1 | Representative Llorente offered the following: |
2 |
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3 | Amendment (with title amendment) |
4 | Between lines 202 and 203, insert: |
5 | Section 4. Section 627.4554, Florida Statutes, is created |
6 | to read: |
7 | 627.4554 Annuity investments by seniors.-- |
8 | (1) PURPOSE; CONSTRUCTION.-- |
9 | (a) The purpose of this section is to set forth standards |
10 | and procedures for recommendations to senior consumers that |
11 | result in a transaction involving annuity products to |
12 | appropriately address the insurance needs and financial |
13 | objectives of senior consumers at the time of the transaction. |
14 | (b) Nothing in this section shall be construed to create |
15 | or imply a private cause of action for a violation of this |
16 | section. |
17 | (2) APPLICATION.--This section applies to any |
18 | recommendation to purchase or exchange an annuity made to a |
19 | senior consumer by an insurance agent, or an insurer where no |
20 | agent is involved, that results in the purchase or exchange |
21 | recommended. |
22 | (3) DEFINITIONS.--For purposes of this section: |
23 | (a) "Annuity" means a fixed annuity or variable annuity |
24 | that is individually solicited, whether the product is |
25 | classified as an individual annuity or a group annuity. |
26 | (b) "Recommendation" means advice provided by an insurance |
27 | agent, or an insurer if no insurance agent is involved, to an |
28 | individual senior consumer that results in a purchase or |
29 | exchange of an annuity in accordance with that advice. |
30 | (c) "Senior consumer" means a person 65 years of age or |
31 | older. In the event of a joint purchase by more than one party, |
32 | a purchaser is considered to be a senior consumer if any of the |
33 | parties is age 65 or older. |
34 | (4) DUTIES OF INSURERS AND INSURANCE AGENTS.-- |
35 | (a) In recommending to a senior consumer the purchase of |
36 | an annuity or the exchange of an annuity that results in another |
37 | insurance transaction or series of insurance transactions, an |
38 | insurance agent, or an insurer if no insurance agent is |
39 | involved, shall have reasonable grounds for believing that the |
40 | recommendation is suitable for the senior consumer on the basis |
41 | of the facts disclosed by the senior consumer as to his or her |
42 | investments and other insurance products and as to his or her |
43 | financial situation and needs. |
44 | (b) Before executing a purchase or exchange of an annuity |
45 | resulting from a recommendation to a senior consumer, an |
46 | insurance agent, or an insurer if no insurance agent is |
47 | involved, shall make reasonable efforts to obtain information |
48 | concerning the senior consumer's financial status, tax status, |
49 | and investment objectives and such other information used or |
50 | considered to be reasonable by the insurance agent, or the |
51 | insurer if no agent is involved, in making the recommendation. |
52 | (c)1. Except as provided under subparagraph 2., an |
53 | insurance agent, or an insurer if no insurance agent is |
54 | involved, shall not have any obligation to a senior consumer |
55 | under paragraph (a) related to any recommendation if the senior |
56 | consumer: |
57 | a. Refuses to provide relevant information requested by |
58 | the insurer or insurance agent; |
59 | b. Decides to enter into an insurance transaction that is |
60 | not based on a recommendation of the insurer or insurance agent; |
61 | or |
62 | c. Fails to provide complete or accurate information. |
63 | 2. An insurer or insurance agent's recommendation subject |
64 | to subparagraph 1. shall be reasonable under all the |
65 | circumstances actually known to the insurer or insurance agent |
66 | at the time of the recommendation. |
67 | (d)1. An insurer or insurance agent shall ensure that a |
68 | system to supervise recommendations that is reasonably designed |
69 | to achieve compliance with this section is established and |
70 | maintained by complying with subparagraphs 3., 4., and 5., or |
71 | shall establish and maintain such a system, including, but not |
72 | limited to: |
73 | a. Maintaining written procedures. |
74 | b. Conducting periodic reviews of its records that are |
75 | reasonably designed to assist in detecting and preventing |
76 | violations of this section. |
77 | 2. A managing general agent and an insurance agency shall |
78 | adopt a system established by an insurer to supervise |
79 | recommendations of its insurance agents that is reasonably |
80 | designed to achieve compliance with this section or shall |
81 | establish and maintain such a system, including, but not limited |
82 | to: |
83 | a. Maintaining written procedures. |
84 | b. Conducting periodic reviews of records that are |
85 | reasonably designed to assist in detecting and preventing |
86 | violations of this section. |
87 | 3. An insurer may contract with a third party, including a |
88 | managing general agent or an insurance agency, to establish and |
89 | maintain a system of supervision as required by subparagraph 1. |
90 | with respect to insurance agents under contract with or employed |
91 | by the third party. |
92 | 4. An insurer shall make reasonable inquiry to ensure that |
93 | such third party contracting under subparagraph 3. is performing |
94 | the functions required under subparagraph 1. and shall take such |
95 | action as is reasonable under the circumstances to enforce the |
96 | contractual obligation to perform the functions. An insurer may |
97 | comply with its obligation to make reasonable inquiry by: |
98 | a. Annually obtaining a certification from a third party |
99 | senior manager who has responsibility for the delegated |
100 | functions that the manager has a reasonable basis to represent, |
101 | and does represent, that the third party is performing the |
102 | required functions. |
103 | b. Based on reasonable selection criteria, periodically |
104 | selecting third parties contracting under subparagraph 3. for a |
105 | review to determine whether the third parties are performing the |
106 | required functions. The insurer shall perform any procedures |
107 | necessary to conduct the review that are reasonable under the |
108 | circumstances. |
109 | 5. An insurer that contracts with a third party pursuant |
110 | to subparagraph 3. and complies with the requirements specified |
