Chapter 628

628.347(2e) (2e) Documentation obligation. An insurance intermediary shall, at the time of making a recommendation or sale of an annuity, do all of the following, as applicable:

628.347(2e)(a) (a) If an annuity is recommended, make a written record of any recommendation and the basis for the recommendation subject to this section.

628.347(2e)(b) (b) If a consumer refuses to provide consumer profile information, obtain a signed statement from the consumer, on a form substantially similar to Appendix B of the National Association of Insurance Commissioners Annuity Suitability Model Regulation that shall be posted on the office’s Internet site, that documents all of the following:

628.347(2e)(b)1. 1. A consumer’s refusal to provide consumer profile information.

628.347(2e)(b)2. 2. A consumer’s understanding of the ramifications of not providing his or her consumer profile information or of providing insufficient consumer profile information.

628.347(2e)(c) (c) If an annuity is not recommended, obtain a signed statement from the consumer, on a form substantially similar to Appendix C of the National Association of Insurance Commissioners Annuity Suitability Model Regulation that shall be posted on the office’s Internet site, that acknowledges an annuity transaction is not recommended if the consumer decides to enter into an annuity transaction that is not based on the intermediary’s recommendation.

628.347(3) (3) Insurer’s supervisory responsibility.

628.347(3)(a) (a) An insurer shall establish a supervision system that is reasonably designed to achieve the insurer’s and its insurance intermediaries’ compliance with this section. Under the system, the insurer shall do at least all of the following:

628.347(3)(a)1. 1. Maintain reasonable procedures to inform its insurance intermediaries of the requirements of this section and incorporate the requirements of this section into relevant insurance intermediary training manuals.

628.347(3)(a)2. 2. Establish standards for insurance intermediary product training and maintain reasonable procedures to require its insurance intermediaries to comply with the requirements of sub. (4m).

628.347(3)(a)3. 3. Provide product-specific training and training materials that explain all material features of its annuity products to its insurance intermediaries.

628.347(3)(a)4. 4. Maintain procedures for review of each recommendation before issuance of an annuity that are designed to ensure that there is a reasonable basis to determine that a recommendation would effectively address a consumer’s financial situation, insurance needs, and financial objectives. An insurer’s procedures may apply a screening system for the purpose of identifying selected transactions for additional review. An insurer’s procedures may be accomplished electronically or through other means, including physical review. An electronic or other system may be designed to require additional review only of those transactions identified for additional review by the selection criteria.

628.347(3)(a)5. 5. Maintain reasonable procedures to detect recommendations that do not comply with subs. (2) to (2e), which may include confirmation of consumer profile information, systematic customer surveys, interviews, confirmation letters, producer statements or attestations, and programs of internal monitoring. Nothing in this subdivision prevents an insurer from complying with this subdivision by applying sampling procedures or by confirming consumer profile information after issuance or delivery of the annuity, or both.

628.347(3)(a)6. 6. Annually provide a report to senior management, including to the senior manager responsible for audit functions, that details a review, with appropriate testing, that is reasonably designed to determine the effectiveness of the supervision system, the exceptions found, and corrective action taken or recommended, if any.

628.347(3)(a)7. 7. Establish and maintain reasonable procedures to assess, prior to or upon issuance or delivery of an annuity, whether an insurance intermediary has provided to a consumer the information required to be provided under this section.

628.347(3)(a)8. 8. Establish and maintain reasonable procedures to identify and address suspicious refusals by consumers to provide consumer profile information.

628.347(3)(a)9. 9. Establish and maintain reasonable procedures to identify and eliminate any sales contests, sales quotas, bonuses, and noncash compensation that are based on the sales of specific annuities within a limited period of time. Nothing in this subdivision prohibits the receipt of health insurance, office rent, office support, retirement benefits, or other employee benefits by employees so long as those benefits are not based upon the volume of sales of a specific annuity within a limited period of time.

628.347(3)(am) (am) Except as permitted under sub. (2b) (h), an insurer may not issue an annuity recommended to a consumer unless there is a reasonable basis to believe the annuity will effectively address the particular consumer’s financial situation, insurance needs, and financial objectives based on the consumer’s consumer profile information.

628.347(3)(b) (b)

628.347(3)(b)1. 1. Nothing in this subsection restricts an insurer from contracting for the performance of a function required under par. (a), including maintenance of procedures. An insurer is responsible for taking appropriate corrective action and may be subject to sanctions and penalties under subs. (5) and (6), regardless of whether the insurer contracts for the performance of a function and regardless of the insurer’s compliance with subd. 2.

