Funeral Directors Fight for Role in Cremation

By Gary Rotstein
Pittsburgh Post-Gazette
Legal battles brewing over firms that offer services in death without full licensing

August 15, 2004—Three generations of his family preceded Scottdale funeral director Robert B. Ferguson Jr. in his trade, but none had to embrace such a large shift in people's attitudes about what would come of their bodies after death.

Photo by V.W.H. Campbell Jr., Post-Gazette

Robert Ferguson Jr., director of Ferguson Funeral Home in Scottdale, in a room near his office which displays cremation urns and items. There is a growing controversy between funeral directors and cremation services over whether funeral directors must be involved as middlemen responsible for assisting a family with cremation.

Cremations on the rise

A mortality-focused consumer clicking on his Web site finds options relating to cremation packages, cremation merchandise and cremation services. Dial 1-800-CREMATION in Ferguson's service area of 26 ZIP codes, and he'll be happy to discuss any of those details with a customer shunning the more traditional and costly ideas of viewings and burial, for which caskets alone may cost thousands of dollars.

He's among the more entrepreneurial breed of funeral director in an industry known for staid tradition, but he's entered a legal battle with a still more aggressive form of death-related business.

Ferguson contends in a suit filed last month in Westmoreland County Common Pleas Court that a Harrisburg-based cremation service is unfairly, illegally trying to swipe his customers.

The Pennsylvania Funeral Directors Association has filed a similar complaint against the same firm, the Cremation Society of Pennsylvania, in Dauphin County court. Separately, the State Board of Funeral Directors, the regulatory agency, is investigating the company's practices.

At issue is whether Pennsylvania consumers must have a middleman, a funeral director from a licensed funeral home, somehow involved in their cremation. Lawyers are prepared to debate the point, but more clear-cut is the trend showing more people every year turned to ashes.

In 1980, about one in 11 Americans and one in 23 Pennsylvanians were cremated. Now it's the case with more than one in four deaths nationally. The percentage is almost that high in Pennsylvania, where the rate increased fivefold in slightly more than two decades.

The Cremation Association of North America keeps the statistics, projecting that more than one of three people will be cremated by 2010 if recent trends continue. The majority of people will still be embalmed, casketed and buried for the foreseeable future, but attitudes about cost, simplicity and the environment join the increased mobility of the population in cutting into that, said CANA Executive Director Jack Springer.

He said the trend had prompted a lot of businesses to target those customers well before death. Among those seeking advance contracts are funeral homes, cemeteries and crematories, which sometimes use the word "society" for their business if they market to the public instead of simply to funeral directors.

"Pre-need is the big buzzword in the industry," Springer said. "They would prefer to have you prepay, but if they've got you signed up, at least they've got first shot at your business later."

On his www.lovelasts4ever.com Web site, Ferguson tells people he hopes will register with him: "You are not alone in your consideration of cremation services as over 20 percent of Pennsylvania residents are now selecting cremation as a sensible alternative to traditional funeral services. ... They seek simplicity, affordability, and the dignity cremation provides."

The Cremation Society of Pennsylvania has its own Web site, but it's inaccessible right now, telling viewers it's "undergoing some changes."

Ferguson said an earlier version of that site and the society's printed advertisements offered funeral-related services in addition to cremation. Those included transportation of the body, preparation of documents and obituaries, and counseling about memorial services and sales of merchandise such as prayer and thank-you cards, urns and memorial markers, according to his suit.

"There are a number of organizations, it appears, that are trying to step into the funeral directors' turf, in effect, and that's what this company has been doing," contended Ferguson's attorney, James Lederach, of Scottdale. "Funeral directors mediate bereavement and handle our dead, and that is a valuable service. ... We haven't gotten to the point where people are willing to ship mother off to the Cremation Society of Pennsylvania in a brown wrapper."

