Can a Maryland funeral home legally refuse to embalm, or charge extra, because the deceased had HIV?

Plain-English summary

The president of Maryland's Board of Morticians asked the Attorney General whether five specific funeral home practices toward HIV-positive bodies amounted to illegal discrimination under a 1989 law barring licensed morticians from discriminating against someone because they were HIV-positive. The five scenarios ranged from an outright refusal to embalm an HIV-positive body, to contracting the embalming out to another funeral home and passing along the extra cost, to charging a flat "handling" surcharge tied to any contagious disease (not just HIV) rather than a healthy body.

The Attorney General concluded that all five practices were illegal discrimination. The opinion's central point was medical, not just legal: because morticians were already required (first voluntarily, then, under a law enacted while this opinion was pending, mandatorily) to use the same rigorous infection-control precautions, gloves, gowns, a fortified embalming solution, careful waste disposal, with every body they handled regardless of known infection status, there was no legitimate reason left to treat an HIV-positive body differently or charge more to handle one. Refusing service outright violated the mortician licensing statute directly; charging a surcharge, even one framed neutrally as covering "any contagious disease" rather than naming HIV specifically, still had the effect of making HIV-positive individuals and their families bear costs that should have been spread across all of a funeral home's customers. The opinion found the same conduct also violated Maryland's Public Accommodations Law and Title III of the federal Americans with Disabilities Act.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland funeral home in 1992 refuse to embalm someone because they had HIV?
No. The opinion concluded that a mortician's refusal to embalm an HIV-positive body was both a refusal to provide services and discrimination prohibited by HO §7-317(a)(27), Maryland's mortician licensing statute.

Could a funeral home charge extra to families of HIV-positive decedents to cover the cost of protective equipment?
No. The opinion found that because morticians were required to use the same protective precautions for every body regardless of known infection status, singling out HIV-positive bodies (or bodies with any contagious disease) for an added "handling" fee had no legitimate justification and was discriminatory, even where the surcharge was framed neutrally around "contagious disease" rather than naming HIV specifically.

Did it matter that a funeral home's surcharge policy applied to all contagious diseases, not just HIV?
No. The opinion concluded that even a facially neutral policy covering all contagious diseases still amounted to discrimination under the statute, because its actual effect was that people who were HIV-positive ended up bearing costs solely because of that status.

Were there any circumstances where a funeral home could legitimately contract out embalming work for an HIV-positive body?
Yes. The opinion noted that nonpretextual reasons unrelated to HIV status, such as staff shortages, could justify contracting out embalming work without violating the statute; the problem was singling out HIV-positive bodies for different treatment or added cost specifically because of their HIV status.

Did federal disability law add any additional protection beyond Maryland's mortician licensing statute?
Yes. The opinion concluded the same conduct also violated Maryland's Public Accommodations Law (Article 49B) and Title III of the Americans with Disabilities Act, since HIV infection was treated as a disability, funeral homes were public accommodations, and the ADA separately barred surcharging people with disabilities to cover the cost of accommodations that should have applied to everyone.

Background and statutory framework

In 1989, the General Assembly passed a wide-ranging HIV Omnibus Bill, Chapter 789 of the Laws of Maryland, that added HO §7-317(a)(27) to the mortician licensing statute, making it grounds for discipline if a licensed mortician "discriminates" against someone because the individual is HIV-positive. Before this opinion, Maryland's Board of Morticians had only voluntary guidelines (adopted in 1990, based on 1989 Governor's Advisory Council on AIDS recommendations) calling for extra protective measures, gloves, goggles, a fortified embalming solution, certified medical waste disposal, when handling a body known or suspected to be HIV-positive. While this opinion request was pending, the General Assembly enacted Chapter 154 (House Bill 388) of the Laws of Maryland 1992, adding HO §7-317(a)(28), which made compliance with CDC universal-precautions guidelines mandatory for morticians handling every body, not just those known to be infected. The opinion treated that shift as central: once the same protective procedures were legally required for all bodies regardless of known HIV status, there was no remaining medical or legal justification for treating an HIV-positive body differently.

