SD_mortlaws

MortSci 2012

South Dakota Funeral Law

Disclaimer: While every effort was made to ensure the accuracy and completeness of the Funeral Laws and regulations available on the State’s website, the documents are not official, and the state agencies preparing this website and the Compiler are not responsible for any errors or omissions which may occur in these files. Only the current published volumes of the States Laws are considered valid

South Dakota The mission of the South Dakota Board of Funeral Service is to receive consumer inquiries and complaints; to license funeral practitioners and establishments in the State of South Dakota which ensure the consumer that he is dealing with qualified practitioners and establishments; to register all trainees in funeral service and administer an apprenticeship program for the trainees; to improve inspection procedures of funeral homes and crematories; to enforce the updated statutes and rules and regulations governing the practice of funeral service in South Dakota, including complaint processing from the consumer and licensees; and, to make investigations and hold hearings as needed.

CHAPTER 36-19 FUNERAL DIRECTORS, EMBALMERS AND FUNERAL ESTABLISHMENTS

36-19-1. Definition of terms. Terms used in this chapter mean: (1) "Board," the Board of Funeral Service; (1A) "Branch chapel," a separate facility with a visitation room or chapel where no embalming is permitted that is owned by, a subsidiary of, or otherwise financially connected to or controlled by a licensed funeral establishment; (2) "Embalmer," any person engaged in or conducting, or holding the person out as engaged in or conducting, the business of disinfecting, preserving, or both, or attempting to disinfect or preserve, or both, or cremate, dead human bodies, in whole or in part by use of chemicals externally, internally or by other methods, as approved by the department of health; (3) "Funeral director," any person, partnership, limited liability company, corporation, association, or organization engaged in or conducting or holding that person out as engaged in or conducting, at a funeral establishment, the business of preparing, other than embalming, for burial or disposal, and supervising the burial or disposal of dead human bodies, or who shall, in connection with the person's name or business, use the title, funeral director, undertaker, mortician, or any other title implying that the person is engaged in the business herein described; (4) "Funeral establishment," any place of business conducted at a specific street address or location devoted to the care and preparation for burial or transportation of dead human bodies; (5) "Funeral service," those service provided or rendered by an embalmer or funeral director, or both, as set forth in subdivisions (2) or (3) of this section; (6) "Trainee in funeral service," any person who is engaged in the training of funeral service. However, no person may serve or attempt to serve as such trainee until that person has filed a registration with the board of funeral service as set forth in this chapter.

36-19-2. Composition of State Board of Funeral Service--Terms and qualifications of members--Vacancies. The State Board of Funeral Service shall include the five professional members who shall be licensed to practice funeral service. The Governor shall appoint the professional members of the board. However, no person may be appointed as a professional member of the board who has not been licensed in this state, as an embalmer and funeral director, or to practice funeral service, for at least five years prior to appointment. The term of office of appointed members shall be three years. The Governor shall, by appointment, fill any vacancy.

The State Board of Funeral Service shall also include two lay members who are users of the services regulated by the board. The term, lay member who is a user, refers to a person who is not licensed by the board but, where practical, uses the service licensed. The term shall be liberally construed to implement the purpose of this section. The Governor shall appoint the lay members. The lay members shall have the same term of office as other members of the board.

No board member may serve more than three consecutive full terms. However, appointment to fill an unexpired term is not considered a complete term for this purpose. The Governor may stagger the terms to enable the board to have different terms expire each year.

Any member appointed to the board prior to July 1, 2005, shall serve the five-year term to which the member was originally appointed. Any member appointed to the board after July 1, 2005, shall serve a three-year term.

The State Board of Funeral Services shall also include the secretary of health or the secretary's designee as a nonvoting member.

36-19-3.

Districts represented by board members. For the purpose of this chapter this state is hereby divided into five districts, and one professional member of the State Board of Funeral Service shall be appointed as provided in ยง 36-19-2 from each of the said districts. The first district shall consist of the following counties: Moody, Lake, the portion of McCook east of state highway 81, Minnehaha, Silver Lake, Grandview, Valley and Molan townships in Hutchinson, Turner, Lincoln, Union, Clay, Yankton. The second district shall consist of the following counties: Sanborn, Miner, Hanson, Jerauld, Buffalo, Aurora, Brule, Davison, the portion of McCook west of state highway 81, the remainder of Hutchinson, Douglas, Charles Mix, Bon Homme. The third district shall consist of the following counties: Roberts, Day, Grant, Codington, Clark, Hamlin, Deuel, Brookings, Kingsbury. The fourth district shall consist of the following counties: Marshall, Brown, McPherson, Campbell, Walworth, Edmunds, Spink, Faulk, Potter, Sully, Hughes, Hyde, Hand, Beadle. The fifth district shall consist of the following counties: Bennett, Butte, Corson, Custer, Dewey, Fall River, Gregory, Haakon, Harding, Jackson, Jones, Lawrence, Lyman, Meade, Mellette, Pennington, Perkins, Shannon, Stanley, Todd, Tripp, Ziebach.

36-19-3.1.

Repealed by SL 1976, ch 234, ยง 3.

36-19-4.

Oath of office of appointive members. The appointive members of the State Board of Funeral Service, before entering upon their duties shall respectively

take and subscribe the oath required by other state officers, which shall be filed in the Office of the Secretary of State.

36-19-5.

Removal of appointive members from board--Filling of vacancies. The Governor may remove an appointive member of the State Board of Funeral Service for cause, and a member appointed to fill such vacancy caused by death, resignation, or removal shall serve during the unexpired term of his predecessor.

36-19-6. Meetings of board--Quorum. The State Board of Funeral Service shall meet at least once a year and may also hold special meetings as frequently as the proper and efficient discharge of its duties requires.

Four members constitute a quorum for the transaction of business.

36-19-6.1. Board continued within Department of Health--Records and reports. The State Board of Funeral Service shall continue within the Department of Health, and shall retain all its prescribed functions, including administrative functions. The board shall submit such records, information, and reports in the form and at such times as required by the secretary of health, except that the board shall report at least annually.

36-19-7.

36-19-8.

Compensation and expenses of board members, secretary and employees. The State Board of Funeral Service may, in accordance with chapter 3-6A, determine the compensation of the secretary and such other assistants as may be necessary to carry out the provisions of this chapter, and of the rules and regulations adopted under it, and may incur such other expenses as may be necessary. The compensation of the members and the other expenses of the board shall be paid out of the fees received from applicants and licensees.

Repealed by SL 1982, ch 16, ยง 34.

36-19-9. Officers of board--Scope of rules--Bond required of treasurer. The State Board of Funeral Service shall have the power to elect, out of its own number, a president, a vicepresident, and secretary-treasurer, and, pursuant to chapter 1-26, promulgate the rules as may be reasonable and proper to: (1) Establish the minimum physical standards of licensees' funeral establishments; (2) Regulate the inspection of each funeral establishment; (3) Establish the educational, training, reciprocity and renewal requirements for licensure;

(4) However, the board may not regulate the method and manner of providing funeral service; and (5) Conduct investigations and implement disciplinary proceedings.

The treasurer of such board shall give bond in the sum of five thousand dollars with sufficient sureties to be approved by such board, conditioned for the honest and faithful discharge of his duties.

36-19-10. Seal of board. The State Board of Funeral Service shall be authorized to adopt and use a common seal.

36-19-11. Fees paid to treasurer--Use of fees. All fees collected under the provisions of this chapter shall be paid to the treasurer of the State Board of Funeral Service, to be used for the purpose of defraying its necessary salaries and expenses.

36-19-12. General duties of board with respect to licenses. It shall be the duty of the State Board of Funeral Service to examine applicants for licenses as provided by this chapter; to keep all necessary records; receive registrations of trainees in funeral service; to control and issue reciprocal licenses and renewals of all other licenses as provided in this chapter; to revoke or suspend upon proper cause, and to provide hearings in such matters and to investigate any and all complaints originating from the violation of any section or sections of this chapter.

36-19-13. Qualifications of inspector employed by board. No person shall be employed as an inspector by the State Board of Funeral Service unless such person has been licensed in this state as an embalmer and funeral director, and has practiced funeral service, for at least five years prior to his appointment.

36-19-14. License required to embalm, practice funeral service or maintain establishment. No person shall embalm any dead human body or practice embalming, or direct or supervise funerals, practice funeral service, or maintain a funeral establishment in the State of South Dakota, without being licensed by the State Board of Funeral Service.

36-19-15, 36-19-16. Omitted.

36-19-17. License issued to previously licensed funeral director. Every funeral director who, on July 1, 1963, held a license which had been duly issued under the laws of this state, is entitled to have his license renewed annually upon payment of renewal fees of not to exceed fifty dollars set by the State Board of Funeral Service, by rule promulgated pursuant to chapter 1-26.

36-19-18. Licenses issued to funeral service trainees. The State Board of Funeral Service shall provide for registration of trainees for license to practice funeral service. Trainees shall at all times remain registered with the board and shall pay an initial registration fee not to exceed twenty-five dollars set by the State Board of Funeral Service, by rule promulgated pursuant to chapter 1-26.

36-19-19. Omitted.

36-19-20. Application for license to practice funeral service--Time, place, and notice of examination.Any person desiring to obtain a license to practice funeral service under this chapter shall make application to the State Board of Funeral Service. Such application shall contain such information as the board may require and be upon a form prepared by the board. Thereupon, the board shall fix a date and place for the examination of such applicant of which notice shall be given to the applicant by mail. At such time and place, the board or a quorum thereof shall proceed to examine the applicant under such rules and regulations as the board may establish.

36-19-21. Age, character and education requirements for funeral service license--Scope of examination. In order to obtain a license in the practice of funeral service, the applicant must be a citizen of the United States or a resident of South Dakota, at least eighteen years of age, of good moral character, have a high school education, and sixty semester hours credit from a college or university, in a course approved by the State Board of Funeral Service, and must have completed one year's course at a school of embalming, accredited by the board, must have completed one year's work as a trainee embalmer-funeral director in this state, and must pass an examination on the following subjects: embalming and care, disposition, and preservation of the bodies of deceased persons; sanitation for the prevention of the spread of infectious or contagious diseases; and local health and sanitation ordinances and regulations relating to mortuary science.

36-19-22. Time and place of examination--Minimum grade--Preservation of papers. The examination required by ยง 36-19-21 shall be held at such times and places as the examining board shall deem most convenient for the applicants for examination, and, in accordance with the rules and regulations of the State Board of Funeral Service. Examination shall be in writing and the applicant must attain a grade of seventy-five per cent on each subject.

All examination papers of all applicants shall be kept on file by such board for a period of three years.

36-19-22. National board certificate accepted in lieu of examination. If an applicant for a license to practice funeral service has satisfactorily passed the national

board examination given by the Conference of Funeral Service Examining Board of the United States, Incorporated, and is so certified to the State Board of Funeral Service by said Conference of Funeral Service Examining Board of the United States, Incorporated, said board may in its discretion accept the results of said national board examination in lieu of the written portion of the board's examination.

36-19-23. National board certificate accepted in lieu of examination. If an applicant for a license to practice funeral service has satisfactorily passed the national board examination given by the Conference of Funeral Service Examining Board of the United States, Incorporated, and is so certified to the State Board of Funeral Service by said Conference of Funeral Service Examining Board of the United States, Incorporated, said board may in its discretion accept the results of said national board examination in lieu of the written portion of the board's examination.

36-19-24. Licensing of licensee from another state. Any holder of a license issued by the state authority in any other state maintaining a system and standard of examination for license to engage in the practice of funeral service, which in the judgment of the State Board of Funeral Service, is substantially the equivalent to that required in this state, may be issued such a license after passing a written examination on questions concerning the laws and rules of the State of South Dakota upon the payment of the applicable fee pursuant to ยง 36-19-25.

36-19-25. Fees for issuance and renewal of funeral service license. A license to practice funeral service shall be issued and is renewable annually upon payment of a fee not to exceed one hundred twenty-five dollars set by the State Board of Funeral Service, by rule promulgated pursuant to chapter 1-26.

36-19-25.1 Validation of receipt of prior initial license fees--vested rights. The receipt of fees for initial licenses issued by the Board of Funeral Service is validated and is of the same force and effect as if the board had authority to set and collect such fees. If a person has a vested right in any property because of the lack of authority referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1984, such right is forever barred, and no such action or proceeding may be brought or be of any force or effect, or be maintainable in any court of this state.

36-19-26. Repealed by SL 1977, ch 300, ยง 8.

36-19-27. Application for funeral establishment license--Fee--Licensee in charge. An application for a license to operate a funeral establishment shall be submitted for each location and shall be in writing on a form provided by the State Board of Funeral Service and shall be accompanied by a fee not to exceed two hundred fifty dollars set by the State Board of Funeral Service, by rule promulgated pursuant to chapter 1-26. A license to operate a funeral establishment may be granted upon approval and recommendation by the state board.

36-19-28. Sanitation, ventilation, and equipment required for funeral establishment. No establishment shall be classified as a funeral establishment unless it has a preparation room equipped with a sanitary floor of tile or linoleum, a table with sanitary top, suitable drainage and ventilation, and containing necessary instruments and supplies for the preparation and embalming of dead human bodies for burial or transportation, and a display room containing a reasonably adequate stock of funeral caskets and shipping cases.

36-19-29. Repealed by SL 1991, ch 311, ยง 5.

36-19-30. Funeral establishment managed by licensed individual. Every funeral establishment shall be managed and conducted by a person licensed to practice funeral service, or who is a licensed funeral director.

36-19-31. Annual inspection of funeral establishment. Each funeral establishment shall be inspected annually by a member of the State Board of Funeral Service, or by an inspector employed by said board.

36-19-32. Change of location or transfer of funeral establishment. The holder of any funeral establishment license who transfers the location of such establishment, or ceases to operate the same, or transfers such license to another, shall, within five days thereafter, notify the State Board of Funeral Service thereof. In case of transfer of such license, the transferee shall promptly furnish the board the name of the individual who is duly licensed as either a funeral director or in funeral service, and who will, and shall, be in charge and responsible for all transactions conducted and services performed therein.

36-19-33. License to legal representative of deceased funeral establishment manager. In case of the death of a designated manager of a funeral establishment, who leaves such funeral establishment as part or all of his estate, the State Board of Funeral Service shall issue to the legal representative of such deceased

person, a funeral establishment license. The fee for the application and renewal of such license, and the time of payment thereof, shall be the same as required in ยง 36-19-37 for such licenses.

36-19-34. Association membership not required for license. Membership in the South Dakota Embalmers and Funeral Directors Association shall never be a condition to obtaining or holding any license under this chapter.

36-19-35. Signature and seal of licenses. All licenses issued under this chapter shall be signed by a majority of the State Board of Funeral Service and attested by its seal and shall specify by name the person to whom issued.

36-19-36. Licenses not transferable--Display in place of business. Every license issued under this chapter except the funeral establishment license, shall be nontransferable and shall be displayed by such licensee in a conspicuous place in his or her office or place of business 36-19-37. Expiration and annual renewal of licenses--Fee. All licenses issued under the provisions of this chapter are valid only until the following thirty-first day of December.If a licensee desires a renewal of such license, the State Board of Funeral Service shall grant it, except for cause in compliance with chapter 126. All applications for renewal shall be made within thirty days prior to the expiration of the license and shall be accompanied by a renewal fee not to exceed two hundred fifty dollars, set by the board, by rule promulgated pursuant to chapter 1-26.

36-19-38. Grounds for refusal, suspension or revocation of license. The State Board of Funeral Service, acting in compliance with chapter 1-26, may refuse to grant, may suspend, or revoke any license if the license holder or the license applicant: (1) Obtained the license by fraud or misrepresentation either in applying for the license or in passing the examination for the license; (2) Uses intoxicants or drugs to such a degree as to render the person unfit to practice funeral service or funeral directing; (3) Has been convicted of a felony or crime involving moral turpitude. However, upon the conviction of a holder of a valid license, of a felony or crime involving moral turpitude, the conviction shall immediately and automatically revoke the license; (4) Is not a person of good moral character; (5) Is guilty of malpractice in the business of funeral service or funeral directing; (6) Is guilty of willful violation of any section of this chapter, or any rule of the board, or any rule of the state or any municipal board or department of health governing the

disposition, shipment, or transportation of dead human bodies; or willfully fails to make any report required by law or by the rules of the board; (7) Signs a certificate stating that the person embalmed or prepared a dead human body for shipment or burial, whereas in fact, someone, other than the person signing the certificate, embalmed or prepared the dead human body for shipment or burial; (8) Pays or causes to be paid, directly or indirectly, a commission for the securing of business; or, directly or indirectly solicits such business. However the soliciting of members or the selling of stock in any cooperative burial association is not a violation of this subdivision.

If the license as funeral director is held by a firm, corporation, association, or organization, the provisions of this section apply to the members of the board of directors, officers, and employees, as well as to the firm, corporation, association, or organization.

36-19-39. Omitted.

36-19-40. Appeal from revocation, suspension or refusal of license. An appeal from the decision of the State Board of Funeral Service may be taken as provided by chapter 1-26.

36-19-41. Violation of chapter as misdemeanor. Any person, firm or corporation conducting business or doing any act which is in violation of the provisions of this chapter is guilty of a Class 2 misdemeanor. 36-19-41.1. Injunction to prevent violations--Election of remedies. The State Board of Funeral Service is empowered to commence actions for injunction for violation of this chapter or regulations hereunder as an alternate to criminal proceedings. The commencement of one proceeding by the board constitutes an election.

36-19-42. Severability of provisions. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

36-19-43. Federal trade commission rules--Board's option to comply with. The Board of Funeral Services may comply with or exempt themselves from the federal trade commission rules on funeral industry practices pursuant to §§ 453.1 to 453.10, inclusive, volume 16 of the Code of Federal Regulations as amended and in effect on January 1, 1984.

CHAPTER 34-25 VITAL RECORDS AND BURIAL PERMITS 34-25-1. Department of Health to have charge of registration.The State Department of Health shall have charge of the registration of births, deaths, fetal deaths, burials, marriages, and divorces.

Source: SL 1931, ch 267, § 1; SDC 1939, § 27.0201; SL 1941, ch 124, § 1; SL 1945, ch 103, § 1; SL 1972, ch 194, § 1; SL 1978, ch 255, § 1; SL 1980, ch 238, § 24.

34-25-1.1. Definition of terms. Terms as used in this chapter mean: (1) "Authorized representative," an attorney, physician, funeral director, or other designated agent acting on behalf of the family.

(1.5) "Autopsy," the post mortem dissection and examination of a dead body, including fetal tissue older than twenty-four weeks.

(2) "Certified copy," a vital record or part thereof issued and sealed by the state registrar and other entities as authorized by the department; (3) "Dead body," a lifeless human body or parts thereof from the state of which it may reasonably be concluded that death recently occurred; (4) "Death certificate," a record by means of which both the fact of death record and the medical certificate have been completed and filed as required by the department; (5) "Demographic information," the information required by the state registrar to describe characteristics of a registrant, the family of a registrant, and geographic locations pertinent to a registrant; (6) "Department," the Department of Health; (7) "Fact of death information," the information required by the state registrar to record the time and place a death occurs and to identify the person who is deceased. The term does not include information regarding cause and manner of death; (8) "Fact of death record," the portion of the death certificate that contains the fact of death information and demographic information; (9) "Fetal death," death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy. The death is indicated by the fact that after such expulsion or extraction, the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles; (10) "Fetus," the biological offspring, including the implanted embryo or unborn child, of human parents; (11) "Final disposition," the burial, interment, cremation, or other disposition of a dead body or fetus; (12) "Institution," any establishment, public or private, which provides inpatient medical, surgical, or diagnostic care or treatment, or nursing, custodial, or domiciliary care to two or more unrelated individuals, or to which persons are committed by law;

(13) "Live birth," the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached; (14) "Medical certificate," the portion of the death certificate that contains the information regarding the cause and manner of death.

(15) "System of vital registration," the process by which vital records are collected, completed, amended, certified, filed, preserved, and incorporated into the official records of the office of vital records, and activities related thereto including the tabulation, analysis, and publication of statistical data derived from such records; (16) "Vital records," records of birth, death, fetal death, burial, marriage, divorce, and data related thereto as entered on forms prescribed by the department; Source: SL 1972, ch 194, § 2; SL 1993, ch 253, § 1; SL 2000, ch 171, § 2; SL 2003, ch 186, § 1; SL 2004, ch 235, § 1; SL 2005, ch 190, § 1.

34-25-2, 34-25-3.

Repealed by SL 1972, ch 194, § 45.

34-25-4. Vital registration districts--Establishment, consolidation or subdivision. The department shall establish vital registration districts throughout the state. The department may consolidate or subdivide such districts to facilitate registration.

Source: SL 1931, ch 267, § 3; SDC 1939, § 27.0203; SL 1972, ch 194, § 3.

34-25-4.1. Register of deeds or designee as local registrar--Fees--Deputy, appointment, and duty. The register of deeds shall be the local registrar of vital records for each registration district in this state. If there is no register of deeds, the department shall designate the local registrar who shall assume the responsibilities of local registrar of vital records. No fee shall be charged by a local registrar for filing an original or amended birth record or a death or burial record or for certified copies to persons entitled thereto under § 34-25-54.

Each local registrar shall appoint a deputy whose duty it shall be to act in his stead in case of the absence or disability of such local registrar.

Source: SL 1931, ch 267, § 3; SDC 1939, § 27.0203; SDCL, § 34-25-4; SL 1972, ch 194, § 4; SL 1974, ch 55, § 33.

34-25-5 to 34-25-7.

Repealed by SL 1972, ch 194, § 45.

34-25-8. Birth registration--Certificate of live birth--Time for filing--Availability of records. The birth of every child born in this state shall be registered as provided in this chapter. Within seven days after the date of each live birth, there shall be filed with the department by electronic means if a facility has such capabilities, or otherwise if electronic means are not available, a certificate of such birth. The certificate shall be upon the form prescribed by the department. For certificates of birth filed after seven days, but within

one year from the date of birth, the department may, by rules promulgated pursuant to chapter 1-26, require additional evidence in support of the facts of birth.

Informational copies of birth records shall be available to any person who can identify the birth record by providing the name of the person on the birth record, the date of birth, the mother's maiden name, or additional information required to locate the record.

Nothing in this section prohibits the release of information contained on a birth record which would not identify any person named in the record.

If one hundred years have elapsed after the date of birth, the records of the birth in the custody of the department shall become available to the public without restriction. The department shall promulgate rules, pursuant to chapter 1-26, to provide for the continued safekeeping of these records.

Source: SDC 1939, § 27.0207; SL 1945, ch 104; SL 1947, ch 121, § 1; SL 1972, ch 194, § 5; SL 1989, ch 297, § 1; SL 1995, ch 196, § 1; SL 1997, ch 205, § 1; SL 2005, ch 190, § 2.

34-25-8.1. Birth in moving conveyance. If a birth occurs in a moving conveyance, a birth certificate shall designate the county in which the child was first removed from the conveyance.

Source: SL 1972, ch 194, § 6; SL 1995, ch 196, § 2.

34-25-8.2.

Repealed by SL 1989, ch 297, § 2.

34-25-9. Birth in institution--Attending physician or physician's designee to prepare certificate--Filing certificate. If a birth occurs in an institution, the physician in attendance at the birth or the physician's designee shall, within five days after the birth, obtain the personal data and the medical information required by the certificate and provide it to the person designated by the institution to file the certificate.

Source: SDC 1939, § 27.0207; SL 1945, ch 104; SL 1947, ch 121, § 1; SL 1972, ch 194, § 8; SL 1995, ch 196, § 3.

