211 CMR 26.00 — Please see .

211 CMR: DIVISION OF INSURANCE

12/26/08 211 CMR - 136.9 211 CMR 26.00: ANNUAL FINANCIAL REPORTING FOR YEARS ENDING 2010 AND AFTER

Section

211 CMR 26.00 Please see .

26.01 Authority

26.01: Authority

26.02 Purpose

26.02: Purpose

26.03 Applicability

26.03: Applicability

26.04 Definitions

26.04: Definitions

26.05 General Requirements Related to Filing and Extensions for Filing of Annual Audited Financial

26.05: General Requirements Related to Filing and Extensions for Filing of Annual Audited Financial Reports and Audit Committee Appointment

26.06 Contents of Annual Audited Financial Report

26.06: Contents of Annual Audited Financial Report

26.07 Designation of Independent Certified Public Accountant

26.07: Designation of Independent Certified Public Accountant

26.08 Qualifications of Independent Certified Public Accountant

26.08: Qualifications of Independent Certified Public Accountant

26.09 Consolidated or Combined Audits

26.09: Consolidated or Combined Audits

26.10 Scope of Audit and Report of Independent Certified Public Accountant

26.10: Scope of Audit and Report of Independent Certified Public Accountant

26.11 Notification of Adverse Financial Condition

26.11: Notification of Adverse Financial Condition

26.12 Communication of Internal Control Related Matters Noted in an Audit

26.12: Communication of Internal Control Related Matters Noted in an Audit

26.13 Accountant’s Letter of Qualifications

26.13: Accountant’s Letter of Qualifications

26.14 Availability and Maintenance of Independent Certified Public Accountant Workpapers

26.14: Availability and Maintenance of Independent Certified Public Accountant Workpapers

26.15 Canadian and British Companies

26.15: Canadian and British Companies

26.16 Requirements for Audit Committees

26.16: Requirements for Audit Committees

26.17 Conduct of Insurer in Connection with the Preparation of Required Reports and Documents

26.17: Conduct of Insurer in Connection with the Preparation of Required Reports and Documents

26.18 Management’s Report of Internal Control over Financial Reporting

26.18: Management’s Report of Internal Control over Financial Reporting

26.19 Exemptions and Effective Dates

26.19: Exemptions and Effective Dates

26.20 Severability Provision

26.20: Severability Provision

26.01 Authority

26.01: Authority

211 CMR 26.00 is promulgated by the Commissioner of Insurance pursuant to M.G.L. c. 175, §§ 4 and 25 and M.G.L. c. 176G, § 10.

26.02 Purpose

26.02: Purpose

The purpose of 211 CMR 26.00 is to enhance the Division's surveillance of the financial condition of insurers by requiring: (a) an annual audit of financial statements reporting the financial position and the results of operations of insurers by independent certified public accountants (CPA); (b) Communication of Internal Control Related Matters Noted in an Audit; and (c) Management’s Report of Internal Control over Financial Reporting. 211 CMR 26.00 will assure that CPA audits are conducted which will enhance the protection of Massachusetts policyholders.

26.03 Applicability

26.03: Applicability

(1) Every insurer (as defined in 211 CMR 26.04) shall be subject to 211 CMR 26.00 except as otherwise provided in 211 CMR 26.04 and 211 CMR 26.19.

(2) Exemption based on volume (for other exemptions see 211 CMR 26.19):

Insurers having both direct premiums written in Massachusetts of less than $1,000,000 in any calendar year and less than 1,000 policyholders or certificateholders of direct written policies nationwide at the end of such calendar year shall be exempt from 211 CMR 26.00 for such year (unless the Commissioner makes a specific finding that compliance is necessary for the Commissioner to carry out statutory responsibilities); except that insurers having assumed premiums pursuant to contracts and/or treaties of reinsurance of $1,000,000 or more shall not be so exempt.

(3) Foreign or alien insurers filing the Audited financial reports in another state, pursuant to that other state’s requirement for filing of Audited financial reports, which has been found by the Commissioner to be substantially similar to the requirements herein, are exempt from 211 CMR 26.05 through 26.14 if:

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(a) A copy of the Audited financial report, Communication of Internal Control Related Matters Noted in an Audit, and the Accountant’s Letter of Qualifications that are filed with the other state are filed with the Commissioner in accordance with the filing dates specified in 211 CMR 26.05, 26.12 and 26.13, respectively (Canadian insurers may submit accountants’ reports as filed with the Office of the Superintendent of Financial Institutions, Canada); (b) A copy of any Notification of Adverse Financial Condition Report filed with the other state is filed with the Commissioner within the time specified in 211 CMR 26.11. Foreign or alien insurers required to file Management’s Report of Internal Control over Financial Reporting in another state are exempt from filing the Report in Massachusetts provided the other state has substantially similar reporting requirements and the Report is filed with the insurance commissioner of the other state within the time specified.

