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The Oregon Administrative Rules contain OARs filed through November 15, 2014
 
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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
DIVISION OF FINANCE AND CORPORATE SECURITIES

 

DIVISION 930

PREARRANGEMENT AND PRECONSTRUCTION PLANS

441-930-0010

Definitions

In addition to the definitions in ORS 97.010 and 97.923, the following definitions apply to OAR 441-930-0010 to 441-930-0360:

(1) "Applicant" means an entity applying to the director for a certification concerning prearrangement plans or for a registration to serve as a master trustee.

(2) “Director” means the Director of the Department of Consumer and Business Services.

(3) “Limited Operations Certified Provider” means a certified provider responsible for administering 10 or fewer prearrangement or preconstruction sales contracts which have a cumulative value of less than $20,000.

(4) "Registrant" means an entity holding a registration for a master trustee, issued by the director.

(5) "Trust Agreement" means any agreement governing a trust fund established to receive the proceeds of a prearrangement or preconstruction plan and administered by a registered master trustee.

(6) “Trust fund balance” means the total of all prearrangement or preconstruction contract payments provided through certified providers, installment payments, plus the earnings of the trust fund through investments. Both deposits and accumulated earnings become part of the principal of the trust fund for the subsequent year.

(7) "Unconscionable tactics" include, but are not limited to, actions by which a person:

(a) Knowingly takes advantage of a customer's physical infirmity, ignorance, illiteracy or inability to understand the language of the agreement; or

(b) Knowingly permits a customer to enter into a transaction from which the customer will derive no material benefit.

Stat. Auth.: ORS 97.926
Stats. Implemented: ORS 97.926
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0010; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11; FCS 6-2012, f. & cert. ef. 11-9-12

Master Trustees

441-930-0030

Applications for Registration of Master Trustees

(1) Each entity desiring to register as master trustee shall apply by submitting a written application with the director.

(2) The application must contain the following on a form prescribed by the director:

(a) Information concerning the applicant's identity and business address(es);

(b) A list of all officers, directors, and owners of the business;

(c) Personal background and business, professional, or work history of all persons identified in subsection (2)(b) of this rule;

(d) Proof that the entity is legally qualified to conduct business in this state, having made the appropriate filings with the Secretary of State;

(e) The depositories the applicant will use for funds received under the appointment from the certified provider;

(f) Financial statements including:

(A) A copy of the applicant's most recent audited financial statement, including balance sheet, statement of income or loss, statement of changes in shareholder equity, and statement of changes in financial position. All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles;

(B) If the audited financial statement is more than six months old, an internally prepared statement for the most recent month end; and

(g) A registration fee as set in OAR 441-930-0270.

(3) The director may conduct a background check of any of the officers, directors, and owners applying for registration. The background check may include information solicited from the Oregon State Police.

(4) A registration is continuing and remains in effect until it is surrendered by the registrant or revoked or suspended by the director.

Stat. Auth.: ORS 97.926 & 97.935
Stats. Implemented: ORS 97.935
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0030; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0035

Renewal Procedure

Submission of the annual report pursuant to OAR 441-930-0068 and the fees pursuant to 441-930-0270 shall constitute renewal of the application for registration.

Stat. Auth.: ORS 97.926 & 97.935
Stats. Implemented: ORS 97.935
Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0045

Material Changes, Notice of Civil and Criminal Actions

A master trustee must provide information to the director within 30 days of a material change to any information contained in the original application or any documents submitted with or as part of the application, including:

(1) Bankruptcy;

(2) Civil or criminal actions described on the application;

(3) Disciplinary disclosure answers;

(4) Change in additional affiliated business entity name;

(5) Change in control or ownership;

(6) Change in form of organization;

(7) Change of address;

(8) Change in scope of business; or

(9) Change in the depository used by a master trustee.

Stat. Auth.: ORS 97.926 & 97.935
Stats. Implemented: ORS 97.935
Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0065

When Application Deemed Abandoned

(1) For purposes of this rule, the term "application" includes all documents, information and fees prescribed for the registration of a master trustee.

(2) An application shall be deemed deficient when:

(a) The applicant has paid insufficient fees and the director has notified the applicant that fees are insufficient;

(b) Documents required to be submitted to the director by OAR 441-930-0030 and 441-930-0035 have not been submitted by the applicant; or

(c) The applicant has not submitted information requested by the director.

