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Inspections

STATEMENTS OF POLICY
Title 49-—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF FUNERAL DIRECTORS
[49 PA.CODE CH. 13]
Inspections
[43 Pa.B. 6515]
[Saturday, November 2, 2013]

The State Board of Funeral Directors (Board) adds §13.253 (relating to inspections-—statement of policy) to read as set forth in Annex A.

Effective Date

Although the underlying interpretation in this statement of policy has been effective since the beginning of licensure of funeral directors in this Commonwealth in 1895, this statement of policy is effective upon publication in the Pennsylvania Bulletin.

Statutory Authority

The statement of policy is authorized under sections 11, 13, 15 and 16(a) of the Funeral Director Law (act) (63 P.S. §§479.11, 479.13, 479.15 and 479.16(a)). Section 102 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §1102), known as the Commonwealth Documents Law, defines statement of policy as any document, except an adjudication or a regulation, promulgated by an agency which sets forth substantive or procedural personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or any part thereof, and includes, without limiting the generality of the foregoing, any document interpreting or implementing any act of Assembly enforced or administered by such agency. Statements of policy that are general and permanent in nature are required to be codified in the Pennsylvania Code under 1 Pa.Code §3.1 (relating to contents of Code).

Background and Purpose of the Statement of Policy

Section 16(b) of the act provides that [t]he board shall appoint an inspector or inspectors whose title shall be 'Inspector, State Board of Funeral Directors, Commonwealth of Pennsylvania.' Such inspectors shall be licensed funeral directors who have been actively engaged in the practice of such profession for at least ten years. Inspectors shall hold office at the pleasure of the board, and shall receive such compensation as shall be fixed by the board with the approval of the department. Inspectors shall be empowered to serve all processes and papers of the board, and shall have the right of entry into any place, where the business or profession of funeral directing is carried on or advertised as being carried on, for the purpose of inspection and for the investigation of complaints coming before the board and for such other matters as the board may direct.

The statutory authority and organization of the enforcement and prosecution of violations of the act have been amended since the enactment of the act. The act of June 3, 1963 (P.L. 63, No. 44) (Act 44) added section 810 of The Administrative Code of 1929 (71 P.S. §279.1) creating the Bureau of Professional and Occupational Affairs (BPOA) and the office of Commissioner of Professional and Occupational Affairs (Commissioner). Section 810 of The Administrative Code of 1929 delegates to the Commissioner the authority to perform a variety of functions on behalf of the licensing boards. Section 810(a) of The Administrative Code of 1929 provides, in pertinent part, [th]e Commissioner of Professional and Occupational Affairs shall be appointed by the Governor and have the power and his duty shall be(4) To assist any professional and occupational examining board within the department, if, as and when requested by the board;(6) to make such investigations, require such information and do and perform all other acts which may be necessary to determine whether applicants for licensure or registration are qualified to practice the profession or work at the trade or occupation within this Commonwealth, [and] (8) To be responsible for all administrative affairs of each of the professional and occupational examining boards and to coordinate their activities.

Additionally, the Supreme Court of Pennsylvania has held that . if more than one function is reposed in a single administrative entity, walls of division [must] be constructed which eliminate the threat or appearance of bias. [W]here the very entity or individuals involved in the decision to prosecute are 'significantly involved' in the adjudicatory phase of the proceedings, a violation of due process occurs. Lyness v. Commonwealth, State Bd. of Medicine, 529 Pa. 535, 546-—547, 605 A.2d 1204, 1209-—1210 (1992), citations omitted.

Given these changes to applicable law, the Board itself does not and, for several decades, has not directed, managed or otherwise supervised inspectors or the inspection program. Rather, the limitations of time, place and scope on funeral establishment inspections have been imposed by the BPOA and the Bureau of Enforcement and Investigation (BEI).

For decades inspections have been conducted by the BPOA and the BEI under the limitations of the act, namely, that inspections are limited to enforcement of the provisions of the act and this chapter, and to physical premises at which the profession of funeral directing is being conducted or advertised as being conducted. Moreover, personnel policies of the Commonwealth have served as the limits on the time that inspections are conducted. Therefore, inspections have always been conducted during regular business hours between Monday and Friday, excluding State holidays, and inspectors have performed inspections in a manner to avoid conflict with funeral viewings and ceremonies.

