Posted by Pam Reihs ● February 13, 2020
New Annuity Suitability “Best Interest” Training Requirement from NAIC
Which States Will Be the First to Adopt This New Regulation?
Last updated 9/18/2020 12:00 p.m. CDT
On February 13, 2020, the NAIC formally adopted revisions to its Suitability in Annuity Transactions Model Regulation, mirroring FINRA, SEC, and individual state rules to increase consumer protection for financial transactions.
Of particular interest to producers currently certified to sell annuity products is the requirement for 1 additional hour of training covering changes to their previous certification.
New Best Interest Obligations: Care, Disclosure, Documentation, and Conflict of Interest
When making a recommendation to purchase an annuity, a producer must 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 insurer’s financial interest ahead of the consumer’s interest. Four clear producer obligations were added that upgrade previous suitability standards to maintaining a focus on consumer best interests.
The producer, in making a recommendation, must exercise reasonable diligence, care, and skill to:
- Know the consumer’s financial situation, insurance needs, financial objectives
- Understand available recommendation options after making a reasonable inquiry into options available to the producer
- Have a reasonable basis to believe the recommendation 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
- Communicate the basis for the recommendation
Producers must now be very conscious of a “show your work” standard for underwriting compliance as a written record of how the producer got to the recommendation, which must include the “why” (i.e., the client’s need for the product).
Three consumer disclosure form templates were added to the model to verify that specific information is shared with clients to improve transparency between the producer, insurer, and the client.
- Appendix A: Insurance Agent (Producer) Disclosure For Annuities
- Appendix B: Consumer Refusal to Provide Information
- Appendix C: Consumer Decision to Purchase an Annuity Not Based on a Recommendation
Material Conflicts of Interest Obligation
The financial interest of the producer in the sale of an annuity cannot influence a recommendation to a consumer. Cash or non-cash compensation IS NOT included in this definition, as it is addressed in the disclosure statements of Appendix A.
A producer has acted in the best interest of the consumer if he or she satisfies the new obligations regarding care, disclosure, conflict of interest, and documentation. The best interest obligation extends to every producer who has exercised material control or influence in the making of a recommendation and has received direct compensation as a result, regardless of whether there was direct contact with the consumer.
Suitability Upgrade to Best Interest
The best interest model re-defines the previous list of suitability factors, now referred to as the “Consumer Profiles Information.”
What did not change?
Unlike updates made to the New York producer training requirements, The NAIC did not include life insurance products or contract/policy transactions in their 2020 revisions to the model law. New York Regulation 187 (Reg 187) took effect for annuity sales in August 2019, and for life insurance sales February 1, 2020. Reg 187 added the consumer best interest standard to its previous non-NAIC interpretation of annuity suitability, included the sale of life insurance policies. Of major note, Reg 187 applies to both new recommendations and in-force transactions. The NAIC chose not to add life insurance products to its model law, and after much debate, did not add in-force policy transactions.
Under the NAIC model, producer and insurer obligations are enforceable at the time the recommendation is made. Specific language was added to clarify that the “care obligation” does not mean a producer has an ongoing monitoring obligation unless “such an obligation is separately owed under the terms of fiduciary, consulting, investment advising, or financial planning agreement between the consumer and the producer.”
Why then, did the name of the model law not change? It still references suitability in the title, yet that is the only "suitability" referenced in the document. In order to maintain consistency with federal legislative references in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the name of the model must remain the same. Otherwise, it certainly would have made more sense to re-title this update as “The Best Interest in Annuity Transactions Model Regulation.”
How did Suitability become a Best Interest standard?
Since 2003, suitability has been the compliance standard for annuity transactions. Because annuities are insurance products, their sale and replacement is governed by state regulations, most of which are based to some degree on the NAIC model as amended in 2006 and 2010.
The Annuity Suitability Working Group’s revision work began in 2017 to address the Department of Labor's Fiduciary Rule (DOL Rule), which sought to impose a fiduciary standard on the sale of all financial products, including annuities. The DOL Rule was vacated by the 5th U.S. Circuit Court of Appeals.
In the aftermath of the Court’s ruling, the Securities and Exchange Commission released its Best Interest rule package, which was approved in June 2019, updating the standard of care for broker-dealers and investment advisors to one of best interest.
The NAIC continually works to establish industry best practices and create a more uniform regulatory playing field for licensed insurance and securities professionals. Their adoption of the 2020 model revisions will help appropriately align FINRA and SEC sales standards with the insurance marketplace.
According to the NAIC’s Center for Insurance Policy and Research1,
“The Working Group [sought] clear, enhanced standards for annuity sales so consumers understand the products they purchase, are made aware of any material conflicts of interest, and are assured those selling the products do not place their financial interests above consumers' interests.”
State Adoption of Best Interest Requirements
Arizona and Iowa have passed legislation or written new rules to update existing annuity suitability to best interest standards, effective January 1, 2021. Both require existing annuity producers to complete one additional hour of training on the new best interest standards and disclosure requirements, during a 6-month window beginning January 1, 2021. Newly licensed annuity producers in 2021, will complete a an updated version of the 4-hour certification course covering all previous training topics, plus the best interest. Both the 1-hour and 4-hour best interest training courses will count toward the producer's ongoing continuing education requirements.
States with pending updates: Michigan, Kentucky, Arkansas, West Virginia, Nevada, Rhode Island, and Ohio
Annuity training taken prior to January 1, 2021 will not count towards the new certification requirements, but WILL count for existing suitability requirements in force until January 1, 2021. How states will interpret state-to-state reciprocity questions has yet to be tested. A.D. Banker & Company will continue to watch this closely and update this blog as new information is available.
As a premier national provider of certification training, A.D. Banker & Company will offer updated certification training in the following formats:
- 1-hour Annuity Best Interest - Online and via Live Webinar - each valid for 1 CE credit
- 4-hour Annuity Best Interest - Online and via Live Webinar - each valid for 4 CE credits
A.D. Banker & Company is the nations' leading provider for insurance and securities prelicensing training, continuing education, and product-specific certification training.