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MINUTES OF A REGULAR MEETING
OKLAHOMA FUNERAL BOARD
4545 N. Lincoln Blvd, Suite 175
Oklahoma City, Oklahoma 73105
November 8, 2012
|J. Cooper||Mark Riley|
|Richard Dugger||Chris Ferguson|
|Cindy Longanacre||Grant Moak, AAG|
MEETING PLACE: Oklahoma State Capitol
2300 North Lincoln Blvd. Room 412C
Oklahoma City, Oklahoma 73105
President Phenix called the meeting to order at 10:00 A.M. Board members Cooper, Dugger, Longanacre, Phenix, Pickard, and Temple, and Walding were present.
President Phenix called for a moment of silence in memory of Michael Rhoades.
President Phenix was presented a Governor’s Proclamation from Governor Mary Fallin stating November 15, 2012 as “Oklahoma Funeral Service Day.”
Motion by Dugger second by Longanacre to approve the minutes from the October 11, 2012 Board meeting. The motion passed unanimously.
Motion by Longanacre second by Cooper to extend a continuance on this case until December 13, 2012 regarding Complaints 12-27 & 12-29, Board v. Heritage Funeral and Cremation Services, LLC, a licensed Funeral Service Establishment, and Christopher Harrison a licensed Funeral Director and Funeral Director In Charge, for alleged Violations of 396.12c (8) and 235:10-7-2 (9). The motion passed unanimously.
Motion by Walding second by Temple to enter into an agreed order STATING regarding an agreed amended Emergency Order issued on August 14, 2012 Regarding the Crown Hill Funeral Home, Tulsa and Betty McConnell, Funeral Director in Charge for alleged Violations of 396.12 (B), 396.12c (17), 235:10-7-2 (17), and 235:10-15-3.
Motion by Cooper second by Pickard to dismiss complaint 13-04 regarding missing cremated remains. The motion passed unanimously.
After discussion regarding a possible settlement on a proposed settlement concerning Complaint 02-14, Board Vs. Tom Brown & Brown Funeral Parlor, Luther for violation of OAC 235: 10-7(6) and 59 O.S. 396.12c(13). And Discussion regarding pending litigation in the case of BancFirst v. Brown et al, Lincoln County, CJ-2012-96. A motion by Dugger second by Cooper to enter into executive session pursuant to 25 O.S. Supp 1998, Subsection 307 (B) (8) to engage in deliberations or rendering a final or intermediate decision in an individual proceeding pursuant to Article II of the Administrative Procedures Act regarding complaint 02-14, Board Vs. Tom Brown & Brown Funeral Parlor, Luther for violation of OAC 235: 10-7(6) and 59 O.S. 396.12c(13). The motion passed unanimously.
A motion by Walding second by Dugger to exit executive session. The motion passed unanimously.
In executive session only these cases were discussed and no votes were taken. A motion by Walding second by Temple to take no action on the pending matter. The motion passed unanimously.
Motion by Longanacre second by Dugger to approve the following: Apprenticeship (original) Isabella Jones, Edmond, Smith & Kernke, OKC; Shelby Wallis, OKC, Resthaven, OKC; Jason Pickel OKC, Fallon Mortuary & Hibbs FH; Richard Royal, Arnett, Shaw FH, Vici. The motion passed unanimously.
Motion by Dugger second by Temple to approve the following: Apprenticeship (1st extension) Emily Armstrong, Shawnee, Oklahoma Mortuary Service & Cooper Funeral Home. (enrolled in UCO); Shannon D. Powell, Edmond, Bill Eisenhour, OKC (enrolled in UCO); Tammie Frizzell, Mustang, Smith & Kernke, OKC (UCO Graduate). The motion passed unanimously.
Motion by Longanacre second by Cooper to approve the following: Funeral Director/Embalmer (original) Jesse Rollans-Boston, Tulsa and Kaysha Lindsay, Edmond. The motion passed unanimously.
Motion by Dugger second by Temple to approve the following: Establishments, Adcock Funeral Home, Miami, Roland Adcock, FDIC, request to close establishment; Advantage Funeral & Cremation Service, Mid-Del Chapel, Angela Johnson, FDIC request name change to Paylor Family Funeral Care. The motion passed unanimously.
