UPDATE—2/17/2012
It looks like Gere’s persistence has paid off: The state board has sent a letter stating that they will, in fact, investigate violations of the FTC Funeral Rule (because, as they surely already knew, such violations also break South Carolina law:
South Carolina Department of Labor, Licensing and Regulation
Board of Funeral Service
January 31, 2012
Gere B. Fulton, PhD, JD
Funeral Consumers Alliance of South Carolina
Dear Dr. Fulton:
Thank you very much for your most recent letter regarding the federal funeral rule and other concerns.
As stated in our November letter, compliance with the funeral rule is enforced by the Federal Trade Commission (FTC), and is part of the Code of Federal Regulations. The South Carolina State Board of Funeral Service’s jurisdiction is found in S.C. Code § 40-19-5, et seq., the Embalmer’s and Funeral Director’s practice act, and it does not have jurisdiction in itself to enforce federal laws. Having said that, please allow us to elaborate upon that explanation, also contained in the November letter, that may be misunderstood. When a federal law is violated, that may also mean that the Board’s statutes and/or regulations are violated, and we agree with you that the Board certainly make take action. The Board will act whenever an FTC or other violation is found through inspections, or when someone like you files an initial complaint; one does not have to file an FTC complaint before filing an LLR complaint, but one may file a complaint with each entity. We hope you understand that the Board agrees with you as to the importance of the funeral rule and its efforts to make licensees aware of federal requirements and provide referrals to licensees and the public for further information.
To address your concerns more fully, it may be prudent to provide LLR’s Office of Investigations and Enforcement (OIE) copies of any complaints you have filed with the FTC, as well as the results of those complaints, and to file a complaint alleging a violation whenever you see fit. Any complaint or complaints you or anyone else files will be investigated and may result in a formal complaint from LLR’s prosecution staff and a disciplinary hearing. Rest assured that we want to address these concerns, and that we take them very seriously.
Please do not hesitate to contact me, our administrator Doris Cubitt, and/or our legal counsel James Saxon (contact information is found on the Board’s website within LLR’s website).
Sincerely,
Michelle Cooper
Board President
cc: Catherine Templeton, Executive Director – LLR
Rion Alvey, Deputy Director – LLR
Doris Cubitt, Funeral Board Administrator
James Saxon, Advice Counsel
Gere Fulton, Ph.D., J.D. is a retired professor of Public Health, having taught at the University of Toledo and the University of South Carolina. He served two terms on the national board of Funeral Consumers Alliance and was co-chair of its Legal Committee. Fulton is one of the most active volunteers in FCA when it comes to keeping tabs on how well—or poorly—funeral homes obey basic consumer protection rules laid out by the Federal Trade Commission’s Funeral Rule. When he began surveying funeral home price lists in South Carolina he found a shocking rate of legal violations. These aren’t just technicalities; they affect the ability of grieving people to get clear, accurate information at a stressful time which makes it hard or impossible to effectively control family funeral costs.
Worse, the state regulatory board charged with overseeing funeral homes has closed ranks around the funeral directors, denying the problems and blatantly ignoring Fulton’s request for documents and corrective action. Small wonder. Like most states, South Carolina’s state regulatory board is dominated by funeral directors (Nine of 11 seats are held by industry). Its function seems to be giving the state the appearance of protecting consumers. In reality the board acts as little more than a tax-payer funded undertakers’ interest group. For an overview of how thoroughly corrupt the funeral regulatory system is around the country, see Circling the Hearses, the first chapter of Final Rights: Reclaiming the American Way of Death. –Josh Slocum, FCA Executive Director
-by Gere Fulton
The Problem
I’ve been clashing with the Board of Funeral Service (BFS) almost from the moment I arrived in Columbia. When I got here the Funeral Consumers Alliance of South Carolina (FCASC) had never done a funeral pricing practices survey, so I volunteered to do one for them.
When I finished analyzing the data, I wrote a report and called a press conference to release it to the media. South Carolina’s largest newspaper, The State, covered it and printed a story, including a response from the president of the BFS. He, of course, dismissed the report without even having seen a copy of it. That was the beginning.
