Senate Study Bill 3238 



                                       SENATE/HOUSE FILE       
                                       BY  (PROPOSED DEPARTMENT OF
                                            COMMERCE/INSURANCE
                                            DIVISION BILL)


    Passed Senate, Date               Passed House,  Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act to regulate viatical settlements, and providing for fees
  2    and penalties.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 5446XD 82
  5 da/rj/5

PAG LIN



  1  1    Section 1.  NEW SECTION.  508E.1A  SHORT TITLE.
  1  2    This Act may be cited as the "Viatical Settlements Act".
  1  3    Sec. 2.  Section 508E.2, Code 2007, is amended to read as
  1  4 follows:
  1  5    508E.2  DEFINITIONS.
  1  6    As used in this chapter, unless the context otherwise
  1  7 requires:
  1  8    1.  "Advertising" means any written, electronic, or printed
  1  9 communication or any communication by means of recorded
  1 10 telephone messages or transmitted on radio; television; the
  1 11 internet; or similar communications media, including film
  1 12 strips, motion pictures, and videos, published, disseminated,
  1 13 circulated, or placed directly before the public in this
  1 14 state, for the purpose of creating an interest in or inducing
  1 15 a person to sell, assign, devise, bequest, or transfer the
  1 16 death benefit or ownership of a life insurance policy pursuant
  1 17 to a viatical settlement contract.
  1 18    2.  "Business of viatical settlements" means an activity
  1 19 involved in but not limited to the offering, soliciting,
  1 20 negotiating, procuring, effectuating, purchasing, investing,
  1 21 financing, monitoring, tracking, underwriting, selling,
  1 22 transferring, assigning, pledging, hypothecating, or in any
  1 23 other manner acquiring an interest in a life insurance policy
  1 24 by means of a viatical settlement contract.
  1 25    1.  3.  "Chronically ill" means any of the following:
  1 26    a.  Being unable to perform or maintain at least two
  1 27 activities of daily living, including but not limited to
  1 28 eating, toileting, transferring, bathing, dressing, or
  1 29 continence.
  1 30    b.  Requiring substantial supervision to protect the
  1 31 individual from threats to health and safety due to severe
  1 32 cognitive impairment.
  1 33    c.  Having a level of disability similar to that described
  1 34 in paragraph "a" as determined by the United States secretary
  1 35 of health and human services.
  2  1    2.  4.  "Commissioner" means the commissioner of insurance.
  2  2    5.  a.  "Financing entity" means an underwriter, placement
  2  3 agent, lender, purchaser of securities, purchaser of a policy
  2  4 or certificate from a viatical settlement provider, credit
  2  5 enhancer, or any entity that has a direct ownership in a
  2  6 policy or certificate that is the subject of a viatical
  2  7 settlement contract, but subject to all of the following:
  2  8    (1)  Whose principal activity related to the transaction is
  2  9 providing funds to effect the viatical settlement or purchase
  2 10 of one or more viaticated policies.
  2 11    (2)  Who has an agreement in writing with one or more
  2 12 licensed viatical settlement providers to finance the
  2 13 acquisition of viatical settlement contracts.
  2 14    b.  "Financing entity" does not include a nonaccredited
  2 15 investor or a viatical settlement purchaser.
  2 16    6.  "Fraudulent viatical settlement act" includes any of
  2 17 the following:
  2 18    a.  An act or omission committed by any person who,
  2 19 knowingly or with intent to defraud, for the purpose of
  2 20 depriving another of property or for pecuniary gain, commits
  2 21 or permits its employees or its agents to engage in acts
  2 22 including any of the following:
  2 23    (1)  Presenting, causing to be presented, or preparing with
  2 24 knowledge or belief that it will be presented to or by a
  2 25 viatical settlement provider, viatical settlement broker,
  2 26 viatical settlement purchaser, financing entity, insurer,
  2 27 insurance producer, or any other person, false material
  2 28 information, or concealing material information, as part of,
  2 29 in support of, or concerning a fact material to one or more of
  2 30 the following:
  2 31    (a)  An application for the issuance of a viatical
  2 32 settlement contract or insurance policy.
  2 33    (b)  The underwriting of a viatical settlement contract or
  2 34 insurance policy.
  2 35    (c)  A claim for payment or benefit pursuant to a viatical
  3  1 settlement contract or insurance policy.
  3  2    (d)  Premiums paid on an insurance policy.
  3  3    (e)  Payments and changes in ownership or beneficiary made
  3  4 in accordance with the terms of a viatical settlement contract
  3  5 or insurance policy.
  3  6    (f)  The reinstatement or conversion of an insurance
  3  7 policy.
  3  8    (g)  In the solicitation, offer, effectuation, or sale of a
  3  9 viatical settlement contract or insurance policy.
  3 10    (h)  The issuance of written evidence of viatical
  3 11 settlement contract or insurance policy.
  3 12    (i)  A financing transaction.
  3 13    (2)  Employing any plan, financial structure, device,
  3 14 scheme, or artifice to defraud related to viaticated policies.
  3 15    b.  In the furtherance of a fraud or to prevent the
  3 16 detection of a fraud to do, or permit an employee or agent to
  3 17 do, any of the following:
  3 18    (1)  Remove, conceal, alter, destroy, or sequester from the
  3 19 commissioner the assets or records of a licensee or other
  3 20 person engaged in the business of viatical settlements.
  3 21    (2)  Misrepresent or conceal the financial condition of a
  3 22 licensee, financing entity, insurer, or other person.
  3 23    (3)  Transact the business of viatical settlements in
  3 24 violation of laws requiring a license, certificate of
  3 25 authority, or other legal authority for the transaction of the
  3 26 business of viatical settlements.
  3 27    (4)  File with the commissioner or the equivalent chief
  3 28 insurance regulatory official of another jurisdiction a
  3 29 document containing false information or otherwise conceal
  3 30 information about a material fact from the commissioner.
  3 31    c.  Embezzlement, theft, misappropriation, or conversion of
  3 32 moneys, funds, premiums, credits, or other property of a
  3 33 viatical settlement provider, insurer, insured, viator,
  3 34 insurance policyowner, or any other person engaged in the
  3 35 business of viatical settlements or insurance.
  4  1    d.  Recklessly entering into, negotiating, brokering, or
  4  2 otherwise dealing in a viatical settlement contract, the
  4  3 subject of which is a life insurance policy that was obtained
  4  4 by presenting false information concerning any fact material
  4  5 to the policy or by concealing, for the purpose of misleading
  4  6 another, information concerning any fact material to the
  4  7 policy, where the person or the persons intended to defraud
  4  8 the policy's issuer, the viatical settlement provider, or the
  4  9 viator.  As used in this paragraph, "recklessly" means
  4 10 engaging in the conduct in conscious and clearly unjustifiable
  4 11 disregard of a substantial likelihood of the existence of the
  4 12 relevant facts or risks, such disregard involving a gross
  4 13 deviation from acceptable standards of conduct.
  4 14    e.  Facilitating the change of state of ownership of a
  4 15 policy or certificate or the state of residency of a viator to
  4 16 a state or jurisdiction that does not have a law similar to
  4 17 this chapter for the express purposes of evading or avoiding
  4 18 the provisions of this chapter.
  4 19    f.  Attempting to commit, assisting, aiding or abetting in
  4 20 the commission of, or conspiracy to commit the acts or
  4 21 omissions specified in this subsection.
  4 22    7.  "Life insurance producer" means any person licensed in
  4 23 this state as a resident or nonresident insurance producer who
  4 24 has received qualification or authority for life insurance
  4 25 coverage or a life line of coverage pursuant to chapter 522B.
  4 26    8.  "Person" means a natural person or a legal entity,
  4 27 including, without limitation, an individual, partnership,
  4 28 limited liability company, association, trust, or corporation.
  4 29    9.  "Policy" means an individual or group policy, group
  4 30 certificate, contract, or arrangement of life insurance owned
  4 31 by a resident of this state, regardless of whether delivered
  4 32 or issued for delivery in this state.
  4 33    10.  "Related provider trust" means a titling trust or
  4 34 other trust established by a licensed viatical settlement
  4 35 provider or a financing entity for the sole purpose of holding
  5  1 the ownership or beneficial interest in purchased policies in
  5  2 connection with a financing transaction.  The trust shall have
  5  3 a written agreement with the licensed viatical settlement
  5  4 provider under which the licensed viatical settlement provider
  5  5 is responsible for ensuring compliance with all statutory and
  5  6 regulatory requirements and under which the trust agrees to
  5  7 make all records and files related to viatical settlement
  5  8 transactions available to the commissioner as if those records
  5  9 and files were maintained directly by the licensed viatical
  5 10 settlement provider.
  5 11    11.  "Special purpose entity" means a corporation,
  5 12 partnership, trust, limited liability company, or other
  5 13 similar entity formed solely to provide either directly or
  5 14 indirectly access to institutional capital markets for or in
  5 15 connection with any of the following:
  5 16    a.  For a financing entity or licensed viatical settlement
  5 17 provider.
  5 18    b.  (1)  In connection with a transaction in which the
  5 19 securities in the special purposes entity are acquired by the
  5 20 viator or by qualified institutional buyers as defined in 17
  5 21 C.F.R. } 230.144 promulgated by the United States securities
  5 22 and exchange commission under the federal Securities Act of
  5 23 1933, as amended, 15 U.S.C. } 77a et seq.
  5 24    (2)  In connection with a transaction in which the
  5 25 securities pay a fixed rate of return commensurate with
  5 26 established asset=backed institutional capital markets.
  5 27    3.  12.  "Terminally ill" means having an illness or
  5 28 sickness that can reasonably be expected to result in death in
  5 29 twenty=four months or less.
  5 30    13.  "Viatical settlement broker" means a person, including
  5 31 a life insurance producer as provided for in section 508E.3,
  5 32 who working exclusively on behalf of a viator and for a fee,
  5 33 commission, or other valuable consideration, offers or
  5 34 attempts to negotiate viatical settlement contracts between a
  5 35 viator and one or more viatical settlement providers or one or
  6  1 more viatical settlement brokers.  Notwithstanding the manner
  6  2 in which the viatical settlement broker is compensated, a
  6  3 viatical settlement broker is deemed to represent only the
  6  4 viator, and not the insurer or the viatical settlement
  6  5 provider, and owes a fiduciary duty to the viator to act
  6  6 according to the viator's instructions and in the best
  6  7 interest of the viator.  "Viatical settlement broker" does not
  6  8 include an attorney, certified public accountant, or a
  6  9 financial planner accredited by a nationally recognized
  6 10 accreditation agency who is retained to represent the viator
  6 11 and whose compensation is not paid directly or indirectly by
  6 12 the viatical settlement provider or purchaser.
  6 13    4.  14.  a.  "Viatical settlement contract" means a written
  6 14 agreement entered into between a viator and a viatical
  6 15 settlement provider and a person who owns or is insured under
  6 16 a life insurance or any affiliate of the viatical settlement
  6 17 provider establishing the terms under which compensation or
  6 18 anything of value is or will be paid, which compensation or
  6 19 value is less than the expected death benefits of the policy
  6 20 in return for the viator's present or future assignment,
  6 21 transfer, sale, devise, or bequest of the death benefit or
  6 22 ownership of any portion of the insurance policy or
  6 23 certificate, or who owns or is covered under a group life of
  6 24 insurance policy.
  6 25    b.  "Viatical settlement contract" includes a premium
  6 26 finance loan made for a life insurance policy by a lender to a
  6 27 viator on, before, or after the date of issuance of the policy
  6 28 where any of the following applies:
  6 29  (1)  The viator or the insured receives on the date of the
  6 30 premium finance loan a guarantee of a future viatical
  6 31 settlement value of the policy.
  6 32  (2)  The viator or the insured agrees on the date of the
  6 33 premium finance loan to sell the policy or any portion of its
  6 34 death benefit on any date following the issuance of the
  6 35 policy.
  7  1    c.  "Viatical settlement contract" does not mean a written
  7  2 agreement entered into between a viator and a person having an
  7  3 insurable interest in the viator's life. include any of the
  7  4 following:
  7  5    (1)  A policy loan or accelerated death benefit made by the
  7  6 insurer pursuant to the policy's terms.
  7  7    (2)  Loan proceeds that are used solely to pay any of the
  7  8 following:
  7  9    (a)  Premiums for the policy.
  7 10    (b)  The costs of the loan, including, without limitation,
  7 11 interest, arrangement fees, utilization fees and similar fees,
  7 12 closing costs, legal fees and expenses, trustee fees and
  7 13 expenses, and third=party collateral provider fees and
  7 14 expenses, including fees payable to letter of credit issuers.
  7 15  (3)  A loan made by a bank or other licensed financial
  7 16 institution in which the lender takes an interest in a life
  7 17 insurance policy solely to secure repayment of a loan or, if
  7 18 there is a default on the loan and the policy is transferred,
  7 19 the transfer of such a policy by the lender, provided that the
  7 20 default itself is not pursuant to an agreement or
  7 21 understanding with any other person for the purpose of evading
  7 22 regulation under this chapter.
  7 23  (4)  A loan made by a lender that does not violate
  7 24 insurance premium finance law, provided that the premium
  7 25 finance loan is not described in paragraph "b".
  7 26    (5)  An agreement where all the parties are closely related
  7 27 to the insured by blood or law; have a lawful substantial
  7 28 economic interest in the continued life, health, and bodily
  7 29 safety of the person insured; or are trusts established
  7 30 primarily for the benefit of such parties.
  7 31    (6)  Any designation, consent, or agreement by an insured
  7 32 who is an employee of an employer in connection with the
  7 33 purchase by the employer, or trust established by the
  7 34 employer, of life insurance on the life of the employee.
  7 35  (7)  A bona fide business succession planning arrangement
  8  1 between one or more of the following:
  8  2  (a)  Shareholders in a corporation or between a corporation
  8  3 and one or more of its shareholders or one or more trusts
  8  4 established by its shareholders.
  8  5    (b)  Partners in a partnership or between a partnership and
  8  6 one or more of its partners or one or more trusts established
  8  7 by its partners.
  8  8    (c)  Members in a limited liability company or between a
  8  9 limited liability company and one or more of its members or
  8 10 one or more trusts established by its members.
  8 11    (8)  An agreement entered into by a service recipient, or a
  8 12 trust established by the service recipient, and a service
  8 13 provider, or a trust established by the service provider, who
  8 14 performs significant services for the service recipient's
  8 15 trade or business.
