Texas Administrative Code
Title 7 - BANKING AND SECURITIES
Part 2 - TEXAS DEPARTMENT OF BANKING
Chapter 25 - PREPAID FUNERAL CONTRACTS
Subchapter A - CONTRACT FORMS
Section 25.5 - How Do I Obtain Approval of a Non-Model Contract or Waiver?
Universal Citation: 7 TX Admin Code ยง 25.5
Current through Reg. 49, No. 38; September 20, 2024
(a) Authority. Finance Code, § RSA 154.151(a), requires the department to approve a prepaid funeral benefits contract form before you use the form. Finance Code, § RSA 154.156(a), requires the department to approve a waiver of cancellation rights form in the same manner. You may use the department's model contracts or model waiver as provided in § RSA 25.2(a) of this title (relating to Am I Required to Use the Model Contract and Model Waiver). This section describes:
(1) how to apply to the
department for approval of your proposed non-model contract, what information,
documents, and fees you must file as part of your application before the
department will accept it for filing, and what fees the department may impose,
in subsection (b) of this section;
(2) what procedures the department will
follow to approve or deny approval of your proposed non-model document and when
you may reasonably expect the department to decide, in subsection (c) of this
section;
(3) what actions you must
take to obtain a second review by the department or a hearing before the
commissioner if the department denies approval of your proposed non-model
document, in subsection (d) of this section;
(4) how you may request a hearing before the
commissioner, how the hearing will be conducted, and what the staff of the
department must prove to uphold the disapproval, in subsection (e) of this
section; and
(5) when you may no
longer use an approved contract form, in subsection (f) of this
section.
(b) Application for approval. Your application for approval of your proposed non-model document must be in writing and include all additional information, documents, and fees required by this subsection. You should file your application as far in advance of the date you intend to use your proposed document as possible.
(1) The additional information, documents,
and fees that you must file as part of your application include:
(A) both a printed copy of your proposed
non-model document and an electronic version of the document, prepared using
Microsoft Word or Corel WordPerfect software, including computer screenshots of
any portion to be used in electronic form;
(B) except as provided in §
RSA
25.2(d) of this title, an
English translation if the proposed non-model document is in Spanish and a
certification from a translation service acceptable to the department that the
filed English version is a true and correct translation of the proposed Spanish
non-model document filed for approval;
(C) if your application is for approval of
amendments to a previously approved non-model document:
(i) a printed copy of the proposed non-model
document that is specifically marked to show all text proposed to be added and
all text proposed to be deleted; and
(ii) a written summary of the amendments,
both additions and deletions, explaining their purpose;
(D) a certification on a form supplied by the
department, signed and acknowledged by you or your authorized agent, that you
have reviewed the proposed non-model document that you filed for approval and
to the best of your knowledge:
(i) your
proposed non-model document complies with all applicable state and federal law,
including Finance Code, Chapter 154, and this chapter;
(ii) if in electronic form, your proposed
non-model document also complies with Business and Commerce Code, Chapter 322,
and Electronic Signatures in Global and National Commerce Act, 15 U.S.C.,
§ 7001 et seq; and
(iii) if
your application is for approval of amendments to a previously approved
non-model document, the proposed non-model document is identical to the
previously approved document except for text specifically marked as additions
and deletions;
(E)
unless you notify the department that it already has a copy on file:
(i) a copy of all related contracts and
agreements that are part of your prepaid funeral arrangement, such as a
separate finance charge agreement; and
(ii) if the proposed non-model document is an
insurance-funded contract, a copy of the insurance policy form you intend to
use and written evidence from the Texas Department of Insurance that the
insurance policy has been approved for use in conjunction with the sale of
prepaid funeral benefits; and
(F) payment of a $250 filing fee, except that
upon request the department may waive or reduce the fee for review of minor
amendments to a previously approved non-model document that are submitted under
subparagraph (C) of this paragraph.
(2) Your application is considered accepted
for filing and eligible for consideration if the application is substantially
complete with all information, documents, and fees required by paragraph (1) of
this subsection. At your request, the department will inform you in writing of
the date it considers your application accepted for filing.
(3) If the department's review of a non-model
document takes longer than four employee hours, you must pay a review fee of
$60 per employee hour in excess of four hours. If you fail to pay review fees
on or before the 10th day after you receive a written statement of charges due
from the department, the department may exercise its discretion to conclude
that you have withdrawn your application.
(c) Review process. This subsection describes when you may reasonably expect the department to approve or deny approval of your proposed non-model document and the procedure the department will follow in making its initial decision.
(1) The time
the department's decision is due regarding your proposed non-model document
will vary depending upon the date your application is accepted for filing under
subsection (b)(2) of this section and on the nature of the document you seek to
have approved.
