By Maxey                                               H.B. No. 872
       74R4345 DLF-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of the assignment and accelerated
    1-3  payment of death benefits and the business of purchasing the right
    1-4  to death benefits from a policy owner with a catastrophic or
    1-5  life-threatening illness.
    1-6        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-7        SECTION 1.  Article 3.50-6A, Insurance Code, is amended to
    1-8  read as follows:
    1-9        Art. 3.50-6A.  VIATICAL SETTLEMENTS
   1-10        Sec. 1.  DEFINITIONS.  In this article:
   1-11              (1)  "Person" means an individual, corporation, trust,
   1-12  partnership, association, or any other legal entity.
   1-13              (2)  "Viatical <, "viatical> settlement" means an
   1-14  agreement under which a person pays compensation or anything of
   1-15  value, that is less than the expected death benefit of the policy,
   1-16  in return for the policy owner's assignment, transfer, sale,
   1-17  devise, or bequest of the death benefit or ownership of an
   1-18  insurance policy insuring the life of an individual who has a
   1-19  life-threatening illness or condition <a contract, entered into by
   1-20  an insured with a terminal illness who owns a life insurance policy
   1-21  insuring the life of the insured, under which the insured assigns
   1-22  or transfers the insurance policy to another person or entity for
   1-23  valuable consideration>.
   1-24              (3)  "Viatical settlement broker" means a person who
    2-1  for another and for compensation offers or advertises the
    2-2  availability of viatical settlements, introduces a viator to a
    2-3  viatical settlement company, or offers or attempts to negotiate a
    2-4  viatical settlement between a viator and a viatical settlement
    2-5  company.  The term does not include an attorney, accountant, or
    2-6  person acting under a power of attorney from the viator who is
    2-7  retained to represent the viator and whose compensation is paid
    2-8  entirely by the viator without regard to whether a viatical
    2-9  settlement is effected.
   2-10              (4)  "Viatical settlement company" means a person that
   2-11  enters into a viatical settlement with a viator.  The term does not
   2-12  include:
   2-13                    (A)  a bank, savings bank, savings and loan
   2-14  association, credit union, or other licensed lending institution
   2-15  that takes an assignment of a life insurance policy as collateral
   2-16  for a loan;
   2-17                    (B)  the issuer of a life insurance policy that
   2-18  makes a loan, permits surrender of the policy, or pays other policy
   2-19  benefits, including accelerated benefits under Article 3.50-6 of
   2-20  this code, under the policy; or
   2-21                    (C)  a friend or family member of the policy
   2-22  owner or of the insured who enters into not more than three
   2-23  agreements for the transfer of life insurance policies for
   2-24  compensation that is less than the expected death benefit.
   2-25              (5)  "Viator" means:
   2-26                    (A)  an individual who is the owner of a life
   2-27  insurance policy insuring the life of an individual who has a
    3-1  life-threatening illness or condition and who enters into a
    3-2  viatical settlement with a viatical settlement company; or
    3-3                    (B)  an individual insured under a group life
    3-4  insurance policy who is not prohibited from assigning the rights or
    3-5  benefits of the policy and who assigns those rights or benefits by
    3-6  a viatical settlement.
    3-7        Sec. 2.  RULES <REGULATION BY BOARD>.  (a) The commissioner
    3-8  may adopt reasonable rules to implement this article, including
    3-9  rules defining specific conduct of a viatical settlement company to
   3-10  be an unfair or deceptive practice under Article 21.21 of this code
   3-11  <board has exclusive jurisdiction in this state to regulate
   3-12  viatical settlements, regardless of form, other than transactions
   3-13  governed by The Securities Act (Article 581-1 et seq., Vernon's
   3-14  Texas Civil Statutes)>.
   3-15        (b)  The commissioner shall adopt rules to prohibit
   3-16  price-fixing agreements and other anticompetitive behavior by
   3-17  viatical settlement companies.
   3-18        Sec. 3.  LICENSE REQUIREMENTS.  (a)  A person may not act as
   3-19  a viatical settlement company or broker unless the person holds a
   3-20  license issued by the commissioner under procedures established by
   3-21  rule.
