Senate Bill sb1530c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2001                           CS for SB 1530

    By the Committee on Banking and Insurance; and Senator Geller





    311-1791-01

  1                      A bill to be entitled

  2         An act relating to viaticals; amending s.

  3         626.9911, F.S.; revising definitions; amending

  4         s. 626.9921, F.S.; providing for approval of

  5         forms; amending s. 626.99235, F.S.; providing

  6         for applicability to purchase in the secondary

  7         market; amending s. 626.99236, F.S.; requiring

  8         certain purchases to be handled by an

  9         independent third-party trustee; amending s.

10         626.9924, F.S.; revising procedures for

11         tracking the insured; amending s. 626.99245,

12         F.S.; clarifying the application of licensing

13         requirements to viatical settlement providers;

14         providing an effective date.

15

16  Be It Enacted by the Legislature of the State of Florida:

17

18         Section 1.  Subsections (8), (9), (10), (14), and (15)

19  of section 626.9911, Florida Statutes, are amended to read:

20         626.9911  Definitions.--As used in this act, the term:

21         (8)  "Related provider trust" means a titling trust or

22  other trust established by a licensed viatical settlement

23  provider or financing entity for the sole purpose of holding

24  the ownership or beneficial interest in purchased policies in

25  connection with a financing transaction entering into or

26  owning viatical settlement contracts. The trust must have a

27  written agreement with a licensed viatical settlement provider

28  or financing entity under which the licensed viatical

29  settlement provider or financing entity is responsible for

30  insuring compliance with all statutory and regulatory

31  requirements and under which the trust agrees to make all

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                           CS for SB 1530
    311-1791-01




  1  records and files relating to viatical settlement transactions

  2  available to the department as if those records and files were

  3  maintained directly by the licensed viatical settlement

  4  provider. This term does not include an independent

  5  third-party trustee or escrow agent or a trust that does not

  6  enter into agreements with a viator. A related provider trust

  7  shall be subject to all provisions of this act that apply to

  8  the viatical settlement provider who established the related

  9  provider trust, except s. 626.9912, which shall not be

10  applicable. A viatical settlement provider may establish no

11  more than one related provider trust, and the sole trustee of

12  such related provider trust shall be the viatical settlement

13  provider licensed under s. 626.9912. The name of the licensed

14  viatical settlement provider shall be included within the name

15  of the related provider trust.

16         (9)  "Viatical settlement purchase agreement" means a

17  contract or agreement, entered into by a viatical settlement

18  purchaser, to which the viator is not a party, to purchase a

19  life insurance policy or an interest in a life insurance

20  policy, which is entered into for the purpose of deriving an

21  economic benefit. The term also includes purchases made in the

22  secondary market, that is, purchases from any person other

23  than the provider who effectuated the viatical settlement

24  contract.

25         (10)  "Viatical settlement purchaser" means a person

26  who gives a sum of money as consideration for a life insurance

27  policy or an equitable or legal interest in the death benefits

28  of a life insurance policy that has been or will be the

29  subject of a viatical settlement contract, for the purpose of

30  deriving an economic benefit, including purchases made in the

31  secondary market, that is, purchases from any person other

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                           CS for SB 1530
    311-1791-01




  1  than the provider who effectuated the viatical settlement

  2  contract or an entity affiliated with the provider. The term

  3  does not include, other than a licensee under this part, an

  4  accredited investor as defined in Rule 501, Regulation D of

  5  the Securities Act Rules, or a qualified institutional buyer

  6  as defined by Rule 144(a) of the Federal Securities Act, or a

  7  special purpose entity who gives a sum of money as

  8  consideration for a life insurance policy or an equitable or

  9  legal interest in the death benefits of a life insurance

10  policy which has been or will be the subject of a viatical

11  settlement contract, for the purpose of deriving an economic

12  benefit. The above references to Rule 501, Regulation D and

13  Rule 144(a) of the Federal Securities Act are used strictly

14  for defining purposes and shall not be interpreted in any

15  other manner. Any person who claims to be an accredited

16  investor shall sign an affidavit stating that he or she is an

17  accredited investor, the basis of that claim, and that he or

18  she understands that as an accredited investor he or she will

19  not be entitled to certain protections of the Viatical Act.