  8 16  (9)  Any other contract, transaction, or arrangement
  8 17 exempted from the definition of viatical settlement contract
  8 18 by the commissioner based on a determination that the
  8 19 contract, transaction, or arrangement is not of the type
  8 20 intended to be regulated by this chapter.
  8 21    15.  a.  "Viatical settlement provider" means a person,
  8 22 other than a viator, that enters into or effectuates a
  8 23 viatical settlement contract with a viator resident in this
  8 24 state.
  8 25    b.  "Viatical settlement provider" does not include any of
  8 26 the following:
  8 27    (1)  A bank, savings bank, savings and loan association,
  8 28 credit union, or other licensed lending institution that takes
  8 29 an assignment of a life insurance policy solely as collateral
  8 30 for a loan.
  8 31    (2)  A premium finance company making premium finance loans
  8 32 and exempted by the commissioner from the licensing
  8 33 requirement under the premium finance laws that takes an
  8 34 assignment of a life insurance policy solely as collateral for
  8 35 a loan.
  9  1    (3)  The issuer of the life insurance policy.
  9  2    (4)  An authorized or eligible insurer that provides
  9  3 stop=loss coverage or financial guaranty insurance to a
  9  4 viatical settlement provider, purchaser, financing entity,
  9  5 special purpose entity, or related provider trust.
  9  6    (5)  A natural person who enters into or effectuates no
  9  7 more than one agreement in a calendar year for the transfer of
  9  8 life insurance policies for any value less than the expected
  9  9 death benefit.
  9 10    (6)  A financing entity.
  9 11    (7)  A special purpose entity.
  9 12    (8)  A related provider trust.
  9 13    (9)  A viatical settlement purchaser.
  9 14    (10)  Any other person that the commissioner determines is
  9 15 not the type of person intended to be covered by the
  9 16 definition of viatical settlement provider.
  9 17    16.  a.  "Viatical settlement purchaser" means a person who
  9 18 provides a sum of money as consideration for a life insurance
  9 19 policy or an interest in the death benefits of a life
  9 20 insurance policy, or a person who owns or acquires or is
  9 21 entitled to a beneficial interest in a trust that owns a
  9 22 viatical settlement contract or is the beneficiary of a life
  9 23 insurance policy that has been or will be the subject of a
  9 24 viatical settlement contract, for the purpose of deriving an
  9 25 economic benefit.
  9 26    b.  "Viatical settlement purchaser" does not include any of
  9 27 the following:
  9 28    (1)  A licensee under this chapter.
  9 29    (2)  An accredited investor or qualified institutional
  9 30 buyer as defined, respectively, in 17 C.F.R. } 230.501(a) or
  9 31 17 C.F.R. } 230.144A as promulgated by the United States
  9 32 securities and exchange commission under the federal
  9 33 Securities Act of 1933, as amended, 15 U.S.C. } 77a et seq.
  9 34    (3)  A financing entity.
  9 35    (4)  A special purpose entity.
 10  1    (5)  A related provider trust.
 10  2    17.  "Viaticated policy" means a life insurance policy or
 10  3 certificate that has been acquired by a viatical settlement
 10  4 provider pursuant to a viatical settlement contract.
 10  5    5.  18.  a.  "Viator" means a person selling the owner of a
 10  6 life insurance policy or a certificate holder under a group
 10  7 policy who resides in this state and enters or seeks to enter
 10  8 into a viatical settlement contract.  "Viator" includes but is
 10  9 not limited to an owner of a life insurance policy or a
 10 10 certificate holder under a group policy insuring the life of
 10 11 an individual with a terminal or chronic illness or condition
 10 12 except where specifically addressed.  If there is more than
 10 13 one viator on a single policy and the viators are residents of
 10 14 different states, the transaction shall be governed by the law
 10 15 of the state in which the viator having the largest percentage
 10 16 ownership resides or, if the viators hold equal ownership, the
 10 17 state of residence of one viator agreed upon in writing by all
 10 18 the viators.
 10 19    b.  "Viator" does not include any of the following:
 10 20    (1)  A licensee under this chapter, including a life
 10 21 insurance producer acting as a viatical settlement broker
 10 22 pursuant to this chapter.
 10 23    (2)  A qualified institutional buyer as defined in 17
 10 24 C.F.R. } 230.144=144A as promulgated by the United States
 10 25 securities and exchange commission under the federal
 10 26 Securities Act of 1933, as amended, 15 U.S.C. } 77a et seq.
 10 27    (3)  A financing entity.
 10 28    (4)  A special purpose entity.
 10 29    (5)  A related provider trust.
 10 30    Sec. 3.  Section 508E.3, Code 2007, is amended by striking
 10 31 the section and inserting in lieu thereof the following:
 10 32    508E.3  LICENSE AND BOND REQUIREMENTS.
 10 33    1.  a.  A person shall not operate as a viatical settlement
 10 34 provider or viatical settlement broker without first obtaining
 10 35 a license from the commissioner of the state of residence of
 11  1 the viator.
 11  2    b.  (1)  A life insurance producer who has been duly
 11  3 licensed as a resident insurance producer with a life line of
 11  4 authority in this state or the life insurance producer's home
 11  5 state for at least one year and is licensed as a nonresident
 11  6 producer in this state shall be deemed to meet the licensing
 11  7 requirements of this section and shall be permitted to operate
 11  8 as a viatical settlement broker.
 11  9    (2)  Not later than thirty days from the first day of
 11 10 operating as a viatical settlement broker, the life insurance
 11 11 producer shall notify the commissioner that the life insurance
 11 12 producer is acting as a viatical settlement broker on a form
 11 13 prescribed by the commissioner, and shall pay any applicable
 11 14 fee of up to one hundred dollars as provided by rules adopted
 11 15 by the commissioner.  The notification shall include an
 11 16 acknowledgment by the life insurance producer that the life
 11 17 insurance producer will operate as a viatical settlement
 11 18 broker in accordance with this chapter.
 11 19    (3)  The insurer that issued the policy being viaticated
 11 20 shall not be responsible for any act or omission of a viatical
 11 21 settlement broker or viatical settlement provider arising out
 11 22 of or in connection with the viatical settlement transaction,
 11 23 unless the insurer receives compensation for the placement of
 11 24 a viatical settlement contract from the viatical settlement
 11 25 provider or viatical settlement broker in connection with the
 11 26 viatical settlement contract.
 11 27    c.  A person licensed as an attorney, certified public
 11 28 accountant, or financial planner accredited by a nationally
 11 29 recognized accreditation agency who is retained to represent
 11 30 the viator, whose compensation is not paid directly or
 11 31 indirectly by the viatical settlement provider, may negotiate
 11 32 viatical settlement contracts on behalf of the viator without
 11 33 having to obtain a license as a viatical settlement broker.
 11 34    2.  An application for a viatical settlement provider or
 11 35 viatical settlement broker license shall be made to the
 12  1 commissioner by the applicant on a form prescribed by the
 12  2 commissioner, and the application shall be accompanied by a
 12  3 fee of not more than one hundred dollars as provided by rules
 12  4 adopted by the commissioner.
 12  5    3.  A license may be renewed from year to year on the
 12  6 anniversary date upon payment of the annual renewal fee of not
 12  7 more than one hundred dollars as provided by rules adopted by
 12  8 the commissioner.  A failure to pay the fee by the renewal
 12  9 date results in expiration of the license.
 12 10    4.  An applicant shall provide information on forms
 12 11 required by the commissioner.  The commissioner shall have
 12 12 authority, at any time, to require the applicant to fully
 12 13 disclose the identity of all stockholders, partners, officers,
 12 14 members, and employees, and the commissioner may, in the
 12 15 exercise of the commissioner's discretion, refuse to issue a
 12 16 license in the name of a legal entity if not satisfied that
 12 17 any officer, employee, stockholder, partner, or member thereof
 12 18 who may materially influence the applicant's conduct meets the
 12 19 standards of this chapter.
 12 20    5.  A license issued to a legal entity authorizes all
 12 21 partners, officers, members, and designated employees to act
 12 22 as viatical settlement providers or viatical settlement
 12 23 brokers, as applicable, under the license, and all those
 12 24 persons shall be named in the application and any supplements
 12 25 to the application.
 12 26    6.  Upon the filing of an application and the payment of
 12 27 the license fee, the commissioner shall make an investigation
 12 28 of each applicant and issue a license if the commissioner
 12 29 finds that the applicant complies with all of the following:
 12 30    a.  If a viatical settlement provider, has provided a
 12 31 detailed plan of operation.
 12 32    b.  Is competent and trustworthy and intends to act in good
 12 33 faith in the capacity involved by the license applied for.
 12 34    c.  Has a good business reputation and has had experience,
 12 35 training, or education so as to be qualified in the business
 13  1 for which the license is applied for.
 13  2    d.  (1)  If a viatical settlement provider, has
 13  3 demonstrated evidence of financial responsibility in a format
 13  4 prescribed by the commissioner through either a surety bond
 13  5 executed and issued by an insurer authorized to issue surety
 13  6 bonds in this state, or a deposit of cash, certificates of
 13  7 deposit, or securities, or any combination thereof in the
 13  8 amount of two hundred fifty thousand dollars.
 13  9    (2)  If a viatical settlement broker, has demonstrated
 13 10 evidence of financial responsibility in a format prescribed by
 13 11 the commissioner through either a surety bond executed and
 13 12 issued by an insurer authorized to issue surety bonds in this
 13 13 state, or a deposit of cash, certificates of deposit, or
 13 14 securities, or any combination thereof in the amount of two
 13 15 hundred fifty thousand dollars.
 13 16    (3)  The commissioner may demand evidence of financial
 13 17 responsibility at any time the commissioner deems necessary.
 13 18    (4)  Any surety bond issued pursuant to this paragraph "d"
 13 19 shall be in the favor of this state and shall specifically
 13 20 authorize recovery by the commissioner on behalf of any person
 13 21 in this state who sustained damages as the result of an
 13 22 erroneous act, failure to act, conviction of fraud, or
 13 23 conviction of an unfair practice by the viatical settlement
 13 24 provider or viatical settlement broker.
 13 25    (5)  Notwithstanding any provision of this paragraph "d" to
 13 26 contrary, the commissioner shall accept, as evidence of
 13 27 financial responsibility, proof that financial instruments in
 13 28 accordance with the requirements in this paragraph "d" have
 13 29 been filed with one state where the applicant is licensed as a
 13 30 viatical settlement provider or viatical settlement broker.
 13 31    e.  If a legal entity, provides a certificate of good
 13 32 standing from the state of its domicile.
 13 33    f.  If a viatical settlement provider or viatical
 13 34 settlement broker, has provided an antifraud plan that meets
 13 35 the requirements of section 508E.14, subsection 7.
 14  1    7.  The commissioner shall not issue a license to a
 14  2 nonresident applicant unless a written designation of an agent
 14  3 for service of process is filed and maintained with the
 14  4 commissioner or the applicant has filed with the commissioner
 14  5 the applicant's written irrevocable consent that any action
 14  6 against the applicant may be commenced against the applicant
 14  7 by service of process on the commissioner.
 14  8    8.  A viatical settlement provider or viatical settlement
 14  9 broker shall provide to the commissioner new or revised
 14 10 information about officers, ten=percent=or=more stockholders,
 14 11 partners, directors, members, or designated employees within
 14 12 thirty days of the change.
 14 13    9.  An individual licensed as a viatical settlement broker
 14 14 shall complete on a biennial basis fifteen hours of training
 14 15 related to viatical settlements and viatical settlement
 14 16 transactions, as required by the commissioner; provided,
 14 17 however, that a life insurance producer who is operating as a
 14 18 viatical settlement broker pursuant to subsection 1, paragraph
 14 19 "b", shall not be subject to the requirements of this
 14 20 subsection.  Any person failing to meet the requirements of
 14 21 this subsection shall be subject to the penalties imposed by
 14 22 the commissioner.
 14 23    10.  Fees collected pursuant to this section shall be
 14 24 deposited into the general fund of the state.
 14 25    Sec. 4.  Section 508E.4, Code 2007, is amended by striking
 14 26 the section and inserting in lieu thereof the following:
 14 27    508E.4  LICENSE REVOCATION AND DENIAL.
 14 28    1.  The commissioner may refuse to issue, suspend, revoke,
 14 29 or refuse to renew the license of a viatical settlement
 14 30 provider or viatical settlement broker if the commissioner
 14 31 finds that any of the following applies:
 14 32    a.  There was any material misrepresentation in the
 14 33 application for the license.
 14 34    b.  The licensee or any officer, partner, member, or key
 14 35 management personnel has been convicted of fraudulent or
 15  1 dishonest practices, is subject to a final administrative
 15  2 action, or is otherwise shown to be untrustworthy or
 15  3 incompetent.
 15  4    c.  The viatical settlement provider demonstrates a pattern
 15  5 of unreasonable payments to viators.
 15  6    d.  The licensee or any officer, partner, member, or key
 15  7 management personnel has been found guilty of, or has pleaded
 15  8 guilty or nolo contendere to, any felony, or to a misdemeanor
 15  9 involving fraud or moral turpitude, regardless of whether a
 15 10 judgment of conviction has been entered by the court.
 15 11    e.  The viatical settlement provider has entered into any
 15 12 viatical settlement contract that has not been approved
 15 13 pursuant to this chapter.
 15 14    f.  The viatical settlement provider has failed to honor
 15 15 contractual obligations set out in a viatical settlement
 15 16 contract.
 15 17    g.  The licensee no longer meets the requirements for
 15 18 initial licensure.
 15 19    h.  The viatical settlement provider has assigned,
 15 20 transferred, or pledged a viaticated policy to a person other
 15 21 than a viatical settlement provider licensed in this state,
 15 22 viatical settlement purchaser, an accredited investor, or
 15 23 qualified institutional buyer as defined respectively in 17
 15 24 C.F.R. } 230.501(a) or 17 C.F.R. } 230.144A as promulgated by
 15 25 the United States securities and exchange commission under the
 15 26 federal Securities Act of 1933, as amended, 15 U.S.C. } 77a et
 15 27 seq., a financing entity, special purpose entity, or related
 15 28 provider trust.
 15 29    i.  The licensee or any officer, partner, member, or key
 15 30 management personnel has violated any provision of this
 15 31 chapter.
