The Vermont Statutes Online

Title 26: Professions and Occupations

Chapter 21: FUNERAL DIRECTORS

 

Sub-Chapter 1: General Provisions

§ 1211. Definitions

(a) The following words as used in this chapter, unless a contrary meaning is required by the context, shall have the following meanings:

(1) "Crematory establishment" means a place of business conducted at a specific street address or location devoted to the disposition of dead human bodies by means of cremation.

(2) "Funeral director" means a licensed person who is the owner, co-owner, employee, or manager of a licensed funeral establishment and who, for compensation, engages in the practice of funeral service.

(3) "Funeral establishment" means a place of business conducted at a specific street address or location devoted to the practice of funeral service.

(4) "Practice of funeral service" means arranging, directing, or providing for the care, preparation, or disposition of dead human bodies for a fee or other compensation. This includes, but is not limited to:

(A) meeting with the public to select a method of disposition or funeral observance and merchandise;

(B) entering into contracts, either at-need or pre-need, for the provision of dispositions, funeral observances, and merchandise;

(C) arranging, directing, or performing the removal or transportation of a dead human body;

(D) securing or filing certificates, permits, forms, or other documents;

(E) supervising or arranging a funeral, memorial, viewing, or graveside observance;

(F) holding oneself out to be a licensed funeral director by using the words or terms "funeral director," "mortician," "undertaker," or any other words, terms, title, or picture that, when considered in context, would imply that such person is engaged in the practice of funeral service or is a licensed funeral director.

(5) "Removal" means the removal of dead human bodies from places of death, hospitals, institutions, or other locations, for a fee or other compensation.

(b) Nothing in this section shall prohibit cemetery owners, associations, or their employees from engaging in any functions normally performed by them in the course of their everyday affairs as allowed by 18 V.S.A. chapter 121.

(c) Notwithstanding this section, crematory owners and their personnel may engage in the listed activities in subsection (a) of this section only to the extent such functions are necessary to the performance of their duties. Specifically, crematory personnel may:

(1) provide for the disposition of dead human bodies by cremation, and meet with the public to arrange and provide for the disposition;

(2) enter into contracts, without taking prepaid funds, for the provision of dispositions by cremation;

(3) arrange, direct, or perform the removal or transportation of a dead human body, so long as removals are performed by licensed removal personnel; and

(4) secure and file certificates, permits, forms, or other documents. (Amended 1959, No. 224, § 3; 1995, No. 138 (Adj. Sess.), § 1a; 1999, No. 52, § 12; 2001, No. 151 (Adj. Sess.), § 10, eff. June 27, 2002.)

§ 1212. Board of funeral service; rules; duties

(a) The board of funeral service shall consist of five members appointed by the governor, three of whom shall be licensed funeral directors under this chapter with five years of experience as a funeral director, and two members shall represent the public. At least two of the funeral directors shall also be licensed embalmers. The public members shall not have a direct or indirect financial interest in the funeral business. Each member shall be sworn before performing his or her duties.

(b) The board shall:

(1) adopt rules establishing requirements for facilities used for embalming and preparation of dead human bodies, including the use of universal precautions. Rules adopted under this subdivision shall be submitted to the commissioner of health before the proposed rule is filed with the secretary of state under 3 V.S.A. chapter 25;

(2) adopt rules governing professional standards, standards for disclosure of prices, and a description of the goods and services that will be provided for those prices not inconsistent with Federal Trade Commission regulations regarding funeral industry practices and unfair or deceptive business practices;

(3) provide general information to applicants for licensure;

(4) explain appeal procedures to licensees and applicants and complaint procedures to the public;

(5) issue licenses to qualified applicants under this chapter;

(6) adopt rules regarding:

(A) minimum standards for crematory establishments, including standards for permits and documentation, body handling, containers, infectious diseases, pacemakers, body storage, sanitation, equipment, and maintenance, dealing with the public and other measures necessary to protect the public; and

(B) the transaction of its business as the board deems necessary;

(7) conduct at least one examination each year if there are candidates for examination;

(8) hold meetings as frequently as the efficient discharge of its duties requires. A majority of the members present shall constitute a quorum for the transaction of business. (Amended 1969, No. 239 (Adj. Sess.), § 9; 1973, No. 236 (Adj. Sess.), § 4; 1991, No. 219 (Adj. Sess.), § 3, eff. May 28, 1992; 1995, No. 138 (Adj. Sess.), § 1; 1997, No. 40, § 22; 2001, No. 151 (Adj. Sess.), § 11, eff. June 27, 2002; 2005, No. 27, § 38; 2009, No. 35, § 16.)

