Florida Senate - 2012                                    SB 1476
       
       
       
       By Senator Richter
       
       
       
       
       37-01086-12                                           20121476__
    1                        A bill to be entitled                      
    2         An act relating to annuities; amending s. 627.4554,
    3         F.S.; providing that recommendations relating to
    4         annuities made by an insurer or its agents apply to
    5         all consumers not just to senior consumers; revising
    6         and providing definitions; revising the duties of
    7         insurers and agents; providing that recommendations
    8         must be based on consumer suitability information;
    9         deleting requirements relating to information that
   10         must be collected on certain forms adopted by rule of
   11         the Department of Financial Services; revising the
   12         information relating to annuities that must be
   13         provided by the insurer or its agent to the consumer;
   14         revising the requirements for monitoring contractors
   15         that are providing certain functions for the insurer
   16         relating to the insurer’s system for supervising
   17         recommendations; revising provisions relating to the
   18         relationship between this act and the federal
   19         Financial Industry Regulatory Authority; providing
   20         training requirements for agents selling annuities;
   21         deleting a provision providing a cap on surrender or
   22         deferred sales charges; amending s. 626.99, F.S.;
   23         deleting certain annuity policy requirements
   24         applicable to persons 65 years of age or older;
   25         providing an effective date.
   26  
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Section 627.4554, Florida Statutes, is amended
   30  to read:
   31         (Substantial rewording of section. See
   32         s. 627.4554, F.S., for present text.)
   33         627.4554 Annuity investments.—
   34         (1) PURPOSE.—The purposes of this section are to require
   35  insurers to set forth standards and procedures for making
   36  recommendations to consumers which result in transactions
   37  involving annuity products and to establish a system for
   38  supervising such recommendations in order to ensure that the
   39  insurance needs and financial objectives of consumers are
   40  appropriately addressed at the time of the transaction.
   41         (2) SCOPE.—This section applies to any recommendation made
   42  to a consumer to purchase, exchange, or replace an annuity by an
   43  insurer or its agent, and which results in the purchase,
   44  exchange, or replacement recommended.
   45         (3) DEFINITIONS.—As used in this section, the term:
   46         (a) “Agent” has the same meaning as provided in s. 626.015.
   47         (b) “Annuity” means an insurance product under state law
   48  which is individually solicited, whether classified as an
   49  individual or group annuity.
   50         (c) “FINRA” means the Financial Industry Regulatory
   51  Authority or a succeeding agency.
   52         (d) “Insurer” has the same meaning as provided in s.
   53  624.03.
   54         (e) “Recommendation” means advice provided by an insurer or
   55  its agent to a consumer which results in the purchase, exchange,
   56  or replacement of an annuity in accordance with that advice.
   57         (f) “Replacement” means a transaction in which a new policy
   58  or contract is to be purchased and it is known or should be
   59  known to the proposing insurer or its agent that by reason of
   60  such transaction an existing policy or contract will be:
   61         1. Lapsed, forfeited, surrendered or partially surrendered,
   62  assigned to the replacing insurer, or otherwise terminated;
   63         2. Converted to reduced paid-up insurance, continued as
   64  extended term insurance, or otherwise reduced in value due to
   65  the use of nonforfeiture benefits or other policy values;
   66         3. Amended so as to effect a reduction in benefits or the
   67  term for which coverage would otherwise remain in force or for
   68  which benefits would be paid;
   69         4. Reissued with a reduction in cash value; or
   70         5. Used in a financed purchase.
   71         (g) “Suitability information” means information related to
   72  the consumer that is reasonably appropriate to determine the
   73  suitability of a recommendation made to the consumer, including
   74  the following:
   75         1. Age;
   76         2. Annual income;
   77         3. Financial situation and needs, including the financial
   78  resources used for funding the annuity;
   79         4. Financial experience;
   80         5. Financial objectives;
   81         6. Intended use of the annuity;
   82         7. Financial time horizon;
   83         8. Existing assets, including investment and life insurance
   84  holdings;
   85         9. Liquidity needs;
   86         10. Liquid net worth;
   87         11. Risk tolerance; and
   88         12. Tax status.
