Senate Bill 2532e1

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    CS for SB 2532                                 First Engrossed



  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         clarifying the legislative intent that the

  4         terms "net premiums written" and "net premiums

  5         collected" as used in ch. 440, F.S., include

  6         ceded reinsurance premiums in accord with

  7         original intent; amending s. 440.49, F.S.,

  8         relating to the assessment for the Special

  9         Disability Trust Fund; amending s. 440.51,

10         F.S., relating to the assessment for the

11         Workers' Compensation Administration Trust Fund

12         and to expenses of administration; prescribing

13         effect of deductions with respect to

14         retaliatory taxes; reducing the assessment rate

15         for calendar year 2001; creating a Task Force

16         on Workers' Compensation Administration to

17         study the way in which the workers'

18         compensation system is funded and administered;

19         amending s. 440.38, F.S.; revising certain

20         requirements relating to self-insurers;

21         providing an effective date.

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23  Be It Enacted by the Legislature of the State of Florida:

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25         Section 1.  Legislative intent.--It is the intent of

26  the Legislature to clarify that the terms "net premiums

27  written" and "net premiums collected" as used in chapter 440,

28  Florida Statutes, have meant and continue to mean premiums

29  arising from workers' compensation policies issued by an

30  insurer in this state as the primary insurance carrier without

31  deduction for ceded reinsurance premiums transferred to an


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    CS for SB 2532                                 First Engrossed



  1  insurance company for reinsurance purchased or any premium

  2  expense attributable to purchasing reinsurance.

  3         Section 2.  Paragraph (b) of subsection (9) of section

  4  440.49, Florida Statutes, is amended to read:

  5         440.49  Limitation of liability for subsequent injury

  6  through Special Disability Trust Fund.--

  7         (9)  SPECIAL DISABILITY TRUST FUND.--

  8         (b)1.  The Special Disability Trust Fund shall be

  9  maintained by annual assessments upon the insurance companies

10  writing compensation insurance in the state, the commercial

11  self-insurers under ss. 624.462 and 624.4621, the assessable

12  mutuals under s. 628.601, and the self-insurers under this

13  chapter, which assessments shall become due and be paid

14  quarterly at the same time and in addition to the assessments

15  provided in s. 440.51. The division shall estimate annually in

16  advance the amount necessary for the administration of this

17  subsection and the maintenance of this fund and shall make

18  such assessment in the manner hereinafter provided.

19         2.  The annual assessment shall be calculated to

20  produce during the ensuing fiscal year an amount which, when

21  combined with that part of the balance in the fund on June 30

22  of the current fiscal year which is in excess of $100,000, is

23  equal to the average of:

24         a.  The sum of disbursements from the fund during the

25  immediate past 3 calendar years, and

26         b.  Two times the disbursements of the most recent

27  calendar year.

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29  Such amount shall be prorated among the insurance companies

30  writing compensation insurance in the state and the

31  self-insurers. Provided however, for those carriers that have


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    CS for SB 2532                                 First Engrossed



  1  excluded ceded reinsurance premiums from their assessments on

  2  or before January 1, 2000, no assessments on ceded reinsurance

  3  premiums shall be paid by those carriers until such time as

  4  the division advises each of those carriers of the impact that

  5  the inclusion of ceded reinsurance premiums has on their

  6  assessment. The division may not recover any past

  7  underpayments of assessments levied against any carrier that

  8  on or before January 1, 2000, excluded ceded reinsurance

  9  premiums from their assessment prior to the point that the

10  division advises of the appropriate assessment that should

11  have been paid.

12         3.  The net premiums written by the companies for

13  workers' compensation in this state and the net premium

14  written applicable to the self-insurers in this state are the

15  basis for computing the amount to be assessed as a percentage

16  of net premiums. Such payments shall be made by each carrier

17  insurance company and self-insurer to the division for the

18  Special Disability Trust Fund in accordance with such

19  regulations as the division prescribes.

20         4.  The Treasurer is authorized to receive and credit

21  to such Special Disability Trust Fund any sum or sums that may

22  at any time be contributed to the state by the United States

23  under any Act of Congress, or otherwise, to which the state

24  may be or become entitled by reason of any payments made out

25  of such fund.

