05/31/2018

OFDA Board of Directors Legislative Report - May 22, 2018 Meeting

Prepared by John T. McGough

OFDA Legislation Reception a Success!

On April 17, 2018, OFDA held its Annual Legislative Reception. OFDA is happy to report that 52 OFDA members and guests were in attendance. The reception provides a unique opportunity for OFDA members to help advocate for the legislative initiatives that impact the funeral industry and to provide “real world” examples of how a particular piece of legislation affects the funeral profession. As it turned out, the Legislature was not in session that day, but we were very pleased that 28 legislative offices were represented at the reception.

2018 May Primary

On Tuesday, May 8, 2018 the Ohio Primary Election will be held. In addition to the Ohio Primary for the U.S. Senate seat currently held by Sherrod Brown and all 16 seats of Ohio’s U.S. Congressional Delegation, there will be numerous Ohio state offices up for election, i.e. five Statewide offices (Governor, Secretary of State, Treasurer, Auditor and Attorney General), 2 Ohio Supreme Court seats, all 99 Ohio House of Representative seats, and 17 of the 33 Ohio Senate seats. 

There is also State Issue 1, which is a Proposed Constitutional Amendment which would “create a bipartisan, public process for drawing Ohio Congressional Districts”. In general, Issue 1 gives the minority party more input into the Congressional redistricting process than they currently have. Both the Ohio Democrat Party and the Ohio Republican Party have endorsed Issue 1.

Pending Legislation

1. B. 168

OFDA continues to work with Representative Dick Stein (R-Norwalk) to include “clean up” language from the funeral-related provisions that were included in the State Budget. Stein’s H.B. 168, entitled the Cemetery Restoration and Improvement Act, has passed the House and includes technical changes suggested by OFDA. 

H.B. 168 received four hearings in the Senate Finance Committee and on February 27, 2018 passed out of the Committee.  The bill will now go to the full Senate for a vote. OFDA expects H.B. 168 will be enacted into Ohio law prior to the Legislature taking its summer break in June.

Below is a summary of the OFDA-supported corrective measures contained in H.B. 168. 

LIST OF CORRECTIVE MEASURES TO CHAPTER 4717 OF OHIO REVISED CODE AS INCLUDED IN SUB. H.B. 168 (As passed the Ohio House of Representatives) 

Below are seven technical corrections that are included in Sub. H.B. 168 (as passed by the Ohio House) that the Ohio Funeral Directors Association (OFDA) and the Ohio Board of Embalmers and Funeral Directors (the “Board”) support.

1. Board Quorum – Under current law, 5 of the 7 members of the Board of Embalmers & Funeral Directors have to be licensed funeral directors but only 4 of the licensed funeral directors have to have an embalmers license. So, for quorum purposes, this amendment item would allow all of the 5 funeral director members to be counted for purposes of determining a quorum.

2. Disposition in Thirty Days - The budget bill as enacted (Am. Sub. H.B. 49) states that the only reason that a funeral home does not have to make a final disposition of a deceased within 30 days is if the person with the right of disposition (typically a spouse or family member) orders otherwise. This amendment item also would authorize a coroner to order a disposition to occur beyond 30 days.

3. Crematory Operator Permit - This provision makes it clear that the only individual who can engage in cremation is an individual who has a crematory operator permit. There is a concern that some licensed crematories are allowing persons to perform cremations without having such a permit.

4. Initial Service Fee for Installment Contracts - The budget bill (as enacted) permits a funeral home to collect an initial service fee of 10% on a guaranteed-priced, trust-funded preneed funeral contract. This amendment item makes it clear that if the preneed funeral contract is paid in installments, the initial service fee cannot be collected by the funeral home until after all installments have been paid.

5. Payment to the Trustee – The budget bill (as enacted) requires that all payments made by a consumer to fund a preneed funeral contract shall be to the funeral contract trust. However, under current practice many preneed trusts have a trustee’s designated depository receive payments and this amendment item incorporates this practice into Ohio law.

6. 13 Prohibited Conduct – This item makes it clear that there are penalties under Ohio law if a person engages in cremation without a crematory operators permit or engages in the profession of funeral directing, embalming or operating a crematory or performing cremation without a license.

