Sec 32-1301. Definitions

In this chapter, unless the context otherwise requires:

1. "Accredited" means recognized or authorized by the American board of funeral service education.

2. "Administrative costs and expenses" means the cost of copies, transcripts, court reporter and witness fees, reimbursement for mileage and office of administrative hearings costs.

3. "Alternative container" means any unfinished wood box or other nonmetal receptacle or enclosure, without ornamentation or a fixed interior lining, that is designed for the encasement of human remains.

4. "Authorizing agent" means a person who is legally entitled to order the cremation, disinterment or embalming of human remains pursuant to section 32-1365.02.

5. "Beneficiary" means a person whose future funeral arrangements will be handled by a funeral establishment pursuant to a prearranged funeral agreement.

6. "Board" means the state board of funeral directors and embalmers.

7. "Business entity" includes any corporation, association, limited liability company, professional corporation, partnership, limited partnership, sole proprietorship, business trust, trust, joint venture and other business entity.

8. "Casket" means a rigid container that is designed for the permanent encasement of human remains and that is usually constructed of wood, metal or synthetic substances and ornamented and lined with fabric.

9. "Change of ownership" means a transfer of a controlling legal or equitable interest in a licensed funeral establishment or crematory resulting from a sale or merger. If the establishment or crematory is operated by a business entity, any transfer of the ownership of ten per cent or more of the entity constitutes a change of ownership.

10. "Conviction" means a criminal adjudication or conviction by any state or federal court of competent jurisdiction, including a judgment based on a no contest plea, without regard to whether civil rights have been restored.

11. "Cremated remains" means the remaining bone fragments after cremation.

12. "Cremation" means the heating process that reduces human remains to bone fragments by combustion and evaporation.

13. "Cremation container" means a leak and spill resistant, rigid, combustible, closed receptacle into which human remains are placed before cremation.

14. "Cremationist" means a person who operates a crematory retort, who performs the actual cremation of human remains and who is licensed pursuant to article 6 of this chapter.

15. "Crematory" means a building or portion of a building that is licensed pursuant to article 6 of this chapter and that houses a retort in which only human remains are cremated.

16. "Disciplinary action" means action taken by the board to revoke or suspend a license or registration, to impose probationary requirements or civil penalties or to issue a letter of censure or reprimand to any person who is subject to this chapter and who violates any provision of this chapter or rules adopted by the board.

17. "Embalmer" means a person who is licensed pursuant to this chapter and who is engaged in embalming.

18. "Embalmer's assistant" means a person who is registered pursuant to this chapter and who is engaged in embalming without the supervision of a licensed embalmer.

19. "Embalming" means the implementation of reconstructive procedures and the process of disinfecting and preserving a dead human body to retard organic decomposition by treating the body to reduce the presence and growth of organisms.

20. "Financial institution" means a bank, savings and loan association, trust company or credit union that is lawfully doing business in this state and that is not affiliated with a funeral establishment.

21. "Fixed price prearranged funeral agreement funded by trust" means any agreement or combination of agreements that establishes a fixed price for funeral goods and services, that requires a funeral establishment to provide those funeral goods and services at the price levels in effect at the time of the execution of the agreement and that requires the purchaser to convey all or a portion of the accrued interest to the funeral establishment at the time that the funeral goods and services are actually provided.

22. "Funded by insurance" means that monies for a prearranged funeral agreement are paid directly to an insurance company licensed pursuant to title 20 on behalf of the beneficiary of the agreement.

23. "Funeral directing" means arranging, directing or providing a service in the disposition of dead human bodies for compensation.

24. "Funeral director" means a person who is licensed pursuant to this chapter and who is engaged in funeral directing.

25. "Funeral establishment" means a business at a specific location that is licensed pursuant to this chapter and that is devoted to the care, storage or preparation for final disposition or transportation of dead human bodies.

26. "Funeral goods and services" means any personal property or services typically sold or provided in connection with the final disposition of human remains, including caskets, alternative containers, outer burial containers, cremation containers, transportation containers, funeral clothing or accessories, monuments, grave markers, urns, embalming services, funeral directing services and similar funeral or burial items. Funeral goods and services do not include goods and services sold by cemeteries.

27. "Good moral character" means that a person:

(a) Has not been convicted of a class 1 or 2 felony by a court of competent jurisdiction.

(b) Has not, within five years of application for licensure or registration, been convicted of a felony or misdemeanor if the offense has a reasonable relationship to the person's proposed area of licensure or registration.

(c) Has not, within five years of application for licensure or registration, committed any act involving dishonesty, fraud, misrepresentation, breach of fiduciary duty, gross negligence or incompetence if the act has a reasonable relationship to the person's proposed area of licensure or registration.

(d) Is not currently incarcerated in or on community supervision after a period of imprisonment in a local, state or federal penal institution or on criminal probation.

(e) Has not engaged in fraud or misrepresentation in connection with an application for licensure or registration under this chapter or an examination required for licensure or registration.

(f) Has not, within five years of application for licensure or registration, had a license, registration or endorsement revoked or suspended by the board or by the funeral services licensing authority of any other jurisdiction.

(g) Has not surrendered a license, registration or endorsement to the board or the funeral licensing authority of any other jurisdiction in lieu of disciplinary action.

(h) Has not practiced funeral directing or embalming without a license in this state or any other jurisdiction that requires licensure to perform these activities.

28. "Holding facility" means a designated area for the retention of human remains.

29. "Human remains" means a lifeless human body or parts of a human body that permit a reasonable inference that death occurred.

30. "Intern" means a person who is licensed pursuant to this chapter and who is engaged in embalming under the supervision of a licensed embalmer.

