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Why the Law Matters – What Every Funeral Consumer Needs to Know

1/21/2009 – Holly Stevens, a co-founder of the newest FCA chapter, The Funeral Consumers Alliance of the Piedmont in North Carolina, has assembled an easy to read guide to funeral law for consumers in her state. Most people aren’t even aware there is such a beast as “funeral law.” If they are, they usually think, “I don’t need to worry about that.” Wrong. Grieving families who don’t know their legal rights are vulnerable to sales pressure, manipulation, and overspending when it comes time to plan a funeral. Stevens knows this well, and has done an excellent job putting arcane legalese into plain language anyone can understand.

Did you know that in North Carolina:

1. Families can act as their own funeral directors – they don’t have to hire a funeral home and they can complete all the paperwork themselves?

2. That there’s no state fund to pay for funerals for those who die poor?

3. That it’s almost impossible to get a refund after 30 days (even if you move or change your mind) when you buy graves and markers ahead of time?

Probably not, but these are things every savvy funeral consumer should know. Stevens has kindly given us permission to excerpt the introduction and Q & A from her book, Care of the Dead: North Carolina Statutes. This is a must-read for any North Carolina citizen. It’s also a great model for other Funeral Consumers Alliance affiliates to adopt. If you’re on the board of an FCA group and you can’t answer these questions about your own state’s laws, now’s the time to assemble a helpful guide for your members. We’re sure Holly Stevens would be pleased if you’re inspired by her work. Click READ MORE for the excerpt. . .

Excerpt

 

I first created this compilation of North Carolina’s funeral related statutes to help me in my own efforts to learn the rules of the trade. But by making the compilation available to others, I hope in small measure to encourage industry observers in their efforts to protect the interests of the funeral consumer.
How does North Carolina regulate its funeral industry? Where in the statutes is a family’s right to serve as its own funeral director protected? What are the protections offered consumers who open preneed contracts with funeral homes?

Those are the types of questions raised by observers of the funeral industry, whether they are journalists, consumer advocates or do-it-yourselfers interested in the revived practice of home funerals. Students of mortuary science are presented with information about funeral law in a systematic manner before they enter the trade. But for the rest of us, it can be daunting to open the North Carolina General Statutes website and find our way through the maze to specific answers. It is for these observers that I created this compilation.

In this book you will find:

  • Statutes related to funeral service, funeral directing, embalming, cremation, cemeteries, death notifications, death certificates and other related topics organized by the chapter number in which they appear. Some of these chapters are devoted to one or more aspects of the funeral industry, while others barely touch on funeral law.
  • Two tools to help you find specific answers: a Q&A that helps to familiarize the reader with the major portions of funeral law in the North Carolina General Statutes, and an index that can be used to find answers to specific questions.
  • ·An introduction to the North Carolina General Assembly, with a guide to how legislation is developed, and instructions on how to identify your own senators and representatives.
  • ·A guide to finding county and municipal ordinances that relate to funerals and cemeteries.

Why is it important for journalists, consumer advocates and others outside the industry to know how to find and interpret funeral law? For one thing, across America it is at the state level where most anti-consumer legislation has been introduced in recent years. By and large, the industry is regulated by state boards that typically are populated with industry insiders.

North Carolina is one of the worst in this regard: Of the nine members of the North Carolina Board of Funeral Service, only three come from outside the trade, and the six others are selected by the governor, house speaker and president pro tempore from a list of licensed funeral directors submitted by two state funeral trade associations! While Paul Harris, the board’s current executive director, is hailed as a good communicator and has reached out in recent years to invite funeral consumer advocates to observe board proceedings and, more recently, to have one of their kin join the board, the influence of funeral consumer advocates on the board necessarily pales compared to the funeral directors who comprise its majority.

The effect of this dominance by funeral directors can be seen in recent moves by the board to curtail the permissible activities of independent crematories that do not operate under the management of a funeral home licensee – policies that work to the advantage of the board’s majority, whose profits are undercut by these usually more affordable service providers, but to the detriment of consumers, who will be forced to obtain cremation services from higher priced funeral homes if they want anything beyond the bare essentials of cremation: the act of cremation itself, the arrangement of the necessary death certificate, the removal of the body from the place of death to the crematory, and the return of the ashes to the authorized agent. That local independent crematory that used to offer scatterings at sea or an on-site memorial no longer is allowed to do so.

The board justifies these restrictions by claiming that such “extras” constitute “funeral service,” yet even the act of cremation itself is defined as a form of cremation service in the state statutes. Essentially, then, we have a board that is picking and choosing, cafeteria style, which aspects of funeral service it will allow independent crematories to engage in, and its choices reflect the fact that most of its members are funeral directors and funeral service licensees; none are independent crematories.