Motion by Dugger second by Longanacre to close the following: Sittler-Hallford FH, Tulsa, Michael Hallford FDIC, request to close establishment. The motion passed unanimously.
Motion by Dugger second by Longanacre to table the application of the following: Crematory; Edmond Cremation Center, Oklahoma City, new crematory, Crawford Family Funeral and Cremation Services, Inc., owner. Marcus Crawford requesting to serve as Funeral Director in Charge of multiple locations (Oklahoma City). (Needed Occupancy, Inspection). The motion passed unanimously.
Motion by Walding second by Longanacre that complaint 13-09 has probable cause regarding unlicensed funeral directing, failure to provide general price list and statement of goods and services, delayed death certificate. The motion passed unanimously.
Motion by Walding second by Temple that complaint 13-10 has probable cause regarding unlicensed funeral directing, delayed death certificate, failure to provide grave marker. The motion passed unanimously.
Motion by Dugger second by Temple to dismiss complaint 13-15 (advertising) without prejudice and issue a letter of concern. The motion passed unanimously.
Motion by Dugger second by Cooper to send complaint 13-16 regarding forgery of signature, charging for services not selected, failure to provide statement of goods and services at time of arrangements. The motion passed unanimously.
Motion by Dugger second by temple to dismiss complaint 13-17 regarding advertising. The motion passed unanimously.
Discussion and possible action on a report from the committee of Funeral Directors and Embalmers charged with studying the needs of Oklahoma Funeral Service.
The committee has a mutual concern for the guaranteed prepayment of funeral service needs.
While it is the committees clear understanding that the board does not have a regulatory responsibility to this issue, the committee still found it important enough to be presented as an issue of great concern.
The issue of guaranteed funeral contracts not being able to keep up with inflation is not a new issue by anyone’s standard. The traditional funeral home proprietor may choose to guarantee a funeral knowing he would take a loss to gain market share or it may have been worth doing with a product that He or She felt comfortable with because of its ability for growth. While this responsible practice still is common occurrence and still risky to the consumer in the event the funeral home changes ownership or closes this is not the committees focused concerned.
The committees first concern is the effect guaranteed funerals will have on the consumer. Guaranteeing funerals has become a concern only because it has, in recent years become a ploy by a growing number of startup firms to gain customer loyalty with no intent to follow through. The low price and the guarantee may be reassuring to the consumer at first but as consumers are finding out they are often empty promises from a desperate proprietor.
The committee’s second concern is more personal. With so many funeral homes getting it right day in and day out year after year we do not want our reputation washed out with the increasing number of shady operators. Our industry is going through dramatic changes that must be met with logic and honesty, not misrepresentation and manipulation to be sorted out at a later time, most likely by a new owner.
It is the committee’s recommendation that funeral homes or any firm representing a funeral homes should not represent any pre-need product as guaranteed. If guaranteed pre-needs continue it is the committees recommendation that they be held to a low percentage of a firms total pre-need holdings. By not allowing pre-need funerals to be guaranteed or at the least controlling the percentage of total guaranteed Pre-needs it would increase consumer protection and maintain the high ethical standards that the funeral industry in Oklahoma has always practiced under.
Motion by Dugger second by Longanacre to accept the Committee Report. The motion passed unanimously.
President of OFDA Bill Marshall reported that OFDA will has held five district meetings and has scheduled anther meeting for November 13, 2012 in Clinton, Oklahoma.
Under new business, a motion by Dugger second by Longanacre to close the establishment of Carnegie-Pitcher Funeral Home, Carnegie and Mary Butler, FDIC. The motion passed unanimously.
Motion by Dugger second by Pickard to approve Board members and Staff to attend the annual International Conference of Funeral Service Examining Board’s to be held in February in Henderson, Nevada. Several Board members indicated they would be willing to pay their own way to this convention. The motion passed unanimously.
Deputy Director Chris Ferguson reported that the staff is in the process of developing a Board retreat and anticipates details coming together after the first of the year. Regarding the ME office, he has recently heard some grumbling on the turn around time for permits. He advised the Board that he has met with staff and Chief Pfeifer and they have recently made some personnel changes to that department. Further, he provided the following statics: Regarding the turn around times for the ME office in September 2012. 96% of permits had a turn around time of less than 2 business day. 82% within 1 business day.