(3) An application shall be deemed abandoned if:

(a) The application has been on file for a minimum of 60 days;

(b) The application is deficient; and

(c) The applicant has failed to respond within 30 days to the director's written notice of warning of abandonment.

(4) An applicant whose application has been abandoned may reapply by submitting a new application and registration fee.

Stat. Auth.: ORS 97.926 & 97.935
Stats. Implemented: ORS 97.935
Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0068

Annual Report

Each master trustee is responsible for and shall file an annual report with the director by April 1 of each year on forms provided by the director. The report shall cover the preceding calendar year and shall include information on trusted funds:

(1) The actual value at the beginning and end of the calendar year;

(2) Deposits and withdrawals;

(3) Income earned and fees paid;

(4) Taxes paid for beneficiaries;

(5) Gains and losses; and

(6) The balance of all trust accounts as of December 31.

Stat. Auth.: ORS 97.926 & 97.935
Stats. Implemented: ORS 97.935
Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0070

Examination of Master Trustee

(1) Each master trustee that is or should be registered may be subject to an annual examination by the director. The director may, conduct an examination at the office of the master trustee or at the office of the director. The examination will be of the condition and resources of the master trustee, including:

(a) A review of the minutes of the annual meeting of owners and any special meeting;

(b) A review of all board or management meetings;

(c) Operating policies and procedures;

(d) Security of funds, including documentation demonstrating that all trust funds are received from each certified provider;

(e) Investment vehicles;

(f) Receipt and dispersal of funds;

(g) Investment and banking accounts;

(h) Audit reports; and

(i) Regulatory audit reports.

(2) A master trustee shall pay to the director the fees and costs of examination described in OAR 441-930-0270.

(3) At the discretion of the director, a master trustee located outside Oregon may make the books and records available for examination in Oregon.

(4) Upon completion of an examination conducted pursuant to OAR 441-930-0070 or 441-930-0260 the director shall issue a written report to the master trustee indicating the examination procedures applied and the examination findings.

Stat. Auth.: ORS 97.926, 97.935, & 97.947
Stats. Implemented: ORS 97.935 & 97.947
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0070; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0080

Master Trustee Rules of Conduct

(1) A master trustee is a fiduciary and has a duty to act solely for the benefit of purchasers of prearrangement sales contracts.

(2) The fees to be charged shall be described in a written agreement between the master trustee and each certified provider that has appointed the master trustee.

(3) A master trustee may delegate administration, record keeping, custody, investment or management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The master trustee may not delegate, and shall exercise reasonable care, skill and caution in:

(a) Selecting an agent;

(b) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust;

(c) Periodically reviewing the agent's actions to monitor and ensure the agent's performance and compliance with the terms of the delegation; and

(d) Ensuring that all trust funds received are from a certified provider by a sales contract, including, but not limited to ensuring that all contracts are accounted for and ensuring certification of providers from whom they accept trust funds.

(4) A master trustee shall invest and manage trust assets as a prudent investor would. A master trustee that complies with ORS 130.755 satisfies this requirement.

(5) In investing and managing trust assets, regardless of whether those functions have been delegated, a master trustee may only incur fees and expenses that are appropriate and reasonable in relation to the assets, the purposes of the trust and the skills of the master trustee, not to exceed the maximum specified in ORS 97.943.

Stat. Auth.: ORS 97.926 & 97.935
Stats. Implemented: ORS 97.935
Hist.: FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0085

Calculation of Trust Fund Deposit Earnings

If a master trustee elects to pay administrative fees and expenses, as described in ORS 97.943(9), from earnings on trust fund deposits for administrative fees, the master trustee or the certified provider shall calculate the principal amount of the trust fund in accordance with this rule.

(1) A master trustee or certified provider must calculate the allowable amount of earnings available by determining the principal amount of the trust fund on January 1 and on July 1 of the calendar year in which the earnings are appropriated for administrative expenses.

(2) By January 1 of each calendar year, a master trustee must submit, in a form and format fixed by the director, notice that the master trustee elects to pay administrative fees and expenses from the trust fund balance.