The cremation society's attorney, Jordan Cunningham, of Harrisburg, said some of the complaints against the company were based on past practices, and that it no longer touted itself as arranging funeral or memorial services. The company also stopped having sales agents arrange contracts, he said, as a result of July 2002 Commonwealth Court ruling that an Eastern Pennsylvania cemetery had crossed into unlicensed funeral practice by having sales agents offer pre-need, funeral-related services, including cremation.

Because the cremation society now limits its services and has a funeral director handle contracts, Cunningham said, it does not believe its pre-need cremation sales violate any law. He said the society had about 14,000 contracts with people around the state who pay $35 to sign up as society members, entitling them to have their bodies picked up and disposed of at a discount rate at the time of death. Another 14,000 have paid the costs of that cremation service in advance of death.

Cunningham said Dale Auer, a Harrisburg funeral director, opened the crematory in 1981 and still owns it.

"He is a funeral director, but he sensed there are a number of people ... who had a strong dislike for funerals and funeral directors, so he wanted to provide an option. This was what he thought of as a low-cost option, for folks that don't want a traditional approach," Cunningham said, with the cremation society picking up bodies, transporting them to a crematory, and returning the remains with no fuss or bother.

Auer no longer operates either his cremation service or nearby funeral home, however, because the State Board of Funeral Directors suspended his funeral license for three years in January after a criminal conviction for tax fraud. Another funeral director now operates the businesses. The cremation society itself is not licensed as a funeral home, which is one of the legal objections raised against it.

"We take the position that, until otherwise proven, that what we do are not the acts [limited to a funeral home]," Cunningham said, adding that anyone should be able to arrange an obituary, process Social Security information or even transport a body.

The Pennsylvania Funeral Directors Association argues in its case that while funeral directors are required to secure 100 percent of a customers' advance payments in a trust account, the cremation society has been operating under a different "future interments" law used by cemeteries that guarantees only 70 percent of funds in a trust.

The association said that puts consumers' money at risk. Cunningham said the question of which law applies to the cremation service also had to be resolved in court, but that as a precaution for the past two years, the society had been placing 100 percent of funds in trust for new accounts instead of 70 percent.

Both Ferguson and the statewide association have filed complaints that are now years old against the cremation society with the State Board of Funeral Directors. The regulators have taken no action, which prompted lawyers to take the complaints to court.

Brian McDonald, a spokesman for the state board, said he was not permitted to comment on the status of any investigation before charges are filed. He said that many of the issues raised in the court cases were the same ones that would concern the board.

"As we've ruled, a cremation needs to take place under the supervision of a funeral director," McDonald said. "If an entity such as a cremation entity would take pre-need funds from the public, that, essentially, is working as a funeral director."

Pennsylvania's laws covering the funeral trade date primarily from the 1930s, when cremation was hardly considered. As to why there needs to be a funeral director involved as a middleman in 2004, there's more to death than just the disposition of a body, said Patrick Lanigan, owner of an East Pittsburgh funeral home and spokesman for the Allegheny County Funeral Directors Association.

"It's insurance to the consumer that things are done right and properly, because we have our licenses on the line," he said.

Ferguson said he realized from a survey in the late 1990s just how many more of his future customers would be choosing cremation, even in a conservative, small-town area. And when many of those customers mentioned they'd already been contacted by the cremation society, he knew he had to be more active.

"They were doing advertising like, 'Why call a funeral home when you can call us?' and that's blatantly rubbing it in our face," said Ferguson, who pays a combination funeral home-crematory in Donegal to cremate his clients who choose.

Ferguson openly advertises three levels of cremation services, ranging in cost from $895 to $3,320, depending on how much people want in traditional funeral home work such as viewings, visitations, cards and even use of a rental casket. He and Lanigan said the majority of people who are cremated still had some kind of service and use of a funeral home.

The Ferguson funeral home also has a room full of urns and other cremation-related merchandise, such as jewelry with a keepsake spot inside for ashes. It's part of his recognition that if people are going to change to a form of afterlife that carries a lower price than he's accustomed to, he'd better make the best of it, regardless of who his competitors are and how they operate.

"We lay all the cards on the table, the menu of options open to them," Ferguson said. "We have to be flexible."

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