Opinion No. (1979) ( 1979 )

REQUESTED BY: Dear Senator Duis:

As Chairman of the Legislature's Administrative Rules and Regulations Review Committee, you have received a complaint about Rule 1(3)(a) of the Board of Examiners in Embalming which requires that unembalmed bodies dead of certain communicable diseases are to be encased in a metal or metal lined and hermetically sealed container. You are concerned about the financial consequences of such a rule. You are also concerned that the Board of Examiners in Embalming and not the Department of Health made the rule.

The duties and powers of the Department and the Board are closely intertwined in regard to the licensing and disciplining of embalmers, funeral directors and funeral establishments. All are licensed by the Department and disciplined by the Department. However, the Board has some input in these procedures by conducting the licensing examinations and by recommending licensing or disciplinary action. The Board is appointed by the Department for the purpose of giving examinations to applicants for licensing as embalmers. This duty goes back to 1927. Its duties in regard to funeral directors and funeral establishments under Chapter 71, Article 13 began in 1957. As you pointed out, those duties do not include express authority to regulate the transportation and disposal of bodies dead of a communicable disease.

The Department, however, has specific authority under section 71-502, R.S.Supp., 1978, to adopt general rules and regulations to promote sanitation and prevent the introduction or spread of disease. It has done so in Rule 19 of the Department. Rule 19(3)(b) is entitled ``Transportation and Disposal of Bodies Dead of a Communicable Disease.' It provides:

"(See ``Rules and Regulations Relating to Embalming and Funeral Directing', published by the Bureau of Examining Boards.)"

Rule 19(3)(b) of the Department of Health thus appears to incorporate by reference Rule 1(3)(a) of the Board of Examiners in Embalming. (Under section 71-121.01, R.R.S. 1943, the Bureau of Examining Boards of the Department of Health is responsible for the general administration of the activities of the Board of Examiners in Embalming.)

Rule 1 of the Board has been filed and refiled without any changes at least since 1973. During the general refiling of rules in 1975, it was approved by our office on the basis of prior approval. It has been approved by the Governor and is on file with the Secretary of State and with the Revisor of Regulations. Thus, under section 84-906, R.R.S. 1943, there is a rebuttable presumption that it was duly and legally adopted. There is a procedure outlined in section84-911, R.R.S. 1943, for determining the validity of any rule by filing a petition for a declaratory judgment in the District Court of Lancaster County. (As you know, we questioned the authority of the Legislature to make such a determination itself through the procedures outlined for your committee in Laws 1978, LB 44. See Attorney General Opinion No. 24 dated February 25, 1977, attached.)