April 27, 2012

Jill France, Chief, Bureau of Health Statistics
Lucas State Ofc. Bldg.
321 E. 12th Street
Des Moines,  IA 50319

Dear Ms. France,

I write to you as the executive director of the nation’s oldest nonprofit dedicated to protecting the rights of funeral consumers, and as the co-author of a book on funeral law state by state (Final Rights: Reclaiming the American Way of Death. Upper Access Books, 2011).

I am requesting that you please send a written directive to the state’s funeral directors alerting them that they are required to furnish burial-transit permits to families and lay groups who wish to bury their own dead privately without engaging the commercial funeral industry.  I am shocked and dismayed to learn that HF 2369 removed references to the county registrars, thus restricting access to these permits. Now families who want a home funeral are required to go either to the state registrar (impractical) or to a commercial funeral home. Home funeral educator Bonnie Kauth has told me the funeral homes in her area are refusing to issue these permits. This is a blatant conflict of interest and I have to believe it’s illegal. Funeral directors who issue burial transit permits are acting on the state’s behalf. They must not be permitted to refuse to perform that duty in an attempt to force grieving families to purchase their services. I feel certain the sponsors of this legislation could not have intended to give the commercial funeral industry a legal monopoly on every death in the state.

Families who bury their own dead already secure a physician’s signature on the death certificate; the state’s medico-legal interest in the death is discharged. There is no legal or practical reason to deny them burial transit permits for their own kin.

Please let me know when you plan to address this matter. While families who perform their own funerals are in the minority, their rights are important.  Funeral directors should be required to provide these permits to families on request and should be barred from charging anything other than the state’s administrative fees. If this problem persists there is a very real risk of adverse publicity for the state and the funeral industry, not to mention the likelihood that a family will file suit against Iowa law on constitutional grounds (freedom of religious practice comes to mind with regard to Amish and Quakers who bury their own). While I hope to work with concerned Iowans and lawmakers to redress this legislation, if that fails my organization will actively encourage and support such a lawsuit.

Thank you very much for your attention to this matter.

 

Sincerely,

Joshua Slocum, Executive Director

The new versions of the chapter are available for just $5 for an instant download.

And yet some hospitals refuse to release a dead body to anyone but a funeral director, someone who may even be a stranger to the family. Why? “Liability,” some hospitals have claimed. What liability, I would ask? Hospitals routinely release new-borns to their parents. They routinely release Grandpa after he’s recovered from his heart attack to anyone who will pick him up. And just what is the “liability” if the new-born was a still-birth or Grandpa didn’t survive his heart attack? There certainly isn’t much more a family could do to make them deader than they already are.

If anything, hospitals that have such restrictive policies are creating their own liability, a lawsuit for interfering with the right of the family to possess the body for the purpose of burial and mourning (1995, federal court decision, Whaley v. County of Tuscola; preceded in 1909 by Wyeth v. Cambridge). And when releasing to the family, there certainly won’t be any law suit for a mistaken identity release as has happened in various states.

To their credit, most hospitals have come a long way in dealing with death, especially in the case of infant deaths. Years ago, a dead child was whisked out of sight, with no chance for the mother to hold the babe and mourn. Most hospitals now know that facing the death physically is an important part of healing for that mom.

So are funeral arrangements for a growing number of families. Out of the total, home funerals are likely to be only a few. But for each of those families who choose that option, a hospital should be well-enough educated to facilitate (not hinder) that choice . . . with a comprehensive bank of “how-to” information if the family needs it. In Vermont, the state Health Department has fulfilled that role. But state hospital associations could do the same. Knowing the laws in every state, I’d be willing to help!

However, I am growing alarmed at one of the trends I see: women (typically) calling themselves death midwives (not just home funeral guides) and asking to be paid for being present with the body, to help prepare the body, get the paperwork, and transport the body. Why am I alarmed? For two reasons. One, it is “acting as a funeral director” without a license. When the industry gets riled enough (as they have been in Pennsylvania and in Oregon), there are likely to be measures taken to limit the possibilities for home funerals, to take away that right that we have in all but eight states. That would be tragic! 

