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Enforcing the Funeral Rule

How do you enforce the Funeral Rule on Funeral Homes and Funeral Directors?

The Funeral Rule is the United States Federal Trade Commission's answer to calls throughout the late 1960's and early 1970's for wide spread reform of the ways funeral homes across the country conducted business. The best selling 1963 book American Way of Death drew significant public attention to complaints that Americans had long grumbled about privately: memorializing and burying a loved one was far too expensive, and many of the “traditional” practices that contributed to these expenses were unnecessary (and even unwanted). Journalist Jessica Mittford's book detailed how the entire funeral home industry had managed to force these traditions, artificially, into the American cultural fabric over the early 20th century with heavy sales pressure applied to families in their moments of grief, when saying “no” was emotionally difficult. She documented decades of ethically questionable business practices that had become standard to funeral homes, large and small, across the country. And she showed how those practices had spawned an incredibly profitable, multi-billion dollar industry that had quietly become a powerful political force in the country. And, she argued, unless the industry's power was held in check (and potentially broken up) by activists and government regulators, it would only solidify (and enrich) itself further and further until all hope would be lost for families wanting to carry out their own, inexpensive, traditions at the loss of their loved ones. (Mittford pointed out that the industry's powerful lobbying forces had already worked to make some of the questionable traditions – a chief example being embalming – required by state law (ostensibly for public health and sanitation purposes in many cases) whether families wish for them or not.)

At the publication of the American Way of Death a movement of “funeral consumer activists” gradually formed and became nationally organized through one key group, the Funeral Consumer Alliance that began lobbying national politicians to on the funeral industry. Most of these people were political newcomers and volunteers angered by how they had been tricked – or sometimes even trapped – into paying for funeral services they had not desired for their loved ones. So the ill-funded movement took more than a decade to see any political fruits.

But, finally, in 1974, officials at the Federal Trade Commission, backed by support from Congress, proposed the Funeral Rule. Eight years of political wrangling ensued. The funeral home industry's strong lobbying arm, the National Funeral Directors Association, spared little expense and effort in fighting the proposed rule, exerting a great deal of political pressure on the elected officials who supported it. But, in 1982, the Funeral Rule won final approval from Congress and the FTC was authorized to begin enforcing it.

“But over the years, with some exceptions, the Commission has done little to enforce the Funeral Rule – the first and only federal regulation giving grieving consumers specific rights,” activists Josh Slocum and Lisa Carlson say in their 2011 book Final Rights: Reclaiming the American Way of Death. For many activists, the title of Slocum and Carlson's chapter about the Funeral Rule sums up the rest of the Funeral Rule's history quite aptly: “Federal Trade Commission: A fickle consumer ally.”

In general, the intent of the Funeral Rule is that consumers have some important, legally recognized, rights from the moment they enter a funeral home to inquire about services. Those rights include the following: the right to a list of clearly communicated, mostly non-negotiable, prices the funeral home charges for its various services and products; the right to purchase some goods or services (such as a casket or cremation urn) from other sources while still contracting the funeral home for funeral arrangements and other services; and the right to not be lied to (or misled) about laws affecting funeral services (in other words, funeral homes may not insinuate that certain services, such as embalming, are required by law when, in fact these days, embalming is very rarely a legal requirement).

But, Slocum and Carlson (among others) point out that these rights for funeral consumers remain largely unenforced by the Federal Trade Commission and, accordingly, many of the practices and traditions Jessica Mittford decried more than 50 years ago in American Way of Death are still in relatively common practice today. What follows is a summary of the Federal Trade Commission's (many will say spotty) history enforcing The Funeral Rule.

Funeral Rule Offenders Program

Faced with criticism that it had done very little to enforce The Funeral Rule in its first 14 years, the FTC began the “Funeral Rules Offenders Program,” in partnership with the National Funeral Directors Association in 1996. In a nutshell, the program still works like this: The FTC conducts periodic random checks of funeral homes across the United States looking for violations of the Funeral Rule. Mostly, the agency conducts “mystery shopper” raids in select cities, sending secret agents to funeral homes to inquire about services and taking note of whether the agents are offered the obligatory General Price Lists that funeral homes are required to present to all potential customers, whether the customer requests the list or not. The FTC secret agents also occasionally phone funeral homes to test compliance with the Funeral Rule's requirement that funeral homes make price information easily available via telephone upon request.