20  This affidavit must be kept with other documents required to

21  be maintained by this act.

22         (14)  "Special purpose entity" means an entity

23  established by a licensed viatical settlement provider, which

24  may be a corporation, partnership, trust, limited liability

25  company, or other similar entity formed solely to provide,

26  either directly or indirectly, access to act as a vehicle to

27  permit a lender to the provider to access institutional

28  capital markets to a viatical settlement for the provider or

29  financing entity. A special purpose entity shall not enter

30  into a viatical settlement contract or a viatical settlement

31  purchase agreement.

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                           CS for SB 1530
    311-1791-01




  1         (15)  "Financing entity" means an underwriter,

  2  placement agent, lender, purchaser of securities, or purchaser

  3  of a policy or certificate from a viatical settlement

  4  provider, credit enhancer, or any entity person that may be a

  5  party to a viatical settlement contract and that has direct

  6  ownership in a policy or certificate that is the subject of a

  7  viatical settlement contract, but whose principal sole

  8  activity related to the transaction is providing funds or

  9  credit enhancement to effect the viatical settlement and who

10  has an agreement in writing with one or more licensed viatical

11  settlement providers a licensed viatical settlement provider

12  to act as a participant in a financing transaction. The term

13  does not include a nonaccredited investor, a viatical

14  settlement purchaser, or other natural person. A financing

15  entity may not enter into a viatical settlement contract.

16         Section 2.  Subsection (1) of section 626.9921, Florida

17  Statutes, is amended to read:

18         626.9921  Filing of forms; required procedures;

19  approval.--

20         (1)  A viatical settlement contract form, viatical

21  settlement purchase agreement form, escrow form, or related

22  form may be used in this state only after the viatical

23  settlement provider or any related provider trust has filed

24  the form has been filed with the department and only after the

25  form has been approved by the department.

26         Section 3.  Subsection (3) is added to section

27  626.99235, Florida Statutes, to read:

28         626.99235  Disclosures to viatical settlement

29  purchasers; misrepresentations.--

30         (3)  The requirements of this section also apply to

31  purchases made in the secondary market which involve purchases

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                           CS for SB 1530
    311-1791-01




  1  from any person other than the provider who effectuated the

  2  viatical settlement contract.

  3         Section 4.  Section 626.99236, Florida Statutes, is

  4  amended to read:

  5         626.99236  Further disclosures to viatical settlement

  6  purchasers.--

  7         (1)  No later than 5 days prior to the assignment,

  8  transfer, sale, devise, or bequest of the death benefit or

  9  ownership of all or a portion of the insurance policy or

10  certificate of insurance to the purchaser, the viatical

11  settlement provider and the viatical settlement sales agent,

12  themselves itself or through another person, shall provide in

13  writing the following disclosures to any viatical settlement

14  purchaser:

15         (a)  All the life expectancy certifications obtained by

16  the provider.

17         (b)  The name and address of the insurance company, the

18  policy number, and the date of original issue of the

19  viaticated policy.

20         (c)  The experience and qualifications of the person

21  issuing the life expectancy certification, and that person's

22  relationship to the viatical settlement provider, the viatical

23  settlement broker, the viatical settlement sales agent, and

24  the viator.

25         (d)  The name and address of any person providing

26  escrow services, and that person's relationship to the

27  viatical settlement provider, the viatical settlement broker,

28  the viatical settlement sales agent, and the viator.

29         (e)  The type of life insurance policy offered or sold,

30  including a statement as to whether the policy is whole life,

31  term life, universal life, or a group policy certificate; a

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                           CS for SB 1530
    311-1791-01




  1  statement as to whether the policy is in lapse status or has

  2  lapsed in the last 2 years; and a statement as to whether the

  3  purchaser is entitled to benefits contained in the policy

  4  other than the death benefit of the policy.

  5         (f)  The procedure to be used by the provider to

  6  provide the status of the health condition of the insured to a

  7  purchaser.

