ND_mortlaws

MortSci 2012

Disclaimer: While every effort was made to ensure the accuracy and completeness of the Funeral Laws and regulations available on the State’s website, the documents are not official, and the state agencies preparing this website and the Compiler are not responsible for any errors or omissions which may occur in these files. Only the current published volumes of the States Laws are considered valid

North Dakota Funeral Law

CHAPTER 43-10FUNERAL SERVICE PRACTITIONERS

43-10-01. Definitions.As used in this chapter, unless the context otherwise requires:1. "Board" means the state board of funeral service.2. "Crematorium" means a furnace or establishment for the cremation of corpses.3. "Embalming" means preparing dead human bodies for final disposition or removal by

the injection of antiseptic or preservative preparations into the skin, the blood vessels, or cavities of the body, the external application of antiseptic solution, taking charge of the remains of those dead of any communicable disease, preparing dead human bodies for shipment or holding oneself out to do any of the above acts by advertising or any other means.

4. "Final disposition" means the entombment, burial in a cemetery, or cremation of a dead human body.

5. "Funeral directing" means the care and disposal of the body of a deceased person; the preserving, disinfecting, and preparing, by embalming or otherwise, the body of a deceased person for funeral services, transportation to a point of final disposition, burial, or cremation; or arranging, directing, or supervising a funeral, memorial service, or gravesite service.

6. "Funeral establishment" means any place or premises devoted to or used in the holding, care, or preparation of a dead human body for final disposition or transportation or for mourning or funeral ceremony purposes.

7. "Funeral practitioner" means a person licensed by the board to practice funeral directing and embalming.

8. "Intern embalmer" means a person registered with the board to engage in learning the practice of embalming under the instruction and personal supervision of a duly licensed funeral practitioner.

9. "Practice of funeral service" means to engage in funeral directing or embalming.10. "Preparation of the body" means embalming of the body or such items of care as

washing, disinfecting, shaving, positioning of features, restorative procedures, care of hair, application of cosmetics, dressing, and casketing.

43-10-02. State board of funeral service - Members - Appointment - Qualifications - Term of office - Oath - Vacancies - Removal.

The board consists of the state health officer and three persons appointed by the governor. Each member appointed by the governor shall serve for a term of four years and until a successor is appointed and qualified. The terms of office of the appointed members expire on the thirtieth day of June and must be so arranged that only one expires in any one year. The appointed members of the board must be persons practicing embalming in this state and must have practiced for a minimum of three years in North Dakota. Each member shall qualify by taking the oath of office required of civil officers. The secretary of state may administer the oath and it must be filed in the office of the secretary of state. A vacancy on the board must be filled by appointment by the governor for the unexpired term. The governor may remove any member of the board for good cause.

43-10-03. Officers of board - Compensation of members - Treasurer's bond.The members of the board may elect from their number a president, a secretary, and a

treasurer. The treasurer must be bonded for the faithful discharge of the treasurer's duties in the sum of two thousand dollars. The members shall receive their actual traveling expenses which may not exceed the amount specified in section 54-06-09 and other necessary expenses.

43-10-04. Meetings of the board - Quorum.The board shall meet at least once a year, and may hold such special meetings as the

proper and efficient discharge of its duties requires. Timely notice of all meetings must be given

Page No. 1

to every member of the board. Three members constitute a quorum for the transaction of business.

43-10-05. Power of board to adopt rules for transaction of business - Seal - License fees.

The board may:1. Adopt rules to administer and carry out this chapter.2. Adopt rules regulating the practice, supervision, and instruction of intern embalmers.3. Adopt rules relating to the professional conduct of funeral directors and intern

embalmers.4. Adopt such rules for the transaction of its business and the management of its affairs

as it deems expedient and proper to administer this chapter.5. Adopt and use a seal.6. Adopt rules requiring each funeral home, at the time of selection of merchandise and

services from that funeral home, to disclose in writing to the person or persons making the selection:a. The total price at retail of the merchandise and services selected and a listing of

what merchandise and services are included within such total.b. The price at retail of each item of supplemental service or merchandise

requested.c. The amount of cash advances to the extent that the advances are known or can

be ascertained at the time of the selection.d. The terms of payment for merchandise and services.

7. Establish license and renewal fees for funeral service practitioners and funeral establishments within the limits imposed by this chapter.

8. Adopt rules regulating the operation of funeral establishments and crematoriums.9. Appoint or employ persons to assist the board in carrying out its duties under this

chapter.10. Accept and investigate complaints relating to conduct governed by this chapter.11. Issue subpoenas, examine witnesses, administer oaths, and investigate allegations of

practices violating the provisions of this chapter.

43-10-06. Duty of board to adopt rules to prevent the spread of contagious diseases.The board shall adopt such rules as it deems proper for the disinfection of a deceased

person and of bedding, clothing, apartments, or anything likely to be infected in case of death from a contagious or infectious disease. The rules must be disclosed to every person engaged in embalming and funeral service in this state.

43-10-06.1. State board of funeral service to establish means of disposition.The state board of funeral service shall provide by rule for the appropriate means of

disposition for cremated remains held by a funeral home that have not been claimed as provided in section 43-10-26.

43-10-06.2. Continuing education requirements.The board may adopt rules establishing requirements for the continuing education of

persons licensed under this chapter. The board may refuse to renew, suspend, revoke, or place on probationary status any license issued under this chapter on proof that the licensee has failed to meet the applicable continuing education requirements. Applicants for accreditation of continuing education courses, classes, or activities may be charged a reasonable fee determined by the board.

43-10-06.3. Information seminars.The board may conduct information seminars.

Page No. 2

43-10-07. Records of board - Admissible evidence.A transcript of any matter of record in the office of the board, with the certificate of the

secretary thereof attached, under the seal of said board, is competent evidence of such matter of record in any court in this state.

43-10-08. Biennial report.The board may submit a biennial report to the governor and the secretary of state in

accordance with section 54-06-04.

43-10-09. Use of fees - Funds kept by treasurer - How disbursed.Repealed by S.L. 1971, ch. 510, § 15.

43-10-10. License required.A person may not practice funeral service in this state unless that person is licensed by the

board or registered with the board as an intern embalmer.

43-10-10.1. Funeral practice - Exceptions.1. Nothing in this chapter may be construed to prevent a person from doing work within

the standards and ethics of that person's profession and calling, provided that the person does not represent to the public that the person is engaging in the practice of funeral service.

2. Nothing in this chapter may be construed to prevent embalming by commissioned medical officers in the armed forces of the United States or under the United States public health service while on active duty in a respective service.

3. This chapter does not prevent the transportation of a dead human body in accordance with other applicable state and federal laws.

4. This chapter does not prohibit ambulance or other emergency transportation of a dead human body.

5. This chapter does not prohibit members of the clergy from performing funeral and gravesite or memorial services.

6. This chapter does not prohibit individuals licensed in other states, as embalmers or funeral directors, from assisting funeral practitioners.

7. This chapter does not prohibit individuals employed by a funeral establishment from performing nonprofessional tasks or activities that do not require independent, professional judgment under the supervision of an individual licensed to practice funeral service.

43-10-11. Examination required - Application - Qualification.Any person who desires a license to practice funeral service shall apply to the board on a

form provided by the board and submit to an examination. The applicant shall submit with the application proof that the applicant has the following qualifications:

1. Is of good moral character.2. Has such preliminary preparation and education as the rules of the board require.3. Has completed a twelve-month internship in accordance with rules adopted by the

board.

43-10-11.1. Conviction not bar to licensure - Exceptions.Conviction of an offense does not disqualify a person from licensure under this chapter

unless the board determines that the offense has a direct bearing upon a person's ability to serve the public as a funeral service practitioner or determines under section 12.1-33-02.1 that the person, following conviction of any offense, is not sufficiently rehabilitated.

43-10-12. Examinations - Subjects covered - Written - Record.The examination for a license to practice funeral service must be in writing and must cover

the following subjects:

Page No. 3

1. Anatomy.2. Embalming.3. Bacteriology.4. Chemistry.5. Pathology.6. Mortuary management.7. Restorative arts.8. Rules of the state department of health and the board governing the practice of funeral

service.9. Other subjects that may be required by the board.

All examination papers must be kept on record by the board for a period of not less than three years.

43-10-13. License - When granted - Fee - Signed by majority of board - Nontransferable - Where displayed.

The board shall grant a license to practice funeral service if the applicant:1. Has the required qualifications;2. Has passed the required examination; and3. Has paid to the treasurer of the board a sum of not more than two hundred dollars, as

established by the board.The license must be signed by a majority of the board, be attested by the board's seal, and specify by name the person to whom it is issued. A license is nonassignable, nontransferable, and must be displayed where it can be observed by the public.

43-10-13.1. Limitations or qualifications placed on licensee.The board, if the facts support such action, may place reasonable limitations or

qualifications on the right to practice funeral service or to operate a funeral establishment or crematory.

