2009 Iowa Code
Title 13 - Commerce
Subtitle 1 - Insurance and Related Regulation
CHAPTER 508E - VIATICAL SETTLEMENT CONTRACTS
508E.7 - EXAMINATION OR INVESTIGATIONS.

        508E.7  EXAMINATION OR INVESTIGATIONS.
         1.  Authority, scope, and scheduling of examinations.
         a. (1)  The commissioner may conduct an examination under this
      chapter of a licensee as often as the commissioner in the
      commissioner's discretion deems appropriate after considering the
      factors set forth in this paragraph "a".
         (2)  In scheduling and determining the nature, scope, and
      frequency of the examinations, the commissioner shall consider such
      matters as the consumer complaints, results of financial statement
      analyses and ratios, changes in management or ownership, actuarial
      opinions, reports of independent certified public accountants, and
      other relevant criteria as determined by the commissioner.
         b.  For purposes of completing an examination of a licensee
      under this chapter, the commissioner may examine or investigate any
      person, or the business of any person, insofar as the examination or
      investigation is, in the sole discretion of the commissioner,
      necessary or material to the examination of the licensee.
         c.  In lieu of an examination under this chapter of any
      foreign or alien licensee licensed in this state, the commissioner
      may, at the commissioner's discretion, accept an examination report
      on the licensee as prepared by the commissioner for the licensee's
      state of domicile or port-of-entry state.
         d.  As far as practical, the examination of a foreign or alien
      licensee shall be made in cooperation with the insurance supervisory
      officials of other states in which the licensee transacts business.
         2.  Record retention requirements.
         a.  A person required to be licensed pursuant to section
      508E.3 shall for five years retain copies of all of the following:
         (1)  Proposed, offered, or executed contracts, purchase
      agreements, underwriting documents, policy forms, and applications
      from the date of the proposal, offer, or execution of the contract or
      purchase agreement, whichever is later.
         (2)  All checks, drafts, or other evidence and documentation
      related to the payment, transfer, deposit, or release of funds from
      the date of the transaction.
         (3)  All other records and documents related to the requirements
      of this chapter.
         b.  This section does not relieve a person of the obligation
      to produce documents described in paragraph "a" to the
      commissioner after the retention period has expired if the person has
      retained the documents.
         c.  Records required to be retained by paragraph "a" must
      be legible and complete and may be retained in paper, photograph,
      microprocess, magnetic, mechanical, or electronic media, or by any
      process that accurately reproduces or forms a durable medium for the
      reproduction of a record.
         3.  Conduct of examinations.
         a.  Upon determining that an examination should be conducted,
      the commissioner shall issue an examination warrant appointing one or
      more examiners to perform the examination and instructing them as to
      the scope of the examination.  In conducting the examination, the
      examiner shall observe those guidelines and procedures set forth in
      the examiners handbook adopted by the national association of
      insurance commissioners.  The commissioner may also adopt rules for
      such other guidelines or procedures as the commissioner may deem
      appropriate.
         b.  Every licensee or person from whom information is sought,
      its officers, directors, and agents shall provide to the examiners
      timely, convenient, and free access at all reasonable hours at its
      offices to all books, records, accounts, papers, documents, assets,
      and computer or other recordings relating to the property, assets,
      business, and affairs of the licensee being examined.  The officers,
      directors, employees, and agents of the licensee or person shall
      facilitate the examination and aid in the examination so far as it is
      in their power to do so.  The refusal of a licensee, by its officers,
      directors, employees, or agents, to submit to examination or to
      comply with any reasonable written request of the commissioner shall
      be grounds for suspension or refusal of, or nonrenewal of, any
      license or authority held by the licensee to engage in the viatical
      settlement business or other business subject to the commissioner's
      jurisdiction.  Any proceedings for suspension, revocation, or refusal
      of any license or authority shall be conducted pursuant to section
      507B.6A.
         c.  The commissioner shall have the power to issue subpoenas,
      to administer oaths, and to examine under oath any person as to any
      matter pertinent to the examination.  Upon the failure or refusal of
      a person to obey a subpoena, the commissioner may petition a court of
      competent jurisdiction, and upon proper showing, the court may enter
      an order compelling the witness to appear and testify or produce
      documentary evidence.  A failure to obey the court order shall be
      punishable as contempt of court.
         d.  When making an examination under this chapter, the
      commissioner may retain attorneys, appraisers, independent actuaries,
      independent certified public accountants, or other professionals and
      specialists as examiners, the reasonable cost of which shall be borne
      by the licensee that is the subject of the examination.
         e.  Nothing contained in this chapter shall be construed to
      limit the commissioner's authority to terminate or suspend an
      examination in order to pursue other legal or regulatory action
      pursuant to the insurance laws of this state.  Findings of fact and
      conclusions made pursuant to any examination shall be prima facie
      evidence in any legal or regulatory action.
         f.  The commissioner's authority to use and, if appropriate,
      to make public any final or preliminary examination report, any
      examiner or licensee workpapers, or other documents, or any other
      information discovered or developed during the course of any
      examination in the furtherance of any legal or regulatory action
      shall be permitted consistent with section 507.14.