Secondly, the very activities that some of these death midwives are doing or offering to do thwart the therapeutic involvement for friends and relatives. Having something to do takes away the sense of helplessness. Those in the helping professions often have an enormous need to feel needed, and this can lead to overbearing behavior. In at least one situation I know of, the personality of the helper was so aggressive that she offended others.

Of his wife Ann’s death, Jack Manning wrote “No Grey Suits: End of Life as a Team Sport.” Because I get “high” on empowering others, I’ve put together a checklist of the kinds of activities Jack assigned to those around him when he needed help. He didn’t pay them. They all felt privileged to be asked, to be included in such an intimate way. Your friends and relatives will surely feel the same. I am hoping that this checklist will be helpful to the home funeral educators, too. It’s fine to charge a fee for a workshop or written materials, but any hands-on activities at a time of death should be given away for free in order to stay within the law. That’s also consistent with the practices of religious groups that bury their own dead without charge or the Colonial women of the community who were the layers out of the dead.

When a death occurs, many people don’t know what to say or how to act. They might add to their condolences, “Please call if I can do something.,” not being at all sure what they could really do. Will you be smart enough to ask for help, especially ahead of time when the death is expected? Not all of these will apply to every home funeral, of course. Leave your suggestions as a comment!

Who will–

•  Help with notifying family and friends, by phone or e-mail, Facebook or Twitter? Website?
•  Be in charge of obtaining the required paperwork (death certificate, burial transit or disposition permit, permit to cremate)?
•  Contact the cemetery, crematory, or med school to schedule delivery of the body?
•  Bathe and dress the body?
•  Make or purchase a casket, shroud, or cardboard container?
•  Obtain dry ice or frozen gel packs if needed?
•  Arrange for music?
•  Contact any clergy desired?
•  Arrange for flowers?
•  Arrange for cleaning or housekeeping or pet-sitting?
•  Arrange for meals or other refreshments?
•  Meet out-of-town guests at the airport?
•  Provide overnight accommodations for those?
•  Collect and display photos or other memorabilia?
• Plan any service to be held, with or without the body present?
•  Help if there will be more than one event or more than one location?
•  Write the obituary?
•  Write a eulogy?
•  Video any events for the benefit of out-of-town family?
•  Serve as pall bearers?
•  Transport the body?
•  Send thank you notes?
•  Apply for veterans benefits such as a marker and flag?
•  Notify Social Security if not already a part of EDR (electronic death registration)?
•  Extend support to the bereaved after everyone has gone?

–

• First cup of coffee—a spot on Knoxville’s top-rated Hallerin Hill talk show on WOKI. Thanks Hallerin, and thanks to Channing Smith and WOKI for letting us post the audio (and also to Channing and Karen for the best barbecue and biscuits I’ve had in years)! Click here to download the .mp3.
• Second (OK, third) cup—an interview with Brandon Hollingsworth of WUOT, Knoxville’s NPR affiliate out of the University of Tennessee

Thanks also to the more than 60 people who turned out for my talk later that day!

In my capacity as executive director of Funeral Consumers Alliance, I filed this complaint with the FTC:

Craig Tregillus|
Funeral Rule Coordinator
Federal Trade Commission
600 Pennsylvania Ave. NW
Washington, DC 20580

Dear Mr. Tregillus,

I’m forwarding to you a complaint from a casket retailer in Florida. Please consider this email from me a complaint filed by Funeral Consumers Alliance, and also as a request for an advisory opinion. Elder Truss, the casket retailer, has been in contact with us for some time. He alleges that at least two funeral homes in his area are placing obstacles before families who try to buy a casket from his business, rather than from the funeral home. These include requiring families to sign the attached disclaimer before “allowing” them to buy an outside casket. Mr. Truss says several potential customers have dropped their plans to buy his caskets out of intimidation.

The attached disclaimer contains worrying language that seems designed to exploit the emotional state of the recently bereaved. It does not merely ask families to acknowledge that the funeral home is not responsible for merchandise it does not provide. The disclaimer hints ominously about the “suitability” of outside caskets, and instructs families that they purchase one “at their own risk.”

While we know these “risks” are concocted by unscrupulous funeral homes, many grieving families do not. I have no trouble believing such a disclaimer has effectively steered many away from exercising their right to purchase a casket from a third-party, a right given to them by the Funeral Rule.

