DOS-47-10-00010-P Regulation of Crematories Subject to Not-For-Profit Corporation Law Article 15

11/24/10 N.Y. St. Reg. DOS-47-10-00010-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 47

November 24, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. DOS-47-10-00010-P

Regulation of Crematories Subject to Not-For-Profit Corporation Law Article 15

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of Part 203 and addition of new Part 203 to Title 19 NYCRR.

Statutory authority:

Not-for-Profit Corporation Law, sections 1501 and 1504(c)

Subject:

Regulation of crematories subject to Not-For-Profit Corporation Law Article 15.

Purpose:

To clarify procedures and record requirements for crematories and to enhance consumer protection.

Substance of proposed rule (Full text is posted at the following State website:dos.state.ny.us/cmty/cemetery.html):

The proposed revision of 19 NYCRR Part 203 is intended to do a number of things. It eliminates inconsistencies between current Part 203 and Not-For-Profit Corporation Law section 1517 which deals with crematory operations. It also incorporates language from sections of the Public Health Law which deal with cremations, funerals and funeral firms. These changes create additional clarity and uniformity in the cremation and funeral trades.

Additionally, the proposed revision restricts what types of containers are acceptable for the delivery of remains to be cremated. It provides guidance regarding the privacy of cremations and the manner in which remains should be handled and stored prior to cremation. The revision clarifies that a crematory storage facility must be a separate room or a separately enclosed area within a room and restricts who may enter a crematory's temporary storage facility and retort area. The revision encourages crematories to cremate remains within twenty-four hours of receiving them and even sooner if the circumstances warrant immediate cremation. The revision restricts the ability of crematories to have different charges based on the weight of the remains by requiring crematories which have such charges to maintain a scale on their premises. It clarifies the current regulation by requiring that crematories have in place a method for maintaining the identity of remains while the remains are in the possession of the crematory.

Finally, the proposed revision clarifies the procedure that must be used if a crematory has doubt about the identity of the remains it has received and under what circumstances a container may be opened or remains transferred to another container after remains have been received by a crematory. It limits the circumstances in which a container holding un-cremated remains may be opened and who may authorize the opening of a container. The revision clarifies that normally all cremated remains shall be pulverized until no piece is recognizable as human tissue, but that if an authorized person so requests, and if the crematory consents, a crematory may keep one small piece of cremated remains from being pulverized. The revision also specifies what must be contained in a cremation authorization form and requires that crematories only use a form approved by the Department of State, Division of Cemeteries. The revision specifies what records a crematory must keep in its permanent file.

In general, these changes will lead to uniformity in the cremation industry, and clarity about what is expected of crematories and what is and is not permitted. These changes will improve the service received by persons seeking cremation and will reduce errors and complaints. These changes will also give guidance and clarity to crematory operators and funeral directors regarding their respective roles in the process of transporting remains to crematories, the conduct of cremations, and transporting the cremated remains back to the person who requested cremation. Disputes regarding these matters should be reduced as a result.

Text of proposed rule and any required statements and analyses may be obtained from:

Antonio Milillo, Dept. of State, Office of General Counsel, One Commerce Plaza, 99 Washington Ave., Albany, NY 12231, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory Authority: Not-for-Profit Corporation Law section 1504(c) authorizes the Cemetery Board to adopt reasonable rules and regulations for the proper administration of the Article 15 of the Not-for-Profit Corporation Law. Sections 1503(b) and 1517 of the Not-for-Profit Corporation Law, added by chapter 579 of the laws of 2006, subject crematories to the jurisdiction of the Department of State, Division of Cemeteries and regulate their operations. In addition, Public Health Law section 4145 requires crematories to maintain a record of all cremations performed and Article 19 of the Environmental Conservation Law and 6 NYCRR Part 219 regulate the emissions, maintenance, operation and monitoring of cremation equipment.

