Washington Report 112003

Date Published: 
Original Author: 
Robert M. Fells

What the GAO Report Did Not Contain

by Robert M. Fells, Esq., general counsel
Last month's column reviewed the contents of the investigative report published by the U.S. General Accounting Office requested by Sen. Christopher Dodd (D-CT) and Rep. Mark Foley (R-FL). The 62-page report, "Death Care Industry: Laws Vary by State and by Industry Segment," can be viewed on the ICFA Web page (www.icfa.org) together with a summary and excerpts. Since the report was first made public on September 11, both Dodd and Foley have stated their intentions of introducing legislation into Congress during the next few months to regulate funeral homes, cemeteries, crematories and related sellers.
Of particular interest to ICFA members is a statement from Rep. Foley that was published in an Associated Press story. According to the AP, Foley claimed, in an apparent reference to the GAO report, "Inconsistent [state] laws and poor enforcement have allowed grave desecration to become a national epidemic. This atrocity must stop now." This remark is puzzling because the GAO report did not discuss grave desecration, nor did the report make any claim concerning the extent of the issue.
More importantly, the GAO report failed to address two key issues that both Dodd and Foley asked the agency to evaluate:
1) whether state laws and their enforcement adequately protect consumers; and
2) if the states are not doing an adequate job, the GAO was requested to recommend what role, if any, the federal government should play in protecting consumers making funeral- and cemetery-related purchases.
A thorough review of the GAO report indicates that there is no determination or even an expression of opinion by the agency concerning the effectiveness of state regulation and enforcement. The report states that laws vary from state to state, with funeral homes being the most frequent target of enforcement actions.
Fewer enforcement actions are brought against cemeteries, crematories, preneed funeral plans and third-party sellers, but the GAO made this important admission: "It must be noted 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." In addition, the GAO made no reference to the need for federal regulation.
The GAO report also did not review any complaint data to even attempt to determine the number and types of consumer complaints lodged against funeral homes, cemeteries, crematories and related sellers. Instead, the GAO dismissed this important issue by observing that its complaint data was not comprehensive "because 1) complaint data are not systematically gathered within states or across states, 2) there is no central repository for death care industry complaint data, 3) not all consumers who experience problems in their death care transactions file complaints and 4) some consumers may file the same complaint with more than one organization."
However, this does not explain why no complaint data were reviewed or commented upon in the GAO report. In particular, the Federal Trade Commission maintains a huge database of consumer complaints publicly available through Freedom of Information Act requests and therefore accessible to GAO investigators. The fact no complaint information was discussed in the GAO report, except for the quote given above, limits the usefulness of the report, especially in regard to proposing federal legislation.
The ICFA has requested a meeting with Dodd and Foley's staffs and all major stakeholders in the GAO report.
ICFA members will be kept informed of significant developments through this column and through the biweekly ICFA WIRELESS e-mail newsletter.

Telemarketers Should Comply With "Do Not Call"

At this writing, a federal appeals court in Colorado has permitted the Federal Trade Commission to implement its national Do Not Call registry while the FTC is appealing the lower court decision that held the registry unconstitutional.
The Federal Communications Commission, which shares enforcement responsibilities for the Do Not Call Registry with the FTC, is not affected by the court ruling and announced that it would enforce its own regulations as scheduled beginning October 1.
ICFA members who may be affected by the new regulations should regularly check the FTC Web page and the FCC Web page for the latest developments.
Regardless of the court decision, other provisions of the FTC's amended Telemarketing Sales Rule are in effect, including prohibitions against harassing calls and blocking Caller ID.