(4) 211 CMR 26.00 shall not prohibit, preclude, or in any way limit the Commissioner of Insurance, or her or his designee, from ordering or conducting or performing examinations of insurers under the Commissioner's jurisdiction as to practices, procedures, financial condition, market conduct and other aspects of the operations of such insurers.

26.04 Definitions

26.04: Definitions

The terms and definitions in 211 CMR 26.04 are intended to provide definitional guidance as the terms are used within this regulation.

Accountant and Independent Certified Public Accountant. An independent certified public accountant or accounting firm licensed to practice in the Commonwealth of Massachusetts or in any state with similar licensing requirements and a member in good standing of the American Institute of Certified Public Accountants (AICPA) and in all states in which he or she is licensed to practice; for Canadian and British companies, it means a Canadian-chartered or British- chartered accountant.

Affiliate of, or Person Affiliated with, a Specific Person. A person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.

Audit Committee. A committee (or equivalent body) established by the board of directors of an entity for the purpose of overseeing the accounting and financial reporting processes of an insurer or Group of insurers, and audits of financial statements of the insurer or Group of insurers. The Audit committee of any entity that controls a Group of insurers may be deemed to be the Audit committee for one or more of these controlled insurers solely for the purposes of 211 CMR 26.00 at the election of the controlling person. Refer to 211 CMR 26.16(5) for exercising this election. If an Audit committee is not designated by the insurer, the insurer’s entire board of directors shall constitute the Audit committee.

Audited Financial Report. Those items specified in 211 CMR 26.06.

Commissioner. The Commissioner of Insurance or his or her designee.

Division. The Division of Insurance of the Commonwealth of Massachusetts.

Group of Insurers. Those licensed insurers included in the reporting requirements of M.G.L. c. 175, §§ 206 through 206D and 211 CMR 7.00, or a set of insurers as identified by management, for the purpose of assessing the effectiveness of Internal controls over financial reporting.

Indemnification. An agreement of indemnity or a release from liability where the intent or effect is to shift or limit in any manner the potential liability of the person or firm for failure to adhere to applicable auditing or professional standards, whether or not resulting in part from knowing of other misrepresentations made by the insurer or its representatives.

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26.04: continued

Independent Board Member. This term has the same meaning as described in 211 CMR 26.16(3).

Insurer. Any insurance company doing business in the Commonwealth of Massachusetts under M.G.L. c. 175, including, but not limited to, all life, accident and health, property and liability, title, "b" reinsurers and surplus line companies regulated by the Division of Insurance of the Commonwealth of Massachusetts. Insurer also shall include reciprocal insurance exchanges as defined in M.G.L. c. 175, § 94A, and health maintenance organizations (“HMO") doing business in Massachusetts.

Internal Control Over Financial Reporting.: A process effected by an entity’s board of directors, management and other personnel designed to provide reasonable assurance regarding the reliability of the financial statements, i.e., those items specified in 211 CMR 26.06(2) through (7), and includes those policies and procedures that: (a) Pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets; (b) Provide reasonable assurance that transactions are recorded as necessary to permit preparation of the financial statements, i.e., those items specified in 211 CMR 26.06(2) through (7), and that receipts and expenditures are being made only in accordance with authorizations of management and directors; and (c) Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of assets that could have a material effect on the audited financial statements, i.e., those items specified in 211 CMR 26.06(2) through (7).

NAIC. The National Association of Insurance Commissioners.

SEC. The United States Securities and Exchange Commission.

Section 404. Section 404 of the Sarbanes-Oxley Act of 2002 and the SEC’s rules and regulations promulgated thereunder.

Section 404 Report.: Management’s report on “internal control over financial reporting” as defined by the SEC and the related attestation report of the independent certified public accountant as described in the definition of Accountant and Independent Certified Public Accountant.

SOX. The Sarbanes-Oxley Act of 2002.

