Part 77 - Practice Of Funeral Directing

Effective Date: 
Wednesday, August 15, 2018
Doc Status: 
Complete
Statutory Authority: 
Public Health Law, Sections 3400(k), 3401(1)

Section 77.0 - Definitions

Section 77.0 Definitions.

The following words and phrases as used in this Part shall have the following meanings, unless the context otherwise requires:

(a) Departmentmeans the New York State Department of Health.

(b) Commissionermeans the Commissioner of Health of the State of New York.

(c) Schoolmeans any educational institution wherein funeral directing, embalming and related subjects are taught for the purpose of preparing students for licensing and practice as funeral directors.

(d) Curriculummeans the complete program of instruction in funeral service education.

(e) Accrediting agencymeans a duly constituted and departmentally recognized agency which evaluates and accredits curricula in funeral service education.

(f) Common carrieris defined, for the purposes of this Part and Part 13 of this Title, as a carrier licensed or authorized to transport cargo by any of the following:

(1) New York State Department of Transportation;

(2) Interstate Commerce Commission;

(3) Federal Aviation Administration; or

(4) United States Coast Guard.

(g) Customermeans the person making arrangements, or the customer's designee, to whom a written statement showing thereon the price of the funeral, including an itemized list of the services and merchandise to be furnished for such price, shall be furnished at the time funeral arrangements are made.

(h) Customer's designeemeans the person whom the funeral director reasonably believes to be acting on behalf of a customer.

(i) Casketincludes coffinand means a rigid container designed for the encasement of human remains and customarily ornamented and lined with fabric.

(j) Outer interment receptaclemeans any container or enclosure which is placed in the grave around the casket to prevent the collapse of the grave and/or to protect the casket, including but not limited to receptacles commonly known as burial vaults, grave boxes or grave liners.

(k) Actual retail priceis the price for which a funeral director regularly sells an item of merchandise to customers.

(l) Direct cremationis the disposition of human remains by cremation, without a formal viewing, visitation or ceremony with the body present.

(m) Direct burialis the disposition of human remains by burial, without formal viewing, visitation or ceremony with the body present, except for a graveside service.

(n) Unfinished wooden boxis an unornamented casket made of wood which does not have a fixed interior lining.

(o) Alternative containeris a nonmetal receptacle or enclosure, without ornamentation or a fixed interior lining, which is designed for the encasement of human remains and which is made of cardboard, pressed wood, composition materials (with or without an outside covering) or pouches of canvas or other materials.

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Section 77.1 - Academic requirements for funeral director examination

77.1 Academic requirements for funeral director examination.

(a) Applicants for examination pursuant to section 3421(1) of the Public Health Law shall submit evidence of satisfactory completion of a course of collegiate-level study in funeral service, as required by section 3421(2)(b) of the Public Health Law, consisting of not less than 60 semester credits or 90 quarter credits in an institution or institutions approved by the department or approved by an accrediting agency recognized by the department. The approved course of study shall consist of the following curriculum:

Area of study Hours Examples of courses (illustrative only)
Mortuary Arts & Sciences
and Related Academic Disciplines
22 semester credit
or
33 quarter credit
Embalming, Restorative Art, Anatomy, Chemistry, Microbiology, Pathology, Personal and Public Health, Biology, Practicum.
Funeral Service Education and Related Academic Disciplines 22 semester credit
or
33 quarter credit
Funeral Service Orientation,
Funeral Counseling, Funeral Directing, Funeral Home Management, Funeral Merchandising, Funeral Home Accounting, Business and Mortuary Law, Practicum.
Electives (Institutional Requirements) 16 semester credit
or
24 quarter credit

(b) The department shall accept, in lieu of completion of a course of collegiate-level study in funeral service as described in subdivision (a) of this section, satisfactory evidence that the applicant possesses an Associate or higher degree in funeral service awarded by an institution approved by the department or approved by an accrediting agency recognized by the department.

