Washington Report 052004

Date Published: 
Original Author: 
Bill Wright and Paul Elvig
Original Publication: 
ICCFA Magazine

The Gathering Storm

by Bill Wright, CCE
The fact that Congressman Mark Foley (R-FL) recently introduced H.R. 4112, calling for the federal regulation of our businesses, should come as no surprise to any ICFA member who has been following events during the last few years.
Make no mistake, there is indeed a gathering storm approaching, and I fear that too many of our colleagues have been much too complacent about responding to it. This is one reason the ICFA established its Political Action Committee, ICFA PAC, last year. This fund will ensure that our voices will be heard as the members of Congress consider the Foley bill and other proposed legislation to regulate us in the future.
The ICFA PAC Disbursement Committee will soon be making donations to select members of Congress. If you would like to learn more about ICFA PAC, call me at (620) 662-3431 and I will be delighted to discuss the issues with you personally. There is a gathering storm, so let us work together as industry members to ensure positive outcomes.

Bill Wright, CCE, is vice president of Fairlawn Burial Park and Heritage Funeral Home, Hutchinson, Kansas, and a past president of the ICFA. He can be reached at heritage@msinter.net or (620) 662-3431.

Congressman Submits Federal Death Care Disclosure Act

by Paul M. Elvig, guest columnist
On April 1, U.S. Rep. Mark Foley (R) of West Palm Beach, Florida, introduced H.R. 4112-the "Federal Death Care Disclosure Act." Foley had announced plans to regulate the funeral/cemetery/memorial industry at the national level, and this bill represents his second attempt to do so. The Foley bill appears to be the old "Dodd/Foley bill" which was introduced in November 2002, during the closing days of the previous session of Congress, minus provisions to create a "funeral czar" and other adventuresome federal oversights. Whether or not Sen. Christopher Dodd (D-Connecticut) will introduce a bill identical to Foley's remains to be seen at press time.
In a nutshell, what does H.R. 4112 do? First, the Federal Trade Commission loses its role of determining whether the Funeral Rule should be expanded or if it is even needed. The bill would codify the present Funeral Rule into a federal statute and expand its coverage to ALL sellers without any evidentiary basis for such action, and regulate preneed contracts by making, among other things, all such contracts cancelable by the purchaser at any time with a full refund (including accrued interest). The FTC would be directed to enforce the new law. The bill provides the FTC with an annual budget of $5 million through 2010 to "carry out the act." That's a lot of taxpayer money to handle what the FTC has considered a low number of consumer complaints.
As noted, Foley's bill would bring ALL funeral service providers under the new law. The term "funeral provider" is defined as funeral directors, morticians, cemeterians, cremationists and memorial retailers. There are no exemptions for nonprofit or religious entities. This is a major overreach from the existing FTC Funeral Rule.
And that's not all! H.R. 4112 establishes a "private right of action" clause through which, "...a person who is injured by a violation of this act may commence a civil action against the funeral provider." That person shall "...be entitled to recover the greater of actual damages or $5,000 for each violation proved by a preponderance of the evidence." WOW! It's open season!
In my opinion, should the "private action" clause be enacted we could well expect to see "bounty hunting" for the unsuspecting funeral home and cemetery. Trip up-and there are those who specialize in tripping up others-and you could see considerable cash paid to private parties, not government agencies, for infractions of the law. Agency warnings and fines are gone; civil actions take center stage.
Back when the FTC promulgated its Funeral Rule, much emphasis was placed on consumer awareness through shopping and taking time to know in advance what costs and needs might be. H.R. 4112 just about kicks that concept out the window. In addition to regulating preneed contracts and how they are administered, H.R. 4112 comes close to shutting down preneed marketing. It labels as a "deceptive trade practice" making "unsolicited telephone offers to sell" any funeral, crematory, burial or memorial products and services. No door-to-door sales either. Just how consumers are encouraged to check out costs and what their needs might be is anybody's guess. Foley's bill does not address that question.
Members of the ICFA Government and Legal Affairs Committee, chaired by Irwin Shipper, CCE, have reviewed the text of H.R. 4112 and are preparing political battlefield strategies to stop what amounts to a federal takeover of the funeral, cemetery and memorialization industry. As one reads H.R. 4112's "definitions list," defining what the industry does and what its services and products are, the obvious becomes clear. It would take Congressional action to add or subtract from the list. As the reader well knows, new products and service concepts evolve over the years in response to consumer demands and needs. This bill would require Congressional action, hearings and a presidential signature to change the list.
And there is more, much more, in this bill. You may read H.R. 4112 in its entirety on the ICFA Web page, www.icfa.org. The bill has been referred to the House Committee on Energy and Commerce, but as of this writing hearings have not been set. ICFA members will be kept informed of important developments through our association Web page, the ICFA WIRELESS e-mail newsletter and this magazine.
If you are not a member of the ICFA, this is the time to join! If you know of funeral homes and cemeteries that are not members, now is the time to act on membership. Our united voices, in larger numbers, will be critical in stopping a federal takeover of our industry. The battle raises an age-old question. How much government do we need? Can the case be made for federal oversight? Will we lose our ability to approach the FTC with concerns and issues if Congress mandates FTC action? Will it take "an act of Congress" to get things done? Stay tuned. Get involved.
Paul M. Elvig is vice president of administration for Evergreen-Washelli Memorial Park & Funeral Home, Seattle, Washington, and is an ICFA vice president. He can be reached at pelvig@washelli.com or (206) 362-5200.