Senate Bill sb0066C
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Florida Senate - 2001 SB 66-C
By Senator Latvala
311-747A-02
1 A bill to be entitled
2 An act transferring and reassigning divisions,
3 functions, and responsibilities of the
4 Department of Labor and Employment Security;
5 providing for a type two transfer of the
6 Division of Workers' Compensation to the
7 Department of Insurance; providing for a type
8 two transfer of workers' compensation medical
9 services to the Agency for Health Care
10 Administration; providing for a type two
11 transfer of workers' compensation
12 rehabilitation and reemployment services to the
13 Department of Education; providing for a type
14 two transfer of the administration of child
15 labor laws to the Department of Business and
16 Professional Regulation; providing for
17 comparable pay grades for the transferred
18 positions; authorizing the Department of
19 Insurance to reorganize positions within the
20 department and establish regional offices;
21 authorizing the Department of Insurance to
22 enter into contracts; providing for existing
23 contracts to be subject to review and
24 cancellation; providing for a type two transfer
25 of certain functions of the Office of the
26 Secretary and the Office of Administrative
27 Services of the Department of Labor and
28 Employment Security relating to labor
29 organizations and migrant and farm labor
30 registration to the Department of Business and
31 Professional Regulation; providing for a type
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1 two transfer of other workplace regulation
2 functions to the Department of Business and
3 Professional Regulation; providing for the
4 transfer of the Unemployment Appeals Commission
5 to the Agency for Workforce Innovation by a
6 type two transfer; providing for the transfer
7 of the Office of Information Systems to the
8 State Technology Office by a type two transfer;
9 requiring the State Technology Office and the
10 Department of Insurance to determine whether it
11 is feasible to transfer ownership of the
12 Workers' Compensation Integrated System to the
13 Department of Insurance; authorizing the
14 Department of Banking and Finance, in
15 conjunction with the Office of the Attorney
16 General, to use unexpended funds to settle
17 certain claims; providing for the continuation
18 of contracts or agreements of the Department of
19 Labor and Employment Security; providing for a
20 successor department, agency, or entity to be
21 substituted for the Department of Labor and
22 Employment Security as a party in interest in
23 pending proceedings; exempting specified state
24 agencies, on a temporary basis, from provisions
25 relating to procurement of property and
26 services and leasing of space; authorizing
27 specified state agencies to develop temporary
28 emergency rules relating to the implementation
29 of this act; transferring certain positions
30 within the Office of General Counsel of the
31 Department of Labor and Employment Security to
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1 the Department of Insurance by a type two
2 transfer; amending s. 20.13, F.S.; establishing
3 the Division of Workers' Compensation within
4 the Department of Insurance; amending s.
5 440.02, F.S.; providing a definition for the
6 term "agency"; conforming definitions of
7 "department" and "division" to the transfer of
8 the Division of Workers' Compensation; amending
9 ss. 440.102, 440.125, F.S.; conforming agency
10 references to reflect the transfer of the
11 Division of Workers' Compensation; amending s.
12 440.13, F.S., relating to medical services and
13 supplies under the workers' compensation law;
14 reassigning certain functions from the Division
15 of Workers' Compensation to the Agency for
16 Health Care Administration; conforming agency
17 references to reflect the transfer of the
18 Division of Workers' Compensation; amending s.
19 440.15, F.S.; providing for the agency to
20 specify certain forms and procedures governing
21 wage loss and impairment benefits; conforming a
22 cross-reference; amending ss. 440.1925, 440.20,
23 440.207, F.S., relating to payment of
24 compensation; conforming provisions to changes
25 made by the act; amending s. 440.24, F.S.;
26 providing for the sale of securities on deposit
27 to satisfy a compensation order; amending ss.