 15 32    2.  The commissioner may suspend, revoke, or refuse to
 15 33 renew the license of a viatical settlement broker or a life
 15 34 insurance producer operating as a viatical settlement broker
 15 35 pursuant to this chapter if the commissioner finds that the
 16  1 viatical settlement broker or life insurance producer has
 16  2 violated the provisions of this chapter or has otherwise
 16  3 engaged in bad faith conduct with one or more viators.
 16  4    3.  If the commissioner denies a license application or
 16  5 suspends, revokes, or refuses to renew the license of a
 16  6 viatical settlement provider or viatical settlement broker, or
 16  7 suspends, revokes, or refuses to renew a license of a life
 16  8 insurance producer operating as a viatical settlement broker
 16  9 pursuant to this chapter, the commissioner shall conduct a
 16 10 hearing in accordance with chapter 17A.
 16 11    Sec. 5.  NEW SECTION.  508E.5  APPROVAL OF VIATICAL
 16 12 SETTLEMENT CONTRACTS AND DISCLOSURE STATEMENTS.
 16 13    A person shall not use a viatical settlement contract form
 16 14 or provide to a viator a disclosure statement form in this
 16 15 state unless first filed with and approved by the
 16 16 commissioner.  The commissioner shall disapprove a viatical
 16 17 settlement contract form or disclosure statement form if, in
 16 18 the commissioner's opinion, the contract or provisions
 16 19 contained therein fail to meet the requirements of sections
 16 20 508E.8, 508E.10, 508E.13, and 508.14, subsection 2, or are
 16 21 unreasonable, contrary to the interests of the public, or
 16 22 otherwise misleading or unfair to the viator.  At the
 16 23 commissioner's discretion, the commissioner may require the
 16 24 submission of advertising material.
 16 25    Sec. 6.  NEW SECTION.  508E.6  REPORTING REQUIREMENTS AND
 16 26 PRIVACY.
 16 27    1.  Each viatical settlement provider shall file with the
 16 28 commissioner on or before March 1 of each year an annual
 16 29 statement containing such information as the commissioner may
 16 30 adopt by rule.  Such information shall be limited to only
 16 31 those transactions where the viator is a resident of this
 16 32 state.  Notwithstanding chapter 22, individual transaction
 16 33 data regarding the business of viatical settlements or data
 16 34 that could compromise the privacy of personal, financial, and
 16 35 health information of the viator or insured shall be filed
 17  1 with the commissioner on a confidential basis.
 17  2    2.  Except as otherwise allowed or required by law, a
 17  3 viatical settlement provider, viatical settlement broker,
 17  4 insurance company, insurance producer, information bureau,
 17  5 rating agency or company, or any other person with actual
 17  6 knowledge of an insured's identity shall not disclose that
 17  7 identity as an insured, or the insured's financial or medical
 17  8 information to any other person unless the disclosure is any
 17  9 of the following:
 17 10    a.  Necessary to effect a viatical settlement between the
 17 11 viator and a viatical settlement provider and the viator and
 17 12 insured have provided prior written consent to the disclosure.
 17 13    b.  Provided in response to an investigation or examination
 17 14 by the commissioner or any other governmental officer or
 17 15 agency or pursuant to the requirements of section 508E.14,
 17 16 subsection 3.
 17 17    c.  A term of or condition to the transfer of a policy by
 17 18 one viatical settlement provider to another viatical
 17 19 settlement provider.
 17 20    d.  Necessary to permit a financing entity, related
 17 21 provider trust, or special purpose entity to finance the
 17 22 purchase of policies by a viatical settlement provider and the
 17 23 viator and insured have provided prior written consent to the
 17 24 disclosure.
 17 25    e.  Necessary to allow the viatical settlement provider,
 17 26 viatical settlement broker, or their authorized
 17 27 representatives to make contacts for the purpose of
 17 28 determining health status.
 17 29    f.  Required to purchase stop=loss coverage or financial
 17 30 guaranty insurance.
 17 31    Sec. 7.  NEW SECTION.  508E.7  EXAMINATION OR
 17 32 INVESTIGATIONS.
 17 33    1.  AUTHORITY, SCOPE, AND SCHEDULING OF EXAMINATIONS.
 17 34    a.  (1)  The commissioner may conduct an examination under
 17 35 this chapter of a licensee as often as the commissioner in the
 18  1 commissioner's discretion deems appropriate after considering
 18  2 the factors set forth in this paragraph "a".
 18  3    (2)  In scheduling and determining the nature, scope, and
 18  4 frequency of the examinations, the commissioner shall consider
 18  5 such matters as the consumer complaints, results of financial
 18  6 statement analyses and ratios, changes in management or
 18  7 ownership, actuarial opinions, reports of independent
 18  8 certified public accountants, and other relevant criteria as
 18  9 determined by the commissioner.
 18 10    b.  For purposes of completing an examination of a licensee
 18 11 under this chapter, the commissioner may examine or
 18 12 investigate any person, or the business of any person, in so
 18 13 far as the examination or investigation is, in the sole
 18 14 discretion of the commissioner, necessary or material to the
 18 15 examination of the licensee.
 18 16    c.  In lieu of an examination under this chapter of any
 18 17 foreign or alien licensee licensed in this state, the
 18 18 commissioner may, at the commissioner's discretion, accept an
 18 19 examination report on the licensee as prepared by the
 18 20 commissioner for the licensee's state of domicile or
 18 21 port=of=entry state.
 18 22    d.  As far as practical, the examination of a foreign or
 18 23 alien licensee shall be made in cooperation with the insurance
 18 24 supervisory officials of other states in which the licensee
 18 25 transacts business.
 18 26    2.  RECORD RETENTION REQUIREMENTS.
 18 27    a.  A person required to be licensed pursuant to section
 18 28 508E.3 shall for five years retain copies of all of the
 18 29 following:
 18 30    (1)  Proposed, offered, or executed contracts, purchase
 18 31 agreements, underwriting documents, policy forms, and
 18 32 applications from the date of the proposal, offer, or
 18 33 execution of the contract or purchase agreement, whichever is
 18 34 later.
 18 35    (2)  All checks, drafts, or other evidence and
 19  1 documentation related to the payment, transfer, deposit, or
 19  2 release of funds from the date of the transaction.
 19  3    (3)  All other records and documents related to the
 19  4 requirements of this chapter.
 19  5    b.  This section does not relieve a person of the
 19  6 obligation to produce documents described in paragraph "a" to
 19  7 the commissioner after the retention period has expired if the
 19  8 person has retained the documents.
 19  9    c.  Records required to be retained by paragraph "a" must
 19 10 be legible and complete and may be retained in paper,
 19 11 photograph, microprocess, magnetic, mechanical, or electronic
 19 12 media, or by any process that accurately reproduces or forms a
 19 13 durable medium for the reproduction of a record.
 19 14    3.  CONDUCT OF EXAMINATIONS.
 19 15    a.  Upon determining that an examination should be
 19 16 conducted, the commissioner shall issue an examination warrant
 19 17 appointing one or more examiners to perform the examination
 19 18 and instructing them as to the scope of the examination.  In
 19 19 conducting the examination, the examiner shall observe those
 19 20 guidelines and procedures set forth in the examiners handbook
 19 21 adopted by the national association of insurance
 19 22 commissioners.  The commissioner may also adopt rules for such
 19 23 other guidelines or procedures as the commissioner may deem
 19 24 appropriate.
 19 25    b.  Every licensee or person from whom information is
 19 26 sought, its officers, directors, and agents shall provide to
 19 27 the examiners timely, convenient, and free access at all
 19 28 reasonable hours at its offices to all books, records,
 19 29 accounts, papers, documents, assets, and computer or other
 19 30 recordings relating to the property, assets, business, and
 19 31 affairs of the licensee being examined.  The officers,
 19 32 directors, employees, and agents of the licensee or person
 19 33 shall facilitate the examination and aid in the examination so
 19 34 far as it is in their power to do so.  The refusal of a
 19 35 licensee, by its officers, directors, employees, or agents, to
 20  1 submit to examination or to comply with any reasonable written
 20  2 request of the commissioner shall be grounds for suspension or
 20  3 refusal of, or nonrenewal of, any license or authority held by
 20  4 the licensee to engage in the viatical settlement business or
 20  5 other business subject to the commissioner's jurisdiction.
 20  6 Any proceedings for suspension, revocation, or refusal of any
 20  7 license or authority shall be conducted pursuant to section
 20  8 507B.6A.
 20  9    c.  The commissioner shall have the power to issue
 20 10 subpoenas, to administer oaths, and to examine under oath any
 20 11 person as to any matter pertinent to the examination.  Upon
 20 12 the failure or refusal of a person to obey a subpoena, the
 20 13 commissioner may petition a court of competent jurisdiction,
 20 14 and upon proper showing, the court may enter an order
 20 15 compelling the witness to appear and testify or produce
 20 16 documentary evidence.  A failure to obey the court order shall
 20 17 be punishable as contempt of court.
 20 18    d.  When making an examination under this chapter, the
 20 19 commissioner may retain attorneys, appraisers, independent
 20 20 actuaries, independent certified public accountants, or other
 20 21 professionals and specialists as examiners, the reasonable
 20 22 cost of which shall be borne by the licensee that is the
 20 23 subject of the examination.
 20 24    e.  Nothing contained in this chapter shall be construed to
 20 25 limit the commissioner's authority to terminate or suspend an
 20 26 examination in order to pursue other legal or regulatory
 20 27 action pursuant to the insurance laws of this state.  Findings
 20 28 of fact and conclusions made pursuant to any examination shall
 20 29 be prima facie evidence in any legal or regulatory action.
 20 30    f.  The commissioner's authority to use and, if
 20 31 appropriate, to make public any final or preliminary
 20 32 examination report, any examiner or licensee workpapers, or
 20 33 other documents, or any other information discovered or
 20 34 developed during the course of any examination in the
 20 35 furtherance of any legal or regulatory action shall be
 21  1 permitted consistent with section 507.14.
 21  2    4.  EXAMINATION REPORTS.
 21  3    a.  Examination reports shall be comprised of only facts
 21  4 appearing upon the books, records, or other documents of the
 21  5 licensee, its agents, or other persons examined, or as
 21  6 ascertained from the testimony of its officers, agents, or
 21  7 other persons examined concerning its affairs, and such
 21  8 conclusions and recommendations as the examiners find
 21  9 reasonably warranted from the facts.
 21 10    b.  Not later than sixty days following completion of the
 21 11 examination, the examiner in charge shall file with the
 21 12 commissioner a verified written report of examination under
 21 13 oath.  Upon receipt of the verified report, the commissioner
 21 14 shall transmit the report to the licensee examined, together
 21 15 with a notice that shall afford the licensee examined a
 21 16 reasonable opportunity of not more than thirty days to make a
 21 17 written submission or rebuttal with respect to any matters
 21 18 contained in the examination report.
 21 19    c.  In the event the commissioner determines that
 21 20 regulatory action is appropriate as a result of an
 21 21 examination, the commissioner may initiate any proceedings or
 21 22 actions provided by law.
 21 23    5.  CONFIDENTIALITY OF EXAMINATION INFORMATION.
 21 24    a.  Notwithstanding chapter 22, the names and individual
 21 25 identification data for all viators shall be considered
 21 26 private and confidential information and shall not be
 21 27 disclosed by the commissioner, unless required by law.
 21 28    b.  Except as otherwise provided in this chapter, all
 21 29 examination reports, working papers, recorded information,
 21 30 documents, and copies thereof produced by, obtained by, or
 21 31 disclosed to the commissioner or any other person in the
 21 32 course of an examination made under this chapter, or in the
 21 33 course of an analysis or investigation by the commissioner of
 21 34 the financial condition or market conduct of a licensee, shall
 21 35 be confidential by law and privileged, shall not be subject to
 22  1 chapter 22, shall not be subject to subpoena, and shall not be
 22  2 subject to discovery or admissible in evidence in any private
 22  3 civil action.  The commissioner is authorized to use the
 22  4 documents, materials, or other information in the furtherance
 22  5 of any regulatory or legal action brought as part of the
 22  6 commissioner's official duties.
 22  7    c.  Documents, materials, or other information, including
 22  8 but not limited to all working papers and copies, in the
 22  9 possession or control of the national association of insurance
 22 10 commissioners and its affiliates and subsidiaries shall be
 22 11 confidential by law and privileged, shall not be subject to
 22 12 chapter 22, shall not be subject to subpoena, and shall not be
 22 13 subject to discovery or admissible in evidence in any private
 22 14 civil action if they are any of the following:
 22 15    (1)  Created, produced, or obtained by or disclosed to the
 22 16 national association of insurance commissioners and its
 22 17 affiliates and subsidiaries in the course of assisting an
 22 18 examination made under this chapter, or assisting the
 22 19 commissioner in the analysis or investigation of the financial
 22 20 condition or market conduct of a licensee.
 22 21    (2)  Disclosed to the national association of insurance
 22 22 commissioners and its affiliates and subsidiaries under
 22 23 paragraph "d" by the commissioner.
 22 24    (3)  For the purposes of paragraph "b", "chapter" includes
 22 25 the law of another state or jurisdiction that is substantially
 22 26 similar to this chapter.
 22 27    d.  Neither the commissioner nor any person that received
 22 28 the documents, materials, or other information while acting
 22 29 under the authority of the commissioner, including the
 22 30 national association of insurance commissioners and its
 22 31 affiliates and subsidiaries, shall be permitted to testify in
 22 32 any private civil action concerning any confidential
 22 33 documents, materials, or information subject to paragraph "a".
 22 34    e.  In order to assist in the performance of the
 22 35 commissioner's duties, the commissioner may do all of the
 23  1 following:
 23  2    (1)  Share documents, materials, or other information,
 23  3 including the confidential and privileged documents,
 23  4 materials, or information subject to paragraph "a", with other
 23  5 state, federal, and international regulatory agencies, with
 23  6 the national association of insurance commissioners and its
 23  7 affiliates and subsidiaries, and with state, federal, and
 23  8 international law enforcement authorities, provided that the
 23  9 recipient agrees to maintain the confidentiality and
 23 10 privileged status of the documents, materials, communications,
 23 11 or other information.