(c) Any applicant for examination pursuant to section 3421(1) of the Public Health Law may submit evidence that:

(1) prior to October 17, 1983, he/she was enrolled in a college or university approved by the State Education Department or approved by an accrediting organization recognized by the department;

(2) he/she completed a general course of study consisting of not less than 30 semester credits;

(3) such general course of study was completed by October 17, 1987; and

(4) he/she began funeral service study within one year of completion of such general college study.

(d) Upon submission of the evidence contained in subdivision (c) of this section, the department shall, whenever it benefits the applicant, substitute, in lieu of completion of a course of collegiate-level study in funeral service as described in subdivision (a) of this section, the satisfactory completion of the following course of study consisting of 42-2/3, semester credits or 64 quarter credits in an institution or institutions approved by the department or approved by an accrediting agency recognized by the department.

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Section 77.2 - Examinations

77.2 Examinations.

(a) A candidate for examination shall submit evidence satisfactory to the department that such applicant:

(1) has met the academic requirements for funeral director examination contained in section 77.1 of this Part; and

(2) is a citizen of the United States at the time of filing such application, or an alien lawfully admitted for permanent residence.

(b) An applicant for examination, who has been convicted of a felony (by any court in this State or by any court of the United States or by any court of any other state of the United States, or of any crime of which such applicant shall have been convicted, by any court of the United States or of any other state, which is not a felony in the jurisdiction in which the conviction is had, but is a felony in the State of New York) or a misdemeanor, shall submit such documentation as the department may require to make a determination as to whether there is satisfactory evidence of the applicant's good moral character as required by section 3421(1) of the Public Health Law.

(c) Where applicable, an applicant for examination shall submit supporting documentation of a change in name, such as a photocopy of a judicial order from a court of legal jurisdiction or a marriage certificate.

(d) An applicant for examination who is a veteran of the Armed Forces of the United States shall submit a photocopy of an official United States Armed Forces Certificate of Discharge and/or an official Report of Transfer or Discharge.

(e) Examinations for funeral director license may include the following subjects:

(1) the law;

(2) the State Sanitary Code (Chapter I of this Title);

(3) rules and regulations of the commissioner;

(4) tests for death;

(5) hygiene and sanitary science;

(6) disinfection;

(7) mortuary law;

(8) pathology;

(9) bacteriology;

(10) anatomy;

(11) applied chemistry;

(12) practical embalming;

(13) restorative art;

(14) funeral management;

(15) care and preparation of the human dead for final disposition;

(16) ethics;

(17) accounting;

(18) psychology;

(19) business English; and

(20) speech.

(f) Every candidate for a funeral director license shall pass such an examination with a grade of not less than 75.

(g) Gradings need not represent arithmetic percentages, but may, in the department's discretion, be higher than percentage ratings and be computed on the basis of either an arithmetic addition of a certain number of points to the percentage rating of each candidate, or an arithmetic adjustment of deductions for errors or of credits for correct answers obtained by each candidate.

(h) The department shall determine the method of grading each examination separately, and shall apply the method uniformly to all candidates taking that examination. The department shall not disclose the percentage ratings of candidates by individual identity to any of its officers or employees responsible for determining the final grading of an examination until such determination has been made.

(i) In determining the method to be used in grading an examination, the department shall take into consideration:

(1) the advice and judgment of department officers, employees and consultants regarding the difficulty of the examination in relation to the minimum requirements for satisfactory performance as a funeral director; and

(2) the results of any studies conducted regarding the difficulty of the examination.

(j) The department may conditionally admit to examination for licensure an applicant who, on the date of a scheduled examination for licensure, has not fully established his qualifications, if, in the judgment of the department, it appears that such qualifications will be fully completed within 45 days after the date of such examination. Unless such applicant submits satisfactory evidence of such completion of qualifications within 45 days following the date of the examination, the department shall notify the applicant that he is not qualified for licensure.

