Arkansas 2023 Regular Session

Arkansas Senate Bill SB97 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1	1		Stricken language would be deleted from and underlined language would be added to present law.
2		-	Act 345 of the Regular Session
3	2		ANS105 03-07-2023 10:15:42 ANS105
4	3
5	4		State of Arkansas As Engrossed: S3/7/23 1
6	5		94th General Assembly A Bill 2
7	6		Regular Session, 2023 SENATE BILL 97 3
8	7		4
9	8		By: Senator D. Wallace 5
10	9		By: Representative Joey Carr 6
11	10		7
12	11		For An Act To Be Entitled 8
13	12		AN ACT TO AMEND THE ARKANSAS PREPAID FUN ERAL BENEFITS 9
14	13		LAW; TO REGULATE PRE PAID BENEFITS CONTRA CTS; TO 10
15	14		REDUCE BURDENS ON TH E ADMINISTRATION OF PREPAID 11
16	15		BENEFITS CONTRACTS; TO CLARIFY CONTROL O F PREPAID 12
17	16		BENEFITS CONTRACTS; TO ENHANC E THE ADMINISTRATION OF 13
18	17		THE ARKANSAS PREPAID FUNERAL BENEFITS LAW ; AND FOR 14
19	18		OTHER PURPOSES. 15
20	19		16
21	20		17
22	21		Subtitle 18
23	22		TO AMEND THE ARKANSAS PREPAID FUNERAL 19
24	23		BENEFITS LAW; TO REGULATE PREPAID 20
25	24		BENEFITS CONTRACTS; AND TO ENHANCE THE 21
26	25		ADMINISTRATION OF THE ARKANSAS PREPAID 22
27	26		FUNERAL BENEFITS LAW. 23
28	27		24
29	28		25
30	29		BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 26
31	30		27
32	31		SECTION 1. Arkansas Code § 19 -5-1106(b)(3), concerning the 28
33	32		administration of the State Insurance Department Prepaid Trust Fund, is 29
34	33		amended to read as follows: 30
35	34		(3) The State Insurance Department Prepaid Trust Fund shall also 31
36	35		consist of the assets of the Prepaid Funeral Contracts Recovery Program Fund, 32
37	36		there to be administered by the Insurance Commissioner and the Prepaid 33
38	37		Funeral Contracts Rec overy Program Board as set out in § 23 -40-125 34
39	38		commissioner. 35
40	39		36 As Engrossed: S3/7/23 SB97
41	40
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43	42
44	43
45	44		SECTION 2. Arkansas Code § 23 -40-111(b), concerning the cancellation 1
46	45		or denial of a permit to sell prepaid funeral benefits under the Arkansas 2
47	46		Prepaid Funeral Benefits Law, is amended to add ad ditional subdivisions to 3
48	47		read as follows: 4
49	48		(6)(A)(i)(a) Under § 23 -40-110(c), a licensee's permit expires 5
50	49		on June 1 of each year. 6
51	50		(b) For each licensee that has not renewed a 7
52	51		permit by June 1, the commissioner shall send a notice to the licensee th at 8
53	52		the licensee is required to renew the permit within thirty (30) days of June 9
54	53		1. 10
55	54		(c) If a licensee's permit is not renewed 11
56	55		within thirty (30) days of June 1 or is suspended or is revoked, then the 12
57	56		licensee shall surrender to the commissioner: 13
58	57		(1) Any existing nonfulfilled prepaid 14
59	58		contracts; 15
60	59		(2) Contract files; 16
61	60		(3) Inventory reports; 17
62	61		(4) In-force reports; and 18
63	62		(5) Any other documentation pertaining 19
64	63		to the administration of the licensee's prepaid funeral benefits business. 20
65	64		(ii)(a) If the licensee's permit has lapsed, then 21
66	65		the licensee shall surrender the documentation under subdivision 22
67	66		(b)(6)(A)(i)(c) of this section within thirty (30) days of the date of the 23
68	67		expiration of the permit. 24
69	68		(b) If the licensee renews the licensee's 25
70	69		permit, then at the time the renewal is approved, the commissioner shall 26
71	70		return the documentation to the licensee. 27
72	71		(iii)(a) If the licensee's permit is suspended, then 28
73	72		the licensee shall surrender the documentation under subdivision 29
74	73		(b)(6)(A)(i)(c) of this section within thirty (30) days of the date the 30
75	74		commissioner's order is entered or within thirty (30) days after the deadline 31
76	75		to appeal the commissioner's order. 32
77	76		(b) At the end of the period of suspension, if 33
78	77		no other action is taken against the licensee, then the commissioner shall 34
79	78		return the documentation to the licensee. 35
80	79		(c) If the permit is subsequently revoked, 36 As Engrossed: S3/7/23 SB97
81	80
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84	83
85	84		then the commissioner shall not return any documentation to the licensee. 1
86	85		(iv) If the licensee's permit is revoked, then the 2
87	86		licensee shall surrender the documentation under subdivision (b)(6)(A)(i)(c) 3