34-25-9.1. Birth outside institution--Persons responsible for certificate--Evidence required. If a birth occurs outside an institution, the certificate shall be prepared and filed by one of the following in the indicated order of priority: (1) The physician in attendance at or immediately after the birth, or in the absence of such a person; (2) Any other person in attendance at or immediately after the birth, or in the absence of such a person; (3) The father or mother, or, in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred.

The department shall promulgate rules, pursuant to chapter 1-26, to establish the evidence necessary to establish the facts of birth.

Source: SDC 1939, § 27.0207; SL 1945, ch 104; SL 1947, ch 121, § 1; SDCL, § 34-25-9; SL 1972, ch 194, § 9; SL 1997, ch 205, § 2.

34-25-9.2. Birth certificate signed by parents or informant.Either of the parents of the child shall sign a document attesting to the accuracy of the personal data entered on it. If the parents are unable to sign, the document shall be signed by the informant.

Source: SL 1972, ch 194, § 10; SL 1995, ch 196, § 4.

34-25-10 to 34-25-13.

Repealed by SL 1972, ch 194, § 45.

34-25-13.1. Husband's name entered on birth certificate--Father's name as determined in paternity proceeding or by affidavits. If the mother was married at the time of conception or birth, or at any time between conception and birth, the name of the husband shall be entered on the certificate as the father of the child unless: (1) Paternity has otherwise been determined by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered; (2) The mother and the mother's husband execute joint or separate affidavits attesting that the husband is not the father of the child, in which case information about the father shall be omitted from the certificate; or (3) The mother executes an affidavit attesting that her husband is not the biological father and providing the name of the alleged biological father, the husband executes an affidavit attesting that he is not the biological father, and the alleged biological father executes an affidavit attesting that he is the biological father, then the attesting biological father shall be shown as the father on the certificate.

Affidavits may be joint or individual, and each signature shall be individually notarized.

Source: SL 1972, ch 194, § 11; SL 1993, ch 253, § 2; SL 1997, ch 205, § 3.

34-25-13.2. Parents' consent or judicial determination required to name father in birth certificate when mother unmarried. If the mother was not married at the time of conception or birth, or at any time between conception and birth, the name of the father may not be entered on the certificate of birth without the written consent of the mother and the person to be named as the father unless a judicial determination has been made, in which case the name of the father as determined by the court shall be entered.

Source: SL 1972, ch 194, § 12; SL 1993, ch 253, § 3.

34-25-13.3. Unmarried mother's surname shown on birth certificate unless paternity acknowledged. If the mother was not married at the time of conception or birth, or at any time between conception and birth, the mother's surname shall be shown on the birth certificate as the legal surname of the child at the time of birth unless an affidavit of acknowledgment of paternity signed by both parents is received.

Source: SL 1972, ch 194, § 13; SL 1993, ch 253, § 4.

34-25-13.4. Father not named on birth certificate--No other information entered. If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate.

Source: SL 1972, ch 194, § 14.

34-25-14. Child of unknown parents--Physician to name child and file birth certificate. In the case of a neglected or abandoned child, whose parents are unknown, such child shall be examined immediately by a licensed physician who shall assign a given name to the child, and, within seven days, file directly with the State Department of Health a certificate, in form and manner prescribed by the department.

Source: SDC 1939, § 27.0207 as added by SL 1945, ch 104; SL 1947, ch 121, § 1; SL 1972, ch 194, § 15.

34-25-15. Legitimation of child--New birth certificate--Fee. In cases of legitimation, the department, upon receipt of proof of the marriage of the parents after the birth of the child together with an affidavit of paternity signed by both parents of the child, shall prepare a new certificate of birth in the new name of the legitimated child.

Within ten days after the filing of an affidavit of acknowledgment of paternity, signed by both putative parents who are not married, the department shall add the name of the father to the certificate of birth if paternity is not shown on the record. Upon request of the parents, the surname of the child may be changed to that of the father or a combination of mother's and father's surnames, in which case the department shall prepare a new birth certificate. A change in paternity, which is already shown on a birth certificate, may be made only upon receipt of a court order determining paternity.

Upon receipt of a court order or affidavits determining the paternity of a child pursuant to § 34-25-13.1, the department shall prepare a new certificate of birth. Each applicant for a new birth record shall submit a five dollar fee to the department for the preparation and filing of the record.

Source: SDC 1939, § 27.0218 as added by SL 1947, ch 121, § 2; SL 1972, ch 194, § 16; SL 1981, ch 262; SL 1982, ch 265, § 1; SL 1991, ch 279, § 1; SL 1997, ch 205, § 4; SL 1999, ch 175, § 1.

34-25-16. Adoption information forwarded by clerk of courts.Within ten days after the filing of every original, amended, or annulled decree of adoption, the clerk of courts shall forward to the department such information necessary to establish a new certificate of birth on a form prepared by the department.

Source: SL 1939, ch 168, § 12; SL 1947, ch 121, § 3; SDC Supp 1960, § 55.3717; SL 1972, ch 194, § 17.

34-25-16.1. New birth certificate upon adoption of child born in state or foreign nation--Exception. If the birth occurred in South Dakota, the Department of Health shall issue a new certificate of birth in the new name of the child and with the name of the adopting person. However, a new certificate of birth may not be prepared if so requested by the court decreeing the adoption, the adoptive parents, or the adopted person.

If the birth occurred in a foreign nation and the adoption decree is entered in a court of this state, the Department of Health shall issue a new certificate of birth in the new name of the child and with the name of the adopting person. The birth certificate shall be prepared in accord with the facts as found and entered by the court. If the birth occurred in a foreign nation and the adoption was finalized in a foreign nation, any circuit court of this state may issue an order, ex parte and without hearing, directing that a new certificate of birth be issued upon filing the following documentation: (1) A certified copy of the adoption order from the foreign nation; (2) A certified translation of the adoption order if necessary; (3) Proof of the date and place of the child's birth; (4) Proof of IR-3 immigration status; and (5) Proof that each adopting person is a resident of this state.

The Department of Health shall issue a new certificate of birth in the new name of the child and the name of each adopting person upon receipt from the clerk of courts such information necessary to establish a new certificate of birth on a form prepared by the department.

The issuance of certificates pursuant to this section is conditioned upon the receipt of a fee based upon administrative cost as established by the department pursuant to chapter 1-26.

Source: SL 1939, ch 168, § 12; SL 1947, ch 121, § 3; SDC Supp 1960, § 55.3717; SDCL § 34-25-16; SL 1972, ch 194, § 18; SL 1976, ch 221; SL 1978, ch 255, § 2; SL 1980, ch 238, § 25; SL 2007, ch 157, § 2; SL 2010, ch 176, § 1.

34-25-16.2. Birth certificate after adoption when birth unrecorded. A new certificate of birth following adoption may be prepared for a person born in this state whose birth was not previously recorded, if the date and place of birth have been established in the adoption proceedings.

Source: SL 1972, ch 194, § 19.

34-25-16.3. Adoption information on child born out-of-state forwarded to state of birth. When adoption information is received for a child born in another state, such information shall be forwarded to the appropriate registration authority in the state of birth.

Source: SL 1972, ch 194, § 20.

34-25-16.4. Sealing of original birth certificate after new certificate issued--Opening of sealed materials. When a new certificate of birth is established pursuant to §§ 34-25-15 to 34-25-16.2, inclusive, the original certificate of birth together with the adoption information or other evidence upon which a new certificate is made shall be sealed, filed, and may be opened only upon order of a court of competent jurisdiction, or by the secretary of health for purposes of properly administering the vital registration system.

Source: SL 1939, ch 168, § 12; SDC 1939, § 27.0218 as added by SL 1947, ch 121, § 2; SL 1947, ch 121, § 3; SDC Supp 1960, § 55.3717; SDCL, §§ 34-25-15, 34-25-16; SL 1972, ch 194, § 21.

34-25-16.5. Original birth certificate sealed or forwarded to department after new certificate issued. When a new certificate of birth is established by the State Department of Health, all copies of the original certificate of birth in the custody of any local registrar in this state shall be sealed from inspection or forwarded to the State Department of Health, as directed.

Source: SL 1972, ch 194, § 22.

34-25-16.6. Copies of birth certificates. County registers of deeds may issue, by computer generation, certified copies of birth certificates.

Source: SL 1993, ch 253, § 5.

34-25-16.7. Determining mother for birth certificate. For the purposes of birth registration, the mother is deemed to be the woman who gives birth to the child, unless otherwise determined by a court of law prior to the filing of the birth certificate.

Source: SL 1993, ch 253, § 10.

34-25-17.

Repealed by SL 1972, ch 194, § 45.

34-25-18. Medical certificate signed by attending physician, physician assistant, or nurse practitioner--Time for execution. The licensed physician, physician assistant, or nurse practitioner, if any, last in attendance on any person whose death occurs in this state, shall complete, sign, and file a medical certificate with the department within five days of the date of death except in cases where the secretary of health has provided for longer periods by rules adopted pursuant to chapter 1-26.

Source: SDC 1939, § 27.0208; SL 1972, ch 194, § 23; SL 1991, ch 198, § 3; SL 2003, ch 186, § 2.

34-25-18.1. Determination of death. Any individual who has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death shall be made in accordance with accepted medical standards.

Source: SL 1990, ch 273.

34-25-19, 34-25-20.

Repealed by SL 1972, ch 194, § 45.

34-25-21. Notice to county coroner and sheriff of death without attending physician, physician assistant or nurse practitioner--Preparation of medical certificate. If a death occurs without the attendance of a licensed physician, physician assistant, or nurse practitioner, the person in charge of the body shall notify the county coroner and sheriff of such death. Upon notification, the county coroner shall complete the medical certificate from the statement of relatives or other persons having adequate knowledge of the facts.

The coroner, or deputy coroner in the absence of the coroner, shall complete, sign, and file the medical certificate with the department within five days of the date of death, unless an autopsy or investigation is pending, in which case the pending autopsy or investigation shall be noted on the medical certificate. In the absence of a coroner or deputy coroner, or if the coroner is unable to act, and only in such case, the local registrar shall prepare the medical certificate from the statement of relatives or other person having knowledge of the facts.

Source: SDC 1939, § 27.0209; SL 1968, ch 113; SL 1974, ch 55, § 34; SL 1985, ch 280; SL 1993, ch 253, § 6; SL 2003, ch 186, § 3.

34-25-22. Reference to state's attorney, sheriff, or police of death from other than natural causes. If the county coroner has reason to believe that the death may have been due to other than natural causes, he shall then refer the case to the state's attorney, sheriff, or police for further investigation.

Source: SL 1931, ch 267, § 7; SDC 1939, § 27.0209; SL 1968, ch 113.

34-25-22.1. Blood samples taken in violent or accidental death cases--Transmission to laboratory. The county coroner of each county shall take or cause to be taken blood samples of any person who has died from apparent violence, fire, suicide, or motor vehicle, agricultural, or industrial accident. The samples shall be taken as soon as practicable after the death has been discovered and forthwith transmitted to a laboratory certified to examine the sample for toxicology levels.

Source: SL 1973, ch 228; SL 1983, ch 256; SL 2004, ch 236, § 1.

34-25-23.

Repealed by SL 1972, ch 194, § 45.

34-25-24. Permit required for disposition of dead body or fetus. No body of any person whose death occurs in this state or which is found in this state or of a fetus after a gestational age of not less than twenty completed weeks may be interred, deposited in a vault or tomb, cremated, or otherwise disposed of, or removed from the state unless, prior to the disposition, a permit for disposition is obtained electronically from the department or on paper from the registrar of the registration district in which the death, or fetal death occurred or the body was found.

Source: SDC 1939, § 27.0211; SL 1972, ch 194, § 24; SL 1993, ch 253, § 7; SL 2003, ch 186, § 4; SL 2007, ch 195, § 10.

34-25-25. Fact of death record filed by funeral director--Sources of data--Place and time of filing. The funeral director, or person acting as such, who first assumes custody of a dead body shall file a fact of death record. The funeral director shall obtain the personal data from the next of kin or the best qualified person or source available.

A fact of death record for each death which occurs in this state shall be filed with the department within five days after such death.

Source: SDC 1939, § 27.0210; SL 1941, ch 124, § 2; SL 1972, ch 194, § 25; SL 1978, ch 254; SL 2003, ch 186, § 5.

34-25-25.1. Place of filing death certificate when place of death unknown or in moving conveyance required. If the place of death is unknown, a death certificate shall indicate the place of death as the location in which a dead body is found. If death occurs in a moving conveyance, a death certificate shall indicate the place of death as the location where the body was first removed from the conveyance.

Source: SL 1972, ch 194, § 26; SL 2003, ch 186, § 6.

34-25-26 to 34-25-32.

Repealed by SL 1972, ch 194, § 45.

34-25-32.1. Report required of certain fetal deaths other than abortions. A fetal death report for the death of each fetus which has attained a gestational age of not less than twenty completed weeks and which is not an abortion and reportable as such under chapter 34-23A which occurs in this state shall be filed with the Department of Health, in accordance with rules of the secretary of health promulgated pursuant to chapter 1-26.

However, the gestational age specified by this section may not be considered a factor in determining when life begins.

Source: SL 1972, ch 194, § 27; SL 1977, ch 285, § 1; SL 1993, ch 253, § 8; SL 2007, ch 195, § 11.

34-25-32.2. Fetal death report filed by physician--Coroner to report unattended deaths. The physician or other person in attendance at or after the delivery shall file the report of fetal death to the Department of Health within seven days of delivery.

If a fetal death occurs without medical attendance upon the mother at or after delivery, the coroner shall complete the report within twenty-four hours after taking charge of the case.

Source: SL 1972, ch 194, § 28; SL 1977, ch 285, § 2; SL 1993, ch 253, § 9.

34-25-32.3. Disposition of remains of embryo or fetus. Remains of a human embryo or fetus resulting from an abortion or miscarriage, induced or occurring accidentally or spontaneously at a hospital, clinic, or medical facility shall be disposed of in the manner provided by §§ 34-25-32.3 to 34-25-32.7, inclusive.

Source: SL 1998, ch 208, § 1.

34-25-32.4. Medical facility to provide for disposal of aborted fetuses. Any hospital, clinic, or medical facility in which abortions are induced or occur spontaneously or accidentally or any laboratory to which the remains of human embryos or fetuses are delivered shall arrange for the disposal of the remains by cremation, interment by burial, or by incineration in a medical waste incinerator approved by the Department of Environment and Natural Resources. If incineration is used, the remains of the human embryo or fetus shall be incinerated separately from other medical waste. The hospital, clinic, medical facility, or laboratory may perform any laboratory tests necessary for the health of the woman or her future offspring, or for the purposes of a criminal investigation, or for determination of parentage prior to disposing of the remains.

Source: SL 1998, ch 208, § 2.

34-25-32.5. Failure to comply as public nuisance. Any failure to comply with the provisions of §§ 34-25-32.3 to 34-25-32.7, inclusive, constitutes a public nuisance. Any person, firm, or corporation failing to comply with the provisions of §§ 34-25-32.3 to 3425-32.7, inclusive, is guilty of a Class 1 misdemeanor.

Source: SL 1998, ch 208, § 3.

34-25-32.6. Disposition of fetal remains--Method. No religious service or ceremony is required as part of the disposition of the remains of a human embryo or fetus. The hospital, clinic, or medical facility shall discuss or disclose the method of disposition with the woman who had the miscarriage.

Source: SL 1998, ch 208, § 4.

34-25-32.7. Fetal organ, tissue donation--Circumstances--Consent required. Tissue and organ donation may occur in cases of spontaneous abortions if the consent of the mother is obtained.

Source: SL 1998, ch 208, § 5.

34-25-32.8. Definitions. Terms used in §§ 34-25-32.8 to 34-25-32.16, inclusive, mean: (1) "Stillbirth," any intrauterine fetal death occurring in this state after a gestational age of not less than twenty completed weeks; and (2) "Certificate of birth resulting in stillbirth," a certificate issued to record the birth of a stillborn child.

Source: SL 2007, ch 195, § 1.

34-25-32.9. Notice to parent of means for requesting a certificate of birth resulting in stillbirth. Any person who is required to file a fetal death report pursuant to § 34-25-32.2 shall advise the parent or parents of a stillborn child: (1) That a parent may, but is not required to, request a certificate of birth resulting in stillbirth by contacting the Department of Health to request the certificate and paying the required fee; and (2) The means by which a parent may contact the Department of Health to request the certificate.

Source: SL 2007, ch 195, § 2.

34-25-32.10. Name of stillborn child on certificate of birth resulting in stillbirth. Any parent may provide a name for a stillborn child on the request for a certificate of birth resulting in stillbirth. If the requesting parent does not wish to provide a name, the Department of Health shall fill in the certificate with the name "baby boy" or "baby girl" and the last name of the parent.

Source: SL 2007, ch 195, § 3.

34-25-32.11. Fetal death report to be referenced on certificate of birth resulting in stillbirth. Any certificate of birth resulting in stillbirth shall include information referencing the corresponding fetal death report.

Source: SL 2007, ch 195, § 4.

34-25-32.12. Form and content of certificate of birth resulting in stillbirth. The Department of Health shall prescribe the form and content of a certificate of birth resulting in stillbirth and shall specify the information necessary to prepare the certificate.

Source: SL 2007, ch 195, § 5.

34-25-32.13. Certificate of birth resulting in stillbirth not used to calculate live birth statistics. The Department of Health may not use a certificate of birth resulting in stillbirth to calculate live birth statistics.

Source: SL 2007, ch 195, § 6.

34-25-32.14. Fee for certificate of birth resulting in stillbirth.Each applicant for a certificate of birth resulting in stillbirth shall submit a ten dollar fee to the Department of Health for the preparation and filing of the record.

Source: SL 2007, ch 195, § 7.

34-25-32.15. Certificate may be requested without regard to filing date of fetal death report. Any parent may request the Department of Health to issue a certificate of birth resulting in stillbirth without regard to the date on which the fetal death report was filed.

Source: SL 2007, ch 195, § 8.

34-25-32.16. Certificate may be requested without regard to date of fetal death. Any parent may request the Department of Health to prepare and issue a certificate of birth resulting in stillbirth without regard to whether the fetal death occurred on, before, or after July 1, 2007.

Source: SL 2007, ch 195, § 9.

34-25-33. Burial or removal permit filed by funeral director after final disposition. The funeral director or person acting as such shall, within ten days after final disposition, file or transmit the original burial or removal permit to the local registrar of the district in which final disposition was made.

Source: SDC 1939, § 27.0210 as added by SL 1941, ch 124, § 2; SL 1972, ch 194, § 29.

34-25-34. Burial-transit permit issued out-of-state as authority for final disposition. A burial-transit permit issued under the law of another state which accompanies a dead body or fetus brought into this state shall be the authority for final disposition of the body or fetus in this state.

Source: SL 1931, ch 267, § 5; SDC 1939, § 27.0211; SL 1972, ch 194, § 30.

34-25-35.

Repealed by SL 1972, ch 194, § 45.

34-25-36. Records and monthly report of funeral director. A funeral director, embalmer, or other person who removes from the place of death or transports or finally disposes of a dead body or fetus, in addition to filing any certificate or other form required by this chapter, shall keep a record which shall identify the body, and shall on or before the fifth day of each month report to the department all human bodies handled during the preceding month on a form provided for that purpose. If no death occurs in any given month which requires a funeral director to keep a record pursuant to this section, the funeral director shall report that fact on a form provided for that purpose.

Source: SDC 1939, § 27.0213; SL 1972, ch 194, § 31; SL 1999, ch 175, § 2.

34-25-37.

Repealed by SL 1972, ch 194, § 45.

34-25-38. Cemetery to require burial, removal, disinterment, or transit permit-Promulgation of rules. No person in charge of any premises in which interments are made, shall inter, or permit the interment, disinterment, or other disposition of any body, unless it is accompanied by a burial, removal, disinterment, or transit permit. The Department of Health shall promulgate rules pursuant to chapter 1-26 governing the issuance of permits for disinterment or reinterment of a dead body or fetus.

Source: SDC 1939, § 27.0214; SL 1941, ch 124, § 4; SDC Supp 1960, § 27.0214 (2); SL 1972, ch 194, § 32; SL 1996, ch 215, § 1.

34-25-38.1. Issuance of disinterment permit. A disinterment permit shall be issued by the department upon receipt of a written or electronic application from a person licensed by the State Board of Funeral Service or upon receipt of an order of a court of competent jurisdiction directing the disinterment. If the disinterment is not directed pursuant to a court order, the department may not issue a disinterment permit without the written consent of the surviving spouse, or in the case of a spouse's absence, death, or incapacity, the next of kin within the same degree of kinship. In the case of a minor, if the disinterment is not directed pursuant to a court order, the department may not issue a disinterment permit for the minor without the written consent of the surviving parents.

The Department of Health may promulgate rules pursuant to chapter 1-26 to establish the process for issuing a disinterment permit that is not directed pursuant to a court order.

The disinterment permit becomes effective as provided in this section. Unless the disinterment permit was issued as the result of a court order, the department shall, upon issuance of the disinterment permit, notify the affected cemetery board of directors appointed pursuant to § 7-26-7 or 9-12-18 or the board of county commissioners of the county in which the disinterment is to occur on the issuance of the permit. The cemetery board of directors or the board of county commissioners may request the circuit court to prevent the disinterment. The disinterment permit shall take effect within fifteen days after its issuance unless the circuit court has ordered otherwise. The disinterment permit authorizes disinterment, transportation, and reinterment of a dead body or fetus.

Authorities in charge of a cemetery may not transfer bodies buried in one part of the cemetery to another part without the authority of a disinterment permit.

Source: SL 1996, ch 215, § 2; SL 2003, ch 186, § 7; SL 2009, ch 168, § 1.

34-25-39. Completion of burial permit when no person in charge of cemetery. The funeral director, or person acting as such, when burying a body in a cemetery or burial ground, having no person in charge, shall complete the burial or removal permit.

Source: SL 1931, ch 267, § 10; SDC 1939, § 27.0214; SL 1941, ch 124, § 4; SDC Supp 1960, § 27.0214 (3); SL 1972, ch 194, § 33.

34-25-40, 34-25-41.

Repealed by SL 1972, ch 194, § 45.

34-25-42. Delayed registration of birth, death, or marriage--Fee. If a birth, death, or marriage occurring in this state has not been registered within one year from the date of occurrence, a certificate may be filed in accordance with regulations of the secretary of health, and shall be marked "delayed" on the face of the certificate. Each applicant for a delayed birth, death, or marriage certificate shall submit a fifteen dollar fee to the Department of Health for the preparation and filing of the delayed record.

Source: SL 1931, ch 267, § 16; SDC 1939, § 27.0216; SL 1941, ch 124, § 5; SL 1972, ch 194, § 34; SL 1978, ch 255, § 3; SL 1991, ch 279, § 2; SL 2005, ch 191, § 1.

34-25-43. Software, blanks and forms supplied by department--Use of forms or exact electronic replicas required. The department shall prepare, print, and supply to all registrars, all software, blanks and forms used in registering, recording, and preserving the vital records, or in otherwise carrying out the purposes of this chapter. No blanks or forms may be used other than those supplied by the department or exact electronic replicas approved by the department.

Source: SDC 1939, § 27.0202; SL 1972, ch 194, § 35; SL 1999, ch 175, § 3; SL 2003, ch 186, § 8.

34-25-44. Blank forms supplied by local registrar--Examination of permit for disposition on presentation. Each local registrar shall supply blank forms of certificates to such persons as require them. When a permit for disposition is presented for filing, the local registrar shall carefully examine each permit for disposition, to ascertain whether or not it has been completed in accordance with the provisions of this chapter and any rules promulgated pursuant to this chapter.

Source: SDC 1939, § 27.0217; SL 1941, ch 124, § 6; SL 1945, ch 105; SL 1972, ch 194, § 36; SL 2003, ch 186, § 9.

