Mortuary Law (NBE Review)
Is a person liable for bill if they request/arrange services?
No, depending on their relation, and agreement to be liable. In some times/places a widow requesting services is automatically liable
Compensation for on-call employment
Not required if employee is "waiting to be engaged" (can freely move/leave) Required if employee is "engaged to wait" (has to stay in one spot to answer phones, etc.)
What to do if deciding against an ADA adaptation:
Perform an assessment of reasons not to Enact substitutes (binder of casket photos for those that can't get to showroom)
Can an executor be personally liable for bill?
Possibly if not clearly signing the contract as executor
Handles controversy over dead bodies/estates
Probate court
Property status of dead bodies
Quasi property (bundle of rights is associated for survivor but is not "owned"). Custody is only allowed for the purpose of disposition.
Length of time for possession
Reasonable. May be shortened due to contagious diseases or lengthened for justifiable reasons
Who pays tax on trusts interest?
The purchaser unless a QFT (qualified trust fund) status is elected which causes the policy to pay for tax. Collection/retention of funds is treated as ordinary income to FH
Ultimate authority:
U.S. Constitution
Authorization to cremate
(CANA) 1. ID of deceased (info & personal ID by viewing/waiver) 2.ID of Auth. Agent 3.Authority to authorize 4.Medical Devices 5.Authorization to cremate/process/pulverize (with description) 6.Disposition of personal property (what to do with jewelry, etc.) 7.Instructions for final disposition 8.Authority to dispose of unclaimed remains (60 days-1 year depending on state) 9.Recycling metal 10. Certification of Auth. agent's statements and indemnification of funeral home liability if incorrect
Funeral Contract
-Consumer agrees to purchase; FD agrees to supply - Oral (expressed or implied-family left directions with nursing home to call FH, FH can do removal) or written -between FH & estate/family/unrelated party (often backed by NOK to prove authorization if estate is insolvent)
disinterment in private interest
-dissatisfied with location -relocation -wrong plot in cemetery -abandoned/disrepaired cemetery *funeral director is often required to be present *statutory law is often in charge, otherwise case law +factors for consideration: degree of relationship, wishes of decedent, conduct pertaining to original interment, time, reasons, ability to provide comparable resting place, rights/principles of who granted first interment (religious, etc)
white collar exemption of employees meaning they are not covered by the FLSA
-executive employee:primary duty is management of enterprise (2+ employees -Administrators: office/non-manual jobs, requires discretion, office manage/personnel director -Professionals: learned job/advanced knowledge, usually after prolonged instruction, work requires discretion/judgement, intellectual work w/output not related to time -commissioned outside salesman -computer employees
Advantages of Insurance vs. Trust
-face amount escalator to increase payoff to meet inflation -tax free -funeral director as insurance agent may collect a commission (immediate compensation)
Factors for independent contractors
-free to perform on employer's premises or elsewhere -performing same service for other companies -set own hours of work -provide own equipment
SSI/ Medicaid regulations
-irrevocable trust funds for funerals are excluded from resources, often with no limit -if irrevocable contracts aren't allowed, burial space exclusions allow money to be set aside for plots/crypts/urns/caskets if owned by purchaser (not needed to be in possession of or even in existence yet). Rev. or irrev. -burial fund exclusions up to $1500 (revocable contracts, trusts, etc.) can cover what space exclusion doesn't
common breaches of funeral directors
-negligent embalming: fails to use skill and care of reasonably prudent person skilled in the area -negligent funeral directing -safeguarding the body -privacy -defective merchandise -transportation -aftercare: don't refer to as therapy, provide grief facilitation training, training to refer to psychiatrist/psychologist, under malpractice insurance
Determining qualification
-prerequisites for position -can perform essential tasks with reasonable accommodation -can't include assumption of future performance/advancement of disability/increase in heath insurance
Forms other than authorization necessary for cremation
-receipt of body at crematory -receipt of remains from crematory -receipt of remains by family -wishes to have funeral director scatter or ship -change in disposition plan -wishes to comingle remains
requirements for application of FLSA
-sales of over $500,000 (if not, still subject to overtime, child labor, recordkeeping if grossed-incl. cash advances $362,000 or more any year before 1990
Disinterment in public interest
-to gather evidence for criminal cases or civil (or insurance) cases with strong burden of proof -to provide public streets -to protect public health/water quality
common torts against funeral homes
-wrongful withholding of body -loss of body -mutilation (not punished if only making body available for autopsy/not participating) -injury to invitees (invited=higher degree of care as opposed to trespasser) -injury to pallbearers/clergy
Components of a right to disposition statute
1) A mechanism for individual to control own disposition 2) priority list 3) list of events/situations where RTC will be taken away (if they can't be located-40% of states, majority rules-50%, uncooperative/don't make arrangements in 48-72hrs- 30% of states, caused death-33%) 4) protections/immunities for FH/death care providers (right to rely/not investigate, recover costs due to delay while courts sort out dispute, broad immunity from civil/criminal actions if acting on good faith of representations of family
Can a funeral home be liable for actions of third party crematory?
