Florida Senate - 2013                                     SB 166
       
       
       
       By Senator Richter
       
       
       
       
       23-00193B-13                                           2013166__
    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; providing exemptions;
    7         revising the duties of insurers and agents; providing
    8         that recommendations must be based on consumer
    9         suitability information; revising the information
   10         relating to annuities that must be provided by the
   11         insurer or its agent to the consumer; revising the
   12         requirements for monitoring contractors that are
   13         providing certain functions for the insurer relating
   14         to the insurer’s system for supervising
   15         recommendations; revising provisions relating to the
   16         relationship between this act and the federal
   17         Financial Industry Regulatory Authority; deleting a
   18         provision providing a cap on surrender or deferred
   19         sales charges; prohibiting specified charges for
   20         annuities issued to persons 65 years of age or older;
   21         amending s. 626.99, F.S.; increasing the period of
   22         time that an unconditional refund must remain
   23         available with respect to certain annuity contracts;
   24         making such unconditional refunds available to all
   25         prospective annuity contract buyers without regard to
   26         the buyer’s age; revising requirements for cover pages
   27         of annuity contracts; providing an effective date.
   28  
   29  Be It Enacted by the Legislature of the State of Florida:
   30  
   31         Section 1. Section 627.4554, Florida Statutes, is amended
   32  to read:
   33         (Substantial rewording of section. See
   34         s. 627.4554, F.S., for present text.)
   35         627.4554 Annuity investments.—
   36         (1) PURPOSE.—The purpose of this section is to require
   37  insurers to set forth standards and procedures for making
   38  recommendations to consumers which result in transactions
   39  involving annuity products, and to establish a system for
   40  supervising such recommendations in order to ensure that the
   41  insurance needs and financial objectives of consumers are
   42  appropriately addressed at the time of the transaction.
   43         (2) SCOPE.—This section applies to any recommendation made
   44  to a consumer to purchase, exchange, or replace an annuity by an
   45  insurer or its agent, and which results in the purchase,
   46  exchange, or replacement recommended.
   47         (3) DEFINITIONS.—As used in this section, the term:
   48         (a) “Agent” has the same meaning as provided in s. 626.015.
   49         (b) “Annuity” means an insurance product under state law
   50  which is individually solicited, whether classified as an
   51  individual or group annuity.
   52         (c) “FINRA” means the Financial Industry Regulatory
   53  Authority or a succeeding agency.
   54         (d) “Insurer” has the same meaning as provided in s.
   55  624.03.
   56         (e) “Recommendation” means advice provided by an insurer or
   57  its agent to a consumer which would result in the purchase,
   58  exchange, or replacement of an annuity in accordance with that
   59  advice.
   60         (f) “Replacement” means a transaction in which a new policy
   61  or contract is to be purchased and it is known or should be
   62  known to the proposing insurer or its agent that by reason of
   63  such transaction an existing policy or contract will be:
   64         1. Lapsed, forfeited, surrendered or partially surrendered,
   65  assigned to the replacing insurer, or otherwise terminated;
   66         2. Converted to reduced paid-up insurance, continued as
   67  extended term insurance, or otherwise reduced in value due to
   68  the use of nonforfeiture benefits or other policy values;
   69         3. Amended so as to effect a reduction in benefits or the
   70  term for which coverage would otherwise remain in force or for
   71  which benefits would be paid;
   72         4. Reissued with a reduction in cash value; or
   73         5. Used in a financed purchase.
   74         (g) “Suitability information” means information related to
   75  the consumer which is reasonably appropriate to determine the
   76  suitability of a recommendation made to the consumer, including
   77  the following:
   78         1. Age;
   79         2. Annual income;
   80         3. Financial situation and needs, including the financial
   81  resources used for funding the annuity;
   82         4. Financial experience;
   83         5. Financial objectives;
   84         6. Intended use of the annuity;
   85         7. Financial time horizon;
   86         8. Existing assets, including investment and life insurance
   87  holdings;
   88         9. Liquidity needs;
   89         10. Liquid net worth;
   90         11. Risk tolerance; and
   91         12. Tax status.
