MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Public Health and Human Services; Judiciary B
By: Representative Holland
AN ACT TO AMEND SECTION 41-61-69, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE CREMATION OF A DEAD BODY WITHOUT THE PERMISSION OF THE MEDICAL EXAMINER REGARDLESS OF WHETHER THE DEATH IS OTHERWISE UNDER THE JURISDICTION OF THE MEDICAL EXAMINER; TO AMEND SECTIONS 41-39-5, 41-39-7, 41-39-127, 73-11-69 AND 73-11-73, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-61-69, Mississippi Code of 1972, is amended as follows:
41-61-69. (1) No person
knowing or having reason to know that a death may be under the jurisdiction of
the medical examiner * * *
may embalm * * *
or bury * * * the body without the permission of the medical examiner,
and no person may cremate a body without the permission of the medical examiner
regardless of whether the death is otherwise under the jurisdiction of the
medical examiner. Any person violating the provisions of this section
shall be guilty of a misdemeanor, and may be punished by a fine of not more
than Five Hundred Dollars ($500.00), or by imprisonment for not more than six
(6) months in the county jail, or by both such fine and imprisonment.
(2) A dead body shall not
be cremated or buried at sea unless a medical examiner certifies that he has
been informed of or inquired into the cause and the manner of death and has the
opinion that no further examination is necessary. This subsection shall not
apply to deaths occurring less than twenty-four (24) hours after birth or to
death of patient resulting only from natural disease and occurring in a
licensed hospital unless the death falls within the jurisdiction of the medical
examiner. The State Medical Examiner shall be authorized to adopt rules
creating additional exceptions to this subsection. For making this
certification, the medical examiner or his deputy shall be entitled to charge a
fee of Twenty-five Dollars ($25.00), to be paid by the applicant, unless such
medical examiner or his deputy has filed a written report of such death as
provided in Section 41-61-73 * * * and received a fee
therefor paid by the county.
SECTION 2. Section 41-39-5, Mississippi Code of 1972, is amended as follows:
41-39-5. Any physician, hospital, funeral director, embalmer, coroner or other person acquiring possession of a dead human body or portion thereof which is not claimed for burial or cremation within forty-eight (48) hours of its acquisition shall give written notice thereof to the board of supervisors, or a member thereof, of the county in which the dead body or portion thereof is located, furnishing such identification of the decedent as may be available. The board of supervisors shall make reasonable efforts to notify members of the decedent's family or other known interested persons, and, if the dead body or portion thereof shall not be claimed for burial or cremation by any interested person within five (5) days of the aforementioned written notice, the board of supervisors shall, as soon as it may think appropriate, authorize and direct the burial or cremation and burial of the residue of such dead body or portion thereof. Cremation of the body shall be subject to the provisions of Section 41-61-69. In its discretion and where otherwise permitted to do so by law, the board of supervisors may direct the disposition of the dead body or portion thereof as provided by Section 41-39-7. The reasonable expense of such burial or cremation and burial of the residue of a dead body shall be borne by the estate of the decedent or of any person liable at law for the necessities of the decedent during his lifetime or, if they are unable to pay the same, by the county of residence or settlement of the decedent, if known, and, if not known, by the county in which the dead body or portion thereof is located.
If the person having possession of such dead human body or portion thereof shall have no available means of preserving the same and shall so notify the board of supervisors, or a member thereof, of the county in which the dead body or portion thereof is located, it shall be the duty of the board of supervisors to make arrangements for the preservation of the same until burial or cremation and burial of the residue of the dead body as hereinabove provided, and the expense of such preservation shall be borne as hereinabove provided with respect to the expense of burial or cremation.