43-10-14. License by reciprocity.A licenseholder in good standing in another jurisdiction that imposes requirements for

licensure which are at least as stringent as the requirements of this state may be issued a license after passing a written examination on questions concerning laws and rules of this state, upon payment of a fee established by the board, and proof of good moral character.

43-10-15. License - Term - Renewal - Fee for renewal.A license to practice funeral service is valid until the end of the year issued and may be

renewed by the board upon the payment to the treasurer of the annual renewal fee before December thirty-first of each year. The amount of the fee may not exceed one hundred dollars. The board may refuse to renew a license for cause.

43-10-15.1. Late renewal.A license that has been expired may be renewed at any time within two years after its

expiration on filing an application for renewal on a form prescribed by the board and payment of the renewal fee in effect on the last regular renewal date. If the license is not renewed within thirty days after its expiration, the licensee shall pay a late fee determined by the board not to exceed one hundred fifty dollars. Renewal under this section is effected on the date on which the application is filed, on the date which the renewal fee is paid, or on the date on which the late fee, if any, is paid, whichever last occurs. A license that is not renewed within two years after its expiration may be renewed by filing an application for renewal on a form prescribed by the board, payment of the late fee, and passing the law and rules examination.

Page No. 4

43-10-15.2. Issuance of duplicate licenses.Upon receipt of satisfactory evidence that a license or certificate has been lost, mutilated, or

destroyed, the board may issue a duplicate license or certificate upon such terms and conditions as the board prescribes, and upon payment of a fee of ten dollars.

43-10-15.3. Change of name.Any licensee desiring to change the name appearing on the licensee's license may do so by

applying to the board and paying a fee of ten dollars.

43-10-15.4. Intern embalmer - Application - Qualifications.The board shall issue a certificate of registration as an intern embalmer to each applicant

who files an application upon a form and in a manner the board prescribes, accompanied by a fee not to exceed fifty dollars, and who furnishes sufficient evidence to the board that the applicant:

1. Is at least eighteen years of age;2. Is of good moral character;3. Has completed an accredited four-year high school course of study and two years of

accredited college or university studies; and4. Has graduated from an accredited college of mortuary science.

43-10-15.5. Certificate of registration - Term - Renewal - Fee for renewal.A certificate of registration as an intern embalmer is valid for one year and may be renewed

by the board upon payment to the treasurer of the annual renewal fee before December thirty-first of each year. Registration may not be renewed more than three times. The board may refuse to renew registration for cause.

43-10-16. Grounds for disciplinary action - Reimbursement of costs.The board may revoke, suspend, place on probation, or refuse to issue a license to practice

funeral service or certificate of registration as an intern embalmer upon proof at a hearing that the applicant, licensee, or certificate holder:

1. Is unfit to practice funeral service.2. Has violated this chapter or the rules of the board.

The board may impose a fee on any person or other legal entity subject to regulation under this chapter to reimburse the board for all or part of the costs of administrative actions resulting in disciplinary action, including the amount paid by the board for services from the office of administrative hearings, attorney's fees, court costs, witness fees, staff time, and other expenses.

43-10-16.1. Expiration of suspended license - Renewal.A suspended license is subject to expiration and must be renewed as provided in this

chapter, but the renewal does not entitle the holder of the license, while it remains suspended and until it is reinstated, to engage in the activity to which the license relates.

43-10-16.2. Restoration of license after revocation.One year from the date of revocation, the former licensee may make application for initial

licensure. In order to receive a new license, the applicant must satisfy the current requirements for licensure.

43-10-17. Revocation of license - When proceedings commenced - Hearing - Time.Repealed by S.L. 1997, ch. 367, § 29.

43-10-18. Notice of hearing - Contents.Repealed by S.L. 1997, ch. 367, § 29.

Page No. 5

43-10-19. Hearing - Appeals.Hearings regarding disciplinary action or denial of a license must be held under chapter

28-32. An appeal from the board's final decision may be taken in accordance with the provisions of section 28-32-42.

43-10-20. Penalty.A person practicing or representing that the person is practicing funeral service, or

preparing the dead for burial or shipment in violation of this chapter, is guilty of a class B misdemeanor. In addition to the criminal penalty provided, the civil remedy of injunction is available to restrain and enjoin violations of any provision of this chapter without proof of actual damages sustained by any person and without the board being required to file an undertaking.

43-10-21. Definition.As used in sections 43-10-21 through 43-10-24, the term "funeral establishment" shall mean

a place of business situated at a specific street address or location, and used in the care and preparation for burial, transportation, or other disposition of dead human bodies, or used for the purpose of conducting funeral services. A branch establishment is a funeral establishment and must be independently licensed.

43-10-22. Licensure of funeral establishments.A person may not operate or manage a funeral establishment without a funeral

establishment license issued by the board for each place of business. Except for on tribal land, a funeral establishment may not be located on tax-exempt property. A person desiring to operate a funeral establishment shall submit an application for an annual license for each funeral establishment to the secretary or executive secretary of the board accompanied by a license fee for each establishment of not more than one hundred dollars, as established by the board. A person operating or managing a funeral establishment shall annually, on or before December first, submit an application for renewal of a license with a renewal fee of not more than one hundred twenty-five dollars, as established by the board. A license is valid until the following January first, unless sooner revoked. An application must show that the funeral establishment has complied with all rules adopted by the board in regard to safety and sanitation and will be under the supervision of an individual licensed to practice funeral service. An applicant who has met these standards must be issued a license. In case of the death of an owner of a funeral establishment who leaves an established business as part or all of an estate, the board may issue a special renewable temporary license to the personal representative of the deceased person for the duration of the administration of the estate, but which may not exceed two years. The fee for the temporary license is the same as required for regular licenses.

43-10-22.1. Display of license.The funeral establishment license issued by the board to a funeral establishment must be

conspicuously displayed at the funeral establishment for which the license was issued.

43-10-23. Inspections - Hearings - Revocations - Appeal.The funeral establishment, or that part of a funeral establishment in which is conducted or

intended to be conducted any funeral service business, must be open at all times for inspection by the board or the state department of health. The board or agents employed by it and the state department of health may make such inspections as are necessary of facilities and equipment of funeral establishments to ensure compliance with safety and sanitary rules adopted by the board or any other rules or federal regulations pertaining to funeral service whenever either deems the inspection advisable. The board may subpoena witnesses, administer oaths, and take testimony. All proceedings under this section must be conducted in accordance with chapter 28-32. The board may, after a hearing, revoke, suspend, or refuse to issue or renew a license upon good cause. A person aggrieved by the action of the board may

Page No. 6

appeal to the district court of the county in which the person resides or the district court of Burleigh County in accordance with chapter 28-32.

43-10-24. Penalty.Any person operating or managing a funeral establishment without a funeral establishment

license in violation of section 43-10-22 is guilty of a class B misdemeanor.

43-10-25. Licensure of crematoriums.A person may not operate a crematorium without a license issued by the board. A person

desiring to operate a crematorium shall submit an application for an annual license to the board. The license fee may not exceed one hundred dollars and must be the same as a funeral establishment license.

43-10-25.1. Grounds for disciplinary action.The board may revoke, suspend, place on probation, or refuse to issue a license to operate

a crematorium upon proof at a hearing that the applicant or licensee:1. Is unfit to operate a crematorium.2. Has violated this chapter or rules adopted by the board.

43-10-26. Disposition of stored cremated remains.Any cremated remains in the possession of a funeral home in this state that have not been

claimed within twelve months after the time of cremation may be disposed of in accordance with this section and section 43-10-06.1. At least thirty days prior to such disposition, any funeral home wishing to dispose of such remains shall send a written notice to the last-known address of the responsible person who directed and provided for the method of final disposition of the human remains to the effect that such remains will be disposed of unless claimed by the person within thirty days from the date of mailing such notice. The notice must be sent by registered mail, return receipt requested.

Page No. 7

CHAPTER 43-10.1PRE-NEED FUNERAL SERVICES

43-10.1-01. Definitions.As used in this chapter:1. "Cemetery association" means any person, corporation, municipality, association, or

organization owning, conducting, or maintaining a cemetery or plot for the burial of dead human bodies.

2. "Cemetery merchandise" means all service or property to be used in funeral services or burials other than professional service or personal property to be used in funeral services.

3. "Commissioner" means the securities commissioner.4. "Licensed funeral establishment" means a funeral establishment as defined and

licensed in accordance with sections 43-10-21 and 43-10-22.5. "Person" means any natural person, firm, association, corporation, limited liability

company, or agents or employees thereof.6. "Pre-need funeral service contract" means any contract, other than an insurance

contract, under which for a specified consideration paid in advance in a lump sum or by installments, a person promises, upon the death of a beneficiary named or implied in the contract, to furnish professional service or personal property to be used in funeral services, or to furnish cemetery merchandise.