Under FROP, funeral homes found to be out of compliance with the Funeral Rule may choose to attend NFDA-led training and make a “voluntary” contribution to the U.S. Government in lieu of the $16,000 minimum fine the Funeral Rule authorizes the FTC to levy against violators. The FTC further agrees to keep the names of offenders confidential, so long as they complete the training.

Critics of the FROP note that the confidentiality factor makes it difficult for journalists and consumer advocates to confirm the effectiveness of the program in bringing violators to reform. This press release from the FTC is typical of the most public information the agency releases about the program. It points to enforcement of the General Price List requirement of the funeral rule, but no other aspects of the rule are mentioned. And, as per the agreement mentioned above, it only lists specific numbers of funeral homes found in violation in the various locales, but it does not list the names of the violators – nor does the FTC typically release information on whether offenders pay the “voluntary” contribution to the federal government or complete the NFDA's training. The press release also, of course, does not mention details of what the FROP training entails and how attendees show mastery of the training's lessons. (Admittedly, additional information about the FROP – or Funeral Rule enforcement in general – may be publicly available, upon request, via requests under the US, Freedom of Information Act. But, only media and activists groups – backed by sufficient legal resources – typically file such request which can be trying to file successfully especially when the request is for information that business groups consider sensitive and perhaps even “proprietary” in nature).

Much to the disappointment of the consumer advocate groups who initially pushed for The Funeral Rule from 1963-1983, the FROP accounts for the bulk of the enforcement measures that FTC has implemented over the years. In fact, Slocum and Carlson say in their book that, over the years, they have documented hundreds of cases – reported to them directly from consumers themselves – in which various parts of The Funeral Rule were verifiably violated. Additionally, they have documented problems with at least 272 General Prices Lists they have surveyed across the country.

The advocates report that they (and others) have shared this documentation with the FTC, but have only rarely heard back from the agency and only in even fewer cases have they seen any enforcement action based on their reports.

And, in a section of their book with the headline “PR Trumps Enforcement,” Slocum and Carlson make several intriguing observations in this vein:

“When the FTC announced it’s first-ever Funeral Rule compliance conference in Dallas in April 2006 (22 years after the Rule went into effect), it seemed like a good time to show the feds what was really going on... Meanwhile, the FTC was pumping out press releases crowing about how well Texas funeral directors were doing:

“'The Federal Trade Commission announced today that it found a high level of compliance in East Texas with the FTC's Funeral Rule, which protects consumers from abusive practices in the funeral industry. In a recent sweep of funeral homes in the Tyler, Texas area, nine out of the 10 funeral homes shopped were found to be in compliance with the rule. – November, 2005.'

“Intriguing, since Slocum found the exact opposite: nine out of the ten Tyler funeral homes had violations on their GPLs when he examined them. Thinking the FTC might want to know this before Slocum made it public at the Dallas meeting, he left messages and e-mails for Commission staff. What was the response? A concerted effort by the FTC to exclude any messengers of unpleasant information.

“One lawyer from the Southwest Regional Office tipped his hand by accidentally copying to Slocum the following e-mail he wrote to an FTC colleague:

'I will defer to you regarding contract with Josh Slocum. However, we don't have caller ID here, so I could possibly answer his call without knowing... given the apparent sensitivity of his issues, I'd rather he be dealt with “officially.” I sincerely hope we don't have a 'scene' on Thursday when he arrives or during the meeting. We have worked so hard down here to plan a wonderful conference, and I am disappointed with the controversy he has stirred up. What do you think we should do?”

Slocum and Carlson report that Slocum and a fellow consumer advocate were begrudgingly admitted to the publicly-funded conference and were never given opportunity to present the FTC their contradictory findings from Tyler.

To date, it remains unclear whether any funeral home personnel found in violation of The Funeral Rule have changed their behaviors as a result of the FROP. Further, it is not even possibly, given publicly available information, whether any of the violators have actually attended the FROP training (or made the “voluntary” contribution to the US Treasury).

In contract to that picture, Slocum and Carlson report that a FTC attorney said the following during the 2006 program:

“The old 'gotcha' system wasn't working, so we put on our thinking caps and came up with the Funeral Rule Offenders Program. FROP is one of the most successful public/private partnerships in history.”

To end the last significant push for an overhaul to the way it enforces The Funeral Rule, the FTC's commissioners voted in 2008 to keep the rule, and its current enforcement practices as is. Consumer advocates have since concluded that, since the FTC itself seems unwilling to devote significant effort to enforcing the Rule, it's important that consumers be informed of the rule's specifics so they can choose to do business only with the funeral homes – and other death care industry establishments – who comply with the rule's spirit as well as its letter.