SECTION 3. Section 41-39-7, Mississippi Code of 1972, is amended as follows:
41-39-7. Upon the request
of the * * *
Executive Director of the State * * * Department of Health, the
authorities in charge of the hospitals supported either wholly or partly by
state funds are authorized and directed to deliver any body of any person,
except the bodies of persons with mental illness and persons with an
intellectual disability, dying in any of those hospitals to the duly authorized
representatives of the state university or any medical college or any
accredited mortuary science program in any community or junior college
in this state, giving the state university preference in the event there is an
insufficiency in dissecting material for the use of all hospitals for
anatomical purposes. This applies to the remains of any person, except persons
with mental illness and persons with an intellectual disability, who dies in
any of those hospitals, when the body is not, within a reasonable time after
death, claimed for burial by some fraternal order, or by some person related to
the deceased by blood or marriage, or by some friend. The State Board of
Health shall have authority to adopt regulations for the proper burial of those
persons with mental illness and persons with an intellectual disability.
However, the human remains of any unknown person who is a traveler dying
suddenly shall not be so delivered or used for anatomical purposes. Any human
remains, so delivered, shall be properly and decently removed from the
hospital, at the expense of the party to whom the same may be delivered, and
shall be transported under such regulations as the State Board of Health may
prescribe, and after use for strictly necessary medical study, in the medical
department of the university, or in any medical college, or in any accredited
mortuary science program in any community or junior college in this
state, as the case may be, the body shall be decently interred or may be
cremated and the residue interred at the expense of the party using the same. Cremation
of the body shall be subject to the provisions of Section 41-61-69. The
State Board of Health shall have authority to regulate and restrict the use of
dead bodies used for the above purposes. The authorities of the hospitals, the * * * Executive Director of the
State * * *
Department of Health, and the authorities of the university, any medical
college and any accredited mortuary science program in any community or
junior college in this state, shall each cause a record to be kept of each body
used and disposed of, under the provisions of this section, and such records
shall be subject to inspection of any member of the State Board of Health at
any time.
SECTION 4. Section 41-39-127, Mississippi Code of 1972, is amended as follows:
41-39-127. Rights and duties of procurement organization and others. (a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Mississippi Department of Public Safety and any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.
(b) A procurement organization must be allowed reasonable access to information in the records of the Mississippi Department of Public Safety to ascertain whether an individual at or near death is a donor.
(c) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. The organ procurement organizations, tissue bank, or eye bank, or hospital medical professionals under the direction thereof, may perform any and all tests to evaluate the deceased as a potential donor and any invasive procedures on the deceased body in order to preserve the potential donor's organs. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent. The procurement organization representative shall initiate the consent process with reasonable discretion and sensitivity to the family's circumstances, values and beliefs.
(d) Unless prohibited by law other than Sections 41-39-101 through 41-39-149, at any time after a donor's death, the person to which a part passes under Section 41-39-121 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.
(e) Unless prohibited by law other than Sections 41-39-101 through 41-39-149, an examination under subsection (c) or (d) may include an examination of all medical and dental records of the donor or prospective donor.
(f) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.
(g) Upon referral by a hospital under subsection (a), a procurement organization shall make a reasonable search for any person listed in Section 41-39-117 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information.
(h) Subject to Sections 41-39-121(i) and 41-39-143, the rights of the person to which a part passes under Section 41-39-121 are superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and Sections 41-39-101 through 41-39-149, a person that accepts an anatomical gift of an entire body may allow embalming, burial or cremation, and use of remains in a funeral service. Cremation of the body shall be subject to the provisions of Section 41-61-69. If the gift is of a part, the person to which the part passes under Section 41-39-121, upon the death of the donor and before embalming, burial, or cremation, shall cause the part to be removed without unnecessary mutilation.
(i) Neither the physician who attends the decedent at death nor the physician who determines the time of the decedent's death may participate in the procedures for removing or transplanting a part from the decedent.
(j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.
SECTION 5. Section 73-11-69, Mississippi Code of 1972, is amended as follows:
73-11-69. (1) No person or party shall conduct, maintain, manage or operate a crematory unless a license for each such crematory has been issued by the board and is conspicuously displayed in such crematory.
(2) Before a crematory facility may cremate a body, the operator of the crematory facility must verify that the medical examiner has given permission for the cremation of the body as required by Section 41-61-69, and shall keep a written record of verification of the medical examiner's permission.