 23 12    (2)  Receive documents, materials, communications, or
 23 13 information, including otherwise confidential and privileged
 23 14 documents, materials, or information, from the national
 23 15 association of insurance commissioners and its affiliates and
 23 16 subsidiaries, notwithstanding chapter 22, and from regulatory
 23 17 and law enforcement officials of other foreign or domestic
 23 18 jurisdictions, and shall maintain as confidential or
 23 19 privileged any documents, materials, or information received
 23 20 with notice or the understanding that it is confidential or
 23 21 privileged under the laws of the jurisdiction that is the
 23 22 source of the documents, materials, or information.
 23 23    (3)  Enter into agreements governing sharing and use of
 23 24 information consistent with section 507.14, subsection 4.
 23 25    f.  No waiver of any applicable privilege or claim of
 23 26 confidentiality in the documents, materials, or information
 23 27 shall occur as a result of disclosure to the commissioner
 23 28 under this section or as a result of sharing as authorized in
 23 29 paragraph "c".
 23 30    g.  A privilege established under the law of any state or
 23 31 jurisdiction that is substantially similar to the privilege
 23 32 established under this subsection shall be available and
 23 33 enforced in any proceeding in, and in any court of, this
 23 34 state.
 23 35    h.  Nothing contained in this chapter shall prevent or be
 24  1 construed as prohibiting the commissioner from disclosing the
 24  2 content of an examination report, preliminary examination
 24  3 report or results, or any matter relating thereto, to the
 24  4 commissioner of any other state or country, or to law
 24  5 enforcement officials of this or any other state or agency of
 24  6 the federal government at any time or to the national
 24  7 association of insurance commissioners, so long as such agency
 24  8 or office receiving the report or matters relating thereto
 24  9 agrees in writing to hold it confidential and in a manner
 24 10 consistent with this chapter.
 24 11    6.  CONFLICT OF INTEREST.
 24 12    a.  An examiner may not be appointed by the commissioner if
 24 13 the examiner, either directly or indirectly, has a conflict of
 24 14 interest or is affiliated with the management of or owns a
 24 15 pecuniary interest in any person subject to examination under
 24 16 this chapter.  This section shall not be construed to
 24 17 automatically preclude an examiner from being any of the
 24 18 following:
 24 19    (1)  A viator.
 24 20    (2)  An insured in a viaticated insurance policy.
 24 21    (3)  A beneficiary in an insurance policy that is proposed
 24 22 to be viaticated.
 24 23    b.  Notwithstanding the requirements of paragraph "a", the
 24 24 commissioner may retain from time to time, on an individual
 24 25 basis, qualified actuaries, certified public accountants, or
 24 26 other similar individuals who are independently practicing
 24 27 their professions, even though these persons may from time to
 24 28 time be similarly employed or retained by persons subject to
 24 29 examination under this chapter.
 24 30    7.  COST OF EXAMINATIONS.
 24 31    a.  The commissioner may appoint insurance examiners who,
 24 32 while conducting examinations, shall possess all the powers
 24 33 conferred upon the commissioner for such purposes.  The entire
 24 34 time of the examiners shall be under the control of the
 24 35 commissioner, and shall be employed as the commissioner may
 25  1 direct.
 25  2    b.  The commissioner may, when in the commissioner's
 25  3 judgment it is advisable, appoint assistants to aid in making
 25  4 examinations.  The examiners shall be compensated on the basis
 25  5 of the normal workweek of the insurance division at a salary
 25  6 to be fixed by the commissioner subject, however, to the
 25  7 provisions of section 505.14.  The compensation shall be paid
 25  8 from appropriations for such purposes upon certification of
 25  9 the commissioner, which shall be reimbursed as provided in
 25 10 sections 507.8 and 507.9.
 25 11    c.  When making an examination under this chapter, the
 25 12 commissioner may retain attorneys, appraisers, independent
 25 13 actuaries, independent certified public accountants, or other
 25 14 professionals and specialists as examiners, the reasonable
 25 15 cost of which shall be borne by the company which is the
 25 16 subject of the examination.
 25 17    d.  The commissioner shall, upon the completion of an
 25 18 examination, or at such regular intervals prior to completion
 25 19 as the commissioner determines, prepare an account of the
 25 20 costs incurred in performing and preparing the report of such
 25 21 examinations which shall be charged to and paid by the company
 25 22 examined, and upon failure or refusal of a company examined to
 25 23 pay such costs, the same may be recovered by the commissioner
 25 24 or the attorney general in an action brought in the name of
 25 25 the state, and the commissioner may also revoke the
 25 26 certificate of authority of such company to transact business
 25 27 within this state.
 25 28    8.  IMMUNITY FROM LIABILITY.
 25 29    a.  No cause of action shall arise, nor shall any liability
 25 30 be imposed, against the commissioner, the commissioner's
 25 31 authorized representatives, or any examiner appointed by the
 25 32 commissioner for any statements made or conduct performed in
 25 33 good faith while carrying out the provisions of this chapter.
 25 34    b.  No cause of action shall arise, nor shall any liability
 25 35 be imposed, against any person for the act of communicating or
 26  1 delivering information or data to the commissioner or the
 26  2 commissioner's authorized representative or examiner pursuant
 26  3 to an examination made under this chapter, if the act of
 26  4 communication or delivery was performed in good faith and
 26  5 without fraudulent intent or the intent to deceive.  This
 26  6 paragraph does not abrogate or modify in any way any common
 26  7 law or statutory privilege or immunity heretofore enjoyed by
 26  8 any person identified in paragraph "a".
 26  9    c.  A person identified in paragraph "a" or "b" shall be
 26 10 entitled to an award of attorney fees and costs if the person
 26 11 is the prevailing party in a civil cause of action for libel,
 26 12 slander, or any other relevant tort arising out of activities
 26 13 in carrying out the provisions of this chapter and the party
 26 14 bringing the action was not substantially justified in doing
 26 15 so.  For purposes of this paragraph, a proceeding is
 26 16 "substantially justified" if it had a reasonable basis in law
 26 17 or fact at the time that it was initiated.
 26 18    9.  INVESTIGATIVE AUTHORITY OF THE COMMISSIONER.  The
 26 19 commissioner may investigate suspected fraudulent viatical
 26 20 settlement acts and persons engaged in the business of
 26 21 viatical settlements.
 26 22    Sec. 8.  NEW SECTION.  508E.8  DISCLOSURE TO VIATOR.
 26 23    1.  With each application for a viatical settlement, a
 26 24 viatical settlement provider or viatical settlement broker
 26 25 shall provide the viator with at least the following
 26 26 disclosures no later than the time the application for the
 26 27 viatical settlement contract is signed by all parties.  The
 26 28 disclosures shall be provided in a separate document that is
 26 29 signed by the viator and the viatical settlement provider or
 26 30 viatical settlement broker, and shall provide all of the
 26 31 following information:
 26 32    a.  There are possible alternatives to viatical settlement
 26 33 contracts including any accelerated death benefits or policy
 26 34 loans offered under the viator's life insurance policy.
 26 35    b.  That a viatical settlement broker represents
 27  1 exclusively the viator, and not the insurer or the viatical
 27  2 settlement provider, and owes a fiduciary duty to the viator,
 27  3 including a duty to act according to the viator's instructions
 27  4 and in the best interest of the viator.
 27  5    c.  Some or all of the proceeds of the viatical settlement
 27  6 may be taxable under federal income tax and state franchise
 27  7 and income taxes, and assistance should be sought from a
 27  8 professional tax advisor.
 27  9    d.  Proceeds of the viatical settlement could be subject to
 27 10 the claims of creditors.
 27 11    e.  Receipt of the proceeds of a viatical settlement may
 27 12 adversely affect the viator's eligibility for Medicaid or
 27 13 other government benefits or entitlements, and advice should
 27 14 be obtained from the appropriate government agencies.
 27 15    f.  The viator has the right to rescind a viatical
 27 16 settlement contract before the earlier of sixty days after the
 27 17 date upon which the viatical settlement contract is executed
 27 18 by all parties or thirty days after the viatical settlement
 27 19 proceeds have been paid to the viator, as provided in section
 27 20 508E.10, subsection 3.  Recision, if exercised by the viator,
 27 21 is effective only if both notice of the recision is given, and
 27 22 the viator repays all proceeds and any premiums, loans, and
 27 23 loan interest paid on account of the viatical settlement
 27 24 within the recision period.  If the insured dies during the
 27 25 recision period, the viatical settlement contract shall be
 27 26 deemed to have been rescinded, subject to repayment by the
 27 27 viator or the viator's estate of all viatical settlement
 27 28 proceeds and any premiums, loans, and loan interest that have
 27 29 been paid by the viatical settlement provider or purchaser
 27 30 within sixty days of the insured's death.
 27 31    g.  Funds will be sent to the viator within three business
 27 32 days after the viatical settlement provider has received the
 27 33 insurer's or group administrator's written acknowledgment that
 27 34 ownership of the policy or interest in the certificate has
 27 35 been transferred and the beneficiary has been designated.
 28  1    h.  Entering into a viatical settlement contract may cause
 28  2 other rights or benefits, including conversion rights and
 28  3 waiver of premium benefits, that may exist under the policy or
 28  4 certificate, to be forfeited by the viator.  Assistance should
 28  5 be sought from a financial adviser.
 28  6    i.  Disclosure to a viator shall include distribution of a
 28  7 brochure describing the process of viatical settlements.  The
 28  8 national association of insurance commissioners form for the
 28  9 brochure shall be used unless another form is developed or
 28 10 approved by the commissioner.
 28 11    j.  The disclosure document shall contain the following
 28 12 language:
 28 13    "All medical, financial, or personal information solicited
 28 14 or obtained by a viatical settlement provider or viatical
 28 15 settlement broker about an insured, including the insured's
 28 16 identity or the identity of family members, a spouse, or a
 28 17 significant other may be disclosed as necessary to effect the
 28 18 viatical settlement between the viator and the viatical
 28 19 settlement provider.  If you are asked to provide this
 28 20 information, you will be asked to consent to the disclosure.
 28 21 The information may be provided to someone who buys the policy
 28 22 or provides funds for the purchase.  You may be asked to renew
 28 23 your permission to share information every two years."
 28 24    k.  Following execution of a viatical contract, the insured
 28 25 may be contacted for the purpose of determining the insured's
 28 26 health status and to confirm the insured's residential or
 28 27 business street address and telephone number, or as otherwise
 28 28 provided in this chapter.  This contact shall be limited to
 28 29 once every three months if the insured has a life expectancy
 28 30 of more than one year, and no more than once per month if the
 28 31 insured has a life expectancy of one year or less.  All such
 28 32 contracts shall be made only by a viatical settlement provider
 28 33 licensed in the state in which the viator resided at the time
 28 34 of the viatical settlement, or by the authorized
 28 35 representative of a duly licensed viatical settlement
 29  1 provider.
 29  2    2.  A viatical settlement provider shall provide the viator
 29  3 with at least the following disclosures no later than the date
 29  4 the viatical settlement contract is signed by all parties.
 29  5 The disclosures shall be conspicuously displayed in the
 29  6 viatical settlement contract or in a separate document signed
 29  7 by the viator and provide all of the following information:
 29  8    a.  The affiliation, if any, between the viatical
 29  9 settlement provider and the issuer of the insurance policy to
 29 10 be viaticated.
 29 11    b.  The name, business address, and telephone number of the
 29 12 viatical settlement provider.
 29 13    c.  Any affiliations or contractual arrangements between
 29 14 the viatical settlement provider and the viatical settlement
 29 15 purchaser.
 29 16    d.  If an insurance policy to be viaticated has been issued
 29 17 as a joint policy or involves family riders or any coverage of
 29 18 a life other than the insured under the policy to be
 29 19 viaticated, a notice of the viator's possible loss of coverage
 29 20 on the other lives under the policy and to consult with the
 29 21 viator's insurance producer or the insurer issuing the policy
 29 22 for advice on the proposed viatical settlement.
 29 23    e.  The dollar amount of the current death benefit payable
 29 24 to the viatical settlement provider under the policy or
 29 25 certificate.  If known, the viatical settlement provider shall
 29 26 also disclose the availability of any additional guaranteed
 29 27 insurance benefits, the dollar amount of any accidental death
 29 28 and dismemberment benefits under the policy or certificate,
 29 29 and the extent to which the viator's interest in those
 29 30 benefits will be transferred as a result of the viatical
 29 31 settlement contract.
 29 32    f.  Whether the funds will be escrowed with an independent
 29 33 third party during the transfer process, and if so, provide
 29 34 the name, business address, and telephone number of the
 29 35 independent third=party escrow agent, and the fact that the
 30  1 viator or owner may inspect or receive copies of the relevant
 30  2 escrow or trust agreements or documents.
 30  3    3.  A viatical settlement broker shall provide the viator
 30  4 with at least the following disclosures no later than the date
 30  5 the viatical settlement contract is signed by all parties.
 30  6 The disclosures shall be conspicuously displayed in the
 30  7 viatical settlement contract or in a separate document signed
 30  8 by the viator and provide all of the following information:
 30  9    a.  The name, business address, and telephone number of the
 30 10 viatical settlement broker.
 30 11    b.  A full, complete, and accurate description of all
 30 12 offers, counteroffers, acceptances, and rejections relating to
 30 13 the proposed viatical settlement contract.
 30 14    c.  Any affiliations or contractual arrangements between
 30 15 the viatical settlement broker and any person making an offer
 30 16 in connection with the proposed viatical settlement contracts.
 30 17    d.  The amount and method of calculating the broker's
 30 18 compensation.  As used in this paragraph, "compensation"
 30 19 includes anything of value paid or given to a viatical
 30 20 settlement broker for the placement of a policy.
 30 21    e.  Where any portion of the viatical settlement broker's
 30 22 compensation, as defined in paragraph "d", is taken from a
 30 23 proposed viatical settlement offer, the broker shall disclose
 30 24 the total amount of the viatical settlement offer and the
 30 25 percentage of the viatical settlement offer comprised by the
 30 26 viatical settlement broker's compensation.
 30 27    4.  If the viatical settlement provider transfers ownership
 30 28 or changes the beneficiary of the insurance policy, the
 30 29 viatical settlement provider shall communicate in writing the
 30 30 change in ownership or beneficiary to the insured within
 30 31 twenty days after the change.
