HB5025ham001 93RD GENERAL ASSEMBLY

Consumer Protection Committee

Adopted in House Comm. on Mar 03, 2004

09300HB5025ham001 LRB093 16110 RXD 47571 a

AMENDMENT TO HOUSE BILL 5025

AMENDMENT NO. ______. Amend House Bill 5025 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Funeral Practices Act.

Section 5. Definitions. In this Act:

"Alternative container" means an unfinished wood box or other non-metal receptacle or enclosure, without ornamentation or a fixed interior lining, which is designed for the encasement of human remains and which is made of fiberboard, pressed-wood, composition materials, with or without an outside covering, or like materials.

"Cash advance item" means any item of service or merchandise described to a purchaser as a "cash advance", "accommodation", "cash disbursement", or similar term. A cash advance item is also any item obtained from a third party and paid for by the funeral provider on the purchaser's behalf. Cash advance items may include, but are not limited to, cemetery or crematory services, pallbearers, public transportation, clergy honoraria, flowers, musicians or singers, nurses, obituary notices, gratuities, and death certificates. Cash advance items are not subject to the provisions of the Unemployment Insurance Act.

"Casket" means a rigid container which is designed for the encasement of human remains and which is usually constructed of wood, metal, fiberglass, plastic, or like material, and ornamented and lined with fabric.

"Casket retailer" means a person who sells or offers to sell caskets.

"Commission" refers to the Federal Trade Commission.

"Cremation" means a heating process which incinerates human remains.

"Crematory" means any person, partnership, or corporation that performs cremation.

"Direct cremation" means a disposition of human remains by cremation, without formal viewing, visitation, or ceremony with the body present.

"Funeral ceremony" means a service commemorating the deceased with the body present.

"Funeral goods" means the goods which are sold or offered for sale directly to the public for use in connection with funeral services by a funeral home, cemetery, crematory, casket retailer, memorial retailer or their employees and agents.

"Funeral provider" means any person, partnership, corporation, or other entity that sells or offers to sell funeral goods or funeral services to the public.

"Funeral services" means (a) any services which may be used to: (1) care for and prepare deceased human bodies for burial, cremation, or other final disposition; and (2) arrange, supervise, or conduct the funeral ceremony or the final disposition of deceased human bodies; and (b) any services provided by a funeral home, cemetery, crematory, casket retailer, memorial retailer, or their employees and agents.

"Immediate burial" means a disposition of human remains by burial, without formal viewing, visitation, or ceremony with the body present, except for a graveside service.

"Memorial retailer" means a person who sells or offers to sell to the public any memorial intended to mark the location of the interment of human remains.

"Memorial service" means a ceremony commemorating the deceased without the body present.

"Outer burial container" means any container which is designed for placement in the grave around the casket including, but not limited to, containers commonly known as burial vaults, grave boxes, and grave liners.

"Person" means any individual, partnership, corporation, association, government or governmental subdivision or agency, or other entity.

"Services of funeral director and staff" means the basic services, not to be included in prices of other categories in paragraph (4) of subsection (b) of Section 10, that are furnished by a funeral provider in arranging any funeral, such as conducting the arrangements conference, planning the funeral, obtaining necessary permits, and placing obituary notices.

Section 10. Price disclosures.

(a) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for a funeral provider to fail to furnish accurate price information disclosing the cost to the purchaser for each of the specific funeral goods and funeral services used in connection with the disposition of deceased human bodies, including but not limited to, the price of embalming, transportation of remains, use of facilities, caskets, outer burial containers, immediate burials, or direct cremations. Any funeral provider who complies with the preventive requirements of subsection (b) of this Section is not engaged in unfair or deceptive acts or practices.

(b) Preventive requirements. To prevent unfair or deceptive acts or practices as defined in subsection (a) of this Section, as well as the unfair or deceptive acts or practices defined in subdivision (b)(1) of Section 20, a funeral provider must:

(1) Tell persons who ask by telephone about the funeral provider's offerings or prices any accurate information from the price lists described in paragraphs (2) through (4) of this subsection (b) and any other readily available information that reasonably answers the question.

