Report Title:

Cremation

Description:

Establishes regulatory scheme for crematoriums, including registration requirements establishing procedures for handling remains, securing authorization to cremate, and establishing limitations on liability of crematory.

HOUSE OF REPRESENTATIVES

H.B. NO.

1494

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CREMATION.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

CREMATION AND CREMATORY REGULATION

-1 Definitions. As used in this Act:

"Adult" means a person who meets the legal minimum age requirement to be an adult as recognized and mandated by the laws of this State.

"Authorizing agent" means a person legally entitled to order and direct the cremation and final disposition of specific human remains.

"Body parts" means limbs or other portions of the anatomy that are removed from a person or human remains for medical purposes during treatment, surgery, biopsy, autopsy, or medical research; or human bodies or any portion of bodies that have been donated to science for medical research purposes.

"Burial transit permit" means a permit for disposition of a dead human body as required by state law.

"Casket" means a rigid container that is designed for the encasement of human remains, is usually constructed of wood, metal, or similar material and may or may not be combustible.

"Cemetery" means a specifically dedicated property, columbariuim, mausoleum and related support buildings and facilities, having a specific street address and location and devoted to activities relating to the final disposition of human remains, or pets. Cemeteries are also commonly referred to as a "memorial park" and are duly registered, licensed, and regulated, as applicable, by the department of commerce and consumer affairs and the department of health.

"Change of ownership" means a transfer of the stock or assets of a crematory authority, resulting in one entity having fifty per cent or more of the stock or assets of a crematory authority.

"Cremated remains", "cremains", or "ashes" means all human remains recovered after the completion of the cremation, which may possibly include the residue of any foreign matter including casket material, bridgework, or eyeglasses that were cremated with the human remains.

"Cremation" means the irreversible process of reducing human remains to bone fragments (skeletal remains) through extreme heat and evaporation.

"Cremation chamber" means the enclosed space within which the cremation takes place.

"Cremation container" or "alternative container" means a receptacle, other than a casket, in which human remains are encased and transported to the crematory and placed in the cremation chamber for cremation and that is:

(1) Composed of readily combustible materials suitable for cremation;

(2) Able to be closed in order to provide a complete covering for the human remains;

(3) Resistant to leakage or spillage;

(4) Rigid enough for handling with ease; and

(5) Able to provide protection for the health, safety, and personal integrity of the crematory personnel.

"Cremation room" means the room in which the cremation equipment is located.

"Cremation equipment" means the actual equipment, machinery, or retort unit specifically designed and built for the purposes of cremating human remains while complying with all health, safety, and pollution regulations and requirements in its operation. Cremation equipment includes, but is not limited to, prebuilt and prepackaged cremation units or cremation equipment that is erected on site of the crematory.

"Crematory" means the building or portion of a building that houses the cremation room and the holding facility, having a specific street address and location and devoted to activities relating to the cremation of human remains.

"Crematory authority" means the legal entity that is duly registered, licensed, permitted, and regulated by the department of commerce and consumer affairs and department of health to operate a crematory and to perform cremations.

"Crematory operation means a crematory authority that, under its rules and sole discretion, will accept only human remains for cremation.

"Disinterred remains" means all of the recoverable human remains or remnants thereof, which can include the body or parts of the body, skeletal bones and bone fragments, clothing and personal belongings, and casket or urn parts, of a previously buried, entombed, or inurned decedent, whether cremated or not, which, after obtaining a required disinterment permit from the department of health, or by other legal process, have been exhumed from the original site of disposition.

"Embalmer" or "mortician" means a person licensed by the State, to practice embalming.

"Final disposition" means the lawful disposition of a dead human body or parts of a dead human body.

"Funeral director" means a person known by the title of "funeral director", or other similar title.

"Funeral establishment" means a legal entity and is comprised of a building or separate portion of a building having a specific street address and location and devoted to activities relating to the shelter, care, transportation, custody, and preparation of a deceased human remains and may contain facilities for funeral or wake services. Funeral establishments are also commonly referred to as "mortuary" or "funeral home", and are duly registered, licensed and regulated, as applicable, by the department of commerce and consumer affairs and department of health.

"Holding facility" means an area that:

(1) Is designated for the temporary retention of human remains prior to cremation;

(2) Preserves the dignity of the human remains;

(3) Complies with all applicable public health law;

(4) Preserves the health and safety of the crematory authority personnel; and

(5) Is secure from access by anyone other than authorized persons. A holding facility may contain refrigerated storage space and may be located within a funeral establishment or in or nearby a cremation room.

"Human remains means the body of a deceased person, or decedent, properly pronounced as to be without life, based upon the pronouncement of death statutes and definitions as mandated by the department of health and section 327C-1, Hawaii Revised Statutes, and in accordance with accepted medical standards.

