| 1 | A bill to be entitled |
| 2 | An act relating to viatical settlements; amending s. |
| 3 | 626.9911, F.S.; providing and revising definitions; |
| 4 | amending s. 626.9913, F.S.; requiring additional |
| 5 | information in an annual statement; revising a deposit |
| 6 | requirement; amending s. 626.9914, F.S.; adding an |
| 7 | additional ground for imposing adverse consequences on |
| 8 | viatical settlement provider licenses; increasing |
| 9 | administrative fines; amending s. 626.99175, F.S.; |
| 10 | deleting an exception from registration requirements for |
| 11 | life expectancy providers; creating s. 626.99185, F.S.; |
| 12 | requiring viatical settlement providers to provide viators |
| 13 | with a disbursement disclosure statement; providing |
| 14 | statement requirements and procedures; amending ss. |
| 15 | 626.9924 and 626.99245, F.S.; conforming cross-references; |
| 16 | creating s. 626.99273, F.S.; prohibiting certain practices |
| 17 | or activities relating to viatical settlement contracts or |
| 18 | insurance policies; specifying that such practices or |
| 19 | activities are fraudulent; requiring certain materials to |
| 20 | be filed with the Office of Insurance Regulation before |
| 21 | entering into viatical settlement contracts; prohibiting |
| 22 | certain references in marketing materials; prohibiting |
| 23 | certain statements or representations to applicants or |
| 24 | policyholders; amending s. 626.99275, F.S.; specifying an |
| 25 | additional prohibited practice; prohibiting any person |
| 26 | from entering into a viatical settlement contract and from |
| 27 | issuing, soliciting, marketing, or otherwise promoting the |
| 28 | purchase of a policy under certain circumstances; |
| 29 | providing criteria; providing criminal penalties; creating |
| 30 | s. 626.99276, F.S.; providing insurer notification |
| 31 | requirements for viatical settlement providers; providing |
| 32 | insurer requirements for provider requests for transfers |
| 33 | of certain policies; specifying prohibitions against |
| 34 | insurers relating to such transfers; providing insurer |
| 35 | response requirements for requests for such transfers; |
| 36 | amending s. 626.99278, F.S.; specifying certain |
| 37 | information required to be maintained and reported |
| 38 | relating to anti-fraud plans and procedures, medical |
| 39 | records and insurance applications, and reporting of |
| 40 | fraudulent acts and prohibited practices; creating s. |
| 41 | 626.99289, F.S.; providing that certain contracts, |
| 42 | agreements, arrangements, and transactions are void and |
| 43 | unenforceable; repealing s. 626.99287, F.S., relating to |
| 44 | the contestability of viaticated policies; providing an |
| 45 | effective date. |
| 46 |
|
| 47 | Be It Enacted by the Legislature of the State of Florida: |
| 48 |
|
| 49 | Section 1. Section 626.9911, Florida Statutes, is amended |
| 50 | to read: |
| 51 | 626.9911 Definitions.--As used in this act, the term: |
| 52 | (1) "Business of viatical settlements" means an activity |
| 53 | involved in, but not limited to, the offering, soliciting, |
| 54 | negotiating, procuring, effectuating, purchasing, investing, |
| 55 | monitoring, tracking, underwriting, selling, transferring, |
| 56 | assigning, pledging, hypothecating, or in any other manner |
| 57 | acquiring an interest in a life insurance policy by means of a |
| 58 | viatical settlement contract. |
| 59 | (2)(1) "Financing entity" means an underwriter, placement |
| 60 | agent, lender, purchaser of securities, or purchaser of a policy |
| 61 | or certificate from a viatical settlement provider, credit |
| 62 | enhancer, or any entity that has direct ownership in a policy or |
| 63 | certificate that is the subject of a viatical settlement |
| 64 | contract, but whose principal activity related to the |
| 65 | transaction is providing funds or credit enhancement to effect |
| 66 | the viatical settlement or the purchase of one or more |
| 67 | viaticated policies and who has an agreement in writing with one |
| 68 | or more licensed viatical settlement providers to finance the |
| 69 | acquisition of viatical settlement contracts. The term does not |
| 70 | include a nonaccredited investor or other natural person. A |
| 71 | financing entity may not enter into a viatical settlement |
| 72 | contract. |
| 73 | (3) "Fraudulent viatical settlement act" means an act or |
| 74 | omission committed by any person who, knowingly or with intent |
| 75 | to defraud, for the purpose of depriving another of property or |
| 76 | for pecuniary gain, commits or permits its employees or its |
| 77 | agents to engage in acts including: |
| 78 | (a)1. Presenting, causing to be presented, or preparing |
| 79 | with knowledge or belief that it will be presented to or by a |
| 80 | viatical settlement provider, viatical settlement broker, |
| 81 | financing entity, insurer, insurance producer, or any other |
| 82 | person false material information or concealing material |
| 83 | information as part of, in support of, or concerning a fact |
| 84 | material to one or more of the following: |
| 85 | a. An application for the issuance of a viatical |
| 86 | settlement contract or insurance policy; |
| 87 | b. The underwriting of a viatical settlement contract or |
| 88 | insurance policy; |
| 89 | c. A claim for payment or benefit pursuant to a viatical |
| 90 | settlement contract or insurance policy; |
| 91 | d. Premiums paid on an insurance policy; |
| 92 | e. Payments and changes in ownership or beneficiary made |
| 93 | in accordance with the terms of a viatical settlement contract |
| 94 | or insurance policy; |
| 95 | f. The reinstatement or conversion of an insurance policy; |