34-25-45. Legibility of records and certificates--Incomplete or illegible certificates not filed. All records and certificates required by this chapter shall be completed electronically, typewritten, or written legibly in permanent black ink. In case any certificate is not complete or not legible, the department may not file the same, but shall require the person responsible for the record to prepare a new record that is complete and legible.

Source: SDC 1939, ยง 27.0217; SL 1941, ch 124, ยง 6; SL 1945, ch 105; SL 1959, ch 129; SL 1972, ch 194, ยง 37; SL 2003, ch 186, ยง 10.

34-25-46. Signing, dating, and numbering of permits for disposition by local registrar. The local registrar shall sign, date, and number consecutively the permits for disposition filed at the county office.

Source: SDC 1939, ยงยง 27.0206, 27.0217; SL 1941, ch 124, ยง 6; SL 1945, ch 103, ยง 2; SL 1945, ch 105; SL 1963, ch 149, ยง 1; SDCL, ยงยง 34-25-17, 34-25-46; SL 1972, ch 194, ยง 38; SL 1974, ch 55, ยง 35; SL 1977, ch 285, ยง 3; SL 1999, ch 175, ยง 4; SL 2003, ch 186, ยง 11.

34-25-47 to 34-25-50.

Repealed by SL 1972, ch 194, ยง 45.

34-25-51. Amendment of vital record--Fee for delayed amendment. A vital record may be amended in accordance with rules promulgated by the department pursuant to chapter 1-26. Each request for amending a birth, death, or marriage certificate, after one year from the event, shall be accompanied by an eight dollar fee to the department for amending the record and filing the affidavit.

Source: SDC 1939, ยง 27.0218; SL 1945, ch 103, ยง 3; SL 1947, ch 121, ยง 2; SL 1972, ch 194, ยง 39; SL 1978, ch 255, ยง 4; SL 1991, ch 279, ยง 3; SL 2001, ch 129, ยง 2; SL 2005, ch 191, ยง 2.

34-25-52. Copies of certified or informational records supplied by department or local registrars--Application--Time--Fees. The department or authorized local registrars shall, upon receipt of an application, issue a certified copy of a vital record to the registrant or the registrant's spouse, children, parents, guardian, next of kin, or authorized representative. The department may authorize others to obtain certified copies in response to a demonstration that the record is needed for the determination or protection of a personal or property right. The department or authorized local registrars shall upon receipt of an application, issue informational copies to any applicant of any vital record.

The department or authorized local registrar may withhold the immediate issuance of any certified copy for a period of no longer than three days. The department shall be entitled to a fee based upon administrative cost as established by the department pursuant to chapter 1-26 for each search of the files and records. The fee shall be paid in advance by the applicant and shall not be in addition to the fee hereinbefore provided for the making

and certification of the record but shall be applied in payment thereof if the record is found.

Source: SL 1905, ch 63, § 30; RC 1919, § 9912; SL 1931, ch 267, §§ 17, 20; SL 1937, ch 261; SDC 1939, §§ 27.0215, 27.0220; SL 1943, ch 101; SL 1945, ch 103, § 4; SL 1953, ch 124, § 2; SL 1959, ch 29, § 2; SDCL, § 34-25-41; SL 1968, ch 115; SL 1972, ch 194, § 40; SL 1980, ch 238, § 26; SL 2005, ch 190, § 3.

34-25-52.1. Copies or data supplied to public or private agencies. Federal, state, local, and other public or private agencies may, upon request, be furnished copies or data upon such terms or conditions as may be prescribed by the secretary of health.

Source: SL 1972, ch 194, § 41.

34-25-52.2. Additional fee for copy of birth record--Disposition. In addition to the fee charged an applicant by the Department of Health for supplying a certified copy of the record of any birth, there shall be levied an additional charge of two dollars for the first copy requested and two dollars for each additional copy requested. The money collected shall be submitted by the collecting agency on a monthly basis to the state treasurer to be deposited in the children's trust fund.

Source: SL 1984, ch 194, § 2.

34-25-52.3. Free birth certificate with head start enrollment form. Notwithstanding § 34-25-52, the department shall provide at no cost a certified copy of any child's birth certificate, limited to one, upon presentation of a copy of a valid head start enrollment form for that child.

Source: SL 1992, ch 247.

34-25-52.4. Uniform forms and procedures for issuance of copies of records-Rules. All forms and procedures used in the issuance of certified and informational copies of vital records shall be uniform and shall be provided or approved by the state registrar.

The department shall promulgate rules pursuant to chapter 1-26 to determine application requirements for a certified and an informational copy of a vital record, acceptable proof of identity, and the features required in a certified or informational copy.

Source: SL 2005, ch 190, § 4.

34-25-52.5. Construction of chapter--Disclosure of specified information on birth, marriage, or divorce certificates--Admissibility.Nothing in this chapter may be construed to permit disclosure of information contained in the "Information for Medical and Health

Use Only" section of the birth certificate or the "Information for Statistical Purposes Only" section of the certificate of marriage or certificate of divorce unless specifically authorized by the department for statistical or research purposes. Such data is not subject to subpoena or court order and is not admissible before any court, tribunal, or judicial body.

Source: SL 2005, ch 190, § 5.

34-25-52.6. Disclosure of information in or inspection or copying of vital record-Authorization of chapter or court. To protect the integrity of vital records, ensure their proper use, and to ensure the efficient and proper administration of the vital records system, no employee of the state vital records office, local registrar, or deputy registrar may permit inspection of any vital record or disclose information contained in any vital record or issue a copy of all or part of any such record unless authorized by this chapter or a court of competent jurisdiction.

Source: SL 2005, ch 190, § 6.

34-25-53.

Repealed by SL 1972, ch 194, § 45.

34-25-54. Certified copies supplied free for veterans' claims--Minors participating in sports programs. No charge may be made for certified copies of birth, death, marriage, adoption, divorce, or guardianship or conservatorship papers, to a serviceman in or a veteran of any war or conflict in which the United States has been or hereafter will be engaged, or veteran as defined by § 33-17-1; to the spouse, widow, widower, children, or other dependents of such serviceman or veteran; to the South Dakota Department of Military and Veterans Affairs or a similar agency in any other state; to county veterans' service officers; to the representatives of the American Red Cross or of nationally chartered veterans' organizations holding power of attorney for the applicant, when such record or records are required in support of any claim against any agency of the United States, or any agency or department of state government, and no charge may be made for the issuance of a certified copy of a birth record, limited to one, to a person under eighteen years of age who needs such certificate to participate in an organized sports program sponsored by a patriotic organization.

Source: SL 1931, ch 267, § 20; SL 1937, ch 261; SDC 1939, § 27.0220; SL 1943, ch 101; SL 1945, ch 103, § 4; SL 1953, ch 124, § 2; SL 1959, ch 29, § 2; SL 1968, ch 115; SL 1986, ch 27, § 35; SL 1993, ch 213, § 229.

34-25-55, 34-25-56.

Repealed by SL 1972, ch 194, § 45.

34-25-57. Violation of requirements as misdemeanor. No person, officer, agent, or employee of any other person or of any corporation or partnership may: (1) Inter, cremate, or otherwise finally dispose of a dead body of a human being or permit the same to be done or remove the body from the state without authority of a burial or removal permit;

(2) Refuse or fail to furnish any information in such person's possession or furnish false information affecting any certificate or record required by this chapter; (3) Intentionally falsify any certificate of birth, death, or burial or removal permit or any record required by this chapter; (4) Being required by this chapter to fill out a certificate of birth or death and file the certificate with the local registrar or deliver it upon request to any person charged with the duty of filing the certificate, fail, neglect, or refuse to perform; (5) Being an employee of the state vital records office, a local registrar or deputy registrar, intentionally fail, neglect, or refuse to perform the duty as required by this chapter or by the rules adopted by the secretary of health or by the instructions and directions of the department; (6) Intentionally make, counterfeit, alter, amend, or mutilate any certificate, record, or report required by this chapter or a certified copy of the certificate, record, or report for the purpose of deception; (7) Obtain, possess, use, sell, or furnish to another, or attempt to obtain, possess, use, sell, or furnish to another, any certificate, record, or report, or certified copy thereof, required by this chapter, whether altered in any manner or not, for any purpose of deception; or (8) Possess any certificate, record, or report, or copy thereof, required by this chapter, knowing that the certificate, record, or report, or copy thereof, was stolen or otherwise obtained unlawfully.

A violation of this section is a Class 1 misdemeanor.

Source: SDC 1939, § 27.9902; SL 1941, ch 124, § 8; SL 1972, ch 194, § 43; SL 1977, ch 190, § 66; SL 2000, ch 172, § 1; SL 2005, ch 190, § 7.

34-25-57.1.

Repealed by SL 1977, ch 190, § 67.

34-25-57.2. Unintentional issuance of certified copy of vital record fraudulently obtained--Personal liability. No employee of the state vital records office, local registrar, or deputy registrar may be held personally liable for any unintentional issuance of any certified copy of any vital record fraudulently obtained.

Source: SL 2005, ch 190, § 8.

34-25-58. Enforcement and supervisory powers of department--Investigations by secretary. The provisions of this chapter shall be performed and enforced in every part of this state by the State Department of Health which shall have supervisory power over local registrars and deputy local registrars, to the end that all requirements of this chapter shall be uniformly complied with. The secretary of health either personally or by accredited representative shall have authority to investigate any irregularities or violations of law, and all registrars shall aid him upon request in such investigations.

Source: SL 1931, ch 267, § 22; SDC 1939, § 27.0222; SL 1972, ch 194, § 44.

34-25-59, 34-25-60.

Repealed by SL 1972, ch 194, § 45.

34-25-61. Severability of provisions. If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held or declared to be unconstitutional, inoperative, or void, such holding or invalidity shall not affect the remaining portions of this chapter; and it shall be construed to have been the legislative intent to pass this chapter without such unconstitutional, inoperative, or invalid part therein; or if this chapter or any provision thereof shall be held inapplicable to any person or persons, property or kind of property, circumstance or set of circumstances, such holding shall not affect the applicability hereof to any other person, property, or circumstance.

Source: SL 1941, ch 124, § 10; SDC Supp 1960, § 27.0223.

34-25-62. Electronic list of persons married in South Dakota.Any electronic list of persons married in South Dakota may be released by the Department of Health or the local register of deeds.

Source: SL 2007, ch 196, § 1.

CHAPTER 34-26 CUSTODY AND DISPOSITION OF BODIES AND BODY PARTS 34-26-1. Personal right to direct disposition of body and bodily parts--Inconsistent statutes not applicable. Every person has the right to direct the manner in which his body or any part thereof shall be disposed of after his death, and to direct the manner in which any part of his body which becomes separated therefrom during his lifetime shall be disposed of. The provisions of §§ 34-26-4 to 34-26-7, inclusive, and of §§ 34-26-14 to 34-26-19, inclusive, do not apply where such person has given directions for the disposal of his body or any part thereof inconsistent with those provisions.

Source: PenC 1877, § 348; CL 1887, § 6549; RPenC 1903, § 353; RC 1919, § 3867; SDC 1939, § 27.1301; SL 1963, ch 152.

34-26-2. Autopsy authorized. An autopsy may be performed upon the body of a deceased person by a physician or surgeon whenever so authorized in writing, or by electronically recorded telephone communication: (1) By the decedent during the decedent's lifetime; or (2) By the decedent's surviving spouse; or (3) If the surviving spouse is incompetent or not available or if there be no surviving spouse, by an adult child, parent, brother, or sister of the decedent. However, such autopsy may not be performed under a consent given as required by this subdivision

if, before such autopsy is performed, any adult child or parent of the decedent objects in writing to the physician or surgeon by whom the autopsy is to be performed; (4) By the state's attorney, county sheriff, or investigating county coroner pursuant to § 23-14-9.1.

Source: SL 1951, ch 188, § 2; SDC Supp 1960, § 34.1016; SL 1961, ch 184, § 2; SL 1981, ch 263; SL 1985, ch 191, § 5; SL 2009, ch 123, § 2.

34-26-3. Dissection authorized by decedent during life. The right to dissect the dead body of a human being exists whenever a person lawfully gives permission for such disposal of his body or any part thereof after death.

Source: SDC 1939, § 27.1304 (5); SL 1963, ch 152.

34-26-4. Dissection authorized by spouse or next of kin. The right to dissect the dead body of a human being exists whenever any spouse or next of kin of a deceased person, or any other person, being charged by law with the duty of burial authorizes such dissection of the dead body or any part thereof for the purpose of ascertaining the cause of death or for the purpose of scientific use or advancement of medical science.

Source: PenC 1877, § 351, subdiv 3; CL 1887, § 6552, subdiv 3; RPenC 1903, § 356, subdiv 3; RC 1919, § 3870 (3); SDC 1939, § 27.1304 (3); SL 1963, ch 152.

34-26-5. Dissection for purposes of inquest authorized by coroner, sheriff, or state's attorney. The right to dissect the dead body of a human being exists if the death occurs under circumstances in which a coroner is authorized by law to hold an inquest upon the body or under the provisions of § 23-14-9.1, and a coroner, sheriff, or the state's attorney designated by law to order an autopsy authorizes such dissection for the purposes of the inquest.

Source: PenC 1877, § 351, subdiv 2; CL 1887, § 6552, subdiv 2; RPenC 1903, § 356, subdiv 2; RC 1919, § 3870 (2); SDC 1939, § 27.1304 (2); SL 1961, ch 131; SL 1967, ch 103, § 1; SL 1985, ch 191, § 6; SL 2009, ch 123, § 3.

34-26-6. Dissection of body of state institution inmate--Consent of next of kin required--Abandoned inmate. The right to dissect the dead body of a human being exists whenever the person dying is at the time of death an inmate of any charitable institution supported by the State of South Dakota, and such person is at the time of death under medical treatment by physicians appointed or under supervision of said authority; provided however, that before such dissection is allowed an order shall be made by the superintendent or person having charge of such charitable institution stating that in his opinion such dissection is necessary or advisable for the purpose of obtaining knowledge of the cause of the death of such person or necessary for the treatment of others; and, before such dissection be allowed the consent of the next of kin of said deceased person shall be obtained, unless said deceased person shall have been neglected or abandoned

by said kin for a period of not less than six months next preceding the time of death of such person, and when no inquiry for or in regard to said deceased person shall have been made by the next of kin of said deceased person for a period of six months next preceding the death of such person, such person shall be deemed abandoned for said period.

Source: SL 1895, ch 75, § 1; RPenC 1903, § 356, subdiv 4; RC 1919, § 3870 (4); SDC 1939, § 27.1304 (4).

34-26-7. Dissection authorized by legislative enactment. The right to dissect the dead body of a human being exists in the cases authorized by positive enactment of the Legislature of this state.

Source: PenC 1877, § 351, subdiv 1; CL 1887, § 6552, subdiv 1; RPenC 1903, § 356, subdiv 1; RC 1919, § 3870 (1); SDC 1939, § 27.1304 (1).

34-26-8. Notice to medical school of unclaimed body--Requisition by and forwarding to medical school. It shall be the duty of any person into whose charge may come the unclaimed dead body of a convict or other person to be buried at public expense, to give notice to the dean of the School of Medicine of the University of South Dakota within twenty-four hours after the receipt of any such body, specifying in such notice the probable cause of death; and upon the requisition of such dean he shall forward such body to the university, at its expense, within twenty-four hours of the receipt of such requisition.

Source: SL 1909, ch 278, § 1; RC 1919, § 5595; SDC 1939, § 15.1104.

34-26-9. Receipt and record of bodies received by medical school. A receipt for any body forwarded pursuant to § 34-26-8 shall be given to the officer or person delivering the same, and the medical school of the university shall keep or cause to be kept, a record of all such bodies so received, in which shall be recorded at length all facts necessary for the identification of such bodies.

Source: SL 1909, ch 278, § 2; RC 1919, § 5595; SDC 1939, § 15.1104.

34-26-10. Embalming and preservation of bodies by medical school--Claim by friend or relative. All bodies delivered pursuant to § 34-26-8 shall be properly embalmed, and shall be preserved for a period of not less than sixty days, during which time any personal friend or relative of the decedent, making request for such body for private interment, shall be given possession thereof.

Source: SL 1909, ch 278, § 1; RC 1919, § 5595; SDC 1939, § 15.1104.

34-26-11. Use of unclaimed bodies by medical school--Burial of remains. Bodies delivered pursuant to § 34-26-8 unclaimed after the expiration of sixty days may be used for the promotion of medical and surgical science, and the instruction and study of physicians and students of anatomy and embalming in this state. After having served such purpose, the remains shall in all cases receive proper burial.

Source: SL 1909, ch 278, § 3; RC 1919, § 5595; SDC 1939, § 15.1104.

34-26-12. Autopsies at hospitals for the mentally ill. Nothing contained in §§ 34-26-8 to 34-26-11, inclusive, shall preclude the officers of the state hospitals for the mentally ill from using the unclaimed remains of patients dying in such hospitals to make autopsies for pathological study.

Source: SL 1909, ch 278, § 4; RC 1919, § 5595; SDC 1939, § 15.1104.

34-26-13. Unauthorized dissection of body as misdemeanor.Every person who makes or procures to be made any dissection of the body of a human being, except by authority of law or in pursuance of a permission given by the decedent, is guilty of a Class 1 misdemeanor.

Source: PenC 1877, § 352; CL 1887, § 6553; RPenC 1903, § 357; RC 1919, § 3871; SDC 1939, § 13.1417; SL 1977, ch 190, § 68.

34-26-14. Right to custody of dead body--Coroner's custody pending inquest. The person charged by law with the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it. However, in the cases in which an investigation or inquest is required by law to be held upon a dead body, by a coroner, such coroner is entitled to its custody until such inquest has been completed.

Source: PenC 1877, § 357; CL 1887, § 6558; RPenC 1903, § 362; RC 1919, § 3876; SDC 1939, § 27.1302; SL 1985, ch 191, § 7.

34-26-15. Burial within reasonable time required. Except in the cases in which the right to dissect a dead body is expressly conferred by law, every dead body of a human being lying within this state must be decently buried within a reasonable time after the death. Nothing herein shall affect the right to remove from or carry through this state, a dead human body or parts thereof for the purpose of burying the same in another place.

Source: PenC 1877, §§ 349, 350; CL 1887, §§ 6550, 6551; RPenC 1903, §§ 354, 355; RC 1919, §§ 3868, 3869; SDC 1939, § 27.1301.

34-26-16. Persons charged with duty of burial--Grave marker.The duty of burying the body of a deceased person and providing the grave with a permanent concrete, metal anchored in concrete, or stone marker devolves upon the persons hereinafter specified: (1) If the decedent was married the duty of burial devolves upon the husband or wife; (2) If the decedent was not married but left any kindred, the duty of burial devolves upon the person or persons in the same degree nearest of kin to the decedent, being of adult age, and within this state and possessed of sufficient means to defray the necessary expenses; (3) If the decedent left no husband or wife nor kindred answering the foregoing description, the duty of burial devolves upon the coroner conducting an inquest upon the body of the decedent, if any such inquest is held; if none, then upon the person charged with the support of the poor in the locality in which the death occurs.

Source: PenC 1877, § 355; CL 1887, § 6556; RPenC 1903, § 360; RC 1919, § 3874; SDC 1939, § 27.1303; SL 1963, ch 153.

34-26-17. Duty of burial on failure by persons first charged--County claim against estate for expense of burial. In case the person upon whom the duty of burial is first cast by the provisions of § 34-26-16 omits to make such burial within a reasonable time, the duty devolves upon the person next specified; and if all omit to act it devolves upon the tenant, or if there is no tenant upon the owner of the premises or master, or if there is no master upon the owner of the vessel in which the death occurs or the body is found; and if all of these omit to act it devolves upon the county of the legal residence of the deceased and if no such residence is known, then upon the county where the body is first found dead, and in all such cases the said county shall have a legal preferred claim against the estate of the decedent for the actual expense incurred.

Source: PenC 1877, § 355, subdiv 4; CL 1887, § 6556, subdiv 4; RPenC 1903, § 360, subdiv 4; RC 1919, § 3874 (4); SDC 1939, § 27.1303 (4); SL 1963, ch 153.

34-26-18. Failure to make burial as misdemeanor--Civil liability for treble expenses. Every person upon whom the duty of making burial of the remains of a deceased person is imposed by law, who omits to perform that duty within a reasonable time, is guilty of a Class 1 misdemeanor; and, in addition to the punishment prescribed therefor, is liable to pay to the person performing the duty in his stead, treble the expenses incurred by the latter in making the burial, to be recovered in a civil action.

Source: PenC 1877, § 356; CL 1887, § 6557; RPenC 1903, § 361; RC 1919, § 3875; SDC 1939, § 13.1415; SL 1977, ch 190, § 69.

34-26-19. Provisions applicable to parts of body. All provisions of this code requiring burial of a dead body, or punishing interference with, or injuries to a dead body, apply equally to any part of a dead body separated therefrom during lifetime, or by dissection after death, as soon as the lawful purposes of such dissection have been accomplished.

Source: PenC 1877, §§ 353, 354; CL 1887, §§ 6554, 6555; RPenC 1903, §§ 358, 359; RC 1919, §§ 3872, 3873; SDC 1939, § 27.1301.

34-26-20, 34-26-21.

Repealed by SL 2007, ch 197, § 26.

34-26-21. Eligibility to make gifts of own body. Any individual of sound mind and fourteen years of age or more may give all or any part of his body for any purpose specified in § 34-26-27, the gift to take effect upon death. However, if the individual is less than eighteen years of age, a parent or guardian must give his consent for the donation.

Source: SL 1969, ch 111, § 2 (1); SL 1991, ch 280, § 1.

34-26-21.1. Information on organ donation to be made available to persons obtaining driver license or identification card.The Department of Public Safety, with the advice of the Department of Health, shall provide each person renewing or applying for a driver license or nondriver identification card an opportunity to review information about organ donation, such as information available from the organ procurement organization designated by the federal government for this state. The person shall affirm on the application that the person has reviewed the information.

Source: SL 2001, ch 186, § 5; SL 2003, ch 272, §§ 20, 121.

34-26-22 to 34-26-46.

Repealed by SL 2007, ch 197, § 26.

34-26-23. Anatomical gift by document other than will--Execution and effectiveness of document. A gift of all or part of the body under § 34-26-21 may also be made by document other than a will. The gift becomes effective upon the death of the donor. The document, which may be a card designed to be carried on the person, shall be signed by the donor. If the donor cannot sign, the document may be signed for him at his direction and in his presence in the presence of two witnesses who must sign the document in his presence. Delivery of the document of gift during the donor's lifetime is not necessary to make the gift valid.

Source: SL 1969, ch 111, § 4 (2); SL 1991, ch 280, § 1A. 34-26-23.1. Document of gift attached to or imprinted on driver license or identification card. If a document of gift is attached to or imprinted on a donor's motor vehicle driver license or nondriver identification card, the document of gift shall comply with § 34-26-23. If a person is less than eighteen years of age, a document of gift may only be attached to or imprinted on a donor's motor vehicle driver license or nondriver identification card if a parent or guardian of the person consents. Revocation, suspension, expiration, or cancellation of the license does not invalidate the anatomical gift.

Source: SL 1991, ch 280, § 2; SL 2001, ch 186, § 1.

34-26-23.2. Notification to legal custodian of decedent's intent to make anatomical gift--Notification to procurement agency for anatomical gifts. Any state or local law enforcement agency, officer, or personnel, that has access to a decedent's motor vehicle driver license or nondriver identification card, or the information thereon, shall inform, upon request, the decedent's attending physician or nurse, next of kin, the coroner, or any other person having lawful custody of the decedent's body, of the decedent's intention, as indicated on the decedent's motor vehicle driver license or nondriver identification card, to make an anatomical gift pursuant to § 34-26-23 or 34-26-23.1. Any state or local law enforcement agency, officer, or personnel shall also inform, upon request, any procurement agency for anatomical gifts, including organs, tissues, and eyes, of such intention of the decedent.

