BILL NUMBER: AB 598 CHAPTERED 10/11/93 BILL TEXT CHAPTER 1232 FILED WITH SECRETARY OF STATE OCTOBER 11, 1993 APPROVED BY GOVERNOR OCTOBER 11, 1993 PASSED THE ASSEMBLY SEPTEMBER 7, 1993 PASSED THE SENATE SEPTEMBER 2, 1993 AMENDED IN SENATE JULY 1, 1993 AMENDED IN SENATE JUNE 17, 1993 AMENDED IN ASSEMBLY MAY 13, 1993 AMENDED IN ASSEMBLY MARCH 25, 1993 INTRODUCED BY Assembly Member Speier FEBRUARY 22, 1993 An act to amend Sections 9765 and 9784 of, and to add Section 9720 to, the Business and Professions Code, and to amend Sections 7002, 7009, 7010, 7011, 7051, 7051.5, 7052, 7054.1, 7054.7, 7100, 7110, 7111, 7112, and 8341 of, and to add Sections 7006.3, 7006.5, 7006.7, 7010.3, 7010.5, 7010.7, 7011.2, 7025, 8112, 8343, 8344, 8344.5, 8345, 8345.5, 8346, 8346.5, and 8347 to, the Health and Safety Code, relating to human remains, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST AB 598, Speier. Human remains: cremation. Existing law requires the licensing of funeral directors, cemetery brokers, and crematories. Existing law also regulates the disposition of human remains, and the operation of cemeteries and crematories. Existing law requires every cemetery authority operating a cemetery to pay annual regulatory charges fixed by the board plus an additional charge of 50 for each burial, entombment, inurnment, or cremation during the preceding calendar year. t This bill would change the additional fee per cremation to $1. By revising the amounts deposited into the Cemetery Fund, a continuously appropriated fund, this bill would make an appropriation. Existing law requires the Cemetery Board to inspect the records and premises of any crematory licensed or holding a certificate of authority to operate a crematory. Existing law authorizes this inspection to be made during regular business hours and without prior notification of the inspection. This bill would require that the board annually conduct a minimum of one unannounced inspection of each licensed crematory. Existing law defines various terms relating to cremation and human remains. This bill would revise certain definitions and define additional terms, and would make conforming changes. Existing law makes it a crime to remove any human remains from the place they are interred, or from the place they are deposited while awaiting interment or cremation, with intent to sell or dissect those remains, and without authority of law or written permission. This bill would provide that the removal of foreign materials, pacemakers, or prostheses by an employee of a licensed crematory prior to final processing is not within these definitions of crimes. This bill would require that any dental gold or silver, jewelry, or mementos removed be returned to the cremation container or urn unless otherwise directed by the person having the authority to control the disposition of remains. Existing law also makes it a crime to remove dental gold or silver from human remains without the permission of the persons having the right to control those remains. This bill would add jewelry and mementos to the items prohibited from being removed. Existing law also provides that it is a felony to mutilate, disinter, or remove human remains without authority of law, except the removal of a relative or friend for reinterment. This bill would revise this provision to apply only to willful conduct, and to instead except the removal of remains under authority of law and the performance of cremation. By revising the definitions of these crimes, this bill would impose a state-mandated local program. Existing law prohibits removal of cremated remains or charging for a cremation unless the cremated remains have been processed so they are suitable for inurnment, and authorizes a contract for cremation to include specific written authorization for the processing of the remains. This bill would instead require that the remains be processed so they are suitable for placement in a cremated remains container, as defined, or an urn, as defined, and would require written notification regarding the processing of the remains to the person having the authority to control the remains. Existing law prohibits certain types of commingling of the human remains of more than one person, and provides that violation of those provisions is a misdemeanor. This bill would revise those provisions, and would make those provisions inapplicable to residue, as defined. This bill would also require that a prescribed written acknowledgement, on a form including specified information, be filed and retained for at least 5 years by the person who disposes of or inters the remains. By revising the definition of a crime, this bill would impose a state-mandated local program. Existing law lists the person or persons who may, in a specified order of succession, control the disposition of the remains of a deceased person. This bill would authorize the funeral director or cemetery authority to rely on the instructions given by a surviving child or children who make certain representations, in the absence of knowledge to the contrary. This bill would also give the funeral director or cemetery authority complete authority to control the disposition of the remains and proceed to recover the cost of the disposition in prescribed circumstances. Existing law requires that any person signing an authorization for the