Since then I’ve done four more surveys of Columbia, one of Charleston (with another in progress) and one of the “upstate” region, i.e. Spartanburg and Greenville. Each time I’ve presented the findings to the FCASC membership, the media, and to the BFS. After my second or third appearance before the BFS, they decided to prove that things weren’t as bad at funeral homes as I kept reporting. Two of the Board members pulled a “sample” of 20 funeral home price lists from the file of more than 400 that are collected by their inspector yearly. From that bogus sample the two Board members reported that there was “no problem.”
When I became aware of this I contacted the administrator at BFS and asked if I could review their “evidence.” Julian Minghi of the FCA of South Carolina accompanied me to the Board’s headquarters where we were met by Ernest Adams, the Board’s inspector, and shown into a conference room with boxes and boxes on the table. When I told him that I wanted to review the price lists that had been “sampled,” he responded by saying that those had been put back into the boxes. That, of course, made it impossible for me to review their work.
When I showed up again six months later with the newest survey of Columbia’s funeral homes, I showed the BFS that more than 25 percent of their licensees were still not in compliance with the Funeral Rule. Subsequently, they scheduled a work-day where the full membership sat around a big table and went over every price list from the boxes before them. Following that and my probing about what they found, they reluctantly reported that 88 percent of the GPLs failed to comply with the Rule! You read that right; 88 percent, nearly 9 of every 10. I don’t know what moved them to such honesty (the foolishness of passing that along to me in writing!), but after that there was no further doubt about my reports—until 10 months ago.
After my 2010 report showed that approximately 30 percent of funeral homes were violating the Funeral Rule, a writer for our weekly Free Times newspaper began working on a story. When she interviewed me, I told her that she also ought to interview Ernest Adams, the Board’s inspector, to see what he might have to say. When her story showed up in print, she wrote the following:
But to Ernest Adams, president of the National Funeral Directors and Morticians Association and the inspector for the South Carolina Board of Funeral Service, the new report isn’t anything serious. Adams says people can still trust funeral homes.
“For the most part, funeral homes are very reputable; just like anything else, you may have a bad apple,” Adams says. “Most funeral homes have a very substantial investment. They realize if they break the law, their substantial investment would be nullified.”
Adams also says the 30 percent noncompliance rate for the Midlands found in the Funeral Consumers Alliance report is higher than what he finds in his statewide inspections; he thinks the rate is probably closer to 15 percent.
And, as you might imagine, that’s when I called for his “evidence.” It was also when I first realized that there was a clear-cut conflict of interest problem at the BFS. I knew that Adams was a licensed funeral director—that’s a requirement for the job in this state—but I didn’t know that he was also the main spokesperson for a trade group; Adams is President of the National Funeral Directors and Morticians Association. At that point I began by contacting the administrator at the BFS, Doris Cubitt, and when I didn’t get any satisfaction from her I went to the Secretary of State’s office. I learned that the Secretary of State doesn’t have any jurisdiction over BFS, so I contacted the Director of the Department of Labor, Licensing and Regulation. Catherine Templeton then directed that Mr. Adams resign from his presidency and drop his membership in the organization.
The Answer
[And now things get truly astonishing. The Board of Funeral Service had repeatedly ignored Fulton’s requests for information on what action they intended to take to correct the widespread violation of consumer protection rules by funeral homes under the board’s jurisdiction. When he got a hold of a copy of the board’s meeting minutes he found the answer. Hold on to your hats. –Josh Slocum]
Transcript of the meeting of the Board of Funeral Service, September 25, 2011, pages 32-36. Eddie Nelson, Charlie Evans, Michelle Cooper, Glen Crawford, and John Petty are all funeral directors and members of the board. Jeanie Rose and Doris Cubitt are staff members.
MS. CUBITT: It’s 12B. Mr. Chairman, your packet contains the letter from Dr. Fulton about his concerns. He’s interested in a response. He’s also included because he included a copy of his last report that he had issued.
MR. NELSON: And I brought that, Ms. Cubitt, at that last meeting, just to give it to you. All board members who have information because it was written directly to me. I wanted the rest of our boardmembers to be apprised of what is — what Dr. Fulton was stating in his letter.
