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Legal Counsel
At the first of the year, MFDA retained Michael D. Sharkey, Licensed Funeral Director and Attorney with Cousineau, Van Bergen, McNee and Malone as its General Counsel. 

 

Mr. Sharkey’s role was to serve as a resource to the association as well as our member funeral directors as a new member benefit. Specifically, those firms who need mortuary law specific legal guidance, (often on short or even emergency notice) can spend up to 30 minutes getting answers they need.  If a call will take more than 30 minutes of guidance, the member will be advised to retain Mr. Sharkey privately.  Please call 952-525-6990 to reach Mr. Sharkey’s office.*  

 

In the past two months we have found ourselves in an unprecedented situation concerning the COVID-19 virus and how it will affect funeral service going forward.

 

Beginning in mid-March, staff has spent many hours working with the MN Department of Health Mortuary Section, the Fatality Management Group and the State Emergency Operations Center working through a “what-if” scenario and how it will affect funeral service.  At the same time, many members were contacting Mr. Sharkey for guidance on similar concerns which resulted in some duplication of efforts.

 

We would ask that you use the guidelines above* as they may pertain to your funeral home requiring legal services and Mr. Sharkey’s services.  If you have questions regarding MFDA’s meetings with the above-mentioned partners, please contact MFDA’s office. In this time of social distancing, all MFDA staff are working from their homes. The office # 763-416-0124 is forwarded to Darlyne’s phone or text her at 612-940-8169.

 

This member benefit is important and  made possible by your membership dues and the support of the MFDA Service Corporation.  We want to use these funds wisely.

 


 

Current Internal Memorandums from MFDA General Counsel Michael Sharkey

 

INTERNAL MEMORANDUM TO MFDA MEMBERS RE: RECENT CHANGES TO THE GOVERNOR’S STAY SAFE MN ORDER

May 24, 2020

 

I have been asked to prepare a memo for the MFDA Membership regarding the changes to the Stay Safe MN Order that Governor Walz amended yesterday after pressure from religious groups.  Among funeral operators there was a great and legitimate concern that a funeral home could end up running afoul of the MDH by providing funeral services at a church that is in defiance of the Governor’s Order. 

 

While I would have enjoyed litigating the issue against the MDH and was already working on theorizing numerous potential defenses upon which I think the funeral home would readily win, I fully appreciate that no funeral operator wants to be the “test case.”  Fortunately, that unpleasantry has now been avoided as the Governor has finally recognized the importance that funerals and memorialization play in our society. 

 

On Saturday, May 23 Gov. Walz issued a new Executive Order 20-62 which provides a carve out for funerals, weddings, and worship services which goes into effect Wednesday, May 27.  All other aspects of the latest iteration of the Stay Safe MN Order remain in force.

 

The following is the portion of the text of Executive Order 20-62 (along with an imbedded link) that is most relevant to you as funeral directors.  I provide the exact language for your consideration as to how it applies to your particular funeral business.  Below that,  I discuss and provide guidance, interpretation, and counsel for MFDA Members going forward.  To wit:

 

“Effective on May 26, 2020 at 11:59 pm, places of worship, funeral homes, and other venues that offer gathering space for weddings, funerals, or planned services such as worship, rituals, prayer meetings, or scripture studies, may host such weddings, funerals, or services with over 10 people, provided that they adhere to the below requirements:

A. In all settings, ensure a minimum of 6 feet of physical distancing between households.

B. In indoor settings, occupancy must not exceed 25 percent of the normal occupant capacity as determined by the fire marshal, with a maximum of 250 people in a single self-contained space.

C. In outdoor settings, gatherings must not exceed 250 individuals.

D. Develop and implement a COVID-19 Preparedness Plan in accordance with guidance developed by the Minnesota Department of Health, available at  https://mn.gov/deed/guidance

 

First, I would note that the amendments/changes provided by Executive Order 20-62 do not preclude a funeral operation from developing their own protocols.  If a funeral home decides that it will be more restrictive than the Order requires, you as a private business may do such.  For example, if you were to decide that you want to continue operating under the “Rule of 10” until June 15th, you are free to do such.  Likewise, if a church or cemetery decides that they want to have more restrictive rules for their properties that is their prerogative.  As such, you will need to coordinate with others to make sure that your families understand what a church or cemetery will allow as concerns gathering sizes.

