3901-1-08 Unfair and deceptive military sales practices.

 

 

 

3901-1-08                    Unfair and deceptive military sales practices.

 

 

 

(A)Authority. This rule is adopted under the authority of the superintendent of insurance pursuant to section 3901.041 of the Revised Code.

 

(B)Purpose. Sections 3901.20 and 3901.21 of the Revised Code, respectively, prohibit unfair or deceptive trade practices in the business of insurance and define certain acts or practices as unfair or deceptive. Section 3901.21 also provides that the enumeration of specific unfair or deceptive acts or practices in the business of insurance is not exclusive or restrictive or intended to limit the powers of the superintendent of insurance to adopt rules to implement that section. The purpose of this rule is to further define unfair trade practices to include dishonest and predatory practices involving the sale of certain life insurance products to active duty members of the "United States Armed Forces" and their families and to set acceptable standards for such sales.

 

(C)No private cause of action. Nothing herein shall be construed to create or imply a private cause of action for a violation of this rule.

 

(D)Application. This rule applies to the solicitations and sales of life insurance and annuity products by insurers and insurance agents to active duty members of the United States Armed Forces and their families. This rule applies in addition to other statutes and rules governing the sale and solicitations of life insurance and annuity products.

 

(E)Exemptions.

 

(1)This rule shall not apply to solicitations or sales involving:

 

(a) Credit insurance;

 

(b) Group life insurance or group annuities where there is no in-person, face-to-face solicitation of individuals by an insurance agent or where the contract or certificate does not include a side fund;

 

(c) An application to the existing insurer that issued the existing policy or contract when a contractual change or a conversion privilege is being exercised; or, when the existing policy or contract is being replaced by the same insurer pursuant to a program filed with and approved by the superintendent; or, when a term conversion privilege is exercised among corporate affiliates;

 

(d)Individual  stand-alone  health  policies,  including  disability  income policies;

 

(e) Contracts offered by "Servicemembers' Group Life Insurance" (SGLI) or "Veterans' Group Life Insurance" (VGLI), as authorized by 38 U.S.C.

§1965 et seq.;

 

 

(f)Life insurance contracts offered through or by a non-profit military association, qualifying under section 501(c)(23) of the "Internal Revenue Code" (IRC), and which are not underwritten by an insurer; or

(g) Contracts used to fund:

(i) An employee pension or welfare benefit plan that is covered by the "Employee Retirement and Income Security Act" (ERISA);

(ii) A plan described by sections 401(a), 401(k), 403(b), 408(k)  or 408(p) of the IRC, as amended, if established or maintained by an employer;

(iii) A government or church plan defined in Section 414 of the IRC, 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 IRC;

(iv) A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor;

(v) Settlements of or assumptions of liabilities associated with personal injury litigation or any dispute or claim resolution process; or

(vi) Prearranged funeral contracts.

(2) Nothing herein shall be construed to abrogate the ability of nonprofit organizations (and/or other organizations) to educate members of the "United States Armed Forces" in accordance with "Department of Defense DoD Instruction 1344.07 - Personal Commercial Solicitation on DoD Installations" or successor directive.

(3) For purposes of this rule, general advertisements, direct mail and internet marketing shall not constitute "solicitation." Telephone marketing shall not constitute "solicitation" provided the caller explicitly and conspicuously discloses that the product concerned is life insurance and makes no statements that avoid a clear and unequivocal statement that life insurance is the subject matter of the solicitation. However, nothing in this subdivision shall be construed to exempt an insurer or insurance agent from this rule in any in-person, face-to-face meeting established as a result of the "solicitation" exemptions identified in this subdivision.

(F) Definitions.

(1) "Active duty" means full-time duty in the active military service of the United States and includes members of the reserve component (National Guard and

Reserve) while serving under published orders for active duty or full-time training and all service in the uniformed services under the "Uniformed Services Employment and Reemployment Rights Act" (USERRA). The term does not include members of the reserve component who are performing active duty or active duty for training under military calls or orders specifying periods of fewer than 31 calendar days.

(2) "Department of Defense (DoD) Personnel" means all active duty service members and all civilian employees, including nonappropriated fund employees and special government employees, of the "Department of Defense."

(3) "Door to door" means a solicitation or sales method whereby an insurance agent proceeds randomly or selectively from household to household without prior specific appointment.

(4) "General advertisement" means an advertisement having as its sole purpose the promotion of the reader's or viewer's interest in the concept of insurance, or the promotion of the insurer or the insurance agent.

(5) "Insurer" means an insurance company required to be licensed under the laws of this state to provide life insurance products, including annuities.

