1. (a) The Insurance Commissioner shall not recognize a person or firm as a qualified independent certified public accountant if the person or firm:

   1. (1) 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; or
   2. (2) 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. (b) Except as otherwise provided in this rule, the commissioner shall recognize an independent certified public accountant as qualified as long as he or she conforms to the:

   1. (1) Standards of his or her profession, as contained in the Code of Professional Conduct of the AICPA; and
   2. (2) Rules, code of ethics, and rules of professional conduct of the Arkansas State Board of Public Accountancy or similar code.

3. (c)

   1. (1) 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.
   2. (2) However, in the event of a delinquency proceeding commenced against the insurer under Arkansas Code § 23-68-101 et seq., the mediation or arbitration provisions shall operate at the option of the statutory successor.

4. (d)

   1. (1)

      1. (A) The lead or coordinating audit partner having primary responsibility for the audit may not act in that capacity for more than five (5) consecutive years.
      2. (B) 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 (5) consecutive years.
      3. (C)

5. (i) An insurer may make application to the commissioner for relief from the above rotation requirement based on unusual circumstances.

   1. (ii) This application should be made at least thirty (30) days before the end of the calendar year.

      1. (D) The commissioner may consider all relevant factors, including the following, in determining whether the relief should be granted:

         1. (i) Number of partners, expertise of the partners, or the number of insurance clients in the currently registered firm;
         2. (ii) Premium volume of the insurer; or
         3. (iii) Number of jurisdictions in which the insurer transacts business.

   2. (2)

      1. (A) If the commissioner grants relief under subdivision (d)(1) of this section, the insurer shall file the approval for relief with the states in which it is licensed or doing business and with the NAIC with its annual statement filing.
      2. (B) If the nondomestic states accept electronic filing with the NAIC, the insurer shall file the approval in an electronic format acceptable to the NAIC.

6. (e) 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, a natural person who has:

   1. (1) Been convicted of fraud, bribery, a violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 – 1968, or any dishonest conduct or practices under federal or state law;
   2. (2) Been found to have violated the insurance laws of this state with respect to any previous reports submitted under this rule; or
   3. (3) Demonstrated a pattern or practice of failing to detect or disclose material information in previous reports filed under the provisions of this rule.

7. (f)

   1. (1) The commissioner may, as provided in Arkansas Code §§ 23-61-303 – 23-61-305, hold a hearing to determine whether an independent certified public accountant is qualified based on the evidence presented.

   2. (2) Following the hearing, the commissioner may:

      1. (A) Rule that the accountant is not qualified for purposes of expressing his or her opinion on the financial statements in the annual audited financial report made pursuant to this rule; and
      2. (B) Require the insurer to replace the accountant with another who is qualified within the meaning of this rule.

8. (g)

   1. (1) The commissioner shall 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:

      1. (A) Bookkeeping or other services related to the accounting records or financial statements of the insurer;
      2. (B) Financial information systems design and implementation;
      3. (C) Appraisal or valuation services, fairness opinions, or contribution-in-kind reports;

      4. (D)

         1. (i) Actuarially-oriented advisory services involving the determination of amounts recorded in the financial statements.
         2. (ii) 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.
         3. (iii) 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:
9. (a) (a) Neither the accountant nor the accountant’s actuary has performed any management functions or made any management decisions;

10. (b) (b) The insurer has competent personnel, or engages a third party actuary, to estimate the reserves for which management takes responsibility; and

    1. (c) (c) The accountant’s actuary tests the reasonableness of the reserves after the insurer’s management has determined the amount of the reserves;

       1. (E) Internal audit outsourcing services;
       2. (F) Management functions or human resources;
       3. (G) Broker or dealer, investment adviser, or investment banking services;
       4. (H) Legal services or expert services unrelated to the audit; or
       5. (I) Any other services that the commissioner determines, by rule or otherwise, are impermissible.

    2. (2)

       1. (A) In general, the principles of independence with respect to services provided by the qualified independent certified public accountant are largely predicated on three (3) basic principles, violations of which would impair the accountant’s independence.

       2. (B) The principles are that the accountant cannot:

          1. (i) Function in the role of management;
          2. (ii) Audit his or her own work; and
          3. (iii) Serve in an advocacy role for the insurer.

11. (h)

    1. (1) Insurers having direct written and assumed premiums of less than one hundred million dollars ($100,000,000) in any calendar year may request an exemption from the provisions of subdivision (g)(1) of this section.
    2. (2) The insurer shall file with the commissioner a written statement discussing the reasons why the insurer should be exempt from these provisions.

    3. (3) If the commissioner finds, upon review of this statement, that compliance with those provisions would constitute a financial or organizational hardship upon the insurer, an exemption may be granted.

       1. (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 (g)(1) of this section or that do not conflict with subdivision (g)(2) of this section, only if the activity is approved in advance by the audit committee in accordance with subsection (j) of this section.

12. (j)

    1. (1) 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.

    2. (2) 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 the:

       1. (A) Aggregate amount of all such nonaudit services provided to the insurer constitutes not more than five percent (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 nonaudit services are provided;
       2. (B) Services were not recognized by the insurer at the time of the engagement to be nonaudit services; and
       3. (C) 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 (1) 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.

13. (k)

    1. (1) The audit committee may delegate to one (1) or more designated members of the audit committee the authority to grant the preapprovals required by subsection (j) of this section.

    2. (2) 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.

       1. (l)

    3. (1)

       1. (A) 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.
       2. (B) This subsection shall only apply to partners and senior managers involved in the audit.
       3. (C) An insurer may make application to the commissioner for relief from the above requirement based on unusual circumstances.

    4. (2)

       1. (A) The insurer shall file, with its annual statement filing, the approval for relief from subdivision (l)(1) of this section with the states in which it is licensed or doing business and the NAIC.
       2. (B) If the nondomestic states accept electronic filing with the NAIC, the insurer shall file the approval in an electronic format acceptable to the NAIC.

Codification Notes: "AICPA" means American Institute of Certified Public Accountants. "NAIC" means National Association of Insurance Commissioners.