Executive Director Mark Riley reported on the recent hire of part-time administrative help in the office and that renewals had been mailed out. He went on to note that funeral directors and embalmers could now renew their licenses online. It is reported that during the month of October, there was a $21,164.20 deficit created by receiving only $ 4,590.00 in net revenue with $ 25,754.20 in expenses. For the year, the deficit currently stands at $85,147.29.
Discussion and possible action regarding FY13 legislation:
During this discussion Board members Longanacre and Walding left the meeting. The time was twelve noon.
Proposed changes are as follows:
§ 396.2. Definitions
…12. "Funeral director in charge" means an individual licensed as both a funeral director and embalmer designated by a funeral service establishment, commercial embalming establishment, or crematory who is responsible for the legal and ethical operation of the establishment and is accountable to the Board;
§ 396.3. Funeral Director or Embalmer – Determination of Qualifications – Requirements - Curriculum of Study – Issuance of License – Inspection
E. Each funeral director in charge as defined in Section 396.2 of this title shall have a current dual funeral-director-and-embalmer-license. A funeral director in charge of a funeral service establishment or crematory that does not have current dual funeral-director-and-embalmer-licenses at the time of the enactment of this statute shall be considered to be grandfathered and may serve as funeral director in charge of any funeral service establishment or crematory in accordance with rules proscribed by the Board, but shall not serve as funeral director in charge of a commercial embalming establishment which shall require current dual funeral-director-and-embalmer licenses.
§ 396.2a. Additional Powers and Duties of Oklahoma Funeral Board
… 21. Issue subpoenas as part of an investigation.
§ 396.12b. Conducting Funeral – Embalming – Dead Human Remains
D. Dead human remains shall be picked up on first call only under the direction and personal supervision of a licensed funeral director or embalmer. Dead human remains may be transferred from one funeral home to another funeral home and from a funeral home to and from a morgue where an autopsy is to be performed without a licensed funeral director personally making the transfer. In circumstances in which there is no reasonable probability that unlicensed personnel will encounter family members or other persons with whom funeral arrangements are normally made by licensed funeral directors or embalmers, dead human remains may be picked up or transferred without the personal supervision of a funeral director or, embalmer. Dead human remains may be picked up or transferred by a currently registered apprentice without the personal supervision of a funeral director or embalmer,; provided however, any inadvertent contact with family members or other persons shall be restricted to the currently registered apprentice identifying the employer to the person, arranging an appointment with the employer for any person who indicates a desire to make funeral arrangements for the deceased and making any disclosure to the person that is required by any federal or state regulation. A funeral director or embalmer who directs the removal or transfer of dead human remains without providing personal supervision shall be held strictly accountable for compliance with the requirements of, and exceptions to, first call as provided by the Funeral Services Licensing Act.
§ 396.12c. Grounds for Refusing to Issue or Renew, Revoke or Suspend License or Registration
After notice and hearing pursuant to Article II of the Administrative Procedures Act, the Oklahoma Funeral Board may refuse to issue or renew, or may revoke or suspend, any license or registration for any one or combination of the following:
1. Conviction of or plea of guilty or nolo contendere to a felony shown by a certified copy of the record of the court of conviction offense;
2. Conviction of or plea of guilty or nolo contendere to a misdemeanor involving funeral services;
…21. Intentional interference with an investigation by the Board or failure to allow access to funeral records during an investigation or to produce records for an investigation;
22. Failure to properly discharge financial obligations as established by rule of the Board.
§ 396.30. Crematory – License Required
B. Application for an annual license shall be made to the executive director of the Board upon forms prescribed and furnished by the executive director, shall give the location of the crematory, and any other information as the executive director shall require, and shall be accompanied by the crematory license fee pursuant to Section 396.4 of Title 59 of the Oklahoma Statutes this title. A crematory shall not be licensed separately from a funeral or commercial embalming establishment but shall be licensed in conjunction with and operated by a funeral service or commercial embalming establishment.