Compliance With The Funeral Rule's Letter – When Confronted

Consumer advocates have noted an apparent trend in which funeral homes wait until customers (or potential customers) catch them in violation of The Funeral Rule before changing their practices – for that customer only. Several cases in point:

Questionable “Direct Cremation” Service

One woman reported that a Dallas-based funeral home (in the very area the FTC bragged at its 2006 conference about such excellent compliance) approached a funeral home about a “direct cremation” for her mother, and was quoted a price that included services she did not want or desire for her loved one's body. A direct cremation service is specifically mentioned in The Funeral Rule, and funeral homes that offer any cremation services at all are required to offer it. Direct cremations are supposed to be, under the Rule, the funeral home's bare minimum service. No “hidden charges” for optional services are allowed to be included. Simply put, funeral homes are required to accommodate, for a bare-minimum, no-frills price, customers who wish their loved one to be cremated in a simply cardboard box and the ashes returned in a simple, cardboard container.

Further, this woman reported that the price she was quoted also appeared in the funeral homes' general price list as its price for “Direct Cremation.” At first glance, this fact may seem to a sign of compliance with The Funeral Rule, but, in reality, the direct cremation price cannot legally include services outside of the basic cremation service. In their conversations with the woman, funeral home employees revealed that their “direct cremation” service included several items that are supposed to be, under the Funeral Rule, optional. This included, among other things, an “aftercare planner” and flowers.

The woman in question had some knowledge of the Funeral Rule and, accordingly, called her local chapter of the Funeral Consumers Association for help. An FCA volunteer took note of all the illegal extra services that were included in the quote of $2,900 and called the funeral home for a confrontation.

Accordingly, the funeral home manager quickly agreed to adjust the price of the woman's cremation to $850, taxes – and all previously offered “extra” services – included, and he even offered to send a $100 donation to the woman's charity of her choice out of his own pocket. (The woman accepted the flowers and aftercare planner but donated them to the senior center that had served her mother well in her final days.)

Consumer advocates point to this case (and many others) as evidence that many funeral homes likely make it a general practice to violate the Funeral Rule, at least in spirit, but will quickly resolve customer complaints, on a case-by-case basis, by agreeing to comply with the rule when confronted. While the consumer advocate groups continue to push the FTC to simply practice more thorough enforcement of The Rule, many advocates have become resigned to the idea that such enforcement will not be forthcoming (at least not in the near future), and have begun to focus their limited resources on education of consumers as opposed to direct discussions with regulators and lawmakers. The idea behind this is that, if consumers are aware of their rights, they can impose a form of “citizen enforcement” simply by confronting funeral homes about violations as they occur. It is unclear, of course, what practical recourse consumers may have if funeral homes begin to brazenly refuse to follow the spirit of The Funeral Rule even when confronted by consumers, but it the current library of anecdotal evidence strongly suggests that most funeral homes, in the end, will agree to follow the law once it’s evident that a customer knows his or her rights under the Rule.

(It is unclear whether the woman in this case reported the issue directly to the FTC herself, but, given that consumer advocates regularly complain that such reports are routinely ignored by the agency, it seems likely the point is moot. The FTC's own public literature admits that, while it does accept complaints about funeral homes from the public at large, such information is generally archived and used solely for the purpose of detecting “trends” that may warrant further investigations. Presumably, if a single funeral home – or all funeral homes in a single locale – began to generate a significant number of complaints to the FTC, agency officials would take note and investigate for potential violations. Realistic, though, it seems that, generally speaking, consumers who have had their complaints satisfactorily resolved by a funeral home are often reluctant to pursue the matter by filing an FTC complaint.

It is Legal to Substitute Items in a Funeral Package

Consumer advocate groups report that a common tactic of funeral homes is to mislead customers into believing the “packages” listed in their General Price List cannot legally be altered.

The rule does allow for funeral homes to group commonly purchased goods or services together in “packages” that would result in a discount off the amount customers might pay if all items were purchased al-la-carte. But a common tactic of funeral homes is to assure that none of the packages listed on their GPL offer all of the most common goods and services and that some of the least-used services are included. This puts customers at a disadvantage unless, of course, one of the packages happens to offer the exact combination of goods and services their family desires – and the packages are often cleverly designed to assure that such cases are rare, consumer advocates warn.

