1 | The Committee on Insurance recommends the following: |
2 |
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3 | Committee Substitute |
4 | Remove the entire bill and insert: |
5 | A bill to be entitled |
6 | An act relating to annuity investments by seniors; |
7 | creating s. 627.4554, F.S.; providing a purpose; providing |
8 | application; providing definitions; specifying duties of |
9 | insurers and insurance agents relating to making annuity |
10 | investment recommendations to senior consumers; providing |
11 | requirements; limiting responsibility of insurers or |
12 | insurance agents under certain circumstances; requiring a |
13 | system of compliance and supervision; providing for |
14 | enforcement by the Office of Financial Regulation and the |
15 | Department of Financial Services; authorizing the office |
16 | and department to issue orders to mitigate certain |
17 | responsibilities of insurers or insurance agents; |
18 | providing for reduction or elimination of certain |
19 | penalties under certain circumstances; providing |
20 | recordkeeping requirements; providing exemption from |
21 | application for variable annuities; providing an effective |
22 | date. |
23 |
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24 | Be It Enacted by the Legislature of the State of Florida: |
25 |
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26 | Section 1. Section 627.4554, Florida Statutes, is created |
27 | to read: |
28 | 627.4554 Annuity investments by seniors.-- |
29 | (1) PURPOSE; CONSTRUCTION.-- |
30 | (a) The purpose of this section is to set forth standards |
31 | and procedures for recommendations to senior consumers that |
32 | result in a transaction involving annuity products to |
33 | appropriately address the insurance needs and financial |
34 | objectives of senior consumers at the time of the transaction. |
35 | (b) Nothing in this section shall be construed to create |
36 | or imply a private cause of action for a violation of this |
37 | section. |
38 | (2) APPLICATION.--This section applies to any |
39 | recommendation to purchase or exchange an annuity made to a |
40 | senior consumer by an insurance agent, or an insurer where no |
41 | agent is involved, that results in the purchase or exchange |
42 | recommended. |
43 | (3) DEFINITIONS.--For purposes of this section: |
44 | (a) "Annuity" means a fixed annuity or variable annuity |
45 | that is individually solicited, whether the product is |
46 | classified as an individual annuity or a group annuity. |
47 | (b) "Recommendation" means advice provided by an insurance |
48 | agent, or an insurer if no insurance agent is involved, to an |
49 | individual senior consumer that results in a purchase or |
50 | exchange of an annuity in accordance with that advice. |
51 | (c) "Senior consumer" means a person 65 years of age or |
52 | older. In the event of a joint purchase by more than one party, |
53 | a purchaser is considered to be a senior consumer if any of the |
54 | parties is age 65 or older. |
55 | (4) DUTIES OF INSURERS AND INSURANCE AGENTS.-- |
56 | (a) In recommending to a senior consumer the purchase of |
57 | an annuity or the exchange of an annuity that results in another |
58 | insurance transaction or series of insurance transactions, an |
59 | insurance agent, or an insurer if no insurance agent is |
60 | involved, shall have reasonable grounds for believing that the |
61 | recommendation is suitable for the senior consumer on the basis |
62 | of the facts disclosed by the senior consumer as to his or her |
63 | investments and other insurance products and as to his or her |
64 | financial situation and needs. |
65 | (b) Before executing a purchase or exchange of an annuity |
66 | resulting from a recommendation to a senior consumer, an |
67 | insurance agent, or an insurer if no insurance agent is |
68 | involved, shall make reasonable efforts to obtain information |
69 | concerning the senior consumer's financial status, tax status, |
70 | and investment objectives and such other information used or |
71 | considered to be reasonable by the insurance agent, or the |
72 | insurer if no agent is involved, in making the recommendation. |
73 | (c)1. Except as provided under subparagraph 2., an |
74 | insurance agent, or an insurer if no insurance agent is |
75 | involved, shall not have any obligation to a senior consumer |
76 | under paragraph (a) related to any recommendation if the senior |
77 | consumer: |
78 | a. Refuses to provide relevant information requested by |
79 | the insurer or insurance agent; |
80 | b. Decides to enter into an insurance transaction that is |
81 | not based on a recommendation of the insurer or insurance agent; |
82 | or |
83 | c. Fails to provide complete or accurate information. |
84 | 2. An insurer or insurance agent's recommendation subject |
85 | to subparagraph 1. shall be reasonable under all the |
86 | circumstances actually known to the insurer or insurance agent |
87 | at the time of the recommendation. |
88 | (d)1. An insurer or insurance agent shall ensure that a |
89 | system to supervise recommendations that is reasonably designed |
90 | to achieve compliance with this section is established and |
91 | maintained by complying with subparagraphs 3., 4., and 5., or |
92 | shall establish and maintain such a system, including, but not |
93 | limited to: |
94 | a. Maintaining written procedures. |
95 | b. Conducting periodic reviews of its records that are |
96 | reasonably designed to assist in detecting and preventing |
97 | violations of this section. |
98 | 2. A managing general agent and an insurance agency shall |
99 | adopt a system established by an insurer to supervise |
100 | recommendations of its insurance agents that is reasonably |
101 | designed to achieve compliance with this section or shall |
102 | establish and maintain such a system, including, but not limited |
103 | to: |
104 | a. Maintaining written procedures. |
105 | b. Conducting periodic reviews of records that are |
106 | reasonably designed to assist in detecting and preventing |
107 | violations of this section. |
108 | 3. An insurer may contract with a third party, including a |
109 | managing general agent or an insurance agency, to establish and |
110 | maintain a system of supervision as required by subparagraph 1. |
111 | with respect to insurance agents under contract with or employed |
112 | by the third party. |
