26.1-34.2-03. Duties of insurers and insurance producers

26.1-34.2-03. Duties of insurers and insurance producers 1. A producer, if making a recommendation of an annuity, shall act in the best interest of the consumer under the circumstances known at the time the recommendation is made, without placing the producer's or the insurer's financial interest ahead of the consumer's interest. A producer has acted in the best interest of the consumer if the producer has satisfied the following obligations regarding care, disclosure, conflict of interest, and documentation: a. (1) The producer, in making a recommendation, shall exercise reasonable diligence, care, and skill to: (a) Know the consumer's financial situation, insurance needs, and financial objectives; (b) Understand the available recommendation options after making a reasonable inquiry into options available to the producer; (c) Have a reasonable basis to believe the recommended option effectively addresses the consumer's financial situation, insurance needs, and financial objectives over the life of the product, as evaluated in light of the consumer profile information; and (d) Communicate the basis or bases of the recommendation. (2) The requirements under this subdivision include making reasonable efforts to obtain consumer profile information from the consumer before the recommendation of an annuity. (3) The requirements under this subdivision require a producer to consider the types of products the producer is authorized and licensed to recommend or sell which address the consumer's financial situation, insurance needs, and financial objectives. This does not require analysis or consideration of any products outside the authority and license of the producer or other possible alternative products or strategies available in the market at the time of the recommendation. A producer must be held to standards applicable to producers with similar authority and licensure. (4) The requirements under this subdivision do not create a fiduciary obligation or relationship and only create a regulatory obligation as established in this chapter. (5) The consumer profile information, characteristics of the insurer, and product costs, rates, benefits, and features are those factors generally relevant in making a determination whether an annuity effectively addresses the consumer's financial situation, insurance needs, and financial objectives, but the level of importance of each factor under the care obligation of this paragraph may vary depending on the facts and circumstances of a particular case. However, each factor may not be considered in isolation. (6) The requirements under this subdivision include having a reasonable basis to believe the consumer would benefit from certain features of the annuity, such as annuitization, death or living benefit, or other insurance-related features. (7) The requirements under this subdivision apply to the particular annuity as a whole and the underlying subaccounts to which funds are allocated at the time of purchase or exchange of an annuity, and riders and similar producer enhancements, if any. (8) The requirements under this subdivision do not mean the annuity with the lowest one-time or multiple occurrence compensation structure necessarily must be recommended. (9) The requirements under this subdivision do not mean the producer has ongoing monitoring obligations under the care obligation under this paragraph, although such an obligation may be owed separately under the terms of a fiduciary, consulting, investment advising, or financial planning agreement between the consumer and the producer. (10) In the case of an exchange or replacement of an annuity, the producer shall consider the whole transaction, which includes taking into consideration whether: (a) The consumer will incur a surrender charge; be subject to the commencement of a new surrender period; lose existing benefits, such as death, living, or other contractual benefits; or be subject to increased fees, investment advisory fees, or charges for riders and similar product enhancements; (b) The replacing product would benefit the consumer substantially in comparison to the replaced product over the life of the product; and (c) The consumer has had another annuity exchange or replacement and, in particular, an exchange or replacement within the preceding sixty months. (11) This chapter may not be construed to require a producer to obtain a license other than a producer license with the appropriate line of authority to sell, solicit, or negotiate insurance in this state, including a securities license, in order to fulfill the duties and obligations contained in this chapter; provided the producer does not give advice or provide services that are otherwise subject to securities laws or engage in any other activity requiring other professional licenses. b. (1) Before the recommendation or sale of an annuity, the producer prominently shall disclose to the consumer on a form substantially similar to a model form designed by the insurance department: (a) A description of the scope and terms of the relationship with the consumer and the role of the producer in the transaction; (b) An affirmative statement on whether the producer is licensed and authorized to sell the following products: [1] Fixed annuities; [2] Fixed indexed annuities; [3] Variable annuities; [4] Life insurance; [5] Mutual funds; [6] Stocks and bonds; and [7] Certificates of deposit; (c) An affirmative statement describing the insurers the producer is authorized, contracted, or appointed, or otherwise able to sell insurance products for, using the following descriptions: [1] One insurer; [2] From two or more insurers; or [3] From two or more insurers although primarily contracted with one insurer; (d) A description of the sources and types of cash compensation and noncash compensation to be received by the producer, including whether the producer is to be compensated for the sale of a recommended annuity by commission as part of premium or other remuneration received from the insurer, intermediary, or other producer or by fee as a result of a contract for advice or consulting services; and (e) A notice of the consumer's right to request additional information regarding cash compensation described in subparagraph d. (2) Upon request of the consumer or the consumer's designated representative, the producer shall disclose: (a) A reasonable estimate of the amount of cash compensation to be received by the producer, which may be stated as a range of amounts or percentages; and (b) Whether the cash compensation is a one-time or multiple occurrence amount, and if a multiple occurrence amount, the frequency and amount of the occurrence, which may be stated as a range of amounts or percentages. (3) Before or at the time of the recommendation or sale of an annuity, the producer must have a reasonable basis to believe the consumer has been informed of various features of the annuity, such as the potential surrender period and surrender charge; potential tax penalty if the consumer sells, exchanges, surrenders or annuitizes the annuity; mortality and expense fees; investment advisory fees; annual fees; potential charges for and features of riders or other options of the annuity; limitations on interest returns; potential changes in nonguaranteed elements of the annuity; insurance and investment components; and market risk. c. A producer shall identify and avoid or reasonably manage and disclose material conflicts of interest, including material conflicts of interest related to an ownership interest. d. At the time of recommendation or sale the producer shall: (1) Make a written record of any recommendation and the basis for the recommendation subject to this chapter; (2) Obtain a consumer-signed statement on a form substantially similar to a model form established by the insurance department: (a) A customer's refusal to provide the consumer profile information, if any; and (b) A customer's understanding of the ramifications of not providing the customer's consumer profile information or providing insufficient consumer profile information; and (3) Obtain a consumer-signed statement on a form substantially similar to a model form established by the insurance department acknowledging the annuity transaction is not recommended if a customer decides to enter an annuity transaction that is not based on the producer's recommendation. e. A requirement applicable to a producer under this subsection applies to every producer who has exercised material control or influence in the making of a recommendation and has received direct compensation as a result of the recommendation or sale, regardless of whether the producer has had any direct contact with the consumer. Activities such as providing or delivering marketing or educational materials, product wholesaling or other back office product support, and general supervision of a producer do not, in and of themselves, constitute material control or influence. 2. a. Except as provided under subdivision b, a producer does not have an obligation to a consumer under subsection 1 or 3 related to any annuity transaction if: (1) A recommendation was not made; (2) A recommendation was made and was later found to have been prepared based on materially inaccurate information provided by the consumer; (3) A consumer refuses to provide relevant consumer profile information and the annuity transaction is not recommended; or (4) A consumer decides to enter an annuity transaction that is not based on a recommendation of the producer. b. An insurer's issuance of an annuity subject to subdivision a must be reasonable under all the circumstances actually known to the insurer at the time the annuity is issued. 3. a. Except as permitted under subdivision b, an insurer may not issue an annuity recommended to a consumer unless there is a reasonable basis to believe the annuity would effectively address the particular consumer's financial situation, insurance needs, and financial objectives based on the consumer's consumer profile information. b. An insurer shall establish and maintain a supervision system that is reasonably designed to achieve the insurer's and the insurer's producers' compliance with this chapter, including the following: (1) The insurer shall establish and maintain reasonable procedures to inform the insurer's producers of the requirements of this chapter and shall incorporate the requirements of this chapter into relevant producer training manuals. (2) The insurer shall establish and maintain standards for insurance producer product training and shall maintain reasonable procedures to require the insurer's producers to comply with the requirements of section 26.1-34.2-03.1. (3) The insurer shall provide product-specific training and training materials that explain all material