The New Best Interest Standard for Annuity Sales: An Overview of Revisions to the NAIC’s Model Regulation #275

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In February 2020, the National Association of Insurance Commissioners (NAIC) approved revisions to its Suitability in Annuity Transactions Model Regulation (#275). The revised regulation requires that all annuity recommendations by producers and insurers meet a “best interest” standard.

Under the new model regulation, insurance producers and carriers may not place their financial interests ahead of the consumer’s interest when recommending an annuity product. Furthermore, insurers are required to establish and maintain a system to supervise producer recommendations, so the insurance needs and financial objectives of consumers are addressed effectively. The new model also prohibits an insurer from issuing an annuity product to a consumer unless the insurer has a reasonable basis to believe the annuity would address the consumer’s insurance needs and financial objectives effectively.

The NAIC’s new best interest standard uses the Securities and Exchange Commission’s recent Regulation Best Interest as a model. For the past 10 years, insurance regulators have used a “suitability” standard, similar to the Financial Industry Regulatory Authority’s (FINRA), to regulate annuities sales. The best-interest standard on sales and recommendations of annuity products by insurance producers is a higher standard than the 2010 model regulation’s suitability requirements, but it does not reach the level of a fiduciary duty.

A producer would be deemed to have acted in the consumer’s best interest if the producer meets the obligations of care, disclosure, conflict of interest, and documentation that are detailed in the model regulation. Insurance companies are required to supervise producer compliance with this rule and to maintain compensation systems that will not undermine the best interest of clients.

Like the 2010 model regulation, the new model regulation requires that producers be trained in its requirements. For producers new to selling annuities, the new model calls for a four-hour training course. For veteran producers who were trained under the old model regulation, the new model regulation allows for a one-hour update course, although the regulation makes this option available only for the first six months after their state adopts the new rule (states may vary this time period).

The new model regulation applies only to the recommendation or sale of an annuity. It also provides for various exemptions from its requirements, such as exemptions for certain group annuities. The model also provides a safe harbor for sales and recommendations made in compliance with “comparable standards,” for example, those that comply with applicable SEC or FINRA securities requirements for broker-dealers and registered investment advisers.

The NAIC recommends that states amend their annuity sales regulations in response to the new model regulation. The NAIC’s 2010 Model Regulation was adopted by 45 states and the District of Colombia in the wake of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. Previous projections suggested that half the states could adopt the model regulation in some form by the end of 2020,  but may be delayed due to the COVID-19 pandemic.

An Important Note

This following content summarizes and highlights key revisions made to the NAIC’s model regulation #275—it is not the complete version of the model regulation itself. Please see the full text of the revised and complete model regulation here. Additional information on Model Regulation #275 is available here.

Best Interest Obligation: Reasonable Diligence, Care, and Skill

Under the NAIC’s revised Suitability in Annuity Transactions Model Regulation (#275), producers must now “exercise reasonable diligence, care, and skill” when recommending an annuity and 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’s obligations regarding care, disclosure, conflict of interest, and documentation include making appropriate recommendations that consider the consumer’s financial situation, insurance needs, and financial objectives, and reasonable efforts must be made to obtain consumer profile information from the consumer before making a recommendation.

Thus, a producer must be familiar with the annuity options available. Of those annuities the producer is authorized and licensed to sell, the producer must have 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. The producer must also be able to communicate the basis of the recommendation.

Consumer profile information; characteristics of the insurer; and product costs, rates, benefits, and features are generally relevant factors in determining whether an annuity addresses a consumer’s financial situation, insurance needs, and financial objectives. While each factor’s importance may vary depending on a consumer’s circumstances, each factor may not be considered in isolation.

Producers must make an effort to gather customer profile information to determine whether a recommendation addresses the consumer’s financial situation, insurance needs, and financial objectives, including age, income, assets and liabilities, financial experience, objectives, time horizon, use of the annuity, liquidity needs, risk tolerance, and tax status.

When exchanging or replacing an annuity, a producer must consider the whole transaction, factoring in surrender charges, commencement of a new surrender period, loss of existing benefits, increased fees, and other exchanges or replacements made within the previous five years. The new product must substantially benefit the consumer in comparison to the replaced product for its duration.

Disclosures

The model regulation requires specific disclosures of the customer relationship between the producer and consumer, the products the producer is authorized or licensed to sell, and the producer’s compensation. The model regulation requires the use of a disclosure form (“Insurance Agent [Producer] Disclosure for Annuities”)signed by both the producer and customer; an example is provided as an appendix.