2. Legislative Objectives: The legislative intent for the enactment of Article 15 of the Not-for-Profit Corporation Law is, among other things, to promote the state's interest in the establishment, maintenance and preservation of crematories and the proper operation of the corporations which own and manage them; to protect the well-being of citizens, to promote the public welfare and to prevent crematories from falling into disrepair and dilapidation and becoming a burden upon the community; and to ensure that crematories are conducted on a non-profit basis for the mutual benefit of the public. Not-for-Profit Corporation Law section 1504 authorizes the division of cemeteries to inspect crematories and their business records. Not-for-Profit Corporation Law section 1517 imposes requirements and restrictions on the operation of crematories, especially with regard to the processing of remains and the handling of remains before and after cremation. In furtherance of these objectives, the proposed rule clarifies what is permissible or impermissible in the operation of a crematory; how a crematory facility should be organized and maintained; how human remains and cremated remains should be handled; what records must be maintained; and what information must be provided to persons requesting that human remains be cremated.

3. Needs and Benefits: The proposed revision of 19 NYCRR Part 203 will eliminate inconsistencies between current Part 203 and Not-For-Profit Corporation Law section 1517. For example, section 1517(e) sets forth how a crematory should deal with remains delivered in any container not suitable for cremation. However, current regulation section 203.6 only addresses metal caskets and does not address other containers not suitable for cremation. The proposed revision sets forth how a crematory should deal with the delivery of remains in any container not suitable for cremation. The regulation also incorporates language (e.g., "funeral firm", "funeral establishment" and "undertaker") from sections of the Public Health Law which deal with funerals and funeral firms. These changes create clarity and uniformity in the cremation and funeral trades.

Additional proposed changes to the regulation will provide greater clarity regarding acceptable crematory practice and will lead to greater uniformity in the cremation industry. Crematory operators will have clearer standards of operation and the public will be better protected from inappropriate handling of human remains. Specifically, the proposed revision:

• Clarifies that a crematory storage facility must be a separate room or a separately enclosed area within a room. Current regulation states that a crematory shall have a temporary storage area "the interior of which shall not be visible from the general retort area", it does not specify that the storage area must be a separately enclosed space or room. This has led to inconsistency among crematory operators. The revision adds clarity and protects the privacy of remains.

• Encourages crematories to cremate remains within 24 hours of receipt and sooner if circumstances warrant immediate cremation. It requires a crematory to show "good cause" if a cremation occurs more than 48 hours after receipt. Current regulation is silent on this issue and in some instances - usually involving a retort breakdown - crematories have held bodies in un-refrigerated storage for longer than Division inspectors believe is reasonable and acceptable. This revision provides crematory operators with an acceptable storage period before cremation and gives Division inspectors the ability to monitor delays in cremation beyond 48 hours.

• Restricts the ability of crematories to have different charges based on the weight of the remains by requiring crematories with such charges to maintain a scale on their premises. Crematories have requested authority to charge more to cremate remains of morbidly obese persons. The Cemetery Board has been hesitant to grant these requests because most crematories lack scales to confirm that the remains meet the threshold for a higher charge. This change will require only those crematories authorized by the Cemetery Board to have different charges for different weights to have scales.

• Clarifies that while normally all cremated remains shall be pulverized until no piece is recognizable as human tissue, if an authorized person so requests, and if the crematory consents, a crematory may keep one small piece of cremated remains from being pulverized. Current regulation does not specifically authorize a crematory to not pulverize any part of the cremated remains. Division staff is aware of two instances in which family has, for religious custom, requested a part of the cremated remains be kept identifiable as human remains. This change will allow a crematory to consent to such a request by setting aside a small piece of remains while ensuring that the remainder is pulverized so that it is not recognizable as human remains.

• Adds clarity to the existing statutory requirement that crematories have in place a method for maintaining the identity of remains while the remains are in the possession of the crematory. It specifies the procedure to be used if a crematory has doubt about the identity of remains received and under what circumstances a crematory operator may open a container or transfer remains to another container. Current regulation is unclear about when a signed authorization is needed to move remains, who must sign the authorization and who must be present when remains are moved. The revision addresses these shortcomings.

• Requires that remains be delivered either in a container suitable for cremation or in a ceremonial casket and requires that remains only be cremated in a container suitable for cremation. Current regulation does not restrict the type of container used to deliver remains to a crematory and does not clearly limit the type of container used during the cremation process. Crematories have received remains in non-rigid, leaking containers that exposed crematory personnel to bodily fluids and embalming material. Some crematories have damaged their retorts by incinerating remains in caskets with substantial metal ornamentation. This revision will eliminate these improper practices.

