628.347
628.347
Suitability of annuity sales to senior consumers. 628.347(1)(a)
(a) "Annuity" means a fixed or variable annuity that is individually solicited, whether the product is classified as individual or group.
628.347(1)(b)
(b) "Recommendation" means advice provided by an insurance intermediary, or an insurer if no intermediary is involved, to an individual senior consumer that results in the purchase or exchange of an annuity in accordance with that advice.
628.347(1)(c)
(c) "Senior consumer" means a person who is 65 years of age or older. The term includes any joint owner of an annuity who is less than 65 years of age if at least one joint owner is 65 years of age or older, and any prospective joint purchaser of an annuity who is less than 65 years of age if at least one prospective joint purchaser is 65 years of age or older.
628.347(2)
(2) Duties of insurers and insurance intermediaries with regard to recommendations. 628.347(2)(a)(a) Except as provided in
par. (c), an insurance intermediary, or insurer if no intermediary is involved, may not recommend to a senior consumer the purchase or exchange of an annuity if the recommendation results in an insurance transaction or series of insurance transactions unless the intermediary or insurer has reasonable grounds to believe that the recommendation is suitable for the senior consumer on the basis of facts disclosed by the senior consumer as to his or her investments, other insurance products, and financial situation and needs.
628.347(2)(b)
(b) Before making a recommendation described in
par. (a), an insurance intermediary, or insurer if no intermediary is involved, shall make reasonable efforts to obtain information concerning all of the following:
628.347(2)(b)4.
4. Any other information that is reasonably appropriate for determining the suitability of a recommendation to the senior consumer.
628.347(2)(c)
(c) An insurance intermediary, or insurer if no intermediary is involved, has no obligation under
par. (a) to a senior consumer related to a recommendation if the senior consumer does any of the following:
628.347(2)(c)1.
1. Refuses to provide relevant information requested by the insurer or insurance intermediary.
628.347(2)(c)3.
3. Decides to enter into an insurance transaction that is not based on a recommendation of the insurer or insurance intermediary.
628.347(2)(d)
(d) Any recommendation of an insurer or insurance intermediary that, under
par. (c), is not subject to the obligation under
par. (a) shall be reasonable under all circumstances actually known to the insurer or insurance intermediary at the time the recommendation is made.
628.347(3)
(3) Insurer's supervisory responsibility. 628.347(3)(a)(a) An insurer either shall ensure that a system to supervise recommendations that is reasonably designed to achieve compliance with this section is established and maintained by complying with
pars. (c) to
(e), or shall establish and maintain such a system, which shall include at least all of the following:
628.347(3)(a)2.
2. Conducting periodic reviews of its records that are reasonably designed to assist in detecting and preventing violations of this section.
628.347(3)(b)
(b) A general agent or independent agency either shall adopt a system established by an insurer to supervise recommendations of its insurance intermediaries that is reasonably designed to achieve compliance with this section, or shall establish and maintain such a system, which shall include at least all of the following:
628.347(3)(b)2.
2. Conducting periodic reviews of records that are reasonably designed to assist in detecting and preventing violations of this section.
628.347(3)(c)
(c) An insurer may contract with a 3rd party, which may be a general agent or independent agency, to establish and maintain a system of supervision as required under
par. (a) with respect to insurance intermediaries under contract with or employed by the 3rd party.
628.347(3)(d)
(d) An insurer shall make reasonable inquiry to ensure that any 3rd party with which the insurer contracts under
par. (c) is performing the functions required under
par. (a) 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 in all of the following ways:
628.347(3)(d)1.
1. The insurer annually obtains from a senior manager of the 3rd party who has responsibility for the delegated functions a representation that the 3rd party is performing the required functions and that the senior manager has a reasonable basis for making the representation.
628.347(3)(d)2.
2. The insurer, based on reasonable selection criteria, periodically selects 3rd parties contracting under
par. (c) for reviews to determine whether the 3rd parties are performing the required functions. The insurer shall perform those procedures to conduct the reviews that are reasonable under the circumstances.
628.347(3)(e)
(e) An insurer that contracts with a 3rd party under
par. (c) and that complies with the supervisory requirement under
par. (d) satisfies its responsibilities under
par. (a) as to insurance intermediaries under contract with or employed by the 3rd party.
