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Title XXVIII CONTRACTS AND CONTRACTUAL RELATIONS

Chapter 436

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  436.470.  Complaint procedure — violation, attorney general may file court action. — 1.  Any person may file a complaint with the board to notify the board of an alleged violation of this chapter.  The board shall investigate each such complaint.

  2.  The board shall have authority to conduct inspections and investigations of providers, sellers, and preneed agents and conduct financial examinations of the books and records of providers, sellers, and preneed agents and any trust or joint account to determine compliance with sections 436.400 to 436.520, or to determine whether grounds exist for disciplining a person licensed or registered under sections 333.310 to 333.340, at the discretion of the board and with or without cause.  The board shall conduct a financial examination of the books and records of each seller as authorized by this section at least once every five years, subject to available funding.

  3.  Upon determining that an inspection, investigation, examination, or audit shall be conducted, the board shall issue a notice authorizing an employee or other person appointed by the board to perform such inspection, investigation, examination, or audit.  The notice shall instruct the person appointed by the board as to the scope of the inspection, investigation, examination or audit.

  4.  The board shall not appoint or authorize any person to conduct an inspection, investigation, examination, or audit under this section if the individual has a conflict of interest or is affiliated with the management of, or owns a pecuniary interest in, any person subject to inspection, investigation, examination, or audit under chapter 333 or sections 436.400 to 436.520.

  5.  The board may request that the director of the division of professional registration, the director of the department of commerce and insurance, or the office of the attorney general designate one or more investigators or financial examiners to assist in any investigation, examination, or audit, and such assistance shall not be unreasonably withheld.

  6.  The person conducting the inspection, investigation, or audit may enter the office, premises, establishment, or place of business of any seller or licensed provider of preneed contracts, or any office, premises, establishment, or place where the practice of selling or providing preneed funerals is conducted, or where such practice is advertised as being conducted for the purpose of conducting the inspection, investigation, examination, or audit.

  7.  Upon request by the board, a licensee or registrant shall make the books and records of the licensee or registrant available to the board for inspection and copying at any reasonable time, including, any insurance, trust, joint account, or financial institution records deemed necessary by the board to determine compliance with sections 436.400 to 436.520.

  8.  The board shall have the power to issue subpoenas to compel the production of records and papers by any licensee, trustee or registrant of the board.  Subpoenas issued under this section shall be served in the same manner as subpoenas in a criminal case.

  9.  All sellers, providers, preneed agents, and trustees shall cooperate with the board or its designee, the division of finance, the department of commerce and insurance, and the office of the attorney general in any inspection, investigation, examination, or audit brought under this section.

  10.  This section shall not be construed to limit the board's authority to file a complaint with the administrative hearing commission charging a licensee or registrant with any actionable conduct or violation, regardless of whether such complaint exceeds the scope of acts charged in a preliminary public complaint filed with the board and whether any public complaint has been filed with the board.

  11.  The board, the division of finance, the department of commerce and insurance, and the office of the attorney general may share information relating to any preneed inspection, investigation, examination, or audit.

  12.  If an inspection, investigation, examination, or audit reveals a violation of sections 436.400 to 436.520, the office of the attorney general may initiate a judicial proceeding to:

  (1)  Declare rights;

  (2)  Approve a nonjudicial settlement;

  (3)  Interpret or construe the terms of the trust;

  (4)  Determine the validity of a trust or of any of its terms;

  (5)  Compel a trustee to report or account;

  (6)  Enjoin a seller, provider, or preneed agent from performing a particular act;

  (7)  Enjoin a trustee from performing a particular act or grant to a trustee any necessary or desirable power;

  (8)  Review the actions of a trustee, including the exercise of a discretionary power;

  (9)  Appoint or remove a trustee;

  (10)  Determine trustee liability and grant any available remedy for a breach of trust;

  (11)  Approve employment and compensation of preneed agents;

  (12)  Determine the propriety of investments;

  (13)  Determine the timing and quantity of distributions and dispositions of assets; or

  (14)  Utilize any other power or authority vested in the attorney general by law.

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(L. 2009 S.B. 1)


---- end of effective   28 Aug 2009 ----

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