26         Section 3.  Subsections (1), (2), (3), and (5) of

27  section 440.51, Florida Statutes, are amended to read:

28         440.51  Expenses of administration.--

29         (1)  The division shall estimate annually in advance

30  the amounts necessary for the administration of this chapter,

31  in the following manner.


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  1         (a)  The division shall, by July 1 of as soon as

  2  practicable after July 1 in each year, notify carriers and

  3  self-insurers of the assessment rate, which shall be based on

  4  determine the anticipated expenses expense of the

  5  administration of this chapter for the next calendar preceding

  6  fiscal year. Such assessment rate shall take effect January 1

  7  of the next calendar year and shall be included in workers'

  8  compensation rate filings approved by the Department of

  9  Insurance which become effective on or after January 1 of the

10  next calendar year. Assessments shall become due and be paid

11  quarterly. The expense of administration for such preceding

12  fiscal year shall be used as the basis for determining the

13  amount to be assessed against each carrier in order to provide

14  for the expenses of the administration of this chapter for the

15  current fiscal year.

16         (b)  The total expenses of administration shall be

17  prorated among the carriers insurance companies writing

18  compensation insurance in the state and self-insurers.  The

19  net premiums collected by carriers the companies and the

20  amount of premiums calculated by the division for self-insured

21  employers a self-insurer would have to pay if insured are the

22  basis for computing the amount to be assessed. When reporting

23  deductible policy premium for purposes of computing

24  assessments levied after July 1, 2001, full policy premium

25  value must be reported prior to application of deductible

26  discounts or credits.  This amount may be assessed as a

27  specific amount or as a percentage of net premiums payable as

28  the division may direct, provided such amount so assessed

29  shall not exceed 2.75 4 percent, beginning January 1, 2001,

30  except during the interim period from July 1, 2000, through

31  December 31, 2000, such assessments shall not exceed 4 percent


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    CS for SB 2532                                 First Engrossed



  1  of such net premiums.  The carriers insurance companies may

  2  elect to make the payments required under s. 440.15(1)(f) s.

  3  440.15(1)(e) rather than having these payments made by the

  4  division.  In that event, such payments will be credited to

  5  the carriers insurance companies, and the amount due by the

  6  carrier insurance company under this section will be reduced

  7  accordingly.

  8         (2)  The division shall provide by regulation for the

  9  collection of the amounts assessed against each carrier.  Such

10  amounts shall be paid within 30 days from the date that notice

11  is served upon such carrier.  If such amounts are not paid

12  within such period, there may be assessed for each 30 days the

13  amount so assessed remains unpaid, a civil penalty equal to 10

14  percent of the amount so unpaid, which shall be collected at

15  the same time and a part of the amount assessed. For those

16  carriers who excluded ceded reinsurance premiums from their

17  assessments prior to January 1, 2000, the division shall not

18  recover any past underpayments of assessments related to ceded

19  reinsurance premiums prior to January 1, 2001, against such

20  carriers.

21         (3)  If any carrier fails to pay the amounts assessed

22  against him or her under the provisions of this section within

23  60 days from the time such notice is served upon him or her,

24  the Department of Insurance upon being advised by the division

25  may suspend or revoke the authorization to insure compensation

26  in accordance with the procedure in s. 440.38(3)(a). The

27  division may permit a carrier to remit any underpayment of

28  assessments for assessments levied after January 1, 2001.

29         (5)  Any amount so assessed against and paid by an

30  insurance carrier, self-insurer authorized pursuant to s.

31  440.57, or commercial self-insurance fund authorized under ss.


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    CS for SB 2532                                 First Engrossed



  1  624.460-624.488 shall be allowed as a deduction against the

  2  amount of any other tax levied by the state upon the premiums,

  3  assessments, or deposits for workers' compensation insurance

  4  on contracts or policies of said insurance carrier,

  5  self-insurer, or commercial self-insurance fund. Any insurance

  6  carrier claiming such a deduction against the amount of any

  7  such tax shall not be required to pay any additional

  8  retaliatory tax levied pursuant to s. 624.5091 as a result of

  9  claiming such deduction. Because deductions under this

10  paragraph are available to insurance carriers, s. 624.5091

11  does not limit such deductions in any manner.

12         Section 4.  (1)  Effective upon this act becoming a

13  law, there is created the Task Force on Workers' Compensation

14  Administration for the purpose of examining the way in which

15  the workers' compensation system is funded and administered.