Applying HO §7-317(a)(27)'s undefined term "discriminates" according to its ordinary meaning under Maryland case law, the opinion walked through all five scenarios the Board president had posed and found each one violated the statute: outright refusal to embalm (Case A) was both a refusal of service and discrimination; contracting out embalming or charging a cremation "handling" fee specifically because of HIV status (Cases B and C) increased costs solely because of the deceased's HIV status; and even facially neutral "any contagious disease" surcharges (Cases D and E) had the same discriminatory effect in practice, since a person who was HIV-positive still ended up bearing the cost. The opinion drew an analogy to the federal Rehabilitation Act of 1973 and a Massachusetts federal case holding that a doctor's refusal to treat a patient could violate that law absent a valid medical reason unrelated to the patient's HIV status, while noting an important carve-out: contracting out embalming work for genuinely unrelated reasons, like staff shortages, would not violate the statute. Beyond the mortician licensing statute, the opinion found the same five practices independently violated Maryland's Public Accommodations Law, Article 49B, since Maryland's Human Relations Commission treated HIV infection as a "handicap" and funeral homes as public accommodations, an approach the opinion noted paralleled a New York state court decision upholding a similar finding against a funeral home. The opinion also found the conduct violated Title III of the federal Americans with Disabilities Act, which treats HIV infection as a disability, covers funeral homes as public accommodations, protects family members from discrimination based on their association with a deceased person who was disabled, and separately bars public accommodations from surcharging people with disabilities to cover the costs of measures that should be treated as an ordinary cost of doing business spread across all customers.

Citations and references

Statutes:

• HO §7-317(a)(27), barring mortician discrimination against HIV-positive individuals
• HO §7-317(a)(28), added in 1992, mandating CDC universal precautions for morticians
• HO §7-305(d), mortician licensing examination requirement
• COMAR 10.29.02.03, mortician licensing examination regulation
• Chapter 789 of the Laws of Maryland 1989, the HIV Omnibus Bill that added HO §7-317(a)(27)
• Chapter 154 (House Bill 388) of the Laws of Maryland 1992, adding HO §7-317(a)(28)
• Article 49B, §5, Maryland's Public Accommodations Law prohibition on handicap discrimination
• Article 49B, §5(d)(1)(iii), defining "public accommodation" to include retail service establishments
• COMAR 14.03.02.02, Human Relations Commission regulation treating HIV as a "handicap"
• 29 U.S.C. §794 and §794(a), Section 504 of the Rehabilitation Act of 1973
• 42 U.S.C. §12181 et seq., Title III of the Americans with Disabilities Act
• 42 U.S.C. §12181(7)(F), defining funeral parlors as public accommodations under the ADA
• 42 U.S.C. §12182, general ADA public accommodations discrimination prohibition
• 42 U.S.C. §12182(b)(1)(E), ADA protection against discrimination based on association with a disabled individual
• 42 U.S.C. §12182(b)(2)(A)(iii), ADA reasonable-modifications and undue-burden provisions
• 28 C.F.R. §36.104, defining HIV infection as a disability under the ADA
• 28 C.F.R. §36.205, ADA regulation on association-based discrimination
• 28 C.F.R. §36.301(c), ADA regulation barring surcharges for disability accommodations
• 29 C.F.R. §1910.1030(b) and (d)(3), OSHA bloodborne pathogens universal precautions regulations

Cases:

• Washington National Arena v. Comptroller, 308 Md. 370, 375, 519 A.2d 1277, 1280 (1987), Maryland Court of Appeals
• Baker v. California Land Title Co., 349 F. Supp. 235, 239 (C.D. Cal. 1972), federal district court
• Glanz v. Vernick, 750 F. Supp. 39 (D. Mass. 1990), federal district court
• Doe v. New York University, 666 F.2d 761, 767 (2d Cir. 1981), federal appeals court
• Dimiceli and Sons Funeral Home v. New York City Comm'n on Human Rights, No. 19527/86 (Sup. Ct. January 9, 1987), New York state court
• Pennsylvania Human Relations Comm'n v. Alto-Rest Park Cemetery Assoc., 453 Pa. 124, 306 A.2d 881 (1973), Pennsylvania Supreme Court

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 100 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

HEALTH

Communicable Diseases - Health Occupations - Morticians

• Civil Rights and Discrimination - Disability -
  Discriminatory Practices Involving Bodies Infected
  With HIV

                         June 9, 1992
  

Mr. Erich March
President, Board of Morticians

   Your predecessor, Mr. Robert Foard, asked our opinion on the

scope of §7-317(a)(27) of the Health-Occupations Article ("HO" Article),
which subjects a licensed mortician to disciplinary action for
"discriminat[ing]" against an individual who is infected with the human
immunodeficiency virus ("HIV"). Specifically, Mr. Foard asked whether
certain practices would constitute actionable discrimination under HO §7-
317(a)(27). These practices can be stated in the following factual
examples:

   Case A: A funeral home that normally embalms bodies, upon

learning that the deceased was HIV-positive, tells the next-of-kin that it
will make funeral arrangements but will not embalm the body. The funeral
home refers the next-of-kin to another funeral home if there is to be an
embalming and a viewing.

   Case B: A funeral home, upon learning that the deceased was HIV-

positive, accepts the body for final disposition but contracts the embalming
out to another mortuary service and adds the extra cost to the bill. If the
deceased were not HIV-positive, the funeral home would do the
embalming.

 Case C: A funeral home informs the potential client that it will

impose an extra charge for "handling" an HIV-positive body to be
cremated.

  Case D: A funeral home states on its price list that embalming any

body with a contagious disease entails an extra charge for contagious
disease equipment.

  Case E: A funeral home, which normally embalms autopsied bodies,

refuses to embalm an autopsied body that has a contagious disease and
sends the body to another mortuary service, adding an extra charge to the
bill.

  For the reasons set forth below, we conclude that all five cases

constitute prohibited discrimination under HO §7-317(a)(27).
Additionally, these practices violate the Maryland Public Accommodations
Law and the Americans with Disabilities Act.

                                   I

                            Background

    The letter requesting our opinion describes in detail the process

involved in embalming a body. Unquestionably, this is a highly invasive
procedure that exposes an embalmer to risks of cuts and needle pricks. As
the letter indicates, embalming an autopsied body poses a much more
significant risk, because the embalmer is exposed to open body cavities,
jagged bone edges, and bone slivers; moreover, for autopsied bodies the
embalmer must perform 200 stitches with a needle to close the body cavity.

  Understandably, these procedures cause concern to the morticians

handling a body infected with a contagious disease, particularly AIDS.
Accordingly, on September 12, 1990, the Board of Morticians adopted
Guidelines for the Control of Human Immunodeficiency Virus Infection,
as set forth by the Maryland Governor's Advisory Council on AIDS in
May of 1989. Those guidelines state that since the majority of persons
who are infected with HIV have no symptoms, the embalmer must consider
every case as potentially infectious and therefore must exercise precautions
including wearing "disposable double gloves, masks, goggles, gowns,
waterproof aprons and waterproof shoe coverings." Guidelines for
Control of the Human Immunodeficiency Virus, Governor's Council on
AIDS at 47 ("HIV Infection Control"). However, because these guidelines
were not formally adopted as regulations of the Board of Morticians,
compliance is voluntary, not mandatory. See 76 Opinions of the Attorney
General 3, 6 (1991). Hence, you indicate that, in general, morticians who
embalm bodies thought to be infected use greater precautions than when
they embalm bodies not thought to be infected, despite the obvious risk of
such a practice.1

