§431:2-305  Examination reports.  (a)  Allexamination reports shall be comprised of only facts appearing upon the books,records, or other documents of the insurer, its producers, or other personsexamined, or as ascertained from the testimony of its officers, producers, orother persons examined concerning its affairs, and such conclusions andrecommendations as the examiners find reasonably warranted from the facts.

(b)  No later than sixty days followingcompletion of the examination, the examiner in charge shall file with theinsurance division a verified written report of examination under oath. Uponreceipt of the verified report, the insurance division shall transmit thereport to the insurer or person examined, together with a notice that shall affordthe insurer or person examined a reasonable opportunity for not more thanthirty days to make a written submission or rebuttal with respect to anymatters contained in the examination report.

(c)  Within thirty days of the end of theperiod allowed for the receipt of written submissions or rebuttals, thecommissioner shall fully consider and review the report, together with anywritten submissions or rebuttals and any relevant portions of the examiner'sworkpapers, and enter an order to:

(1)  Adopt the examination report as filed, or withmodifications or corrections.  If the examination report reveals that theinsurer or person is operating in violation of any law, rule, or prior order ofthe commissioner, the commissioner may order the insurer or person to take anyaction the commissioner considers necessary and appropriate to cure theviolation;

(2)  Reject the examination report with directions tothe examiner to reopen the examination for the purpose of obtaining additionaldata, documentation, or information, and refiling pursuant to subsection (b);or

(3)  Call for an investigatory hearing with no fewerthan twenty days notice to the insurer or person for purposes of obtainingadditional documentation, data, information, or testimony.

(d)  Orders shall be issued and hearingsconducted as follows:

(1)  All orders entered pursuant to subsection (c)(1)shall be accompanied by findings and conclusions resulting from thecommissioner's consideration and review of the examination report, relevantexaminer workpapers, and any written submissions or rebuttals.  Any order shallbe considered a final administrative decision and may be appealed pursuant tochapter 91, and shall be served upon the insurer or person by certified mail,together with a copy of the adopted examination report.  Within thirty days ofthe issuance of the adopted report, the insurer or person shall file affidavitsexecuted by each of its directors stating under oath that they have received acopy of the adopted report and related orders, except that for examinations ofproducers, adjusters, independent bill reviewers, or surplus lines brokers,serving the copy of the adopted report and related orders by certified mail,return receipt requested, shall satisfy the service requirement and noaffidavits shall be required; and

(2)  Any hearing conducted under subsection (c)(3) bythe commissioner or authorized representative shall be conducted as anonadversarial confidential investigatory proceeding as may be necessary forthe resolution of any inconsistencies, discrepancies, or disputed issuesapparent upon the face of the filed examination report or raised by or as aresult of the commissioner's review of relevant workpapers or raised by thewritten submission or rebuttal of the insurer or person.  Within twenty days ofthe conclusion of any hearing, the commissioner shall enter an order pursuantto subsection (c)(1):

(A)  The commissioner shall not appoint anexaminer as an authorized representative to conduct the hearing.  The hearingshall proceed expeditiously with discovery by the insurer or person limited tothe examiner's workpapers that tend to substantiate any assertions set forth inany written submission or rebuttal.  The commissioner or the commissioner'srepresentative may issue subpoenas for the attendance of any witnesses or theproduction of any documents deemed relevant to the investigation, whether underthe control of the division, the insurer, or other persons.  The documentsproduced shall be included in the record and testimony taken by thecommissioner or the commissioner's representative shall be under oath andpreserved for the record;

(B)  The hearing shall proceed in accordancewith departmental rules adopted under chapter 91; and

(C)  Nothing contained in this section shallrequire the insurance division to disclose any information or records thatwould indicate or show the existence or content of any investigation oractivity of a criminal justice agency.

(e)  The examination report shall bedisseminated as follows:

(1)  Upon the adoption of the examination report undersubsection (c)(1), the commissioner shall continue to hold the content of theexamination report as private and confidential information for a period offifteen days, except to the extent provided in subsection (b).  Thereafter, thecommissioner may open the report for public inspection so long as no court ofcompetent jurisdiction has stayed its publication; and

(2)  Nothing contained in this code shall prevent orbe construed as prohibiting the commissioner from disclosing the content of anexamination report, preliminary examination report or results, or any matterrelating thereto, to the regulatory agency for insurance of any state orcountry, or to law enforcement officials of this or any other state or agencyof the federal government at any time, so long as such agency or officereceiving the report or matters relating thereto agrees in writing to hold itconfidential and in a manner consistent with this part.

(f)  All working papers, recorded information,documents, and copies thereof produced by, obtained by, or disclosed to thecommissioner or any other person in the course of an examination, shall beconfidential and not subject to subpoena and shall not be made public by thecommissioner or any other person, except to the extent provided in subsection(e).  Access may be granted to the National Association of InsuranceCommissioners.  Any person shall agree in writing, prior to receiving theinformation, to provide to it the same confidential treatment as required bythis part, unless the prior written consent of the insurer to which theinformation pertains has been obtained. [L 1987, c 347, pt of §2; am L 1993, c205, §4 as superseded by c 321, §7; am L 1995, c 232, §8; am L 2000, c 288, §4;am L 2001, c 216, §4; am L 2004, c 122, §7]