628.347(3)(b)2. 2. An insurer’s supervision system under par. (a) shall include supervision of any contractual performance under this subsection, including all of the following:

628.347(3)(b)2.a. a. Monitoring and, as appropriate, conducting audits to ensure that the contracted function is properly performed.

628.347(3)(b)2.b. b. Annually obtaining a certification from a senior manager who has responsibility for the contracted function that the manager has a reasonable basis to represent, and does represent, that the function is properly performed.

628.347(3)(c) (c) An insurer is not required to include in its system of supervision an insurance intermediary’s recommendations to consumers of products other than the annuities offered by the insurer or include consideration of, or comparison to, options available to the intermediary or compensation relating to those options other than annuities or other products offered by the insurer.

628.347(3m) (3m) Prohibited acts of intermediary. An insurance intermediary may not dissuade, or attempt to dissuade, a consumer from doing any of the following:

628.347(3m)(a) (a) Truthfully responding to an insurer’s request for confirmation of consumer profile information.

628.347(3m)(b) (b) Filing a complaint.

628.347(3m)(c) (c) Cooperating with the investigation of a complaint.

628.347(4) (4) Comparable standards.

628.347(4)(a) (a) Recommendations and sales of annuities made in compliance with comparable standards shall satisfy the requirements of this section. This subsection applies to all recommendations and sales of annuities made by financial professionals in compliance with business rules, controls, and procedures that satisfy a comparable standard even if the standard does not otherwise apply to the annuity or recommendation.

628.347(4)(b) (b) Nothing in this subsection limits the commissioner’s ability to investigate and enforce the provisions of this section.

628.347(4)(c) (c) Nothing in par. (a) limits an insurer’s obligation to comply with sub. (3) (am), although the insurer may base its analysis on information received from either the financial professional or the entity responsible for supervising the financial professional, including the financial professional’s broker-dealer or an investment adviser registered under federal or state securities law.

628.347(4)(d) (d) In order for par. (a) to apply, an insurer shall do all of the following:

628.347(4)(d)1. 1. Monitor the relevant conduct of the financial professional or the entity responsible for supervising the financial professional, including the financial professional’s broker-dealer or an investment adviser registered under federal or state securities law, using information collected in the normal course of an insurer’s business.

628.347(4)(d)2. 2. Provide to the entity responsible for supervising the financial professional, including the financial professional’s broker-dealer or investment adviser registered under federal or state securities law, the information and reports that are reasonably appropriate to assist the entity with maintaining its supervision system.

628.347(4m) (4m) Insurance intermediary training.

628.347(4m)(a) (a) An insurance intermediary may not solicit the sale of an annuity product unless the insurance intermediary has adequate knowledge of the product to recommend the annuity and the insurance intermediary is in compliance with the insurer’s standards for product training. An insurance intermediary may rely on insurer-provided product-specific training standards and materials to comply with this paragraph.

628.347(4m)(b) (b)

628.347(4m)(b)1. 1.

628.347(4m)(b)1.a. a. An insurance intermediary who engages in the sale of annuity products shall complete a one-time training course approved by the commissioner and provided by an education provider approved by the commissioner.

628.347(4m)(b)1.b. b. Insurance intermediaries who hold a life insurance line of authority on May 1, 2011, and who desire to sell annuities must complete the requirements of this paragraph within 6 months after May 1, 2011. Individuals who obtain a life insurance line of authority on or after May 1, 2011, may not engage in the sale of annuities until they have completed the annuity training course required under this paragraph.

628.347(4m)(b)2. 2. The minimum length of the training required under this paragraph shall be sufficient to qualify for at least 4 continuing education credits, but may be longer.

628.347(4m)(b)3. 3. The training required under this paragraph shall include information on all of the following topics:

628.347(4m)(b)3.a. a. The types of annuities and various classifications of annuities.

628.347(4m)(b)3.b. b. Identification of the parties to an annuity.

628.347(4m)(b)3.c. c. How product-specific annuity contract features affect consumers.

628.347(4m)(b)3.d. d. The application of income taxation of qualified and non-qualified annuities.

628.347(4m)(b)3.e. e. The primary uses of annuities.

628.347(4m)(b)3.f. f. Appropriate standard of conduct, sales practices, and replacement and disclosure requirements.

628.347(4m)(b)4. 4. Providers of annuity training courses intended to comply with this paragraph shall cover all of the topics listed under subd. 3. and may not present any marketing information or provide training on sales techniques or provide specific information about a particular insurer’s products. Additional topics may be offered in conjunction with and in addition to those listed under subd. 3.