Some customers, accordingly, will inquire about substitutions – adding a in a particular service to a package while dropping another. Generally speaking, funeral homes are not inclined to do that. (Because, of course, the packages are cleverly designed to maximize profits by, more or less, forcing customers to pay for included goods are services they do not want or need – one of the very tactics that the Funeral Rule was intend to stop). While the Funeral Rule does not require that funeral homes must accept customers' substitution requests, it also does not prohibit them from doing so.

Nevertheless, consumer advocates have found that funeral homes do sometimes tell customers that substitutions are prohibited under the law:

One anonymous funeral home employee told Slocum and Carlson the following:

“We are specifically directed (by the company) to tell customers that they are not allowed to make changes to the prepackaged plans because of an FTC rule of some kind. They browbeat people that work for them into believing this is some kind of FTC regulation. Nobody bothers to look it up. You have to sell these packages and, if anybody wants to make a substitution, then you have to tell them, 'The FTC does not allow us to make a change to the package.'”

Customers who are denied a substitution request and who know the Funeral Rule themselves perhaps can show their funeral director this thorough notice from the FTC about how funeral homes should comply with the Funeral Rule. Asking for a clarification based on that document of how a substitution is not legal seems likely to lead the funeral home to change its mind regarding the denial.

Typically, by making substitutions in packages listed on the GPL, customers can get the exact services they want and need from a funeral home and pay hundreds or maybe even thousands of dollars less than they might have otherwise. The trick, of course, is convincing the funeral home to agree to the substitution and, if a consumer can make it clear he or she knows when a funeral home has been less than forthright regarding a claim about the Funeral Rule, the chances of winning an appeal for the requested substitutions becomes markedly increased.

Laws” Often Misquoted

Consumers in the know regularly report to Funeral Consumers Alliance and other consumer advocates stories in which funeral home employees misquote (or at least misrepresent) state or federal laws during their sales pitches and presentations. Though this is a violation of The Funeral Rule, consumers, practically speaking, usually have little recourse but to simply set the offender straight and, possibly to take his or her business elsewhere. But, again, practically speaking, the latter is sometimes not advantageous since, once caught in a lie that they know is in violation of the Funeral Rule, funeral home personnel may sometime be open to price concessions, and other perks for the consumer that might not have otherwise been forthcoming. “Take them for whatever they are willing to offer, and maybe even make a friendly demand for even more,” one consumer activist writes on his blog that he sometimes advises friends who bring him their complaints on this regard. “Knowing the Funeral Rule can be an excellent for legal, very justified, blackmail purposes, if nothing else.” Sometimes consumers choose the path of reporting the violation to the Federal Trade Commission or relevant state agency. But rare are the instances in which the offenders are fined or otherwise sanctioned or prosecuted. The best decision of how to proceed when lied to by funeral home employees about laws, of course, will vary according to the particulars of each case, but most consumer advocates will say they regret the FTC's enforcement of the Funeral Rule does not offer consumers more clear-cut, and powerful, options.

In this day of social media, some consumers have taken to posting their experiences on Facebook, Twitter or even their own blogs. Sometimes this can have the same emotional benefits of, say, venting to a friend about an injustice suffered, but, on the other hand, these consumers are are often disappointed by a lack of reaction (or even a negative reaction, one supporting the funeral home in question) from their friends and relatives. Such is the risk of going public with one's complaints. (The fact is, legal minutia are rarely interesting and noteworthy except to those directly involved in the particular cases.) Consumers are also warned that publicly accusing a funeral home of lying about a funeral-related law can lead to threats of lawsuits from the establishment. It should be noted that, US Supreme Court Rulings related to the First Amendment, make it very difficult for a funeral home to win a court case over a negative posting about their services (unless it can be proven that the poster knew the claim to be utterly false before he or she posted it), but there is nothing stopping a funeral home from threatening to take the matter to court anyway – thereby forcing the poster to hire an attorney to cope with the other hassles and expenses of a legal case, even if it never makes its way to a judge. Because of this constantly looming threat – especially in this day in which the largest, most popular funeral homes are run by large, national corporations with legal departments that tend to defend the companies aggressively – is the reason consumer advocates often urge those they serve to be very cautious, and sure, of anything they may say publicly about their experience with a funeral home. Select cases may end up being egregious enough to warrant either national or regional media coverage, and consumer advocate groups may be willing/able to offer public relations and legal resources to pursue going forward with those in a coordinated, strategic manner in some cases. But consumers who choose to go that route should understand that such cases are rare and that funeral homes will likely put forth a great effort to fight them. The fights can turn nasty and may involve character attacks that can have consequences for the consumer. This can become a great burden for the consumer and his or her family – especially in situations in which the family is already grieving the loss of a loved one. But it also, consumer advocates point out, a common way that American heroes are born. So, despite the risk, idealistic, tough minded consumers who know (not just believe) they have been wronged by a funeral home will likely find a great deal of encouragement and support from groups such as the Funeral Consumers Alliance should they decide to proceed publicly with their story.

