58-43-16. Written communication as to unremediated material weaknesses in internal controls over financial reporting.
In addition to the annual audited financial report, each insurer shall furnish the director with a written communication as to any unremediated material weaknesses in the insurer's internal controls over financial reporting noted during the audit. The communication shall be prepared by the accountant within sixty days after the filing of the annual audited financial report. The communication shall contain a description of any unremediated material weakness as of December thirty-first for the immediately preceding year in the insurer's internal control over financial reporting noted by the accountant during the course of the accountant's audit of the financial statements. If no unremediated material weaknesses were noted, the communication shall so state.
The insurer shall provide a description of remedial actions taken or proposed to correct unremediated material weaknesses, if the actions are not described in the accountant's communication.
The insurer shall maintain information about significant deficiencies communicated by the independent certified public accountant. The information shall be made available to the examiner conducting a financial condition examination for review and kept confidential pursuant to § 58-3-22.
Source: SL 1992, ch 357, § 16; SL 2009, ch 271, § 15.
58-43-16.1. Applicability of §§ 58-43-16.2 to 58-43-16.9.
The provisions of §§ 58-43-16.2 to 58-43-16.9, inclusive, do not apply to any foreign or alien insurer licensed in this state or any insurer that is a SOX compliant entity or a direct or indirect wholly-owned subsidiary of a SOX compliant entity.
Source: SL 2009, ch 271, § 16.
58-43-16.2. Responsibilities of audit committee.
The audit committee shall be directly responsible for the appointment, compensation, and oversight of the work of any accountant, including resolution of disagreements between management and the accountant regarding financial reporting, for the purpose of preparing or issuing the audited financial report or related work pursuant to this chapter. Each accountant shall report directly to the audit committee.
The audit committee of an insurer or a group of insurers shall be responsible for overseeing the insurer's internal audit function and granting each person performing the function suitable authority and resources to complete the audit committee's responsibilities required by §§ 58-43-16.25 to 58-43-16.28, inclusive.
Source: SL 2009, ch 271, § 17, eff. Jan. 1, 2010; SL 2018, ch 283, § 2.
58-43-16.3. Membership of audit committee.
Each member of the audit committee shall be a member of the board of directors of the insurer or a member of the board of directors of an entity elected pursuant to § 58-43-16.6.
Source: SL 2009, ch 271, § 18, eff. Jan. 1, 2010.
58-43-16.4. Independence of audit committee members.
A member of the audit committee may not be considered independent, other than in the member's capacity as a member of the audit committee, the board of directors, or any other board committee, if the member accepts any consulting, advisory, or other compensatory fee from the entity or be an affiliated person of the entity or any subsidiary thereof. However, if a law requires board participation by otherwise nonindependent members, that law shall prevail, and the members may participate in the audit committee and be designated as independent for audit committee purposes unless the member is an officer or employee of the insurer or one of its affiliates.
Source: SL 2009, ch 271, § 19, eff. Jan. 1, 2010.
58-43-16.5. Nonindependence of audit committee member for reasons outside the member's control.
If a member of the audit committee ceases to be independent for reasons outside the member's reasonable control, that person, with notice by the responsible entity to the director, may remain an audit committee member of the responsible entity until the earlier of the next annual meeting of the responsible entity or one year from the occurrence of the event that caused the member to be no longer independent.
Source: SL 2009, ch 271, § 20, eff. Jan. 1, 2010.
58-43-16.6. Election of controlling person to designate audit committee.
To exercise the election of the controlling person to designate the audit committee for purposes of this chapter, the ultimate controlling person shall provide written notice to the directors of the affected insurer. Notification shall be made timely prior to the issuance of the statutory audit report and include a description of the basis for the election. The election can be changed through notice to the director by the insurer, which shall include a description of the basis for the change. The election shall remain in effect until rescinded.
If an audit committee is not designated by the insurer, the insurer's entire board of directors shall constitute the audit committee.
Source: SL 2009, ch 271, § 21, eff. Jan. 1, 2010.
58-43-16.7. Report of accountant to audit committee.
The audit committee shall require the accountant that performs for an insurer any audit required by this chapter to report in a timely manner to the audit committee in accordance with the requirements of AU-C 260, The Auditor's Communication with Those Charged with Governance, as of January 1, 2015, including:
(1) All significant accounting policies and material permitted practices;
(2) All material alternative treatments of financial information within statutory accounting principles that have been discussed with management officials of the insurer, ramifications of the use of the alternative disclosures and treatments, and the treatment preferred by the accountant; and
(3) Other material written communications between the accountant and the management of the insurer, such as any management letter or schedule of unadjusted differences.