7. "Professional service or personal property to be used in funeral services" means all personal property, services, supplies, and equipment normally performed or furnished by a licensed embalmer, a licensed funeral establishment, or a cemetery association including any inside interment receptacles or containers into which a dead human remains may be directly placed, caskets, crypt beds, catafalques, and all other articles of merchandise incident to a funeral service, but excluding any outside interment receptacles into which any inside receptacle or container will be placed, grave lots, grave spaces, grave markers, monuments, tombstones, crypts, niches, and mausoleums unless these items are sold by a companion agreement or in contemplation of a trade or barter which includes the sale or rental of any inside interment receptacles or containers into which a dead human remains may be directly placed, caskets, crypt beds, catafalques, or other articles of merchandise incident to a funeral service.

43-10.1-02. Pre-need funeral service contracts.A person may not engage in the sale or execution of a pre-need funeral service contract

unless that person is the operator, agent, employee, or manager of a licensed funeral establishment or cemetery association. As part of the sale of a pre-need funeral service contract, the seller shall inform the purchaser of the extent to which the person with the duty of burial under section 23-06-03 might be bound by any pre-need funeral arrangements.

43-10.1-03. Annual report filed with commissioner.On or before January thirty-first of each year, the owner or manager of each cemetery

association or licensed funeral establishment that has entered into any pre-need funeral service contracts during the preceding calendar year shall file a report covering the period of the preceding calendar year with the commissioner, which report must include:

1. The name and address of the licensed funeral establishment or cemetery association and the name and address of the manager or operator thereof.

2. The name of the purchaser and beneficiary of each pre-need funeral service contract entered into on behalf of the licensed funeral establishment or cemetery association during the preceding calendar year and the date each contract was made.

3. The lump sum consideration paid upon such pre-need funeral service contract required to be reported under subsection 2 or the total amount in dollars of any

Page No. 1

installments paid upon each pre-need funeral service contract required to be reported under subsection 2.

4. The name and address of the bank, credit union, savings and loan association, or trust company in which such consideration was deposited in accordance with section 43-10.1-03.1.

5. The total in dollars of all sums received as consideration upon pre-need funeral service contracts executed by the licensed funeral establishment or cemetery association or in its behalf during all periods after July 1, 1973, which are undrawn or unexpended and on deposit in a bank, credit union, savings and loan association, or trust company or in the hands of the licensed funeral establishment or cemetery association.

6. Such other information as may reasonably be required by the commissioner for the purpose of the proper administration of this chapter.

Such report must be accompanied by a filing fee of fifteen dollars and is a public record.

43-10.1-03.1. Payments on pre-need funeral contracts to be deposited - Depository shall keep record of deposit - Personal property storage.

Whenever payments are made to a person upon pre-need funeral service contracts, one hundred percent of the funds collected under the contracts for the sale of professional service or personal property to be used in funeral services and fifty percent of the funds collected under the contracts for the sale of cemetery merchandise must be deposited in or transferred to a trust company in this state or to a federally insured bank, credit union, or savings and loan association in this state, within ten days. The deposit must be placed in a federal deposit insurance corporation or national credit union administration insured certificate of deposit or negotiable debt obligation of the United States government. Payments received from the sale of professional service or personal property to be used in funeral services or cemetery merchandise which cannot or would not be serviced by a licensed funeral establishment or cemetery association in the area where the service or property was sold are specifically included, whether or not the sales might otherwise be considered pre-need funeral service contracts, within the payments to be deposited under this section. The funds may be released or transferred by the bank, credit union, savings and loan association, or trust company to the depositor upon the death of the person for whose benefit the funds were paid. A certified copy of the certificate of death must be furnished to the bank, credit union, savings and loan association, or trust company as prima facie evidence of death. The funds may be released or transferred by the bank, credit union, savings and loan association, or trust company to the person making the payment, before the death of the person for whose benefit the funds are paid, upon a five-day written notice by registered or certified mail made by the bank, credit union, savings and loan association, or trust company to the depositor or transferor at the request of the person making the payment. Upon written request, however, a purchaser of a pre-need funeral service contract may make a certain amount of the pre-need funds irrevocable. The irrevocable amount may not exceed the amount of the allowable asset exclusion used for determining eligibility for medical assistance under section 50-24.1-02.3 at the time the contract is entered. A purchaser of a pre-need funeral service contract has forty-five days from entering the contract to cancel the irrevocable part of the contract by giving notice to the cemetery association or licensed funeral establishment with whom the contract was entered. Any pre-need funeral service contract held by a cemetery association or a licensed funeral establishment must be fully transferable to another cemetery association or funeral establishment licensed under chapter 43-10 or a substantially similar law of another jurisdiction which agrees to accept the obligations.

A bank, credit union, savings and loan association, or trust company receiving such a deposit or transfer shall keep a complete record of the deposit or transfer, showing the name of the depositor or transferor, name of the person making payment, name of the person for whose benefit payment is made, and any other pertinent information.

Any personal property to be used in funeral services or cemetery merchandise which is sold to a purchaser on the basis that it will be identified and marked as belonging to such purchaser,

Page No. 2

and stored or warehoused for the purchaser, must be stored or warehoused at some location within this state.

43-10.1-04. Bond.Each owner or operator of a licensed funeral establishment or cemetery association, who

files an annual report, must file with the commissioner a corporate surety bond approved by the commissioner in an amount deemed adequate by the commissioner running to the state of North Dakota. The bond must be in such form and style as the commissioner may require for the use and benefit of the purchasers or persons making payments upon pre-need funeral service contracts or their estates, or the beneficiary of the pre-need funeral service contract or the beneficiary's estate for damages suffered by them because of the failure to comply with all provisions of the pre-need funeral service contract or the provisions of this chapter.

43-10.1-05. Verification by commissioner.Within ninety days after the filing of a report as required by section 43-10.1-03, the

commissioner shall verify the report by mailing to the banks, credit unions, savings and loan associations, or trust companies where the report indicates the consideration has been deposited, a questionnaire which the bank, credit union, savings and loan association, or trust company is requested to complete and return, verifying the facts stated in the report in regard to the contract or the deposit of funds. The commissioner shall verify the facts on additional contracts reported if the commissioner has reason to believe additional verification to be necessary.

43-10.1-06. Special audits - Violations of law.Repealed by S.L. 1979, ch. 463, § 7.

43-10.1-06.1. Fraudulent practices.It is a fraudulent practice and it is unlawful:1. For any person knowingly to subscribe to, or make or cause to be made, any material

false statement or representation in any report or other document or statement required to be filed under any provision of this chapter, or to omit to state any material statement or fact in any such document or statement which is necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.

2. For any person, in connection with the sale of any pre-need funeral service or personal property, directly or indirectly, to employ any device, scheme, or artifice to defraud.

3. For any person, in connection with the sale of any pre-need funeral service or personal property, directly or indirectly, to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.

4. No action may be brought under this section by the commissioner after six years from the date of the violation.

43-10.1-06.2. Orders and injunctions.Whenever it appears to the commissioner either upon complaint or otherwise, that any

person has engaged in, is engaging in, or is about to engage in any act or practice or transaction which is prohibited by this chapter or by any order of the commissioner issued pursuant to any section of this chapter or which is declared to be illegal in this chapter, the commissioner may:

1. Issue any order, including cease and desist, stop, and suspension orders, which the commissioner deems necessary or appropriate in the public interest or for the protection of purchasers. In addition to any other remedy authorized by this chapter, the commissioner may impose by order and collect a civil penalty in an amount not to exceed ten thousand dollars for each violation against any person found in an administrative action to have violated this chapter. The commissioner may bring an

Page No. 3

action in district court to recover penalties under this section. Any person aggrieved by an order issued under this subsection may request a hearing before the commissioner if the request is made, in writing, within ten days after receipt of the order. The hearing and any appeal therefrom must be held in accordance with chapter 28-32.

2. Apply to the district court of any county in this state for an injunction restraining such person and the person's agents, employees, partners, officers, and directors from continuing such act, practice, or transaction of engaging therein or doing any acts in furtherance thereof, and for such other and further relief as the facts may warrant. In any proceeding for an injunction, the commissioner may apply for and on due showing be entitled to have issued the court's subpoena requiring the appearance forthwith of any defendant and the defendant's agents, employees, partners, officers, or directors, and the production of such documents, books, and records as may appear necessary for the hearing upon the petition for an injunction. Upon proof of any of the offenses described in this section, the court may grant such injunction as the facts may warrant. The court may not require the commissioner to post a bond.

43-10.1-06.3. Investigations and subpoenas.1. The commissioner in the commissioner's discretion:

a. May make such public or private investigation within or outside this state as the commissioner deems necessary to determine whether any person has violated or is about to violate any provision of this chapter or any rule or order hereunder, or to aid in the enforcement of this chapter or in the prescribing of rules and forms hereunder.

b. May require or permit any person to file a statement in writing, under oath or otherwise as the commissioner determines, as to all the facts and circumstances concerning the matter to be investigated.

c. May publish information concerning any violation of this chapter or any rule or order hereunder.

2. For the purpose of any investigation or proceeding under this chapter, the commissioner or any officer designated by the commissioner may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the commissioner deems relevant or material to the inquiry.

