Current NYS law 'requires' for all deaths occuring in NYS that death certificates be filled out, signed and filed by a 'licensed funeral director'. This follows the issuance of said death certificate, filled in for cause of death and signed by the doctor, medical examiner, or other authority of the medical establishment as directed by law. The current law further stipulates that a 'licensed funeral director', at a minimum, attend many of the other functions that take place during the conduct of a funeral.
This places the people of NYS in the unwarranted position of having to pay a licensed funeral director to perform these services whether or not they would like to do these things for themselves. Since the funeral industry has this monopoly-by-statute, cost for these services is onerous to the point of legal robbery.
We are not asking for legislative change that would require people to do these things themselves, only that they should have the 'right' to do so if they wish. This would benefit not just those who might elect to do some or all of these things. By breaking the funeral industry monopoly this would benefit everyone in NYS.
Conferring these rights upon its citizens would not be an unusual act. Forty-four states already grant these rights. NYS is in the uncomfortable position of being one of the last six holdouts.
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HEALTH RISKS from the DEAD
This is often the first issue raised when there is a discussion
of removing requirements for a 'licensed funeral director'.
Dead bodies do NOT pose a health risk except in very unusual cases
where bodily contact still retains the ability to infect. In these few
exceptions, the medical establishment person who determined cause of
death and who first signs the death certificate already stands in position,
as he does currently, to enforce the State's interest in protecting the
public prior to the involvement of any other person.
Dead bodies do NOT pose a health risk even if unpreserved.
While such a situation may be distasteful and become a public
annoyance, additional language in legislation should probably
impose fines for public nuisance should this occur, but this
is a very minor issue. I mention it only because this has
been raised before me by a licensed funeral director.
Keep in mind, licensed funeral directors are not medical personal such
as nurses and doctors. Educational requirements are generally around
two years of formal study plus an apprenticeship. Funeral directors
routinely employ totally untrained people for such jobs as transport
and other activities that involve handling of the body. So, even if
there was some risk to the public from untrained exposure to a dead
body, licensed funeral directors do not protect us.
HEALTH RISK references:
April 28, 1995 issue of Communicable Disease Report, published by the British Public Health Laboratory Service, highlights the negligible risk of disease transmission to families who prepare their own dead.
"For the majority [of those who come in contact with corpses], living people with diseases are a far greater hazard to health than the dead." [page 61]
Quote from
1995 Communicable Disease Report 5, [pages 61, 66-67]
written by Healing, T.D., Hoffman, P.N., and Young, S.E.J.
on The infection hazards of human cadavers.
In this country up to 70% of cadavers are embalmed…but it is not always appropriate, and if the next of kin so wish, the cadaver simply undergoes “hygienic preparation.” This involves washing the face and hands, dressing the cadaver, tidying the hair, and possibly trimming the nails and shaving. It seems unreasonable to restrict such activities unless an obvious hazard exists. The use of gloves and simple protective clothing by the funeral director’s staff and anyone else who handles the bodies should be an acceptable and effective safety measure. [pages 66-67]
In 2002 Dr. Marcella Fiero, Chief Medical Examiner of the State of Virginia was asked whether embalming was a necessary public health measure to protect the living from disease. She stated simply, “no.”
A staffer with the Centers for Disease Control and Prevention in Atlanta in 2003 was asked whether families who care for their own dead (when the person died of AIDS) were at risk of contracting the disease. She said, “HIV dies soon after the person does, and that even under laboratory conditions, HIV cannot survive beyond two hours outside the body.” She also said standard precautions — latex gloves, bleach, disinfection of working surfaces — when working in the presence of those with AIDS, were sufficient, and that the risk of transmission after death would decrease.
From the United States Center for Disease Control: “We have not at any point prescribed embalming as a method of protecting public health.” Source: Bernadette Burden, spokesperson for the Center for Disease Control and Prevention (CDC) - Atlanta, Georgia, as quoted in Mortuary Management magazine, October 2006.
Here is the Joyce Mitchell Utah Funeral Bill web site: www.utahfunerals.org
Joyce Mitchell may also be reached at 801-226-2323.
