SECTION 25.4. What Are the Plain Language Requirements for a Non-Model Contract or Waiver?  

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  • (a) Overview. If you elect to not use a model contract or waiver, you must prepare a non-model prepaid funeral benefits contract or a waiver of cancellation rights, whether in English or Spanish, in plain language designed to be easily understood by the average consumer. Your proposed non-model document must also be printed or displayed in an easily readable font and type size. The department is charged with enforcing these requirements by Finance Code, §154.151(d).

    (b) Plain language principles for English documents. The department will consider the extent to which you have incorporated plain language principles into the organization, language, and design of a non-model document that you submit for approval. At a minimum, your proposed non-model document, including an electronic non-model document, should substantially comply with each of the plain language writing principles identified in this subsection.

    (1) You must present information in clear, concise sections, paragraphs, and sentences. Whenever possible, you should use the active voice with strong verbs in short, explanatory sentences and bullet lists. Passive voice is not banned but should be used sparingly.

    (2) You should use everyday words whenever possible and avoid the use of legal and highly technical business terminology. In those instances where no plain language alternative is apparent, you should explain what the term means when the term is first used. Use of a defined term may improve readability in such instances.

    (3) You should group related information together whenever possible to help identify and eliminate repetitious information.

    (4) You should use first-person plural (we, us, our/ours) and second-person singular (you, your/yours) pronouns.

    (5) You should make complex information more understandable by using an example scenario or a "question and answer" format.

    (c) Attributes to avoid. The department will consider the extent to which you avoid the detrimental attributes identified in this subsection. In preparing your proposed non-model document, you should not:

    (1) include a term in definitions unless the meaning of the term is unclear from the context and cannot be easily explained in context, or rely on artificially defined terms as the primary means of explaining information;

    (2) use superfluous words (words that can be replaced with fewer words that mean the same thing) that detract from understanding;

    (3) rely on legalistic or overly complex presentations;

    (4) copy complex information directly from legal documents, statutes, or rules without a clear and concise explanation of the material;

    (5) unnecessarily repeat information in different sections of the non-model document; or

    (6) use multiple negatives.

    (d) Typeface (font). Typefaces come in two varieties: serif and sans serif. All serif typefaces have small lines at the beginning or ending strokes of each letter. Sans serif typefaces lack those small connective lines.

    (1) The text of your proposed non-model document must be set in a serif typeface. Popular serif typefaces include Times, Scala, Caslon, Century Schoolbook, and Garamond.

    (2) A sans serif typeface may be used for titles, headings, subheadings, captions, and illustrative or explanatory tables or sidebars to distinguish between different levels of information or provide emphasis. Popular sans serif typefaces include Scala Sans, Franklin Gothic, Frutiger, Helvetica, Ariel, and Univers,

    (e) Type size and line spacing. You must select a type size for your proposed non-model document that is clearly legible. Minimum type size and line spacing are specified in this subsection. If other state or federal law requires a different type size for a specific disclosure or contractual provision, you should set the specific disclosure or contractual provision in the type size specified by other law.

    (1) Typeface size is referred to in points (pt). Because different typefaces in the same point size are not of equal size, type size is not strictly defined in this subsection but is expressed as a minimum size in the Times typeface for visual comparative purposes. Use of a larger size typeface is encouraged. Generally, the type size must be at least as large as 10pt in the Times typeface, except the type size must be at least as large as 9pt in the Times typeface for:

    (A) the statement of funeral goods and services selected, as described in §25.3(b) and (c) of this title (relating to What Requirements Apply to a Non-Model Contract); and

    (B) the consumer inquiries and complaints disclosure, described in §25.3(k) of this title.

    (2) You must use line spacing that is at least 120% of the type size. For example, a 10pt type should be set with 12pt leading (two points of additional leading between the lines).

    (3) The department may approve a smaller type size or denser line spacing than specified in this subsection in limited circumstances, such as keeping related disclosures grouped together or satisfying a requirement to keep specified text on a single page. However, you must offset smaller type size or denser line spacing by use of other readability enhancements such as a more readable typeface or greater use of white space through wider margins or divisions between sections of the document.

    (f) Formatting and design. The department will consider the extent to which your non-model document uses the plain language formatting and design concepts described in this subsection.

    (1) You should use left-justified text (text aligned flush on the left, with a loose, or ragged, right edge) in any paragraph or section of your document that has text lines exceeding 70 characters in length. If you seek approval of a document containing any full-justified paragraph or section with text lines exceeding 70 characters in length (text aligned flush on both left and right sides), the full-justified portions of your proposed document should at a minimum use a larger type size than specified in subsection (e) of this section. You should also add other readability enhancements, such as a more readable typeface or greater use of white space, including wider margins and additional leading between lines.

    (2) The minimum recommended page size of a proposed non-model contract is 8-1/2 inches by 11 or 14 inches and 8-1/2 inches by 11 inches for a proposed non-model waiver. However, the page size should ordinarily not be larger than 8-1/2 inches by 17 inches. This paragraph does not apply to a contract in electronic form.

    (3) You must use descriptive headings and subheadings that are conceptually similar to or match the headings in the department's model contract.

    (4) You may use tabular presentations or bullet lists to simplify disclosure of complex material. You may also use pictures, logos, charts, graphs, or other design elements so long as the design is not misleading and the required information is clear.

    (g) Readability statistics. The department will consider the readability statistics generated by your non-model document in the tests described in this subsection.

    (1) The department's evaluation of your proposed non-model document will include results of automated readability tests applied to the complete document, without omission of titles or other attributes of the document. These tests are commonly available in word processing software, including Microsoft Word and Corel WordPerfect. Because mechanical readability formulas do not evaluate the substantive content of a document, the department will exercise judgment when considering the readability statistics generated by these tests. However, absent explanatory circumstances or additional justification persuasive to the commissioner, your proposed non-model document will ordinarily not be approved if:

    (A) over 21% of the sentences are passive in structure;

    (B) the average sentence length exceeds 19 words;

    (C) the Flesch reading ease score is less than 47.0; and

    (D) the Flesch-Kincaid grade level score is higher than 11.0.

    (2) As part of your application for department approval, you must disclose the readability statistics you generated in evaluating the final draft of your proposed document and explain the circumstances and justifications for any scores outside the parameters expressed in this subsection.

Source Note: The provisions of this §25.4 adopted to be effective March 14, 2002, 27 TexReg 1706; amended to be effective January 7, 2010 35 TexReg 204; amended to be effective November 10, 2016, 41 TexReg 8814