(a) Pursuant to Occupations Code §651.159, the Texas Funeral Service Commission (herein referred to as the "TFSC"), the Texas Department of Insurance (herein referred to as the "TDI"), and the Texas Department of Banking (herein referred to as the "DOB") hereby adopt the following joint memorandum of understanding (JMOU) relating to prepaid funeral benefits as defined in Finance Code Chapter 154. The TFSC, TDI, and DOB intend this memorandum of understanding to serve as a vehicle to assist the three agencies in their regulatory activities, and to make it as easy as possible for a consumer with a complaint to have the complaint acted upon by all three agencies, where appropriate. In order to accomplish this end, where not statutorily prohibited, the three agencies will share information between the agencies which may not be available to the public generally under the Public Information Act, Government Code Chapter 552. Such information will be transmitted between agencies with the understanding that it is considered confidential, is being furnished to the other agencies in furtherance of their joint responsibilities as state agencies in enforcing their respective statutes, and that it may not be disseminated to others except as required.
(b) Responsibilities of each agency in regulating prepaid funeral benefits:
  (1) The Texas Funeral Service Commission is responsible for the following:
    (A) licensing funeral directors, embalmers, provisional funeral directors, provisional embalmers, crematory, and funeral establishments. The TFSC may refuse to license a person or establishment which violates Finance Code Chapter 154 under Occupations Code §651.460(b)(3);
    (B) taking action under Occupations Code §651.460(b)(3) against any licensee violating Finance Code Chapter 154; and
    (C) taking action under Occupations Code §651.460(b)(3) against any funeral director in charge, crematory owner, and/or funeral establishment owner for violations of Finance Code Chapter 154 by persons directly or indirectly connected to the crematory or funeral establishment.
  (2) The Texas Department of Banking is responsible for administering Finance Code Chapter 154, and 7 Texas Administrative Code (TAC) Chapter 25, including, but not limited to, the following:
    (A) bringing enforcement actions against any person, including licensees of TFSC and TDI, who violate Finance Code Chapter 154 and/or 7 TAC Chapter 25; and
    (B) all other actions authorized by Finance Code Chapter 154 and 7 TAC Chapter 25.
  (3) The Texas Department of Insurance is responsible for the following:
    (A) regulating insurers that issue or propose to issue life insurance policies or annuity contracts which may fund prepaid funeral contracts;
    (B) regulating individuals/entities that perform the acts of an insurance agent(s) as defined in the Insurance Code Article 21.02 and Chapter 101;
    (C) regulating insurance/annuity contracts that may fund prepaid funeral contracts;
    (D) regulating unfair trade practices relating to the insurance/annuity contracts which may fund prepaid funeral contracts pursuant to the Insurance Code Article 21.21;
    (E) regulating unfair claims settlement practices by insurance companies pursuant to the Insurance Code Chapter 542.
(c) Procedures used by each agency in exchanging information with or referring complaint to one of the other agencies.
  (1) Exchanging information. If, upon receipt of a complaint, or during the course of an investigation, an agency (referred to as the receiving agency) receives any information that might be deemed of value to another of the agencies (referred to as the reviewing agency), the receiving agency will contact the reviewing agency and will forward the relevant information to the reviewing agency at its request.
  (2) Referral of complaints for handling. When an agency receiving a complaint refers the complaint to another agency for handling, the receiving agency will contact the complainant in writing informing him or her of the referral, provide contact information to the reviewing agency's processing of the complaint.
  (3) Complaint procedures. The three agencies will work together to establish procedures to ensure complaints will be fully resolved by the reviewing agency.
(d) Procedures to be used by each agency in investigating a complaint.
  (1) All agencies.
    (A) Each agency will develop internal complaint procedures for violations relating to prepaid funeral benefits. The procedures should at a minimum provide for:
      (i) identification of necessary data and documents to be obtained from the complainant; and
      (ii) such other steps deemed necessary for the agency to perform an adequate and appropriate investigation.
    (B) Each agency may assist either of the other agencies with investigations relating to prepaid funeral benefits.
  (2) The Texas Funeral Service Commission.
    (A) Complaints received by the TFSC will be logged in and investigated as required under Occupations Code Chapter 651. A complaint about violations of Finance Code Chapter 154 and/or 7 TAC Chapter 25 will be referred to the DOB.
