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FTC Funeral Service Regulations and Prior Approval for Embalming

 

Funeral service providers can charge a fee for embalming in one of the following three circumstances:

1. State or local law requires embalming under the particular circumstances regardless of any wishes the family might have. If this is the case, the funeral service provider must note on the itemized Statement of Funeral Goods and Services Selected that embalming was performed because of a legal requirement and briefly explain that requirement. (Also see the discussion in Misrepresentations Prohibited by the Rule.)

Note: Federal law does not require embalming under any circumstances.

2. The funeral service provider has obtained prior approval for embalming from a family member or other authorized person. (The Rule does not address the issue of who is an "authorized person" to give such approval. That is a matter of state or local law.) They must get express permission to embalm; it cannot be implied.

Example: A family states that they want a viewing before burial and asks you to "prepare" the deceased. The funeral service provider must specifically ask the family for permission to embalm and must receive their permission before embalming the body.

In order to obtain the family's express consent to embalm, the funeral service provider must: 1) specifically ask for and obtain their permission, and 2) not misrepresent when embalming is required.

Example: While making funeral arrangements, the funeral service provider tells a family they will be charged for embalming, no matter what type of funeral arrangements they choose. If they agree to the funeral arrangements in general, this does not constitute express consent to embalm. In addition, if providers charge a family for embalming here, they would be charging a second non-declinable fee that violates the Rule.

When an individual makes preneed arrangements and gives express approval for embalming at that time, the funeral service provider does not need to get any additional approval to embalm at the time of death.

The Rule does not require the funeral service provider to get the permission in writing, as long as it is express approval. Some states, however, may require written authorization.

On the Statement of Funeral Goods and Services Selected, funeral service providers must explain the reason they charged a fee for embalming. The reason may be that the family requested this service. However, if they tell a consumer that embalming is required for a specific reason (e.g., viewing or legal requirement), then they should list this specific reason on the Statement. Simply noting "family consent" for embalming does not convey the reason for embalming, only that the family has consented.

3. All of the following apply:

  1. The funeral service provider is unable to contact a family member or other authorized person after exercising due diligence. In trying to contact the family, the provider must exhaust all means known, given the time constraints. Note: If refrigeration is available, the provider may be required to take more steps to contact the family and to obtain embalming authorization than if no refrigeration is available.

  2. The funeral service provider has no reason to believe that the family does not want embalming performed.

  3. After embalming the body, providers obtain subsequent approval. In seeking approval, they must tell the family that if they select a funeral where embalming would be required (such as a funeral with formal viewing), they will charge a fee, but that they will not charge a fee if the family selects a funeral where embalming would not be necessary (such as a direct cremation with a memorial service). If the family then expressly approves embalming or chooses a funeral where embalming is required, the funeral service provider may charge them for the embalming performed. But, if the family chooses a funeral where no embalming would be required, they cannot charge for the embalming.

The required disclosure regarding embalming on the itemized Statement (see Statement of Funeral Goods and Services Selected: Cost Information and Disclosures under Embalming) will let consumers know that they do not have to pay for embalming if the provider did not get their prior approval.

 

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