Amendment
Bill No. 1643
Amendment No. 423543
CHAMBER ACTION
Senate House
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1Representative Llorente offered the following:
2
3     Amendment (with title amendment)
4     Between lines 202 and 203, insert:
5     Section 4.  Section 627.4554, Florida Statutes, is created
6to read:
7     627.4554  Annuity investments by seniors.--
8     (1)  PURPOSE; CONSTRUCTION.--
9     (a)  The purpose of this section is to set forth standards
10and procedures for recommendations to senior consumers that
11result in a transaction involving annuity products to
12appropriately address the insurance needs and financial
13objectives of senior consumers at the time of the transaction.
14     (b)  Nothing in this section shall be construed to create
15or imply a private cause of action for a violation of this
16section.
17     (2)  APPLICATION.--This section applies to any
18recommendation to purchase or exchange an annuity made to a
19senior consumer by an insurance agent, or an insurer where no
20agent is involved, that results in the purchase or exchange
21recommended.
22     (3)  DEFINITIONS.--For purposes of this section:
23     (a)  "Annuity" means a fixed annuity or variable annuity
24that is individually solicited, whether the product is
25classified as an individual annuity or a group annuity.
26     (b)  "Recommendation" means advice provided by an insurance
27agent, or an insurer if no insurance agent is involved, to an
28individual senior consumer that results in a purchase or
29exchange of an annuity in accordance with that advice.
30     (c)  "Senior consumer" means a person 65 years of age or
31older. In the event of a joint purchase by more than one party,
32a purchaser is considered to be a senior consumer if any of the
33parties is age 65 or older.
34     (4)  DUTIES OF INSURERS AND INSURANCE AGENTS.--
35     (a)  In recommending to a senior consumer the purchase of
36an annuity or the exchange of an annuity that results in another
37insurance transaction or series of insurance transactions, an
38insurance agent, or an insurer if no insurance agent is
39involved, shall have reasonable grounds for believing that the
40recommendation is suitable for the senior consumer on the basis
41of the facts disclosed by the senior consumer as to his or her
42investments and other insurance products and as to his or her
43financial situation and needs.
44     (b)  Before executing a purchase or exchange of an annuity
45resulting from a recommendation to a senior consumer, an
46insurance agent, or an insurer if no insurance agent is
47involved, shall make reasonable efforts to obtain information
48concerning the senior consumer's financial status, tax status,
49and investment objectives and such other information used or
50considered to be reasonable by the insurance agent, or the
51insurer if no agent is involved, in making the recommendation.
52     (c)1.  Except as provided under subparagraph 2., an
53insurance agent, or an insurer if no insurance agent is
54involved, shall not have any obligation to a senior consumer
55under paragraph (a) related to any recommendation if the senior
56consumer:
57     a.  Refuses to provide relevant information requested by
58the insurer or insurance agent;
59     b.  Decides to enter into an insurance transaction that is
60not based on a recommendation of the insurer or insurance agent;
61or
62     c.  Fails to provide complete or accurate information.
63     2.  An insurer or insurance agent's recommendation subject
64to subparagraph 1. shall be reasonable under all the
65circumstances actually known to the insurer or insurance agent
66at the time of the recommendation.
67     (d)1.  An insurer or insurance agent shall ensure that a
68system to supervise recommendations that is reasonably designed
69to achieve compliance with this section is established and
70maintained by complying with subparagraphs 3., 4., and 5., or
71shall establish and maintain such a system, including, but not
72limited to:
73     a.  Maintaining written procedures.
74     b.  Conducting periodic reviews of its records that are
75reasonably designed to assist in detecting and preventing
76violations of this section.
77     2.  A managing general agent and an insurance agency shall
78adopt a system established by an insurer to supervise
79recommendations of its insurance agents that is reasonably
80designed to achieve compliance with this section or shall
81establish and maintain such a system, including, but not limited
82to:
83     a.  Maintaining written procedures.
84     b.  Conducting periodic reviews of records that are
85reasonably designed to assist in detecting and preventing
86violations of this section.
87     3.  An insurer may contract with a third party, including a
88managing general agent or an insurance agency, to establish and
89maintain a system of supervision as required by subparagraph 1.
90with respect to insurance agents under contract with or employed
91by the third party.
92     4.  An insurer shall make reasonable inquiry to ensure that
93such third party contracting under subparagraph 3. is performing
94the functions required under subparagraph 1. and shall take such
95action as is reasonable under the circumstances to enforce the
96contractual obligation to perform the functions. An insurer may
97comply with its obligation to make reasonable inquiry by:
98     a.  Annually obtaining a certification from a third party
99senior manager who has responsibility for the delegated
100functions that the manager has a reasonable basis to represent,
101and does represent, that the third party is performing the
102required functions.
103     b.  Based on reasonable selection criteria, periodically
104selecting third parties contracting under subparagraph 3. for a
105review to determine whether the third parties are performing the
106required functions. The insurer shall perform any procedures
107necessary to conduct the review that are reasonable under the
108circumstances.