   3-22        (b)  To obtain a viatical settlement company or broker
   3-23  license, a person must apply to the commissioner on a form
   3-24  prescribed by the commissioner.  The application must be
   3-25  accompanied by a license fee of $3,000.
   3-26        (c)  Licenses may be renewed annually on payment of an annual
   3-27  renewal fee of $800.
    4-1        (d)  The applicant shall provide information as required by
    4-2  the commissioner on forms prescribed by the commissioner.  The
    4-3  commissioner shall require the applicant to disclose the name and
    4-4  address of:
    4-5              (1)  all stockholders of the viatical settlement
    4-6  company other than stockholders owning less than five percent of
    4-7  the shares of a viatical settlement company whose shares are
    4-8  publicly traded; and
    4-9              (2)  partners, officers, employees, agents, and brokers
   4-10  of the viatical settlement company.
   4-11        (e)  A license issued to a partnership, corporation, or other
   4-12  entity authorizes all members, officers, and designated employees
   4-13  of the viatical settlement company or broker to act on behalf of
   4-14  the entity under the license.  Each of those persons must be named
   4-15  in the application or a supplement to the application.
   4-16        (f)  On the filing of an application and fee, the
   4-17  commissioner shall investigate each applicant and shall examine the
   4-18  business records of the applicant.  The commissioner shall issue a
   4-19  license if the commissioner finds the applicant:
   4-20              (1)  is competent and trustworthy and intends to act in
   4-21  good faith in the capacity authorized by the license;
   4-22              (2)  maintains an office in this state with at least
   4-23  one employee;
   4-24              (3)  if a corporation, is a corporation incorporated
   4-25  under the laws of this state or a foreign corporation authorized to
   4-26  transact business in this state; and
   4-27              (4)  complies with all requirements of this article and
    5-1  rules adopted by the commissioner under this article.
    5-2        (g)  The applicant shall pay the cost of the investigation
    5-3  required by Subsection (f) of this section.  The department shall
    5-4  assess the cost of the investigation against the applicant before a
    5-5  license is issued under this article and may not issue the license
    5-6  until the assessment is paid.
    5-7        (h)  The commissioner may not issue a license to an applicant
    5-8  who is not a resident of this state unless:
    5-9              (1)  a written designation of a resident agent for
   5-10  service of process is filed and maintained with the department; or
   5-11              (2)  the applicant has filed with the department the
   5-12  applicant's written irrevocable consent that any action against the
   5-13  applicant may be commenced against the applicant by service of
   5-14  process with the commissioner.
   5-15        Sec. 4.  DISCIPLINE OF LICENSE HOLDER.  (a)  The commissioner
   5-16  may discipline a license holder and shall deny an application for a
   5-17  license as a viatical settlement company or broker under Section 5,
   5-18  Article 21.01-2, of this code if the commissioner finds that:
   5-19              (1)  there was misrepresentation in the application for
   5-20  the license;
   5-21              (2)  the license holder has been convicted of fraud in
   5-22  any jurisdiction;
   5-23              (3)  the license holder has been convicted of a felony
   5-24  in any jurisdiction;
   5-25              (4)  the license holder has violated this article, a
   5-26  rule adopted under this article, or another insurance law of this
   5-27  state; or
    6-1              (5)  the license holder has demonstrated a pattern of
    6-2  paying unfair or unreasonable settlements to viators.
    6-3        (b)  A license holder is subject to an administrative penalty
    6-4  under Article 1.10E of this code for a violation of this article or
    6-5  a rule adopted under this article.
    6-6        Sec. 5.  APPROVAL OF CONTRACT.  (a)  A viatical settlement
    6-7  company may not enter into a viatical settlement in this state
    6-8  unless the form of settlement is in writing and has been filed with
    6-9  and approved by the commissioner.  The commissioner may not approve
   6-10  a viatical settlement form if the commissioner finds that the
   6-11  settlement form is misleading, unfair, or oppressive to the viator.
