KANSAS STATE BOARD OF MORTUARY ARTS
700 SW JACKSON, SUITE #904
TOPEKA, KANSAS 66603-3733
Thursday, October 11, 2007
FORMAT OF MINUTES:
On each motion there appear the names of two board members in a parenthesis. The first named made the motion, and the second named made the second. Ayes and Nays will be recorded at a voter’s request.
Thursday, October 11, 2007:
I. The regularly scheduled meeting of the Kansas State Board of Mortuary Arts (KSBMA) was called to order by President Barry W. Bedene.
Roll call by Executive Secretary Mack Smith with the following board members in attendance: President Barry W. Bedene, Arma, licensee; Vice President Fred G. Holroyd, Topeka, licensee; Board Member Melissa A. Wangemann, Topeka, consumer; Board Member Charles R. Smith, Overland Park, consumer, and William H. “Bill” Young, Lake Quivira, licensee. The board’s Executive Secretary, Mack Smith was in attendance.
The board noted this meeting’s tentative agenda that is displayed on the agency’s website at: http://www.kansas.gov/ksbma/ under the heading of Agency Information and Tentative Board Agenda. This agenda was updated yesterday, Wednesday, October 10, 2007.
(Young-Wangemann) To approve a final agenda for this meeting as amended. Carried.
(Holroyd-C. Smith) To adopt the July 12, 2007 regularly scheduled board meeting minutes as amended. Carried. Now that they have been approved by the board, these minutes will be displayed on the board’s website.
The board reviewed results of the written funeral directors’ examination administered on July 12, 2007 noting that 92% (eleven of twelve applicants) were successful. The board reviewed information provided by two examinees on the “Exit” application from this funeral director’s examination (which allows an opportunity for applicants to express their thoughts on the examination and examination process) along with the agency’s response to the applicants with no additional action taken.
The board reviewed the ‘List of Licensure Applicants’ scheduled to interview with the board at this meeting, noting the following applicants scheduled to meet with the board: two (2) embalmer-funeral directors and three (3) funeral directors. One (1) funeral director applicant will be retaking the examination. A total of six (6) applicants are scheduled to be administered the written funeral directors' examination in conjunction with this meeting.
II. The board reviewed individual applications for embalmer and funeral director licensure along with the executive secretary’s summations of the applicant’s apprentice and supervising licensee progress reports. Applicants for licensure will be interviewed later in this meeting. Funeral director applicants will be administered the written funeral directors' examination by Funeral Home/ Crematory Inspector Francis Mills at 1:30 p.m. later this afternoon in the Florentine Room of the Jayhawk Tower.
The board reviewed the third quarter progress reports of apprentice embalmer-funeral director Heather M. Schmalz. Following review and discussion of the reports and information, the board took the following action:
(C. Smith-Holroyd) To notify Ms. Schmalz that she will have to spend considerably more time in the embalming/ preparation room during the fourth quarter of apprenticeship. Carried. The board directed Executive Secretary Smith to notify Ms. Schmalz accordingly.
The board reviewed information on apprentice/assistant funeral director Shawn L. Parcells regarding his failure to submit all documentation/fees by the filing deadline. Mr. Parcells will have an opportunity to meet with the board at their January 2008 meeting–providing all documentation/fees are submitted by the filing deadline for that meeting. Following review and discussion of the reports and information, the board took the following action:
(C. Smith-Holroyd) To require Mr. Parcells to submit weekly time sheets signed by both the apprentice and supervising funeral director up until the conclusion of his funeral directing apprenticeship on November 20, 2007. Carried.
All quarterly progress reports of embalmer/funeral director apprentices and supervising licensees were summarized by the executive secretary and discussed by the board with copies of the individual reports available for review.
lII. Legal Discussion: Individual Complaints/investigations are listed numerically. The board did not necessarily take action in the order listed below:
Complaint and correspondence information and discussion:
The board reviewed correspondence involving complaints resulting from action taken at the meeting of July 12, 2007.
Information on open complaints:
The Board’s Investigative Committee, which is composed of Board Members
Young and C. Smith with legal assistance provided by Assistant Attorney General (litigation) Steve Phillips and administrative assistance by Executive Secretary Smith, met yesterday, Wednesday, October 10, 2007 at 3:00 p.m. to discuss all open complaints. Investigative Committee recommendations are included with the individual complaints.