(k) The department shall accept, in lieu of an applicant's passing with acceptable scores its own examination, certification from The Conference of Funeral Service Examining Boards of the United States, granted on the basis of an applicant's passing with acceptable scores an approved National Board Examination taken after August 31, 1973. For acceptance of such certification, an applicant must meet all the requirements for admission to the New York State funeral director licensing examination. However, such certification shall not be applicable to the department examination required by section 3421(4)(d) of the Public Heath Law.
 

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Section 77.3 - Registered residents

77.3 Registered residents.

(a) Every candidate for funeral director licensure, upon entering employment as a registered resident as required by the provisions of the Public Health Law, shall register with the department, within two weeks from the date of the beginning of such employment, on a form prescribed by the department.

(b) No funeral firm shall be approved to employ a registered resident unless the manager, or sponsor designated by the manager, submits satisfactory evidence and a signed statement, on a form provided by the department, that:

(1) the residence shall be under the supervision of a manager or sponsor designated by the manager, who is licensed and registered as a funeral director or undertaker and embalmer, and who is regularly employed by the funeral firm;

(2) during the 12 months immediately preceding the date of beginning of the proposed residency period of the applicant, the funeral firm in which the registered resident is to be employed has had, and has serviced or handled, at least 40 cases directly for, and pursuant to engagement by, the respective families or friends of the decedent, exclusive of cases of stillborn children and exclusive of cases serviced or handled for and on behalf of, or in conjunction with, other funeral firms. These 40 cases may be a total of all cases done by branches and/or affiliate funeral firms;

(3) the funeral establishment in which the registered resident is to be employed contains adequate facilities for embalming as required by the department pursuant to its rules and regulations; and

(4) residence practice in connection with funeral arrangements shall consist of observing, instruction, taking of preliminary information and exposure to the sale of service and merchandise.

(c) The registered residency shall be of a grade and character satisfactory to the department and, in addition thereto:

(1) the registered resident shall serve for not less than the period required by law;

(2) the registered resident shall serve on a full-time work schedule which shall be of sufficient scope to include training in all aspects of funeral service;

(3) the registered resident and the manager or the sponsor designated by the manager shall jointly file quarterly reports with the department, on forms provided by the department. Reports are due immediately after the end of each quarter, and shall be signed and mailed to the Albany office of the department with a copy sent to the appropriate department area office representative within 10 days following the end of the quarter. Reports mailed thereafter may be accepted if, in the judgment of the department, a justifiable cause existed for delay;

(4) the registered resident, manager or sponsor designated by the manager shall report to the department, on a form provided by the department, any change in manager or sponsor or discontinuance or completion of residency within 10 days after such occurrence;

(5) the registered resident shall carry with him at all times while engaged in activities relative to the residency, a pocket card issued to him by the department. In the event of loss or destruction thereof, a duplicate pocket card shall be issued by the department; and

(6) the registered resident shall be subject to all provisions of article 34 of the Public Health Law, the administrative rules and regulations, and other laws relating to funeral directing.

(d) If the employer funeral firm fails to comply with the provisions of the law and with these regulations to the satisfaction of the department, the department may refuse to register registered residents from such funeral firm for such period as the department may prescribe.

(e) After or during the serving of a one-year period as a registered resident, the department may direct either or both the registered resident, the manager or the sponsor, to appear, at a time and place designated by the department, for an oral interview to determine the resident's qualifications for full licensure.

(f) After or during the serving of a one-year period as a registered resident, the resident shall appear for an examination on New York State laws, rules and regulations relating to funeral directing as provided for in section 3421(4) (d) of the Public Health Law.
 

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Section 77.4 - Funeral service schools

77.4 Funeral service schools.

(a) Approval procedure. (1) Any school offering a curriculum in funeral service education may make application for approval on a form provided by the department and shall remit the fee prescribed by law.

(2) Any school applying for approval shall supply all data necessary for a complete evaluation of its administration, curriculum, physical facilities, faculty, and such other information as the department may require.

(3) A certificate of approval shall be issued to a school maintaining standards satisfactory to the department.

