49 Pa. Code § 13.253

Current through Register Vol. 54, No. 45, November 9, 2024

Section 13.253 - Inspections-statement of policy

(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

Board administrator-An employee of the Bureau with responsibility to administer the business of the Board or another employee assigned to assist this person.

Citation-A notice of a violation beginning disciplinary action issued under section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (63 P. S. § 2205(a)) in accordance with Chapter 43b (relating to Commissioner of Professional and Occupational Affairs).

Closing inspection-An inspection performed for the purpose of determining whether a licensed funeral establishment that has discontinued business, changed location or notified the Board of its intent to discontinue business or change location has complied with the act and this chapter.

Complaint-A document filed with the Professional Compliance Office alleging one or more violations of the act or this chapter.

Follow-up inspection-An inspection relating to a prior inspection in which the funeral establishment was determined to be in noncompliance with the act or this chapter. This inspection is conducted for the purpose of determining whether the noncompliant element of the establishment has been brought into compliance.

Inspection-

(i) A visual examination, observation or view of a funeral establishment by an agent of the Bureau of Enforcement and Investigation, including an examination, observation or view of any of the following:

(A) The buildings, fixtures, equipment, implements and materials of the funeral establishment.

(B) Licenses of employees of the funeral establishment.

(C) Documents, forms, advertising and other records required by the act, this chapter or the regulations of the Federal Trade Commission in 16 CFR Part 453 (relating to funeral industry practices).

(D) Other matters that pertain to initial and continued licensure for the purpose of determining a funeral establishment's compliance with licensure requirements.

(ii) The term includes an oral interview or examination of an employee, agent or licensee with a principal place of business at the funeral establishment, or a licensee who assists at the funeral establishment, for the purpose of obtaining information that pertains to the visual examination.

Inspector-An employee under the supervision and direction of the Director of the Bureau of Enforcement and Investigation, regardless of employment classification or title of position assigned by the Office of Administration, who is a licensed funeral director who has been actively engaged in the practice of the profession of funeral directing for at least 10 years.

Investigation-An activity conducted in response to a complaint filed with the Professional Compliance Office regarding an alleged violation of the act or this chapter, or in response to a suspected violation discovered during an inspection, for the purpose of gathering evidence reasonably calculated to determine whether a violation has occurred.

New funeral establishment inspection-An inspection relating to an application for a funeral establishment license.

Routine inspection-An inspection performed for the purpose of determining compliance of a licensed funeral establishment with the provisions of the act, this chapter or 16 CFR Part 453.

(b)Authority and rationale.

(1) The profession of funeral directing is a heavily regulated profession.

(2) Section 16(b) of the act (63 P. S. § 479.16(b)) requires the Board to appoint mortuary inspectors.

(3) Under section 16(b) of the act, inspectors are empowered to serve all processes and papers of the Board and have the right of entry into any place, where the business or profession of funeral directing is carried on or advertised as being carried on, for the purpose of inspection and for investigation of complaints filed with the Professional Compliance Office and for other matters as the Board may direct.

(4) The Board finds that the periodic inspection of the premises at which the profession of funeral directing is carried on or advertised as being carried on is necessary to serve several important governmental interests, including:

(i) Ensuring that the public is protected against acts, practices and conditions in the profession of funeral directing that are inimical to public health, safety, welfare and fair consumer transactions.

(ii) Promoting price competition among practitioners of the profession of funeral directing by ensuring that economic advantage is obtained through efficient and sound business practices and not through acts, practices or conditions in the profession of funeral directing that compromise public health, safety, welfare or fair consumer transactions.

(iii) Educating and informing practitioners in the profession of funeral directing of the legal requirements of the profession and of economical and practical means of complying with Federal and State law.

(5) The Board finds that it has been the practice of the Bureau of Enforcement and Investigation to regulate the conduct of inspections and investigations by mortuary inspectors within appropriate limitations as to frequency, scope and timing so as not to impose unreasonable burdens upon licensees.

(6) The Board finds that it is in the interest of the public and of the regulated profession to memorialize a policy regarding the conduct of inspections and investigations performed under the act.