interment of remains warrants the truthfulness of any fact set forth in the authorization, the identity of the person whose remains are to be interred, and his or her authority to order interment, and makes the person personally liable for all damage occasioned by the breach of that warranty. This bill would make this requirement also applicable to authorizations for cremation. Existing law requires that no action shall lie against any cemetery authority relating to cremated remains left in its possession for 5 years, unless a written contract has been entered into or permanent interment has been made. This bill would decrease that time period to one year. Existing law also requires that a funeral director shall not be liable in damages for cremated remains after they have been deposited with a cemetery. This bill would instead provide that the funeral director shall not be liable for lawful disposition of the remains. This bill would require that a crematory maintain on its premises an accurate record of all cremations, including specified information. The bill would require that the information be maintained for at least 10 years and be subject to inspection by the Cemetery Board. The bill would authorize the records to be kept by any method that can produce accurate reproduction of the original record. The bill would further require that a crematory maintain a system of identification of human remains throughout the process of cremation. This bill would require that crematories knowingly cremate only human remains in specified containers, along with negligible amounts of chlorinated plastic pouches for disease control. Under existing law, a crematory licensee is prohibited from conducting any cremations of human remains more than 72 hours after death unless the remains have been preserved by refrigeration or embalming. Existing law requires that cremated remains not removed for interment or burial at sea be disposed of within a reasonable time. This bill would prohibit a crematory from accepting human remains unless certain requirements are met. This bill would prohibit a crematory from holding human remains prior to cremation for more than 24 hours unless specified storage conditions are met. This bill would require that cremated remains not disposed of within one year be interred. This bill would require crematory operators to provide a written list of prices for various charges related to cremation, and to include a specified statement identifying the Cemetery Board as a source of further information. This bill would also require that the crematory licensee provide specified instruction to all crematory personnel, and maintain a written plan of instruction for employees, and a record to document that employees received training. This bill would require that on or after March 1, 1994, any crematory that fails to produce a written plan or record of training shall have 15 days to produce a plan or training record for inspection, and shall have its license suspended for failure to produce that plan or training record. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Appropriation: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares that lack of well-defined operational standards for the cremation of human remains has contributed to uncertainties regarding all of the following: (a) The degree to which human remains can be legally commingled during cremation. (b) The responsibility of the crematory for materials that are foreign to the human body. (c) The extent of procedures necessary to ensure that human remains are properly identified throughout the cremation process. Therefore, the Legislature enacts the Cremation Standards Act to define the responsibilities of a crematory and to ensure that the rights and expectations of the public are protected. SEC. 2. Section 9720 is added to the Business and Professions Code, to read: 9720. The board shall annually conduct a minimum of one unannounced inspection of each licensed crematory. SEC. 3. Section 9765 of the Business and Professions Code is amended to read: 9765. Every cemetery authority operating a cemetery shall pay an annual regulatory charge for each cemetery to be fixed by the board at not more than four hundred dollars ($400), plus an additional charge of not more than fifty cents ($.50) for each burial, entombment, or inurnment, and not more than one dollar ($1) for each cremation, made during the preceding full calendar year, which charges shall be deposited in the Cemetery Fund. If the cemetery authority performed the cremation and either the burial, entombment, or inurnment then there shall only be one additional charge due. SEC. 4. Section 9784 of the Business and Professions Code is amended to read: 9784. No crematory licensee under this article shall conduct any cremations: (a) Unless the licensee has a written contract with the person or persons entitled to custody of the remains clearly stating the location, manner, and time of disposition to be made of the remains, agreeing to pay the regular fees of the licensee for cremation, disposition, and other services rendered, and any other contractual provisions as may be required by the board. (b) Of any remains more than 24 hours after delivery of the remains, unless the remains have been preserved in the interim by refrigeration or embalming. (c) Unless the