LRB-1054/1
MDK:cjs:ch
2003 - 2004 LEGISLATURE
October 8, 2003 - Introduced by Senators Roessler, Leibham, Schultz, Risser,
Lazich, Lassa, Breske and Cowles, cosponsored by Representatives Kerkman,
Hines, Ladwig, Albers, Bies, Freese, Gronemus, Hahn, Hundertmark,
Kestell, Krawczyk, M. Lehman, Montgomery, Nass, Olsen, Ott, Owens,
Seratti, Stone, Van Roy and Vrakas. Referred to Committee on Labor, Small
Business Development and Consumer Affairs.
SB274,1,4
1An Act to amend 157.055 (2) (intro.); and
to create 15.407 (8), 440.08 (2) (a)
224m. and subchapter VI of chapter 440 [precedes 440.70] of the statutes;
3relating to: regulating the cremation of human remains, creating a Crematory
4Authority Council, granting rule-making authority, and providing penalties.
Analysis by the Legislative Reference Bureau
This bill creates requirements for authorizing the cremation of human remains,
conducting cremations, and disposing of cremated human remains. The bill requires
the Department of Regulation and Licensing (DRL) to carry out regulatory duties
regarding cremations.
Authorizing the cremation of human remains. Under the bill, only the
following persons are allowed to authorize the cremation of the human remains of
a decedent: 1) The decedent's surviving spouse may authorize the cremation; 2) If
the surviving spouse declines to authorize cremation but does not object to
cremation, or if he or she is incapacitated, any one of the decedent's surviving adult
children may authorize the cremation, unless another surviving adult child objects
in writing to the cremation; 3) If all of the foregoing persons decline to authorize
cremation and do not object, or if they are incapacitated, a surviving parent may
authorize cremation, unless another surviving parent objects in writing; 4) If all of
the foregoing persons decline to authorize cremation and do not object, or if they are
incapacitated, a surviving person related in the closest degree of kinship to the
decedent may authorize cremation, unless another person of the same degree of
kinship objects in writing; and 5) If all of the foregoing persons decline to authorize
cremation and do not object, or they are incapacitated, any other person may
authorize cremation.
In addition, if a decedent's estate is not sufficient to pay the expenses related
to the final disposition of the decedent's human remains, or if final disposition is the
responsibility of the state or a local unit of government, the bill allows the following
to authorize cremation: 1) the coroner or medical examiner of the county in which the
death occurred; or 2) the decedent's guardian at the time of death. However, a
coroner, medical examiner, or guardian may not authorize cremation if any person
in the first four categories described above objects in writing or states in writing that
cremation was contrary to the decedent's religious beliefs. Also, a coroner, medical
examiner, or guardian may not authorize cremation if a person that owns or operates
a crematory, which the bill defines as a "crematory authority," determines that there
is other evidence that cremation was contrary to the decedent's religious beliefs.
A person who is allowed to authorize the cremation of human remains, whom
the bill defines as an "authorizing agent," may exercise that authority only by
completing an authorization form. The form must state that the authorizing agent
has no reason to believe that the decedent's remains contain any device that may be
hazardous or cause certain damage during the cremation. The form must also
identify the funeral director, funeral establishment, or cemetery that the authorizing
agent authorizes to receive the cremated remains. If alternative arrangements are
made for receiving the cremated remains, the form must describe the arrangements.
In addition, the form must contain other information, including the following: 1) if
known by the authorizing agent, the manner in which the cremated remains are to
be disposed; 2) an itemized list of any valuables on the decedent's person that must
be removed prior to cremation and returned to the authorizing agent; and 3) if a
viewing or other services are planned, the date and time of the viewing or services.
The bill allows an authorizing agent to delegate, in writing, the authority to
authorize cremation to another individual. In addition, the bill allows an
authorizing agent to cancel a cremation by providing the crematory authority with
a written revocation of an authorization form and with written instructions
regarding the final disposition of the human remains. Also, the bill provides that an
authorizing agent is liable for any damages resulting from authorizing a cremation.
