Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 1476
       
       
       
       
       
       
                                Barcode 443654                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/07/2012           .                                
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       The Committee on Banking and Insurance (Richter) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 627.4554, Florida Statutes, is amended
    6  to read:
    7         (Substantial rewording of section. See
    8         s. 627.4554, F.S., for present text.)
    9         627.4554 Annuity investments.—
   10         (1) PURPOSE.—The purpose of this section is to require
   11  insurers to set forth standards and procedures for making
   12  recommendations to consumers which result in transactions
   13  involving annuity products, and to establish a system for
   14  supervising such recommendations in order to ensure that the
   15  insurance needs and financial objectives of consumers are
   16  appropriately addressed at the time of the transaction.
   17         (2) SCOPE.—This section applies to any recommendation made
   18  to a consumer to purchase, exchange, or replace an annuity by an
   19  insurer or its agent, and which results in the purchase,
   20  exchange, or replacement recommended.
   21         (3) DEFINITIONS.—As used in this section, the term:
   22         (a) “Agent” has the same meaning as provided in s. 626.015.
   23         (b) “Annuity” means an insurance product under state law
   24  which is individually solicited, whether classified as an
   25  individual or group annuity.
   26         (c) “FINRA” means the Financial Industry Regulatory
   27  Authority or a succeeding agency.
   28         (d) “Insurer” has the same meaning as provided in s.
   29  624.03.
   30         (e) “Recommendation” means advice provided by an insurer or
   31  its agent to a consumer which results in the purchase, exchange
   32  or replacement of an annuity in accordance with that advice.
   33         (f) “Replacement” means a transaction in which a new policy
   34  or contract is to be purchased and it is known or should be
   35  known to the proposing insurer or its agent that by reason of
   36  such transaction an existing policy or contract will be:
   37         1. Lapsed, forfeited, surrendered or partially surrendered,
   38  assigned to the replacing insurer, or otherwise terminated;
   39         2. Converted to reduced paid-up insurance, continued as
   40  extended term insurance, or otherwise reduced in value due to
   41  the use of nonforfeiture benefits or other policy values;
   42         3. Amended so as to effect a reduction in benefits or the
   43  term for which coverage would otherwise remain in force or for
   44  which benefits would be paid;
   45         4. Reissued with a reduction in cash value; or
   46         5. Used in a financed purchase.
   47         (g) “Suitability information” means information related to
   48  the consumer that is reasonably appropriate to determine the
   49  suitability of a recommendation made to the consumer, including
   50  the following:
   51         1. Age;
   52         2. Annual income;
   53         3. Financial situation and needs, including the financial
   54  resources used for funding the annuity;
   55         4. Financial experience;
   56         5. Financial objectives;
   57         6. Intended use of the annuity;
   58         7. Financial time horizon;
   59         8. Existing assets, including investment and life insurance
   60  holdings;
   61         9. Liquidity needs;
   62         10. Liquid net worth;
   63         11. Risk tolerance; and
   64         12. Tax status.
   65         (4) EXEMPTIONS.—This section does not apply to transactions
   66  involving:
   67         (a) Direct-response solicitations where there is no
   68  recommendation based on information collected from the consumer
   69  pursuant to this section;
   70         (b) Contracts used to fund:
   71         1. An employee pension or welfare benefit plan that is
   72  covered by the federal Employee Retirement and Income Security
   73  Act;
   74         2. A plan described by s. 401(a), s. 401(k), s. 403(b), s.
   75  408(k), or s. 408(p) of the Internal Revenue Code, if
   76  established or maintained by an employer;
   77         3. A government or church plan defined in s. 414 of the
   78  Internal Revenue Code, a government or church welfare benefit
   79  plan, or a deferred compensation plan of a state or local
   80  government or tax-exempt organization under s. 457 of the
   81  Internal Revenue Code;
   82         4. A nonqualified deferred compensation arrangement
   83  established or maintained by an employer or plan sponsor;
   84         5. Settlements or assumptions of liabilities associated
   85  with personal injury litigation or any dispute or claim
   86  resolution process; or
   87         6. Formal prepaid funeral contracts.
