The Missouri State Board of Embalmers and Funeral Directors recently promulgated a rule (20 CSR 2120-3.560) to exempt certain cemetery operators from preneed licensing with the State Board. The rule was a long time coming. We first wrote about preneed licensing confusion for Missouri cemeteries back in 2009 (Lost in the translation: Missouri’s preneed exemption of cemeteries). While the State Board had taken a very public position about excluding cemeteries that complied with Chapter 214 (follow this hyperlink to the Board’s recommendations to the Missouri Legislature), cemeteries were not the Board’s highest priority.
Regardless, the overlap between Missouri’s cemetery law (Chapter 214) and Missouri’s funeral licensing law (Chapter 333) and preneed funeral law (Chapter 436) led to problems for Missouri cemeteries immediately after the passage of Senate Bill No. 1 in 2009. In the following year, this author represented two cemeteries before the State Board regarding their preneed programs. While the State Board’s Executive Director eventually agreed that the cemeteries’ compliance with RSMo. 214.387 was sufficient for the cemeteries to avoid Chapter 333 licensing (and a Chapter 436 contract and trust), the cemeteries would have avoided significant expenses if the Board had adopted an emergency rule with the passage of SB1. Accordingly, this author advocated for a rule to clarify when cemeteries would be exempted by the State Board.
The confusion caused by the overlap among Chapters 214, 333 and 436 resurfaced when the State Board rule was published this past March. The Associated Cemeteries of Missouri (Missouri’s state cemetery association) filed comments objecting to the rule. While most of the ACM’s arguments are difficult to follow, the State Board rule does expose certain cemeteries to regulation under Chapters 333 and 436. But, the ACM could not bring itself to identify the elephant in the room: religious cemeteries that both take a Chapter 214 exemption and sell cemetery services and merchandise through a preneed transaction.
In response to ACM’s objection, the State Board scheduled a special meeting to receive their comments and to reply. The ACM reiterated some of the same concerns that this author did ten years ago. And, the State Board replied in a manner consistent with their actions taken toward my clients years ago. 20 CSR 2120-3.560 is intended to assure cemeteries that comply with RSMo Section 214.387 that they will not be required to also comply with Chapters 333 and 436. Satisfied with that explanation, the ACM representative withdrew the association’s objection to the rule.
While the rule affords clarity to either endowed care cemeteries or non-endowed care cemeteries that comply with RSMo Section 214.387, the vast majority of Missouri cemeteries claim an exemption from Chapter 214. Accordingly, an unknown number of exempt Missouri cemeteries do have exposure to Chapters 333 and 436. This represents more of a problem with Chapter 214 than with Chapters 333 and 436. We will explore the Missouri Chapter 214 exemption in a future post.