(6) "Insurance agent" means a person required to be licensed under the laws of this state to sell, solicit or negotiate life insurance, including annuities.

(7) "Known" or "Knowingly" means, depending on its use herein, the insurance agent or insurer had actual awareness, or in the exercise of ordinary care should have known, at the time of the act or practice complained of, that the person solicited:

(a) is a service member; or

(b) is a service member with a pay grade of E-4 or below.

(8) "Life insurance" means insurance coverage on human lives including benefits of endowment and annuities, and may include benefits in the event of death or dismemberment by accident and benefits for disability income and, unless otherwise specifically excluded, includes individually issued annuities.

(9) "Military installation" means any state or federally owned, leased, or operated base, reservation, post, camp, building, or other facility to which service members are assigned for duty, including barracks, transient housing, and family quarters.

(10) "MyPay" is a "Defense Finance and Accounting Service" (DFAS) web-based system that enables service members to process certain discretionary pay

transactions or provide updates to personal information data elements without using paper forms.

(11) "Service in the uniformed services" and "uniformed services" have the same meanings as in the "Uniformed Services Employment and Reemployment Rights Act of 1994," 108 Stat. 3149, 38 U.S.C. §4303, as amended, June 5, 2001.

(12) "Service member" means any active duty officer (commissioned and warrant) or enlisted member of the United States Armed Forces.

(13) "Side fund" means a fund or reserve that is part of or otherwise attached to a life insurance policy (excluding individually issued annuities) by rider, endorsement or other mechanism, which accumulates premium or deposits, with interest, or by other means. The term does not include:

(a) accumulated value or cash value or secondary guarantees provided by a universal life policy;

(b) cash values provided by a whole life policy which are subject to standard nonforfeiture laws for life insurance; or

(c) a premium deposit fund which:

(i) contains only premiums paid in advance that accumulate at interest;

(ii) imposes no penalty for withdrawal;

(iii) does not permit funding beyond future required premiums;

(iv) is not marketed or intended as an investment; and

(v) does not carry a commission, either paid or calculated.

(14) "Specific appointment" means a prearranged appointment agreed upon by both parties and definite as to place and time.

(15) "United States Armed Forces" means all components of the Army, Navy, Air Force, Marine Corps, and Coast Guard.

(G)Practices declared false, misleading, deceptive or unfair on a military installation.

(1) The following acts or practices, when committed on a military installation by an insurer or insurance agent with respect to the in-person, face-to-face solicitation of life insurance, are declared to be false, misleading, deceptive or unfair:

(a) Knowingly soliciting the purchase of any life insurance product "door to door" or without first establishing a specific appointment for each meeting with the prospective purchaser.

(b) Soliciting  service  members  in  a  group  or  "mass"  audience  or  in  a "captive" audience where attendance is not voluntary.

(c) Knowingly  making  appointments  with  or  soliciting  service  members during their normally scheduled duty hours.

(d)Making appointments with or soliciting service members in barracks, day rooms, unit areas, or transient personnel housing or other areas where the installation commander has prohibited solicitation.

(e) Soliciting the sale of life insurance without first obtaining permission from the installation commander or the commander's designee.

(f)Posting unauthorized bulletins, notices or advertisements.

(g) Failing to present "DD Form 2885, Personal Commercial Solicitation Evaluation," to service members solicited or encouraging service members solicited not to complete or submit a "DD Form 2885."

(h) Knowingly accepting an application for life insurance or issuing a policy of life insurance on the life of an enlisted member of the United States Armed Forces without first obtaining, for the insurer's files, a completed copy of any required form which confirms that the applicant has received counseling or fulfilled any other similar requirement for the sale of life insurance established by rules or directives of the "DoD" or the rules or directives of any branch of the Armed Forces.

(2) The following acts or practices when committed on a military installation by an insurer or insurance agent constitute corrupt practices, improper influences or inducements and are declared to be false, misleading, deceptive or unfair:

(a) Using "DoD" personnel, directly or indirectly, as a representative or agent in any official or business capacity, with or without compensation, with respect to the solicitation or sale of life insurance to service members.

(b) Using an insurance agent to participate in any United States Armed Forces sponsored education or orientation program.

(H)Practices declared false, misleading, deceptive or unfair regardless of location.

(1) The following acts or practices by an insurer or insurance agent constitute corrupt practices, improper influences or inducements and are declared to be

false, misleading, deceptive or unfair:

(a) Submitting, processing or assisting in the submission or processing of any allotment form or similar device used by the United States Armed Forces to direct a service member's pay to a third party for the purchase of life insurance. The foregoing includes, but is not limited to, using or assisting in using a service member's "MyPay" account or other similar internet or electronic medium for such purposes. This paragraph does not prohibit assisting a service member by providing insurer or premium information necessary to complete any allotment form.