§ 1212a. Repealed. 2005, No. 27, § 117(1).

§ 1213. Inspection of premises

(a) The board of funeral service or its designee may, at any reasonable time, inspect funeral and crematory establishments.

(b) Each funeral and crematory establishment shall be inspected at least once every two years. Copies of the inspector's report of inspections of establishments shall be provided to the board. (Amended 1969, No. 239 (Adj. Sess.), § 10; 1973, No. 236 (Adj. Sess.), § 4; 1995, No. 138 (Adj. Sess.), § 2; 2001, No. 151 (Adj. Sess.), § 12, eff. June 27, 2002; 2005, No. 27, § 39.)

§ 1214. Repealed. 2001, No. 151 (Adj. Sess.), § 13.

§ 1215. Penalties; jurisdiction of offenses

(a) A person who engages in the practice of funeral services without a license shall be subject to the penalties provided in 3 V.S.A. § 127(c).

(b) No person shall embalm or introduce any fluid into a dead human body unless the person is a licensed embalmer or is an apprentice and performs under the direction of an embalmer in his or her presence. A person who is not duly licensed as provided in this chapter may not practice or hold himself or herself out to the public as a practicing embalmer and shall be subject to the penalties provided in 3 V.S.A. § 127(c). (Amended 1965, No. 194, § 10, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1995, No. 138 (Adj. Sess.), § 7; 2007, No. 29, § 24; 2009, No. 35, § 17.)

§ 1216. Construction

(a) Nothing herein shall be construed as meaning that a licensed funeral establishment shall not have the right to prepare at the residence or place of death or some place approved by the local board of health a dead human body for burial.

(b) Nothing in this chapter shall be construed to prevent a funeral director licensed in another state from performing the duties of a funeral director in this state provided a licensed funeral director in this state is granted similar powers in such other state.

 

Sub-Chapter 2: Licenses

§ 1251. License requirements

No person, partnership, corporation, association, or other organization may open or maintain a funeral establishment unless the establishment is licensed by the board of funeral service to conduct the business and unless the owner, a co-owner, or manager is a licensed funeral director. No person, partnership, corporation, association, or other organization may open or maintain a crematory establishment unless the establishment is licensed by the board of funeral service. No person may hold himself or herself out as performing the duties of a funeral director unless licensed by the board of funeral service. Except as otherwise permitted by law, no person employed by a funeral or crematory establishment may perform a removal unless registered with the board. (Amended 1959, No. 224, § 4; 1969, No. 239 (Adj. Sess.), § 11; 1973, No. 236 (Adj. Sess.), § 4; 2001, No. 151 (Adj. Sess.), § 14, eff. June 27, 2002; 2005, No. 27, § 40.)

§ 1252. Application; qualifications

(a)(1) Funeral director. Any person holding a high school certificate or its equivalent shall be entitled to take an examination as a funeral director provided that he or she has:

(A) graduated from a school of funeral service accredited or approved by the American Board of Funeral Service Education in a course of instruction of not less than two academic years, or graduated from a school of funeral service accredited or approved by the American Board of Funeral Service Education in a course of instruction of not less than one academic year or its equivalent as determined by the board, with 30 additional credit hours in subjects approved by the board and obtained in a college or university approved by the board; and

(B) completed a traineeship of 12 months of full-time employment or its equivalent under the direct supervision of a person duly licensed for the practice of funeral service within a licensed funeral establishment not connected with a school. The duration of the traineeship and the work performed shall be verified by affidavit as required by the board; and

(C) submitted a written application and the required application fee.