   89         (4) EXEMPTIONS.—This section does not apply to transactions
   90  involving:
   91         (a) Direct-response solicitations if the recommendation is
   92  not based on suitability information collected from the consumer
   93  pursuant to this section;
   94         (b) Contracts used to fund:
   95         1. An employee pension or welfare benefit plan that is
   96  covered by the federal Employee Retirement and Income Security
   97  Act;
   98         2. A plan described by s. 401(a), s. 401(k), s. 403(b), s.
   99  408(k), or s. 408(p) of the Internal Revenue Code, if
  100  established or maintained by an employer;
  101         3. A government or church plan defined in s. 414 of the
  102  Internal Revenue Code, a government or church welfare benefit
  103  plan, or a deferred compensation plan of a state or local
  104  government or tax-exempt organization under s. 457 of the
  105  Internal Revenue Code;
  106         4. A nonqualified deferred compensation arrangement
  107  established or maintained by an employer or plan sponsor;
  108         5. Settlements or assumptions of liabilities associated
  109  with personal injury litigation or any dispute or claim
  110  resolution process; or
  111         6. Formal prepaid funeral contracts.
  112         (5) DUTIES OF INSURERS AND AGENTS.—
  113         (a) When recommending the purchase or exchange of an
  114  annuity to a consumer which results in an insurance transaction
  115  or series of insurance transactions, the insurer or its agent
  116  must have reasonable grounds for believing that the
  117  recommendation is suitable for the consumer, based on the
  118  consumer’s suitability information, and that there is a
  119  reasonable basis to believe all of the following:
  120         1. The consumer has been reasonably informed of various
  121  features of the annuity, such as the potential surrender period
  122  and surrender charge; potential tax penalty if the consumer
  123  sells, exchanges, surrenders, or annuitizes the annuity;
  124  mortality and expense fees; investment advisory fees; potential
  125  charges for and features of riders; limitations on interest
  126  returns; insurance and investment components; and market risk.
  127         2. The consumer would benefit from certain features of the
  128  annuity, such as tax-deferred growth, annuitization, or the
  129  death or living benefit.
  130         3. The particular annuity as a whole, the underlying
  131  subaccounts to which funds are allocated at the time of purchase
  132  or exchange of the annuity, and riders and similar product
  133  enhancements, if any, are suitable; and, in the case of an
  134  exchange or replacement, the transaction as a whole is suitable
  135  for the particular consumer based on his or her suitability
  136  information.
  137         4. In the case of an exchange or replacement of an annuity,
  138  the exchange or replacement is suitable after taking into
  139  consideration whether the consumer:
  140         a. Will incur a surrender charge; be subject to the
  141  commencement of a new surrender period; lose existing benefits,
  142  such as death, living, or other contractual benefits; or be
  143  subject to increased fees, investment advisory fees, or charges
  144  for riders and similar product enhancements;
  145         b. Would benefit from product enhancements and
  146  improvements; and
  147         c. Has had another annuity exchange or replacement, in
  148  particular, an exchange or replacement within the preceding 36
  149  months.
  150         (b) Before executing a purchase, exchange, or replacement
  151  of an annuity resulting from a recommendation, an insurer or its
  152  agent must make reasonable efforts to obtain the consumer’s
  153  suitability information.
  154         (c) Except as provided under paragraph (d), an insurer may
  155  not issue an annuity recommended to a consumer unless there is a
  156  reasonable basis to believe the annuity is suitable based on the
  157  consumer’s suitability information.
  158         (d)An insurer’s issuance of an annuity must be reasonable
  159  based on all the circumstances actually known to the insurer at
  160  the time the annuity is issued. However, an insurer or its agent
  161  does not have an obligation to a consumer related to an annuity
  162  transaction under paragraph (a) or paragraph (c) if:
  163         1. A recommendation has not been made;
  164         2. A recommendation was made and is later found to have
  165  been based on materially inaccurate information provided by the
  166  consumer;
  167         3. A consumer refuses to provide relevant suitability
  168  information and the annuity transaction is not recommended; or
  169         4. A consumer decides to enter into an annuity transaction
  170  that is not based on a recommendation of an insurer or its
  171  agent.
