07/30/2013

Primer on indigent disposition in Ohio

By T. Scott Gilligan, OFDA General Counsel

            A dozen years ago, the sate of Ohio ended the indigent burial program that provided $750 toward disposition costs.  In so doing, the state shifted the cost burden of indigent disposition to municipalities and townships due to a little-known statute now found in Section 9.15 of the General Provisions of the Ohio Revised Code (Section 9.15 was formerly located at O.R.C. Sec. 5101.521).

            Unfortunately for funeral homes, Section 9.15 is an outdated statute that was poorly drafted.  Despite a few legislative bandaids that have been made to the statute over the years, we still see townships and municipalities using the imprecise language of 9.15 to fabricate loopholes in an attempt to wiggle out of their obligation to pay for indigent dispositions.  Fortunately, a series of Ohio Attorney General’s Opinions over the past twenty years have addressed and closed most of these loopholes.

            Section 9.15 provides that when a dead body “is found in a township or municipal corporation” and the body is not claimed by anyone or is claimed by someone who is indigent, then the township or municipality “in which the dead person had been a legal resident at the time of death” shall cause the dead body to be buried or cremated at its expense.  Below we address major issues that have arisen with the interpretation of Section 9.15.

            “FOUND IN.”  The statute imposes the duty of disposition for a dead body “found in a township or a municipal corporation.”  When an indigent has died in a nursing home or residence, some townships or municipalities claim that they have no obligation to cover disposition costs because the dead body was not “found in” the township or municipality.  In other words, the townships and municipalities are taking the position that their responsibility is only triggered if the deceased indigent is found dead on a street or other public property.

            Ohio Attorney General Opinion No. 1996-026 dealt with the interpretation of “found in a township or municipal corporation”.  The Opinion explained that although the statutory language may have been directed toward itinerants or homeless individuals who are found dead in public places, the statute has been read to “include also persons who die within a household when there is no one who is willing or able to provide payment for the interment.”  Therefore, it is clear from the Opinion that the township or municipality is responsible for the disposition costs of an indigent regardless of where they die in the township or municipality. 

            RESIDENT.  The obligation to pay the disposition cost is imposed only if the deceased indigent was a resident of the township or municipality at the time of their death.  The issue of residency often arises when an elderly person moves into a nursing home in a township or municipality and then dies shortly thereafter.  For example, in a 2012 incident, a woman had moved into a nursing home in Upper Sandusky, Ohio only nineteen days before her death.  Upper Sandusky initially refused to pay the disposition costs arguing that the woman was not a resident of the city. 

            In Ohio Attorney General Opinion No. 1996-026, the issue of residency also arose.  The Attorney General indicated that Ohio law does not specifically define legal residence for the purpose of Section 9.15.  However, the Attorney General also noted that generally Ohio law defines legal residence as a physical presence in a particular location coupled with the choice to make that place home.  There is no requirement that a person reside in that location for any particular length of time in order to establish residency.  Rather, the sole determination is whether the person intended the location to be his or her permanent home.  Therefore, although the woman lived in Upper Sandusky only 19 days, as long as she regarded it as her permanent residence, she was a resident of Upper Sandusky. 

            MUNICIPALITIES SURROUNDED BY A TOWNSHIP.  In Ohio, there are a number of municipalities that are completely surrounded by a township.  This peculiarity has led to disputes over the responsibility to cover the costs of the disposition of an indigent that dies in a municipality that is surrounded by a township.  In other words, is the municipality or the township responsible for paying for the disposition? 

            Since Ohio Attorney General Opinion No. 2018 which was issued in 1921, the Ohio Attorney General has consistently adopted the position that the municipality would be responsible for the cost of the disposition of an indigent person that dies in the municipality that is surrounded by a township.  That position was most recently reaffirmed in Ohio Attorney General Opinion No. 1996-26.

            “CLAIMED BY.”  Section 9.15 imposes the duty of disposition on a township or municipality unless the body of the indigent is claimed by a person for burial or cremation at that person’s own expense.  Latching on to this language, some townships and municipalities claim that they are not responsible for the disposition costs if the deceased indigent was claimed by family members. 