Motion by Dugger second by Cooper to approve the legislative changes as posted. The motion passed unanimously.
Discussion and possible action of FY13 rules.
235:1-1-2 Executive Director of the Board
(c) Schedule of meetings. The Executive Director shall schedule all Board meetings, file notices of Board meetings as required by the Oklahoma Open Meeting Law, and prepare an agenda for each Board meeting to be posted at the Board office in advance of the meeting, and be provided to each Board member. All applications or other items requiring Board action must be received and date-stamped by Board staff at least seven (7) fourteen (14) calendar days prior to a Board meeting to be considered at that meeting. Anyone may request the Board consider an item received after this time by requesting in writing to appear before the Board. Nothing in this section shall prohibit the Board from taking any action allowed by law on its own motion.
SUBCHAPTER 1. GENERAL PROVISIONS
"Approved place of final disposition" means a licensed crematory or other place legally established or historically recognized to receive human remains for final disposition. Historical sites as evidenced by existing grave(s) that were in place prior to the planned internment shall constitute an approved place of final disposition.
235:10-1-4. Request for interpretation of rules
(a) Any person who may be affected by the existence of application of any of the rules of this chapter may request in writing an interpretation of ruling regarding the application of such rule to the facts furnished with the inquiry. Any such request shall state fully the facts concerning which the rule may apply, and the particular rule about which the question exists. The request or inquiry will be added to the agency for the next scheduled Board meeting and may if necessary be continued for further consideration to additional business meetings. The Board's interpretation of the rule will be furnished in writing to the person making the request, within a reasonable time thereafter
(b) If a request for interpretation of rules includes or involves facts and/or circumstances whereupon a complaint has been filed, but not yet disposed, the Board shall consider the request for interpretation as a part of the complaint and in no way shall the request delay the resolution of the complaint or be construed to impartially bias the Board to the outcome of the complaint.
SUBCHAPTER 3. QUALIFICATIONS AND REQUIREMENTS FOR LICENSURE
235:10-3-2. Requirements for licensing funeral service establishments
To be licensed by the Board a funeral service establishment or a commercial embalming establishment must meet the following minimum requirements:
(11) Transferability. No establishment license is transferable from one person to another, or from one location to another. In case of the sale, lease, or relocation to a new location, or a change of name of the establishment, the establishment license may remain in force by mutual consent of the buyer and seller for a period of (30) thirty days or until the next regularly scheduled Board meeting, and at such time the license shall expire. The Funeral Director-in-Charge must notify the Board office in writing and within ten days of change of ownership, change of Funeral Director-in-Charge, change of address, or change of name. The purchaser, lessee, or owner must notify the Board office to request an inspection, and issuance of a new license. Upon purchase, lease or change of address, change of name, change of Funeral Director-in-Charge a new establishment license application must be submitted with fee. If exigent circumstances warrant additional time to facilitate a Funeral-Director-In-Charge change, upon good cause shown and with written agreement by a licensed funeral director to assume responsibility in the interim, the Board may grant up to 90 additional days for an establishment to employ the new Funeral-Director-in-Charge. The licensed funeral director assuming responsibility in the interim shall be exempt from the requirements in 235:10-3-2 (9).
(18) Grounds for refusal. The board may refuse to issue an original license or renew a license:
(A) For any felony conviction, or a misdemeanor conviction related to funeral service, by any individual required to be disclosed under this sub-section, may be grounds to deny the application.
(B) For any answer in the affirmative to 235: 10-3-2 (16)(A)(viii,ix,x,xi,xii), by any individual required to be disclosed in this sub-section.
(C) If the Board finds the application contains false or misleading information.
(D) If the Application is incomplete or improperly completed.
(E) Failure to pay the license application fee.
(F) Failure to comply with all other rules as prescribed in Section 235.
(G) For any individual required to be disclosed under this section who is implicated in a complaint that has been found to have probable cause. The application may be tabled pending the resolution of the complaint.
235:10-3-5. Apprentice qualifications and registration
(2) Reports. Apprentices must properly file twelve (12) monthly reports in the format prescribed by the Board documenting their employment and completion of embalming and funeral directing experiences.
(A) Due date. Each report is due the 1st and must be filed no later than the 10th day of the month it is due.