Yes, site/policy checks should be routine
trusting requirements of preneeds
about half of states require 100% entrustment as average length until collection invites fraud
undue hardship
factors: -nature/cost of accommodation -resources of facility -number of employees at facility/employer -effect on expenses/resources -impact on the facility -resources of employer -number/type/location of facilities -type of operation of employer including workforce -geographic separateness of facility -admin/fiscal relationship of facility to employer
FLSA
fair labor standards act. covers minimum wage, overtime, equal pay. Wage and hour division of department of labor.
Guaranteed preneed
funeral expenses will not exceed initial payment + accruals
Necessity of disposition
government can require disposal of bodies and punish for abandonment or throwing them away (felony: 1-3 years)
overtime
if no white-collar exemptions apply, must be payed at least 1.5 times regular rate over 40 hours per week, not required to pay weekly
State liability of bill
if ordered by government, government may be responsible. Before agreeing to perform services, FD must check with state
Civil rights act
includes pregnancy discrimination act, ADEA, discrimination against race, color, religion, sex, natl. origin applies to employers with 15+ employees but state law may impose the same restrictions
Unauthorized disinterment of remains
indictable offense
Funeral Insurance
life insurance to fund a separate pre-need contract. Funeral home is designated as the beneficiary/assignee.
Methods of disposition
1) In-ground Burial- on property dedicated as a public or private cemetery (or family cemetery if on private property) 2) Above Ground Entombment 3) Burial at Sea -3 nautical miles from shore, must be weighted to permanently sink, sometimes depth requirements, must report to EPA 4) Donation to Medical Science *Cremation/Alkaline Hydrolysis- is a step towards disposition (can be retained by family, niche in columbarium, entombed, scattered at land or sea where allowed, 3 nm at sea and reported to EPA)
Funeral director's duties by law associated with torts
1) not interfere with the right of burial 2) keep grounds in reasonably safe condition
Disclosures often required by states
1) price of funeral & list of all services/merchandise included in funeral 2) price of supplemental goods/services 3) cash advances 4) method of payment MUST BE WRITTEN
Recordkeeping for FSLA employees (qualify for minimum wage/overtime)
1-personal info (name/address/SSN) 2-hour/day when work week begins 3-total hours each day and week 4-daily/weekly straight time earnings 5-regular hourly rate 6-total overtime per week 7-deductions/additions to wages 8-total wages each pay period 9-date of payment/pay period kept for 3 years except payroll which is kept for 6
Factors for reasonableness of funeral bill
1-size/solvency of estate 2-right of creditors 3-station in life (class/standing) of decedent 4-faith 5-fraternal memberships 6-custom 7-FD knowledge of decedent's finances (if they knew it was small, they won't approve a high bill) without these courts will not permit estate coverage of bill
ADA: withholding services
Against the law: refusing to embalm a body if universal precautions make it safe, not providing interpreters, additional charges for diseased bodies/interpreters Legal: refusing to embalm body that poses undue hazard (CJD case without proper equipment/expertise
Constructive possession
Body is physically in custody of someone other than the NOK
Actual possession
Body is physically within custody of NOK
Equal pay act
may not discriminate on sex alone for equal job and merits
Issues with determining regular rate of pay
meals/lodging-if primarily for employees benefit, fair value can be included in pay bonuses-production/attendance/commission bonuses are included in wages, discretionary/gift bonuses are not Expenses-reimbursements are not included in wages profit sharing-welfare/thrift plan programs are not included in wages vacation pay-sick days/holiday pay not included in wages
Accommodations
must be requested by the employee Conside:what are limitations/how to overcome, effectiveness, preferences don't have to be the best option but have to meet needs
Mental anguish
must have some physical IMPACT (not injury) to collect damages but there are ways around it: -intentional infliction of mental distress -contractual breach -negligent infliction -punitive damages (only for willful acts, not covered by liability insurance)
ADA violations
order to remove barrier + up to $50,000 for first offense, $100,000 for subsequent offense
door-to door sale
over $25 solicited by the seller at a place other than the establishment either responding to an invitation by the buyer or initiated themself, unless initial negotiations (more than a phone call) took place at the establishment
Interview of crematory management
ownership experience number of employees experience/training required equipment age/condition schedule detailed explanation of full process