3. In case of contumacy by, or refusal to obey a subpoena issued to, any person, the district court, upon application by the commissioner, may issue to the person an order requiring that person to appear before the commissioner, or the officer designated by the commissioner, there to produce documentary evidence if so ordered or to give evidence touching the matter under investigation or in question. Failure to obey the order of the court may be punished by the court as a contempt of court.

4. No person is excused from attending and testifying or from producing any document or record before the commissioner, or in obedience to the subpoena of the commissioner or any officer designated by the commissioner, or in any proceeding instituted by the commissioner, on the ground that the testimony or evidence, documentary or otherwise, required of the person may tend to incriminate that person or subject that person to a penalty or forfeiture; but no individual may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which the individual is compelled, after claiming the privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that the individual testifying is not exempt from prosecution and punishment for perjury or contempt committed in testifying.

43-10.1-07. Prosecution for violations of law.The commissioner may refer any evidence available concerning a violation of this chapter

or of any rule or order issued under this chapter to the appropriate criminal prosecutor who, with or without the reference, may institute criminal proceedings under this chapter. The criminal

Page No. 4

prosecutor may apply for and on due showing be issued the court's subpoena requiring the appearance forthwith of any defendant and the defendant's agents, employees, partners, officers, and directors, and the production of any documents, books, and records necessary for the prosecution of the criminal proceedings.

43-10.1-07.1. Administration.The commissioner has the power to promulgate rules and regulations having the force and

effect of law, reasonably necessary to carry out the provisions of this chapter, in accordance with chapter 28-32. Any hearing held and any orders issued pursuant to this chapter must be in accordance with chapter 28-32. In addition to those powers set forth in chapter 28-32, the commissioner has additional powers as set forth in this chapter.

43-10.1-07.2. Statute of limitations.No action may be brought under this chapter by the commissioner after five years from the

date that the commissioner knew or reasonably should have known about the facts that are the basis for the alleged violation. This section does not apply to section 43-10.1-06.1.

43-10.1-08. Penalties.1. Any person who willfully violates any provision of this chapter or any rule or order of

the commissioner under this chapter is guilty of a class B felony.2. An information must be filed or an indictment must be found under this chapter within

five years after the commissioner or criminal prosecutor knew or reasonably should have known about the facts that are the basis for the prosecution.

3. "Willfully" means the person was aware of the consequences of the person's actions, and proof of evil motive or intent to violate the law or knowledge that the law was being violated is not required. Each act or omission is a separate offense, and a prosecution or conviction for an offense does not bar a prosecution or conviction for any other offense.

Page No. 5

ARTICLE 25-02

PRACTICE OF FUNERAL SERVICE AND LICENSURE OF FUNERALPRACTITIONERS

Chapter25-02-01 Practice of Funeral Service25-02-02 Licensure of Funeral Practitioners25-02-03 Continuing Education [Voided]

CHAPTER 25-02-01PRACTICE OF FUNERAL SERVICE

Section25-02-01-01 Denitions25-02-01-02 Waste Disposal25-02-01-03 Preparation Room Equipment25-02-01-04 Instruments and Appliances25-02-01-05 Funeral Establishments25-02-01-06 Attire While Embalming25-02-01-07 Serving of Food and Alcoholic Beverages25-02-01-08 Privacy25-02-01-09 Shipment of Bodies25-02-01-10 Refusal to Provide Service

25-02-01-01. Denitions. The terms in this title have the same meaningas in North Dakota Century Code section 43-10-01 unless the context or subjectmatter otherwise requires, except:

1. "Assistant" means a nonprofessional providing assistance to a funeralpractitioner under the direct and immediate supervision of the funeraldirector. Assistance provided by an assistant may not require theexercise of professional judgment or training.

2. "Branch facility" means a facility which is afliated with a funeral serviceestablishment and is equipped for the preparation and embalming ofdead human bodies.

3. "Funeral chapel" means a facility that is afliated with a funeral serviceestablishment and used for mourning or funeral ceremony purposes butnot preparation of a dead human body for nal disposition.

History: Amended effective April 1, 1979; May 1, 1993; May 1, 1998.General Authority: NDCC 43-10-05Law Implemented: NDCC 43-10-05

25-02-01-02. Waste disposal. All funeral directors shall contact eitherprime health care facilities in their area or waste disposition companies establishedto handle wastes to arrange suitable disposition. Every preparation room shall be

1

provided with proper and convenient receptacles for refuse. Waste material shallbe packaged in a plastic or nonporous bag and sealed at the conclusion of eachcase and the public health thereby maintained.

History: Amended effective July 1, 1983; May 1, 1993; May 1, 1998.General Authority: NDCC 43-10-05, 43-10-06Law Implemented: NDCC 43-10-05, 43-10-06

25-02-01-03. Preparation room equipment. Every preparation room shallbe equipped with a sanitary embalming table, and such table shall be provided withrunning water. Every plumbing xture, receptacle, and water supply tank shall beprovided with a proper air gap or other acceptable device to prevent backow intothe water supply. All plumbing shall comply with North Dakota Administrative Codearticle 62-03, the State Plumbing Code. Every embalming room must be equippedwith an exhaust fan below tabletop height and an eyewash station with the potentialfor running cold water only, continuously for fteen minutes, in an unobstructedarea.

Every funeral establishment must:

1. Maintain a formaldehyde monitor report;

2. Post hazardous signs in compliance with applicable federal regulations;

3. Label storage area for chemicals or hazardous chemicals;

4. Keep a cover on any embalming machine;

5. Store and utilize a safety shield or mask, protective clothing, and rubbergloves;

6. Maintain a splash tube on a functioning hydroaspirator; and

7. Maintain material safety data sheets, training records, and Sharp’scontainer.

History: Amended effective March 1, 1985; May 1, 1993; May 1, 1998.General Authority: NDCC 43-10-05, 43-10-06Law Implemented: NDCC 43-10-05, 43-10-06

25-02-01-04. Instruments and appliances. All instruments and appliancesused in the embalming of a dead human body must be thoroughly cleansed andsterilized by a federally approved germicidal solution immediately at the conclusionof each individual case or autoclave, or both.

History: Amended effective May 1, 1993; May 1, 1998.General Authority: NDCC 43-10-05, 43-10-06Law Implemented: NDCC 43-10-05, 43-10-06

2

25-02-01-05. Funeral establishments. All funeral establishments shallbe kept and maintained in a clean and sanitary condition and all embalmingtables, hoppers, sinks, receptacles, instruments, and other appliances used in theembalming of dead human bodies shall be thoroughly cleansed and disinfectedimmediately at the conclusion of each individual case.


25-02-01-06. Attire while embalming. Every person, while engaged inactual embalming, shall be attired in a clean and disposable sanitary smock orgown and shall, while so engaged, wear rubber impervious gloves, disposablefacial mask or safety shield, and disposable shoe covers.


25-02-01-07. Serving of food and alcoholic beverages. The serving offood or alcoholic beverages to the public in connection with or in conjunction withany part of the funeral service operation shall comply with all state and local lawsand regulations.

History: Amended effective April 1, 2005.General Authority: NDCC 43-10-05, 43-10-06Law Implemented: NDCC 43-10-05, 43-10-06

25-02-01-08. Privacy. The care and preparation of all bodies of personsdead from any cause shall be entirely private and no one shall be allowed in theembalming room except funeral practitioners, intern embalmers, and assistantsuntil the body is fully prepared and dressed, except by permission of the immediatefamily.

History: Amended effective May 1, 1998.General Authority: NDCC 43-10-05, 43-10-06Law Implemented: NDCC 43-10-05, 43-10-06

25-02-01-09. Shipment of bodies. Shipment of bodies shall be done incompliance with shipping regulations of the state department of health and anyother applicable state or federal laws or regulations.

History: Amended effective July 1, 1983; May 1, 1993; May 1, 1998.General Authority: NDCC 43-10-05, 43-10-06Law Implemented: NDCC 43-10-05, 43-10-06

25-02-01-10. Refusal to provide service. A licensed practitioner may notrefuse service to anyone because of a signicant contagious or infectious disease.

3

Refusal of any licensed practitioner to provide service to anyone because of asignicant contagious or infectious disease may result in disciplinary action.

History: Effective May 1, 1993; amended effective May 1, 1998.General Authority: NDCC 43-10-05, 43-10-06, 43-10-16Law Implemented: NDCC 43-10-05, 43-10-06, 43-10-16

4

STATE BOARD OF FUNERAL SERVICES (EMBALMERS, STATE BOARD OF) [Authorized: NDCC Section 43-10-02]

Created in 1905 the state board of embalmers consisted of five members including the president of the state board of health, secretary of the state board of health, and three registered embalmers appointed by the governor. The secretary of state administered an oath of office to all civil officers including the embalmers. The board was responsible for conducting examinations and administering licenses (S. L. 1905, Ch. 111). Early embalmers were questioned only on care, deposition, preservation and sanitation, and the licensee had to be of good moral character. A license fee was required. In 1931 (S. L. 1931, Ch. 41) the applicant was tested by the state department of health on the rules and regulations and on several academic subjects. In 1963 the law required that an applicant show that the funeral establishment complied with all the rules adopted by the board in regard to safety and sanitation, and that the business be supervised by someone licensed in funeral service. The establishment needed to be open for inspection by the state health department (S. L. 1963, Ch. 305).