         4.  Examination reports.
         a.  Examination reports shall be comprised of only facts
      appearing upon the books, records, or other documents of the
      licensee, its agents, or other persons examined, or as ascertained
      from the testimony of its officers, agents, or other persons examined
      concerning its affairs, and such conclusions and recommendations as
      the examiners find reasonably warranted from the facts.
         b.  Not later than sixty days following completion of the
      examination, the examiner in charge shall file with the commissioner
      a verified written report of examination under oath.  Upon receipt of
      the verified report, the commissioner shall transmit the report to
      the licensee examined, together with a notice that shall afford the
      licensee examined a reasonable opportunity of not more than thirty
      days to make a written submission or rebuttal with respect to any
      matters contained in the examination report.
         c.  In the event the commissioner determines that regulatory
      action is appropriate as a result of an examination, the commissioner
      may initiate any proceedings or actions provided by law.
         5.  Confidentiality of examination information.
         a.  Notwithstanding chapter 22, the names and individual
      identification data for all viators shall be considered private and
      confidential information and shall not be disclosed by the
      commissioner, unless required by law.
         b.  Except as otherwise provided in this chapter, all
      examination reports, working papers, recorded information, documents,
      and copies thereof produced by, obtained by, or disclosed to the
      commissioner or any other person in the course of an examination made
      under this chapter, or in the course of an analysis or investigation
      by the commissioner of the financial condition or market conduct of a
      licensee, shall be confidential by law and privileged, shall not be
      subject to chapter 22, shall not be subject to subpoena, and shall
      not be subject to discovery or admissible in evidence in any private
      civil action.  The commissioner is authorized to use the documents,
      materials, or other information in the furtherance of any regulatory
      or legal action brought as part of the commissioner's official
      duties.  All examination reports, working papers, recorded
      information, documents, and their copies produced by, obtained by, or
      disclosed to the commissioner or any other person in the course of an
      examination made under this chapter, or in the course of an analysis
      or investigation by the commissioner of the financial condition or
      market conduct of a licensee shall be privileged and confidential in
      any judicial or administrative proceeding except for any of the
      following:
         (1)  An administrative proceeding brought by the insurance
      division under chapter 17A.
         (2)  A judicial review proceeding under chapter 17A brought by an
      insurer to whom the records relate.
         (3)  An action or proceeding which arises out of the criminal
      provisions of the laws of this state or the United States.
         c.  Documents, materials, or other information, including but
      not limited to all working papers and copies, in the possession or
      control of the national association of insurance commissioners and
      its affiliates and subsidiaries shall be confidential by law and
      privileged, shall not be subject to chapter 22, shall not be subject
      to subpoena, and shall not be subject to discovery or admissible in
      evidence in any private civil action if they are any of the
      following:
         (1)  Created, produced, or obtained by or disclosed to the
      national association of insurance commissioners and its affiliates
      and subsidiaries in the course of assisting an examination made under
      this chapter, or assisting the commissioner in the analysis or
      investigation of the financial condition or market conduct of a
      licensee.
         (2)  Disclosed to the national association of insurance
      commissioners and its affiliates and subsidiaries under paragraph
      "d" by the commissioner.
         (3)  For the purposes of paragraph "b", "chapter" includes
      the law of another state or jurisdiction that is substantially
      similar to this chapter.
         d.  In order to assist in the performance of the
      commissioner's duties, the commissioner may do all of the following:
         (1)  Share documents, materials, or other information, including
      the confidential and privileged documents, materials, or information
      subject to paragraph "a", with other state, federal, and
      international regulatory agencies, with the national association of
      insurance commissioners and its affiliates and subsidiaries, and with
      state, federal, and international law enforcement authorities,
      provided that the recipient agrees to maintain the confidentiality
      and privileged status of the documents, materials, communications, or
      other information.