Manual entitled Management of Dead Bodies After Disasters
published by PANAM and WHO but distributed by the National Institutes of
Health under the US Department of Health and Human Services which confirms
that dead bodies are not hazardous to public health.
Read it in it's entirety online at
remm.nlm.nih.gov/DeadBodiesFieldManual.pdf
Item (3) is the most important thing to remember in this manual.
1) Dry ice for preservation with temperature recommendation of 40 degrees,
2) There will be a need for citizen volunteers.
3) Dead bodies pose no health hazard so families feelings should come
first regarding care of the dead.
4) There should be no spraying of disinfectants. It is unnecessary.
5) It is unnecessary to whisk bodies away for burial because there is no
health risk.
World Health Organization, Article: Disaster Myths That Just Won't Die,
Risk for Epidemics after Natural Disasters:
www.cdc.gov/EID/content/13/5/785.htm
www.funerals.org/newsandalerts/consumer-alerts/369-nfdaopenlettergreenburial
However, Joyce Mitchell who was instrumental in the passage of the new, uncompromised Utah Funeral Bill has told me that I should check NY State Vital Records. In Utah they admitted that some border funeral homes took, as ridiculous as this sounds, WEEKS and sometimes MONTHS to file!!Though unlicensed, family, or any other person who has undertaken the responsibility to carry out this end of life duty would have far greater incentive to file the death certificate in a timely manner. Upon filing, the certificate is certified as having been filed by the local governing entity and the certified certificate is required for a great many things those surviving the deceased need to do. A certified death certificate is needed to obtain a transport permit to allow one to move the body. It is needed for cremation or burial. A certified death certificate is needed to obtain beneficiary benefits and to gain access to the estate of the deceased. I have come across no evidence that the 44 states in the US that allow this have found it to be a problem.
I have heard the following statement in defense of the current NYS statute:
NYS with its large urban areas needs to operate differently than those
smaller states that allow one to file a death certificate without a
requirement to engage the services of a licensed funeral director.
I have seen no evidence to support such a claim.
Death is an individual event. Those who have surrounded the deceased
in life are no greater or lesser in number than those living and dying
in areas of greater or lesser population density. The process of
filing a death certificate or conducting a funeral is very much the
same whether or not it takes place in an urban area or rural area.
It is not as if families in urban areas experienced multiple deaths at
the same time as opposed to deaths occurring one-by-one in the country
and thus needed greater assistance from outside the family. There is
no effect of scale in the logistics of dealing with the death of an
individual whether it be in a large or small state, or whether it be
in an urban or rural area.
***********************************
via LISA CARLSON regarding the manner in which New Hampshire handles filing:
Dear Ms. Carlson:
Since the change of NH law allowing the next-of-kin or designated agent to be included in the death process, the family-filed death registrations have been relatively uneventful.
New Hampshire’s Automated Death Registration program (NHVRIN) is available to family members at any of NH’s 234 City or Town Clerk offices or 99 Funeral Homes. By filing the completed paper death certificate at one of these locations the family will receive the NH Burial Permit.
Stephen Wurtz
Stephen M. Wurtz
Acting Director & State Registrar
Chief Fraud Prevention & Investigation Coordinator
NH Department of State
Division of Vital Records Administration
71 South Fruit Street
Concord, New Hampshire 03301
(603) 271-4655
(603) 271-3447 fax
stephen.wurtz@sos.nh.gov
***********************************
Joyce Mitchell in Utah contends that when large numbers of deaths occur from epidemics or disasters then it is even more necessary that regular citizens be allowed to file a death certificate since in that situation there would not be enough funeral directors to go around. Sure, there are military people to take over in that instance but paper filing, followed by later electronic data entry is the format they may have to use AND THAT is what local registrars need to be well rehearsed in accomplishing. If regular citizens regularly 'act on their own behalf' at their local registrars then the state is better prepared for a state of emergency.
Joyce asks, "Do you know what the NFDA wants to do in the case of emergency? They want to throw out The Funeral Rule!"
Excessive costs for using the services of a Licensed Funeral Director have
been mentioned above but here I shall underscore this issue quantitatively.