features of the insurer's annuity products to the insurer's producers. (4) The insurer shall establish and maintain procedures for the review of each recommendation before issuance of an annuity which are designed to ensure there is a reasonable basis to determine that the recommended annuity effectively would address the particular consumer's financial situation, insurance needs, and financial objectives. Such review procedures may apply a screening system for the purpose of identifying selected transactions for additional review and may be accomplished electronically or through other means, including physical review. Such an electronic or other system may be designed to require additional review only of those transactions identified for additional review by the selection criteria. (5) The insurer shall establish and maintain reasonable procedures to detect recommendations that are not in compliance with this paragraph and paragraphs 1, 2, and 4. This may include confirmation of the consumer profile information, systematic customer surveys, producer and consumer interviews, confirmation letters, producer statements or attestations, and programs of internal monitoring. This paragraph does not prevent an insurer from complying with this paragraph by applying sampling procedures or by confirming the consumer profile information or other required information under this section after issuance or delivery of the annuity. (6) The insurer shall establish and maintain reasonable procedures to assess, before or upon issuance or delivery of an annuity, whether a producer has provided to the customer the information required to be provided under this section. (7) The insurer shall establish and maintain reasonable procedures to identify and address suspicious consumer refusals to provide consumer profile information. (8) The insurer shall 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. The requirements of this subdivision are not intended to prohibit the receipt of health insurance, office rent, office support, retirement benefits, or other employee benefits by employees as long as those benefits are not based on the volume of sales of a specific annuity within a limited period of time. (9) Annually, the insurer shall provide a written report to senior management, including to the senior manager responsible for audit functions, which details a review, with appropriate testing, reasonably designed to determine the effectiveness of the supervision system, the exceptions found, and corrective action taken or recommended, if any. c. (1) This subsection does not restrict an insurer from contracting for performance of a function, including maintenance of procedures, required under this subdivision. An insurer is responsible for taking appropriate corrective action and may be subject to sanctions and penalties pursuant to section 26.1-34.2-04, regardless of whether the insurer contracts for performance of a function and regardless of the insurer's compliance with paragraph 2. (2) An insurer's supervision system under this subsection must include supervision of contractual performance under this subsection. This includes the following: (a) Monitoring and, as appropriate, conducting audits to assure that the contracted function is properly performed; and (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. d. An insurer is not required to include in the insurer's system of supervision: (1) A producer's recommendations to consumers of products other than the annuities offered by the insurer; or (2) Include consideration of or comparison to options available to the producer or compensation relating to those options other than annuities or other products offered by the insurer. 4. A producer or an insurer may not dissuade, or attempt to dissuade, a consumer from: a. Responding truthfully to an insurer's request for confirmation of the consumer profile information; b. Filing a complaint; or c. Cooperating with the investigation of a complaint. 5. a. Recommendations and sales of annuities made in compliance with comparable standards must satisfy the requirements under this chapter. This subsection applies to 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 would not otherwise apply to the product or recommendation at issue. However, this subsection does not limit the insurance commissioner's ability to enforce, including investigate, this chapter. This subdivision does not limit the insurer's obligation to comply with subdivision a of subsection 3 although the insurer may base the insurer's analysis on information received from either the financial professional or the entity supervising the financial professional. b. For subdivision a to apply, an insurer shall: (1) Monitor relevant conduct of the financial professional seeking to rely upon subdivision a or the entity responsible for supervising the financial professional, such as the financial professional's broker-dealer or an investment advisor registered under federal or state securities laws using information collected in the normal course of an insurer's business; and (2) Provide to the entity responsible for supervising the financial professional seeking to rely on subdivision a, such as the financial professional's broker- dealer or investment advisor registered under federal or state securities laws, information and reports that are reasonably appropriate to assist the entity to maintain its supervision system.