#06-09–No action necessary at this time.
#06-34–No action necessary at this time.
#07-09–(Holroyd-Wangemann) To close the file. Carried. Initially both parties were notified of no violations of laws regulated by the KSBMA. The licensee was notified that all future advertisements should not include any statements that could be consider fraudulent, deceptive or misleading in nature. The complaint involved advertisements placed on the internet, television and in the newspaper. It was later discovered that while the advertisements in question on television and in the newspaper were appropriately changed, not all were corrected on the funeral home’s web site. Upon notification of such, the funeral home immediately made corrections and apologized for not initially correcting the mistakes. The board advised the licensee that any future violations may well result in discipline action being taken by the KSBMA.
#07-12–(Holroyd-Wangemann) To close the file. Carried. The complaint involved the family not being allowed to view the body of a loved one.
#07-14–(Holroyd-Wangemann) To close the file. Carried. The complaint involved a Kansas licensee conducting a funeral service in the state of South Dakota without having a South Dakota licensee present–which is a requirement of South Dakota law.
#07-17–(Holroyd-Wangemann) To close the file. Carried. The complaint involved misleading/ fraudulent/deceptive advertising.
#07-20–(C. Smith-Young) To adopt the recommendations of the Investigative Committee to close the file. Carried. No action was taken against this facility by the Missouri Board of Embalmers and Funeral Directors–requiring no action by the KSBMA. The complaint involves the failure of a Kansas funeral home to register as a preneed provider in the State of Missouri prior to selling prefinanced funeral agreements in Missouri.
#07-21–(C. Smith-Young) To adopt the recommendations of the Investigative Committee to advise the funeral director who was issued the funeral establishment license that better communication and understanding of the solicitation laws may have avoided the situation from occurring. Carried. A copy of the letter was sent to the preneed counselor. The complaint involves at-need solicitation, providing misleading information in order to transfer prefinanced funeral agreements from one funeral home to another and selling prefinanced funeral agreements without authorization of the funeral home.
#07-22–(Holroyd-Wangemann) To close the file. Carried. The complaint involved removal and embalming without proper family authorization. The funeral home agreed not to charge the family for removal, embalming or transportation.
#07-23–(C. Smith-Young) To adopt the recommendations of the Investigative Committee to send a Summary Order of public censor in the form of publication on the KSBMA web site and a $100.00 fine for failing to obtain an out-of-state transit permit. Carried. The complaint involves failure to obtain an out-of-state transit permit prior to transferring a body out of state from the state of Kansas and failure of an apprentice to receive authorization from a supervising licensee prior to removing, embalming and transporting a dead human body.
#07-24–(Young-C. Smith) To adopt the recommendations of the Investigative Committee to notify both parties of no violations of laws regulated by the KSBMA. Carried. The complaint involves failure of the funeral home to verify the existence of two prefinanced funeral agreements in a timely manner.
#07-25–(Young-C. Smith) To adopt the recommendations of the Investigative Committee to notify both parties of no violations of laws regulated by the KSBMA. Carried. The complaint involves the displeasure of the family not being allowed to make at-need funeral arrangements with the funeral director of their choice.
#07-26–(C. Smith-Young) To adopt the recommendations of the Investigative Committee to notify the Oklahoma funeral home that a Kansas funeral director should have been in charge of the funeral service with a copy of the letter sent to the Oklahoma Funeral Board. Carried. The complaint involves failure of an Oklahoma funeral home to have a Kansas licensed funeral director present at a funeral service in the State of Kansas.
#07-27–(C. Smith-Young) To adopt the recommendations of the Investigative Committee to notify both parties of no violations of laws regulated by the KSBMA. Carried. The complaint involves unprofessional conduct and concerns with at-need funeral charges.
#07-28–(Holroyd-Wangemann) To adopt the recommendations of the Investigative Committee to advise the licensee that better communication may have avoided the situation from occurring. Carried. The complaint involves unprofessional conduct and concerns with at-need funeral charges. The civil case between this consumer and the funeral home has been settled.
#07-29–No action necessary at this time.
#07-30–(Young-C. Smith) To adopt the recommendations of the Investigative Committee to notify both parties of no violations of laws regulated by the KSBMA. Carried. The complaint involves unprofessional conduct.
