The Joint Committee on
Performance Evaluation and Expenditure Review
Report # 469
Review of the Board of Funeral Service
Executive Summary
Introduction
The PEER Committee reviewed the Board of Funeral Service. PEER conducted the review pursuant to the authority granted by MISS. CODE ANN. Section 5-3-57 et seq. (1972). This review is a “cycle review,” which is not driven by specific complaints or allegations of misconduct.
In conducting this review, PEER sought to determine the effectiveness of the Board of Funeral Service’s oversight by answering the following questions:
Does Mississippi need a Board of Funeral Service?
What are the board’s responsibilities in regulating the practice of funeral service?
Does the board’s licensing process provide assurance of competency of professionals?
Does the board effectively enforce regulatory requirements?
Background
All fifty states and the District of Columbia have boards with responsibility for regulation of the funeral service industry. The Legislature established Mississippi’s Board of Funeral Service in 1983, which replaced the State Board of Embalming that was established in 1918. The board regulates funeral service and funeral directing practitioners, as well as funeral home establishments, branches, commercial mortuary services, and crematory facilities in Mississippi. These individuals and establishments must also comply with requirements of the Federal Trade Commission and the Occupational Safety and Health Administration of the U. S. Department of Labor (OSHA).
The Board of Funeral Service consists of seven members:
one funeral service licensee and one funeral director licensee from each of the state’s three Supreme Court districts; and,
one public member appointed from the state at-large.
The board presently has two employees: an Executive Director and an Administrative Secretary. Inspections are carried out by the Executive Director and board members, with some assistance provided by the Executive Director’s husband and a former board member.
Need for the Board of Funeral Service
Risk factors associated with the funeral service profession create a need for state government to protect workers in the industry and the public. The Board of Funeral Service, if it fulfills its function properly, should diminish or eliminate the profession’s potential risks.
The practice of the funeral service profession entails risks to practitioners as well as to the general public, if hazardous chemicals and infectious materials are not properly handled. These risks require practitioners to be regulated and properly trained. The board’s responsibilities in regulating the practice of funeral service consist of licensing professionals and enforcing applicable laws and regulations.
Licensure
Through the use of a national licensure examination, the Board of Funeral Service assures the competency of practitioners. However, the state’s funeral service law does not require practitioners to earn continuing education hours to remain current in their profession.
A major function of the Board of Funeral Service is to license individuals who want to practice in Mississippi. Licensing should involve a fair process that assures competency to practice. State law requires that the board determine that an individual engaged in funeral service or directing meets certain standards pertaining to general qualifications, education, and testing.
The Mississippi Board of Funeral Service requires candidates to achieve a passing score on a national examination prior to initial licensure. The board utilizes the National Board Examination (NBE) developed by the International Conference of Funeral Service Examining Boards to examine candidates for licensure. With the exception of California, all states utilize this examination to determine a candidate’s funeral service competencies. Candidates for a Mississippi funeral service or funeral directing license may take either the NBE or the Mississippi licensure examination.
Until 2002, MISS. CODE ANN. § 73-11-51 (1972) required all applicants for licensure to have completed at least three hours of continuing education units in areas related to federal OSHA standards. However, now, once individuals are licensed, the state’s funeral service law does not require licensees to earn continuing education hours to remain current in their profession. The lack of a continuing education requirement for renewal of licenses diminishes the board’s ability to ensure the general competency of licensees to perform funeral service activities.
Enforcement
The Board of Funeral Service does not effectively enforce regulatory requirements because it does not have a rigorous, fully documented process to investigate complaints; it does not perform periodic, uniform inspections of licensed funeral establishments; and it does not ensure that its disciplinary actions are consistent.
PEER examined the board’s complaint, inspection, and disciplinary processes with which it carries out its enforcement function.
Complaint Process
Board members’ investigations and board actions to resolve complaints are poorly documented in the board’s investigative files and meeting minutes.
PEER found that individuals who investigate complaints regarding funeral service licensees and establishments do not consistently document their fieldwork and conclusions. Also, for the complaints that had been processed and closed for calendar year 2002, the board’s meeting minutes did not include a summary of the complaint, results of the investigative board member’s investigation, or a recommendation of action to be taken by the board in response to the complaint.
