Responsibility for wrongful acts or omissions.
- Potentially subject person or entity to lawsuit for damages or a court order that requires correction or abatement
- Imposes a legal responsibility (and eithical) to do, pay or make good on a promise, whether the promise was express or implied.
Operate and maintain the crematory in strict compliance with all applicable laws to ensure safe operations and the well-being of employees and to the public.
First Level of Prevention in any Liability Area
An individual who has completed an approved training program and who has met any other specific state requirements for certification.
- Bypassing faulty equipment rather than replacing or reparing issues correctly- unsafe conditions
- Cremating or releasing cremated remains without following changes made to original authorization.
- Cremating personal items
- Failing to keep work areas clean and free of debris
- Improper loading of crematory unit
- Improper packaging of urn for shipment
- Improper placement of the retort in a facility
- Improperly trained or untrained personnel attempting to maintain equipment on their own
- Improperly trained or untrained operators running equipment
- Improperly trained or untrained personnel failing to adhere to state department of environmental protection (DEP) provisions in their permits.
- Inadequate clearances that are not in accordance with manufacturer specifications. Stack penetration through the roof and any combustible materials surrounding the stack
- Knowingly cremating a decedent with a pacemaker.
- Operating a crematory unit without proper safety gear.
- Running a crematory unit with gas or hydraulic leaks.
- Storing combustible materials in or around the crematory unit.
Common Areas of Liability in Crematories
- Conduct proper training by factory certified technicians
- Factory certified technicians should conduct safety checks during annual preventative maintenance. Often forecast potential safety concerns and advise on preventative steps. Do not wait unti an issue or emergency situation arises and the work place becomes unsafe.
- with an older retort there are new safety guidelines to meet, work with manufacturer to upgrade or retrofit the unit.
- Include replacement parts, service, and rebuilds in the crematory’s annual budget.
- Post current air permit regulations, training certificates, and manufacturer inspection and servicing records near the crematory unit.
Most common claims related to a cremation involve breach of contract.
- Failure to perform the cremation (tri state)
- The wrong body is cremated (failure of proper identification procedures)
- Loss of cremated remains or commingling of cremated remains.
- Jewelery of person effects not removed as authorized and destroyed; jewelry/personal effects stolen.
- Recycling or sale of precious metal such as gold fillings by the crematory after the cremation when against family’s wishes and when prohibited by state statute.
- Failure to provide the cremation urn contracted and paid for.
Breach of Contract Claims
- Lost in mail or misdelivered
- More than one body cremated at one time in the same retort (if not allowed by law or not authorized by agent)
- Retort is not cleaned and CR are mixed
- CR are given to the wrong person
Examples of Loss of Cremated Remains
- Enforce all pre-cremation identification procedures of the remains and document.
- Do not delay conducting the cremation- if machinery is inoperable- do not accept until it is
- Never commingle cremated remains, maintain full documentation
- Only release cremated remains to the person designated in the cremation authorization form
- Remove and secure all personal effects, as applicable, and return to designated individual
- Recycling of metals is a touchy issue- require authorization (if allowed by law).
- If an additional urn is required to contain the CR overage, the crematory should notify the funeral home immediately.
To avoid liability, the first rule is to abide by the cremation authorization and contract
- Economic benefits of noncompliance
- Extent of harm caused by the violation
- Length of time the violation has occurred
- Nature and persistance of the violation
- Past violations
Environmental Liability and Risk Avoidance
- Provides incentives for compliance
- Minimum of $500 per day (minor case) to $10,000 per day (significant case)
- Each day violation continues is a seperate violation subject to seperate penalty
- Each requirement of a permit and each emission standard imposes a seperate compliance requirement
- To be actionable, a violation does nto need to be intended
State Agencies have the Authority to Levy Penalties
Public procedures which can bring unwanted negative attention to the crematory and ruin the good environmental citizen reputation that is has worked hard to create. Three simple rules to follow:
- Be in compliance
- Immediately correct any violations that are detected
- Be respectful of the authority and responsibility of state personnel
Environmental Enforcement Actions
- Best means to avoid environmental violations
- Most effective method- hire an independent third party auditor with the responsibility of examining crematory operations against the current environmental requirements that re imposed.
- Audit should be conducted at least annually.
Be in Compliance
Continuing violations suggest that the crematory operator is ess than dutiful about compliance and can create a negative impression and may result in large penalties.
Immediately Correct any Violations that are Detected
- State air pollution personnel conduct crematory inspections-get to know regulators and understand their obligations and expectations for the crematory.
