Section 26.16 - Requirements for Audit Committees211 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) The Audit committee of an insurer or Group of insurers shall be responsible for overseeing the insurer's Internal audit function and granting the person or persons performing the function suitable authority and resources to fulfill their responsibilities if required by 211 CMR 26.17.(3) 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(6) and 211 CMR 26.04: Audit Committee.(4) 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.(5) 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.(6) 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.(7) The Audit committee shall require the accountant that performs for an insurer any audit required by 211 CMR 26.00 to timely report to the Audit committee in accordance with the requirements of SAS 61, Communication with Audit Committees, or its replacement, including: (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 211 CMR 26.16(7)(c) 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.
(8) 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 - $500,000,000 | 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.
(9) 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 non-domestic state accepts electronic filing with the NAIC, the insurer shall file the approval in an electronic format acceptable to the NAIC.Amended by Mass Register Issue 1408, eff. 1/10/2020.