   88         (5) DUTIES OF INSURERS AND AGENTS.—
   89         (a) When recommending the purchase or exchange of an
   90  annuity to a consumer which results in an insurance transaction
   91  or series of insurance transactions, the agent, or the insurer
   92  where no agent is involved, must have reasonable grounds for
   93  believing that the recommendation is suitable for the consumer,
   94  based on the consumer’s suitability information, and that there
   95  is a reasonable basis to believe all of the following:
   96         1. The consumer has been reasonably informed of various
   97  features of the annuity, such as the potential surrender period
   98  and surrender charge; potential tax penalty if the consumer
   99  sells, exchanges, surrenders, or annuitizes the annuity;
  100  mortality and expense fees; investment advisory fees; potential
  101  charges for and features of riders; limitations on interest
  102  returns; insurance and investment components; and market risk.
  103         2. The consumer would benefit from certain features of the
  104  annuity, such as tax-deferred growth, annuitization, or the
  105  death or living benefit.
  106         3. The particular annuity as a whole, the underlying
  107  subaccounts to which funds are allocated at the time of purchase
  108  or exchange of the annuity, and riders and similar product
  109  enhancements, if any, are suitable; and, in the case of an
  110  exchange or replacement, the transaction as a whole is suitable
  111  for the particular consumer based on his or her suitability
  112  information.
  113         4. In the case of an exchange or replacement of an annuity,
  114  the exchange or replacement is suitable after considering
  115  whether the consumer:
  116         a. Will incur a surrender charge; be subject to the
  117  commencement of a new surrender period; lose existing benefits,
  118  such as death, living, or other contractual benefits; or be
  119  subject to increased fees, investment advisory fees, or charges
  120  for riders and similar product enhancements;
  121         b. Would benefit from product enhancements and
  122  improvements; and
  123         c. Has had another annuity exchange or replacement, in
  124  particular, an exchange or replacement within the preceding 36
  125  months.
  126         (b) Before executing a purchase, exchange, or replacement
  127  of an annuity resulting from a recommendation, an insurer or its
  128  agent must make reasonable efforts to obtain the consumer’s
  129  suitability information. The information shall be collected on
  130  form DFS-H1-1980, which is hereby incorporated by reference, and
  131  completed and signed by the applicant and agent. Questions
  132  requesting this information must be presented in at least 12
  133  point type and be sufficiently clear so as to be readily
  134  understandable by both the agent and the consumer. A true and
  135  correct executed copy of the form must be provided by the agent
  136  to the insurer, or to the person or entity that has contracted
  137  with the insurer to perform this function as authorized by this
  138  section, within 10 days after execution of the form, and must be
  139  provided to the consumer by the date of delivery of the contract
  140  or contracts.
  141         (c) Except as provided under paragraph (d), an insurer may
  142  not issue an annuity recommended to a consumer unless there is a
  143  reasonable basis to believe the annuity is suitable based on the
  144  consumer’s suitability information.
  145         (d) An insurer’s issuance of an annuity must be reasonable
  146  based on all the circumstances actually known to the insurer at
  147  the time the annuity is issued. However, an insurer or its agent
  148  does not have an obligation to a consumer related to an annuity
  149  transaction under paragraph (a) or paragraph (c) if:
  150         1. A recommendation has not been made;
  151         2. A recommendation was made and is later found to have
  152  been based on materially inaccurate information provided by the
  153  consumer;
  154         3. A consumer refuses to provide relevant suitability
  155  information and the annuity transaction is not recommended; or
  156         4. A consumer decides to enter into an annuity transaction
  157  that is not based on a recommendation of an insurer or its
  158  agent.
  159         (e) At the time of sale, the agent or the agent’s
  160  representative must:
  161         1. Make a record of any recommendation made to the consumer
  162  pursuant to paragraph (a);
  163         2. Obtain the consumer’s signed statement documenting his
  164  or her refusal to provide suitability information, if
  165  applicable; and
  166         3. Obtain the consumer’s signed statement acknowledging
  167  that an annuity transaction is not recommended if he or she
  168  decides to enter into an annuity transaction that is not based
  169  on the insurer’s or its agent’s recommendation, if applicable.