            When a death occurs, it is customary for the family to notify a funeral home and arrange a disposition.  When the funeral home later determines that the decedent is indigent and the family is unable or unwilling to pay for the disposition, the township or municipality may claim that it is not responsible since the body was “claimed by” the family. 

            Remedial legislation and Ohio Attorney General’s Opinions have pretty well closed this loophole.    More than 30 years ago, a provision was added to Section 9.15 which provides that a township’s or municipality’s statutory obligation is not relieved if the body is claimed by an indigent person.  In addition, Ohio Attorney General Opinion No. 1995-012 establishes that the mere fact that a family member claims a body and contacts the funeral home does not relieve the township or municipality from paying the disposition costs.  Unless the family member is willing to pay for the disposition, the obligation still resides with the township or municipality.

            Up until a few years ago, there was uncertainty regarding whether a township or municipality that is paying for the indigent disposition could select the manner of disposition against the contrary wishes of family.  That uncertainty was cleared up with the 2006 passage of Ohio’s right of disposition statute found at Section 2108.71 et seq. of the Ohio Revised Code.  That law made clear that a person could only exercise the right of disposition if he or she were willing to pay for it.  Therefore, if a family member is unwilling to pay for the disposition, they cannot require the township or municipality to provide the desired type of disposition or funeral.  The township or municipality, as the payor, may dictate burial or cremation.  The only requirement imposed by the statute on the township or municipality is that it provides at the grave (including cremated remains if interred) a stone, or metal or concrete marker on which the person’s name, age and date of death are inscribed. 

            INDIGENT.  Another loophole that townships and municipalities occasionally claim is that the decedent or the family member claiming the decedent is not indigent.  As far as the decedent, the primary obligation to pay for the disposition resides with the decedent’s estate.  If there are assets in the estate, they should be used to cover the cost of disposition.  If there are not assets, then the obligation falls on the township or municipality unless a family member bears the cost. 

            In Ohio, family members are not obligated to pay for the disposition of a relative except in the case of a spouse or a parent with a deceased minor child.  However, if the spouse or parent is indigent, then the obligation would pass to the township or municipality under Section 9.15.  This, of course, brings up the issue of when a person is considered “indigent” under Section 9.15. 

            The answer is provided by a provision found in the recent Budget Bill that took effect on July 1, 2013.  That provision defines an “indigent person” as one whose income does not exceed 150% of the federal poverty line for the family size equal to the size of the person’s family.  Using the 2013 federal poverty guidelines, a person in a household by himself or herself would be indigent if his or her income were less than $17,235.  For a family of two, the indigent level would rise to $23,265.  For each additional person in the family, the indigency level rises by $6,030.  For an example, in a household of four, the indigency level would be an annual income that was less than $35,325. 

            CONCLUSION.   While most townships and municipalities understand their obligations under Section 9.15, some do not.  In cases where funeral homes encounter either ignorance of the law or unwillingness to abide by it, funeral homes need to push township and municipal government officials to live up to their statutory obligations.  Please feel free to use this article and to consult with OFDA when facing obstinate government officials.

            Another important point to remember is to consult with a township and municipality as soon as you are aware that you are dealing with an indigent disposition.  Since the township or municipality, as the payor, has the right of disposition, it has the authority to decide which funeral home will carry out the disposition, what type of disposition will be conducted, and whether it will provide any type of funeral ceremonies.  Therefore, you need to involve the township or municipality right away so that the disposition is carried out in line with the policies of the township or municipality.

            Under the theory that an ounce of prevention is worth a pound of cure, it would be prudent for funeral homes to consult with township and municipal officials before encountering an indigent case so that the funeral home fully understands who to notify and what type of budget they are working with.  Consultation will also serve to remind townships and municipalities that they have the obligation under Section 9.15 so that they place funds in their annual budget for indigent dispositions. 

            OFDA members with questions regarding this article may contact General Counsel Scott Gilligan at 513-871-6332.