(c)Limitations on inspections.

(1)Frequency. Inspectors will perform inspections within the following ranges of frequency:

(i)Routine inspection. Each funeral establishment licensed by the Board will be inspected no more than once every 270 consecutive days and no less than once every 540 consecutive days.

(ii)New funeral establishment inspection. A new funeral establishment will be inspected within 30 days of the date of a request by the Board administrator.

(iii)Follow-up inspection. An existing funeral establishment, new funeral establishment, funeral establishment in which ownership is being transferred or a closing funeral establishment in which a deficiency was noted or reported will be inspected no sooner than 7 days and no later than 30 days from the date that the deficiency was noted or reported, or within 30 days of a follow-up inspection in which a prior reported deficiency was found to be uncorrected. This standard is directory and not mandatory. This limit may be extended if, in the exercise of the sound discretion of the inspector or the Bureau of Enforcement and Investigation, additional time is warranted or other priorities require more immediate attention.

(2)Time. Inspectors will perform routine inspections, new funeral establishment inspections, closing inspections and follow-up inspections only between Monday and Friday during the hours of 8 a.m. and 5 p.m., excluding State holidays.

(3)Scope. Inspectors will limit the scope of new funeral establishment inspections, routine inspections, follow-up inspections and closing inspections to information required for the completion of forms designed by the Bureau of Enforcement and Investigation and ratified by the Board. As of the date of the adoption of this statement of policy, the form that is in use is an electronic form.

(i) During the course of an inspection, an inspector is not authorized to demand production of documents, or to demand entrance to a part of the premises of a funeral establishment, that are not within the scope of the subject matter of approved inspection report forms.

(ii) During the course of a follow-up inspection, an inspector will limit the scope of the inspection to a review of the previously reported deficiency.

(4)Notice of inspection.

(i)General rule. Routine inspections and follow-up inspections will be conducted without prior notice to the funeral establishment, its owners, officers, employees or funeral directors practicing at the funeral establishment. New funeral establishment inspections and closing inspections will be scheduled in advance.

(ii)Exceptions. Within the sound discretion of the Director of the Bureau of Enforcement and Investigation, an inspector may schedule an appointment to conduct a routine inspection or follow up inspection in the following circumstances:

(A) The funeral establishment is geographically remote or isolated and an unscheduled inspection would consume an unreasonable amount of time if a person was not present upon the arrival of the inspector.

(B) The funeral establishment is not open Monday through Friday from 8 a.m. to 5 p.m.

(5)Amendments, modifications and changes to scope of inspections. The Board will ratify amendments, modifications or changes to the scope of inspection forms only if amendments, modifications or changes include subjects that are within the Board's jurisdiction as defined by statutes enacted by the General Assembly and interpreted by judicial decision.

(6)Observation of actual or suspected violations in the conduct of inspections.

(i)General rule. An inspector is authorized to issue a citation, or refer for further investigation or formal disciplinary action, observed actual or suspected violation of the act or this chapter which is within the scope of the inspection report forms ratified by the Board.

(ii)Evidence in plain view of violations not within the scope of inspection report forms.

(A)Observed actual violations. If, during the course of an inspection, an inspector observes evidence in plain view of an actual violation of the act, this chapter, 16 CFR Part 453 or other law and the violation is not within the scope of the inspection report forms ratified by the Board, the inspector is authorized to issue a citation or report the observed violation for investigation or formal disciplinary action.

(B)Observed suspected violations. If, during the course of an inspection, an inspector observes evidence in plain view of a suspected violation of the act, this chapter, 16 CFR Part 453 or other law and the violation is not within the scope of the inspection report forms ratified by the Board, the inspector is authorized to report the suspected violation for further investigation or formal disciplinary action.

49 Pa. Code § 13.253

The provisions of this §13.253 adopted November 1, 2013, effective 11/2/2013, 43 Pa.B. 6515.

The provisions of this §13.253 issued under sections 11, 13, 15 and 16(a) of the Funeral Director Law (63 P. S. §§ 479.11, 479.13, 479.15 and 479.16(a)).