March 15, 2011---The Commonwealth of Pennsylvania has abused its power by threatening a family with prosecution and a $10,000 fine, all because they cared for their mother's body and arranged her funeral without hiring a commercial funeral home. Prosecuting attorney Shawn Smith (who works for the state funeral regulatory board that's supposed to protect consumers) sent a letter stating Ingold had "perform[ed] tasks relating to your mother's funeral and burial, including storage and preparation of the body, for which licensure as a Funeral Director is clearly required." This will be news to many families and hospice nurses; are they breaking the law by allowing their dead grandmother to rest in bed at home while the daughter combs her hair and dresses her?. . .
NOTE-All letters and documents referenced in this article are linked at the bottom of the page.
Smith's letter noted that the state had closed its investigation and decided not to file formal charges, but that "future complaints of this nature . . . could result in up to a $10,000 penalty per violation, and imposition of the costs of investigation." Smith refused to disclose to Ingold just who filed the complaint (undoubtedly a disgruntled funeral director), citing "confidentiality."
It's important to be clear: Pennsylvania law does not prohibit families from caring for their own dead. One is not required to hire a funeral director if the family prefers to file the death certificate, obtain the burial permit, and arrange the disposition themselves. Indeed, the state health department has acknowledged this and has been most helpful guiding families on completing the vital statistics forms. The laws attorney Smith cited appear in the occupations and professions section of the statutes. They are clearly written to govern the conduct of commercial funeral directors who sell their services to the public, a legitimate form of regulation. They do not bar private families from acting as their own funeral directors. Similarly, one needs a license to run a restaurant, but one doesn't need the health department's permission to cook for guests at a dinner party. If you open a daycare you're subject to licensure, but no state would dream of claiming that parents were required to hire licensed daycare workers instead of minding their children at home.
Lisa Carlson, executive director of Funeral Ethics Organization, wrote a letter to the state insisting on an apology for Gingold and an acknowledgement of families' rights to private funerals. After all, it's well-known that Pennsylvania Amish have been burying their own for generations (and we doubt the state would have the nerve to interfere).
The state dug in its heels. Anita Shekletski, senior prosecutor for the Governor's Office of the General Counsel, responded to Carlson with some some quite surprising claims about Phyllis Ingold's "illegal" activities:
Her mother's body was kept in Ms Ingold's home for four days and prepared for burial by Ms. Ingold. A public viewing was also arranged by Ms. Ingold. The filing of death certificates and burial permits as well as arrangements for caskets and outerburial [sic] container delivery were also handled by Ms. Ingold. Finally, Ms. Ingold authorized the grave opening and the burial service at the cemetery. At no time was a licensed funeral director involved.
Let's examine this:
- There is no law in Pennsylvania requiring the body to be removed from the home within a certain period of time. Standards for commercial funeral directors require embalming, refrigeration, or a sealed casket after 24 hours, but these do not apply to private families at home.
- "A public viewing was arranged by Ms. Ingold"? What's "public" about inviting family to the home for a traditional private wake? Regardless, there is no law against inviting guests to a private home ceremony.
- "Arrangements for casket and outerburial container delivery were also handled by Ms. Gingold," and "Ms. Ingold authorized the grave opening and the burial service at the cemetery." So, it's legal for Ingold to call a funeral director and arrange to have a casket and vault ready, and to authorize the time and type of the burial service, but it's illegal for her to call the cemetery and say the same thing?
The state's position lacks legal and logical coherence. The Pennyslvania funeral directing laws list a number of activities that constitute the profession of funeral directing: transporting bodies, selling funeral merchandise, care and preparation of the body, etc. But that does not mean that one is required to obtain a license to do these things for one's own family. State laws also define what it means to run a nursing home (and probably include a similar list of activities such as washing and bathing patients), but we are not barred from caring for our dying relatives in their own bed at home.
Phyllis Ingold has sent a letter to the Disciplinary Office of Counsel-in-Charge, the body responsible for disciplining lawyers, asking for action against Shawn Smith. Funeral Consumers Alliance joins her, and we implore the state to rein in its overzealous prosecutors. These actions against a PA family are not only without legal basis (the state funeral board has no regulatory jurisdiction over private families who care for their own dead) they're a flagrant abuse of power. Regulators must never lose sight of the fact that their job is to protect the public from unscrupulous businesses, not to protect the profits of those businesses by threatening legal action against families who choose not to patronize them.