(2) The board may waive the educational and traineeship requirements for examination as a funeral director, provided the applicant possesses a valid license from another state with licensure requirements substantially similar to those required by this chapter.

(b)(1) Embalmer. Any person holding a high school certificate or its equivalent shall be entitled to take an examination in embalming provided that he or she has:

(A) graduated from a school of funeral service accredited or approved by the American Board of Funeral Service Education in a course of instruction of not less than two academic years, or graduated from a school of funeral service accredited or approved by the American Board of Funeral Service Education in a course of instruction of not less than one academic year or its equivalent as determined by the board, with 30 additional credit hours in subjects approved by the board and obtained in a college or university approved by the board;

(B) served a traineeship of 12 months of full-time employment or its equivalent under the direct supervision of a person duly licensed for the practice of funeral service, within a licensed funeral establishment not connected with a school. The duration of the traineeship and the work performed shall be verified by affidavit as required by the board; and

(C) submitted a written application and the required application fee.

(2) The board may waive the educational and traineeship requirements for examination as an embalmer, provided the applicant possesses a valid license from another state with licensure requirements substantially similar to those required by this chapter.

(c) Funeral establishment. A person, partnership, association, or other organization desiring to operate a funeral establishment, shall apply, in writing, to the board of funeral service for a license. The applicant, if a corporation, partnership, association, or other organization, must have a manager or co-owner who is a licensed funeral director. The application for a license shall be sworn to by the individual, a partner, or a duly authorized officer of a corporation, and shall be on the form prescribed and furnished by the board of funeral service, and the applicant shall furnish such information as required by rule or regulation of the board. The application shall be accompanied by a licensing fee.

(d) Crematory establishment. A person, partnership, corporation, association, or other organization desiring to operate a crematory establishment shall apply, in writing, to the board of funeral service for a license. The applicant, if a partnership, corporation, association, or other organization, must have a designated manager or co-owner who is responsible for the operation of the establishment. The application for a license shall be sworn to by the individual, or a partner or a duly authorized officer of a corporation, shall be on the form prescribed and furnished by the board, and the applicant shall furnish information, as required by rule. The application shall be accompanied by a licensing fee. However, the applicant shall not be required to pay the fee under this subsection if the applicant pays the fee under subsection (b) of this section.

(e) Removal personnel. Any person who desires to engage in removals shall register with the board of funeral service and pay the fee established in subsection 1256(d) of this title. The applicant shall have attained the age of majority and be directly employed by a licensed funeral or crematory establishment. The board may prescribe, by rule, the forms for applicants, which may include proof of completion of up to three hours of education and training in infectious diseases in programs approved by the board. Registrants under this section are authorized to perform removals only, as defined by this chapter. Unregistered personnel may accompany registered personnel to assist in removals so long as they have been instructed in handling and precautionary procedures prior to the call. (Amended 1959, No. 224, § 5; 1969, No. 239 (Adj. Sess.), § 12; 1971, No. 184 (Adj. Sess.), § 18, eff. March 29, 1972; 1973, No. 236 (Adj. Sess.), § 4; 1989, No. 250 (Adj. Sess.), § 35; 2001, No. 151 (Adj. Sess.), § 15, eff. June 27, 2002; 2005, No. 27, § 41; 2009, No. 35, § 18.)

§ 1253. Examinations

An applicant for a funeral director's or embalmer's license shall be examined by the board. The examinations shall be in writing and upon forms approved by the board containing questions on subjects as the board by rule may require to determine the qualifications of the applicant. (Amended 1959, No. 224, § 6; 1969, No. 239 (Adj. Sess.), § 13; 2009, No. 35, § 19.)

§ 1254. Issuance or denial of license

If, upon review, it is found that the applicant possesses sufficient skill and knowledge of the business and has met the application and qualification requirements set forth in this chapter, the board shall issue to him or her a license to engage in the business of funeral director, embalmer, funeral establishment, crematory establishment, or removal personnel. All applications shall be granted or denied within 90 days from the making thereof. (Amended 1959, No. 224, § 7; 1989, No. 250 (Adj. Sess.), § 36; 2001, No. 151 (Adj. Sess.), § 16, eff. June 27, 2002; 2005, No. 27, § 42; 2007, No. 76, § 5; 2009, No. 35, § 20.)

