The Florida Senate

627.4554  Annuity investments by seniors.--

(1)  PURPOSE; CONSTRUCTION.--

(a)  The purpose of this section is to set forth standards and procedures for recommendations to senior consumers which result in a transaction involving annuity products to appropriately address the insurance needs and financial objectives of senior consumers at the time of the transaction.

(b)  Nothing in this section shall be construed to create or imply a private cause of action for a violation of this section.

(2)  APPLICATION.--This section applies to any recommendation to purchase or exchange an annuity made to a senior consumer by an insurance agent, or an insurer where no agent is involved, that results in the purchase or exchange recommended.

(3)  DEFINITIONS.--For purposes of this section:

(a)  "Annuity" means a fixed annuity or variable annuity that is individually solicited, whether the product is classified as an individual annuity or a group annuity.

(b)  "Recommendation" means advice provided by an insurance agent, or an insurer if no insurance agent is involved, to an individual senior consumer which results in a purchase or exchange of an annuity in accordance with that advice.

(c)  "Senior consumer" means a person 65 years of age or older. In the event of a joint purchase by more than one party, a purchaser is considered to be a senior consumer if any of the parties is age 65 or older.

(4)  DUTIES OF INSURERS AND INSURANCE AGENTS.--

(a)  In recommending to a senior consumer the purchase of an annuity or the exchange of an annuity that results in another insurance transaction or series of insurance transactions, an insurance agent, or an insurer if no insurance agent is involved, shall have reasonable grounds for believing that the recommendation is suitable for the senior consumer on the basis of the facts disclosed by the senior consumer as to his or her investments and other insurance products and as to his or her financial situation and needs.

(b)  Before executing a purchase or exchange of an annuity resulting from a recommendation to a senior consumer, an insurance agent, or an insurer if no insurance agent is involved, shall make reasonable efforts to obtain information concerning the senior consumer's financial status, tax status, and investment objectives and such other information used or considered to be reasonable by the insurance agent, or the insurer if no agent is involved, in making the recommendation.

(c)1.  Except as provided under subparagraph 2., an insurance agent, or an insurer if no insurance agent is involved, shall not have any obligation to a senior consumer under paragraph (a) related to any recommendation if the senior consumer:

a.  Refuses to provide relevant information requested by the insurer or insurance agent;

b.  Decides to enter into an insurance transaction that is not based on a recommendation of the insurer or insurance agent; or

c.  Fails to provide complete or accurate information.

2.  An insurer or insurance agent's recommendation subject to subparagraph 1. shall be reasonable under all the circumstances actually known to the insurer or insurance agent at the time of the recommendation.

(d)1.  An insurer or insurance agent shall ensure that a system to supervise recommendations which is reasonably designed to achieve compliance with this section is established and maintained by complying with subparagraphs 3., 4., and 5., or shall establish and maintain such a system, including, but not limited to:

a.  Maintaining written procedures.

b.  Conducting periodic reviews of its records that are reasonably designed to assist in detecting and preventing violations of this section.

2.  A managing general agent and an insurance agency shall adopt a system established by an insurer to supervise recommendations of its insurance agents which is reasonably designed to achieve compliance with this section or shall establish and maintain such a system, including, but not limited to:

a.  Maintaining written procedures.

b.  Conducting periodic reviews of records that are reasonably designed to assist in detecting and preventing violations of this section.

3.  An insurer may contract with a third party, including a managing general agent or an insurance agency, to establish and maintain a system of supervision as required by subparagraph 1. with respect to insurance agents under contract with or employed by the third party.

4.  An insurer shall make reasonable inquiry to ensure that such third party contracting under subparagraph 3. is performing the functions required under subparagraph 1. and shall take such action as is reasonable under the circumstances to enforce the contractual obligation to perform the functions. An insurer may comply with its obligation to make reasonable inquiry by:

a.  Annually obtaining a certification from a third party senior manager who has responsibility for the delegated functions that the manager has a reasonable basis to represent, and does represent, that the third party is performing the required functions.

b.  Based on reasonable selection criteria, periodically selecting third parties contracting under subparagraph 3. for a review to determine whether the third parties are performing the required functions. The insurer shall perform any procedures necessary to conduct the review which are reasonable under the circumstances.