88	87		of this section within thirty (30) days of the date the commissioner's order 4
89	88		is entered or within thirty (30) days after the deadline to appeal the 5
90	89		commissioner's order. 6
91	90		(B) The licensee's failure to surrender all the 7
92	91		documentation under subdivision (b)(6)(A)(i)(c) of this section if there has 8
93	92		been a nonrenewal within thirty (30) days of June 1 of a permit, suspension, 9
94	93		or revocation, shall subject the licensee to an administrative penalty of: 10
95	94		(i) One thousand dollars ($1,000) per violation if 11
96	95		the licensee fails to comply with the applicable thirty -day timeline to 12
97	96		surrender the documentati on under this subdivision (b)(6); and 13
98	97		(ii) Five thousand dollars ($5,000) per violation if 14
99	98		the licensee: 15
100	99		(a) Fails to comply with the applicable 16
101	100		thirty-day timeline to surrender the documentation under this subdivision 17
102	101		(b)(6); and 18
103	102		(b) The commissioner finds willful misconduct 19
104	103		or a willful violation of this subdivision (b)(6). 20
105	104		21
106	105		SECTION 3. Arkansas Code § 23 -40-119(a), concerning the annual report 22
107	106		and annual report fee under the Arkansas Prepaid Funeral Benefits Law, is 23
108	107		amended to read as follows: 24
109	108		(a) Each organization shall file an annual report and an annual report 25
110	109		fee with the Insurance Commissioner on or before March 15 of each year in 26
111	110		such form as the commissioner may require, showing the: 27
112	111		(1) Names or account The names or contract numbers, or both, of 28
113	112		all persons with whom contracts for prepaid funeral benefits have been made 29
114	113		prior to before January 1 of that year that had not been fully discharged on 30
115	114		January 1; 31
116	115		(2) Date The date of contract; 32
117	116		(3) Name If the prepaid contract is funded by cash or trust, 33
118	117		the: 34
119	118		(A) Name of the trustee holding the trust fund; and 35
120	119		(4)(B) Amount in the trust fund under each contract on the 36 As Engrossed: S3/7/23 SB97
121	120
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123	122
124	123
125	124		preceding December 31 .; and 1
126	125		(4) If the prepaid contract is funded by an insurance policy or 2
127	126		an annuity, the: 3
128	127		(A) Information required under subdivisions (a)(1) and (2) 4
129	128		of this section; 5
130	129		(B) Name of the insurance company or third party 6
131	130		administrator holding the insurance policy or annuity; 7
132	131		(C) Insurance policy number; 8
133	132		(D) Date the insurance policy or annuity is issued; and 9
134	133		(E) Amount of the insurance policy or annuity. 10
135	134		11
136	135		SECTION 4. Arkansas Code § 23 -40-119(d)(1), concerning the per -12
137	136		contract fee under the Arkansas Prepaid Funeral Benefits Law, is amended to 13
138	137		read as follows: 14
139	138		(d)(1)(A)(i)(a) Effective for all prepaid funeral benefits contracts 15
140	139		executed on and after April 1, 1997, each licensee selling a prepaid funeral 16
141	140		benefits contract shall remit to the State Insurance Department a one -time, 17
142	141		per-contract fee of not less than fiv e dollars ($5.00) for each prepaid 18
143	142		funeral benefits contract, including any amendments thereto, entered into by 19
144	143		the licensee, whether cash or trust funded or funded by an insurance policy 20
145	144		or annuity contract, unless the per -contract fees are otherwise elim inated or 21
146	145		suspended by the commissioner pursuant to a rule. 22
147	146		(b) However, the per -contract fees once 23
148	147		eliminated or suspended by rule of the commissioner may be reinstated by 24
149	148		subsequent rule of the commissioner adopted upon a public hearing at a later 25
150	149		date upon the commissioner's determination that these fees are essential and 26
151	150		necessary to the operation of the Division of Prepaid Funeral Benefits of the 27
152	151		State Insurance Department. 28
153	152		(ii) On and after July 1, 2001, the commissioner 29
154	153		shall then transfer from each per-contract fee remitted to the department, 30
155	154		into the Prepaid Funeral Contracts Recovery Program Fund pursuant to this act 31
156	155		a portion of the fee in an amount to be determined by rules of the 32
