(1) Is not in good standing with the American Institute of Certified Public Accountants and in all states in which the accountant is licensed to practice, or, for a Canadian or British company, that is not a chartered accountant; or
(2) Has either directly or indirectly entered into an agreement of indemnification or release from liability with respect to an audit of the insurer.
(b) Except as otherwise provided herein, the commissioner shall recognize an independent certified public accountant as qualified as long as he or she conforms to the standards of his or her profession, as contained in the Code of Professional Ethics of the American Institute of Certified Public Accountants and the Rules and Regulations and Code of Ethics and Rules of Professional Conduct of the West Virginia Board of Accountancy, or similar code.
(c) A qualified independent certified public accountant may enter into an agreement with an insurer to have disputes relating to an audit resolved by mediation or arbitration. In the event a delinquency proceeding is commenced against the insurer under article ten of this chapter, the mediation or arbitration provisions shall operate at the option of the receiver.
(d) (1) The lead or coordinating audit partner having primary responsibility for the audit may not act in that capacity for more than five consecutive years. Following a period of service, the person shall be disqualified from acting in that or a similar capacity for the same company or its insurance subsidiaries or affiliates for a period of five consecutive years. An insurer may make application to the commissioner for relief from the above rotation requirement on the basis of unusual circumstances. This application should be made at least thirty days before the end of the calendar year. The commissioner may consider the following factors in determining if the relief should be granted:
(A) Number of partners, expertise of the partners or the number of insurance clients in the currently registered firm;
(B) Premium volume of the insurer; or
(C) Number of jurisdictions in which the insurer transacts business.
(2) The insurer shall file, with its annual statement filing, the approval for relief from subdivision (1) of this subsection with the states that it 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.
(e) The commissioner may not recognize as a qualified independent certified public accountant, nor accept any annual audited financial report, prepared, in whole or in part, by any natural person who:
(1) Has been convicted of fraud, bribery, a violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sections 1961-1968, or any dishonest conduct or practices under federal or state law;
(2) Has been found to have violated the insurance laws of this state with respect to any previous reports submitted under this article; or
(3) Has demonstrated a pattern or practice of failing to detect or disclose material information in previous reports filed under the provisions of this article.
(f) The commissioner may hold a hearing to determine whether an independent certified public accountant is qualified and, considering the evidence presented, may rule that the accountant is not qualified for purposes of expressing an opinion on the financial statements in the annual audited financial report made pursuant to this article and require the insurer to replace the accountant with another whose relationship with the insurer is qualified within the meaning of this article.
(g) (1) The commissioner may not recognize as a qualified independent certified public accountant, nor accept an annual audited financial report, prepared, in whole or in part, by an accountant who provides to an insurer, contemporaneously with the audit, the following nonaudit services:
(A) Bookkeeping or other services related to the accounting records or financial statements of the insurer;
(B) Financial information systems design and implementation;
(C) Appraisal or valuation services, fairness opinions, or contribution-in-kind reports;
(D) Actuarially-oriented advisory services involving the determination of amounts recorded in the financial statements. The accountant may assist an insurer in understanding the methods, assumptions and inputs used in the determination of amounts recorded in the financial statement only if it is reasonable to conclude that the services provided will not be subject to audit procedures during an audit of the insurer's financial statements. An accountant's actuary may also issue an actuarial opinion or certification on an insurer's reserves if the following conditions have been met:
(i) Neither the accountant nor the accountant's actuary has performed any management functions or made any management decisions;
(ii) The insurer has competent personnel or engages a third party actuary to estimate the reserves for which management takes responsibility; and
(iii) The accountant's actuary tests the reasonableness of the reserves after the insurer's management has determined the amount of the reserves;
(E) Internal audit outsourcing services;
(F) Management functions or human resources;
(G) Broker or dealer, investment adviser, or investment banking services;
(H) Legal services or expert services unrelated to the audit; or
(I) Any other services that the commissioner determines, by legislative rule, are impermissible.
(2) In general, the principles of independence with respect to services provided by the qualified independent certified public accountant are largely predicated on three basic principles, violations of which would impair the accountant's independence. The principles are that the accountant cannot function in the role of management, cannot audit his or her own work, and cannot serve in an advocacy role for the insurer.
(h) Insurers having direct written and assumed premiums of less than $1 million in any calendar year may request an exemption from subdivision (1), subsection (g) of this section. The insurer shall file with the commissioner a written statement discussing the reasons why the insurer should be exempt from these provisions. If the commissioner finds, upon review of this statement, that compliance with subdivision (1), subsection (g) of this section would constitute a financial or organizational hardship upon the insurer, an exemption may be granted.
(i) A qualified independent certified public accountant who performs the audit may engage in other nonaudit services, including tax services, that are not described in subdivision (1), subsection (g) of this section or that do not conflict with subdivision (2), subsection (g) of this section, only if the activity is approved in advance by the audit committee, in accordance with subsection (j) of this section.
(j) All auditing services and nonaudit services provided to an insurer by the qualified independent certified public accountant of the insurer shall be preapproved by the audit committee. The preapproval requirement is waived with respect to nonaudit services if the insurer is a SOX Compliant Entity or a direct or indirect wholly-owned subsidiary of a SOX Compliant Entity or:
(1) The aggregate amount of all such nonaudit services provided to the insurer constitutes not more than five percent of the total amount of fees paid by the insurer to its qualified independent certified public accountant during the fiscal year in which the nonaudit services are provided;
(2) The services were not recognized by the insurer at the time of the engagement to be nonaudit services; and
(3) The services are promptly brought to the attention of the audit committee and approved prior to the completion of the audit by the audit committee or by one or more members of the audit committee who are the members of the board of directors to whom authority to grant such approvals has been delegated by the audit committee.
(k) The audit committee may delegate to one or more designated members of the audit committee the authority to grant the preapprovals required by subsection (j) of this section. The decisions of any member to whom this authority is delegated shall be presented to the full audit committee at each of its scheduled meetings.
(l) The commissioner may not recognize an independent certified public accountant as qualified for a particular insurer if a member of the board, president, chief executive officer, controller, chief financial officer, chief accounting officer, or any person serving in an equivalent position for that insurer, was employed by the independent certified public accountant and participated in the audit of that insurer during the one-year period preceding the date that the most current statutory opinion is due. This section shall only apply to partners and senior managers involved in the audit. An insurer may make application to the commissioner for relief from the above requirement on the basis of unusual circumstances.
(2) The insurer shall file, with its annual statement filing, the approval for relief from subdivision (1) of this subsection with the states that it is licensed in or doing business in and 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.
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