  172         (e) At the time of sale, the agent or the agent’s
  173  representative must:
  174         1. Make a record of any recommendation made to the consumer
  175  pursuant to paragraph (a);
  176         2. Obtain the consumer’s signed statement documenting his
  177  or her refusal to provide suitability information, if
  178  applicable; and
  179         3. Obtain the consumer’s signed statement acknowledging
  180  that an annuity transaction is not recommended if he or she
  181  decides to enter into an annuity transaction that is not based
  182  on the insurer’s or its agent’s recommendation, if applicable.
  183         (f)An insurer shall establish a supervision system that is
  184  reasonably designed to achieve the insurer’s and its agent’s
  185  compliance with this section.
  186         1. Such system must include, but is not limited to:
  187         a. Maintaining reasonable procedures to inform its agents
  188  of the requirements of this section and incorporating those
  189  requirements into relevant agent training manuals;
  190         b. Establishing standards for agent product training and
  191  maintaining reasonable procedures that require its agents to
  192  comply with subsection (7);
  193         c. Providing product-specific training and training
  194  materials that explain all material features of its annuity
  195  products to its agents;
  196         d. Maintaining procedures for the review of each
  197  recommendation before issuance of an annuity which are designed
  198  to ensure that there is a reasonable basis for determining that
  199  a recommendation is suitable. Such review procedures may use a
  200  screening system for identifying selected transactions for
  201  additional review and may be accomplished electronically or
  202  through other means, including, but not limited to, physical
  203  review. Such electronic or other system may be designed to
  204  require additional review only of those transactions identified
  205  for additional review using established selection criteria;
  206         e. Maintaining reasonable procedures to detect
  207  recommendations that are not suitable. These may include, but
  208  are not limited to, confirmation of consumer suitability
  209  information, systematic customer surveys, consumer interviews,
  210  confirmation letters, and internal monitoring programs. This
  211  sub-subparagraph does not prevent an insurer from using sampling
  212  procedures or from confirming suitability information after the
  213  issuance or delivery of the annuity; and
  214         f. Annually providing a report to senior managers,
  215  including the senior manager who is responsible for audit
  216  functions, which details a review, along with appropriate
  217  testing, which is reasonably designed to determine the
  218  effectiveness of the supervision system, the exceptions found,
  219  and corrective action taken or recommended, if any.
  220         2. An insurer is not required to include in its supervision
  221  system agent recommendations to consumers of products other than
  222  the annuities offered by the insurer.
  223         3.An insurer may contract for performance of a function
  224  required under subparagraph 1.
  225         a.If an insurer contracts for the performance of a
  226  function, the insurer must include the supervision of
  227  contractual performance as part of those procedures listed in
  228  subparagraph 1. These include, but are not limited to:
  229         (I)Monitoring and, as appropriate, conducting audits to
  230  ensure that the contracted function is properly performed; and
  231         (II)Annually obtaining a certification from a senior
  232  manager who has responsibility for the contracted function that
  233  the manager has a reasonable basis for representing that the
  234  function is being properly performed.
  235         b. An insurer is responsible for taking appropriate
  236  corrective action and may be subject to sanctions and penalties
  237  pursuant to subsection (8) regardless of whether the insurer
  238  contracts for performance of a function and regardless of the
  239  insurer’s compliance with sub-subparagraph a.
  240         (g)An agent may not dissuade, or attempt to dissuade, a
  241  consumer from:
  242         1. Truthfully responding to an insurer’s request for
  243  confirmation of suitability information;
  244         2. Filing a complaint; or
  245         3. Cooperating with the investigation of a complaint.