157	156		commissioner and thereafter to be administered by the c ommissioner with 33
158	157		advice from the Prepaid Funeral Contracts Recovery Program Board, pursuant to 34
159	158		the provisions of under this subchapter. 35
160	159		(B) The per-contract fees shall be remitted quarterly 36 As Engrossed: S3/7/23 SB97
161	160
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164	163
165	164		annually to the department for each quarter month of the calendar year with a 1
166	165		quarterly fee the annual report form as prescribed by the commissioner. 2
167	166		(C) The fees shall be remitted to the department no later 3
168	167		than forty-five (45) days after each quarter. 4
169	168		5
170	169		SECTION 5. Arkansas Code § 23 -40-119(f)(1), concerning un used funds 6
171	170		from fees under the Arkansas Prepaid Funeral Benefits Law, is amended to read 7
172	171		as follows: 8
173	172		(f)(1) Notwithstanding the provisions of § 23 -40-107, if there are any 9
174	173		unused funds from fees collected from organizations under subsections (c) and 10
175	174		(d) of this section not disbursed for personal services, operating expenses, 11
176	175		maintenance and operations, and support and improvements for the Division of 12
177	176		Prepaid Funeral Benefits, such the excess funds, if any, may be transferred 13
178	177		to the Prepaid Funeral Contrac ts Recovery Program Fund to provide reparations 14
179	178		to purchasers of prepaid funeral contracts who have purchased cash -funded, 15
180	179		insurance-funded, or annuity-funded prepaid funeral contracts from 16
181	180		organizations that have been: 17
182	181		(A) Declared insolvent by a stat e or federal court of 18
183	182		competent jurisdiction; or 19
184	183		(B) Determined by either the commissioner or a state or 20
185	184		federal court of competent jurisdiction to have fund account deficiencies. 21
186	185		22
187	186		SECTION 6. Arkansas Code § 23 -40-122(a), concerning the cancellation 23
188	187		or transfer of a prepaid contract under the Arkansas Prepaid Funeral Benefits 24
189	188		Law, is amended to read as follows: 25
190	189		(a) A purchaser may cancel or transfer a prepaid contract under this 26
191	190		section, whether revocable or irrevocable, or whether cash-funded or funded 27
192	191		by insurance or an annuity, at any time before performance of the contract by 28
193	192		the seller, under the following conditions: 29
194	193		(1) In the case of a cash-funded or trust-funded prepaid 30
195	194		contract: 31
196	195		(A) Before the death of the contract beneficiary, if the 32
197	196		prepaid contract is revocable, the purchaser is entitled to receive a refund 33
198	197		of not less than one hundred percent (100%) of all sums paid to the seller by 34
199	198		the purchaser, not to exceed the contract price; 35
200	199		(B) After the death of the contract beneficiary, if the 36 As Engrossed: S3/7/23 SB97
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204	203
205	204		prepaid contract is revocable, the purchaser or, his or her representative if 1
206	205		the purchaser is someone other than the prepaid contract beneficiary, the 2
207	206		contract beneficiary's family member or responsible party as determined under 3
208	207		§ 20-17-102(d), is entitled to receive one hundred percent (100%) of the 4
209	208		amount paid to the seller by the purchaser, not to exceed the contract price; 5
210	209		or 6
211	210		(C) If Before the death of the contract beneficiary, if 7
212	211		the prepaid contract is irrevocable, the purchaser shall not have the right 8
213	212		to a refund of any funds paid by him or her or proceeds paid to the seller 9
214	213		but shall have the right to change the provider of the contract services and 10
215	214		merchandise to a substitute provider, in which event the seller shall 11
216	215		transfer to the substitute provider not less than one hundred percent (100%) 12
217	216		of the amount paid to the seller by the purchaser, not to exceed the contract 13
218	217		price; or 14
219	218		(D)(i) After the death of the contract beneficiary, if the 15
220	219		prepaid contract is irrevocable, the purchaser or, if the purchaser is 16
221	220		someone other than the prepaid contract beneficiary, the contract 17
222	221		beneficiary's family member or responsible party as determined under § 20-17-18