#07-31–(Young-C. Smith) To adopt the recommendations of the Investigative Committee to notarize the statement and close the file. Carried. The complaint involves unprofessional conduct.
#07-32–(Young-C. Smith) To adopt the recommendations of the Investigative Committee to notify both licensees that better/clearer communication with better attention and clarity to details in the preparation of material would have avoided the situation from occurring. Carried. The complaint involves unprofessional conduct.
#07-33–(Young-C. Smith) To adopt the recommendations of the Investigative Committee to notify the licensee of no violations of laws regulated by the KSBMA but to advise the licensee of a related statute. Carried. The complaint involves inappropriate solicitation/advertising.
#07-34, #07-35 & #07-37–(Young-C. Smith) To adopt the recommendations of the Investigative Committee to notify both parties of no violations of laws regulated by the KSBMA. Carried. These complaints involve the failure of a funeral home to file the death certificate with the Office of Vital Statistics (OVS) in a timely fashion.
#07-36–No action necessary at this time.
IV. Legislative/Legal Update
1. Special Legislative Committee Study of the Kansas Administrative Procedures Act (KAPA) and the Act for Judicial Review of Agency Actions–Information and testimony from the August 28, 2007 committee meeting was reviewed and discussed. The committee is considering the possibility of recommending legislation that would prohibit agency heads from serving as presiding officers in administrative hearings conducted in accordance with the Kansas Administrative Procedures Act. The KSBMA, along with 17 other state agencies, opposes that possibility and also opposes any proposal that would make the findings of the Office of Administrative Hearings (OAH) binding upon the agency heads. Opponents testifying included: Commissioner of the Kansas Department of Insurance Sandy Praeger along with Insurance Department General Counsel John Campbell, General Counsel for the Office of Securities Commissioner Rick Fleming, Banking Commissioner Tom Thull, Past Chairperson of the Board of Accountancy/CPA Virginia Powell, and Executive Director Sherry Diel of the Kansas Real Estate Commission. Professor Rick Levy, who is a member of the Kansas Judicial Council Administrative Procedure Advisory Committee was a neutral testifier. KSBMA Executive Secretary Mack Smith attended this meeting. Once written information is available regarding the action taken by the committee, copies will be presented to KSBMA board members and legal counsels.
2. (Holroyd-Wangemann) To approve the updated list of Board Actions to include actions taken through the July 12, 2007 meeting. Carried. The list will be updated on the agency’s web site.
3. Senate Bill 179 and related information regarding Assistant Funeral Directors–The KSBMA information pertaining to the Assistant Funeral Director Examination including review of potential exam questions and an update examination application. A hearing over KAR 63-2-26 and KAR 63-4-1 is scheduled for later in the meeting. At the July 2007 meeting, the board decided on a 25 question written examination to be administered in-house for $50. The questions will include: fifteen (15) questions of Kansas law pertaining to funeral directing; five (5) questions of Kansas law pertaining to preneed funeral agreements, and five (5) questions over the federal laws pertaining to funeral directing, including the Federal Trade Commission’s (FTC) Funeral Rule. Because the statute does not become law until January 1, 2008, the regulations will not be considered for adoption until the January 2008 board meeting. The examination will be scheduled monthly in Topeka–providing the number of applications warrants such. The filing deadline will be the 15th of the month prior to the scheduled examination. Applicants that initially fail the exam after submitting the application and paying the exam fee will reapply and be allowed to retake the exam at the next regularly scheduled date at no additional cost. Failure to appear at that next date or to pass the exam at that next date will cause an additional exam fee and application to be submitted–repeating the previously described process. An item bank of 75 questions is desirable, and the board reviewed proposed questions provided by Executive Secretary Smith.
4. Potential 2008 Legislation–The board discussed the current format regarding coroner’s permit to cremate as is defined in K.S.A. 65-2426a of the Kansas Department of Health and Environment (KDHE.) Items discussed included the Permission to Cremate authorization form utilized by the Office of Armed Forces Medical Examiner as authorized by federal law (10 USC 1471.) The board directed Executive Secretary Smith to contact the Kansas Funeral Directors Embalmers and Funeral Directors Association (KFDA) to see if their legislative committee was interested in pursuing a meeting with the KDHE to discuss current laws in place regarding the coroner’s authorization to cremate permit.