What has happened in other neighboring states could also happen in North Carolina, and for this reason, it behooves funeral consumer advocates, journalists and other industry watchdogs to monitor the General Assembly to ensure that legislation hostile to the interests of consumers is not introduced. For example, the Virginia legislature recently passed legislation that makes it illegal for anyone other than a licensed funeral home to sell a casket, although the funeral consumer’s right to purchase a casket from an outside source is protected by the Funeral Rule of the Federal Trade Commission. Virginia also has done away with independent crematories altogether; today, all crematories must be owned by a licensed funeral home. One has to wonder if the North Carolina Board of Funeral Service, in promulgating restrictions on independent crematories in our state, is eyeing its neighbor to the north and moving in the same direction….

Caveat emptor!
Holly Stevens, January 2009

Frequently Asked Questions

Q: How does North Carolina regulate the practice of funeral service?
A: The practice of funeral service is regulated by a nine-member regulatory board known as the North Carolina Board of Funeral Service. See Chapter 90, Article 13A, Sections § 90‑210.18A through § 90‑210.24.

Q: Who comprises the North Carolina Board of Funeral Service?
A: Four members are appointed by the governor from nominees recommended by the N.C. Funeral Directors Association, while two are appointed by the governor from nominees recommended by the Funeral Directors and Morticians Association of North Carolina. All of these must be licensed in the trade. The remaining three members are not licensed in the trade; one is appointed by the governor, one by the speaker of the house, and one by the president pro tempore of the Senate. Members serve staggered three-year terms and may serve up to two consecutive terms. See § 90‑210.18A

Q: What is the Funeral Rule, and what is its relationship to North Carolina General Statutes governing the funeral industry?
A: The Funeral Rule of the Federal Trade Commission – found at the back of this compilation – requires funeral providers to provide certain information, make certain disclosures and refrain from making certain claims about their goods and services. The intention behind the rule is to enable funeral consumers to know upfront what they will be charged and to permit them to choose only those goods and services they want.

According to the Funeral Rule, the funeral provider must state your right to choose only the goods and services you want (with a few exceptions) on its general price list, which it must provide for retention when you ask for it in person or inquire in person about funeral goods and services. If state or local law requires the purchase of an item, the funeral provider must disclose that on the price list with a specific reference to the law. The funeral provider may not refuse or charge a fee to handle a casket brought in from outside (but in its 2008 survey of area funeral providers, Funeral Consumers Alliance of the Piedmont found that 45 percent of providers were imposing such illegal fees). If it offers burials, it must also offer an immediate burial option that does not require embalming. If it offers cremation, it must make alternative containers available in lieu of caskets and it must offer a direct cremation option that does not require embalming.

The Funeral Rule, in effect since 1984, is at the heart of the funeral consumer movement in America. Some states refer to it by name in their statutes, but North Carolina does not. In the past, the North Carolina Board of Funeral Service has advised independent crematories that they are not subject to the Funeral Rule. Funeral Consumers Alliance of the Piedmont involved its national office and the Federal Trade Commission in the matter, and the Federal Trade Commission submitted a formal staff opinion to the board that did indeed stipulate that independent crematories are subject to the rule.

Q: How are cemeteries regulated in North Carolina?
A: See Chapter 65. Article 9, “the North Carolina Cemetery Act,” establishes the North Carolina Cemetery Commission, which regulates cemeteries other than those owned by governments (municipal and veteran cemeteries) and church cemeteries. (In essence, its scope is private, for-profit cemeteries.) Statutes governing cemeteries are scattered here and there, depending on the type of cemetery; for instance, there are specific statutes governing the treatment of Native American graveyards.

Q: What about crematories?
A: § 90‑210.122 established the North Carolina Crematory Authority as a committee of the North Carolina Board of Funeral Service. It is an advisory body; only the board itself is vested with the powers to license entities and individuals engaging in cremation.

Q: What mechanisms are in place for handling funeral consumer complaints?
A: With the exception of § 90‑210.70(d) which refers to complaints related to preneed burial contracts, the statutes don’t contain language specific to funeral consumer complaints. However, the website for the North Carolina Board of Funeral Service at www.ncbfs.org has a downloadable complaint form and says this about its role and procedures in considering complaints:

The Board of Funeral Service regulates funeral homes, funeral directors, funeral service licensees, embalmers, crematories and crematory operators, mutual burial associations, and the sale of preneed contracts and the personnel associated with those sales.

