02/14/2012

OHIO COURT RULES AGAINST ALKALINE HYDROLYSIS

By T. Scott Gilligan, OFDA General Counsel

The year-long legal battle that Columbus funeral director Jeff Edwards has waged against the Board of Embalmers and Funeral Directors and the Ohio Department of Health over alkaline hydrolysis may be drawing to a close.  In a decision issued by a Columbus judge on February 8, 2012, Mr. Edwards’ complaint against the Health Department and the State Board was dismissed with the court finding for the two Ohio agencies.  However, despite the apparent defeat, Mr. Edwards may draw some solace from several opinions expressed by the judge in his lengthy ruling.

As background, Edwards Funeral Home was the first funeral home in the United States to perform alkaline hydrolysis.  Starting in January of 2011, Mr. Edwards arranged and carried out alkaline hydrolysis for 19 dispositions before the Department of Health ruled that alkaline hydrolysis was not an acceptable form of disposition under Ohio law.  The Health Department had reached that conclusion after conferring with the State Board.

Shortly after the Department of Health and the State Board shut down Mr. Edwards’ alkaline hydrolysis operation, he sued the two agencies claiming that the Department of Health was estopped from issuing death certificates for alkaline hydrolysis dispositions since they had previously issued 19 death certificates recognizing the process.  He also argued that several Ohio statutes specifically permit disposition of dead human remains by “burial, cremation, or other manner of final disposition.”   Since the Ohio statutes did not prohibit alkaline hydrolysis, Mr. Edwards argued that the process constitutes a form of final disposition which must be allowed under Ohio law if selected by the next-of-kin.

After Jeff Edwards and his attorneys had presented evidence during the trial in Columbus, the Attorney General asked the court for a directed verdict which essentially asks the judge to rule before the Attorney General put on its evidence.  The court granted the Attorney General’s request and dismissed Mr. Edwards’ claims. In so doing, the court ruled that even though the Department of Health had previously issued 19 death certificates with alkaline hydrolysis listed as the form of disposition, this did not compel the Department of Health to issue future death certificates that recognize alkaline hydrolysis as an acceptable form of disposition.  In the judge’s opinion, the Department of Health was free to determine that since alkaline hydrolysis was a new form of disposition, it was up to the Department whether to permit it to be used in the state.

Although the judge did acknowledge that the Ohio statutes allowing disposition by “burial, cremation, or other manner of final disposition” are confusing, he ruled that it is the Department of Health that determines what is an acceptable manner of disposition, not the next-of-kin. Since the Department of Health is responsible for public safety and sanitation, it should make the decisions of what are acceptable forms of disposition. 

The judge also expressed his opinion that although he could not compel the Department of Health nor the State Board to recognize alkaline hydrolysis, he believes that it is incumbent upon the two agencies to investigate alkaline hydrolysis and determine whether it should be deemed to be an acceptable form of disposition. 

Although it was not in front of the court, the judge also addressed the disciplinary charges that the State Board had brought against Mr. Edwards for performing alkaline hydrolysis.  Even though the disciplinary charges have not yet been the subject of a hearing before the State Board, the judge advised the State Board that he did not find any bad faith on Mr. Edwards’ part in performing alkaline hydrolysis.  He also advised the State Board that if the disciplinary matter comes before the court, he would rule against the State Board and prevent it from taking any further disciplinary action against Mr. Edwards.   While that opinion is not binding on the State Board, it would be surprising if the State Board ignored it and continued the disciplinary proceedings against Mr. Edwards.

Where does this ruling leave alkaline hydrolysis in the State of Ohio?  Currently, the Ohio Funeral Directors Association is working with state legislators on a bill that would recognize alkaline hydrolysis as an acceptable form of disposition and place it under the regulation of the State Board.  Whether either the Department of Health or the State Board will also follow the judge’s recommendations and initiate a rulemaking to recognize alkaline hydrolysis as an acceptable form of disposition is still unknown.

Members with questions regarding this ruling may contactScott Gilliganat 513-871-6332.