Florida Senate - 2012                             CS for SB 1476
       
       
       
       By the Committee on Banking and Insurance; and Senator Richter
       
       
       
       
       597-03048A-12                                         20121476c1
    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         revising the information relating to annuities that
   10         must be provided by the insurer or its agent to the
   11         consumer; revising the requirements for monitoring
   12         contractors that are providing certain functions for
   13         the insurer relating to the insurer’s system for
   14         supervising recommendations; revising provisions
   15         relating to the relationship between the act and the
   16         federal Financial Industry Regulatory Authority;
   17         deleting a provision providing a cap on surrender or
   18         deferred sales charges; prohibiting specified charges
   19         for annuities issued to persons 65 years of age or
   20         older; amending s. 626.99, F.S.; increasing the period
   21         of time that an unconditional refund must remain
   22         available with respect to certain annuity contracts;
   23         making such unconditional refunds available to all
   24         prospective annuity contract buyers without regard to
   25         the buyer’s age; revising requirements for cover pages
   26         of annuity contracts; providing an effective date.
   27  
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 627.4554, Florida Statutes, is amended
   31  to read:
   32         (Substantial rewording of section. See
   33         s. 627.4554, F.S., for present text.)
   34         627.4554 Annuity investments.—
   35         (1) PURPOSE.—The purpose of this section is to require
   36  insurers to set forth standards and procedures for making
   37  recommendations to consumers which result in transactions
   38  involving annuity products, and to establish a system for
   39  supervising such recommendations in order to ensure that the
   40  insurance needs and financial objectives of consumers are
   41  appropriately addressed at the time of the transaction.
   42         (2) SCOPE.—This section applies to any recommendation made
   43  to a consumer to purchase, exchange, or replace an annuity by an
   44  insurer or its agent, and which results in the purchase,
   45  exchange, or replacement recommended.
   46         (3) DEFINITIONS.—As used in this section, the term:
   47         (a) “Agent” has the same meaning as provided in s. 626.015.
   48         (b) “Annuity” means an insurance product under state law
   49  which is individually solicited, whether classified as an
   50  individual or group annuity.
   51         (c) “FINRA” means the Financial Industry Regulatory
   52  Authority or a succeeding agency.
   53         (d) “Insurer” has the same meaning as provided in s.
   54  624.03.
   55         (e) “Recommendation” means advice provided by an insurer or
   56  its agent to a consumer which results in the purchase, exchange
   57  or replacement of an annuity in accordance with that advice.
   58         (f) “Replacement” means a transaction in which a new policy
   59  or contract is to be purchased and it is known or should be
   60  known to the proposing insurer or its agent that by reason of
   61  such transaction an existing policy or contract will be:
   62         1. Lapsed, forfeited, surrendered or partially surrendered,
   63  assigned to the replacing insurer, or otherwise terminated;
   64         2. Converted to reduced paid-up insurance, continued as
   65  extended term insurance, or otherwise reduced in value due to
   66  the use of nonforfeiture benefits or other policy values;
   67         3. Amended so as to effect a reduction in benefits or the
   68  term for which coverage would otherwise remain in force or for
   69  which benefits would be paid;
   70         4. Reissued with a reduction in cash value; or
   71         5. Used in a financed purchase.
   72         (g) “Suitability information” means information related to
   73  the consumer that is reasonably appropriate to determine the
   74  suitability of a recommendation made to the consumer, including
   75  the following:
   76         1. Age;
   77         2. Annual income;
   78         3. Financial situation and needs, including the financial
   79  resources used for funding the annuity;
   80         4. Financial experience;
   81         5. Financial objectives;
   82         6. Intended use of the annuity;
   83         7. Financial time horizon;
   84         8. Existing assets, including investment and life insurance
   85  holdings;
   86         9. Liquidity needs;
   87         10. Liquid net worth;
   88         11. Risk tolerance; and
   89         12. Tax status.