(2) Give a printed or typewritten price list to people who inquire in person about the offerings or prices of caskets or alternative containers. The funeral provider must offer the list upon beginning discussion of the caskets. The list must contain at least the retail prices of all caskets and alternative containers offered which do not require special ordering, enough information to identify each, and the effective date for the price list. The list must contain the name of the funeral provider's place of business and a caption describing the list as a "casket price list". Instead of a written list, other formats, such as notebooks, brochures, or charts may be used if they contain the same information as would the printed or typewritten list and display it in a clear and conspicuous manner. A funeral provider does not have to make a casket price list available if the funeral provider places on the general price list the information required under paragraph (4) of this subsection (b).

(3) Give a printed or typewritten price list to persons who inquire in person about outer burial container offerings or prices. The funeral provider must offer the list upon beginning discussion of the containers. The list must contain the retail prices of all outer burial containers offered which do not require special ordering, enough information to identify each container, and the effective date for the prices listed. The list must contain the name of the funeral provider's place of business and a caption describing the list as an "outer burial container price list". Instead of a written list, the funeral provider may use other formats, such as notebooks, brochures, or charts, if they contain the same information as the printed or typewritten list and display it in a clear and conspicuous manner. A funeral provider does not have to make an outer burial container price list available if the funeral provider places on the general price list the information required under paragraph (4) of this subsection (b).

(4) Give a printed or typewritten price list for retention to persons who inquire in person about the funeral goods, funeral services, or prices of funeral goods or services offered by the funeral provider. The funeral provider must give the list upon beginning discussion of any of the following: (i) the prices of funeral goods or funeral services, (ii) the overall type of funeral service or disposition, or (iii) the specific funeral goods or funeral services offered by the funeral provider.

(A) The requirement under this subsection (b) applies whether the discussion takes place in a funeral home or elsewhere. However, when the deceased is removed for transportation to the funeral home, an in-person request at that time for authorization to embalm, required by paragraph (2) of subsection (a) of Section 25, does not by itself trigger the requirement to offer the general price list if the provider, in seeking prior embalming approval, discloses that embalming is not required by law except in certain special cases, if any. The requirement under this subsection, to give consumers a general price list, applies to any other discussion during that time about prices or the selection of funeral goods or services.

(B) The list required under this paragraph (4) must contain at least the following information:

(i) The name, address, and telephone number of the funeral provider's place of business;

(ii) A caption describing the list as a "general price list"; and

(iii) The effective date for the price list.

(5) Include on the price list, in any order, the retail prices, expressed either as the flat fee, or as the price per hour, mile, or other unit of computation, and the following information if offered for sale:

(A) Forwarding of remains to another funeral home, together with a list of the services provided for any quoted price;

(B) Receiving remains from another funeral home, together with a list of the services provided for any quoted price;

(C) The price range for the direct cremations offered by the funeral provider, together with:

(i) a separate price for a direct cremation if the purchaser provides the container;

(ii) separate prices for each direct cremation offered including an alternative container; and

(iii) a description of the services and container included in each price;

(D) The price range for the immediate burials offered by the funeral provider, together with:

(i) a separate price for an immediate burial if the purchaser provides the casket;

(ii) separate prices for each immediate burial offered including a casket or alternative container; and

(iii) a description of the services and container included in that price;

(E) Transfer of remains to funeral home;

(F) Embalming;

(G) Other preparation of the body;

(H) Use of facilities and staff for viewing;

(I) Use of facilities and staff for funeral ceremony;

(J) Use of facilities and staff for memorial service;

(K) Use of equipment and staff for graveside service;

(L) Hearse; and

(M) Limousine.

(6) Include on the price list, in any order, the following information:

(A) The price range for the caskets offered by the funeral provider, together with the statement: "A complete price list will be provided at the funeral provider's location."; or the prices of individual caskets, disclosed as provided under paragraph (2) of this subsection (b).

(B) The price range for the outer burial containers offered by the funeral provider, together with the statement: "A complete price list will be provided at the funeral provider's location."; or the prices of individual outer burial containers, disclosed as provided under paragraph (3) of this subsection (b).