MR. EVANS: Mr. President, I just have a — I have a very — I guess a question that probably may sound silly, but it’s literally because I do not understand. My understanding is, things that come before this board is by a complaint, somebody has a formal complaint. How do you respond to a letter that just has a bunch of numbers on it? There seems to be no formal complaint.
MR. NELSON: Well, I received the call from Dr. Fulton and he wanted to basically come in and address the board with his findings. And he had said that he had mentioned that he had spoken to a previous board president, and it was ongoing. So at that time, I gave our administrator a copy, so that everyone on the board would be apprised of what Dr. Fulton’s concerns are. So I guess that we need to decide at this point, do we want to address and need to set up another time for him to come back to talk to us? Or to have our administrator handle that?
MR. EVANS: I think that’s an administrator issue. I think until it’s a formal complaint — Ms. Cubitt does such a fine job.
MS. CUBITT: He wants to know the board’s position. What is the board going to actively do to ensure that funeral homes are following the FTC rules.
MS. COOPER: That’s what we got inspector for, is it not? And in his findings, if he filed a formal complaint, then these people will be brought before the board and addressed.
MR. EVANS: You know, if he wants to be the investigator for the State of South Carolina, he can apply for a job here at LLR [Ed.- Not true. Gere Fulton is not a funeral director. SC law requires the inspector to be a licensed funeral director with five years on the job].
MR. CRAWFORD: But I think he dictate the rules and regulations to us; that we should go by.
MS. COOPER: Because, I mean having everybody conform to a certain thing, that sounds like proposed legislation or something.
MR. NELSON: Yeah. And I assured Dr. Fulton that Mr. Adams, our inspector, does good job on going out and trying to find and make sure that we are following the guidelines of the FTC. And I know he does come to my office to make that he scrutinizes our forms and the issues and everything. And even so, he aids us and assists us in making corrections. Because the last inspection that I had I had to make a correction. It was a small correction, but it was a correction that needed to be made and we made it. Mr. Adams does do a good job on that. So I assure you that we do have procedures in place, that we are making sure that persons — our funeral homes and counterparts are following the requirements of the FTC.
MR. CRAWFORD: It’s not even possible that we do a hundred percent. It’s just like speeding down the road, you know. If we got patrols out there, police officers out there, if they can’t guarantee that nobody would be speeding coming down the road. And this is what Mr. Fulton want us to do is do a hundred percent by the rules and regulations that he brings before us, that we should go by; that’s what he’s saying. And since I have been on this board, he has been here several times. And each time has been what he wants done, and not what the rules and regulations are.
MR. EVANS: And Mr. President, I just recommend we just take this as information only.
MR. CRAWFORD: Yeah, not to respond to this.
MR. NELSON: May I have a motion on that?
MR. EVANS: I’ll make a motion that we take this as information only with no response.
MR. TEMPLES: I second.
MR. NELSON: It’s been moved and properly second. All those in favor with receiving this as information only, let it be known by saying “aye.”
[The board voted to ignore Fulton’s request.]
So, there you are, South Carolina. Your tax dollars at work protecting the funeral business from you, the consumer. Fulton wrote again to the Department of Labor, Licensing, and Regulation:
Evidently the Board has decided not only to disregard the request that I had made for information about their alleged plan to improve licensees’ compliance with the FTC’s Funeral Rule, but they have also decided not to give me the courtesy of a response to my letter and repeated requests. If you are interested in reading a history of the reports which led to the Board’s decision to form a compliance committee, their announcement that the committee had solved the problem, and evidence that Mr. Adams’ inspections had not produced any significant reduction in Funeral Rule violations as recently as last December, I will be happy to send that to you.
Both as a consumer advocate and a tax-paying citizen of this state, I am deeply offended by the way in which my inquiries for information have been first stone-walled and now dismissed by this funeral director-dominated Board which should be expected to protect the citizenry from exploitation by the funeral industry. I find it hard to believe that you would countenance such behavior and I urge you to take the necessary steps to instill a greater sense of public accountability among both staff and members.
I look forward to your reply.