   Indeed, as the letter explains, a mortician performing an autopsy on

a noninfected body ordinarily wears street clothes, covered with an apron,
two pairs of plastic gloves, and goggles. In contrast, when embalming an
infected body, the mortician wears a disposable coverall garment designed
to protect the embalmer from any accidental exposure to infected body
fluids. Additionally, the embalmer takes special precautions with the body.
These precautions include use of a disposable body pouch, a protective
garment on the remains to contain any leakage of body fluids from
incisions, and a fortified embalming solution to maximize disinfection.
Waste from an infected body must be disposed of by the use of a certified
medical waste disposal company. Finally, a transparent veil is placed on
the open portion of the coffin to protect a viewer against exposure to any
potentially infectious fluids that might have leaked from the orifices.2 Your
predecessor suggested that these added precautions result in an increase
in costs that should be passed on to the consumer.

                                       II

               Discrimination on Basis of HIV Status

   In 1989, the General Assembly enacted Chapter 789 of the Laws of

Maryland, titled "Human Immunodeficiency Virus - Omnibus Bill," a wide-
ranging bill that, among other things, sought to protect people infected
with HIV from discrimination by health care providers.3 One provision of
that legislation, codified as HO §7-317(a)(27), provides as follows:

             Subject to the hearing provisions of §7-318 of this
         subtitle and except as to a funeral establishment
         license, the Board [of Morticians] may deny a license
         to any applicant, reprimand any licensee, place any
      licensee on probation, or suspend or revoke any license
      if the applicant or licensee:


          (27)       Refuses, withholds from, denies, or
      discriminates against an individual with regard to the
      provision of professional services for which the
      licensee is licensed and qualified to render because the
      individual is HIV positive.

   In our view, HO §7-317(a)(27) is clear in its mandate: A mortician

is subject to disciplinary action if the mortician "discriminates" against an
individual who is HIV-positive. Absent any indication that the General
Assembly intended a special or unusually narrow meaning of the key term
"discriminates," we give the term its natural and ordinary meaning. See
Washington National Arena v. Comptroller, 308 Md. 370, 375, 519 A.2d
1277, 1280 (1987). "Discrimination" means "a failure to treat all persons
equally where no reasonable distinction can be found between those
favored and those not favored." Baker v. California Land Title Co., 349
F. Supp. 235, 239 (C.D. Cal. 1972).

   As we shall explain, the refusal to treat, or the imposition of higher

costs for treating, an HIV-positive or otherwise infected body constitutes
discrimination in violation of HO §7-317(a)(27). There is no reasonable
basis in science or law for treating HIV-positive bodies differently than
bodies thought to be noninfected.

   While this opinion request was pending, the General Assembly

enacted Chapter 154 (House Bill 388) of the Laws of Maryland 1992,
which amends HO §7-317(a) to add the following new ground for
discipline, if the licensee:

            (28) Except in an emergency life-threatening
        situation where it is not feasible or practicable, fails to
        comply with the Centers for Disease Control's
        guidelines on universal precautions.

The reference is to Centers for Disease Control ("CDC"),
Recommendations For Prevention of HIV Transmission in Health Care
Settings, 36 Morbidity and Mortality Weekly Rep. ("MMWR") 1 (1987);
36 MMWR 377 (1988). The guidelines adopted by the Governor's
Advisory Council on AIDS are virtually identical to those promulgated by
the CDC.

  According to the concept of universal precautions embodied in these

guidelines, all human blood and certain human body fluids are treated as
if known to be infectious for HIV, hepatitis B virus ("HBV"), and other
bloodborne pathogens. The CDC guidelines specifically promote the use
of universal precautions by morticians. See 36 MMWR at 8.

  Chapter 154 makes mandatory practices that were previously

voluntary and precludes a mortician from taking different precautions with
an infected body than a body not thought to be infected. In short,
morticians are legally obligated to don the protective clothes and adopt the
protective procedures that have previously been used only when the
mortician knew a body was infected. Failure to observe universal
precautions with all bodies may subject a mortician to discipline.