Customer relationship: Before making a recommendation or selling an annuity, a producer must disclose in writing the scope and terms of the relationship with the consumer and the producer’s role in the transaction.

Products: The producer must state which products the producer is licensed and authorized to sell (fixed, fixed-indexed, and variable annuities; life insurance; mutual funds; stocks and bonds; and certificates of deposit).

Insurers: The producer must provide a statement describing the insurers for which the producer is authorized, contracted, appointed, or otherwise able to sell insurance products by indicating one insurer, from two or more insurers, or from two or more insurers although primarily contracted with one insurer.

Compensation: The producer must also describe the sources and types of cash and non-cash compensation received, including whether the producer is to be compensated for the sale of a recommended annuity by commission as part of a premium or other remuneration received from the insurer, intermediary or other producer or by a fee as a result of a contract for advice or consulting services; and a notice of the consumer’s right to request additional information regarding cash compensation. Upon request, the producer must disclose a reasonable estimate of the amount of cash compensation to be received, which may be stated as a range of amounts or percentages; and whether it’s a one-time or multiple occurrence amount, and if a multiple occurrence amount, the frequency and amount, which may be stated as a range of amounts or percentages.

Conflicts of Interest: 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.

Documentation: At the time of recommendation or sale, a producer must document any recommendation and its basis in writing. Should a customer refuse to provide consumer profile information, the producer must obtain a statement signed by the consumer that documents the customer’s refusal and the customer’s understanding of the implications of not providing consumer profile information. The model regulation provides a sample form (“Consumer Refusal to Provide Information”) as an appendix. Furthermore, a producer must obtain a statement signed by the consumer acknowledging that the annuity transaction is not recommended if a customer decides to buy an annuity that is not recommended by the producer.

Application of best interest: Any requirement that applies to one producer must apply to each producer who was involved in the recommendation and has received direct compensation as a result, regardless of consumer contact. Providing 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.

Transactions not based on a recommendation: A producer shall have no obligation to a consumer if no recommendation is made, if a recommendation was made and was later found to have been based on materially inaccurate information provided by the consumer, if a consumer refuses to provide relevant consumer profile information and the annuity transaction is not recommended. If a consumer decides to purchase an annuity transaction that is not based on a recommendation, a disclosure must be made in writing and signed by both the producer and consumer. The model regulation provides a sample form (“Consumer Decision to Purchase an Annuity NOT Based on a Recommendation”) as an appendix.

Reasonable basis: Except as described under transactions not based on a recommendation, an insurer may not issue a recommended annuity unless there is a reasonable basis to believe it would effectively address a consumer’s financial situation, insurance needs, and financial objectives, based on the consumer’s consumer profile information.

Supervision System

An insurer must establish and maintain a supervision system that is reasonably designed to achieve the insurer’s and its producers’ compliance with model regulation #275, including:

Review

The insurer shall establish and maintain procedures for the review of each annuity recommendation prior to issuance that are designed to ensure that there is a reasonable basis to determine that the recommended annuity would effectively address the particular consumer’s financial situation, insurance needs and financial objectives.

Non-compliance detection

The insurer shall establish and maintain reasonable procedures to detect recommendations that are not in compliance, including confirmation of the consumer’s profile information, systematic customer surveys, producer and consumer interviews, confirmation letters, producer statements or attestations, and internal monitoring. The insurer shall establish and maintain reasonable procedures to identify and address suspicious consumer refusals to provide consumer profile information.

Verification

The insurer shall establish and maintain reasonable procedures to assess, prior to or upon issuance or delivery of an annuity, whether a producer has provided to the consumer the required information.

Sales incentives

The insurer shall establish and maintain reasonable procedures to identify and eliminate any sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sales of specific annuities within limited periods of time. The insurer is not required to make its compensation system incentive-neutral with those of other carriers that may have different system. (But differences between carriers are still subject to the rule that prohibits placing the producer’s or insurer’s interests ahead of the consumer’s.)

Effectiveness of supervision program

The insurer shall annually 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, exceptions found, and any corrective action recommended or taken.

Safe Harbor

Recommendations and sales of annuities made by registered broker-dealers, investment advisers, or a plan fiduciary in compliance with business rules, controls, and procedures that conform to a comparable standard, such as the SEC’s Regulation Best Interest, shall satisfy the requirements under this regulation as long as the insurer monitors the relevant conduct of the financial professional or the entity responsible for supervising the financial professional.