SOX Compliant Entity. An entity that either is required to be compliant with, or voluntarily is compliant with, all of the following provisions of the Sarbanes-Oxley Act of 2002: (a) the preapproval requirements of Section 201 (Section 10A(i) of the Securities Exchange Act of 1934); (b) the Audit committee independence requirements of Section 301 (Section 10A(m)(3) of the Securities Exchange Act of 1934); and (c) the Internal control over financial reporting requirements of Section 404 (Item 308 of SEC Regulation S-K).

Workpapers. The records kept by the independent certified public accountant of the procedures followed, the tests performed, the information obtained, and the conclusions reached pertinent to his or her audit of the financial statements of an insurer. Workpapers may include, but are not limited to, audit planning documentation, work programs, analyses, memoranda, letters of confirmation and representation, reconciliations, flow charts, abstracts of company documents and schedules or commentaries, copies of company records or other documents prepared or obtained by the independent certified public accountant in the course of his or her audit of the financial statements of an insurer and which support the accountant’s opinion.

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26.05 General Requirements Related to Filing and Extensions for Filing of Annual Audited Financial

26.05: General Requirements Related to Filing and Extensions for Filing of Annual Audited Financial Reports and Audit Committee Appointment

(1) Filing. All insurers shall have an annual audit by an independent certified public accountant and shall file an Audited financial report with the Commissioner on or before June 1 st for the year ended December 31 st immediately preceding. The Commissioner may require an insurer to file an Audited financial report earlier than June 1 st with 90 days advance notice to the insurer. The annual Audited financial report shall be considered part of the insurer's annual statement filing, except as to the due dates provided in 211 CMR 26.00, as provided by M.G.L. c. 175, § 25 and shall be subject to the penalties provided by M.G.L. c. 175, § 26.

(2) Extensions. Extensions of the June 1 st filing date may be granted by the Commissioner for 30-day periods upon a showing by the insurer and its independent certified public accountant of the reasons for requesting such extension and determination by the Commissioner of good cause for an extension. The request for any extension must be submitted in writing not less than ten days prior to the due date of the Audited financial report in sufficient detail to permit the Commissioner to make an informed decision with respect to the requested extension. If an extension is granted, a similar extension of 30 days shall be allowed for the filing of the Management’s Report of Internal Control over Financial Reporting. Every insurer required to file an annual Audited financial report pursuant to this regulation shall designate a group of individuals as its Audit committee, as defined in 211 CMR 26.04. The Audit committee of an entity that controls an insurer may be deemed to be the insurer’s Audit committee for purposes of 211 CMR 26.00 at the election of the controlling person.

26.06 Contents of Annual Audited Financial Report

26.06: Contents of Annual Audited Financial Report

The annual Audited financial report shall report the financial position of the insurer as of the end of the most recent calendar year and the results of its operations, cash flows and changes in capital and surplus for the year then ended in conformity with statutory accounting practices prescribed, or otherwise permitted, by the Division. The annual Audited financial report shall include the following:

(1) Report of independent certified public accountant.

(2) Balance sheet reporting admitted assets, liabilities, capital and surplus.

(3) Statement of operations.

(4) Statement of cash flows.

(5) Statement of changes in capital and surplus.

(6) Notes to financial statements. These notes shall be those required by the appropriate NAIC Annual Statement Instructions and the NAIC Accounting Practices and Procedures Manual. The notes shall include a reconciliation of differences, if any, between the audited statutory financial statements and the Annual Statement filed pursuant to M.G.L. c. 175, § 25 with a written description of the nature of these differences.

(7) The financial statements included in the Audited financial report shall be prepared in a form and using language and groupings substantially the same as the relevant sections of the Annual Statement of the insurer filed with the Commissioner, and the financial statement shall be comparative, presenting the amounts as of December 31 st of the current year and the amounts as of the immediately preceding December 31 st . (However, in the first year in which an insurer is required to file an Audited financial report, the comparative data may be omitted).

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26.07 Designation of Independent Certified Public Accountant