| 96 | g. The solicitation, offer, effectuation, or sale of a |
| 97 | viatical settlement contract or insurance policy; |
| 98 | h. The issuance of written evidence of a viatical |
| 99 | settlement contract or insurance policy; or |
| 100 | i. A financing transaction. |
| 101 | 2.a. Employing any plan, financial structure, device, |
| 102 | scheme, or artifice to defraud related to viaticated policies; |
| 103 | b. Entering into any practice or plan that involves |
| 104 | stranger-originated life insurance; or |
| 105 | c. Failing to disclose to the insurer when requested by |
| 106 | the insurer that the prospective insured has undergone a life |
| 107 | expectancy evaluation by any person or entity other than the |
| 108 | insurer or its authorized representatives in connection with the |
| 109 | issuance of the policy. |
| 110 | (b) In the furtherance of a fraud or to prevent the |
| 111 | detection of a fraud, any person who commits or permits its |
| 112 | employees or its agents to: |
| 113 | 1. Remove, conceal, alter, destroy, or sequester from the |
| 114 | office the assets or records of a licensee or other person |
| 115 | engaged in the business of viatical settlements; |
| 116 | 2. Misrepresent or conceal the financial condition of a |
| 117 | licensee, financing entity, insurer, or other person; |
| 118 | 3. Transact the business of viatical settlements in |
| 119 | violation of laws requiring a license, certificate of authority, |
| 120 | or other legal authority for the transaction of the business of |
| 121 | viatical settlements; or |
| 122 | 4. File with the office or the equivalent chief insurance |
| 123 | regulatory official of another jurisdiction a document that |
| 124 | contains false information or otherwise conceals information |
| 125 | about a material fact from the office or other regulatory |
| 126 | official; |
| 127 | (c) Embezzlement, theft, misappropriation, or conversion |
| 128 | of moneys, funds, premiums, credits, or other property of a |
| 129 | viatical settlement provider, insurer, insured, viator, |
| 130 | insurance policyowner, or any other person engaged in the |
| 131 | business of viatical settlements or insurance; |
| 132 | (d) Recklessly entering into, negotiating, brokering, or |
| 133 | otherwise dealing in a viatical settlement contract, the subject |
| 134 | of which is a life insurance policy that was obtained by |
| 135 | presenting false information concerning any fact material to the |
| 136 | policy or by concealing, for the purpose of misleading another, |
| 137 | information concerning any fact material to the policy, in which |
| 138 | the person or persons intended to defraud the policy's issuer, |
| 139 | viatical settlement provider, or viator. For purposes of this |
| 140 | paragraph, the term "recklessly" means consciously and with |
| 141 | clear, unjustifiable disregard for the substantial likelihood of |
| 142 | the relevant facts or risks, which disregard involves a gross |
| 143 | deviation from acceptable standards of conduct; |
| 144 | (e) Knowingly or intentionally facilitating the viator's |
| 145 | change of residency state to avoid the provisions of this act; |
| 146 | (f) Knowingly or intentionally, directly or indirectly, |
| 147 | facilitating or causing the creation of a trust with a non- |
| 148 | Florida situs or other nonresident entity for the purpose of |
| 149 | being a policyowner of a life insurance policy covering a |
| 150 | Florida resident insured to avoid the provisions of this act; |
| 151 | (g) Knowingly or intentionally, directly or indirectly, |
| 152 | facilitating or causing the transfer of the ownership of a |
| 153 | policy covering a Florida resident insured to a trust with a |
| 154 | non-Florida situs or other nonresident entity to avoid the |
| 155 | provisions of this act; |
| 156 | (h) Attempting to commit, assisting, aiding, or abetting |
| 157 | in the commission of or conspiring to commit the acts or |
| 158 | omissions specified in this subsection; |
| 159 | (i) Any application for, the existence of, or any payments |
| 160 | related to a loan secured directly or indirectly by any interest |
| 161 | in a life insurance policy; or |
| 162 | (j) Failing to disclose to the insurer when the request |
| 163 | for such disclosure has been asked for by the insurer that the |
| 164 | prospective insured has undergone a life expectancy evaluation |
| 165 | by any person or entity other than the insurer or its authorized |
| 166 | representatives in connection with the issuance of the policy. |
| 167 | (4)(2) "Independent third-party trustee or escrow agent" |
| 168 | means an attorney, certified public accountant, financial |
| 169 | institution, or other person providing escrow services under the |
| 170 | authority of a regulatory body. The term does not include any |
| 171 | person associated, affiliated, or under common control with a |
| 172 | viatical settlement provider or viatical settlement broker. |
| 173 | (5)(3) "Life expectancy" means an opinion or evaluation as |
| 174 | to how long a particular person is to live, or relating to such |
| 175 | person's expected demise. |
| 176 | (6)(4) "Life expectancy provider" means a person who |
| 177 | determines, or holds himself or herself out as determining, life |
| 178 | expectancies or mortality ratings used to determine life |
| 179 | expectancies: |
| 180 | (a) On behalf of a viatical settlement provider, viatical |
| 181 | settlement broker, life agent, or person engaged in the business |
| 182 | of viatical settlements; |
| 183 | (b) In connection with a viatical settlement investment, |
| 184 | pursuant to s. 517.021(23); or |
| 185 | (c) On residents of this state in connection with a |
| 186 | viatical settlement contract or viatical settlement investment. |