(4) The department may grant full approval, provisional approval, limited approval or conditional approval.

(5) Approval shall be on a fiscal-year basis, starting April 1st of each year and terminating the following March 31st. The certificate of approval issued to any school by the department during a fiscal year shall expire at the end of that fiscal year. Application for renewal of approval in any year shall be made not later than 60 days prior to the beginning of the new fiscal year. Each school shall remit with the renewal application such fee as is prescribed by law.

(6) The department may, in lieu of the approval procedures contained in paragraphs (1)-(3) and (5) of this subdivision, accept the certification of accreditation issued by an accrediting organization recognized by the department, or the department may conduct its own examination and evaluation to determine the degree of compliance by the school of the rules, regulations and standards of the accrediting agency.

(7) Approval of a school for funeral service education may be withdrawn by the department for any violation of this Part or of the provisions of the Public Health Law or other statutes pertaining to funeral directing, or the rules, regulations and standards of the accrediting agency. When charges of violation are brought to the attention of the department, the affected school shall be notified in writing of the alleged violations, and shall be given an opportunity to be heard on the charges. If, after hearing, the school shall be found guilty of the violations, the certificate of approval may be withdrawn by order of the commissioner served personally or by mail on the school.

(8)(i) A school whose approval has been withdrawn shall not be eligible for a new approval until such time as the school has corrected all conditions specified in the withdrawal order.

(ii) Reports. Each approved school shall report in writing to the department the name and address of each student enrolled in the funeral service course who has expressed an intention to apply for a funeral director license in the State of New York. Upon graduation, a certification of graduation, together with a transcript of grades and attendance records, shall be forwarded by the school to the department within 20 days after graduation.

(iii) Students. A student, enrolled in the funeral service course of an approved school, who enters active service in the Armed Forces of the United States of America, may continue his academic studies, provided such student registers within one year after the date of the honorable termination of his initial term of such active service, but credit for studies prior to his entry therein shall be at the discretion of the school administrator.
 

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Section 77.5 - Funeral establishments

77.5 Funeral establishments.

(a) The business and practice of funeral directing shall be conducted and registered only from a fixed funeral establishment.

(b) Separate buildings or portions thereof connected by a private passageway, walk or driveway shall constitute a single funeral establishment.

(c) After February 28, 1974, all funeral firms and their funeral establishments shall comply and conform as follows:

(1) Embalming. No embalming of a body of a deceased person shall be performed in a funeral establishment except in a room set aside exclusively for embalming or other preparation of a body of a deceased person. Such room shall be maintained and kept in a clean and sanitary condition.

(2) Embalming and preparation room. Every embalming and preparation room shall be constructed, equipped and maintained as follows:

(i) the surfaces of the floor, walls and ceiling shall be covered with tile or other hard, smooth, impervious washable material;

(ii) the room shall be adequately lighted and adequately ventilated. The ventilation shall be provided by an exhaust fan or by an appropriate air-conditioning unit which will completely remove objectionable fumes;

(iii) the room shall be equipped and provided with hot and cold running water, a utility sink, and cabinets, closets or shelves for instruments and supplies; (iv) the room shall be equipped with adequate sewage and waste disposal and drainage facilities and systems;

(v) the doors shall be tight-closing and rigid, and any windows of the room shall be so maintained as to obstruct any view into such room;

(vi) the embalming or preparation table shall be nonporous; and

(vii) the room shall be equipped with proper and convenient receptacles for refuse, bandages, cotton and other waste materials.

(3) Business telephone. Every registered funeral firm shall have, listed and in working order, at its registered address a business telephone, the number of which shall be indicated as the business telephone number. Any other telephone number also listed for the funeral firm shall be specifically designated as "residence telephone number," "number to call if no answer," or otherwise identified.