Compliance Mitigation, Penalties, Enforcement

Insurers are responsible for compliance with this regulation. If a violation occurs, the commissioner may order an insurer or agency to take reasonably appropriate corrective action for any consumer harmed by an insurer’s failure to comply or that of a producer or contracted agent for the insurer. Appropriate penalties and sanctions may apply as well. Applicable penalties for a violation may be reduced or eliminated if corrective action is taken for the consumer is taken promptly and if the violation is not part of a pattern or practice.

Recordkeeping

Insurers, general agents, independent agencies, and producers must maintain records of information collected from the consumer; disclosures made to the consumer, including summaries of oral disclosures; and other information used in making the recommendations that were the basis for insurance transactions. Each state will specify the required number of years after the annuity transaction is completed that records are to be kept.

Producer Training

A producer who has completed an annuity training course approved by the department of insurance prior to the effective date of the amended regulation must complete either a new four-credit training course approved by the department of insurance or an additional one-time, one-credit training course approved by the department of insurance and offered by an approved education provider. The training must focus on appropriate sales practices, replacement transactions, and disclosure requirements in the amended regulation. An insurer must verify that a producer has completed the required annuity training course before allowing the producer to sell an annuity product.

RegEd offers the two courses that meet the requirements of the NAIC’s revised model regulation #275, which will be submitted for approval and continuing education (CE) credit in each state as their versions of this regulation become effective:

Recommending Annuities Under the NAIC Best Interest Standard (490)

This is the standard four-hour training course required of insurance agents before they may sell annuities. It details the standard of care agents must adhere to when recommending annuities to clients. It discusses the fact finding and analysis required to make a recommendation that is in the best interest of the client. It discusses conflicts of interests, disclosures to clients, and documentation. In addition, the course reviews the operations of different types of annuities and how they are used to meet different client needs.

Recommending Annuities Under the New NAIC Best Interest Standard—One-Hour Update Course (491)

Veteran insurance agents who previously qualified to sell annuities under their state’s version of the NAIC annuity suitability regulation may take this one-hour update course to qualify to sell annuities under the new NAIC best-interest standard. This course details the standard of care agents must adhere to when recommending annuities to clients. It discusses the fact finding and analysis required to make a recommendation that is in the best interest of the client. It discusses conflicts of interests, disclosures to clients, and documentation.

RegEd is ready to assist insurance companies manage the process of revising the standards of the Suitability in Annuity Transactions Model Regulation (#275), including tracking recommendations, managing disclosures, documentation, and other compliance obligations, supported by efficient and enabling technology and people with deep experience in the process. For more information: sales@reged.com, www.reged.com, or 800-334-8322.

About the Authors

Brandi Brown

Brandi Brown is the Senior Vice President of Regulatory Affairs at RegEd, Inc.

Margie Webber

Margie Webber is the Director, Regulatory Compliance BD/IA at RegEd, Inc.

RegEd Announces Expansion of Enterprise Compliance Platform with Gifts, Gratuities and Contributions Management

The all-new enterprise solution is the industry’s only for-purpose technology for the submission, approval, tracking and reconciliation of gifts, entertainment, non-cash compensation and political contributions.

RegEd, the leading provider of compliance technology solutions for the financial services industry, has announced the expansion of its Enterprise Compliance Management platform to address the multitude of requirements associated with gifts, gratuities and contributions management. Gifts, Gratuities and Contributions Management (GGC) leverages RegEd’s powerful platform capabilities to enable comprehensive monitoring, workflow-directed task management, real-time alerts to exceptions, and sophisticated hierarchy management to enable firms to drive efficiency throughout the end-to-end tracking of gifts, entertainment, non-cash compensation and political contributions.

 “The regulatory environment and customer and investor expectations put firms under significant pressure to monitor, mitigate and prevent employee and sales behaviors that fail to serve the best interest of clients and investors,” commented Ethan Floyd, Chief Product Officer at RegEd. “Tracking gifts, entertainment and non-cash compensation across hundreds to tens of thousands of employees presents a daunting challenge. Fit-for-purpose technology is needed for streamlined management of request processes, compliance monitoring and exception management associated with the firm’s conflict of interest policies.”

The solution centralizes the management of submissions and approvals, enabling compliance managers and other stakeholders to holistically monitor the exchange of gifts, gratuities, contributions, and other non-cash compensation, track the preclearance approval process and identify limit violations. Comprehensive reporting and full audit trails provide valuable documentation to satisfy requests from internal stakeholders and regulators.

