George R. Kelder Jr., CFSP
I recently had the opportunity to speak with CBS News about the horrific situation uncovered at a crematory and later funeral home, both owned and operated by the same people in the Chicago, IL, area, where human remains were improperly stored and handled.
What makes the story even more disturbing is that this wasn't simply a case of something going wrong once. Regulators had identified problems before, yet the problems continued.
That should make every one of us in funeral service uncomfortable.
I've spent roughly 40 years in funeral service administration, and I've seen versions of these problems in more than one state. Whenever something this disturbing comes to light, our immediate reaction is understandable: How could this happen? Who failed? Who should have stopped it?
But I think we need to go one step further.
Before we point fingers at one person or one facility, we need to ask whether the regulatory system itself had the authority, resources and oversight necessary to prevent it.
That's an important distinction.
Every regulatory board operates under a statute created by the Legislature. That statute defines what the board can and cannot do. If the Legislature hasn't given a board authority over a particular activity, the board cannot simply create that authority for itself.
You can have a very good regulatory board, staffed by people who genuinely care about protecting the public, but if the law doesn't give that board the authority to act, there is only so much it can do.
And that creates an uncomfortable possibility: The law can sometimes create a situation where a licensed professional is held to a higher standard than someone operating outside the licensing system.
New Jersey should pay attention to that.
We have our own regulatory challenges. Our State Board of Mortuary Science of New Jersey and New Jersey Cemetery Board exist to protect the public, but they don't operate in a vacuum. They operate within statutes, budgets, staffing levels and bureaucratic structures that determine what they can actually accomplish.
And we shouldn't fool ourselves into believing that having a regulatory board automatically means we're adequately regulating the industry.
The regulators in New Jersey may be good at responding to a fire, but they are not nearly as good at maintaining the fire department.
When a scandal makes the evening news, everyone pays attention. Investigators are dispatched. Politicians demand answers. Regulators promise action. Suddenly, everyone wants to know why nobody saw it coming.
Then the cameras leave. The headlines disappear. The political pressure diminishes. And eventually, the system returns to whatever level of staffing, funding and oversight existed before the crisis.
That's the part that concerns me.
The question isn't simply, “What are we going to do about this case?”
The question is, “What are we going to do to make sure this doesn't happen again five or 10 years from now?”
New Jersey's Division of Consumer Affairs currently administers 56 professional and occupational boards overseeing about 750,000 licensees. That's an enormous regulatory responsibility. Those boards need investigators, attorneys, inspectors, administrative personnel, technology and board members with the gumption for doing the job we're asking them to do.
Regulation doesn't happen simply because a statute exists. A regulatory board without backbone and adequate resources is a regulatory board in name only.
And that brings us to an issue that deserves far more public discussion: money.
Licensing fees, registration fees and other assessments generate substantial revenue within New Jersey's regulatory system. We should be asking a very simple question: Is enough of that money being reinvested into the system that generated it?
We can have all the laws and regulations in the world, but if there aren't enough investigators and attorneys to investigate complaints and prosecute violations, those laws don't mean very much.
I've heard complaints about cases involving the Mortuary Board remaining unresolved for extraordinarily long periods of time, years in some instances. I’ve witnessed draft regulations simply disappear into a vacuum of bureaucracy.
That is completely unacceptable.
Justice delayed isn't just unfair to the person who filed the complaint. It's also unfair to every ethical funeral professional who is following the rules.
New Jersey should be asking the same questions about its own regulatory system. Do our boards have the statutory authority, staffing, investigative resources and funding necessary to protect consumers? And when a complaint is filed, how long should a consumer reasonably have to wait for an answer?
Those aren't theoretical questions. They are questions that affect real people and, in our profession, people who are often at their most vulnerable.
So, who's responsible? I think responsibility exists at several levels.
Legislatures have to write statutes that actually protect the public. Regulatory agencies have to enforce those laws. They need adequate staffing and funding to do that. And licensed professionals or people who behave as such have to be held accountable when they violate the rules.
It's a system.
And when something as serious as the recent discoveries in Chicago happens, we need to examine the entire system, not just the individual standing at the center of the scandal.
That doesn't mean we need more regulation. It means we need better regulation.
We need the right laws. We need the authority to enforce them. And we need the resources to actually do it.
Chicago should investigate exactly what happened, determine who knew what and when, and hold the responsible people accountable. But then it needs to do something more difficult: build a regulatory system that can continue working after the television cameras are gone.
New Jersey should be asking itself the same questions now, rather than waiting for our own tragedy to force the conversation.
The worst thing we could do is solve today's headline and leave tomorrow's regulatory problem sitting there waiting for the next calamity.
What happened in Chicago should cause us to look beyond the individuals involved and examine whether our own regulatory systems have the authority, funding and personnel necessary to protect the public, not just when there's a crisis, but every day.
We shouldn't have to wait for a tragedy to discover that the people responsible for protecting the public don't have the authority, money, manpower or grit to do their jobs.