31. "Intern trainee" means a person who intends to enter training as an intern and who is temporarily employed by a funeral establishment.

32. "License" means a written authorization that is issued by the board and that entitles a person to act as a funeral director, embalmer or intern or to operate a funeral establishment or crematory in this state.

33. "Licensee" means a person to whom the board has issued a license to act as a funeral director, embalmer or intern or to operate a funeral establishment or crematory in this state.

34. "Manage" means:

(a) For a responsible funeral director to exercise control and oversight over all employees of a funeral establishment and over funeral transactions, including the care of dead human bodies, funeral services and activities and the documentation and retention of records.

(b) For a responsible cremationist to exercise control and oversight over all employees of a crematory and crematory operations.

35. "National board examination" means the test or tests given by the conference of funeral service examining boards to determine the entry level knowledge and skills of a person regarding funeral directing and embalming.

36. "Net interest" means interest earned on a prearranged funeral trust account less applicable taxes, reasonable and necessary charges made by the financial institution and the annual service fee permitted to be deducted by the funeral establishment according to section 32-1391.06, subsection B.

37. "Outer burial container" means a container that is designed for placement in a grave around a casket, including burial vaults, grave boxes and grave liners.

38. "Owner" means a person who owns ten per cent or more of a business entity. Owner does not include shareholders of companies who have a class of common equity stock listed or authorized to be listed on the New York stock exchange or the American stock exchange or listed on the NASDAQ stock market.

39. "Person legally responsible" means the person responsible for burying a dead body as determined in section 36-831.

40. "Prearranged funeral agreement" means any agreement or combination of agreements under which a payment is made before the death of the intended beneficiary for funeral goods and services to be delivered or performed after the death of the beneficiary.

41. "Prearranged funeral trust account" means a trust account that is established at a financial institution and into which all monies paid on behalf of a beneficiary pursuant to a prearranged funeral agreement are deposited.

42. "Preparation" means washing, shaving, dressing or arranging hair on, applying cosmetics to or positioning bodily features on a dead human body and placing a dead human body in a casket.

43. "Processed cremated remains" means cremated remains after they are pulverized and cleaned, leaving primarily small bone fragments.

44. "Provisionally accredited" means granted candidacy status by the American board of funeral service education.

45. "Registration" means a written authorization that is issued by the board and that entitles a person to act as an assistant funeral director, an embalmer's assistant or a prearranged funeral salesperson in this state.

46. "Responsible cremationist" means a licensed cremationist who manages a crematory.

47. "Responsible funeral director" means a person who is licensed pursuant to this chapter, who is engaged in funeral directing and who manages and is accountable for a funeral establishment.

48. "Retort" means an enclosed space within which cremation takes place.

49. "State equivalent examination" means the test or tests provided by the conference of funeral service examining boards and offered by the board to determine the entry level knowledge and skills of a person regarding funeral directing and embalming.

50. "Supervise" or "supervision" means a licensed embalmer has responsibility for and is within sight and sound of a licensed intern who is embalming a dead human body or a student who is assisting in embalming a dead human body.

51. "Temporary container" means a receptacle that is usually made of cardboard, rigid plastic or another similar material and that is designed to hold processed cremated remains until they are placed in an urn or another permanent container.

52. "Trust funds" means all monies deposited on behalf of a beneficiary of a prearranged funeral agreement funded by trust and all accrued net interest. Trust funds shall be considered an account kept in suspense until distributed to the beneficiary, the funeral establishment or the estate of the beneficiary in accordance with this article.

53. "Universal precautions" means the universal blood and fluid precautions recommended by the centers for disease control of the United States public health service to prevent the transmission of blood-borne and bodily fluid-borne infectious diseases.

54. "Unprofessional conduct" includes the following acts, whether occurring in this state or elsewhere:

(a) Commission of a class 1 or 2 felony.

(b) Commission of a felony or misdemeanor if the offense has a reasonable relationship to funeral directing or embalming. Conviction by any court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(c) Providing false, misleading or deceptive information on an application for licensure or registration pursuant to this chapter or on an examination required for licensure or registration.

(d) Bribing or offering to bribe, directly or indirectly, a member of the board to influence the member's actions in the performance of the member's duties.

(e) Wilfully interfering with an embalmer, funeral director or cremationist who has lawful custody of a dead human body in the performance of the embalmer's, funeral director's or cremationist's duty to embalm or prepare the body for burial, transportation or cremation.

(f) Paying or causing money or other valuable consideration to be paid to a person, other than an employee of a funeral establishment, to secure business regulated pursuant to this chapter from or through the person.

(g) Violating any law of this state or any rule adopted by the department of health services that relates to the embalming or preparation of dead human bodies.

(h) Certifying falsely to having embalmed or prepared a dead human body that was embalmed by a person other than a licensed embalmer making the certification or an intern under the supervision of a licensed embalmer making the certification.

(i) Falsely advertising or labeling any service or merchandise with the intention of deceiving the public.

(j) Shipping or delivering any merchandise or supplies that are not the substantial equivalent of or superior in quality to merchandise or supplies previously presented to the purchaser as samples.

(k) Committing any act involving dishonesty, fraud, misrepresentation, breach of fiduciary duty, gross negligence or incompetence if the act has a reasonable relationship to funeral directing or embalming.

(l) Engaging in any conduct or practice that is reasonably related to funeral directing or embalming and that is or may be harmful or dangerous to the health, safety or welfare of the public.

(m) Within a period of five years, having a license, registration or endorsement suspended or revoked by the board or by the funeral services licensing authority of any other jurisdiction or surrendering a license, registration or endorsement in lieu of disciplinary action.

55. "Urn" means a receptacle into which processed cremated remains are placed for disposition.