   6-12        (b)  The commissioner may not approve a viatical settlement
   6-13  form unless it contains provisions stating that:
   6-14              (1)  the viator may rescind the viatical settlement not
   6-15  later than the 15th day after the date the viator receives the
   6-16  viatical settlement proceeds; and
   6-17              (2)  the proceeds of the settlement shall be paid in
   6-18  the manner provided by Subsection (c) of this section.
   6-19        (c)  Immediately on receipt from the viator of documents to
   6-20  effect the transfer of ownership or death benefit of the life
   6-21  insurance policy, the viatical settlement company shall pay the
   6-22  proceeds of the settlement to an escrow or trust account managed by
   6-23  a trustee or escrow agent in a national or state bank that is a
   6-24  member of the Federal Deposit Insurance Corporation, pending
   6-25  acknowledgment of the transfer by the insurer.  The trustee or
   6-26  escrow agent shall transfer the proceeds due to the viator
   6-27  immediately on receipt of acknowledgment of the transfer by the
    7-1  insurer.
    7-2        Sec. 6.  REPORTING REQUIREMENTS.   A person who holds a
    7-3  license under this article shall annually report to the department.
    7-4  The commissioner shall adopt rules prescribing the information that
    7-5  must be reported under this article.
    7-6        Sec. 7.  EXAMINATION.  The commissioner shall examine the
    7-7  business records of a license holder annually.
    7-8        Sec. 8.  DISCLOSURE.  (a)  The application for a viatical
    7-9  settlement must contain the following notice, displayed
   7-10  conspicuously on the front page of the application:
   7-11        "Receipt of payment under a viatical settlement may
   7-12        affect eligibility for public assistance programs such
   7-13        as medical assistance (Medicaid), aid to families with
   7-14        dependent children, supplementary social security
   7-15        income, and AIDS drug assistance programs, and that
   7-16        payment may be taxable.  Before applying for a viatical
   7-17        settlement, policy owners should consult with a
   7-18        qualified tax advisor and with appropriate social
   7-19        service agencies concerning how receipt of such a
   7-20        payment will affect the eligibility for participation
   7-21        in those programs of the recipient and the recipient's
   7-22        spouse or dependents."
   7-23        (b)  On receipt of an application for a viatical settlement,
   7-24  the viatical settlement company shall deliver to the applicant an
   7-25  information booklet describing:
   7-26              (1)  how viatical settlements operate;
   7-27              (2)  possible alternatives to viatical settlements for
    8-1  persons with life-threatening illnesses, including accelerated
    8-2  benefits offered by the issuer of the life insurance policy and
    8-3  loans secured by the life insurance policy;
    8-4              (3)  the tax consequences that may result from entering
    8-5  into a viatical settlement;
    8-6              (4)  the consequences of interruption of services
    8-7  provided by medical or public assistance programs;
    8-8              (5)  the viator's right to rescind a viatical
    8-9  settlement not later than the 15th day after the date the viator
   8-10  receives the viatical settlement proceeds; and
   8-11              (6)  the identity of any person who will receive
   8-12  compensation from the viatical settlement company or broker with
   8-13  respect to the viatical settlement and the amount and terms of the
   8-14  compensation.
   8-15        (c)  The booklet described by Subsection (b) of this section
   8-16  must conform to minimum standards adopted by the commissioner.
   8-17        Sec. 9.  MINIMUM SETTLEMENT.  A viatical settlement company
   8-18  may not enter into a settlement unless that settlement pays to the
   8-19  viator or the viator's designee an amount equal to at least 60
   8-20  percent of the face value of the policy.  If the viatical
   8-21  settlement company makes settlement payments in installments, the
   8-22  present value of the agreement to pay installments on the date of
   8-23  the settlement must be equal to at least 60 percent of the face
   8-24  value of the policy.