Source: SL 2009, ch 271, § 22, eff. Jan. 1, 2010; SL 2015, ch 260, § 12.
58-43-16.8. Report of accountant where insurer is member of holding company system.
If an insurer is a member of an insurance holding company system, any report required by § 58-43-16.7 may be provided to the audit committee on an aggregate basis for insurers in the holding company system only if any substantial differences among insurers in the system are identified to the audit committee.
Source: SL 2009, ch 271, § 23, eff. Jan. 1, 2010.
58-43-16.9. Criteria for proportion of audit committee members.
The proportion of independent audit committee members shall meet or exceed the following criteria:
Prior Calendar Year Direct Written and Assumed Premiums |
|
| ||
$0--$300,000,000 |
Over $300,000,000-- |
Over $500,000,000 | ||
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$500,000,000 |
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No minimum requirements. See also Note A and B. |
Majority (50% or more) of members shall be |
Supermajority of members (75% or more) shall be | ||
|
independent. See also Note |
independent. See also Note | ||
|
A and B. |
A. | ||
Note A: The director has authority afforded by state law to require the entity's board to enact improvements to the independence of the audit committee membership if the insurer is in a risk based capital (RBC) action level event, meets one or more of the standards of an insurer deemed to be in hazardous financial condition, or otherwise exhibits qualities of a troubled insurer.
Note B: Any insurer with less than five hundred million in prior year direct written and assumed premiums is encouraged to structure an audit committee with at least a supermajority of independent audit committee members.
Note C: Prior calendar year direct written and assumed premiums shall be the combined total of direct premiums and assumed premiums from nonaffiliates for the reporting entities.
Source: SL 2009, ch 271, § 24, eff. Jan. 1, 2010.
58-43-16.10. Hardship waiver of requirements of §§ 58-43-16.2 to 58-43-16.9, inclusive.
An insurer with direct written and assumed premiums, excluding premiums reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, of less than five hundred million dollars may make application to the director for a waiver from the requirements of §§ 58-43-16.2 to 58-43-16.9, inclusive, based upon hardship. The insurer shall file, with the insurer's annual statement filing, the approval for relief from §§ 58-43-16.2 to 58-43-16.9, inclusive, with the states that the insurer is licensed in or doing business in and with the National Association of Insurance Commissioners. If the nondomestic state accepts electronic filing with the National Association of Insurance Commissioners, the insurer shall file the approval in an electronic format acceptable to the National Association of Insurance Commissioners.
Source: SL 2009, ch 271, § 25, eff. Jan. 1, 2010.
58-43-16.11. Materially false or misleading statements or omissions to accountant prohibited.
No director or officer of an insurer shall, directly or indirectly:
(1) Make or cause to be made a materially false or misleading statement to an accountant in connection with any audit, review, or communication required under this chapter; or
(2) Omit to state, or cause another person to omit to state, any material fact necessary in order to make statements made, in light of the circumstances under which the statements were made, not misleading to an accountant in connection with any audit, review, or communication required under this chapter.
Source: SL 2009, ch 271, § 26.
58-43-16.12. Coercion, manipulation, or fraudulent influence of accountant prohibited.
No officer or director of an insurer, or any other person acting under the direction thereof, shall directly or indirectly take any action to coerce, manipulate, mislead, or fraudulently influence any accountant engaged in the performance of an audit pursuant to this chapter if that person knew or should have known that the action, if successful, could result in rendering the insurer's financial statements materially misleading.
These actions include:
(1) To issue or reissue a report on an insurer's financial statements that is not warranted in the circumstances (due to material violations of statutory accounting principles prescribed by the director, generally accepted auditing standards, or other professional or regulatory standards);
(2) To fail to perform audit, review, or other procedures required by generally accepted auditing standards or other professional standards;
(3) To fail to withdraw an issued report; or
(4) To fail to communicate matters to an insurer's audit committee.
Source: SL 2009, ch 271, § 27.
58-43-16.13. Management's Report of Internal Control over Financial Reporting required of certain insurers.