16  The Task Force shall consist of seven members appointed as

17  follows:  three members appointed by the Governor, one of whom

18  shall serve as chair; two members appointed by the President

19  of the Senate, and two members appointed by the Speaker of the

20  House of Representatives.  Appointments shall be made no later

21  than July 1, 2000.

22         (2)  The Task Force shall submit recommendations to the

23  Governor, the President of the Senate, and the Speaker of the

24  House of Representatives by January 15, 2001 concerning:

25         (a)  Whether the administration of the workers'

26  compensation system should be funded through assessments,

27  general revenue, or some other source, and to what extent.

28         (b)  How the funds should be used to accomplish the

29  goal of administering the workers' compensation system in the

30  most cost-effective manner.

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  1         (c)  What services, functions, or entities, including

  2  the Workers' Compensation Oversight Board, should be funded as

  3  part of the administration of the workers' compensation

  4  system.

  5         (d)  What services and functions, including workplace

  6  safety, if any, should be housed within the Division of

  7  Workers' Compensation.

  8         (e)  What cost savings could be achieved in the

  9  administration of the workers' compensation system, including

10  the operations of the Division of Workers' Compensation.

11         (f)  What organizational changes affecting the

12  administration of the workers' compensation system, if any,

13  should be made to make it more efficient.

14         (3)  To assist the task force in its work, the

15  Executive Office of the Governor shall contract for the

16  completion of a budgetary and operational analysis of the

17  Division of Workers' Compensation, detailing the staffing of

18  the division, receipt and expenditure of revenues,

19  reliability of financial records and reports, and the

20  efficiency of internal controls and procedures.  The Executive

21  Office of the Governor shall arrange for the study to be

22  completed and transmitted to the task force by September 1,

23  2000.

24         (4)  The sum of $250,000 is appropriated from the

25  Workers' Compensation Administration Trust Fund to the

26  Executive Office of the Governor for the purpose of funding

27  the study required in subsection (3).

28         Section 5.  If any provision of this act or its

29  application to any person or circumstance is held invalid, the

30  invalidity does not affect other provisions or applications of

31  the act which can be given effect without the invalid


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  1  provision or application, and to this end the provisions of

  2  this act are severable.

  3         Section 6.  Paragraph (b) of subsection (1) of section

  4  440.38, Florida Statutes, is amended to read:

  5         440.38  Security for compensation; insurance carriers

  6  and self-insurers.--

  7         (1)  Every employer shall secure the payment of

  8  compensation under this chapter:

  9         (b)  By furnishing satisfactory proof to the division

10  of its her or his financial ability to pay such compensation

11  individually and on behalf of its subsidiary and affiliated

12  companies with employees in this state and receiving an

13  authorization from the division to pay such compensation

14  directly in accordance with the following provisions:

15         1.  The division may, as a condition to such

16  authorization, require such employer to deposit in a

17  depository designated by the division either an indemnity bond

18  or securities, at the option of the employer, of a kind and in

19  an amount determined by the division and subject to such

20  conditions as the division may prescribe, which shall include

21  authorization to the division in the case of default to sell

22  any such securities sufficient to pay compensation awards or

23  to bring suit upon such bonds, to procure prompt payment of

24  compensation under this chapter.  In addition, the division

25  shall require, as a condition to authorization to self-insure,

26  proof that the employer has provided for competent personnel

27  with whom to deliver benefits and to provide a safe working

28  environment.  Further, the division shall require such

29  employer to carry reinsurance at levels that will ensure the

30  actuarial soundness of such employer in accordance with rules

31  promulgated by the division.  The division may by rule require


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  1  that, in the event of an individual self-insurer's insolvency,

  2  such indemnity bonds, securities, and reinsurance policies

  3  shall be payable to the Florida Self-Insurers Guaranty

  4  Association, Incorporated, created pursuant to s. 440.385.

  5  Any employer securing compensation in accordance with the

  6  provisions of this paragraph shall be known as a self-insurer

  7  and shall be classed as a carrier of her or his own insurance.