"Niche" means an above-ground, indoor or outdoor compartment or cubicle for the memorialization and permanent placement of an urn containing cremated remains.

"Processing" or "pulverization" means the reduction of the cremated remains to unidentifiable bone fragments by manual or mechanical means.

"Scattering area" means an area where cremated remains, which have been removed from their container, can be mixed with, or placed on top of, the soil, water, or ground cover.

"State agency" means the applicable state department charged with the responsibilities as shall be delineated by the State, to monitor, receive applications or renewals, license, inspect, enforce, and regulate the operation of a crematory authority.

"Temporary container" means a receptacle for the temporary holding of cremated remains, usually composed of cardboard, plastic or similar material, which can be closed in a manner that prevents the leakage or spillage of the cremated remains, and is of sufficient size to hold the cremated remains.

"Urn" means a receptacle designed to encase the cremated remains and is usually composed of, but not limited to, bronze, copper, steel, or other metallic composition, wood, marble, granite, ceramic, or any other similar material.

"Urn outer container" or "urn vault" means a rigid outer container that, subject to a cemetery's rules, is composed of, but not limited to, concrete, steel, fiberglass, or similar material in which an urn is placed in prior to being interred in the ground and that is designed to withstand prolonged exposure to the elements and to support the earth above the urn.

-2 Establishment of a crematory and registration of a crematory authority. (a) Any person or legal entity doing business in this State may erect, maintain, and operate a crematory in this State and provide the necessary equipment and facilities for the cremation of human remains in accordance with this chapter.

(b) A crematory shall be subject to all local, State, and federal health and environmental protection requirements and shall obtain all necessary licenses and permits from the department of commerce and consumer affairs and department of health, the federal Department of Health and Human Services, and the federal Environmental Protection Agency.

(c) A crematory may be constructed at any location consistent with local zoning and building regulations.

(d) An application for a license and registration as a crematory authority shall be in writing on forms furnished and prescribed by the designated state agency. Applications for crematory authorities in existence prior to the effective date of the Act shall contain all of the following:

(1) The full name and address, both residence and business, of the applicant if the applicant is an individual; the full name and address of every member if the applicant is a partnership; the full name and address of every member of the board of directors if the applicant is an association; and the name and address of every officer, director, and shareholder holding more than twenty per cent of the corporate stock if the applicant is a corporation;

(2) A general statement of the crematory authority's assets and liabilities;

(3) A general statement for each of the individuals listed in the application under paragraph (1) providing, for the last ten years immediately preceding the application, any felony or misdemeanor convictions or involvement in civil litigation in which fraud was an essential element of the crime or complaint and any information about a loss or suspension of any license by this State or any other state related to the business of funeral service, operation of a cemetery or crematory;

(4) The address and location of the crematory;

(5) A description of the type of structure and cremation equipment presently in use in the operation of the crematory;

(6) Evidence confirming the date the crematory authority was established;

(7) Copies of all up to date licenses or permits required for a crematory to operate in the State; and

(8) Any further information that the state agency reasonably may require.

(e) An application for license and registration for a new crematory authority shall be in writing on forms furnished and prescribed by the designated state agency. Applications shall be accompanied by a fee of $ and shall contain the following:

(1) The full name and address, both residence and business, of the applicant if the applicant is an individual; the full name and address of every member if the applicant is a partnership; the full name and address of every member of the board of directors if the applicant is an association; and the name and address of every officer, director, and shareholder holding more than twenty per cent of the corporate stock if the applicant is a corporation;

(2) A detailed statement of the crematory authority's assets and liabilities;

(3) A detailed statement for each of the individuals listed in the application under paragraph (1) providing, for the last ten years immediately preceding the application, any felony or misdemeanor convictions or involvement in civil litigation in which fraud was an essential element of the crime of complaint and any information about a loss or suspension of any license by this state or any other state related to the business of funeral service, operation of a cemetery or crematory;

(4) The address and location of the proposed crematory;

(5) A description of the type of structure and cremation equipment to be used in the operation of the crematory;

(6) Copies of all applications for and any licenses or permits issued for a crematory to operate in the State; and

(7) Any further information that the state agency reasonably may require.

(f) Each crematory authority shall file an annual report with the designated state agency, on forms furnished and prescribed by the state agency, accompanied with a fee as specified by the state agency. Each crematory authority, if specified or required by a state agency, shall also file an application on forms furnished and prescribed by the state agency and accompanied with a fee as specified by the state agency for renewal of a license to continue to operate the crematory authority at such intervals set by the state agency. The annual report or, if applicable, renewal application, shall be filed by a crematory authority on or by any reasonable deadline as specified on the forms furnished by the state agency. The state agency, for good cause shown, shall grant an extension for the filing of the annual report or renewal application upon the written request of the crematory authority. An extension shall not exceed sixty days. If a crematory authority fails to submit an annual report or renewal application to the state agency within the time specified in this section, the state agency shall impose upon the crematory authority a penalty of $ for each and every day the crematory authority remains delinquent in the submitting the annual report or renewal application. The state agency, at any time during normal operating hours, may perform an unannounced inspection of the crematory and associated facilities, to ensure the operation is conducted within the limitations of this chapter.