223	222		102(d), does not have the right to a refund of any funds paid by the 19
224	223		purchaser or proceeds paid to the seller but does have the right to change 20
225	224		the provider of the contract services and merchandise to a substitute 21
226	225		provider. 22
227	226		(ii) If a substitute provider is used under 23
228	227		subdivision (a)(1)(D)(i) of this section, then the seller shall transfer to 24
229	228		the substitute provider one hundred percent (100%) of the amount paid to the 25
230	229		seller by the purchaser, not to exceed the contract price; 26
231	230		(2) In the case of a prepaid contract funded by life insurance: 27
232	231		(A) Before the death of the contract beneficiary, if the 28
233	232		prepaid contract is revocable, the purchaser shall have the right to receive 29
234	233		not less than one hundred percent (100%) of the cash surrender value of the 30
235	234		policy used to fund the prepaid contract, not to exceed the premium paid by 31
236	235		the purchaser; 32
237	236		(B) After the death of the contract beneficiary, if the 33
238	237		prepaid contract is revocable, the purchaser, if the purchaser is someone 34
239	238		other than the prepaid contract beneficiary, or his or her designee is 35
240	239		entitled to receive not less than one hundred percent (100%) of the policy 36 As Engrossed: S3/7/23 SB97
241	240
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244	243
245	244		proceeds paid to the seller, not to exceed the original face amount of the 1
246	245		policy; or 2
247	246		(C)(i) Before the death of the contract beneficiary, if 3
248	247		the contract is irrevocable, the prepaid contract purchaser shall not have 4
249	248		the right to a refund of any funds paid to the seller or the insurance 5
250	249		company but shall have the right to change the provider of the prepaid 6
251	250		contract services and merchandise to a substitute provider, in which event 7
252	251		the seller shall assign or transfer to the substitute provider, as directed 8
253	252		by the prepaid contract owner purchaser, the life insurance policy used to 9
254	253		fund the prepaid contract or funds in an amount not less than one hundred 10
255	254		percent (100%) of the cash surrender value of the policy used to fund the 11
256	255		prepaid contract, not to exceed the premium paid by the purchaser. 12
257	256		(ii) After the death of the contract beneficiary, if 13
258	257		the contract is irrevocable, the seller shall transfer to the substitute 14
259	258		provider not less than one hundred percent (100%) of the policy proceeds paid 15
260	259		to the seller, not to exceed the original face amount of the policy; or 16
261	260		(3) In the case of a prepaid contract funded by an annuity: 17
262	261		(A) Before the death of the contract beneficiary, if the 18
263	262		prepaid contract is revocable, the purchaser is entitled to receive a refund 19
264	263		of not less than one hundred percent (100%) of the annuity value, not to 20
265	264		exceed the premium paid by the purchaser for the annuity funding the prepaid 21
266	265		contract; 22
267	266		(B) After the death of the contract beneficiary, if the 23
268	267		prepaid contract is revocable, the purchaser, if the purchaser is someone 24
269	268		other than the prepaid contract beneficiary, or his or her designee is 25
270	269		entitled to receive not less than one hundred percent (100%) of the annuity 26
271	270		proceeds received by the seller, not to exceed the premium paid by the 27
272	271		purchaser; or 28
273	272		(C)(i) Before the death of the contract beneficiary, if 29
274	273		the prepaid contract is irrevocable, the purchaser shall not have the right 30
275	274		to a refund of any funds paid to the seller but shall have the right to 31
276	275		change the provider of the prepaid contract services and merchandise to a 32
277	276		substitute provider, in which event the seller shall assign or transfer to 33
278	277		the substitute provider, as directed by the contract owner purchaser, the 34
279	278		annuity policy used to fund the prepaid contract, which shall be in an amount 35
280	279		of not less than one hundred percent (100%) of the annuity value, not to 36 As Engrossed: S3/7/23 SB97
281	280
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284	283
285	284		exceed the premium paid by the purchaser. 1