Conducting cremations. The bill allows only persons who are registered with
DRL as "cremation authorities" to cremate human remains. DRL must register a
person who pays a fee, and provides specified information, including a description
of the structure and equipment proposed to be used in operating a "crematory," which
the bill defines as a building or portion of a building within which a cremation
chamber is located. A registration must be renewed every two years.
The bill requires a crematory authority that accepts human remains from a
person to provide the person with a receipt. The bill allows a crematory authority
to refuse acceptance for any of the following reasons: 1) the container has evidence
of leakage of bodily fluids; 2) the crematory authority has knowledge of an unresolved
dispute regarding the cremation of the human remains; 3) the crematory authority
has reason to believe that a representation of the authorizing agent is not true; or
4) the crematory authority has reason to believe that the human remains contain a
device that may be hazardous or cause certain damage during a cremation. In
addition, the bill prohibits a crematory authority from refusing acceptance solely on
the basis that the human remains have not been placed in a casket or have not been
embalmed.
The bill prohibits a crematory authority from cremating human remains,
unless it has received the authorization form described above, as well as a copy of a
cremation permit and a report for final disposition of a human corpse that are
required under current law. In addition, the crematory authority must satisfy other
requirements, including requirements regarding holding human remains before
cremation, removing cremated remains from a cremation chamber, using containers
for cremated remains, and maintaining a system for identifying human remains
throughout the cremation process. The bill also imposes requirements on a
crematory authority's delivery of cremated remains to another person.
In addition, the bill does the following: 1) requires crematory authorities to
maintain permanent records regarding cremations; 2) prohibits crematory
authorities from selling material or devices (such as medical devices) obtained from
cremating human remains; and 3) prohibits crematory authorities from reselling
containers used for cremating human remains. The bill also provides that crematory
authorities are immune from civil liability for damages resulting from cremating
human remains if they comply with the bill's requirements. However, the immunity
does not apply to intentional misconduct, negligent conduct, or the failure to return
valuables specified on an authorization form.
Disposing of cremated remains. The bill provides that an authorizing agent
is responsible for determining the manner in which cremated remains are disposed.
However, if the authorizing agent does not make the determination, the crematory
authority must, no sooner than 30 days after the cremation, deliver the cremated
remains to the person, funeral establishment, or other business entity that delivered
the human remains to the crematory authority for cremation. Such a person, funeral
establishment, or business entity may not refuse to accept the cremated remains.
No sooner than 60 days after receiving the cremated remains, the person, funeral
establishment, or business entity is allowed to determine the manner of disposal and
must make a written record of the determination. An authorizing agent, the
decedent's estate, or both, are liable for any reasonable expenses for delivery to, and
disposal of cremated remains by, such a person, funeral establishment, or business
entity.
Under the bill, cremated remains may be disposed of only in one of the following
manners: 1) placement in a grave, niche, or crypt; or 2) any other lawful manner, but
only if the cremated remains are reduced to a particle size of one-eighth inch or less.
Also, unless the prior written consent of the appropriate authorizing agents is
obtained, cremated remains of different individuals may not be commingled or
placed in the same container.
Other provisions. Other provisions of the bill include the following:
1. The bill allows DRL to take disciplinary action, including revoking a
registration, if a crematory authority violates the bill's requirements.
2. The bill creates criminal penalties and civil forfeitures for violating the bill's
requirements.
3. The bill allows a person to act as authorizing agent for cremating a part of
his or her body, or to authorize another person to act as authorizing agent for such
a purpose.
4. The bill specifies the circumstances under which a person is considered
incapacitated for purposes of determining who may act as an authorizing agent.
5. The bill creates a Crematory Authority Council to advise DRL on the
regulation of crematory authorities. The council consists of three funeral directors,
three representatives of cemetery authorities, and one public member.