109     5.  An insurer that contracts with a third party pursuant
110to subparagraph 3. and complies with the requirements specified
111in subparagraph 4. is deemed to have fulfilled its
112responsibilities under subparagraph 1.
113     6.  An insurer, managing general agent, or insurance agency
114is not required by subparagraph 1. or subparagraph 2. to:
115     a.  Review or provide for review of all transactions
116solicited by an insurance agent; or
117     b.  Include in its system of supervision an insurance
118agent's recommendations to senior consumers of products other
119than the annuities offered by the insurer, managing general
120agent, or insurance agency.
121     7.  A managing general agent or insurance agency
122contracting with an insurer pursuant to subparagraph 3. shall
123promptly, when requested by the insurer pursuant to subparagraph
1244., give a certification as described in subparagraph 4. or give
125a clear statement that the managing general agent or insurance
126agency is unable to meet the certification criteria.
127     8.  A person may not provide a certification under sub-
128subparagraph 4.a. unless the person is a senior manager with
129responsibility for the delegated functions and has a reasonable
130basis for making the certification.
131     (5)  MITIGATION OF RESPONSIBILITY.--
132     (a)  The office may order an insurer to take reasonably
133appropriate corrective action for any senior consumer harmed by
134a violation of this section by the insurer or the insurer's
135insurance agent.
136     (b)  The department may order:
137     1.  An insurance agent to take reasonably appropriate
138corrective action for any senior consumer harmed by a violation
139of this section by the insurance agent.
140     2.  A managing general agency or insurance agency that
141employs or contracts with an insurance agent to sell or solicit
142the sale of annuities to senior consumers to take reasonably
143appropriate corrective action for any senior consumer harmed by
144a violation of this section by the insurance agent.
145     (c)  Any applicable penalty under the Florida Insurance
146Code for a violation of paragraph (4)(a), paragraph (4)(b), or
147subparagraph (4)(c)2. may be reduced or eliminated, according to
148a schedule adopted by the office or department, as appropriate,
149if corrective action for the senior consumer was taken promptly
150after a violation was discovered.
151     (6)  RECORDKEEPING.--
152     (a)  Insurers, managing general agents, insurance agencies,
153and insurance agents shall maintain or be able to make available
154to the department or office, as appropriate, records of the
155information collected from the senior consumer and other
156information used in making the recommendations that were the
157basis for insurance transactions for 5 years after the insurance
158transaction is completed by the insurer. An insurer is
159permitted, but shall not be required, to maintain documentation
160on behalf of an insurance agent.
161     (b)  Records required to be maintained by this regulation
162may be maintained in paper, photographic, microprocess,
163magnetic, mechanical or electronic media, or by any process that
164accurately reproduces the actual document.
165     (7)  EXEMPTIONS.--Unless otherwise specifically included,
166this section shall not apply to recommendations involving:
167     (a)  Direct-response solicitations where there is no
168recommendation based on information collected from the senior
169consumer pursuant to this section.
170     (b)  Contracts used to fund:
171     1.  An employee pension or welfare benefit plan that is
172covered by the Employee Retirement and Income Security Act;
173     2.  A plan described by Sections 401(a), 401(k), 403(b),
174408(k), or 408(p) of the Internal Revenue Code of 1986, as
175amended, if established or maintained by an employer;
176     3.  A government or church plan defined in Section 414 of
177the Internal Revenue Code of 1986, as amended, a government or
178church welfare benefit plan, or a deferred compensation plan of
179a state or local government or tax-exempt organization under
180Section 457 of the Internal Revenue Code of 1986, as amended;
181     4.  A nonqualified deferred compensation arrangement
182established or maintained by an employer or plan sponsor;
183     5.  Settlements of or assumptions of liabilities associated
184with personal injury litigation or any dispute or claim
185resolution process; or
186     6.  Prepaid funeral contracts.
187     (8)  APPLICATION TO VARIABLE ANNUITIES.-- Compliance with
188the Conduct Rules of the National Association of Securities
189Dealers in effect on January 1, 2004, satisfies the requirements
190under this section for the recommendation of variable annuities.
191This section does not limit the department's ability to enforce
192the provisions of this section with respect to insurance agents,
193insurance agencies, and managing general agents, or the office's
194office's ability to enforce the provisions of this section
195with respect to insurers.
196
197
198================ T I T L E  A M E N D M E N T =============
199     Remove line 25 and insert:
200an insured; providing criteria and limitations; creating s.
201627.4554, F.S.; providing a purpose; providing application;
202providing definitions; specifying duties of insurers and
203insurance agents relating to making annuity investment
204recommendations to senior consumers; providing requirements;
205limiting responsibility of insurers or insurance agents under
206certain circumstances; requiring a system of compliance and
207supervision; providing for enforcement by the Office of
208Financial Regulation and the Department of Financial Services;
209authorizing the office and department to issue orders to
210mitigate certain responsibilities of insurers or insurance
211agents; providing for reduction or elimination of certain
212penalties under certain circumstances; providing recordkeeping
213requirements; providing exemption from application for variable
214annuities; providing


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