 30 32    5.  A viatical settlement provider shall provide the
 30 33 viatical settlement purchaser with at least the following
 30 34 disclosures prior to the date the viatical settlement purchase
 30 35 agreement is signed by all parties.  The disclosures shall be
 31  1 conspicuously displayed in any viatical purchase contract or
 31  2 in a separate document signed by the viatical settlement
 31  3 purchaser and viatical settlement provider or viatical
 31  4 settlement investment agent, and shall make the following
 31  5 disclosure to the viatical settlement purchaser:
 31  6    a.  The viatical settlement purchaser will receive no
 31  7 returns including dividends and interest, until the insured
 31  8 dies and a death claim payment is made.
 31  9    b.  The actual annual rate of return on a viatical
 31 10 settlement contract is dependent upon an accurate projection
 31 11 of the insured's life expectancy, and the actual date of the
 31 12 insured's death.  An annual "guaranteed" rate of return is not
 31 13 determinable.
 31 14    c.  The viaticated life insurance contract should not be
 31 15 considered a liquid purchase since it is impossible to predict
 31 16 the exact timing of its maturity and the funds probably are
 31 17 not available until the death of the insured.  There is no
 31 18 established secondary market for resale of these products by
 31 19 the viatical settlement purchaser.
 31 20    d.  The viatical settlement purchaser may lose all benefits
 31 21 or may receive substantially reduced benefits if the insurer
 31 22 goes out of business during the term of the viatical
 31 23 investment.
 31 24    e.  The purchaser is responsible for payment of the
 31 25 insurance premium or other costs related to the policy, if
 31 26 required by the terms of the viatical purchase agreement.
 31 27 These payments may reduce the viatical settlement purchaser's
 31 28 return.  If a party other than the viatical settlement
 31 29 purchaser is responsible for the payment, the name and address
 31 30 of that party also shall be disclosed.
 31 31    f.  The viatical settlement purchaser is responsible for
 31 32 payment of the insurance premiums or other costs related to
 31 33 the policy if the insured returns to health.  The viatical
 31 34 settlement provider shall disclose the amount of such
 31 35 premiums, if applicable.
 32  1    g.  The name, business address, and telephone number of the
 32  2 independent third party providing escrow services and the
 32  3 relationship to the viatical settlement broker.
 32  4    h.  The amount of any trust fees or other expenses to be
 32  5 charged to the viatical settlement purchaser shall be
 32  6 disclosed.
 32  7    i.  Whether the viatical settlement purchaser is entitled
 32  8 to a refund of all or part of the viatical settlement
 32  9 purchaser's investment under the settlement contract if the
 32 10 policy is later determined to be null and void.
 32 11    j.  That group policies may contain limitations or caps in
 32 12 the conversion rights, additional premiums may have to be paid
 32 13 if the policy is converted, the name of the party responsible
 32 14 for the payment of the additional premiums, and, if a group
 32 15 policy is terminated and replaced by another group policy,
 32 16 that there may be no right to convert the original coverage.
 32 17    k.  The risks associated with policy contestability
 32 18 including but not limited to the risk that the viatical
 32 19 settlement purchaser will have no claim or only a partial
 32 20 claim to death benefits should the insurer rescind the policy
 32 21 within the contestability period.
 32 22    l.  Whether the viatical settlement purchaser will be the
 32 23 owner of the policy in addition to being the beneficiary, and
 32 24 if the viatical settlement purchaser is the beneficiary only
 32 25 and not also the owner, the special risks associated with that
 32 26 status, including but not limited to the risk that the
 32 27 beneficiary may be changed or the premium may not be paid.
 32 28    m.  The experience and qualifications of the person who
 32 29 determines the life expectancy of the insured, including
 32 30 in=house staff, independent physicians, and specialty firms
 32 31 that weigh medical and actuarial data; the information this
 32 32 projection is based on; and the relationship of the projection
 32 33 maker to the viatical settlement provider, if any.
 32 34    n.  A brochure describing the process of investment in
 32 35 viatical settlements.  The national association of insurance
 33  1 commissioners form for the brochure shall be used unless
 33  2 another form is developed and approved by the commissioner.
 33  3    6.  A viatical settlement provider shall provide the
 33  4 viatical settlement purchaser with at least the following
 33  5 disclosures no later than at the time of the assignment,
 33  6 transfer, or sale of all or a portion of an insurance policy.
 33  7 The disclosures shall be contained in a document signed by the
 33  8 viatical settlement purchaser and viatical settlement
 33  9 provider, and shall make all of the following disclosures to
 33 10 the viatical settlement purchaser:
 33 11    a.  All the life expectancy certifications obtained by the
 33 12 provider in the process of determining the price paid to the
 33 13 viator.
 33 14    b.  Whether premium payments or other costs related to the
 33 15 policy have been escrowed.  If escrowed, state the date upon
 33 16 which the escrowed funds will be depleted and whether the
 33 17 viatical settlement purchaser will be responsible for payment
 33 18 of premiums thereafter and, if so, the amount of the premiums.
 33 19    c.  Whether premium payments or other costs related to the
 33 20 policy have been waived.  If waived, disclose whether the
 33 21 investor will be responsible for payment of the premiums if
 33 22 the insurer that wrote the policy terminates the waiver after
 33 23 purchase and the amount of those premiums.
 33 24    d.  The type of policy offered or sold, i.e., whole life,
 33 25 term life, universal life, or a group policy certificate, any
 33 26 additional benefits contained in the policy, and the current
 33 27 status of the policy.
 33 28    e.  If the policy is term insurance, the special risks
 33 29 associated with term insurance including but not limited to
 33 30 the viatical settlement purchaser's responsibility for
 33 31 additional premiums if the viator continues the term policy at
 33 32 the end of the current term.
 33 33    f.  Whether the policy is contestable.
 33 34    g.  Whether the insurer that wrote the policy has any
 33 35 additional rights that could negatively affect or extinguish
 34  1 the viatical settlement purchaser's rights under the viatical
 34  2 settlement contract, what these rights are, and under what
 34  3 conditions these rights are activated.
 34  4    h.  The name and address of the person responsible for
 34  5 monitoring the insured's condition.  The viatical settlement
 34  6 provider shall describe how often the monitoring of the
 34  7 insured's condition is done, how the date of death is
 34  8 determined, and how and when this information will be
 34  9 transmitted to the viatical settlement purchaser.
 34 10    Sec. 9.  NEW SECTION.  508E.9  DISCLOSURE TO INSURER.
 34 11    Prior to the initiation of a plan, transaction, or series
 34 12 of transactions, a viatical settlement broker, or viatical
 34 13 settlement provider, shall fully disclose to an insurer a
 34 14 plan, transaction, or series of transactions to which the
 34 15 viatical settlement broker or viatical settlement provider is
 34 16 a party to originate, renew, continue, or finance a life
 34 17 insurance policy with the insurer for the purpose of engaging
 34 18 in the business of viatical settlements at any time prior to,
 34 19 or during the first five years after, issuance of the policy.
 34 20    Sec. 10.  NEW SECTION.  508E.10  GENERAL RULES.
 34 21    1.  a.  A viatical settlement provider entering into a
 34 22 viatical settlement contract shall first obtain all of the
 34 23 following:
 34 24    (1)  If the viator is the insured, a written statement from
 34 25 a licensed attending physician that the viator is of sound
 34 26 mind and under no constraint or undue influence to enter into
 34 27 a viatical settlement contract.
 34 28    (2)  A document in which the insured consents to the
 34 29 release of the insured's medical records to a licensed
 34 30 viatical settlement provider, viatical settlement broker, and
 34 31 the insurance company that issued the life insurance policy
 34 32 covering the life of the insured.
 34 33    b.  Within twenty days after a viator executes documents
 34 34 necessary to transfer any rights under an insurance policy or
 34 35 within twenty days of entering any agreement, option, promise,
 35  1 or any other form of understanding, expressed or implied, to
 35  2 viaticate the policy, the viatical settlement provider shall
 35  3 give written notice to the insurer that issued that insurance
 35  4 policy that the policy has or will become a viaticated policy.
 35  5 The notice shall be accompanied by the documents required by
 35  6 paragraph "c".
 35  7    c.  The viatical provider shall deliver a copy of the
 35  8 medical release required under paragraph "a", subparagraph
 35  9 (2), a copy of the viator's application for the viatical
 35 10 settlement contract, the notice required under paragraph "b",
 35 11 and a request for verification of coverage to the insurer that
 35 12 issued the life policy that is the subject of the viatical
 35 13 transaction.  The national association of insurance
 35 14 commissioners form for verification of coverage shall be used
 35 15 unless another form is developed and approved by the
 35 16 commissioner.
 35 17    d.  The insurer shall respond to a request for verification
 35 18 of coverage submitted on an approved form by a viatical
 35 19 settlement provider or viatical settlement broker within
 35 20 thirty days of the date the request is received and shall
 35 21 indicate whether, based on the medical evidence and documents
 35 22 provided, the insurer intends to pursue an investigation at
 35 23 this time regarding the validity of the insurance contract or
 35 24 possible fraud.  The insurer shall accept a request for
 35 25 verification of coverage made on a national association of
 35 26 insurance commissioners form or any other form developed and
 35 27 approved by the commissioner.  The insurer shall accept an
 35 28 original, facsimile, or electronic copy of such request and
 35 29 any accompanying authorization signed by the viator.  A
 35 30 failure by the insurer to meet its obligations under this
 35 31 subsection shall be a violation of sections 508E.11 and
 35 32 508E.16.
 35 33    e.  Prior to or at the time of execution of the viatical
 35 34 settlement contract, the viatical settlement provider shall
 35 35 obtain a witnessed document in which the viator consents to
 36  1 the viatical settlement contract, represents that the viator
 36  2 has a full and complete understanding of the viatical
 36  3 settlement contract, that the viator has a full and complete
 36  4 understanding of the benefits of the life insurance policy,
 36  5 acknowledges that the viator is entering into the viatical
 36  6 settlement contract freely and voluntarily, and, for persons
 36  7 with a terminal or chronic illness or condition, acknowledges
 36  8 that the insured has a terminal or chronic illness and that
 36  9 the terminal or chronic illness or condition was diagnosed
 36 10 after the life insurance policy was issued.
 36 11    f.  If a viatical settlement broker performs any of these
 36 12 activities required of the viatical settlement provider, the
 36 13 viatical settlement provider is deemed to have fulfilled the
 36 14 requirements of this section.
 36 15    2.  All medical information solicited or obtained by any
 36 16 licensee shall be subject to the applicable provisions of
 36 17 state law relating to confidentiality of medical information,
 36 18 including section 505.8.
 36 19    3.  All viatical settlement contracts entered into in this
 36 20 state shall provide the viator with an absolute right to
 36 21 rescind the contract before the earlier of sixty days after
 36 22 the date upon which the viatical settlement contract is
 36 23 executed by all parties or thirty days after the viatical
 36 24 settlement proceeds have been sent to the viator as provided
 36 25 in section 508E.10, subsection 4.  Recision by the viator may
 36 26 be conditioned upon the viator both giving notice and repaying
 36 27 to the viatical settlement provider within the recision period
 36 28 all viatical settlement proceeds, and any premiums, loans, and
 36 29 loan interest paid by or on behalf of the viatical settlement
 36 30 provider in connection with or as a consequence of the
 36 31 viatical settlement.  If the insured dies during the recision
 36 32 period, the viatical settlement contract shall be deemed to
 36 33 have been rescinded, subject to repayment to the viatical
 36 34 settlement provider or purchaser of all viatical settlement
 36 35 proceeds, and any premiums, loans, and loan interest that have
 37  1 been paid by the viatical settlement provider or purchaser,
 37  2 which shall be paid within sixty days of the death of the
 37  3 insured.  In the event of any recision, if the viatical
 37  4 settlement provider has paid commissions or other compensation
 37  5 to a viatical settlement broker in connection with the
 37  6 rescinded transaction, the viatical settlement broker shall
 37  7 refund all such commissions and compensation to the viatical
 37  8 settlement provider within five business days following
 37  9 receipt of written demand from the viatical settlement
 37 10 provider, which demand shall be accompanied by either the
 37 11 viator's notice of recision if rescinded at the election of
 37 12 the viator, or a notice of the death of the insured if
 37 13 rescinded by reason of the death of the insured within the
 37 14 applicable recision period.
 37 15    4.  The viatical settlement provider shall instruct the
 37 16 viator to send the executed documents required to effect the
 37 17 change in ownership, assignment, or change in beneficiary
 37 18 directly to the independent escrow agent.  Within three
 37 19 business days after the date the escrow agent receives the
 37 20 document, or from the date the viatical settlement provider
 37 21 receives the documents, if the viator erroneously provides the
 37 22 documents directly to the viatical settlement provider, the
 37 23 viatical settlement provider shall pay or transfer the
 37 24 viatical settlement proceeds into an escrow or trust account
 37 25 maintained in a state or federally chartered financial
 37 26 institution whose deposits are insured by the federal deposit
 37 27 insurance corporation.  Upon payment of the viatical
 37 28 settlement proceeds into the escrow account, the escrow agent
 37 29 shall deliver the original change in ownership, assignment, or
 37 30 change in beneficiary forms to the viatical settlement
 37 31 provider or related provider trust, or other designated
 37 32 representative of the viatical settlement provider.  Upon the
 37 33 escrow agent's receipt of the acknowledgment of the properly
 37 34 completed transfer of ownership, assignment, or designation of
 37 35 beneficiary from the insurance company, the escrow agent shall
 38  1 pay the viatical settlement proceeds to the viator.
 38  2    5.  A failure to tender consideration to the viator for the
 38  3 viatical settlement contract within the time set forth in the
 38  4 disclosure pursuant to section 508E.8, subsection 1, paragraph
 38  5 "g", renders the viatical settlement contract voidable by the
 38  6 viator for lack of consideration until the time consideration
 38  7 is tendered to and accepted by the viator.  Funds shall be
 38  8 deemed sent by a viatical settlement provider to a viator as
 38  9 of the date that the escrow agent either releases funds for
 38 10 wire transfer to the viator or places a check for delivery to
 38 11 the viator via the United States postal service or other
 38 12 nationally recognized delivery service.
 38 13    6.  A contact with the insured for the purpose of
 38 14 determining the health status of the insured by the viatical
 38 15 settlement provider or viatical settlement broker after the
 38 16 viatical settlement has occurred shall only be made by the
 38 17 viatical settlement provider or viatical settlement broker
 38 18 licensed pursuant to section 508E.3 or its authorized
 38 19 representatives and shall be limited to once every three
 38 20 months for insureds with a life expectancy of more than one
 38 21 year, and to no more than once per month for insureds with a
 38 22 life expectancy of one year or less.  The viatical settlement
 38 23 provider or viatical settlement broker shall explain the
 38 24 procedure for these contacts at the time the viatical
 38 25 settlement contract is entered into.  The limitations set
 38 26 forth in this subsection shall not apply to any contact with
 38 27 an insured for reasons other than determining the insured's
 38 28 health status.  A viatical settlement provider and a viatical
 38 29 settlement broker shall be responsible for the actions of
 38 30 their authorized representatives.