628.347(4m)(b)5. 5. A provider of an annuity training course intended to comply with this paragraph shall register as a continuing education provider in this state and comply with the rules and guidelines applicable to insurance intermediary continuing education courses as set forth in rules of the office governing intermediary continuing education requirements.

628.347(4m)(b)6. 6. Annuity training courses may be conducted and completed by classroom or self-study methods in accordance with rules of the office governing intermediary continuing education requirements.

628.347(4m)(b)7. 7. Providers of annuity training shall comply with the reporting requirements and shall issue certificates of completion in accordance with rules of the office governing intermediary continuing education requirements.

628.347(4m)(b)8. 8. Satisfaction of the training requirements of another state that are substantially similar to the requirements of this paragraph satisfies the training requirements of this paragraph in this state.

628.347(4m)(b)9. 9. An insurer shall verify that an insurance intermediary has completed the annuity training course required under this paragraph before allowing the intermediary to sell an annuity product for that insurer. An insurer may satisfy its responsibility under this subdivision by obtaining certificates of completion of the training course or obtaining reports provided by commissioner-sponsored database systems or vendors or from a reasonably reliable commercial database vendor that has a reporting arrangement with approved insurance education providers.

628.347(4m)(b)10. 10. An intermediary who has completed an annuity training course approved by the commissioner prior to October 1, 2022, shall, within 6 months of October 1, 2022, complete any of the following:

628.347(4m)(b)10.a. a. A 4-credit training course approved by the commissioner.

628.347(4m)(b)10.b. b. An additional onetime one-credit training course approved by the commissioner and provided by an education provider, who is approved by the commissioner, on appropriate sales practices and replacement and disclosure requirements under this section.

628.347(4m)(b)11. 11. Satisfaction of the components of the training requirements of a course or courses with components substantially similar to the requirements of this paragraph satisfies the training requirements of this paragraph.

628.347(5) (5) Compliance; remedial measures. An insurer is responsible for compliance with this section. If a violation occurs, either because of the action or inaction of the insurer or its insurance intermediary, the commissioner may do any of the following:

628.347(5)(a) (a) Order an insurer to take reasonably appropriate corrective action for any 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 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 consumers to take reasonably appropriate corrective action for any consumer harmed by a violation of this section by the insurance intermediary.

628.347(5)(d) (d) Impose any appropriate penalties or sanctions.

628.347(6) (6) Penalties; mitigation.

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)(c) (c) The commissioner may by rule provide for the reduction or elimination of a penalty under par. (a) for a violation of this section if corrective action is taken for the consumer promptly after the violation is discovered or the violation is not part of a pattern or practice.

628.347(7) (7) Record keeping.

628.347(7)(a) (a) 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 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(7)(b) (b) Records that are required to be maintained under this section may be maintained in paper, photographic, microprocess, magnetic, or electronic media or by any process that accurately reproduces the actual document.

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 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(8)(b)6. 6. A formal prepaid funeral or burial contract.

628.347(9) (9) No private cause of action. Nothing in this section may be construed to create or imply a private cause of action for a violation of this section or to subject an insurance intermediary or insurer to civil liability under the best interest standard of care under sub. (2) or under standards governing the conduct of a fiduciary or a fiduciary relationship.

628.347(10) (10) No additional licensure. Nothing in this section may be construed to require an insurance intermediary to obtain any license, including a securities license, other than an insurance intermediary license with the appropriate line of authority to sell, solicit, or negotiate insurance in this state in order to fulfill the duties and obligations contained in this section so long as the insurance intermediary does not give advice or provide services that are otherwise subject to securities laws or engage in any other activity requiring another professional license.

628.347 History History: 2003 a. 261; 2007 a. 168; 2009 a. 343; 2011 a. 260; 2015 a. 90; 2021 a. 260; s. 35.17 correction in (4m) (b) 10. a., b.

628.348 628.348 Sale of long-term care insurance.

628.348(1) (1) Training requirement. On and after January 1, 2009, no person may solicit, negotiate, or sell long-term care insurance unless the person is a licensed intermediary and he or she has completed the initial training portion of the training program under s. 49.45 (31) (c) and completes the ongoing training under s. 49.45 (31) (c) every 24 months after completing the initial training.

628.348(2) (2) Insurer verification. Insurers providing long-term care insurance shall do all of the following:

628.348(2)(a) (a) Obtain from intermediaries selling long-term care insurance on behalf of the insurer verification that the intermediary is in compliance with the training requirements under sub. (1).

628.348(2)(b) (b) Maintain records related to the verifications obtained under par. (a).

628.348(2)(c) (c) Make the records under par. (b) available to the commissioner upon request.

628.348 History History: 2007 a. 20, 226.