(4) Display of signs. Every registered funeral firm shall display a sign indicating the true funeral firm name as registered with the department. Such sign shall be conspicuously located at or near the main entrance and shall be visible from the exterior of the building. The lettering of the funeral firm name shall be legible and shall have a minimum height of 1-1/2 inches. Wherever the name of the funeral firm appears on a sign indicating the location or presence of an establishment, only the funeral firm name registered with the department shall be used. A change in a funeral firm's registered name shall be indicated on any and all signs. Signs shall conform with all local laws, ordinances and regulations.

(5) Listings, publications and advertising. Only true funeral firm names and addresses, as registered with the department, shall appear in telephone listings or other publications and in advertising by any media whatsoever of funeral firms. This paragraph shall not apply to the listing or advertising of funeral firms outside the State.

(6) Food and beverages. The provision of space, facilities, equipment, accommodations or supplies for, or the preparation, sale, service or distribution of, or the consumption of, food or nonalcoholic beverages to or by friends, relatives, mourners, family, visitors or next of kin of any deceased person in the funeral establishment is permitted, but not required to be offered. Food or nonalcoholic beverages may also be provided by a third-party catering service, provided that such catering service is not owned by or affiliated with the funeral firm engaged in funeral directing at the funeral establishment. This paragraph is subject to the following conditions:

(i) the preparation and serving of food and nonalcoholic beverages in the funeral establishment shall be limited to arranging, opening, displaying, and assembling items for consumption, and does not include cooking or heating of food items with the exception of hot beverages such as coffee, tea or similar items;  

(ii) food items must be limited to incidental refreshments such as baked goods, sandwiches, snacks, platters, pre-packaged food items and items which may be required by the religious practices of the family members, mourners, visitors or friends of the deceased;

(iii) the preparation and serving of any food and beverages shall be prohibited in the: preparation area as defined in section 77.5(d)(3) of this Part; and the chapel or reposing room as defined in section 77.5(d)(1) of this Part, whenever there is deceased person present for a viewing, visitation or funeral services.

(iv) any separate charges for the use of facilities for the serving of food and nonalcoholic beverages

(a) shall be charged only for a specifically dedicated food and beverage service area,

(b) shall be stated clearly on the General Price List, and

(c) shall include any charges for cleaning, equipment or the like, as required by section 79.4(e)(6). 

(d) A funeral establishment of a funeral firm registering after February 28, 1974 shall, in addition to the provisions of subdivision (c) of this section, contain at least one of each of the following:

(1) a chapel or reposing room, containing at least 300 square feet of floor space, to be used exclusively for the conduct of funeral services;

(2) an arrangement office, to be used exclusively for making funeral arrangements and for other related business matters; and

(3) a preparation room, containing at least 120 square feet of floor space. The preparation, disinfection, embalming, washing, dressing and casketing or other care of a body of a deceased person shall take place only in such room, which room shall contain only articles and equipment necessary for such preparation. Such room and equipment, instruments and articles contained therein shall be maintained and kept in a clean and sanitary condition. Temporary storage of an uncasketed body of a deceased person awaiting burial or other final disposition shall take place only in such preparation room or in a storage room in a manner acceptable to the commissioner. (e) No change in name or transfer of title or interest to a successor entity or transfer of title to or leasehold of real property wherein a funeral establishment is located by a firm registered prior to March 1, 1974, and continuing thereafter to operate from such funeral establishment, shall require compliance with the provisions of subdivision (d) of this section.

Effective Date: 
Wednesday, August 15, 2018
Doc Status: 
Complete
Statutory Authority: 
Public Health Law, Section 3401

Section 77.6 - Registrations

77.6 Registrations.

(a) Funeral firm registrations. No funeral firm shall be registered from a funeral establishment that is not in compliance with section 77.5 of this Part, provided that nothing herein contained shall be construed or interpreted to prohibit the practice of funeral directing by more than one registered funeral firm from the same funeral establishment.