  8         2.  If the employer fails to maintain the foregoing

  9  requirements, the division shall revoke the employer's

10  authority to self-insure, unless the employer provides to the

11  division the certified opinion of an independent actuary who

12  is a member of the American Society of Actuaries as to the

13  actuarial present value of the employer's determined and

14  estimated future compensation payments based on cash reserves,

15  using a 4-percent discount rate, and a qualifying security

16  deposit equal to 1.5 times the value so certified. The

17  employer shall thereafter annually provide such a certified

18  opinion until such time as the employer meets the requirements

19  of subparagraph 1.  The qualifying security deposit shall be

20  adjusted at the time of each such annual report.  Upon the

21  failure of the employer to timely provide such opinion or to

22  timely provide a security deposit in an amount equal to 1.5

23  times the value certified in the latest opinion, the division

24  shall then revoke such employer's authorization to

25  self-insure, and such failure shall be deemed to constitute an

26  immediate serious danger to the public health, safety, or

27  welfare sufficient to justify the summary suspension of the

28  employer's authorization to self-insure pursuant to s. 120.68.

29         3.  Upon the suspension or revocation of the employer's

30  authorization to self-insure, the employer shall provide to

31  the division and to the Florida Self-Insurers Guaranty


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    CS for SB 2532                                 First Engrossed



  1  Association, Incorporated, created pursuant to s. 440.385 the

  2  certified opinion of an independent actuary who is a member of

  3  the American Society of Actuaries of the actuarial present

  4  value of the determined and estimated future compensation

  5  payments of the employer for claims incurred while the member

  6  exercised the privilege of self-insurance, using a discount

  7  rate of 4 percent. The employer shall provide such an opinion

  8  at 6-month intervals thereafter until such time as the latest

  9  opinion shows no remaining value of claims.  With each such

10  opinion, the employer shall deposit with the division a

11  qualifying security deposit in an amount equal to the value

12  certified by the actuary.  The association has a cause of

13  action against an employer, and against any successor of the

14  employer, who fails to timely provide such opinion or who

15  fails to timely maintain the required security deposit with

16  the division. The association shall recover a judgment in the

17  amount of the actuarial present value of the determined and

18  estimated future compensation payments of the employer for

19  claims incurred while the employer exercised the privilege of

20  self-insurance, together with attorney's fees.  For purposes

21  of this section, the successor of an employer means any

22  person, business entity, or group of persons or business

23  entities, which holds or acquires legal or beneficial title to

24  the majority of the assets or the majority of the shares of

25  the employer.

26         4.  A qualifying security deposit shall consist, at the

27  option of the employer, of:

28         a.  Surety bonds, in a form and containing such terms

29  as prescribed by the division, issued by a corporation surety

30  authorized to transact surety business by the Department of

31  Insurance, and whose policyholders' and financial ratings, as


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  1  reported in A.M. Best's Insurance Reports, Property-Liability,

  2  are not less than "A" and "V", respectively.

  3         b.  Certificates of deposit with financial

  4  institutions, the deposits of which are insured through the

  5  Federal Deposit Insurance Corporation or the Federal Savings

  6  and Loan Insurance Corporation.

  7         c.  Irrevocable letters of credit in favor of the

  8  division issued by financial institutions described in

  9  sub-subparagraph b.

10         d.  Direct obligations of the United States Treasury

11  backed by the full faith and credit of the United States.

12         e.  Securities issued by this state and backed by the

13  full faith and credit of this state.

14         5.  The qualifying security deposit shall be held by

15  the division, or by a depository authorized by the division,

16  exclusively for the benefit of workers' compensation

17  claimants. The security shall not be subject to assignment,

18  execution, attachment, or any legal process whatsoever, except

19  as necessary to guarantee the payment of compensation under

20  this chapter.  No surety bond may be terminated, and no other

21  qualifying security may be allowed to lapse, without 90 days'

22  prior notice to the division and deposit by the self-insuring

23  employer of other qualifying security of equal value within 10

24  business days after such notice. Failure to provide such

25  notice or failure to timely provide qualifying replacement

26  security after such notice shall constitute grounds for the

27  division to call or sue upon the surety bond, or to act with

28  respect to other pledged security in any manner necessary to

29  preserve its value for the purposes intended by this section,

30  including the exercise of rights under a letter of credit, the

31  sale of any security at then prevailing market rates, or the


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  1  withdrawal of any funds represented by any certificate of

  2  deposit forming part of the qualifying security deposit;

  3         Section 7.  Except as otherwise expressly provided in

  4  this act, this act shall take effect July 1, 2000.

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