One means by which the Board carries out its duties is through investigating consumer complaints. Each complaint is carefully considered and investigated fully. The Board has the authority to suspend or revoke the license of any of its licensees if they are convicted of a wrongdoing. These wrongdoings include, but are not limited to, fraud, false advertising, soliciting bodies, gross immorality, refusing to give up custody of a body, embezzlement and misapplication of preneed funds, and aiding and abetting the funeral practice of those not licensed to do so. Any evidence of criminal wrongdoing will be presented to the local district attorney. The Board conducts its own hearings and in some instances disciplinary matters are heard by a North Carolina Administrative Law Judge.

Even legitimate funeral consumer complaints will not be considered by the board if they concern actions that do not fall under the scope of the board’s oversight as established by the North Carolina statutes or do not represent a potential infraction of state funeral-related regulations.

Q: How does North Carolina define funeral service?
A: In § 90‑210.20, you will find the definition:

(j) “Funeral service” means the aggregate of all funeral service licensees and their duties and responsibilities in connection with the funeral as an organized, purposeful, time‑limited, flexible, group‑centered response to death.

(k) “Practice of funeral service” means engaging in the care or disposition of dead human bodies or in the practice of disinfecting and preparing by embalming or otherwise dead human bodies for the funeral service, transportation, burial or cremation, or in the practice of funeral directing or embalming as presently known, whether under these titles or designations or otherwise. “Practice of funeral service” also means engaging in making arrangements for funeral service, selling funeral supplies to the public or making financial arrangements for the rendering of such services or the sale of such supplies.

North Carolina’s definition of funeral service is broader than the “funeral provider” term used by the Federal Trade Commission and, unlike the FTC’s scope, includes entities that provide only funeral related goods or that provide only funeral related services. This is an area of concern for funeral consumer advocates because it enables the North Carolina Board of Funeral Service – dominated by industry insiders – to interpret its powers broadly. In recent years, for instance, the board has sought to bring the oversight of the North Carolina Cemetery Commission under its umbrella, although the commission has so far resisted those appeals.

The board might conceivably someday interpret “the sale of such supplies” to include casket sales as a form of funeral service, making it illegal for entities other than licensed funeral homes to sell caskets. One might argue even that “making financial arrangements for the rendering of such services” means that a teller who prepares a money order for a customer made payable to a funeral home is engaging in funeral service! The problem is that such a broad interpretation of funeral service invites self-serving choices in regulatory oversight.

When funeral service is defined broadly, it also invites contradictions in the statutes (cremation is defined here as funeral service, yet the practice of funeral service by a crematory is described elsewhere as a punishable violation); as a result, the board adopts a pick-and-choose approach, choosing which forms of its so-defined concept of funeral service it will allow non-licenses to practice and which it will not.

Q: What are the education and training requirements for embalmers in North Carolina?
A: 90‑210.25(a)(2) establishes that a licensed embalmer: must be at least 18 years old, of “good moral character,” a graduate of a mortuary science college approved by the board, have completed a 12-month embalming traineeship, and pass an exam that covers embalming, restorative arts, chemistry, pathology, microbiology, anatomy, and funeral law.

Q: What are the education and training requirements for funeral directors?

A: § 90‑210.25(a)(1) establishes that a licensed funeral director must be at least 18 years old, of “good moral character,” a graduate of a funeral director program at an approved mortuary science college that includes at least 32 semester hours or 48 quarter hours of instruction, have completed a 12-month funeral directing traineeship, and pass an exam that covers psychology, sociology, pathology, funeral directing, business law, funeral law, funeral management, and accounting.

Q: What are the education and training requirements for funeral service licensees?
A: § 90‑210.25(a)(3) establishes that a funeral service licensee combines the requirements of funeral director and embalmer licensees. Its mortuary science educational requirement is 60 semester hours or 90 quarter hours of instruction, and the traineeship is in funeral service. In essence, a funeral service licensee is a combined embalmer-director.

Q: What are the education and training requirements for crematory operators?
A: § 90‑210.121(14) stipulates that a crematory manager must either be a qualified crematory technician and be licensed to practice funeral directing or funeral service, or must obtain a crematory manager permit from the North Carolina Board of Funeral Service. To obtain a crematory manager permit from the board, a person must be at least 18 years old, be of “good moral character,” and be qualified as a crematory technician. A qualified “crematory technician” means the person has a certificate confirming attendance in a training course approved by the board or conducted by the Cremation Association of North America § 90‑210.121(13).