 

As to the changes embodied by Executive Order 20-62, please note that they go into effect at midnight on Tuesday, May 26.  In other words, Tuesday, May 26 funerals are still to be conducted under the current rules of no more than 10 people.  As of Wednesday, May 27 you may have larger funeral gatherings.

 

Social distancing is still required.  Note that social distancing is not required as between members of the same household.  This makes perfect sense- mom, dad, and the kids all arrived in the same car together, to ask them to now stand six feet apart would be absurd. 

 

For indoor settings, the new rule is that you may have no more than 25% of the normal capacity or 250 people, whichever is less.  Here is what I see as an important issue for you, the funeral director:  you are certainly responsible for limiting attendance at your chapel as it is your property and you have domain and control over it.  I strongly suggest that you, as the funeral director, do not take on the responsibility of monitoring the number of attendees at property you do not own.  If more than the allowed number of people come into the church, it is the church that has domain and control to remove or limit capacity- not you (it is not your property).  Don’t let a church outsource their responsibilities to you

 

If you choose to have an outdoor service (which may sound strange but several Wisconsin funeral homes started doing such last month because outdoor gatherings were not regulated in Wisconsin) then the maximum is 250 people.  This would also apply to any service at an outdoor cemetery (an enclosed mausoleum would be treated like a funeral home or church).

 

There is also the requirement that your funeral operation develop and implement a Preparedness Plan.  My own law office (we have 40 employees) went through this process so that we could open up.  The Preparedness Plan can be a bit daunting to put together, but as funeral directors you are used to paperwork and filling out forms. 

 

I have been asked by the Board to remind our Members that if you have questions please call the MFDA office first, and if appropriate they will route your question to me if they can’t answer it.  This is done to keep costs down so that the provision of legal advice remains within the planned budget.

 

I want to wish you all the best during these strange times in funeral service and I applaud all Minnesota funeral directors in the way they have continued to serve families under such tough circumstances.  I am proud to be your colleague in the Dismal Trade.

 

Respectfully submitted,

 

Michael D. Sharkey, Esq.

MFDA General Counsel

 


 

Internal Memorandum to MFDA members RE: Holding Decedents for Later Burial or Memorialization

Dear MFDA Members:

 

I write to address the nascent issue of funeral homes holding decedents for funeral/visitation/burial at a later time.  Right now, Minnesota Executive Order 20-20 expires April 10, 2020.  It is entirely possible that funeral homes and/or the families they serve may want to wait for a burial or funeral/visitation until after the current Order expires.  I can certainly understand that thinking.  However, I am very concerned that while the funeral home may have the best of intentions in wanting to serve the family and fulfill their requests, holding decedents could lead to some unexpected and unintended consequences.  As such, I strongly caution any funeral firm from agreeing to hold the decedent for funeral/visitation/burial at a later date.

 

First, we do not know when the COVID19 pandemic will end or when the “curve” of infection will flatten.  It is entirely possible- and should be anticipated- that the Governor will extend the Executive Order past April 10th.  We simply cannot know that one way or the other and I don’t want MFDA members to find themselves in a situation of holding decedents for longer than they originally anticipated.  Once you agree to hold a decedent for a family you will find it extremely difficult to convince a family that thought they could wait to have a “regular” (i.e. large) service to have a small service/graveside (ten people or less) if the Order is extended by several weeks. 

 

Second, I am concerned that once a funeral home agrees to hold a decedent for one family the funeral home will find most of the families they serve requesting the same treatment.  This could lead to both a “holding space” issue as the decedent must be sheltered in an appropriately secured facility, and an extreme backlog of services and burials when we can again have regular services and gravesides.  I recall my own work as a funeral director in northern Wisconsin before the winter burial rule went into effect.  For those who have had the experience of a large number of “spring burials” they know that it is an unenviable situation to be in. 

 

Each funeral firm has to make its own business decisions and we do not have a modern historical model we can look to for lessons.  My concern is that MFDA members be cognizant that just because the current Executive Order is set to expire on April 10th does not mean that another Order will not extend that date out several more weeks.  We don’t know, and my job as your General Counsel is to think several moves ahead and provide advice and counsel for what is an uncertain future.  With this in mind, you will have to rely on your own good judgment, proactively set expectations for the community you serve, and do your best to serve your families’ needs while balancing ethical, legal, and public health concerns.