No matter whether consumers are disposed to being legally combative in their response to being lied to by funeral home personnel about funeral-related laws, they should be on the look-out for such violations in order to not be duped into paying more than necessary for their loved one's funeral and burial. Here are a few key areas in which some funeral home employees have been known to be untruthful about laws:

Embalming – Funeral homes are specifically prohibiting from saying, or even insinuating that embalming is required by law unless local or state laws do require it. And, if a state or local law requires it, the funeral homes' General Price List is supposed to clearly note the precise law or ordinance and list the circumstances in which embalming is legally required. Consumer advocates note that, while state and local laws vary widely on the topic of embalming, the practice is definitely not required, in any circumstances, by federal law, and most state or local laws that require it list very specific conditions under which it is required (sometimes in cases in which there is no refrigeration facility available locally and a burial or cremation is delayed by several day, for example). But these are very rare, and state-based consumer advocate volunteers working for or with the Funeral Consumers Alliance note that they make more and more progress each year in convincing state and local lawmakers to strike all embalming requirements from their books. These advocates will note that the funeral industry's common claim that embalming is, at least occasionally, necessary from a “health and sanitation” perspective, have been proven questionable – or outright challenged – by scientific studies. Consumers should be very wary if a funeral home employee makes any reference to embalming being required by law in any circumstance (particularly if federal law is mentioned or if the applicable state or local law is not referenced on the funeral home's general price list).

Burial Vaults – No federal law, and few state or local laws, require customers to install burial vaults (also known as outside containers) in graves. It's true that many cemeteries do require the vaults be installed, but that is a private decision for which, of course, cemeteries are legally allowed to make exceptions at their own discretion (unless, as we say, state or local law says otherwise). In general, cemeteries ostensibly require grave liners for practical purposes – that may or may not have validity – and the a strong tradition of rights for private property owners generally allows them to enforce such policies as they see fit. Advocates of burial vaults claim that the outside containers reinforce the ground surrounding a casket and prevent unsightly “cave-ins” as a casket deteriorates underground. Though critics argue that evidence of this claim is dubious, there is little debate that, for this purpose, a burial vault will only need three walls (top, and sides) surrounding the casket: burial vaults simply do not need a bottom except for aesthetic purposes (and, since the burial vault will be, by definition, buried, the aesthetic usefulness is certainly questionable). In short, other than to note that burial vaults are (sometimes) required by cemeteries, funeral home employees are in violation of the Funeral Rule if they state (or even insinuate) that federal law requires a burial vault (especially a four-walled vault). And, absent a citation of the precise law, funeral homes are also in violation of the Rule if they claim burial vaults are required by any law or ordinance. As with the laws regarding embalming above, state-based consumer advocates are claiming more and more success each year in having burial vault requirements stricken from the books, so, in the event a funeral home employee does cite a state law, consumers are advised to do their own research to confirm that the law still applies.

Consumers are further advised that, absent a state or local law, cemeteries are certainly free to make exceptions to their policies requiring burial vaults and, to respond to competitive pressure, many cemeteries are open to doing just that upon request. (They are also, increasingly, eliminating such requirements altogether.) In fact, consumers might be well advised to consider pitting local cemeteries against one another on this issue. If one local cemetery expresses no initial interest in allowing a burial without an outside container, a quick call to a competing cemetery may yield a bargaining chip that can cut hundreds (or, in some cases even thousands) of dollars off the cost of a burial.

Consumer advocates will agree that, it's sad and frustrating that consumers must occasionally resort to such aggressive measures in order to avoid paying more than is necessary for their loved one's burial. Alas, that is the nature of business in a free-market economy, and, as uncomfortable as it may be for some, there is nothing unethical, illegal (or even undignified) in striving to get the best for one's family's dollar.

