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Model Guidelines for State Laws and Regulations

These guidelines are advisory in nature and set out general concepts rather than precise statutory language. The ICCFA is not recommending that the guidelines be codified into law as a whole. Instead, the guidelines are intended for consideration as a series of options to be selectively chosen by interested parties to address particular concerns.

Cure Period For Violations

      
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Developed in 1998 by the Government and Legal Affairs Task Force of the
International Cemetery and Funeral Association

 

BACKGROUND

In pursuing enforcement actions, the intentional or inadvertent nature of the infraction, the extent to which it endangers the public health, safety, and welfare, and whether remedial actions have been undertaken should be considered. The legislative framework for enforcement should recognize these factors and the good faith efforts of the person charged in attempting compliance and develop appropriate penalties for noncompliance.

Barring a pattern of misconduct, many lesser noncompliance issues can be remedied by the person charged through availability of a cure period for violations and a mediation process. Unless there is potential for economic harm through fraud, misrepresentation, or misappropriation of funds, the person charged should be entitled to correct the violation prior to the regulatory authority instituting disciplinary proceedings.

PRINCIPLES

  1. Upon receiving written notice of noncompliance from the regulatory authority, the recipient should have a specified period of time to correct the infraction before a penalty may be assessed.
     
  2. If the person charged does not respond to the written notice of noncompliance from the regulatory authority and fails or refuses to correct the violation within the specified period of time, then the regulatory authority could institute disciplinary proceedings as provided by law.
     
  3. In determining the basis for the enforcement action, the regulatory authority should consider the seriousness of the violation and the potential harm resulting from the violation.
     
  4. A limit should be established by the regulatory authority regarding the availability of a cure period or mediation based on the frequency of any recurring violations. Factors should include the nature of the offense, the dates of earlier complaints, and whether a pattern of abuse by the person charged is evident through repetitive violations of a similar character.
     
  5. There should be a mechanism for mediation to expedite the processing of consumer complaints, where there has been an allegation of economic harm to the complainant, and the person charged is capable of securing a remedy.
     
  6. Once the regulatory authority has determined that the violation could be subject to mediation, then an independent mediation procedure should be conducted in an attempt to resolve the complaint.
     
  7. If within a specified period of time, the complainant and the person charged agree on a resolution and an acknowledgment of satisfaction of the complaint is provided to the regulatory authority, no further action should be taken by the regulatory authority.
     
  8. If within a specified period of time, the complainant and the person charged fail to reach a settlement, the complaint should be processed by the regulatory in the manner accorded by law.