Section 77.12 - Misconduct

77.12 Misconduct. Misconduct in the business and practice of funeral directing within the meaning of paragraph (f) of subdivision (1) of section 3450 of the Public Health Law, shall include, but is not limited to, the following:

(a) failing to comply with the provisions of law, rules and regulations relating to the funeral directing, undertaking and embalming;

(b) exercising undue influence on a customer, misleading a customer, or misrepresenting to a customer the sale of services or merchandise and thereby taking unfair advantage of the customer, under the circumstances which existed during the course of the sale;

(c) (1) making or filing a false report or inducing another person to do so; or (2) failing to file a report required by law, rules and regulations relating to funeral directing, undertaking and embalming, or willfully obstructing such filing or inducing another person to do so;

(d) revealing the personally identifiable facts, data or information about a decedent or customer, obtained in the business or practice of funeral directing without the prior consent of the customer, except as:

(1) authorized and/or required by law or regulation; or

(2) as necessary to complete the performance of the contract between the customer and the funeral director;

(e) delegating funeral directing responsibilities to a person when the licensee delegating such responsibilities knows, or has reason to know, that such person is not qualified by training, experience or licensure, to perform them;

(f) harassing, abusing, intimidating or otherwise threatening a customer;

(g) abandoning, neglecting, abusing or failing to treat with dignity and respect, a dead human body entrusted to the licensee;

(h) charging for services not contracted for or failing to provide or making substitution for services contracted for without the authorization of the customer;

(i) charging for any item of merchandise:

(1) not required by law, which is not authorized by the customer; or

(2) which is not actually furnished;

(j) making a substitution for merchandise arranged and contracted for when such substitution is not authorized by the customer;

(k) charging in excess of the amount advanced, paid or owed to third parties on behalf of the customers, or not passing along to the customer any discount, rebate or other benefit received from third parties for any items of service or merchandise described as cash advances. Cash advances shall include, but are not limited to the following services or merchandise:

(1) cemetery or crematory charges;

(2) clergy honoraria;

(3) death certificate transcripts;

(4) escorts;

(5) chevra kadisha (Tahara);

(6) public transportation (common carrier);

(7) gratuities;

(8) bridge and road tolls; and

(9) telephone and telegraph charges;

(l) suggesting, or implying in any manner, that the customer's expressed concern about prices, inexpensive services or merchandise, or desire to save money, is improper or inappropriate;

(m) verbally disparaging to a customer the quality or appearance of merchandise or services which the licensee or funeral firm has advertised or offered for sale;

(n) failing to display the less expensive items of merchandise advertised or offered for sale in the same manner and condition as the more expensive items of merchandise;

(o) (1) misrepresenting the law or public health necessity, including but not limited to representing that State or local law requires that a deceased person be embalmed, or that a casket is required for direct cremations, or that outer interment receptacles are required, or that any purchase of goods or services is required when such is not the case; or

(2) misrepresenting cemetery or crematory regulations or requirements, including but not limited to representing that such regulations or requirements require that a deceased person be embalmed, or that a casket is required for direct cremations, or that outer interment receptacles are required when such is not the case, or that any purchase of goods or services is required when such is not the case; or

(3) misrepresenting religious requirements; however, this shall not include differences in interpretation of religious requirements when due diligence has been exercised to determine those requirements on behalf of the customer; or

(4) misrepresenting that a deceased person is required to be embalmed for direct cremation, for direct burial, for a funeral using a sealed casket or for a funeral without viewing or visitation when there is to be a closed casket and refrigeration is available; or

(5) misrepresenting that a casket (other than an unfinished wooden box) is required for direct cremation, or misrepresenting that any other container is required by the crematory when such is not the case;

(p) obtaining custody of a deceased human body without having first received from a customer explicit written or oral authorization; (q) failing to promptly release a body and/or give information in regard to the release, care and whereabouts of a body upon the request of a customer;

(r) embalming or furnishing other services or merchandise, without having first obtained from the customer explicit written or oral authorization;

(s) making false, misleading or unsubstantiated claims directly, or by implication, as to the benefits or quality of funeral merchandise or services, including but not limited to:

(1) misrepresenting that funeral merchandise or services will delay the natural decomposition of human remains for a long-term or indefinite time; or

(2) misrepresenting that funeral goods have protective features or will protect the body from gravesite substances, when such is not the case;

(t) indicating interest charges or finance charges unless written disclosure is contained in the statement of itemization. Such disclosure shall include the payment due date after which interest charges or finance charges will be assessed, and the annual percentage rate of interest or charge, and, where repayment is on the basis of a fixed periodic repayment schedule, such disclosure shall include the interest or finance charge in dollars;

(u) (1) failing to conspicuously and legibly display the actual retail price on each casket, outer interment or entombment receptacle, or other item of funeral merchandise offered for sale (in regard to the particular items of casket and outer interment receptacle, the actual retail price printed in half-inch numbers or larger will be considered as legible); or

(2) failing to legibly display the actual retail price with each picture, when pictures are used for the presentation of merchandise for sale;

(v) displaying with caskets, outer interment or entombment receptacles, or any other funeral merchandise, any price other than the actual retail price of that particular item;

(w) inducing the customer to consent to delay or otherwise change the desired day or time of the funeral by misstating facts or circumstances relating to such funeral, burial or cremation:

(1) resulting in an increase in charges for the funeral to the customer; or

(2) depriving the customer of his desire to have the funeral at a particular time, when such particular time has been expressed by the customer as an essential element of the funeral;

(x) procuring or soliciting, or attempting to procure or solicit, funeral patronage through the use of door-to-door or telephone solicitation methods unless specifically requested by a potential customer;

(y) representing, permitting a representative to be made, or describing any funeral firm or entity as a society, fund, trust, or in any other way which might indicate that such funeral firm or entity is not-for-profit, unless such funeral firm or entity is not-for-profit, or unless such description includes a statement that such funeral firm or entity is for-profit;

(z) requiring that a casket other than an unfinished wooden box be purchased for direct cremations or failing to make an unfinished wooden box or alternative container available for direct cremations if direct cremations are arranged;

(aa) conditioning the furnishing of any funeral merchandise or services to a person arranging a funeral upon the purchase of any other funeral merchandise or services, except as required by law or as permitted by this Part. Failing to comply with a request for a combination of merchandise or services that would be impossible, impractical or excessively burdensome to provide or not regularly offered by the funeral firm shall not be misconduct.

(bb) (1) charging additional fees for topical disinfection when embalming was selected or necessary because of other selections made as set out in Item 1-C of section 78.2 of this Title.

(2) charging additional fees for custodial care for a time period during which a charge was incurred for embalming, or for other preparation, or for visitation or for the funeral service.

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