Source: SL 1998, ch 210, § 1; SL 1999, ch 176, § 1; SL 2001, ch 186, § 2.

34-26-24. Anatomical gifts by spouse, kin, guardian, or authorized person--Priority of authority to make gift--Time of gift.Any of the following persons, in order of priority stated, if persons in prior classes are not available at the time of death, and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent's body for any purpose specified in § 34-26-27: (1) The spouse; (2) An adult son or daughter; (3) Either parent; (4) An adult brother or sister; (5) A grandparent; (6) A guardian of the person of the decedent at the time of his death; (7) Any other person authorized or under obligation to dispose of the body.

The persons authorized may make the gift after or immediately before death.

Source: SL 1969, ch 111, § 2 (2), (3); SL 1991, ch 280, § 3.

34-26-25. Execution of anatomical gift by spouse, kin, guardian, or authorized person. Any gift by a person designated in § 34-26-24 shall be made by a document signed by him or made by his telegraphic, recorded telephonic, or other recorded message.

Source: SL 1969, ch 111, § 4 (5).

34-26-26. Donee not to accept unauthorized anatomical gift.If the donee has actual notice of contrary indications by the decedent or that a gift by a member of a class is opposed by a member of the same or a prior class, the donee shall not accept the gift.

Source: SL 1969, ch 111, § 2 (3).

34-26-27. Authorized donees of anatomical gifts--Authorized purposes. The following persons may become donees of gifts of bodies or parts thereof for the purposes stated: (1) Any hospital, surgeon, or physician, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or (2) Any accredited medical or dental school, college or university for education, research, advancement of medical or dental science, or therapy; or (3) Any bank or storage facility, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or (4) Any specified individual for therapy or transplantation needed by him.

Source: SL 1969, ch 111, § 3.

34-26-28. Anatomical gift to specified donee or without specifying donee--Acceptance of gift by attending physician. The gift may be made to a specified donee or without specifying a donee. If the latter, the gift may be accepted by the attending physician as donee upon or following death. If the gift is made to a specified donee who is not available at the time and place of death, the attending physician upon or following death, in the absence of any expressed indication that the donor desired otherwise, may accept the gift as donee. The physician who becomes a donee under this section shall not participate in the procedures for removing or transplanting a part.

Source: SL 1969, ch 111, § 4 (3).

34-26-29. Designation of surgeon, physician, or technician to carry out purposes of anatomical gift. Notwithstanding § 34-26-34, the donor may designate in a will, card, or other document of gift the surgeon, physician, or technician to carry out the appropriate procedures. In the absence of a designation or if the designee is not available, the donee or other person authorized to accept the gift may employ or authorize any surgeon, physician, or technician for the purpose.

Source: SL 1969, ch 111, § 4 (4); SL 1995, ch 197, § 2.

34-26-29.1. Enucleation of eye by properly certified technician--Immunity from liability. In respect to a gift of an eye as provided for in § 34-26-21, a technician who has completed the certification course in enucleation of eyes offered by the South Dakota Lions Eye Bank or an equivalent course and has been certified by a duly accredited eye bank as meeting the standards of practice for eye enucleation may, at the direction of an ophthalmologist, enucleate eyes for such a gift after pronouncement of death by a physician and compliance with the intent of such a gift as defined in this chapter. No such properly certified technician acting in accordance with the terms of this chapter is liable, civilly or criminally, for such eye enucleation.

Source: SL 1973, ch 231; SL 1982, ch 266; SL 1992, ch 249, § 7; SL 1995, ch 197, § 3.

34-26-30. Delivery of document of anatomical gift. If the gift is made by the donor to a specified donee, the will, card, or other document, or an executed copy thereof, may be delivered to the donee to expedite the appropriate procedures immediately after death.

Delivery is not necessary to the validity of the gift. The will, card, or other document, or an executed copy thereof, may be deposited in any hospital, bank or storage facility, or registry office that accepts it for safekeeping or for facilitation of procedures after death.

On request of any interested party upon or after the donor's death, the person in possession shall produce the document for examination.

Source: SL 1969, ch 111, § 5.

34-26-31. Amendment or revocation of anatomical gift delivered to specified donee. If the will, card, or other document or executed copy thereof, has been delivered to a specified donee, the donor may amend or revoke the gift by: (1) The execution and delivery to the donee of a signed statement; or (2) An oral statement made in the presence of two persons and communicated to the donee; or (3) A statement during a terminal illness or injury addressed to an attending physician and communicated to the donee; or (4) A signed card or document found on his person or in his effects.

Source: SL 1969, ch 111, § 6 (1).

34-26-32. Revocation of undelivered document of anatomical gift. Any document of gift which has not been delivered to the donee may be revoked by the donor in the manner set out in § 34-26-31 or by destruction, cancellation, or mutilation of the document and all executed copies thereof.

Source: SL 1969, ch 111, § 6 (2).

34-26-33. Amendment or revocation of anatomical gift by will.Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills or as provided in § 34-26-31.

Source: SL 1969, ch 111, § 6 (3).

34-26-33.1. Amendment or revocation of anatomical gift by donor. A donor may amend or revoke an anatomical gift only by: (1) Removing the designation from the donor's driver license or nondriver identification card; (2) An oral statement made by the donor to two persons in the presence of each other or to an attorney or attorney-in-fact indicating the donor's intent to revoke the gift;

(3) Any form of communication made by the donor during a terminal illness or injury addressed to a physician or surgeon; or (4) A signed card or document found on the donor's person or in the donor's effects.

Source: SL 2001, ch 186, § 4.

34-26-33.2. Anatomical gift irrevocable by any person other than donor--On donor's death no person's consent required. An anatomical gift of any part of the body under § 34-26-21 made pursuant to §§ 34-26-22 to 34-26-23.1, inclusive, is irrevocable by any person other than the donor as provided in § 34-26-33.1. An anatomical gift does not require the consent or concurrence of any person after the donor's death.

Source: SL 2001, ch 186, § 3.

34-26-34. Determination of time of death of donor of anatomical gift--Attending physician not to participate in removal or transplant of part. The time of death shall be determined by a physician who attends the donor at his death or, if none, the physician who certifies the death. The physician shall not participate in the procedures for removing or transplanting a part.

Source: SL 1969, ch 111, § 7 (2).

34-26-35. Rights of donee paramount--Exception. The rights of the donee created by the gift are paramount to the rights of others except as provided by § 34-26-38.

Source: SL 1969, ch 111, § 2 (5).

34-26-36. Examination for medical acceptability authorized by anatomical gift. A gift of all or part of a body authorizes any examination necessary to assure medical acceptability of the gift for the purposes intended.

Source: SL 1969, ch 111, § 2 (4).

34-26-37. Acceptance or rejection of anatomical gift by donee--Removal of part of body. The donee may accept or reject the gift. If the donee accepts a gift of the entire body, he may, subject to the terms of the gift, authorize embalming and the use of the body in funeral services. If the gift is of a part of the body, the donee, upon the death of the donor and prior to embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin, or other persons under obligation to dispose of the body.

Source: SL 1969, ch 111, § 7 (1).

34-26-38. Anatomical gift provisions subject to autopsy laws.The provisions of §§ 3426-20 to 34-26-41, inclusive, are subject to the laws of this state prescribing powers and duties with respect to autopsies.

Source: SL 1969, ch 111, § 7 (4).

34-26-39. Exemption from civil or criminal liability for good faith actions under anatomical gift laws. A person who acts in good faith in accord with the terms of §§ 3426-20 to 34-26-41, inclusive, or the anatomical gift laws of another state or a foreign country is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.

Source: SL 1969, ch 111, § 7 (3).

34-26-40. Uniformity of interpretation of anatomical gift provisions. Sections 34-2620 to 34-26-41, inclusive, shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them.

Source: SL 1969, ch 111, § 8.

34-26-41. Citation of anatomical gift provisions. Sections 34-26-20 to 34-26-41, inclusive, may be cited as the Uniform Anatomical Gift Act. Source: SL 1969, ch 111, § 9.

34-26-42. "Human organ" defined. For the purposes of §§ 34-26-42 to 34-26-46, inclusive, the term, human organ, means the human kidney, liver, heart, lung, pancreas, eye, or any other human organ or nonrenewable or nonregenerative tissue except plasma and sperm.

Source: SL 1992, ch 248, § 1; SL 1995, ch 197, § 4.

34-26-43. Valuable consideration for organ donation. For the purposes of §§ 34-2642 to 34-26-46, inclusive, the term, valuable consideration, means financial gain or advantage, but does not include the reasonable costs associated with the removal, storage, transportation, and transplantation of a human organ, or reimbursement for those services, or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.

Source: SL 1992, ch 248, § 2.

34-26-44. Sale or purchase of human organs prohibited--Violation as felony. No person may knowingly acquire, receive, sell, promote the transfer of, or otherwise transfer any human organ, for purposes of transplantation for valuable consideration. A violation of this section is a Class 6 felony.

Source: SL 1992, ch 248, § 3.

34-26-45. Removal or transplantation of human organ sold for valuable consideration prohibited--Violation as felony. No person may remove or transplant any human organ with the knowledge that the organ has been acquired or will be transferred or sold for valuable consideration in violation of § 34-26-44. A violation of this section is a Class 6 felony.

Source: SL 1992, ch 248, § 4.

34-26-46. Liability of physician or surgeon under emergency conditions. No licensed physician or surgeon who transplants a human organ in violation of § 34-26-45 is criminally liable pursuant to that section if the act is performed under emergency or lifethreatening conditions.

Source: SL 1992, ch 248, § 5.

34-26-47. Hospital protocol for identifying potential organ donors. A hospital shall establish written protocols for the identification of potential human organ, eye, and tissue donors that: (1) Assure that families of potential donors are made aware of the option of organ, eye, and tissue donation and their option to decline; (2) Encourage discretion and sensitivity with respect to the circumstances, views, and beliefs of such families; (3) Require that an organ procurement agency designated by the United States secretary of health and human services be notified of potential organ donors; and (4) Require that an eye and tissue organization designated by the hospital be notified of potential eye and tissue donors.

Source: SL 1992, ch 249, § 1; SL 1995, ch 197, § 5.

34-26-48. Short title. Sections 34-26-48 to 34-26-72, inclusive, may be cited as the Revised Uniform Anatomical Gift Act. Source: SL 2007, ch 197, § 1.

34-26-49.

(1)

Definitions. In §§ 34-26-48 to 34-26-72, inclusive: "Adult" means an individual who is at least eighteen years of age.

(2) "Agent" means an individual: (A) Authorized to make health care decisions on the principal's behalf by a power of attorney for health care; or (B) Expressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal.

(3) "Anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education.

(4) "Decedent" means a deceased individual whose body or part is or may be the source of an anatomical gift. The term does not include a blastocyst, embryo, or fetus that is the subject of an induced abortion.

(5) "Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift, or another adult who exhibited special care and concern for the individual. The term does not include a person to which an anatomical gift could pass under ยง 34-26-58.

(6) "Document of gift" means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a driver's license, identification card, or donor registry.

(7) "Donor" means an individual whose body or part is the subject of an anatomical gift.

(8) "Donor registry" means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.

(9) "Driver's license" means a license or permit issued by the Department of Public Safety to operate a vehicle, whether or not conditions are attached to the license or permit.

(10) "Eye bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.

(11) "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term does not include a guardian ad litem.

(12) "Hospital" means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state.

(13) "Identification card" means an identification card issued by the Department of Public Safety.

(14) "Know" means to have actual knowledge.

(15) "Minor" means an individual who is under eighteen years of age.

(16) "Organ procurement organization" means a person designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization.

(17) "Parent" means a parent whose parental rights have not been terminated.

(18) "Part" means an organ, an eye, or tissue of a human being. The term does not include the whole body.

(19) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation,

government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(20) "Physician" means an individual authorized to practice medicine or osteopathy under the law of any state.

(21) "Procurement organization" means an eye bank, organ procurement organization, or tissue bank.

(22) "Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. The term does not include an individual who has made a refusal.

(23) "Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.

(24) "Recipient" means an individual into whose body a decedent's part has been or is intended to be transplanted.

(25) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(26) "Refusal" means a record created under ยง 34-26-54 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part.

(27) "Sign" means, with the present intent to authenticate or adopt a record: (A) To execute or adopt a tangible symbol; or (B) To attach to or logically associate with the record an electronic symbol, sound, or process.

(28) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(29) "Technician" means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law. The term includes an enucleator.

(30) "Tissue" means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education.

(31) "Tissue bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue.

(32) "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.

Source: SL 2007, ch 197, ยง 2.

34-26-50. Applicability. Sections 34-26-48 to 34-26-72, inclusive, apply to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift, whenever made.

Source: SL 2007, ch 197, ยง 3.

34-26-51. Who may make anatomical gift before donor's death. Subject to ยง 34-2655, an anatomical gift of a donor's body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in ยง 34-26-52 by: (1) The donor, if the donor is an adult or if the donor is a minor and is: (A) Emancipated; or (B) Authorized under state law to apply for a driver's license because the donor is at least fourteen years of age, provided, that if the minor is unemancipated, a parent or guardian has consented that the organ donor indicator be placed on the minor's driver license or nondriver identification card; (2) An agent of the donor, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift; (3) A parent of the donor, if the donor is an unemancipated minor; or (4) The donor's guardian.

Source: SL 2007, ch 197, ยง 4.

34-26-52. Manner of making anatomical gift before donor's death. (a) A donor may make an anatomical gift: (1) By authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor's driver's license or identification card; (2) In a will; (3) During a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness; or (4) As provided in subsection (b). (b) A donor or other person authorized to make an anatomical gift under ยง 34-26-51 may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and must: (1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and (2) State that it has been signed and witnessed as provided in paragraph (1). (c) Revocation, suspension, expiration, or cancellation of a driver's license or identification card upon which an anatomical gift is indicated does not invalidate the gift. (d) An anatomical gift made by will takes effect upon the donor's death whether or not the will is probated. Invalidation of the will after the donor' death does not invalidate the gift.

Source: SL 2007, ch 197, ยง 5.

34-26-53. Amending or revoking anatomical gift before donor's death. (a) Subject to § 34-26-55, a donor or other person authorized to make an anatomical gift under § 3426-51 may amend or revoke an anatomical gift by: (1) A record signed by: (A) The donor; (B) The other person; or (C) Subject to subsection (b), another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or (2) A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency. (b) A record signed pursuant to subsection (a)(1)(C) must: (1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and (2) State that it has been signed and witnessed as provided in paragraph (1). (c) Subject to § 34-26-55, a donor or other person authorized to make an anatomical gift under § 34-26-51 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift. (d) A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness. (e) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (a).

Source: SL 2007, ch 197, § 6.

34-26-54. Refusal to make anatomical gift--Effect of refusal.(a) An individual may refuse to make an anatomical gift of the individual's body or part by: (1) A record signed by: (A) The individual; or (B) Subject to subsection (b), another individual acting at the direction of the individual if the individual is physically unable to sign; (2) The individual's will, whether or not the will is admitted to probate or invalidated after the individual's death; or (3) Any form of communication made by the individual during the individual's terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness. (b) A record signed pursuant to subsection (a)(1)(B) must: (1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and (2) State that it has been signed and witnessed as provided in paragraph (1). (c) An individual who has made a refusal may amend or revoke the refusal: (1) In the manner provided in subsection (a) for making a refusal; (2) By subsequently making an anatomical gift pursuant to § 34-26-52 that is inconsistent with the refusal; or

(3) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal. (d) Except as otherwise provided in § 34-26-55(h), in the absence of an express, contrary indication by the individual set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or part bars all other persons from making an anatomical gift of the individual's body or part.

Source: SL 2007, ch 197, § 7.

34-26-55. Preclusive effect of anatomical gift, amendment, or revocation. (a) Except as otherwise provided in subsection (g) and subject to subsection (f), in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor's body or part if the donor made an anatomical gift of the donor's body or part under § 34-26-52 or an amendment to an anatomical gift of the donor's body or part under § 34-26-53. (b) A donor's revocation of an anatomical gift of the donor's body or part under § 3426-53 is not a refusal and does not bar another person specified in § 34-26-51 or 34-2656 from making an anatomical gift of the donor's body or part under § 34-26-52 or 3426-57. (c) If a person other than the donor makes an unrevoked anatomical gift of the donor's body or part under § 34-26-52 or an amendment to an anatomical gift of the donor's body or part under § 34-26-53, another person may not make, amend, or revoke the gift of the donor's body or part under § 34-26-57. (d) A revocation of an anatomical gift of a donor's body or part under § 34-26-53 by a person other than the donor does not bar another person from making an anatomical gift of the body or part under § 34-26-52 or 34-26-57. (e) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under § 34-26-51, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person. (f) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under § 34-26-51, an anatomical gift of a part for one or more of the purposes set forth in § 34-26-51 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under § 34-26-52 or 34-26-57. (g) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part. (h) If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor's refusal.

Source: SL 2007, ch 197, § 8.

34-26-56. Who may make anatomical gift of decedent's body or part. (a) Subject to subsections (b) and (c) and unless barred by § 34-26-54 or § 34-26-55, an anatomical gift of a decedent's body or part for purpose of transplantation, therapy, research, or

education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed: (1) An agent of the decedent at the time of death who could have made an anatomical gift under § 34-26-51(2) immediately before the decedent's death; (2) The spouse of the decedent; (3) Adult children of the decedent; (4) Parents of the decedent; (5) Adult siblings of the decedent; (6) Adult grandchildren of the decedent; (7) Grandparents of the decedent; (8) An adult who exhibited special care and concern for the decedent; (9) The persons who were acting as the guardians of the person of the decedent at the time of death; and (10) Any other person having the authority to dispose of the decedent's body. (b) If there is more than one member of a class listed in subsection (a) (1), (3), (4), (5), (6), (7), or (9) entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under § 34-26-58 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available. (c) A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior class under subsection (a) is reasonably available to make or to object to the making of an anatomical gift.

Source: SL 2007, ch 197, § 9.

34-26-57. Manner of making, amending, or revoking anatomical gift of decedent's body or part. (a) A person authorized to make an anatomical gift under § 34-26-56 may make an anatomical gift by a document of gift signed by the person making the gift or by that person's oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication. (b) Subject to subsection (c), an anatomical gift by a person authorized under § 3426-56 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under § 34-26-56 may be: (1) Amended only if a majority of the reasonably available members agree to the amending of the gift; or (2) Revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift. (c) A revocation under subsection (b) is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation.

Source: SL 2007, ch 197, § 10.

34-26-58. Persons who may receive anatomical gift--Purpose of anatomical gift. (a) An anatomical gift may be made to the following persons named in the document of gift: (1) A hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education; (2) Subject to subsection (b), an individual designated by the person making the anatomical gift if the individual is the recipient of the part; (3) An eye bank or tissue bank. (b) If an anatomical gift to an individual under subsection (a)(2) cannot be transplanted into the individual, the part passes in accordance with subsection (g) in the absence of an express, contrary indication by the person making the anatomical gift. (c) If an anatomical gift of one or more specific parts or of all parts is made in a document of gift that does not name a person described in subsection (a) but identifies the purpose for which an anatomical gift may be used, the following rules apply: (1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank.

(2) If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank.

(3) If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ.

(4) If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization. (d) For the purpose of subsection (c), if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education. (e) If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in subsection (a) and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g). (f) If a document of gift specifies only a general intent to make an anatomical gift by words such as donor, organ donor, or body donor, or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g). (g) For purposes of subsections (b), (e), and (f) the following rules apply: (1) If the part is an eye, the gift passes to the appropriate eye bank.

(2) If the part is tissue, the gift passes to the appropriate tissue bank.

(3) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ. (h) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under subsection (a)(2), passes to the organ procurement organization as custodian of the organ. (i) If an anatomical gift does not pass pursuant to subsections (a) through (h) or the decedent's body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part.

(j) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under § 34-26-52 or 34-26-57 or if the person knows that the decedent made a refusal under § 34-26-54 that was not revoked. For purposes of the subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift. (k) Except as otherwise provided in subsection (a)(2), nothing in §§ 34-26-48 to 3426-72, inclusive, affects the allocation of organs for transplantation or therapy.

Source: SL 2007, ch 197, § 11.

34-26-59. Search and notification. (a) The following persons shall make a reasonable search of an individual who the person reasonably believes is dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal: (1) A law enforcement officer, firefighter, paramedic, or other emergency rescuer finding the individual; and (2) If no other source of the information is immediately available, a hospital, as soon as practical after the individual's arrival at the hospital. (b) If a document of gift or a refusal to make an anatomical gift is located by the search required by subsection (a)(1) and the individual or deceased individual to whom it relates is taken to a hospital, the person responsible for conducting the search shall send the document of gift or refusal to the hospital. (c) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section.

Source: SL 2007, ch 197, § 12.

34-26-60. Delivery of document of gift not required--Right to examine. (a) A document of gift need not be delivered during the donor's lifetime to be effective. (b) Upon or after an individual's death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass under § 34-26-58.

Source: SL 2007, ch 197, § 13.

34-26-61. Rights and duties of procurement organization and others. (a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Department of Public Safety and any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.

(b) A procurement organization must be allowed reasonable access to information in the records of the Department of Public Safety to ascertain whether an individual at or near death is a donor. (c) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor.

During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent. (d) Unless prohibited by law other than §§ 34-26-48 to 34-26-72, inclusive, at any time after a donor's death, the person to which a part passes under § 34-26-58 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose. (e) Unless prohibited by law other than §§ 34-26-48 to 34-26-72, inclusive, an examination under subsection (c) or (d) may include an examination of all medical and dental records of the donor or prospective donor. (f) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal. (g) Upon referral by a hospital under subsection (a), a procurement organization shall make a reasonable search for any person listed in § 34-26-56 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information. (h) Subject to §§ 34-26-58(i) and 34-26-70, the rights of the person to which a part passes under § 34-26-58 are superior to the rights of all others with respect to the part.

The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and §§ 34-26-48 to 34-26-72, inclusive, a person that accepts an anatomical gift of an entire body may allow embalming, burial or cremation, and use of remains in a funeral service. If the gift is of a part, the person to which the part passes under § 34-26-58, upon the death of the donor and before embalming, burial, or cremation, shall cause the part to be removed without unnecessary mutilation. (i) Neither the physician who attends the decedent at death nor the physician who determines the time of the decedent's death may participate in the procedures for removing or transplanting a part from the decedent. (j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.

Source: SL 2007, ch 197, § 14.

34-26-62. Coordination of procurement and use. Each hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.

Source: SL 2007, ch 197, § 15.

34-26-63. Sale or purchase of parts prohibited. (a) Except as otherwise provided in subsection (b), a person that for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual's death commits a Class 5 felony. (b) A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation, or disposal of a part.

Source: SL 2007, ch 197, § 16.

34-26-64. Other prohibited acts. A person that, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces, or obliterates a document of gift, an amendment or revocation of a document of gift, or a refusal commits a Class 5 felony.

Source: SL 2007, ch 197, § 17.

34-26-65. Immunity. (a) A person that acts in accordance with §§ 34-26-48 to 3426-72, inclusive, or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution, or administrative proceeding. (b) Neither the person making an anatomical gift nor the donor's estate is liable for any injury or damage that results from the making or use of the gift. (c) In determining whether an anatomical gift has been made, amended, or revoked under §§ 34-26-48 to 34-26-72, inclusive, a person may rely upon representations of an individual listed in § 34-26-56(a)(2), (3), (4), (5), (6), (7), or (8) relating to the individual's relationship to the donor or prospective donor unless the person knows that the representation is untrue.

