And so goes the list of New Year resolutions for the Illinois funeral director, with the last being forced on the industry by SB 1682.
Funeral directors and consumers can learn more about the new independent trustee requirements by visiting the Comptroller's website for SB 1682 information and SB1682 FAQ issues .
With the upcoming new year, Illinois smaller funeral homes will begin searching for a corporate trustee for their preneed funds. With the Legislature's approval of the Governor's Amendatory Veto of SB1682, funeral directors lose the authority to serve as fiduciary of their own preneed funds.
The old axiom was that it would take three consecutive legislative sessions to get a preneed bill passed. If Missouri and Illinois are indicators of the current preneed reform movement, the charm may be based not on attempts but actual bills passed by the legislature.
The Illinois Comptroller’s proposal for preneed reform, SB1682, is progressing quickly towards approval of the Governor’s amendatory veto. While the bill fails to address most of the recommendations made by the Governor’s task force, SB1682 will tighten the trusting requirements of preneed funds until comprehensive legislation is passed. Consequently, Illinois’ preneed sellers face the dual task of complying with SB1682 and negotiating the future of the preneed transaction. With the various pending lawsuits, the question is whether the Illinois death care industry has the capacity to work with regulators towards a consensus bill.
Missouri preneed funeral regulators have been slow to communicate the new requirements of that state’s new preneed law, Senate Bill No. 1. That bill was written without much cooperation from either the funeral industry or the cemetery industry, and the result is an ambiguous law that imposes requirements without sufficient consideration of practical compliance by the funeral industry. The law has been the source of tremendous confusion, and many funeral directors would rather ‘opt out’ completely. Against a backdrop of the NPS failure, regulators and funeral homes would be best served to reconcile their differences in an attempt to address SB1’s flaws.
Missouri’s cemetery industry also faces a similar legislative task. With a strategy based on the old axiom, one constituency of the Missouri cemetery industry pursued legislation that included provisions intended to provide preneed sellers an option out of SB1. That legislation included provisions objectionable to cemeteries with preneed programs, and most of the bill was scuttled at the 11th hour. The resulting bill opened the door for Missouri cemeteries to establish Chapter 214 preneed programs, but does not provide any regulatory oversight for consumer protections. The bill also leaves the Missouri cemetery industry with the prospect of being regulated under SB1.
Historically, it was the internal industry disputes that made preneed legislation so difficult to pass. Legislators would send the squabbling parties home until they could resolve their disputes. What has changed in the dynamics of preneed legislation is the role of the regulator. Frauds measured by the millions are forcing regulators to share in the accountability of preneed failures. The regulator’s agenda is now trumping the industry’s internal disputes in Illinois and Missouri.
But, the regulator’s trump card does not necessarily guaranty a law that best serves the consumers’ interests.
Governor Quinn's Cemetery Oversight Task Force worked overtime to get their report done early, and Illinois' death care industry now faces new questions about reform legislation. It would appear that SB1682 will not be the last shot fired in the battle for death care reform for Illinois.
The full report is available on the Governor's website.
Reform in Illinois inched closer to reality with Governor Quinn's "amendatory veto" of SB1682. If accepted by the Illinois legislature, the reform bill will become law on January 31, 2010.
However, the Governor is seeking a 30 day window between the deadline for the report due from the Funeral Burial Task Force and SB1682's effective date. It is doubtful much could be done to change SB1682 during that 30 day period. Accordingly, the Governor's action adds confusion for the Illinois death care industry.
If the amendatory veto is approved, Illinois funeral homes and cemeteries should plan for the January 31, 2010 effective date.
NPS' sister corporation, Forever Illinois, used the Illinois self trusting provisions to administer preneed funds. As with funeral operators, Senate Bill 1682 will force Illinois cemeteries to seek corporate fiduciaries to administer their preneed and endowed care funds.
Federal and state regulators can not quite agree on how to define the preneed transaction. Federal regulators tend to view the preneed transaction as a current sale of goods and services (where the delivery is deferred until a future date). In contrast, state regulators are increasingly defining the transaction in terms that defer consummation of the sale until the beneficiary's death. This is reflected in a bill (SB1682) passed recently by the Illinois Legislature.
Through a deletion to 225 ILCS 45/1b (b), the preneed seller will no longer be allowed to retain a finance charge from the purchaser payments. While not all preneed sellers include a finance charge on their installment sales, some do in order to offset the earnings lost when the purchase is paid over time.
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