(C) The price for the basic services of the funeral director and staff, together with a list of the principal basic services provided for any quoted price and, if the charge cannot be declined by the purchaser, the statement: "This fee for our basic services will be added to the total cost of the funeral arrangements you select. (This fee is already included in our charges for direct cremations, immediate burials, and forwarding or receiving remains).". If the charge cannot be declined by the purchaser, the quoted price shall include (i) all charges for the recovery of unallocated funeral provider overhead, and a funeral provider may include in the required disclosure the phrase "and overhead" after the word "services", or (ii) the following statement: "Please note that a fee of (specify dollar amount) for the use of our basic services is included in the price of our caskets. This same fee shall be added to the total cost of your funeral arrangements if you provide the casket. Our services include (specify)." The fee shall include all charges for the recovery of unallocated funeral provider overhead, and a funeral provider may include in the required disclosure the phrase "and overhead" after the word "services". The statement must be placed on the general price list together with the casket price range, required under paragraph (2) of this subsection (b), or together with the prices of individual caskets, required under paragraph (2) of this subsection (b).

(7) Give an itemized written statement for retention to each person who arranges a funeral or other disposition of human remains, at the conclusion of the discussion of arrangements. The information may be included on any contract, statement, or other document which the funeral provider would otherwise provide at the conclusion of discussion of arrangements. The statement must list the following information:

(A) The funeral goods or funeral services selected by that person and the prices to be paid for each good or service;

(B) Specifically itemized cash advance items. These prices must be given to the extent then known or reasonably ascertainable. If the prices are not known or reasonably ascertainable, a good faith estimate shall be given and a written statement of the actual charges shall be provided before the final bill is paid; and

(C) The total cost of the goods or services selected.

(8) Give any other price information, in any other format, in addition to that required under subdivisions (b)(1) through (b)(7) of this Section.

Section 15. Misrepresentations.

(a) Embalming provisions.

(1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to:

(A) Represent that State or local law requires that a deceased person be embalmed when such is not the case; or

(B) Fail to disclose that embalming is not required by law except in certain special cases, if any.

(2) Preventive requirements. To prevent deceptive acts or practices defined in this subsection (a), as well as the unfair or deceptive acts or practices defined in Sections 20 and 25 of this Act, a funeral provider must:

(A) Not represent that a deceased person is required to be embalmed for:

(i) direct cremation;

(ii) immediate burial; or

(iii) a closed casket funeral without viewing or visitation when refrigeration is available and when State or local law does not require embalming; and

(B) Place the following statement of disclosure on the general price list, required under paragraph (4) of subsection (b) of Section 10, in immediate conjunction with the price shown for embalming: "Except in certain special cases, embalming is not required by law. Embalming may be necessary, however, if you select certain funeral arrangements, such as a funeral with viewing. If you do not want embalming, you usually have the right to choose an arrangement that does not require you to pay for it, such as direct cremation or immediate burial." The phrase "except in certain special cases" shall not be included in this disclosure if State or local law in the areas where the provider does business does not require embalming under any circumstances.

(b) Casket for cremation provisions.

(1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to:

(A) Represent that State or local law requires a casket for direct cremations; or

(B) Represent that a casket is required for direct cremations.

(2) Preventive requirements. To prevent deceptive acts or practices, as well as the unfair or deceptive acts or practices defined in paragraph (1) of subsection (a) of Section 20, a funeral provider must place the following disclosure in immediate conjunction with the price range shown for direct cremations: "If you want to arrange a direct cremation, you may use an alternative container. Alternative containers encase the body and can be made of materials such as fiberboard or composition materials (with or without an outside covering). The containers we provide are (specify containers)." This disclosure is required to be placed on the general price list only if the funeral provider arranges direct cremations.

(c) Outer burial container provisions.

(1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to:

(A) Represent that State or local laws or regulations, or particular cemeteries, require outer burial containers when such is not the case.

(B) Fail to disclose to persons arranging funerals that State law does not require the purchase of an outer burial container.