26.07: Designation of Independent Certified Public Accountant

Each insurer required by 211 CMR 26.00 to file an annual Audited financial report must within 60 days after becoming subject to such requirement, register with the Commissioner in writing the name and address of the independent certified public accountant or accounting firm retained to conduct the annual audit set forth in 211 CMR 26.00 Insurers not retaining an independent certified public accountant on the effective date of 211 CMR 26.00 shall register the name and address of their retained independent certified public accountant not less than six months before the date when the first Audited financial report is to be filed. Insurers shall notify the Commissioner of the engagement of an accountant within 30 days of such appointment if such accountant was not the accountant for purposes of 211 CMR 26.00 for the immediately preceding year. The insurer shall obtain a letter from the accountant, and file a copy with the Commissioner stating that the accountant is aware of the provisions of the insurance laws and regulations that relate to accounting and financial matters and affirming that the accountant will express his or her opinion on the financial statements in terms of their conformity to the statutory accounting practices prescribed or otherwise permitted by the Division, specifying such exceptions as he or she may believe appropriate. If an accountant who was the accountant for the immediately preceding filed Audited financial report is dismissed or resigns, the insurer shall within five business days notify the Division of this event. The insurer also shall furnish the Commissioner with a separate letter within ten business days of the above notification stating whether in the 24 months preceding such event there were any disagreements with the former accountant on any matter of accounting principles or practice, financial statement disclosure, or auditing scope or procedure; which disagreements, if not resolved to the satisfaction of the former accountant, would have caused him or her to make reference to the subject matter of the disagreement in connection with his or her opinion. The disagreements required to be reported in response to 211 CMR 26.07 include both those resolved to the former accountant's satisfaction and those not resolved to the former accountant's satisfaction. Disagreements contemplated by 211 CMR 26.07 are those that occur at the decision making level, i.e., between personnel of the insurer responsible for presentation of its financial statements and personnel of the accounting firm responsible for rendering its report. The insurer shall also in writing request the former accountant to furnish a letter addressed to the insurer stating whether the accountant agrees with the statements contained in the insurer's letter and, if not, stating the reasons for which the accountant does not agree; and the insurer shall furnish such responsive letter from the former accountant to the Commissioner together with its own.

26.08 Qualifications of Independent Certified Public Accountant

26.08: Qualifications of Independent Certified Public Accountant

(1) The Commissioner shall not recognize any person or firm as a qualified independent certified public accountant if the person or firm: (a) Is not duly licensed to practice in Massachusetts or in a state with similar licensing requirements and is not in good standing with the AICPA 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; and (b) Has either directly or indirectly entered into an agreement of indemnity or release from liability (collectively referred to as indemnification) with respect to the audit of the insurer.

(2) Except as otherwise provided in 211 CMR 26.00, the Commissioner shall recognize an independent certified public accountant as independent and 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 AICPA and Rules and Regulations and Code of Ethics and Rules of Professional Conduct of the Massachusetts Board of Public Accountancy (or similar code).

(3) The lead (or coordinating) audit partner (having primary responsibility for the audit) may not act in that capacity for more than five consecutive years. 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 after he or she stops acting in that capacity. 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 30 days before the end of the calendar year. The Commissioner may consider the following factors in determining if the relief should be granted:

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26.08: continued

(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. The insurer shall file, with its annual statement filing, the approval for relief from 211 CMR 26.08(3) with the states that it is licensed in or doing business in and with the NAIC. If the nondomestic state accepts electronic filing with the NAIC, the insurer shall file the approval in an electronic format acceptable to the NAIC.

(4) The Commissioner shall neither 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: (a) Has been convicted of fraud, bribery, a violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 to 1968, or any dishonest conduct or practices under federal or state law; (b) Has been found to have violated the insurance laws of this state with respect to any previous reports submitted under 211 CMR 26.00; or (c) Has demonstrated a pattern or practice of failing to detect or disclose material information in previous reports filed under the provisions of 211 CMR 26.00.

(5) 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. However, in the event of a delinquency proceeding commenced against the insurer under M.G.L. c. 175 § 6; M.G.L. c. 175, § 180A et seq.; or M.G.L. c. 176G, § 20, the mediation or arbitration provisions shall operate at the option of the receiver or statutory successor.

(6) The Commissioner may hold a hearing to determine whether an independent certified public accountant is qualified under 211 CMR 26.00, whether the accountant is independent, whether an audit performed by the accountant conforms to generally accepted auditing standards, or whether the annual audited financial report on which the accountant has given an opinion presents fairly the financial position and results of operations of the insurer and, considering the evidence presented, may rule that the independent certified public accountant is not qualified under 211 CMR 26.00, is not independent for purposes of expressing his or her opinion on the financial statements in the annual Audited financial report made pursuant to 211 CMR 26.00, did not conduct the audit in accordance with generally accepted auditing standards or that the annual Audited financial report on which the accountant gave his opinion did not fairly present the financial position and results of operations of the insurer. After such finding, the Commissioner may require the insurer to replace the accountant.

