Washington Report 012005
Dodd does it again: Senator introduces death care legislation
by Robert M. Fells, Esq., general counsel
Sen. Christopher Dodd (D-CT) reintroduced his massive "Federal Death Care Inspection and Disclosure Act" on November 20, in the closing days of the 108th congressional session. The senator first introduced the bill two years ago.
Acknowledging that his proposal, S. 3023, had no chance of passage prior to Congress' adjournment for the year, Dodd said, "I hope that we will be able to move on this issue when we reconvene for the 109th Congress. It is my firm belief that this bill will help both consumers and industry. Consumers will have the peace of mind knowing that they are being treated fairly during their time of grief and distress, while the industry will benefit from regaining the high level of consumer confidence and trust that it has traditionally enjoyed."
As a practical matter, all bills automatically expired when Congress adjourned in December, so Dodd must again reintroduce his bill in order for it to be considered this year.
It is worth noting that Dodd had earlier agreed to exempt religious organizations from coverage under his proposal. However, the language of S. 3023 contains no religious entity exclusion. It does contain all the objectionable provisions from the version of two years ago, including preneed contract cancellation and refund rights, a prohibition on any form of telemarketing or door-to-door canvassing, and a private right of action whereby individuals may sue and collect a minimum of $5,000 per violation.
The bill creates an agency within the U.S. Department of Health and Human Services headed by a "Coordinator of Funeral, Burial and Disposition Services" who would survey state laws, formulate standards for registering, inspecting and monitoring the "handling and disposition of human remains by funeral homes, cemeteries, crematories, and other death care providers."
The first part of the Dodd bill establishes a state grant program to enable states to hire and train funeral home, cemetery and crematory inspectors as well as "consumer advocates to resolve disputes between consumers and death care providers," among other things.
The second part of S. 3023 codifies the FTC Funeral Rule. In other words, it converts the trade rule into a federal statute that can be amended by Congress. This statutory version of the Funeral Rule expands coverage to all sellers of funeral goods or funeral services, including memorial retailers. Items to be provided on written price lists are also expanded to include interment rights, opening and closing charges and monuments, markers and memorials.
The bill also specifies a number of preneed contract disclosures, contains a specific exemption for "the business of insurance," and provides for state exemptions if the state has a requirement that "affords an overall level of protection to consumers that is equal to, or exceeds, the level of protection afforded by" this bill.
The ICFA has opposed the Dodd bill and a companion bill, H.R. 4112, introduced in the U.S. House of Representations by Rep. Mark Foley (R-FL) in April 2004. Neither bill identifies any consumer problems nor proposes solutions to problems; each merely creates a new federal bureaucracy to regulate funerals, burials and cremations in addition to existing state regulation and enforcement.
By codifying the Funeral Rule, control of the provisions contained in the regulation is essentially taken away from the FTC and can be politicized by members of Congress. Any time an incident of misconduct arises in any state or Congressional district there could be efforts to amend the "Funeral Rule law" to address each isolated incident.
Neither Dodd nor Foley have referred to the investigation they requested from the Government Accountability Office, which was meant to make their case that federal regulation of the cemetery and funeral services profession is necessary. Instead, the GAO report, published in September 2003, noted that state laws and enforcement varied, and the report did not address the issue of federal government oversight as requested by Dodd and Foley. In other words, the GAO report is of limited value to support claims that federal regulation is needed.
Finally, Dodd's reintroduction of his legislation confirms the assessment made here in the October 2004 Washington Report that neither Dodd nor Foley had discontinued their quest for federal legislation regulating death care but were waiting for a headline grabbing "event" to justify their proposals.
Three days prior to Dodd's most recent introduction of his bill, a prominent story on the Tri-State Crematory litigation in Noble, Georgia, appeared on page 3 of The Washington Post, possibly providing the catalyst that Dodd was waiting for. ICFA members will be kept informed of significant developments involving the proposed legislation.
by Robert M. Fells, Esq., general counsel
The ICFA gratefully acknowledges a substantial contribution to the ICFA Political Action Committee by the Shipper family in memory of B. David Daly, CCFE, a past president of the association who remained actively involved until his untimely passing in July 2004. This donation was in addition to earlier contributions from members of the Shipper family in 2003 and 2004.