S 1191 General Bill, By Passailaigue, Giese, Glover, McConnell, Reese and 
L.E. Richter

Similar(H 4756)
 A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 8
 to Title 32 so as to enact the "Safe Cremation Act" and to provide for the
 authorization of, the procedures for, and regulation of cremation; by adding
 Section 17-5-305 so as to require that the remains of an unidentified dead
 person may not be cremated but must be buried; to amend Section 17-5-310,
 relating to cremation permits, so as to provide that a coroner may issue such
 permit; and to amend Section 17-5-320, relating to reporting the absence of an
 investigation of violent or suspicious deaths, so as to provide that the
 report may be made to a coroner.

   02/16/94  Senate Introduced and read first time SJ-4
   02/16/94  Senate Referred to Committee on Medical Affairs SJ-4

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 8 TO TITLE 32 SO AS TO ENACT THE "SAFE CREMATION ACT" AND TO PROVIDE FOR THE AUTHORIZATION OF, THE PROCEDURES FOR, AND REGULATION OF CREMATION; BY ADDING SECTION 17-5-305 SO AS TO REQUIRE THAT THE REMAINS OF AN UNIDENTIFIED DEAD PERSON MAY NOT BE CREMATED BUT MUST BE BURIED; TO AMEND SECTION 17-5-310, RELATING TO CREMATION PERMITS, SO AS TO PROVIDE THAT A CORONER MAY ISSUE SUCH PERMIT; AND TO AMEND SECTION 17-5-320, RELATING TO REPORTING THE ABSENCE OF AN INVESTIGATION OF VIOLENT OR SUSPICIOUS DEATHS, SO AS TO PROVIDE THAT THE REPORT MAY BE MADE TO A CORONER.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 32 of the 1976 Code is amended by adding:

Section 32-8-300. This article may be cited as the `Safe Cremation Act'.

Section 32-8-305. As used in this chapter:

(1) `Alternative container' means a receptacle, other than a casket, in which human remains are transported to a crematory and placed in a cremation chamber for cremation. An alternative container or cremation casket must be:

(a) composed of readily combustible materials suitable for cremation;

(b) resistant to leakage or spillage;

(c) rigid enough for handling with ease;

(d) able to provide protection for the health, safety, and personal integrity of crematory personnel.

(2) `Authorizing agent' means a person legally entitled under this article to order the cremation and final disposition of specific human remains.

(3) `Body parts' means limbs or other portions of the anatomy that are removed from a person or human remains for medical purposes during treatment, surgery, biopsy, autopsy, or medical research; or human bodies or a portion of bodies that have been donated to science for medical research purposes.

(4) `Board' means the South Carolina State Board of Funeral Service.

(5) `Burial transit permit' means a permit for disposition of a dead human body as required by law.

(6) `Casket' means a rigid container that is designed for the encasement of human remains.

(7) `Change of ownership' means a transfer of more than fifty percent of the stock or assets of a crematory authority.

(8) `Cremated remains' means all human remains recovered after the completion of a cremation.

(9) `Cremation' means the technical process using heat and flame that reduces human remains to bone fragments and which may include the pulverization of the bone fragments.

(10 `Cremation casket' means a rigid wooden container that is designed for the encasement of human remains.

(11) `Cremation certificate' means a document certifying that a decedent has been cremated and which includes the name of the decedent, the identification number, the date of cremation, the name, address, and phone number of the crematory, and the signature of the crematory authority.

(12) `Cremation chamber' means the enclosed space within which the cremation takes place.

(13) `Cremation interment container' means a rigid outer container composed of concrete, steel, bronze, fiberglass or some similar material in which an urn is placed before being interred in the ground and which is designed to withstand prolonged exposure to the elements and to support the earth above the urn.

(14) `Cremation room' means the room in which a cremation chamber is located.

(15) `Crematory' means the building or portion of a building that houses the cremation room or the holding facility, or both.

(16) `Crematory authority' means the legal entity or the authorized representative of the legal entity which is licensed by the South Carolina Funeral Service Board to operate a crematory or a licensed funeral director who performs cremations.

(17) `Department' means the South Carolina Department of Health and Environmental Control.

(18) `Final disposition' means the burial, cremation, or other disposition of a dead human body or parts of a dead human body or cremated remains.

(19) `Foreign matter' means certain items including, but not limited to, body prosthesis, dentures, dental bridgework, dental fillings, jewelry, and any other personal articles accompanying the deceased.

(20) `Funeral director' means a person licensed by the board to engage for hire or profit in the profession of arranging, directing, or supervising funerals.