  170         (f) Before executing a replacement or exchange of an
  171  annuity contract resulting from a recommendation, the agent must
  172  provide on form DFS-H1-1981, which is incorporated by reference,
  173  information that compares the differences between the existing
  174  annuity contract and the annuity contract being recommended in
  175  order to determine the suitability of the recommendation and its
  176  benefit to the consumer. A true and correct executed copy of
  177  this form must be provided by the agent to the insurer, or to
  178  the person or entity that has contracted with the insurer to
  179  perform this function as authorized by this section, within 10
  180  days after execution of the form, and must be provided to the
  181  consumer by the date of delivery of the contract or contracts.
  182         (g) An insurer shall establish a supervision system that is
  183  reasonably designed to achieve the insurer’s and its agent’s
  184  compliance with this section.
  185         1. Such system must include, but is not limited to:
  186         a. Maintaining reasonable procedures to inform its agents
  187  of the requirements of this section and incorporating those
  188  requirements into relevant agent training manuals;
  189         b. Establishing standards for agent product training;
  190         c. Providing product-specific training and training
  191  materials that explain all material features of its annuity
  192  products to its agents;
  193         d. Maintaining procedures for the review of each
  194  recommendation before issuance of an annuity which are designed
  195  to ensure that there is a reasonable basis for determining that
  196  a recommendation is suitable. Such review procedures may use a
  197  screening system for identifying selected transactions for
  198  additional review and may be accomplished electronically or
  199  through other means, including, but not limited to, physical
  200  review. Such electronic or other system may be designed to
  201  require additional review only of those transactions identified
  202  for additional review using established selection criteria;
  203         e. Maintaining reasonable procedures to detect
  204  recommendations that are not suitable. These may include, but
  205  are not limited to, confirmation of consumer suitability
  206  information, systematic customer surveys, consumer interviews,
  207  confirmation letters, and internal monitoring programs. This
  208  sub-subparagraph does not prevent an insurer from using sampling
  209  procedures or from confirming suitability information after the
  210  issuance or delivery of the annuity; and
  211         f. Annually providing a report to senior managers,
  212  including the senior manager who is responsible for audit
  213  functions, which details a review, along with appropriate
  214  testing, which is reasonably designed to determine the
  215  effectiveness of the supervision system, the exceptions found,
  216  and corrective action taken or recommended, if any.
  217         2. An insurer is not required to include in its supervision
  218  system agent recommendations to consumers of products other than
  219  the annuities offered by the insurer.
  220         3. An insurer may contract for performance of a function
  221  required under subparagraph 1.
  222         a. If an insurer contracts for the performance of a
  223  function, the insurer must include the supervision of
  224  contractual performance as part of those procedures listed in
  225  subparagraph 1. These include, but are not limited to:
  226         (I) Monitoring and, as appropriate, conducting audits to
  227  ensure that the contracted function is properly performed; and
  228         (II) Annually obtaining a certification from a senior
  229  manager who has responsibility for the contracted function that
  230  the manager has a reasonable basis for representing that the
  231  function is being properly performed.
  232         b. An insurer is responsible for taking appropriate
  233  corrective action and may be subject to sanctions and penalties
  234  pursuant to subsection (8) regardless of whether the insurer
  235  contracts for performance of a function and regardless of the
  236  insurer’s compliance with sub-subparagraph a.
  237         (h) An agent may not dissuade, or attempt to dissuade, a
  238  consumer from:
  239         1. Truthfully responding to an insurer’s request for
  240  confirmation of suitability information;
  241         2. Filing a complaint; or
  242         3. Cooperating with the investigation of a complaint.
  243         (i) Sales made in compliance with FINRA requirements
  244  pertaining to the suitability and supervision of annuity
  245  transactions must satisfy the requirements of this section. This
  246  paragraph applies to FINRA broker-dealer sales of variable
  247  annuities and fixed annuities if the suitability and supervision
  248  is similar to those applied to variable annuity sales. However,
  249  this paragraph does not limit the ability of the office or the
  250  department to enforce, including investigate, the provisions of
  251  this section. For this paragraph to apply, an insurer must:
  252         1. Monitor the FINRA member broker-dealer using information
  253  collected in the normal course of an insurer’s business; and
  254         2. Provide to the FINRA member broker-dealer information
  255  and reports that are reasonably appropriate to assist the FINRA
  256  member broker-dealer in maintaining its supervision system.
