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