(21) `Funeral establishment' means an establishment in a building or separate portion of a building having a specific street address and location and devoted to activities relating to the shelter, care, custody, and preparation of a deceased human body and which may contain facilities for funerals, wake services, or cremations and for which a permit has been issued pursuant to Section 40-19-130.

(22) `Human remains' means the body of a deceased person, including any form of body prosthesis that has been permanently attached or implanted in the body.

(23) `Merchandise' means alternative containers, temporary containers, caskets, cremation caskets, rental caskets, urns, and cremation interment containers.

(24) `Niche' means a compartment or cubicle for the permanent placement of an urn containing cremated remains.

(25) `Pulverization' means the reduction of identifiable bone fragments after the completion of the cremation process to unidentifiable bone fragments by manual or mechanical means.

(26) `Scattering area' means an area which may be designated by a cemetery and located on dedicated cemetery property where cremated remains, which have been removed from their container, may be mixed with or placed on top of the soil or ground cover.

Section 32-8-310 (A) A crematory must be constructed on the grounds of a funeral establishment and must be in compliance with local zoning regulations; however, crematories established before October 1, 1993, are exempt from this requirement.

(B) A crematory authority must obtain a permit from the board as required by Section 40-19-10(18) and must file an annual report with the board stating the number of cremations it performed that year and other information as may be required by the board.

Section 32-8-315. (A) A person may authorize their own cremation and the final disposition of their cremated remains by executing a cremation authorization form on a preneed basis. A person has the right to revoke this authorization at any time by destroying the executed cremation authorization form and providing written notice to the funeral director who handled the preneed arrangements and the crematory authority designated to perform the cremation.

(B) A cremation authorization form executed by an individual on a preneed basis shall contain the following:

I wish to allow only those persons authorized by law, in the order of priority provided for in law, to revoke my cremation authorization and select alternate arrangements.

(C) Unless a cremation authorization is revoked as provided for in Section 32-8-320, at the time of death of a person who executed a cremation authorization form on a preneed basis, a person in possession of the executed form and a person charged with making arrangements for the final disposition of the decedent who has knowledge of the existence of the executed form shall use their best efforts to ensure that the decedent is cremated and that the final instructions contained on the authorization form are carried out. The crematory authority is required to cremate the human remains and dispose of the cremated remains according to the instructions contained on the cremation authorization form if the crematory authority has a completed authorization form that was executed on a preneed basis and the designated human remains.

(D) A preneed authorization for cremation arranged with a licensed funeral director and crematory authority shall specify the final disposition of the cremated remains in accordance with Section 32-8-345. If no different or inconsistent instructions are provided to the funeral director or the crematory authority by the authorizing agent at the time of death, the crematory authority shall release or dispose of the cremated remains as indicated in the preneed agreement.

(E) This section does not apply to a cremation authorization form on a preneed contract executed before July 1, 1994.

Section 32-8-320. (A) In the following order of priority these persons may serve as a decedent's authorizing agent and in the absence of a preneed cremation authorization may authorize cremation or may revoke a cremation authorization executed on a preneed basis by the decedent pursuant to Section 32-8-315:

(1) the spouse of the decedent at the time of the decedent's death;

(2) the decedent's surviving adult children;

(3) the decedent's surviving parents;

(4) the persons in the next degree of kinship under the laws of descent and distribution to inherit the estate of the decedent;

(B) In the absence of a person serving as a decedent's authorizing agent pursuant to subsection (A), the following may serve as an authorizing agent and may authorize a decedent's cremation:

(1) a person serving as executor or legal representative of the decedent's estate and acting according to the decedent's written instructions;

(2) a public administrator, medical examiner, coroner, state appointed guardian, or other public official charged with arranging the final disposition of the decedent if the decedent is indigent or if the final disposition is the responsibility of the State or an instrumentality of the State.

(C) Unless all persons of equal priority, as provided for in subsection (A), agree to authorize cremation, a decedent may not be cremated.

(D) If one person among others of equal priority, as provided for in subsection (A), wishes to revoke a preneed cremation authorization, the preneed cremation authorization is revoked.

(E) Notwithstanding the provisions of this section or any other provision of law, no decedent may be cremated if the decedent left instructions that they do not wish to be cremated.

Section 32-8-325. (A) A crematory authority shall not cremate human remains until it has received all of the following:

(1) A certified copy of the death certificate; however, if the decedent was pronounced dead during hours the department was not open to the public, a completed copy of the death certificate, excluding the signature of the State Registrar of Vital Statistics, signed by the attending physician must be provided to the crematory authority; the death certificate signed by the registrar must be filed the next working day of the department and a certified copy must be provided to the crematory authority.

