The Florida Department of Financial Services adopted a rule, effective December 25, 2009, mandating that certain DFS forms be completed whenever an insurance producer or insurer recommends a purchase or exchange of an annuity to a senior consumer (a person 65 years of age or older). Two forms were promulgated through rulemaking: (i) an “Annuity Suitability Questionnaire,” which is to be used for all recommended senior annuity sales and exchanges; and (ii) a “Disclosure and Comparison of Annuity Contracts,” which is to be used for all senior replacement transactions (in addition to all other replacement requirements).
During the rulemaking process, insurers requested that the Rule provide an exception that would allow insurers to use their own forms, instead of the DFS forms, if their own forms were substantively similar. The DFS essentially rejected this request, although the final Rule does allow insurers, under limited circumstances and subject to DFS approval (as well as subsequent disapproval by Florida’s Office of Insurance Regulation), to use alternative forms. Following the enactment of the rule (but prior to its December 25, 2009 effective date) a number of insurers requested a 30-day waiver to allow additional time to revise their systems before commencing use of the DFS forms, which limited requests were granted. In addition, one insurer requested a permanent variance from the requirement that specific disclosures be made in the Annuity Suitability Questionnaire form to senior consumers who refuse to provide requested information, with the request conditioned upon the insurer’s agreement not to sell annuities to seniors who refuse to provide requested information. The DFS denied this request, but suggested that the insurer file an alternative Questionnaire for approval without the “refusal” disclosures, as such disclosures would be “not applicable” given the insurer’s undertaking not to effect sales under such circumstances.