§ 1255. Record of licenses and applications

The board shall keep a record of licenses granted and applications made for license, which shall be open to public inspection at all reasonable times.

§ 1256. Renewal of registration or license

(a)(1) One month before renewal is required, the board or the office of professional regulation shall notify, by mail, every licensee of the date on which his or her or its license will expire.

(2) Biennially, every licensee shall renew his or her or its registration or license by paying the required fee.

(b) Upon request of the board of health or a person authorized to issue burial or removal permits, a licensee shall show proof of current licensure.

(c) If a licensee fails to pay the renewal fee by the required date, the license shall lapse. Thereafter, the license may be reinstated only upon application to the board or the office of professional regulation and upon payment of the renewal fee and a reinstatement fee.

(d) Applicants and persons regulated under this chapter shall pay the

 following fees:

        (1) Application for license                                                                                 $ 70.00

        (2) Biennial renewal of license

           (A) Funeral director                                                                                       $ 300.00

           (B) Embalmer                                                                                                $ 300.00

           (C) Funeral establishment                                                                              $ 540.00

           (D) Crematory establishment                                                                         $ 540.00

           (E) Removal personnel                                                                                     $ 85.00

(e) In addition to the provisions of subsection (a) of this section, an applicant for renewal as a funeral director or embalmer shall have satisfactorily completed continuing education as required by the board. For purposes of this subsection, the board shall require, by rule, not less than six nor more than ten hours of approved continuing education as a condition of renewal and may require up to three hours of continuing education for removal personnel in the subject area of universal precautions and infectious diseases. (Amended 1959, No. 224, §§ 8, 9; 1969, No. 239 (Adj. Sess.), § 14; 1973, No. 236 (Adj. Sess.), § 4; 1989, No. 250 (Adj. Sess.) § 37; 1991, No. 167 (Adj. Sess.), § 29; No. 219 (Adj. Sess.), § 4, eff. May 28, 1992; 1995, No. 138 (Adj. Sess.), § 10; 1999, No. 49, § 176; 2001, No. 143 (Adj. Sess.), § 24, eff. June 21, 2002; No. 151 (Adj. Sess.), § 17, eff. June 27, 2002; 2005, No. 27, § 43; 2005, No. 148 (Adj. Sess.), § 12; 2007, No. 76, § 4; 2009, No. 35, § 21; 2011, No. 33, § 3.)

 

§ 1257. Unprofessional conduct

(a) A licensee shall not engage in unprofessional conduct.

(b) Unprofessional conduct means the following conduct and conduct set forth in 3 V.S.A. § 129a:

(1) Using dishonest or misleading advertising.

(2) Failure to make available, upon request of a person who had received services, copies of documents in the possession or under the control of the practitioner.

(3) Failure to comply with rules adopted by the board, the office of professional regulation, or by the Federal Trade Commission relating to funeral goods and services.

(4) For funeral directors, failure to make available at the licensee's place of business, by color picture or display, the three least expensive caskets, as available. For the purposes of this section and related administrative rules, the three least expensive caskets shall include one cloth, one metal, and one wood casket.

(c) After hearing and upon a finding of unprofessional conduct, the board may take disciplinary action against a licensee.

(d) For purposes of this section, "disciplinary action" includes any action taken by the board against a licensee premised on a finding of unprofessional conduct. Disciplinary action includes all appropriate remedies, including denial of renewal of a license, suspension, revocation, limiting, or conditioning of the license, issuing reprimands or warnings, and adopting consent orders.

(e) Disciplinary proceedings against a licensed crematory establishment or its personnel, when that crematory is independent from a licensed funeral establishment, may, upon petition of the licensee, be heard by an administrative law officer appointed by the director of the office of professional regulation. (Amended 1969, No. 239 (Adj. Sess.), § 15; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 236 (Adj. Sess.), § 4; 1995, No. 138 (Adj. Sess.), § 3; 1997, No. 40, § 22c; 1997, No. 145 (Adj. Sess.), § 38; 1999, No. 133 (Adj. Sess.), § 14; 2001, No. 151 (Adj. Sess.), § 18, eff. June 27, 2002; 2005, No. 27, § 44.)

