In the Matter of the Challenge of the New Jersey State Funeral Directors Association to Amendments N.J.A.C. 13:36-4.9(c); 13:36-5.17(c) and 13:36-5.18(a), A-0177-11T2; Appellate Division; opinion by Grall, J.A.D.; decided and approved for publication July 26, 2012. Before Judges Grall, Alvarez and Skillman. On appeal from the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Mortuary Science. DDS No. 01-2-7155 [21 pp.]

The New Jersey State Funeral Directors Association Inc. challenges amendments to N.J.A.C. 13:36-4.9(c), 13:36-5.17(c) and 13:36-5.18(a), adopted by the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Mortuary Science. The amendments were proposed to “clarify a registered mortuary’s responsibilities with respect to the participation of unlicensed persons in the removal and preparation of bodies for disposition.” The responsibility is to “ensure” that unlicensed persons follow “universal precautions” as set forth in N.J.A.C. 13:36-6.4 and “comply with applicable Board rules concerning the handling of human remains.” The board proposed the amendments to protect the public health by preventing the spread of infection and disease.

The association’s challenges are to the board’s authority to adopt the regulations affecting unlicensed persons by obligating licensed persons to “ensure” their compliance with the board’s rules. The association contends that the amendments are unconstitutional because they extend the board’s regulatory authority beyond that granted to it by the Legislature under the mortuary science act; the amendments are arbitrary and unreasonable because it is impossible for the registered mortuary to comply with the obligation imposed; and the amendments are invalid because they are unconstitutionally vague.

Held: The amendments adopted by the State Board of Mortuary Science do not exceed its regulatory authority, and are not unconstitutionally vague or arbitrary and unreasonable.

The Legislature charged the board with regulatory responsibility for “mortuary science” and defined that term to include both “embalming and funeral directing.” The board’s regulations generally bar unlicensed persons from participating in mortuary science, but there are exceptions stated in N.J.A.C. 13:36-4.9, titled “Participation of unlicensed persons.”

The amendments to which the association objects address its members’ responsibility for unlicensed persons. Read together and in accordance with the plain meaning of the regulatory language, these amendments impose an obligation when the registered mortuary has assumed responsibility to direct the removal of the remains from the point of removal to the final place of disposition. In those circumstances, the registered mortuary has an obligation to ensure compliance by an unlicensed person who becomes involved.

The board’s response to an objection the association submitted during the rulemaking process indicates that this reading is consistent with the board’s intent. The association submitted a comment that families frequently contact “burial societies or religious organizations [that] make the removals directly and may perform religious and/or ritual preparation of the remains before a funeral director is even contacted.” In that circumstance, the association argued, “it is impossible for a funeral director to have any control or supervision over the actions of the third party.” The association also indicated that it would be “very difficult” to control the conduct of a third party in other circumstances.

The board responded by noting “public safety dictates that a registered mortuary make reasonable efforts to ensure that unlicensed persons who, although not under the supervision or control of the registered mortuary, are providing services in connection with the final disposition of human remains entrusted to the mortuary’s care, observe these precautions.” This response suggests that the board views the obligation as one arising after a registered mortuary becomes involved. It also indicates that the board does not intend to make the registered mortuary a guarantor; the board understands the amendments to require no more than “reasonable efforts to ensure.”

The association has not established that these amendments exceed what the Legislature intended. The amendments do not frustrate or conflict with the Legislature’s purpose in regulating those involved in this profession to “better secure the public health, safety and welfare.” Collectively, the amendments require a registered mortuary to direct removals of human remains by unlicensed persons and, in so doing, make reasonable efforts to ensure that unlicensed persons observe universal precautions and comply with applicable board rules while handling the body at any point during the period in which it is entrusted to the mortuary. The Legislature has prohibited unlicensed practice of mortuary science, and the board’s imposition of this obligation is reasonably related to that prohibition. These unlicensed persons are obligated to follow universal precautions under a regulation adopted by the Department of Health and Human Services.

The burdens imposed by these amendments are properly viewed as complementing the health regulation by ensuring that persons regulated by the board make reasonable efforts to ensure that unlicensed persons comply with their independent obligations. In obligating them to take reasonable efforts to ensure that unlicensed persons participating in the removal, preparation or disposal of a body comply with precautions those persons must follow, the board appropriately requires the professionals to make “reasonable efforts.” Given the board’s obligations to protect the public health and the risk presented, it is proper for the board to require professionals to do what is reasonable in each circumstance. The duty is stated with sufficient clarity to provide notice of what must be done, and it is sufficiently objective to avoid arbitrary enforcement.

For appellant N.J. State Funeral Directors Association — Karen A. Confoy (Sterns & Weinroth; Confoy and Erica S. Helms on the brief). For respondent N.J. State Board of Mortuary Science — Susan C. Berger, Deputy Attorney General (Jeffrey A. Chiesa, Attorney General; Andrea M. Silkowitz, Assistant Attorney General, of counsel).