In August 2008, the North Carolina Board of Funeral Service issued a memorandum to all crematories in the state establishing that “unless license otherwise” for funeral service or funeral directing, a crematory may engage only in the following practices: cremation, arranging for the death certificate and cremation permit, removal of the body from the place of death, and the return of the cremated remains to the authorized agent, hence constricting the activities of independent crematories compared to those of crematories owned by funeral homes that are more likely to have funeral service licensees on their staff. Funeral Consumers Alliance of the Piedmont has criticized this move as anti-consumer, since it removes affordable options for funeral consumers who desire, for example, help with placing an obituary in the local paper in connection with a cremation. FCA of the Piedmont questions how such restrictions protect funeral consumers; indeed, they seem only to protect the interests of licensed funeral home operators who comprise the board’s majority.

Q: What other types of licenses exist in the funeral trade in North Carolina?
A: You must be licensed to sell preneed funeral contracts (see) or preneed cemetery contracts (see). You must also be licensed to engage in funeral transport as an occupation, whether in removing a body from the place of death or in transporting it to the place of final disposition. In addition, there licenses are required for funeral establishments (see § 90‑210.25(d)), cemeteries (see § 65‑55) and establishments that sell preneed funeral contracts (see § 90‑210.67).

Q: Can licenses be revoked?
Yes. The North Carolina Board of Funeral Service and the North Carolina Cemetery Commission have the power to revoke licenses for certain violations. They also have the power to impose temporary injunctions or periods of probation or fines on violators. Licenses also can be revoked if not renewed in a timely manner.

Q: What is the role of the medical examiner?
A: The chief medical examiner of North Carolina performs postmortem exams for medical and legal purposes. The chief medical examiner must be a forensic pathologist certified by the American Board of Pathology and licensed to practice medicine (see § 130A‑378). He or she is assisted throughout the state by qualified pathologists and forensic chemists. § 130A‑383 stipulates that the medical examiner is to be involved in deaths resulting from violence, poisoning, accident, suicide or homicide; when the death was unexpected and when the deceased had been in apparent good health; when the death was unattended by a physician; when the death occurred in a jail or correctional institution; or when the death is otherwise “suspicious, unusual or unnatural.”

Q: Is embalming required in North Carolina?
A: No. There is no statute that requires embalming in any situation under North Carolina law. However, funeral providers are allowed to require embalming under certain circumstances, such as when a public viewing is arranged or when final disposition will be delayed. It is important to recognize that such requirements reflect a funeral establishment’s business practice policies, not legal requirements, and therefore there may be room for negotiation, especially if one inquires in advance of need. For instance, some funeral homes will allow a private viewing without embalming. Also, if a funeral provider offers burial, then the Funeral Rule of the Federal Trade Commission requires that it must also offer options that do not require embalming, such as immediate burials.

Q: Is a vault or graveliner required by North Carolina law?
A: No. There is no law in North Carolina that requires the use of a vault or graveliner, known in the funeral industry as outer burial containers. However, most cemeteries require them, because they help to keep the gravesite from sinking as the contents decompose, making it easier to mow and maintain. For-profit, veterans and municipal cemeteries are unlikely to budge from such requirements; however, church cemetery associations have been known to allow burials without outer containers. It doesn’t hurt to ask, since outer burial containers add hundreds, sometimes thousands, to the cost of a burial.

Q: What are the laws pertaining to fetal deaths and miscarriages?

A: § 130A‑114 stipulates that fetal deaths the occur after 20 completed weeks of gestation must be reported to the local county registrar in the same manner that other deaths are reported. If no family physician is involved, the local medical examiner must sign the death certificate.

Q: What happens if a family cannot pay for a funeral?
A: At present, there are few desirable options. Legislation has been proposed in the North Carolina General Assembly, but never passed, to establish a fund for indigent funerals. Some funeral homes will provide a free, no-frills funeral in some instances for deaths occurring in their vicinity, but they are not required to do so. In some cities, funeral homes rotate in accepting indigent cases. § 130A‑415 provides that bodies that remain unclaimed for 10 days may be provided to the Commission of Anatomy pursuant to the authority granted in 130A‑33.30. If the Commission of Anatomy declines to receive the body, the person in possession must inform the director of social services of the county of death to arrange for prompt final disposition. The 10-day period may be shortened by the county director of social services when it is determined that the body will not be claimed for final disposition within the 10-day period.