(2) A cremation authorization on a form prescribed by the board and executed by the decedent on a preneed basis or executed by the authorizing agent and which contains:

(a) the identity of the human remains and the date and time of death;

(b) the name of the funeral director or funeral establishment responsible for obtaining the authorization;

(c) the notification of infectious, contagious, or communicable disease or a disease declared by the department to be dangerous to the public health;

(d) the name, address, and phone number of the authorizing agent and the relationship between the authorizing agent and the decedent;

(e) a statement that the authorizing agent has the right to authorize the cremation of the decedent, as provided for in Section 32-8-320 and that the authorizing agent is not aware of a person who has a superior priority right to that of the authorizing agent or is not aware of a person of equal priority who disagrees with authorizing the cremation;

(f) authorization from the authorizing agent and the funeral director or funeral establishment for the crematory authority to perform the cremation;

(g) a statement that the human remains do not contain a pacemaker or any other material or implant that may be hazardous or cause damage to the cremation chamber or the person performing the cremation;

(h) the name of the authorizing agent, the authorizing agent's designee, or funeral establishment authorized to receive the cremated remains;

(i) the method by which disposition of the cremated remains is to take place, if known. If the authorization form does not specify final disposition in a grave, crypt, niche, or scattering area, the form may indicate that the cremated remains are to be held by the crematory authority for thirty days before they are released, unless they are picked up by or shipped to the authorizing agent, the authorizing agent's designee, or funeral director before that time. At the end of thirty days, if final disposition arrangements have not been made, the crematory authority may return the cremated remains to the authorizing agent, designee, or funeral director. If at the end of sixty days no final disposition arrangements have been made, the crematory authority may dispose of the cremated remains in accordance with Section 32-8-345(D);

(j) a listing of items of value to be delivered to the crematory authority with the human remains and instructions as to how the items should be handled;

(k) a specific statement authorizing the crematory authority to proceed with the cremation upon receipt of the human remains;

(l) the signature of the authorizing agent attesting to the accuracy of all statements contained on the cremation authorization form, except as set forth in subitem (m);

(m) if a cremation authorization form is being executed on a preneed basis, the cremation authorization form shall contain the disclosure required by subsection 32-8-315(B).

(3) Completed and executed burial transit permit in accordance with Regulation 61-19, Section 23.

(4) A cremation permit obtained in accordance with Section 17-5-310 or 17-5-320 .

(B) If a person who may serve as an authorizing agent pursuant to Section 32-8-320 is not available in person to execute a cremation authorization form, the authorizing agent shall send the funeral director a notarized facsimile transmission that contains the authorizing agent's signature, name, address, phone number and relationship to the decedent. Upon receipt of the transmission, this person is authorized to serve as the authorizing agent.

(C) An authorizing agent who signs a cremation authorization form is deemed to warrant the truthfulness of the facts set forth on the form, including that person's authority to order the cremation. An authorizing agent signing a cremation authorization form is personally and individually liable for all damages occasioned by and resulting from authorizing the cremation.

(D) No crematory authority which cremated, released, or disposed of human remains is liable if the authority acted in accordance with this chapter except for the crematory authority's gross negligence.

(E) After an authorizing agent has executed a cremation authorization form, the authorizing agent may revoke the authorization and instruct the funeral director to instruct the crematory authority to cancel the cremation. The instructions must be provided in writing. A funeral director and crematory authority shall honor instructions given to it by an authorizing agent under this subsection if it receives the instructions before beginning the cremation of the human remains.

SECTION 32-8-330. (A) The crematory authority shall furnish to the person who delivers human remains to the crematory authority a receipt as prescribed by the board signed by the crematory authority or representative and the person who delivers the human remains. It must show the name of the decedent, the date and time of delivery, type casket or alternative container that was delivered, name of the person from whom the human remains were received, and the funeral establishment with whom the person is affiliated, and the name of the person who received the human remains on behalf of the crematory authority.

(B) The crematory authority shall retain in its permanent records the signature and name of the representative of a funeral establishment or the signature and name of the authorizing agent or designee who received the cremated remains. It must show the name of the deceased, the date and time of the release, and the name of the representative of the crematory authority who released the cremated remains. If the release was to the United States Post Office, the crematory authority shall retain the return receipt requested card.