   92         (4) EXEMPTIONS.—This section does not apply to transactions
   93  involving:
   94         (a) Direct-response solicitations where there is no
   95  recommendation based on information collected from the consumer
   96  pursuant to this section;
   97         (b) Contracts used to fund:
   98         1. An employee pension or welfare benefit plan that is
   99  covered by the federal Employee Retirement and Income Security
  100  Act;
  101         2. A plan described by s. 401(a), s. 401(k), s. 403(b), s.
  102  408(k), or s. 408(p) of the Internal Revenue Code, if
  103  established or maintained by an employer;
  104         3. A government or church plan defined in s. 414 of the
  105  Internal Revenue Code, a government or church welfare benefit
  106  plan, or a deferred compensation plan of a state or local
  107  government or tax-exempt organization under s. 457 of the
  108  Internal Revenue Code;
  109         4. A nonqualified deferred compensation arrangement
  110  established or maintained by an employer or plan sponsor;
  111         5. Settlements or assumptions of liabilities associated
  112  with personal injury litigation or a dispute or claim-resolution
  113  process; or
  114         6. Formal prepaid funeral contracts.
  115         (5) DUTIES OF INSURERS AND AGENTS.—
  116         (a) When recommending the purchase or exchange of an
  117  annuity to a consumer which results in an insurance transaction
  118  or series of insurance transactions, the agent, or the insurer
  119  where no agent is involved, must have reasonable grounds for
  120  believing that the recommendation is suitable for the consumer,
  121  based on the consumer’s suitability information, and that there
  122  is a reasonable basis to believe all of the following:
  123         1. The consumer has been reasonably informed of various
  124  features of the annuity, such as the potential surrender period
  125  and surrender charge; potential tax penalty if the consumer
  126  sells, exchanges, surrenders, or annuitizes the annuity;
  127  mortality and expense fees; investment advisory fees; potential
  128  charges for and features of riders; limitations on interest
  129  returns; insurance and investment components; and market risk.
  130         2. The consumer would benefit from certain features of the
  131  annuity, such as tax-deferred growth, annuitization, or the
  132  death or living benefit.
  133         3. The particular annuity as a whole, the underlying
  134  subaccounts to which funds are allocated at the time of purchase
  135  or exchange of the annuity, and riders and similar product
  136  enhancements, if any, are suitable; and, in the case of an
  137  exchange or replacement, the transaction as a whole is suitable
  138  for the particular consumer based on his or her suitability
  139  information.
  140         4. In the case of an exchange or replacement of an annuity,
  141  the exchange or replacement is suitable after considering
  142  whether the consumer:
  143         a. Will incur a surrender charge; be subject to the
  144  commencement of a new surrender period; lose existing benefits,
  145  such as death, living, or other contractual benefits; or be
  146  subject to increased fees, investment advisory fees, or charges
  147  for riders and similar product enhancements;
  148         b. Would benefit from product enhancements and
  149  improvements; and
  150         c. Has had another annuity exchange or replacement,
  151  including an exchange or replacement within the preceding 36
  152  months.
  153         (b) Before executing a purchase, exchange, or replacement
  154  of an annuity resulting from a recommendation, an insurer or its
  155  agent must make reasonable efforts to obtain the consumer’s
  156  suitability information. The information shall be collected on
  157  form DFS-H1-1980, which is hereby incorporated by reference, and
  158  completed and signed by the applicant and agent. Questions
  159  requesting this information must be presented in at least 12
  160  point type and be sufficiently clear so as to be readily
  161  understandable by both the agent and the consumer. A true and
  162  correct executed copy of the form must be provided by the agent
  163  to the insurer, or to the person or entity that has contracted
  164  with the insurer to perform this function as authorized by this
  165  section, within 10 days after execution of the form, and shall
  166  be provided to the consumer no later than the date of delivery
  167  of the contract or contracts.
  168         (c) Except as provided under paragraph (d), an insurer may
  169  not issue an annuity recommended to a consumer unless there is a
  170  reasonable basis to believe the annuity is suitable based on the
  171  consumer’s suitability information.