   90         (4) EXEMPTIONS.—This section does not apply to transactions
   91  involving:
   92         (a) Direct-response solicitations where there is no
   93  recommendation based on information collected from the consumer
   94  pursuant to this section;
   95         (b) Contracts used to fund:
   96         1. An employee pension or welfare benefit plan that is
   97  covered by the federal Employee Retirement and Income Security
   98  Act;
   99         2. A plan described by s. 401(a), s. 401(k), s. 403(b), s.
  100  408(k), or s. 408(p) of the Internal Revenue Code, if
  101  established or maintained by an employer;
  102         3. A government or church plan defined in s. 414 of the
  103  Internal Revenue Code, a government or church welfare benefit
  104  plan, or a deferred compensation plan of a state or local
  105  government or tax-exempt organization under s. 457 of the
  106  Internal Revenue Code;
  107         4. A nonqualified deferred compensation arrangement
  108  established or maintained by an employer or plan sponsor;
  109         5. Settlements or assumptions of liabilities associated
  110  with personal injury litigation or any dispute or claim
  111  resolution process; or
  112         6. Formal prepaid funeral contracts.
  113         (5) DUTIES OF INSURERS AND AGENTS.—
  114         (a) When recommending the purchase or exchange of an
  115  annuity to a consumer which results in an insurance transaction
  116  or series of insurance transactions, the agent, or the insurer
  117  where no agent is involved, must have reasonable grounds for
  118  believing that the recommendation is suitable for the consumer,
  119  based on the consumer’s suitability information, and that there
  120  is a reasonable basis to believe all of the following:
  121         1. The consumer has been reasonably informed of various
  122  features of the annuity, such as the potential surrender period
  123  and surrender charge; potential tax penalty if the consumer
  124  sells, exchanges, surrenders, or annuitizes the annuity;
  125  mortality and expense fees; investment advisory fees; potential
  126  charges for and features of riders; limitations on interest
  127  returns; insurance and investment components; and market risk.
  128         2. The consumer would benefit from certain features of the
  129  annuity, such as tax-deferred growth, annuitization, or the
  130  death or living benefit.
  131         3. The particular annuity as a whole, the underlying
  132  subaccounts to which funds are allocated at the time of purchase
  133  or exchange of the annuity, and riders and similar product
  134  enhancements, if any, are suitable; and, in the case of an
  135  exchange or replacement, the transaction as a whole is suitable
  136  for the particular consumer based on his or her suitability
  137  information.
  138         4. In the case of an exchange or replacement of an annuity,
  139  the exchange or replacement is suitable after considering
  140  whether the consumer:
  141         a. Will incur a surrender charge; be subject to the
  142  commencement of a new surrender period; lose existing benefits,
  143  such as death, living, or other contractual benefits; or be
  144  subject to increased fees, investment advisory fees, or charges
  145  for riders and similar product enhancements;
  146         b. Would benefit from product enhancements and
  147  improvements; and
  148         c. Has had another annuity exchange or replacement, in
  149  particular, an exchange or replacement within the preceding 36
  150  months.
  151         (b) Before executing a purchase, exchange, or replacement
  152  of an annuity resulting from a recommendation, an insurer or its
  153  agent must make reasonable efforts to obtain the consumer’s
  154  suitability information. The information shall be collected on
  155  form DFS-H1-1980, which is hereby incorporated by reference, and
  156  completed and signed by the applicant and agent. Questions
  157  requesting this information must be presented in at least 12
  158  point type and be sufficiently clear so as to be readily
  159  understandable by both the agent and the consumer. A true and
  160  correct executed copy of the form must be provided by the agent
  161  to the insurer, or to the person or entity that has contracted
  162  with the insurer to perform this function as authorized by this
  163  section, within 10 days after execution of the form, and must be
  164  provided to the consumer by the date of delivery of the contract
  165  or contracts.
  166         (c) Except as provided under paragraph (d), an insurer may
  167  not issue an annuity recommended to a consumer unless there is a
  168  reasonable basis to believe the annuity is suitable based on the
  169  consumer’s suitability information.
