Section 0780-05-18-.11 - STANDARDS OF PRACTICE(1) Upon any request for additional information or upon receipt of notice of any written complaint against the provider, the provider shall, within ten (10) business days, file with the Division a written answer to the request for additional information or to the complaint.(2) A provider shall immediately determine the state of residence of a potential client during the first contact with the potential client. If the potential client is a resident of the state of Tennessee, the provider shall notify the potential client in writing of its current registration status in the state of Tennessee.(3) No later than thirty (30) days prior to the opening of a branch office, a provider shall notify the Division in writing of the opening of the branch office as well as the name of the person responsible for the branch office and the certified counselor(s) and certified debt specialist(s) working in the branch office.(4) A provider shall comply with all applicable federal and state laws and rules in providing debt-management services and otherwise comply with all federal and state laws and rules applicable to the provider.(5) A provider shall keep each client reasonably informed about the status of the debt-management services being performed for the client and shall promptly comply with the client's reasonable requests for information.(6) A provider shall not use improper or questionable methods of soliciting clients, including but not limited to misleading or deceiving clients or utilizing scare tactics or other improper tactics and shall not pay another person or accept payment from another person for engaging in improper methods.(7) A provider shall not associate its business with any business or person that engages in or attempts to engage in unfair, deceptive, or misleading practices or acts in its dealings with clients.(8) Unless responding to a request for information, subpoena, or order issued by a regulatory agency, law enforcement agency, or court of competent jurisdiction, a provider shall not disclose any client information obtained relative to a debt-management services agreement or plan to someone other than the client unless the disclosure is expressly authorized in writing by the client.(9) A provider shall not misrepresent its debt-management services or the features of any service or make unwarranted claims about the merits of a service that the provider offers.(10) A provider shall not accept or offer commissions or allowances, directly or indirectly, from other parties dealing with the client in connection with work for which the provider is responsible.(11) Before the execution of an agreement for debt-management services, a provider shall clearly and conspicuously disclose to the client any interest the provider has in a business that may affect the client. No provider shall allow its interest in any business to affect the quality or results of the debt-management services that the provider may be called upon to perform.(12) A provider shall fully comply with all Federal Trade Commission rules, regulations, and guidelines, including but not limited to the Guides Concerning Use of Endorsements and Testimonials in Advertising, 16 C.F.R. pt. 255.(13) A provider shall not engage in false or misleading advertising.(14) A provider shall not perform or recommend any debt-management services that would violate applicable federal or state laws.(15) A provider shall not engage in deceptive or unfair trade practices. Examples of deceptive or unfair trade practices include but are not limited to: (a) Proposing or communicating any alteration of a material term of a debt-management services agreement or plan to a client or a client's creditor without first receiving explicit written instructions from the client directing the provider to make a specific alteration;(b) Expressly or impliedly representing that any of its goods or services are "free" if the client will be asked to make any payment in connection with the goods or services, other than a payment that will be forwarded in its entirety to the client's creditors. A provider may represent that a consultation or other initial contact is "free" if the consultation or contact is provided with no obligation on the part of the client to make any payment in connection with the consultation or contact;(c) Expressly or impliedly representing that any payments made by clients in connection with providers are voluntary contributions or are payments to support a non-profit organization, unless more than fifty percent (50%) of the payment is paid to or for the benefit of the non-profit organization for purposes other than to pay the provider for services rendered to a non-profit organization;(d) Expressly or impliedly misrepresenting the effects of a debt-management plan on a client's ability to obtain credit;(e) Enrolling a debtor in a debt-management plan unless, prior to enrollment, the debtor has received credit counseling from a credit counselor who has sufficient experience and training to counsel in financial literacy, money management, budgeting, and responsible use of credit and is advised of the various options available to the debtor for addressing the debtor's financial problems;(f) Enrolling a debtor in a debt-management plan if the debtor's estimated monthly living expenses and estimated monthly provider payments exceed his or her income. A debtor in this situation may be enrolled in a debt-management plan if the debtor is specifically advised not to enroll in a debt-management plan because the debtor cannot afford the debt-management plan payment and the debtor independently states that he or she believes that he or she can afford the debt-management plan payment by reducing expenses, obtaining additional income or funds from another source, or otherwise adjusting the budget estimate to make the debt-management plan affordable;(g) Disclosing or using any individual's private financial and personal information that the provider receives in connection with providing debt-management services except in accordance with and as permitted by applicable law, including but not limited to the Gramm-Leach-Bliley Act, 15 U.S.C.A. § 6801, et seq.;(h) Entering into any agreement with any person that contains any standards or criteria under which the person must enroll debtors into a debt-management plan;(i) Entering into any agreement with any person that sets any minimum enrollment rate or other standard mandating the number of individuals who must be enrolled in debt-management plans or an amount that the person must collect from clients;(j) Entering into any agreement with any person that sets any minimum revenues or other standards mandating the amount of revenue that must be generated through a debt-management plan;(k) Using the name or mark of a person other than the provider when communicating with debtors or creditors in connection with the performance of debt-management services;(l) Entering into any agreement with a third party that limits the use of any data reflecting either the provider's or the third party's performance of any debt-management services, including data reflecting the payments that either the provider or the third party has processed or is processing in connection with a debt-management plan;(m) expressly or impliedly misrepresenting the purpose of any fee or contribution that is paid by clients;(n) Failing to clearly and conspicuously disclose the nature and types of services that will be provided under any agreement prior to the consumer's agreeing to receive such services;(o) Debiting, cashing, depositing, or otherwise collecting or attempting to collect monies from a client after a client has asserted a violation of state law, regulation, or rule in connection with the debt-management plan;(p) Using logos, symbols, business names, or the like that might represent or imply to consumers an affiliation or association with any government entity;(q) Failing to maintain and make available upon request to the Division full and complete substantiation for any and all claims and representations made to debtors and in any advertising or promotional materials;(r) Submitting any false, misleading, or deceptive information to the Division relating to a registration application or renewal application; or(s) Failing to comply with all of the prerequisites for providing debt-management services outlined in T.C.A. § 47-18-5517 and any applicable federal laws, regulations, or rules.Tenn. Comp. R. & Regs. 0780-05-18-.11
Original rule filed October 28, 2016; effective 1/26/2017. Rule renumbered from 0780-08-01.Authority: T.C.A. §§ 47-18-104, 47-18-5515, 47-18-5517, 47-18-5528, and 47-18-5532.