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VOLUME 39, ISSUE 9
Issue Date: MAY 7, 2007
RULE PROPOSALS

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF MORTUARY SCIENCE OF NEW JERSEY

Proposed New Rule: N.J.A.C. 13:36-5.19

Click here to view Interested Persons Statement

Use of Registered Mortuary in Organ and Tissue Recovery

Authorized By: State Board of Mortuary Science of New Jersey, William Mandeville, Executive Director.
Authority: N.J.S.A. 45:7-38 and 45:1-15.1.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2007-138.
Submit comments by July 6, 2007 to:

   William Mandeville, Executive Director
   State Board of Mortuary Science of New Jersey
   124 Halsey Street
   P.O. Box 45009
   Newark, New Jersey 07101

The agency proposal follows:

Summary

The State Board of Mortuary Science of New Jersey (the Board) is proposing a new rule, N.J.A.C. 13:36-5.19, to prohibit the use of registered mortuaries as sites for the recovery of decedents' organs and/or tissues. A licensed funeral director who permits a registered mortuary to be used for such purposes will be deemed to have engaged in professional misconduct and will be subject to disciplinary action by the Board. The Board is proposing this new rule pursuant to its statutory authority, set forth at N.J.S.A. 45:7-38, to promulgate rules to promote appropriate practice standards for its licensees and to preserve and improve the health, safety and welfare of the general public.

The Board began a review of this issue following the publication of numerous stories in the national media concerning the recovery of tissue from decedents whose families had not consented to such donations. Some of these recoveries were alleged to have occurred in funeral homes, or to have been facilitated by funeral directors. The Board believes that the proposed new rule is necessary because of the public concern with respect to what role, if any, a funeral home in this State may play in the organ and tissue recovery process. The Board notes that the proposed new rule does not prohibit the usual and customary practice of providing a decedent's family with a lock of the decedent's hair prior to final disposition of remains. Although hair is considered to be bodily tissue, the Board does not believe that any public health, safety and welfare concerns exist with respect to the continuation of this practice and, therefore, this practice will be permitted under the proposed new rule.

Prior to drafting the proposed new rule, the Board consulted with several groups to ensure that any regulation in this area would not have the practical effect of hindering the donation of decedents' organs and/or tissues. The Board met with representatives from the New Jersey Organ and Tissue Sharing Network (the New Jersey Sharing Network), and the Gift of Life Donor Program, who confirmed that neither the New Jersey Sharing Network, which is responsible for organ and tissue recovery in the northern regions of the State, nor the Gift of Life Donor Program, which oversees organ and tissue recovery in the southern regions of the State, permits the recovery of organs and/or tissues in funeral homes in the State. Rather, both organizations require the recovery of organs and/or tissues to be conducted in appropriately sterile and equipped medical facilities. The Board also met with a representative from the Lions Eye Bank to determine what impact, if any, the proposed new rule would have on the donation of eyes. Based on information presented to the Board by the Lions Eye Bank, it is clear that the vast majority of eye removals are performed in hospitals or other health care facilities throughout the State. In rare instances, however, when a body is prematurely removed to a funeral home, an eye enucleation may be performed in a funeral home. The total number of eye enucleations performed at funeral homes in the State on an annual basis, however, is exceedingly low.

Based on its review of information presented by such organizations, the Board is confident that the proposed new rule will have no measurable impact on the recovery of organs and/or tissues in the State. Although the proposed new rule may have some impact upon the recovery of eyes, the Board believes the impact will be very slight given the handful of eye enucleations carried out in funeral homes each year. In addition, the Board believes that the impact will be outweighed by the benefit to the general public in ensuring that the recovery of organs and/or tissues, including eyes, are performed only in appropriately equipped and sterile environments.

The Board notes that the proposed new rule creates an exception to the prohibition against recovery of organs and/or tissues in funeral homes for autopsies and other examinations conducted to determine cause and/or manner of death. The proposed new rule does not preclude the use of a registered mortuary for the purpose of conducting such examinations. Based on information received from representatives from the Northern Regional Office of the New Jersey Office of the State Medical Examiner, the Board has been made aware that some autopsies and cause of death examinations, which may require the collection of a decedent's tissues, are currently performed at funeral homes because of medical examiner facility and staffing issues. The Board believes that the exception provided in the proposed new rule will help to ensure the continuation of this important and necessary public service. The Board notes that the recovery of tissue under such circumstances does not give rise to the same public health concerns the Board believes are associated with the recovery of organs and/or tissues that ultimately may be used for transplantation purposes.

The Board has determined that the comment period for this proposal shall be 60 days. Therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Economic Impact

The Board does not believe that the proposed new rule will have any economic impact upon licensees or upon registered mortuaries in the State. To the extent that any registered mortuaries in the State have, in the past, permitted the recovery of organs and/or tissues to take place on their premises and have been financially compensated for such activities, such mortuaries will be negatively impacted by the proposed new rule. The Board believes, however, that such impact will be outweighed by the benefit to the general public in ensuring that the recovery of organs and/or tissues is performed only in appropriately equipped and sterile environments.

Federal Standards Statement

A Federal standards analysis is not required because the proposed new rule is governed by N.J.S.A. 45:7-32 et seq. The proposed new rule is not subject to any Federal requirements or standards.

Jobs Impact

The Board does not believe that the proposed new rule will result in the creation or the loss of jobs in the State.

Agriculture Industry Impact

The Board does not believe that the proposed new rule will result in the creation or the loss of jobs in the State.

Regulatory Flexibility Analysis

Currently, the Board licenses approximately 1,700 practitioners of mortuary science and registers approximately 720 mortuaries. If Board licensees and certificate of registration holders are considered "small businesses" within the meaning of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., then the following analysis applies.

The proposed new rule will not impose any reporting or recordkeeping requirements upon practitioners of mortuary science or upon the owners of registered mortuaries in the State. The proposed new rule will, however, impose compliance requirements upon both licensees and funeral home owners. Proposed new rule N.J.A.C. 13:36-5.19(a) prohibits a registered mortuary from being used as a site for organ and/or tissue recovery. A licensed funeral director who permits a registered mortuary to be used as a site for organ and/or tissue recovery will be deemed to have engaged in professional misconduct pursuant to proposed new rule N.J.A.C. 13:36-5.19(b).

No additional professional services will be needed to comply with the proposed new rule. The costs of compliance with the proposed new rule are discussed in the Economic Impact statement above. The Board believes that the proposed new rule should be uniformly applied all licensed practitioners of mortuary science and all owners of registered mortuaries in the State in order to ensure the health, safety and welfare of the general public in the provision of mortuary services and, therefore, no differing compliance requirements for any licensees or certificate of registration holders are provided based upon the size of the business.

Smart Growth Impact

The Board does not believe that the proposed new rule will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.

Full text of the proposal follows (additions indicated in boldface thus; deletion indicated in brackets [thus]):

13:36-5.19    [(Reserved)] Use of registered mortuary in organ and tissue recovery

(a) A registered mortuary shall not be used as a site for recovering organs and/or tissues from a decedent.

(b) A licensed funeral director who permits a registered mortuary to be used as a site for recovering organs and/or tissues from a decedent shall be deemed to have engaged in professional misconduct and shall be subject to disciplinary action pursuant to N.J.S.A. 45:1-21 et seq.

(c) Nothing contained in this section shall preclude the use of a registered mortuary for the purpose of conducting examinations to determine the cause and/or manner of death of a decedent.

(d) Nothing in this section shall preclude a licensed funeral director from providing a lock of the decedent's hair to a member of the decedent's immediate family prior to the final disposition of remains.

 


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