(7) The Commissioner shall neither 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 non- audit 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 (“opinion”) on an insurer’s reserves if the following conditions have been met:

1. Neither the accountant nor the accountant’s actuary has performed any management functions or made any management decisions;
2. The insurer has competent personnel (or engages a third party actuary) to estimate the reserves for which management takes responsibility; and

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3. 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 functions; (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 regulation, are impermissible. 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.

(8) Insurers having direct written and assumed premiums of less than $100,000,000 in any calendar year may request an exemption from the provisions of 211 CMR 26.08(7). The insurer shall file with the Commissioner a written statement discussing the reasons why the insurer should be exempt from 211 CMR 26.08(7). If the Commissioner finds, upon review of this statement, that compliance with 211 CMR 26.00 would constitute a financial or organizational hardship upon the insurer, an exemption may be granted.

(9) A qualified independent certified public accountant who performs the audit may engage in other non-audit services, including tax services, that are not described in 211 CMR 26.08(7), or that do not conflict with 211 CMR 26.08(7), only if the activity is approved in advance by the Audit committee, in accordance with 211 CMR 26.08(10).

(10) All auditing services and non-audit 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 non-audit services if the insurer is a SOX Compliant Entity or a direct or indirect wholly-owned subsidiary of a SOX Compliant Entity or: (a) The aggregate amount of all such non-audit services provided to the insurer constitutes not more than 5% of the total amount of fees paid by the insurer to its qualified independent certified public accountant during the fiscal year in which the non-audit services are provided; (b) The services were not recognized by the insurer at the time of the engagement to be non-audit services; and (c) 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.

(11) The Audit committee may delegate to one or more designated members of the Audit committee the authority to grant the preapprovals and the approvals required by 211 CMR 26.08(10). 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.

(12) The Commissioner shall 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. 211 CMR 26.08(12) 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.

(13) The insurer shall file, with its annual statement filing, the approval for relief from 211 CMR 26.08(12) with the states that it is licensed in or doing business in and the NAIC. If the nondomestic state accepts electronic filing with the NAIC, the insurer shall file the approval in an electronic format acceptable to the NAIC.

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26.09 Consolidated or Combined Audits

26.09: Consolidated or Combined Audits

An insurer may make written application to the Commissioner for approval to file audited consolidated or combined financial statements in lieu of separate annual audited financial statements if the insurer is part of a group of insurance companies that utilizes a pooling or 100% reinsurance agreement that affects the solvency and integrity of the insurer's reserves and the insurer cedes all of its direct and assumed business to the pool. In such cases, a columnar consolidating or combining worksheet shall be filed with the report, as follows:

(1) Amounts shown on the consolidated or combined Audited financial report shall be shown on the worksheet;

(2) Amounts for each insurer subject to 211 CMR 26.09 shall be stated separately;

(3) Noninsurance operations may be shown on the worksheet on a combined or individual basis;

(4) Explanations of consolidating and eliminating entries shall be included; and

(5) A reconciliation shall be included of any differences between the amounts shown in the individual insurer columns of the worksheet and comparable amounts shown on the annual statements of the insurers.

26.10 Scope of Audit and Report of Independent Certified Public Accountant

26.10: Scope of Audit and Report of Independent Certified Public Accountant

Financial statements furnished pursuant to 211 CMR 26.06 shall be examined by the independent certified public accountant. The audit of the insurer's financial statements shall be conducted in accordance with generally accepted auditing standards. In accordance with AU Section 319 of the Professional Standards of the AICPA, Consideration of Internal Control in a Financial Statement Audit, the independent certified public accountant should obtain an understanding of internal control sufficient to plan the audit. To the extent required by AU 319, for those insurers required to file a Management’s Report of Internal Control over Financial Reporting pursuant to 211 CMR 26.18, the independent certified public accountant should consider (as that term is defined in Statement on Auditing Standards (SAS) No. 102, Defining Professional Requirements in Statements on Auditing Standards or its replacement) the most recently available report in planning and performing the audit of the statutory financial statements. Consideration shall be given to the procedures illustrated in the Financial Condition Examiner's Handbook promulgated by the NAIC as the independent certified public accountant deems necessary.