In 1989 the state board of embalmers was renamed the state board of funeral services (S. L. 1989, Ch. 513), and the board changed slightly when the state health officer replaced both the president and secretary of the state board of health. Qualifications for the three appointed members remained the same. Also in 1989 the appointed board members were required to have practiced in North Dakota for a minimum of three years, and the appointed members served four year staggered terms. Vacancies on the board were filled by the governor. The board elected a president, secretary, and treasurer and adopted regulations for the transaction of funeral services. The board administered and carried out the rules and regulations as adopted in the session laws including preventing the spread of contagious disease and adopting rules of professional conduct and high ethics for funeral directors, embalmers, intern embalmers, and all funeral services personal. The board developed other regulations as necessary for the management of its affairs. The board is responsible for the licensing and renewals of license for funeral service practitioners and funeral establishments, including crematoriums, and intern embalmers. The board hears complaints against a practitioner or an establishment and takes appropriate action. It is required to meet at least once a year, but may hold special meetings as frequently as necessary. The governor may remove a board member at any time if there is a good cause for removal (S. L.1997, Ch. 367).

Legislation in 1973 and 1975 adopted laws to govern pre-need services and the reporting of financial arrangement of services to the commissioner of securities (S. L. 1973, Ch. 348)(S. L. 1975, Ch. 401). The legislature empowered the board to require funeral homes to disclose all funeral costs and expenses to customers (S. L. 1975, Ch. 400). The laws enacted required disclosure in writing of the retail price of merchandise and services selected, including the total retail cost of each supplemental item requested and terms of payment.

To qualify for an embalmer’s license an applicant must furnish proof of being of good moral character and complete the required preparation and coursework, including a twelve month internship. An intern must have a certificate of registration from the board before serving the internship. The certificate of registration is good for one year and may be renewed three times. The intern must be at least eighteen years of age, of good moral character, and have completed a four year high school course of study and two years of accredited postsecondary studies, or be a graduate of an accredited college of mortuary science. If the requirements are met the applicant is allowed to take the exam (S. L.1997, Ch.367). Continuing education classes are required for license renewal. These classes may be conducted by the board (S. L.1993, Ch. 420).

Business services of the licensee of a funeral establishment or crematorium must be conducted at the specific street address or location stated on the license, and branch establishments must have their own license. There are provisions in the law that allow for licensing by reciprocity.

Licenses in all categories are not transferable, and are renewable each year. A license must be displayed where it can be seen by the public.

CHRONOLOGY

1905 State Board of Embalmers created with three members appointed by the governor plus president and secretary of the state board of health ( S. L. 1905, Ch. 111).

1909 Anyone applying to become an embalmer had to appear before the board to answer questions about sanitation (S. L. 1909, Ch.108).

1931 Embalmers must pass written exam that includes academic questions and rules and regulations of the state board of health (S. L. 1931, Ch. 141).

1963 Funeral establishments are required to be licensed (S. L. 1963, Ch. 305).

1973 A complete report must be submitted to the secretary of state on the pre-need services sold to clients by funeral establishments and cemetery associations (S. L. 1973, Ch. 348).

1975 Commissioner of securities to receive annual reports on pre-need services (S. L.1975, Ch. 401).

1975 Total cost of merchandise and services to be disclosed at time of selection (S. L. 1975, Ch. 400).

1979 Four new chapters added to North Dakota Century Code relating to pre-need services (S. L. 1979, Ch. 463).

1979 Fees for licenses increased (S. L. 1979, Ch. 462).

1983 Licensing expanded to include cremation (S. L. 1983, Ch. 477).

1989 Board of embalmers renamed board of funeral services. Membership changed to include the state health officer and remove officers of the health department. Licensing for crematoriums required (S. L. 1989, Ch. 513).

1993 New section of North Dakota Century Code requiring embalmers to have continuing education credits for license renewal (S. L. 1993, Ch. 420).

1997 Eleven new sections added to North Dakota Century Code relating to funeral practice exemptions, limitation on licenses, registration of intern embalmers, and licenses to operate a crematorium (S. L. 1997, Ch.367).

2009 New laws relating to the powers of the state board of funeral services, licensing changes, and inspection of funeral establishments (S. L. 2009, Ch. 360).

2009 Clarifies the law forbidding operating and managing a funeral services without a license (S. L. 2009, Ch.359).

SERIES

31043 Minutes 31044 Correspondence 31045 Ledger 32139 Register of North Dakota Licensed Embalmers and Interns 32140 Closed Bank Ledger

SOURCES

Gray, David P. Guide to the North Dakota State Archives, 1985. North Dakota Century Code. North Dakota Secretary of State Blue Book. North Dakota State Legislature Session Laws. North Dakota State Board of Funeral Service Website.

FTC FUNERAL RULE Each year, Americans arrange more than 2 million funerals for family and friends. Initially consumers may not be concerned about funeral expenses. Yet, at a potential cost of more than $5,000, consumers may want to be aware of regulations that help protect them. In 1984, the Federal Trade Commission (FTC) developed a trade regulation rule concerning funeral industry practices called the Funeral Rule. Its purpose is to enable consumers to obtain information about funeral arrangements. The Funeral Rule makes it easier for you to select only those goods and services you want or need and to pay for only those you select. The rule allows consumers to find out the cost of individual funeral items over the telephone. Getting price information over the telephone makes it easier for you to compare prices and select the funeral home and arrangements you want. If you inquire in person about funeral arrangements, the funeral provider must give you a general price list. This list, which you can keep, contains the cost of each item and service offered. As with telephone inquiries, you can use this information to help select the funeral provider and funeral items you want, need, and are able to afford. The price list must also disclose important legal rights and requirements regarding funeral arrangements. It must include information about embalming, cash advance items such as newspaper notices or flowers, caskets for cremation, and required purchases. The Funeral Rule requires funeral providers to give consumers information about embalming that may help you decide whether to purchase the service. Under the rule, a funeral provider: • may not falsely state that embalming is required by law. • must disclose in writing that, except in certain special cases, embalming is not required by law. • may not charge a fee for unauthorized embalming unless it is required by state law. • will disclose in writing that you usually have the right to choose a disposition such as direct cremation or immediate burial if you do not want embalming. In North Dakota, with specific exceptions, embalming is not required if the body is buried, cremated, or is given final disposition within 48 hours after death.

• will disclose to you in writing that certain funeral arrangements, such as a viewing, may make embalming a practical necessity and a required purchase. The Funeral Rule requires funeral providers to disclose to you in writing if they charge a fee for buying cash advance items. Cash advance items are goods or services that are paid for by the funeral provider on your behalf. Some examples of cash advance items are flowers, obituary notices, pallbearers, and clergy honoraria. Some funeral providers charge only their cost for these items. Others add a service fee to their cost. The Funeral Rule requires the funeral provider to inform you ahead of time when a service fee is to be added to the price of cash advance items or if the provider gets a refund, discount, or rebate from the supplier of any cash advance item. If you choose a direct cremation, the funeral provider will offer you either an inexpensive alternative container or an unfinished wood box. An alternative container is a non-metal enclosure used to hold the deceased’s remains. Such containers may be made of pressboard, cardboard, or canvas. A wood box or alternative container may lower your funeral cost because it would be less expensive than a traditional burial casket. Under the Funeral Rule, funeral directors who offer direct cremations: • may not tell you that state or local law requires a casket for direct cremations. • must disclose in writing your right to buy an unfinished wood box or alternative container for direct cremation. • must make an unfinished wood box or alternative container available for direct cremation. You do not have to purchase unwanted goods or services as a condition of obtaining those you do want unless you are required to do so by state law. Under the Funeral Rule: • you have the right to choose only the funeral goods and services you want, with some disclosed exceptions. • the funeral provider must disclose this right in writing on the general price list. • the funeral provider must disclose on your itemized statement of goods and services selected the specific state law that requires you to purchase a ny particular item. The funeral provider must give you an itemized statement of the total cost of the funeral goods and services you select. This statement will also disclose any legal, cemetery, or crematory requirements that compel you to purchase any specific funeral goods or services. The funeral provider must give you this statement after you select the funeral goods and services that you would like. The statement combines in one place the prices of the individual items you are considering for purchase, as well as the total price. This helps you decide whether to add or subtract items to get what you want. If the cost of cash advance items is not known at the time, the funeral provider must write down a “good faith estimate” of their cost. The rule does not require any specific form for this information. Therefore, funeral providers may include this information in any document they give you at the end of your discussion about funeral arrangements. You may want to consult with someone else, such as your cleric or an experienced friend, if you don’t think your emotional state will let you objectively evaluate a funeral provider’s products and services. If you have a problem concerning funeral matters, first attempt to resolve it with your funeral director. If you are dissatisfied, you may contact the Attorney General’s Consumer Protection Division or the State Board of Funeral Service by writing to Dr.

