Issues with current NY State Funeral Law
(and other states: AL, CT, IL, IA, IN, LA, MI, NE, NJ)

Before you get into this, or perhaps after, you may wish to read:
Survivor Obligations

For additional information, here is a link to the
National Funeral Consumers Alliance website:
www.funerals.org

to the National Home Funeral Alliance (NHFA):
homefuneralalliance.org/
homefuneralalliance.org/the-law/problem-states/

and, to the Hudson-Mohawk group in New York State:
hudsonmohawkfca.wordpress.com/contact-us


Current NYS law 'requires' for all deaths occurring 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 asking for legislative change that would allow people to do these things themselves. This would by no means require people to do this, but only give them the 'right' to do so if they wish. These rights would include the right to receive the lawfully signed death certificate from the attending doctor, coroner, or other appropriate medical authority, the right to fill in the required personal information about the deceased (this information always comes from family members or others close to the deceased in any case), the right to sign and file the death certificate, and the right to obtain transit permits and to transport the deceased to any destinations along the course to burial, cremation, or other lawful final disposition.

The benefit of this change would not fall just to those who might elect to do some or all of these things. By breaking the funeral industry monopoly the benefit should accrue to everyone in NYS in the form of lower prices.

Conferring these rights upon its citizens would not be an unusual act. Forty-two states already grant these rights. NYS is in the uncomfortable position of being one of the last eight holdouts.



Answers to ISSUES raised when considering statute changes:

• Dead bodies pose NO health risk requiring the services of a funeral director.

• Licensed funeral directors do NOT file more timely and more accurate death certificates.

• A large state like NY with its large urban areas does NOT present greater funeral problems to its people NOR does it present greater problems for state government in administering funeral needs and requirements.

• Funeral costs in NYS are totally out of line with the value of services provided by funeral directors so if for no other reason the people of NY should NOT be required by law to engage the services of this funeral monopoly. In fact, such statute support of an uncontrolled private industry is likely UNCONSTITUTIONAL.




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:

FROM:
Joshua Slocum
Executive Director
Funeral Consumers Alliance
802-865-8300
Funeral Consumers Alliance

CDR Review Vol 5 number 5 (1995)
Dead Bodies and Disease The Danger That Doesn't Exist.pdf
PAHO_Dead_Bodies.pdf
PHLS Funeral Workers Infection Risk 2001

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



Timely and accurate filing of Death Certificates

The state has a utilitarian interest in gathering knowledge of a great many things, including deaths. And, this information is required in a timely fashion for meeting obligations to those of us still living.

There is likely the assumption that if the obligation to collect and file such information is placed in the hands of people specifically licensed to do so, this will offer uniformity and reliability to the process.

That assumption would be wrong. These licensed individuals are not employees of the State whose state of employment is contingent upon the fulfillment of their statutory obligations. These licensed individuals are private businessmen whose only obligation is to the level of profit they can squeeze from their customers. They are not fearful, as are most businessmen, that their customers can choose not to use their services if prices go too high. These businessmen are fearful only of a change in the legislation that allows them to impose their outrageous prices.

I will grant, though I do not have statistics, that funeral directors file death certificates in a timely manner because I am sure their license depends upon it. At least, being generous, that is what I assumed.
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 42 states in the US that allow this have found it to be a problem.

The other issue with the filing of the death certificate is the matter of correct information. All of the information on a death certificate with the exception of 'cause of death' comes from a 'knowledgeable informant' who is in most cases a family member or close friend. NONE of this information comes from the funeral director. Funeral directors simply become another link in the chain of data transcription and thus another chance for error.

Is this a problem or does a funeral director's involvement actually help to insure the collection of correct data? I have had direct experience with two deaths in my family for which I was the knowledgeable informant. My mother died in Vermont where I filed the death certificate myself and obtained the transport permit so that I, along with my father and brother could transport her body to the crematorium. The filing was a quick and easy matter, and I assure you there were no factual errors. Last year my father died in NYS. The funeral director managed a number of errors on the names of my grandparents while casually talking to my brother as I was away answering the phone. This caused a several day delay in obtaining a corrected death certificate. Discussing this with the President of our Memorial Society, he related the instance of a friend. In that death, the funeral director managed to get the decedent's social security number wrong. Once again this involved significant delay for that family gaining access to bank accounts and other assets. So I must conclude that if this limited knowledge of the details of two deaths, both of which encountered funeral director error, were extended to the process across the nation, even if these experiences are unusual this would account for a great deal of error.