26.11 Notification of Adverse Financial Condition

26.11: Notification of Adverse Financial Condition

The insurer required to furnish the annual Audited financial report shall require the independent certified public accountant to report, in writing, within five business days, to the board of directors or its Audit committee any determination by the independent certified public accountant that the insurer has materially misstated its financial condition as reported to the Commissioner as of the balance sheet date currently under audit or that the insurer does not meet the Massachusetts minimum capital and surplus requirement as of that date. An insurer who has received a report pursuant to this paragraph shall forward a copy of the report to the Commissioner within five business days of receipt of the report and shall provide the independent certified public accountant making the report with evidence of the report’s being furnished to the Commissioner. If the independent certified public accountant fails to receive the evidence within the required five business day period, the independent certified public accountant shall furnish to the Commissioner a copy of its report within the next five business days. No independent certified public accountant shall be liable in any manner to any person for any statement made in connection with the above paragraph if the statement is made in good faith in compliance with 211 CMR 26.11: paragraph one. If the accountant, subsequent to the date of the Audited financial report filed pursuant to 211 CMR 26.00, becomes aware of facts that might have affected his or her report, the Division notes the obligation of the accountant to take such action as prescribed in Volume 1, Section AU 561 of the Professional Standards of the AICPA.

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26.12 Communication of Internal Control Related Matters Noted in an Audit

26.12: Communication of Internal Control Related Matters Noted in an Audit

In addition to the annual Audited financial report, each insurer shall furnish the Commissioner with a written communication as to any unremediated material weaknesses in its Internal controls over financial reporting noted during the audit. Such communication shall be prepared by the accountant within 60 days after the filing of the annual Audited financial report, and shall contain a description of any unremediated material weaknesses (as the term “material weakness” is defined by Statement on Auditing Standard 60, Communication of Internal Control Related Matters Noted in an Audit, or its replacement) as of December 31 st immediately preceding (so as to coincide with the Audited financial report discussed in 211 CMR 26.05) in the insurer’s Internal control over financial reporting noted by the accountant during the course of his or her audit of the financial statements. If no unremediated material weaknesses were noted, the communication should so state. The insurer is required to 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.

26.13 Accountant's Letter of Qualifications

26.13: Accountant's Letter of Qualifications

The accountant shall furnish the insurer in connection with, and for inclusion in, the filing of the annual Audited financial report, a letter stating the following:

(1) That the accountant is independent with respect to the insurer and conforms to the standards of his or her profession as contained in the Code of Professional Ethics and pronouncements of the AICPA and the Rules of Professional Conduct of the Massachusetts Board of Public Accountancy, or similar code.

(2) The background and experience in general, and the experience in audits of insurers of the staff assigned to the engagement and whether each is an independent certified public accountant. Nothing within 211 CMR 26.00. shall be construed as prohibiting the accountant from utilizing such staff as he or she deems appropriate where such use is consistent with the standards prescribed by generally accepted auditing standards.

(3) That the accountant understands the annual Audited financial report and his opinion thereon will be filed in compliance with 211 CMR 26.00 and that the Commissioner will be relying on this information in the monitoring and regulation of the financial position of insurers.

(4) That the accountant consents to the requirements of 211 CMR 26.14 and that the accountant consents and agrees to make available for review by the Commissioner, or the Commissioner’s designee or appointed agent, the workpapers, as defined in 211 CMR 26.04.

(5) A representation that the accountant is properly licensed by an appropriate state licensing authority and is a member in good standing in the AICPA and in all states in which he or she is licensed to practice or, for a Canadian or British company, is a properly licensed chartered accountant in good standing.

(6) A representation that the accountant is in compliance with the requirements of 211 CMR 26.08.

26.14 Availability and Maintenance of Independent Certified Public Accountant Workpapers

26.14: Availability and Maintenance of Independent Certified Public Accountant Workpapers

Every insurer required to file an Audited financial report pursuant to 211 CMR 26.00 shall require the accountant to make available for review by the Commissioner or his or her appointed agent, all workpapers prepared in the conduct of the accountant’s audit of the insurer, which shall include its parent and affiliates, as they relate to the audit of the insurer, and any communications related to the audit between the accountant and the insurer, at the offices of the insurer, at the Division or at any other reasonable place designated by the Commissioner. The insurer shall require that the accountant retain the audit workpapers and communications until the Division has filed a Report on Examination covering the period of the audit but no longer than seven years from the date of the audit report.

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The aforementioned reviews by the Commissioner or his or her appointed agent shall be considered investigations and all workpapers and communications obtained during the course of such investigations shall be confidential as provided for under M.G.L. c. 175, § 4. The insurer shall require that the independent certified public accountant provide photocopies to the Division of any of the workpapers that the Division considers relevant, which may be retained by the Division.

26.15 Canadian and British Companies

26.15: Canadian and British Companies

(1) In the case of Canadian and British insurers, the annual Audited financial report shall be defined as the annual statement of total business on the form filed by such companies with their supervision authority duly audited by an independent chartered accountant.

