Washington Report 112002

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

Dodd Plans to Introduce Historic Legislation to Regulate Industry

by Robert M. Fells, Esq.
Sen. Christopher Dodd (D-CT) plans to introduce a bill that for the first time would establish federal regulation of the death-care industry, including cemeteries, funeral homes, crematories, monument retailers and any business that sells funeral-related goods or services.
Tentatively titled, "The Federal Death Care Inspection and Disclosure Act of 2002," the proposal would regulate industry members in addition to existing state laws. ICFA staff has been working with Dodd's staff since the senator announced his intentions last spring of introducing legislation. The ICFA Government and Legal Affairs Committee has also filed comments expressing its concerns with drafts of the proposed legislation and, in particular, opposing the concept of codifying the FTC Funeral Rule into federal law as discussed below.
An unpublished draft bill runs 35 pages in length and is divided into two parts, or titles. Title I would establish a new "Office of Funeral, Burial and Disposition Services" within the U.S. Department of Health and Human Services. The director of the office would develop standards for registering and inspecting "funeral homes, cemeteries, crematories and other death-care providers." A grant program would also be established whereby individual states could apply for funding to enforce federal standards that include hiring and training funeral home, cemetery and crematory inspectors and hiring and training "consumer advocates to resolve disputes between consumers and death care providers," among other things.
Title II of the draft bill would basically codify the Federal Trade Commission's Funeral Rule into a federal statute and extend the rule's coverage to all death-care providers, including the sale of interment rights, opening and closing charges and monuments, markers and memorials. Title II also would prohibit all telemarketing and door-to-door solicitation, and most important, would establish a private right of action for individuals to sue cemeteries, funeral homes and other providers for violations under a codified Funeral Rule. Plaintiffs could receive the greater of actual damages or $5,000 per violation.
As previously reported, the U.S. General Accounting Office (GAO), the investigative arm of Congress, is conducting a study to determine the effectiveness of state funeral and cemetery laws to protect consumers. The ICFA announced its support of the GAO investigation in February and has met with GAO investigators. The association believes that the introduction of any legislative proposals is premature until the GAO has reported its findings and recommendations. However, Dodd's staff has told the ICFA that the senator prefers not to wait for the GAO report. While the concept of providing federal grants to assist state governments in the enforcement of state laws is a promising idea, the ICFA had notified Dodd since last May of its opposition to efforts to codify the Funeral Rule.
The ICFA is concerned that codification of the Funeral Rule by Congress would politicize the rule by taking control of it away from the FTC's procedural safeguards. If it becomes a federal statute, any one of the 535 members of Congress will be able to introduce amendments in response to local problems and, given the highly emotional nature of funeral-related complaints, proposed amendments could be quickly approved by Congress without a sufficient factual basis for federal action. By contrast, the FTC requires a documented record of prevalent consumer injury in order to amend the Funeral Rule.
At this writing, Congress has recessed for the November 5 elections but is subject to recall before year's end. Although a bill could be introduced at any point prior to Congress' adjournment, the bill would expire as of adjournment. In that case, Dodd's staff has told the ICFA that the bill or a revised version of it would be introduced into the new Congress in January. ICFA members should check the association's Web page, www.icfa.org, for updates, in addition to staying current with the ICFA WIRELESS, the bi-weekly electronic newsletter sent to all members with e-mail addresses.