  170         (d) An insurer’s issuance of an annuity must be reasonable
  171  based on all the circumstances actually known to the insurer at
  172  the time the annuity is issued. However, an insurer or its agent
  173  does not have an obligation to a consumer related to an annuity
  174  transaction under paragraph (a) or paragraph (c) if:
  175         1. A recommendation has not been made;
  176         2. A recommendation was made and is later found to have
  177  been based on materially inaccurate information provided by the
  178  consumer;
  179         3. A consumer refuses to provide relevant suitability
  180  information and the annuity transaction is not recommended; or
  181         4. A consumer decides to enter into an annuity transaction
  182  that is not based on a recommendation of an insurer or its
  183  agent.
  184         (e) At the time of sale, the agent or the agent’s
  185  representative must:
  186         1. Make a record of any recommendation made to the consumer
  187  pursuant to paragraph (a);
  188         2. Obtain the consumer’s signed statement documenting his
  189  or her refusal to provide suitability information, if
  190  applicable; and
  191         3. Obtain the consumer’s signed statement acknowledging
  192  that an annuity transaction is not recommended if he or she
  193  decides to enter into an annuity transaction that is not based
  194  on the insurer’s or its agent’s recommendation, if applicable.
  195         (f) Before executing a replacement or exchange of an
  196  annuity contract resulting from a recommendation, the agent must
  197  provide on form DFS-H1-1981, which is incorporated by reference,
  198  information that compares the differences between the existing
  199  annuity contract and the annuity contract being recommended in
  200  order to determine the suitability of the recommendation and its
  201  benefit to the consumer. A true and correct executed copy of
  202  this form must be provided by the agent to the insurer, or to
  203  the person or entity that has contracted with the insurer to
  204  perform this function as authorized by this section, within 10
  205  days after execution of the form, and must be provided to the
  206  consumer by the date of delivery of the contract or contracts.
  207         (g) An insurer shall establish a supervision system that is
  208  reasonably designed to achieve the insurer’s and its agent’s
  209  compliance with this section.
  210         1. Such system must include, but is not limited to:
  211         a. Maintaining reasonable procedures to inform its agents
  212  of the requirements of this section and incorporating those
  213  requirements into relevant agent training manuals;
  214         b. Establishing standards for agent product training;
  215         c. Providing product-specific training and training
  216  materials that explain all material features of its annuity
  217  products to its agents;
  218         d. Maintaining procedures for the review of each
  219  recommendation before issuance of an annuity which are designed
  220  to ensure that there is a reasonable basis for determining that
  221  a recommendation is suitable. Such review procedures may use a
  222  screening system for identifying selected transactions for
  223  additional review and may be accomplished electronically or
  224  through other means, including, but not limited to, physical
  225  review. Such electronic or other system may be designed to
  226  require additional review only of those transactions identified
  227  for additional review using established selection criteria;
  228         e. Maintaining reasonable procedures to detect
  229  recommendations that are not suitable. These may include, but
  230  are not limited to, confirmation of consumer suitability
  231  information, systematic customer surveys, consumer interviews,
  232  confirmation letters, and internal monitoring programs. This
  233  sub-subparagraph does not prevent an insurer from using sampling
  234  procedures or from confirming suitability information after the
  235  issuance or delivery of the annuity; and
  236         f. Annually providing a report to senior managers,
  237  including the senior manager who is responsible for audit
  238  functions, which details a review, along with appropriate
  239  testing, which is reasonably designed to determine the
  240  effectiveness of the supervision system, the exceptions found,
  241  and corrective action taken or recommended, if any.
  242         2. An insurer is not required to include in its supervision
  243  system agent recommendations to consumers of products other than
  244  the annuities offered by the insurer.
  245         3. An insurer may contract for performance of a function
  246  required under subparagraph 1.
  247         a. If an insurer contracts for the performance of a
  248  function, the insurer must include the supervision of
  249  contractual performance as part of those procedures listed in
  250  subparagraph 1. These include, but are not limited to:
  251         (I) Monitoring and, as appropriate, conducting audits to
  252  ensure that the contracted function is properly performed; and
  253         (II) Annually obtaining a certification from a senior
  254  manager who has responsibility for the contracted function that
  255  the manager has a reasonable basis for representing that the
  256  function is being properly performed.