28 440.25, 440.271, F.S., relating to mediation,
29 hearings, and appeals; conforming provisions to
30 changes made by the act; amending s. 440.38,
31 F.S.; transferring operation of provisions
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1 requiring the securing of payment of
2 compensation by employers from the Division of
3 Workers' Compensation of the Department of
4 Labor and Employment Security to the Florida
5 Self-Insurer's Guaranty Association,
6 Incorporated, and the Department of Insurance;
7 revising and clarifying requirements and
8 procedures; providing powers and duties of the
9 association and the departments; providing for
10 allocation or payment of state funds to the
11 association for certain purposes; providing
12 rulemaking authority; amending s. 440.381,
13 F.S., relating to audits of payroll and
14 classifications; conforming provisions to
15 changes made by the act; amending s. 440.385,
16 F.S.; revising and clarifying provisions
17 relating to the association's creation, board
18 of directors, powers and duties, insolvency
19 fund, and plan of operation; providing
20 additional powers of the association;
21 transferring the powers and duties of the
22 Department of Labor and Employment Security
23 relating to the association to the Department
24 of Insurance and revising such powers and
25 duties; providing additional powers and duties
26 of the Department of Insurance; providing for
27 oversight of the association by the department;
28 deleting certain provisions relating to
29 detection and prevention of employer
30 insolvencies; amending s. 440.386, F.S.;
31 providing parity for the association with the
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1 Department of Insurance relating to proceedings
2 for delinquency, liquidation, and conservation
3 of assets; amending s. 440.49, F.S.;
4 reassigning responsibility for a report on the
5 Special Disability Trust Fund to the Department
6 of Insurance; amending s. 440.491, F.S.,
7 relating to the reemployment of injured
8 workers; conforming references to the transfer
9 of rehabilitation and reemployment services to
10 the Department of Education; amending s.
11 440.525, F.S., relating to the examination of
12 carriers; conforming agency references to the
13 transfer of programs from the Department of
14 Labor and Employment Security to the Department
15 of Revenue; amending s. 443.012, F.S.;
16 providing for the Unemployment Appeals
17 Commission to be created within the Agency for
18 Workforce Innovation rather than the Department
19 of Labor and Employment Security; conforming
20 provisions; amending s. 443.036, F.S.;
21 conforming the definition of "commission" to
22 the transfer of the Unemployment Appeals
23 Commission to the Agency for Workforce
24 Innovation; amending s. 447.02, F.S.;
25 conforming the definition of "department" to
26 the transfer of the regulation of labor
27 organizations to the Department of Business and
28 Professional Regulation; amending s. 447.305,
29 F.S.; providing that notification of
30 registrations and renewals of registration
31 shall be furnished to the Department of
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1 Business and Professional Regulation, to
2 conform; amending s. 450.012, F.S.; conforming
3 the definition of "department" to the transfer
4 of the regulation of child labor to the
5 Department of Business and Professional
6 Regulation; amending s. 450.191, F.S., relating
7 to the duties of the Executive Office of the
8 Governor with respect to migrant labor;
9 conforming provisions to changes made by the
10 act; amending s. 450.28, F.S.; conforming the
11 definition of "department" to the transfer of
12 the regulation of farm labor to the Department
13 of Business and Professional Regulation;
14 amending s. 627.0915, F.S.; conforming
15 departmental references to changes made by the
16 act; amending ss. 110.205, 112.19, 112.191,
17 121.125, 122.03, 238.06, 440.10, 440.104,
18 440.14, F.S., to conform; repealing s. 20.171,
19 F.S., relating to the establishment and the
20 authority and organizational structure of the
21 Department of Labor and Employment Security;
22 repealing s. 440.4416, F.S., relating to the
23 Workers' Compensation Oversight Board;
24 providing for severability; providing an
25 effective date.