licensee has a contractual relationship with a licensed cemetery authority for final disposition of cremated human remains by burial, entombment or inurnment of any and all remains which are not lawfully disposed of or which are not called for or accepted by the person or persons entitled to the custody and control of the disposition thereof within 90 days of the date of death. SEC. 5. Section 7002 of the Health and Safety Code is amended to read: 7002. "Cremated remains" means human remains after cremation in a crematory. SEC. 6. Section 7006.3 is added to the Health and Safety Code, to read: 7006.3. "Cremation chamber" means the enclosed space within which the cremation of human remains is performed. SEC. 7. Section 7006.5 is added to the Health and Safety Code, to read: 7006.5. "Cremation container" means a combustible, closed container resistant to leakage of bodily fluids into which the body of a deceased person is placed prior to insertion in a cremation chamber for cremation. SEC. 8. Section 7006.7 is added to the Health and Safety Code, to read: 7006.7. "Cremated remains container" means a receptacle in which cremated remains are placed after cremation. SEC. 9. Section 7009 of the Health and Safety Code is amended to read: 7009. "Interment" means the disposition of human remains by entombment or burial in a cemetery or, in the case of cremated remains, by inurnment, placement or burial in a cemetery, or burial at sea as provided in Section 7117. SEC. 10. Section 7010 of the Health and Safety Code is amended to read: 7010. "Cremation" means the combination of all of the following: (a) The reduction of the body of a deceased human to its essential elements by incineration. (b) The repositioning or movement of the body or remains during incineration to facilitate the process. (c) The processing of the remains after removal from the cremation chamber. SEC. 11. Section 7010.3 is added to the Health and Safety Code, to read: 7010.3. "Processing" means the removal of foreign objects, pursuant to Section 7051, and the reduction of the particle size of cremated remains by mechanical means including, but not limited to, grinding, crushing, and pulverizing to a consistency appropriate for disposition. SEC. 12. Section 7010.5 is added to the Health and Safety Code, to read: 7010.5. "Residue" means human ashes, bone fragments, prostheses, and disintegrated material from the chamber itself, imbedded in cracks and uneven spaces of a cremation chamber, that cannot be removed through reasonable manual contact with sweeping or scraping equipment. Material left in the cremation chamber, after the completion of a cremation, that can be reasonably removed shall be considered to be in excess of "residue." SEC. 13. Section 7010.7 is added to the Health and Safety Code, to read: 7010.7. "Scattering" means the authorized dispersal of cremated remains at sea, or commingling in a defined area within a dedicated cemetery, in accordance with this chapter. SEC. 14. Section 7011 of the Health and Safety Code is amended to read: 7011. "Inurnment" means placing cremated remains in a cremated remains container suitable for placement, burial, or shipment. SEC. 15. Section 7011.2 is added to the Health and Safety Code, to read: 7011.2. "Placement" means the placing of a container holding cremated remains in a crypt, vault, or niche. SEC. 16. Section 7025 is added to the Health and Safety Code, to read: 7025. "Disposition" means the interment of human remains within California, or the shipment outside of California, for lawful interment or scattering elsewhere, including release of remains pursuant to Section 10376.5. SEC. 17. Section 7051 of the Health and Safety Code is amended to read: 7051. Every person who removes any part of any human remains from any place where it has been interred, or from any place where it is deposited while awaiting interment or cremation, with intent to sell it or to dissect it, without authority of law, or written permission of the person or persons having the right to control the remains under Section 7100, or with malice or wantonness, is punishable by imprisonment in the state prison. This section shall not prohibit the removal of foreign materials, pacemakers, or prostheses from cremated remains by an employee of a licensed crematory prior to final processing of ashes. Dental gold or silver, jewelry, or mementos, to the extent that they can be identified, may be removed by the employee prior to final processing if the equipment is such that it will not process these materials. However, any dental gold and silver, jewelry, or mementos that are removed shall be returned to the urn or cremation container, unless otherwise directed by the person or persons having the right to control the disposition. SEC. 18. Section 7051.5 of the Health and Safety Code is amended to read: 7051.5. Every person who removes or possesses dental gold or silver, jewelry, or mementos from any human remains without specific written permission of the person or persons having the right to control those remains under Section 7100 is punishable by imprisonment in the state prison. The fact that residue and any unavoidable dental gold or dental silver, or other precious metals remain in the cremation chamber or other equipment or any container used in a prior cremation is not a violation of this section. SEC. 