| 187 | (7)(5) "Person" has the meaning specified in s. 1.01. |
| 188 | (8)(6) "Related form" means any form, created by or on |
| 189 | behalf of a licensee, which a viator or insured is required to |
| 190 | sign or initial. The forms include, but are not limited to, a |
| 191 | power of attorney, a release of medical information form, a |
| 192 | suitability questionnaire, a disclosure document, or any |
| 193 | addendum, schedule, or amendment to a viatical settlement |
| 194 | contract considered necessary by a provider to effectuate a |
| 195 | viatical settlement transaction. |
| 196 | (9)(7) "Related provider trust" means a titling trust or |
| 197 | other trust established by a licensed viatical settlement |
| 198 | provider or financing entity for the sole purpose of holding the |
| 199 | ownership or beneficial interest in purchased policies in |
| 200 | connection with a financing transaction. The trust must have a |
| 201 | written agreement with a licensed viatical settlement provider |
| 202 | or financing entity under which the licensed viatical settlement |
| 203 | provider or financing entity is responsible for insuring |
| 204 | compliance with all statutory and regulatory requirements and |
| 205 | under which the trust agrees to make all records and files |
| 206 | relating to viatical settlement transactions available to the |
| 207 | office as if those records and files were maintained directly by |
| 208 | the licensed viatical settlement provider. This term does not |
| 209 | include an independent third-party trustee or escrow agent or a |
| 210 | trust that does not enter into agreements with a viator. A |
| 211 | related provider trust shall be subject to all provisions of |
| 212 | this act that apply to the viatical settlement provider who |
| 213 | established the related provider trust, except s. 626.9912, |
| 214 | which shall not be applicable. A viatical settlement provider |
| 215 | may establish no more than one related provider trust, and the |
| 216 | sole trustee of such related provider trust shall be the |
| 217 | viatical settlement provider licensed under s. 626.9912. The |
| 218 | name of the licensed viatical settlement provider shall be |
| 219 | included within the name of the related provider trust. |
| 220 | (10)(8) "Special purpose entity" means an entity |
| 221 | established by a licensed viatical settlement provider or by a |
| 222 | financing entity, which may be a corporation, partnership, |
| 223 | trust, limited liability company, or other similar entity formed |
| 224 | solely to provide, either directly or indirectly, access to |
| 225 | institutional capital markets to a viatical settlement provider |
| 226 | or financing entity. A special purpose entity may not obtain |
| 227 | capital from any natural person or entity with less than $50 |
| 228 | million in assets and may not enter into a viatical settlement |
| 229 | contract. |
| 230 | (11) "Stranger-originated life insurance" means a practice |
| 231 | or plan to initiate a life insurance policy for the benefit of a |
| 232 | third-party investor who, at the time of policy origination, has |
| 233 | no insurable interest in the insured. Stranger-originated life |
| 234 | insurance practices include, but are not limited to, cases in |
| 235 | which life insurance is purchased with resources or guarantees |
| 236 | from or through a person or entity who, at the time of policy |
| 237 | inception, could not lawfully initiate the policy himself, |
| 238 | herself, or itself and when, at the time of inception, there is |
| 239 | a verbal or written arrangement or agreement to directly or |
| 240 | indirectly transfer the ownership of the policy or policy |
| 241 | benefits to a third party. Trusts that are created to give the |
| 242 | appearance of an insurable interest and are used to initiate |
| 243 | policies for investors violate insurable interest laws and the |
| 244 | prohibition against wagering on life. |
| 245 | (12)(9) "Viatical settlement broker" means a person who, |
| 246 | on behalf of a viator and for a fee, commission, or other |
| 247 | valuable consideration, offers or attempts to negotiate viatical |
| 248 | settlement contracts between a viator resident in this state and |
| 249 | one or more viatical settlement providers. Notwithstanding the |
| 250 | manner in which the viatical settlement broker is compensated, a |
| 251 | viatical settlement broker is deemed to represent only the |
| 252 | viator and owes a fiduciary duty to the viator to act according |
| 253 | to the viator's instructions and in the best interest of the |
| 254 | viator. The term does not include an attorney, licensed |
| 255 | Certified Public Accountant, or investment adviser lawfully |
| 256 | registered under chapter 517, who is retained to represent the |
| 257 | viator and whose compensation is paid directly by or at the |
| 258 | direction and on behalf of the viator. |
| 259 | (13)(10) "Viatical settlement contract" means a written |
| 260 | agreement entered into between a viatical settlement provider, |
| 261 | or its related provider trust, and a viator. The viatical |
| 262 | settlement contract includes an agreement to transfer ownership |
| 263 | or change the beneficiary designation of a life insurance policy |
| 264 | at a later date, regardless of the date that compensation is |
| 265 | paid to the viator. The agreement must establish the terms under |
| 266 | which the viatical settlement provider will pay compensation or |
| 267 | anything of value, which compensation or value is less than the |
| 268 | expected death benefit of the insurance policy or certificate, |
| 269 | in return for the viator's assignment, transfer, sale, devise, |