(g) All records relating to the registration and annual report or renewal application of the crematory authority required to be filed under this section shall be subject to inspection by the state agency upon reasonable notice.

-3 Authorizing agent. The state agency shall by its rules designate the persons that may serve as authorized agents.

-4 Identification and release of human remains. (a) The authorizing agent shall assume full responsibility and liability for the identification of the human remains. Upon the official release of the human remains by the coroner, medical examiner, or authorized representatives thereof, or any hospice, hospital or care home staff authorized to make such official notification, or other competent authority, an authorizing agent is required to confirm in person the identification of the human remains prior to final disposition by means of a positive visual identification of the human remains. If the authorizing agent is not qualified or unable to positively identify the human remains, a qualified individual will be located and designated by the authorizing agent. If the identification is declined under any circumstances by the authorizing agent or designated alternate, the funeral director, funeral establishment, or crematory authority shall then base the identification and handling of the human remains mainly, if not solely, upon any preexisting tags, labels, identification bracelets, or other marks of identification that were attached or affixed to the human remains at the place of death, and shall proceed with the final disposition of the human remains without liability.

(b) In other situations where the circumstances of death make it difficult, impossible, or would otherwise require further verification to positively identify the human remains beyond normal procedures, the coroner, medical examiner, or other competent authority shall arrange for additional forensic investigations and tests as necessary on the human remains in order to obtain a positive identification of such human remains. Upon positive identification of the human remains by forensic methods, the human remains will then be properly tagged or labeled with the correct name of the human remains by the coroner, medical examiner, or other competent authority. Upon the official release by the coroner, medical examiner, or other competent authority of the human remains after such forensic-based identification, the funeral establishment or crematory authority shall then base the identification and handling of the human remains mainly if not solely upon any tags, labels, ID bracelets, or other marks of identification that were attached or affixed to the human remains at the place of death, and shall proceed with the final disposition of the human remains without liability.

(c) In the event the authorizing agent expressly wants to positively identify the human remains regardless of the condition or appearance of the decedent, and, being previously advised by the funeral establishment or crematory authority against so doing, the funeral establishment or crematory authority shall proceed with the identification process without liability. Any request to view and identify the human remains regardless of the condition or appearance of the decedent shall be submitted in writing by the authorizing agent or designated alternate holding the funeral establishment or crematory authority harmless from any liability or physical or emotional damages as a consequence of the viewing and identification. Upon completion of the identification as described in this subsection, and the authorizing agent or designated alternate does not or cannot dispute the forensic-based identification of the decedent to the contrary, the identity of the human remains shall remain as pre-identified by such forensic methods. The funeral establishment or crematory authority shall continue to base the identification and handling of the human remains mainly if not solely upon any tags, labels, identification bracelets, or other marks of identification that were attached or affixed to the human remains at the place of death, and shall proceed with the final disposition of the human remains without liability.

(d) Any human remains shall be deemed as officially released when a telephonic or comparable notification has been made to and confirmed received by the funeral establishment or crematory authority from and by the coroner, medical examiner, or authorized representatives, or any hospice, hospital, or care home staff authorized to make an official notification, or by any other competent authority.

(e) A funeral establishment or crematory authority shall not be held liable for proceeding with the transportation or final disposition arrangements of any human remains when the human remains were officially, yet in actuality, erroneously or prematurely released to the funeral establishment or crematory authority due to or as a consequence of any acts, errors, and omissions of and by the coroner, medical examiner, or authorized representatives, or by any hospice, hospital, home health, or care home authorized staff, or by any other competent authority.

-5 Authorization to cremate. (a) A crematory authority shall not cremate human remains until it has received all of the following:

(1) A cremation authorization form signed by an authorizing agent. The cremation authorization form shall be provided by the crematory authority and shall contain, at a minimum, the following information:

(A) The identity of the human remains and the date and time of death;

(B) The name of the establishment that obtained the cremation authorization;

(C) Notification as to whether the death occurred from a disease declared by the department of health or other competent authority to be infectious, contagious, communicable, or dangerous to the public health;

(D) The name of the authorizing agent and the relationship between the authorizing agent and the decedent;

(E) A representation, under penalty of perjury, that the authorizing agent does in fact has the legal and paramount right to authorize the cremation of the decedent;

(F) Authorization for the crematory authority to cremate the human remains and to process the cremated remains as its scheduling permits or by prior scheduling arrangement;

