| (a) Purpose. The purpose of this section is to implement
Texas Occupations Code Chapter 651, 76th Legislature, 1999, and Health
and Safety Code Chapters 193 and 195. In an effort to better protect
the public health, safety and welfare, it is the legislative intent
of the laws of the Texas Department of State Health Services (Department)
and the Texas Funeral Service Commission (TFSC) to adopt by rule a
memorandum of understanding to facilitate cooperation between the
agencies by establishing joint procedures and describing the actual
duties of each agency for the referral, investigation, and resolution
of complaints affecting the administration and enforcement of state
laws relating to vital statistics and the licensing of funeral directors
and funeral establishments.
(b) Scope.
(1) The Memorandum of Understanding (MOU) includes
the respective responsibilities of the Department and the TFSC in
regulating any person or entity under the Health and Safety Code Chapters
193 and 195, concerning the completion and filing of death records.
(2) The Department and the TFSC will implement the
cooperative procedure described in this memorandum to refer complaints
to the other agency when that complaint falls within the other agency's
jurisdiction or may have an effect on the administration and enforcement
of the law for which the other agency is responsible.
(3) The Department and the TFSC will implement the
cooperative procedure described in this MOU in order to notify the
other agency of violations of Health and Safety Code Chapters 193
and 195; and Texas Occupations Code Chapter 651 by funeral directors
and funeral establishments, and to assist and encourage funeral directors,
embalmers, and funeral establishments to conform their activities
relating to the completion and filing of death records.
(4) The MOU does not limit the authority of either
agency, acting in its own capacity under state or federal law, to
investigate complaints that fall within that agency's statutory jurisdiction.
(c) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Agency--Texas Department of State Health Services
or the Texas Funeral Service Commission.
(2) Death record--A report of death, death certificate,
or a burial-transit permit, and such other forms as the Texas Department
of State Health Services determine to be necessary.
(3) Department--The Texas Department of State Health
Services or any local registrar.
(4) Funeral Director--A person who for compensation
engages in or conducts, or who holds himself out as being engaged,
for compensation, in preparing, other than the embalming, for the
burial or disposition of dead human bodies, and maintaining or operating
a funeral establishment for the preparation and disposition, or for
the care of dead human bodies.
(5) Funeral establishment--A place of business used
in the care and preparation for burial or transportation of dead human
bodies, or any other place where one or more persons, either as sole
owner, in co-partnership, or through corporate status, represent themselves
to be engaged in the business of embalming and/or funeral directing,
or is so engaged.
(6) Local registrar--
(A) The justice of the peace is a local registrar of
births and deaths in a justice of the peace precinct. However, the
duty of registering births and deaths may be transferred to the county
clerk if the justice of the peace and the county clerk agree in writing
and the agreement is ratified by the commissioners court.
(B) The municipal clerk or secretary is the local registrar
of births and deaths in a municipality with a population of 2,500
or more.
(C) If a local registrar fails or refuses to register
each birth and death in the district or neglects duties, the county
judge or the mayor, as appropriate, shall appoint a new local registrar
and shall send the name and mailing address of the appointee to the
state registrar.
(7) Person--
(A) includes corporation, organization, government,
or governmental subdivision or agency, business trust, estate, trust,
partnership, association, and any other legal entity; or
(B) includes individual, corporation, or association
where enforcement of Health and Safety Code Chapter 195 is involved.
(8) Physician--Any individual licensed by the Texas
Medical Board to practice medicine in this state.
(d) Delegation of responsibilities. The Department
and TFSC agree that the agencies shall have the following responsibilities.
(1) The Department shall have primary responsibility
for the enforcement of the laws, rules, and policies governing the
collection and maintenance of a system of vital statistics, including
the collection and maintenance of death records for the State of Texas.
Except as may be otherwise provided by law, the Department shall:
(A) design the format and prescribe the data to be
entered on all forms that constitute the death records of the state;
(B) prescribe the rules and procedures to be followed
by a funeral director licensed by TFSC in executing his/her responsibility
to secure the required data and file the completed death record;
(C) establish rules or policies to determine when a
local registrar may accept the filing of a death record by a funeral
director or the funeral director's designee and the purposes for which
each record may be used, including the filing and uses of a delayed
death certificate; and
(D) enforce the provisions of the Health & Safety
Code (Code) Chapter 193, in accordance with Chapter 195 of the Code
relating to criminal penalties for violations of laws relating to
vital statistics. These laws include Chapters 191, 192, and 193 of
the Code and rules adopted thereunder. If the state registrar knows
or suspects that a funeral director or a funeral establishment has
violated the provisions of §195.003 or other provisions of Title
3 of the Code, he or she shall report the violation to the appropriate
district or county attorney for prosecution.
(2) The Texas Funeral Service Commission (TFSC) shall
have primary responsibility for the enforcement of the laws, rules,
and policies governing the licensing of funeral directors, embalmers,
funeral and commercial embalming establishments. Except as may be
otherwise provided by law, the TFSC has authority:
(A) to inspect a funeral establishment for violations
of Chapter 193 of the Code; and
(B) to assess an administrative penalty or to reprimand,
revoke, suspend, probate, deny or impose any combination of sanctions
against a licensee in accordance with Texas Occupations Code Chapter
651, if the licensee has violated Chapter 193 or 195 of the Code or
25 TAC Chapter 181 of the Department rules;
(3) Referral, investigation, and resolution of complaint.
(A) If the Department receives a complaint that alleges
conduct by a funeral director or a funeral establishment that constitutes
possible violations of Texas Occupations Code Chapter 651, or the
rules adopted by TFSC under authority of Texas Occupations Code Chapter
651, the Department may refer the complaint to the TFSC for investigation
and disposition; however, if the complaint describes conduct by any
person or entity licensed under Texas Occupations Code Chapter 651
that constitutes possible violations of Chapters 193 and 195 of the
Code, the Department shall retain jurisdiction over the subject matter
of the complaint, investigate the complaint, and if valid, shall file
a complaint with TFSC; or the Department or any local vital statistics
registrar may refer the complaint to TFSC for investigation and adjudication.
(B) If TFSC receives a complaint that alleges conduct
by any person that constitutes possible violations of Title 3 of the
Code, TFSC shall immediately notify the Department of the complaint
for any appropriate action by the Department.
(C) If either agency receives a complaint that alleges
facts that constitute a violation of any other law, the complaint
shall be referred to the appropriate state administrative agency or
state or local law enforcement agency.
(D) Each agency shall appoint at least one person to
an interagency team that will meet at least biannually and at that
time review each unresolved complaint that affects the agencies jointly.
(i) If the complaint has not been referred for investigation
and resolution, the team will refer the complaint to the Department,
TFSC, or other appropriate state administrative or law enforcement
agency, including the State Board of Medical Examiners, or local law
enforcement agency.
Cont'd... |
