OFDA Board of Directors Legislative Report - October 18, 2017 Meeting
Prepared by John T. McGough
OFDA working on “Clean-Up” of Recently Enacted Funeral Legislation
The language the OFDA successful had inserted into the recently enacted state budget (Am. Sub. H.B. 49) was a significant rewrite of Ohio’s funeral laws with a specific emphasis on protecting victims of preneed fraud. As is fairly common with comprehensive legislation, there are some omissions/mistakes that are made in the drafting process that need to be corrected and newly unanticipated issues arise.
In this regard, OFDA has prepared new “clean-up” language that we are attempting to pass into Ohio law. With the support of House Finance Committee Chairman, Ryan Smith and H.B. 168 sponsor, Dick Stein, OFDA was successful in including our “clean-up” language in H.B. 168 which passed unanimously out of the House Finance Committee on September 21, 2017. Representative Tom Patton offered our amendment language which was approved without any dissenting votes. It is anticipated that H.B. 168 will pass out of the full House of Representatives in the near future. The bill will then move to the Ohio Senate for further deliberations.
Below is a summary of the amendment:
- Board Quorum - Under current law, 5 of the 7 members of the Board of Embalmers & Funeral Directors have to be licensed funeral directors but only 4 of the licensed funeral directors have to have an embalmers license. So, for quorum purposes, this provision allows all of the 5 funeral director members to be counted for purposes of determining a quorum.
- Disposition in Thirty Days - New division 4717.13(A) (12) was added by Am. Sub. H.B. 49 to require a funeral home to make disposition of a dead body within 30 days of taking custody of the body unless the person with the right of disposition orders otherwise. This language would also authorize a coroner to order a disposition to occur beyond 30 days.
- Crematory Operator Permit - This provision makes it clear that the only individual who can engage in cremation is an individual who has a crematory operator permit.
- Initial Service Fee for Installment Contracts - The budget bill as enacted into law permits a funeral home to collect an initial service fee of 10% on a guaranteed-priced, trust-funded preneed funeral contract. This amendment item makes it clear that if the preneed funeral contract is paid in installments, the initial service fee cannot be collected by the funeral home until after all installments have been paid.
- Payment to the Trustee – The budget bill as enacted requires that all payments made by a consumer to fund a preneed funeral contract be paid to the funeral contract trust. However, under current practice many preneed trusts have a trustee’s designated depository receive payments and this amendment item incorporates this practice into Ohio law.
- 4717.13 Prohibited Conduct – This language makes it clear that there are penalties under Ohio law if a person engages in cremation without a crematory operators permit or engages in the profession of funeral directing, embalming or operating a crematory or performing cremation without a license.
- 4717.14 Disciplinary actions – New language in this section changes the mens rea (state of mind) standard from “purposely” to “recklessly” for violations of several sections of Chapter 4717 of the Ohio Revised Code. Also, language was added to authorize the Board of Embalmers and Funeral Directors to suspend a license or permit via a telephone conference after reviewing allegations if “the licensee's continued practice presents a danger of immediate and serious harm to the public”. The new language gives the Board a quicker method to suspend a license when this type of eminent danger is present.
S.B. 28 – Disposition of Fetal Remains (Sen. Joe Uecker (R- Miami Twp., Clermont County)
This bill is a reintroduction of Senator Uecker’s fetal remains legislation from last session that ended on 12/31/2016. The bill provides that a woman who has a surgical abortion is not guilty of failure to dispose of fetal remains humanely if the fetal remains are disposed of in compliance with the bill's cremation or interment provisions.
- Provides that a person who buries or cremates fetal remains from a surgical abortion is not liable for or subject to damages in a civil action, prosecution in a criminal proceeding, or professional disciplinary action related to the disposal of fetal remains if the person does all of the following:
- Acts in good faith compliance with the bill's fetal remains disposition requirements;
- Receives a copy of a properly executed detachable supplemental form to the abortion informed consent form;
- Acts in furtherance of the final disposition of the fetal remains.
- Conditions the immunity granted to a person who buries or cremates fetal remains as described above on compliance with the continuing law requirements for fetal death certificates for the product of human conception of at least 20 weeks gestation.
- Delays the application of the prohibition regarding failure to dispose of fetal remains humanely and the grave, crypt, or niche prohibition until the Director of the Ohio Department of Health adopts the rules required under the bill.
The bill has received sponsor testimony in the Senate Government Oversight & Reform Committee. OFDA continues to work with Senator Uecker and the Committee’s Chair, Senator Bill Coley, relating to the forms of disposition (burial & cremation) authorized in the legislation.