Cremation Containers – Consumer advocates often report that they hear cases in which funeral home employees cite laws (either federal, state or local) in convincing families to send their loved one to cremation in anything other than a standard cardboard box. While it's true that the idea of a loved one being cremated in such a generic fashion is unsettling to some families (and therefore the expense of a more elaborate cremation container may be emotionally justified for some), it's also true that laws requiring more than the basic box are rare and, they are definitely part of the Funeral Rule or any other federal law. Families should be wary of any claims otherwise and make the decision regarding an “upgrade” based, solely, on their own emotional needs (and their financial circumstances, of course). Funeral homes that offer cremation services are certainly required by The Funeral Rule to include in the price of their “direct cremation” service (to be listed on the General Price List) a basic cardboard cremation container and a basic cardboard container for the ashes that will be returned to family. A common practice of funeral homes is to label the basic ash container with the words: “temporary urn” or 'temporary container,” and consumer advocates note that (whether the funeral home personnel will it admit it or not) this is sly marketing strategy intended to sway families toward eventually purchasing a more elaborate cremation urn. As with the body container used for the cremation itself, there are few, if any, laws on the books (and certainly no federal law) that require cremation ashes to be moved from a “temporary urn” at any time. In fact, families who intend to dispose of the ashes by spreading them will often keep them in the “temporary” urn for decades before ceremonially spreading them in some special place.

In general, the Funeral Rule says this to funeral homes: “You cannot tell consumers that any federal, state, or local law or a particular cemetery or crematory requires them to buy a particular good or service, if that is not true. If you do tell a consumer that he or she must buy a particular item because of any legal, cemetery, or crematory requirement, you must identify and describe the particular requirement in writing on the Statement of Funeral Goods and Services Selected.”

Caskets – Absent a, clearly cited, local or state law, funeral homes are required under the Funeral Rule to allow customers to buy caskets form outside sources, and the Funeral Rule specifically prohibits them from penalizing customers for doing so. Consumer advocates warn that funeral home sales people have been known to hide such “penalties” into their overall prices in many ways that consumers are advised to watch for. (For example, funeral homes may, upon discovering that a customer is considering buying from an “outside vendor,” offer caskets at a price lower than listed on the General Price List. They may also add a “setting fee” to caskets purchased from outside vendors but then not adding that same fee to caskets purchased from the funeral home). Funeral homes also have sometimes been found to insinuate (or even say outright) that they are not legally allowed to accept caskets purchased from other vendors. As we say, unless such statements are accompanied by a verifiable citation of the applicable law, consumers know that they are likely witnessing a violation of The Funeral Rule.

Here is what the Funeral Rule says to funeral homes specifically about caskets:

“The Rule expressly prohibits you from charging any fee, as a condition of furnishing any funeral goods or services, other than the fees for: The basic services of funeral director and staff (the one non-declinable fee allowed by the Rule); The funeral goods and services selected by the consumer; and The funeral goods and services required to be purchased by law (or by the cemetery or crematory),(21) as identified and explained on the itemized Statement.

“This means that you cannot charge an additional fee or surcharge to consumers who purchase a casket elsewhere. Such a fee would not fall within the three categories of allowable charges listed above. This extra "casket handling" fee is simply a hidden penalty for those consumers who exercise the right to purchase a casket from another seller.

“Moreover, you cannot alter your prices based upon the particular selections of each customer. Such a practice also would defeat the purpose of the Rule to give people accurate, itemized price information that affords them the opportunity to select the arrangements they want.”

Consumer advocates warn that misrepresentations of this part of the Funeral Rule abound among funeral home employees across the United States, so customers arranging funeral and burial services for a loved one would do well to be very clear about what the Funeral Rule actually says.

To be fair, many inexperienced funeral home employees may be genuinely ignorant of the above rules, and, accordingly, consumers (and consumer advocates) may be inclined to offer forgiveness in cases when these people are quick to confess to their error and demonstrate repentance. But, the more experienced the employee (and the higher they are in the organization's administrative chain of command), the less credibility any claims of ignorance should reasonably carry. Josh Slocum and Lisa Carlson mention a particularly egregious case of an experienced funeral director's questionable ignorance in their book Final Rights: Reclaiming the American Way of Death. In that story, a “fiery FCA volunteer” found a funeral home's online “Frequently Asked Questions” page contained a series of false statements involving the Funeral Rule and wrote a polite director to the funeral home's owner to ask that the page be corrected. The owner's response misquoted the Funeral Rule in an amazingly brazen (and grammatically questionable) manner: “Again, this is not a State Law, it is a Federal Law. That Law is known as the Federal Trade Commission's FTC Funeral Rule. … Once more, this is part of the FTC Funeral Rule that states, 'Embalming is required if burial will not take place within 72 hours, unless refrigeration is available.' and, unfortunately, refrigeration is not available within our area.”