         (2)  Receive documents, materials, communications, or information,
      including otherwise confidential and privileged documents, materials,
      or information, from the national association of insurance
      commissioners and its affiliates and subsidiaries, notwithstanding
      chapter 22, and from regulatory and law enforcement officials of
      other foreign or domestic jurisdictions, and shall maintain as
      confidential or privileged any documents, materials, or information
      received with notice or the understanding that it is confidential or
      privileged under the laws of the jurisdiction that is the source of
      the documents, materials, or information.
         (3)  Enter into agreements governing sharing and use of
      information consistent with section 507.14, subsection 4.
         e.  No waiver of any applicable privilege or claim of
      confidentiality in the documents, materials, or information shall
      occur as a result of disclosure to the commissioner under this
      section or as a result of sharing as authorized in paragraph "c".

         f.  A privilege established under the law of any state or
      jurisdiction that is substantially similar to the privilege
      established under this subsection shall be available and enforced in
      any proceeding in, and in any court of, this state.
         g.  Nothing contained in this chapter shall prevent or be
      construed as prohibiting the commissioner from disclosing the content
      of an examination report, preliminary examination report or results,
      or any matter relating thereto, to the commissioner of any other
      state or country, or to law enforcement officials of this or any
      other state or agency of the federal government at any time or to the
      national association of insurance commissioners, so long as such
      agency or office receiving the report or matters relating thereto
      agrees in writing to hold it confidential and in a manner consistent
      with this chapter.
         6.  Conflict of interest.
         a.  An examiner may not be appointed by the commissioner if
      the examiner, either directly or indirectly, has a conflict of
      interest or is affiliated with the management of or owns a pecuniary
      interest in any person subject to examination under this chapter.
      This section shall not be construed to automatically preclude an
      examiner from being any of the following:
         (1)  A viator.
         (2)  An insured in a viaticated insurance policy.
         (3)  A beneficiary in an insurance policy that is proposed to be
      viaticated.
         b.  Notwithstanding the requirements of paragraph "a", the
      commissioner may retain from time to time, on an individual basis,
      qualified actuaries, certified public accountants, or other similar
      individuals who are independently practicing their professions, even
      though these persons may from time to time be similarly employed or
      retained by persons subject to examination under this chapter.
         7.  Cost of examinations.
         a.  The commissioner may appoint insurance examiners who,
      while conducting examinations, shall possess all the powers conferred
      upon the commissioner for such purposes.  The entire time of the
      examiners shall be under the control of the commissioner, and shall
      be employed as the commissioner may direct.
         b.  The commissioner may, when in the commissioner's judgment
      it is advisable, appoint assistants to aid in making examinations.
      The examiners shall be compensated on the basis of the normal
      workweek of the insurance division at a salary to be fixed by the
      commissioner subject, however, to the provisions of section 505.14.
      The compensation shall be paid from appropriations for such purposes
      upon certification of the commissioner, which shall be reimbursed as
      provided in sections 507.8 and 507.9.
         c.  When making an examination under this chapter, the
      commissioner may retain attorneys, appraisers, independent actuaries,
      independent certified public accountants, or other professionals and
      specialists as examiners, the reasonable cost of which shall be borne
      by the company which is the subject of the examination.
         d.  The commissioner shall, upon the completion of an
      examination, or at such regular intervals prior to completion as the
      commissioner determines, prepare an account of the costs incurred in
      performing and preparing the report of such examinations which shall
      be charged to and paid by the company examined, and upon failure or
      refusal of a company examined to pay such costs, the same may be
      recovered by the commissioner or the attorney general in an action
      brought in the name of the state, and the commissioner may also
      revoke the certificate of authority of such company to transact
      business within this state.
         8.  Immunity from liability.
         a.  No cause of action shall arise, nor shall any liability be
      imposed, against the commissioner, the commissioner's authorized
      representatives, or any examiner appointed by the commissioner for
      any statements made or conduct performed reasonably and in good faith
      while carrying out the provisions of this chapter.
         b.  No cause of action shall arise, nor shall any liability be
      imposed, against any person for the act of communicating or
      delivering information or data to the commissioner or the
      commissioner's authorized representative or examiner pursuant to an
      examination made under this chapter, if the act of communication or
      delivery was performed reasonably and in good faith and without
      fraudulent intent or the intent to deceive.  This paragraph does not
      abrogate or modify in any way any common law or statutory privilege
      or immunity heretofore enjoyed by any person identified in paragraph
      "a".
         9.  Investigative authority of the commissioner.  The
      commissioner may investigate suspected fraudulent viatical settlement
      acts and persons engaged in the business of viatical settlements.  

         2008 Acts, ch 1155, §7