(3) By July 31 each calendar year, a master trustee must submit, in a form and format fixed by the director, the following calculations:

(a) The principal amount of the trust fund as of January 1;

(b) Two percent of the principal amount of the trust fund as of January 1;

(c) The principal amount of the trust fund as of July 1;

(d) Two percent of the principal amount of the trust fund as of July 1;

(4) The calculation completed under subsection (3)(d) of this rule shall be the maximum amount of earnings on the principal amount of the trust fund that may be appropriated for administrative expenses.

Stat. Auth.: ORS 97.926
Stats. Implemented: ORS 97.935
Hist.: FCS 6-2012, f. & cert. ef. 11-9-12

Certified Providers

441-930-0210

Application for Certification

(1) Each entity desiring to obtain a certification shall apply by submitting a written application with the director.

(2) An application must contain the following on or with a form prescribed by the director:

(a) A list of all officers, directors, and owners of the business;

(b) Information concerning the applicant's identity and business address(es);

(c) If the applicant is an individual or sole proprietorship, the applicant's social security number. Provision of this number is mandatory and failure to provide the applicant's social security number shall be considered grounds for denying certification to the applicant.

(d) The business, professional or work history of all persons identified in subsection (2)(a) of this rule;

(e) Proof that the entity is legally qualified to conduct business in this state, having made the appropriate filings with the Secretary of State;

(f) The master trustee and depository(ies) the applicant intends to use for funds received from the sale of the prearrangement plans;

(g) For certified providers who place trust funds in a depository and will not be using a master trustee for long-term trust investment, financial statements including:

(A) A copy of the applicant's most recent audited financial statement, including balance sheet, statement of income or loss, statement of changes in shareholder equity and statement of changes in financial position. All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles; and

(B) If the audited financial statement is more than six months old, an internally prepared statement for the most recent month;

(h) A list of prearrangement plans to which the applicant was a party at the date of application; and

(i) A certification fee as set in OAR 441-930-0270.

(3) The director may conduct a background check of any officer, director, or owner applying for certification. The background check may include information solicited from Oregon State Police.

(4) Authority for operation as a certified provider is continuing and remains in effect until surrendered by the provider or revoked or suspended by the director.

Stat. Auth.: ORS 97.926, 97.933, & 97.948
Stats. Implemented: ORS 97.933 & 97.948
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; DOC 2-2002(Temp) f. & cert. ef. 2-12-02 thru 8-1-02; DO 3-2002, f. & cert. ef. 5-23-02; Renumbered from 440-300-0210; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0220

Renewal Procedure

Submission of the annual report pursuant to OAR 441-930-0250 and the fees pursuant to 441-930-0270 shall constitute renewal of the application for certification.

Stat. Auth.: ORS 97.926 & 97.933
Stats. Implemented: ORS 97.933
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0220; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0230

Material Changes, Notice of Civil and Criminal Actions

A certified provider must provide information to the director within 30 days of a material change to any information contained in the original application or any documents submitted with or as a part of the application, including:

(1) Bankruptcy;

(2) Civil or criminal actions described on the application;

(3) Disciplinary disclosure answers on the application;

(4) Change in additional affiliated business entity name;

(5) Change in control or ownership;

(6) Change in form of organization;

(7) Change of address for a master trustee;

(8) Change in scope of business;

(9) Change in any depository used by the certified provider; or

(10) Change in the master trustee being used by the certified provider.

Stat. Auth.: ORS 97.926 & 97.933
Stats. Implemented: ORS 97.933
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0230; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0240

When Application Deemed Abandoned

(1) For purposes of this rule, the term "application" includes all documents, information and fees prescribed for a certified provider as set forth in ORS 97.923 to 97.949, OAR 441-930-0030, 441-930-0210 and 441-930-0270.

(2) An application shall be deemed deficient when:

(a) Insufficient fees have been paid and the director has notified the applicant that fees are insufficient;

(b) Documents required to be submitted to the director by OAR 441-930-0210 or 441-930-0020 have not been submitted by the applicant; or

(c) Information requested by the director has not been submitted by the applicant.

(3) An application shall be deemed abandoned if:

(a) The application has been on file for a minimum of 60 days;

(b) The application is deficient; and

(c) The applicant has failed to respond within 30 days to the director's written notice of warning of abandonment.

(4) An applicant whose application has been abandoned may reapply by submitting a new application, including fees.