   Additionally, we direct your attention to regulations recently adopted

by the Occupational Safety and Health Administration of the federal
Department of Labor ("OSHA") and thereafter adopted by the Maryland
Occupation Safety and Health Office. See 56 Fed. Reg. 64175 (December
6, 1991); 19:10 Md. R. 930 (May 15, 1992); 19:6 Md. R. 682-684 (March
20, 1992). These regulations are intended to reduce occupational
exposure to HIV, HBV, and other bloodborne pathogens by requiring
health care workers to observe universal precautions. Under these
regulations, all human blood and body fluids are to be treated as if infected.
29 C.F.R. §1910.1030(b). These regulations require engineering and
work practice controls to be implemented and personal protective
equipment to be used. This personal protective equipment includes gloves,
gowns, laboratory coats, face shields or masks and eye protection, and
mouth pieces. Personal protective equipment will be considered
"appropriate" only if it does not permit blood or other potentially
infectious materials to pass through to or reach the employee's work
clothes, street clothes, undergarments, skin, eyes, mouth, or other mucus
membranes under normal conditions of use and for the duration of time
that the protective equipment will be used. 29 C.F.R. §1910.1030(d)(3).
These regulations do not permit a mortician to treat a body known to be
infected differently than any other body.

  Turning to the specific cases in your predecessor's letter, we are told

that Board members generally agree that Case A - refusal to embalm -
violates the statute. We are in accord. Unquestionably, embalming is a
fundamental service provided by a funeral home.4 Accordingly, a
mortician's refusal to embalm because the deceased was HIV-positive is
both a refusal to provide services and "discrimination" prohibited by HO
§7-317(a)(27).

   Cases B and C present a slightly different problem. In these two

cases, the mortician either contracts out the embalming to a different
funeral home, charging a higher fee, or charges an additional "handling" fee
if the body is to be cremated. These practices, too, constitute
discrimination. In both cases, the mortician would be taking actions that
increase the cost of the service solely because the deceased was HIV-
positive.

   An analogy to federal law is instructive. Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. §794, provides in general that "[n]o
otherwise qualified individual with handicaps ... shall, solely by reason of
his or her handicap, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance ..." 29 U.S.C. §794(a).5 The
Rehabilitation Act imposes an affirmative duty upon a doctor or an
institution to treat an "otherwise qualified" handicapped individual. If a
refusal to treat were based solely on the handicap, the refusal may violate
the Act. See Glanz v. Vernick, 750 F. Supp. 39 (D. Mass. 1990) (patient
for surgery infected with HIV was "otherwise qualified"; refusal to treat
actionable under the Rehabilitation Act).6

   The goal of HO §7-317(a)(27) is analogous to that of the

Rehabilitation Act: to prohibit discrimination against people infected with
HIV and those who seek funeral services on their behalf. Embalming is a
fundamental service provided by a mortician, and a mortician's refusal to
provide this service solely because the deceased was HIV-positive is
unjustifiable discrimination.7 Additionally, since morticians are required to
employ universal precautions with all bodies, there is no rational basis for
charging a higher "handling" fee to the family or friends of the deceased
because the body was HIV-positive.

   We do recognize that adopting universal precautions may ultimately

increase a mortician's cost of doing business. We are not suggesting that
this increase in operating costs may not be passed on to the consumer.
However, increased costs associated with universal precautions should be
passed on to the universe of consumers, not to the small subset of
consumers seeking services for those known to be infected with HIV.

   Finally, cases D and E too constitute discrimination under HO §7-

317(a)(27). In these cases, the funeral home does not specifically single
out HIV-infected bodies for disparate treatment but rather lumps together
all bodies infected with any contagious disease and either charges an
additional "handling" fee or contracts the embalming out to another funeral
home.