The board discussed the possibility of promulgating a regulation or requesting legislation that would require funeral homes to notify consumers with prefinanced funeral agreements that the funeral home had sold or closed and to provide consumers with options regarding the arrangements. Based on laws currently in place, the board decided not to take any action.
5. Funeral Picketing–The law passed by the 2007 Kansas Legislature (House Substitute for Senate Bill 244) isn’t supposed to become effective until the Kansas Supreme Court or a federal court has upheld it as constitutional–which has not yet happened.
6. The board reviewed the Kansas Department of Social and Rehabilitation Services (SRS) Funeral Assistance Program and proposed KAR 30-4-98. This regulation was reviewed by the Kansas Legislature’s Joint Committee of Administrative Rules and Regulations (JCARR) on Monday, October 8, 2007 and is scheduled for a public hearing on Friday, November 9, 2007 with adoption of the regulation on Tuesday, November 20, 2007. Changes include an increase from $550 to $680 with a limitation change from $2,000 to $2,500 for total funeral costs. These increases went into effect July 1, 2007 via SRS Policy.
V. Board Interviews with Applicants for Licensure:
Embalmer-Funeral Director Applicant: Ms. Audrey A. Bjornstad
(Bedene-Young) To grant an embalmer license upon completion of apprenticeship and payment of an initial license fee of $21.00 and to grant a funeral director license upon completion of apprenticeship, payment of an initial license fee of $6.00 and passing the written funeral director examination, which will be administered later today. Carried. Ms. Bjornstad is scheduled to complete her apprenticeships at Warren-McElwain Mortuary in Lawrence, Kansas on November 28, 2007. Once issued, the renewal date for the licenses would be February 28, 2008. Ms. Bjornstad earned an Associate in Applied Science Degree in Mortuary Science at Kansas City Kansas Community College in Kansas City, Kansas.
Embalmer-Funeral Director Applicant: Ms. Carol A. Kampsen
(Young-Wangemann) To grant an embalmer license upon completion of apprenticeship and payment of an initial license fee of $91.00 and to grant a funeral director license upon completion of apprenticeship, payment of an initial license fee of $26.00 and passing the written funeral director examination, which will be administered later today. Carried. Ms. Kampsen is scheduled to complete her apprenticeships at Penwell-Gabel Funeral Home and Crematory, Midtown Chapel in Topeka, Kansas on November 3, 2007. Once issued, the renewal date for the licenses would be November 30, 2008. Ms. Kampsen earned an Associate in Applied Science Degree in Mortuary Science at Kansas City Kansas Community College in Kansas City, Kansas.
Funeral Director Applicant: Ms. Amber D. Reynolds
(Wangemann-Holroyd) To grant a funeral director license upon payment of an initial license fee of $42.00 and passing the written funeral director examination, which will be administered later today. Carried. Ms. Reynolds completed her funeral director apprenticeship at Hall Funeral Home in Lincoln, Kansas on August 3, 2007. Once issued, the renewal date for the license would be June 30, 2009. Ms. Reynolds attended Wichita State University in Wichita, Kansas, earned an Associate in Applied Science Degree at Barton County Community College in Great Bend, Kansas, and earned a Bachelor of Science Degree in Justice Studies at Fort Hays State University in Fort Hays, Kansas.
Funeral Director Applicant: Mr. Joel R. Edmonston
(Young-Wangemann) To grant a funeral director license upon payment of an initial license fee of $16.00 and passing the written funeral director examination, which will be administered later today. Carried. Mr. Edmonston completed his funeral director apprenticeship at Petersen Funeral Home in Newton, Kansas on September 27, 2007. He served part of his funeral director apprenticeship at Myatt Funeral Home in Ashland, Kansas. Once issued, the renewal date for the license would be May 31, 2008. Mr. Edmonston earned a Bachelor of Science Degree in Funeral Service at the University of Central Oklahoma in Edmond, Oklahoma. He was issued a Kansas embalmer license on October 25, 2006.