(b) Knowingly receiving funds from a service member for the payment of premium from a depository institution with which the service member has no formal banking relationship. For purposes of this section, a "formal banking relationship" is established when the depository institution:

(i) provides the service member a deposit agreement and periodic statements and makes the disclosures required by the "Truth in Savings Act," 12 U.S.C. §4301 et seq. and the rules promulgated thereunder; and

(ii) permits  the  service  member  to  make  deposits  and  withdrawals unrelated to the payment or processing of insurance premiums.

(c) Employing any device or method or entering into any agreement whereby funds received from a service member by allotment for the payment of insurance premiums are identified on the service member's "Leave and Earnings Statement" or equivalent or successor form as "savings" or "checking" and where the service member has no formal banking relationship as defined in paragraph (H)(1)(b) of this rule.

(d)Entering into any agreement with a depository institution for the purpose of receiving funds from a service member whereby the depository institution, with or without compensation, agrees to accept direct deposits from a service member with whom it has no formal banking relationship as defined in paragraph (H)(1)(b) of this rule.

(e) Using "DoD" personnel, directly or indirectly, as a representative or agent in any official or unofficial capacity with or without compensation with respect to the solicitation or sale of life insurance to service members who are junior in rank or grade, or to the family members of such personnel.

(f)Offering or giving anything of value, directly or indirectly, to "DoD" personnel to procure their assistance in encouraging, assisting or facilitating the solicitation or sale of life insurance to another service

member.

(g) Knowingly offering or giving anything of value to a service member with a pay grade of E-4 or below for his or her attendance to any event where an application for life insurance is solicited.

(h) Advising a service member with a pay grade of E-4 or below to change his or her income tax withholding or State of legal residence for the sole purpose of increasing disposable income to purchase life insurance.

(2) The following acts or practices by an insurer or insurance agent lead to confusion regarding source, sponsorship, approval or affiliation and are declared to be false, misleading, deceptive or unfair:

(a) Making any representation, or using any device, title, descriptive name or identifier that has the tendency or capacity to confuse or mislead a service member into believing that the insurer, insurance agent or product offered is affiliated, connected or associated with, endorsed, sponsored, sanctioned or recommended by the U.S. government, the "United States Armed Forces," or any state or federal agency or government entity. Examples of prohibited insurance agent titles include, but are not limited to, "Battalion Insurance Counselor," "Unit Insurance Advisor," "Servicemen's Group Life Insurance Conversion Consultant" or "Veteran's Benefits Counselor."

Nothing herein shall be construed to prohibit a person from using a professional designation awarded after the successful completion of a course of instruction in the business of insurance by an accredited institution of higher learning. Such designations include, but are not limited to, "Chartered Life Underwriter" (CLU), "Chartered Financial Consultant" (ChFC), "Certified Financial Planner" (CFP), "Master of Science In Financial Services" (MSFS), or "Masters of Science Financial Planning" (MS).

(b) Soliciting the purchase of any life insurance product through the use of or in conjunction with any third party organization that promotes the welfare of or assists members of the United States Armed Forces in a manner that has the tendency or capacity to confuse or mislead a service member into believing that either the insurer, insurance agent or insurance product is affiliated, connected or associated with, endorsed, sponsored, sanctioned or recommended by the U.S. government, or the United States Armed Forces.

(3) The following acts or practices by an insurer or insurance agent lead to confusion regarding premiums, costs or investment returns and are declared to be false, misleading, deceptive or unfair:

(a) Using or describing the credited interest rate on a life insurance policy in a manner that implies that the credited interest rate is a net return on premium paid.

(b) Excluding individually issued annuities, misrepresenting the  mortality costs of a life insurance product, including stating or implying that the product "costs nothing" or is "free."

(4) The following acts or practices by an insurer or insurance agent regarding SGLI or VGLI are declared to be false, misleading, deceptive or unfair:

(a) Making any representation regarding the availability, suitability, amount, cost, exclusions or limitations to coverage provided to a service member or dependents by SGLI or VGLI, which is false, misleading or deceptive.

(b) Making any representation regarding conversion requirements, including the costs of coverage, or exclusions or limitations to coverage of SGLI or VGLI to private insurers, which is false, misleading or deceptive.