(2) For such insurers, the letter required in 211 CMR 26.07 shall state that the accountant is aware of the requirements relating to the annual Audited financial report filed with the Commissioner pursuant to 211 CMR 26.05 and shall affirm that the opinion expressed is in conformity with those requirements.

26.16 Requirements for Audit Committees

26.16: Requirements for Audit Committees

211 CMR 26.16 shall not apply to foreign or alien insurers licensed in Massachusetts or an insurer that is a SOX Compliant Entity or a direct or indirect wholly-owned subsidiary of a SOX Compliant Entity.

(1) 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 regulation. Each accountant shall report directly to the Audit committee.

(2) 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 211 CMR 26.16(5) and 211 CMR 26.04 (the definition of Audit Committee).

(3) In order to be considered independent for purposes of 211 CMR 26.16, a member of the Audit committee may not, other than in his or her capacity as a member of the Audit committee, the board of directors, or any other board committee, accept any consulting, advisory or other compensatory fee from the entity or be an affiliated person of the entity or any subsidiary thereof. However, if law requires board participation by otherwise non-independent members, that law shall prevail and such members may participate in the Audit committee and be designated as independent for Audit committee purposes, unless they are an officer or employee of the insurer or one of its affiliates.

(4) 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 state, 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.

(5) To exercise the election of the controlling person to designate the Audit committee for purposes of 211 CMR 26.00, the ultimate controlling person shall provide written notice to the insurance commissioners of the affected insurers. 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 Commissioner by the insurer, which shall include a description of the basis for the change. The election shall remain in effect for perpetuity, until rescinded.

(6) The Audit committee shall require the accountant that performs for an insurer any audit required by this regulation to timely report to the Audit committee in accordance with the requirements of SAS 61, Communication with Audit Committees, or its replacement, including:

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(a) All significant accounting policies and material permitted practices; (b) 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 (c) Other material written communications between the accountant and the management of the insurer, such as any management letter or schedule of unadjusted differences. If an insurer is a member of an insurance holding company system, the reports required by this subsection may be provided to the Audit committee on an aggregate basis for insurers in the holding company system, provided that any substantial differences among insurers in the system are identified to the Audit committee.

(7) 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 - $500000000 Over $500,000,000

No minimum requirements. See also Notes A and B.

Majority (50% or more) of members shall be independent. See also Notes A and B.

Supermajority of members (75% or more) shall be independent. See also Note A.

Note A: The Commissioner 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 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: All insurers with less than $500,000,000 in prior year direct written and assumed premiums are encouraged to structure their Audit committees 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 non-affiliates for the reporting entities.

(8) An insurer with direct written and assumed premium, excluding premiums reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, less than $500,000,000 may make application to the Commissioner for a waiver from the requirements of 211 CMR 26.16 based upon hardship. The insurer shall file, with its annual statement filing, the approval for relief from 211 CMR 26.16 with the states that it is licensed in or doing business in and the NAIC. If the nondomestic state accepts electronic filing with the NAIC, the insurer shall file the approval in an electronic format acceptable to the NAIC.

26.17 Conduct of Insurer in Connection with the Preparation of Required Reports and Documents

26.17: Conduct of Insurer in Connection with the Preparation of Required Reports and Documents

(1) No director or officer of an insurer shall, directly or indirectly: (a) 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 211 CMR 26.00; or (b) 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 211 CMR 26.00.

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(2) 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 211 CMR 26.00 if that person knew or should have known that the action, if successful, could result in rendering the insurer’s financial statements materially misleading.

(3) For purposes of 211 CMR 26.17(2), actions that, “if successful, could result in rendering the insurer’s financial statements materially misleading” include, but are not limited to, actions taken at any time with respect to the professional engagement period to coerce, manipulate, mislead or fraudulently influence an accountant: (a) 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 Commissioner, generally accepted auditing standards, or other professional or regulatory standards); (b) Not to perform audit, review or other procedures required by generally accepted auditing standards or other professional standards; (c) Not to withdraw an issued report; or (d) Not to communicate matters to an insurer’s Audit committee.

26.18 Management’s Report of Internal Control Over Financial Reporting

26.18: Management’s Report of Internal Control Over Financial Reporting

(1) Every insurer required to file an Audited financial report pursuant to 211 CMR 26.00 that has annual direct written and assumed premiums, excluding premiums reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, of $500,000,000 or more shall prepare a report of the insurer’s or Group of insurers’ Internal control over financial reporting, as these terms are defined in 211 CMR 26.04. The report shall be filed with the Commissioner along with the Communication of Internal Control Related Matters Noted in an Audit described under 211 CMR 26.12. Management’s Report of Internal Control over Financial Reporting shall be as of December 31 st immediately preceding.

