Jerry Kopel

KOPEL: STANDARDS SET FOR EMBALMERS, FUNERAL DIRECTORS, OTHERS

Mortuary regulation just refuses to die

No bill is ever really dead in the Colorado Legislature. Comatose — perhaps for a long period — but always subject to being awakened.

Last year was finally the right time for passage of a “warranty of habitability” bill, a half-century after the first bill designed to guarantee that rental housing in Colorado is fit for humans was offered by two Republicans.

This year, a quarter of a century after the deregulation of mortuary professions, House Bill 1202 passed, and funeral homes and crematories will be registered beginning Jan. 1, 2010. HB 1202 will be repealed July 1, 2015, unless continued by the Legislature and governor.

Rep. Nancy Todd, D-Aurora, and Sen. Joyce Foster, D-Denver, were the main sponsors.

Each funeral establishment will be required to have a registered designee with at least two years of work experience at the funeral home. Consumers and the Department of Regulatory Agencies will be authorized to collect documents and investigate the establishment’s staff.

Democratic Govs. Dick Lamm and Roy Romer and Republican Gov. Bill Owens had agreed with DORA’s consistent opposition to relicensing the mortuary professionals. But language concerning consumer protection remained in the statute books after the Legislature deregulated the occupation in 1983. And much more has been added to the law since then, making Colorado the only deregulated state with comprehensive laws setting standards for the funeral industry.

In its 2007 Sunrise report, DORA accepted the designee and funeral home registration. However, the Colorado Funeral Directors Association wanted licensing for all funeral professions. What they got was title protection.

HB 1202 separates the occupations and sets a standard that must be met before someone who works in the funeral industry can use various descriptive titles.

Here’s how it works.

• To be a mortuary science practitioner, a person must graduate from an acceptable higher education school of mortuary science, take and pass the national mortuary science test and have at least 2,000 hours of practice or internship.

• To be an embalmer, a person needs 4,000 hours of practice or internship and must have embalmed at least 50 human bodies.

• To be a funeral director, a person needs 2,000 hours of practice or internship and to have directed 50 funerals or graveside services.

• To be a cremationist, a person needs 500 hours of practice or internship and must have cremated 50 human bodies.

As to licensing, DORA states, “if regulation is necessary, the existing statute and regulations should establish the least restrictive form of regulation consistent with the public interest considering other available regulatory mechanisms and whether the agency rules enhance the public interest and are within the scope of legislative intent.”

DORA’s definition of title protection: “Only those whose study or experience meets certain prescribed requirements may use the relevant prescribed titles.”

DORA calls this the weakest form of regulation. HB 1202 provides that “a person shall not advertise, represent or hold oneself out as or use the title mortuary science practitioner, funeral director, embalmer, or cremator” unless they meet the required study and hours of work.

If you have been doing something for 25 years, you obviously know what you are doing. You meet the standards for competence required, but not the hours and education background. You can do business. But you will have to find a way to explain what you do without using the forbidden words. “If asked, don’t tell.”

Title protection probably means disciplinary action will be based on failure to have the required number of hours of experience, as opposed to actual bad service.

I would be very surprised to see those presently in the funeral business in Colorado being charged with providing bad service. I think Colorado in 2008 or 2009 probably has fewer complaints about bad results than any other state in the country.

Legislative Council staff did a study for the 2007 report from which we can expand, to project that there are probably about 1,400 practitioners and 600 funeral establishments. For 2007, legislative staff estimated no more than five complaints annually under the licensing approach, “with three serious enough to require investigations ... with one of the three going to the attorney general for resolution.” The original cost for HB 1202 will be $182,000. That is money actually paid by consumers to the funeral home and passed on to the state.

* * *

Some naturopathic doctors have been trying to become regulated since 1993. Other attempts were made in 1998 and 2000. There were other years when Sunrise reports supported regulation, but the naturopathic doctors decided not to proceed.

DORA recognizes that failure to regulate has resulted in harm to consumers. The Colorado Medical Society has consistently opposed regulation for the occupation.

This year, Rep. Kathleen Curry, D-Gunnison, and Sen. Suzanne Williams, D-Aurora, got House Bill 1175, relating to the profession, to pass the House 40 to 24. It died in the Senate Health Committee a month later. Supporters should request a new DORA Sunrise report to cover 2010 and 2011 attempts.

Many naturopathic practitioners want to be licensed or else have the state provide clear titles that the public can understand. The practitioners would be subject to discipline. Practitioners want a minimum education standard that includes a degree from a naturopathic college accredited by the Council of Naturopathic Medical Education and passing scores on the licensing exams.

There are many who call themselves naturopathic doctors who cannot meet the standards proposed. And some schools do not provide accepted education standards.

This is a form of patient care legal in 14 or more states that have licensing programs for incoming graduates of accredited schools. It is based on the human body’s power to heal itself by restoring its natural balance.

If a bill is introduced in 2010, this column will go into detail on the DORA approach to separate applicants from others using the term “naturopathic.”

Jerry Kopel served 22 years in the Colorado House.