The Funeral Rule actually says this: “Unless state or local law requires embalming, you may not tell consumers that embalming is required for practical purposes in the following situations: When the consumer wants a direct cremation; When the consumer wants an immediate burial; or When refrigeration is available and the consumer wants a closed-casket funeral with no formal viewing or visitation.”

According to Slocum and Carlson, the advocate who raised the question could find no Georgia law that required embalming, nor did the funeral home owner cite one.

Slocum and Carlson, writing in 2011, regretfully report that this is “a timy sample from a file box in Slocum's office labeled, in red marker, FTC FUNERAL RULE EVIDENCE, set aside for the next hearings on reforming the Rule. That day may be far off ...” As noted above, the FTC has not seen fit to revise the Funeral Rule since its inception (though it did begin the FROP program as an enforcement measure in 2006) and last considered making changes in 2008.

The Basic Service Fee Loophole

Funeral homes, under the Funeral Rule are allowed to charge all customers (except those who request direct cremation or direct burial) a non-negotiable fee intended to cover utilities, building and equipment maintenance, office expenses, salaries for clerical staff, and other miscellaneous expenses that come naturally with running a funeral home (or any business, for that matter). This fee typically varies widely (anywhere from $500 - $5,000 industry surveys have shown), and consumers should not be shy about price checking this rate when deciding on a funeral home to use.

Alas, this basic service charge is a concession that the FTC has offered to funeral homes, and its inclusion in the Funeral Rule has been a frustration for consumer advocates (who have long argued against it). Consumer activist generally dislike the charge because, well, as Jessica Mittford noted in the 1996 update to her classic American Way of Death, what other industry gets away with charging all customers a special fee simply for the privilege of walking in the front door and taking advantage of the establishment's lights and air conditioning?

Typically speaking – in other industries, at least – businesses must factor their miscellaneous expenses into the prices they charge for each of their various goods and services. But the Funeral Rule specifically encourages funeral homes to combine those charges into a “non-decline able” charge known as the “basic service fee.” Funeral homes who elect to charge this fee are required, then, to assure that the charges for their other products and services include no provision for overhead already covered in the basic service fee. (Note, funeral homes are not required to adopt this model but, as we will see, doing so allows for prices to be inflated artificially, so few funeral homes forgo this fee. But, as we will see, consumers would generally be well advised to do all they can to patronize the establishments that elect not to charge a basic services fee.)

On the surface, it might seem that this basic service fee would be a panacea for price-conscious consumers, and that's certainly how FTC officials have “sold” it over the years. It assures the public, after all, that funeral homes are charging customers only for their actual costs plus a reasonable markup for profitability purposes. And that assurance certainly keeps prices low!

Doesn't it?

The answer, of course, is probably not.

The trick is in determining, precisely, whether a funeral home's charge for, say, hearse services does include only the actual cost of running the hearse. (Because, of course, maintenance of the hearse would probably be covered under the basic service fee.)

The truth is, it's impossible for anyone – customers, regulators, or probably even funeral home employees themselves – to quantify precisely what “basic services” costs are for a funeral home. So, practically speaking, the basic service fee – well intended as it may have been when the FTC adopted it as part of The Funeral Rule – gives funeral homes a significant loophole by which they may (secretly) charge their customers double (or more) their actual “cost of doing business” expenses: once as part of the basic service fee and once as part of the fees they pay for the other goods and services they order.

Since enforcing the basic service fee stipulation that basic funeral home expenses not be included in the price of other services and products offered is all but impossible, consumer advocates advice customers simply be wary of all price quotes and to not be afraid to shop around for the best prices. They should remember that the Funeral Rule does afford them the right to purchase goods and services from outside sources while still contracting main funeral arrangements to a particular funeral home. And they should remember the previously mentioned idea that funeral homes are, indeed, allowed under the Funeral Rule to make substitutions to the packages listed on their General Price List.

Further, consumers should realize that funeral homes do certainly have the option to forgo the basic service charge and to simply add their basic service expenses to prices they charge for each of the products or services they offer. In these cases, the prices listed on the GPL for these funeral homes may be increased over those listed on the GPL's for homes demanding basic services fees, but consumers will have the benefit of some assurance that the non-basic service fee funeral homes are not charging double for basic services. That, in the eye of the typical consumer advocate, is an advantage for the customer and a reason why consumer advocates have been known to actually recommend those types off funeral homes over others.

