18VAC47-20 Cemetery Board Rules and Regulations

REGULATIONS

Vol. 32 Iss. 1 - September 07, 2015

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

CEMETERY BOARD

Chapter 20

Proposed Regulation

Title of Regulation: 18VAC47-20. Cemetery Board Rules and Regulations (amending 18VAC47-20-180, 18VAC47-20-190, 18VAC47-20-270; adding 18VAC47-20-280).

Statutory Authority: §§ 54.1-201 and 54.1-2313 of the Code of Virginia (18VAC47-20-270).

§§ 54.1-201, 54.1-2312.01, and 54.1-2313 of the Code of Virginia (18VAC47-20-180, 18VAC47-20-190, 18VAC47-20-280).

Public Hearing Information:

October 20, 2015 - 10 a.m. - Department of Professional and Occupational Regulation, 9960 Mayland Drive, Richmond, VA 23233

Public Comment Deadline: November 6, 2015.

Agency Contact: Christine Martine, Executive Director, Cemetery Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone [phone], FAX [phone], or email [e-mail].

Basis: Chapter 500 of the 2014 Acts of Assembly states in part "The Board shall adopt such regulations as the Board deems appropriate and necessary to implement the provisions of this section. Regulations of the Board shall be in accordance with the Administrative Process Act (§ 2.2-4000 et seq.)."

Section 54.1-2313 D of the Code of Virginia states: "In addition to the general powers and duties conferred in this subtitle, the Board shall have the power and duty to (i) regulate preneed burial contracts and perpetual care trust fund accounts as prescribed by this chapter, including, but not limited to, the authority to prescribe preneed contract forms, disclosure requirements and disclosure forms and to require reasonable bonds to insure performance of preneed contracts, (ii) regulate and register sales personnel employed by a cemetery company, and (iii) regulate and establish qualifications and standards of conduct for compliance agents employed by a cemetery company to assure compliance of the cemetery with the provisions of this chapter."

Section 54.1-201 A 1 of the Code of Virginia states: "The powers and duties of regulatory boards shall be as follows: to establish the qualifications of applicants for certification or licensure by any such board, provided that all qualifications shall be necessary to ensure either competence or integrity to engage in such profession or occupation."

Section 54.1-201 A 5 of the Code of Virginia states: "The powers and duties of regulatory boards shall be as follows: to promulgate regulations in accordance with the Administrative Process Act necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners and to effectively administer the regulatory system administered by the regulatory board . . ."

Purpose: The purpose of the proposed regulation is to make clarifying changes, to incorporate language as necessary to implement new statutory requirements for interment of pets to ensure consistency with § 54.1-2312.01 of the Code of Virginia, and to make other changes that the board considers necessary. Since the regulations have not undergone substantial revision since 2007, a thorough review was necessary to ensure the regulations provide minimum burdens on the regulants while still protecting the public health, safety, and welfare and reflect current procedures and policies of the board and the Department of Professional and Occupational Regulation. The goal of the proposed amendments is to make clear to both the cemetery companies and the public what the requirements are for cemeteries that choose to permit the interment of pets so an individual can choose whether or not he wants to be interred in that cemetery.

Substance: The proposed amendments to (i) 18VAC47-20-180 clarify records requirements for pet interments; (ii) 18VAC47-20-190 update prohibited activities to ensure consistency with statutory changes regarding pet interment; (iii) 18VAC47-20-270 reduce the hours to make training more meaningful without unnecessary excess information to fill the hours; and (iv) 18VAC47-20-280 add a section to implement § 54.1-2312.01 of the Code of Virginia regarding pet interment.

Issues: The primary advantage to the public is that the revisions will improve the clarity of the regulations and ensure consistency with current board practices, legal requirements, and standards of practice in the industry, all to better protect the health, safety, and welfare of citizens of the Commonwealth. The primary advantage to the Commonwealth is that the revisions to the regulations reflect the importance that Virginia places on ensuring the regulations are the least burdensome but also provide protection to the citizens of the Commonwealth. No disadvantages to the Commonwealth could be identified.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to § 54.1-2312.01, the Cemetery Board (Board) proposes to amend its regulation to decrease the mandatory hours that a training course must last and to allow cemetery companies to set up separate sections in their cemeteries that allow pets to be buried either separately or beside their owners.

Result of Analysis. Benefits likely outweigh costs for these proposed changes.

Estimated Economic Impact. Current regulation requires that training courses for compliance agents and their designees approved by the Board include all Board required information and be at least eight hours long. The Board has determined, however, that teaching all the required information in any given course generally takes much less time than the minimum eight hours allotted. Accordingly, the Board now proposes to amend the regulation so that approved training courses must be at least four hours. Because the changed hours would be a minimum, and because courses will still cover all information required by the Board even if it takes longer than four hours to do so, the public is unlikely to be harmed by more poorly informed cemetery compliance officers. Cemetery companies will likely save money on account of this change as they pay for their compliance officers' training. Compliance agents and designees will likely benefit from having to spend less time in training.

Currently, cemetery companies are only allowed to inter human remains. In 2014, the General Assembly passed legislation that allows cemetery companies to set aside sections of their cemeteries to bury humans and their pets so long as:

1. The sections set aside are "segregated entirely from the remainder of the cemetery devoted to the interment of human remains,"

2. Pets are not buried in the same grave, crypt or niche as a human and

3. Sections set aside are clearly marked and advertised as being for pets and their owners.

This legislation also allows for sections of cemeteries to be set aside strictly for pets so long as those sections are segregated, clearly marked and advertised as strictly for pets by the cemetery companies. The Board now proposes to amend its regulation to reflect these legislative changes and to require cemetery companies that set up sections of their cemeteries for pets or pets and their owners to keep permanent records identifying the name and type of pet interred, the name of the owner of the pet and the exact location were the pet is interred. Cemetery companies are not required to set up separate sections of their cemeteries for pets or pets and their owners and, so, are unlikely to do so unless the revenue that is accrued from doing so outweigh costs.

