Posted: December 22, 2011
By: T. Scott Gilligan, NFDA General Counsel
The FTC Staff issued an Opinion Letter on December 21, 2011, which holds that unless a funeral home is located in a state whose laws require identification prior to cremation, the funeral home may not require a family to purchase identification in order to obtain a cremation. NFDA disagrees with the opinion and will be filing a formal request with the FTC Staff to reconsider and withdraw this opinion.
The opinion properly recognizes that identification may be charged in those states where it is required by state law. A number of states require identification by the funeral home as part of the cremation process. For funeral homes in those states, this opinion does not preclude the charging of a fee for identification. The opinion does remind those funeral homes that if identification services are purchased, the funeral home needs to include a notification indicating that identification is required as a matter of state law on the Statement of Funeral Goods and Services Selected.
In those states that do not have laws or regulations requiring identification prior to cremation, it has always been NFDA's position, as well as the opinion of every credible expert in the cremation field, that identification be required in order to avoid liability. There are numerous cases where funeral homes did not insist on identification and have been successfully sued for hundreds of thousands of dollars because the wrong body was cremated. It is safe to say that identification is the standard of care in the funeral profession and that a funeral home that does not require identification prior to cremation is committing an act of negligence.
While the FTC Staff Opinion makes a passing acknowledgement of these liability concerns, it finds that there are "reasonable alternatives" to the requirement of a positive identification of a body. It lists the following three alternatives:
Each of these alternatives are either unworkable from a liability standpoint or constitute a violation of the Funeral Rule. The first suggestion, which would involve either taking a photograph of the decedent or having one supplied by the family, is not the most effective way to avoid misidentification. As all funeral professionals know, appearances can change dramatically following a long illness and hospitalization. The use of photographs, especially dated photographs, is not a very effective means of identification. Moreover, it should never be the funeral home employee making the identification since, in the event of a misidentification based on a family photograph, the liability would be imposed on the funeral home and not on the family.
The second alternative suggested provides absolutely no protection against liability. The FTC Staff recommends that the funeral home obtain a waiver of identification by the family. However, in the event that the wrong body is cremated because identification was not undertaken, it is not the family that signs the waiver who will sue the funeral home. Rather, the funeral home will be sued by the family whose body was wrongfully cremated and who did not sign the waiver. Therefore, the waiver provides absolutely zero protection to the funeral home in the event that the wrong body is cremated.
The third alternative suggested by the FTC Staff is for the funeral home to simply incorporate its identification services into its non-declinable basic services fee. This would constitute a clear violation of the Funeral Rule. The Funeral Rule only permits funeral homes to include in its non-declinable basic service fee those services which are provided in nearly every disposition. Generally, identification services are only required by funeral homes in connection with cremation and only in those cases where the family will not view the body. To compel every family to purchase identification services by placing it in the non-declinable basic service fee when only a minority of families will require the service is a clear violation of the Funeral Rule. That the FTC Staff suggested this as an alternative is baffling to say the least.
As noted above, NFDA will be formally requesting the FTC Staff to reconsider the December 21, 2011, opinion. NFDA will update its members on any future developments. In the meantime, if NFDA members have questions regarding this matter, they may contact the association's general counsel Scott Gilligan at 513-871-6332.
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