 38 31    Sec. 11.  NEW SECTION.  508E.11  PROHIBITED PRACTICES.
 38 32    1.  It is a violation of this chapter for any person to
 38 33 enter into a viatical settlement contract at any time prior to
 38 34 the application or issuance of a policy which is the subject
 38 35 of a viatical settlement contract or within a five=year period
 39  1 commencing with the date of issuance of the insurance policy
 39  2 or certificate unless the viator certifies to the viatical
 39  3 settlement provider that one or more of the following
 39  4 conditions have been met within the five=year period:
 39  5    a.  The policy was issued upon the viator's exercise of
 39  6 conversion rights arising out of a group or individual policy,
 39  7 provided the total of the time covered under the conversion
 39  8 policy plus the time covered under the prior policy is at
 39  9 least sixty months.  The time covered under a group policy
 39 10 shall be calculated without regard to any change in insurance
 39 11 carriers, provided the coverage has been continuous and under
 39 12 the same group sponsorship.
 39 13    b.  The viator submits independent evidence to the viatical
 39 14 settlement provider that one or more of the following
 39 15 conditions have been met within the five=year period:
 39 16    (1)  The viator or insured is terminally or chronically
 39 17 ill.
 39 18    (2)  The viator's spouse dies.
 39 19    (3)  The viator divorces the viator's spouse.
 39 20    (4)  The viator retires from full=time employment.
 39 21    (5)  The viator becomes physically or mentally disabled and
 39 22 a physician determines that the disability prevents the viator
 39 23 from maintaining full=time employment.
 39 24    (6)  A final order, judgment, or decree is entered by a
 39 25 court of competent jurisdiction, on the application of a
 39 26 creditor of the viator, adjudicating the viator bankrupt or
 39 27 insolvent, or approving a petition seeking reorganization of
 39 28 the viator or appointing a receiver, trustee, or liquidator to
 39 29 all or a substantial part of the viator's assets.
 39 30    c.  The viator enters into a viatical settlement contract
 39 31 more than two years after the date of issuance of a policy
 39 32 and, with respect to the policy, at all times prior to the
 39 33 date that is two years after policy issuance, all of the
 39 34 following conditions are met:
 39 35    (1)  Policy premiums have been funded exclusively with
 40  1 unencumbered assets, including an interest in the life
 40  2 insurance policy being financed only to the extent of its net
 40  3 cash surrender value, provided by, or fully recourse liability
 40  4 incurred by, the insured or a person described in section
 40  5 508E.2, subsection 14, paragraph "c", subparagraph (3).
 40  6    (2)  There is no agreement or understanding with any other
 40  7 person to guarantee any such liability or to purchase, or
 40  8 stand ready to purchase, the policy, including through an
 40  9 assumption or forgiveness of the loan.
 40 10    (3)  Neither the insured nor the policy has been evaluated
 40 11 for settlement.
 40 12    2.  Copies of the independent evidence described in
 40 13 subsection 1, paragraph "b", and documents required by section
 40 14 508E.10, subsection 1, shall be submitted to the insurer when
 40 15 the viatical settlement provider or other party entering into
 40 16 a viatical settlement contract with a viator submits a request
 40 17 to the insurer for verification of coverage.  The copies shall
 40 18 be accompanied by a letter of attestation from the viatical
 40 19 settlement provider that the copies are true and correct
 40 20 copies of the documents received by the viatical settlement
 40 21 provider.
 40 22    3.  If the viatical settlement provider submits to the
 40 23 insurer a copy of the owner's or insured's certification
 40 24 described in and the independent evidence required by
 40 25 subsection 1, paragraph "b" when the provider submits a
 40 26 request to the insurer to effect the transfer of the policy or
 40 27 certificate to the viatical settlement provider, the copy
 40 28 shall be deemed to conclusively establish that the viatical
 40 29 settlement contract satisfies the requirements of this section
 40 30 and the insurer shall timely respond to the request.
 40 31    4.  An insurer shall not, as a condition of responding to a
 40 32 request for verification of coverage or effecting the transfer
 40 33 of a policy pursuant to a viatical settlement contract,
 40 34 require that the viator, insured, viatical settlement
 40 35 provider, or viatical settlement broker sign any form,
 41  1 disclosure, consent, or waiver form that has not been
 41  2 expressly approved by the commissioner for use in connection
 41  3 with viatical settlement contracts in this state.
 41  4    5.  Upon receipt of a properly completed request for change
 41  5 of ownership or beneficiary of a policy, the insurer shall
 41  6 respond in writing within thirty days with written
 41  7 acknowledgment confirming that the change has been effected or
 41  8 specifying the reasons why the requested change cannot be
 41  9 processed.  The insurer shall not unreasonably delay effecting
 41 10 a change of ownership or beneficiary and shall not otherwise
 41 11 seek to interfere with any viatical settlement contract
 41 12 lawfully entered into in this state.
 41 13    Sec. 12.  NEW SECTION.  508E.12  PROHIBITED PRACTICES AND
 41 14 CONFLICTS OF INTEREST.
 41 15    1.  With respect to any viatical settlement contract or
 41 16 insurance policy, a viatical settlement broker shall not
 41 17 knowingly solicit an offer from, effectuate a viatical
 41 18 settlement with, or make a sale to any viatical settlement
 41 19 provider, viatical settlement purchaser, financing entity, or
 41 20 related provider trust that is controlling, controlled by, or
 41 21 under common control with such viatical settlement broker.
 41 22    2.  With respect to any viatical settlement contract or
 41 23 insurance policy, a viatical settlement provider shall not
 41 24 knowingly enter into a viatical settlement contract with a
 41 25 viator, if, in connection with such viatical settlement
 41 26 contract, anything of value will be paid to a viatical
 41 27 settlement broker that is controlling, controlled by, or under
 41 28 common control with such viatical settlement provider or the
 41 29 viatical settlement purchaser, financing entity, or related
 41 30 provider trust that is involved in such viatical settlement
 41 31 contract.
 41 32    3.  A violation of subsection 1 or 2 shall be deemed a
 41 33 fraudulent viatical settlement act.
 41 34    4.  No viatical settlement provider shall enter into a
 41 35 viatical settlement contract unless the viatical settlement
 42  1 promotional, advertising, and marketing materials, as may be
 42  2 prescribed by rules adopted by the commissioner, have been
 42  3 filed with the commissioner.  In no event shall any marketing
 42  4 materials expressly reference that the insurance is free for
 42  5 any period of time.  The inclusion of any reference in the
 42  6 marketing materials that would cause a viator to reasonably
 42  7 believe that the insurance is free for any period of time
 42  8 shall be considered a violation of this chapter.
 42  9    5.  No life insurance producer, insurance company, viatical
 42 10 settlement broker, or viatical settlement provider shall make
 42 11 any statement or representation to the applicant or
 42 12 policyholder in connection with the sale or financing of a
 42 13 life insurance policy to the effect that the insurance is free
 42 14 or without cost to the policyholder for any period of time
 42 15 unless provided in the policy.
 42 16    Sec. 13.  NEW SECTION.  508E.13  ADVERTISING FOR VIATICAL
 42 17 SETTLEMENTS.
 42 18    The purpose of this section is to provide prospective
 42 19 viators with clear and unambiguous statements in the
 42 20 advertisement of viatical settlements and to assure the clear,
 42 21 truthful, and adequate disclosure of the benefits, risks,
 42 22 limitations, and exclusions of any viatical settlement
 42 23 contract.  This purpose is intended to be accomplished by
 42 24 rules adopted by the commissioner for the establishment of
 42 25 guidelines and standards of permissible and impermissible
 42 26 conduct in the advertising of viatical settlements to assure
 42 27 that product descriptions are presented in a manner that
 42 28 prevents unfair, deceptive, or misleading advertising, and is
 42 29 conducive to accurate presentation and description of viatical
 42 30 settlements through the advertising media and materials used
 42 31 by viatical settlement licensees.
 42 32    1.  This section shall apply to any advertising of viatical
 42 33 settlement contracts or related products or services intended
 42 34 for dissemination in this state, including internet
 42 35 advertising viewed by persons located in this state.  Where
 43  1 disclosure requirements are established pursuant to federal
 43  2 regulation, this section shall be interpreted so as to
 43  3 minimize or eliminate conflict with federal regulation
 43  4 wherever possible.
 43  5    2.  Every viatical settlement licensee shall establish and
 43  6 at all times maintain a system of control over the content,
 43  7 form, and method of dissemination of all advertisements of its
 43  8 contracts, products, and services.  All advertisements,
 43  9 regardless of by whom written, created, designed, or
 43 10 presented, shall be the responsibility of the viatical
 43 11 settlement licensees, as well as the individual who created or
 43 12 presented the advertisement.  A system of control shall
 43 13 include regular, routine notification, at least once a year,
 43 14 to agents and others authorized by the viatical settlement
 43 15 licensee who disseminate advertisements of the requirements
 43 16 and procedures for approval prior to the use of any
 43 17 advertisements not furnished by the viatical settlement
 43 18 licensee.
 43 19    3.  An advertisement shall be truthful and not misleading
 43 20 in fact or by implication.  The form and content of an
 43 21 advertisement of a viatical settlement contract shall be
 43 22 sufficiently complete and clear so as to avoid deception.  It
 43 23 shall not have the capacity or tendency to mislead or deceive.
 43 24 Whether an advertisement has the capacity or tendency to
 43 25 mislead or deceive shall be determined by the commissioner
 43 26 from the overall impression that the advertisement may be
 43 27 reasonably expected to create upon a person of average
 43 28 education or intelligence within the segment of the public to
 43 29 which it is directed.
 43 30    4.  The information required to be disclosed under this
 43 31 section shall not be minimized, rendered obscure, or presented
 43 32 in an ambiguous fashion or intermingled with the text of the
 43 33 advertisement so as to be confusing or misleading.
 43 34    a.  An advertisement shall not omit material information or
 43 35 use words, phrases, statements, references, or illustrations
 44  1 if the omission or use has the capacity, tendency, or effect
 44  2 of misleading or deceiving viators as to the nature or extent
 44  3 of any benefit, loss covered, premium payable, or state or
 44  4 federal tax consequence.  The fact that the viatical
 44  5 settlement contract offered is made available for inspection
 44  6 prior to consummation of the sale, or an offer is made to
 44  7 refund the payment if the viator is not satisfied or that the
 44  8 viatical settlement contract includes a free=look period that
 44  9 satisfies or exceeds legal requirements, does not remedy a
 44 10 misleading statement.
 44 11    b.  An advertisement shall not use the name or title of a
 44 12 life insurance company or a life insurance policy unless the
 44 13 advertisement has been approved by the insurer.
 44 14    c.  An advertisement shall not state or imply that interest
 44 15 charged on an accelerated death benefit or a policy loan is
 44 16 unfair, inequitable, or in any manner an incorrect or improper
 44 17 practice.
 44 18    d.  The words "free", "no cost", "without cost", "no
 44 19 additional cost", "at no extra cost", or words of similar
 44 20 import shall not be used with respect to any benefit or
 44 21 service unless true.  An advertisement may specify the charge
 44 22 for a benefit or a service or may state that a charge is
 44 23 included in the payment or use other appropriate language.
 44 24    e.  Testimonials, appraisals, analyses, or endorsements
 44 25 used in advertisements must be genuine; represent the current
 44 26 opinion of the author; be applicable to the viatical
 44 27 settlement contract product or service advertised, if any; and
 44 28 be accurately reproduced with sufficient completeness to avoid
 44 29 misleading or deceiving prospective viators as to the nature
 44 30 or scope of the testimonials, appraisal, analysis, or
 44 31 endorsement.  In using a testimonial, appraisal, analysis, or
 44 32 endorsement, a licensee under this chapter makes as its own
 44 33 all the statements contained therein, and the statements are
 44 34 subject to all of the provisions of this section.
 44 35    (1)  If the individual making a testimonial, appraisal,
 45  1 analysis, or an endorsement has a financial interest in the
 45  2 party making use of the testimonial, appraisal, analysis, or
 45  3 endorsement, either directly or through a related entity as a
 45  4 stockholder, director, officer, employee, or otherwise, or
 45  5 receives any benefit directly or indirectly other than
 45  6 required union scale wages, that fact shall be prominently
 45  7 disclosed in the advertisement.
 45  8    (2)  An advertisement shall not state or imply that a
 45  9 viatical settlement contract benefit or product or service has
 45 10 been approved or endorsed by a group of individuals, society,
 45 11 association, or other organization unless that is the fact and
 45 12 unless any relationship between an organization and the
 45 13 viatical settlement licensee is disclosed.  If the entity
 45 14 making the endorsement or testimonial is owned, controlled, or
 45 15 managed by the viatical settlement licensee, or receives any
 45 16 payment or other consideration from the viatical settlement
 45 17 licensee for making an endorsement or testimonial, that fact
 45 18 shall be disclosed in the advertisement.
 45 19    (3)  When an endorsement refers to benefits received under
 45 20 a viatical settlement contract, all pertinent information
 45 21 shall be retained by the viatical settlement licensee for a
 45 22 period of five years after its use.
 45 23    5.  An advertisement shall not contain statistical
 45 24 information unless it accurately reflects recent and relevant
 45 25 facts.  The source of all statistics used in an advertisement
 45 26 shall be identified.
 45 27    6.  An advertisement shall not disparage an insurer,
 45 28 viatical settlement provider, viatical settlement broker,
 45 29 insurance producer, policy, services, or methods of marketing.
 45 30    7.  The name of the viatical settlement licensee shall be
 45 31 clearly identified in all advertisements about the viatical
 45 32 settlement licensee or its viatical settlement contract,
 45 33 products, or services, and if any specific viatical settlement
 45 34 contract is advertised, the viatical settlement contract shall
 45 35 be identified either by form number or some other appropriate
 46  1 description.  If an application is part of the advertisement,
 46  2 the name of the viatical settlement provider shall be shown on
 46  3 the application.
