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.