  172         (d) An insurer’s issuance of an annuity must be reasonable
  173  based on all the circumstances actually known to the insurer at
  174  the time the annuity is issued. However, an insurer or its agent
  175  does not have an obligation to a consumer related to an annuity
  176  transaction under paragraph (a) or paragraph (c) if:
  177         1. A recommendation has not been made;
  178         2. A recommendation was made and is later found to have
  179  been based on materially inaccurate information provided by the
  180  consumer;
  181         3. A consumer refuses to provide relevant suitability
  182  information and the annuity transaction is not recommended; or
  183         4. A consumer decides to enter into an annuity transaction
  184  that is not based on a recommendation of an insurer or its
  185  agent.
  186         (e) At the time of sale, the agent or the agent’s
  187  representative must:
  188         1. Make a record of any recommendation made to the consumer
  189  pursuant to paragraph (a);
  190         2. Obtain the consumer’s signed statement documenting his
  191  or her refusal to provide suitability information, if
  192  applicable; and
  193         3. Obtain the consumer’s signed statement acknowledging
  194  that an annuity transaction is not recommended if he or she
  195  decides to enter into an annuity transaction that is not based
  196  on the insurer’s or its agent’s recommendation, if applicable.
  197         (f) Before executing a replacement or exchange of an
  198  annuity contract resulting from a recommendation, the agent must
  199  provide on form DFS-H1-1981, which is hereby incorporated by
  200  reference, information that compares the differences between the
  201  existing annuity contract and the annuity contract being
  202  recommended in order to determine the suitability of the
  203  recommendation and its benefit to the consumer. A true and
  204  correct executed copy of this form must be provided by the agent
  205  to the insurer, or to the person or entity that has contracted
  206  with the insurer to perform this function as authorized by this
  207  section, within 10 days after execution of the form, and must be
  208  provided to the consumer no later than the date of delivery of
  209  the contract or contracts.
  210         (g) An insurer shall establish a supervision system that is
  211  reasonably designed to achieve the insurer’s and its agent’s
  212  compliance with this section.
  213         1. Such system must include, but is not limited to:
  214         a. Maintaining reasonable procedures to inform its agents
  215  of the requirements of this section and incorporating those
  216  requirements into relevant agent training manuals;
  217         b. Establishing standards for agent product training;
  218         c. Providing product-specific training and training
  219  materials that explain all material features of its annuity
  220  products to its agents;
  221         d. Maintaining procedures for the review of each
  222  recommendation before issuance of an annuity which are designed
  223  to ensure that there is a reasonable basis for determining that
  224  a recommendation is suitable. Such review procedures may use a
  225  screening system for identifying selected transactions for
  226  additional review and may be accomplished electronically or
  227  through other means, including physical review. Such electronic
  228  or other system may be designed to require additional review
  229  only of those transactions identified for additional review
  230  using established selection criteria;
  231         e. Maintaining reasonable procedures to detect
  232  recommendations that are not suitable, such as confirmation of
  233  consumer suitability information, systematic customer surveys,
  234  consumer interviews, confirmation letters, and internal
  235  monitoring programs. This sub-subparagraph does not prevent an
  236  insurer from using sampling procedures or from confirming
  237  suitability information after the issuance or delivery of the
  238  annuity; and
  239         f. Annually providing a report to senior managers,
  240  including the senior manager who is responsible for audit
  241  functions, which details a review, along with appropriate
  242  testing, which is reasonably designed to determine the
  243  effectiveness of the supervision system, the exceptions found,
  244  and corrective action taken or recommended, if any.
  245         2. An insurer is not required to include in its supervision
  246  system agent recommendations to consumers of products other than
  247  the annuities offered by the insurer.
  248         3. An insurer may contract for performance of a function
  249  required under subparagraph 1.
  250         a. If an insurer contracts for the performance of a
  251  function, the insurer must include the supervision of
  252  contractual performance as part of those procedures listed in
  253  subparagraph 1. These include, but are not limited to:
  254         (I) Monitoring and, as appropriate, conducting audits to
  255  ensure that the contracted function is properly performed; and
  256         (II) Annually obtaining a certification from a senior
  257  manager who has responsibility for the contracted function that
  258  the manager has a reasonable basis for representing that the
  259  function is being properly performed.