(G) A representation that the human remains do not contain a pacemaker or any other material or implant that may be potentially hazardous or cause damage to the cremation chamber or injury to the person performing the cremation. Additionally, if directed by the authorizing agent, specific instructions and information must be given to the funeral establishment or crematory authority on the recovery or disposition of any pacemakers, prosthetics, mechanical devices, dental, surgical, or radioactive implants on or with the human remains;

(H) The name of the person authorized to receive the cremated remains from the crematory authority or where they are to be delivered or forwarded to or any other written instructions thereto;

(I) The form must indicate that the cremated remains will be held by the crematory authority for a minimum of thirty days before they are released, unless they are picked up from the crematory authority prior to that time, in person, by the authorizing agent. At the end of the thirty days the crematory authority may return the cremated remains to the authorizing agent if no final disposition arrangements are made; or at the end of one hundred twenty days the crematory authority may dispose of the cremated remains in accordance with subsection (d) of section -9 without liability;

(J) A listing of any items of value to be delivered to the crematory authority along with the human remains, and instructions as to how the items should be handled;

(K) A statement that any service with the human remains present prior to cremation have been completed, and that the crematory authority can handle and proceed with the cremation upon receipt of the human remains based upon existing identification tagging of the human remains;

(L) The signature of the authorizing agent, attesting to the accuracy of all representations contained on the cremation authorization form, except as set forth in paragraph (M);

(M) If a cremation authorization form is being executed on a pre-need basis, the cremation authorization form shall contain the disclosure required by section -14(b);

(N) The cremation authorization form, other than pre-need cremation forms, shall also be signed by the individual who obtained the cremation authorization. That individual shall merely execute the cremation authorization form as a witness and shall not be responsible for any of the representations made by the authorizing agent, unless the individual has actual knowledge to the contrary. In addition, the establishment shall warrant to the crematory that the human remains delivered to the crematory authority have been previously and positively identified as provided under section -2 and that they are the human remains identified on the cremation authorization form; and

(O) The cremation authorization form shall clearly state both the name of the crematory authority and the specific street address and location of the crematory where the cremation will be performed;

(2) A completed and executed burial transit permit as prescribed by state law indicating that the human remains are to be cremated; and

(3) Any other documentation required by the State or county.

(b) An authorizing agent who signs a cremation authorization form shall be deemed to warrant the truthfulness of any facts set forth on the cremation authorization form, including the identity of the decedent whose remains are sought to be cremated and that person's authority to order such cremation; provided that the information required by subsection (1)(C) and (G), unless the authorizing agent has actual knowledge to the contrary. An authorizing agent signing a cremation authorization form shall be personally and individually liable for all damages occasioned by and resulting from authorizing the cremation. A crematory authority or funeral establishment may rely upon the representations of the authorizing agent in the cremation authorization form.

(c) After an authorizing agent has executed a cremation authorization form, the authorizing agent may revoke the authorization and instruct the crematory authority to cancel the cremation and to release or deliver the human remains to another crematory authority or funeral establishment. The instructions shall be provided to the crematory authority in writing. Once the human remains have been received by another crematory authority or funeral establishment the releasing crematory authority shall be discharged from any further liability in regards to the final disposition of the human remains. A crematory authority shall honor any instructions given to it by an authorizing agent under this section if it receives the written instructions prior to beginning the cremation of the human remains.

-6 Recordkeeping. (a) A crematory authority that is defined and classified as a crematory operation shall furnish to the person who delivers human remains to the crematory authority a receipt signed by both the crematory authority and the person who delivers the human remains, showing the date and time of the delivery, the type of casket or container that was delivered, the name of the person from whom the human remains were received and the name of the business entity whom the person is representing, the name of the person who received the human remains on behalf of the crematory authority, and the name of the decedent. The crematory authority shall retain a copy of this receipt in its permanent records.

(b) Upon its release of cremated remains, a crematory authority that is defined and classified as a crematory operation shall furnish to the person who receives the cremated remains from the crematory authority a receipt signed by both the crematory authority and the person who receives the cremated remains, showing the date and time of the release, the name of the person to whom the cremated remains were released and the name of the business entity whom the person is representing, the name of the person who released the cremated remains on behalf of the crematory authority, and the name of the decedent. The crematory authority shall retain a copy of this receipt in its permanent records.

(c) A crematory authority shall maintain at its place of business a permanent record of each cremation that took place at its facility which shall contain, at a minimum, the name of the decedent, the date of the cremation, and the final disposition of the cremated remains and any other recordkeeping or cremation information required by the state agency.

(d) The crematory authority shall maintain a record of all cremated remains disposed of by the crematory authority in accordance with section -9(d).

(e) Upon completion of the cremation, the crematory authority shall file the burial transit permit as required by state law. Obtaining any other necessary department of health permits required for the transportation or forwarding of the cremated remains, burial, inurnment, scattering, or any other lawful method of disposition of the cremated remains shall be the responsibility of the authorizing agent or, if applicable, the funeral establishment or funeral director assisting the authorizing agent.