 46  4    8.  An advertisement shall not use a trade name, group
 46  5 designation, name of the parent company of a viatical
 46  6 settlement licensee, name of a particular division of the
 46  7 viatical settlement licensee, service mark, slogan, symbol or
 46  8 other device, or reference without disclosing the name of the
 46  9 viatical settlement licensee, if the advertisement would have
 46 10 the capacity or tendency to mislead or deceive as to the true
 46 11 identity of the viatical settlement licensee, or to create the
 46 12 impression that a company other than the viatical settlement
 46 13 licensee would have any responsibility for the financial
 46 14 obligation under a viatical settlement contract.
 46 15    9.  An advertisement shall not use any combination of
 46 16 words, symbols, or physical materials that by their content,
 46 17 phraseology, shape, color, or other characteristics are so
 46 18 similar to a combination of words, symbols, or physical
 46 19 materials used by a government program or agency or otherwise
 46 20 appear to be of such a nature that they tend to mislead
 46 21 prospective viators into believing that the solicitation is in
 46 22 some manner connected with a government program or agency.
 46 23    10.  An advertisement may state that a viatical settlement
 46 24 licensee is licensed in the state where the advertisement
 46 25 appears, provided it does not exaggerate that fact or suggest
 46 26 or imply that a competing viatical settlement licensee may not
 46 27 be so licensed.  The advertisement may ask the audience to
 46 28 consult the viatical settlement licensee's internet site or
 46 29 contact the commissioner to find out if the state requires
 46 30 licensing and, if so, whether the viatical settlement provider
 46 31 or viatical settlement broker is licensed.
 46 32    11.  An advertisement shall not create the impression that
 46 33 the viatical settlement provider, its financial condition or
 46 34 status, the payment of its claims or the merits, desirability,
 46 35 or advisability of its viatical settlement contracts are
 47  1 recommended or endorsed by any government entity.
 47  2    12.  The name of the actual viatical settlement licensee
 47  3 shall be stated in each of its advertisements.  An
 47  4 advertisement shall not use a trade name, any group
 47  5 designation, name of any affiliate, or controlling entity of
 47  6 the viatical settlement licensee, service mark, slogan,
 47  7 symbol, or other device in a manner that would have the
 47  8 capacity or tendency to mislead or deceive as to the true
 47  9 identity of the actual viatical settlement licensee or create
 47 10 the false impression that an affiliate or controlling entity
 47 11 would have any responsibility for the financial obligation of
 47 12 the viatical settlement licensee.
 47 13    13.  An advertisement shall not directly or indirectly
 47 14 create the impression that any division or agency of the state
 47 15 or of the United States government endorses, approves, or
 47 16 favors any of the following:
 47 17    a.  A viatical settlement licensee or its business
 47 18 practices or methods of operation.
 47 19    b.  The merits, desirability, or advisability of any
 47 20 viatical settlement contract.
 47 21    c.  Any viatical settlement contract.
 47 22    d.  Any life insurance policy or life insurance company.
 47 23    14.  If the advertiser emphasizes the speed with which the
 47 24 viatication will occur, the advertising must disclose the
 47 25 average time frame from completed application to the date of
 47 26 offer and from acceptance of the offer to receipt of the funds
 47 27 by the viator.
 47 28    15.  If the advertising emphasizes the dollar amounts
 47 29 available to viators, the advertising shall disclose the
 47 30 average purchase price as a percent of face value obtained by
 47 31 viators contracting with the licensee during the past six
 47 32 months.
 47 33    Sec. 14.  NEW SECTION.  508E.14  FRAUD PREVENTION AND
 47 34 CONTROL
 47 35    1.  FRAUDULENT VIATICAL SETTLEMENT ACTS == INTERFERENCE AND
 48  1 PARTICIPATION OF CONVICTED FELONS PROHIBITED.
 48  2    a.  A person shall not commit a fraudulent viatical
 48  3 settlement act.
 48  4    b.  A person shall not knowingly or intentionally interfere
 48  5 with the enforcement of the provisions of this chapter or
 48  6 investigations of suspected or actual violations of this
 48  7 chapter.
 48  8    c.  A person in the business of viatical settlements shall
 48  9 not knowingly or intentionally permit any person convicted of
 48 10 a felony involving dishonesty or breach of trust to
 48 11 participate in the business of viatical settlements.
 48 12    2.  FRAUD WARNING REQUIRED.
 48 13    a.  A viatical settlements contract and application for a
 48 14 viatical settlement, regardless of the form of transmission,
 48 15 shall contain the following statement or a substantially
 48 16 similar statement:
 48 17    "Any person who knowingly presents false information in an
 48 18 application for insurance or viatical settlement contract is
 48 19 guilty of a crime and may be subject to fines and confinement
 48 20 in prison."
 48 21    b.  The lack of a statement as required in paragraph "a"
 48 22 does not constitute a defense in any prosecution for a
 48 23 fraudulent viatical settlement act.
 48 24    3.  MANDATORY REPORTING OF FRAUDULENT VIATICAL SETTLEMENT
 48 25 ACTS.
 48 26    a.  Any person engaged in the business of viatical
 48 27 settlements having knowledge or a reasonable suspicion that a
 48 28 fraudulent viatical settlement act is being, will be, or has
 48 29 been committed shall provide to the commissioner such
 48 30 information as required by and in a manner prescribed by rules
 48 31 adopted by the commissioner.
 48 32    b.  Any other person having knowledge or a reasonable
 48 33 belief that a fraudulent viatical settlement act is being,
 48 34 will be, or has been committed may provide to the commissioner
 48 35 the information required by and in a manner prescribed by
 49  1 rules adopted by the commissioner.
 49  2    4.  IMMUNITY FROM LIABILITY.
 49  3    a.  No civil liability shall be imposed on and no cause of
 49  4 action shall arise from a person's furnishing information
 49  5 concerning suspected, anticipated, or completed fraudulent
 49  6 viatical settlement acts or suspected or completed fraudulent
 49  7 insurance acts, if the information is provided to or received
 49  8 from any of the following:
 49  9    (1)  The commissioner or the commissioner's employees,
 49 10 agents, or representatives.
 49 11    (2)  A federal, state, or local law enforcement or
 49 12 regulatory official or the official's employees, agents, or
 49 13 representatives.
 49 14    (3)  A person involved in the prevention and detection of
 49 15 fraudulent viatical settlement acts or that person's agents,
 49 16 employees, or representatives.
 49 17    (4)  The national association of insurance commissioners;
 49 18 the national association of securities dealers; the north
 49 19 American securities administrators association; their
 49 20 employees, agents, or representatives; or other regulatory
 49 21 body overseeing life insurance, viatical settlements,
 49 22 securities, or investment fraud.
 49 23    (5)  A life insurer that issued the life insurance policy
 49 24 covering the life of the insured.
 49 25    b.  Paragraph "a" does not apply to a statement made with
 49 26 actual malice.  In an action brought against a person for
 49 27 filing a report or furnishing other information concerning a
 49 28 fraudulent viatical settlement act, the party bringing the
 49 29 action shall plead specifically any allegation that paragraph
 49 30 "a" does not apply because the person filing the report or
 49 31 furnishing the information did so with actual malice.
 49 32    c.  A person furnishing information as identified in
 49 33 paragraph "a" shall be entitled to an award of attorney fees
 49 34 and costs if the person is the prevailing party in a civil
 49 35 cause of action for libel, slander, or any other relevant tort
 50  1 arising out of an activity in carrying out the provisions of
 50  2 this chapter and the party bringing the action was not
 50  3 substantially justified in doing so.  For purposes of this
 50  4 paragraph, a proceeding is substantially justified if it had a
 50  5 reasonable basis in law or fact at the time that it was
 50  6 initiated.  However, such an award does not apply to any
 50  7 person furnishing information concerning the person's own
 50  8 fraudulent viatical settlement act.
 50  9    d.  This section does not abrogate or modify a common law
 50 10 or statutory privilege or immunity enjoyed by a person
 50 11 described in paragraph "a".
 50 12    5.  CONFIDENTIALITY.
 50 13    a.  A document or evidence provided pursuant to subsection
 50 14 4 or obtained by the commissioner in an investigation of a
 50 15 suspected or actual fraudulent viatical settlement act shall
 50 16 be privileged and confidential, notwithstanding chapter 22,
 50 17 shall not be a public record, and shall not be subject to
 50 18 discovery or subpoena in a civil or criminal action.
 50 19    b.  Paragraph "a" does not prohibit the release by the
 50 20 commissioner of a document or evidence obtained in an
 50 21 investigation of a suspected or actual fraudulent viatical
 50 22 settlement act if any of the following applies:
 50 23    (1)  In an administrative or judicial proceeding to enforce
 50 24 laws administered by the commissioner.
 50 25    (2)  To a federal, state, or local law enforcement or
 50 26 regulatory agency, to an organization established for the
 50 27 purpose of detecting and preventing fraudulent viatical
 50 28 settlement acts, or to the national association of insurance
 50 29 commissioners.
 50 30    (3)  At the discretion of the commissioner, to a person in
 50 31 the business of viatical settlements that is aggrieved by a
 50 32 fraudulent viatical settlement act.
 50 33    c.  Release of a document or evidence under paragraph "b"
 50 34 does not abrogate or modify the privilege granted in paragraph
 50 35 "a".
 51  1    6.  OTHER LAW ENFORCEMENT OR REGULATORY AUTHORITY.  This
 51  2 chapter shall not do any of the following:
 51  3    a.  Preempt the authority or relieve the duty of other law
 51  4 enforcement or regulatory agencies to investigate, examine,
 51  5 and prosecute suspected violations of law.
 51  6    b.  Prevent or prohibit a person from disclosing
 51  7 voluntarily information concerning viatical settlement fraud
 51  8 to a law enforcement or regulatory agency other than the
 51  9 commissioner.
 51 10    c.  Limit the powers granted elsewhere by the laws of this
 51 11 state to the commissioner or an insurance fraud unit to
 51 12 investigate and examine possible violations of law and to take
 51 13 appropriate action against wrongdoers.
 51 14    7.  VIATICAL SETTLEMENT ANTIFRAUD INITIATIVES.
 51 15    a.  A viatical settlement provider or viatical settlement
 51 16 broker shall have in place antifraud initiatives reasonably
 51 17 calculated to detect, prosecute, and prevent fraudulent
 51 18 viatical settlement acts.  At the discretion of the
 51 19 commissioner, the commissioner may order, or a licensee may
 51 20 request and the commissioner may grant, such modifications of
 51 21 the following required initiatives as necessary to ensure an
 51 22 effective antifraud program.  The modifications may be more or
 51 23 less restrictive than the required initiatives so long as the
 51 24 modifications may reasonably be expected to accomplish the
 51 25 purpose of this section.
 51 26    b.  Antifraud initiatives shall include all of the
 51 27 following:
 51 28    (1)  A fraud investigator, who may be a viatical settlement
 51 29 provider, viatical settlement broker, a viatical settlement
 51 30 provider's or viatical settlement broker's employee, or an
 51 31 independent contractor.
 51 32    (2)  An antifraud plan, which shall be submitted to the
 51 33 commissioner.  The antifraud plan shall include, but is not
 51 34 limited to all of the following:
 51 35    (a)  A description of the procedures for detecting and
 52  1 investigating possible fraudulent viatical settlement acts and
 52  2 procedures for resolving material inconsistencies between
 52  3 medical records and insurance applications.
 52  4    (b)  A description of the procedures for reporting possible
 52  5 fraudulent viatical settlement acts to the commissioner.
 52  6    (c)  A description of the plan for antifraud education and
 52  7 training of underwriters and other personnel.
 52  8    (d)  A description or chart outlining the organizational
 52  9 arrangement of the antifraud personnel who are responsible for
 52 10 the investigation and reporting of possible fraudulent
 52 11 viatical settlement acts and investigating unresolved material
 52 12 inconsistencies between medical records and insurance
 52 13 applications.
 52 14    c.  An antifraud plan submitted to the commissioner shall
 52 15 be privileged and confidential, notwithstanding chapter 22,
 52 16 shall not be a public record, and shall not be subject to
 52 17 discovery or subpoena in a civil or criminal action.
 52 18    Sec. 15.  NEW SECTION.  508E.15  INJUNCTIONS == CIVIL
 52 19 REMEDIES == CEASE AND DESIST ORDERS == CIVIL PENALTY.
 52 20    1.  In addition to the penalties and other enforcement
 52 21 provisions of this chapter, if any person violates this
 52 22 chapter or any rule implementing this chapter, the
 52 23 commissioner may seek an injunction in a court of competent
 52 24 jurisdiction and may apply for a temporary or permanent order
 52 25 that the commissioner determines is necessary to restrain the
 52 26 person from committing the violation.
 52 27    2.  A person damaged by the act of a person in violation of
 52 28 this chapter may bring a civil action against the person
 52 29 committing the violation in a court of competent jurisdiction.
 52 30    3.  The commissioner may issue, in accordance with chapter
 52 31 17A, a cease and desist order upon a person that violates any
 52 32 provision of this chapter, any rule or order adopted by the
 52 33 commissioner, or any written agreement entered into with the
 52 34 commissioner.
 52 35    4.  When the commissioner finds that an activity in
 53  1 violation of this chapter presents an immediate danger to the
 53  2 health, safety, or welfare of the public requiring immediate
 53  3 agency action, the commissioner may proceed under section
 53  4 17A.18A.
 53  5    5.  In addition to the penalties and other enforcement
 53  6 provisions of this chapter, any person who violates this
 53  7 chapter is subject to a civil penalty of up to five thousand
 53  8 dollars for each violation of this chapter.  The civil penalty
 53  9 shall be deposited into the general fund of the state.  If a
 53 10 person has not been ordered to pay restitution by a court, the
 53 11 commissioner's order may require a person found to be in
 53 12 violation of this chapter to make restitution to a person
 53 13 aggrieved by a violation of this chapter.
 53 14    6.  Except for a fraudulent viatical settlement act
 53 15 committed by a viator, the enforcement provisions and
 53 16 penalties of this section shall not apply to a viator.
 53 17    Sec. 16.  NEW SECTION.  508E.16  UNFAIR TRADE PRACTICES.
 53 18    A violation of this chapter, including the commission of a
 53 19 fraudulent viatical settlement act, is an unfair trade
 53 20 practice under chapter 507B and a person convicted of the
 53 21 violation is subject to the penalties contained in that
 53 22 chapter.