(B) Postmark. The postmark or electronic date stamp shall determine the date of filing for the monthly reports and case reports.
(C) Late reports. Reports received late shall not count toward the total number required for licensing.
(3) Cancellation. An apprenticeship shall automatically be cancelled by the failure to file two monthly one quarterly reports, unless an exception has been granted in writing by the Board.
SUBCHAPTER 5. LICENSING FEES
235:10-5-2. Military service exemption from payment of renewal fees.
(a) Entering Service. Any individual licensee of the Board who enters an initial a period of military service, whether by enlistment, by being drafted, or by being a member of a National Guard Unit or a Military Reserve Unit which is called to active duty by the Federal Government, shall be excused from paying renewal fees and completing continuing education during the initial period of military service, and his or her license shall remain in full force and effect. become inactive.
(b) Release from service. When the individual is released from such initial period of military service, he shall immediately notify the Board, and shall pay the renewal fee required for the year in which the release from active duty occurs to reactivate the license.
(c) Renewal fees. When any individual voluntarily enters a second period of military service, he must immediately notify the Board, and he shall be responsible for the payment of all renewal fees due and payable after entering the second period of military service.
(d) (c) Federal service required. This exemption from payment of renewal fees shall not apply to any individual enlisting in a National Guard Unit, or any Military Reserve Unit until and unless the unit or the individual is required by the Federal Government to enter a period of active duty on Federal status for a period to exceed one year.
(e) (d) ROTC not applicable. The provisions of this section shall not apply to an individual participating in any ROTC program on any college or university campus.
(f) (e) Board notification. The exemption from the payment of renewal fees and completion of continuing education shall not apply until the individual licensee has notified the Board office of his entrance into the military service set forth in this Section by certified copy of official enlistment document DD Form 4 or other official enlistment document.
235:10-7-2. 235:10-7-2. Prohibited acts
The following prohibited acts shall constitute grounds for the suspension or revocation of any license or registration issued by the Board.
(2) Conviction of a crime. Criminal Actions. A felony conviction or plea of guilty or nolo contendere in a felony matter, or any misdemeanor pertaining to the custody, care or disposal of dead human remains, or involving funeral service, or unfair trade practices, or fraud. A copy of the record of conviction, judgment and sentence certified by the clerk of court entering the conviction shall be conclusive evidence of conviction. However, anyone who has surrendered their license or has had their license suspended or revoked because of a conviction of a felony or misdemeanor where substance abuse or mental illness is the underlying cause of the crime, may appeal to have his or her license reinstated. In determining whether to reinstate the license of such an individual, the Board may consider the length of time since the plea or conviction, education since the plea or conviction, recovery status since the plea or conviction if the underlying crime was alcohol-or drug-related, and the public safety of allowing the individual to be licensed.
(21) Lack of Response. Failure of a funeral service establishment, commercial embalming establishment, crematory, funeral director, embalmer, or apprentice to respond to a complaint within 10 days of receipt of the complaint or failure of a funeral service establishment, commercial embalming establishment, crematory, funeral director, embalmer or apprentice to comply with a Board subpoena. A signed proof of service shall be prima facie evidence of receipt.
(22) Obstruction of Investigation. Destruction of evidence, tampering with or intimidating witnesses, or refusal to allow access to relevant files or facilities in any investigation.
(23) Forgery. Creating a false document, fraudulently altering a document, or writing a false signature upon any document.
(24) Compromising Licensing Exam. Being found to have cheated on, harvested test items from, or disseminated copies of any licensing exam as determined by the administrating body of the exam.
SUBCHAPTER 11. MINIMUM STANDARDS OF PERFORMANCE
235:10-11-1. Minimum standards of performance
(b) The following minimum standards of performance shall be required of each licensed funeral director in the State of Oklahoma. The practice of funeral directing shall be construed to consist of the following functions, which may be performed only by a licensed funeral director.