Gifts, Gratuities and Contributions is part of a fully integrated suite of for-purpose conflicts of interest solutions, which enable firms to seamlessly monitor, identify and remedy conflicts and code of conduct issues among the firm’s employee population and third parties. The solution suite comprises robust questionnaires modules which can be implemented individually or together, including GGC, Outside Business Activities and Personal Securities Account Management.

About RegEd

RegEd is the market-leading provider of RegTech enterprise solutions with relationships with more than 200 enterprise clients, including 80% of the top 25 financial services firms.

Established in 2000 by former regulators, the company is recognized for continuous regulatory technology innovation with solutions hallmarked by workflow-directed processes, data integration, regulatory intelligence, automated validations, business process automation and compliance dashboards. The aggregate drives the highest levels of operational efficiency and enables our clients to cost-effectively comply with regulations and continuously mitigate risk.

Trusted by the nation’s top financial services firms, RegEd’s proven, holistic approach to RegTech meets firms where they are on the compliance and risk management continuum, scaling as their needs evolve and amplifying the value proposition delivered to clients. For more information, please visit www.reged.com.

Regulatory Insights Regarding Compliance Assessments of Regulation Best Interest and Form CRS

These are certainly interesting days.  So much is taking the attention of compliance professionals.  By now everyone has implemented their business continuity plans (BCP) and likely made modifications to them here and there as the true test of these plans has been realized.  BCP has now become yet another compliance ball to juggle for the foreseeable future.  BCP recordkeeping will be important so be sure to track as you go.  Regulators are certain to ask about this in upcoming exams.

Now that everyone is settled into their temporary work environments and any BCP gaps have been shored up, the looming June 30, 2020 compliance date for Regulation Best Interest (Reg BI) and Form CRS (client/customer relationship summary) is once again the primary focus for most broker-dealers (BDs) and investment advisers (IAs).  SEC Chairman Jay Clayton has recently signaled there will be no regulatory relief around the June 30th compliance date. 

On April 7th, the Office of Compliance Inspections & Examinations (OCIE) released two Risk Alerts providing BDs and IAs with insight around initial regulatory examinations to assess implementation of Reg BI and Form CRS.  OCIE’s implementation assessment exams will likely occur within one-year of the June 30th compliance date.  FINRA also released a statement that they will take the same approach as OCIE on their initial examinations of firms’ compliance with Reg BI and Form CRS. 

OCIE Risk Alert: Examinations that Focus on Compliance with Regulation Best Interest

OCIE (and FINRA) will assess whether firms made good faith efforts to implement policies and procedures that are reasonably designed to achieve compliance with the general obligation of Reg BI to make recommendations that are in the best interest of the retail investor before or at the time the recommendation is made.  You demonstrate compliance with the general Reg BI obligation by complying we each of the four (4) component obligations of Reg BI.  The Disclosure Obligation, the Care Obligation, the Conflict of Interest Obligation and the Compliance Obligation. 

The Disclosure Obligation requires BDs, prior to or at the time of a recommendation to a retail customer, to provide written, full and fair disclosure of all material facts relating to the scope and terms of the relationship with the retail customer; and all material facts relating to conflicts of interest that are associated with the recommendation being made to the retail customer.  BDs can expect regulators to review the content of their disclosures as well as ‘other firm records’ to make a compliance assessment. 

  • Do your disclosures define the capacity in which the recommendation is being made? 
  • Do your disclosures provide applicable material fees and costs?
  • Are any material limitations on the securities or investment strategies involving securities that may be recommended to the retail customer included in your disclosures?
  • Are you making your disclosures ‘timely’ (prior to or at the time of recommendation)?

The Care Obligation requires BDs to exercise reasonable diligence, care, and skill when making a recommendation to a retail customer.

  • Does the BD understand potential risks, rewards, and costs associated with the recommendation?
  • Were these factors considered in light of the retail customer’s investment profile?
  • Was the recommendation made in the retail customer’s best interest?

