Jerry Kopel

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.)

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