(c) Suggesting, recommending or encouraging a service member to cancel or terminate his or her SGLI policy or issuing a life insurance policy which replaces an existing SGLI policy unless the replacement shall take effect upon or after the service member's separation from the United States Armed Forces.

(5) The following acts or practices by an insurer and or insurance agent regarding disclosure are declared to be false, misleading, deceptive or unfair:

(a) Deploying, using or contracting for any lead generating materials designed exclusively for use with service members that do not clearly and conspicuously disclose that the recipient will be contacted by an insurance agent, if that is the case, for the purpose of soliciting the purchase of life insurance.

(b) Failing to disclose that a solicitation for the sale of life insurance will be made when establishing a specific appointment for an in-person, face-to-face meeting with a prospective purchaser.

(c) Excluding individually issued annuities, failing to clearly and conspicuously disclose the fact that the product being sold is life insurance.

(d)Failing to make, at the time of sale or offer to an individual known to be a service member, the written disclosures required by Section 10 of the "Military Personnel Financial Services Protection Act," Pub. L. No.

109-290, p.16 or as amended.

(e) Excluding individually issued annuities, when the sale is conducted in-person face-to-face with an individual known to be a service member, failing to provide the applicant at the time the application is taken:

(i) an explanation of any free look period with instructions on how to cancel if a policy is issued; and

(ii) either a copy of the application or a written disclosure. The copy of the application or the written disclosure shall clearly and concisely set out the type of life insurance, the death benefit applied for and its expected first year cost. A basic illustration that meets the requirements of section 3901-4-04 of the Ohio Admin. Code shall be deemed sufficient to meet this requirement for a written disclosure.

(6) The following acts or practices by an insurer or insurance agent with respect to the sale of certain life insurance products are declared to be false, misleading, deceptive or unfair:

(a) Excluding individually issued annuities, recommending the purchase of any life insurance product, which includes a side fund, to a service member in pay grades E-4 and below unless the insurer has reasonable grounds for believing that the life insurance death benefit, standing alone, is suitable.

(b) Offering for sale or selling a life insurance product, which includes a side fund, to a service member in pay grades E-4 and below who is currently enrolled in SGLI, is presumed unsuitable unless, after the completion of a needs assessment, the insurer demonstrates that the applicant's SGLI death benefit, together with any other military survivor benefits, savings and investments, survivor income, and other life insurance, are insufficient to meet the applicant's insurable needs for life insurance.

(i) "Insurable needs" are the risks associated with premature  death taking into consideration the financial obligations and immediate and future cash needs of the applicant's estate and/or survivors or dependents.

(ii) "Other military survivor benefits" include, but are not limited to: the "Death Gratuity," "Funeral Reimbursement," "Transition Assistance," "Survivor and Dependents' Educational Assistance," "Dependency and Indemnity Compensation," TRICARE healthcare benefits, "Survivor Housing Benefits and Allowances," "Federal Income Tax Forgiveness," and "Social Security Survivor

Benefits."

(c) Excluding individually issued annuities, offering for sale or selling any life insurance contract which includes a side fund:

(i) unless interest credited accrues from the date of deposit to the date of withdrawal and permits withdrawals without limit or penalty;

(ii) unless the applicant has been provided with a schedule of effective rates of return based upon cash flows of the combined product. For this disclosure, the effective rate of return will consider all premiums and cash contributions made by the policyholder and all cash accumulations and cash surrender values available to the policyholder in addition to life insurance coverage. This schedule will be provided for at least each policy year from one (1) to ten (10) and for every fifth policy year thereafter, ending at age 100, policy maturity or final expiration; and

(iii) which, by default, diverts or transfers funds accumulated in the side fund to pay, reduce or offset any premiums due.

(d)Excluding individually issued annuities, offering for sale or selling any life insurance contract which, after considering all policy benefits, including but not limited to endowment, return of premium or persistency, does not comply with standard nonforfeiture law for life insurance.

(e) Selling any life insurance product to an individual known to be a service member that excludes coverage if the insured's death is related to war, declared or undeclared, or any act related to military service except for an accidental death coverage, e.g., double indemnity, which may be excluded.

(I) Severability.

If any provision of these sections or the application thereof to any person or circumstance is held invalid for any reason, the invalidity shall not affect the other provisions or any other application of these sections which can be given effect without the invalid provisions or application. To this end all provisions of these sections are declared to be severable.

Effective:	09/01/2007
R.C. 119.032 review dates:	12/31/2011
CERTIFIED ELECTRONICALLY
Certification
08/21/2007
Date
Promulgated Under:	119.03
Statutory Authority: Rule Amplifies:	3901.041 3901.20 and 3901.21