Stat. Auth.: ORS 97.926 & 97.933
Stats. Implemented: ORS 97.933
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0240; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0250

Annual Report

Each certified provider is responsible for and shall file an annual report with the director by April 1 of each year on forms provided by the director. The report shall cover the preceding calendar year and shall include:

(1) The actual value at of all trusted funds at the beginning and end of the calendar year;

(2) Deposits and withdrawals from trusted funds;

(3) Income earned and fees paid on trust accounts;

(4) Withdrawals from principal of the trust account;

(5) Expenses withdrawn from trust account income for master trustee, accounting, record keeping and administration, depository and investment fees;

(6) Taxes paid for the benefit of beneficiaries;

(7) Gains and losses of trusted funds;

(8) For certified providers who have placed trust funds with a depository, a copy of their most recent audited annual financial statement, including a balance sheet, statement of income or loss, statement of changes in shareholder equity and statement of changes in financial position. All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles; and

(9) An inventory of the details of the merchandise specified in ORS 97.933 from a certified provider that has sold and delivered funeral merchandise, cemetery merchandise, or a combination,.

Stat. Auth.: ORS 97.926 & 97.933
Stats. Implemented: ORS 97.933
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; DOC 2-2002(Temp) f. & cert. ef. 2-12-02 thru 8-1-02; DO 3-2002, f. & cert. ef. 5-23-02; Renumbered from 440-300-0250; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0255

Reporting by Limited Operations Certified Provider

A limited operations certified provider must report the following activities to the director within 15 days of the occurrence:

(1) Transfer of any contract to another certified provider; or

(2) Sale of any new prearrangement or preconstruction contract.

Stat. Auth.: ORS 97.926
Stats. Implemented: ORS 97.933
Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0260

Examination of Certified Providers

(1) Each provider that is or should be certified is subject to an examination by the director. The director may conduct an examination of the condition and resources, including a review of the sales contracts used by the certified provider, to determine whether the provider is complying with requirements of ORS 97.923 to 97.949, the laws of this state and the rules of the director.

(2) A provider shall pay to the director all fees and costs of an examination pursuant to the provisions of OAR 441-930-0270.

(3) Upon the motion of the director or upon receipt of a complaint by a customer of the provider, the director may examine the provider with respect to any violation. In lieu of an annual on-site examination, the director may accept a report prepared by an independent accounting firm. Reports so accepted are considered for all purposes as an official report of the director.

(4) The director may examine a record relating to a prearrangement plan at any place and in any manner the director considers necessary to protect the interests of the purchasers or beneficiaries.

(5) Certified providers who maintain books and records outside the state of Oregon may, at the discretion of the director, produce the records in Oregon for examination.

(6) Upon completion of an examination conducted by the director shall issue a written report to the certified provider indicating the examination procedures applied and the examination findings.

Stat. Auth.: ORS 97.926, 97.933, & 97.947
Stats. Implemented: ORS 97.947
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0260; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0267

Irrevocable Prearrangement Sales Contracts

(1) Certified providers may only issue an irrevocable prearrangement sales contract in limited circumstances. The certified provider must receive proof from the purchaser or beneficiary that the beneficiary of the trust is:

(a) Currently receiving public assistance; or

(b) Has filed the necessary papers and started the formal process to receive benefits.

(2) An irrevocable trust may not be cancelled, changed, or revised to become any other type of preneed funding mechanism and may not be distributed for any purpose other than the death of the beneficiary.

(3) A revocable contract may be converted to an irrevocable contract upon agreement of all parties to reflect a change of circumstances of the beneficiary of the sales contract.

Stat. Auth.: ORS 97.926
Stats. Implemented: ORS 97.939 & 97.943
Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

Certified Providers and Registered Master Trustees

441-930-0270

Fees Assessed to Certified Providers and Registered Master Trustees

The director shall annually assess the following fees for each registered master trustee, certified provider, or applicant:

(1) Certification Fee — $390 per certified provider. Each location is a separate entity for purposed of this fee.

(2) Registration Fee — $390 per master trustee.

(3) Limited Operations Fee — $80.

(4) Exam Fees — $75 per hour for each examiner, plus costs of an examination.

(5) If the books and records are located outside Oregon, the certified provider or master trustee must pay travel and per diem expenses.

