HB 0965CS

CHAMBER ACTION




1The Committee on Insurance recommends the following:
2
3     Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to annuity investments by seniors;
7creating s. 627.4554, F.S.; providing a purpose; providing
8application; providing definitions; specifying duties of
9insurers and insurance agents relating to making annuity
10investment recommendations to senior consumers; providing
11requirements; limiting responsibility of insurers or
12insurance agents under certain circumstances; requiring a
13system of compliance and supervision; providing for
14enforcement by the Office of Financial Regulation and the
15Department of Financial Services; authorizing the office
16and department to issue orders to mitigate certain
17responsibilities of insurers or insurance agents;
18providing for reduction or elimination of certain
19penalties under certain circumstances; providing
20recordkeeping requirements; providing exemption from
21application for variable annuities; providing an effective
22date.
23
24Be It Enacted by the Legislature of the State of Florida:
25
26     Section 1.  Section 627.4554, Florida Statutes, is created
27to read:
28     627.4554  Annuity investments by seniors.--
29     (1)  PURPOSE; CONSTRUCTION.--
30     (a)  The purpose of this section is to set forth standards
31and procedures for recommendations to senior consumers that
32result in a transaction involving annuity products to
33appropriately address the insurance needs and financial
34objectives of senior consumers at the time of the transaction.
35     (b)  Nothing in this section shall be construed to create
36or imply a private cause of action for a violation of this
37section.
38     (2)  APPLICATION.--This section applies to any
39recommendation to purchase or exchange an annuity made to a
40senior consumer by an insurance agent, or an insurer where no
41agent is involved, that results in the purchase or exchange
42recommended.
43     (3)  DEFINITIONS.--For purposes of this section:
44     (a)  "Annuity" means a fixed annuity or variable annuity
45that is individually solicited, whether the product is
46classified as an individual annuity or a group annuity.
47     (b)  "Recommendation" means advice provided by an insurance
48agent, or an insurer if no insurance agent is involved, to an
49individual senior consumer that results in a purchase or
50exchange of an annuity in accordance with that advice.
51     (c)  "Senior consumer" means a person 65 years of age or
52older. In the event of a joint purchase by more than one party,
53a purchaser is considered to be a senior consumer if any of the
54parties is age 65 or older.
55     (4)  DUTIES OF INSURERS AND INSURANCE AGENTS.--
56     (a)  In recommending to a senior consumer the purchase of
57an annuity or the exchange of an annuity that results in another
58insurance transaction or series of insurance transactions, an
59insurance agent, or an insurer if no insurance agent is
60involved, shall have reasonable grounds for believing that the
61recommendation is suitable for the senior consumer on the basis
62of the facts disclosed by the senior consumer as to his or her
63investments and other insurance products and as to his or her
64financial situation and needs.
65     (b)  Before executing a purchase or exchange of an annuity
66resulting from a recommendation to a senior consumer, an
67insurance agent, or an insurer if no insurance agent is
68involved, shall make reasonable efforts to obtain information
69concerning the senior consumer's financial status, tax status,
70and investment objectives and such other information used or
71considered to be reasonable by the insurance agent, or the
72insurer if no agent is involved, in making the recommendation.
73     (c)1.  Except as provided under subparagraph 2., an
74insurance agent, or an insurer if no insurance agent is
75involved, shall not have any obligation to a senior consumer
76under paragraph (a) related to any recommendation if the senior
77consumer:
78     a.  Refuses to provide relevant information requested by
79the insurer or insurance agent;
80     b.  Decides to enter into an insurance transaction that is
81not based on a recommendation of the insurer or insurance agent;
82or
83     c.  Fails to provide complete or accurate information.
84     2.  An insurer or insurance agent's recommendation subject
85to subparagraph 1. shall be reasonable under all the
86circumstances actually known to the insurer or insurance agent
87at the time of the recommendation.
88     (d)1.  An insurer or insurance agent shall ensure that a
89system to supervise recommendations that is reasonably designed
90to achieve compliance with this section is established and
91maintained by complying with subparagraphs 3., 4., and 5., or
92shall establish and maintain such a system, including, but not
93limited to:
94     a.  Maintaining written procedures.
95     b.  Conducting periodic reviews of its records that are
96reasonably designed to assist in detecting and preventing
97violations of this section.
98     2.  A managing general agent and an insurance agency shall
99adopt a system established by an insurer to supervise
100recommendations of its insurance agents that is reasonably
101designed to achieve compliance with this section or shall
102establish and maintain such a system, including, but not limited
103to:
104     a.  Maintaining written procedures.
105     b.  Conducting periodic reviews of records that are
106reasonably designed to assist in detecting and preventing
107violations of this section.
108     3.  An insurer may contract with a third party, including a
109managing general agent or an insurance agency, to establish and
110maintain a system of supervision as required by subparagraph 1.
111with respect to insurance agents under contract with or employed
112by the third party.
113     4.  An insurer shall make reasonable inquiry to ensure that
114such third party contracting under subparagraph 3. is performing
