MASSACHUSETTS FUNERAL DIRECTORS ASSOCIATION

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1 MASSACHUSETTS FUNERAL DIRECTORS ASSOCIATION Thomas A. O Donnell Chairman Massachusetts State Board of Funeral Services and Embalming 1000 Washington Street, Suite 710 Boston, MA Dear Chairman O Donnell: The Massachusetts Funeral Directors Association is the funeral directors professional community and is the recognized voice and resource for information on issues affecting the funeral service profession as well as the bereaved community that we are honored to serve in the many cities and towns throughout Massachusetts. Together we leverage our experience, expertise and influence to anticipate and address issues, to build skills, to develop practical solutions to business problems and to set the standard for quality service and ethical practice when serving bereaved families. MFDA represents over 500 funeral homes in the Commonwealth of Massachusetts and is the largest representative organization of funeral service professionals in New England. During the period of one year, our members provide services for over 47,000 families and during that same period over 3,500,000 people visit our member funeral establishments. On behalf of the membership of the MFDA we would like to thank you for the opportunity to comment on these proposed amendments. While we expect that we will have additional comments to submit, we want to share the following thoughts with you today: 239 CMR 3.0: REGISTRATION REQUIREMENTS; STANDARDS OF BUSINESS AND PROFESSIONAL PRACTICE 3.02(5): REGISTRATION REQUIREMENTS We encourage the Board to provide a definition of inactive status (2): EMPLOYMENT APPRENTICE EMBALMERS The Board indicates that employment at one funeral home on a full time basis as 30 hours per week. We support the registration to one funeral home however we believe the requirement of 30 hours per week employment requires more discussion as this may change week to week depending upon the size of the funeral home and its caseload. We believe 30 hours may also trigger some legal requirements that need to be discussed further. We would suggest that the Board consider a previously established policy that on-call hours count toward full-time employment status. This will be of great assistance to full-time students who are serving an apprenticeship concurrently with their full-time schooling.

2 Page 2 of (3)(f): OWNERSHIP OF LICENSED FUNERAL ESTABLISHMENTS; DISCLOSURE OF OWNERSHIP We believe that there needs to be more discussion about a specified time frame for the Board to consider requirements of the issuance of a new establishment certificate. We agree that this should not be unreasonable in the sense that it would force a spouse to liquidate or sell the business. It is also unclear if the services of a validly registered Type 3 means that the spouse must provide a percentage of ownership of the business to this Type 3 or retain a Type 3 licensed at another funeral establishment. 3.09(C): CONTROL OVER ARRANGEMENTS AND DISPOSITION OF HUMAN REMAINS This section should be amended to the latest statement of wishes effective. The current version of this section actually used the order of priority established under an older version of the MA Uniform Anatomical Gift (now, MGL c. 113A s.9). This order was established by the Massachusetts legislature. Because the order of priority in the Board s proposed regulation differs from the order in the MA Uniform Anatomical Gift Act, a situation could arise where different people are making decisions regarding organ donation and funeral arrangements for the same decedent which could lead to conflict. We encourage the Board to revisit this section. We believe that requiring funeral directors to follow the direction of the oldest adult child (or sibling) of a decedent could be problematic. One possible solution is for the Board to amend section 3.00 (c) to state that the decision of a majority of the decedent s adult children will control. This is the approach taken by the Massachusetts legislature under the MA Uniform Anatomical Gift Act. (We would also suggest this be considered for other classes of right of disposition -i.e. surviving grandparents, adult grandchildren.) We assuming that any other person.. most likely refers to a person appointed by a court to possess the body and make such decisions (e.g., if the decedent did not have any next of kin). We assume this also refers to the decedent s health care agent or attorney in fact at the time of his or her death because 239 CMR 3.11(2)(e) allows authorizations to be given by the decedent s legal representatives, health care agent or attorney in fact. We would encourage the Board to consider the following: Any person signing a funeral service agreement, cremation authorization form or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated or otherwise disposed of and the party s authority to order such disposition. A funeral establishment shall have the right to rely on such funeral service contract or authorization and shall have the authority to carry out the instructions of the person or persons whom the funeral establishment reasonably believes holds the right of disposition. The funeral establishment shall have no responsibility to contact or independently investigate the existence of any next of kin or relative of the deceased.

