Florida Senate - 2010 SB 862
By Senator Bullard
39-00838A-10 2010862__
1 A bill to be entitled
2 An act relating to funeral and burial arrangements;
3 amending s. 382.011, F.S.; authorizing a medical
4 examiner to record the identity of certain persons who
5 may have unlawfully participated in the death of a
6 decedent; providing immunity for such findings;
7 directing a medical examiner to provide to the funeral
8 director findings of the identity of certain persons
9 who may have unlawfully participated in a decedent’s
10 death; requiring a medical examiner to report the
11 arrest of certain individuals to the funeral director;
12 amending s. 406.135, F.S.; narrowing a public-records
13 exemption to authorize the parent or adult child of a
14 decedent to obtain autopsy records; prohibiting
15 disclosure of autopsy records; providing penalties;
16 amending s. 497.005, F.S.; redefining the term
17 “legally authorized person” for purposes of the
18 Florida Funeral, Cemetery, and Consumer Services Act;
19 amending s. 732.804, F.S.; prohibiting a person who
20 may have unlawfully participated in the death of a
21 decedent, or who has been arrested for unlawfully
22 participating in the death of a decedent, from making
23 decisions relating to the decedent’s body and funeral
24 and burial arrangements; providing an effective date.
25
26 Be It Enacted by the Legislature of the State of Florida:
27
28 Section 1. Section 382.011, Florida Statutes, is amended to
29 read:
30 382.011 Medical examiner determination of cause of death.—
31 (1) In the case of any death or fetal death due to causes
32 or conditions listed in s. 406.11, or where the death occurred
33 more than 30 days after the decedent was last treated by a
34 physician unless the death was medically expected as certified
35 by an attending physician, or where there is reason to believe
36 that the death may have been due to unlawful act or neglect, the
37 funeral director or other person to whose attention the death
38 may come shall refer the case to the medical examiner of the
39 district in which the death occurred for investigation and
40 determination of the cause of death.
41 (2) The medical examiner shall complete and sign the
42 medical certification of cause of death of the death or fetal
43 death certificate within 72 hours after notification, whether or
44 not final determination of the cause of death has been
45 established, unless an extension has been granted as provided
46 under s. 382.008. Any amendment fees prescribed in s. 382.0255
47 shall be waived when a later determination of cause of death is
48 made.
49 (3) A medical examiner, in consultation with a law
50 enforcement agency, may make a finding that a spouse, child,
51 parent, sibling, grandchild, grandparent, or person in the next
52 degree of kinship to the decedent may have unlawfully
53 participated in the decedent’s death. If such a finding is made,
54 the medical examiner shall provide it to the funeral director
55 who first assumed custody of the decedent’s body. Afterwards the
56 finding must accompany the burial-in-transit permit. A medical
57 examiner or law enforcement agency is not liable for findings
58 made in good faith pursuant to this subsection.
59 (4) A medical examiner must report to the funeral director
60 who first assumed custody of a decedent’s body, the arrest of a
61 spouse, child, parent, sibling, grandchild, grandparent, or
62 person in the next degree of kinship to the decedent for
63 unlawfully participating in the decedent’s death. A report of an
64 arrest shall accompany the burial-in-transit permit. A medical
65 examiner does not have a duty to report an arrest that occurs
66 after the decedent’s body has been released.
67 (5)(3) The funeral director shall retain the responsibility
68 for preparation of the death or fetal death certificate,
69 obtaining the necessary signatures, filing with the local
70 registrar in a timely manner, and disposing of the remains when
71 the remains are released by the medical examiner.
72 Section 2. Section 406.135, Florida Statutes, is amended to
73 read:
74 406.135 Autopsies; confidentiality of photographs and video
75 and audio recordings; exemption.—
76 (1) For the purpose of this section, the term “medical
77 examiner” means any district medical examiner, associate medical
78 examiner, or substitute medical examiner acting pursuant to this
79 chapter, as well as any employee, deputy, or agent of a medical
80 examiner or any other person who may obtain possession of a
81 photograph or audio or video recording of an autopsy in the
82 course of assisting a medical examiner in the performance of his
83 or her official duties.
84 (2) A photograph or video or audio recording of an autopsy
85 held by a medical examiner is confidential and exempt from s.
86 119.07(1) and s. 24(a), Art. I of the State Constitution, except
87 that a surviving spouse, parent, or adult child of the decedent
88 may view and copy a photograph or video recording or listen to
89 or copy an audio recording of the deceased spouse’s autopsy of
90 the decedent. If there is no surviving spouse, then the
91 surviving parents shall have access to such records. If there is
92 no surviving spouse or parent, then an adult child shall have
93 access to such records.
94 (3)(a) A The deceased’s surviving relative, with whom
95 authority rests to obtain such records, may designate in writing
96 an agent to obtain such records.
97 (b) A local governmental entity, or a state or federal
98 agency, in furtherance of its official duties, pursuant to a
99 written request, may view or copy a photograph or video
100 recording or may listen to or copy an audio recording of an
101 autopsy, and unless otherwise required in the performance of
102 their duties, the identity of the deceased shall remain
103 confidential and exempt.