Each insurer required to file an audited financial report pursuant to this chapter that has annual direct written and assumed premiums, excluding premiums reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, of five hundred million dollars or more shall prepare a report of the insurer's or group of insurers' internal control over financial reporting. The report shall be filed with the director along with the communication of internal control related matters noted in an audit described in § 58-43-16. The Management's Report of Internal Control over Financial Reporting shall be as of December thirty-first for the immediately preceding year.
Source: SL 2009, ch 271, § 28.
Source: SL 2009, ch 271, § 29.
58-43-16.15. Certain insurers required to file Section 404 report and addendum.
An insurer or a group of insurers that is:
(1) Directly subject to Section 404;
(2) Part of a holding company system whose parent is directly subject to Section 404;
(3) Not directly subject to Section 404 but is a SOX compliant entity; or
(4) A member of a holding company system whose parent is not directly subject to Section 404 but is a SOX compliant entity;
shall file its or its parent's Section 404 report and an addendum in satisfaction of § 58-43-16.13 only if those internal controls of the insurer or group of insurers having a material impact on the preparation of the insurer's or group of insurers' audited statutory financial statements were included in the scope of the Section 404 report. The addendum shall be a positive statement by management that there are no material processes with respect to the preparation of the insurer's or group of insurers' audited statutory financial statements excluded from the Section 404 report.
If there are internal controls of the insurer or group of insurers that have a material impact on the preparation of the insurer's or group of insurers' audited statutory financial statements and those internal controls were not included in the scope of the Section 404 report, the insurer or group of insurers may either file a report in accordance with § 58-43-16.13, or the Section 404 report and a § 58-43-16.13 report for those internal controls that have a material impact on the preparation of the insurer's or group of insurers' audited statutory financial statements not covered by the Section 404 report.
Source: SL 2009, ch 271, § 30.
58-43-16.16. Contents of Management's Report of Internal Control over Financial Reporting.
A Management's Report of Internal Control over Financial Reporting shall include:
(1) A statement that management is responsible for establishing and maintaining adequate internal control over financial reporting;
(2) A statement that management has established internal control over financial reporting and an assertion, to the best of management's knowledge and belief, after diligent inquiry, as to whether its internal control over financial reporting is effective to provide reasonable assurance regarding the reliability of financial statements in accordance with statutory accounting principles;
(3) A statement that briefly describes the approach or processes by which management evaluated the effectiveness of its internal control over financial reporting;
(4) A statement that briefly describes the scope of work that is included and whether any internal controls were excluded;
(5) Disclosure of any unremediated material weaknesses in the internal control over financial reporting identified by management as of December thirty-first for the immediately preceding year. Management is not permitted to conclude that the internal control over financial reporting is effective to provide reasonable assurance regarding the reliability of financial statements in accordance with statutory accounting principles if there is one or more unremediated material weaknesses in its internal control over financial reporting;
(6) A statement regarding the inherent limitations of internal control systems; and
(7) Signatures of the chief executive officer and the chief financial officer (or equivalent position or title).
Source: SL 2009, ch 271, § 31.
58-43-16.17. Documentation of assertions made in Management's Report of Internal Control over Financial Reporting.
Management shall document and make available at the time of a financial condition examination the basis upon which its assertions, required in § 58-43-16.16, are made. Management may base its assertions, in part, upon its review, monitoring, and testing of internal controls undertaken in the normal course of its activities.
Source: SL 2009, ch 271, § 32.
58-43-16.18. Discretion of management as to internal control framework and documentation.
Management has discretion as to the nature of the internal control framework used, and the nature and extent of documentation, in order to make its assertion in a cost effective manner and, as such, may include assembly of or reference to existing documentation.
Source: SL 2009, ch 271, § 33.
58-43-16.19. Confidentiality of Management's Report of Internal Control over Financial Reporting and documentation.
The Management's Report of Internal Control over Financial Reporting, required by § 58-43-16.13, and any documentation provided in support thereof during the course of a financial condition examination, shall be kept confidential by the Division of Insurance.
Source: SL 2009, ch 271, § 34.
58-43-16.20. Compliance of insurers retaining independent accountant on July 1, 2009.
Any domestic insurer retaining a certified public accountant on July 1, 2009 who qualifies as independent shall comply with this chapter for the year ending December 31, 2010, and each year thereafter unless the director permits otherwise.
Source: SL 2009, ch 271, § 35.
58-43-16.21. Compliance schedule for insurers not retaining independent accountant on July 1, 2009.