| 270 | or bequest of the death benefit or ownership of all or a portion |
| 271 | of the insurance policy or certificate of insurance to the |
| 272 | viatical settlement provider. The term "viatical settlement |
| 273 | contract" also includes the transfer for compensation or value |
| 274 | of ownership or beneficial interest in a trust or other entity |
| 275 | that owns such policy if the trust or other entity was formed or |
| 276 | used for the principal purpose of acquiring one or more life |
| 277 | insurance contracts, which contract or contracts insure the life |
| 278 | of a person residing in this state. A viatical settlement |
| 279 | contract also includes a contract for a loan or other financial |
| 280 | transaction secured primarily by an individual or group life |
| 281 | insurance policy. The term "viatical settlement contract" does |
| 282 | not include, other than a policy loan by a life insurance |
| 283 | company pursuant to the terms of the life insurance contract or |
| 284 | accelerated death provisions contained in a life insurance |
| 285 | policy, whether issued with the original policy or as a rider, |
| 286 | or a loan secured by the cash surrender value of a policy as |
| 287 | determined by the policy issuer and the life insurance policy |
| 288 | terms, or any loan or advance from the issuer of the policy to |
| 289 | the policyowner. |
| 290 | (14)(11) "Viatical settlement investment" has the same |
| 291 | meaning as specified in s. 517.021. |
| 292 | (15)(12) "Viatical settlement provider" means a person |
| 293 | who, in this state, from this state, or with a resident of this |
| 294 | state, effectuates a viatical settlement contract. The term does |
| 295 | not include: |
| 296 | (a) Any bank, savings bank, savings and loan association, |
| 297 | or credit union, or other licensed lending institution that |
| 298 | takes an assignment of a life insurance policy as collateral for |
| 299 | a loan. |
| 300 | (b) A life and health insurer that has lawfully issued a |
| 301 | life insurance policy that provides accelerated benefits to |
| 302 | terminally ill policyholders or certificateholders. |
| 303 | (c) Any natural person who enters into no more than one |
| 304 | viatical settlement contract with a viator in 1 calendar year, |
| 305 | unless such natural person has previously been licensed under |
| 306 | this act or is currently licensed under this act. |
| 307 | (d) A trust that meets the definition of a "related |
| 308 | provider trust." |
| 309 | (e) A viator in this state. |
| 310 | (f) A financing entity. |
| 311 | (16)(13) "Viaticated policy" means a life insurance |
| 312 | policy, or a certificate under a group policy, which is the |
| 313 | subject of a viatical settlement contract. |
| 314 | (17)(14) "Viator" means the owner of a life insurance |
| 315 | policy or a certificateholder under a group policy, which policy |
| 316 | is not a previously viaticated policy, who enters or seeks to |
| 317 | enter into a viatical settlement contract. This term does not |
| 318 | include a viatical settlement provider or any person acquiring a |
| 319 | policy or interest in a policy from a viatical settlement |
| 320 | provider, nor does it include an independent third-party trustee |
| 321 | or escrow agent. |
| 322 | Section 2. Subsections (2) and (3) of section 626.9913, |
| 323 | Florida Statutes, are amended to read: |
| 324 | 626.9913 Viatical settlement provider license continuance; |
| 325 | annual report; fees; deposit.-- |
| 326 | (2)(a) Annually, on or before March 1, the viatical |
| 327 | settlement provider licensee shall file a statement containing |
| 328 | information the commission requires and shall pay to the office |
| 329 | a license fee in the amount of $500. |
| 330 | (b) In addition to any other requirements, the annual |
| 331 | statement shall specify: |
| 332 | 1. The total number of unsettled viatical settlement |
| 333 | contracts and corresponding total amount due viators on viatical |
| 334 | settlement contracts that have been signed by the viator but |
| 335 | have not been settled as of December 31 of the preceding |
| 336 | calendar year, categorized by the number of days since the |
| 337 | viator signed the contract for transactions regulated by this |
| 338 | state. |
| 339 | 2. The total number of policies purchased in any state, |
| 340 | territory, or jurisdiction; total gross amount paid for policies |
| 341 | purchased in any state, territory, or jurisdiction; and the |
| 342 | total face value of policies purchased for the preceding |
| 343 | calendar year and most recent 5 years in any state, territory, |
| 344 | or jurisdiction. |
| 345 | 3. The total number of policies purchased, total gross |
| 346 | amount paid for policies purchased, total commissions or |
| 347 | compensation paid for policies purchased, and total face value |
| 348 | of policies purchased, allocated by state, territory, or |
| 349 | jurisdiction. |
| 350 | 4. The total amount of proceeds or compensation paid to |
| 351 | policyowners, allocated by state, territory, or jurisdiction. |
| 352 | (c) After December 31, 2007, The annual statement shall |
| 353 | include an annual audited financial statement of the viatical |
| 354 | settlement provider prepared in accordance with generally |
| 355 | accepted accounting principles by an independent certified |
| 356 | public accountant covering a 12-month period ending on a day |
| 357 | falling during the last 6 months of the preceding calendar year. |
| 358 | If the audited financial statement has not been completed, |
| 359 | however, the licensee shall include in its annual statement an |
| 360 | unaudited financial statement for the preceding calendar year |
| 361 | and an affidavit from an officer of the licensee stating that |