Stat. Auth.: ORS 97.926, 97.933 & 97.935
Stats. Implemented: ORS 97.933, 97.935, 2011 HB 5014
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0270; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 3-2005, f. & cert. ef. 9-6-05; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 8-2008, f. & cert. ef. 8-28-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11; FCS 6-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11; FCS 9-2011, f. & cert. ef. 10-3-11

441-930-0290

Unprofessional Conduct

An entity engaging in the following conduct is subject to probation, suspension, revocation, or denial of a certification or registration and assessment of a civil penalty pursuant to ORS 97.948 and OAR 441-930-0310:

(1) Furnishing false or misleading information to the director in connection with:

(a) Obtaining, renewing, reinstating, or maintaining certification or registration;

(b) The filing of an annual report; or

(c) An investigation;

(2) Failing to furnish accurate and understandable price information to consumers;

(3) Employing any unconscionable tactic in connection with the offer or sale of a prearrangement plan;

(4) Failing to make and verify trust deposits in the amounts and within the times specified in ORS 97.941;

(5) Withdrawing principal or income of a trust account in excess of what is permitted pursuant to ORS 97.943;

(6) Failing to comply with the annual reporting requirements as required by ORS 97.933 or these rules;

(7) Failing to provide the goods and services agreed to in a sales contract;

(8) Using trust funds for non-trust purposes;

(9) Failing to release trust funds to the rightful payee within 30 days of the date of request for release; or

(10) Failing to comply with any other provision of ORS 97.923 to 97.949, or these rules.

Stat. Auth.: ORS 97.926, 97.933, & 97.935
Stats. Implemented: ORS 97.933, 97.935, 97.941, & 97.948
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0290; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0300

Notice of Complaint

(1) Each certified provider and each master trustee who has filed a complaint against any of its partners, officers, or directors, or, associated persons located in Oregon, with any law enforcement agency, any other regulatory agency with jurisdiction over prearrangement plans, or any bonding company regarding any loss arising from alleged acts of such person, shall send a copy of the complaint to the director within ten calendar days following its filing with the other agency or bonding company.

(2) The certified provider or master trustee shall notify the director within ten calendar days of learning of any action initiated by a law enforcement agency or regulatory agency against any of its partners, officers, or directors, or associated persons located in Oregon on the basis of something other than a complaint from the certified provider or master trustee.

(3) The certified provider or master trustee shall file a copy of any finding, censure, fine, suspension, or expulsion made as a result of an action by any law enforcement agency or other regulatory agency with the director within ten calendar days following receipt of the document.

Stat. Auth.: ORS 97.926
Stats. Implemented: ORS 97.933 & 97.935
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0300; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0310

Revocation, Suspension and Denial of Certificate or Registration

The director may impose a civil penalty or probation, or revoke, suspend, or deny a certification of a certified provider or a registration of a master trustee when one or more of the following conditions exist:

(1) The certified provider's license under ORS 692.160 expires or is suspended or revoked by the State Mortuary and Cemetery Board;

(2) The certified provider or master trustee fails to submit an annual report required by ORS 97.933;

(3) The certified provider or master trustee fails to submit the certification or registration fee required by OAR 441-930-0270;

(4) The certified provider or master trustee fails to maintain or denies the director access to the financial records and supporting documents necessary to examine their annual report;

(5) The certified provider or master trustee has filed a materially false or misleading report with the director;

(6) The certified provider fails to deliver or deposit prearrangement plan receipts to the master trustee or depository within five business days as required by ORS 97.941;

(7) The certified provider or master trustee fails to account to interested persons for monies received;

(8) The certified provider or master trustee has willfully or repeatedly violated or failed to comply with any provision of ORS 97.923 to 97.949, or OAR 441-930-0030 through 441-930-0360;

(9) The certified provider or master trustee is permanently or temporarily enjoined by a court of competent jurisdiction from engaging in or continuing any conduct or practice involving any aspect of the business of a certified provider or master trustee, respectively;

(10) The certified provider or master trustee is the subject of disciplinary action by another state or government agency provided the activity subject to discipline would constitute a violation of Oregon law or administrative rules;

(11) The director finds that the certified provider, master trustee, or an applicant for certification or for registration has been convicted of a felony or a misdemeanor that involved dishonesty or fraud, in this state or any other state;

(12) The director finds that an administrative agency, in this state or any other state, has issued a final order against the certified provider, master trustee, or an applicant for certification or for registration;

(13) The director finds that the certified provider, master trustee, or an applicant for certification or for registration has an outstanding judgment by a court, in this state or any other state; or

(14) The director finds that the applicant or an officer, director, or owner of the applicant does not possess the financial and business experience required by these rules.