Terry Dwelle, State Health Officer, Department of Health, 600 East Boulevard Avenue, Bismarck, North Dakota 58505-0200.

CHAPTER 23-06CARE AND CUSTODY OF DEAD

23-06-01. Right to dispose of one's own body.Repealed by S.L. 1969, ch. 255, § 12.

23-06-01.1. Immunity from liability.Repealed by S.L. 1989, ch. 303, § 5.

23-06-01.2. Application of other laws.Sections 23-06-03, 23-06-04, 23-06-05, 23-06-06, 23-06-07, 23-06-08, 23-06-09, 23-06-10,

23-06-11, 23-06-12, 23-06-16, 23-06-17, and 23-06-19 do not apply to any body or parts thereof disposed of after death pursuant to the authorization for disposal of a body or parts thereof provided in and for the purposes of chapter 23-06.6.

23-06-02. Custody of body.The person charged with the duty of burying the body of a deceased person is entitled to

the custody of such body for the purpose of burying it. When the coroner is required to hold an inquest, however, the coroner is entitled to the custody of the body until such inquest has been completed.

23-06-03. Duty of burial.1. The duty of burying the body of a deceased individual devolves upon the surviving

husband or wife if the deceased was married or, if the deceased was not married but left kindred, upon one or more individuals in the same degree, of adult age, nearest of kin to the deceased and possessed of sufficient means to defray the necessary expenses.

2. If the individual who has the duty of burial does not bury the body within the time required by this chapter, the individual next specified shall bury the body.

3. If the deceased is not survived by an individual described by subsection 1 and did not leave sufficient means to defray funeral expenses, including the cost of a casket, the county social service board of the county in which the deceased had residence for county general assistance purposes or, if residence cannot be established, the county social service board of the county in which the death occurs shall employ some person to arrange for and supervise the burial or cremation. If the deceased was a resident or inmate of a public institution, the county in which the deceased was a resident for county general assistance purposes immediately before entering the institution shall employ a person to arrange for and supervise the burial or cremation. Each board of county commissioners may negotiate with the interested funeral directors or funeral homes regarding cremation expenses and burial expenses but the total charges for burial services, including transportation of the deceased to the place of burial, the grave box or vault, grave space, and grave opening and closing expenses, may not be less than one thousand five hundred dollars. The county social service board shall pay the charge for funeral expenses as negotiated by the board of county commissioners, less any amount left by the deceased to defray the expenses.

4. If the person with the duty of burial under this section, or the personal representative of the decedent's estate, if any, is aware of the decedent's instructions regarding the disposition of the remains, that person shall honor those instructions, to the extent reasonable and possible, to the extent the instructions do not impose an economic or emotional hardship. A decedent's instructions may be reflected in a variety of methods, including pre-need funeral arrangements a deceased articulated and funded in a pre-need funeral service contract, a health care directive, a durable power of attorney for health care, a power of attorney, a will, a document created under section 23-06-31, or a document of gift for an anatomical gift.

Page No. 1

5. If the decedent died while serving in any branch of the United States armed forces, the United States reserve forces, or the national guard, as provided by 10 U.S.C. 1481 section (a)(1) through (8) as effective through December 2001, and completed a United States department of defense record of emergency data, DD form 93, or its successor form or its equivalent branch's form, the duty to bury the decedent or to provide other funeral and disposition arrangements for the decedent devolves on the person authorized by the decedent pursuant to that form.

23-06-03.1. Payments on pre-need funeral contracts to be deposited - Depository shall keep record of deposit - Personal property storage - Penalty.

Repealed by S.L. 2001, ch. 368, § 7.

23-06-04. Time within which burial or cremation must be made - Exceptions.The dead body of a human being must be buried or cremated by the person charged with

that duty within eight days after the death of such person except when any of the following occur:

1. The right to dissect the body is expressly conferred by law.2. The body is being carried through this state.3. The body is being removed from this state for the purpose of burial or cremation in

some other state.4. A permit is obtained from the local health officer or the state department of health

allowing a longer time during which the body need not be buried or cremated. The permit shall state the additional length of time during which the body need not be buried or cremated.

5. The body is being stored for an extended period of time in a vault determined suitable by the state department of health.

The date of burial or cremation must be the date of the committal service or date of placement in a storage vault.

23-06-05. Failure to bury within required time - Penalty.Any person who fails to comply with or who violates any of the provisions of section

23-06-04, or who refuses or neglects promptly to obey any order or instruction of the local board of health, is guilty of a class B misdemeanor.

23-06-06. Neglect of burial - Penalty.Every person upon whom the duty of making burial of the remains of a deceased person is

imposed by law who omits to perform that duty as required in this chapter is guilty of a class B misdemeanor.

23-06-07. Regulation of burial - Issuance of burial-transit permit regulated.The body of any person whose death occurs in this state may not be interred, deposited in a

vault or tomb, cremated, or otherwise disposed of, until a burial-transit permit has been properly issued by a subregistrar. A burial-transit permit may not be issued by any subregistrar until a complete and satisfactory certificate and return of the death has been filed with the state registrar. If the certificate is incorrect or incomplete, the subregistrar may not issue the permit until it is corrected or completed. In the case of any death outside of this state, a burial-transit permit issued in accordance with the law and the health regulations in force in the state where the death occurred, when accompanying a body shipped through or into this state, may be accepted with the same effect as a permit from a subregistrar. If the death occurred from some disease that is held to be communicable by the state department of health, the subregistrar shall refuse to issue a permit for the removal or other disposition of the body except under the conditions prescribed by the state department of health and the local board of health.

Page No. 2

23-06-08. Burial-transit permit - Contents.The burial-transit permit must be on the form prescribed by the state registrar of vital

statistics, must be signed by the subregistrar issuing it, and may be limited to a statement by the subregistrar showing:

1. That a satisfactory death record has been filed with the state registrar as required by law.

2. That permission is granted to inter, remove, or otherwise dispose of the body of the deceased.

3. The name, age, sex, and the cause of death of the deceased and any other necessary details.

23-06-09. Disposition of burial-transit permit.The undertaker, or person acting as undertaker, shall secure the burial-transit permit from

the subregistrar. The undertaker, or person acting as undertaker, shall deliver such permit to the sexton or person in charge of the place of burial before interring the body or shall attach it to the box containing the corpse when the same is shipped by any transportation company. Such permit must be accepted by the sexton as authority for the interment of the body. A body may not be accepted for carriage by a common carrier unless the permit is attached as required in this section.

23-06-10. Sextons to endorse and return burial-transit permit - Record of burials.Each sexton or person in charge of the burial ground shall endorse the date of interment

upon the burial-transit permit over the person's signature, and return the burial-transit permit to the subregistrar. The subregistrar shall file all completed permits, so endorsed, with the county recorder within ten days after the date of interment or within the time prescribed by the local board of health.

The sexton shall keep a record of all interments made in the premises under the sexton's charge, stating the name of the deceased person, the place of death, the date of burial, and the name and address of the undertaker or funeral director. Such record at all times must be open to public inspection.

In the absence of a sexton, the funeral director making the burial shall endorse and return the burial-transit permit to the subregistrar.

23-06-11. Burial without burial-transit permit - Penalty.It is unlawful for a person, acting as an undertaker, to inter, remove, or otherwise dispose of

the body of any deceased person without having received a burial-transit permit.

23-06-12. Transporting body without burial-transit permit.It is unlawful for a transportation company or common carrier to transport, or accept for

transportation, the body of any deceased person unless that body is accompanied by a burial-transit permit issued in accordance with the provisions of this chapter.

23-06-13. Dissection - When allowed.The dead body of a human being may be dissected:1. When the death occurs under circumstances in which a coroner is authorized by law to

hold an inquest upon the body, and a coroner authorizes such dissection for the purposes of the inquest;

2. When the husband, wife, or one of the next of kin of a deceased person, charged by law with the duty of burial, authorizes such dissection for the purposes of ascertaining the cause of death; or

3. When permission has been given therefor by deceased.

23-06-14. What bodies may be used for dissection.Any medical association, licensed physician and surgeon, or medical school, upon request,

may receive and remove free of charge the bodies of the following deceased persons, if such

Page No. 3

bodies are to be used within the state for the advancement of anatomical knowledge and medical science and if proper notice is given to the relatives or guardian of the deceased:

1. A person executed pursuant to sentence of law.2. A person dying in the penitentiary or county jail while under sentence for a crime.3. A person required to be buried at public expense.

Preference must be given to medical schools, and such schools shall furnish the bodies to the students of medicine and surgery.

23-06-15. When body not to be used for dissection.If a person mentioned in section 23-06-14 has requested, during that person's last illness,

that that person be buried, that person's body may not be surrendered for dissection but must be buried. If any friend, relative, or guardian of any such person requests, within thirty-six hours after that person's death, that the body be turned over to such friend, relative, or guardian for interment, such request must be complied with.