| 362 | the audit has not been completed. In this event, the licensee |
| 363 | shall submit the audited statement on or before June 1. The |
| 364 | annual statement, due on or before March 1 each year, shall also |
| 365 | provide the office with a report of all life expectancy |
| 366 | providers who have provided life expectancies directly or |
| 367 | indirectly to the viatical settlement provider for use in |
| 368 | connection with a viatical settlement contract or a viatical |
| 369 | settlement investment. A viatical settlement provider shall |
| 370 | include in all statements filed with the office all information |
| 371 | requested by the office regarding a related provider trust |
| 372 | established by the viatical settlement provider. The office may |
| 373 | require more frequent reporting. Failure to timely file the |
| 374 | annual statement or the audited financial statement or to timely |
| 375 | pay the license fee is grounds for immediate suspension of the |
| 376 | license. The commission may by rule require all or part of the |
| 377 | statements or filings required under this section to be |
| 378 | submitted by electronic means in a computer-readable form |
| 379 | compatible with the electronic data format specified by the |
| 380 | commission. |
| 381 | (3) To ensure the faithful performance of its obligations |
| 382 | to its viators in the event of insolvency or the loss of its |
| 383 | license, a viatical settlement provider licensee must deposit |
| 384 | and maintain deposited in trust with the department securities |
| 385 | eligible for deposit under s. 625.52, having at all times a |
| 386 | value of not less than $100,000; however, a viatical settlement |
| 387 | provider licensed in this state prior to June 1, 2004, which has |
| 388 | deposited and maintains continuously deposited in trust with the |
| 389 | department securities in the amount of $25,000 and which posted |
| 390 | and maintains continuously posted a security bond acceptable to |
| 391 | the department in the amount of $75,000, has until June 1, 2005, |
| 392 | to comply with the requirements of this subsection. |
| 393 | Section 3. Subsections (1) and (2) of section 626.9914, |
| 394 | Florida Statutes, are amended to read: |
| 395 | 626.9914 Suspension, revocation, denial, or nonrenewal of |
| 396 | viatical settlement provider license; grounds; administrative |
| 397 | fine.-- |
| 398 | (1) The office shall suspend, revoke, deny, or refuse to |
| 399 | renew the license of any viatical settlement provider if the |
| 400 | office finds that the licensee: |
| 401 | (a) Has made a misrepresentation in the application for |
| 402 | the license; |
| 403 | (b) Has engaged in fraudulent or dishonest practices, or |
| 404 | otherwise has been shown to be untrustworthy or incompetent to |
| 405 | act as a viatical settlement provider; |
| 406 | (c) Demonstrates a pattern of unreasonable payments to |
| 407 | viators; |
| 408 | (d) Has been found guilty of, or has pleaded guilty or |
| 409 | nolo contendere to, any felony, or a misdemeanor involving fraud |
| 410 | or moral turpitude, regardless of whether a judgment of |
| 411 | conviction has been entered by the court; |
| 412 | (e) Has issued viatical settlement contracts that have not |
| 413 | been approved pursuant to this act; |
| 414 | (f) Has failed to honor contractual obligations related to |
| 415 | the business of viatical settlement contracts; |
| 416 | (g) Deals in bad faith with viators; |
| 417 | (h) Has violated any provision of the insurance code or of |
| 418 | this act; |
| 419 | (i) Employs any person who materially influences the |
| 420 | licensee's conduct and who fails to meet the requirements of |
| 421 | this act; |
| 422 | (j) No longer meets the requirements for initial |
| 423 | licensure; or |
| 424 | (k) Obtains or utilizes life expectancies from life |
| 425 | expectancy providers who are not registered with the office |
| 426 | pursuant to this act; or |
| 427 | (l) Has engaged in a fraudulent viatical settlement act. |
| 428 | (2) The office may, in lieu of or in addition to any |
| 429 | suspension or revocation, assess an administrative fine not to |
| 430 | exceed $10,000 $2,500 for each nonwillful violation or $25,000 |
| 431 | $10,000 for each willful violation by a viatical settlement |
| 432 | provider licensee. The office may also place a viatical |
| 433 | settlement provider licensee on probation for a period not to |
| 434 | exceed 2 years. |
| 435 | Section 4. Subsection (1) of section 626.99175, Florida |
| 436 | Statutes, is amended to read: |
| 437 | 626.99175 Life expectancy providers; registration |
| 438 | required; denial, suspension, revocation.-- |
| 439 | (1) After July 1, 2006, A person may not perform the |
| 440 | functions of a life expectancy provider without first having |
| 441 | registered as a life expectancy provider, except as provided in |
| 442 | subsection (6). |
| 443 | Section 5. Section 626.99185, Florida Statutes, is created |
| 444 | to read: |
| 445 | 626.99185 Disclosures to viator of disbursement.-- |
| 446 | (1) Prior to or concurrently with a viator's execution of |
| 447 | a viatical settlement contract, the viatical settlement provider |
| 448 | shall provide to the viator, in duplicate, a disclosure |
| 449 | statement in legible written form disclosing: |
| 450 | (a) The name of each viatical settlement broker who |
| 451 | receives or is to receive compensation and the amount of each |
| 452 | broker's compensation related to that transaction. For the |
| 453 | purpose of this subsection, compensation includes anything of |
| 454 | value paid or given by or at the direction of a viatical |
