Mortuary Licensing Refuses to Die
June 8, 2008
By Jerry Kopel
There are some legislators who believe anything that walks, flies, or
crawls, needs to be licensed.
Fortunately, they don't always win, and it helps to have a Dept. of
Regulatory Agencies (DORA) whether part of a Republican or Democratic
administration, to continue to be the single department to fight against
expansion of its powers.
This year's victory was the defeat of House bill 1123, the mortuary
licensing bill. It died again for the "umpeenth" time, on the next-to-last
day of the 2008 session.
Chief sponsor Rep. Debbie Stafford (D) was, in my opinion, caught in the
middle of a dispute between the Colorado Funeral Directors Association
(Association) and DORA.
One could call this a battle between egoists (the Association) vs. the
practical (DORA).
The Association requested and DORA issued another Sunrise report in
December, 2007 regarding licensing or registration of mortuary science
practitioners, funeral directors, embalmers, cremationists, and interns of
each occupation.
For the first time in 25 years, DORA did agree to support a bill to
register the funeral directors and each establishment. For DORA, that was
a major concession. On page 31 of the Sunrise report:
"The registered funeral director would be
ultimately responsible for the establishment and its employees adhering
to the existing funeral service laws." Colorado has some of the best
consumer protection statutes in the nation regarding mortuaries, thanks
in part to successful measures sponsored by Rep. Stafford.
DORA continues: "If a complaint of a violation of
existing statutes is received, the (registration) division should have the
authority to investigate alleged violations and, if necessary, initiate
formal disciplinary action, including the imposition of fines, against the
registered funeral director."
But there was an important distinction. DORA regards "registration" as
serving to protect the public "with minimal barriers to entry". Rep.
Stafford's regulatory bill regards "registration" as another name for
"licensing", which DORA points out requires an educational program,
passage of a test, or completion of a number of hours of practice in the
occupation for those already employed (or otherwise by internship).
Disciplinary procedures under the Stafford bill are like those in
licensing laws.
DORA also wanted the mortuaries to disclose in print how consumers could
contact DORA to file a complaint and include information educating
consumers about current Colorado law.
The only "disclosure" information specifically referred to in the bill
dealt with disclosure on an application by a person seeking licensure or
registration.
In my opinion, the Association wanted licensing for all their occupations.
They wanted a specified number of hours of performance from each
occupation before the person would be licensed.
According to Legislative Council fiscal impact staff notes, there are
1,327 practitioners and 549 funeral establishments "and the profession
grows by about 15 percent each year". Out of 1,876 possibilities, the
staff estimated no more than five complaints a year, "with three serious
enough to require full investigations...with one of those going to the
attorney general for resolution."
Cost to the industry paid to DORA? $436,925 in fiscal year 2009-10.
Regulation in the mortuary industry goes back to 1913. But in 1977, the
state auditor and DORA had to review the mortuary law under the then-new
Sunset law. They agreed the mortuary board "did little to address consumer
protection" and "licensed renewal...did not ensure continued licensee
competence".
Despite the finding, in 1978, practitioners were licensed under the
statute to continue until a repeal date of 1981. In 1981, the House voted
against continued licensing 41 to 19. The Sunset law gives an agency
reviewed two years to avoid the effect of repeal, but the subsequent
attempt in 1982 died in a House committee.
In 1983, a bill passed that eliminated the board and licensing from the
statute but retained the consumer protections.
Reviews requested by the Association seeking licensing began again in 1990
and then again in 2002. DORA found "no evidence that a licensing board
could improve existing oversight".
In 2006, SB 239 providing for licensing a mortuary science practitioner
and certifying everyone else, did pass the legislature and was vetoed by
Gov. Bill Owens (R) who pointed out there had been no request for a
Sunrise review as required by statute.
In 2007, much of the same bill was introduced as HB 1231, and killed in
House Business Affairs. I believe DORA pointed out there still had not
been an applicable Sunrise review.
Rep. Stafford's HB 1123 this year did pass the House. There were 24 votes
against it, mostly by Republicans. In the Senate, Sen. Steve Johnson (R)
was carrying the 47 page bill as he had so many times in the past.
He amended the bill in Senate Business Committee to provide for
registration for everyone, and left the strict licensing standards as the
standards for registration. "A rose by any other name..."
The bill was held in Senate Appropriations until the next to last day for
the 2008 session. Johnson asked for, and got, "a parliamentary five "
allowing an appropriations committee meeting at the mike on the Senate
floor, with a Senate "time out".
He offered a new Stafford "strike below the enacting clause", a 35 page
amendment which was turned down. The committee then voted seven to three
to kill the bill.
From 1982 through 2008, this occupation has not been licensed or
registered in Colorado. I believe the Association has not recognized that
violations in Colorado are minimal compared to the 49 states that do have
licensing or registration.
This was Rep. Stafford's last year in the House and Sen. Johnson's last
year in the Senate. Perhaps some of the Association egoists (concerned
about being unlicensed while attending national meetings of the mortuary
occupation) might consider stepping aside and let more moderate voices
prevail.
(Jerry Kopel served 22 years in the Colorado House and was chief sponsor
in 1976 of the Sunrise and Sunset laws.)
|