  257         (6) RECORDKEEPING.—
  258         (a) Insurers and agents must maintain or be able to make
  259  available to the office or department records of the information
  260  collected from the consumer and other information used in making
  261  the recommendations that were the basis for insurance
  262  transactions for 5 years after the insurance transaction is
  263  completed by the insurer. An insurer may maintain the
  264  documentation on behalf of its agent.
  265         (b) Records required to be maintained under this subsection
  266  may be maintained in paper, photographic, microprocess,
  267  magnetic, mechanical, or electronic media, or by any process
  268  that accurately reproduces the actual document.
  269         (7) COMPLIANCE MITIGATION; PENALTIES.—
  270         (a) An insurer is responsible for compliance with this
  271  section. If a violation occurs because of the action or inaction
  272  of the insurer or its agent, the office may order an insurer to
  273  take reasonably appropriate corrective action for a consumer
  274  harmed by the insurer’s or by its agent’s violation of this
  275  section and may impose appropriate penalties and sanctions.
  276         (b) The department may order:
  277         1. An insurance agent to take reasonably appropriate
  278  corrective action, including monetary restitution of penalties
  279  or fees incurred by the consumer for any consumer harmed by a
  280  violation of this section by the insurance agent and impose
  281  appropriate penalties and sanctions.
  282         2. A managing general agency or insurance agency that
  283  employs or contracts with an insurance agent to sell or solicit
  284  the sale of annuities to consumers must take reasonably
  285  appropriate corrective action for a consumer harmed by a
  286  violation of this section by the insurance agent.
  287         (c) In addition to any other penalty authorized under
  288  chapter 626, the department shall order an insurance agent to
  289  pay restitution to a consumer who has been deprived of money by
  290  the agent’s misappropriation, conversion, or unlawful
  291  withholding of moneys belonging to the senior consumer in the
  292  course of a transaction involving annuities. The amount of
  293  restitution may not exceed the amount misappropriated,
  294  converted, or unlawfully withheld. This paragraph does not limit
  295  or restrict a person’s right to seek other remedies as provided
  296  by law.
  297         (d) Any applicable penalty under the Florida Insurance Code
  298  for a violation of this section shall be reduced or eliminated
  299  according to a schedule adopted by the office or the department,
  300  as appropriate, if corrective action for the consumer was taken
  301  promptly after a violation was discovered.
  302         (e) A violation of this section does not create or imply a
  303  private cause of action.
  304         (8) PROHIBITED CHARGES.—An annuity contract issued to a
  305  senior consumer age 65 or older may not contain a surrender or
  306  deferred sales charge for a withdrawal of money from an annuity
  307  exceeding 10 percent of the amount withdrawn. The charge shall
  308  be reduced so that no surrender or deferred sales charge exists
  309  after the end of the 10th policy year or 10 years after the date
  310  of each premium payment if multiple premiums are paid, whichever
  311  is later. This subsection does not apply to annuities purchased
  312  by an accredited investor, as defined in Regulation D as adopted
  313  by the United States Securities and Exchange Commission, or to
  314  those annuities specified in paragraph (4)(b).
  315         (9) RULES.—The department may adopt rules to administer
  316  this section.
  317         Section 2. Subsection (4) of section 626.99, Florida
  318  Statutes, is amended to read:
  319         626.99 Life insurance solicitation.—
  320         (4) DISCLOSURE REQUIREMENTS.—
  321         (a) The insurer shall provide to each prospective purchaser
  322  a buyer’s guide and a policy summary prior to accepting the
  323  applicant’s initial premium or premium deposit, unless the
  324  policy for which application is made provides an unconditional
  325  refund for a period of at least 14 days, or unless the policy
  326  summary contains an offer of such an unconditional refund. In
  327  these instances, the buyer’s guide and policy summary must be
  328  delivered with the policy or before prior to delivery of the
  329  policy.
