§ 13.202. Unprofessional conduct.

 Unprofessional conduct includes the following:

   (1)  Aiding or assisting a funeral director whose license has been suspended or revoked or an unlicensed person to engage in an act or practice for which a license is required.

   (2)  Demonstrating disrespect toward or mutilating the remains of the deceased person.

   (3)  Making a comment or public announcement in defamation of another funeral director. This does not prohibit one licensee from testifying against another licensee or from filing a bona fide complaint with the Board.

   (4)  Participating in the establishment of a business or professional relationship with or in the operation of a burial association, mutual assessment association, burial certificate plan, insurance company, lodge company, society or religious or other organization whose plan or scheme of organization or operation limits or interferes with the rights of a person entitled by law to dispose of the body of a deceased member, policyholder or certificateholder.

   (5)  Paying or extending an offer to pay or give to a person, agency or group a commission or a valuable consideration for the solicitation or procurement of clientele.

   (6)  Offering, directly or indirectly, or giving money or an item of value to an employee of the Commonwealth to directly or indirectly influence the administration or enforcement of the act or this chapter, except for the payment of fees required by the act and this chapter.

   (7)  Failing to notify the Bureau, in writing, of a demand, solicitation or attempted extortion of money or an item of value, by or on behalf of an employee assigned to the administrative jurisdiction of the Commissioner, and failing to furnish additional information reasonably requested.

   (8)  Attempting to influence the judgment of the family in the selection of a funeral director, funeral arrangements or funeral merchandise when a family group is divided on these issues.

   (9)  Aiding or abetting another licensed funeral director to violate the act or this chapter.

   (10)  Failure to fulfill the professional responsibilities of a funeral director as described in the act or this chapter.

   (11)  Furnishing embalming, other services or merchandise without having obtained written permission from a family member or other person authorized by law to make funeral arrangements for the deceased. Oral permission to embalm, followed by a confirmatory e-mail, fax, telex, telegram, mailgram or other written confirmation will be acceptable.

   (12)  Renting or exchanging funeral establishments by one or more funeral directors for the purpose of creating a secondary location for funeral services. Renting of an establishment for funeral services by a funeral director over 10 times a year shall be evidence of attempting to create a secondary location.

   (13)  Retaining funds intended to pay for funeral goods and services when the funeral director and funeral entity have not provided any funeral goods and services or when the amount of funds retained is in excess of the value of funeral goods and services actually provided by the funeral director or funeral entity, as set forth on the general price list in effect at the time the funeral goods and services are actually provided. This paragraph does not apply to funds received under an agreement entered into by the funeral director, or the funeral entity employing that funeral director, while the decedent was still living to provide funeral goods or services on behalf of the decedent when needed.

   (14)  Performing funeral services on behalf of a funeral entity that the funeral director knew, or should have known, was not in compliance with section 8 of the act (63 P. S. §  479.8), regarding conduct of business.

   (15)  Refusing to release remains until consideration, whether earned or not, has been paid.

   (16)  Failing to comply with the regulations of the Federal Trade Commission in 16 CFR Part 453 (relating to funeral industry practices).

Authority

   The provisions of this §  13.202 amended under section 11(a)(5) of the Funeral Director Law (63 P. S. §  479.11(a)(5)).

Source

   The provisions of this §  13.202 adopted October 19, 1973, effective October 20, 1973, 3 Pa.B. 2392; amended November 11, 1977, effective November 12, 1977, 7 Pa.B. 3306; amended December 6, 1991, effective December 7, 1991, 21 Pa.B. 5645; amended May 25, 2007, effective May 26, 2007, 37 Pa.B. 2412. Immediately preceding text appears at serial pages (293265) to (293266).

Notes of Decisions

   Constitutionality

   Although licensee argued that the regulation which allows a bereaved family member to withhold written confirmation of an earlier oral approval is unconstitutionally vague, that argument is not considered where the Board determined that there had not even been oral approval to embalm. Toms v. Bureau of Professional and Occupational Affairs, 800 A.2d 342 (Pa. Cmwlth. 2002).

   Evidence

   Where the Board made the factual determinations that not only did the licensee not receive later written permission to embalm, but that he was without oral permission as well, its finding that the licensee violated §  13.202(11) was supported and therefore affirmed. Toms v. Bureau of Professional and Occupational Affairs, 800 A.2d 342 (Pa. Cmwlth. 2002).



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