My father wished for a direct cremation as we did for my mother. For the
funeral director, this involved driving to our home, filling out and filing
the death certificate, transport of my father's body to the crematorium
about 100 miles away, and providing a cardboard box in which to place the
body. Cremation is a separate issue NOT handled by the funeral director.
The death certificate had already been delivered to our home by a hospice
nurse, filled out and signed by the overseeing doctor. Filing involved
handing the document to the town clerk who stopped by at the house since
he had no open hours that day. While we used a funeral home under contract
to our Memorial Society for a slightly lesser fee, the price for the above
described service at the only funeral home in Tupper Lake was $1800. This
price was actually lower than the prices quoted by several other area
funeral homes. The biggest part of this job was the transport. A local
taxi company would have done this with smiles for a tiny fraction of $1800.
An accountant who has far more education than a funeral director, and
who has to grind his way through forms far more difficult than a death
certificate, could expect no business at all for five hours of work if he
charged $1800.
And Joyce Mitchell from Utah adds:
Furthermore after 4 biennial surveys of Utah mortuaries there is plentiful evidence that they [funeral homes] shouldn't be trusted. For example according to our 2009 survey, 25% of Utah mortuaries misquote the law on their pricelist. 85% break at least one FTC funeral Rule.
* Cite constitutional issue earlier with reference to court case in NY
(See excerpts below from the NY chapter and MA chapter in my book for the court citations.)
Caring for the Dead in New York, Page 443 In a 1909 federal case, Wyeth v. Cambridge Board of Health, the court ruled:
. . . the refusal to permit one to bury the dead body of his relative or friend, except under an unreasonable limitation, is also an interference with a private right that is not allowable under the Constitution of the Commonwealth or the Constitution of the United States.
The same ruling referred to an earlier case, Lochner v. New York, 198 U.S. 45, 57, in which the opinion said:
. . . the mere assertion that the subject relates though but in a remote degree to the public health does not render the enactment valid. The act must have a more direct relation, as a means to an end, and the need itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person. . . .
- and - * History
Caring for the Dead in Massachusetts, Page 355
The Board of Registration in Embalming issued a regulation in 1905 stating:
No permits for . . . burial . . . shall be issued . . . to any person . . . not registered . . . [by] the state board of registration in embalming.
That regulation was found invalid by the Supreme Judicial Court of Massachusetts in 1909, Wyeth v. Thomas, 200 Mass. 474, 86 NE 925. The court wrote:
There is no doubt that the . . . refusal to permit one to bury the dead body of his relative or friend, except under an unreasonable limitation, is also an interference with a private right that is not allowable under the Constitution of the Commonwealth or the Constitution of the United States.
The regulation remained on the books until 1998, even though it was invalid and unenforceable. The Board of Registration insisted until 1996 that the regulation was valid and even convinced the Vital Statistics department of the Massachusetts Department of Public Health (MDPH) in 1989 to change the wording on one box on the death certificate form to “funeral service licensee” and to tell local boards of health that burial permits could be issued only to undertakers.
The Memorial Society in Boston was also fooled into believing that people were forbidden to care for their own dead in Massachusetts. Jan Burhman Osnoss, whose experience is recounted in Chapter 4, asked the Memorial Society to try to get the law changed. After a bit of simple research, it became apparent that the law had never required the use of an undertaker.
The MDPH, on reviewing the court opinion, agreed privately that persons could care for their own dead but was unwilling to say so publicly. The Board of Health of the Town of Lexington, after considering the matter for 13 months, voted in April 1996 to issue burial permits to non-undertakers. The Board of Registration went to the MDPH seeking its support in opposing the Lexington decision, but the MDPH said that Lexington was correct. Two days later the Board of Registration agreed to drop their opposition to issuance of burial permits to non-undertakers.
The MDPH in August 1996 sent a memo to all 351 towns telling them it is legal to issue burial permits to non-undertakers. With the memo was a set of guidelines from the MDPH to be given to persons caring for their own dead, explaining the law and suggesting appropriate precautions. In 1998, the Board of Registration modified its regulation.