Notwithstanding the fact that limitations as to time, place and scope of inspections do exist and have been observed in practice, this issue has been a matter of litigation. The opinion of the United States District Court in Heffner v. Murphy, 866 F.Supp. 358 (M.D. Pa., 2012) appears to reverse, in part, the effects of Act 44 as well as the decision of the Supreme Court of Pennsylvania protecting due process rights, and imposes on the Board the responsibility to publish limitations as to time, place and scope of inspections. Therefore, to memorialize the existing limitations, the Board has adopted this statement of policy recognizing that it does not claim nor does it possess the legal authority to direct or control inspections or investigations.

Description of the Statement of Policy

In subsection (a), the Board has defined several terms according to long-established and recognized usage.

In subsection (b), the Board has memorialized the authority and rationale for inspections. Funeral directing is a heavily regulated profession. Pennsylvania Funeral Directors Association v. State Board of Funeral Directors, 90 Pa.Cmwlth. 175, 494 A.2d 67 (Pa.Cmwlth. 1985). Section 16(b) of the act requires the Board to appoint inspectors who are individuals who have been licensed as funeral directors for at least 10 years. These inspectors are empowered by the act to serve processes and papers of the Board, and only have the right of entry into places where the practice of funeral directing is occurring or is advertised or held out as being conducted. Inspections further three categories of governmental interests. Inspections protect the public from practices that endanger public health, safety, welfare and result in unfair consumer transactions. Inspections promote price competition by including review of documents required by the Federal Trade Commission in 16 CFR Part 453 (relating to funeral industry practices), a violation of which constitutes unprofessional conduct as set forth in §13.202(16) (relating to unprofessional conduct). Inspections also serve to educate and inform funeral directors of trends and conditions in the industry and encourage conformity to professional standards.

The Board has also adopted specific findings that the limitations as to time, place and scope have been observed historically and that it serves the public interest to adopt a statement of policy memorializing these long-standing practices at this time.

Under subsection (c), the Board has memorialized the limitations as to the frequency, time and scope of inspections. With regard to the approximate frequency of inspections, routine inspections will not occur more than once every 270 days. The outside range of 540 days is directory and not mandatory. The BEI has limited personnel resources. A funeral establishment that is geographically remote or which may not be open 40 hours a week may be difficult to inspect as often as funeral establishments that are in close proximity to other funeral establishments, or which are open for business 40 hours per week. New business inspections will ordinarily occur within 30 days of a request by the Board Administrator.

Follow-up inspections may be conducted in the exercise of sound discretion of the BEI. Consistent with the directives of Executive Order 1996-1, the goal of the Board's regulatory scheme is to promote compliance. Therefore, the BEI may exercise discretion within reasonable limits and permit a mortuary inspector to afford a licensee the opportunity to correct deficiencies or noncompliant conditions. Factors that may be considered by inspectors in determining whether to allow a licensee time to remedy a noncompliant condition, issue a citation or refer the matter for possible disciplinary action include the gravity of the violation, the number of violations identified during the inspection, the licensee's prior disciplinary history or lack thereof, the immediacy of an effect on the public or employees of the funeral establishment's noncompliance, whether consumer funds or property have been involved, or whether the licensee has articulated an express or implied intent to remain noncompliant. Factors that should not affect the exercise of discretion by an inspector include whether a competitor or a trade association has complained about the noncompliant condition, or whether a licensee is following the advice or instructions of counsel or another officer, employee or other agent of the funeral establishment. If a licensee is given additional time to remedy the deficiency, the inspector would then perform a follow-up inspection to ensure compliance. The timing of follow-up inspections will depend upon other duties of the inspector and any other factor reasonably related to the efficient and responsible administration of the BPOA, as well as affording a reasonable amount of time for the licensee to comply. A reasonable time will depend upon the totality of the circumstances, taking into consideration the noncompliant condition noted at the inspection, the effect of the noncompliant condition on the public, as well as the amount of time that a reasonably diligent individual would require to become compliant.

Subsection (c) also sets forth limitations as to the time inspections will be performed and the scope of those inspections. Generally, inspections will be conducted only between Monday and Friday during the hours 8 a.m. and 5 p.m., excluding State holidays. Inspections will be limited in scope to information required for an inspector to complete preapproved inspection forms developed by the BPOA and ratified by the Board to include subjects that are within the Board's jurisdiction as defined by the act and other statutes enacted by the General Assembly and as interpreted by judicial decision. The scope of a follow-up inspection is limited to a review of the previously identified deficiency or noncompliant condition. This statement of policy also provides the general rule that routine and follow-up inspections will be conducted without prior notice. However, an appointment may be scheduled for funeral establishments that are remote or isolated and an unscheduled inspection would consume an unreasonable amount of time if nobody is there upon the arrival of the inspector. An appointment may also be scheduled if the funeral establishment is not open during regular business hours (Monday through Friday, 8 a.m. to 5 p.m.). Conversely, new funeral establishment inspections and closing inspections will be scheduled in advance.