- Environmental compliance is a significant aspect of the way the crematory does business and contributes to its positive reputation in the community.
Be respectful of the authority and the responsibility of state personnel
- Not required by all states
- Check with state’s environmental agency
Regarding Constuction and Operations Permits
- Cremation authorization forms
- Identification process
- Handling cremated remains
- Insurance review
- Agreements wiht third-party service providers
- Due diligence file
- Crematory records request
- Crematory interview
- Crematory inspection
Due Diligence for Funeral Homes Using Third Party Crematories
- Disclosures- ensure it meets requirements of the statute and that it takes advantage of the protections offered by compliance
- If state does not require disclosures- make sure the funeral home is using a cremation authorization form that includes the recommended minimum items
Cremation Authorization Forms
- Meticulous records of chain of custody of the remains- from initial removal through final disposition
- Steps in the documentation process
- Receiving remains
- Transfer to crematory
- Transfer of cremated remains back to funeral home
- Transfer of cremated remains to authorizing agent
- Essential to prove the remains were properly handled throughout the entire process
- FH should deliver to crematory using own personnel
- Confirm and document that the crematory operator has accepted the remains
- Present with cremation authorization form and any necessary permits and authorization
- Be sure crematory operator has executed the recepit.
- Immediately inspect urn or container for appropriate identification inside or attached to it
- Transfer back to funeral home should be documented by execution of receipt
- Only deliver the CR to the receipient designated in the cremation authorization form.
- Any modifications to change in disposition or delivery instructions should be done in writing, signed by the authorizing agent, and delivered to funeral home personnel
- Always obtained executed receipt when turning over possession to the authorizing agent or desingated third party.
- Essential to preserve documentation so it is available if needed in the future.
Handling Cremated Remains
Insure they are covered in the event of malpractice by a third-party crematory.
- Periodically have insurance agent review professional libility insurance plans- adequate levels and covers liabilities for independent contractors.
- Umbrella policy- protect firm against catastrophic court judgement against funeral home.
- Choice of counsel provision- allows firm to choose its own attorney.
- Recommended to require third-party service providers to add the funeral home as an additional named insured on the providers’ policies in the event of being sued for negligence.
- contract should explicitly spell out which party is responsible for what tasks in the process (contact with families, obtaining authorization, transportation, identification, etc)
- Contract contains mutual indemnification agreements that protect each party from the negligence of the other party should they be sued.
- Contract require the third-party service provider to carry minimum insurance coverage (provide proff thereof) and to include the funeral home as an additional named insured, in the event of being sued for negligence.
Agreements with Third-Party Service Providers
The funeral home will place the documentation and reports that will be generated from following the other three steps outlined in due diligence package.
- done for every outside crematory the firm uses
Due Diligence File
Funeral home’s review of the licenses and operational records of the crematory.
- Refusal to provide this is a red flag
- Review them to see: proper authorization under state law, trained operators, adopted comprehensive operational procedures, maintains sufficient liability insurance, utilizes appropriate authorization forms.
- Maintained in due diligence file- keep a log
- Updated at least once a year
Crematory Records Request
- Third Step- interview the management to obtain information on its personnel, facilities, and operations
- Call for appointment
- Take written notes of responses to questions, if response is unsatisfactory address it with the crematory manager immediately.
- List any concerns after the interview and send them to the crematory manager
- For further information- send a written request listing follow-up questions
- Maintain notes and follow-up inquiries and responses in the due diligence file
- Final Step
- Unannounced and at least once a year
- Use a checklist to document findings
- Note problems on checklist- raise concerns in writing to management of the crematory, make sure the problem is remedied
- Results and documentation showing concerns that were addressed should be maintained in the due diligence file
- Active community service programs
- conducting informal seminars
- Speaking engagements with community groups
- Involved in local business networking groups
- Offer tours and infromation to educational institutions
- These generate good will- ease possible discomfort (sometimes fear) that community residents may have about living in the neighborhood of a “deathcare” establishment.
Public Relations Strategies
- Invite inspection
- Encourage funeral homes to suggest client families to inspect the facility
- Conduct an open house for neighbors, clergy, local hospice, and funeral home clients
- Explain away mystique about what takes place during a cremation
Proven Approaches to Raise Community Awareness and Comfort Levels
- Walk guests through entire cremation process
- Talk about building design and security measures
- Explain how decedents are received and documented.