Any domestic insurer not retaining a certified public accountant on July 1, 2009, who qualifies as independent shall meet the following schedule for compliance unless the director permits otherwise:
(1) As of December 31, 2010, file with the director an audited financial report; and
(2) For the year ending December 31, 2010, the insurer shall file with the director all reports and communication required by this chapter.
Source: SL 2009, ch 271, § 36.
58-43-16.22. Compliance of foreign insurers.
Each foreign insurer shall comply with this chapter for the year ending December 31, 2010, and each year thereafter, unless the director permits otherwise.
Source: SL 2009, ch 271, § 37.
58-43-16.23. Applicability of §§ 58-43-10 and 58-43-16.2 to 58-43-16.10.
The provisions of § 58-43-10 as amended by SL 2009, ch 271, § 7 apply to audits of the year beginning January 1, 2010. The provisions of §§ 58-43-16.2 to 58-43-16.10, inclusive, are effective January 1, 2010. An insurer or group of insurers that is not required to have independent audit committee members or only a majority of independent audit committee members because the total written and assumed premium is below the threshold and subsequently becomes subject to one of the independence requirements due to changes in premium shall have one year following the year the threshold is exceeded (but not earlier than January 1, 2010) to comply with the independence requirements. An insurer that becomes subject to one of the independence requirements as a result of a business combination shall have one calendar year following the date of acquisition or combination to comply with the independence requirements.
Source: SL 2009, ch 271, § 38.
58-43-16.24. Applicability of §§ 58-43-16.13 to 58-43-16.19.
The requirements of §§58-43-16.13 to 58-43-16.19, inclusive, are effective beginning with the reporting period ending December 31, 2010, and each year thereafter. An insurer or group of insurers that is not required to file a report because the total written premium is below the threshold and subsequently becomes subject to the reporting requirements shall have two years following the year the threshold is exceeded (but not earlier than December 31, 2010) to file a report. An insurer acquired in a business combination shall have two calendar years following the date of acquisition or combination to comply with the reporting requirements.
Source: SL 2009, ch 271, § 39.
58-43-16.25. Internal audit function requirements.
The insurer or group of insurers shall establish an internal audit function providing independent, objective, and reasonable assurance to the audit committee and insurer management regarding the insurer's governance, risk management, and internal controls. This assurance shall be provided by performing general and specific audits, reviews, and tests and by employing other techniques deemed necessary to protect assets, evaluate control effectiveness and efficiency, and evaluate compliance with policies and regulations.
Source: SL 2018, ch 283, § 3.
58-43-16.26. Internal audit function to be organizationally independent.
In order to ensure that an internal auditor remains objective, the internal audit function shall be organizationally independent. The internal audit function may not defer ultimate judgment on audit matters to others and shall appoint an individual to head the internal audit function who has direct and unrestricted access to the board of directors. Organizational independence does not preclude dual-reporting relationships.
Source: SL 2018, ch 283, § 4.
58-43-16.27. Report of head of internal audit function to audit committee.
The head of the internal audit function shall report to the audit committee regularly, but no less than annually, on the periodic audit plan, factors that may adversely impact the internal audit function's independence or effectiveness, material findings from completed audits, and the appropriateness of corrective actions implemented by management as a result of audit findings.
Source: SL 2018, ch 283, § 5.
58-43-16.28. Member of insurance holding company system or group of insurers.
If an insurer is a member of an insurance holding company system or included in a group of insurers, the insurer may satisfy the internal audit function requirements provided in §§ 58-43-16.25 to 58-43-16.27, inclusive, at the ultimate controlling parent level, an intermediate holding company level, or the individual legal entity level.
Source: SL 2018, ch 283, § 6.
58-43-16.29. Exemption from internal audit function requirements.
An insurer is exempt from the requirements of §§ 58-43-16.25 to 58-43-16.28, inclusive, if the insurer:
(1) Has annual direct written and unaffiliated assumed premium, including international direct and assumed premium but excluding any premium that is reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, and that is less than five hundred million dollars; and
(2) Is a member of a group of insurers, the group has annual direct written and unaffiliated assumed premium including international direct and assumed premium, but excluding any premium that is reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, and that is less than one billion dollars.
If an insurer or group of insurers no longer qualifies for this exemption, it has one year after the year the threshold is exceeded to comply with §§ 58-43-16.25 to 58-43-16.29, inclusive.
Source: SL 2018, ch 283, § 7.