  330         (b) With respect to fixed and variable annuities, the
  331  policy must provide an unconditional refund for a period of at
  332  least 21 14 days. For fixed annuities, the buyer’s guide must
  333  shall be in the form as provided by the National Association of
  334  Insurance Commissioners (NAIC) Annuity Disclosure Model
  335  Regulation, until such time as a buyer’s guide is developed by
  336  the department, at which time the department guide must be used.
  337  For variable annuities, a policy summary may be used, which may
  338  be contained in a prospectus, until such time as a buyer’s guide
  339  is developed by NAIC or the department, at which time one of
  340  those guides must be used. Unconditional refund means If the
  341  prospective owner of an annuity contract is 65 years of age or
  342  older:
  343         1. An unconditional refund of premiums paid for a fixed
  344  annuity contract, including any contract fees or charges, must
  345  be available for a period of 21 days; and
  346         2. An unconditional refund for variable or market value
  347  annuity contracts must be available for a period of 21 days. The
  348  unconditional refund shall be equal to the cash surrender value
  349  provided in the annuity contract, plus any fees or charges
  350  deducted from the premiums or imposed under the contract, or a
  351  refund of all premiums paid. This subparagraph does not apply if
  352  the prospective owner is an accredited investor, as defined in
  353  Regulation D as adopted by the United States Securities and
  354  Exchange Commission.
  355         (c) The insurer shall attach a cover page to any annuity
  356  contract policy informing the purchaser of the unconditional
  357  refund period prescribed in paragraph (b). The cover page must
  358  also provide contact information for the issuing company and the
  359  selling agent, and the department’s toll-free help line, and any
  360  other information required by the department by rule. The cover
  361  page must also contain the following disclosures in bold print
  362  and at least 12-point type, if applicable:
  363         1. “PLEASE BE AWARE THAT THE PURCHASE OF AN ANNUITY
  364  CONTRACT IS A LONG-TERM COMMITMENT AND MAY RESTRICT ACCESS TO
  365  YOUR FUNDS.”
  366         2. “IT IS IMPORTANT THAT YOU UNDERSTAND HOW THE BONUS
  367  FEATURE OF YOUR CONTRACT WORKS. PLEASE REFER TO YOUR POLICY FOR
  368  FURTHER DETAILS.”
  369         3. “INTEREST RATES MAY HAVE CERTAIN LIMITATIONS. PLEASE
  370  REFER TO YOUR POLICY FOR FURTHER DETAILS.”
  371         4. “A [PROSPECTUS AND POLICY SUMMARY] [BUYERS GUIDE] IS
  372  REQUIRED TO BE GIVEN TO YOU.”
  373  
  374         The cover page is part of the policy and is subject to
  375  review by the office pursuant to s. 627.410.
  376         (c)(d) The insurer shall provide a buyer’s guide and a
  377  policy summary to a any prospective purchaser upon request.
  378         Section 3. This act shall take effect October 1, 2012.
  379  
  380  ================= T I T L E  A M E N D M E N T ================
  381         And the title is amended as follows:
  382         Delete everything before the enacting clause
  383  and insert:
  384                        A bill to be entitled                      
  385         An act relating to annuities; amending s. 627.4554,
  386         F.S.; providing that recommendations relating to
  387         annuities made by an insurer or its agents apply to
  388         all consumers not just to senior consumers; revising
  389         and providing definitions; revising the duties of
  390         insurers and agents; providing that recommendations
  391         must be based on consumer suitability information;
  392         revising the information relating to annuities that
  393         must be provided by the insurer or its agent to the
  394         consumer; revising the requirements for monitoring
  395         contractors that are providing certain functions for
  396         the insurer relating to the insurer’s system for
  397         supervising recommendations; revising provisions
  398         relating to the relationship between this act and the
  399         federal Financial Industry Regulatory Authority;
  400         deleting a provision providing a cap on surrender or
  401         deferred sales charges; prohibiting specified charges
  402         for annuities issued to persons 65 years of age or
  403         older; amending s. 626.99, F.S.; increasing the period
  404         of time that an unconditional refund must remain
  405         available with respect to certain annuity contracts;
  406         making such unconditional refunds available to all
  407         prospective annuity contract buyers without regard to
  408         the buyer’s age; revising requirements for cover pages
  409         of annuity contracts; providing an effective date.