  246         (h) Sales made in compliance with FINRA requirements
  247  pertaining to the suitability and supervision of annuity
  248  transactions must satisfy the requirements of this section. This
  249  paragraph applies to FINRA broker-dealer sales of variable
  250  annuities and fixed annuities if the suitability and supervision
  251  is similar to those applied to variable annuity sales. However,
  252  this paragraph does not limit the ability of the office or the
  253  department to enforce, including investigate, the provisions of
  254  this section. For this paragraph to apply, an insurer must:
  255         1. Monitor the FINRA member broker-dealer using information
  256  collected in the normal course of an insurer’s business; and
  257         2. Provide to the FINRA member broker-dealer information
  258  and reports that are reasonably appropriate to assist the FINRA
  259  member broker-dealer in maintaining its supervision system.
  260         (6) RECORDKEEPING.—
  261         (a) Insurers and agents must maintain or be able to make
  262  available to the office or department records of the information
  263  collected from the consumer and other information used in making
  264  the recommendations that were the basis for insurance
  265  transactions for 5 years after the insurance transaction is
  266  completed by the insurer. An insurer may maintain the
  267  documentation on behalf of its agent.
  268         (b) Records required to be maintained under this subsection
  269  may be maintained in paper, photographic, microprocess,
  270  magnetic, mechanical, or electronic media, or by any process
  271  that accurately reproduces the actual document.
  272         (7) AGENT TRAINING.—
  273         (a) An agent may not solicit the sale of an annuity product
  274  unless the agent has sufficient knowledge of the product to
  275  recommend the annuity and the agent is in compliance with the
  276  insurer’s standards for product training. An agent may rely on
  277  insurer-provided, product-specific training standards and
  278  materials in order to comply with this paragraph.
  279         (b) An agent who engages in the sale of annuity products
  280  must complete a one-time annuity training course approved by the
  281  department.
  282         1.The minimum length of the training course must be
  283  sufficient to qualify for at least 4 hours of continuing
  284  education under s. 626.2815, but may be longer.
  285         2.The training must include information on the following
  286  topics:
  287         a. The types of annuities and various classifications of
  288  annuities.
  289         b. Identification of the parties to an annuity.
  290         c. How fixed, variable, and indexed annuity contract
  291  provisions affect consumers.
  292         d. Income taxation of qualified and nonqualified annuities.
  293         e. The primary uses of annuities.
  294         f. Appropriate sales practices, replacement, and disclosure
  295  requirements.
  296         3.The training course may be conducted and completed by
  297  classroom or a self-study program in accordance with s.
  298  626.2815.
  299         (c)A provider of an annuity training course must comply
  300  with s. 626.2816 and the rules applicable to continuing
  301  education courses adopted under that section.
  302         1.Providers must cover all topics listed in subparagraph
  303  (b)2. and may not present any marketing information or provide
  304  training on sales techniques or provide specific information
  305  about a particular insurer’s products. Additional topics may be
  306  offered in conjunction with the required topics.
  307         2.Providers must comply with the reporting requirements
  308  and issue certificates of completion in accordance with s.
  309  626.2815.
  310         (d)An insurer shall verify that its agent has completed
  311  the annuity training course required under this subsection
  312  before allowing the agent to sell an annuity product for that
  313  insurer. An insurer may satisfy this requirement by obtaining
  314  certificates of completion of the training course or obtaining
  315  reports provided by office-sponsored database systems or vendors
  316  or from a reasonably reliable commercial database vendor that
  317  has a reporting arrangement with approved insurance education
  318  providers.
  319         (e) Agents that hold a life insurance line of authority on
  320  July 1, 2012, and that desire to sell annuities must complete
  321  the annuity training course within 6 months after that date.
  322  Individuals who obtain a life insurance line of authority on or
  323  after July 1, 2012, may not engage in the sale of annuities
  324  until the annuity training course has been completed.
  325         (f)Satisfaction of the training requirements of another
  326  state which are substantially similar to this subsection satisfy
  327  the training requirements of this subsection.
  328         (8) COMPLIANCE MITIGATION; PENALTIES.—
  329         (a) An insurer is responsible for compliance with this
  330  section. If a violation occurs because of the action or inaction
  331  of the insurer or its agent, the office may order an insurer to
  332  take reasonably appropriate corrective action for a consumer
  333  harmed by the insurer’s or by its agent’s violation of this
  334  section and may impose appropriate penalties and sanctions.