In addition, Mr. Truss believes the Joe Morris funeral home has intentionally damaged one of his caskets. If this allegation is true, the disclaimer would appear to be an attempt to shield the funeral home from redress. The form absolves the mortuary of responsibility for the “condition” of the casket. While it’s understandable that a funeral home would not want to accept responsibility for a casket that was *delivered* with damage, Joe Morris’ form does not make this distinction. What if the casket’s condition “changes” after it’s delivered and before the family sees it?

I ask FTC staff to give an opinion on:

* whether this disclaimer violates the Funeral Rule

* whether funeral homes may condition the customer’s right to purchase such caskets on the customer’s signing of such forms

Thank you for your time and attention.

Joshua Slocum
Executive Director
Funeral Consumers Alliance (national office)
33 Patchen Road
South Burlington, VT 05403
www.funerals.org
802-865-8300

 

Or not. Two men claim a funeral home kept their dead sister for three days without embalming or refrigeration, resulting in a grotesque appearance. The funeral director disputes that. But whatever the truth behind this story from the Sun Journal in Lewiston, Maine, it’s baffling why any funeral home would risk such a situation. Why in the world would a funeral home not have a refrigerator? Three-body “portable” units can be had for less than $5,000. If the funeral home doesn’t have room, well, it’s time to do a little remodeling.

I traveled to Sullivan, Indiana this week to see if I could help a young man fight an outrageous funeral bill. His wife, a housekeeper at a local hotel, died suddenly in June ’09, with no insurance or benefits. She was the sole bread-winner, as he is disabled with a back injury. The funeral director was fully aware of the financial circumstances yet behaved illegally and unethically in order to crank up the bill. A brother-in-law contributed $500, and the family got $1,000 from the county. The funeral director refused time payments. In November ’09, the funeral director went to Small Claims Court for the balance of the $6,900 funeral bill.

By January, Kevin’s mother found me on the Internet. I was stunned by what I heard and promptly sent the following letter to the judge:

Your Honor:

Some become funeral directors as a mission to help people at one of the most difficult times in their lives. For others, funeral directing is just a job, and they are not above manipulating the bereaved for their own benefit. Mr. Holmes appears to be one of these.

Because of documented abuse and to protect consumers to the extent possible, the Federal Trade Commission passed the Funeral Rule in 1984. Three of the requirements of the Rule are that families must be given a General Price List (GPL), a Casket Price List (CPL), and an Outer Burial Container Price List (OBCPL) prior to finalizing any choices. These are the “menus” of available options from which to choose. (If one were to end up at an expensive restaurant chosen by friends, one could at least see the costs ahead of time and choose only a salad for one’s meal perhaps.) All funeral homes in the country have been mailed information on Complying with the Funeral Rule: <http://www.ftc.gov/bcp/edu/pubs/business/adv/bus05.pdf> It is also covered in Continuing Education courses from time to time.

When the FTC does undercover funeral shopping to see if funeral homes are complying with the Rule, funeral homes are at risk of a $11,000 fine [now $16,000] for failing to give out a GPL in a timely way and another $11,000 fine [$16,000] each for failing to give out a CPL or OBCPL prior to selection of a casket and vault. Kevin Lowe and his family were given none of these opportunities to limit funeral costs for Carla Lowe, even though Mr. Holmes was repeatedly told, “There is no insurance.”

Indeed, Mr. Holmes’ unprofessional conduct was conspicuous when, in the middle of Kevin’s effort to make arrangements, Mr. Holmes started promoting his own funeral insurance to Carla’s siblings.

When trying to select a casket in the casket showroom, Kevin’s mother asked what the lowest cost casket was. They were led to a garage, and a tarp was pulled off a metal casket for which Mr. Holmes charged the family $1,395. (The wholesale cost for this casket was likely $395.) He sold them a name-brand vault for $1,125. The total funeral came to $6,906.40.