  8         (2)  The viatical settlement purchase agreement is

  9  voidable by the purchaser at any time within 3 days after the

10  disclosures mandated by this section are received by the

11  purchaser.

12         (3)  At the time the disclosures in subsection (1) are

13  made, the viatical settlement purchaser shall be advised to

14  seek independent financial advice from a person not

15  compensated by the viatical settlement provider or viatical

16  settlement broker or the viatical settlement sales agent. The

17  viatical settlement purchaser shall sign an affidavit that he

18  or she has received the disclosures and understands their

19  importance.

20         (4)  A viatical settlement purchase transaction in the

21  secondary market which involves purchases from any person

22  other than the provider who effectuated the viatical

23  settlement contract may be completed only through the use of

24  an independent third-party trustee or escrow agent. All funds

25  to be paid by the purchaser must be deposited by the purchaser

26  with the independent third-party trustee or escrow agent. The

27  independent third-party trustee or escrow agent shall not

28  release the deposited funds to the seller until after the

29  3-day voidable period established by subsection (2) has

30  expired.

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                           CS for SB 1530
    311-1791-01




  1         (5)  The requirements of subsections (1), (2), and (3)

  2  also apply to purchases made in the secondary market which

  3  involve purchases occurring from any person other than the

  4  provider who effectuated the viatical settlement contract.

  5         Section 5.  Subsection (10) is added to section

  6  626.9924, Florida Statutes, to read:

  7         626.9924  Viatical settlement contracts; procedures;

  8  rescission.--

  9         (10)  The viatical settlement provider who effectuated

10  the viatical settlement contract with the viator (the "initial

11  provider") is responsible for tracking the insured, including

12  but not limited to, keeping track of the insured's whereabouts

13  and health status, submission of death claims or assisting the

14  beneficiary in the submission of death claims, and the status

15  of the payment of premiums until the death of the insured.

16  This responsibility may be contracted out to a third party;

17  however, the ultimate responsibility remains with the initial

18  provider. This responsibility continues with the initial

19  provider, notwithstanding any transfers of the viaticated

20  policy in the secondary market. This subsection applies only

21  to those viaticated policies that are or are to become the

22  subject of viatical settlement purchase agreements.

23         Section 6.  Subsection (3) is added to section

24  626.99245, Florida Statutes, to read:

25         626.99245  Conflict of regulation of viaticals.--

26         (3)  This section does not affect the requirement of

27  ss. 626.9911(6) and 626.9912(1) that a viatical settlement

28  provider doing business from this state must obtain a viatical

29  settlement license from the department. As used in this

30  subsection, the term "doing business from this state" includes

31  effectuating viatical settlement contracts and effectuating

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                           CS for SB 1530
    311-1791-01




  1  viatical settlement purchase agreements from offices in this

  2  state, regardless of the state of residence of the viator or

  3  the viatical settlement purchaser.

  4         Section 7.  This act shall take effect July 1, 2001.

  5

  6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  7                             SB 1530

  8

  9  Clarifies that the terms "viatical settlement purchase
    agreement" and "viatical settlement purchaser" apply to
10  purchases in the secondary market.

11  Expands the definitions of the terms "related provider trust",
    "special purpose entity" and "financing entity" to provide for
12  mechanisms to finance viatical transactions.

13  Specifies that viatical settlement forms must be filed with
    and approved by the Department of Insurance before such forms
14  may be used in this state.

15  Clarifies that the initial disclosures made to viatical
    settlement purchasers must also be made to purchasers in the
16  secondary market and provides that sales agents be responsible
    for specified disclosures.
17
    Requires the use of an escrow agent or trustee as to viatical
18  settlement purchase transactions in the secondary market to
    guarantee specified rights to purchasers.
19
    Removes provisions which expanded the definition of viatical
20  settlement providers, which extended the grace period for
    unlicensed viatical settlement providers, and which provided
21  that adding a free accelerated death benefit onto a life
    insurance policy did not convert that policy into a health
22  insurance policy.

23

24

25

26

27

28

29

30

31

                                  8

CODING: Words stricken are deletions; words underlined are additions.