§ 1258. Repealed. 1995, No. 138, § 11.

 

Sub-Chapter 3: Prepaid Funeral Arrangements

§ 1271. Prepaid arrangements

A funeral director, who sells services or merchandise which is not to be delivered or provided within 30 days of sale, has entered into a prepaid funeral arrangement and shall comply with the requirements of this subchapter. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993.)

§ 1272. Rules; prepaid funeral funds

The board, with the assistance of the office of professional regulation, shall adopt rules to carry out the provisions of this subchapter to insure the proper handling of all funds paid pursuant to a prepaid funeral agreement and to protect consumers in the event of default. The rules shall include provisions relating to the following:

(1) The timely establishment of escrow accounts and verification of the establishment of an account. An escrow account shall be maintained by a federally insured depository institution, but shall not be required to be maintained by a trust department, an insurance company licensed to do business in Vermont that is a member of the Vermont's Property and Casualty Insurance Guaranty Association established by 8 V.S.A. chapter 101, subchapter 9, or a trust company chartered by the state of Vermont, if that insurance or trust company is a federally insured depository.

(2) The appointment of an escrow agent who may be a bank or other category of individual such as an attorney, a local elected official, next of kin, or the executor of a buyer's estate. All prepaid arrangement funds shall be paid directly to the escrow agent and not to the funeral director or establishment.

(3) Permissible investments to include demand and time deposits, certificates of deposit, bonds of the United States or its agencies, bonds of the state of Vermont, bonds of a Vermont municipality, and bonds in which savings banks in this state may, by law, invest.

(4) The crediting of income earned by an escrow account, use of the taxpayer identification number, and the deduction of reasonable administrative costs, taxes, and bank fees. The beneficiary shall be considered to be the owner of irrevocable escrow accounts.

(5) Information to be provided the escrow agent by the funeral director and information regarding the escrow account or the prepaid funeral that shall be made available to the buyer on request and annually in a format as determined by the board.

(6) Records to be kept, manner of disclosure, and clauses to be included in contracts, including pre-need trust forms, and agreements. Records shall include a copy of the prepaid arrangement check which shall be kept in the prepaid account file maintained by the funeral director.

(7) Preparation of appropriate tax and other reports.

(8) Other factors determined by the board to be reasonably necessary to insure the security of the funds paid into an escrow account as part of a prepaid funeral arrangement.

(9) Establishment of a funeral services trust account. For purposes of funding the funeral services trust account, the board or the office of professional regulation shall assess each funeral or crematory establishment a per funeral, burial, or disposition fee of $6.00. The account shall be administered by the secretary of state and shall be used for the sole purpose of protecting prepaid funeral contract holders in the event a funeral establishment defaults on its obligations under the contract. The account shall consist of all fees collected under this subdivision and any assessments authorized by the general assembly. The principal and interest remaining in the account at the close of any fiscal year shall not revert but shall remain in the account for use in succeeding fiscal years. Notwithstanding the foregoing, if the fund balance at the beginning of a fiscal year is at least $200,000.00, no fees shall be imposed during that fiscal year. Payments on consumer claims from the fund shall be made on warrants by the commissioner of finance and management, at the direction of the board of funeral services. When an investigation reveals financial discrepancies within a licensed establishment, the director may order an audit to determine the existence of possible claims on the funeral services trust account. In cases where both a funeral and crematory establishment are involved in a disposition, the party receiving the burial permit shall be responsible for the disposition fee. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993; amended 1995, No. 138 (Adj. Sess.), § 8; 1997, No. 50, § 2, eff. June 26, 1997; 2001, No. 151 (Adj. Sess.), § 19, eff. June 27, 2002; 2005, No. 27, § 44a; 2009, No. 35, § 22.)

§ 1272a. Activities connected with funeral

A funeral establishment may offer food and drink in connection with a funeral, provided the establishment complies with applicable requirements of the department of health. (Added 1997, No. 40, § 22d.)

