Jerry Kopel

It Ain't Necessarily So....

Lyrical words written by Ira Gershwin for the musical Porgy and Bess also apply to the legislature.

An unregulated crematorium in Georgia didn't do its job. Hundreds of bodies were found on adjacent crematorium property. Georgia does regulate morticians, so is it logical for some Colorado legislators to urge that our state again regulate morticians?

They should have at least looked at Colorado law and read a little mortuary history. Colorado does regulate mortuaries under the Colorado Mortuary Science Code. The law describes what a funeral establishment must contain, provisions for proper embalming, refrigeration, and cremation.

The law provides that "ANY violation of any of the provisions of this act is punishable by a fine of up to $5,000 and two years in jail." Consumer protections are listed, but a federal statute enforced by the Federal Trade Commission pre-empts state statutes on consumer disclosures unless state requirements are stronger. Our law is certainly stronger as to time in jail. And our law covers numerous violations in handling a body by a mortuary science practitioner that can also lead to jail.

Funeral homes still register with the Colorado Dept. of Health for purposes of disposition of bodies, but morticians are not licensed.

The legislature passed a law in 1976 to review what occupational regulation was needed. It's called the "Sunset" law. In 1977, the state auditor, who reviewed the mortuary law, called for repeal of the mortuary board and licensing of morticians. The legislature agreed, but with a one year wind-down period. In 1978, the legislature reinstated the mortuary law, but with a 1981 repeal.

In 1981, the Senate voted to continue the board and licensing, but the House refused, voting 41 to 19 to kill the board and licensing. The repeal was effective in 1982. In 1983, I successfully carried a bill to retain all other regulations and consumer protections in the Mortuary Science Law.

In 1990, part of the funeral industry asked the Dept. of Regulatory Aghencies (DORA) to reconsider registration and licensing by a state appointed mortuary board. DORA came to the same conclusion as the state auditor: It wasn't needed. The legislature agreed.

Are there problems? Almost all consumer complaints deal with pre-need funeral contracts. That's handled by the Dept. of Insurance. The few complaints regarding deceptive trade practices, failure to disclose conditions, overcharging, are regulated either by the FTC, or the Colorado Consumer Protection Act, and also enforced by the consumer office of the attorney general or the district attorneys.

The State Health Code, the Occupational Health and Safety Adm., and the Environmental Protection Agency rules and regulations deal with other funeral aspects relating to communicable diseases and waste products.

DORA's review of 1990 found two examples of malpractice out of many thousands of deaths that had occurred since the board was repealed in 1981.

A transport service picked up the wrong body and delivered it for cremation. In Montrose, Frank Tucker, a former district attorney turned mortician, was sued for improperly preparing a traffic accident victim for cremation. There was allegedly garish makeup, and the debris from the accident had not been removed. Tucker lost the case and filed for bankruptcy.

Fears since 1983 that "everyone would claim to be a mortician" and that the number of funeral homes would expand proved unfounded.

At the request of several legislators and industry members, DORA will review a proposal to reinstate the mortuary board and license morticians. A bill may be introduced in 2003.

(Jerry Kopel served 22 years in the state legislature.)

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