19. Section 7052 of the Health and Safety Code is amended to read: 7052. Every person who willfully mutilates, disinters, or removes from the place of interment any human remains, without authority of law, is guilty of a felony. This section does not apply to any person who, under authority of law, removes the remains for reinterment, or performs a cremation. SEC. 20. Section 7054.1 of the Health and Safety Code is amended to read: 7054.1. No cremated remains shall be removed from the place of cremation, nor shall there be any charge for the cremation, unless the cremated remains have been processed so that they are suitable for placement within a cremated remains container or an urn. Every contract for cremation services shall include specific written notification of the processing to the person having the right to control the disposition of the remains under Section 7100. SEC. 21. Section 7054.7 of the Health and Safety Code is amended to read: 7054.7. (a) Except with the express written permission of the person entitled to control the disposition of the remains, no person shall: (1) Cremate the remains of more than one person at the same time in the same cremation chamber, or introduce the remains of a second person into a cremation chamber until incineration of any preceding remains has been terminated and reasonable efforts have been employed to remove all fragments of the preceding remains. The fact that there is residue in the cremation chamber or other equipment or any container used in a prior cremation is not a violation of this section. (2) Dispose of or scatter cremated remains in a manner or in a location that the remains are commingled with those of another person. This paragraph shall not apply to the burial of cremated remains at sea from individual containers, to the scattering or burial of cremated remains in a dedicated cemetery, or to the disposal in a dedicated cemetery of accumulated residue removed from a cremation chamber or other cremation equipment. (3) Place cremated or uncremated remains of more than one person in the same container or the same interment space. This paragraph shall not apply to the following: (A) Interment of members of the same family in a common container designed for the cremated remains of more than one person. (B) Interment in a space or container that has been previously designated at the time of sale as being intended for the interment of remains of more than one person. (C) Disposal in a dedicated cemetery of residue removed from a cremation chamber or other cremation equipment. (b) Written acknowledgement from the person entitled to control the disposition of the cremated remains shall be obtained by the person with whom arrangements are made for disposition of the remains on a form that includes, but is not limited to, the following information: "The human body burns with the casket, container, or other material in the cremation chamber. Some bone fragments are not combustible at the incineration temperature and, as a result, remain in the cremation chamber. During the cremation, the contents of the chamber may be moved to facilitate incineration. The chamber is composed of ceramic or other material which disintegrates slightly during each cremation and the product of that disintegration is commingled with the cremated remains. Nearly all of the contents of the cremation chamber, consisting of the cremated remains, disintegrated chamber material, and small amounts of residue from previous cremations, are removed together and crushed, pulverized, or ground to facilitate inurnment or scattering. Some residue remains in the cracks and uneven places of the chamber. Periodically, the accumulation of this residue is removed and interred in a dedicated cemetery property, or scattered at sea." The acknowledgment shall be filed and retained, for at least five years, by the person who disposes of or inters the remains. (c) Any person, including any corporation or partnership, knowingly violating any provision of this section is guilty of a misdemeanor. SEC. 22. Section 7100 of the Health and Safety Code is amended to read: 7100. (a) The right to control the disposition of the remains of a deceased person, including the location and conditions of interment, unless other directions have been given by the decedent, vests in, and the duty of interment and the liability for the reasonable cost of interment of the remains devolves upon the following in the order named: (1) The surviving spouse. (2) The surviving child or children of the decedent, provided that, in the absence of actual knowledge to the contrary, a funeral director or cemetery authority may rely on instruction given by a child or children who represent (A) that they are the sole surviving child or children; (B) that they constitute a majority of the surviving children; or (C) that they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of one-half or more of all surviving children. (3) The surviving parent or parents of the decedent. (4) The person or persons respectively in the next degrees of kindred. (5) The public administrator when the deceased has sufficient assets. (b) A funeral director or cemetery authority shall have complete authority to control the disposition of the remains, and to proceed under this chapter to recover usual and customary charges for the disposition, when