Source: SL 2007, ch 197, § 18.

34-26-66. Law governing validity--Choice of law as to execution of document of gift-Presumption of validity. (a) A document of gift is valid if executed in accordance with: (1) Sections 34-26-48 to 34-26-72, inclusive; (2) The laws of the state or country where it was executed; or (3) The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed. (b) If a document of gift is valid under this section, the law of this state governs the interpretation of the document of gift. (c) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked.

Source: SL 2007, ch 197, § 19.

34-26-67. Donor registry. (a) The Department of Public Safety may establish or contract for the establishment of a donor registry. (b) The Department of Public Safety shall cooperate with a person that administers any donor registry that this state establishes, contracts for, or recognizes for the purpose of transferring to the donor registry all relevant information regarding a donor's making, amendment to, or revocation of an anatomical gift. (c) A donor registry must: (1) Allow a donor or other person authorized under ยง 34-26-51 to include on the donor registry a statement or symbol that the donor has made, amended, or revoked an anatomical gift; (2) Be accessible to a procurement organization to allow it to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift; and (3) Be accessible for purposes of paragraph (2) seven days a week on a twenty-four hour basis. (d) Personally identifiable information on a donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor, or person that made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift. (e) This section does not prohibit any person from creating or maintaining a donor registry that is not established by or under contract with the state. Any such registry must comply with subsections (c) and (d).

Source: SL 2007, ch 197, ยง 20.

34-26-68. Effect of anatomical gift on advance health care directive. (a) In this section: (1) "Advance health care directive" means a power of attorney for health care or a record signed by a prospective donor containing the prospective donor's direction concerning a health care decision for the prospective donor.

(2) "Declaration" means a record signed by a prospective donor specifying the circumstances under which a life support system may be withheld or withdrawn from the prospective donor.

(3) "Health care decision" means any decision made regarding the health care of the prospective donor. (b) If a prospective donor has a declaration or advance health care directive, measures necessary to ensure the medical suitability of an organ for transplantation or therapy may not be withheld or withdrawn from the prospective donor, unless the declaration expressly provides to the contrary.

Source: SL 2007, ch 197, ยง 21.

34-26-69. Cooperation between coroner and procurement organization. (a) A coroner shall cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education. (b) If a coroner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the coroner and a post-mortem examination is going to be performed, unless the coroner denies recovery in accordance with ยง 34-26-70, the coroner or designee shall conduct a post-mortem examination of the body or the part in a manner and within a period compatible with its preservation for the purposes of the gift. (c) A part may not be removed from the body of a decedent under the jurisdiction of a coroner for transplantation, therapy, research, or education unless the part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the coroner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection does not preclude a coroner from performing the medicolegal investigation upon the body or parts of a decedent under the jurisdiction of the coroner.

Source: SL 2007, ch 197, ยง 22.

34-26-70. Facilitation of anatomical gift from decedent whose body is under jurisdiction of coroner. (a) Upon request of a procurement organization, a coroner shall release to the procurement organization the name, contact information, and available medical and social history of a decedent whose body is under the jurisdiction of the coroner. If the decedent's body or part is medically suitable for transplantation, therapy, research, or education, the coroner shall release post-mortem examination results to the procurement organization. The procurement organization may make a subsequent disclosure of the post-mortem examination results or other information received from the coroner only if relevant to transplantation or therapy. (b) The coroner may conduct a medicolegal examination by reviewing all medical records, laboratory test results, X rays, other diagnostic results, and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the coroner which the coroner determines may be relevant to the investigation. (c) A person that has any information requested by a coroner pursuant to subsection (b) shall provide that information as expeditiously as possible to allow the coroner to conduct the medicolegal investigation within a period compatible with the preservation of parts for the purpose of transplantation, therapy, research, or education. (d) If an anatomical gift has been or might be made of a part of a decedent whose body is under the jurisdiction of the coroner and a post- mortem examination is not required, or the coroner determines that a post- mortem examination is required but that the recovery of the part that is the subject of an anatomical gift will not interfere with the examination, the coroner and procurement organization shall cooperate in the timely removal of the part from the decedent for the purpose of transplantation, therapy, research, or education. (e) If an anatomical gift of a part from the decedent under the jurisdiction of the coroner has been or might be made, but the coroner initially believes that the recovery of the part could interfere with the post-mortem investigation into the decedent's cause or

manner of death, the coroner shall consult with the procurement organization or physician or technician designated by the procurement organization about the proposed recovery.

After consultation, the coroner may allow the recovery. (f) Following the consultation under subsection (e), in the absence of mutually agreed upon protocols to resolve conflict between the coroner and the procurement organization, if the coroner intends to deny recovery of an organ for transplantation, the coroner or designee, at the request of the procurement organization, shall attend the removal procedure for the part before making a final determination not to allow the procurement organization to recover the part. During the removal procedure, the coroner or designee may allow recovery by the procurement organization to proceed, or, if the coroner or designee reasonably believes that the part may be involved in determining the decedent's cause or manner of death, deny recovery by the procurement organization. (g) If the coroner or designee denies recovery under subsection (f), the coroner or designee shall: (1) Explain in a record the specific reasons for not allowing recovery of the part; (2) Include the specific reasons in the records of the coroner; and (3) Provide a record with the specific reasons to the procurement organization. (h) If the coroner or designee allows recovery of a part under subsection (d), (e), or (f), the procurement organization, upon request, shall cause the physician or technician who removes the part to provide the coroner with a record describing the condition of the part, a biopsy, a photograph, and any other information and observations that would assist in the post-mortem examination. (i) If a coroner or designee is required to be present at a removal procedure under subsection (f), upon request the procurement organization requesting the recovery of the part shall reimburse the coroner or designee for the additional costs incurred in complying with subsection (f).

Source: SL 2007, ch 197, ยง 23.

34-26-71. Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source: SL 2007, ch 197, ยง 24.

34-26-72. Relation to Electronic Signatures in Global and National Commerce Act. Sections 34-26-48 to 34-26-72, inclusive, modify, limit, and supersede the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. section 7001 et seq., but does not modify, limit or supersede section 101(a) of that act, 15 U.S.C. section 7001, or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).

Source: SL 2007, ch 197, ยง 25.

CHAPTER 34-26A CREMATORIES AND CREMATIONS

34-26A-1. Definition of terms. Terms used in this chapter mean: (1) "Board," the State Board of Funeral Service; (1A) "Casket," a rigid container which is designed for the encasement of human remains and which is usually constructed of wood, metal, or like material and ornamented and lined with fabric; (2) "Closed container," any container in which cremated remains can be placed and closed in a manner so as to prevent leakage or spillage of cremated remains or the entrance of foreign material; (3) "Cremated remains," all human remains recovered after the completion of the cremation process, including pulverization which leaves only bone fragments reduced to unidentifiable dimensions; (4) "Cremation," the technical process, using heat, that reduces human remains to bone fragments. The reduction takes place through heat and evaporation; (5) "Cremation chamber," the enclosed space within which the cremation process takes place. Cremation chambers covered by these procedures shall be used exclusively for the cremation of human remains; (6) "Cremation container," the container in which the human remains are placed in the cremation chamber for a cremation. A cremation container shall be composed of readily combustible materials suitable for cremation, be able to be closed in order to provide a complete covering for the human remains, be resistant to leakage or spillage, be rigid enough for handling with ease, and be able to provide protection for the health, safety, and personal integrity of crematory personnel; (7) "Crematory authority," the legal entity or the authorized representative of the legal entity which is licensed by the board to operate a crematory and perform cremation; (8) "Crematory," the building or portion of a building that houses the cremation chamber and the holding facility; (9) "Holding facility," an area within or adjacent to the crematory facility designated for the retention of human remains prior to cremation that complies with any applicable public health law, preserves the dignity of the human remains, recognizes the integrity, health, and safety of the crematory authority personnel operating the crematory, and is secure from access by anyone other than authority personnel; (10) "Human remains," the body of a deceased person, not including pathological waste; (11) "Niche," a compartment or cubicle for the memorialization or permanent placement of an urn containing cremated remains; (12) "Pathological waste," human tissues, organs, and blood or body fluids, in liquid or semiliquid form, that are removed from a person for medical purposes during treatment, surgery, biopsy, or autopsy; (13) "Scattering area," a designated area for the scattering of cremated remains;

(14) "Temporary container," a receptacle for cremated remains usually made of cardboard, plastic film, or similar material designed to hold the cremated remains until an urn or other permanent container is acquired; and (15) "Urn," a receptacle designed to permanently encase the cremated remains.

Source: SL 1988, ch 283, § 1; SL 1989, ch 298, §§ 1, 2; SL 1998, ch 211, §§ 1 to 3.

34-26A-2. Authorizing agent defined--Public official or institutional representative as authorizing agent. The authorizing agent is any person according to the priority established in § 34-26-16 legally entitled to order the cremation of human remains including a spouse, a parent, a child, or a close relative of the deceased, or in the absence of any of these, a friend of the deceased. For an indigent or any other individual whose final disposition is the responsibility of the state, a public official charged with arranging the final disposition of the deceased may serve as the authorizing agent. For an individual who has donated his body to science, or whose death occurred in a private institution, and in which the institution is charged with making arrangements for the final disposition of the deceased, a representative of the institution may serve as the authorizing agent.

Source: SL 1988, ch 283, § 2.

34-26A-3. Erection and maintenance of crematory--Who is authorized--Building codes, environmental standards and zoning regulations. Any resident of this state, or any cemetery, funeral establishment, corporation, partnership, joint venture, voluntary organization, or any other entity may erect, maintain, and conduct a crematory in this state and provide the necessary appliances and facilities for the cremation of human remains in accordance with this chapter. A crematory shall conform with all local building codes and environmental standards, and it may be constructed on, or adjacent to, any cemetery, on or adjacent to any funeral establishment that is zoned commercial or industrial, or at any other location consistent with local zoning regulations.

Source: SL 1988, ch 283, § 3.

34-26A-4. Application for licensure or renewal--Forms--Fee--Contents--Annual examination--Notice on change of ownership. An application for licensure or renewal of a license as a crematory authority shall be on forms furnished and prescribed by the board.

Applications shall be in writing, accompanied by a license or renewal fee of one hundred dollars and shall contain the name of the applicant, the address and location of the crematory, a description of the type of structure and equipment to be used in the operation of the crematory, and any other information the board may reasonably require.

The board shall annually examine the premises and structure to be used as a crematory and shall issue a license or renew a license for the crematory authority, if the applicant meets all requirements of this chapter. If a change of ownership of a crematory occurs, within thirty days of the change, the crematory authority shall provide the board with the names and addresses of the new owners.

Source: SL 1988, ch 283, § 4; SL 1998, ch 211, § 4.

34-26A-5. Cremation prohibited except in licensed crematory--Violation as misdemeanor. No person may cremate any human remains, except in a crematory licensed for this express purpose and under the limitations provided in this chapter. A violation of this section is a Class 2 misdemeanor.

Source: SL 1988, ch 283, § 5; SL 2000, ch 173, § 1.

34-26A-6. Documentation required for cremation--Cremation authorization form-Burial permit--Other local documentation.Except as otherwise provided in this chapter, no crematory authority may cremate human remains until it has received: (1) A cremation authorization form signed by an authorizing agent and the crematory authority. The cremation authorization form shall be provided by the crematory authority and shall contain the identity of the human remains, the name of the authorizing agent and the relationship between the authorizing agent and the deceased, authorization for the crematory authority to cremate the human remains, a representation that the authorizing agent is aware of no objection to the human remains being cremated by any person who has a right to control the disposition of the human remains, and the name of the person authorized to claim the cremated remains from the crematory authority; (2) A completed and executed burial permit, as provided in § 34-25-24, indicating that the human remains are to be cremated; and (3) Any other documentation required by the county or municipality.

Source: SL 1988, ch 283, § 6.

34-26A-7. Delegation of authority of authorizing agent--Reliance on authorization form without liability. If an authorizing agent is not available to execute the cremation authorization form, he may delegate that authority to another person in writing, or, if located outside of the area, by sending the crematory authority a telegram that contains the name, address, and relationship of the sender to the deceased and the name and address of the individual to whom authority is delegated. Upon receipt of the written delegation document or a copy of this telegram, this individual may serve as the authorizing agent and execute the cremation authorization form, and the crematory authority may rely upon the cremation authorization form without liability.

Source: SL 1988, ch 283, § 7.

34-26A-8. Receipt upon receiving human remains--Contents--Signatures. Upon the receipt of human remains, the crematory authority shall furnish to the person who delivers the human remains a receipt signed by both the crematory authority and the person who delivers the human remains showing the date of delivery, the name of the person from whom the human remains were received and that person's employer, the name of the person who received the human remains on behalf of the crematory

authority, and the name and license number of the crematory authority, and the name of the deceased. The crematory authority shall retain a copy of this receipt.

Source: SL 1988, ch 283, § 8.

34-26A-9. Record of cremations. A crematory authority shall retain at its place of business a record of each cremation which takes place at its facility, which record shall contain the information provided for in §§ 34-26A-6 to 34-26A-8, inclusive, and the date the cremation and disposition of the cremated remains took place.

Source: SL 1988, ch 283, § 9.

34-26A-10. Acceptance of unidentified human remains prohibited--Identification on exterior of cremation container. No crematory authority may accept unidentified human remains. If the crematory authority takes custody subsequent to the human remains being placed within a cremation container, the crematory authority shall place appropriate identification upon the exterior of the cremation container.

Source: SL 1988, ch 283, § 10.

34-26A-11. Filing of burial permit on completion of cremation.Upon completion of the cremation, the crematory authority shall file the burial permit with the local registrar of vital records pursuant to § 34-25-24.

Source: SL 1988, ch 283, § 11.

34-26A-12. Casket not to be required by crematory authority--Cremation container to be cremated absent written instructions to the contrary. Except as provided in this section no crematory authority may make or enforce any rules requiring that human remains be placed in a casket before cremation or that human remains be cremated in a casket, nor may the crematory refuse to accept human remains for cremation for the reason that the human remains are not in a casket. No human remains delivered to a crematory may be removed from the cremation container and the cremation container shall be cremated with the human remains, unless the crematory authority has been provided with written instructions to the contrary by the authorizing agent.

Source: SL 1988, ch 283, § 12.

34-26A-13. When cremation may take place--Investigation by coroner--Waiver of time requirement. No human remains may be cremated within twenty-four hours after the time of death, as indicated on the medical certificate of death, or the coroner's certificate.

If the death is such as is to be investigated by a coroner, the human remains may not be

cremated by the crematory authority until the coroner has completed his investigation and authorization to cremate has been received in writing from the coroner of the county in which the death occurred. In no instance may the lapse of time between the death and any cremation be less than twenty-four hours, unless the death was a result of an infectious, contagious, or communicable and dangerous disease, and the time requirement is waived in writing by the coroner or the attending physician where the death occurred.

Source: SL 1988, ch 283, ยง 13.

34-26A-14. Notification of coroner by crematory authority in certain cases-Investigation--Authorization to cremate. If the crematory authority receives the human remains of a deceased person who the crematory authority has reason to believe may have died by unlawful means or is subject to investigation under ยง 23-14-18, the crematory authority shall notify the coroner of the county where the death occurred of this belief. After this notice, the human remains may not be cremated until the coroner has completed his investigation, if any, and authorization to cremate has been received in writing from the coroner by the crematory authority.

Source: SL 1988, ch 283, ยง 14.

34-26A-15. Removal of pacemaker or hazardous implants. No body may be cremated with a pacemaker in place. The party that authorizes the cremation of the human remains shall be responsible for taking all necessary steps to ensure that any pacemakers or hazardous implants are removed before cremation.

Source: SL 1988, ch 283, ยง 15.

34-26A-16. Holding human remains before cremation--Refrigeration--Leaking cremation container need not be accepted. A crematory authority may hold human remains, before the cremation of the remains, according to the following subdivisions: (1) If a crematory authority is unable to cremate the human remains immediately upon taking custody of the remains, the crematory authority shall place the unembalmed human remains in a refrigerated holding facility; (2) No crematory authority may be required to accept for holding a cremation container from which there is any evidence of leakage of the body fluids from the human remains therein; and (3) Human remains that are not embalmed shall be held within a refrigerated facility.

Source: SL 1988, ch 283, ยง 16.

34-26A-17. Unauthorized persons not permitted in crematory area. No unauthorized person may be permitted in the crematory area while any human remains are in the

crematory area awaiting cremation, being cremated, or being removed from the cremation chamber.

Source: SL 1988, ch 283, ยง 17.

34-26A-18. Simultaneous cremations forbidden absent written authorization-Authorization as exemption from liability for commingling. The unauthorized, simultaneous cremation of the human remains of more than one person within the same cremation chamber is forbidden, unless the crematory authority has received specific written authorization to do so from all authorizing agents for the human remains to be so cremated. A written authorization exempts the crematory authority from all liability for commingling of the product of the cremation process.

Source: SL 1988, ch 283, ยง 18.

34-26A-19. Verification of identification before cremation.Immediately before being placed within the cremation chamber, the identification of the human remains, as indicated on the cremation container, shall be verified by the crematory authority and the identification shall be removed from the cremation container and placed near the cremation chamber control panel where it shall remain in place until the cremation process is complete.

Source: SL 1988, ch 283, ยง 19.

34-26A-20. Removal and processing of residue. Upon completion of the cremation, in so far as is possible, all of the recoverable residue of the cremation process shall be removed from the cremation chamber. In so far as possible, all residual of the cremation process shall be separated from anything other than bone fragments and then be processed so as to reduce them to an unidentifiable particle. Anything other than the particles shall be removed from the cremated residuals and shall be disposed of by the crematory authority.

Source: SL 1988, ch 283, ยง 20.

34-26A-21. Packing of cremated remains--Temporary container--Shipping. Cremated remains shall be packed according to the following subdivisions: (1) The cremated remains with proper identification shall be placed in a temporary container or urn. The temporary container or urn contents may not be contaminated with any other object, unless specific authorization has been received from the authorizing agent; (2) The cremated remains with proper identification shall be placed within the temporary container or urn ordered by the authorizing agent. If the cremated remains within the temporary container or urn do not adequately fill its interior dimensions, the

extra space may be filled with shredded paper, clean, absorbent cotton or comparable material, and the lid or top securely closed; (3) If the cremated remains will not fit within the dimensions of a temporary container or urn the remainder of the cremated remains shall be returned to the authorizing agent or its representative in a separate container; (4) If a temporary container is used to return the cremated remains, the container shall be placed in a suitable box and all box seams taped closed to increase the security and integrity of the container. The outside of the container shall be clearly identified with the name of the deceased person whose cremated remains are contained therein and the name of the cremation authority; and (5) If the cremated remains are to be shipped, the temporary container or designated receptacle ordered by the authorizing agent shall be packed securely in a suitable cardboard box and all seams taped closed to increase the security and integrity of the container. Cremated remains shall be shipped only by a method which has an internal tracing system available and which provides a receipt signed by the person accepting delivery.

Source: SL 1988, ch 283, ยง 21.

34-26A-22. Statement by authorizing agent specifying disposition of cremated remains--Retention of copy. The authorizing agent shall provide the person with whom cremation arrangements are made with a signed statement specifying the ultimate disposition of the cremated remains. A copy of this statement shall be retained by the crematory authority.

Source: SL 1988, ch 283, ยง 22.

34-26A-23. Responsibility of authorizing agent for disposition--Disposal of unclaimed remains--Reimbursement--Record--Discharge from liability. The authorizing agent is responsible for the disposition of the cremated remains. If, after a period of thirty days from the date of cremation, the authorizing agent has not specified the ultimate disposition or claimed the cremated remains, the crematory authority or the person in possession of the cremated remains may dispose of the cremated remains in any manner permitted by law. The authorizing agent is responsible for reimbursing the crematory authority for all reasonable expenses incurred in disposing of the cremated remains pursuant to this section. A record of such disposition shall be made and kept by the person making the disposition. Upon disposing of cremated remains under this section, the crematory authority or person in possession of the cremated remains is discharged from any legal obligation or liability concerning the cremated remains. This provision applies to all cremated remains currently in the possession of a crematory authority or other party.

Source: SL 1988, ch 283, ยง 23.

34-26A-24. Where cremated remains may be disposed of--Consent of property owner. In addition to disposing of cremated remains in a crypt, niche, grave, or scattering

garden located in a dedicated cemetery, or by scattering over the sea or other public waterways pursuant to ยง 34-26A-27, cremated remains may be disposed of in any manner on the private property of a consenting owner, upon direction of the authorizing agent. If cremated remains are to be disposed of on private property, other than dedicated cemetery property, the authorizing agent shall provide the crematory authority, with the written consent of the property owner and the legal description of the property.

Source: SL 1988, ch 283, ยง 24.

34-26A-25. Commingling of cremated remains prohibited--Exceptions. Except with the express written permission of the authorizing agent, no person may: (1) Dispose of or scatter cremated remains in such a manner or in such a location that the cremated remains are commingled with those of another person. The provisions of this subdivision do not apply to the scattering of cremated remains at sea or by air from individual closed containers or to the scattering of cremated remains in an area located in a dedicated cemetery and used exclusively for such purposes; or (2) Place cremated remains of more than one person in the same closed container. This subdivision does not apply to placing the cremated remains of members of the same family in a common closed container designed for the cremated remains of more than one person.

Source: SL 1988, ch 283, ยง 25.

34-26A-26. Delivery of cremated remains--Receipt--Transportation of remains. Cremated remains shall be delivered by the crematory authority to the individual specified by the authorizing agent on the cremation authorization form. The representative of the crematory authority and the individual receiving the cremated remains shall sign a receipt indicating the name of the deceased, and the date, time, and place of receipt. The crematory authority shall retain a copy of this receipt. After this delivery, the cremated remains may be transported in any manner in this state, without a permit, and disposed of in accordance with the provisions of this chapter.

Source: SL 1988, ch 283, ยง 26.

34-26A-27. Scattering of cremated remains--Filing of statement with local registrar-Time of release of remains by crematory authority--Violation as misdemeanor. Cremated remains may be scattered over a public waterway or sea, or on the private property of a consenting owner pursuant to the provisions of this chapter, if they are reduced to a particle size of one-eighth inch or less. A person may utilize a boat or airplane to perform the scattering. Cremated remains shall be removed from their closed container before they are scattered. Any person who scatters human remains, pursuant to this section, shall file with the local registrar of births and deaths, in the county nearest the point where the cremated remains are to be scattered, a verified statement containing the name of the deceased person, the time and place of death, the place at which the cremated remains are to be scattered, and any other information that the local registrar of births and deaths may require. If cremated remains are to be scattered pursuant to this

section, the crematory authority may not release the cremated remains to the authorizing agent before thirty days after the date of the cremation and until the crematory authority has been provided with a receipt indicating that the proper filing has been made with the local registrar of births and deaths. A violation of this section is a Class 2 misdemeanor.

Source: SL 1988, ch 283, § 27; SL 2000, ch 173, § 2.

34-26A-28. Cremation authorization form as warranty of identity, authority, etc.-Liability of person signing form. Any person signing a cremation authorization form is deemed to warrant the truthfulness of any facts set forth in the cremation authorization form, including the identity of the deceased whose remains are sought to be cremated and that person's authority to order the cremation. Any person signing a cremation authorization form is personally and individually liable for all damage occasioned thereby and resulting therefrom.

Source: SL 1988, ch 283, § 28.