  257         b. An insurer is responsible for taking appropriate
  258  corrective action and may be subject to sanctions and penalties
  259  pursuant to subsection (7) regardless of whether the insurer
  260  contracts for performance of a function and regardless of the
  261  insurer’s compliance with sub-subparagraph a.
  262         (h) An agent may not dissuade, or attempt to dissuade, a
  263  consumer from:
  264         1. Truthfully responding to an insurer’s request for
  265  confirmation of suitability information;
  266         2. Filing a complaint; or
  267         3. Cooperating with the investigation of a complaint.
  268         (i) Sales made in compliance with FINRA requirements
  269  pertaining to the suitability and supervision of annuity
  270  transactions must satisfy the requirements of this section. This
  271  paragraph applies to FINRA broker-dealer sales of variable
  272  annuities and fixed annuities if the suitability and supervision
  273  is similar to those applied to variable annuity sales. However,
  274  this paragraph does not limit the ability of the office or the
  275  department to enforce, including investigate, the provisions of
  276  this section. For this paragraph to apply, an insurer must:
  277         1. Monitor the FINRA member broker-dealer using information
  278  collected in the normal course of an insurer’s business; and
  279         2. Provide to the FINRA member broker-dealer information
  280  and reports that are reasonably appropriate to assist the FINRA
  281  member broker-dealer in maintaining its supervision system.
  282         (6) RECORDKEEPING.—
  283         (a) Insurers and agents must maintain or be able to make
  284  available to the office or department records of the information
  285  collected from the consumer and other information used in making
  286  the recommendations that were the basis for insurance
  287  transactions for 5 years after the insurance transaction is
  288  completed by the insurer. An insurer may maintain the
  289  documentation on behalf of its agent.
  290         (b) Records required to be maintained under this subsection
  291  may be maintained in paper, photographic, microprocess,
  292  magnetic, mechanical, or electronic media, or by any process
  293  that accurately reproduces the actual document.
  294         (7) COMPLIANCE MITIGATION; PENALTIES.—
  295         (a) An insurer is responsible for compliance with this
  296  section. If a violation occurs because of the action or inaction
  297  of the insurer or its agent, the office may order an insurer to
  298  take reasonably appropriate corrective action for a consumer
  299  harmed by the insurer’s or by its agent’s violation of this
  300  section and may impose appropriate penalties and sanctions.
  301         (b) The department may order:
  302         1. An insurance agent to take reasonably appropriate
  303  corrective action, including monetary restitution of penalties
  304  or fees incurred by the consumer for any consumer harmed by a
  305  violation of this section by the insurance agent and impose
  306  appropriate penalties and sanctions.
  307         2. A managing general agency or insurance agency that
  308  employs or contracts with an insurance agent to sell or solicit
  309  the sale of annuities to consumers must take reasonably
  310  appropriate corrective action for a consumer harmed by a
  311  violation of this section by the insurance agent.
  312         (c) In addition to any other penalty authorized under
  313  chapter 626, the department shall order an insurance agent to
  314  pay restitution to a consumer who has been deprived of money by
  315  the agent’s misappropriation, conversion, or unlawful
  316  withholding of moneys belonging to the senior consumer in the
  317  course of a transaction involving annuities. The amount of
  318  restitution may not exceed the amount misappropriated,
  319  converted, or unlawfully withheld. This paragraph does not limit
  320  or restrict a person’s right to seek other remedies as provided
  321  by law.
  322         (d) Any applicable penalty under the Florida Insurance Code
  323  for a violation of this section shall be reduced or eliminated
  324  according to a schedule adopted by the office or the department,
  325  as appropriate, if corrective action for the consumer was taken
  326  promptly after a violation was discovered.
  327         (e) A violation of this section does not create or imply a
  328  private cause of action.