7. 4717.14 Disciplinary actions – The two changes in this section relate to disciplinary actions that the Board of Embalmers & Funeral Directors may take when there are violations of certain sections of Chapter 4717 of the Ohio Revised Code. They are as follows:

• The Board of Embalmers and Funeral Directors and the Ohio Funeral Directors Association both agree that “recklessly” as opposed to “purposely” is the appropriate mens rea (state of mind) to determine when a violation of the applicable sections occur.

• The new language that authorizes the Board of Embalmers and Funeral Directors to suspend a license or permit via a telephone conference after reviewing allegations was requested by the Board to be able to act expeditiously when appropriate.

2. B. 28 – Disposition of Fetal Remains

This bill is a reintroduction of Senator Joe Uecker’s fetal remains legislation from last session that ended on 12/31/2016. The bill provides that a woman who has a surgical abortion is not guilty of failure to dispose of fetal remains humanely if the fetal remains are disposed of in compliance with the bill's cremation or interment provisions. Major provisions include:

• Provides that a person who buries or cremates fetal remains from a surgical abortion is not liable for or subject to damages in a civil action, prosecution in a criminal proceeding, or professional disciplinary action related to the disposal of fetal remains if the person does all of the following:
  • Acts in good faith compliance with the bill's fetal remains disposition requirements;
  • Receives a copy of a properly executed detachable supplemental form to the abortion informed consent form;
  • Acts in furtherance of the final disposition of the fetal remains.
  • Conditions the immunity granted to a person who buries or cremates fetal remains as described above on compliance with the continuing law requirements for fetal death certificates for the product of human conception of at least 20 weeks gestation.
  • Delays the application of the prohibition regarding failure to dispose of fetal remains humanely and the grave, crypt, or niche prohibition until the Director of the Ohio Department of Health adopts the rules required under the bill.

The bill passed out of the Senate Government Oversight & Reform Committee on January 10, 2018.  At OFDA’s request, Senator Uecker included a clarifying amendment to the bill relating to the final disposition of fetal remains.  The bill passed the Ohio Senate on January 17, 2018.

The bill was referred to the House Health Committee and on February 28, 2018 passed out of the Committee. The next step is for the bill to go to the House floor for a vote.

3. B. 510 - Regarding parent disposition of a deceased adult child

H.B. 510, introduced on February 14, 2018 by Representative Tavia Galonski (D-Akron), establishes a process when one of a deceased adult child’s parents has not visited or failed to maintain contact with the adult child for more than one consecutive year, the other parent may exercise the right of disposition. The parent exercising the right of disposition is required to make a good faith effort to notify the parent who abandoned the adult child of the child’s death. However, the parent exercising the right of disposition is not required to obtain the consent or input of the other parent.

OFDA met with Representative Galonski and explained that current law already establishes a process through the probate court to address such a situation.  The bill has received sponsor testimony in the House Community and Family Advancement Committee.

Recently, OFDA received an inquiry from State Senator Vernon Sykes (D-Akron) concerning the possibility of introducing similar legislation in the Senate. Sykes’s Senate District includes Representative Galonski’s House District. OFDA provided information to Senator Sykes office explaining that Ohio law already provides a process to consider such disputes through Probate Courts.

4. H.B. 146 – Change of Cause of Death

H.B. 146, introduced by Representative Larry Householder on March 21, 2017 would change Ohio law to prohibit a county coroner from changing the cause of death on a death certificate without first obtaining authority from a court of common pleas after a hearing. Under current law a coroner can unilaterally correct a cause of death once without court approval, however, thereafter, court approval is required.  The bill has received seven hearings in the House State & Local Government Committee.

The Ohio State Coroners Association has expressed concerns with the bill as being too restrictive and has suggested that the Committee consider making the following changes to the bill:

• Allow coroners to change their own death certificates (meaning from their office during their term) with no time constraints and that if it’s from a previous coroner’s term in office, then they would be mandated to go to the court of common pleas.
• Allow coroners to change “Pending” death certificates with no time constraints.  (The coroners association estimates that 10% of coroner cases fall under this category and in some instances, can take much longer than eight weeks to determine an accurate cause and manner of death.  However, with a pending certificate, final disposition may occur.)

 OFDA will continue to monitor the activity of H.B. 146.