(f) All cemeteries shall maintain a record of all cremated remains that are disposed of on their property, provided that the cremated remains were properly transferred to the cemetery and the cemetery issued a receipt acknowledging the transfer of the cremated remains.

-7 Cremation containers, caskets, temporary containers and urns. (a) No crematory authority shall make or enforce any rules requiring that any human remains be placed in a casket before cremation or that human remains be cremated in a casket. No crematory authority shall refuse to accept human remains for cremation because the remains are not in a casket.

(b) Any individual can provide a suitable cremation container, casket, temporary container, or urn for the cremation of the human remains or for the holding of the cremated remains.

(c) No funeral establishment or crematory authority shall make any representations, warranties, or implied warranties, of merchantability or fitness for a particular purpose regarding cremation containers, caskets, temporary containers and urns sold by the funeral establishment or crematory authority, except for any express written warranties, if any, extended by the manufacturers, or unless otherwise specifically stated in writing to the contrary by the funeral establishment or crematory authority.

-8 Cremation procedures. (a) Human remains shall not be cremated by the crematory authority until all civil or medical authorities, including the coroner, medical examiner, or any other competent authority, have officially released the human remains to the crematory authority or funeral establishment and have issued all required certificates and permits, and the crematory authority has received a cremation authorization form, executed by an authorizing agent in accordance with section -3.

(b) Except as set forth in subsection (a), a crematory authority shall have the right to schedule the actual cremation to be performed at its own convenience, at any time after the human remains have been delivered to the crematory authority, or as scheduled in advance with the authorizing agent, unless the crematory authority has received specific instructions to the contrary on the cremation authorization form.

(c) No human remains shall be cremated with a pacemaker or other potentially hazardous implant in place.

(d) No crematory authority shall refuse to accept human remains for cremation because the human remains are not embalmed as long as they are in compliance with applicable rules adoopted by the department of health.

(e) Whenever a crematory authority is unable or unauthorized to cremate human remains immediately upon taking custody of the remains, the crematory authority shall place the human remains in a secured holding area, and, if necessary, in a refrigerated facility at forty degrees Fahrenheit or less, unless the human remains have been embalmed.

(f) A crematory authority shall not accept: a casket or cremation container from which there is any evidence of the leakage of body fluids, or any unidentified human remains, unless identified as such by the coroner or medical examiner.

(g) The casket or the cremation container shall be cremated with the human remains or destroyed, unless the crematory authority has notified the authorizing agent to the contrary on the cremation authorization form and obtained the written consent of the authorizing agent.

(h) The simultaneous cremation of the human remains of more than one person within the same cremation chamber and the subsequent commingling of the cremains during the cremation without the prior written consent of the authorizing agent, is prohibited. Nothing in this subsection, however, shall prevent the simultaneous cremation within the same cremation chamber of body parts or disinterred remains delivered to the crematory authority from multiple sources or the use of cremation equipment that contains more than one cremation chamber.

(i) No unauthorized person shall be permitted in the holding facility or cremation room while any human remains are being held there awaiting cremation, being cremated, or being removed from the cremation chamber.

(j) A crematory authority shall not remove, or allow the removal of, any dental gold, body parts, organs, or any item of value prior to or subsequent to a cremation without previously having received specific written authorization from the authorizing agent and written instructions for the delivery of these items to the authorizing agent. It shall be the responsibility of the authorizing agent to locate and compensate a competent professional to remove any of the items as described in this subsection when it is determined that the removal is beyond the normal scope and responsibility of the funeral establishment or crematory authority. Under no circumstances shall a funeral establishment or crematory authority profit from making or assisting in the removal of valuables.

(k) Immediately prior to being placed within the cremation chamber, the identification of the human remains, as indicated on the identifying documents, tags, or labels, shall be verified in the physical presence of a minimum of two authorized and qualified individuals from the crematory authority. The respective identifying documents, tags, or labels shall be then placed near the cremation equipment control panel where it shall remain in place until the cremation process is complete. A metal cremation identification tag or similar device, with proper recordation, may also be placed within the cremation chamber along with the human remains during the cremation process.

(l) Upon the completion of each cremation, and to the extent possible, all of the recoverable particles of the cremation process shall be removed from the cremation chamber. To the extent possible, all particles of the cremation process shall be separated from anything other than bone fragments and be processed. Anything other than the particles shall be removed from the cremated remains as far as possible and shall be disposed of by the crematory authority except under subsection (j).

(m) The cremated remains with proper identification or metal cremation identification tag shall be placed in a temporary container or urn as selected by the authorizing agent. The temporary container or urn contents shall be packed in clean packing materials and not be contaminated with any other object, unless specific authorization has been received from the authorizing agent.