  260         b. An insurer is responsible for taking appropriate
  261  corrective action and may be subject to sanctions and penalties
  262  pursuant to subsection (7) regardless of whether the insurer
  263  contracts for performance of a function and regardless of the
  264  insurer’s compliance with sub-subparagraph a.
  265         (h) An agent may not dissuade, or attempt to dissuade, a
  266  consumer from:
  267         1. Truthfully responding to an insurer’s request for
  268  confirmation of suitability information;
  269         2. Filing a complaint; or
  270         3. Cooperating with the investigation of a complaint.
  271         (i) Sales made in compliance with FINRA requirements
  272  pertaining to the suitability and supervision of annuity
  273  transactions satisfy the requirements of this section. This
  274  applies to FINRA broker-dealer sales of variable annuities and
  275  fixed annuities if the suitability and supervision is similar to
  276  those applied to variable annuity sales. However, this paragraph
  277  does not limit the ability of the office or the department to
  278  enforce, including investigate, the provisions of this section.
  279  For this paragraph to apply, an insurer must:
  280         1. Monitor the FINRA member broker-dealer using information
  281  collected in the normal course of an insurer’s business; and
  282         2. Provide to the FINRA member broker-dealer information
  283  and reports that are reasonably appropriate to assist the FINRA
  284  member broker-dealer in maintaining its supervision system.
  285         (6) RECORDKEEPING.—
  286         (a) Insurers and agents must maintain or be able to make
  287  available to the office or department records of the information
  288  collected from the consumer and other information used in making
  289  the recommendations that were the basis for insurance
  290  transactions for 5 years after the insurance transaction is
  291  completed by the insurer. An insurer may maintain the
  292  documentation on behalf of its agent.
  293         (b) Records required to be maintained under this subsection
  294  may be maintained in paper, photographic, microprocess,
  295  magnetic, mechanical, or electronic media, or by any process
  296  that accurately reproduces the actual document.
  297         (7) COMPLIANCE MITIGATION; PENALTIES.—
  298         (a) An insurer is responsible for compliance with this
  299  section. If a violation occurs because of the action or inaction
  300  of the insurer or its agent which results in harm to a consumer,
  301  the office may order the insurer to take reasonably appropriate
  302  corrective action for the consumer and may impose appropriate
  303  penalties and sanctions.
  304         (b) The department may order:
  305         1. An insurance agent to take reasonably appropriate
  306  corrective action for a consumer harmed by a violation of this
  307  section by the insurance agent, including monetary restitution
  308  of penalties or fees incurred by the consumer, and impose
  309  appropriate penalties and sanctions.
  310         2. A managing general agency or insurance agency that
  311  employs or contracts with an insurance agent to sell or solicit
  312  the sale of annuities to consumers to take reasonably
  313  appropriate corrective action for a consumer harmed by a
  314  violation of this section by the insurance agent.
  315         (c) In addition to any other penalty authorized under
  316  chapter 626, the department shall order an insurance agent to
  317  pay restitution to a consumer who has been deprived of money by
  318  the agent’s misappropriation, conversion, or unlawful
  319  withholding of moneys belonging to the senior consumer in the
  320  course of a transaction involving annuities. The amount of
  321  restitution required to be paid may not exceed the amount
  322  misappropriated, converted, or unlawfully withheld. This
  323  paragraph does not limit or restrict a person’s right to seek
  324  other remedies as provided by law.
  325         (d) Any applicable penalty under the Florida Insurance Code
  326  for a violation of this section shall be reduced or eliminated
  327  according to a schedule adopted by the office or the department,
  328  as appropriate, if corrective action for the consumer was taken
  329  promptly after a violation was discovered.
  330         (e) A violation of this section does not create or imply a
  331  private cause of action.