Businesses and Entities Affected. Board staff reports that there are 93 cemetery companies in the Commonwealth that own and operate 164 cemeteries. Approximately 90 of those cemetery companies would qualify as small businesses. All of these cemetery companies will gain the ability to inter pets or pets and their owners so long as they follow rules set forth in the authorizing legislation and this proposed regulation. Board staff further reports that fewer than 10 people per year apply to the Board to be compliance agents or designees that would be affected by the changing training course hour minimum.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulation.

Projected Impact on Employment. These proposed regulatory changes are unlikely to have any impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to have any impact on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small business cemetery companies will not be required to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small business cemetery companies will not be required to incur any costs on account of this regulatory action.

Real Estate Development Costs. Cemetery companies may choose to incur extra property development costs to set up sections of their cemeteries for pets or pets and their owners but would likely only do so if they had an expectation that they would see increased profits from that choice.

Legal Mandate.

General: The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order Number 17 (2014). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulation would apply,

• the identity of any localities and types of businesses or other entities particularly affected,

• the projected number of persons and employment positions to be affected,

• the projected costs to affected businesses or entities to implement or comply with the regulation, and

• the impact on the use and value of private property.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

Agency's Response to Economic Impact Analysis: The board concurs with the approval.

Summary:

The proposed amendments (i) reduce the length of training courses from eight hours to four hours and (ii) incorporate provisions on pet interments and pet and owner interments to align with Chapter 500 of the 2014 Acts of Assembly.

18VAC47-20-180. Records of interments.

A permanent record shall be kept of every interment in the cemetery, showing the date of the interment, the name of the person interred, together with information identifying the specific location in which the interment was made. For interments made pursuant to § 54.1-2312.01 of the Code of Virginia, the permanent records shall also include the type and name of the pet interred and the name of the owner with information identifying the specific location in which the pet interment was made.

18VAC47-20-190. Prohibited activities.

In addition to the acts set forth in §§ 54.1-2314, 54.1-2315, and 54.1-2316 of the Code of Virginia, the board may discipline a licensee or registrant for the following acts:

1. Employing or affiliating with by independent contract, sales personnel not registered with the board.

2. Unless otherwise addressed in this chapter, failing to retain for a period of three years all records required by this chapter or Chapter 23.1 (§ 54.1-2310 et seq.) of Title 54.1 of the Code of Virginia at the place of business in Virginia of the licensed cemetery company.

3. Failing to produce to the board or any of its agents, upon request, any document, book, or record required by this chapter or Chapter 23.1 (§ 54.1-2310 et seq.) of Title 54.1 of the Code of Virginia.

4. Failing to respond to an inquiry by the board or any of its agents within 21 days.

5. Advertising in any name other than the name in which licensed or registered.

6. Furnishing substantially inaccurate or incomplete information to the board in obtaining, renewing, reinstating, or maintaining a license or registration.

7. Allowing a cemetery company license or sales personnel registration to be used by an unlicensed cemetery company or unregistered sales personnel.

8. Acting as or being an ostensible licensee for undisclosed persons who do or will control or direct, directly or indirectly, the operations of the licensee's business.

9. Having failed to inform the board in writing, within 30 days, that the company, an officer, director, or compliance agent, has pleaded guilty or nolo contendere or was convicted and found guilty of any felony or any crime involving moral turpitude.

10. Having failed to inform the board in writing, within 30 days, of a disciplinary action in a jurisdiction where licensed, including suspension, revocation, or surrender in connection with a disciplinary action.

11. Failing to reasonably maintain the buildings, grounds, and facilities of a cemetery licensed to a cemetery company.

12. Failing to file any report required by Chapter 23.1 of Title 54.1 of the Code of Virginia.

13. Engaging in negligent, improper, fraudulent, or dishonest conduct.

14. Failing to segregate entirely the section of the cemetery dedicated to the interment of pets or the interment of human remains and the pets of such deceased humans by means such as hedge, wall, tree line, fence, roadway, or other similar physical barrier or boundary.

15. Permitting the interment of a pet in the same grave, crypt, or niche as the remains of a human.

16. If a cemetery company has a section devoted to the interment of pets or the interment of human remains and the pets of such deceased humans, any advertisements failing to clearly state the cemetery company has such section or sections in its cemetery.

17. Failing to clearly mark the section or sections devoted to the interment of pets or the interment of human remains and the pets of such deceased humans with signage that is reasonably apparent to the general public.

18VAC47-20-270. Standards of approval of training course.

All training courses shall be approved by the board. The training course shall be at least eight four hours and include appropriate testing procedures to demonstrate an understanding of the topics. The training program shall include, but is not limited, to the following topics:

1. Cemetery Board statute and regulations;

2. Perpetual care trust fund requirements;

3. Preneed trust fund requirements;

4. Preneed burial contracts;

5. Interment records;

6. General price list;

7. Itemized statement of goods and services provided;

8. Advertising;

9. Solicitation;

10. Funeral rule; and

11. Proper care, maintenance, administration, and embellishment of the cemetery.

18VAC47-20-280. Special interment requirement

A licensed cemetery company may establish a section in its cemetery devoted to the interment of pets or the interment of human remains and the pets of such deceased humans in accordance with § 54.1-2312.01 of the Code of Virginia. All other provisions of this chapter shall apply.

VA.R. Doc. No. R15-4107; Filed August 17, 2015, 1:24 p.m.