With this post we are returning to the misstatements made by the Missouri Funeral Directors and Embalmers Association in their May video explaining preneed portability. At minute 10:18 of the MFDEA video, the association attorney advises that Chapter 436 only allows transfer of preneed contracts to funeral homes licensed by the Missouri State Board. Employing a strained interpretation of “alternate provider”, the association suggests that state law precludes the transfer of a Missouri preneed contract to a funeral home licensed in another state. There was a time that the Missouri State Board might have agreed with that statement. However, the Federal Trade Commission warned the State Board in 2008 that such an interpretation of Missouri law would be an impermissible restraint of trade.
In 2006, this author represented a cemetery client that sought to register as a Chapter 436 preneed seller. The State Board refused, taking the position that only Missouri licensed funeral establishments could agree to perform a Missouri preneed contract. The State Board took that position at a time when a Federal Trade Commission complaint was already pending against it. This author wrote to the FTC requesting that it expand its complaint to address preneed. The FTC incorporated our inquiry into their discipline of the State Board, requiring the Board to post the Settlement and the FTC’s response to our letter on the Board website for 10 years.
Yes, Chapter 436 has been rewritten since the FTC’s 2008 Settlement with the Missouri State Board. But the FTC will pierce through the smoke and mirrors argued by the association and look to see if the State Board interprets the law to restrain Missouri preneed contract holders from transferring to an out of state funeral home. We anticipate that the new State Board will decline to back up the MFDEA’s efforts to discourage preneed portability.