(n) If all of the recovered cremated remains will not fit within the container that has been selected, the remainder of the cremated remains shall be returned to the authorizing agent or the agent's designee in a separate container. The crematory authority shall not return to an authorizing agent or the agent's designee more or less cremated remains than were removed from the cremation chamber.

(o) A crematory authority shall not knowingly represent to an authorizing agent or the agent's designee that a temporary container or urn contains the cremated remains of a specific decedent when it does not.

(p) When cremated remains are to be shipped or mailed, they shall be adequately packed to insure sufficient protection and integrity of the cremated remains in transit. The cremated remains shall be shipped only by a method that has an internal tracing system available by the carrier and which also provides a receipt signed by the person accepting delivery.

(q) Notwithstanding the identification and handling procedures as set forth in this section, a crematory authority shall maintain at all times an identification system that ensures that it is able to properly and accurately identify the human or cremated remains in its possession throughout all phases of the cremation process.

(r) No person, cemetery, funeral establishment, corporation, partnership, joint venture, voluntary organization, or any other entity shall cremate any human remains, except in a crematory licensed for this express purpose and under the limitations provided in this chapter.

-9 Disposition of cremated remains. (a) The authorizing agent shall be responsible for the final disposition of the cremated remains.

(b) Cremated remains may be placed in a grave, crypt, or niche. Cremated remains may be disposed of by scattering them at sea, in a scattering area as defined in this chapter, or in any manner on the private property of a consenting owner.

(c) Upon the completion of the cremation process, and except as provided for in section -5, if the crematory authority has not been instructed to arrange for the interment, entombment, inurnment, or scattering of the cremated remains, the crematory authority shall deliver or make available the cremated remains to the individual specified on the cremation authorization form, or, if no individual is specified, then to the authorizing agent. The delivery may be made in person or by a shipping or mailing method that has an internal tracking system available by the carrier and that also provides a receipt signed by the person accepting delivery. Upon receipt of the cremated remains, the individual receiving them may transport them in any manner in this State, from island to island, with a department of health permit, and may dispose of them in accordance with this section. After delivery or release, the crematory authority shall be discharged from any legal obligation or liability concerning the cremated remains.

(d) If, after a period of one hundred twenty days from the date of the cremation, the authorizing agent or the agent's designee has not instructed the crematory authority to arrange for the final disposition of the cremated remains or claimed the cremated remains, the crematory authority may dispose of the cremated remains in any manner permitted by this section. The crematory authority, however, shall keep a permanent record identifying the site of final disposition. The authorizing agent shall be responsible for reimbursing the crematory authority for all reasonable expenses incurred in disposing of the cremated remains. Upon disposing of the cremated remains, the crematory authority shall be discharged from any legal obligation or liability concerning the cremated remains. Any person or crematory authority who was in possession of cremated remains prior to the effective date of this chapter may dispose of them in accordance with this section.

(e) Except with the express written permission of the authorizing agent, no person shall:

(1) Dispose of cremated remains in a manner or in a location so that the cremated remains are commingled with those of another person. This prohibition shall not apply to the scattering of cremated remains at sea, on land, by air, or in a scattering area; or

(2) Place cremated remains of more than one person in the same temporary container or urn.

(f) When the cremated remains are to be scattered from or near a shoreline, or on land, and the scattering will be visible to the public, the scattering shall be in a manner as discrete as possible, while maintaining a decorum of respect and dignity in the handling of the cremated remains, and so as not to draw unnecessary attention to the scattering or be offensive in the public eye.

-10 Limitation of liability. (a) A crematory authority that has received an executed cremation authorization form that complies with section -5 shall not be liable for cremating the human remains designated by the cremation authorization form if the cremation is performed in accordance with this chapter.

(b) A funeral establishment shall have the authority to arrange the cremation of human remains upon the receipt of a cremation authorization form signed by an authorizing agent. A crematory authority shall have authority to cremate human remains upon the receipt of a cremation authorization form signed by an authorizing agent. There shall be no liability for a funeral establishment, crematory authority, or legal business entity that, pursuant to the authorization, arranges a cremation, cremated the human remains pursuant to the authorization or that releases or disposes of the cremated remains pursuant to the authorization.

(c) A crematory authority shall not be liable for refusing to accept human remains or to perform a cremation, or for any delays, until it receives a court order or other suitable confirmation that a dispute has been settled, if:

(1) It is aware of any dispute concerning the cremation of the human remains;

(2) It has a reasonable basis for questioning any of the representations made by the authorizing agent; or

(3) It refuses to accept the human remains for any other lawful reason.

This subsection shall not be construed as placing any affirmative obligation, not otherwise required by law, on any crematory authority to accept any human remains for cremation.

(d) Once the cremated remains have been released to the authorizing agent or the agent's designee, no funeral establishment or crematory authority shall be liable for the subsequent care, security, handling, and final disposition of the cremated remains thereafter.

