(a) A MCO may utilize a CPA for the purposes specified in this Subpart provided that the CPA:

1. (1) meets the definition of a CPA set forth in section 98-3.2(e) of this Subpart;
2. (2) has not 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 MCO;
3. (3) acts in conformity with the standards of the accounting profession, such as set forth in the Code of Professional Ethics of the AICPA and Rules and Regulations and Code of Ethics of Professional Conduct of the New York Board of Public Accountancy, or similar code; and
4. (4) utilizes its staff consistent with the standard prescribed by generally accepted auditing standards.

(b) A MCO may enter into an agreement with a CPA to have disputes relating to an audit resolved by mediation or arbitration. However, in the event of a proceeding commenced under Insurance Law article 74 against the MCO, the mediation or arbitration provisions shall apply only with the permission of the statutory successor.

1. (1) A MCO shall not utilize the same lead or coordinating CPA as an audit partner who has primary responsibility for the audit for more than five consecutive years. The person shall be disqualified from acting in that or a similar capacity for the same MCO or its insurance subsidiaries or affiliates for a period of five consecutive years.

2. (2) A MCO may make application to the commissioner for relief from the rotation requirement contained in paragraph (1) of this subdivision on the basis of unusual circumstances. The application shall be made at least 30 days before the end of the calendar year and include the following details:

   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 MCO; and
   3. (iii) number of jurisdictions in which the MCO transacts business.
3. (3) If relief is granted from the requirements of this subdivision, the MCO shall file a copy of each grant of relief received by the MCO with each state in which it is licensed or doing business and with the NAIC.

(c)

(d) A MCO may not utilize for any purpose of this Subpart any work performed or prepared by a CPA who:

1. (1) has been convicted of fraud, bribery, a violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. sections 1961 to 1968, or any dishonest conduct or practices under Federal or State law; or

2. (2) has demonstrated a pattern or practice of failing to detect or disclose material information in previous reports filed under the provisions of this Subpart.

   (e)

3. (1) A MCO may not utilize for any purpose of this Subpart any work performed or prepared by a CPA if that CPA also contemporaneously provides any of the following non-audit services:

   1. (i) bookkeeping or other services related to the accounting records or financial statements of the MCO;
   2. (ii) financial information systems design and implementation;
   3. (iii) appraisal or valuation services, fairness opinions, or contribution-in-kind reports;

   4. (iv) actuarial advisory services involving the determination of amounts recorded in the financial statements. However, the CPA may assist a MCO in understanding the methods, assumptions and inputs used to determine amounts recorded in the financial statement, but only if it is reasonable to conclude that those amounts will not be subject to question during an audit of the MCO’s financial statements. A CPA’s actuary may also issue an actuarial opinion or certification (“opinion”) on a MCO’s reserves if the following conditions have been met:

      1. (a) neither the CPA nor the CPA’s actuary has performed any management functions or made any management decisions;
      2. (b) the MCO has competent personnel (or engages a third party actuary) to estimate the reserves for which management takes responsibility; and
      3. (c) the CPA’s actuary tests the reasonableness of the reserves after the MCO’s management has determined the amount of the reserves;
   5. (v) internal audit outsourcing services;
   6. (vi) management functions or human resources;
   7. (vii) broker or dealer, investment adviser, or investment banking services; or
   8. (viii) legal services or expert services unrelated to the audit.
4. (2) The MCO shall attach a statement to its audited annual financial statement, when filed, that the CPA does not function in the role of management, does not audit his or her own work, and does not serve in an advocacy role for the MCO.

(h) The MCO’s audit committee shall preapprove all auditing services and non-audit services provided to the MCO by a CPA of the MCO except that a MCO need not preapprove non-audit services if:

1. (1) the MCO is a SOX compliant MCO or a direct or indirect wholly-owned subsidiary of a SOX compliant MCO; or

   1. (i) the aggregate amount of all such non-audit services provided to the MCO constitute five percent or less of the total amount of fees paid by the MCO to its CPA during the fiscal year in which the non-audit services are provided;
   2. (ii) the services were not recognized by the MCO at the time of the engagement to be non-audit services; and
   3. (iii) 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.

   (2)

(i) The audit committee may delegate to one or more designated members of the audit committee the authority to grant the preapprovals required by subdivision (h) 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.

1. (1) A MCO shall not utilize a CPA 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 MCO, was employed by the CPA and participated in the audit of that MCO 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. A MCO may make application to the commissioner for relief from the above requirement on the basis of unusual circumstances.

(j)