Disability
physical/mental impairment that substantially limits 1+life activities
Common law
principles passed down hundreds of years to fill in gaps (who has the right to control/take possession)
Purpose of ADA employment coverage
protects qualified workers with a disability. Must be able to perform essential tasks with/without reasonable accommodations that don't cause undue hardship on employer. Does not set quotas or preferences for people with disabilities. Issued by EEOC
Record keeping for Civil Rights Act
records must be kept 6 months, preferably 3 years
Factors for cremation increase
relocation of elderly, influx of immigrants, higher education, environmental concerns, money concerns (36% in 2009)
Salaried vs. Hourly Workers
Employee can be hired as salary (300,000/year) but is still regarded as hourly (600/week, 15/hour) and must still be compensated time and a half (22.50) for hours over 40 per week
Funeral Director's Right to Disposition
FD has no control until a contract is established by them and NOK (expressly/implicitly)
Right to privacy
Family has a right to privacy and protection of the image of deceased (no protests 300' from funeral overrides freedom of speech as a more basic/universal respect)
Funeral home
Fixed place for conducting funerals and/or preparing bodies prior to disposition. Where funerals occur (other than religious estab. or public hall)
Minimum wage
set by state and federal, whichever is higher applies. Can be lower for apprentices/disabled but must apply for it
Yearly copies of crematory records that should be requested by funeral home
state license/permit policy/procedure manual membership for CANA/BBB/etc List of operators and certifications copies of liability insurance policies copies of auth/releases/receipts copy of state inspection reports copies of maintenance/inspection reports/logs used internally for equipment
Death
Most often the cessation of all brain [stem] functioning as opposed to the cessation of heart/respiratory activity
Excluding from services
NOK has authority to extend or revoke invitation, and fail to notify relatives of service details (FD should: have NOK sign indemnification form covering injury/damage due to exclusion, require hiring of a security service)
determining essential functions
to be used in court, employer must list all essential functions prior to advertising opening Consider: Importance of function to overall job, can/do other employees do it, specialization (must they do it because of personal expertise), amount of time spent doing it, consequences of having other employees do it or having it not be done, how long do current employees take to do it?
According to common law/some states, a husband is liable to pay for whose funeral whether or not he arranged, attended, or knew of a funeral or is separated?
wife or child (wife can be liable for husband's if estate is insolvent) unless superseded by a will
Licensing of pre-need suppliers
About half of states require them to be licensed funeral homes but almost all allow sale of goods pre-need
ADA priority list
1. access from sidewalks/parking/transportation 2. access to where goods/services are made available (chapel/office/showroom) 3. access to restrooms 4. access to all other accommodations (telephones, alarms, water fountains)
FTC Cooling-off regulation for door to door sales
1. must inform purchaser of the right to cancel up to midnight on the third business day after the transaction on a contract or receipt w/notice of cancellation form: -right to cancel -payments returned in 10 business days after receipt of notice -must make goods sold available at residence or arrange for shipping at seller's expense -if not picked up in 20 days you can keep/dispose -if not made available you are liable for the rest of the contract 2. can't include a waiver of right to cancel 3. can't transfer/sell/assign contract within five days of transaction 4. need to notify buyer in 10 days of receipt of cancellation that they will repossess goods
ADA creation
1990, if built after 1993 building should be in complete compliance
Unconditional right to transfer pre-needs
2/3 of the states
Funeral directors and FLSA
2004 update made 4-year FD's a professional (not covered by FLSA) 2011 court case made an embalmer exempt from FLSA even though the state only required a 2-year
States embalming requirement time frame
24-72 hours after death
Variable workweek arrangement/fluctuating workweek arrangement
Allows payment of half time as opposed to time and a half. Base weekly salary regardless of hours worked. To find hourly rate, divide guaranteed salary by hours given in any week (divided by 2 for half time compensation). Performance bonus/premium disqualifies someone for getting VWA
Nuisance
An invasion of landowner's right to use/enjoy land
Anatomical Gift Act
Anyone of sound mind/legal age can donate in will or document signed with 2 witnesses, sometimes the back of driver's license will suffice. Relatives may donate decedent. Anyone acting in good faith with Act is not liable.