It is imperative that the board have a rigorous investigative process that fully documents the rationale for any actions taken by the board. The lack of such could result in penalties being inconsistently imposed or board decisions being overturned on appeal to circuit court.
Inspection Process
Because of insufficient staffing and the lack of a systematic approach to completing inspections, the Board of Funeral Service has not fulfilled its inspection responsibilities and thus cannot assure the protection of the health and safety of funeral establishment employees and the public.
PEER examined a random sample of fifty-two files from a total of 442 establishments that the board should have inspected in 2001 and 2002 and found that the board had inspected only thirty-three of these establishments. This is due in part because the Board of Funeral Service has insufficient staff with which to conduct the inspections mandated by law. As noted previously, inspections are carried out by the Executive Director and board members, with some assistance provided by the Executive Director’s husband and a former board member.
Concerning disciplinary proceedings, board members who have inspected a funeral establishment and participate in the full board’s determination of noncompliance and any resulting disciplinary penalties regarding that same establishment could be, or appear to be, prejudiced in favor of or against the establishment. Because the board has no rule that requires members who have conducted inspections to recuse themselves from disciplinary proceedings on the establishments they have inspected, the potential exists for the appearance of bias or impropriety.
The board has no formal process or plan in place to inspect all funeral establishments within the two-year time frame mandated by law. The board cannot ensure that all inspections will be completed within the licensing period, particularly with the limited number of individuals available to conduct inspections. Thus the board cannot assure the public that funeral establishments are in compliance with state law and board rules and regulations.
Neither state law nor the board’s rules and regulations contain requirements for follow-up inspections. Without a follow-up inspection, the board cannot determine whether corrective action has been taken for each violation.
Discipline and Penalties
The Board of Funeral Service does not utilize specific criteria when conducting inspections of funeral establishments. Thus the board cannot conduct uniform inspections and cannot ensure the safety of funeral establishment employees and the public.
Although individuals who conduct funeral establishment inspections use a standard inspection form with general guidelines, it does not provide any specific criteria for these elements. For example, one item on the inspection form, “Proper quarter for rites and ceremonies,” does not operationally define “proper.” The meaning of this term is open to the interpretation of the individual inspectors.
To gauge the effectiveness of the Board of Funeral Service’s inspections, PEER compared the results of inspections of selected establishments by the board to results of inspections of the same establishments by OSHA. Although the board’s inspection responsibilities include matters other than workplace safety (e.g., consumer protection matters), OSHA standards give some reasonable basis of comparison. PEER compared results of the board’s inspections of three establishments to the results of OSHA inspections of those same establishments. For two of the establishments, OSHA had cited multiple serious violations, while the board had cited no violations. The board had not inspected the third establishment.
When the board and OSHA conduct inspections of the same establishments and OSHA finds multiple violations and the board finds none, the board’s effectiveness in conducting inspections is called into question.
The board does not utilize disciplinary actions consistently to deter violators and, in at least one case, has administered a disciplinary action not authorized by statute.
If a funeral establishment is found guilty of violating state law or board rules and regulations, state law provides the following options for disciplinary actions:
refuse to examine, issue, or renew a license;
suspend or revoke any license; or,
reprimand or place the holder of a license on probation.
State law also allows the board to assess monetary penalties against those funeral establishments found to be guilty of a violation. For the first violation, a monetary penalty of no less than $50 nor more than $500 may be assessed; for the second violation, a monetary penalty of no less than $100 nor more than $1,000; and for the third violation, no less than $500 nor more than $5,000.
Although monetary penalty ranges are provided for in state law, the board has not developed a penalty matrix that states the amount of monetary penalty that should be assessed for each violation, based on the type and severity of the violation or whether it was an initial or recurring offense. Similarly, the board does not have a penalty matrix or written procedure for determining the length of probationary periods it assesses for noncompliance.