(2) Preventive requirements. To prevent these deceptive acts or practices, a funeral provider must place the following statement of disclosure on the outer burial container price list, as required under paragraph (3) of subsection (b) of Section 10, or if the prices of outer burial containers are listed on the general price list, as required under paragraph (4) of subsection (b) of Section 10, in immediate conjunction with those prices: "In most areas of the country, state or local law does not require that you buy a container to surround the casket in the grave. However, many cemeteries require that you have such a container so that the grave will not sink in. Either a grave or a burial vault will satisfy these requirements." The phrase "in most areas of the country" shall not be included in this disclosure if State or local law in the areas where the provider does business does not require a container to surround the casket in the grave.

(d) General provisions on legal and cemetery requirements.

(1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to represent that federal, State, or local laws, or particular cemeteries or crematories, require the purchase of any funeral goods or funeral services when such is not the case.

(2) Preventive requirements. To prevent these deceptive acts or practices, as well as the deceptive acts or practices identified in subdivisions (a)(1), (b)(1), and (c)(1) of this Section, a funeral provider must identify and briefly describe in writing on the statement of funeral goods or services selected any legal, cemetery, or crematory requirement that the funeral provider represents to any person as compelling the purchase of funeral goods or funeral services for a funeral that the person is arranging.

(e) Provisions on preservative and protective value claims. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to:

(1) Represent that funeral goods or funeral services will delay the natural decomposition of human remains for a long-term or indefinite time; or

(2) Represent that funeral goods have protective features or will protect the body from gravesite substances, when such is not the case.

(f) Cash advance provisions.

(1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to:

(A) Represent that the price charged for a cash advance items is the same as the cost to the funeral provider for the item when such is not the case; or

(B) Fail to disclose to persons arranging funerals that the price being charged for a cash advance item is not the same as the cost to the funeral provider for the item when such is not the case.

(2) Preventive requirements. To prevent these deceptive acts or practices, a funeral provider must place the following sentence in the itemized statement of funeral goods or services selected, in immediate conjunction with the list of itemized cash advance items required under paragraph (5) of subsection (b) of Section 10: "We charge you for our services in obtaining: (specify cash advance items)." if the funeral provider makes a charge upon, or receives and retains a rebate, commission, or trade or volume discount upon a cash advance item.

Section 20. Required purchase of funeral goods or funeral services.

(a) Casket for cremation provisions.

(1) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for a funeral provider, or a crematory, to require that a casket be purchased for direct cremation.

(2) Preventive requirement. To prevent this unfair or deceptive act or practice, a funeral provider must make an alternative container available for direct cremations, if the provider arranges direct cremations.

(b) Other required purchases of funeral goods or funeral services.

(1) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services, it is an unfair or deceptive act or practice for a funeral provider to:

(A) Condition the furnishing of any funeral good or funeral service to a person arranging a funeral upon the purchase of any other funeral good or funeral service, except as required by law or as otherwise permitted under this subsection; or

(B) Charge any fee as a condition to furnishing any funeral goods or funeral services to a person arranging a funeral, other than the fees for services of the funeral director and staff, other funeral services or funeral goods selected by the purchaser, and other funeral goods or services required to be purchased.

(2) Preventive requirements. To prevent unfair or deceptive acts or practices under this subsection (b), a funeral provider must:

(A) Place the following statement of disclosure in the general price list, immediately above the prices required under paragraph (4) of subsection (b) of Section 10: "The goods or services shown below are those we can provide to our customers. You may choose only the items you desire. If legal or other requirements mean you must buy any items you did not specifically ask for, we will explain the reason in writing on the statement we provide describing the funeral goods and services you selected." Provided, however, that if the charge for "services of funeral director and staff" can not be declined by the purchaser, the statement shall include the sentence: "However, any funeral arrangements you select will include a charge for our basic services." between the second and third sentences of the statement of disclosure otherwise required under this subparagraph (A). The statement may include the phrase "and overhead" after the word "services" if the fee includes a charge for the recovery of unallocated funeral provider overhead; and

(B) Place the following disclosure in the statement of funeral goods and services selected: "Charges are only for those items that you selected or that are required. If we are required by law or by a cemetery or crematory to use any items, we will explain the reasons in writing below."