§ 1273. Written agreements

(a) Each prepaid funeral arrangement shall be expressed in a written contract. The board shall adopt rules for standard provisions to be included in all pre-need trust forms and may adopt a standard form which every funeral director accepting prepaid funeral arrangements shall use. Those provisions shall include:

(1) Disclosure of whether the contract is revocable or irrevocable.

(2) A declaration of the person who will most likely be responsible for the funeral and who is to be notified of the prepaid funeral.

(3) Any other provision determined by the board to be reasonably necessary to insure full disclosure to the buyer of all prepaid funeral arrangements as required under this chapter.

(b) The contract shall itemize the funeral services and merchandise to be provided. At the time of performance, if the itemized merchandise is no longer reasonably available, the funeral director may substitute merchandise similar in style and at least equal in quality of material and workmanship. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993; amended 1995, No. 138 (Adj. Sess.), § 9; 2009, No. 35, § 23.)

§ 1274. Transfer of contracts and assets

(a) A buyer of prepaid funeral arrangements may transfer a revocable or irrevocable contract and assets to another funeral director under similar arrangements, in Vermont or outside. The funeral director who originated the contract may charge the buyer a transfer fee of no more than five percent of the principal amount of the assets.

(b) A funeral director shall transfer a contract and assets to another funeral director if any of the following events occur:

(1) The funeral director's business is sold.

(2) The funeral director becomes insolvent or bankrupt.

(3) The funeral director ceases to do business. Before transferring a contract and assets under this subsection, the funeral director shall notify the buyer of the director's intent to make such a transfer, and the buyer may choose the funeral director to whom the contract and assets will be transferred.

(c) If a buyer of a prepaid funeral arrangement defaults in making payments required under the terms of the contract, or if the buyer or the person responsible for making funeral arrangements for the deceased beneficiary fails to have the funeral director provide services, the funeral director may retain up to five percent of the amount in the escrow account at the time of default. The escrow agent shall pay the amount retained to the funeral director and the balance to the buyer when the funeral director gives written notice of default.

(d) The assets held in an escrow account, including any earnings on the assets, shall not be available to the funeral director and shall be exempt from levy or execution for the debts of the funeral director, except as otherwise provided in this subchapter. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993.)

§ 1275. Duties of escrow agents

(a) An escrow agent appointed in accordance with the provisions of this subchapter shall maintain funds in an escrow account intact, unless commingled in a single account with other such funds, or until the services contracted for are performed, and the merchandise delivered, the buyer defaults, or the contract and assets are transferred under section 1274 of this title. When the funeral director submits a death certificate and acknowledgment that the contract has been performed, the escrow agent shall pay to the funeral director the amount deposited and all income earned thereon and retained in the account. The certificate and affidavit shall be sufficient to authorize the escrow agent, acting alone, to make such payment without liability to any other person.

(b) If, for any reason, the funeral director fails promptly to meet his or her obligation under the contract upon the death of the beneficiary, the next of kin or personal representative of the deceased person, having provided for such services, may receive from the escrow agent the amount of money in the escrow account. An affidavit which states that services have been performed or property delivered, signed by the next of kin or personal representative and the funeral director who has provided such services, shall be sufficient to authorize the escrow agent, acting alone, to make such payment without liability to any other person. Nothing contained in this section shall excuse nonperformance by a funeral director. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993.)

§ 1276. Embalming fluids and compounds; sale or use; prohibition

The sale or use for embalming purposes of any fluid containing arsenic, zinc, mercury, copper, lead, silver, antimony, chloral, or cyanogen, or of any compound containing any of these, or any poisonous alkaloid, shall be prohibited, and all brands of embalming compounds used within the state shall be tested and approved under direction of the state board of health. (Added 2009, No. 35, § 24.)

§ 1277. Suspicious cases

A person shall not embalm or introduce any fluid into a body of a person who has died under suspicious circumstances or when a criminal cause of death is suspected until after a legal investigation has determined the facts. An embalmer shall forthwith report any such case to the office of the chief medical examiner and obtain permission to embalm the body. (Added 2009, No. 35, § 25.)