3 Page 3 of : CONDUCT OF FUNERALS The Board may want to consider offering some guidance about who can be considered a duly authorized legal representative of the deceased. This regulation requires that funeral directors obtain written permission from next of kin (or legal representative) prior to embalming a decedent or acknowledgement of a decision not to embalm. This mirrors the requirement of the Federal Trade Commission Funeral Rule. The Board should be aware that this conceivable gives the next of kin the ability to prevent the decedent s expressed wishes from being carried out. We suggest that this regulation and FTC rule may make it difficult for a funeral director to comply with 239 CMR 3.09 and may require some more review We have a concern about the requirement that a provision of food and beverage must be treated as a cash advance when funeral directors must comply with 3.14 (2): Price Disclosure to Consumer. Funeral services and memorials are moving beyond traditional events to more personalized, custom or perhaps celebratory ones including food and beverage service. This is evidenced by the action of the legislature to direct the Board to write rules to allow those funeral establishments that want to offer this service the ability to do so. The coordination of this service can take a significant amount of time by staff to research vendors, negotiate rates, order items, inspect them, insure their timely arrival and placement, storage, return, etc. The Federal Trade Commission through their rule making process and promulgation of this cash advance disclosure rule has taken the position that cash advances are a reality of the funeral business and as long as the fee is disclosed to the consumer it is a fair business practice. Otherwise, all consumers will pay for the overhead costs (clean-up, repair/replacement of damages to carpet/furniture, staff time for coordination, waste management, etc.) needed to offer food and beverages through an increase in the professional services fee. By allowing the mark up these services, only consumers who select this option need pay the additional costs and allow the funeral establishment to recover some revenue to underwrite the expense of the increased overhead costs. Other providers can recover their costs that increase their operating expenses by marking up the items that only some consumer s request. It is unclear why a funeral establishment would be prohibited from doing so if this was disclosed to the consumer which is a very transparent arrangement. If the Board is unwilling to eliminate the requirement regarding cash advances then it should eliminate the requirement that food and beverage service be treated as a cash advance. (See 3.14 (2) below). 3.13(6): CODE OF CONDUCT AND PROFESSIONAL ETHICS We believe that the requirement to complete an embalming report should be a best business practice rather than a rule of the Board.

4 Page 4 of 7 3:14(2): PRICE DISCLOSURE TO CONSUMER As discussed above in 3.11 CONDUCT OF FUNERALS we encourage the Board to remove this section and instead adopt or reference the requirement to comply with the Federal Trade Commission Funeral rule in regard to cash advances. This rule and guidance from the FTC 16 CFR S453.3 Misrepresentations reads as follows: Cash Advance Items The third disclosure relates to your charges for your services in buying cash advance items. If you charge for purchasing a cash advance item, or if you receive and retain a rebate, commission, or trade or volume discount for a cash advance item, you must make the following disclosure: We charge you for our services in obtaining: (specify cash advance items): You must place this disclosure in immediate conjunction with (directly next to) the list of itemized cash advance items on your Statement and specify those cash advance items to which the disclosure applies. You should not put the disclosure on a separate page or elsewhere on the Statement apart from the list of itemized cash advance items. 239 CMR 4.0: PRENEED CONTRACTS AND ARRANGEMENTS: 4.01: DEFINITIONS Definition of Irrevocable - Something similar to the following should be added to the definition: The term also applies to a Pre-Need Funeral Contract (or portion thereof) that becomes irrevocable upon the death of a beneficiary or at any earlier time. Definition of Revocable It is unclear if a contract may be terminated by the Buyer (if not also the Beneficiary). If the Board s intention is to allow the Buyer to terminate, that should be mentioned in this definition. 4.02(5)(ii): CREATION AND CONTENT OF PRENEED CONTRACTS We suggest you add in and license number following signature. 4.02(5)(g): CREATION AND CONTENT OF PRENEED CONTRACTS This section should address the fact that contracts may be partially Revocable and partially Irrevocable. 4.02(5)(k) : CREATION AND CONTENT OF PRENEED CONTRACTS The reference in the first line of this section should be to 239 CMR 4.02(5)(i). 4.02(4)(g) : CREATION AND CONTENT OF PRENEED CONTRACTS We suggest you add in or transfer.

5 Page 5 of (4)(i) : CREATION AND CONTENT OF PRENEED CONTRACTS 4.02(5)(f)(iv) We suggest that the written confirmation of a preneed trust also include the signature of the Trustee. This requirement is currently only imposed upon insurance companies. We suggest that you require that the contract include the address and contact information for the Trustee or insurance company to better enable consumer access if needed. 4.03(1): NOTICE OF CHANGES AFFECTIING PRENEED FUNERAL CONTRACTS a) Is a funeral director to whom a buyer or beneficiary wishes to transfer a funeral contract required to assume it? The regulation suggests that there is a right to transfer, but what happens if no funeral director agrees to assume the contract? b) This section fails to address what happens if the contract is only partially Revocable. c) Does a funeral director ceasing operations under this section have to find a transferee funeral director? Nothing in 4.03(1) requires that the notice include the identity of the transferee funeral director; this notice requirement should be added. d) We would also like further discussion about the sale of distressed funeral homes and the Board s position on the service of what are potentially less intact and/or less funded contracts. 4.03(2)(c): NOTICE OF CHANGES AFFECTING PRENEED FUNERAL CONTRACTS This section fails to address what happens if the contract is only partially Revocable. 4.04: AMENDMENT OF PRENEED FUNERAL CONTRACT 1) This section does not address what happens if the buyer and his legal representative are no longer around. It seems that the beneficiary should have the right to join with the funeral director to amend the contract. Obviously, this paragraph only applies to that portion of a contract that is revocable; that fact should be made clear. 2) This section should begin by stating that an Irrevocable Preneed Funeral Contract (or portion thereof that is irrevocable) shall not be amended or modified in any circumstance. a. This section only refers to contracts that are Irrevocable at the time originally made. It should also apply to contracts (or portions thereof) that are made irrevocable at any time after originally executed. b. Same comment. Irrevocable means that the contract can t be modified whether or not it contains a price protection provision. 4.05: SUBSTITUTION OF GOODS AND SERVICES As this section is currently drafted, if a good or service to be provided under a contract is unavailable at the time it is to be performed, the funeral director is required to provide a good or service selected by the buyer (or beneficiary s next of kin) whose market value is equal to or greater than the value of the unavailable good or service. What if there is a substitute whose value is the same, and another whose value costs substantially more than the unavailable item? Should the selection be made by the funeral director, rather than the buyer or next of kin?

