Behind the Scenes: How the ICFA Takes Its Stand on the Issues
by Robert M. Fells, Esq., general counsel
Since this issue of our magazine is dedicated to the annual review of government and legal affairs subjects, this column will discuss how the ICFA determines its position on the major issues confronting the cemetery and funeral service profession. Taking the "correct" stand on a given issue involves many hours of review, discussion and drafting of testimony by our volunteers and staff, work that few members are probably aware of. This column will go behind the scenes to show exactly how the ICFA develops a position on a new issue.
Taking a Position
The Government and Legal Affairs Committee is responsible for reviewing new issues such as proposed federal regulations, Congressional legislation and litigation having the potential to affect a significant number of ICFA members. The committee is relatively small-it has never had more than 12 members. (A list of members is at the end of this column.) Nine committee members are from independent firms (not affiliated with the public companies), including nonprofit entities. Information, such as the substance of a proposed regulation, is circulated to committee members by fax or, in the case of lengthier documents, by overnight mail. Committee members are asked to provide feedback to chairman Irwin Shipper by phone, fax or e-mail. Conference calls are scheduled where needed as a follow-up.
When a consensus on a given issue is reached, the chairman notifies the ICFA president and Executive Committee of the recommended position. In unusual situations, the entire Board of Directors (33 members) may be consulted, but in most cases the Executive Committee is authorized to approve the association's position on an emerging issue. (The Executive Committee includes the president-elect; immediate past president, currently Carol Caunter; treasurer and president and past president appointees, currently Edward C. Laux, CCE, and Richard T. Sells, CCE.) The ICFA's positions on longstanding issues are also periodically reviewed by the Government and Legal Affairs Committee in light of new developments and information. This intensive procedure to develop and adopt an official position on a new issue is usually completed in a few days. When time is of the essence, decisions might be made in hours.
Communicating With ICFA Members
Although a position on a new issue, i.e., to support or to oppose a proposed regulation or bill, may be reached quickly, the arguments in support of the position may take longer to fully develop. The Government and Legal Affairs Committee circulates news to the ICFA membership and solicits comments and feedback. In recent years, news has been quickly disseminated to a large portion of the membership through the ICFA WIRELESS e-mail newsletter, published every other Tuesday. More recently, the ICFA Network has been used to seek feedback from the membership. Members provide helpful feedback on the practical consequences, good or bad, a proposal could have on their business operations.
Some of this information is included in testimony or comments filed by the ICFA with government agencies, Congressional committees or the courts. The ICFA also recruits members to provide firsthand testimony at public hearings. Legislators and regulators give more weight to carefully documented testimony than to sweeping claims such as, "If this bill passes, I'll go out of business." Seeking comments from members also provides a "backstop" to the Government and Legal Affairs Committee to assure them that their consensus on an issue reflects the opinions of the general membership.
Since the cemetery and funeral service profession is comparatively small, the ICFA sometimes seeks out potential allies to strengthen its ability to succeed on a given issue. For example, when the Clinton Administration published onerous ergonomics regulations late in 2000, the ICFA joined forces with the National Coalition on Ergonomics, which was coordinated by the U.S. Chamber of Commerce. The ICFA thereby served its members by channeling resources into a large coalition, rather than attempting to carry the flag on this issue by itself. The coalition successfully persuaded Congress to repeal the Clinton ergonomics program in early 2001.
In response to the Dodd/Foley bills that were introduced into Congress late in 2002, the ICFA identified state and national trade associations, regulators and even a consumer advocate who felt that the proposals were counterproductive and unnecessary. Tax proposals often find the ICFA joining with financial group coalitions. For example, when Congress decided to perform a major overhaul of the Internal Revenue Code in 1986, all trust fund deductions were initially eliminated, including the cemetery care fund deduction under IRC section 642(i) that the ICFA had obtained a few years earlier. The ICFA worked with banking associations and the cemetery trust deduction was restored.
While the ICFA seeks coalitions for its primary area of concern, the federal level, an increasing number of state governments are joining together in coalitions of their own in order to propose model laws or regulations for adoption by each individual state.
A few years ago, an organization of state tax departments called the Multistate Tax Commission advanced a model law for taxing the earnings of funeral trusts that many ICFA members found objectionable. The ICFA intervened in the project and persuaded the commission to adopt a fairer approach. Today, the ICFA is involved with the Streamlined Sales Tax Project, another coalition of state tax departments developing "simplified" state sales tax model laws that may become complicated for cemeteries, funeral homes and other members that deliver contracts across state lines.
Some Key Position Summaries
Legislative and regulatory proposals can change over time, so the ICFA's support or opposition to a measure is never carved in stone. The following are summaries of current key positions: Dodd/Foley Bill: Currently only the House version of the Federal Death Care Disclosure Act is pending, with no action scheduled at the time of this writing. The ICFA is opposed to this legislation because the bill does not identify consumer problems or provide any solutions. Instead, the bill, H.R. 4112, seeks to establish a new federal bureaucracy with an annual budget of $5 million to specifically regulate the operations of funeral homes, cemeteries, crematories, monument retailers and related businesses. The bill also provides a private right of action whereby individuals can sue funeral-related businesses and obtain minimum damages of $5,000 per violation.
- FTC Funeral Rule: The ICFA views the expansion of the Funeral Rule as the expansion of the federal regulation of the entire funeral services profession. The ICFA supports the FTC's procedures that require proof of substantial evidence of consumer harm in order to justify expansion of the rule. To date, this burden of proof has not been met.
- Federal Anti-Spam Commercial E-mail Restrictions: The ICFA supports the development of federal regulations through the FTC to restrict unsolicited commercial e-mail. However, current rulemaking by the FTC suggests that legitimate e-mail communications between businesses and their customers may also be restricted. The ICFA opposes such restrictions and has urged the FTC to develop practical regulations to exempt e-mail where an existing business relationship has been established.
Finally, this brief look behind the scenes would not be complete without mentioning the public relations aspect of developing ICFA's positions. No matter how much the membership may agree with a position taken by their association, should the media interpret it as "anti-consumer," the ICFA runs the risk of seriously harming the perception of its members with the public.
This risk is especially apparent in the case of so-called "consumer protection" legislation. The skill required to articulate a consumer-sensitive position that takes issue with consumer legislation is a continuing challenge facing the Government and Legal Affairs Committee.
Robert M. Fells, Esq., is ICFA general counsel. He can be reached at 1-800-645-7700.
ICFA Legal & Legislative Affairs Committee, 2004-2005
- Chairman Irwin Shipper, CCE, Rose Hills Memorial Park, Putnam Valley, New York
- William B. Addison Jr., Evergreen Mortuary, Cemetery & Crematory, Tucson, Arizona
- Gregory J. Easley, CCE, Westlawn-Hillcrest Memorial Park, Funeral Home & Crematory/Stewart Enterprises, Nebraska
- Paul M. Elvig, Evergreen-Washelli Funeral Home & Cemetery, Washington
- Andrew Gauntley, Alderwoods Group, British Columbia, Canada
- Caressa Hughes, Service Corporation International, Texas
- Keenan L. Knopke, CCE, Curlew Hills Memory Gardens, Florida
- Edward C. Laux, CCE, cemetery consultant, Arizona and New Jersey
- John F. Llewellyn, CCE, Forest Lawn Memorial-Parks and Mortuaries, California
- Mark J. Revitz, Vista Memorial Gardens and Funeral Home/Pershing Industries, Florida
- Gregg A. Strom, Cornerstone Family Services, Pennsylvania
- William L. Wright, CCE, Fairlawn Burial Park/The Heritage Funeral Home, Kansas