Finally, this statement of policy sets forth the possible courses of action in the event of the observation by the inspector of actual or suspected violations depending on whether the violation is or is not within the scope of the inspection report forms ratified by the Board.

Fiscal Impact and Paperwork Requirements

This statement of policy will not have adverse fiscal impact on the Commonwealth or its political subdivisions and will not impose additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.

Additional Information

Persons who require additional information about this statement of policy should submit inquiries to Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7200, st-funeral@state.pa.us.

DONALD J. MURPHY,
Chairperson

(Editor's Note: Title 49 of the Pennsylvania Code is amended by adding a statement of policy in §13.253 to read as set forth in Annex A.)

Fiscal Note:16A-4823. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 13. STATE BOARD OF FUNERAL DIRECTORS
STATEMENTS OF POLICY
§ 13.253. Inspections-—statement of policy.

(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

Board administrator-—An employee of the Bureau with responsibility to administer the business of the Board or another employee assigned to assist this person.

Citation-—A notice of a violation beginning disciplinary action issued under section 5(a) of the act of July 2, 1993 (P.L. 345, No. 48) (63 P.S. §2205(a)) in accordance with Chapter 43b (relating to Commissioner of Professional and Occupational Affairs).

Closing inspection-—An inspection performed for the purpose of determining whether a licensed funeral establishment that has discontinued business, changed location or notified the Board of its intent to discontinue business or change location has complied with the act and this chapter.

Complaint-—A document filed with the Professional Compliance Office alleging one or more violations of the act or this chapter.

Follow-up inspection-—An inspection relating to a prior inspection in which the funeral establishment was determined to be in noncompliance with the act or this chapter. This inspection is conducted for the purpose of determining whether the noncompliant element of the establishment has been brought into compliance.

Inspection-—

(i) A visual examination, observation or view of a funeral establishment by an agent of the Bureau of Enforcement and Investigation, including an examination, observation or view of any of the following:

(A) The buildings, fixtures, equipment, implements and materials of the funeral establishment.

(B) Licenses of employees of the funeral establishment.

(C) Documents, forms, advertising and other records required by the act, this chapter or the regulations of the Federal Trade Commission in 16 CFR Part 453 (relating to funeral industry practices).

(D) Other matters that pertain to initial and continued licensure for the purpose of determining a funeral establishment's compliance with licensure requirements.

(ii) The term includes an oral interview or examination of an employee, agent or licensee with a principal place of business at the funeral establishment, or a licensee who assists at the funeral establishment, for the purpose of obtaining information that pertains to the visual examination.

Inspector-—An employee under the supervision and direction of the Director of the Bureau of Enforcement and Investigation, regardless of employment classification or title of position assigned by the Office of Administration, who is a licensed funeral director who has been actively engaged in the practice of the profession of funeral directing for at least 10 years.

Investigation-—An activity conducted in response to a complaint filed with the Professional Compliance Office regarding an alleged violation of the act or this chapter, or in response to a suspected violation discovered during an inspection, for the purpose of gathering evidence reasonably calculated to determine whether a violation has occurred.

New funeral establishment inspection-—An inspection relating to an application for a funeral establishment license.

Routine inspection-—An inspection performed for the purpose of determining compliance of a licensed funeral establishment with the provisions of the act, this chapter or 16 CFR Part 453.

(b) Authority and rationale.

(1) The profession of funeral directing is a heavily regulated profession.

(2) Section 16(b) of the act (63 P.S. §479.16(b)) requires the Board to appoint mortuary inspectors.

(3) Under section 16(b) of the act, inspectors are empowered to serve all processes and papers of the Board and have the right of entry into any place, where the business or profession of funeral directing is carried on or advertised as being carried on, for the purpose of inspection and for investigation of complaints filed with the Professional Compliance Office and for other matters as the Board may direct.

(4) The Board finds that the periodic inspection of the premises at which the profession of funeral directing is carried on or advertised as being carried on is necessary to serve several important governmental interests, including:

(i) Ensuring that the public is protected against acts, practices and conditions in the profession of funeral directing that are inimical to public health, safety, welfare and fair consumer transactions.