5.  An insurer that contracts with a third party pursuant to subparagraph 3. and complies with the requirements specified in subparagraph 4. is deemed to have fulfilled its responsibilities under subparagraph 1.

6.  An insurer, managing general agent, or insurance agency is not required by subparagraph 1. or subparagraph 2. to:

a.  Review or provide for review of all transactions solicited by an insurance agent; or

b.  Include in its system of supervision an insurance agent's recommendations to senior consumers of products other than the annuities offered by the insurer, managing general agent, or insurance agency.

7.  A managing general agent or insurance agency contracting with an insurer pursuant to subparagraph 3. shall promptly, when requested by the insurer pursuant to subparagraph 4., provide a certification as described in subparagraph 4. or provide a clear statement that the managing general agent or insurance agency is unable to meet the certification criteria.

8.  A person may not provide a certification under sub-subparagraph 4.a. unless the person is a senior manager with responsibility for the delegated functions and has a reasonable basis for making the certification.

(5)  MITIGATION OF RESPONSIBILITY.--

(a)  The office may order an insurer to take reasonably appropriate corrective action for any senior consumer harmed by a violation of this section by the insurer or the insurer's insurance agent.

(b)  The department may order:

1.  An insurance agent to take reasonably appropriate corrective action for any senior consumer harmed by a violation of this section by the insurance agent.

2.  A managing general agency or insurance agency that employs or contracts with an insurance agent to sell or solicit the sale of annuities to senior consumers to take reasonably appropriate corrective action for any senior consumer harmed by a violation of this section by the insurance agent.

(c)  Any applicable penalty under the Florida Insurance Code for a violation of paragraph (4)(a), paragraph (4)(b), or subparagraph (4)(c)2. may be reduced or eliminated, according to a schedule adopted by the office or the department, as appropriate, if corrective action for the senior consumer was taken promptly after a violation was discovered.

(6)  RECORDKEEPING.--

(a)  Insurers, managing general agents, insurance agencies, and insurance agents shall maintain or be able to make available to the department or office, as appropriate, records of the information collected from the senior consumer and other information used in making the recommendations that were the basis for insurance transactions for 5 years after the insurance transaction is completed by the insurer. An insurer is permitted, but shall not be required, to maintain documentation on behalf of an insurance agent.

(b)  Records required to be maintained by this regulation may be maintained in paper, photographic, microprocess, magnetic, mechanical, or electronic media, or by any process that accurately reproduces the actual document.

(7)  EXEMPTIONS.--Unless otherwise specifically included, this section does not apply to recommendations involving:

(a)  Direct-response solicitations where there is no recommendation based on information collected from the senior consumer pursuant to this section.

(b)  Contracts used to fund:

1.  An employee pension or welfare benefit plan that is covered by the Employee Retirement and Income Security Act;

2.  A plan described by s. 401(a), s. 401(k), s. 403(b), s. 408(k), or s. 408(p) of the Internal Revenue Code of 1986, as amended, if established or maintained by an employer;

3.  A government or church plan defined in s. 414 of the Internal Revenue Code of 1986, as amended, a government or church welfare benefit plan, or a deferred compensation plan of a state or local government or tax-exempt organization under s. 457 of the Internal Revenue Code of 1986, as amended;

4.  A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor;

5.  Settlements of or assumptions of liabilities associated with personal injury litigation or any dispute or claim resolution process; or

6.  Prepaid funeral contracts.

(8)  APPLICATION TO VARIABLE ANNUITIES.--Compliance with the National Association of Securities Dealers Conduct Rules in effect on January 1, 2004, shall satisfy the requirements under this section for the recommendation of variable annuities. This section does not limit the department's ability to enforce the provisions of this section with respect to insurance agents, insurance agencies, and managing general agents, or the office's ability to enforce the provisions of this section with respect to insurers.

History.--s. 146, ch. 2004-390.