113 | 4. An insurer shall make reasonable inquiry to ensure that |
114 | such third party contracting under subparagraph 3. is performing |
115 | the functions required under subparagraph 1. and shall take such |
116 | action as is reasonable under the circumstances to enforce the |
117 | contractual obligation to perform the functions. An insurer may |
118 | comply with its obligation to make reasonable inquiry by: |
119 | a. Annually obtaining a certification from a third party |
120 | senior manager who has responsibility for the delegated |
121 | functions that the manager has a reasonable basis to represent, |
122 | and does represent, that the third party is performing the |
123 | required functions. |
124 | b. Based on reasonable selection criteria, periodically |
125 | selecting third parties contracting under subparagraph 3. for a |
126 | review to determine whether the third parties are performing the |
127 | required functions. The insurer shall perform any procedures |
128 | necessary to conduct the review that are reasonable under the |
129 | circumstances. |
130 | 5. An insurer that contracts with a third party pursuant |
131 | to subparagraph 3. and complies with the requirements specified |
132 | in subparagraph 4. is deemed to have fulfilled its |
133 | responsibilities under subparagraph 1. |
134 | 6. An insurer, managing general agent, or insurance agency |
135 | is not required by subparagraph 1. or subparagraph 2. to: |
136 | a. Review or provide for review of all transactions |
137 | solicited by an insurance agent; or |
138 | b. Include in its system of supervision an insurance |
139 | agent's recommendations to senior consumers of products other |
140 | than the annuities offered by the insurer, managing general |
141 | agent, or insurance agency. |
142 | 7. A managing general agent or insurance agency |
143 | contracting with an insurer pursuant to subparagraph 3. shall |
144 | promptly, when requested by the insurer pursuant to subparagraph |
145 | 4., give a certification as described in subparagraph 4. or give |
146 | a clear statement that the managing general agent or insurance |
147 | agency is unable to meet the certification criteria. |
148 | 8. A person may not provide a certification under sub- |
149 | subparagraph 4.a. unless the person is a senior manager with |
150 | responsibility for the delegated functions and has a reasonable |
151 | basis for making the certification. |
152 | (5) MITIGATION OF RESPONSIBILITY.-- |
153 | (a) The office may order an insurer to take reasonably |
154 | appropriate corrective action for any senior consumer harmed by |
155 | a violation of this section by the insurer or the insurer's |
156 | insurance agent. |
157 | (b) The department may order: |
158 | 1. An insurance agent to take reasonably appropriate |
159 | corrective action for any senior consumer harmed by a violation |
160 | of this section by the insurance agent. |
161 | 2. A managing general agency or insurance agency that |
162 | employs or contracts with an insurance agent to sell or solicit |
163 | the sale of annuities to senior consumers to take reasonably |
164 | appropriate corrective action for any senior consumer harmed by |
165 | a violation of this section by the insurance agent. |
166 | (c) Any applicable penalty under the Florida Insurance |
167 | Code for a violation of paragraph (4)(a), paragraph (4)(b), or |
168 | subparagraph (4)(c)2. may be reduced or eliminated, according to |
169 | a schedule adopted by the office or department, as appropriate, |
170 | if corrective action for the senior consumer was taken promptly |
171 | after a violation was discovered. |
172 | (6) RECORDKEEPING.-- |
173 | (a) Insurers, managing general agents, insurance agencies, |
174 | and insurance agents shall maintain or be able to make available |
175 | to the department or office, as appropriate, records of the |
176 | information collected from the senior consumer and other |
177 | information used in making the recommendations that were the |
178 | basis for insurance transactions for 5 years after the insurance |
179 | transaction is completed by the insurer. An insurer is |
180 | permitted, but shall not be required, to maintain documentation |
181 | on behalf of an insurance agent. |
182 | (b) Records required to be maintained by this regulation |
183 | may be maintained in paper, photographic, microprocess, |
184 | magnetic, mechanical or electronic media, or by any process that |
185 | accurately reproduces the actual document. |
186 | (7) EXEMPTIONS.--Unless otherwise specifically included, |
187 | this section shall not apply to recommendations involving: |
188 | (a) Direct-response solicitations where there is no |
189 | recommendation based on information collected from the senior |
190 | consumer pursuant to this section. |
191 | (b) Contracts used to fund: |
192 | 1. An employee pension or welfare benefit plan that is |
193 | covered by the Employee Retirement and Income Security Act; |
194 | 2. A plan described by Sections 401(a), 401(k), 403(b), |
195 | 408(k), or 408(p) of the Internal Revenue Code of 1986, as |
196 | amended, if established or maintained by an employer; |
197 | 3. A government or church plan defined in Section 414 of |
198 | the Internal Revenue Code of 1986, as amended, a government or |
199 | church welfare benefit plan, or a deferred compensation plan of |
200 | a state or local government or tax-exempt organization under |
201 | Section 457 of the Internal Revenue Code of 1986, as amended; |
202 | 4. A nonqualified deferred compensation arrangement |
203 | established or maintained by an employer or plan sponsor; |
204 | 5. Settlements of or assumptions of liabilities associated |
205 | with personal injury litigation or any dispute or claim |
206 | resolution process; or |
207 | 6. Prepaid funeral contracts. |
208 | (8) Compliance with the Conduct Rules of the National |
209 | Association of Securities Dealers in effect on January 1, 2004, |
210 | satisfies the requirements under this section for the |
211 | recommendation of variable annuities. This section does not |
212 | limit the department's ability to enforce the provisions of this |
213 | section with respect to insurance agents, insurance agencies, |
214 | and managing general agents, or the office's ability to enforce |
215 | the provisions of this section with respect to insurers. |
216 | Section 2. This act shall take effect October 1, 2004. |