104 (c) The custodian of the record, or his or her designee,
105 may not permit any other person, except an agent designated in
106 writing by a the deceased’s surviving relative with whom
107 authority rests to obtain such records, to view or copy such
108 photograph or video recording or listen to or copy an audio
109 recording without a court order.
110 (4)(a) The court, upon a showing of good cause, may issue
111 an order authorizing any person to view or copy a photograph or
112 video recording of an autopsy or to listen to or copy an audio
113 recording of an autopsy and may prescribe any restrictions or
114 stipulations that the court deems appropriate.
115 (b) In determining good cause, the court shall consider
116 whether such disclosure is necessary for the public evaluation
117 of governmental performance; the seriousness of the intrusion
118 into the family’s right to privacy and whether such disclosure
119 is the least intrusive means available; and the availability of
120 similar information in other public records, regardless of form.
121 (c) In all cases, the viewing, copying, listening to, or
122 other handling of a photograph or video or audio recording of an
123 autopsy must be under the direct supervision of the custodian of
124 the record or his or her designee.
125 (5) A surviving spouse, parent, and adult child of a
126 decedent shall be given reasonable notice of a petition filed
127 with the court to view or copy a photograph or video recording
128 of an autopsy or a petition to listen to or copy an audio
129 recording, a copy of such petition, and reasonable notice of the
130 opportunity to be present and heard at any hearing on the
131 matter. If there is no surviving spouse, then such notice must
132 be given to the parents of the deceased, and if the deceased has
133 no living parent, then to the adult children of the deceased.
134 (6) A relative authorized to receive a copy of an autopsy
135 report under this section may not disclose the contents of the
136 report.
137 (7)(6)(a) Any custodian of a photograph or video or audio
138 recording of an autopsy who willfully and knowingly violates
139 this section commits a felony of the third degree, punishable as
140 provided in s. 775.082, s. 775.083, or s. 775.084.
141 (b) Any person who willfully and knowingly violates a court
142 order issued pursuant to this section commits a felony of the
143 third degree, punishable as provided in s. 775.082, s. 775.083,
144 or s. 775.084.
145 (8)(7) A criminal or administrative proceeding is exempt
146 from this section, but unless otherwise exempted, is subject to
147 all other provisions of chapter 119, provided however that this
148 section does not prohibit a court in a criminal or
149 administrative proceeding upon good cause shown from restricting
150 or otherwise controlling the disclosure of an autopsy, crime
151 scene, or similar photograph or video or audio recordings in the
152 manner prescribed herein.
153 (9)(8) This exemption shall be given retroactive
154 application.
155 Section 3. Subsection (37) of section 497.005, Florida
156 Statutes, is amended to read:
157 497.005 Definitions.—As used in this chapter:
158 (37) “Legally authorized person” means, in the priority
159 listed, the decedent, when written inter vivos authorizations
160 and directions are provided by the decedent. The term may
161 include the following relatives in the priority listed who have
162 not been disqualified under s. 732.804:; the surviving spouse,
163 unless the spouse has been arrested for committing against the
164 deceased an act of domestic violence as defined in s. 741.28
165 that resulted in or contributed to the death of the deceased; a
166 son or daughter who is 18 years of age or older; a parent; a
167 brother or sister who is 18 years of age or older; a grandchild
168 who is 18 years of age or older; a grandparent; or any person in
169 the next degree of kinship. In addition, the term may include,
170 if no family member exists or is available, the guardian of the
171 dead person at the time of death; the personal representative of
172 the deceased; the attorney in fact of the dead person at the
173 time of death; the health surrogate of the dead person at the
174 time of death; a public health officer; the medical examiner,
175 county commission, or administrator acting under part II of
176 chapter 406 or other public administrator; a representative of a
177 nursing home or other health care institution in charge of final
178 disposition; or a friend or other person not listed in this
179 subsection who is willing to assume the responsibility as the
180 legally authorized person. Where there is a person in any
181 priority class listed in this subsection, the funeral
182 establishment shall rely upon the authorization of any one
183 legally authorized person of that class if that person
184 represents that she or he is not aware of any objection to the
185 cremation of the deceased’s human remains by others in the same
186 class of the person making the representation or of any person
187 in a higher priority class.
188 Section 4. Section 732.804, Florida Statutes, is amended to
189 read:
190 732.804 Provisions relating to disposition of the body.—
191 (1) Before issuance of letters, any person may carry out
192 written instructions of the decedent relating to the decedent’s
193 body and funeral and burial arrangements. The fact that
194 cremation occurred pursuant to a written direction signed by the
195 decedent that the body be cremated is a complete defense to a
196 cause of action against any person acting or relying on that
197 direction.
198 (2) A person may not make decisions relating to a
199 decedent’s body and funeral and burial arrangements if:
200 (a) A medical examiner, in consultation with a law
201 enforcement agency pursuant to s. 382.011, has found that the
202 person may have unlawfully participated in the decedent’s death;
203 or
204 (b) The person has been arrested for unlawfully
205 participating in the decedent’s death.
206 Section 5. This act shall take effect July 1, 2010.