(ii) Promoting price competition among practitioners of the profession of funeral directing by ensuring that economic advantage is obtained through efficient and sound business practices and not through acts, practices or conditions in the profession of funeral directing that compromise public health, safety, welfare or fair consumer transactions.

(iii) Educating and informing practitioners in the profession of funeral directing of the legal requirements of the profession and of economical and practical means of complying with Federal and State law.

(5) The Board finds that it has been the practice of the Bureau of Enforcement and Investigation to regulate the conduct of inspections and investigations by mortuary inspectors within appropriate limitations as to frequency, scope and timing so as not to impose unreasonable burdens upon licensees.

(6) The Board finds that it is in the interest of the public and of the regulated profession to memorialize a policy regarding the conduct of inspections and investigations performed under the act.

(c) Limitations on inspections.

(1) Frequency. Inspectors will perform inspections within the following ranges of frequency:

(i) Routine inspection. Each funeral establishment licensed by the Board will be inspected no more than once every 270 consecutive days and no less than once every 540 consecutive days.

(ii) New funeral establishment inspection. A new funeral establishment will be inspected within 30 days of the date of a request by the Board administrator.

(iii) Follow-up inspection. An existing funeral establishment, new funeral establishment, funeral establishment in which ownership is being transferred or a closing funeral establishment in which a deficiency was noted or reported will be inspected no sooner than 7 days and no later than 30 days from the date that the deficiency was noted or reported, or within 30 days of a follow-up inspection in which a prior reported deficiency was found to be uncorrected. This standard is directory and not mandatory. This limit may be extended if, in the exercise of the sound discretion of the inspector or the Bureau of Enforcement and Investigation, additional time is warranted or other priorities require more immediate attention.

(2) Time. Inspectors will perform routine inspections, new funeral establishment inspections, closing inspections and follow-up inspections only between Monday and Friday during the hours of 8 a.m. and 5 p.m., excluding State holidays.

(3) Scope. Inspectors will limit the scope of new funeral establishment inspections, routine inspections, follow-up inspections and closing inspections to information required for the completion of forms designed by the Bureau of Enforcement and Investigation and ratified by the Board. As of the date of the adoption of this statement of policy, the form that is in use is an electronic form.

(i) During the course of an inspection, an inspector is not authorized to demand production of documents, or to demand entrance to a part of the premises of a funeral establishment, that are not within the scope of the subject matter of approved inspection report forms.

(ii) During the course of a follow-up inspection, an inspector will limit the scope of the inspection to a review of the previously reported deficiency.

(4) Notice of inspection.

(i) General rule. Routine inspections and follow-up inspections will be conducted without prior notice to the funeral establishment, its owners, officers, employees or funeral directors practicing at the funeral establishment. New funeral establishment inspections and closing inspections will be scheduled in advance.

(ii) Exceptions. Within the sound discretion of the Director of the Bureau of Enforcement and Investigation, an inspector may schedule an appointment to conduct a routine inspection or follow up inspection in the following circumstances:

(A) The funeral establishment is geographically remote or isolated and an unscheduled inspection would consume an unreasonable amount of time if a person was not present upon the arrival of the inspector.

(B) The funeral establishment is not open Monday through Friday from 8 a.m. to 5 p.m.

(5) Amendments, modifications and changes to scope of inspections. The Board will ratify amendments, modifications or changes to the scope of inspection forms only if amendments, modifications or changes include subjects that are within the Board's jurisdiction as defined by statutes enacted by the General Assembly and interpreted by judicial decision.

(6) Observation of actual or suspected violations in the conduct of inspections.

(i) General rule. An inspector is authorized to issue a citation, or refer for further investigation or formal disciplinary action, observed actual or suspected violation of the act or this chapter which is within the scope of the inspection report forms ratified by the Board.

(ii) Evidence in plain view of violations not within the scope of inspection report forms.

(A) Observed actual violations. If, during the course of an inspection, an inspector observes evidence in plain view of an actual violation of the act, this chapter, 16 CFR Part 453 or other law and the violation is not within the scope of the inspection report forms ratified by the Board, the inspector is authorized to issue a citation or report the observed violation for investigation or formal disciplinary action.

(B) Observed suspected violations. If, during the course of an inspection, an inspector observes evidence in plain view of a suspected violation of the act, this chapter, 16 CFR Part 453 or other law and the violation is not within the scope of the inspection report forms ratified by the Board, the inspector is authorized to report the suspected violation for further investigation or formal disciplinary action.
[Pa.B. Doc. No. 13-2045. Filed for public inspection November 1, 2013, 9:00 a.m.]

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