Every funeral director wants to get paid for his/her labors but is foolish to sell a funeral for which a family can’t pay. What would an ethical funeral director have done in a situation where funds are clearly limited? One of the options required on the GPL is an “Immediate Burial” package which Mr. Holmes could have pointed out. When I inquired by telephone, Mr. Holmes told me his charge for that was $1,400. His charge for a graveside service is $494, I think. (He had a little trouble citing the exact price over the phone, starting at $395 before he settled on the $494 price.) When I asked about the least expensive casket, he told me, “$1,095 on the floor, but others are available at around $600 or $700.” And his price for a concrete box as required by the cemetery? “Around $600.” So if Kevin had been given the information required by the FTC and he selected the barest minimum to bury his wife, Kevin’s total bill might have been almost $3,000 less.

That Mr. Holmes would sell such an expensive funeral to a family that clearly said they had almost no money is by itself offensive. But to refuse time payments from a disabled husband who just lost the family breadwinner, regardless how modest the payments might be, and to subject Mr. Lowe to the additional stress of court action seems particularly malevolent.  The $1,500 Mr. Holmes has already received has covered most of his out-of-pocket expenses. Since Mr. Holmes escaped the FTC scrutiny and $33,000 in fines this time, perhaps he should be ordered to mark the balance of  Kevin Lowe’s bill for Carla’s funeral “Paid in Full,” as a deterrent from such despicable conduct in the future.

Sincerely,

Lisa Carlson

cc: Holmes Memorial Chapel
cc: Indiana Funeral and Cemetery Board
cc: Indiana Funeral Directors Association
cc: Kevin Lowe

All was quiet for 18 months, and we all assumed Mr. Holmes was properly chagrined. But when he heard that Kevin was finally awarded the disability for which he had applied, he moved to have Small Claims enforce the November ’09 ruling. A hearing was scheduled for August 2nd, 2011, and I flew out to see if I could help. Alas,  the letter I had sent 18 months ago pointing out the unethical and illegal violations didn’t count, as the young man needed to appeal himself, and the time to appeal a decision had long since past.

While there, I did have some fun shopping at the two funeral homes the day before . . . under my maiden name. I was shopping for my Aunt Lucy who was 93 and under hospice care with no insurance and little money. Mr. Holmes now has a somewhat younger man, Scott, working with him, and I actually got price lists on this visit, unlike Kevin’s experience. But Scott was very manipulative, stopping his explanation of costs at the bottom of the second page of the three-page GPL, before we got to any low-cost options. He started trying to fill in a worksheet as if we were having a one-of-everything funeral. . . even though I’d told him Aunt Lucy had few assets and was out-living all her friends so we wouldn’t need a big funeral. Needless to say, I went ahead and turned the page, knowing what should be next—
Immediate Burial and Direct Cremation. I then complained about the $1095 casket price, the cheapest on the casket price list, and Scott said he could special-order a cloth-covered for $795. Why wasn’t that price listed? Because the FTC Funeral Rule says they don’t have to list special-order caskets on the Casket Price List. Then I noted that there is a package price for an Immediate Burial with a casket from the funeral home that’s only $595 more than an Immediate Burial with the casket supplied by the family. “Oh,” he said, “That’s the flat-top,” and went to get a picture. That wasn’t listed either, of course. They didn’t have “an unfinished box” even though it’s mentioned on the casket sheet (without a price) as was the cloth-covered special-order. To their credit, when I suggested I might have my brother Edward make a casket, neither funeral home objected. Of course, who knows what might have been added to the final bill in that case.

The other funeral home—Banks and Brust—gave the GPL promptly.  The Direct Cremation was $1900 but an Immediate Burial was about $2900, over $3,600 with a minimum casket, almost as much as a full-service funeral. I asked why so much more for an Immediate Burial when it included exactly the same services as Direct Cremation. Actually, why wasn’t it less than cremation since the crematory fee was included? The funeral director hemmed and hawed over that one, never really coming up with an answer.

As we were leaving, he said he didn’t want to lose a customer over $100 or so. I mentioned that Holmes was a LOT less for an Immediate Burial. Ten minutes later, he rang my cell phone (which they’d taken when I made the appointment). He said he’d given me the wrong price for an Immediate Burial. It should be only $1825—
the total of the basic fee, removal, and a coach to the cemetery. So I said I guess he’d need to change the price on his GPL. I was aghast when he said, “No, we like the GPL the way it is.” Because grieving families don’t have the presence of mind to compare prices a la carte, no doubt. It makes one wonder if they’re taking advantage of those who can’t opt for cremation for perhaps religious reasons.