(A) If your proposed non-model
contract filing is the result of legislative amendments to Finance Code Chapter
154 effective on or after September 1, 2009, your non-model contract filing
will be considered a new contract filing and the department will approve or
deny approval on or before the 45th day after the date your application is
accepted for filing.
(B) If your
proposed non-model document is a non-model waiver or an amended version of a
non-model contract previously approved by the department under this section,
the department will approve or deny approval on or before the 30th day after
the date your application is accepted for filing, except the department will
either approve or deny approval on or before the 10th day after the date your
application is accepted for filing if the proposed amendments are limited to
changed or added information about you or a funeral home.
(2) The department may extend the date its
decision is due under this subsection by up to an additional 30 days if it
determines that your application raises issues requiring additional information
or additional time for analysis. The department may request additional
information from you in writing if the information is reasonably necessary for
an informed decision to approve or deny approval of your proposed non-model
document. If you receive a written request for additional information, you must
file the information or a satisfactory written explanation of when the
information can be filed with the department on or before the 30th day after
the date you receive the request. If you fail to reply within this time period
the department may exercise its discretion to conclude that you have withdrawn
your application.
(3) The
department will approve your proposed non-model document unless a specific
basis exists to deny approval. The department will deny approval if your
proposed non-model document fails to comply with the standards of this
subchapter that apply. If the department discovers and confirms that use of the
proposed non-model document will clearly violate a mandatory requirement of an
applicable state or federal law other than Finance Code, Chapter 154, and this
chapter, the department will deny approval. However, the department will
ordinarily not review a proposed non-model document for compliance with other
law, and approval of a non-model document under this section does not mean the
department has determined that the non-model document complies with any state
and federal law other than Finance Code, Chapter 154, and this
chapter.
(4) If the department
denies approval of your proposed non-model document, the department will send
you a written notice of denial that:
(A)
states the specific basis for the denial in writing and cites the specific
provisions of law that the document does not satisfy;
(B) informs you that, on or before the 30th
day after the date you receive the notice of denial, you must exercise your
rights under subsection (d) of this section, to file either a written request
for hearing or a revised non-model document for second review, or the denial
will become final.
(d) Your rights after initial denial. This subsection describes the further actions you may take to obtain approval of your non-model document if the department initially denies approval under subsection (c) of this section.
(1) If the
department denies approval of your proposed non-model document under subsection
(c) of this section, you may file a written request for hearing before the
commissioner under subsection (e) of this section or seek the department's
second review by filing a new version of your proposed non-model document that
you have specifically revised to address the reasons for denial.
(2) If you elect to file a new version of
your proposed non-model document for second review, the department will
consider the revised document to be part of your original application and will
not require a new filing fee but may charge additional review fees under
subsection (b)(3) of this section. The department will approve or deny approval
of your revised non-model document on or before the 10th day following the date
of its filing.
(3) If the
department denies approval of your revised non-model document, the department
will send you a second written notice of denial that:
(A) states the specific basis for the denial
in writing and cites the specific provisions of law that the revised non-model
document does not satisfy;
(B) if
minor changes to the proposed document would result in approval and you have
not previously been given the opportunity to make these changes, informs you of
the opportunity to obtain approval by submitting your document with the
specified changes on or before the 10th day after the date you receive the
department's second written notice of denial; and
(C) informs you that you must file a written
request for hearing with the department under subsection (e) of this section on
or before the 30th day after the date you receive the department's second
written notice of denial or the denial will become final.
(e) Commissioner hearing. This subsection describes how you may obtain a hearing before the commissioner and how the hearing will be conducted.
(1) To
obtain a hearing before the commissioner, you must file a written request for
hearing with the department on or before the 30th day after the date you
receive the department's written notice of denial. Your written request for
hearing must state with specificity the reasons you allege the department's
denial of approval is in error.
(2)
The department will forward your request for hearing to the administrative law
judge, who shall enter appropriate orders and conduct the hearing on or before
the 60th day after the date your request for hearing was received, under
Chapter 9 of this title (relating to Rules of Procedure for Contested Case
Hearings, Appeals, and Rulemaking) and Government Code, Chapter 2001. Your
complete application, the department's notice or notices of denial, and your
request for hearing will be made a part of the record.
(3) At the hearing, the staff of the
department bears the burden of proof that approval of your proposed non-model
document should be denied.
(4) The
proposal for decision, exceptions and replies to the proposal for decision, the
order of the commissioner, and motions for rehearing are governed by Chapter 9
of this title and Government Code, Chapter 2001.
(f) Withdrawn approval. The department may withdraw its approval of a model or previously approved non-model document for future use if governing law is changed or clarified by statute, rule, or judicial opinion. The department will notify you in writing if you are affected by a withdrawn approval.
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