34-26A-29. Right of crematory authority to cremate on receipt of authorization form-Immunity from liability--Exception. A crematory authority may cremate human remains upon the receipt of a cremation authorization form signed by an authorizing agent. No crematory authority that cremates human remains pursuant to an authorization or that releases or disposes of the cremated remains pursuant to an authorization, unless the crematory authority has actual knowledge that the representations contained in the cremation authorization form were untrue, is liable for such cremation.

Source: SL 1988, ch 283, § 29.

34-26A-30. Crematory authority not responsible for valuables.No crematory authority is responsible or liable for any valuables delivered to the crematory authority with human remains.

Source: SL 1988, ch 283, § 30.

34-26A-31. Refusal to accept body or perform cremation--When crematory authority not liable--Court order or resolution of dispute. No crematory authority is liable for refusing to accept a body or to perform a cremation until it receives a court order or other suitable confirmation that a dispute has been settled if: (1) It is aware of any dispute concerning the cremation of human remains; (2) It has a reasonable basis for questioning any of the representations made by the authorizing agent; or (3) For any other lawful reason.

Source: SL 1988, ch 283, § 31.

34-26A-32. Refusal to release cremated remains--When crematory authority not liable--Court order or resolution of dispute.If a crematory authority is aware of any dispute concerning the release or disposition of the cremated remains, the crematory authority may refuse to release the cremated remains until the dispute has been resolved or the crematory authority has been provided with a court order authorizing the release of disposition of the cremated remains. A crematory authority is not liable for refusing to release or dispose of cremated remains in accordance with this section.

Source: SL 1988, ch 283, § 32.

34-26A-33. Promulgation of rules by department--Contents--Adoption of rules by crematory authority. The board shall promulgate reasonable rules pursuant to chapter 126 as may be consistent with this chapter governing the cremation of human remains.

The rules specifically shall include the minimum standards of sanitation, refrigeration, required equipment, and fire protection for all crematories which the board may deem necessary for the protection of the public. A crematory authority may adopt reasonable rules, not inconsistent with this chapter, for the management and operation of a crematory.

Source: SL 1988, ch 283, § 33; SL 1998, ch 211, § 5.

34-26A-34. Maintenance of crematory in violation of chapter as nuisance-Abatement. Maintenance or operation of a building or structure within this state as a crematory in violation of the provisions of this chapter or the rules of the department adopted pursuant thereto is a public nuisance and may be abated as provided by law.

Source: SL 1988, ch 283, § 34.

34-26A-35. Holding self out as crematory authority without license or performing cremation without authorization form as misdemeanor. Holding oneself out to the public as a crematory authority without being licensed under this chapter, or performing a cremation without a cremation authorization form signed by an authorizing agent is a Class 1 misdemeanor.

Source: SL 1988, ch 283, § 35.

34-26A-36. Knowingly signing false authorization form as misdemeanor. Signing a cremation authorization form with the actual knowledge that the form contains false or incorrect information is a Class 1 misdemeanor.

Source: SL 1988, ch 283, § 36.

34-26A-37. Pre-need contract to specify ultimate disposition of cremated remains-Compliance with contract absent different instructions at time of death--Release from liability. Any pre-need contract sold by, or pre-need arrangements made with, a cemetery, funeral establishment, or any other party, that includes a cremation, shall specify the ultimate disposition of the cremated remains, and that portion of the agreement shall be initialed by the individual making the arrangements. If no additional or different instructions are provided to the crematory authority by the authorizing agent at the time of death, the crematory authority may release or dispose of the cremated remains as indicated in the pre-need agreement. Upon compliance with the terms of the pre-need agreement, the crematory authority is released from any liability concerning the disposition of the cremated remains.

Source: SL 1988, ch 283, ยง 37.

34-26A-38. Right to authorize one's own cremation on pre-need basis--Witnesses-Designation of crematory authority--Transfer or cancellation--Notice to department and crematory authority. Any person, on a pre-need basis, may authorize his own cremation and the disposition of his cremated remains, on a pre-need cremation authorization and signed by the person as authorizing agent and by two witnesses. The person may designate the crematory authority. A copy of this form shall be retained by the person and a copy sent to the crematory authority, if designated. The person may transfer or cancel this cremation authorization at any time before his death, by providing written notice to the department and crematory authority, if applicable.

Source: SL 1988, ch 283, ยง 38.

34-26A-39. Disposition of remains of deceased in accordance with pre-need authorization form--Best efforts of persons in possession of form or charged with making arrangements. At the time of a person's death, any person in possession of an executed pre-need cremation authorization form and any person charged with making arrangements for the final disposition of the deceased who has knowledge of the existence of an executed pre-need cremation authorization form, shall use his best efforts to ensure that the deceased is cremated and disposed of according to the instructions contained on the pre-need cremation authorization form.

Source: SL 1988, ch 283, ยง 39.

34-26A-40. Crematory authority to comply with pre-need authorization form-Immunity from liability. If a completed pre-need cremation authorization form is in the possession of, or is provided to, a crematory authority and the crematory authority is in possession of the designated human remains, the crematory authority shall cremate the human remains and dispose of the cremated remains pursuant to the instructions contained on the pre-need cremation authorization form, and may do so without any liability.

Source: SL 1988, ch 283, § 40.

34-26A-41. Employment of licensed funeral director by crematory authority. A crematory authority may employ a licensed funeral director for the purpose of arranging cremations with the general public, transporting human remains to the crematory, and processing all necessary paperwork. No provision of this chapter may be construed to require a licensed funeral director to perform any functions not otherwise required by law to be performed by a licensed funeral director.

Source: SL 1988, ch 283, § 41.

CHAPTER 34-27 CEMETERIES AND BURIAL RECORDS 34-27-1. Department of Health approval required for mausoleum construction plans. Before any person shall proceed to construct any mausoleum, vault, or other burial structure entirely or partly above ground, capable of containing twenty or more deceased human bodies for permanent interment, such person shall present the plans for such construction to the Department of Health and if approved by such department may proceed with the construction of such mausoleum, vault, or structure; and no such structure shall be erected otherwise than in accordance with the plans approved by such department.

Source: SL 1915, ch 248, § 1; RC 1919, § 7787; SDC 1939, § 27.1306.

34-27-2. Crypts and catacombs constructed to permit examination--Hermetical sealing. All crypts or catacombs, if any be placed in such mausoleum, vault, or other structure, shall be so constructed that all parts thereof may be readily examined by the Department of Health or any health officer, and such crypts or catacombs shall be so hermetically sealed after any deceased body or bodies shall have been placed therein, that no offensive or unhealthful odor or effluvia may escape therefrom.

Source: SL 1915, ch 248, § 2; RC 1919, § 7788; SDC 1939, § 27.1307.

34-27-3. Reinterment required where crypt or catacomb not properly sealed. Should any person fail to hermetically seal any such crypt or catacomb and by reason of such failure any offensive odor or effluvia shall arise therefrom, the Department of Health or any health officer shall upon the complaint of any resident of the township or first or second class municipality where such mausoleum, vault, or other burial structure may be

situated, compel the sexton or other person in charge of such burial structure immediately to remove the deceased body or bodies therefrom and properly inter the same at the expense of the person owning such burial structure; and if no such person can be found in the county where the same may be located, such interment shall be at the expense of the county where such burial structure may be situated.

Source: SL 1915, ch 248, § 3; RC 1919, § 7789; SDC 1939, § 27.1308; SL 1992, ch 60, § 2.

34-27-4. Violation as to mausoleum construction as misdemeanor. Any person who shall fail or refuse to comply with §§ 34-27-1 to 34-27-3, inclusive, shall be guilty of a Class 2 misdemeanor.

Source: SL 1915, ch 248, § 4; RC 1919, § 7790; SDC 1939, § 27.9928; SL 1977, ch 190, § 70.

34-27-5. Racial discrimination in cemetery as petty offense--Restrictive covenants void--Immunity from liability for damages. It is a petty offense for any organization subject to the provisions of chapter 55-12 to deny the privilege of interment of the remains of any deceased person in any cemetery described in § 55-12-1 solely because of the race or color of such deceased person. Any contract, agreement, deed, covenant, restriction, or charter provision at any time entered into, or bylaw, rule, or regulation adopted or put in force, either subsequent or prior to the effective date of this chapter, authorizing, permitting, or requiring any organization subject to the provisions of chapter 55-12 to deny such privilege of interment because of race or color of such deceased person is hereby declared to be null and void and in conflict with the public policy of this state. No organization subject to the provisions of chapter 55-12 or any director, officer, agent, employee, or trustee thereof or therefor, shall be liable for damages or other relief, or be subjected to any action in any court otherwise having jurisdiction in the premises by reason of refusing to commit any act prohibited by this section.

Source: SL 1955, ch 97, §§ 8, 9; SDC Supp 1960, §§ 11.19A08, 11.9902; SL 1977, ch 190, § 71.

34-27-6. Burial record book required of cemetery--Indexes--Ownership records-Official inspection. All copies of burial or removal permits shall be retained by the person in charge of any cemetery, or place of burial, and filed by him as a permanent record of such cemetery, and he shall forthwith make an exact copy of each burial or removal permit in a "burial record book," together with such additional information as may be prescribed by the secretary of health; such "burial record book" shall contain an alphabetical index, listing by name, all deceased persons interred or buried in the cemetery. Such cemetery burial record shall also provide a numerical or tract index, to be maintained by designating and numbering consecutively, each burial or removal permit, such permit number to be marked or noted on the individual grave space upon the cemetery plat or map, wherein such interment is or was made. Such person or cemetery

officials shall also keep and maintain as a permanent record, the name and address of all grantees and a description of each cemetery subdivision, lot, or grave space, to whom such title has been conveyed or where certain areas have been reserved for special purposes. All such burial records together with the cemetery plat or map, shall at all times be open to official inspection.

Source: SL 1931, ch 267, ยง 10; SDC 1939, ยง 27.0214; SL 1941, ch 124, ยง 4; SDC Supp 1960, ยง 27.0214 (2).

34-27-7. Purpose of requirements as to cemetery plats. It is the intent and purpose of ยงยง 34-27-8 and 34-27-9 to require every cemetery or place of burial to be platted or mapped into subdivisions, indicating individual grave spaces, thereby providing when such plat or map is placed on file in the registrar's office, a numerical or tract index of all burials recorded and for no other purpose.

Source: SDC 1939, ยง 27.0214 (1) as added by SL 1941, ch 124, ยง 4.

34-27-8. Subdivision and platting of cemeteries required--Filing with local registrar of vital records. Every person, firm, or association, every church, religious or benevolent society, and private or public corporation, owning or having under his or its control, any cemetery or place of burial in this state, shall keep and maintain a uniform record of all burials, and shall by itself, his or its officers or agent, cause such cemetery or burial ground, or such portion thereof as may from time to time become necessary for that purpose, to be surveyed, mapped, or diagramed, and subdivided into sections, blocks, lots, individual grave spaces, avenues, walks, and streets, thereby platting or making a map or diagram thereof, which map or plat shall be filed, preserved, and maintained as a permanent cemetery record. Such plat or map, or copy thereof, shall be dated and endorsed by the person, firm, or agency drafting such plat or map, and duly filed in the office of the registrar of vital records of the registration district, wherein located, and shall become a permanent record in such office.

Source: SDC 1939, ยง 27.0214 (1) as added by SL 1941, ch 124, ยง 4.

34-27-9. Numbering of grave spaces on cemetery plat--Designation of veterans' burials--Marking of burials. Each section, block, lot, and individual grave space in a cemetery shall be regularly numbered, such numbers to appear and be marked upon the face thereof, and the map or plat required by ยง 34-27-8 when completed shall have designated thereon, by uniform marking appearing in the proper grave spaces, all present burials and occupied graves located within such cemetery. The graves of all veterans of the armed forces of the United States, including their allies, confederate veterans, and war nurses in the time of war, and veterans as defined by ยง 33-17-1, located in each cemetery shall be designated by a separate and distinct uniform mark. Thereafter it shall be the duty of such person, association, or corporation in charge of such cemetery or place of burial to regularly mark and designate upon such plat or map, the exact grave space occupied at the time of interment, by all subsequent burials, within such cemetery.

Source: SDC 1939, § 27.0214 (1) as added by SL 1941, ch 124, § 4.

34-27-10. Cemetery plats received by local registrar--Posting when burial permit issued. The local registrar of vital records shall receive and file as a permanent record, the plat or map, or copy thereof, of each cemetery within his district as provided in this chapter; thereafter it shall be the duty of such registrar to regularly mark and designate upon each plat or map, the exact grave space of all subsequent burials within such cemetery, by using a uniform mark for all burials, a distinguishing and separate mark for the graves of veterans, and by inserting in such grave space, the burial or removal permit number, assigned to such burial at time of filing permit.

Source: SDC 1939, § 27.0217 as added by SL 1941, ch 124, § 6; SL 1945, ch 105.

34-27-11. Card-index records of burials maintained by local registrar--Contents. The local registrar of vital records shall provide and maintain for all burials within his district a card-index file, alphabetical by name of deceased and under cemetery name, such cardindex record to be maintained on 3x5 cards, each bearing the following information: name of cemetery, burial or removal permit number, name of deceased person, date of death, date of burial, veteran or nonveteran, location of burial by cemetery section number, block, lot, and grave number, date of filing, and book and page number wherein such permit is recorded. The registrar in maintaining such card-index record, shall use a white or buff colored card for the recording of each nonveteran and a blue or cherry colored card for recording each veteran's burial, for ready reference.

Source: SDC 1939, § 27.0217 as added by SL 1941, ch 124, § 6; SL 1945, ch 105.

34-27-12. Supervision of burial record system by Department of Health-Enforcement powers. For the purpose of locating the exact grave or burial space and the compiling and maintenance of an adequate and uniform burial-record system of the burials of all deceased persons, now located, together with all subsequent burials, within all cemeteries in the State of South Dakota, including the graves of veterans of the armed forces of the United States, including the allies, confederate veterans, and war nurses in the time of war and veterans as defined by § 33-17-1, and making available such records for reporting to the United States government under the provisions of the federal laws, respecting the erection of government headstones at the graves of such veterans or war nurses of the Army of the United States, the Department of Health shall have charge of and shall supervise the registration of all burials in each registration district, and shall prepare the necessary instructions for obtaining, preserving as a permanent record, and maintaining the registration of all burials, by the registrar of each registration district, and by all individuals, associations, churches, religious and benevolent societies, and all public or private corporations, within this state, having under their care or control any cemetery or place of burial. The said department shall be charged with the uniform and thorough enforcement of the law throughout the state and the Department of Health shall from time to time, in compliance with chapter 1-26, make such rules and regulations, not inconsistent with the laws of this state, necessary for the carrying out of such registration.

Source: SL 1931, ch 267, § 1; SDC 1939, § 27.0201; SL 1941, ch 124, § 1; SL 1945, ch 103, § 1; revised pursuant to SL 1972, ch 15, § 4.

34-27-13. Filing by local registrars of data from graves registration survey project-Fees not receivable. The local registrar of each registration district within the state is hereby authorized to receive and file in his office as a permanent record any information or data, pertaining to burials within his registration district, compiled by the "graves registration survey project," a state-wide survey, sponsored by the South Dakota Military Department through the cooperating sponsorship of the American Legion and under the works projects administration of South Dakota, together with maps or drawings of cemeteries in such district, to the end that said registrar with the cooperation of the graves registration survey project, may use such information or data in completing and bringing up to date, burial records as to all past burials; it is the intent and purpose of this chapter that all burials and all information pertaining thereto, including those of veterans who served in the military or naval forces of the United States in the time of war and those of veterans as defined by § 33-17-1, buried within this state, be placed on record and hereafter maintained therein as a permanent record; providing such information with reference to past burials in compiled and cemetery maps drafted and presented for filing, is without additional expense to the State of South Dakota. No registrar shall receive any fee for filing or recording such compiled burial information or cemetery map or maps.

Source: SDC 1939, § 27.0216 as added by SL 1941, ch 124, § 5.

34-27-14. Violation or failure to maintain records as misdemeanor. Any person, officer, agent, or employee of any other person or of any corporation or partnership who shall: (1) Refuse or fail to furnish correctly any information in his possession or shall furnish false information affecting any certificate or record required by this chapter; (2) Intentionally alter, otherwise than as provided by § 34-25-51, or falsify any record required by this chapter; or (3) Being a person, firm, association, church, religious or benevolent society, or corporation, or an employee, officer, or agent thereof, owning or having under his or its control, any cemetery or place of burial, fail, neglect, or refuse to keep and maintain the record of burials as required by this chapter; is guilty of a Class 2 misdemeanor.

Source: SL 1931, ch 267, § 21; SDC 1939, § 27.9902; SL 1941, ch 124, § 8; SL 1977, ch 190, § 72.

34-27-15. Duty of reinterment when cemetery removed--Punishment for omission of duty. Whenever a cemetery or other place of burial is lawfully authorized to be removed from one place to another the right and duty to disinter, remove, and rebury the remains of bodies there lying buried devolves upon the persons named in §§ 34-26-16 and 34-2617 in the order in which they are named, and if they all fail to act, then upon the lawful custodians of the place of burial so removed. Every omission of such duty is punishable in

the same manner as omissions are made punishable by § 34-26-18 to perform the duty of making burial.

Source: PenC 1877, § 361; CL 1887, § 6562; RPenC 1903, § 366; RC 1919, § 3880; SDC 1939, § 27.1305.

34-27-16. Liability for expense of reinterment on removal of cemetery. The expense of removal pursuant to § 34-27-15 shall be paid by the person for whose benefit or upon whose complaint or petition it was made, before any order for such removal is made, with the right of such person to recover such expense from the estate of the decedent or persons legally chargeable with his burial expense if it appears that such removal was ordered as a matter of legal right instead of for the accommodation of the applicant for such order.

Source: SDC 1939, § 27.1305.

34-27-17. Punishment for omission to reinter when cemetery removed. Every omission of duty to disinter, remove, and rebury the remains of bodies in cemeteries or other places of burial when such removal has been lawfully authorized, is punishable in the same manner as omission to perform the duty of making burial is punished under the provisions of § 34-26-18.

Source: PenC 1877, § 361; CL 1887, § 6562; RPenC 1903, § 366; RC 1919, § 3880; SDC 1939, § 13.1416.

34-27-18. Opening grave or breaking building with intent to remove body or coffin as misdemeanor. Every person who opens any grave or any place of burial, temporary or otherwise, or who breaks open any building wherein any dead body of a human being is deposited while awaiting burial, with intent either: (1) To remove any dead body of a human being for the purpose of selling the same or for the purpose of dissection; or (2) To steal the coffin, or any part thereof, or anything attached thereto or connected therewith, or the vestments or other articles buried with the same; is guilty of a Class 1 misdemeanor.

Source: PenC 1877, § 360; CL 1887, § 6561; RPenC 1903, § 365; RC 1919, § 3879; SDC 1939, § 13.1422; SL 1977, ch 190, § 73.

34-27-19. Removing dead body maliciously or with intent to sell or dissect as misdemeanor. Every person who removes all or any part of the dead body of a human being from any grave or other place where the same has been buried, or from any place where the same is deposited while awaiting burial, with intent to sell the same or to dissect it without authority of law, or from malice or wantonness, is guilty of a Class 1 misdemeanor.

Source: PenC 1877, § 358; CL 1887, § 6559; RPenC 1903, § 363; RC 1919, § 3877; SDC 1939, § 13.1418; SL 1977, ch 190, § 74.

34-27-20. Receiving dead body unlawfully removed as misdemeanor. Every person who purchases or receives, except for the purpose of burial, any dead body of a human being, knowing that the same has been removed contrary to § 34-27-19, is guilty of a Class 1 misdemeanor.

Source: PenC 1877, § 359; CL 1887, § 6560; RPenC 1903, § 364; RC 1919, § 3878; SDC 1939, § 13.1419; SL 1977, ch 190, § 75.

34-27-21. Definition of terms. Terms used in §§ 34-27-21 to 34-27-30, inclusive, mean: (1) "Human skeletal remains," the bones of a human being; (2) "Funerary object," any artifact or object which was intentionally placed with a deceased person, either at the time of burial or interment or at some subsequent time, and which is reasonably associated with human remains subject to §§ 34-27-21 to 34-27-30, inclusive, or has been identified, through available evidence, as having been removed from a specific burial site in South Dakota; (3) "State archaeologist," the individual of this title employed by the South Dakota State Historical Society; (4) "Tribal group," a federally recognized Indian tribe.

Source: SL 1990, ch 6, § 1; SL 1991, ch 281, § 1.

34-27-22. Buying, selling, or bartering human skeletal remains or funerary objects as felony. No person may knowingly buy, sell, or barter for profit human skeletal remains or associated funerary objects, previously buried within this state. A violation of this section is a Class 6 felony.

Source: SL 1990, ch 6, § 2.

34-27-23.

Repealed by SL 1991, ch 281, § 2.

34-27-24. Commercial display of human skeletal remains or funerary objects as felony. No person may knowingly display funerary objects or human skeletal remains previously buried in South Dakota for profit or to aid and abet a commercial enterprise. A violation of this section is a Class 6 felony.

Source: SL 1990, ch 6, § 4.

34-27-25. Reporting discovery of human skeletal remains--Failure to report as misdemeanor. Any person who encounters or discovers human skeletal remains or what he believes may be human skeletal remains in or on the ground shall immediately cease

any activity which may disturb those remains and shall report the presence and location of such human skeletal remains to an appropriate law enforcement officer. Willful failure to report the presence or discovery of human skeletal remains or what may be human skeletal remains within forty-eight hours to an appropriate law enforcement officer in the county in which the remains are found is a Class 2 misdemeanor.

Source: SL 1990, ch 6, § 5.

34-27-26. Disturbing human skeletal remains or funerary objects as felony. No person unless authorized by the state archaeologist may knowingly disturb or knowingly permit disturbance of human skeletal remains or funerary objects except a law enforcement officer or coroner or other official designated by law in performance of official duties. A violation of this section is a Class 6 felony.

Source: SL 1990, ch 6, § 6.

34-27-27.

Repealed by SL 1991, ch 281, § 3.

34-27-28. Notification to landowner and coroner--Notification to state archaeologist and tribal officials--Time limits. If a law enforcement officer has reason to believe that the skeletal remains, reported pursuant to § 34-27-25, may be human, he shall promptly notify the landowner and the coroner. If the remains reported under § 34-27-25 are not associated with or suspected of association with any crime, the state archaeologist shall be notified within fifteen days. The state archaeologist shall thereupon follow the procedure set out in § 34-27-31, except that the skeletal remains shall be turned over to the attorney general or any state's attorney should either request the remains for further investigation.

Source: SL 1990, ch 6, § 8; SL 1991, ch 281, § 3C. 34-27-29.

Repealed by SL 1991, ch 281, § 3D.

34-27-30. Rules promulgated by State Historical Society Board of Trustees. The State Historical Society Board of Trustees shall promulgate rules pursuant to chapter 1-26: (1) To establish the persons who may be authorized by the state archaeologist to disturb human skeletal remains and funerary objects and the restrictions under which such persons shall operate; and (2) To establish procedures to be followed by the state archaeologist in the final disposition of human skeletal remains and funerary objects under § 34-27-31.

Source: SL 1990, ch 6, § 10; SL 1991, ch 281, § 3E. 34-27-31. Discovery of human remains or funerary objects by state educational institution or museum--Contact state archaeologist--Notice to tribal officials--Tribal request--Disposition of remains or objects. If any state supported educational institution

or state supported museum comes into possession of human skeletal remains or associated funerary objects from South Dakota following July 1, 1990, the institution or museum shall contact the state archaeologist within fifteen days of the find. Within a reasonable period of time from contact by the institution or museum, but not to exceed one year, the state archaeologist shall identify the remains or objects. If review by the state archaeologist demonstrates to his satisfaction that the remains or objects are not directly related to a tribal group, the state archaeologist is responsible for their final disposition after consultation with the director of the State Office of History. If review by the state archaeologist demonstrates to his satisfaction that there is a direct relationship of the remains or objects to a tribal group, the state archaeologist shall notify the director of the State Office of History and shall initiate contact with officials of that tribal group as designated by the Office of Indian Affairs. If, within one year of the first contact with the tribal group as set forth in this section, the tribal group requests return of the remains or objects, the state archaeologist shall turn over to the tribal group the remains or objects.

