S 1191 Session 110 (1993-1994)
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:
"Chapter 8
Cremation Authorizations and Procedures
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
cremat ion 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.
-----XX----- |