  329         (8) PROHIBITED CHARGES.—An annuity contract issued to a
  330  senior consumer age 65 or older may not contain a surrender or
  331  deferred sales charge for a withdrawal of money from an annuity
  332  exceeding 10 percent of the amount withdrawn. The charge shall
  333  be reduced so that no surrender or deferred sales charge exists
  334  after the end of the 10th policy year or 10 years after the date
  335  of each premium payment if multiple premiums are paid, whichever
  336  is later. This subsection does not apply to annuities purchased
  337  by an accredited investor, as defined in Regulation D as adopted
  338  by the United States Securities and Exchange Commission, or to
  339  those annuities specified in paragraph (4)(b).
  340         (9) RULES.—The department may adopt rules to administer
  341  this section.
  342         Section 2. Subsection (4) of section 626.99, Florida
  343  Statutes, is amended to read:
  344         626.99 Life insurance solicitation.—
  345         (4) DISCLOSURE REQUIREMENTS.—
  346         (a) The insurer shall provide to each prospective purchaser
  347  a buyer’s guide and a policy summary prior to accepting the
  348  applicant’s initial premium or premium deposit, unless the
  349  policy for which application is made provides an unconditional
  350  refund for a period of at least 14 days, or unless the policy
  351  summary contains an offer of such an unconditional refund. In
  352  these instances, the buyer’s guide and policy summary must be
  353  delivered with the policy or before prior to delivery of the
  354  policy.
  355         (b) With respect to fixed and variable annuities, the
  356  policy must provide an unconditional refund for a period of at
  357  least 21 14 days. For fixed annuities, the buyer’s guide must
  358  shall be in the form as provided by the National Association of
  359  Insurance Commissioners (NAIC) Annuity Disclosure Model
  360  Regulation, until such time as a buyer’s guide is developed by
  361  the department, at which time the department guide must be used.
  362  For variable annuities, a policy summary may be used, which may
  363  be contained in a prospectus, until such time as a buyer’s guide
  364  is developed by NAIC or the department, at which time one of
  365  those guides must be used. Unconditional refund means If the
  366  prospective owner of an annuity contract is 65 years of age or
  367  older:
  368         1. An unconditional refund of premiums paid for a fixed
  369  annuity contract, including any contract fees or charges, must
  370  be available for a period of 21 days; and
  371         2. An unconditional refund for variable or market value
  372  annuity contracts must be available for a period of 21 days. The
  373  unconditional refund shall be equal to the cash surrender value
  374  provided in the annuity contract, plus any fees or charges
  375  deducted from the premiums or imposed under the contract, or a
  376  refund of all premiums paid. This subparagraph does not apply if
  377  the prospective owner is an accredited investor, as defined in
  378  Regulation D as adopted by the United States Securities and
  379  Exchange Commission.
  380         (c) The insurer shall attach a cover page to any annuity
  381  contract policy informing the purchaser of the unconditional
  382  refund period prescribed in paragraph (b). The cover page must
  383  also provide contact information for the issuing company and the
  384  selling agent, and the department’s toll-free help line, and any
  385  other information required by the department by rule. The cover
  386  page must also contain the following disclosures in bold print
  387  and at least 12-point type, if applicable:
  388         1. “PLEASE BE AWARE THAT THE PURCHASE OF AN ANNUITY
  389  CONTRACT IS A LONG-TERM COMMITMENT AND MAY RESTRICT ACCESS TO
  390  YOUR FUNDS.”
  391         2. “IT IS IMPORTANT THAT YOU UNDERSTAND HOW THE BONUS
  392  FEATURE OF YOUR CONTRACT WORKS. PLEASE REFER TO YOUR POLICY FOR
  393  FURTHER DETAILS.”
  394         3. “INTEREST RATES MAY HAVE CERTAIN LIMITATIONS. PLEASE
  395  REFER TO YOUR POLICY FOR FURTHER DETAILS.”
  396         4. “A [PROSPECTUS AND POLICY SUMMARY] [BUYERS GUIDE] IS
  397  REQUIRED TO BE GIVEN TO YOU.”
  398  
  399  The cover page is part of the policy and is subject to review by
  400  the office pursuant to s. 627.410.
  401         (d) The insurer shall provide a buyer’s guide and a policy
  402  summary to a any prospective purchaser upon request.
  403         Section 3. This act shall take effect October 1, 2012.