111 | in subparagraph 4. is deemed to have fulfilled its |
112 | responsibilities under subparagraph 1. |
113 | 6. An insurer, managing general agent, or insurance agency |
114 | is not required by subparagraph 1. or subparagraph 2. to: |
115 | a. Review or provide for review of all transactions |
116 | solicited by an insurance agent; or |
117 | b. Include in its system of supervision an insurance |
118 | agent's recommendations to senior consumers of products other |
119 | than the annuities offered by the insurer, managing general |
120 | agent, or insurance agency. |
121 | 7. A managing general agent or insurance agency |
122 | contracting with an insurer pursuant to subparagraph 3. shall |
123 | promptly, when requested by the insurer pursuant to subparagraph |
124 | 4., give a certification as described in subparagraph 4. or give |
125 | a clear statement that the managing general agent or insurance |
126 | agency is unable to meet the certification criteria. |
127 | 8. A person may not provide a certification under sub- |
128 | subparagraph 4.a. unless the person is a senior manager with |
129 | responsibility for the delegated functions and has a reasonable |
130 | basis for making the certification. |
131 | (5) MITIGATION OF RESPONSIBILITY.-- |
132 | (a) The office may order an insurer to take reasonably |
133 | appropriate corrective action for any senior consumer harmed by |
134 | a violation of this section by the insurer or the insurer's |
135 | insurance agent. |
136 | (b) The department may order: |
137 | 1. An insurance agent to take reasonably appropriate |
138 | corrective action for any senior consumer harmed by a violation |
139 | of this section by the insurance agent. |
140 | 2. A managing general agency or insurance agency that |
141 | employs or contracts with an insurance agent to sell or solicit |
142 | the sale of annuities to senior consumers to take reasonably |
143 | appropriate corrective action for any senior consumer harmed by |
144 | a violation of this section by the insurance agent. |
145 | (c) Any applicable penalty under the Florida Insurance |
146 | Code for a violation of paragraph (4)(a), paragraph (4)(b), or |
147 | subparagraph (4)(c)2. may be reduced or eliminated, according to |
148 | a schedule adopted by the office or department, as appropriate, |
149 | if corrective action for the senior consumer was taken promptly |
150 | after a violation was discovered. |
151 | (6) RECORDKEEPING.-- |
152 | (a) Insurers, managing general agents, insurance agencies, |
153 | and insurance agents shall maintain or be able to make available |
154 | to the department or office, as appropriate, records of the |
155 | information collected from the senior consumer and other |
156 | information used in making the recommendations that were the |
157 | basis for insurance transactions for 5 years after the insurance |
158 | transaction is completed by the insurer. An insurer is |
159 | permitted, but shall not be required, to maintain documentation |
160 | on behalf of an insurance agent. |
161 | (b) Records required to be maintained by this regulation |
162 | may be maintained in paper, photographic, microprocess, |
163 | magnetic, mechanical or electronic media, or by any process that |
164 | accurately reproduces the actual document. |
165 | (7) EXEMPTIONS.--Unless otherwise specifically included, |
166 | this section shall not apply to recommendations involving: |
167 | (a) Direct-response solicitations where there is no |
168 | recommendation based on information collected from the senior |
169 | consumer pursuant to this section. |
170 | (b) Contracts used to fund: |
171 | 1. An employee pension or welfare benefit plan that is |
172 | covered by the Employee Retirement and Income Security Act; |
173 | 2. A plan described by Sections 401(a), 401(k), 403(b), |
174 | 408(k), or 408(p) of the Internal Revenue Code of 1986, as |
175 | amended, if established or maintained by an employer; |
176 | 3. A government or church plan defined in Section 414 of |
177 | the Internal Revenue Code of 1986, as amended, a government or |
178 | church welfare benefit plan, or a deferred compensation plan of |
179 | a state or local government or tax-exempt organization under |
180 | Section 457 of the Internal Revenue Code of 1986, as amended; |
181 | 4. A nonqualified deferred compensation arrangement |
182 | established or maintained by an employer or plan sponsor; |
183 | 5. Settlements of or assumptions of liabilities associated |
184 | with personal injury litigation or any dispute or claim |
185 | resolution process; or |
186 | 6. Prepaid funeral contracts. |
187 | (8) APPLICATION TO VARIABLE ANNUITIES.-- Compliance with |
188 | the Conduct Rules of the National Association of Securities |
189 | Dealers in effect on January 1, 2004, satisfies the requirements |
190 | under this section for the recommendation of variable annuities. |
191 | This section does not limit the department's ability to enforce |
192 | the provisions of this section with respect to insurance agents, |
193 | insurance agencies, and managing general agents, or the office's |
194 | office's ability to enforce the provisions of this section |
195 | with respect to insurers. |
196 |
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197 |
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198 | ================ T I T L E A M E N D M E N T ============= |
199 | Remove line 25 and insert: |
200 | an insured; providing criteria and limitations; creating s. |
201 | 627.4554, F.S.; providing a purpose; providing application; |
202 | providing definitions; specifying duties of insurers and |
203 | insurance agents relating to making annuity investment |
204 | recommendations to senior consumers; providing requirements; |
205 | limiting responsibility of insurers or insurance agents under |
206 | certain circumstances; requiring a system of compliance and |
207 | supervision; providing for enforcement by the Office of |
208 | Financial Regulation and the Department of Financial Services; |
209 | authorizing the office and department to issue orders to |
210 | mitigate certain responsibilities of insurers or insurance |
211 | agents; providing for reduction or elimination of certain |
212 | penalties under certain circumstances; providing recordkeeping |
213 | requirements; providing exemption from application for variable |
214 | annuities; providing |