 53 23    Sec. 17.  NEW SECTION.  508E.17  AUTHORITY TO PROMULGATE
 53 24 REGULATIONS.
 53 25    The commissioner shall have the authority to do all of the
 53 26 following:
 53 27    1.  Adopt rules implementing and administering this
 53 28 chapter.
 53 29    2.  Establish standards for evaluating reasonableness of
 53 30 payments under viatical settlement contracts for persons who
 53 31 are terminally or chronically ill.  This authority includes
 53 32 but is not limited to regulation of discount rates used to
 53 33 determine the amount paid in exchange for assignment,
 53 34 transfer, sale, devise, or bequest of a benefit under a life
 53 35 insurance policy insuring the life of a person who is
 54  1 chronically or terminally ill.
 54  2    3.  Establish appropriate licensing requirements, fees, and
 54  3 standards for continued licensure for viatical settlement
 54  4 providers and brokers.
 54  5    4.  Require a bond or other mechanism for financial
 54  6 accountability for viatical settlement providers and viatical
 54  7 settlement brokers.
 54  8    5.  Adopt rules governing the relationship and
 54  9 responsibilities of both insurers and viatical settlement
 54 10 providers and viatical settlement brokers during the
 54 11 viatication of a life insurance policy or certificate.
 54 12    Sec. 18.  Section 507B.3, subsection 1, Code 2007, is
 54 13 amended to read as follows:
 54 14    1.  A person shall not engage in this state in any trade
 54 15 practice which is defined in this chapter as, or determined
 54 16 pursuant to section 507B.6 to be, an unfair method of
 54 17 competition, or an unfair or deceptive act or practice in the
 54 18 business of insurance.
 54 19    a.  A person who violates a provision in chapter 508E shall
 54 20 be guilty of committing a violation of this chapter.
 54 21    b.  The issuance of a qualified charitable gift annuity as
 54 22 provided in chapter 508F does not constitute a trade practice
 54 23 in violation of this chapter.
 54 24    Sec. 19.  CODIFICATION.
 54 25    1.  The Code editor shall codify section 508E.1 as section
 54 26 508E.1A.
 54 27    2.  The Code editor shall codify section 508E.1A, as
 54 28 enacted in this Act, as section 508E.1.
 54 29    Sec. 20.  Section 508E.3A, Code 2007, is repealed.
 54 30                           EXPLANATION
 54 31    This bill provides for the regulation of viatical
 54 32 settlements by the commissioner of insurance (commissioner).
 54 33 A viatical settlement is a transaction involving the sale of a
 54 34 life insurance policy (policy) issued by a life insurance
 54 35 company (insurer) before the policy matures.  A viatical
 55  1 settlement may involve a number of parties including the
 55  2 "viator", "viatical settlement broker", "viatical settlement
 55  3 provider", and "insurer".
 55  4    The viator is the policy owner who agrees to sell their
 55  5 policy, presumably for less than its face value payable upon
 55  6 death, to a viatical settlement provider either directly or
 55  7 through a viatical settlement broker.  The settlement is
 55  8 governed by a "viatical settlement contract".  The bill
 55  9 contemplates that the viator may be chronically or terminally
 55 10 ill.
 55 11    Generally, the bill provides for a short title (Code
 55 12 section 508E.1A), amends the Code chapter's current
 55 13 definitional provisions (Code section 508E.2), eliminates
 55 14 current provisions relating to the regulation of viatical
 55 15 settlement contracts (Code section 508E.3), immunity from
 55 16 liability for persons who provide information to the
 55 17 commissioner (Code section 508E.3A), and authorization of the
 55 18 commissioner to adopt rules to administer the Code chapter
 55 19 (Code section 508E.4).  The bill rewrites a number of these
 55 20 provisions and includes additional regulations as follows:
 55 21    CODE SECTION 508E.3 == LICENSE AND BOND REQUIREMENTS.  The
 55 22 bill requires a viatical settlement provider or viatical
 55 23 settlement broker obtain a license by the commissioner or from
 55 24 the commissioner of the viator's state of residence.  The bill
 55 25 provides for the issuance and renewal of licenses, the
 55 26 disclosure of information relating to the applicant's
 55 27 business, and the payment of license and renewal fees.  It
 55 28 also requires the viatical settlement provider or viatical
 55 29 settlement broker provide evidence of financial responsibility
 55 30 to the commissioner (e.g., by posting a surety bond with the
 55 31 commissioner).
 55 32    CODE SECTION 508E.4 == LICENSE REVOCATION AND DENIAL.  The
 55 33 bill provides that the commissioner may refuse to issue,
 55 34 suspend, revoke, or refuse to renew the license of a viatical
 55 35 settlement provider or viatical settlement broker for cause,
 56  1 including misrepresentation or fraud, a violation of the
 56  2 bill's provisions, a failure to honor a contractual
 56  3 obligation, the use of an unfair or unreasonable practice, or
 56  4 the wrongful transfer of a policy.
 56  5    CODE SECTION 508E.5 == APPROVAL OF VIATICAL SETTLEMENT
 56  6 CONTRACTS AND DISCLOSURE STATEMENTS.  The bill requires a
 56  7 viatical settlement producer or viatical settlement broker to
 56  8 file with the commissioner forms used in their business.  The
 56  9 commissioner must approve the documents which comply with the
 56 10 bill's requirements.
 56 11    CODE SECTION 508E.6 == REPORTING REQUIREMENTS AND PRIVACY.
 56 12 The bill requires that a viatical settlement provider annually
 56 13 file an annual statement with the commissioner involving
 56 14 transactions conducted in this state.  Certain information
 56 15 that could compromise the privacy of personal, financial, and
 56 16 health information of the viator is filed with the
 56 17 commissioner on a confidential basis.
 56 18    CODE SECTION 508E.7 == EXAMINATION OR INVESTIGATIONS.  The
 56 19 bill provides that the commissioner may conduct examinations
 56 20 of viatical settlement providers and viatical settlement
 56 21 brokers licensed under the bill's provisions.  It provides for
 56 22 the authority, scope, and scheduling of examinations; requires
 56 23 licensees to retain business records; provides for the conduct
 56 24 of an examination; provides for the preparation of examination
 56 25 reports; provides for the confidentiality of examination
 56 26 information; prohibits a conflict of interest by an examiner;
 56 27 provides for the payment of costs associated with
 56 28 examinations; provides for immunity from liability; and
 56 29 provides investigatory authority to the commissioner.
 56 30    CODE SECTION 508E.8 == DISCLOSURE TO VIATOR.  The bill
 56 31 requires that a viatical settlement provider or viatical
 56 32 settlement broker disclose information regarding their
 56 33 business, their relationship with the viator and viatical
 56 34 settlement producer, and the transaction.  The type of
 56 35 disclosure includes possible legal implications that could
 57  1 result from executing a viatical settlement contract (e.g.,
 57  2 tax consequences, claims of creditors, and proceeds from
 57  3 Medicaid or other government benefits); statutory rights
 57  4 granted under a viatical settlement contract (e.g., the right
 57  5 of recision and when moneys must be paid to the viator); the
 57  6 terms and conditions of the transaction (e.g., the dollar
 57  7 amount of the current benefits payable to the viatical
 57  8 settlement provider under the policy and how funds will be
 57  9 escrowed with an independent third party during the transfer
 57 10 process); and the viatical settlement broker's business
 57 11 relationship with the parties (e.g., the receipt of competing
 57 12 offers and how the broker is to be compensated).  A viatical
 57 13 settlement provider who transfers ownership or changes the
 57 14 policy's beneficiary must notify the viator of the change.
 57 15    CODE SECTION 508E.9 == DISCLOSURE TO INSURER.  The bill
 57 16 requires that a viatical settlement broker or viatical
 57 17 settlement provider disclose information regarding business
 57 18 transactions to the insurer.
 57 19    CODE SECTION 508E.10 == GENERAL RULES.  The bill provides a
 57 20 number of general requirements imposed upon the parties.
 57 21    Prior to entering into a viatical settlement contract, a
 57 22 viatical settlement provider must obtain a medical statement
 57 23 attesting to the viator's sound mental condition and a release
 57 24 of the viator's medical records.  The viatical settlement
 57 25 provider must notify the insurer that the insurance policy has
 57 26 or will become a viaticated policy and include a copy of the
 57 27 medical release.
 57 28    The insurer must verify the policy's coverage to the
 57 29 viatical settlement provider or viatical settlement broker as
 57 30 requested.
 57 31    The viatical settlement provider must obtain a witnessed
 57 32 document affirming that the viator knowingly consented to the
 57 33 viatical settlement contract.
 57 34    The viator's medical information is confidential.
 57 35    A viator has an absolute right to rescind a viatical
 58  1 settlement contract within a time certain, subject to giving
 58  2 notice of the recision to a viatical settlement provider and
 58  3 repaying the viatical settlement provider proceeds associated
 58  4 with the transfer (e.g., the settlement and premiums, loans,
 58  5 and loan interest paid by or on behalf of the viatical
 58  6 settlement provider).
 58  7    The documents and moneys required to effect the change in
 58  8 the policy and consideration for the change must be delivered
 58  9 to the parties through an independent escrow agent.
 58 10    The failure by a viatical settlement provider to provide a
 58 11 viator timely payment allows the viator to void the viatical
 58 12 settlement contract.
 58 13    Limitations are placed on the right of a viatical
 58 14 settlement provider or viatical settlement broker to contact
 58 15 an insured for purposes of determining the insured's health
 58 16 status.
 58 17    CODE SECTION 508E.11 == PROHIBITED PRACTICES.  The bill
 58 18 prohibits a person from entering into a viatical settlement
 58 19 contract prior to applying for a policy or within five years
 58 20 of the date of insurance, unless a condition is satisfied
 58 21 (e.g., the policy was issued upon the viator's conversion
 58 22 rights) or some extraordinary occurrence is independently
 58 23 established (e.g., the viator becomes terminally or
 58 24 chronically ill, physically or mentally disabled, or
 58 25 financially distressed).
 58 26    The insurer must respond to a demand effecting change of a
 58 27 policy's ownership or beneficiary within a time certain.
 58 28    CODE SECTION 508E.12 == PROHIBITED PRACTICES AND CONFLICTS
 58 29 OF INTEREST.  The bill prohibits a viatical settlement broker
 58 30 or viatical settlement provider from having a conflict of
 58 31 interest in connection with a viatical settlement (e.g.,
 58 32 certain payments between viatical settlement providers and
 58 33 viatical settlement brokers).  The bill restricts advertising.
 58 34 Advertising materials must be filed with the commissioner and
 58 35 no suggestion can be made that a settlement is provided free
 59  1 to the viator.
 59  2    CODE SECTION 508E.13 == ADVERTISING FOR VIATICAL
 59  3 SETTLEMENTS.  The bill requires a viatical settlement provider
 59  4 or viatical settlement broker to establish and maintain a
 59  5 system of control over the dissemination of advertisements.
 59  6 It requires that advertisements be truthful and that
 59  7 information not be presented to a prospective viator in a
 59  8 misleading manner (e.g., minimized, obscured, or ambiguous).
 59  9 It restricts the use of testimonials, appraisals, or
 59 10 endorsements; restricts the use of names and symbols (e.g., a
 59 11 trade name, service mark, slogan, or symbol) in a misleading
 59 12 manner; or prohibits an impression that a governmental entity
 59 13 approves a viatical settlement broker or viatical settlement
 59 14 provider or a transaction.
 59 15    CODE SECTION 508E.14 == FRAUD PREVENTION AND CONTROL.  The
 59 16 bill provides for a number of measures to prevent and control
 59 17 fraud.
 59 18    A number of acts involving fraud or interference with an
 59 19 investigation is prohibited.  A person convicted of a felony
 59 20 cannot participate in the business of viatical settlements.  A
 59 21 viatical settlement contract must contain a fraud warning.  A
 59 22 person engaged in the business of viatical settlements must
 59 23 report violations of the bill to the commissioner.
 59 24    A person who furnishes information regarding fraud to the
 59 25 commissioner or other law enforcement agency enjoys immunity
 59 26 from liability (unless the information is furnished with
 59 27 actual malice); the person may be entitled to an award of
 59 28 attorney fees and court costs if the person prevails in a
 59 29 cause or action relating to libel or slander.
 59 30    Information obtained by the commissioner in an
 59 31 investigation is confidential with certain exceptions (e.g.,
 59 32 information released as part of an administrative or judicial
 59 33 proceeding or to a law enforcement or regulatory agency).
 59 34    A viatical settlement provider or viatical settlement
 59 35 broker must implement antifraud initiatives to detect,
 60  1 prosecute, and prevent fraudulent viatical settlement acts,
 60  2 and submit related antifraud plans to the commissioner.
 60  3    CODE SECTION 508E.15 == INJUNCTIONS == CIVIL REMEDIES ==
 60  4 CEASE AND DESIST ORDERS == CRIMINAL PENALTIES.  The bill
 60  5 authorizes the commissioner to seek injunctive relief in order
 60  6 to restrain a person from violating the bill's provisions.
 60  7    A person damaged by a violation may bring a civil action
 60  8 against the person committing the violation.  The commissioner
 60  9 may issue an emergency order to require a person to
 60 10 immediately cease and desist from a violation.
 60 11    A person who violates a provision of the bill is subject to
 60 12 a civil penalty.
 60 13    CODE SECTION 508E.16 == UNFAIR TRADE PRACTICE.  The bill
 60 14 provides that a violation of the bill's provisions is
 60 15 considered a violation of Code chapter 507B, governing
 60 16 insurance trade practices.
 60 17    CODE SECTION 508E.17 == AUTHORITY TO PROMULGATE RULES.  The
 60 18 bill authorizes the commissioner to adopt rules necessary to
 60 19 implement and administer the Code chapter.  As part of this
 60 20 authority, the commissioner is responsible for establishing a
 60 21 standard for payments under viatical settlement contracts,
 60 22 establishing licensing requirements and fees, establishing
 60 23 standards for evidence of financial responsibility, and
 60 24 governing the responsibilities of insurers, viatical
 60 25 settlement providers, and viatical settlement brokers.
 60 26    UNCODIFIED PROVISIONS.  The bill provides directions to the
 60 27 Code editor necessary to renumber sections in conformity with
 60 28 the model Act.
 60 29 LSB 5446XD 82
 60 30 da/rj/5