23-06-16. Bond given by person receiving body.Every physician or surgeon and every medical school, before receiving any dead body, shall

give to the officer surrendering the same a sufficient bond conditioned that the body shall be used only for the promotion of anatomical science and medical knowledge within this state and so as not to outrage public feeling, and that after having been so used, the remains thereof shall be disposed of in accordance with the provisions of section 23-06-17.

23-06-17. Bodies required to be buried or cremated after being dissected.Any person who receives for dissection any dead body, in pursuance of the provisions of

this chapter, shall decently bury the body in some public cemetery or shall cremate the same in a furnace properly constructed for that purpose after the dissection has been made.

23-06-18. Dissection - Removal of body - Sale - Penalty.Any person who receives a body for use under the provisions of section 23-06-14 and uses

the same for any other purpose, or who removes the same beyond the limits of this state, or who buys or sells any such body, or traffics in the same, is guilty of a class B misdemeanor. It is unlawful for an officer to refuse to deliver the remains or body of any deceased person, when demanded under the provisions of section 23-06-14.

23-06-19. Interference with burial of dead limb or member of body - Penalty.All provisions of this chapter requiring the burial of a dead body or punishing interference

with or injuries to a dead body apply equally to any dead limb or member of a human body, separated therefrom during lifetime.

23-06-20. Where body may be buried.No dead human body may be buried in this state except in a properly registered cemetery

or in some other place requested by the relatives and friends of the deceased if the same is authorized by the state department of health and all rules and regulations promulgated by the department in that connection have been complied with.

23-06-21. Regulation of cemeteries.All persons, corporations, municipalities, associations, and organizations owning,

conducting, or maintaining a cemetery or plot for the burial of dead human bodies shall:1. Provide for a sexton or secretary.2. Cause the lot or parcel of ground used and designated as a cemetery to be platted into

orderly blocks and lots, alleys and streets or driveways, giving to each a distinctive name or number that must be a permanent designation of its location.

3. File the original plat with the recorder of the county in which the cemetery or place of burial is located and the copy or blueprint thereof with the sexton or secretary.

Page No. 4

4. Register with the state department of health the name and location of the cemetery or place of burial, the name and address of the sexton, and the name and address of other officers of the cemetery association, corporation, or organization.

5. Furnish such information and reports as the state department of health may require including the submission of plans and specifications for review and approval before constructing, erecting, or placing on the burial site for the burial or disposition of any human remains any interment structure or device constructed or placed wholly or partially above the natural surface of the ground.

6. Keep a local register of all burials showing as to each burial the name of the deceased, the date and location of burial, the date of death, and the name and address of the undertaker.

23-06-21.1. Title to burial plots reverts after sixty years - Procedure - Abandonment.Any entity owning, conducting, or maintaining a cemetery or plot for the burial of dead

human bodies may use the procedures in this section to reinvest itself with the title to a portion of a cemetery which was conveyed by deed to a person but which has not been used for purposes of burial for more than sixty years.

1. The entity owning, conducting, or maintaining a cemetery may pass a resolution demanding that the owner of a portion of a cemetery which has been unused for more than sixty years express an interest in the cemetery plot. The entity shall personally serve a copy of its resolution on the owner in the same manner as personal service of process in a civil action. The resolution must notify the owner that the owner must, within sixty days after service of the resolution on the owner, express an interest in retaining the unused cemetery plot.

2. If the owner of the unused plot cannot personally be served with a copy of the resolution of the entity because the owner cannot be found in this state or for any other valid reason, the entity shall publish its resolution for three consecutive weeks in the official newspaper of the county where the cemetery is located and shall mail a copy of the resolution within fourteen days after the third publication to the owner's last-known address.

3. If within sixty days after personal service or after publication of the board's resolution is completed, the owner or person with a legal interest in the cemetery plot fails to express an interest in retaining the unused cemetery plot, the owner's rights are terminated and title to that person's plot reverts to the entity owning, conducting, or maintaining the cemetery.

4. It is a conclusive presumption that an owner has abandoned a cemetery plot if for a period of more than sixty years the owner has not used any portion of the lot for purposes of burial and has not made provision for care of the lot beyond that provided uniformly to all lots within the cemetery and if the owner has failed to express an interest in retaining the cemetery plot after notice provided in this section.

23-06-22. Sexton - Term of office, records, duties.The sexton or secretary appointed by the person, corporation, municipality, association, or

organization conducting a cemetery for the burial of dead human bodies shall hold office until a successor is appointed and qualified. The sexton or secretary shall transfer all records to the successor. The sexton or secretary shall enforce the laws of the state and the rules and regulations of the state department of health with respect to the burial of dead human bodies within the cemetery under the sexton's or secretary's charge.

23-06-23. State department of health to enforce regulation of cemeteries - Injunction.The state department of health shall make and enforce such rules and regulations as are

necessary to carry out the laws relating to the regulation of cemeteries and may, through injunction or other legal process, enforce compliance.

Page No. 5

23-06-24. Unlawful removal of dead body - Penalty.Every person who removes any part of the dead body of a human being from any grave or

other place where the same has been buried, or from any place where the same is deposited while awaiting burial, except as provided by law, is guilty of a class C felony.

23-06-24.1. Endangered gravesites - County action authorized.Notwithstanding any other provisions of this chapter, the county commissioners of each

county may move graves or cremate the bodies in any graves which are located in the county and maintained by the county when the gravesites are in imminent danger of destruction by natural elements. The county commissioners shall, to the extent possible, give personal notice to a relative of a deceased person whose grave is to be moved or whose body is to be cremated if the identity of that person and the identity of the relative are known. The county commissioners shall provide at least thirty days' prior notice in a legal newspaper of the county of the commissioners' intended action to be taken pursuant to this section.

23-06-25. When body may be removed from cemetery - Penalty for failure to remove.Whenever a cemetery or other place of burial is lawfully authorized to be removed from one

place to another, the right and duty to disinter, remove, and rebury the remains of bodies there lying buried devolves upon the persons whose duty it is to bury the bodies, in the order in which they are named in section 23-06-03. If all such persons fail to act, the duty devolves upon the lawful custodians of the place of burial so removed. Every omission of such duty is punishable in the same manner as other omissions to perform the duty of making burial are punishable.

23-06-26. Purchasing body forbidden - Penalty.Every person who purchases or who receives, except for the purpose of burial, any dead

body of a human being, knowing that the same has been removed contrary to the provisions of this chapter, is guilty of a class C felony.

23-06-27. Protection of human burial sites, human remains, and burial goods - Unlawful acts - Penalties - Exceptions.

1. As used in this section:a. "Burial goods" means any objects or items interred with human remains at the

time of burial.b. "Disturb" means move, open, expose, dig up, disinter, excavate, remove, carry

away, damage, injure, deface, desecrate, loot, vandalize, mutilate, or destroy.c. "Human burial site" means any place of interment, by any means, of human

remains or burial goods, which is designated by a grave marker or other burial structure or which is not so designated, but is, in fact, discovered or believed to exist on the basis of archaeological or historical evidence.

d. "Human remains" means any part of the body of a deceased human being in any stage of decomposition.

e. "Land" means all lands, including submerged lands, located within the state of North Dakota which are owned by the state or its political subdivisions, agencies, or instrumentalities, or by any private person.

f. "Person" means a natural person, corporation, unincorporated association, partnership, proprietorship, or governmental entity.

2. A person is guilty of a class C felony who, without authority of law, breaks open any building wherein any body of a deceased human being is deposited while awaiting burial, with the intent of either removing such human body, or any part thereof, or stealing the coffin, or any part thereof, or anything attached thereto or connected therewith, or the vestments or other articles intended to be buried with the human body.

3. A person is guilty of a felony who, without authority of law, willfully, as defined in section 12.1-02-02, disturbs a human burial site, human remains, or burial goods

Page No. 6

found in or on any land, or attempts to do the same, or incites or procures the same to be done.a. A person is guilty of a class B felony if the offense in this subsection was

committed for monetary gain, whether or not such monetary gain was related to the use of the land in or on which the burial, remains, or goods were disturbed.

b. A person is guilty of a class C felony if the offense in this subsection was not committed for monetary gain.

4. Any person who knows or has reasonable grounds to believe that a human burial site, human remains, or burial goods, found in or on any land, are being disturbed or may be disturbed, by human activity without authority of law or by natural forces, shall immediately notify the local law enforcement agency with jurisdiction in the area in which the burial, remains, or goods are located. A person is guilty of a class B misdemeanor who is required to provide such notification and willfully, as defined in section 12.1-02-02, fails to provide the same.

5. Any person who knows or has reasonable grounds to believe that that person has encountered or discovered a human burial site, human remains, or burial goods associated with a human burial, in or on any land, shall refrain from any activity which might disturb or immediately cease any continued activity which might cause further disturbance of such burial, remains, or goods and shall, as soon as practicable, report the presence or discovery of the burial, remains, or goods to the local law enforcement agency with jurisdiction in the area in which the burial, remains, or goods are located. A person is guilty of a class B misdemeanor who is required to make such report and willfully, as defined in section 12.1-02-02, fails to make the same. The requirements imposed in this subsection do not apply to any person engaged in the salvaging excavation or other disinterment of a human burial under authority of law.