628.347(3)(f)
(f) An insurer is not required under
par. (a), and a general agent or independent agency is not required under
par. (b), to do any of the following:
628.347(3)(f)1.
1. Review, or provide for the review of, all insurance intermediary solicited transactions.
628.347(3)(f)2.
2. Include in its system of supervision an insurance intermediary's recommendations made to senior consumers of products other than annuities offered by the insurer, general agent, or independent agency.
628.347(3)(g)
(g) A general agent or independent agency contracting with an insurer under
par. (c) shall promptly, upon request by the insurer under
par. (d), provide a representation as described in
par. (d) 1. or give a clear statement that it is unable to meet the representation criteria.
628.347(3)(h)
(h) No person may provide a representation under
par. (d) 1. unless the person satisfies all of the following:
628.347(3)(h)1.
1. The person is a senior manager with responsibility for the delegated functions.
628.347(3)(h)2.
2. The person has a reasonable basis for making the representation.
628.347(4)
(4) National Association of Securities Dealers Conduct Rules. Compliance with the National Association of Securities Dealers Conduct Rules pertaining to suitability satisfies the requirements under
sub. (2) for the recommendation of variable annuities. Nothing in this subsection, however, limits the commissioner's ability to enforce this section.
628.347(5)
(5) Remedial measures. The commissioner may do any of the following:
628.347(5)(a)
(a) 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 intermediary.
628.347(5)(b)
(b) Order an insurance intermediary to take reasonably appropriate corrective action for any senior consumer harmed by a violation of this section by the insurance intermediary.
628.347(5)(c)
(c) Order a general agent or independent agency that employs or contracts with an insurance intermediary 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 intermediary.
628.347(6)(a)(a) Any person who violates this section is subject to the penalties provided under
s. 601.64, suspension or revocation of a license or certificate of authority, and an order under
s. 601.41 (4).
628.347(6)(b)
(b) A penalty under
par. (a) for a violation of
sub. (2) (a),
(b), or
(d), including a forfeiture, may be reduced or eliminated to the extent provided by rule of the commissioner if corrective action is taken for the senior consumer promptly after the violation is discovered.
628.347(6)(c)
(c) The commissioner may promulgate rules related to the reduction or elimination of penalties for violations of this section on the basis of prompt action taken to correct any harm caused to senior consumers by the violations.
628.347(7)
(7) Record keeping. An insurer and an insurance intermediary, including a general agent and an independent agency, shall maintain, or be able to make available to the commissioner, records of the information collected from a senior consumer and other information used in making a recommendation that was the basis for an insurance transaction for 6 years after the insurance transaction is completed by the insurer, except as otherwise permitted by the commissioner by rule. An insurer may, but is not required to, maintain records on behalf of an insurance intermediary, including a general agent and an independent agency.
628.347(8)
(8) Exemptions. This section does not apply to any of the following:
628.347(8)(a)
(a) Direct response solicitations in which no recommendation is made based on information collected from the senior consumer.
628.347(8)(b)
(b) Recommendations related to contracts used to fund any of the following:
628.347(8)(b)1.
1. An employee pension or welfare benefit plan that is covered by the federal Employee Retirement and Income Security Act.
628.347(8)(b)2.
2. A plan described in section
401 (a) or (k),
403 (b), or
408 (k) or (p) of the Internal Revenue Code, if the plan is established or maintained by an employer.
628.347(8)(b)3.
3. A government or church plan as defined in section
414 of the Internal Revenue Code, a government or church welfare benefit plan, or a deferred compensation plan of a state or local government or tax exempt organization under section
457 of the Internal Revenue Code.
628.347(8)(b)4.
4. A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor.
628.347(8)(b)5.
5. A settlement or assumption of liability associated with personal injury litigation or any dispute or claim resolution process.
628.347 History
History: 2003 a. 261.
628.35
628.35
Prohibition of exclusive contracts. No insurer may make, enforce or participate in any contract or other arrangement for exclusive services of a health care provider that prevents or materially inhibits any other insurer authorized to do business in this state from entering into a contract or other arrangement with any health care provider of services that the other insurer has contracted to supply or for which it has promised indemnity under its insurance contracts, unless:
628.35(1)
(1) The health care provider is an individual who is an employee of the insurer;
628.35(2)
(2) The health care provider is a corporation owned by the insurer;
628.35(3)
(3) The health care provider uses the insurer's name under a franchise arrangement; or
628.35(4)
(4) The case is within a class for which the commissioner by rule establishes an exception after a finding that the contract or other arrangement does not seriously impede the effective operation of a legitimate insurance business by other insurers.