NYS must do things differently than most smaller states

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.



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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


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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 Funeral Cost

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 then, there are numerous real life horror stories...

-Funeral Home lost deceased:
cbs5.com/local/funerals.by.washington.2.796071.html

-Funeral Home accidentally switches grandma’s body with a different one:
consumerist.com/5026161/funeral-home-switches-grandmas-body-for-different-one

-Funeral Home stores bodies in utility room for over a year:
www.fultonsun.com/articles/2008/08/10/news/143news12warren.txt

-Funeral Home body parts scam where tissue was illegally harvested and sold:
www.ohio.com/news/nation/27687689.html
and
www.northcountrygazette.org/2008/12/15/body_harvest

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.




***********************************

FROM:
Lisa Carlson
Funeral Ethics Organization
87 Upper Access Road
Hinesburg, VT 05461-4431
802-482-3437
Funeral Ethics Organization

MA Funeral Law - Lisa Carlson
NY Funeral Law - Lisa Carlson

* 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.)


From Lisa Carlson's book, 'Caring for the Dead: Your Final Act of Love', Chapter 8:

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 -

Caring for the Dead in Massachusetts, Page 355

* History

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.



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Rewriting the NY State Funeral Law:

Any suggested changes to the law would certainly not interfere in any way with the State's right to protect public health in the case of a death where the body does in actual fact present a clear and present danger to the public. This is currently handled by the medical establishment prior to either a funeral director or any other person taking possession of the remains. This would not change.

Keep in mind, there is always a medical presence at the end of life before a family proceeds with a funeral whether it be the County Coroner or in more usual circumstances, a member of the medical establishment that was in attendance at or prior to the death. This would be the agency charged with meeting any requirements for dealing with the body in the case of diseases such as anthrax, etc.

Aside from embalming, for which there is no need except in cases where there may be prolonged periods during which refrigeration is not practical or desired AND where this will be followed by viewing, and even then only at the request of family or designated agent, there should be no requirement to use the services of a funeral director. Funeral directors often require embalming for any disposition other than direct cremation, and of course, charge for it.

I heard a comment to the effect that most folks would likely choose to use the services of a funeral director regardless of whether or not the law became more permissive. To underscore that point, this was followed by the statement that moving the body of a 200 pound man down a narrow stairway from a three-story walk-up would not be something most family's would care to tackle.

This does not appear to be a very strong argument for imposing the services of a funeral director. There would be nothing in any proposed change to the law that would require anyone to do this on their own, but any reasonable law should allow one to do so on their own if they so wish. Of course, such a law would allow them to make any other arrangement such as hiring a moving company, or even a funeral director. There should certainly be no law forcing them to hire a funeral director any more than there should be a State statute requiring you to hire the ACME Moving Company if you need to move a couch up or down from your three-story walk-up. You may be happier doing so, but that should be up to you.



The vast majority of states do NOT have laws that create a funeral industry monopoly. There are no good reasons for such laws. The only likely reason for such laws in those few states that have them is unethical, and likely unconstitutional, pandering to the funeral industry.

The information in the lists below was taken from the book "Final Rights: Reclaiming the American Way of Death" by Joshua Slocum and Lisa Carlson, 512 pages, Upper Access Publishing, Hinesburg, VT 05461. This book may be purchased directly from the Funeral Consumers Alliance (FCA) at 802-865-8300 or www.funerals.org for $22.50 which includes shipping. If you go to the website you can read the first chapter FREE. As the FCA states on their website, "Every American who plans to die (that's you) needs to read this book. Final Rights belongs on the bookshelf of every hospice worker, nurse, social worker, and elder-law attorney. Curious? Read the first chapter, Circling the Hearses, free." This book is also available from national booksellers.


States where the funeral industry
has a legislated monopoly.

Connecticut
Illinois
Indiana
Louisiana
Michigan
Nebraska
New Jersey
New York





NOTE:
California, a large state with very
large population centers, is NOT
in this list.

States where the funeral
industry does NOT.

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Delaware
Florida
Georgia
Hawaii
Idaho
Iowa
Kansas
Kentucky
Maine
Maryland
Massachusetts
Minnesota
Mississippi
Missouri
Montana
Nevada
New Hampshire
New Mexico
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming




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