286	285		(ii) After the death of the contract beneficiary, 2
287	286		the seller shall transfer to the substitute provider not less than one 3
288	287		hundred percent (100%) of the annuity proceeds received by the seller, not to 4
289	288		exceed the premiums paid by the purchaser. 5
290	289		6
291	290		SECTION 7. Arkansas Code § 23 -40-125 is amended to read as follows: 7
292	291		23-40-125. Prepaid Funeral Contracts Recovery Program Fund — Created — 8
293	292		Prepaid Funeral Contracts Recovery Program Board — Established. 9
294	293		(a) There is established within the State Insurance Department Prepaid 10
295	294		Trust Fund an account to be known as the “Prepaid Funeral Contracts Recovery 11
296	295		Program Fund”, hereinafter “fund” . 12
297	296		(b) No money is to be appropriated from this fund for any purpose 13
298	297		except for expenses and payment of claims of the Prepaid Funeral Contracts 14
299	298		Recovery Program at the direction of the Insurance Commissioner and the 15
300	299		Prepaid Funeral Contracts Recovery Program Board. 16
301	300		(c) The fund shall be invested under the direction of the commissioner 17
302	301		and the Treasurer of State, with advice from the Chief Fiscal Officer of the 18
303	302		State as needed from time to time. 19
304	303		(d)(1) All income derived through investment of the fund, inc luding, 20
305	304		but not limited to, fees, interest, and dividends shall be credited as 21
306	305		investment income to the fund and deposited therein. 22
307	306		(2) All income derived from fund transfers, subrogation awards, 23
308	307		grants, orders or judgments of restitution, refunds, volu ntary reimbursements 24
309	308		or restitution, and gifts shall be credited as investment income to the fund 25
310	309		and deposited therein. 26
311	310		(e) Further, all moneys deposited into the fund shall not be subject 27
312	311		to any deduction, tax, levy, or any other type of assessment exc ept as may be 28
313	312		provided in this subchapter. 29
314	313		(f)(1) The fund shall be administered by the commissioner , with advice 30
315	314		from the Prepaid Funeral Contracts Recovery Program Board, hereinafter 31
316	315		“board”. 32
317	316		(2) The purpose of the fund is to reimburse purchasers of 33
318	317		preneed funeral contracts who have suffered financial loss as a result of the 34
319	318		impairment, insolvency, business interruption, or improper inactivity of a 35
320	319		prepaid funeral organization licensed in this state under this chapter. 36 As Engrossed: S3/7/23 SB97
321	320
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324	323
325	324		(g)(1) From the fee for each preneed funeral contract as required by § 1
326	325		23-40-119(d)(1)(A) and from any funds transferred to the fund pursuant to § 2
327	326		23-40-119(f)(1), the commissioner with board advice and consultation shall 3
328	327		administer the Prepaid Funeral Contracts Recovery Program program. 4
329	328		(2) The commissioner may suspend fees or unused funds transfers 5
330	329		or deposits into the fund at any time and for any period for which the 6
331	330		commissioner determines that a sufficient amount is available to meet likely 7
332	331		disbursements and to maintain an ade quate reserve in compliance with a rule 8
333	332		of the commissioner. 9
334	333		(h) The commissioner with board assistance shall adopt procedures 10
335	334		governing management of the fund, the presentation and processing of 11
336	335		applications for reimbursement, and subrogation or assignm ent of the rights 12
337	336		of any reimbursed applicant. 13
338	337		(i)(1) The commissioner may expend moneys in the fund for the 14
339	338		following purposes: 15
340	339		(A) To make reimbursements on approved applications; and 16
341	340		(B) To pay related expenses involved in operating the 17
342	341		program as permitted under state law. 18
343	342		(2) Reimbursements from the fund shall be made only to the 19
344	343		extent to which such losses are not bonded or otherwise covered, protected, 20
345	344		or reimbursed, and only after the applicant has complied with all applicable 21
346	345		rules of the fund. 22
347	346		(j)(1) The commissioner , or his or her representatives, shall 23
348	347		investigate all applications made and may reject or allow the claims, in 24