When inspections of funeral establishments found violations of state law or the board’s rules and regulations that funeral establishment personnel acknowledged, the board has administered penalties in some cases and not in others. Within PEER’s sample of fifty-two randomly selected funeral establishment files, eleven funeral establishments whose inspection reports noted that they were out of compliance with state law or the board’s rules and regulations had no action taken against them by the board. PEER’s review of the board’s minutes identified four other funeral establishments that received disciplinary action by the board for the same violations committed by the above-noted eleven establishments that did not receive penalties.
In at least one instance, the Board of Funeral Service has used a consent order to implement a disciplinary action not authorized by statute. A $1,000 monetary fine assessed by the board exceeded by $500 the fine authorized in MISS. CODE ANN. § 73-11-57 (1972) for a first violation.
Recommendations
The Legislature should amend MISS. CODE ANN. § 73-11-55 (1972) to provide authority to the Board of Funeral Service to develop a comprehensive set of regulations to protect workers in the funeral service industry from the unique risks associated with their employment. Such regulations should be measurable so that trained inspectors can determine compliance with them.
No later than December 1, 2004, the Board of Funeral Service should develop a proposed continuing education program for all licensees. The proposed program should include annual education requirements for each class of license and the subjects required for each licensee. Upon development of a continuing education program, the board should seek legislative authorization to implement the program.
The Board of Funeral Service should review its current funding structure and program expenditures to determine whether sufficient funds are available from existing sources to implement recommendations contained in this report. If sufficient funds currently exist, the board should seek increased appropriations for future fiscal years from current revenue sources to offset expenses associated with implementation of report recommendations. If the board can establish that current revenue sources will not be sufficient to offset such expenses, the board should recommend to the Legislature increased or additional fees sufficient to cover such expenses.
The Board of Funeral Service should ensure that individuals who serve as inspectors are adequately trained to conduct investigative fieldwork. Such training should consist of mastery of all substantive criteria for inspections and preparation of supporting workpapers.
The Board of Funeral Service should ensure that board members who investigate complaints against a licensee or funeral establishment do not participate in the adjudication of such complaints.
The Board of Funeral Service should consider employing a full-time, trained professional to conduct inspections of funeral establishments and investigate complaints.
The Board of Funeral Service should develop a formal process for ensuring that funeral establishment inspections are completed in a timely manner and include the process in its policy and procedure manual. The process could include, but not be limited to:
a schedule for the completion of a specified number of inspections per month;
inclusion in the board’s computer system of the types of inspections (reinspection, routine, initial) and the results of the inspections;
a system to track the performance of funeral establishments and provide data with which to measure the effectiveness of the inspection program;
a report of all funeral establishments inspected each quarter or from the date of the last board meeting and the results to be presented at each board meeting; and,
a requirement that a report be made by the Executive Director on October 30 of each year in which the licensure period expires to identify those funeral establishments that have not been inspected to ensure that the schedule provides for an inspection prior to December 31.
The Board of Funeral Service should create a penalty matrix to determine the monetary penalty that should be assessed as well other penalties that should be assessed (such as probation) based on the types of violations and the severity of violations.
The Mississippi Legislature should amend MISS. CODE ANN. § 73-11-57 (1972) to require the board to conduct follow-up inspections within thirty days of the filing of an inspection report for funeral establishments that the board cites as failing to comply with state law or board regulations.
To ensure that funeral establishments are inspected consistently, the Board of Funeral Service should develop measurable criteria for each element included in the inspection process.
When imposing monetary fines against non-compliant licensees or funeral establishments, the Board of Funeral Service should strictly adhere to the graduated schedule of fines included in MISS. CODE ANN. § 73-11-57 (1972).
The Board of Funeral Service should review its disciplinary actions and consent orders for cases closed during CY 2002 and CY 2003 to determine their compliance with penalties authorized by MISS. CODE ANN. § 73-11-57 (1972). In those instances in which penalties imposed varied from state law, the board should take corrective action to ensure strict compliance with state law. Also, for each hearing conducted or administrative action taken by the board, the Executive Director should compile and include in investigative files an itemized accounting of administrative expenses associated with such action.