07/21/2011

OFDA Legal Report

By T. Scott Gilligan

1.  Courtesy Card Meeting.  Members of the State Boards and State Funeral Directors Association fromIndiana,Kentucky,Ohio andTennessee met on May 25, 2011, to discuss possible changes in state licensing laws to allow funeral directors from bordering states to do removals, file death certificates and supervise interments.   Of the four states,Kentucky is the only state with a courtesy card license.  However,Kentucky will only issue that license to funeral directors from a state that will also issue courtesy cards toKentucky funeral directors.  Of the states borderingOhio, onlyWest Virginia andKentucky currently issue courtesy cards.  The representatives from the four states worked on model legislation which could be used to establish courtesy cards laws inOhio and all of the states that borderOhio.  OFDA will refer this matter to the Legislative Committee.

2.  Pennsylvania Licensing Law Lawsuit.   Several funeral homes inPennsylvania have sued the Pennsylvania Funeral Directors Board challenging the constitutionality of a number of requirements inPennsylvania’s licensing law. Ohio has some of these same funeral licensing requirements and OFDA is monitoring the lawsuit in case the federal court overturns any of thePennsylvania requirements.  The four provisions of thePennsylvania licensing law whichOhio also shares are as follows:

• A funeral home may be inspected without a warrant or without notice.  (OhioandPennsylvaniaboth have this requirement as do thirty-six other states).

• Each funeral home must have a licensed funeral director as a manager and the manager may not manage more than one funeral home. (In addition toOhioandPennsylvania, eight other states have this requirement).

• The name of the funeral director who is in charge of the funeral home must appear in the name of the funeral home.  (Ten states in the country have this requirement includingOhioandPennsylvania).

• State law prohibits any business other than a licensed funeral home from selling disposition services to the public. (Ohio,Pennsylvaniaand twenty-eight other states have this requirement).

OFDA will continue to monitor the lawsuit and report any updates. 

3.  Formaldehyde.   Recent rulings by the EPA and the Department of Health and Human Services have found possible linkage between formaldehyde and leukemia.  The findings of the EPA have been criticized by the National Academy of Sciences.  Nevertheless, NFDA anticipates that these findings may lead OSHA to lower the exposure levels for formaldehyde in the embalming room.  NFDA will continue to monitor the situation and be involved in any rulemaking.  In addition, NFDA is sponsoring a study being conducted at three mortuary schools (including CCMS and PIMS) which are testing the effectiveness of formaldehyde-free embalming solutions.  The results of that study should be released next year.

4.  Alkaline Hydrolysis.   The NFDA Policy Board adopted Guidelines for state laws regulating disposition by alkaline hydrolysis.  The Guidelines provide for states to setup specific licensing requirements and not to simply lump alkaline hydrolysis in with cremation.  OFDA has prepared a draft of changes toOhio’s funeral licensing laws to regulate alkaline hydrolysis as a form of disposition.  Those law changes are still in a draft format and no formal action has yet been taken by OFDA.