Section 27-2B-5

Regulatory action level event; commissioner's duties; determination of corrective actions; retention of consultants.

(a) "Regulatory action level event" means, with respect to any insurer, any of the following events:

(1) The filing of an RBC report by the insurer which indicates that the insurer's total adjusted capital is greater than or equal to its authorized control level RBC but less than its regulatory action level RBC.

(2) The notification by the commissioner to an insurer of an adjusted RBC report that indicates the event in subdivision (1), provided the insurer does not challenge the adjusted RBC report under Section 27-2B-8.

(3) If, pursuant to Section 27-2B-8, the insurer challenges an adjusted RBC report that indicates the event in subdivision (1), the notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(4) The failure of the insurer to file an RBC report by the filing date, unless the insurer has provided an explanation for the failure which is satisfactory to the commissioner and has cured the failure within 10 days after the filing date.

(5) The failure of the insurer to submit an RBC plan to the commissioner within the time period set forth in subsection (c) of Section 27-2B-4.

(6) Notification by the commissioner to the insurer of both of the following:

a. The RBC plan or revised RBC plan submitted by the insurer is, in the judgment of the commissioner, unsatisfactory.

b. The notification constitutes a regulatory action level event with respect to the insurer, provided the insurer has not challenged the determination under Section 27-2B-8.

(7) If, pursuant to Section 27-2B-8, the insurer challenges a determination by the commissioner under subdivision (6), the notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the challenge.

(8) Notification by the commissioner to the insurer that the insurer has failed to adhere to its RBC plan or revised RBC plan, but only if the failure has a substantial adverse effect on the ability of the insurer to eliminate the company action level event in accordance with its RBC plan or revised RBC plan and the commissioner has so stated in the notification, provided the insurer has not challenged the determination under Section 27-2B-8.

(9) If, pursuant to Section 27-2B-8, the insurer challenges a determination by the commissioner under subdivision (8), the notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the challenge.

(b) In the event of a regulatory action level event, the commissioner shall do all of the following:

(1) Require the insurer to prepare and submit an RBC plan or, if applicable, a revised RBC plan.

(2) Perform an examination or analysis as the commissioner deems necessary of the assets, liabilities, and operations of the insurer including a review of its RBC plan or revised RBC plan.

(3) Subsequent to the examination or analysis, issue an order specifying corrective action as the commissioner shall determine is required.

(c) In determining corrective actions, the commissioner may take into account the factors as are deemed relevant with respect to the insurer, based upon the commissioner's examination or analysis of the assets, liabilities, and operations of the insurer, including, but not limited to, the results of any sensitivity tests undertaken pursuant to the RBC instructions. The RBC plan or revised RBC plan shall be submitted:

(1) Within 45 days after the occurrence of the regulatory action level event.

(2) If the insurer challenges an adjusted RBC report pursuant to Section 27-2B-8, and the challenge is not frivolous in the judgment of the commissioner, within 45 days after the notification to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(3) If the insurer challenges a revised RBC plan pursuant to Section 27-2B-8, and the challenge is not frivolous in the judgment of the commissioner, within 45 days after the notification to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(d) The commissioner may retain actuaries and investment experts and other consultants, as may be necessary in the judgment of the commissioner, to review the insurer's RBC plan or revised RBC plan or to examine or analyze the assets, liabilities, and operations of the insurer, and to formulate the corrective order with respect to the insurer. The fees, costs, and expenses relating to consultants shall be borne by the affected insurer or other party as directed by the commissioner.

(Acts 1996, No. 96-784, p. 1426, §10.)