26
27 Be It Enacted by the Legislature of the State of Florida:
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29 Section 1. (1) All powers, duties, functions, rules,
30 records, personnel, property, and unexpended balances of
31 appropriations, allocations, and other funds of the Division
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1 of Workers' Compensation are transferred by a type two
2 transfer, as defined in section 20.06(2), Florida Statutes,
3 from the Department of Labor and Employment Security to the
4 Department of Insurance, except as otherwise provided in this
5 section. Nineteen full-time equivalent positions and the
6 associated funding for salaries, benefits, and expenses
7 related to oversight of medical services in workers'
8 compensation provider relations, dispute and complaint
9 resolution, program evaluation, data management, and carrier
10 compliance and review are transferred by a type two transfer,
11 as defined in section 20.06(2), Florida Statutes, from the
12 Department of Labor and Employment Security to the Agency for
13 Health Care Administration; 96 full-time equivalent positions,
14 and the associated funding for salaries, benefits, and
15 expenses related to the rehabilitation and reemployment of
16 injured workers are transferred by a type two transfer, as
17 defined in section 20.06(2), Florida Statutes, from the
18 Department of Labor and Employment Security to the Department
19 of Education; and 11 full-time equivalent positions and the
20 associated funding for salaries, benefits, and expenses
21 related to the administration of child labor laws under
22 chapter 450, Florida Statutes, are transferred by a type two
23 transfer, as defined in section 20.06(2), Florida Statutes,
24 from the Department of Labor and Employment Security to the
25 Department of Business and Professional Regulation. To the
26 extent feasible, the positions established by the Department
27 of Insurance will be at pay grades comparable to the positions
28 established by the Department of Labor and Employment Security
29 based on the classification codes and specifications of the
30 positions for work to be performed at the Department of
31 Insurance. The Department of Insurance shall determine the
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1 number of positions needed to administer the provisions of
2 chapter 440, Florida Statutes. The number of positions the
3 department determines is needed may not exceed the number of
4 authorized positions and the salary and benefits that were
5 authorized for the Division of Workers' Compensation within
6 the Department of Labor and Employment Security prior to the
7 transfer. The Department of Insurance is further authorized to
8 reassign, reorganize, or otherwise transfer positions to
9 appropriate administrative subdivisions within the department
10 and to establish such regional offices as are necessary to
11 properly enforce and administer its responsibilities under the
12 Florida Insurance Code and chapter 440, Florida Statutes. The
13 department may also enter into contracts with public or
14 private entities to administer its duties and responsibilities
15 associated with the transfer of the Division of Workers'
16 Compensation. All existing contracts related to those
17 functions that are transferred to the Department of Insurance
18 are subject to cancellation or renewal upon review by the
19 Department of Insurance.
20 (2) All powers, duties, functions, rules, records,
21 personnel, property, and unexpended balances of
22 appropriations, allocations, and other funds of the Office of
23 the Secretary and the Office of Administrative Services of the
24 Department of Labor and Employment Security related to the
25 regulation of labor organizations under chapter 447, Florida
26 Statutes, and the administration of migrant labor and farm
27 labor laws under chapter 450, Florida Statutes, are
28 transferred by a type two transfer, as defined in section
29 20.06(2), Florida Statutes, from the Department of Labor and
30 Employment Security to the Department of Business and
31 Professional Regulation.
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1 (3) Any other powers, duties, functions, rules,
2 records, property, and unexpended balances of appropriations,
3 allocations, and other funds of the Department of Labor and
4 Employment Security not otherwise transferred by this act
5 relating to workplace regulation and enforcement, including,
6 but not limited to, those under chapter 448, Florida Statutes,
7 are transferred by a type two transfer, as defined in section
8 20.06(2), Florida Statutes, from the Department of Labor and
9 Employment Security to the Department of Business and
10 Professional Regulation.
11 (4) All powers, duties, functions, rules, records,
12 personnel, property, and unexpended balances of
13 appropriations, allocations, and other funds of the
14 Unemployment Appeals Commission relating to the commission's
15 specified authority, powers, duties, and responsibilities are
16 transferred by a type two transfer, as defined in section
17 20.06(2), Florida Statutes, to the Agency for Workforce
18 Innovation.
19 (5) The Office of Information Systems is transferred
20 by a type two transfer, as defined in s. 20.06(2), Florida
21 Statutes, from the Department of Labor and Employment Security
22 to the State Technology Office. Upon completion of this
23 transfer, the State Technology Office and the Department of
24 Insurance shall enter into discussions to determine whether it
25 would be technologically feasible and cost effective to
26 separate the Workers' Compensation Integrated System from its
27 current mainframe platform and transfer ownership of this
28 system to the Department of Insurance. If the Department of
29 Insurance ultimately determines that it is technologically
30 feasible and cost effective to transfer ownership of the
31 Workers' Compensation Integrated System from the State
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1 Technology Office to the Department of Insurance, the State
2 Technology Office and the Department of Insurance shall
3 jointly develop and implement a plan to transfer this system
4 to the Department of Insurance.