Funeral Director Applicant: Mr. Dustin R. Daniels
(Wangemann-Smith) To grant a funeral director license upon payment of an initial license fee of $14.00 and passing the written funeral director examination, which will be administered later today. Carried. Mr. Daniels completed his funeral director apprenticeship at Garnand Funeral Home in Ulysses, Kansas on September 11, 2007. Once issued, the renewal date for the license would be April 30, 2008. Mr. Daniels attended Garden City Community College in Garden City, Kansas, Seward County Community College in Liberal Kansas, Kansas City Kansas Community College in Kansas City, Kansas and earned a Bachelor of Science Degree in Funeral Service at the University of Central Oklahoma in Edmond, Oklahoma. He was granted a Kansas reciprocal (Oklahoma) embalmer license on October 12, 2006.
Regulations Public Hearing
At 11:45 a.m. the board held a public hearing over KAR 63-2-26 (new) and KAR 63-4-1 (amended.)
There was no one in attendance from the public for the hearing.
Public comments:
KAR 63-2-26 (new)–No comments.
KAR 63-4-1 (amended)–No comments.
An August 17, 2007-letter from Raney L. Gilliland, Assistant Director for Research of the Kansas Legislative Research Department, was made a part of the public record. In that letter, the Joint Committee on Administrative Rules and Regulations (JCARR) commended the KSBMA on its prompt promulgation of the regulations noting that the authorizing statutes will not be effective until January 1, 2008.
Because amendments to the authorizing statutes, KSA 65-1717 as amended by the 2007 Kansas Legislature, ch. 87, section 1 and KSA 65-1727 as amended by the 2007 Kansas Legislature, ch. 87, section 2, (Senate Bill 179), do not go into effect until January 1, 2008, the board will not consider adoption of these two regulations until the upcoming board meeting which is scheduled for January 10, 2008.
The proposed regulations, economic impact statements, notice of hearing, and the August 17, 2007 letter from the JCARR/Raney Gilliland are on the KSBMA web site allowing for comments via email by the public.
Following the public hearing, the board recessed for lunch at the Jayhawk Tower Restaurant.
At approximately 1:30 p.m. Executive Secretary Smith read instructions to the funeral director examinee applicants prior to the administration of the funeral director examination which was proctored by Inspector Francis Mills in the Florentine Room of the Jayhawk Tower. The results of that examination are a part of these minutes.
VI. Board Business:
1) (Bedene-Holroyd) To approve the quarterly lists of continuing education. Carried. One list contains correspondence/home study programs. Both of these lists of approved continuing education programs are regularly updated and are available on the board’s web site on the internet and are mailed to licensees not having internet access on a quarterly basis.
2) (Young-Wangemann) To approve the list of lapsed licenses as amended. Carried. The list is a part of these minutes and contains the names of individuals whose license renewals are past due for longer than six months or who have requested that their licenses be dropped. Licensees who have died during the past quarter are also included on this list for informational purposes.
3) The board reviewed the list of automatically suspended licenses. This list contains the names of individuals who have not paid their license renewal fees by the appropriate due date and have not requested that their licenses be dropped. Once a license is six months in arrears, it is then automatically placed on the lapsed license list for purposes of being dropped.
4) (Smith-Bedene) To approve the FY 2008 first quarter (July 1-September 30, 2007) Inspection Report of the Funeral Home/Crematory Inspector, Francis F. Mills. Carried.
5) Reviewed the current roster of apprentice embalmers and funeral directors. A total of 32 apprentices are currently registered with the board.
6) Discussion of news articles relating to the funeral profession that have been provided to board members and legal counsel for their review.
7) Meeting dates scheduled for 2008 Board meetings are: January 10, April 10, July 10 and October 9.
8) The board signed travel vouchers and licenses.
9) The board reviewed the Election of Officers Press Releases.
10) Government Ethics Commission information was reviewed including the updated July 2007 Guidelines for State Employees Concerning Meals, Gifts, Entertainment and Travel.
11) The board congratulated Board Member Holroyd on his reappointment to the board by Governor Sebelius.
12) Updated board member roster/appointment information and the roster of corporations with funeral homes in the state were reviewed and discussed.
13) Update on changes/additions to licensed funeral establishments and branch establishments–The board reviewed a number of changes involving funeral establishment/branch establishment licenses.
VII. Executive Secretary's Report:
1) Budget Update
a) The 2007 Kansas Legislature and Governor Kathleen Sebelius approved the following budget amounts for the KSBMA, which are contained in section 77, page 23, of House Bill 2368:
I) The budget for FY 2008 is currently $284,058–which includes the approved budget amount of $267,421 plus $16,637 of KSIP funds carried over from FY 2007.