  In Case D, the increased fee is for additional contagious disease

equipment. In light of newly enacted HO §7-317(a)(28) and the pertinent
OSHA and MOSH regulations, such equipment is required with all bodies.
Thus, the additional fee is unnecessary and discriminatory.8

   In our view, it makes no difference that HIV is not being singled out.

While on its face treating all contagious diseases alike does not appear to
discriminate specifically against HIV-positive individuals, the effect of the
categorization is the same: A person who is HIV-positive suffers from
discrimination solely because of that fact. In our view, such disparate
treatment amounts to discrimination under HO §7-317(a)(27).

  A similar analysis applies to Case E. Assuming that the funeral home

is qualified to perform embalming services, which presumably it is as a
consequence of licensure, HO §7-317(a)(27) does not allow the funeral
home to contract out and charge more for that service solely because a
body is categorized as contagious. The net effect, like in Case D, is that
an additional charge for a service is imposed solely because of the fact that
a body is HIV-infected.

                                     III

                    Public Accommodations Law

 We have been advised by counsel to the Maryland Human Relations

Commission that Article 49B's prohibition of discrimination in public
accommodations based on handicap applies to funeral homes. Article 49B,
§5. HIV infection is a "handicap," according to the Human Relations
Commission. COMAR 14.03.02.02. See generally 76 Opinions of the
Attorney General 260, 273 (1991).

   In pertinent part, a public accommodation is defined as "a retail

establishment, whether offering goods, services, entertainment, recreation,
or transportation." Article 49B, §5(d)(1)(iii). Since a funeral home
provides services to consumers, the Human Relations Commission
maintains that a funeral home is a public accommodation within the
meaning of the Public Accommodation Law and thus is subject to the
jurisdiction of the Human Relations Commission. We agree.

   Indeed, a similar approach was applied by the New York Human

Relations Commission in Dimiceli and Sons Funeral Home v. New York
City Comm'n on Human Rights, No. 19527/86 (Sup. Ct. January 9, 1987),
reprinted in New York Law Journal, January 14, 1987, at 12. In this case,
also involving discrimination against persons infected with HIV, the trial
court upheld a New York Human Relations Commission decision that a
funeral home's practice of inflating fees for services and requiring families
of the deceased to pay for "unnecessary" precautions was discrimination
under the New York Human Rights Act. In Dimiceli, the defendants did
not deny that HIV infection was a "handicap" under the applicable statute,
but rather argued that the term "physically handicapped" did not
encompass those persons who are already dead. The court, rejecting that
argument, wrote as follows:

        There is adequate precedent for affording the
        individual dignity and freedom from discrimination not
        only in those activities and services performed during
        one's life, but also in those activities and services
        performed at one's death.

New York Law Journal at 12. See also Pennsylvania Human Relations
Comm'n v. Alto-Rest Park Cemetery Assoc., 453 Pa. 124, 306 A.2d 881
(1973) (nonsectarian cemeteries were places of public accommodation
under the Pennsylvania Human Relations Act).

   Accordingly, not only would the five practices that you presented to

us violate HO §7-317(a)(27), they would also be actionable under Article
49B, §5.

                                 IV

                Americans With Disabilities Act

  Title III of the Americans With Disabilities Act ("ADA"), 42 U.S.C.

§12181 et seq., prohibits discrimination against persons with disabilities in
the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation.
42 U.S.C. §12182. HIV infection, whether or not it has developed into
AIDS, is a "disability" under the ADA. 28 C.F.R. §36.104. A funeral
parlor is expressly included within the definition of "public
accommodation." 42 U.S.C. §12181(7)(F). Although in this situation the
deceased is the disabled individual, the ADA prohibits discrimination
against an individual because of the individual's association with someone
else known to be disabled. 42 U.S.C. §12182(b)(1)(E); 28 C.F.R.
§36.205. Thus, the family or friends of the deceased, as the victims of
discrimination, would have standing to bring an action.