( * * *3) The operator of a crematory
facility shall issue a certificate of cremation to the family of each person
cremated in the facility. In addition, the operator of the crematory facility
shall maintain a log of all cremations performed in the facility, and this log
shall match the certificates of cremation that have been issued by the
facility.
( * * *4) No operator of a crematory facility
shall knowingly represent that an urn or temporary container contains the
recovered cremated remains of specific decedent or of body parts removed from a
specific decedent when it does not. This subsection does not prohibit the
making of such a representation because of the presence in the recovered
cremated remains of de minimis amounts of the cremated remains of another
decedent or of body parts.
( * * *5) The board shall inspect each
licensed crematory facility during each licensure period, and at such other
times as necessary, to verify that the crematory facility is in compliance with
the requirements of this section. Any person who operates a crematory facility
in this state without a license, or any person who otherwise violates any
provision of this section, is guilty of a felony. Upon conviction for a
violation of this section, in addition to any penalty that may be imposed by
the court, the board may revoke the person's crematory facility license.
( * * *6) If the retort of a crematory
becomes in need of repair, then the operator of the crematory shall notify the
board in writing and by telephone within forty-eight (48) hours of discovery of
the need to repair, and no cremation shall be made from the time of discovery
until satisfactory proof is provided to the board that the repair has been
made.
( * * *7) The board may promulgate such rules
and regulations as deemed necessary for the proper licensure and regulation of
crematory facilities in this state. Such rules and regulations shall include,
but not be limited to, the following: crematory facility requirements,
identification of deceased human beings, cremation process, processing of
remains, comingling of human remains, disposition of cremated remains, removal
of human remains and proper documentation requirements as prescribed by state
agencies.
( * * *8) Any crematory or funeral
establishment may dispose of any remains unclaimed by the family after twelve
(12) months after cremation by scattering or burial upon a final notification
to the next of kin by certified mail to their last-known address.
( * * *9) The crematory retort operator must
be a certified crematory operator as defined in Section 73-11-41.
( * * *10) No crematory facility licensed by
the board shall be used for the cremation of deceased animals.
( * * *11) A crematory may be constructed on
or adjacent to any cemetery, on or adjacent to any funeral establishment, or at
any other location consistent with local zoning regulations.
SECTION 6. Section 73-11-73, Mississippi Code of 1972, is amended as follows:
73-11-73. (1) A funeral establishment and its employees, licensees and/or representatives shall not respond to a death call unless properly contacted and requested to so respond. No person or entity subject to regulation under this chapter shall remove or cause to be removed any dead human body from the place of death or take or cause to take custody of a dead human body without the permission of the next of kin or authorized representative, in the order of priority specified in Section 73-11-58, of the deceased.
(2) Dead human bodies may be picked up on first call or removed by a funeral director or funeral service practitioner licensed by the board or under the direction of the licensed funeral director or funeral service practitioner. When a licensed funeral director or funeral service practitioner directs another to make a first call or removal of a dead human body, he accepts, in every manner, full responsibility for all aspects of the first call or removal.
(3) A licensed funeral establishment or other licensee of the board shall not embalm or cremate a dead human body without the prior written or oral consent of the next of kin or authorizing agent or representative of the deceased for each body that is placed under its care and custody, and shall not cremate a dead human body without the permission of the medical examiner as required by Section 41-61-69. In determining who the proper next of kin is or authorizing agent or representative of the deceased, the order of priority is the same as provided in Section 73-11-58.
(4) The licensed funeral establishment or licensee responsible for the embalming or cremation of the dead human body shall create a written record of an oral consent given under this section that includes all of the following:
(a) The name of the authorizing agent;
(b) The relation of the authorizing agent to the deceased;
(c) The date and time that consent was given;
(d) The name of the person who obtained the consent; and
(e) Any other information required by the board.
SECTION 7. This act shall take effect and be in force from and after July 1, 2014.