II) The budget amount approved for FY 2009 is currently $271,079. This amount was approved by the 2007 Kansas Legislature and Governor.
FY 2008 and FY 2009 budget amounts will be recommended by the Division of the Budget later next month with amounts recommended by Governor Sebelius in her State of the State Address in 2008 followed by the 2008 Kansas Legislature.
III) The board reviewed the FY 2008 and 2009 KSBMA budget requests submitted to the Division of the Budget by the September 15, 2007-deadline.
2) Updated information regarding the International Conference of Funeral Service Examining Boards (ICFSEB.)
a) The Summer 2007 Conference Report was discussed.
3) Updated information on the Council on Licensure, Enforcement and Regulation (CLEAR) was discussed.
a) Mr. Smith was unable to attend the Annual Conference on September 5-8, 2007 in Atlanta, Georgia.
4) Updated information regarding the Federation of Associations of Regulatory Boards (FARB.)
a) Due to scheduling conflicts Executive Secretary Smith did not attend the Annual Attorney Certification Seminar in Professional Regulatory Law on October 5-7, 2007 in Charleston, South Carolina.
b) Mr. Smith does plan to represent the KSBMA at the 32nd Annual FARB Forum on January 25-27, 2008 in Santa Fe, New Mexico.
5) Updated information on the Kansas Funeral Directors and Embalmers Association (KFDA.)
a) Fall District Meetings: Executive Secretary Smith represented the KSBMA at five of the six district meetings. Inspector Mills was able to attend one of the meetings. A program on the Westboro Baptist Church/funeral picketing and the Patriot Guard was presented followed by a panel discussion. A program about insurance funded prefinanced funeral agreements was made available at three of the locations.
6) Information on the board’s Web Site, located at: http://www.kansas.gov/ksbma/, continues to be updated on a regular basis.
7) The board discussed information from the National Funeral Directors Association (NFDA).
8) The Federal Trade Commission’s (FTC) Funeral Rule
a) Advisory/Staff Opinion #07-4 was discussed.
b) Advisory/Staff Opinion #07-5 was discussed. Both of these documents are linked on the KSBMA web site.
9) Updated information from the American Board of Funeral Service Education (ABFSE):
a) The board discussed the proposed Funeral Service-Arts Degree and Survey & Notice of Review including an article that appeared in the September 2007edition of the NFDA’s Director magazine.
10) Updated information from the Cremation Society of North America (CANA).
11) Updated information from the Funeral Ethics Association (FEA).
a) The July 2007 Newsletter was discussed.
12) Updated information from the Funeral Consumer Alliance (FCA).
13) Updated information from the Funeral Consumer’s Alliance of Greater Kansas City.
a) Summer 2007 Newsletter was discussed. This organization utilizes the KSBMA informational brochures and memorial planning guide on a regular basis.
14) Updated information from the Funeral Ethics Organization (FEO).
15) Updated information from the American Society of Embalmers (ASE):
a) The Third (3rd) Annual Meeting and Conference will be held on October 26-27, 2007 in Detroit, Michigan.
16) The Citizen Advocacy Center (CAC)
17) Updated information from the Office of Vital Statistics (OVS)/Electronic Death Registration System
a) July 2007 Newsletter was discussed.
18) Office Lease Contract–The Division of Facilities Management (DFM) and the Joint Committee on State Building Construction (JCSBC) approved a five-year lease for the KSBMA, from 9/1/2007 until 8/31/2012.
19) Updated information from the Kansas City Kansas Community College Mortuary Science Advisory Board including a November visit from the ABFSE Accreditation Committee.
VIII. New/Old/Remaining Business/Adjournment
The Mass Fatality Planning Task Force has scheduled a Tabletop Exercise for November 8, 2007. Mr. Smith represents the KSBMA on this task force.
The board viewed the new scanner recently purchased for the agency.
(Bedene-Holroyd) To adjourn–subject to recall by the president, vice president or executive secretary. Carried. The date of the next regularly scheduled board meeting is scheduled for Thursday, January 10, 2008.
Respectfully submitted:
Mack Smith, Executive Secretary
Barry W. Bedene, President
January 10, 2008