The bill does not affect any of the following provisions under current law
regarding cremations: 1) the requirement to obtain a permit from a coroner or
medical examiner before cremating a corpse; 2) the authority of the Department of
Health and Family Services to make orders regarding the disposal of human remains
during public health emergencies declared by the governor; and 3) the authority of
the Department of Commerce to approve the construction of crematoriums.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB274, s. 1
1Section
1. 15.407 (8) of the statutes is created to read:
SB274,4,52
15.407
(8) Crematory authority council. There is created a crematory
3authority council in the department of regulation and licensing consisting of the
4secretary of regulation and licensing or a designee of the secretary, who shall serve
5as a nonvoting member, and the following persons appointed for 3-year terms:
SB274,4,76
(a) Three persons licensed as funeral directors under ch. 445 who operate
7crematories.
SB274,4,98
(b) Three representatives of cemetery authorities, as defined in s. 157.061 (2),
9who operate crematories.
SB274,4,1010
(c) One public member.
SB274, s. 2
1Section
2. 157.055 (2) (intro.) of the statutes is amended to read:
SB274,5,52
157.055
(2) (intro.) Notwithstanding ss. 69.18 (4), 445.04 (2), 445.14, 979.01 (3),
3(3m), and (4), 979.02, and 979.10
, and subch. VI of ch. 440, during a period of a state
4of emergency related to public health declared by the governor under s. 166.03 (1) (b)
51., a public health authority may do all of the following:
SB274, s. 3
6Section
3. 440.08 (2) (a) 24m. of the statutes is created to read:
SB274,5,87
440.08
(2) (a) 24m. Crematory authority: January 1 of each even-numbered
8year; $53.
SB274, s. 4
9Section
4. Subchapter VI of chapter 440 [precedes 440.70] of the statutes is
10created to read:
SB274,5,1312
subchapter VI
13
crematory authorities
SB274,5,14
14440.70 Definitions. As used in this subchapter:
SB274,5,15
15(1) "Authorization form" means a form specified in s. 440.73.
SB274,5,17
16(2) "Authorizing agent" means an individual who acts as an authorizing agent
17under s. 440.72 or to whom a delegation of authority is made under s. 440.74.
SB274,5,18
18(3) "Business entity" has the meaning given in s. 452.01 (3j).
SB274,5,20
19(4) "Columbarium" means a building, structure, or part of a building or
20structure that is used or intended to be used for the inurnment of cremated remains.
SB274,5,23
21(5) "Cremated remains" means all human remains recovered from the
22cremation of a human body or body part and the residue of any container or foreign
23materials that were cremated with the body or body part.
SB274,5,25
24(6) "Cremation" means the process of using heat to reduce human remains to
25bone fragments and includes processing or pulverizing the bone fragments.
SB274,6,2
1(7) "Cremation chamber" means an enclosed space within which cremation
2takes place.
SB274,6,4
3(8) "Crematory" means a building or portion of a building within which a
4cremation chamber is located.
SB274,6,5
5(9) "Crematory authority" means a person who own or operates a crematory.
SB274,6,6
6(10) "Funeral director" has the meaning given in s. 445.01 (5).
SB274,6,7
7(11) "Funeral establishment" has the meaning given in s. 445.01 (6).
SB274,6,9
8(12) "Human remains" means the body or part of the body of a deceased
9individual.
SB274,6,11
10(13) "Incapacitated" means unable to receive and evaluate information
11effectively or to communicate decisions.
SB274,6,13
12(14) "Niche" means a space in a columbarium that is used or intended to be used
13for the inurnment of cremated remains.
SB274,6,16
14440.71 Registration; renewal. (1)
Prohibition. No person may cremate
15human remains unless the department has registered the person as a crematory
16authority under sub. (2).
SB274,6,18
17(2) Registration. The department shall register a person as a crematory
18authority if the person does all of the following:
SB274,6,1919
(a) Pays the fee specified in s. 440.05 (1).
SB274,6,2120
(b) Submits an application on a form provided by the department that includes
21each of the following:
SB274,6,2322
1. The name and address of the applicant or the business entity that the
23applicant represents.
SB274,6,2424
2. The address of the crematory.