349	348		whole or in part, to the extent that moneys are available in the fund. 25
350	349		(2) The commissioner may approve on e (1) application that 26
351	350		includes more than one (1) reparation claim for the benefit of purchasers of 27
352	351		prepaid contracts of a licensee ordered liquidated under § 23 -40-123, as part 28
353	352		of a plan to arrange for another licensee to assume the obligations of the 29
354	353		licensee being liquidated, if: 30
355	354		(A) The commissioner finds that the plan is reasonable and 31
356	355		is in the best interests of the contract beneficiaries; and 32
357	356		(B) The plan is approved by a court. 33
358	357		(k)(1) In the event reimbursement is made to an applicant unde r this 34
359	358		section, the commissioner, on behalf of the state, shall be subrogated in the 35
360	359		reimbursed amount and may bring any action the commissioner deems advisable 36 As Engrossed: S3/7/23 SB97
361	360
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363	362
364	363
365	364		for the program against any person, including a prepaid licensee. 1
366	365		(2) The commissioner may e nforce any claims that the program, on 2
367	366		behalf of the state, may have for restitution or otherwise and may employ and 3
368	367		compensate consultants, agents, legal counsel, accountants, and any other 4
369	368		persons that the commissioner deems appropriate. Payments shall b e made from 5
370	369		the fund for such services. 6
371	370		(l)(1) There is created the Prepaid Funeral Contracts Recovery Program 7
372	371		Board. 8
373	372		(2)(A) Members of the board shall consist of no fewer than five 9
374	373		(5) nor more than nine (9) members of various licensed Arkansas prepa id 10
375	374		funeral organizations, including one (1) consumer member selected from the 11
376	375		Arkansas public at large. 12
377	376		(B) The members of the board shall be selected by member 13
378	377		licensees, subject to approval of the commissioner. 14
379	378		(C)(i) Each member of the board may serve up to two (2) 15
380	379		consecutive four-year terms. 16
381	380		(ii) Vacancies on the board shall be filled for the 17
382	381		remaining period of the term by a majority vote of the remaining board 18
383	382		members, subject to approval of the commissioner. 19
384	383		(D) In approving selecti ons to the board, the commissioner 20
385	384		shall consider, among other things, whether all member licensees are fairly 21
386	385		represented. 22
387	386		(m)(1) The board shall assist the commissioner and come under the 23
388	387		immediate supervision of the commissioner and shall be subject t o the 24
389	388		applicable provisions of the laws of this state. 25
390	389		(2) The fund, as well as board action, shall be is subject to 26
391	390		examination and regulation by the commissioner. 27
392	391		(3)(A)(2)(A) The board commissioner, or his or her 28
393	392		representatives, shall prepare and submit to the commissioner each year, not 29
394	393		later than one hundred twenty (120) days after the program's fiscal year, a 30
395	394		financial report in a form approved by the commissioner and a report of 31
396	395		program activities during the preceding fiscal year. 32
397	396		(B) Upon request of a licensed prepaid funeral 33
398	397		organization in this state, the commissioner shall provide the member prepaid 34
399	398		funeral organization with a copy of the report. 35
400	399		(n)(m) There shall be no liability on the part of and no cause of 36 As Engrossed: S3/7/23 SB97
401	400
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403	402
404	403
405	404		action of any nature sh all arise against any member of the board, the 1
406	405		commissioner, or his or her representatives, agents, or employees for any act 2
407	406		or omission by them in the performance of their powers and duties under this 3
408	407		chapter, or in its administration, dispensation, handl ing, or collection of 4
409	408		funds for the program. 5
410	409		6
411	410		/s/D. Wallace 7
412	411		8
413	412		9
414		-	~~APPROVED: 3/21/23~~ 10
	413	+	10
415	414		11
416	415		12
417	416		13
418	417		14
419	418		15
420	419		16
421	420		17
422	421		18
423	422		19
424	423		20
425	424		21
426	425		22
427	426		23
428	427		24
429	428		25
430	429		26
431	430		27
432	431		28
433	432		29
434	433		30
435	434		31
436	435		32
437	436		33
438	437		34
439	438		35
440	439		36