Policy #08-02

August 19, 2008

Purpose

The purpose of this policy is address invalid establishment certificates.

Policy

The Board will open a formal complaint if it learns of a funeral home operating under an invalid establishment certificate (e.g. one issued to the previous owner). The establishment will be offered an opportunity to cure the deficiency by filing a complete application for an establishment certificate within thirty (30) days. The establishment will also be offered the opportunity to resolve the complaint short of a formal hearing by paying a one thousand ($1,000.00) dollar fine for unlicensed practice. Continued operation of the establishment thirty (30) days from the date that the consent agreement was sent to the operator of the establishment without filing an application for an establishment certificate will be treated as a subsequent violation of the unlicensed practice statute. A subsequent violation may also provide a basis for denial of an application for an establishment certificate filed on an untimely basis. In cases of death or incapacity of an owner, the estate or guardian shall be allowed thirty (30) days to notify the Board of the death or incapacity prior to the opening of a complaint. Thereafter, the new owner shall be afforded a reasonable time (based on the circumstances surrounding the death or incapacity) to file a complete application for an establishment certificate.

Discussion

Pursuant to M.G.L. c. 112, s. 83: "[t]he profession of funeral directing shall be conducted or practiced at a fixed place or establishment, and no person, partnership, corporation, association or other organization shall open or maintain a place or establishment at which to practice such profession unless an establishment certificate has been granted by said board. ... An establishment's certificate shall remain in force indefinitely unless revoked by the board or until there has been a change in the ownership of the establishment, which shall automatically cancel said certificate." (emphasis added)

It is the Board's position that operating with an expired/lapsed establishment certificate is unlicensed practice. Pursuant to M.G.L. c. 112, s. 65A, "each board of registration under the supervision of the division of professional licensure ... may, after a consent agreement between the parties or after an opportunity for an adjudicatory proceeding held pursuant to chapter 30A, assess and collect a civil administrative penalty not to exceed $1,000 for the first violation and a civil administrative penalty not to exceed $2,500 for a second or subsequent violation upon a person who, without holding the required license, certificate, registration or authority, engages in the practice of a trade or profession for which a license, certificate, registration or authority is required."