TITLE 22. EXAMINING BOARDS

PART 10. TEXAS FUNERAL SERVICE COMMISSION

CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES

SUBCHAPTER C. ENFORCEMENT

22 TAC §203.44

The Texas Funeral Service Commission (Commission) adopts amendments to Title 22 Texas Administrative Code §203.44, concerning Procedures and Criteria for Inspections of Licensed Establishments. The rule currently sets out the procedure and criteria for the inspection of funeral establishments, commercial embalming facilities, and crematories. The amendments would add cemeteries to that procedure and criteria.

The amendments to Title 22 Texas Administrative Code §203.44, concerning Procedures and Criteria for Inspections of Licensed Establishments are adopted with changes to the proposed text due to spelling corrections as published in the July 7, 2017, issue of the Texas Register (42 TexReg 3458).

No comments were received regarding the amendments.

Title 22 Texas Administrative Code §203.44, concerning Procedures and Criteria for Inspections of Licensed Establishments, is adopted under Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and Texas Occupations Code §651.157, which requires the agency to establish, by rule, procedures for inspection of a cemetery.

No other statutes, articles, or codes are affected by this adoption.

§203.44.Procedures and Criteria for Inspections of Licensed Entities.

(a) Inspection Procedures.

(1) All licensed funeral establishments, commercial embalming facilities, crematories, and cemeteries shall be inspected at least once every two years. The Commission shall give lower priority to the inspection of cemeteries.

(2) All inspections shall be unannounced.

(3) The inspector shall review prior inspection reports before inspecting a licensed entity. If prior reports reveal problems, the inspector shall determine whether the licensed entity has corrected the previously identified problems or whether a pattern of violations or new violations exist.

(4) Inspectors shall use reasonable efforts to conduct inspections between the hours of 8:00 a.m. and 5:00 p.m., but a licensed entity is required to be open at all times to inspections for violations of Occupations Code, Chapter 651, and Health and Safety Code, Chapters 193, 361, 711, 714, 715 and 716.

(5) If a licensed entity is not open for business during regular business hours and an inspector is unable to contact any employee or owner to open the licensed entity to conduct the inspection, the inspector shall notify the licensed entity by mail of the attempted inspection. If a licensed entity is unavailable for inspection during regular business hours twice during a six month period, the Commission may file a complaint against the licensed entity, making the licensed entity subject to an administrative penalty or other action.

(b) Criteria for Risk-Based Inspections.

(1) If the Commission previously found violations of Occupations Code, Chapter 651, and Health and Safety Code, Chapters 193, 361, 711, 714, 715 and 716, following a biennial inspection, a licensed entity shall be inspected annually until it is free of all violations.

(2) Licensed entities that have received a reprimand or letter of warning, that have been assessed administrative penalties, that have had licenses suspended, or that have received a letter ordering the licensed entity to cease and desist for violations of Occupations Code, Chapter 651, or Rules of the Commission are subject to inspection at anytime within three years following the date that the Commission's action became final.

(3) If the Commission is in the process of conducting an investigation of a licensed entity, staff may inspect the licensed entity for the limited purpose of proving or disproving the validity of the complaint. The scope of inspections under this paragraph shall be limited to matters relating to the subject of the complaint.

(c) Notwithstanding subsection (a)(1) of this section, a cemetery may not be inspected unless an interment has occurred in the cemetery within the two years preceding the inspection or the Commission has received a complaint about the cemetery.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 15, 2017.

TRD-201703648

Janice McCoy

Executive Director

Texas Funeral Service Commission

Effective date: October 5, 2017

Proposal publication date: July 7, 2017

For further information, please call: (512) 936-2469