6. Any person having been found guilty or having pleaded guilty, as a result of having been charged with an offense under subsection 2 or 3, must be ordered to forfeit to the state any and all human remains and burial goods acquired in connection with the commission of the offense and may be ordered to forfeit to the state any and all equipment used in connection with the commission of the offense. In addition, any such person having been charged with an offense under subsection 3 must be ordered to pay all reasonable costs actually incurred in the reinterment of the human remains and burial goods so forfeited. In conjunction with the prosecution of any offense under this subsection, the remains in question in the prosecution may, as deemed necessary, be subjected to nonintrusive, nondestructive professional study for the exclusive purpose of determining whether the remains are human.

7. Subsection 3 does not apply to the inadvertent disturbance of a human burial site, human remains, or burial goods when the state department of health and the state historical society have been notified of the disturbance and the human remains and burial goods must be studied and reinterred pursuant to rules adopted by the state department of health and the state historical society. Subsection 3 also does not apply to situations in which the state department of health and the state historical society are notified of the need to disinter and move the contents of human burial sites that are recorded with the state historical society to prevent the destruction of the human burial sites by actions including the construction of highways, dams, reservoirs, coal mines, power generation and transmission facilities, pipelines, farming practices, and other developments. Where feasible, the developments should avoid disturbance of the human burial sites. In these situations the disinterred human remains and burial goods must be studied and reinterred pursuant to rules adopted by the state department of health and the state historical society.

23-06-28. Arresting or attaching dead body - Penalty.Every person who arrests or attaches any dead body of a human being upon any debt or

demand whatever, or who detains or claims to detain it for any debt or demand or upon any pretended lien or charge, is guilty of a class B misdemeanor.

Page No. 7

23-06-29. Penalty for violating provisions relating to dissections and general penalty.Every person who violates any provision of this chapter relative to the dissection of dead

bodies of human beings, or who makes or procures to be made any dissection of the body of a human being except by authority of law or in pursuance of permission given in accordance with the provision of this chapter, is guilty of a class B misdemeanor. Every person who violates any provision of this chapter for the violation of which another penalty is not specifically provided is guilty of an infraction.

23-06-30. Abandoned cemeteries to be maintained by counties.The board of county commissioners of each county may provide for the identification,

cataloguing, recording, and shall provide for the general maintenance and upkeep of each abandoned cemetery located within such county. The board shall, at least once each year, proceed to have the weeds and grass cut, restore gravestones to their original placement, and perform any other general maintenance necessary to maintain the dignity and appearance of the grounds. For the purposes of this section, a cemetery means any tract of land used as a burial plot and which is filed with the recorder of the county as a public burying place. The board of county commissioners of each county shall provide for the registration, with the state department of health, of each abandoned cemetery within such county unless such cemetery has been previously registered. Such registration must take place within one year of notification being made to the board, by any interested party of the existence of such abandoned cemetery. Expenditures may not exceed levy limitations as provided in section 57-15-27.2.

23-06-31. Cremation or other lawful disposition of a body - Authorization document - Immunity.

1. A legally competent adult may prepare a written statement directing the cremation or other lawful disposition of that adult's own remains pursuant to section 23-06-03. The written statement must be signed and dated by the legally competent adult and may be part of the legally competent adult's will.

2. A document that conforms to this section authorizes a crematorium or funeral establishment to carry out the instructions of the legally competent adult who is the subject of the document. It is not necessary for a crematorium or funeral establishment to obtain the consent or concurrence of any other person when the crematorium or funeral establishment cremates or otherwise provides for the lawful disposition of a body pursuant to instructions contained in a document that conforms to this section.

3. This section does not mandate that a crematorium or funeral establishment cremate or otherwise provide for the lawful disposition of a body pursuant to the document unless the legally competent adult who executed the document articulated and funded in a pre-need funeral service contract the legally competent adult's instructions as expressed in the document.

4. A crematorium or funeral establishment that cremates or otherwise provides for the lawful disposition of a body in good-faith reliance upon instructions of a decedent pursuant to section 23-06-03 or on an apparently genuine document executed pursuant to this section is not subject to civil liability or professional discipline. The decision of a crematorium or funeral establishment to cremate or otherwise provide for the lawful disposition of a body in reliance on a document executed pursuant to this section is presumed to be made in good faith.

Page No. 8

FTC FUNERAL RULE Each year, Americans arrange more than 2 million funerals for family and friends. Initially consumers may not be concerned about funeral expenses. Yet, at a potential cost of more than $5,000, consumers may want to be aware of regulations that help protect them. In 1984, the Federal Trade Commission (FTC) developed a trade regulation rule concerning funeral industry practices called the Funeral Rule. Its purpose is to enable consumers to obtain information about funeral arrangements. The Funeral Rule makes it easier for you to select only those goods and services you want or need and to pay for only those you select. The rule allows consumers to find out the cost of individual funeral items over the telephone. Getting price information over the telephone makes it easier for you to compare prices and select the funeral home and arrangements you want. If you inquire in person about funeral arrangements, the funeral provider must give you a general price list. This list, which you can keep, contains the cost of each item and service offered. As with telephone inquiries, you can use this information to help select the funeral provider and funeral items you want, need, and are able to afford. The price list must also disclose important legal rights and requirements regarding funeral arrangements. It must include information about embalming, cash advance items such as newspaper notices or flowers, caskets for cremation, and required purchases. The Funeral Rule requires funeral providers to give consumers information about embalming that may help you decide whether to purchase the service. Under the rule, a funeral provider: • may not falsely state that embalming is required by law. • must disclose in writing that, except in certain special cases, embalming is not required by law. • may not charge a fee for unauthorized embalming unless it is required by state law. • will disclose in writing that you usually have the right to choose a disposition such as direct cremation or immediate burial if you do not want embalming. In North Dakota, with specific exceptions, embalming is not required if the body is buried, cremated, or is given final disposition within 48 hours after death. • will disclose to you in writing that certain funeral arrangements, such as a viewing, may make embalming a practical necessity and a required purchase. The Funeral Rule requires funeral providers to disclose to you in writing if they charge a fee for buying cash advance items. Cash advance items are goods or services that are paid for by the funeral provider on your behalf. Some examples of cash advance items are flowers, obituary notices, pallbearers, and clergy honoraria. Some funeral providers charge only their cost for these items. Others add a service fee to their cost. The Funeral Rule requires the funeral provider to inform you ahead of time when a service fee is to be added to the price of cash advance items or if the provider gets a refund, discount, or rebate from the supplier of any cash advance item. If you choose a direct cremation, the funeral provider will offer you either an inexpensive alternative container or an unfinished wood box. An alternative container is a non-metal enclosure used to hold the deceased’s remains. Such containers may be made of pressboard, cardboard, or canvas. A wood box or alternative container may lower your

funeral cost because it would be less expensive than a traditional burial casket. Under the Funeral Rule, funeral directors who offer direct cremations: • may not tell you that state or local law requires a casket for direct cremations. • must disclose in writing your right to buy an unfinished wood box or alternative container for direct cremation. • must make an unfinished wood box or alternative container available for direct cremation. You do not have to purchase unwanted goods or services as a condition of obtaining those you do want unless you are required to do so by state law. Under the Funeral Rule: • you have the right to choose only the funeral goods and services you want, with some disclosed exceptions. • the funeral provider must disclose this right in writing on the general price list. • the funeral provider must disclose on your itemized statement of goods and services selected the specific state law that requires you to purchase a ny particular item. The funeral provider must give you an itemized statement of the total cost of the funeral goods and services you select. This statement will also disclose any legal, cemetery, or crematory requirements that compel you to purchase any specific funeral goods or services. The funeral provider must give you this statement after you select the funeral goods and services that you would like. The statement combines in one place the prices of the individual items you are considering for purchase, as well as the total price. This helps you decide whether to add or subtract items to get what you want. If the cost of cash advance items is not known at the time, the funeral provider must write down a “good faith estimate” of their cost. The rule does not require any specific form for this information. Therefore, funeral providers may include this information in any document they give you at the end of your discussion about funeral arrangements. You may want to consult with someone else, such as your cleric or an experienced friend, if you don’t think your emotional state will let you objectively evaluate a funeral provider’s products and services. If you have a problem concerning funeral matters, first attempt to resolve it with your funeral director. If you are dissatisfied, you may contact the Attorney General’s Consumer Protection Division or the State Board of Funeral Service by writing to Dr. Terry Dwelle, State Health Officer, Department of Health, 600 East Boulevard Avenue, Bismarck, North Dakota 58505-0200.

ND_mortlaws

Documents

embalming means

funeral laws

funeral establishment

funeral services

practice of funeral

licensed funeral practitioner

funeral ceremony purposes

dead human body