(C) A crematory authority shall maintain at its place of business a permanent record of each cremation that took place at its facility. The record shall contain the name of the decedent, the date of the cremation, and the final disposition of the cremated remains, if known.

(D) The crematory authority shall maintain a record of all cremated remains disposed of by the crematory authority.

(E) Upon completion of the cremation, the crematory authority shall file the burial transit permit in accordance with department regulation 61-19, Section 23 and provide a cremation certificate, a photocopy of the burial transit permit, and the cremated remains.

(F) All cemeteries shall maintain a record of all cremated remains that are disposed of on their property.

Section 32-8-335. (A) A crematory authority and funeral director may require an authorizing agent to purchase an alternative container to contain the human remains before cremation but may not require the authorizing agent to purchase a casket before cremation for viewing or the actual cremation.

(B) No crematory authority may accept human remains from a funeral director unless the remains are delivered in a casket, cremation casket, or an alternative container unless the funeral director has made arrangements with the crematory authority to provide the casket, cremation casket, or an alternative container before cremation. Only a licensed crematory may perform cremations of human remains in this State and only a licensed funeral director or a funeral establishment may sell preneed and at-need merchandise.

Section 32-8-340. (A) Human remains may not be cremated before twenty-four hours have elapsed from the time of death as indicated on the attending physician's, medical examiner's, or coroner's certificate of death. However, if it is known that the decedent had an infectious or dangerous disease and if the time requirement is waived in writing by the attending physician, medical examiner, or coroner in the county in which the death occurred, the remains may be cremated before twenty-four hours have elapsed.

(B) No crematory authority shall cremate human remains when the authority has actual knowledge that human remains contain a pacemaker or other material or implant that may be potentially hazardous to the person performing the cremation.

(C) No crematory authority shall refuse to accept human remains for cremation because the remains are not embalmed.

(D) If a crematory authority is unable or unauthorized to cremate human remains immediately upon taking custody of the remains, the crematory authority shall place the human remains in a holding facility which may be located in a cremation room. Access to a holding facility must be limited to authorized persons and must be constructed and maintained to preserve the health and safety of the crematory authority personnel.

(E) The casket, cremation casket, or alternative container must be cremated with the human remains or destroyed unless the crematory authority has notified the authorizing agent to the contrary on the cremation authorization form and obtained the written consent of the

authorizing agent.

(F) No crematory authority may simultaneously cremate the human remains of more than one person within the same cremation chamber without the prior written consent of the authorizing agent. However, nothing in this subsection prevents the simultaneous cremation within the same cremation chamber of body parts that have been used for anatomical study delivered by the Medical University of South Carolina or from duly licensed hospitals or medical facilities in this State to the crematory authority from multiple sources or the use of cremation equipment that contains more than one cremation chamber.

(G) A crematory authority may not remove dental gold, body parts, organs, or any item of value before a cremation without previously having received specific written authorization from the authorizing agent and written instructions on the delivery of these items to the authorizing agent. A crematory authority may not profit from making or assisting in removal of valuables.

(H) Upon the completion of a cremation, and insofar as is commercially reasonable, the cremated remains and foreign matter of the cremation process must be removed from the cremation chamber and devices used to process cremated remains. Foreign matter must be disposed of as indicated on the authorization form signed by the authorizing agent and particulates and ambient dust must be governed by the department.

(I) If all of the recovered cremated remains do not fit within the receptacle that has been selected, the remainder of the cremated remains must be returned in a separate container to the authorizing agent or the agent's designee. The crematory authority may not return to an authorizing agent or an authorizing agent's designee more or less cremated remains than were removed from the cremation chamber.

(J) A crematory authority may not knowingly represent to an authorizing agent or an authorizing agent's designee that a temporary container or an urn contains the cremated remains of a specific decedent when it does not.

(K) A crematory authority shall maintain an identification system that ensures identification of the human remains while in the authority's possession throughout all phases of the cremation process.

Section 32-8-345. (A) The authorizing agent and licensed funeral director are responsible for the final disposition of the cremated remains.

(B) Cremated remains may be disposed of by placing in a grave, crypt, niche, by scattering them in a scattering area, or in any manner on the private property of a consenting owner. If cremated remains are disposed of on public lands or water, all state and federal laws apply.