(7) Directing, being in charge or apparent charge of, or directly supervising, any funeral service held in a funeral establishment, cemetery, or elsewhere. The responsibility of the funeral director for the personal supervision of a dead human body shall end at the point when the following shall occur -when the remains or casketed remains is are inaccessible to the public, to include but not limited to:
(A) the lid is placed on the outside enclosure or crypt;
(B) the casket is covered by earth if no outside enclosure is used; or
(C) the body is released to the next-of-kin or their authorized agent
(D) at the conclusion of any public or private ceremony, the dead human remains are accompanied by an employee, as evidenced by records of wages and hours, of a funeral service establishment until such time as the remains are inaccessible to the public. This provision shall not be construed to allow any conducting of services or direct care for the remains by an employee not holding respective funeral director’s or embalmer’s licenses. A funeral service establishment and funeral director shall be held strictly liable for the actions of the employee and the employee’s compliance with the requirements of the Funeral Services Licensing Act.
(d) The following minimum standards of performance shall be required of each licensed funeral service establishment and commercial embalming establishment in the State of Oklahoma
(1) Discharge financial obligation. A licensed funeral service establishment shall pay any vendor or third party obligation, within 90 days, that arises out of a Statement of Goods and Services that has been signed by the authorized person or shall satisfy a judgment rendered by a court of proper jurisdiction, within 90 days or as ordered by the court, in favor of a vendor or third party provider as designated on the Statement of Goods and Services or in connection with goods and services provided for a specific buyer.
(2) Approved Place of Disposition. A licensed funeral service establishment, or commercial embalming establishment shall only arrange for, prepare, and transport human remains to an approved place of final disposition. A new or established site shall have the person exercising the right of disposition assume the legal responsibility for the interment and also take the necessary precautions to secure that site to make it legal and lawful as an approved place of final disposition.
(3) Retention of Documents. A licensed funeral service establishment or commercial embalming establishment shall retain documentation related to the services performed, services and merchandise provided, and vital statistic information collected for no less than 5 years from the date of death or date of the statement of goods and services whichever is later.
SUBCHAPTER 5. LICENSING FEES
235:10-5-1. License and other Board fees
(a) The following shall be the fees charged for the licenses, registrations and examinations required by the Funeral Services Licensing Act:
(1) Funeral Director License or Renewal - $75.00 $100.00
(2) Embalmer License or Renewal - $75.00 $100.00
(3) Registration or Extension of Funeral Director and/or Embalmer Apprentice - $150.00
(4) Oklahoma Law Examination - $100.00
(5) State Board Arts Examination - $100.00
(6) State Board Science Examination - $100.00
(7) Funeral Establishment License Renewal - $250.00 $350.00
(8) Commercial Embalming Establishment License Renewal - $250.00 $350.00
(9) Reciprocal License for Funeral Director or Embalmer - $150.00
(10) Change of Funeral Director in Charge - $500.00 anytime during the year
(11) Crematory License Renewal - $250.00 $350.00
(12) Original Funeral Establishment License Fee - $750.00
(13) Original Commercial Embalming Establishment Fee - $750.00
(14) Original Crematory License Fee - $750.00
(15) Change Establishment or Crematory Name - $250.00 anytime during the year.
(b) Administrative service fees. Fees for service exceeding normal maintenance of Board records shall be as determined by the Board in open meeting. No such service fee may exceed the amount of $200.00
(1) Mailing list of establishments - $15.00
(2) Mailing list of individual licensees - $15.00
(3) Duplicate licenses - $15.00 per license
(4) Photocopies - per page - $ .25
(5) Postage/shipping - net cost
(6) License Verification Certification - $50.00
(7) Transfer of Apprenticeship from one funeral home to another - $35.00
Two votes took place regarding the Rules; the first. Motion by Dugger second by Phenix to approve disapproving the change to remove the one hour of contact hour from the CE requirements. The motion passed unanimously. The second to approve the Rules as a whole. Motion by Dugger second by Cooper to approve the changes to the Rules and move forward. The motion passed unanimously.
Motion by Dugger second by Cooper to return random inspections to the Board staff duties. The motion passed unanimously
Motion by Dugger second by Temple to approve the meeting dates 2013. The dates will generally be the second Thursday of each month at 10:00 a.m. in the Oklahoma State Capitol. The motion passed unanimously
Motion by Dugger second by Temple to adjourn the meeting at 12:50 p.m. The motion passed unanimously.