Commenter:
David P. Mitchel, Esq., Michael J. Brickhill, P.C.
Disproportionate impact of new compliance agent regulations on small/family-owned cemetery companies
I am writing to you regarding the proposed regulations concerning cemetery compliance agents.
Current cemetery regluations require cemetery companies to have a compliance agent. I agree that compliance agents serve as an important protection both for cemeteries and their customers. The proposed regulations, however, go further than the simply requiring cemetery companies to have compliance agents; and the qualifications they set forth for compliance agents would disproportionately burden small and family-operated cemetery companies.
The proposed 18 VAC 47-20-35 requires that compliance agents (1) ”have two years experience in the cemetery business and have successfully completed a board-approved training course,” and (2) that the agent “[b]e a full time employee of the cemetery company or . . . a principal.” These requirements create particular problems for small and family-operated cemetery companies for several reasons.
First, the requirement that compliance agents have two years of experience in the cemetery business creates an acute problem for small family-operated cemeteries because of the small pool of employees available in the cemetery business. If a situation arises in which a small cemetery company must replace its compliance agent, the company, under the new regulation, would face being inoperable until it could find a new compliance agent with two years cemetery experience—no easy task given the small number of available persons who would qualify as compliance agents under the regulations.
Second, that problem is compounded by the fact that the proposed regulation defines “experience” as “supervisory experience with a cemetery company.” In a small or family-operated cemetery, where the total number of office employees, besides the owners or principals, is limited to a handful of persons at most, there is no “middle-management” from which a compliance agent could emerge to replace a departing compliance agent. Given the small pool of employee applicants in the cemetery business, and the smaller pool of persons with two years of supervisory experience in the cemetery business whom a small cemetery could hire, small and family-operated cemeteries could potentially face extended periods of being inoperable under the new regulations.
Third, the “board approved” training course which compliance agents must complete is offered so infrequently that it could substantially lengthen the time it would take a small cemetery company to replace a departing compliance agent. This year, for example, only two approved courses have actually been scheduled. One was held by the Cemetery Association at its annual conference in June; the other was to be held at Virginia Highlands Community College (VHCC) in February 2007, but was cancelled because VHCC received only one application. Given the infrequency with which board approved classes are offered, even if a small cemetery company finds a person with the requisite two years supervisory experience in the cemetery business to replace a departing compliance agent, the cemetery could still face being inoperable for several months.
Finally, proposed 18 VAC 47-20-35 requires that a compliance agent “[b]e a full-time employee of the cemetery company or . . . a principal.” “Full-time” is undefined in the proposed statute and could create another potential barrier for the small or family-operated cemetery, depending on the company's hours of operation and how this Board interprets the term "full-time."
Moreover, the above-described effects of the Board’s proposed regulations disproportionately impact small or family-operated cemetery companies. A large cemetery company would have intermediate-level managers, with the requisite “supervisory experience,” from whom to draw persons to immediately succeed departing compliance agents. By contrast, a small cemetery company faced with the death, retirement or departure of a compliance agent would likely face becoming either inoperability under the proposed regulations or the necessity of increasing payroll beyond its capabilities to employ a person who qualifies as a compliance agent under the new regulations.
For those reasons, we request that the Board withdraw the regulations in question, or defer final action on them to allow for appropriate consideration of these issues. Thank you for your consideration.