• Provides guidance regarding the privacy of cremations and stored remains. Current statute and regulation restrict who may be present during a cremation but do not require that the persons be present only when they are there in support of cremation operations. Also, current statute and regulation do not restrict who may enter a storage area while remains are being stored. The revision corrects these omissions and ensures that only persons who are acting on behalf of the crematory will be allowed in the retort area when bodies are being cremated and that authorized persons may only enter the storage area when they are acting on behalf of crematory operations.

• Identifies information to be contained in the cremation authorization form, requires that crematories only use a form established by the Division of Cemeteries, and specifies what records a crematory must keep in its permanent file. Currently, each crematory uses its own cremation authorization form which has created problems for funeral homes that contend with different forms from different crematories. Additionally, this has resulted in forms without complete information. The requirement that all crematories use the form established by the Division of Cemeteries will eliminate inconsistencies. With regard to crematory permanent files, Division inspectors and auditors rely on consistent recordkeeping to properly inspect and audit crematories. The revision makes clear what records must be kept in a crematory's permanent file.

4. Costs:

a. Regulated Parties. Costs to regulated parties will be minimal. Many of the proposed revisions impose little or no cost to crematories. The largest cost would be the need to construct a self-enclosed space for storage of remains if a crematory does not have such a space. Inspectors from the Division found that almost all crematories already have such space and that those which don't can construct a space about the size of a walk-in closet for a few hundred dollars. The requirement that additional records be kept in a crematory's permanent file will result in minimal extra cost. Most crematories already substantially comply with the proposed requirement and for others the requirement that some additional paperwork be preserved will not require additional storage space beyond what is currently being used. Regarding the purchase of a scale, the regulations only require a scale if the crematory has different charges based on the weight of the remains. Although the purchase of a scale could be a small cost to crematories - industrial scales are available for under $1,000.00 - a crematory would incur this cost only if it charges cremation rates based on the weight of the remains. The crematory could recover the cost of the scale from the extra charges.

b. The agency, the state and local governments. No increase or decrease in costs is anticipated.

c. The estimate of the cost for a scale is derived from crematories which have scales and from listed prices charged by industrial scale suppliers.

5. Local Government Mandates: None.

6. Paperwork: No additional paperwork is required of crematories. Current statute and regulations require the use of forms and documents identified in this revision. The revision merely clarifies what must be described and contained in the forms and documents and requires that they be kept by crematories in their permanent files.

7. Duplication: These regulations do not duplicate existing State and Federal regulations.

8. Alternatives: The Division of Cemeteries made changes to its initial proposal based on comments and recommendations from representatives of crematory operators, funeral directors and consumer advocates. Initially the Division intended to mandate refrigeration at all crematories. Based on comments received, the Division moved away from that requirement to a recommendation that cremation occur within 24 hours of receipt of remains and a requirement that the crematory log indicate the reason for delay if remains are cremated more than 48 hours after receipt. The Division also decided not to require scales at all crematories since many crematories do not intend to have separate charges based on the weight of remains. Finally, some representatives expressed concern that a requirement for crematories to keep the storage area for remains separate from other areas could be read as requiring a completely separate room. The regulation was modified to clarify that a storage area may be a separately enclosed area within a room.

There was significant discussion regarding pulverizing cremated remains. After remains are subjected to heat and flame, the remains are reduced to ash and bone fragments of various sizes. Standard practice is to then pulverize the remains until no fragment is identifiable as human tissue. However, in some cases family of deceased have, for religious and cultural reasons, asked crematories to preserve fragments as recognizable human remains. A number of options were considered based on the manner in which various crematories operate and the various types of equipment that they use. While most crematories were agreeable to accommodating this type of request, some were not. It was decided that crematories should have the option of not consenting to such a request. It was also agreed that if a crematory consents to such a request, the appropriate way to comply would be to set aside one small bone fragment after the remains are removed from the retort and before they are pulverized. This would avoid any health concerns and would give the crematory operator a simple method of identifying and setting aside a recognizable bone fragment.