| 455 | settlement provider or person acquiring an interest in one or |
| 456 | more life insurance policies to a viatical settlement broker in |
| 457 | connection with the viatical settlement contract. |
| 458 | (b) A complete reconciliation of the gross offer or bid by |
| 459 | the viatical settlement provider to the net amount of proceeds |
| 460 | or value to be received by the viator related to that |
| 461 | transaction. The terms "gross offer" or "bid" means the total |
| 462 | amount or value offered by the viatical settlement provider for |
| 463 | the purchase of an interest in one or more life insurance |
| 464 | policies, inclusive of commissions, compensation, or other |
| 465 | proceeds or value being deducted from the gross offer or bid. |
| 466 | (2) The disclosure statement shall be signed and dated by |
| 467 | the viator prior to or concurrently with the viator's execution |
| 468 | of a viatical settlement contract with the duplicate copy of the |
| 469 | disclosure statement to be retained by the viator. |
| 470 | (3) If a viatical settlement contract has been entered |
| 471 | into and the contract is subsequently amended or if there is any |
| 472 | change in the viatical settlement provider's gross offer or bid |
| 473 | amount, change in the net amount of proceeds or value to be |
| 474 | received by the viator, or change in the information provided in |
| 475 | the disclosure statement to the viator, the viatical settlement |
| 476 | provider shall provide, in duplicate, an amended disclosure |
| 477 | statement to the viator containing the information in subsection |
| 478 | (1). The amended disclosure statement shall be signed and dated |
| 479 | by the viator with the duplicate copy of the amended disclosure |
| 480 | statement to be retained by the viator. The viatical settlement |
| 481 | provider shall obtain the signed and dated amended disclosure |
| 482 | statement. |
| 483 | (4) Prior to a viatical settlement provider's execution of |
| 484 | a viatical settlement contract, the viatical settlement provider |
| 485 | must have obtained the signed and dated disclosure statement and |
| 486 | any amended disclosure statement required by this section. In |
| 487 | transactions for which no broker is used, the viatical |
| 488 | settlement provider must have obtained the signed and dated |
| 489 | disclosure statement from the viator. |
| 490 | (5) The viatical settlement provider shall maintain the |
| 491 | documentation required by this section pursuant to the |
| 492 | provisions set forth in s. 626.9922(2) and shall make such |
| 493 | documentation available to the office at any time for copying |
| 494 | and inspection upon reasonable notice by the office to the |
| 495 | viatical settlement provider. |
| 496 | Section 6. Subsection (7) of section 626.9924, Florida |
| 497 | Statutes, is amended to read: |
| 498 | 626.9924 Viatical settlement contracts; procedures; |
| 499 | rescission.-- |
| 500 | (7) At any time during the contestable period, within 20 |
| 501 | days after a viator executes documents necessary to transfer |
| 502 | rights under an insurance policy or within 20 days of any |
| 503 | agreement, option, promise, or any other form of understanding, |
| 504 | express or implied, to viaticate the policy, the provider must |
| 505 | give notice to the insurer of the policy that the policy has or |
| 506 | will become a viaticated policy. The notice must be accompanied |
| 507 | by the documents required by s. 626.99287(5)(a) in their |
| 508 | entirety. |
| 509 | Section 7. Subsection (2) of section 626.99245, Florida |
| 510 | Statutes, is amended to read: |
| 511 | 626.99245 Conflict of regulation of viaticals.-- |
| 512 | (2) This section does not affect the requirement of ss. |
| 513 | 626.9911(15)(12) and 626.9912(1) that a viatical settlement |
| 514 | provider doing business from this state must obtain a viatical |
| 515 | settlement license from the office. As used in this subsection, |
| 516 | the term "doing business from this state" includes effectuating |
| 517 | viatical settlement contracts from offices in this state, |
| 518 | regardless of the state of residence of the viator. |
| 519 | Section 8. Section 626.99273, Florida Statutes, is created |
| 520 | to read: |
| 521 | 626.99273 Prohibited practices and conflicts of |
| 522 | interest.-- |
| 523 | (1) With respect to any viatical settlement contract or |
| 524 | insurance policy, a viatical settlement broker may not knowingly |
| 525 | solicit an offer from, effectuate a viatical settlement with, or |
| 526 | make a sale to any viatical settlement provider, financing |
| 527 | entity, or related provider trust that is controlling, |
| 528 | controlled by, or under common control with such viatical |
| 529 | settlement broker. |
| 530 | (2) With respect to any viatical settlement contract or |
| 531 | insurance policy, a viatical settlement provider may not |
| 532 | knowingly enter into a viatical settlement contract with a |
| 533 | viator if, in connection with such viatical settlement contract, |
| 534 | anything of value will be paid to a viatical settlement broker |
| 535 | that is controlling, controlled by, or under common control with |
| 536 | such viatical settlement provider, financing entity, or related |
| 537 | provider trust that is involved in such viatical settlement |
| 538 | contract. |
| 539 | (3) A violation of subsection (1) or subsection (2) is a |
| 540 | fraudulent viatical settlement act. |
| 541 | (4) A viatical settlement provider may not enter into a |
| 542 | viatical settlement contract unless the viatical settlement |
| 543 | promotional, advertising, and marketing materials, as may be |
| 544 | prescribed by rule, have been filed with the office. In no event |