6 Page 6 of (1): TRANSFER OF PRENEED CONTRACTS This section should address what happens if the buyer and his legal representative are no longer around. Shouldn t the beneficiary also be able to invoke this provision? 4.07(3): CANCELLATION OF PRENEED FUNERAL CONTRACTS This section should refer to contracts, or portions thereof, that are Revocable at the time it is proposed to be canceled. A contract that is Revocable at the time of creation, may have subsequently been made Irrevocable. Shouldn t the beneficiary have the right to cancel if the buyer and his legal representative are no longer around? 4.07(4): CANCELLATION OF PRENEED FUNERAL CONTRACTS Same comment. A contract may become Irrevocable after the time it was originally created. This provisions should also apply to those contracts. 4.08(4)(d): RESTRICTIONS ON USE OR DISPOSITION OF FUNDS RECEIVED IN CONNECTION WITH PRENEED FUNERAL CONTRACTS This section suggests that a beneficiary has a cancellation right under As noted above, the beneficiary does not currently have that right under (5)(a): FUNERAL TRUST ACCOUNTS This section states that if the funeral director does not provide services for the beneficiary after his death, the funeral trust is to pay over the trust assets to the beneficiary s estate. Is it the Board s intention that this be the case with a trust account associated with a fully irrevocable pre-need contract? Doesn t this arguably permit someone in possession of the decedent s body, who doesn t want the services/burial contracted for by the decedent, to simply not deliver the body to the funeral director, make separate arrangements without telling the new funeral director about the prior contract or written instructions, and collect the trust assets if that person is a beneficiary of the estate? Is this the intention of the Board? 4.12(5): RECORDKEEPING REQUIREMENTS We ask the board to consider a slightly longer time frame to submit the report. While we recognize that the board needs timely information, the requirement that this be submitted 31 days after the close of the calendar year will impose a burden on businesses that must complete many other end of calendar year business requirements. We would suggest that this be extended another 30 days, perhaps to March 1 st, if possible. 4.12(5)(c): RECORDKEEPING REQUIREMENTS We recommend that this be amended to include the number of contracts per funding method for the preceding calendar year. This will help the board better track contracts and funding methods. This was included in prior versions of the preneed report and it is unclear why it was changed as it results in less transparent reporting.

7 Page 7 of 7 We thank you for the opportunity to submit these comments and look forward to additional dialogue with the Board regarding these and other issues. Our Board of Directors is schedule to meet on September 21, 2016 and will hopefully have the opportunity to submit comments following that meeting as well as the public session scheduled for the 20 th. Sincerely, MASSACHUSETTS FUNERAL DIRECTORS ASSOCIATION Courtney Fitzgibbons Mrs. Courtney A. Fitzgibbons President Boston Harborside Home of JS Waterman & Son-Waring-Langone Boston Harborside Home Boston, Massachusetts Clarence Lyons Mr. Clarence R. Lyons Secretary/Treasurer C. R. Lyons & Sons Inc. Danvers, Massachusetts Christopher Berg Mr. Christopher W. Berg First Vice President Chapman, Cole & Gleason Funeral Home & Cremation Services Wareham, Massachusetts Frederick Dello Russo, Jr. Mr. Frederick N. Dello Russo Jr. Immediate Past President Dello Russo Funeral Service Medford, Massachusetts Adrianne Faggas Adrianne F. Faggas Second Vice President Faggas Embalming Service Watertown, Massachusetts Peter Zaksheski Mr. Peter A. Zaksheski Past President ANTHONY MEMORIAL FUNERAL HOME Chelsea, Massachusetts For further information contact: Margaret M. Nolan, Executive Director 536 Broad Street, #2, Weymouth, Massachusetts Tel: // Fax: // mnolan@massfda.org // Web: CC: Members of the Massachusetts State Board of Funeral Services and Embalming Peter A. Stefan, Secretary; Patrick Driscoll, Member; Carolyn R. Lindsay, Member; Paul Phaneuf, Member