115the functions required under subparagraph 1. and shall take such
116action as is reasonable under the circumstances to enforce the
117contractual obligation to perform the functions. An insurer may
118comply with its obligation to make reasonable inquiry by:
119     a.  Annually obtaining a certification from a third party
120senior manager who has responsibility for the delegated
121functions that the manager has a reasonable basis to represent,
122and does represent, that the third party is performing the
123required functions.
124     b.  Based on reasonable selection criteria, periodically
125selecting third parties contracting under subparagraph 3. for a
126review to determine whether the third parties are performing the
127required functions. The insurer shall perform any procedures
128necessary to conduct the review that are reasonable under the
129circumstances.
130     5.  An insurer that contracts with a third party pursuant
131to subparagraph 3. and complies with the requirements specified
132in subparagraph 4. is deemed to have fulfilled its
133responsibilities under subparagraph 1.
134     6.  An insurer, managing general agent, or insurance agency
135is not required by subparagraph 1. or subparagraph 2. to:
136     a.  Review or provide for review of all transactions
137solicited by an insurance agent; or
138     b.  Include in its system of supervision an insurance
139agent's recommendations to senior consumers of products other
140than the annuities offered by the insurer, managing general
141agent, or insurance agency.
142     7.  A managing general agent or insurance agency
143contracting with an insurer pursuant to subparagraph 3. shall
144promptly, when requested by the insurer pursuant to subparagraph
1454., give a certification as described in subparagraph 4. or give
146a clear statement that the managing general agent or insurance
147agency is unable to meet the certification criteria.
148     8.  A person may not provide a certification under sub-
149subparagraph 4.a. unless the person is a senior manager with
150responsibility for the delegated functions and has a reasonable
151basis for making the certification.
152     (5)  MITIGATION OF RESPONSIBILITY.--
153     (a)  The office may order an insurer to take reasonably
154appropriate corrective action for any senior consumer harmed by
155a violation of this section by the insurer or the insurer's
156insurance agent.
157     (b)  The department may order:
158     1.  An insurance agent to take reasonably appropriate
159corrective action for any senior consumer harmed by a violation
160of this section by the insurance agent.
161     2.  A managing general agency or insurance agency that
162employs or contracts with an insurance agent to sell or solicit
163the sale of annuities to senior consumers to take reasonably
164appropriate corrective action for any senior consumer harmed by
165a violation of this section by the insurance agent.
166     (c)  Any applicable penalty under the Florida Insurance
167Code for a violation of paragraph (4)(a), paragraph (4)(b), or
168subparagraph (4)(c)2. may be reduced or eliminated, according to
169a schedule adopted by the office or department, as appropriate,
170if corrective action for the senior consumer was taken promptly
171after a violation was discovered.
172     (6)  RECORDKEEPING.--
173     (a)  Insurers, managing general agents, insurance agencies,
174and insurance agents shall maintain or be able to make available
175to the department or office, as appropriate, records of the
176information collected from the senior consumer and other
177information used in making the recommendations that were the
178basis for insurance transactions for 5 years after the insurance
179transaction is completed by the insurer. An insurer is
180permitted, but shall not be required, to maintain documentation
181on behalf of an insurance agent.
182     (b)  Records required to be maintained by this regulation
183may be maintained in paper, photographic, microprocess,
184magnetic, mechanical or electronic media, or by any process that
185accurately reproduces the actual document.
186     (7)  EXEMPTIONS.--Unless otherwise specifically included,
187this section shall not apply to recommendations involving:
188     (a)  Direct-response solicitations where there is no
189recommendation based on information collected from the senior
190consumer pursuant to this section.
191     (b)  Contracts used to fund:
192     1.  An employee pension or welfare benefit plan that is
193covered by the Employee Retirement and Income Security Act;
194     2.  A plan described by Sections 401(a), 401(k), 403(b),
195408(k), or 408(p) of the Internal Revenue Code of 1986, as
196amended, if established or maintained by an employer;
197     3.  A government or church plan defined in Section 414 of
198the Internal Revenue Code of 1986, as amended, a government or
199church welfare benefit plan, or a deferred compensation plan of
200a state or local government or tax-exempt organization under
201Section 457 of the Internal Revenue Code of 1986, as amended;
202     4.  A nonqualified deferred compensation arrangement
203established or maintained by an employer or plan sponsor;
204     5.  Settlements of or assumptions of liabilities associated
205with personal injury litigation or any dispute or claim
206resolution process; or
207     6.  Prepaid funeral contracts.
208     (8)  Compliance with the Conduct Rules of the National
209Association of Securities Dealers in effect on January 1, 2004,
210satisfies the requirements under this section for the
211recommendation of variable annuities. This section does not
212limit the department's ability to enforce the provisions of this
213section with respect to insurance agents, insurance agencies,
214and managing general agents, or the office's ability to enforce
215the provisions of this section with respect to insurers.
216     Section 2.  This act shall take effect October 1, 2004.


CODING: Words stricken are deletions; words underlined are additions.