both of the following apply: (1) Either of the following applies: (A) The funeral director or cemetery authority has knowledge that none of the persons described in paragraphs (1) to (4) of subdivision (a) exists. (B) None of the persons described in paragraphs (1) to (4) of subdivision (a) can be found after reasonable inquiry, or contacted by reasonable means. (2) The public administrator fails to assume responsibility for disposition of the remains within 24 hours after having been given written notice of the facts. Written notice may be delivered by hand, U.S. mail, facsimile transmission, or telegraph. (c) The liability for the reasonable cost of final disposition devolves jointly and severally upon all kin of the decedent in the same degree of kindred and upon the estate of the decedent; provided, that should a person accept the gift of an entire body under subdivision (a) of Section 7155.5, that person, subject to the terms of the gift, shall be liable for the reasonable cost of final disposition of the decedent. (d) (1) A decedent, prior to his death, may direct the preparation for, type, or place of interment of his remains, either by oral or written instructions, but a written contract for funeral services may only be modified in writing. The person or persons otherwise entitled to control the disposition of the remains under the provisions of this section shall faithfully carry out the directions of the decedent subject only to the provisions of this chapter with respect to the duties of the coroner. (2) If the instructions are contained in a will, they shall be immediately carried out, regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date. (e) This section shall be administered and construed to the end that the expressed instructions of the decedent or the person entitled to control the disposition shall be faithfully and promptly performed. (f) A funeral director or cemetery authority shall not be liable to any person or persons for carrying out the instructions of the decedent or the person entitled to control the disposition. SEC. 23. Section 7110 of the Health and Safety Code is amended to read: 7110. Any person signing any authorization for the interment or cremation of any remains warrants the truthfulness of any fact set forth in the authorization, the identity of the person whose remains are sought to be interred or cremated, and his or her authority to order interment or cremation. He or she is personally liable for all damage occasioned by or resulting from breach of such warranty. SEC. 24. Section 7111 of the Health and Safety Code is amended to read: 7111. A cemetery authority may make an interment or cremation of any remains upon the receipt of a written authorization of a person representing himself or herself to be a person having the right to control the disposition of the remains pursuant to Section 7100. A cemetery authority is not liable for cremating, making an interment, or for other disposition of remains permitted by law, pursuant to that authorization, unless it has actual notice that the representation is untrue. SEC. 25. Section 7112 of the Health and Safety Code is amended to read: 7112. No action shall lie against any cemetery authority relating to the cremated remains of any person which have been left in its possession for a period of one year, unless a written contract has been entered into with the cemetery authority for their care or unless permanent interment has been made. No licensed funeral director shall be liable in damages for the lawful disposition of any cremated human remains. SEC. 26. Section 8112 is added to the Health and Safety Code, to read: 8112. Records required to be kept under Division 7 (commencing with Section 7000) or this division may be kept in original form or by photocopy, microfilm, microfiche, laser disc, or any other method that can produce an accurate reproduction of the original record. SEC. 27. Section 8341 of the Health and Safety Code is amended to read: 8341. All cremated remains not disposed of in accordance with this chapter, within one year, shall be interred. SEC. 28. Section 8343 is added to the Health and Safety Code, to read: 8343. A crematory shall maintain on its premises, or other business location within the State of California, an accurate record of all cremations performed, including all of the following information: (a) Name of referring funeral director, if any. (b) Name of deceased. (c) Date of cremation. (d) Name of cremation chamber operator. (e) Time and date that body was inserted in cremation chamber. (f) Time and date that body was removed from cremation chamber. (g) Time and date that final processing of cremated remains was completed. (h) Disposition of cremated remains. (i) Name and address of authorizing agent. (j) The identification number assigned to the deceased pursuant to Section 8344. (k) A photocopy of the disposition permit filed in connection with the disposition. This information shall be maintained for at least 10 years after the cremation is performed and shall be subject to inspection by the Cemetery Board. SEC. 29. Section 8344 is added to the Health and Safety Code, to read: 8344. A crematory shall maintain an identification system allowing identification of each decedent beginning from the time the crematory accepts delivery of human remains until the