(e) No cemetery shall be liable for any cremated remains that are dumped, scattered, or otherwise deposited on the cemetery in violation of this chapter, if that action is taken without the cemetery's consent and knowledge.

(f) If a funeral establishment or crematory authority is aware of any dispute concerning the release or disposition of the cremated remains, the funeral establishment or crematory authority may refuse to release the cremated remains until the dispute has been resolved or the crematory authority has been provided with a court order directing the release or disposition of the cremated remains. A funeral establishment or crematory authority shall not be liable for refusing to release or dispose of cremated remains in accordance with this section.

(g) A crematory authority shall not be responsible or liable for any valuables delivered to the crematory authority with the human remains, unless the crematory authority has received written instructions in accordance with section -5.

(h) The authorizing agent shall be responsible and liable for the compliance, adequate performance or non-performance, and acceptability by the crematory authority, of any cremation alternative container, casket, temporary container, or urn for the human remains, when any of these items have been specifically provided by the authorizing agent instead of the funeral establishment, crematory authority, or other supplier.

(i) No crematory authority shall be liable for the wrongful cremation of human remains or for any prolonged delays in the cremation of human remains when all procedures of identification and handling of the human remains by the crematory authority were followed as described in sections    -4, -5, and -8, excepting wilful negligence of the crematory authority.

(j) A crematory authority shall not be liable for refusing to accept human remains or to perform a cremation, or for any delays, for any human remains where the total weight of the decedent to be cremated, which shall include the weight of the cremation container or casket, exceeds the capacity of the cremation equipment to be utilized for the cremation. The maximum capacity shall be based upon the cremation equipment manufacturer's capacity specifications and recommendations.

-11 Pacemakers and hazardous implants. If an authorizing agent informs the funeral establishment or crematory authority on the cremation authorization form of the presence of a pacemaker or hazardous implants in the human remains, then the funeral establishment shall be responsible for ensuring that all necessary steps have been taken to remove the pacemaker or implant before delivering the human remains to the crematory authority. If the funeral establishment that delivers the human remains to the crematory authority fails to ensure that the pacemaker or implant has been removed from the human remains prior to the delivery, and if the human remains are cremated with the pacemaker or implant, then the funeral establishment, even if direction was given to another individual to deliver the human remains to the crematory, and anyone else covered by this section, shall be liable for all resulting damages.

-12 Administration, enforcement, and penalties. (a) The state agency may adopt rules as necessary for the proper operation of a crematory and to implement this chapter governing crematories and the cremation of human remains. The rules specifically shall include: the conditions under which the human remains of persons dying from infectious, contagious, communicable, or dangerous diseases can be transported from any portion of the State to a crematory for the purposes of cremation; and the minimum standards of sanitation, required equipment, and fire protection for all crematories which the state agency or other competent authority may deem necessary for the protection of the public.

(b) A crematory authority may enact reasonable rules, not inconsistent with this chapter, for the management and operation of a crematory, the types of cremation, authorization forms required, witnessing a part of the cremation process, hours of operation, or similar provisions. Nothing shall prevent a crematory authority from enacting rules that are more stringent than this chapter.

(c) Violations of this chapter which shall pertain, where applicable, to any of the entities, authorities, authorizing agents, and other individuals defined in this chapter, shall be punishable as follows:

(1) Maintenance or operation of a building or structure within this State as a crematory in violation of this chapter or the rules of the state agency adopted under it shall constitute a petty misdemeanor;

(2) Performing a cremation without receipt of a cremation authorization form signed by an authorizing agent shall constitute a misdemeanor;

(3) Signing or completing a cremation authorization form with the actual knowledge that the form contains false or incorrect information or making any false representations of the information entered in a cremation authorization form shall constitute a class C felony;

(4) A violation of any cremation procedure set forth in section -8 shall constitute a class C felony;

(5) Holding oneself out to the public as a crematory authority without being licensed under this chapter shall constitute a class C felony; and

(6) A violation of any other provision of this chapter shall constitute a petty misdemeanor.

-13 Failure to comply; improper operation. Whenever a crematory authority refuses or neglects to file its annual report or any renewal application, or fails to comply with the registration or inspection requirements, or the operation of the crematory authority continues in a consistently improper or noncompliant manner so as to be either:

(1) A public health and safety concern;

(2) An operation that has been determined by lawful investigation to warrant corrective measures regarding matters of consumer protection, tax liability, fiduciary responsibility, or regulatory concerns; or

(3) An operation that violates any other federal, State, or county laws that would otherwise have a criminal, fraudulent, or other serious impact upon the general public;

the state agency shall communicate the facts to the attorney general who shall institute proceedings against the crematory authority or its officers.