5 (6)(a) The records, property, and unexpended balances
6 of appropriations, allocations, and other funds and resources
7 of the Office of the Secretary and the Office of
8 Administrative Services of the Department of Labor and
9 Employment Security which support the activities and functions
10 transferred under subsection (1) to the Department of
11 Insurance are transferred as provided in section 20.06(2),
12 Florida Statutes, to the Department of Insurance.
13 (b) The records, property, and unexpended balances of
14 appropriations, allocations, and other funds and resources of
15 the Office of the Secretary and the Office of Administrative
16 Services of the Department of Labor and Employment Security
17 which support the activities and functions transferred under
18 subsection (1) to the Agency for Health Care Administration
19 are transferred as provided in section 20.06(2), Florida
20 Statutes, to the Agency for Health Care Administration.
21 (c) The records, property, and unexpended balances of
22 appropriations, allocations, and other funds and resources of
23 the Office of the Secretary and the Office of Administrative
24 Services of the Department of Labor and Employment Security
25 which support the activities and functions transferred under
26 subsection (1) to the Department of Education are transferred
27 as provided in section 20.06(2), Florida Statutes, to the
28 Department of Education.
29 (d) The records, property, and unexpended balances of
30 appropriations, allocations, and other funds and resources of
31 the Office of the Secretary and the Office of Administrative
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1 Services of the Department of Labor and Employment Security
2 which support the activities and functions transferred under
3 subsections (1), (2), and (3) to the Department of Business
4 and Professional Regulation are transferred as provided in
5 section 20.06(2), Florida Statutes, to the Department of
6 Business and Professional Regulation.
7 (e) The records, property, and unexpended balances of
8 appropriations, allocations, and other funds and resources of
9 the Office of the Secretary and the Office of Administrative
10 Services of the Department of Labor and Employment Security
11 which support the activities and functions transferred under
12 subsection (4) to the Agency for Workforce Innovation are
13 transferred as provided in section 20.06(2), Florida Statutes,
14 to the Agency for Workforce Innovation.
15 (f) The records, property, and unexpended balances of
16 appropriations, allocations, and other funds and resources of
17 the Office of the Secretary and the Office of Administrative
18 Services of the Department of Labor and Employment Security
19 which support the activities and functions transferred under
20 subsection (5) to the State Technology Office are transferred
21 as provided in section 20.06(2), Florida Statutes, to the
22 State Technology Office.
23 (7) The transfer of any programs, activities, and
24 functions under this act shall include the transfer of any
25 records and unexpended balances of appropriations,
26 allocations, or other funds related to such programs,
27 activities, and functions. Any surplus records and unexpended
28 balances of appropriations, allocations, or other funds not so
29 transferred shall be transferred to the Department of
30 Management Services for proper disposition. The Department of
31 Management Services shall become the custodian of any property
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1 of the Department of Labor and Employment Security which is
2 not otherwise transferred for the purposes of chapter 273,
3 Florida Statutes. The Department of Management Services is
4 authorized to permit the use of such property by organizations
5 as necessary to implement the provisions of this act.
6 (8) The Department of Banking and Finance, in
7 conjunction with the Office of the Attorney General, may use
8 any unexpended balances of the Department of Labor and
9 Employment Security to settle any claims or leases, pay out
10 personnel annual leave or sick leave, or close out other costs
11 owed by the department, regardless of whether such costs
12 relate to federal, state, or local governments, department
13 employees, or the private sector. Any remaining balances of
14 the department shall be transferred as directed by this act or
15 by budget amendment.
16 (9) Except as otherwise provided in subsection (1) and
17 notwithstanding any other provision of law, any binding
18 contract or interagency agreement existing on or before
19 January 1, 2002, between the Department of Labor and
20 Employment Security, or an entity or agent of the department,
21 and any other agency, entity, or person shall continue as a
22 binding contract or agreement for the remainder of the term of
23 such contract or agreement with the successor department,
24 agency, or entity responsible for the program, activity, or
25 functions relative to the contract or agreement.
26 (10) This act does not affect the validity of any
27 judicial or administrative proceeding involving the Department
28 of Labor and Employment Security which is pending as of the
29 effective date of any transfer under this act. The successor
30 department, agency, or entity responsible for the program,
31 activity, or function relative to the proceeding shall be
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1 substituted, as of the effective date of the applicable
2 transfer under this act, for the Department of Labor and
3 Employment Security as a party in interest in any such
4 proceedings.
5 (11) To expedite the acquisition of goods and services
6 for implementation of the provisions of this act, the
7 Department of Insurance, the Agency for Health Care
8 Administration, the Department of Education, the Department of
9 Business and Professional Regulation, the Agency for Workforce
10 Innovation, and the State Technology Office are exempt from
11 the provisions of chapter 287, Florida Statutes, when
12 contracting for the purchase or lease of goods or services
13 under this act. This section shall take effect upon this act
14 becoming a law and shall expire July 1, 2002.