ADA employment qualifications
Applies to businesses with over 15 employees. If part-time employees exists, ADA applies if there are 15+ total workers each day at least 20 weeks out of the year
zoning relating to retort building
Classified as accessory uses similar to a garage and often allowed on FH property
Burial insurance
Contract in which a funeral is provided and can't be used for anything else.
Licensing of funeral homes
Courts uphold state regulations that apply to public health/safety/welfare. Ex: can allow states to require owners to be licensed directors but can't require them to only manage one funeral home or not sell alcohol.
Permits funeral directors need to obtain to arrange proper disposition
Death certificate, burial permit, transit permit
Funeral homes as residences
Funeral directors are not permitted to operate an office out of their home since they are business not professionals (doctors/musicians)
dead body
Human being, without life, not entirely disintegrated (skeletons/cremated remains are not dead bodies)
Funeral homes as nuisances
If in a strictly residential area, nuisance suit may be successful; not in a mixed or commercial district since they are lawful and necessary
live-in caretaker
If living at establishment for extended time, can be compensated for only hours performing light duties and exclude hours of freedom to leave property/etc. in exchange for lodging or minimum wage for actual hours
Federal Law
Increased over the last 30-35 years, FTC/OSHA/ADA
Components of a contract
Itemization Cash Transaction- if credit transaction and FH qualifies as a creditor, many disclosures are necessary Late payment/Penalty charge- states may have a ceiling Collection fees- state law may prevent. If defaulted, arranger pays all fees of collection/reasonable attorney fee Estate Liability- arranger is liable for costs/penalties in addition to the state law making estate liable Joint/Several Liabilities-signers jointly and individually accept liability for payment Disclaimer of Warranties- implied warranties such as the casket being strong enough to hold the body are not to be held against the FH (illegal in 12 states incl. MN) i.e. made by manufacturer not FH
Once an issue is resolved by court, it controls future decisions; Court decision has precedence over established law
Stare decisis
Primary law of each state:
State constitution
Principal regulators of funeral professions
States (police power)
States delegate to:
administrative agencies (boards)
Public policy on disinterment
against
Licensing of FD as insurance agents
all states require insurance agents to be licensed, some prevent FD's from being licensed, some restrict amounts of policies
Drug addiction/Alcoholism
are disabilities under ADA but if currently using they are not protected (doesn't include sexual behavior disorders-homosexuality/trans, compulsive gambling, kleptomania, pyromania)
reward for violating FLSA
back wages of up to 2 years, 3 years if willful (possibly liquidated-doubled) and attorney fees
Revocable pre-needs
can receive all or some of policy based on state law
ADEA- age discrimination in employment act
covers people over 40
disadvantage to payment by estate
delay (up to a year)
Zoning ordinance
divides area into sections and specifies use. If zoning laws change, existing FH's may be grandfathered in but may not rebuild/renovate. Seek help from real estate attorney
violations of civil rights act
employee files claim with EEOC within 6 months, investigator interviews/inspects, 120 days after filing charge it's labeled cause/no cause-if no cause they have Right to Sue privately within 90 days, if cause settlement is attempted or EEOC can file an action or right to sue for employee
ADA purpose
ensures people with disabilities full use/enjoyment of public accommodations (funeral homes incl.). Barriers must be removed if readily achievable (w/out much difficulty or expense depending on size of business)
primary obligor
estate is primary liable for bill through money or real property and often payed 2nd priority (up to $4,000 for funeral expenses, 3,000 for cemetery) and 6th priority (up to 6000), then in general debts