If, within one year of the first contact with the tribal group as set forth in this section, the tribal group has not requested the return of the remains or objects, the state archaeologist is responsible for their final disposition after consultation with the director of the State Office of History.

Source: SL 1991, ch 281, ยง 3A. 34-27-32. Refusal to turn over remains or objects to tribal group--Appeal. Any refusal by the state archaeologist to turn over remains or objects to a tribal group after a request is made under ยง 34-27-31 is reviewable as final agency action under chapter 126. Any such appeal must be filed within thirty days of written notice of the refusal to the tribal group.

Source: SL 1991, ch 281, ยง 3B. 34-27-33. Confidentiality of archaeological records pertaining to location of unmarked burials and other human remains--Exceptions. Any record maintained pursuant to ยง 1-2021 pertaining to the location of unmarked burials and other human remains shall remain confidential to protect the integrity of unmarked burials, human skeletal remains, and associated funerary objects. The state archaeologist may make the information from the records of such a site available to any agency of state government and any political subdivision of the state or to any tribe, which, in the opinion of the state archaeologist, may conduct activities that affect any such burial or human remains. The state archaeologist shall also make the information from the records of such a site available to the owner of the land that is such a site and may make the information available to any qualified researcher or research entity.

CHAPTER 55-11 PREARRANGED FUNERAL TRUSTS 55-11-1. Prearranged funeral contract--Portion of money paid under contract held in trust. Before a person's death, he or someone on his behalf may contract with another person for the purchase or rental of personal property or professional services for the final disposition of his body. At least eighty-five percent of all money paid under the contract shall be held in a revocable or an irrevocable trust, at the purchaser's option. The money shall be held in trust until the obligation of the contract is fulfilled according to its terms or, if a revocable trust, the money is refunded to the person who made the payments.

Source: SL 1953, ch 496, § 1; SDC Supp 1960, § 27.1409; SL 1967, ch 104, § 1; SL 1975, ch 302, § 1; SL 1981, ch 355, § 1; SL 1986, ch 408, § 1.

55-11-1.1. Personal property and professional services to be provided under prearranged funeral trust contract. The personal property to be delivered according to the terms of a prearranged funeral trust contract includes such things as: grave liners, vaults, transportation containers, grave markers, cremation urns or vaults, grave ornamentation, flowers, statuary, floral arrangements, caskets, clothing, memorial items, guest books and other personal property incidental to a funeral or burial service. Professional services to be provided according to the terms of a prearranged funeral trust contract are the embalming of the deceased person's body or the conduct of a funeral service for hire and any other professional services associated with the disposition, storage, preparation or burial of a deceased person's body.

Source: SL 1986, ch 408, § 7.

55-11-2. Deposit of trust fund in banking institution or association--Violation as misdemeanor. Within ten days after receipt, the person holding money in trust under § 55-11-1 shall deposit it in a banking institution, or place the money in an account in a savings and loan association, or a federal credit union organized under the laws of this state or of the United States of America, provided, however, such institutions are domiciled in the state of South Dakota, and the deposits or accounts of which banking institution, federal credit union or association are guaranteed by the federal government or insured by an instrumentality of the federal government. The money shall be carried in a trust account in the name of the depositor as trustee for the person who will receive the benefit of the property and services upon his death. Any person intentionally violating the provisions of this section is guilty of a Class 1 misdemeanor.

Source: SL 1953, ch 496, §§ 2, 4; SDC Supp 1960, §§ 27.1410, 27.9954; SL 1967, ch 104, § 2; SL 1980, ch 24, § 109; SL 1986, ch 408, § 2.

55-11-3. Contract to be in writing--Copies furnished depository and personal representative of contracting party--Clause concerning trust fund required. A contract pursuant to § 55-11-1 shall be in writing and sufficient copies thereof shall be left with the depository pursuant to § 55-11-2 to comply with the provisions of this chapter, and a copy thereof shall also be furnished, upon request, to any personal representative of the estate of the decedent who contracted for his burial during his lifetime. The contract shall contain the following in twelve point bold type: IF THIS CONTRACT IS PURCHASED FOR A GUARANTEED PRICE, NO LESS THAN EIGHTY-FIVE PERCENT OF ANY FUNDS RECEIVED UNDER THIS CONTRACT ARE REQUIRED

BY LAW TO BE PLACED IN A FUNERAL TRUST FUND IN A DEPOSITORY DESCRIBED IN SDCL 55-11-2, IN EITHER A REVOCABLE OR IRREVOCABLE TRUST. IF THIS CONTRACT IS NOT FOR A GUARANTEED PRICE, ONE HUNDRED PERCENT OF ANY FUNDS RECEIVED UNDER THIS CONTRACT ARE REQUIRED BY LAW TO BE PLACED IN A FUNERAL TRUST FUND IN A DEPOSITORY DESCRIBED IN SDCL 55-11-2 IN EITHER A REVOCABLE OR IRREVOCABLE TRUST. THIS CONTRACT, IF A REVOCABLE TRUST, MAY BE CANCELED AT ANY TIME UPON THIRTY DAYS WRITTEN NOTICE AND ONE HUNDRED PERCENT OF THE MONEY PAID INTO TRUST TOGETHER WITH ONE HUNDRED PERCENT OF ACCRUED TRUST INTEREST SHALL BE RETURNED TO THE CONTRACT PURCHASER. Source: SL 1953, ch 496, § 1; SDC Supp 1960, § 27.1409; SL 1967, ch 104, § 1; SL 1981, ch 355, § 2; SL 1986, ch 408, § 3.

55-11-3.1. Clause required in contract not providing guaranteed price. In addition to the requirements of § 55-11-3, any contract entered into pursuant to § 55-11-1, which does not provide for a guaranteed price for services or personal property to be delivered or performed pursuant to the terms of the contract, shall contain the following in twelve point bold type: ANY FUNDS PAID UNDER THIS CONTRACT ARE ONLY A DEPOSIT TO BE APPLIED TOWARD THE FINAL COSTS OF THE SERVICES OR PERSONAL PROPERTY CONTRACTED FOR. ADDITIONAL CHARGES MAY BE REQUIRED. Source: SL 1981, ch 355, § 4.

55-11-4. Financial institution receiving money in trust--Acknowledgment on copy of prearranged funeral contract. When a banking institution, federal credit union or a savings and loan association has received money in trust under § 55-11-2, it shall acknowledge receipt thereof upon the copies of the contract for said prearranged funerals.

Source: SL 1953, ch 496, § 3; SDC Supp 1960, § 27.1411; SL 1967, ch 104, § 3; SL 1981, ch 356; SL 1986, ch 408, § 15.

55-11-5. Cancellation of contract creating revocable trust.The contract creating a revocable trust mentioned in § 55-11-1 may be canceled by either party thereto at any time upon thirty days' written notice of such cancellation.

Source: SL 1953, ch 496, § 1; SDC Supp 1960, § 27.1409; SL 1967, ch 104, § 1; SL 1975, ch 302, § 2.

55-11-5.1. Return of payments required on revocation under contract with guaranteed price. A person who revokes a revocable trust under a contract providing a guaranteed price is entitled to receive one hundred percent of all money paid into trust under the contract together with one hundred percent of accrued interest unless a greater amount is specified in the contract.

Source: SL 1981, ch 355, § 3; SL 1986, ch 408, § 4.

55-11-6.

Repealed by SL 1986, ch 408, § 13

55-11-7. Solicitation of funeral trust contracts--Annual registration required-Exception--Unauthorized solicitation or sale prohibited--Violation as misdemeanor. Notwithstanding the provision contained in subdivision 36-19-38(8), prearranged funeral trust contracts may be solicited. However, no person may sell, offer to sell or solicit a prearranged funeral trust contract unless he registers annually with the State Board of Funeral Service and the person is a funeral establishment licensed in the State of South Dakota or a person, partnership or corporation engaged in the business of the ownership, maintenance or operation of a cemetery or an agent or employee of a funeral establishment licensed in the State of South Dakota or the agent or employee of a person, partnership or corporation engaged in the business of the ownership, maintenance or operation of a cemetery. Any natural person who is licensed to practice funeral service under chapter 36-19 and who is the owner or employee of a funeral home licensed pursuant to § 36-19-14 is exempt from the registration requirements of this section and, as to activities for which such person is licensed pursuant to chapter 36-19, is exempt from the licensing and bonding provisions of chapter 37-13. Failure to annually register is a Class 2 misdemeanor.

No person may sell, offer to sell or solicit a prearranged funeral trust contract for professional services as defined in § 55-11-1.1 unless the seller or the funeral establishment or cemetery of which the seller is an agent or employee is authorized by law to provide and is regularly engaged in the business of providing such services. Any violation of this section is a Class 2 misdemeanor.

Source: SL 1981, ch 355, § 5; SL 1986, ch 408, § 5; SL 1987, ch 366.

55-11-8. Information to be submitted upon registration. When a person registers to sell prearranged funeral trust contracts, he shall submit to the State Board of Funeral Service the following information: (1) The name and address of the funeral establishment or cemetery association which has authorized him to sell prearranged funeral trust contracts; (2) His name and address; (3) A sworn statement that he has not been convicted of any crime within the last five years involving the elements of fraud or misrepresentation; and

(4)

A

statement

of

compliance

with

chapter

37-13.

Source: SL 1986, ch 408, § 6.

55-11-9. Annual report required--Contents--Filing fee--Confidentiality--Violation as misdemeanor. Before March first of each year, the owner or manager of each cemetery association or licensed funeral establishment that has entered into any prearranged funeral trust contracts shall file a report covering the period of the preceding calendar year with the State Board of Funeral Service. The report shall include: (1) The name and address of the licensed funeral establishment or cemetery association, the name and address of the manager or operator thereof, and the name of the contract holder; (2) The lump sum consideration paid upon each prearranged funeral trust contract sold or the total amount in dollars of any installments paid upon each prearranged funeral trust contract sold; (3) The name and address of the banking institution, federal credit union or savings and loan association in which such consideration was deposited; (4) The total in dollars of all sums received as consideration upon prearranged funeral trust contracts executed by the licensed funeral establishment or cemetery association or in its behalf during all periods after July 1, 1986, which are undrawn or unexpended and on deposit in a banking institution, federal credit union or savings and loan association or in the hands of the licensed funeral establishment or cemetery association; and (5) The current value, including accrued interest of each prearranged funeral trust contract being held.

The report shall be accompanied by a filing fee of five dollars. The contracts filed under this section are not public records and are confidential records of the board. Failure to file this report is a Class 2 misdemeanor.

Source: SL 1986, ch 408, § 11; SL 1990, ch 388.

55-11-10. Applicability of § 37-24-5.4. Notwithstanding §§ 55-11-1, 55-11-3, 55-115 and 55-11-5.1 and notwithstanding that the prearranged funeral trust contract may create an irrevocable trust, all prearranged funeral trust contracts are subject to the requirements of § 37-24-5.4.

Source: SL 1986, ch 408, § 8.

55-11-11. Prearranged funeral contract pooled funds trust--Creation--Separate accounts--When consent of purchaser required. A prearranged funeral contract pooled funds trust may be created by a funeral director or a funeral establishment licensed in South Dakota, the South Dakota funeral directors association or a cemetery association organized under chapter 55-12. However, separate accounts within the pooled funds trust shall be maintained so that a purchaser whose money has been deposited into the pooled funds trust may identify his money. No purchaser's money may be deposited into a pooled funds trust unless the purchaser signs a form consenting to the deposit of his money into

a pooled funds trust. The provision regarding consent shall not apply to prearranged funeral trusts where the personal property and professional services are to be provided for a guaranteed amount of money.

Source: SL 1986, ch 408, § 9.

55-11-12. Death or relocation of beneficiary of irrevocable prearranged funeral trust-Seller's option to provide comparable services or return deposits and interest--Disposition of funds. If the beneficiary of an irrevocable prearranged funeral trust for a guaranteed price dies outside the general area or moves outside the general area served by the provider designated in a prearranged funeral trust contract, the seller shall either provide for the furnishing of comparable funeral services and merchandise by a licensed mortuary or cemetery selected by the next of kin of the purchaser or, at the seller's option, shall pay over to the purchaser, or upon the death of the purchaser to the next of kin of the purchaser in fulfillment of all obligations under the contract, an amount equal to all deposits made into trust under the prearranged funeral trust contract together with the accrued trust interest to be provided for in the contract. Upon seller's full performance under the provisions of this section, the trustee shall distribute to the seller from the trust an amount equal to all deposits made into the trust together with the accrued trust interest.

Source: SL 1986, ch 408, § 10; SL 1997, ch 278, § 1.

55-11-12.1. Disbursement of funds in irrevocable prearranged funeral trust. Every trustee of an irrevocable prearranged funeral trust which does not provide for a guaranteed price shall pay from the trust funds and any accrued interest the actual charges incurred for furnishing funeral services and merchandise to the funeral director, funeral establishment, or embalmer, licensed under chapter 36-19, or similarly licensed in any other state that provides funeral services and merchandise for the beneficiary of the irrevocable prearranged funeral trust. The balance of the funds remaining in the prearranged funeral trust, if any, shall be paid by the trustee to the purchaser or to the estate or next of kin of the purchaser, subject to § 28-6-23 and rules pertaining thereto and the terms of the prearranged funeral trust agreement. Payment of all of the trust funds, plus any accrued interest, as provided in this section, within thirty days after receipt of a death certificate, relieves the trustee of any further duties or obligations.

Source: SL 1997, ch 278, § 2.

55-11-13. Prearranged funeral contract not burial insurance. A prearranged funeral contract sold in compliance with chapter 55-11 is not burial insurance under § 58-9-4.

Source: SL 1986, ch 408, § 14.

55-11-14. Applicability of act to certain contracts. The terms of each prearranged funeral trust contract in effect before July 1, 1986, is subject to chapter 55-11 in effect as it appeared in the 1980 revision and pocket parts of volume 15B of the South Dakota Codified Laws on June 30, 1986. All prearranged funeral trust contracts entered on or after July 1, 1986, are subject to this chapter.

Source: SL 1986, ch 408, § 12.

55-11-15. Certain persons operating cemeteries exempted from provisions regarding sale of merchandise and services--Maintenance of funds. Any person, corporation, partnership, association or other entity engaged in the business of owning, maintaining or operating a cemetery in the state of South Dakota prior to July 1, 1986, shall be exempt from the provisions of this chapter for purposes of the sale through the cemetery of merchandise and services incidental to a burial service. Except that such person, corporation, partnership, association or other entity engaged in the cemetery business shall maintain at least seventy percent of all money paid under a prearranged burial contract in the manner set forth in §§ 55-11-1, 55-11-2 and 55-11-5.1.

Source: SL 1986, ch 408, § 15A.

ARTICLE 20:45 FUNERAL SERVICE

20:45:01:01. State board meetings. A regular meeting of the State Board of Funeral Service shall be held during the South Dakota state funeral director's convention. Special meetings may be called by the chair of the board as the chair considers necessary.

Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 19 SDR 35, effective August 27, 1992.

General Authority: SDCL 36-19-6.

Law Implemented: SDCL 36-19-6.

20:45:01:02. Hearings. Notice of any charges against a licensee and notice of the time and place for a hearing on the charges shall be served upon a licensee not less than 20 days before the hearing. The hearing may be continued for a reasonable amount of time at the discretion of the board or its legal counsel. The licensee may be present at the hearing, either in person or by counsel, or both, and may request the board to subpoena witnesses that the licensee desires to be heard at the hearing. Witnesses shall be allowed the statutory fee and travel expenses. In any contested case, a transcript of

the hearing shall be kept by a court reporter, or the hearing shall be tape-recorded. If a transcript is ordered, the party ordering the transcript shall pay any cost or fee associated with the transcript.

Source: SL 1975, ch 16, ยง 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(5).

Law Implemented: SDCL 36-19-12.

Cross-References: Procedure in licensing matters, SDCL 1-26-16 to 1-26-19.1; Fees and mileage of witnesses, SDCL 19-5-1.

20:45:01:03. Reviewing of contested cases. Petitions for review of decisions on contested cases may be made to the board pursuant to SDCL chapter 1-26. For the purpose of reviewing the decisions, the board may appoint a committee made up of a portion of the board's membership. The committee shall enter written findings. The findings of the committee must be reported to the full board for action. The board, in writing, shall adopt, reject, or modify the committee findings, and issue its written decision. Nothing in this section prevents or delays an aggrieved person from making an immediate appeal from any decision of the board to the circuit court as provided by SDCL chapter 1-26.

Source: SL 1975, ch 16, ยง 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(5).

Law Implemented: SDCL 36-19-12.

Cross-Reference: Procedure for contested cases, SDCL 1-26-16 to 1-26-29.

CHAPTER 20:45:02 GENERAL REGULATIONS Section 20:45:02:01

Inspection of premises.

20:45:02:02

Equipment required for funeral establishment.

20:45:02:03

Maintenance of preparation room.

20:45:02:04

False listings.

20:45:02:05

Written contract required.

20:45:02:06

Prearranged funeral contracts.

20:45:02:07

Length of time an unembalmed body may be kept.

20:45:02:01. Inspection of premises. Each funeral establishment shall be inspected in the following areas: (1) Posting of establishment and licensee's licenses; (2) Stock of caskets; (3) Price of caskets, vaults, and other merchandise marked; (4) Use of written contract as required by ยง 20:45:02:05; (5) Possession of funeral car and mortuary cot; (6) General cleanliness of preparation room; (7) Possession of working ventilation fan in preparation room; (8) Possession of approved floor; (9) Possession of operable aspirator in preparation room; (10) Protection for water supply; (11) Cleanliness and sterilization of instruments, including hypodermic needles and syringes; and (12) Possession and cleanliness of waste receptacle.

The funeral establishment shall correct an existing violation within 20 days, and the board shall reinspect the premises. An uncorrected violation is cause for revocation of license. The board may extend this time at its discretion. If at the time of renewal of the establishment license there is a violation, the establishment license may not be renewed, but a temporary license may be issued for 30 days to allow time for correction of the violation. A funeral establishment shall pay the costs of the second and subsequent reinspections.

A funeral establishment shall be open for inspection between the hours of 9:00 a.m. to 5:00 p.m. Monday through Friday. Refusal of inspection is cause for not renewing an establishment license as well as grounds for revoking an establishment license.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(2).

Law Implemented: SDCL 36-19-28, 36-19-31.

20:45:02:02. Equipment required for funeral establishment. The term, funeral establishment, is defined at SDCL 36-19-1(4) and includes any place where embalming is performed. The preparation room of a funeral establishment must be equipped with the following: (1) Embalming table; (2) Instruments for embalming; (3) Sink connected to a public sewer or septic tank; (4) Electric aspirator or hydroaspirator which is equipped with an automatic vacuum breaker to prevent contamination of the water supply; (5) Embalming machine or equipment; (6) Sanitary floor; (7) Ventilation; (8) Exhaust fan; (9) Embalming fluid; (10) Hardening compound; (11) Rubber, plastic, latex, or vinyl goods; (12) Body pouches; (13) Disinfectant; (14) Rubber, latex, or vinyl gloves; (15) Aprons; and (16) Receptacles for refuse, bandages, cotton, and other waste materials.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 21 SDR 118, effective January 2, 1995; 30 SDR 215, effective July 14, 2004; 36 SDR 57, effective October 22, 2009.

General Authority: SDCL 36-19-9(1).

Law Implemented: SDCL 36-19-28.

20:45:02:03. Maintenance of preparation room. All refuse, bandages, cotton, and other waste materials shall be disposed of at the conclusion of each embalming case.

All preparation rooms shall be maintained in a clean and sanitary condition. All embalming tables, sinks, floors, receptacles, instruments, and other appliances used in the

embalming of bodies shall be thoroughly cleansed and sanitized with a suitable and an effective sanitizing agent immediately at the conclusion of each embalming case.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority: SDCL 36-19-9.

Law Implemented: SDCL 36-19-28.

20:45:02:04. False listings. A listing in directories, newspapers, radio stations, television stations, or other printed or oral media indicating the location of a funeral establishment in a town, city, or community in which the listed funeral establishment is not located is considered false advertising and grounds for revocation of licenses.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority: SDCL 36-19-9.

Law Implemented: SDCL 36-19-12.

20:45:02:05. Written contract required. At the time funeral arrangements are made, a funeral establishment shall give to the person making or ordering a funeral a written contract which contains the following: (1) Any service that has been or will be performed, including the removal of the body and transportation, and any merchandise selected, and the itemized price for any service and merchandise; (2) The supplemental items of service or merchandise requested and the price of each item; (3) Insofar as it can be specified at that time, the items for which the funeral director will advance money as an accommodation; and (4) The terms or method of payment.

The funeral contract shall be signed by the purchaser and a funeral home representative. A copy of the funeral contract shall be given to the purchaser upon signing. A copy of the contract shall also be retained by the funeral establishment.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(5).

Law Implemented: SDCL 36-19-9.

20:45:02:06. Prearranged funeral contracts. A prearranged funeral contract includes any transaction in which a person, or someone on the person's behalf, before the person's death, contracts with a funeral establishment for the purchase or rental of personal property or professional services for the final disposition of the person's body. A prearranged funeral shall be contracted for on a form prepared by the funeral establishment. The form shall comply with SDCL chapter 55-11 and shall be in triplicate.

One copy shall be kept in the funeral establishment. One copy shall be delivered to the purchaser or beneficiary of the fund. One copy shall be delivered to the bank, federal credit union, or savings and loan association, if applicable. Any funeral establishment and licensee, who is a party to a prearranged funeral contract, must be knowledgeable of and must fully comply with SDCL chapter 55-11, and any violation of SDCL chapter 55-11 is grounds for revocation of a license. Any prearranged funeral contract funded by an insurance policy purchased from or through a funeral establishment for the purpose of paying, in whole or in part, for the purchase or rental of personal property and professional services for the final disposition of a body requires the funeral establishment to prepare a form itemizing such property and services and to deliver a copy to the purchaser or beneficiary of the contract and to retain a copy.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(5).

Law Implemented: SDCL 36-19-9(5).

20:45:02:07. Length of time an unembalmed body may be kept. An unembalmed body may be kept no longer than 24 hours from the time of death. Within 24 hours from the time of death, the body shall be refrigerated, embalmed, cremated, or buried in the ground. Any deviation from the foregoing requirements may only occur by an order of a court of competent jurisdiction or written directive of a coroner.

Source: 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(5).

Law Implemented: SDCL 34-26-15.

CHAPTER 20:45:03 LICENSING REQUIREMENTS Section 20:45:03:01

Minimum qualifications of trainee.

20:45:03:02

Traineeship in funeral service.

20:45:03:03

College coursework requirements.

20:45:03:03.01

Acceptance of National Board Examination.

20:45:03:04

Filing of application.

20:45:03:05

Failure to pass examination.

20:45:03:06

Repealed.

20:45:03:07

Renewal of lapsed license.

20:45:03:01. Minimum qualifications of trainee. An applicant for registration as a trainee in funeral service shall have a high school education or a high school equivalent education, be at least 18 years of age, and be of good moral character.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority: SDCL 36-19-9.

Law Implemented: SDCL 36-19-9, 36-19-18.

