The rift between the Missouri State Board of Embalmers and Funeral Directors and their Executive Director culminated in her resignation effective June 30th.    Over the course of the past several years, the State Board drew the ire of the industry in a number of ways.   The staff implemented regulation proposals before they were officially promulgated, and continued to do so even after the Board subsequently rescinded some of those rules.  The staff screened communications directed to the State Board, including seller responses to examination reports.  Missouri’s preneed annual report form was expanded beyond Missouri law requirements not once but twice.  Funeral establishments seeking license renewals were required to provide business licenses, or proof that business licenses were not required.   A priority was given to the enforcement of DBA requirements that threatened discipline to hundreds of licensees.  Discipline was sought on a seller over the adequacy of records before the adequacy of records was defined.  The ability to amend license applications was restricted, forcing funeral homes to incur the expense of new licenses.  Funeral homes seeking advice on the Board’s unwritten policy changes were instructed to hire an attorney.  And then there were the Chapter 436 complaints initiated by the staff before the Board had promulgated the procedures rule required by statute.

The inclination of many Missouri funeral directors will be to lay all blame at the feet of the outgoing Executive Director.  But, the scope of the staff’s actions could not have flown completely under the radar screen of the Division of Professional Registration.  Through administrative and legal support, the Division assists the State Board to enforce licensing standards set out in statute and regulations.  But since the 1986 amendment of Chapter 436, the Division has, from time to time, pushed the Board beyond its statutory authorities.  Rather than seek legislation to address gaps in the law, the Division has relied upon internal legal memorandums when providing the Board direction.  By not adhering to a strict construction of Chapter 436, the Division opened a path that the outgoing Executive Director followed.  When the Executive Director got ahead of advice from counsel, she increased the Board’s exposure to litigation.

With the financial examination process now dialed back to zero, the Division has an opportunity to regain the trust of the State Board and the trust of the industry.  No more overreaching to find statutory authority.  If a gap in SB1 poses a genuine threat to consumers, then disclose the need for remedial legislation.  As we will discuss in our next post, the Division was truthful with legislators in 2008 about a critical gap in the 1986 law.  Be as truthful with the State Board and the industry about gaps in SB1.