What Happened to the Dodd/Foley Bills?
by Robert M. Fells, Esq., general counsel
As the 108th Congress nears adjournment, cemetery and funeral service professionals may well ask, "What happened to the Dodd/Foley bills that were supposed to establish the federal regulation of our businesses?" Discussions with Congressional staffers tell us both men fully intend to pursue their legislation but are waiting for a new funeral-related "event" to ignite their push toward enactment.
To review, Sen. Christopher Dodd (D-CT) and Rep. Mark Foley (R-FL) introduced legislation into the Senate and House of Representatives, respectively, in November 2002. The companion bills, titled the Federal Death Care Inspection and Disclosure Act, were 33 pages long and sought to establish operating standards for funeral homes, cemeteries, crematories and related businesses through the U.S. Department of Health and Human Services. A new office would also be created in HHS with a "coordinator of funeral, burial and disposition services," dubbed by some pundits as "the Death Czar." In addition, the legislation would drastically expand the FTC Funeral Rule by converting the agency regulation into a federal statute covering all funeral-related sellers and, among other things, establishing a private right of action whereby individuals could sue funeral providers and collect a minimum of $5,000 per alleged violation.
The Dodd/Foley bills were extraordinary because they marked the first time Congressional legislation was introduced to regulate the funeral services profession. Indeed, they marked the first time any licensed profession was proposed to come under federal oversight. The catalyst? Two unusual and highly publicized events in early 2002 involving Menorah Gardens in Florida and Tri-State Crematory in Georgia. Both Dodd and Foley immediately ordered the General Accounting Office, the investigative arm of Congress, to review the effectiveness of state laws and their enforcement in protecting funeral consumers, broadly suggesting that the federal government needed to move into this area of regulation. In addition, Dodd held a public hearing in April 2002 where he criticized the FTC for not expanding the Funeral Rule. FTC staff rebutted the criticism, saying there was insufficient evidence to justify rule expansion.
Both Dodd and Foley stated their intention to pursue federal legislation as quickly as possible and a staffer in Dodd's office told the ICFA that they wanted "to strike while the iron was hot," that is, while the Menorah Gardens and Tri-State Crematory stories were still making national headlines.
The ICFA came to an arrangement with Dodd's office to review and comment on drafts of the proposed legislation during the summer and fall of 2002. The ICFA expressed concern that the bills neither identified consumer problems nor proposed remedies, but merely established a new bureaucracy focused on undefined issues. The association also criticized the timing of the proposals by noting that the GAO had not yet made its report and there existed no documentation that state regulation was seriously ineffective. Other funeral associations such as the NFDA also expressed similar views. Nevertheless, the bills were introduced in the closing days of the previous Congress with the assurance that they would be reintroduced when the new Congress convened in January 2003.
The GAO (now called the Government Accountability Office) issued its report in September 2003, finding that state laws and their enforcement vary in effectiveness. However, the report made no recommendation concerning federal oversight. The report also contained the interesting admission that "a low number of enforcement actions taken by a state may not be indicative of lax enforcement efforts, but rather could be reflective of a general lack of problems involving the death care industry in that state." The GAO report was viewed as neither an indictment nor exoneration of state regulation.
In any event, no bills were introduced into the 108th Congress until April 1, when Rep. Foley introduced H.R. 4112, a somewhat shortened version of the 2002 bills, titled the Federal Death Care Disclosure Act. Provisions dealing with the HHS "Death Czar" and operating standards were deleted and the new bill was limited to the codification of an expanded FTC Funeral Rule into a federal statute, appropriation of $5 million a year for FTC enforcement, and a number of controversial provisions, including the private right of action. The bill was referred to the House Energy and Commerce Committee, where no action has taken place to date.
In speaking with ICFA members and other funeral service professionals recently, I have found a general mood that "the crisis has passed." However, direct talks with their staffs reveal that both Dodd and Foley remain committed to bringing "the death care industry" under direct federal regulation but realize that the momentum created by the Menorah Gardens/Tri-State headlines has faded. It appears they are biding their time, waiting for the "next big problem" to erupt before moving ahead with a full-court press to pass their proposals.
Irwin W. Shipper, CCE, chairman of the ICFA Government and Legal Affairs Committee, said, "The door to federal legislation has been opened and it will remain open from now on. Nobody should be lulled into a false sense of security just because the Foley bill has not been a priority in Congress so far. All ICFA members should remain in 'a heightened state of alert' and be aware that Sen. Dodd and Rep. Foley have positioned themselves to move quickly the next time a funeral-related issue becomes a national story. The ICFA has also positioned itself to move quickly, but we need the support of all of our members and, frankly, I believe that complacency is our worst obstacle."