§1200.5.  Insolvencies

A.  In the event a fund is insolvent, then in addition to any other provision of law or regulation, the department shall require that the fund file in writing within sixty days a plan signed by the board of trustees.  For purposes of this Subpart, an insolvency shall be defined as the condition existing when the fund's liabilities before member distribution payable or dividend payable are greater than the fund's assets determined in accordance with generally accepted accounting principles as delineated in the fund's financial statement audited by an independent certified public accountant.  For the purpose of determining insolvency, assets will not include intangible property, such as patents, trade names or goodwill.  The plan submitted by the fund to eliminate the insolvency shall set forth in detail the means by which the fund intends to eliminate the insolvency which may include an assessment of the members of the fund.  The fund shall also include the timetable for the implementation of the plan and requirements for reporting to the department. The department shall review the plan submitted by the fund and notify the fund of the plan's approval or disapproval within thirty days of the department's receipt of the plan.

B.  Upon determination by the department that a plan submitted by the fund is disapproved or that a fund is not implementing a plan in accordance with the terms of the plan, it shall so notify the fund in writing of such determination.

C.  Should a fund fail to file a plan to eliminate an insolvency as called for under this Section, or should the department notify a fund that such plan has been disapproved or that the fund is not implementing the plan according to the plan, the department shall have the following powers and authority in addition to any other powers and authority granted under law:

(1)  The department may order the fund to immediately levy an assessment upon its members, sufficient to eliminate the insolvency.

(2)  Should the fund fail or refuse to levy said assessment, the department may, in the name of the fund, levy such assessment upon the members of the fund sufficient to eliminate the insolvency.

Acts 2007, No. 384, §1.