(from Maine Townsman, May 2002)
by Antoinette Mancusi, Technical Advisor, MMA
Through General Assistance (GA) programs municipalities in Maine are responsible for paying the direct burial or cremation expenses, up to the ordinance maximums, of anyone who dies leaving no money or assets to pay the burial expenses and who has no liable relatives who are financially able to pay the burial or cremation costs (22 M.R.S.A. § 4313). Under the GA law, relatives who are liable for the burial or cremation costs are parents, grandparents, siblings, children and grandchildren.
There are a number of issues to consider when analyzing the municipal obligation to assist with the payment for a burial or cremation. Municipalities requiring more information on this subject are encouraged to review MMA’s General Assistance Manual and contact the Legal Services department with follow-up questions.
Besides the relatives’ financial responsibility, family members also have some choice about whether the deceased should be buried or cremated. The MMA sample or model GA ordinance provides some guidance on this subject:
“…in the absence of any objection by any family members of the deceased, or when neither the Administrator nor the funeral director can locate any family members, the Administrator may issue general assistance for cremation services.”
This ordinance language allows the GA administrator to issue the amount of General Assistance provided in the ordinance to cover a cremation, rather than a burial, when there are no known family members. It is important to note that the ordinance does not provide (and neither does any statute) the GA administrator or any other municipal official with authority to order cremations. The model GA ordinance governs a financial decision; it authorizes paying the costs of a cremation up to the ordinance maximum.
The fact that the GA ordinance governs the municipality’s financial exposure with respect to the disposition of certain deceased indigents rather than ordering their cremation is sometimes lost in the actual administration of the program. In the historical practice of General Assistance, it is sometimes perceived that the GA administrator is requiring cremation when no next of kin can be located. GA administrators should be careful to distinguish the difference between their financial decision (authorizing a certain level of payment to the funeral director) and ordering cremations under such circumstances.
The statute governing the custody of deceased persons (22 M.R.S.A. § 2843-A) provides no conclusive guidance as to who has custodial decision-making authority regarding the disposition of the remains when no next-of-kin exist and the deceased leaves no instructions. Because of that silence, there is no clear legal authority for a municipal official to “order” a cremation.
The law’s silence may make a municipality choose to err on the side of caution; that is, unless the GA administrator is certain that there is no next of kin (i.e., thorough verification has been conducted) and the deceased has left no instructions, she or he may choose to provide the full burial benefit rather than the cremation maximum. It should be noted that to date there has been no lawsuit against a municipality in Maine regarding the improper disposition of human remains, although funeral directors report that they have been sued on similar grounds.
As a side note, MMA’s Legal Services department cautions GA administrators not to sign documents containing “assumption of risk” clauses for cremations. It was brought to the attention of Legal Services that certain “orders for cremation” contained language whereby the municipality assumes the risk of damage to the crematorium in the event the deceased had a pacemaker or prosthetic devise. In such cases, the funeral director should bear the burden of making such a determination prior to the cremation. In the event a cremation authorization document contains such language, the GA administrator should negotiate that section out of the document prior to signing any authorization.
Whenever two or more competitors meet among themselves or meet with a potential customer to discuss prices, there is a huge risk of antitrust liability. And the fact the potential consumer is a member of the government does not insulate the competitors from antitrust liability. For example, assume a municipality invited two of the three local funeral homes to meet with officials and decide on a low cost cremation package for indigents. The funeral homes propose a set price and the municipality agrees to use the two funeral homes on a rotating basis. The third funeral home would have a possible antitrust claim against the other two funeral homes on the basis they unlawfully set prices with a consumer and agreed with the consumer to exclude the third funeral home from competition.
It is important to note antitrust liability primarily derives from joint or concerted action. Many things that competitors cannot do jointly, they are free to do by themselves. For instance, if in the above example the municipality dealt with only one funeral home and awarded that funeral home an exclusive contract to do all indigent dispositions based on the funeral home’s package bid, there would be no antitrust liability. Therefore, funeral homes are free on their own to meet with local government officials on indigent burial funding; it is the joint meetings that raise antitrust red flags.
If local government officials seek to speak to a group of funeral homes on indigent funding, we would suggest the funeral homes alert the officials that such meetings carry antitrust risks. Rather, the local government officials should either meet at different times with individual funeral homes or request each funeral home to separately submit written proposals. This would avoid much of the potential antitrust liability while still allowing the local officials to obtain needed pricing information on indigent burials and cremations.