(2) Notwithstanding the premium threshold in 211 CMR 26.18(1), the Commissioner may require an insurer to file Management’s Report of Internal Control over Financial Reporting if the insurer is in any risk-based capital level event, or meets any one or more of the standards of an insurer deemed to be in hazardous financial condition as defined in M.G.L. c. 175, §§ 3A, 4, 48, 180A through 180L; M.G.L. c. 175J; M.G.L. c. 176A, §§ 3, 18, 23, 24, 33; M.G.L. c. 176B, §§ 8, 9, 10, 13, 17, 21; M.G.L. c. 176D, § 11; M.G.L. c. 176E, §§ 8, 9, 10, 13, 16; M.G.L. c. 176F, §§ 8, 9, 10, 13; M.G.L. c. 176G, §§ 10, 17, 20, 20A, 25, 29; 211 CMR 20.00 and 211 CMR 25.00.

(3) An insurer or a Group of insurers that is: (a) Directly subject to Section 404; (b) Part of a holding company system whose parent is directly subject to Section 404; (c) Not directly subject to Section 404 but is a SOX Compliant Entity; or (d) A member of a holding company system whose parent is not directly subject to Section 404 but is a SOX Compliant Entity; may file its or its parent’s Section 404 Report and an addendum in satisfaction of this Section 18 requirement provided that 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 (those items included in 211 CMR 26.06) 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 (those items included in 211 CMR 26.06) 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 211 CMR 26.18 report, or the Section 404 Report and a 211 CMR 26.18 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.

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(4) Management’s Report of Internal Control over Financial Reporting shall include: (a) A statement that management is responsible for establishing and maintaining adequate Internal control over financial reporting; (b) 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; (c) A statement that briefly describes the approach or processes by which management evaluated the effectiveness of its Internal control over financial reporting; (d) A statement that briefly describes the scope of work that is included and whether any internal controls were excluded; (e) Disclosure of any unremediated material weaknesses in the Internal control over financial reporting identified by management as of December 31 st immediately preceding. (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 controls over financial reporting.); (f) A statement regarding the inherent limitations of internal control systems; and (g) Signatures of the chief executive officer and the chief financial officer (or equivalent position/title).

(5) Management shall document and make available upon financial condition examination the basis upon which its assertions, required in 211 CMR 26.18(4), 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. (a) Management shall have 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. (b) Management’s Report on Internal Control over Financial Reporting, required by 211 CMR 26.18(1), and any documentation provided in support thereof during the course of a financial condition examination, shall be kept confidential as provided for under M.G.L. c. 175, § 4.

26.19 Exemptions and Effective Dates

26.19: Exemptions and Effective Dates

(1) Upon written application of any insurer, the Commissioner may grant an exemption from compliance with any and all provisions of 211 CMR 26.00 if the Commissioner finds, upon review of the application, that compliance with 211 CMR 26.00 would constitute a financial or organizational hardship upon the insurer. An exemption may be granted at any time and from time to time for a specified period or periods. Within ten days from a denial of an insurer's written request for an exemption from 211 CMR 26.00 such insurer may request in writing a hearing on its application for an exemption. Such hearing shall be held in accordance with M.G.L. c. 30A and the practices of the Division pertaining to administrative hearing procedures.

(2) Domestic insurers shall comply with 211 CMR 26.00 unless the Commissioner permits otherwise.

(3) Foreign insurers shall comply with 211 CMR 26.00 unless the Commissioner permits otherwise.

(4) The requirements of 211 CMR 26.08(3) are enforced for audits of the year beginning January 1, 2010 and subsequent years.

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(5) The requirements of 211 CMR 26.16 are enforced 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 (as opposed to a supermajority) 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. Likewise, 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.

(6) The requirements of 211 CMR 26.18 are enforced beginning with the reporting period ending December 31, 2010 and each subsequent year. 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. Likewise, 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.

26.20 Severability

26.20: Severability

If any provision of 211 CMR 26.00 is held invalid, such invalidity shall not affect other provisions of 211 CMR 26.00, which are severable.

REGULATORY AUTHORITY

211 CMR 26.00: M.G.L. c. 175, §§ 4 and 25; c. 176G, § 10.