  335         (b) The department may order:
  336         1. An insurance agent to take reasonably appropriate
  337  corrective action, including monetary restitution of penalties
  338  or fees incurred by the consumer for any consumer harmed by a
  339  violation of this section by the insurance agent and impose
  340  appropriate penalties and sanctions.
  341         2. A managing general agency or insurance agency that
  342  employs or contracts with an insurance agent to sell or solicit
  343  the sale of annuities to consumers must take reasonably
  344  appropriate corrective action for a consumer harmed by a
  345  violation of this section by the insurance agent.
  346         (c) In addition to any other penalty authorized under
  347  chapter 626, the department shall order an insurance agent to
  348  pay restitution to a consumer who has been deprived of money by
  349  the agent’s misappropriation, conversion, or unlawful
  350  withholding of moneys belonging to the senior consumer in the
  351  course of a transaction involving annuities. The amount of
  352  restitution required to be paid may not exceed the amount
  353  misappropriated, converted, or unlawfully withheld. This
  354  paragraph does not limit or restrict a person’s right to seek
  355  other remedies as provided by law.
  356         (d) Any applicable penalty under the Florida Insurance Code
  357  for a violation of this section shall be reduced or eliminated
  358  according to a schedule adopted by the office or the department,
  359  as appropriate, if corrective action for the consumer was taken
  360  promptly after a violation was discovered.
  361         (e) A violation of this section does not create or imply a
  362  private cause of action.
  363         (9) RULES.—The department may adopt rules to administer
  364  this section.
  365         Section 2. Subsection (4) of section 626.99, Florida
  366  Statutes, is amended to read:
  367         626.99 Life insurance solicitation.—
  368         (4) DISCLOSURE REQUIREMENTS.—
  369         (a) The insurer shall provide to each prospective purchaser
  370  a buyer’s guide and a policy summary prior to accepting the
  371  applicant’s initial premium or premium deposit, unless the
  372  policy for which application is made provides an unconditional
  373  refund for a period of at least 14 days, or unless the policy
  374  summary contains an offer of such an unconditional refund. In
  375  these instances, the buyer’s guide and policy summary must be
  376  delivered with the policy or before prior to delivery of the
  377  policy.
  378         (b) With respect to fixed and variable annuities, the
  379  policy must provide an unconditional refund for a period of at
  380  least 14 days. For fixed annuities, the buyer’s guide must shall
  381  be in the form as provided by the National Association of
  382  Insurance Commissioners (NAIC) Annuity Disclosure Model
  383  Regulation, until such time as a buyer’s guide is developed by
  384  the department, at which time the department guide must be used.
  385  For variable annuities, a policy summary may be used, which may
  386  be contained in a prospectus, until such time as a buyer’s guide
  387  is developed by NAIC or the department, at which time one of
  388  those guides must be used. If the prospective owner of an
  389  annuity contract is 65 years of age or older:
  390         1. An unconditional refund of premiums paid for a fixed
  391  annuity contract, including any contract fees or charges, must
  392  be available for a period of 21 days; and
  393         2. An unconditional refund for variable or market value
  394  annuity contracts must be available for a period of 21 days. The
  395  unconditional refund shall be equal to the cash surrender value
  396  provided in the annuity contract, plus any fees or charges
  397  deducted from the premiums or imposed under the contract. This
  398  subparagraph does not apply if the prospective owner is an
  399  accredited investor, as defined in Regulation D as adopted by
  400  the United States Securities and Exchange Commission.
  401         (c) The insurer shall attach a cover page to any annuity
  402  policy informing the purchaser of the unconditional refund
  403  period prescribed in paragraph (b). The cover page must also
  404  provide contact information for the issuing company and the
  405  selling agent, the department’s toll-free help line, and any
  406  other information required by the department by rule. The cover
  407  page is part of the policy and is subject to review by the
  408  office pursuant to s. 627.410.
  409         (c)(d) The insurer shall provide a buyer’s guide and a
  410  policy summary to a any prospective purchaser upon request.
  411         Section 3. This act shall take effect July 1, 2012.