BDs can expect regulators to review the information collected from retail customers to develop their investment profiles (i.e. new account forms, correspondence, agreements between customer and BD).  Regulators will want to understand:

  • The process taken by the BD to determine a reasonable basis exists to believe that the recommendations are in the best interest of the retail customer. 
  • Factors considered by the BD to assess potential risks, rewards, and costs of the recommendations in light of the retail customer’s investment profile.
  • BD’s process for having a reasonable basis to believe that it does not place its financial or other interests ahead of the interest of its retail customers.
  • How the BD makes recommendations related to significant investment decisions, such as rollovers and account recommendations, and how the BD has a reasonable basis to believe that such investment strategies are in a retail customer’s best interest.
  • How the BD makes recommendations related to more complex, risky or expensive products and how the BD has a reasonable basis to believe that such investments are in a retail customer’s best interest.

The Conflict of Interest Obligation requires BDs to establish, maintain, and enforce written policies and procedures reasonably designed to address conflicts of interest associated with its recommendations to retail customers. Of course regulators will review the BD’s policies and procedures to determine compliance. 

  • Do your policies and procedures address conflicts that create an incentive for an associated person to place its interest or the interest of the BD ahead of the interest of the retail customer?
  • Do they include material limitations such as only limited product menu, only offering proprietary products, or products with third-party arrangements?
  • Has the BD eliminated sales contests/quotas/bonuses/non-cash compensation based on the sale of specific securities or specific types of securities within a limited period of time?
  • Do the policies and procedures establish a structure for identifying the conflicts that the BD or its associated person may face?
  • Do they provide for disclosing, mitigating or eliminating conflicts?

The Compliance Obligation requires BDs to establish, maintain, and enforce written policies and procedures reasonably designed to achieve compliance with Reg BI as a whole.  Regulators will assess compliance with this obligation by reviewing policies and procedures and evaluating controls, remediation for noncompliance, training, and periodic review and testing of the BD’s policies and procedures.

Included in this Risk Alert is an Appendix that should be reviewed as it provides a sample list of information the regulators may request in order to determine compliance with Reg BI.

OCIE Risk Alert:  Examinations that Focus on Compliance with Form CRS

Unlike with Reg BI, the Form CRS obligation applies to IAs as well as BDs.  BDs and IAs are required to deliver to retail investors a brief relationship summary (Form CRS) providing information about the firm. By June 30, 2020, the Form CRS must be filed with the SEC through Web CRD for BDs, or IARD for IAs (both Web CRD & IARD for dual registrants using one Form CRS for both brokerage and advisory services).  In addition, if the firm has a public website, the Form CRS must be posted there.  After the June 30th compliance date, regulators will assess for a good faith effort to comply with the Form CRS obligation. 

  • Has the firm filed its Form CRS including any amendments?
  • Does the firm have a public website and if so, has the Form CRS been posted there?
  • What is the process for delivering Form CRS to existing and new retail investors?
  • Does the firm’s policies and procedures address the delivery process and dates?
  • Does the Form CRS include all required information; does it contain true and accurate information; does it omit material facts?
  • How does the firm describe the relationship and services it offers, including statements regarding account monitoring and investment authority?
  • How does the firm describe fees and costs?
  • How does the firm describe its conflicts of interest, including incentives related to proprietary products, third-party payments, revenue sharing, and principal trading?
  • Does the firm accurately disclose if the firm or its financial professionals have legal or disciplinary history?
  • Is the Form CRS formatted in accordance with Form CRS instructions?
  • Do policies and procedures provide for Form CRS updating?
  • Has the firm retained applicable records related to its delivery of the Form CRS?

Firms should expect regulators to review records of the dates that each relationship summary was provided to retail investors to validate whether the firm has complied with the delivery obligations. 

  • For existing retail investors, firms must deliver the summary by July 30, 2020 and before or at the time of:
    • Opening a new account that is different from existing accounts held by the retail investor;
    • Recommending a rollover of assets from retirement accounts into a new or existing accounts; or
    • Recommending a new brokerage or investment advisory service or investment that does not necessarily involve the opening of a new account and would not be held in an existing account.
  • For new retail investors, Form CRS must be delivered before or at the earliest of:
    • Entering into an investment advisory contract with the retail investor;
    • Recommending to a retail investor an account type, a securities transaction, or an investment strategy involving securities;
    • Placing an order for the retail investor; or
    • Opening a brokerage account for the retail investor.

A thorough review of these two (2) risk alerts should enable firms to be ready for the initial compliance assessments expected by OCIE and FINRA within one year of the June 30, 2020 compliance date.

Note: RegEd is not engaged in rendering legal, accounting or other professional services. If legal or other professional advice is warranted, the services of an appropriate professional should be sought.

About the Author

Margie Webber is the Director, Regulatory Compliance BD/IA at RegEd, Inc.

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