| 545 | may any marketing materials expressly indicate that the |
| 546 | insurance is free for any period of time. The inclusion of any |
| 547 | reference in the marketing materials that would cause a viator |
| 548 | to reasonably believe that the insurance is free for any period |
| 549 | of time is a violation of this section. |
| 550 | (5) A life insurance producer, insurer, viatical |
| 551 | settlement broker, or viatical settlement provider may not make |
| 552 | any statement or representation to an applicant or policyholder |
| 553 | in connection with the sale of a life insurance policy to the |
| 554 | effect that the insurance is free or without cost to the |
| 555 | policyholder for any period of time. |
| 556 | Section 9. Section 626.99275, Florida Statutes, is amended |
| 557 | to read: |
| 558 | 626.99275 Prohibited practices; penalties.-- |
| 559 | (1) It is unlawful for any person to: |
| 560 | (a) To Knowingly enter into, broker, or otherwise deal in |
| 561 | a viatical settlement contract the subject of which is a life |
| 562 | insurance policy, knowing that the policy was obtained by |
| 563 | presenting materially false information concerning any fact |
| 564 | material to the policy or by concealing, for the purpose of |
| 565 | misleading another, information concerning any fact material to |
| 566 | the policy, where the viator or the viator's agent intended to |
| 567 | defraud the policy's issuer. |
| 568 | (b) To Knowingly or with the intent to defraud, for the |
| 569 | purpose of depriving another of property or for pecuniary gain, |
| 570 | issue or use a pattern of false, misleading, or deceptive life |
| 571 | expectancies. |
| 572 | (c) To Knowingly engage in any transaction, practice, or |
| 573 | course of business intending thereby to avoid the notice |
| 574 | requirements of s. 626.9924(7). |
| 575 | (d) To Knowingly or intentionally facilitate the change of |
| 576 | state of residency of a viator to avoid the provisions of this |
| 577 | chapter. |
| 578 | (e) Engage in a fraudulent viatical settlement act. |
| 579 | (2) A person who violates any provision of this section |
| 580 | commits: |
| 581 | (a) A felony of the third degree, punishable as provided |
| 582 | in s. 775.082, s. 775.083, or s. 775.084, if the insurance |
| 583 | policy involved is valued at any amount less than $20,000. |
| 584 | (b) A felony of the second degree, punishable as provided |
| 585 | in s. 775.082, s. 775.083, or s. 775.084, if the insurance |
| 586 | policy involved is valued at $20,000 or more, but less than |
| 587 | $100,000. |
| 588 | (c) A felony of the first degree, punishable as provided |
| 589 | in s. 775.082, s. 775.083, or s. 775.084, if the insurance |
| 590 | policy involved is valued at $100,000 or more. |
| 591 | (3) It is a violation of this section for any person to |
| 592 | enter into a viatical settlement contract at any time prior to |
| 593 | the application or issuance of a policy that is the subject of a |
| 594 | viatical settlement contract or within a 5-year period |
| 595 | commencing with the date of issuance of the insurance policy or |
| 596 | certificate, unless the viator provides a sworn affidavit and |
| 597 | accompanying documentation that certifies to the viatical |
| 598 | settlement provider that one or more of the following conditions |
| 599 | have been met within the 5-year period: |
| 600 | (a) The policy was issued upon the viator's exercise of |
| 601 | conversion rights arising out of a group or individual policy, |
| 602 | provided the total of the time covered under the conversion |
| 603 | policy plus the time covered under the prior policy is at least |
| 604 | 60 months. The time covered under a group policy shall be |
| 605 | calculated without regard to any change in insurance carriers, |
| 606 | provided the coverage has been continuous and under the same |
| 607 | group sponsorship; |
| 608 | (b) The viator submits independent evidence to the |
| 609 | viatical settlement provider that one or more of the following |
| 610 | conditions have been met within the 5-year period: |
| 611 | 1. The viator or insured is terminally or chronically ill; |
| 612 | 2. The viator's spouse dies; |
| 613 | 3. The viator divorces his or her spouse; |
| 614 | 4. The viator retires from full-time employment; |
| 615 | 5. The viator becomes physically or mentally disabled and |
| 616 | a physician determines that the disability prevents the viator |
| 617 | from maintaining full-time employment; or |
| 618 | 6. A final order, judgment, or decree is entered by a |
| 619 | court of competent jurisdiction, upon the application by a |
| 620 | viator's creditor, adjudicating the viator bankrupt or insolvent |
| 621 | or approving a petition seeking reorganization of the viator or |
| 622 | appointing a receiver, trustee, or liquidator to all or a |
| 623 | substantial part of the viator's assets; or |
| 624 | (c) The viator enters into a viatical settlement contract |
| 625 | more than 2 years after a policy's issuance date and, with |
| 626 | respect to the policy, at all times prior to such date the |
| 627 | following conditions are met: |
| 628 | 1. Policy premiums have been funded exclusively with |
| 629 | unencumbered assets, including an interest in the life insurance |
| 630 | policy being financed only to the extent of its net cash |
| 631 | surrender value provided by, or full recourse liability incurred |
| 632 | by, the insured. |
| 633 | 2. There is no agreement or understanding with any other |
| 634 | person to guarantee any such liability or to purchase, or be |
| 635 | ready to purchase, the policy, including through an assumption |
| 636 | or forgiveness of the loan. |
| 637 | 3. Neither the insured nor the policy has been evaluated |