    (B) If disciplinary action against a licensee of the TFSC is found to be appropriate, the matter will be referred to the Administrator of Consumer Affairs & Compliance Division of TFSC.
    (C) If the complaint involves a matter handled by either the DOB or TDI, as well as a violation of the TFSC statutes or regulations, it will be referred to the appropriate agency for further action. DOB will be primarily responsible for enforcing violations of Finance Code Chapter 154 or 7 TAC Chapter 25. The agencies will coordinate their investigations to avoid duplication of effort.
  (3) Texas Department of Banking.
    (A) Complaints received by the Special Audits Division will be entered into a complaint log and assigned a reference number. If, after agency notice to the subject of the complaint, the complaint is not resolved, the DOB will investigate.
    (B) If disciplinary action against a person who violated Finance Code Chapter 154 or 7 TAC Chapter 25 is appropriate, the matter will be referred to the agency's legal staff.
    (C) If the complaint involves a matter handled by either the TDI or TFSC, as well as a violation of Finance Code Chapter 154 or 7 TAC Chapter 25, the DOB will coordinate with those agencies DOB will be primarily responsible for enforcing violations of Finance Code Chapter 154 or 7 TAC Chapter 25.
    (D) In the event that the DOB issues an order against a person or entity who is a licensee under the jurisdiction of the TFSC or the TDI, the DOB will send the TFSC and the TDI a copy of the order.
  (4) Texas Department of Insurance.
    (A) Complaints received by the Consumer Protection Division of TDI will be logged in and investigated, except that if a complaint is solely violations of Finance Code Chapter 154 and/or 7 TAC Chapter 25, the complaint will be referred to the DOB. Other areas of TDI can be called upon for assistance in the investigation of the complaint where appropriate.
    (B) If disciplinary or other regulatory action against a licensee of the TDI is found to be appropriate, the matter will be referred to the Compliance Intake Unit of TDI.
    (C) If the complaint involves a matter handled by either the DOB or TFSC, as well as a violation of the TDI statutes or regulations, it will be referred to the appropriate agency for further action. DOB will be primarily responsible for enforcing violations of Finance Code Chapter 154 or 7 TAC Chapter 25. The agencies will coordinate their investigations to avoid duplication of effort.
    (D) In the event that the Commissioner of Insurance issues an order against a person that also sells, funds or provides prepaid funeral benefits or is subject to the jurisdiction of the DOB or the TFSC, the TDI will send the DOB and the TFSC a copy of the order.
(e) Actions the agencies regard as deceptive trade practices.
  (1) The TFSC, the DOB, and the TDI regard as deceptive trade practices those actions found under Business and Commerce Code §17.46.
  (2) With respect to trade practices within the business of insurance, the TDI regards as deceptive trade practices those actions found under Insurance Code Chapter 541, other chapters of the Code and the regulations promulgated by the TDI there under.
(f) Information the agencies will provide consumers and when that information is to be provided.
Cont'd...
(1) TFSC, DOB, and TDI will continue to provide consumers with the brochure entitled "Facts About Funerals" developed by TFSC (in Spanish and in English). DOB will continue to provide consumers with information on its website in accordance with Finance Code §154.132, including the informational brochure developed in accordance with Finance Code §154.131.
  (2) DOB, TDI, and TFSC will maintain their toll free numbers.
  (3) TFSC, DOB, and TDI, as state agencies, are subject to the Public Information Act, Government Code Chapter 552. Upon written request, the three agencies will provide consumers with public information which is not exempt from disclosure under that Act. As noted in the preamble to this JMOU, the agencies may, where not statutorily prohibited, exchange information necessary to fulfill their statutory responsibilities among each other, without making such information public information under the Public Information Act.
(g) Administrative penalties each agency imposes for violations.
  (1) Texas Funeral Service Commission. The TFSC may impose an administrative penalty, issue a reprimand, or revoke, suspend, or place on probation any licensee who violates Finance Code Chapter 154. TFSC administrative penalties vary based on the violation; TFSC sanctions are imposed under Occupations Code Chapter 651.
  (2) Texas Department of Banking. DOB administrative penalties vary based on the violation; DOB sanctions are imposed under Finance Code Chapter 154.
  (3) Texas Department of Insurance. TDI administrative penalties vary based on the violation; TDI sanctions are imposed under Insurance Code Chapter 82.

Source Note: The provisions of this §201.15 adopted to be effective October 18, 2015, 40 TexReg 7065