 

Best of luck to all of you in these trying times.

 

Respectfully submitted,

Michael D. Sharkey, Esq.

MFDA General Counsel

Direct Dial:  952-525-6990

Fax:  952-546-0628

Email:  msharkey@cvmmlaw.com

 


Internal Memorandum to MFDA Members: Communicable Disease Disclosure Under HIPPA

 

I write to discuss a topic that has been around for almost 16 years, but which has only just now come back into the spotlight due to the COVID19 pandemic.  The topic is “does a hospital or long term care facility (nursing home) or other care facility have to tell you, the funeral director, that an individual died from COVID19?”  The answer is- of course- not perfectly black and white.

 

HIPPA rules prevent hospital and other care facilities from disclosing information about patients.  However, there are exceptions to this rule.  One of the exceptions is found at 45 CFR 164.512(g).  “CFR” means “Code of Federal Regulations” and is a fancy way of saying “federal law.”  A hospital or care facility has an obligation to protect the “PHI” (private health information) of a patient even after the patient dies.  Among the exceptions to this rule are that a hospital or care facility may tell a funeral director about a communicable disease because the communicable disease impacts the funeral director or embalmer’s handling of the decedent.  “Covered entity” means a hospital, nursing home, care facility, etc.   The black letter law reads as follows:

 

45 CFR 164.512(g) Standard: Uses and disclosures about decedents.

 

(2) Funeral directors. A covered entity may disclose protected health information to funeral directors, consistent with applicable law, as necessary to carry out their duties with respect to the decedent. If necessary for funeral directors to carry out their duties, the covered entity may disclose the protected health information prior to, and in reasonable anticipation of, the individual's death.

 

The good news for funeral service is that there is a very clear exception to HIPPA privacy disclosures for a funeral director seeking information regarding whether or not a person died of a communicable disease.  The bad news is two-fold: 1) Most hospital staff have no idea that there is a HIPPA exception for funeral directors; and 2) The rule says “may” not “shall,” so the hospital cannot be forced to make the disclosure.   In other words, there is nothing preventing the hospital or other care facility from telling you, the funeral director, that the decedent was COVID19 positive (or any other communicable disease for that matter).  However, there is also nothing that legally forces the hospital to do such. 

 

Do you have a right to know?  Yes, you do.  Is it an enforceable right? No, it is not.

 

You are, of course, free to tell the hospital or care facility that you will not make the removal unless they disclose whether or not the deceased had a communicable disease.  You are also free to tell the family that the hospital or care facility refuses to provide this information.  Whether you choose to do such is a business/professional judgment decision that you have to make for yourself. 

 

As a two-state licensed funeral director for more than 20 years I am fully aware of the mantra “you treat all decedents as if they have an infectious disease.”  I am also fully aware- just as I used to do myself when I would embalm- that we always use PPEs, practice universal precautions, and abide by the rules and principles of OSHA’s Bloodborne Pathogen Standard.  We all agree with this.  However, we also all know that if an individual is known to have something like antibiotic-resistant tuberculosis that body is treated differently by the funeral home and embalming staff (this is just an example- there are other communicable diseases that also have heightened handling standards).  I make no comment on whether or not a COVID19 positive body should be handled with increased precautions- you can review the CDC and WHO guidelines and recommendations (which, notably, differ) and make your own decisions about that.  I do know that I would want to know beforehand if an individual is COVID19 positive if for no other reason than the clean-up procedures are, per guidelines, somewhat different than standard.

 

I am including a PDF for everyone with the exact language taken from the original Code of Federal Regulations and the language germane to funeral directors highlighted for your ease of reference.  I suggest you print this off (print it off in color so the highlighting comes through) and have it available to show to any hospital or care facility staff who refuse to tell you if a decedent has a communicable disease or not.  Again- the problem is that while there is no legal reason why they cannot tell you a body has COVID19, there is no law that makes them tell you. 

 

I again wish you all the best of luck in your hard work and noble endeavors at such a tough time for the Dismal Trade. 

 

Take care,

 

Michael D. Sharkey, Esq.

MFDA General Counsel

 


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