- Show how employee activities are documented during the cremation process
- Show where decedents are placed while waiting for cremation
- Share staff’s passion about providing dignified treatment to every person in the crematory’s care.
- Explain the identification process
- Explain the double-check system for jewelry and what occurs if any is discovered
- Explain the process for verifying that all paperwork and permits are in order.
- Explain the dignified manner in which the deceased is removed from the cremator and efforts to ensure that as muhc of the remains as possible are recovered.
- Explain the normal procedure for processing and packaging cremated remains, focus on consistent identification measures.
- Explain how cremated remains are securely stored while awaiting pick-up
What should happen in an open house
- Operate as if member of the public might drop by at any time
- Keep facility clean as work is conducted
- Have deceased properly stored
- Staff conduct themselves as if family member is present.
- Never turn away unannounced visitor
- firm should be its own customer advocate
Preparing for Inspection
- Fresh coat of paint, clean flooring, good general housekeeping, well-kept grounds demonstrate pride of ownership and visually reinforce the establishment’s committment to its sacred obligation to respectfully serve funeral homes and client families.
- What does the look of the crematory convey to passersby?
- The facility interior must be attractive, well-ordered, and scrupulously clean
- While there must be required employee signage posted to maintain a safe environment, the wording should not be distressing to visitors
- Conducting market research
- Estimating return on investment (ROI)
- Evaluating the zoning process requirements
- Gauging community sentiment
Crematory Construction Public Relations Issues
Factors that that affect success
- Emissions from a crematory may endanger residents and the environment.
- Response: scientists quantified crematory emissions impact negligible
- Construction of a crematory will reduce the value of my property.
- Response: property value studies typically disprove this point.
- There will be objectionable odors.
- Response: well-operated and well-maintained crematories do not produce objectionable odors.
- Traffic will increase dramatically in the vicinity of the crematory.
- Response: traffic is unlikely to increase due to small number of cremations per day and the careful arrangements FDs makes for delivery of the remains.
- Crematories belong in industrial or commercial areas.
- The point of zoning is to have a place of different uses of property based on informed land-use planning considerations.
Not in my Backyard (NIMBY) Key Points
- Do not contract for crematory equipment until zoning assessment is completed
- Preliminary zoning assessment
- Plant to meet with zoning officials before submitting a formal application for zoning approval.
Steps Before Making Zoning Application
- Assemble a team that can assess the zoning for the property under consideration- include expert
- Review the zoning classification for the property where the crematory construction is planned (and other issues)- assess legal issues
- Evaluate recent history of crematory approvals in the area
- Identify neighborhood groups, citizen activists, environmental advocates and other concerned individuals. plan strategy for education
- Survery state and local environmental requirements- understand rules crematory will be subject to.
- Become familiar with the performance of crematory equipment and ancillary services required for crematory operation.
- Assess the services needed to operate the crematory, including space needs, traffic, fuel, fire protection, parking, proposed number of cremations, and environmental impact.
Preliminary Zoning Assessment
- Seeks to protect public health, safety, and welfare by regulating the use of land and controlling the type, size,and height of buildings to be constructed on the land.
- Residental, commercial, or industrial
Zoning Review Background
A designation that is applied to a parcel of land reflecting how the parcel may be used and the applicable dimensional requirements.
- Dimensional standards take the form of setbacks, side yards, height limits, minimum lot sizes, and lot coverage limits
Administers the zoning code.
- Authority: review zoning applications, issue permits, apply special conditions to permits, deny permits, refer special exceptions to a zoning board
Local Zoning Agency
A type of administrative court.
- Authority: determine that the property owner is under a hardship and grant a variance if the conditions of a specific parcel made it impractical for development under the existing classification
- Typically requires applicant seeking special exception to file a written request for a hearing
Some of these prohibit construction of a crematory within a certain distance of a day care or other facility.
Local or State Jurisdictions
One of the key purposes of zoning is to enable members of the public to be aware of and to participate in the zoning review process.
- Impact of the crematory on adjacent properties and the neighborhood
- Adequacy of existing or planned public infrastructure to support the crematory
- Impact on traffic and access
- Environmental inpacts
- Compliance with zoning requirements
Public Involvement in Zoning Decisions
- Signs announcing the proposed crematory, with contact information posed on the property
- Preliminary meeting held
- Neighbors adjoining and across from the proposed crematory receive formal written notice of the zoning request
- Staff reports of zoning request posted online
- Members of the public may file written comments with the zoning board, if a special exception is requested.
Ways Public Involvement Happens