  332         (8) PROHIBITED CHARGES.—An annuity contract issued to a
  333  senior consumer age 65 or older may not contain a surrender or
  334  deferred sales charge for a withdrawal of money from an annuity
  335  exceeding 10 percent of the amount withdrawn. The charge shall
  336  be reduced so that no surrender or deferred sales charge exists
  337  after the end of the 10th policy year or 10 years after the date
  338  of each premium payment if multiple premiums are paid, whichever
  339  is later. This subsection does not apply to annuities purchased
  340  by an accredited investor, as defined in Regulation D as adopted
  341  by the United States Securities and Exchange Commission, or to
  342  those annuities specified in paragraph (4)(b).
  343         (9) RULES.—The department may adopt rules to administer
  344  this section.
  345         Section 2. Subsection (4) of section 626.99, Florida
  346  Statutes, is amended to read:
  347         626.99 Life insurance solicitation.—
  348         (4) DISCLOSURE REQUIREMENTS.—
  349         (a) The insurer shall provide to each prospective purchaser
  350  a buyer’s guide and a policy summary prior to accepting the
  351  applicant’s initial premium or premium deposit, unless the
  352  policy for which application is made provides an unconditional
  353  refund for a period of at least 14 days, or unless the policy
  354  summary contains an offer of such an unconditional refund. In
  355  these instances, the buyer’s guide and policy summary must be
  356  delivered with the policy or before prior to delivery of the
  357  policy.
  358         (b) With respect to fixed and variable annuities, the
  359  policy must provide an unconditional refund for a period of at
  360  least 21 14 days. For fixed annuities, the buyer’s guide must
  361  shall be in the form as provided by the National Association of
  362  Insurance Commissioners (NAIC) Annuity Disclosure Model
  363  Regulation, until such time as a buyer’s guide is developed by
  364  the department, at which time the department guide must be used.
  365  For variable annuities, a policy summary may be used, which may
  366  be contained in a prospectus, until such time as a buyer’s guide
  367  is developed by NAIC or the department, at which time one of
  368  those guides must be used. Unconditional refund means If the
  369  prospective owner of an annuity contract is 65 years of age or
  370  older:
  371         1. An unconditional refund of premiums paid for a fixed
  372  annuity contract, including any contract fees or charges, must
  373  be available for a period of 21 days; and
  374         2. An unconditional refund for variable or market value
  375  annuity contracts must be available for a period of 21 days. The
  376  unconditional refund shall be equal to the cash surrender value
  377  provided in the annuity contract, plus any fees or charges
  378  deducted from the premiums or imposed under the contract, or a
  379  refund of all premiums paid. This subparagraph does not apply if
  380  the prospective owner is an accredited investor, as defined in
  381  Regulation D as adopted by the United States Securities and
  382  Exchange Commission.
  383         (c) The insurer shall attach a cover page to any annuity
  384  contract policy informing the purchaser of the unconditional
  385  refund period prescribed in paragraph (b). The cover page must
  386  also provide contact information for the issuing company and the
  387  selling agent, and the department’s toll-free help line, and any
  388  other information required by the department by rule. The cover
  389  page must also contain the following disclosures in bold print
  390  and at least 12-point type, if applicable:
  391         1. “PLEASE BE AWARE THAT THE PURCHASE OF AN ANNUITY
  392  CONTRACT IS A LONG-TERM COMMITMENT AND MAY RESTRICT ACCESS TO
  393  YOUR FUNDS.”
  394         2. “IT IS IMPORTANT THAT YOU UNDERSTAND HOW THE BONUS
  395  FEATURE OF YOUR CONTRACT WORKS. PLEASE REFER TO YOUR POLICY FOR
  396  FURTHER DETAILS.”
  397         3. “INTEREST RATES MAY HAVE CERTAIN LIMITATIONS. PLEASE
  398  REFER TO YOUR POLICY FOR FURTHER DETAILS.”
  399         4. “A [PROSPECTUS AND POLICY SUMMARY] [BUYERS GUIDE] IS
  400  REQUIRED TO BE GIVEN TO YOU.”
  401  
  402  The cover page is part of the policy and is subject to review by
  403  the office pursuant to s. 627.410.
  404         (d) The insurer shall provide a buyer’s guide and a policy
  405  summary to a any prospective purchaser upon request.
  406         Section 3. This act shall take effect October 1, 2013.