(b) Corporations.Application for registration of a new corporate funeral firm must be accompanied by a true copy of the certificate of incorporation as filed with the Secretary of State; a copy of the notice from the Secretary of State showing that the corporation has been duly incorporated; the name, residence address and title of each of its officers and directors; the name and residence address of each stockholder and other person, firm and corporation having a 10 per centum or greater proprietary, beneficial, equitable or credit interest; and the designation of a manager, which shall, unless otherwise acceptable to the department, be in the form of a certified copy of a resolution of the board of directors appointing such manager. A corporation which changes its name shall file with the Department of Health true copies of the amended corporate name certificate and filing receipt from the Secretary of State.

(c) Individual proprietor.Application for registration of a funeral firm to be operated under the individual name of the applicant must be accompanied by a certificate executed under penalty of perjury by the applicant certifying that he is the only person having a proprietary or financial interest in the business.

(d) Estates.Application for registration of a funeral firm operated by the estate of a deceased funeral director or undertaker shall be accompanied by an administrator's or executor's certificate, the names and addresses of all executors or administrators, and a certified copy of the assumed business name certificate as filed in the county clerk's office. Such duly appointed estate representatives, subject to the provisions of the Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act, may operate the funeral firm for a period of not more than 30 months from the date of death of the funeral director, provided the estate representative files a designation of, and registers, a licensed manager. In the event the funeral director or undertaker conducted 50 or fewer funerals during the 12 months immediately preceding his death, the estate representative may temporarily appoint any funeral director or undertaker to act as manager for the first six months following the death of the funeral director or undertaker, after which period a new manager shall be designated and registered with the department as hereinabove provided.

(e) Partnerships.Application for registration of a funeral firm operated by a partnership shall be signed by all partners and shall be accompanied by a certified copy of the certificate of assumed business name, as filed in the office of the county clerk, and by a certificate executed under penalty of perjury by the applicants certifying that they are the only persons having a proprietary or financial interest in the business.

(f) Assumed name.Application for registration of a funeral firm under a new assumed business name must be accompanied by a certified copy of the assumed business name certificate as filed in a county clerk's office.

(g) Changes.The individual, partnership or corporate owner or estate representative of a funeral firm operating from a funeral establishment shall notify the department in writing within 10 days of any change in name, address, ownership or other legal status. A change in ownership shall be considered a first registration for fee purposes under section 3428 of the Public Health Law.

(h) Individual licensee registration; special provisions.(1) The department shall issue a single certificate of biennial registration to any person who holds and registers both an undertaker and embalmer license, upon payment of the fees required for such license by the Public Health Law.

(2) Every person entitled to engage in the business and practice of funeral directing, undertaking or embalming shall at all times while actively so engaged or while on the premises of any funeral establishment, carry on his person a current certificate of biennial registration duly issued to him by the department. He shall exhibit such certificate when so requested by any of the following:

(i) a representative of the State or municipal government engaged in the administration or enforcement of law;

(ii) a representative of a cemetery, crematory, hospital, common carrier or casket showroom;

(iii) a person having lawful possession of a dead human body, the release of which is sought by such licensee.

(3) Every registrant shall give notice in writing to the department of any change of his residence address within 10 days after such change of residence. (i) Registration periods.(1) The biennial registration of licensed funeral directors, embalmers and undertakers shall be renewable July first of each even year.

(2) The biennial registration of funeral firms shall be renewable July first of each odd year.

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Section 77.7 - Funeral directing

77.7 Funeral directing.

(a) A funeral director, undertaker or embalmer shall not permit any unlicensed person to engage in or take charge of the activities for which a license to engage in the business or practice of funeral directing, undertaking or embalming is required by the provisions of the Public Health Law.

(1) A licensed and registered funeral director or undertaker or a registered resident shall be present and personally supervise and arrange for the removal or transfer of each dead human body from the place where death occurs, or from the place where it is released to him/her by the family or other legal authority.

(2) A licensed and registered funeral director or undertaker or a registered resident shall be present and personally supervise the conduct of each funeral service.

(3) Nothing herein shall be construed as prohibiting religious supervision of the funeral service by a member or members of the clergy designated by the family of the deceased person.