9. Federal Standards: At this time there are no federal standards with regard to crematory operations.

10. Compliance Schedule: These regulations will take effect sixty (60) days from date of adoption.

Regulatory Flexibility Analysis

1. Effect of Rule: There are 48 crematories throughout the State that are under the jurisdiction of the Division of Cemeteries and which will be affected by this rule. This rule will not affect any local governments.

2. Compliance Requirements: This rule specifies what information must be set forth in records which are already required by rule or statute and it specifies which currently mandated records must be kept by crematories in their permanent files. Crematories also may have to make minimal modifications to their facilities to comply with the requirement that the storage facility and any ceremony room be separated from other areas and from each other.

3. Professional Services: Crematories are unlikely to need professional services in order to comply with this proposed rule.

4. Compliance Costs: Most of the revisions require a change in procedure which involves little or no cost to crematories. By restricting the type of container which may be used to deliver remains to a crematory, the regulation will reduce crematory costs by reducing the need to move remains from an unacceptable container to an acceptable container. Regarding the purchase of a scale, the regulations only require a scale if the crematory has different charges based on the weight of the remains. Although the purchase of a scale could be a small cost to crematories - industrial scales are available for under $1,000.00 - a crematory would incur this cost only if it decides to have different cremation rates based on the weight of the remains and the crematory could recover the cost of the scale from the extra charges.

5. Economic and Technological Feasibility: It is economically and technologically feasible for crematories to comply with the regulation.

6. Minimizing Adverse Impact: This regulation will not have an adverse impact on crematory operations and will clarify operation requirements and assure uniformity in the delivery of cremation services.

7. Small Business and Local Government Participation: The regulation was presented to the New York State Association of Cemeteries and the Association of Funeral Directors. Those associations provided numerous comments and suggestions which have been incorporated into the proposed regulation as currently submitted. The regulation was also presented at numerous meetings of the New York Cemetery Board and proposed revisions were made public at those meetings. Copies of the proposed regulation were also made available to persons in attendance at those meetings. The Director of the Department of State, Division of Local Government Efficiency and Competitiveness also attended a number of the meetings.

Rural Area Flexibility Analysis

1. Types and Estimated Number of Rural Areas: Approximately one half of the 48 crematories regulated by the Division of Cemeteries are located in rural areas.

2. Reporting, Recordkeeping, and other Compliance Requirements and Professional Services: All 48 crematories will be required to comply with these regulations and conform their operations and recordkeeping to them. No new records are required to be kept, however, new information is required in existing records and the regulations make clear which records must be kept in a crematory's permanent files.

3. Costs: Most of the revisions require a change in procedure which involves little or no cost to crematories. By restricting the type of container which may be used to deliver remains to a crematory, the regulation will reduce crematory costs by reducing need to move remains from an unacceptable container to an acceptable container. Regarding the purchase of a scale, the regulations only require a scale if the crematory has different charges based on the weight of the remains. Although the purchase of a scale could be a small cost to crematories - industrial scales are available for under $1,000.00 - a crematory would incur this cost only if it decides to have different cremation rates based on the weight of the remains and the crematory could recover the cost of the scale from the extra charges.

4. Minimizing Adverse Impact: This regulation will not have an adverse impact on crematory operations and will clarify operation requirements and assure uniformity in the delivery of cremation services.

5. Rural Area Participation: The process of drafting this regulation was an open process; the text of the draft regulations was read publicly at New York State Cemetery Board meetings; affected organizations such as cemeteries, crematories and funeral directors were made aware that the draft regulations were on the agenda of the Cemetery Board and those organizations were represented at most meetings by their trade associations. These associations represent rural as well as urban and suburban organizations. The trade associations were encouraged to submit their own proposed revisions and in most cases the proposals led to changes to the draft regulations. Individual cemetery and crematory operators who attended Cemetery Board meetings also had the chance to receive copies of the draft regulations and had the right to comment on them. The concerns of smaller, mostly rural crematories were taken into account and led to a number of modifications such as deleting requirements that all crematories have refrigeration units for storage of remains and scales for weighing remains.

Job Impact Statement

It is evident from the nature and purpose of the rule that this regulation amendment neither creates nor eliminates employment positions and/or opportunities, and therefore, has no adverse impact on employment opportunities in New York State.