-14 Pre-need cremation arrangements. (a) Any person, on a pre-need basis, may authorize the person's own cremation and the final disposition of the person's cremated remains by executing, as the authorizing agent, a cremation authorization form on a pre-need basis. Anyone who has legal authority to act on behalf of a person, on a pre-need basis, may authorize that person's cremation and the final disposition of that person's cremated remains by executing, as the authorizing agent, a cremation authorization form, on a pre-need basis. A copy of this form shall be provided to the person whose cremation has been prearranged. That person shall have the right to transfer or cancel this authorization at any time prior to death by destroying the executed cremation authorization form and providing written notice to the crematory authority of such transfer or cancellation.

(b) Any cremation authorization form that is being executed by an individual as the individual's own authorizing agent on a pre-need basis shall contain the following disclosure, which shall be completed by the authorizing agent:

"( ) I do not wish to allow any of my survivors the option of canceling my cremation and selecting alternate arrangements, regardless of whether my survivors deem a change to be appropriate.

( ) I wish to allow only the survivors whom I have designated below the option of canceling my cremation and selecting alternative arrangements, if they deem a change to be appropriate: __________________________."

(c) Except as provided in subsection (b), at the time of the death of a person who has executed, as the authorizing agent, a cremation authorization form on a pre-need basis, any person in possession of an executed form and any person charged with making arrangements for the final disposition of the decedent who has knowledge of the existence of an executed form, shall use their best efforts to ensure that the decedent is cremated and that the final disposition of the cremated remains is in accordance with the instructions contained on the cremation authorization form. If a crematory authority:

(1) Is in possession of a completed cremation authorization form that was executed on a pre-need basis;

(2) Is in possession of the designated human remains; and

(3) Has received payment for the cremation of the human remains or is otherwise assured of payment;

then the crematory authority shall be required to cremate the human remains and dispose of the cremated remains according to the instructions contained on the cremation authorization form, and may do so without any liability unless the authorizing agent has selected the option under subsection (b) that allows a designated survivor to select alternative arrangements. If, however, the survivor has not selected alternative arrangements at the time of death or within twenty-four hours thereof, the funeral establishment and crematory authority may proceed with the cremation without any liability.

(d) Any pre-need contract sold by, or pre-need arrangements made with, a cemetery, funeral establishment, crematory authority, or any other party that includes a cremation shall specify the final disposition of the cremated remains, in accordance with section -9. In the event that no different or inconsistent instructions are provided to the crematory authority by the authorizing agent at the time of death, the crematory authority shall be authorized to release or dispose of the cremated remains as indicated in the pre-need agreement. Upon compliance with the terms of the pre-need agreement, the crematory authority shall be discharged from any legal obligation concerning the cremated remains.

(e) This section shall not apply to any cremation authorization form or pre-need contract executed prior to the effective date of this chapter. Any cemetery, funeral establishment, crematory authority, or other party, however, with the written approval of the authorizing agent or person who executed the pre-need contract, can designate that the cremation authorization form or pre-need contract shall be subject to this chapter.

-15 Miscellaneous. (a) A crematory authority shall be permitted to enter into a contract with a funeral director or funeral establishment for the purpose of arranging cremations on an at-need basis with the general public, transporting human remains to the crematory, and processing all necessary paperwork.

(b) No aspect of this chapter shall be construed to require a funeral director to perform any functions not otherwise required by state law to be performed by a funeral director. An individual who acts in the capacity of a funeral director must adhere to all federal, state, and local laws and as all requirements, procedures, and protocol of the crematory authority to be employed by the individual in regards to arranging and completing a cremation for a human remains. If the individual is not the authorizing agent, the individual must be given written direction and permission to proceed by the authorizing agent. The written directive shall be submitted to the crematory authority with the completed cremation authorization form prior to the cremation.

(c) The regulation of crematories and crematory authorities as set forth in this chapter is an exclusive power and function of the State and state agency. A county may not regulate crematories or crematory authorities unless so authorized by specified mandate of the State or state agency.

(d) For arrangements involving the final disposition of the human remains in a manner other than cremation, section    -3 shall prevail in regards to the right to serve as an authorizing agent in making any such final disposition arrangements. Any authorizing agent in this subsection shall also assume full responsibility and liability for the identification of the human remains as set forth in the provisions of section -4. Where the context requires, any reference made in this chapter in regards to the cremation of human remains shall be deemed to embrace and include, as applicable, the burial, entombment, or other lawful disposition of a dead human body or parts of a dead human body, including disinterred remains, other than by cremation.

(e) This chapter shall not prevent a decedent's survivors from, at their own expense, pursuing meaningful services and making arrangements with funeral establishments which do not conflict with the decedent's instructions for disposition.

(f) This chapter shall be construed and interpreted as a comprehensive cremation statute, and the provisions of this chapter shall take precedence over any existing laws that govern dead human bodies and human remains that do not specifically address final disposition, cremation or the regulation of a crematory.

SECTION 2. This Act shall take effect upon its approval.

INTRODUCED BY:

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