| 638 | for settlement. |
| 639 | (4) It is a violation of this section for any person to |
| 640 | issue, solicit, market, or otherwise promote the purchase of a |
| 641 | policy for the purpose of or with an emphasis on selling the |
| 642 | policy. |
| 643 | Section 10. Section 626.99276, Florida Statutes, is |
| 644 | created to read: |
| 645 | 626.99276 Notification to insurer required.-- |
| 646 | (1) A copy of the sworn affidavit and the documentation |
| 647 | required in s. 626.99275(3) shall be submitted to the insurer |
| 648 | when the viatical settlement provider or other party entering |
| 649 | into a viatical settlement contract with a viator submits a |
| 650 | request to the insurer for verification of coverage. The copy |
| 651 | shall be accompanied by a sworn affidavit from the viatical |
| 652 | settlement provider affirming that the copy is a true and |
| 653 | correct copy of the documents received by the viatical |
| 654 | settlement provider. |
| 655 | (2) If the viatical settlement provider submits to the |
| 656 | insurer a copy of the owner's or insured's certification |
| 657 | described in and the independent evidence required by s. |
| 658 | 626.99275(3) when the provider submits a request to the insurer |
| 659 | to effect the transfer of the policy or certificate to the |
| 660 | viatical settlement provider, the copy conclusively establishes |
| 661 | that the viatical settlement contract satisfies the requirements |
| 662 | of this section and the insurer shall timely respond to the |
| 663 | request. |
| 664 | (3) An insurer may not require, as a condition of |
| 665 | responding to a request for verification of coverage or |
| 666 | effecting the transfer of a policy pursuant to a viatical |
| 667 | settlement contract, that the viator, insured, viatical |
| 668 | settlement provider, or viatical settlement broker sign any |
| 669 | forms, disclosures, consent, or waiver form that has not been |
| 670 | expressly approved by the office for use in connection with |
| 671 | viatical settlement contracts in this state. |
| 672 | (4) Upon receipt of a properly completed request for |
| 673 | change of ownership or beneficiary of a policy, the insurer |
| 674 | shall respond in writing within 30 calendar days with written |
| 675 | acknowledgement confirming that the change has been effectuated |
| 676 | or specifying the reasons why the requested change cannot be |
| 677 | processed. The insurer may not unreasonably delay effectuating |
| 678 | change of ownership or beneficiary and may not otherwise seek to |
| 679 | interfere with any viatical settlement contract lawfully entered |
| 680 | into in this state. |
| 681 | Section 11. Section 626.99278, Florida Statutes, is |
| 682 | amended to read: |
| 683 | 626.99278 Viatical provider anti-fraud plan.-- |
| 684 | (1) Every licensed viatical settlement provider and |
| 685 | registered life expectancy provider must adopt an anti-fraud |
| 686 | plan and file it with the Division of Insurance Fraud of the |
| 687 | department. Each anti-fraud plan shall include: |
| 688 | (a)(1) A description of the procedures for detecting and |
| 689 | investigating possible fraudulent acts and procedures for |
| 690 | resolving material inconsistencies between medical records and |
| 691 | insurance applications. |
| 692 | (b)(2) A description of the procedures for the mandatory |
| 693 | reporting of possible fraudulent insurance acts and prohibited |
| 694 | practices set forth in s. 626.99275 to the Division of Insurance |
| 695 | Fraud of the department. |
| 696 | (c)(3) A description of the plan for anti-fraud education |
| 697 | and training of its underwriters or other personnel. |
| 698 | (d)(4) A written description or chart outlining the |
| 699 | organizational arrangement of the anti-fraud personnel who are |
| 700 | responsible for the investigation and reporting of possible |
| 701 | fraudulent insurance acts and for the investigation of |
| 702 | unresolved material inconsistencies between medical records and |
| 703 | insurance applications. |
| 704 | (e)(5) For viatical settlement providers, a description of |
| 705 | the procedures used to perform initial and continuing review of |
| 706 | the accuracy of life expectancies used in connection with a |
| 707 | viatical settlement contract or viatical settlement investment. |
| 708 | (2) Every licensed viatical settlement provider shall |
| 709 | establish and maintain in accordance with the provisions of s. |
| 710 | 626.9922: |
| 711 | (a) Documentation of compliance with its anti-fraud plan |
| 712 | and procedures filed in accordance with this section. |
| 713 | (b) Documentation pertaining to resolved and unresolved |
| 714 | material inconsistencies between medical records and insurance |
| 715 | applications. |
| 716 | (c) Documentation pertaining to the mandatory reporting of |
| 717 | possible fraudulent acts and prohibited practices set forth in |
| 718 | s. 626.99275 to the Division of Insurance Fraud of the |
| 719 | department. |
| 720 | Section 12. Section 626.99289, Florida Statutes, is |
| 721 | created to read: |
| 722 | 626.99289 Void and unenforceable contracts, agreements, |
| 723 | arrangements, and transactions.--Any contract, agreement, |
| 724 | arrangement, or transaction, including, but not limited to, any |
| 725 | financing agreement or any other arrangement or understanding |
| 726 | entered into, whether written or verbal, for the furtherance or |
| 727 | aid of a stranger-originated life insurance act, practice, |
| 728 | arrangement, or agreement is void and unenforceable. |
| 729 | Section 13. Section 626.99287, Florida Statutes, is |
| 730 | repealed. |
| 731 | Section 14. This act shall take effect July 1, 2009. |