(C) Upon completion of the cremation process, if the crematory authority has not been instructed to arrange for the mailing, interment, inurnment, or scattering of the cremated remains, the crematory authority shall deliver in person or mail the cremated remains to the designee specified on the cremation autorization form. If no designee is specified, the cremated remains must be delivered in person or mailed to the authorizing agent. The cremated remains must be delivered in person or delivered to the United States Post Office to be sent by registered and return receipt requested mail. Upon receipt of the cremated remains accompanied by a photocopy of the Burial Transit Permit and Cremation Certificate, the individual receiving them may transport and dispose of them in any manner in accordance with this section. After delivery in person or to the United States Post Office, the crematory authority is discharged from any legal obligation or liability concerning the cremated remains.

(D) If after a period of sixty days from the date of cremation the authorizing agent or an authorizing agent's designee has not instructed the funeral director or crematory authority to arrange for final disposition of the cremated remains or claimed the cremated remains, the funeral director or crematory authority may dispose of the cremated remains in any manner permitted by this section. The funeral director or crematory authority shall keep a permanent record identifying the site of final disposition. The authorizing agent is responsible for reimbursing all expenses incurred in disposing of the cremated remains. Upon disposing the cremated remains, the funeral director or crematory authority is discharged from any legal obligation or liability concerning the cremated remains. A funeral director or crematory authority in possession of remains cremated before July 1, 1994, may dispose of them in accordance with this section.

(E) Except with the express written permission of the authorizing agent, no person may:

(1) dispose of cremated remains in a manner or in a location so that the cremated remains are commingled with those of another. This does not apply to the scattering of cremated remains at sea, by air, or in an area located in a dedicated cemetery and used exclusively for the purpose of disposing of cremated remains;

(2) place cremated remains of more than one person in the same temporary container or urn.

Section 32-8-350. (A) A crematory authority is not liable for damages arising from cremating the human remains designated by a cremation authorization form if the form complies with Section 32-8-325 and if the cremation is performed in accordance with this chapter.

(B) A crematory authority is not liable for damages resulting from refusing to accept or cremate human remains or refusing to release or dispose of cremated remains if the authority is aware of a dispute concerning the remains or if the authority has a reasonable basis for questioning a statement or representation made by the authorizing agent.

(C) A crematory authority is not responsible or liable for valuables delivered with the human remains unless the crematory authority has received written instructions in accordance with Section 32-8-325(A)(2)(j).

(D) No cemetery is liable for cremated remains that are dumped, scattered, or otherwise deposited on the cemetery in violation of this article, if that action is taken without the cemetery's consent.

Section 32-8-355. If an authorizing agent informs the funeral director on the cremation authorization form of the presence of a pacemaker in the human remains, the funeral director must ensure that all necessary steps have been taken to remove the pacemaker before delivering the human remains to the crematory authority. If the funeral director who delivers the human remains to the crematory fails to ensure that the pacemaker has been removed before delivery and if the remains are cremated with the pacemaker, the funeral director who delivered the human remains to the crematory is liable for all resulting damages.

Section 32-8-360. (A) The board may refuse to issue or renew the license or may suspend or revoke the license of a funeral director or embalmer who violates a provision of this chapter.

(B) A person who violates a provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars or more than two thousand five hundred dollars or imprisoned not more than one year, or both.

Section 32-8-365. Solicitations under this article are governed by Sections 32-7-90 and 40-19-180.

Section 32-8-370. This article must be construed and interpreted as a comprehensive cremation statute, and the provisions of the article take precedence over any existing laws containing provisions applicable to cremation but that do not specifically or comprehensively address cremation."

SECTION 2. The 1976 Code is amended by adding:

"Section 17-5-305. If the body of a dead person is unidentifiable, the remains may not be cremated. The medical examiner or coroner shall have the remains buried or interred in a cemetery in the county in which the remains were found."

SECTION 3. Section 17-5-310 of the 1976 Code is amended to read:

"Section 17-5-310. When the body of any dead person who died in the county is to be cremated, whoever required the cremation shall secure a permit for such the cremation from the county medical examiner or his the examiner's deputy or the coroner, and any such a person who shall wilfully fail fails to secure such a permit for cremation is guilty of a misdemeanor and, upon conviction, must shall be fined not less than twenty dollars and not more than five hundred dollars. Such A permit for cremation shall promptly must be promptly acted upon by the county medical examiner or his the examiner's deputy or the coroner."

SECTION 4. Section 17-5-320 of the 1976 Code is amended to read:

"Section 17-5-320. If in any a case of sudden, violent, or suspicious death the body is buried without any an investigation by the county medical examiner or by his the examiner's deputy medical examiner or by the coroner, it shall be the duty of any a person having knowledge of this fact to shall notify the coroner or the county medical examiner."

SECTION 5. This act takes effect July 1, 1994.