Section 25. Services provided without prior approval.

(a) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for any funeral provider to embalm a deceased human body for a fee unless:

(1) State or local law or regulation requires embalming in the particular circumstances regardless of any funeral choice that the family might make;

(2) Prior approval for embalming, expressly described, has been obtained from a family member or other authorized person; or

(3) The funeral provider is unable to contact a family member or other authorized person after exercising due diligence, has no reason to believe the family does not want embalming performed, and obtains subsequent approval for embalming already performed, expressly described. In seeking approval, the funeral provider must disclose that a fee will be charged if the family selects a funeral that requires embalming, such as a funeral with viewing, and that no fee will be charged if the family selects a service that does not require embalming, such as direct cremation or immediate burial.

(b) Preventive requirement. To prevent these unfair or deceptive acts or practices, a funeral provider must include on the itemized statement of funeral goods or services selected, required under paragraph (5) of subsection (b) of Section 10, the statement: "If you selected a funeral that may require embalming, such as a funeral with viewing, you may have to pay for embalming. You do not have to pay for embalming you did not approve if you selected arrangements such as a direct cremation or immediate burial. If we charged for embalming, we will explain why below."

Section 30. Retention of documents. To prevent the unfair or deceptive acts or practices specified in Sections 5 and 10 of this Act, a funeral provider must retain and make available for inspection by Commission officials true and accurate copies of the price lists specified in subdivisions (b)(2) through (b)(4) of Section 10 for at least one year after the date of their last distribution to customers, and a copy of each statement of funeral goods and services selected, as required by paragraph (5) of subsection (b) of Section 10, for at least one year from the date of the arrangements conference.

Section 35. Comprehension of disclosures. To prevent the unfair or deceptive acts or practices specified in Sections 5 and 10, a funeral provider must make all disclosures required by those Sections in a clear and conspicuous manner. A funeral provider shall not include in the casket, outer burial container, and general price lists, required under subdivisions (b)(2) through (b)(4) of Section 10, any statement or information that alters or contradicts the information required by that Section to be included in those lists.

Section 40. Severability. If any provisions of this Act or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application.

Section 45. Enforcement.

(a) The Attorney General and or the State's Attorney may bring a civil action as well as obtain injunctive relief on behalf of the residents of the State in the Circuit Court of the county of appropriate jurisdiction to enforce the provisions of this Act.

(b) A person who violates any provision of this Act commits an unlawful practice within the meaning of the Consumer Fraud and Deceptive Business Practices Act.

(c) Any person that violates or fails to comply with any provisions of this Act shall be subject to a civil penalty of no more than $5,000 for each offense.

Section 90. The Consumer Fraud and Deceptive Business Practices Act is amended by changing Section 2Z as follows:

(815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)

Sec. 2Z. Violations of other Acts. Any person who knowingly violates the Automotive Repair Act, the Home Repair and Remodeling Act, the Dance Studio Act, the Physical Fitness Services Act, the Hearing Instrument Consumer Protection Act, the Illinois Union Label Act, the Job Referral and Job Listing Services Consumer Protection Act, the Travel Promotion Consumer Protection Act, the Credit Services Organizations Act, the Automatic Telephone Dialers Act, the Pay-Per-Call Services Consumer Protection Act, the Telephone Solicitations Act, the Illinois Funeral or Burial Funds Act, the Cemetery Care Act, the Funeral Practices Act, the Safe and Hygienic Bed Act, the Pre-Need Cemetery Sales Act, the High Risk Home Loan Act, subsection (a) or (b) of Section 3-10 of the Cigarette Tax Act, subsection (a) or (b) of Section 3-10 of the Cigarette Use Tax Act, the Electronic Mail Act, or paragraph (6) of subsection (k) of Section 6-305 of the Illinois Vehicle Code commits an unlawful practice within the meaning of this Act.

(Source: P.A. 92-426, eff. 1-1-02; 93-561, eff. 1-1-04.)".