It is a violation of the amended Funeral Rule to charge for embalming unless:
Before discussing each of these three factors, it is important to note that embalming without permission is not a violation of the amended Funeral Rule. The violation occurs only when a charge is made for the unauthorized embalming. Therefore, if an embalming has taken place without prior permission being obtained, the Rule will not be violated unless you make a charge for that embalming. Of course, the act of embalming without permission may still constitute a tort under state law which would leave a funeral director civilly liable.
Whenever state or local law requires embalming, it is not a violation of the Rule to charge for embalming that was not authorized by the family. You are, however, required to note on the Statement of Funeral Goods and Services Selected that embalming was performed because of a legal requirement.
A charge for embalming may be made when the family provides express permission to embalm prior to the embalming. It is critical to note that the permission to embalm must be expressly provided; it cannot be implied. For example, under the Rule, this requirement is not met if the family gives you permission to "prepare the body" or if the family desires a funeral service that requires embalming. A request by the family for a funeral with public viewing does not constitute prior permission to embalm. You must specifically ask the family for permission to embalm and you must receive it prior to embalming. Such permission may be given orally.
If you embalm the body prior to receiving permission and if none of the other two exceptions (legal requirements or exigent circumstances) exist, you may not charge for embalming. This is true even if the family later provides you with permission to embalm. Charging for embalming under these circumstances constitutes a violation of the Rule.
In order to fall under the exigent circumstances exception, all three of the following conditions must be fulfilled:
The first issue that arises under the exigent circumstances exception is what constitutes "due diligence" in trying to contact family members. The only guidance provided by the FTC is found in the 1985 Staff Guidelines wherein it is inferred that in order to meet the due diligence test a funeral director must exhaust all means known to the funeral director to contact the family.
Although not mentioned by the FTC, a factor which undoubtedly influences what constitutes due diligence in any given case is the time factor confronting the funeral director. In cases where a body requires prompt embalming in order to preserve funeral service options for the family, due diligence would not require a funeral director to unduly delay embalming by taking time consuming steps to contact the family. On the other hand, if means are available to preserve the body (e.g. refrigeration) without detrimental effects, a funeral director may be required to take additional steps to contact family members. Since each case will depend on its own circumstances, no hard-and-fast rule can be spelled out. Nonetheless, funeral directors should document the steps they take in each case in the event their actions would come under scrutiny.
Remember that when operating under the exigent circumstances exception, you must explain to the family that no charge will be made for embalming if they select funeral arrangements that do not require embalming. This information must be conveyed to them in order for you to be able to charge for embalming under the Rule.
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