   Under the ADA a funeral home is to make reasonable modifications

in policies, practices, and procedures to avoid discrimination. 42 U.S.C.
§12182(b)(2)(A)(iii). While the issue is subject to debate, in our view
adherence to universal precautions by morticians, in lieu of special
precautions when a body is thought to be HIV-positive, is precisely the
type of reasonable change in practice to avoid discrimination that the ADA
contemplates. Funeral homes may only be excused from compliance if they
can demonstrate that taking such steps would result in an "undue burden."
42 U.S.C. §12182(b)(2)(A)(iii). It is unlikely that the use of added
precautions such as disposable gloves is a demonstrably undue burden,
particularly in light of newly enacted HO §7-317(a)(28), which mandates
the use of universal precautions.

   Finally, ADA regulations prohibit a public accommodation from

imposing a surcharge on a particular individual or group of individuals with
a disability to cover the costs of reasonable modifications in policies,
practices, and procedures, if such modifications are required to provide
that group with the nondiscriminatory treatment required by the ADA. 28
C.F.R. §36.301(c). Consequently, the imposition of a surcharge or
"handling fee" for an HIV-infected body would be actionable under the
ADA. The vice is not passing on added costs, but rather forcing people
with a particular disability, HIV infection, to bear a disproportionate share
of those costs. The cost of universal precautions should be treated as just
another cost of doing business, spread among all of an establishment's
customers.

                                V

                           Conclusion

   In summary, it is our opinion that the funeral home practices

involving a refusal of service to, or the imposition of higher charges on,
HIV-positive individuals, including the five examples identified in your
predecessor's request to us, violate HO §7-317(a)(27). Moreover, all five
practices also violate the Maryland Public Accommodations Law and the
Americans With Disabilities Act.

                                    J. Joseph Curran, Jr.
                                    Attorney General

                                    Mary O'Malley Lunden
                                    Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note:

 The provision discussed in this opinion was recodified at HO §7-316

by Chapter 155 of the Laws of Maryland 1992.

1
A mortician is not always informed that the deceased was infected with
a contagious disease. Sometimes the fact of infection might not be known at all.

2
HIV is transmitted from person to person "by sexual contact, by contact
with contaminated needles, from mother to baby, by transfusion of infected blood
or blood products, and from infected blood or bloody body fluids in contact through
breaks in the skin or mucous membranes." HIV Infection Control at 1. The
Governor's Advisory Council reports "no documented spread of HIV by ordinary
household, social or office contacts." Id. Thus, a person simply viewing a body
is at no risk. Moreover, as we understand it, once a body has been embalmed there
is virtually no risk of transmission even if there were direct contact.

3
Other provisions of Chapter 789 were intended to provide information
and protection to those at risk of infection and to set forth guidelines for health care
workers with regard to counseling, testing, and notification. Additionally, Chapter
789 made it a crime for an individual to knowingly transfer HIV to others and
approved attendance at AIDS education programs as a sentencing option.

4
Indeed, to be licensed as a mortician, an applicant must pass a written
and practical examination demonstrating an ability to embalm. HO §7-305(d);
COMAR 10.29.02.03.

5
We are not suggesting that funeral homes in this State are subject to the
Rehabilitation Act. Individual morticians should direct inquiries to their counsel to
determine whether the Act applies to them.

6
Of course, HIV status may be relevant to a determination of whether
treatment is advisable. See, e.g., Doe v. New York University, 666 F.2d 761, 767
(2d Cir. 1981).

7
We recognize that nonpretextual circumstances may arise that
legitimately warrant contracting out embalming work - for example, staff shortages.
Contracting out the embalming of an HIV-positive deceased does not violate HO
§7-317(a)(27) if the reason for doing so is unrelated to the deceased's HIV status.

8
Charging an additional fee only to families of contagious decedents in all
likelihood also violates the Americans With Disabilities Act. See Part IV below.