628.35 History
History: 1975 c. 223,
371,
422.
628.36
628.36
Limitations on corporations supplying health care services. 628.36(1)(1)
Payment methods. Any corporation operating a voluntary health care plan may pay health care professionals on a salary, per patient or fee-for-service basis to provide health care to policyholders or beneficiaries of the corporation.
628.36(2)
(2) Discrimination against professionals. 628.36(2)(a)1.
1. "Health care plan" means an insurance contract providing coverage of health care expenses.
628.36(2)(a)2.
2. "Provider" means a health care professional, a health care facility or a health care service or organization.
628.36(2)(b)1.1. Except for health maintenance organizations, preferred provider plans and limited service health organizations, no health care plan may prevent any person covered under the plan from choosing freely among providers who have agreed to participate in the plan and abide by its terms, except by requiring the person covered to select primary providers to be used when reasonably possible.
628.36(2)(b)2.
2. No provider may be required to participate exclusively in a health care plan as a condition of participation in it.
628.36(2)(b)3.
3. Except as provided in
subd. 4., no provider may be denied the opportunity to participate in a health care plan, other than a health maintenance organization, a limited service health organization or a preferred provider plan, under the terms of the plan.
628.36(2)(b)4.
4. Any health care plan may exclude a provider from participation in the health care plan for cause related to the practice of his or her profession.
628.36(2)(b)5.
5. All health care plans, including health maintenance organizations, limited service health organizations and preferred provider plans are subject to
s. 632.87 (3).
628.36(2m)(a)2m.
2m. "Pharmaceutical services" do not include the administration of a drug product or device or vaccine under
s. 450.035.
628.36(2m)(e)1.1. A health maintenance organization, limited service health organization or preferred provider plan that provides coverage of pharmaceutical services when performed by one or more pharmacists who are selected by the organization or plan but who are not full-time salaried employees or partners of the organization or plan shall provide an annual period of at least 30 days during which any pharmacist registered under
ch. 450 may elect to participate in the health maintenance organization, limited service health organization or preferred provider plan under its terms as a selected provider for at least one year.
628.36(2m)(e)2.
2. Except as provided in
subd. 3.,
subd. 1. applies to health maintenance organizations on and after May 10, 1984. Except as provided in
subd. 4.,
subd. 1. applies to limited service health organizations and preferred provider plans on or after April 28, 1990.
628.36(2m)(e)3.
3. If compliance with the requirements of
subd. 1. during the period specified in
subd. 2. would impair any provision of a contract between a health maintenance organization and any other person, and if the contract provision was in existence prior to May 10, 1984, then immediately after the expiration of all such contract provisions the health maintenance organization shall comply with the requirements of
subd. 1.
628.36(2m)(e)4.
4. If compliance with the requirements of
subd. 1. during the period specified in
subd. 2. would impair any provision of a contract between a limited service health organization or preferred provider plan and any other person, and if the contract was in existence prior to April 28, 1990, then immediately after the expiration of all such contract provisions the limited service health organization or preferred provider plan shall comply with the requirements of
subd. 1.
628.36(3)
(3) Exemption by rule. By rule the commissioner may exempt from the application of any part of
subs. (1) to
(2m) plans which provide innovative approaches to the delivery of health care or which are designed to contain health care costs, and which cannot operate successfully consistent with all of the provisions in
subs. (1) to
(2m). The commissioner may promulgate such a rule only if on a finding that the interests of the public require such plans as an experiment, to supply health care services that are not otherwise available in adequate quantity or quality, or to contain health care costs. The promulgated rule shall be as narrow as is compatible with the success of the plans.
628.36(4)
(4) Facilitating cost-effective provision of health care services. 628.36(4)(a)(a) The commissioner shall provide information and assistance to the department of employee trust funds, employers and their employees, providers of health care services and members of the public, as provided in
par. (b), for the following purposes:
628.36(4)(a)1.
1. To facilitate the development and implementation of health care plans that provide innovative approaches to the delivery of health care services or that are designed to contain health care costs.