(4) A licensed and registered funeral director or undertaker or a registered resident shall, unless prevented by the rules or documented practices of the cemetery, be present and personally supervise the interment, delivery to and acceptance by crematory personnel at the crematory, or the pickup from or the delivery to a common carrier, of a dead human body.

(5) No person other than a duly licensed and registered funeral director or undertaker shall make or be permitted to make arrangements on behalf of any funeral director, undertaker or funeral firm with a customer or customer's designee:

(i) for temporary or final entombment, or cremation, disinterment, reinterment or other lawful disposition of a dead human body;

(ii) for the care, preparation, shipment or transportation of a dead human body; or

(iii) for the purchase, sale or rental of funeral merchandise, services or paraphernalia.

The taking of preliminary information over the telephone by an unlicensed person shall not be construed as the making of funeral arrangements under this section.

(b) (1) In no case shall a dead human body be released from any hospital, institution or other place where the death occurred or from the place where the body is held by legal authority to any person not a duly licensed and registered funeral director or undertaker or a registered resident.

(2) Every person, including, although not limited to, a person in charge of a hospital, institution, or place where a person has died, having lawful possession, charge, custody or control of a dead human body, shall request the person seeking to obtain the release of said body and acting as, for, or in behalf of a funeral director or funeral firm, to produce his/her current certificate of registration, showing that he/she is personally entitled to practice as a funeral director, undertaker or registered resident.

(c) Every person, including a person acting lawfully in an emergency, in charge of a cemetery, crematory, vault or other place to which a dead human body is brought for temporary or permanent disposition shall require the person in charge of such body to identify himself /herself as a duly licensed and registered funeral director or undertaker or as a registered resident and to produce his/her current certificate of registration as such. .

(d) In the event such burial or other disposition is not in the charge of a duly licensed and registered funeral director or undertaker or a registered resident, the person in charge of the cemetery, crematory, vault or other place where dead human bodies are brought for temporary or permanent disposition shall immediately submit to the Department of Health the name and address of the person who had charge of the body at the time of burial or other disposition and the name and address of the funeral director, undertaker, registered resident or funeral firm for which such person was acting.

(e) In the event that a person other than a duly licensed and registered funeral director or undertaker shall make any arrangements for the purchase, sale or rental of funeral merchandise, services or paraphernalia accompanied by the representative of a decedent at a casket showroom, display room or other facility, the owner or manager of such facility shall immediately notify the Department of Health of the name and address of the person and of the funeral director, undertaker or funeral firm for which such person was acting.

(f) Nothing contained in this section shall be deemed to require that a mere transporter, to whom or to which a dead human body has been duly released for the sole purpose of transportation or transfer, shall be a duly licensed and registered funeral director or undertaker or a registered resident.

(g) A funeral director, undertaker or funeral firm entering another state or a province of the Dominion of Canada, personally or by an agent or employee, pursuant to a reciprocal agreement between the State Commissioner of Health and such state or province, shall not violate any statute, code, rule or regulation of such state or province relating to the practice of funeral directing, undertaking or the equivalent thereof.

(h) A registered resident may only render the services described in this section under the supervision of the sponsor for his/her registration. A registered resident shall not have the authority to sign any form or document required by law which requires the signature of a licensed funeral director, or to make funeral arrangements or to own or manage a funeral firm.

Effective Date: 
Wednesday, October 7, 1998
Doc Status: 
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Section 77.8 - Managers

77.8 Managers.

(a) The manager of each funeral firm shall be a funeral director or undertaker duly licensed as such under and pursuant to the laws of the State of New York and shall be duly registered with the department as such manager.

(b) A funeral director or undertaker shall not serve and shall not be registered as a manager of more than one funeral firm.

(c) When a funeral firm owned and operated by a corporation organized under and pursuant to the laws of the State of New York for such purpose, the board of directors of such corporation shall designate an employee as manager. Such employee shall be a duly licensed and registered funeral director or undertaker of the funeral firm and his/her designation as manager shall be filed with the department.