   8-25        Sec. 10.  PROVISIONS APPLICABLE TO VIATICAL SETTLEMENTS.  (a)
   8-26  A viatical settlement company entering into a viatical settlement
   8-27  with a viator shall first obtain:
    9-1              (1)  a written statement from a physician licensed to
    9-2  practice medicine under the Medical Practice Act (Article 4495b,
    9-3  Vernon's Texas Civil Statutes) stating that the physician is an
    9-4  attending physician of the viator and that the physician believes
    9-5  that the viator is of sound mind and is not executing the viatical
    9-6  settlement under any constraint or undue influence; and
    9-7              (2)  a witnessed and authorized application in which
    9-8  the viator consents to the viatical settlement, acknowledges the
    9-9  life-threatening illness, represents that the viator has a full and
   9-10  complete understanding of the benefits of the life insurance
   9-11  policy, releases the viator's medical records, and acknowledges
   9-12  that the viator has entered into the viatical settlement freely and
   9-13  voluntarily.
   9-14        (b)  All medical or personal information solicited or
   9-15  obtained by a license holder about a viator or potential viator,
   9-16  including the identity of the viator or potential viator, is
   9-17  confidential and may not be released or disclosed in any form to
   9-18  any other person or entity without the written consent of the
   9-19  viator.  A viatical settlement company or broker may disclose the
   9-20  identity of a viator or potential viator without the consent of the
   9-21  viator or potential viator only to the extent necessary to make
   9-22  financial arrangements necessary to the settlement or to assign the
   9-23  policy to a third party after the settlement has been made.  A
   9-24  third party who accepts assignment of a policy from a viatical
   9-25  settlement company may not disclose information made confidential
   9-26  by this subsection.  A viatical settlement company or broker shall
   9-27  disclose information made confidential by this subsection to the
   10-1  department as required by rules adopted by the commissioner.
   10-2  Information obtained by the department under this subsection is
   10-3  confidential and for the use of the department only and is not a
   10-4  public record subject to disclosure under Subchapter C, Chapter
   10-5  552, Government Code.
   10-6        (c)  A viatical settlement company or broker may not solicit
   10-7  or obtain information from any person that collects and
   10-8  disseminates medical or credit or other financial information about
   10-9  individuals, including the Medical Insurance Bureau or a similar
  10-10  entity, in connection with an application or viatical settlement.
  10-11        (d)  A viatical settlement company or broker may not:
  10-12              (1)  discriminate in the availability of viatical
  10-13  settlements on the basis of race, age, gender, national origin,
  10-14  creed, religion, occupation, marital or family status, or sexual
  10-15  orientation;
  10-16              (2)  discriminate between viators with dependents and
  10-17  those without dependents;
  10-18              (3)  pay or offer to pay any finder's fee, commission,
  10-19  or other compensation to:
  10-20                    (A)  a viator's physician, attorney, accountant,
  10-21  or other person providing medical, legal, or financial planning
  10-22  services to the viator; or
  10-23                    (B)  another person acting as an agent of the
  10-24  viator with respect to the viatical settlement unless the person is
  10-25  licensed under this article and is not a person listed by Paragraph
  10-26  (A) of this subdivision;
  10-27              (4)  enter into a viatical settlement in which payments
   11-1  of proceeds are made in installments, unless the viatical
   11-2  settlement company has been licensed in this state to act as an
   11-3  insurance company or bank or unless the settlement is effected
   11-4  through the purchase of an annuity or similar financial instrument
   11-5  issued by an insurance company or bank licensed to do business in
   11-6  this state;
   11-7              (5)  condition the consideration of an application on
   11-8  exclusive dealing between the viator and the viatical settlement
   11-9  company or broker; or
  11-10              (6)  commit another act determined by the commissioner
  11-11  by rule to be an unfair or deceptive act or practice.
  11-12        (e)  A viatical settlement broker may not, without the
  11-13  written agreement of the viator obtained before performing any
  11-14  services in connection with a viatical settlement, seek or obtain
  11-15  any compensation from a viator.  In the absence of a written
  11-16  agreement making the broker the viator's agent, a viatical
  11-17  settlement broker is presumed to be the agent of the viatical
  11-18  settlement company.  A broker who is the viator's agent may receive
  11-19  compensation from the viatical settlement company unless prohibited
  11-20  from doing so under Subsection (d) of this section.
