As a funeral service provider, you assist people during some of the most challenging times in their lives. To safeguard the professionalism and dignity of the funeral service profession, the state of Texas created the Texas Funeral Service Commission (TFSC). TFSC oversees funeral service providers and handles any disciplinary proceedings that arise out of complaints about those providers.
Timeframe for Complaints
Generally, consumers must file complaints against funeral service providers within two years of the event that is the subject of the complaint. The Executive Director of the TFSC can waive the two-year limit if the consumer can show good cause for not filing the complaint sooner. However, since funeral homes are only required to keep records for two years, it can be much more challenging for TFSC to investigate older complaints.
Jurisdiction of the TFSC
The TFSC has concurrent jurisdiction over the death industry with the Texas Department of Banking (TBD) and the Texas Department of Insurance (TDI). The TBD oversees the prepaid funeral industry and perpetual care cemeteries. On the other hand, the TDI regulates the annuity and insurance contracts that fund prepaid contracts.
Due to this concurrent jurisdiction, one of the first things that the TFSC does when it receives a consumer complaint is to determine whether it has jurisdiction over the complaint or whether it should forward the complaint to the TBD or the TDI.
Review for Violation of Statute or Rule
In addition to reviewing the complaint for jurisdiction, the TFSC examines it to determine whether it alleges a violation of a law or rule that applies to funeral service providers. For example, funeral service providers are subject to the ethical standards found in 22 Tex. Admin. Code § 209.1, so if the complaint alleges a violation of one of these ethical standards, the TFSC has jurisdiction over the complaint.
If the TFSC finds no violation has occurred, it will administratively close the complaint. However, if the TFSC finds that a violation has occurred, it will notify the funeral service provider or license holder of the complaint, along with an initial request for documentation. The license holder then has 15 days to respond. The TFSC also will proceed to gather other statements or evidence as needed.
The Investigative Report and Agreed Orders
The TFSC then prepares an Investigative Report (IR) concerning the complaint and sends it to the license holder. The IR summarizes the facts and evidence related to the violation and contains an administrative penalty and sanction set by law.
The license holder has 30 days to respond by choosing one of two disposition options:
- The license holder can accept the IR and penalty and sign an Agreed Order to close the case.
- The license holder can request a settlement through formal or informal settlement negotiations. The proposed penalties may be rescinded, lowered, or left unchanged through these negotiations. If the parties can settle, they sign an Agreed Order to close the case.
If license holders fail to respond to the IR within 30 days, they waive the right to a hearing, and they must pay the penalty. Failure to pay the penalty will result in an automatic six-month license suspension.
The Administrative Penalties and Sanctions Schedule, Attachment to Rule 203.43 (Title 22, Part 10, Chapter 203), divides violations into four classes. Class A violations are the least serious, and Class D violations are the most serious. Each class of violation has a range of penalties based on the number of previous violations, as follows:
- Class A – $250 – $5,000 and/or sanction
- Class B – $500 – $5,000 and/or sanction
- Class C – $1,000 – $5,000 and/or sanction
- Class D – Up to $5,000 and/or sanction to $5,000 and revocation
The parties also can participate in alternative dispute resolution to resolve the matter under 22 Tex. Admin. Code § 207.1.
When the Parties Cannot Reach a Settlement
In some cases, despite settlement negotiations, the parties cannot reach a mutually acceptable resolution to the complaint or an agreed-upon disposition. When settlement fails, the TFSC sends a Notice of Hearing and Complaint to the license holder. The case then goes to the State Office of Administrative Hearings (SOAH) to schedule a hearing.
Following an administrative hearing, the administrative law judge (ALJ) issues a proposal for decision (PFD). The commissioners review, accept or modify the PFD, and notify license holders of the final action.
At that point, license holders can accept the final action and close the case via agreed order. If license holders still disagree with the outcome, they can seek judicial review through the court system.
We Will Stand Up for Your Rights Before the Texas Funeral Service Commission
You can count on an experienced funeral service license defense lawyer at Bertolino, LLP, to defend you when you receive notice of a complaint against you from the TFSC. We will investigate the circumstances that led to the complaint and devise the best defense strategy for your case. Together, we will work to clear your name and protect your license. You can call us today at (512) 515-9518 or contact us online.