Stat. Auth.: ORS 97.926, 97.933 & 97.935
Stats. Implemented: ORS 97.948
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0310; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0320

Notice Requirements

(1) The director shall provide written notice to the certified provider, master trustee, or applicant and to the State Mortuary and Cemetery Board of the director's intent to impose discipline pursuant to ORS 97.936, 97.948, or to deny an application.

(2) The director shall provide written notice of the Director's Final Order to impose discipline pursuant to ORS 97.936, 97.948, or to deny an application from:

(a) A certified provider or certified provider applicant that sells or is responsible for administering a prearrangement or preconstruction plan trust accounts; or

(b) A master trustee or master trustee applicant, holding trust funds from a certified provider

(3) This notice shall state:

(a) The reasons for the action;

(b) The effective date of the action; and

(c) The right to request a hearing under ORS Chapter 183.

Stat. Auth.: ORS 97.933 & 97.935
Stats. Implemented: ORS 97.936 & 97.948
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0320; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0330

Records to be Retained

(1) Each certified provider and master trustee shall maintain records to document the balances and transactions included in its annual report filed pursuant to OAR 441-930- 0068 and 441-930-0250 and shall retain these records for examination by the director. Each certified provider and master trustee shall make, keep and preserve the following books, accounts and other records for a period of three years after funds from all trust have been distributed, at need or upon cancellation of the contract. The records required to be maintained include, but are not limited to:

(a) Work papers documenting preparation of the annual report;

(b) General ledger or subsidiary ledger account records relating to prearrangement plans;

(c) Receipts register;

(d) Sales registers that show the delivered merchandise and/or services provided in the appropriate trust agreement file, including the name and date of birth of the beneficiary and a description of the merchandise;

(e) Work papers documenting distribution of interest income to individual trusts in a common trust account;

(f) Prearrangement or preconstruction contract files, trust agreement files, and other supporting documentation related to prearrangement transactions. Every contract sold or to be administered by the certified provider must be accounted for and retained, even if they were voided or not issued;

(g) Bank statements; and

(h) Statements from other financial institutions.

(2) Books, accounts, and other records required to be maintained under section (1) of this rule may be maintained:

(a) In a photographic, electronic, and other similar form; or

(b) At a location in Oregon, unless specifically authorized by the director.

Stat. Auth.: ORS 97.926. 97.933 & 97.935
Stats. Implemented: ORS 97.947
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0330; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

Funeral and Cemetery Consumer Protection Trust Fund

441-930-0350

Funeral and Cemetery Consumer Protection Trust Fund

(1) The director shall order restitution from the Funeral and Cemetery Consumer Protection Trust Fund when the following conditions are met:

(a) A claim for restitution is submitted to the director on forms supplied by the director accompanied by:

(b) A copy of the prearrangement or preconstruction contract;

(c) Copies of canceled checks or payment receipts demonstrating payment;

(d) Correspondence with the provider concerning attempts to obtain repayment; and

(e) Any other information the claimant believes may be helpful to document the claim.

(2) The director will review the claim form and accompanying documentation to determine if a loss was incurred by the claimant on a prearrangement or preconstruction sales contract.

(3) Sufficient funds must be available in the Funeral and Cemetery Consumer Protection Trust Fund to pay the claim.

(4) The director shall provide written notice of its intent to order restitution or not to order restitution to the maker of the claim and to the person or entity that is the subject of the claim.

Stat. Auth.: ORS 97.926 & 97.945
Stats. Implemented: ORS 97.945
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0350; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

Endowment Care Cemeteries

441-930-0360

Surety Bond Requirements for Endowment Care Cemeteries

(1) If a surety bond is revoked, or otherwise terminated, the endowment care cemetery must immediately file a replacement bond.

Failure to send the notice at least 30 days in advance will not preclude the endowment care cemetery from being subject to the provisions of ORS 97.923 to 97.949 and 692.180.

(2) An endowment care cemetery may cancel the surety bond or letter of credit upon 30 days advance notice to the director of completion of the covered construction of all crypts and niches or burial vaults or markers that were part of the development.

Stat. Auth.: ORS 97.926
Stats. Implemented: ORS 97.929
Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0360; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

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