  11-21        (f)  A viatical settlement company may not enter into an
  11-22  agreement or communicate with another viatical settlement company
  11-23  with respect to the terms to be offered to a viator except that a
  11-24  viatical settlement company may assign a settlement or insurance
  11-25  policy to another viatical settlement company.
  11-26        (g)  A violation of this section is an unfair or deceptive
  11-27  practice in the business of insurance subject to Article 21.21 of
   12-1  this code.
   12-2        Sec. 11.  CERTAIN CHARITABLE PROGRAMS AUTHORIZED.  (a)  This
   12-3  article does not prohibit a viatical settlement company or broker
   12-4  from adopting a program under which a fixed percentage of the
   12-5  proceeds of a viator's life insurance policy is donated to a bona
   12-6  fide charity that:
   12-7              (1)  provides or funds services to persons with
   12-8  life-threatening illnesses or conditions; or
   12-9              (2)  conducts or funds research relating to a
  12-10  life-threatening illness or condition.
  12-11        (b)  A charity that accepts a donation under this section may
  12-12  not:
  12-13              (1)  solicit settlements on behalf of the viatical
  12-14  settlement company or broker from which the donation was received;
  12-15  or
  12-16              (2)  refer an individual to that company or broker.
  12-17        Sec. 12.  USE OF PORTION OF RENEWAL FEES.  Five percent of
  12-18  each annual renewal fee collected under Section 3(c) of this
  12-19  article shall be deposited in the state treasury to the credit of a
  12-20  special account that may be used only by the Texas Department of
  12-21  Health to fund programs, including programs operated by the Texas
  12-22  Department of Health and other public or private entities, that
  12-23  provide services to individuals with acquired immune deficiency
  12-24  syndrome or infected with human immunodeficiency virus.  Sections
  12-25  403.094 and 403.095, Government Code, do not apply to the account.
  12-26        Sec. 13.  PROHIBITED INSURANCE PRACTICES.  A policy of group
  12-27  life insurance issued or delivered in this state that permits
   13-1  assignment of a covered person's rights may not restrict the
   13-2  covered person from making an assignment other than an assignment
   13-3  by gift.
   13-4        SECTION 2.  Article 3.50-6, Insurance Code, is amended by
   13-5  amending Subsection (b) and adding Subsections (c) and (d) to read
   13-6  as follows:
   13-7        (b)  An insurance company may pay an accelerated benefit
   13-8  under a group term life insurance policy or certificate if:
   13-9              (1)  the company has received a written medical
  13-10  opinion, satisfactory to the company, that the insured is not
  13-11  expected to continue living for more than 24 <12> months because of
  13-12  terminal illness or injury; and
  13-13              (2)  <the amount of the accelerated benefit does not
  13-14  exceed the greater of $25,000 or 50 percent of the amount of the
  13-15  death benefit payable under the policy or certificate; and>
  13-16              <(3)>  the amount of the accelerated benefit is
  13-17  deducted from the amount of the death benefit payable under the
  13-18  policy or certificate and from any amount the insured would
  13-19  otherwise be entitled to convert to an individual contract.
  13-20        (c)  An insurance company may not solicit or obtain any
  13-21  information from any person that collects and disseminates medical
  13-22  or credit or other financial information about individuals,
  13-23  including the Medical Insurance Bureau or a similar entity, in
  13-24  connection with payment of an accelerated benefit under this
  13-25  article.
  13-26        (d)  An insurance company shall maintain as confidential
  13-27  personal or medical information obtained by the company for
   14-1  purposes of this article.  Information that is confidential under
   14-2  this subsection may not be made available to another person or
   14-3  entity without the written consent of the insured.
