's spouse, natural or adopted offspring, father, mother, grandparent, grandchild to any degree, brother, sister, aunt, uncle or first or second cousin.
(b) The natural or adopted offspring, father, mother, grandparent, grandchild to any degree, brother, sister, aunt, uncle or first or second cousin of the person's spouse.
14. "Fetal death" means the cessation of life before the complete expulsion or extraction of a product of human conception from its mother that is evidenced by the absence of breathing, heartbeat, umbilical cord pulsation or definite voluntary muscle movement after expulsion or extraction.
15. "Final disposition" means the interment, cremation, removal from this state or other disposition of human remains.
16. "Foundling" means:
(a) A newborn infant who is left with a safe haven provider pursuant to section 13‑3623.01.
(b) A child whose father and mother cannot be determined.
17. "Funeral establishment" has the same meaning prescribed in section 32‑1301 means a business at a specific location that is devoted to the care, storage or preparation for final disposition or transportation of dead human bodies.
18. "Health care institution" has the same meaning prescribed in section 36‑401.
19. "Health care provider" means:
(a) A physician who is licensed pursuant to title 32, chapter 13 or 17.
(b) A doctor of naturopathic medicine who is licensed pursuant to title 32, chapter 14.
(c) A midwife who is licensed pursuant to chapter 6, article 7 of this title.
(d) A nurse midwife who is certified pursuant to title 32, chapter 15.
(e) A nurse practitioner who is licensed and certified pursuant to title 32, chapter 15.
(f) A physician assistant who is licensed pursuant to title 32, chapter 25.
(g) A health care provider who is licensed or certified by another state or jurisdiction of the United States and who works in a federal health care facility.
20. "Human remains" means a lifeless human body or parts of a human body that permit a reasonable inference that death occurred.
21. "Issue" means:
(a) To provide a copy of a registered certificate.
(b) An action taken by a court of competent jurisdiction, administrative law judge or quasi‑judicial entity.
22. "Legal age" means a person who is at least eighteen years of age or who is emancipated by a court order.
23. "Medical certification of death" means the opinion of the health care provider who signs the certificate of probable or presumed cause of death that complies with rules adopted by the state registrar of vital records and that is based on any of the following that are is reasonably available:
(a) Personal examination.
(b) Medical history.
(c) Medical records.
(d) Other reasonable forms of evidence.
24. "Medical examiner" means a medical examiner or alternate medical examiner as defined in section 11‑591.
25. "Name" means a designation that identifies a person, including a first name, middle name, last name or suffix.
26. "Natural causes" means those causes that are due solely or nearly entirely to disease or the aging process.
27. "Presumptive death" means a determination by a court that a death has occurred or is presumed to have occurred but the human remains have not been located or recovered.
28. "Register" means to assign an official state number and to incorporate into the state registrar's official records.
29. "Responsible person" means a person listed in section 36‑831.
30. "Seal" means to bar from access.
31. "Submit" means to present, physically or electronically, a certificate, evidentiary document or form provided for in this chapter to a local registrar, a deputy local registrar or the state registrar.
32. "System of public health statistics" means the processes and procedures for:
(a) Tabulating, analyzing and publishing public health information derived from vital records data and other sources authorized pursuant to section 36‑125.05 or section 36‑132, subsection A, paragraph 3.
(b) Performing other activities related to public health information.
33. "System of vital records" means the statewide processes and procedures for:
(a) Electronically or physically collecting, creating, registering, maintaining, copying and preserving vital records.
(b) Preparing and issuing certified and noncertified copies of vital records.
(c) Performing other activities related to vital records.
34. "Vital record" means a registered birth certificate or a registered death certificate.
Sec. 10. Section 36-831.01, Arizona Revised Statutes, is amended to read:
36-831.01. Disposition of remains; duty to comply with decedent's wishes; exemption from liability
A. If the person on whom the duty of burial is imposed pursuant to section 36‑831 is aware of the decedent's wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.
B. No A funeral establishment or crematory licensed pursuant to title 32, chapter 12 or 20 or a cemetery certified under title 32, chapter 20, that relies in good faith upon on the instructions for disposition of a body given by the person authorized pursuant to section 36‑831 shall be is not subject to civil liability or subject to disciplinary action for disposition of the remains in accordance with the instructions.
Sec. 11. Section 41-1092, Arizona Revised Statutes, is amended to read:
41-1092. Definitions
In this article, unless the context otherwise requires:
1. "Administrative law judge" means an individual or an agency head, board or commission that sits as an administrative law judge, that conducts administrative hearings in a contested case or an appealable agency action and that makes decisions regarding the contested case or appealable agency action.
2. "Administrative law judge decision" means the findings of fact, conclusions of law and recommendations or decisions issued by an administrative law judge.
3. "Appealable agency action" means an action that determines the legal rights, duties or privileges of a party and that is not a contested case. Appealable agency actions do not include interim orders by self‑supporting regulatory boards, rules, orders, standards or statements of policy of general application issued by an administrative agency to implement, interpret or make specific the legislation enforced or administered by it or clarifications of interpretation, nor does it mean or include rules concerning the internal management of the agency that do not affect private rights or interests. For the purposes of this paragraph, administrative hearing does not include a public hearing held for the purpose of receiving public comment on a proposed agency action.
4. "Director" means the director of the office of administrative hearings.
5. "Final administrative decision" means a decision by an agency that is subject to judicial review pursuant to title 12, chapter 7, article 6.
6. "Office" means the office of administrative hearings.
7. "Self‑supporting regulatory board" means any one of the following:
(a) The Arizona state board of accountancy.
(b) The board of barbers.
(c) The board of behavioral health examiners.
(d) The Arizona state boxing and mixed martial arts commission.
(e) The state board of chiropractic examiners.
(f) The board of cosmetology.
(g) The state board of dental examiners.
(h) The state board of funeral directors and embalmers.
(i) (h) The Arizona game and fish commission.
(j) (i) The board of homeopathic and integrated medicine examiners.
(k) (j) The Arizona medical board.
(l) (k) The naturopathic physicians medical board.
(m) (l) The state board of nursing.
(n) (m) The board of examiners of nursing care institution administrators and adult care home managers.
(o) (n) The board of occupational therapy examiners.
(p) (o) The state board of dispensing opticians.
(q) (p) The state board of optometry.
(r) (q) The Arizona board of osteopathic examiners in medicine and surgery.
(s) (r) The Arizona peace officer standards and training board.
(t) (s) The Arizona state board of pharmacy.
(u) (t) The board of physical therapy.
(v) (u) The state board of podiatry examiners.
(w) (v) The state board for private postsecondary education.
(x) (w) The state board of psychologist examiners.
(y) (x) The board of respiratory care examiners.
(z) (y) The state board of technical registration.
(aa) (z) The Arizona state veterinary medical examining board.
(bb) (aa) The acupuncture board of examiners.
(cc) (bb) The Arizona regulatory board of physician assistants.
(dd) (cc) The board of athletic training.
(ee) (dd) The board of massage therapy.
Sec. 12. Repeal
Section 41-3022.22, Arizona Revised Statutes, is repealed.
Sec. 13. Repeal; transfer of monies
All unexpended and unencumbered monies remaining in the board of funeral directors' and embalmers' fund established by section 32‑1308, Arizona Revised Statutes, as repealed by section 6 of this act, are transferred to the state general fund on the effective date of this act.