20:45:03:02. Traineeship in funeral service. A trainee in funeral service must complete one year's work of traineeship before being eligible for licensure. For purposes of this rule, one year's work is 12 months, either consecutive or non-consecutive, and in no event may the traineeship be less than 2,080 hours. Although the 12-month period is not required to be completed in consecutive succession, a trainee must reapply for registration if the trainee seeks to resume duties after being terminated by a sponsor, or

if the trainee changes sponsors for any reason. The traineeship may be served under different funeral service licensees and in different funeral establishments licensed by the state of South Dakota. The trainee must be a citizen of the United States or a resident of South Dakota. The traineeship may be completed in one-month segments, or in special circumstances, the traineeship may be completed in segments of time that are otherwise acceptable to the board so long as the total traineeship hours are not less than 2,080 hours. The Board of Funeral Service may extend the 12 months of traineeship at its discretion for unusual circumstances.

A funeral service licensee may not sponsor more than one trainee at a time. The sponsoring funeral service licensee is fully responsible for the trainee's actions and work in funeral service. The sponsor shall notify the board immediately of the termination or temporary discontinuance of supervision of a trainee.

The trainee shall file with the board at least 25 acceptable embalming case reports on forms provided by the board for the purpose, along with 12 monthly report cards. The trainee shall assist in the direction of at least 25 funerals and present 5 sets of arrangements. All work shall be performed under the supervision of the trainee's registered funeral service sponsor or another licensee in the sponsor's establishment.

Both the sponsor and the trainee must notify the board if a traineeship is terminated. The traineeship may be reinstated if the trainee applies again to the board. A traineeship may be completed before or after completing mortuary college.

Any funeral service licensee, including a sponsor or the owner of a funeral establishment, who allows a person to do the work of a trainee when that person is not registered with the board or when that person has completed the traineeship program is subject to license revocation.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 19 SDR 35, effective August 27, 1992; 21 SDR 118, effective January 2, 1995; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(3).

Law Implemented: SDCL 36-19-18.

20:45:03:03. College coursework requirements. An applicant for a funeral service license must successfully complete the prescribed course of study from a college of mortuary science accredited by the American Board of Funeral Service Education, Inc. In addition, the applicant must complete an academic course requirement of 60 semester hours credit from an accredited college or university with the following academic course requirements: (1) Communications, 9 semester hours or the equivalent, including: (a) Speech;

(b) English composition; (2) Social science, 12 semester hours or the equivalent, including: (a) Sociology; (b) Psychology; (3) Natural science, 15 semester hours or the equivalent, including: (a) (b) (c) (d)

Chemistry; Biology; Microbiology; Anatomy;

(4) Business, 9 semester hours or the equivalent. The board recommends coursework in the following areas: (a) Accounting; (b) Business law; (c) Business management; and (5) Electives, 15 semester hours or the equivalent.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 19 SDR 35, effective August 27, 1992; 21 SDR 118, effective January 2, 1995; 34 SDR 101, effective October 24, 2007; 36 SDR 57, effective October 22, 2009.

General Authority: SDCL 36-19-9(3).

Law Implemented: SDCL 36-19-21.

Reference: The Conference of Funeral Service State Board Rosters and Accredited Mortuary Schools, September, 1994. The Conference of Funeral Service Examining Boards, First Security Bank Building, 2404 Washington Blvd., Suite 1000, Ogden, UT 84401. Copies may be obtained free of charge from the South Dakota Board of Funeral Service, 810 N. Main Street, Suite 298, Spearfish, SD 57783, phone (605) 642-1600 , FAX (605) 722-1006.

20:45:03:03.01. Acceptance of National Board Examination. If an applicant for a license to practice mortuary science has satisfactorily passed the National Board Examination given by the Conference of Funeral Service Examining Boards of the United States, Incorporated, and is so certified by the commissioner of the conference, the State Board of Funeral Service may accept the results of the National Board Examination. In addition, the applicant shall successfully pass an examination on laws of the state of South Dakota and the rules of the State Board of Funeral Service. The examination shall include questions pertaining to registration of deaths, embalming, transportation, disposition of dead human bodies, and funeral directing. In order to accept the results of the National Board Examination, the State Board of Funeral Service shall first determine

that the knowledge and skills assessed by the examination adequately and accurately evaluate the knowledge and skills needed for actual job performance.

Source: 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority: SDCL 36-19-9.

Law Implemented: SDCL 36-19-23.

20:45:03:04. Filing of application. An applicant for licensure as a funeral director shall submit a complete application to the Board of Funeral Service at least 15 days before the examination date on a form procured from the secretary of the board. The board shall timely approve or disapprove the application and shall forthwith notify the applicant of the approval or disapproval. Only approved applicants shall be allowed to sit for the examination. The application shall contain identifying information, including the applicant's full name, age, and mailing address; a record of the applicant's education; a certificate of apprenticeship; personal recommendations; and a certificate of the national conference examination. The applicant shall furnish certified high school, college, and mortuary college transcripts from accredited schools containing a list of subjects completed with the individual grades and credits. The applicant shall include a photo and the application fee required by ยง 20:45:04:02.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(3).

Law Implemented: SDCL 36-19-20.

20:45:03:05. Failure to pass examination. An applicant who fails the examination may appear before the board within one year after the first examination and may take and complete a second examination. The second examination may be taken without an additional fee. An individual must complete the entire application process and pay the appropriate fee in order to take a third or any subsequent examination.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(3).

Law Implemented: SDCL 36-19-20.

20:45:03:06. License by reciprocity.Repealed.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 19 SDR 35, effective August 27, 1992; repealed, 21 SDR 118, effective January 2, 1995.

20:45:03:07. Renewal of lapsed license. A licensed funeral service director who does not renew the license may have licensure restored at any time within three years by applying to the Board of Funeral Service and paying the license fee required in ยง 20:45:04:03 for each year the license has lapsed. Licensees whose licenses have lapsed for more than three years must complete requirements for licensure as required in SDCL chapter 36-19.

Source: SL 1975, ch 16, ยง 1; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 59, effective October 2, 1991; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 36-19-9(3).

Law Implemented: SDCL 36-19-12, 36-19-37.

CHAPTER 20:45:04 LICENSE FEES Section 20:45:04:01

Registration fee -- Trainee.

20:45:04:02

Repealed.

20:45:04:03

Annual renewal fee -- Funeral director's license.

20:45:04:04

Application fee -- Funeral establishment license.

20:45:04:05

Annual renewal fee -- Funeral establishment license.

20:45:04:06

Repealed.

20:45:04:07

Application fee -- Funeral service license.

20:45:04:08

Annual renewal fee -- Funeral service license.

20:45:04:01. Registration fee -- Trainee. The registration fee for a trainee in funeral service is $25.

Source: 4 SDR 27, effective November 8, 1977; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 59, effective October 2, 1991.

General Authority: SDCL 36-19-9.

Law Implemented: SDCL 36-19-18.

20:45:04:02. Application fee -- Funeral director's license.Repealed.

Source: 4 SDR 27, effective November 8, 1977; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 59, effective October 2, 1991; repealed, 30 SDR 215, effective July 14, 2004.

20:45:04:03. Annual renewal fee -- Funeral director's license. The annual renewal fee for a funeral director's license is $50.

Source: 4 SDR 27, effective November 8, 1977; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 59, effective October 2, 1991.

General Authority: SDCL 36-19-9.

Law Implemented: SDCL 36-19-25.

20:45:04:04. Application fee -- Funeral establishment license. The application fee for a funeral establishment license is $250.

Source: 4 SDR 27, effective November 8, 1977; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 59, effective October 2, 1991; 34 SDR 101, effective October 24, 2007; 36 SDR 57, effective October 22, 2009.

General Authority: SDCL 36-19-27.

Law Implemented: SDCL 36-19-27.

20:45:04:05. Annual renewal fee -- Funeral establishment license. The annual renewal fee for each separate funeral establishment license is $250.

Source: 4 SDR 27, effective November 8, 1977; 9 SDR 59, effective November 14, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 59, effective October 2, 1991; 34 SDR 101, effective October 24, 2007; 36 SDR 57, effective October 22, 2009.

General Authority: SDCL 36-19-37.

Law Implemented: SDCL 36-19-37.

20:45:04:06. Annual renewal fee -- Establishment license.Repealed.

Source: 4 SDR 27, effective November 8, 1977; repealed, 9 SDR 59, effective November 14, 1982.

20:45:04:07. Application fee -- Funeral service license. The application fee for a funeral service license is $125.

Source: 21 SDR 118, effective January 2, 1995; 34 SDR 101, effective October 24, 2007; 36 SDR 57, effective October 22, 2009.

General Authority: SDCL 36-19-25.

Law Implemented: SDCL 36-19-25.

20:45:04:08. Annual renewal fee -- Funeral service license. The annual renewal fee for a funeral service license is $125.

Source: 21 SDR 118, effective January 2, 1995; 34 SDR 101, effective October 24, 2007; 36 SDR 57, effective October 22, 2009.

General Authority: SDCL 36-19-25.

Law Implemented: SDCL 36-19-25.

CHAPTER 20:45:05

CREMATORIES AND CREMATIONS Section 20:45:05:01

Definition of terms.

20:45:05:02

Applicability.

20:45:05:03

Application for licensure or renewal of license -- Fee.

20:45:05:04

Issuance of license -- Denial.

20:45:05:05

Annual inspection -- Correction of violations.

20:45:05:06

Suspension or revocation of license.

20:45:05:07

Human remains defined.

20:45:05:08 be licensed.

Physicians and medical facilities disposing of human remains required to

20:45:05:09

Container requirements for accepting pathological waste.

20:45:05:10

Occupant protection.

20:45:05:11

Refrigeration requirements.

20:45:05:12

Embalming requirements.

20:45:05:13

Construction standards.

20:45:05:14

Notice of construction or alteration of crematories.

20:45:05:15

Fire safety standards.

20:45:05:16 establishments.

Fire safety requirements for crematories attached to funeral

20:45:05:01. Definition of terms. Terms defined in SDCL 34-26A-1 have the same meaning in this chapter. In addition, terms used in this chapter mean: (1) "Ambulatory surgery center," as defined in SDCL 34-12-1.1(1); (2) "Authorizing agent," as defined in SDCL 34-26A-2; (3) "Biohazard label," a distinctive red or orange label used to identify pathological waste as potentially infectious; (4) "Body parts," limbs or other portions of the anatomy that are removed from a person or human remains for medical purposes during treatment, surgery, biopsy, autopsy, or medical research; or human bodies or any portion of bodies that have been donated to science for medical research purposes;

(5) "Funeral establishment," as defined in SDCL 36-19-1(4); (6) "Hospital," as defined in SDCL 34-12-1.1(4); (7) "Medical laboratory," a place where scientific examination on human tissue and organ specimens is conducted to aid in medical diagnosis or treatment; (8) "Pathological waste," human tissues, organs, and blood or body fluids in liquid or semiliquid form that are removed from a person for medical purposes during treatment, surgery, biopsy, or autopsy; (9) "Pulverization," the reduction of identifiable bone fragments after the completion of the cremation process to granulated particles by manual or mechanical means; (10) "Physician," a person who is licensed or approved to practice medicine pursuant to SDCL chapter 36-4; (11) "Sanitary condition," free of dirt, foreign particles, blood stains, offensive odors, and insects; and (12) "Universal precautions," procedures for handling human remains and pathological waste which are intended to prevent parenteral, mucous membrane, and non-intact skin exposures of persons to disease-causing agents.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:01, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-33.

20:45:05:02. Applicability. This chapter applies to new crematories, to existing crematories in operation on April 2, 1989, and to subsequent renovations, additions, and changes in space use of crematories licensed by the board.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:02, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-33.

20:45:05:03. Application for licensure or renewal of license -- Fee. For new crematories or crematories not previously licensed, application forms for licensure as a crematory authority may be requested from the board. For license renewals, the board shall mail each year to each licensed crematory authority notice that license renewal is due. Unless renewed pursuant to SDCL chapter 34-26A and this chapter, licenses issued under SDCL chapter 34-26A expire on December 31 following their issuance or renewal. A license may not be transferred or assigned by the crematory authority. A person submitting an application for the following entities must submit the information as follows:: (1) A sole proprietorship must submit the applicant's full name and address for both the business and applicant's residence; (2) A partnership must submit the full name and address of each partner; (3) An association must submit the name and address of every member of the board of directors; or (4) A corporation must submit the name and address of every officer, director, and shareholder holding more than 25 percent of the corporate stock.

An applicant must also pay the fee set forth in SDCL 34-26A-4 when submitting the application to the board.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:03, 26 SDR 87, effective December 9, 1999; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-4, 34-26A-33.

20:45:05:04. Issuance of license -- Denial. The board shall issue or renew a license after payment of the fee required by SDCL34-26A-4, ascertainment that the facts set forth in the application for licensure are true and complete, and evidence, which may be determined by inspection by the board, that the applicant meets the requirements of SDCL chapter 34-26A and this chapter. The board may refuse to issue or renew a license if the applicant does not meet the requirements of this section. The applicant may contest the denial pursuant to SDCL chapter 1-26. The most current license issued by the board must be posted on the premises of the crematory in a place conspicuous to the public.

The license certificate remains the property of the board.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:04, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-4, 34-26A-33.

20:45:05:05. Annual inspection -- Correction of violations. The board shall annually inspect the premises of licensed crematories for compliance with the provisions of SDCL chapter 34-26A and this chapter. The inspection shall take place during business hours and shall be conducted by an authorized board inspector after presentation of identification. The scope of the inspection is limited to those areas provided for in SDCL chapter 34-26A and this chapter. An existing violation must be corrected within 60 days after the board's inspection, unless an extension of time is approved by the board. The crematory premises may be reinspected by the board to verify correction, with the costs and fees of the reinspection being assessed to and paid by the crematory authority. A crematory shall be open for inspection from the hours of 9:00 a.m. to 5:00 p.m., Monday through Friday. Refusal of inspection is cause for not renewing a crematory license, as well as grounds for revoking a crematory license.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:05, 26 SDR 87, effective December 9, 1999; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-4, 34-26A-33.

20:45:05:06. Suspension or revocation of license. Pursuant to SDCL chapter 1-26, the board may suspend or revoke a license issued under SDCL chapter 3426A on any of the following grounds: (1) Violation by the crematory authority of the provisions of SDCL chapter 3426A or this chapter; (2) Failure to allow board inspections; and (3) Failure to correct violations in accordance with ยง 20:45:05:05.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:06, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 1-26-29, 34-26A-33, 34-26A-34.

Law Implemented: SDCL 34-26A-4, 34-26A-33, 34-26A-34.

20:45:05:07. Human remains defined. For purposes of this chapter, human remains are the body or part of a body of a deceased person or part of a body or limb that has been removed from a living person, including the body or body part in any stage of decomposition which is entrusted to a crematory authority by the authorizing agent for the express purpose of cremation as the lawful disposition of the body after the person's death.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:07, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-33.

20:45:05:08. Physicians and medical facilities disposing of human remains required to be licensed. A physician, hospital, ambulatory surgery center, or medical laboratory which cremates human remains other than pathological waste must be licensed as a crematory authority by the board.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:08, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-5, 34-26A-33.

20:45:05:09. Container requirements for accepting pathological waste. A crematory authority may not accept for disposal pathological waste which: (1) Is in a container showing evidence of leakage of bodily fluids; (2) Does not have a biohazard label securely and conspicuously affixed to the container; (3) Is not sealed in either double impervious plastic bags or a single impervious plastic bag resistant to spillage; (4) Is not in a container that allows for ease of handling; (5) Is not in a container composed of readily combustible materials suitable for cremation; or

(6) Does not provide protection for the health, safety, and personal integrity of the crematory personnel.

The biohazard label must contain a notice that reads substantially as follows: ________________________________________________________________ __

WARNING THESE HUMAN REMAINS CONTAIN POTENTIALLY HAZARDOUS INFECTIOUS AGENTS, USE UNIVERSAL PRECAUTIONS IN HANDLING.

OBSERVE THE FOLLOWING PRECAUTIONS WHILE IN CONTACT WITH REMAINS: Wear gloves while handling these remains, particularly if open cuts, abrasions, or other lesions are present on your hands. Exercise caution while in contact with blood or other body fluids and your mucous membrane surfaces, such as your eyes and mouth. Wash hands thoroughly and promptly after contact with body fluids and after direct handling of remains. ________________________________________________________________ __ Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:09, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-33.

Cross-References: Solid waste disposal, SDCL chapter 34A-6; Solid waste, art 74:27.

20:45:05:10. Occupant protection. A crematory covered by this chapter must be constructed, arranged, equipped, maintained, and operated to avoid injury or danger to occupants and the public. The crematory authority must provide the physical resources, personnel, and technical expertise necessary to meet at least the following requirements: (1) Maintain the crematory premises in a sanitary condition at all times; (2) Provide handwashing facilities consisting of hot and cold running water, towel dispenser with single-service towels or hand-drying device, and hand cleanser in all preparation and holding areas. The facilities must be readily accessible to crematory personnel; (3) Provide equipment, flooring, and interior finishes in preparation and holding areas which are impervious to liquids and gases and which can be readily disinfected; (4) Provide outside ventilation by windows or forced-air ventilation so arranged that it is not offensive to the public; (5) Provide access by crematory personnel to a first aid emergency kit and eye wash kit; (6) Provide formal orientation and ongoing education for all crematory personnel in the practice of infection control and prevention; (7) Ensure that crematory personnel follow guidelines for universal precautions for the safe handling of human remains and pathological waste in accordance with the recommendations of the Centers for Disease Control, U.S. Public Health Service, as published in "Recommendations for Prevention of HIV Transmission in Health-Care Settings," August 21, 1987, Centers for Disease Control and Prevention.

Recommendations for Prevention of HIV Transmission in Health-Care Settings. MMWR 1987:36 (Supp. No. 2S); #5S-18S; Centers for Disease Control and Prevention. "Update: Universal Precautions for Prevention of Transmission of HIV, HBV, and Other Bloodborne Pathogens in Health-Care Settings." MMWR 1988:37; 377-382, 387-8; Centers for Disease Control and Prevention (CDC). Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures. Morbidity and Mortality Weekly Report (MMWR) 1991:40 (No. RR-8); #1-9; "Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B Virus, and Other Bloodborne Pathogens in HealthCare Settings," June 24, 1988, and Department of Labor, Occupational Safety and Health Administration. Occupational Exposure to Bloodborne Pathogens; 29 C.F.R. ยง 1910.1030 (July 1, 1993); and (8) Ensure that the funeral director has taken all necessary steps to remove any pacemaker, hazardous implants, or other implants powered by batteries from the human remains prior to delivery.

Source: 15 SDR 146, effective April 2, 1989; transferred from 44:21:01:10, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-3, 34-26A-33.

References: "Recommendations for Prevention of HIV Transmission in Health-Care Settings," August 21, 1987, and "Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B Virus, and Other Bloodborne Pathogens in Health-Care Settings," June 24, 1988, Morbidity and Mortality Weekly Report, Centers for Disease Control, Public Health Service, U.S. Department of Health and Human Services, Atlanta, Georgia 30333. HHS Publication No. (CDC) 87-8017 and (CDC) 88-8017. Copies may be obtained from South Dakota Department of Health, 615 East 4th Street, Pierre, South Dakota 57501. Cost: Free.

Copies of the three Centers for Disease Control and Prevention publications below may be obtained from the Massachusetts Medical Society Publications, CSPO, Box 9120, Waltham, MA 92254. Cost is $5 each.

1. "Recommendations for Prevention of HIV Transmission in Health-Care Settings." Morbidity and Mortality Weekly Report (MMWR) 1987:36 (Supp. No. 2S); #5S-18S; Centers for Disease Control and Prevention, Public Health Service, U.S. Department of Health and Human Services, Atlanta, Georgia 30333.

2. "Update: Universal Precautions for Prevention of Transmission of HIV, HBV, and Other Bloodborne Pathogens in Health-Care Settings." MMWR 1988:37; 377-382, 387-8; Centers for Disease Control and Prevention, Public Health Service, U.S. Department of Health and Human Services, Atlanta, Georgia 30333.

3. "Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures."

MMWR 1991:40 (No. RR-8); #1-9; Centers for Disease Control and Prevention, Public Health Service, U.S. Department of Health and Human Services, Atlanta, Georgia 30333.

Cross-Reference: Fire safety standards, ยง 20:45:05:15.

20:45:05:11. Refrigeration requirements. A crematory authority which is unable to cremate unembalmed human remains immediately upon taking custody of the human remains must provide or maintain an operable refrigeration unit with cleanable, noncorrosive interior and exterior finishes. The unit must be capable of maintaining a temperature of 34 degrees Fahrenheit or below and of holding at least three bodies.

Human remains that are not embalmed may not be held by the crematory authority for longer than 72 hours before cremation, except in the event of a coroner's investigation or inquest or when otherwise ordered by a court of competent jurisdiction. For purposes of this section, immediately upon taking custody means within 24 hours of taking custody.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:11, 26 SDR 87, effective December 9, 1999; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-33.

20:45:05:12. Embalming requirements. In addition to the requirements of ยง 20:45:05:10, a crematory authority which embalms human remains must provide for a person licensed by the state Board of Funeral Service to perform the embalming in a facility licensed by the state Board of Funeral Service.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:12, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-16, 34-26A-33.

Cross-References: License required to embalm, practice funeral service or maintain establishment, SDCL 36-19-14; Individual and small onsite wastewater systems, ch 74:53:01.

20:45:05:13. Construction standards. A crematory authority must meet at least the following crematory construction standards: (1) Provide a cremation chamber which is designed and fabricated expressly for the purpose of cremating human remains; (2) Install windows and doors in such a way that rooms for preparation, holding, or cremation of human remains are obstructed from view from the outside and that fumes and odors are prevented from entering other parts of the crematory premises; and (3) Control cremation chamber emissions in accordance with the rules of the Department of Environment and Natural Resources.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:13, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-3, 34-26A-33.

Cross-Reference: Emission restrictions for incinerators, ยง 74:36:06:04.

20:45:05:14. Notice of construction or alteration of crematories. The board must be notified at least 30 days prior to initiating construction of new crematories or permanent additions, alterations, or modification of existing crematories. A crematory must be constructed so as to comply with SDCL chapter 34-26A as well as conform to all local building codes and environmental standards.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:14, 26 SDR 87, effective December 9, 1999; 30 SDR 215, effective July 14, 2004.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-33.

Cross-Reference: Operating permit or permit revision required, ยง 74:36:04:02.

20:45:05:15. Fire safety standards. A crematory must meet applicable fire safety standards in the 1988 NFPA 101, "Life Safety Code," and NFPA 82-1983, "Standard on Incinerators, Waste and Linen Handling Systems and Equipment."

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:15, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-3, 34-26A-33.

References: NFPA 101, "Life Safety Code 1988," National Fire Protection Association. Copies may be obtained from the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269. Cost: $46.75.

NFPA 82-1983, "Standard on Incinerators, Waste and Linen Handling Systems and Equipment," National Fire Protection Association. Copies may be obtained from the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269. Cost: $19.50.

20:45:05:16. Fire safety requirements for crematories attached to funeral establishments. A crematory which is a part of a funeral establishment or is physically attached to a funeral establishment must be separated from the funeral establishment by construction using noncombustible materials with a fire resistance rating of no less than two hours. As an alternative to a two-hour fire separation, an automatic sprinkler system

may be installed in the funeral establishment and a one-hour fire separation constructed between the funeral establishment and the crematory.

Source: 15 SDR 146, effective April 2, 1989; transferred from ยง 44:21:01:16, 26 SDR 87, effective December 9, 1999.

General Authority: SDCL 34-26A-33.

Law Implemented: SDCL 34-26A-3, 34-26A-33.