   14-4        SECTION 3.  Section 1, Article 21.22, Insurance Code, is
   14-5  amended to read as follows:
   14-6        Sec. 1.  (a)  For purposes of this article, "benefits" means
   14-7  <Notwithstanding any provision of this code other than this
   14-8  article,> all money or benefits of any kind<, including policy
   14-9  proceeds and cash values,> to be paid or rendered to the insured or
  14-10  any beneficiary under any policy of insurance or annuity contract
  14-11  issued by a life, health or accident insurance company, including
  14-12  mutual and fraternal insurance, or under any plan or program of
  14-13  annuities and benefits in use by any employer or individual,
  14-14  including:
  14-15              (1)  policy proceeds;
  14-16              (2)  cash values; and
  14-17              (3)  the value of an insured's right to accelerate a
  14-18  death benefit under a life insurance policy in accordance with
  14-19  Article 3.50-6 of this code or to enter into a viatical settlement
  14-20  in accordance with Article 3.50-6A of this code.
  14-21        (b)  Notwithstanding any other provision of this code,
  14-22  benefits: <shall:>
  14-23              (1)  inure exclusively to the benefit of the person for
  14-24  whose use and benefit the insurance or annuity is designated in the
  14-25  policy or contract;
  14-26              (2)  are <be> fully exempt from execution, attachment,
  14-27  garnishment or other process;
   15-1              (3)  are <be> fully exempt from being seized, taken or
   15-2  appropriated or applied by any legal or equitable process or
   15-3  operation of law to pay any debt or liability of the insured or of
   15-4  any beneficiary, either before or after said money or benefits is
   15-5  or are paid or rendered; and
   15-6              (4)  are <be> fully exempt from all demands in any
   15-7  bankruptcy proceeding of the insured or beneficiary.
   15-8        SECTION 4.  Section 42.001(b), Property Code, is amended to
   15-9  read as follows:
  15-10        (b)  The following personal property is exempt from seizure
  15-11  and is not included in the aggregate limitations prescribed by
  15-12  Subsection (a):
  15-13              (1)  current wages for personal services, except for
  15-14  the enforcement of court-ordered child support payments;
  15-15              (2)  professionally prescribed health aids of a debtor
  15-16  or a dependent of a debtor; and
  15-17              (3)  the value of the right of a person to accelerate a
  15-18  death benefit or enter into a viatical settlement, to the extent
  15-19  provided by Section 1, Article 21.22, Insurance Code.
  15-20        SECTION 5.  This Act takes effect September 1, 1995.
  15-21        SECTION 6.  The change in law made by Section 1 of this Act
  15-22  applies only to a viatical settlement entered into on or after
  15-23  January 1, 1996.  A viatical settlement that is entered into before
  15-24  January 1, 1996, is governed by the law applicable to the
  15-25  settlement immediately before the effective date of this Act, and
  15-26  that law is continued in effect for that purpose.
  15-27        SECTION 7.  The change in law made by Section 2 of this Act
   16-1  applies only to an insurance policy that is delivered, issued for
   16-2  delivery, or renewed on or after January 1, 1996.  A policy that is
   16-3  delivered, issued for delivery, or renewed before January 1, 1996,
   16-4  is governed by the law as it existed immediately before the
   16-5  effective date of this Act, and that law is continued in effect for
   16-6  that purpose.
   16-7        SECTION 8.  (a)  The changes in law made by this Act to
   16-8  Section 42.001(b), Property Code, and Section 1, Article 21.22,
   16-9  Insurance Code, apply only to legal process brought to collect the
  16-10  value of the right of a person to accelerate a death benefit or
  16-11  enter into a viatical settlement that is commenced on or after the
  16-12  effective date of this Act.  Legal process commenced before the
  16-13  effective date of this Act is governed by the law in effect at the
  16-14  time the process is commenced, and that law is continued in effect
  16-15  for that purpose.
  16-16        (b)  In this section, "legal process" means any action or
  16-17  activity described by Section 1(b)(2), (3), or (4), Article 21.22,
  16-18  Insurance Code, as amended by this Act.
  16-19        SECTION 9.  The importance of this legislation and the
  16-20  crowded condition of the calendars in both houses create an
  16-21  emergency and an imperative public necessity that the
  16-22  constitutional rule requiring bills to be read on three several
  16-23  days in each house be suspended, and this rule is hereby suspended.