point at which it releases the cremated remains to a third party. After cremation, an identifying disk, tab, or other permanent label shall be placed within the urn or cremated remains container before the cremated remains are released from the crematory. Each identification disk, tab, or label shall have a unique number that shall be recorded on all paperwork regarding the decedent's case and in the crematory log. Each crematory shall maintain a written procedure for identification of remains. On or after March 1, 1994, any crematory that fails, when requested by an official of the board to produce a written procedure for identification of remains, shall have 15 working days from the time of the request to produce an identification procedure for review by the Executive Officer of the Cemetery Board. The license of the crematory shall be suspended pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, if no identification procedure is produced for review after 15 working days have elapsed. SEC. 30. Section 8344.5 is added to the Health and Safety Code, to read: 8344.5. A crematory regulated by the Cemetery Board shall knowingly cremate only human remains in cremation chambers, along with the cremation container and no more than a negligible amount of chlorinated plastic pouches utilized for disease control when necessary. SEC. 31. Section 8345 is added to the Health and Safety Code, to read: 8345. If a cremated remains container is of insufficient capacity to accommodate all cremated remains of a given deceased, the crematory shall provide a larger cremated remains container at no additional cost, or place the excess remains in a secondary cremated remains container and attach the second container, in a manner so as not to be easily detached through incidental contact, to the primary cremated remains container for interment, scattering, or other disposition by the person entitled to control the disposition. SEC. 32. Section 8345.5 is added to the Health and Safety Code, to read: 8345.5. A crematory shall not accept human remains for cremation unless the remains meet all of the following requirements: (a) The remains shall be in a cremation container, as defined. (b) The cremation container shall be labeled with the identity of the decedent. SEC. 33. Section 8346 is added to the Health and Safety Code, to read: 8346. Within two hours after a crematory licensed by the State of California, takes custody of a body, it shall store the body at a temperature not greater than 50 degrees Fahrenheit unless the cremation process will begin within 24 hours of the time that crematory took custody. SEC. 34. Section 8346.5 is added to the Health and Safety Code, to read: 8346.5. Every crematory operator, or duly authorized representative shall provide to any person who inquires in person, a written, or printed list of prices for cremation and storage, cremation containers, cremated remains containers and urns, and requirements for cremation containers. This information shall be provided over the telephone when requested. Commencing July 1, 1994, any written or printed list shall identify the crematorium and shall contain, at a minimum, the current address and phone number of the Cemetery Board in 8-point boldface type, or larger. SEC. 35. Section 8347 is added to the Health and Safety Code, to read: 8347. (a) The crematory licensee, or his or her authorized representative shall provide instruction to all crematory personnel involved in the cremation process. This instruction shall lead to a demonstrated knowledge on the part of an employee regarding identification procedures used during cremation, operation of the cremation chamber and processing equipment and all laws relevant to the handling of a body and cremated remains. This instruction shall be outlined in a written plan maintained by the crematory licensee for inspection and comment by an inspector of the Cemetery Board. (b) No employee shall be allowed to operate any cremation equipment until he or she has demonstrated to the licensee or authorized representative that he or she understands procedures required to ensure that health and safety conditions are maintained at the crematory and that cremated remains are not commingled other than for acceptable residue, as defined. The crematory licensee shall maintain a record to document that an employee has received the training specified in this section. (c) On or after March 1, 1994, any crematory that fails, when requested by an official of the board, to produce a written employee instruction plan, or record of employee training for inspection, shall have 15 working days from the time of the request to produce a plan or training record for review by the executive officer of the Cemetery Board. The license of the crematory shall be suspended, pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, if no plan or training record is produced for review after 15 working days have elapsed. SEC. 36. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs which may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, changes the definition of a crime or infraction, changes the penalty for a crime or infraction, or eliminates a crime or infraction. Notwithstanding Section 17580 of the Government Code, unless otherwise specified in this act, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution.