Washington Report 052005

Date Published: 
Original Author: 
Robert M. Fells
Original Publication: 
ICCFA Magazine

ICFA comments on proposed Pa. Funeral Board rules

by ICFA General Counsel Robert M. Fells, Esq.
The Pennsylvania State Board of Funeral Directors invited public comment regarding its proposed regulations defining acts by its licensees as professional misconduct. In response to a request by the Pennsylvania Cemetery and Funeral Association, the ICFA filed comments in which it shared the concerns expressed by the PCFA.
The ICFA stated: "We note that the purpose of the proposed rulemaking is to define acts of misconduct that will subject board licensees to disciplinary action. However, the language is so vaguely worded and overly broad that the practical application of these proposals is problematic."
For example, the ICFA pointed out one proposal that discussed "Retaining funds intended to pay for funeral goods and services when the funeral director and establishment have not provided any funeral goods and services or when the amount of funds retained is in excess of the value of the funeral goods and services actually provided" as being "quite cryptic in its meaning and intent." The ICFA expressed its concern that "neither board licensees nor the general public will be able to decipher the subsection's actual purpose based on its current wording."
The board proposals also modify the legal requirement contained in the FTC Funeral Rule concerning permission to embalm, claiming that such modifications are "consistent with" the FTC Funeral Rule. Yet the ICFA questioned whether the board has conferred with FTC staff "to ascertain whether the commission in fact will consider the requirements of the proposed subsection as being consistent with the requirements of the Funeral Rule. Otherwise, licensees may risk liability for violation of the Funeral Rule by complying with the proposed subsection, or vice versa."

ICFA submits brief in grave opening/closing litigation

by ICFA General Counsel Robert M. Fells, Esq.
Following up on our column in the previous issue, the ICFA has submitted to the Indiana Supreme Court an amicus curiae or "friend of the court" brief in the case of SCI Indiana Funeral Services Inc. v. D.O. McComb & Sons Inc.
This litigation challenges, among other things, the constitutionality of a state law giving cemeteries or their agents the exclusive right to open and close all graves within their boundaries. The lower appeals court upheld the state law as constitutionally valid to protect the public health, safety and welfare. However, plaintiff McComb has asked the state supreme court to review and reverse the appellate court decision. Since a number of states in addition to Indiana have similar laws, an adverse decision in this state could have potential consequences elsewhere. As a result, the ICFA decided to file a friend of the court brief in support of the lower court decision and was joined in the brief by the Indiana Cemetery Association.
Following the appellate court's ruling in January, plaintiff McComb filed a petition to transfer, which in effect asks the state supreme court to review the decision. Three area funeral homes and one cemetery filed an amicus brief in support of the McComb petition claiming that if the appellate court's decision is not reversed, small cemeteries will be prohibited from contracting out the opening and closing services to third parties.
The 1997 statute, the Exclusive Rights Act, states, in part, "Because the owner of a cemetery is responsible for the performance of the care and maintenance of the cemetery, the cemetery owner has the exclusive right to: 1) open and close a grave or grave space, burial space, crypt or niche in the cemetery …. This exclusive right may also be exercised by the authorized representative of the owner of the cemetery."
The McComb amici question whether the appellate court ruling would bar and criminalize "third parties who perform the services set forth in this statute, though not employees or agents of the cemetery owners or otherwise under their direct control, but who act in accordance with the cemetery's rules and regulations."
In response, the ICFA/ICA brief states that the McComb parties seek "to blur the distinction between a cemetery hiring a third party to open/close graves on the cemetery's behalf, and the unprecedented, if not unique, demands of the McCombs who wish to open and close graves on behalf of themselves and use the cemetery property as if they were the owners without the long-term obligations of cemetery ownership… . The Exclusive Rights Act does permit opening/closing to 'be exercised by the authorized representative of the owner of the cemetery.' It does not, however, shift the responsibility … for care and maintenance of the cemetery to such representative."
The ICFA/ICA brief points out, "There is no risk that the Court of Appeals' opinion will subject cemetery owners to criminal prosecution merely because they contract with third parties to open and close graves unless such owners seek to evade their unique responsibility to lot owners for the care and maintenance of their cemeteries."
In its decision, the appeals court rejected McComb's contention that it was SCI's authorized representative due to years of McComb's nonperformance under an agreement with the cemetery's previous owner and the fact that McComb and SCI have been adversaries in this litigation for the past five years. Under the circumstances, the appellate court found that McComb "did not fit this description" of an authorized representative.
At this writing, the state supreme court is considering the briefs.