Advisory Opinions

Consumers interested in getting the most benefit from the Funeral Rule will do well to keep abreast of the latest Funeral Rule Advisory Opinions issued by FTC staff. (And, for best results, they should review these opinions before their first meeting with a funeral director to discuss arrangements for a loved one.) Advisory Opinions are akin to legal opinions, but they do not generally have the full force of a court's ruling. But, that said, they are usually less expensive, and quicker, to obtain. (Generally, they are actually free to request – as they are from any U.S. Government agency – though the FTC is under no legal obligation to respond to requests, and some activists have found that hiring an attorney to draft the request may sometimes make the request more apt to receive a response.) So they are often valuable for consumer activism purposes, and consumers can certainly use them to guide their discussions with funeral directors as they plan their family funerals. Though, as noted above, the Funeral Rule itself has not been updated since 1996, the various Advisory Opinions may sometimes be considered “mini-updates” (though, actually, they are simply clarifications of issues that are left vague in the original rule).

The latest Advisory Opinion on The Funeral Rule was issued in August 2016 and seemingly clears up a mere technicality relevant only to a particular region of the nation: According to the FTC website (linked above) it “Provides compliance guidance to funeral directors prohibited by (Washington) D.C. law from removals to a funeral home until a death from natural causes is pronounced by a physician.”

But, over the years, some substantially important issues have been addressed in Advisory Opinions. Notably, Opinion 08-1, issued in October, 2008, “Confirms that crematories that offer funeral goods are covered by the Funeral Rule.” (A long standing project of consumer groups such as the Funeral Consumer Alliance has been to convince the FTC to include cemeteries, casket retailers, and other non-funeral home entities that are active in the death care industry into the funeral home. Currently, all but funeral homes, and sideline businesses of establishments that own funeral homes, are subject to the Funeral Rule. This has led to a great deal of enforcement confusion, consumer advocates say. But the FTC has never seen fit to change the rule, other than to make some clarifications such as the one in this Advisory Opinion.)

Advisory Opinion 07-3, issued in March, 2007 “Reiterates the long-standing policy that funeral providers may not require consumers to inspect and accept third-party merchandise.” Consumer advocates generally consider this opinion a victory for their cause, as they often hear (even in the years since the opinion was issued) stories of funeral homes discouraging customers from purchasing their caskets from “outside sources” by simply refusing to accept delivery of the caskets that arrives from third-party vendors. Typically, a funeral home who announces this policy to a customer, will cite liability concerns as the reason but, given that the funeral home is legally required under the Funeral Rule, to accept the casket that is not a legally legitimate concern. Many a funeral home customer has reported to consumer advocates stories of frustration, often while in the midst of tremendous grief over the loss of a loved one, at being surprised by a call, say, on a weekend, by a funeral director who says that a casket has been delivered but that, unless a family members can make it to the establishment to sign for the delivery before the delivery driver decides to leave, it will simply have to be returned to the sender. This Advisory Opinion clearly establishes that such a practice is, clearly, in violation of The Funeral. Though the question of how to ensure this portion of the Funeral Rule will be reliably enforced by the FTC, consumer advocates often take heart that they were at least able to see this clarification added, officially, to the public record (perhaps setting the legal groundwork for future civil court cases brought by consumers against funeral homes who violate the principal).

And, on a related note , Advisory Opinion 07-04, issued in July 2007 “Discusses whether funeral providers may charge fees for storing third-party caskets or for disposing of the containers in which they are shipped; and whether funeral providers may use two separate Statements of Funeral Goods and Services -- one for its own charges and one for third-party cash advance items.” In short, the text of the opinion makes the “discussion” clear: Funeral Homes that charge such fees are, clearly, in violation of the Funeral Rule. Again, consumer advocates count this opinion as a victory.

In general, though it's clear that the FTC has much work to do in establishing strong enforcement procedures to back The Funeral Rule (and it's unclear whether the FTC has the political will to do that work), all is not completely lost for consumer advocates or consumers themselves. The Rule itself has some usefulness for those who are willing to study it and work, themselves, to hold funeral homes accountable simply by appealing to the natural human instinct that leads most people to be willing to abide by the laws that govern them. Funeral consumers can definitely take some solace in the fact that the law, if not the agency responsible for enforcing the law, is, generally, on their side.

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