[Tip from Funeral Consumers Alliance – You have the responsibility, and the ability, to control your funeral costs so you’re not stuck with a bill you’ll never be able to pay. For ideas on selecting simple, low-cost options, read our pamphlets Ten Tips For Saving Funeral Dollars, Four-Step Funeral Planning, Cremation Explained, and Earth Burial: a Tradition in Simplicity]

Q: Where in the statutes is the family’s right to serve as its own funeral director protected?
A: A family’s right to serve as its own funeral director would have to be specifically restricted since the powers of the North Carolina Board of Funeral Service are limited to regulating funeral directing as a paid profession only. This can be liked to cutting hair: You are free to cut your family members’ hair or the hair of a friend without a license, but if you intend to earn income from cutting hair, you would first have to obtain a license to practice cosmetology.
However, the family’s right to serve as its own funeral director is implied in 130A‑420, which grants any individual at least 18 years old the authority to determine the method of disposition pursuant to authorizations contained in a written will, other written statement or a health care power of attorney. In addition, 130A‑112 uses the phrase “a funeral director of person acting as such who first assumes custody of a body” which assumes that an individual other than a licensed funeral director can serve as a funeral director. The key issue is whether or not payment is made for such services.

Q: What is the first responsibility of any person who assumes custody of a body at death?
A: 130A‑420 stipulates that a person who first assumes custody of a body shall notify the registrar of the county in which the death occurred within 24 hours. This “notification of death” is the first step in arranging a death certificate. Different counties have slightly different procedures for receiving death notification on weekends or after business hours.

Q: What is the process for obtaining a death certificate?
A: 130A‑115 outlines the steps involved in the process, known as “death registration.” The death certificate must be filed in the county where the death occurred within five days after the death. The funeral director or other person who first assumes custody of the body obtains the personal data needed to complete the form from the next of kin or other reliable source and arranges for the medical certification portion, which must be completed and signed by a physician or medical examiner within three days of the death. (One common complaint of professional funeral providers is that they do not always receive timely assistance from physicians with the medical certification process.) If a family is serving as its own funeral director, it is wise to check with the local registrar in advance to determine the exact procedures to be followed. For instance, some local public health departments will allow the family to convey the actual completed and signed death certificate to the local vital records department while other public health departments will insist on handling this detail themselves. If county employees seem uncertain how to work with a family serving as its own funeral director, Tamma Hill of the North Carolina Department of Vital Records may be reached at (919) 246-9617 for assistance.

Q: Do I need a permit to transport the body?

A: Only if the death is assigned to a medical examiner or if the body is to be transported out of state, according to 130A‑113. No permit is needed to transport cremated remains out of state.

Q: What other kinds of permits are required?
A: 130A‑388 establishes that a permit from the medical examiner is necessary before a dead body may be cremated or buried at sea. 90‑210.25 provides for special permits, known as courtesy cards, to be issued to nonresident funeral providers to remove bodies to and from funeral establishments in North Carolina. Also, a permit is needed under 65‑106 to disinter or reinter buried remains.

Q: Can you bury your own dead on land that you own?
A: There is no North Carolina statute that prohibits this. (You must, however, make sure that the topmost portion of the remains or its container is at least 18 inches below ground, according to 65‑77). However, some local ordinances prohibit or restrict such burials. Check your local ordinances at http://www.municode.com/

Q: What are the rules governing preneed funeral contracts?
A: The rules are extensive and can be found in Article 13D of Chapter 90. (Preneed cremation contracts are covered in § 90‑210.126.) The regulations cover how proceeds are to be deposited and applied, what kinds of contracts are permitted (North Carolina allows both revocable and irrevocable contracts and both standard and inflation-proof contracts), whether and how contracts can be amended, under what circumstances they can be refunded or reassigned, and how deposits might be recovered in the event of misuse. These regulations do no apply to preneed burial insurance policies or other insurance sales. North Carolina law does offer some consumer protections not always available in other states. However, unlike some states, there are no annual reporting requirements that provide a greater measure of assurance that the funds are being accounted for appropriately, and there are no provisions that selected funeral goods and services be adequately described or that services and goods of equal value be substituted in the event the selected goods or services are not available at death.

In general, both Funeral Consumers Alliance and the American Association of Retired Persons (AARP) recommend instead that consumers open a payable-on-death savings account that designates a survivor who will be responsible for paying funeral expenses to receive the assets upon the account holder’s death.

Q: What are the rules governing preneed cemetery contracts?
A: These, too, are extensive, and are found in 65‑58 for cemeteries that fall under the jurisdiction of the North Carolina Cemetery Commission (generally, private for-profit cemeteries). Note that only 60 percent of such funds must be placed in trust. Once the purchaser obtains a certificate of ownership and the vault or marker is warehoused, it is almost impossible to get a refund after 30 days. If the customer defaults on installment payments, the issuer may cancel the policy and keep 40 percent of the contract amount.

 

 

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