(d) When a funeral firm is owned and operated by the estate of a deceased funeral director or undertaker, the duly appointed representative of the estate shall designate a duly licensed and registered funeral director or undertaker as manager, and his/her designation as manager shall be filed with the department.

(e) The funeral establishment of a funeral firm shall be under the immediate and personal supervision, direction, management and control of the manager, and his/her failure to exercise such supervision, direction, management and control adequately, shall constitute a violation of the rules and regulations of the State Commissioner of Health. Any violation of the provisions of article 34 of the Public Health Law, the Sanitary Code, the rules and regulations of the commissioner or of any statute, code, rule or regulation relating to the practice of funeral directing, embalming or vital statistics by the funeral firm or its personnel shall constitute a violation of the rules and regulations of the commissioner by the manager unless he/she exercised adequate supervision, management, direction and control to prevent said violation.

(f) If the manager is unable, for any reason, to exercise adequate supervision, direction, management and control of the funeral establishment, the manager, owner, board of directors or the representative of the estate, as the case may be, shall designate any funeral director or undertaker to serve as temporary manager and notify the department thereof in writing. If such inability of the manager exceeds 90 days or is expected to exceed 90 days, a new manager shall be designated and registered with the department as hereinbefore provided.

(g) The owner and operator or estate representative of a funeral firm shall notify the department in writing within 10 days of any change of manager of any funeral firm and shall file designation of the new manager as herein provided. In the case of a corporation, the designation of a new manager shall, unless otherwise acceptable to the department, be in the form of a resolution of the board of directors appointing such manager and a certified copy of such resolution shall be filed with the department.
 

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Section 77.9 - Tests prescribed by the commissioner for signs of death

77.9 Tests prescribed by the commissioner for signs of death. The embalmer or funeral director, before proceeding either to embalm, remove, cremate or bury the body, shall determine that life is extinct by ascertaining that:

(a) pulsation has ceased in the radial or other arteries;

(b) heart and respiratory sounds are not heard with the use of a stethoscope or with the ear applied directly over the heart.
 

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Section 77.10 - Embalming procedure

77.10 Embalming procedure.

(a) The preparation for burial or other disposition of all dead human bodies shall be performed in privacy. No one shall be permitted to be present in the embalming, operating or preparation room while a dead human body is being embalmed, washed or otherwise prepared for burial or other disposition, except the following:

(1) licensed funeral directors or embalmers and their employees;

(2) duly registered funeral director students and trainees;

(3) duly authorized instructors of funeral directing schools;

(4) public officials or representatives in the discharge of their duties;

(5) duly accredited doctors or nurses;

(6) members of the immediate family of the deceased and their designated representatives.

(b) The use of any fluid or compound which contains arsenic, lead, mercury, zinc, silver, antimony or chloral or any poisonous alkaloid in the embalming of a dead human body is prohibited.

(c) All blood and excretions of a dead human body shall be disposed of in a sanitary manner.

(d) All receptacles containing embalming fluid or any poisonous or dangerous substances shall be plainly marked to indicate the contents thereof.

(e) No embalmer or funeral director shall embalm, nor shall any funeral director, undertaker or embalmer permit the embalming of a dead human body when he has information reasonably indicating that death occurred as a result of accidental, homicidal or suicidal means or other suspicious or unnatural circumstances, until the body has been duly released to him for embalming or other preparation by the proper authority.

(f) A funeral director trainee may not embalm or perform any part of embalming procedure on a dead human body unless such activity is performed under the personal supervision and instruction of a New York State licensed and registered funeral director or a New York State licensed and registered embalmer.
 

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Section 77.11 - Funeral director business practices

77.11 Funeral director business practices. Every funeral director, undertaker or funeral firm shall give customers, unless otherwise agreed upon in writing at the time arrangements are made, documents which have been procured for or supplied by the customer within one week after the funeral. If the funeral director, undertaker or funeral firm does not have possession of such documents within that time, he shall give them to the customer when he obtains possession of them.
 

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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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