15 (12) To expedite the leasing of facilities for
16 implementation of the provisions of this act, the Department
17 of Revenue, the Agency for Health Care Administration, the
18 Department of Education, the Department of Business and
19 Professional Regulation, the Agency for Workforce Innovation,
20 and the State Technology Office are exempt from the
21 requirements of any state laws relating to the leasing of
22 space, including, but not limited to, the requirements imposed
23 by section 255.25, Florida Statutes, and any rules adopted
24 under such laws; however, all leases entered into under this
25 act through July 1, 2002, must be submitted for approval to
26 the Department of Management Services at the earliest
27 practicable time. This section shall take effect upon this act
28 becoming a law and shall expire July 1, 2002.
29 (13) Notwithstanding any provisions of chapter 120,
30 Florida Statutes, to the contrary, the Department of
31 Insurance, the Agency for Health Care Administration, the
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1 Department of Education, the Department of Business and
2 Professional Regulation, the Agency for Workforce Innovation,
3 and the State Technology Office are authorized to develop
4 emergency rules relating to and in furtherance of the orderly
5 implementation of the provisions of this act. This section
6 shall take effect upon this act becoming a law, and these
7 emergency rules shall be valid for a period of 180 days after
8 January 1, 2002.
9 (14) Four attorney positions and one administrative
10 assistant III position, and the related property and
11 unexpended balances of appropriations, allocations, and other
12 funds, are transferred from the Office of General Counsel of
13 the Department of Labor and Employment Security to the
14 Department of Insurance by a type two transfer, as defined in
15 section 20.06(2), Florida Statutes.
16 Section 2. Paragraph (k) is added to subsection (2) of
17 section 20.13, Florida Statutes, to read:
18 20.13 Department of Insurance.--There is created a
19 Department of Insurance.
20 (2) The following divisions of the Department of
21 Insurance are established:
22 (k) Division of Workers' Compensation.
23 Section 3. Subsections (3) through (39) of section
24 440.02, Florida Statutes, are renumbered as subsections (4)
25 through (40), respectively, a new subsection (3) is added to
26 said section, and renumbered subsections (12) and (14) are
27 amended, to read:
28 440.02 Definitions.--When used in this chapter, unless
29 the context clearly requires otherwise, the following terms
30 shall have the following meanings:
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1 (3) "Agency" means the Agency for Health Care
2 Administration.
3 (12)(11) "Department" means the Department of
4 Insurance Labor and Employment Security.
5 (14)(13) "Division" means the Division of Workers'
6 Compensation of the Department of Insurance Labor and
7 Employment Security.
8 Section 4. Paragraph (a) of subsection (3) of section
9 440.102, Florida Statutes, is amended to read:
10 440.102 Drug-free workplace program requirements.--The
11 following provisions apply to a drug-free workplace program
12 implemented pursuant to law or to rules adopted by the Agency
13 for Health Care Administration:
14 (3) NOTICE TO EMPLOYEES AND JOB APPLICANTS.--
15 (a) One time only, prior to testing, an employer shall
16 give all employees and job applicants for employment a written
17 policy statement which contains:
18 1. A general statement of the employer's policy on
19 employee drug use, which must identify:
20 a. The types of drug testing an employee or job
21 applicant may be required to submit to, including
22 reasonable-suspicion drug testing or drug testing conducted on
23 any other basis.
24 b. The actions the employer may take against an
25 employee or job applicant on the basis of a positive confirmed
26 drug test result.
27 2. A statement advising the employee or job applicant
28 of the existence of this section.
29 3. A general statement concerning confidentiality.
30 4. Procedures for employees and job applicants to
31 confidentially report to a medical review officer the use of
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1 prescription or nonprescription medications to a medical
2 review officer both before and after being tested.
3 5. A list of the most common medications, by brand
4 name or common name, as applicable, as well as by chemical
5 name, which may alter or affect a drug test. A list of such
6 medications as developed by the Agency for Health Care
7 Administration shall be available to employers through the
8 Division of Workers' Compensation of the Department of
9 Insurance Labor and Employment Security.
10 6. The consequences of refusing to submit to a drug
11 test.
12 7. A representative sampling of names, addresses, and
13 telephone numbers of employee assistance programs and local
14 drug rehabilitation programs.
15 8. A statement that an employee or job applicant who
16 receives a positive confirmed test result may contest or
17 explain the result to the medical review officer within 5
18 working days after receiving written notification of the test
19 result; that if an employee's or job applicant's explanation
20 or challenge is unsatisfactory to the medical review officer,
21 the medical review officer shall report a positive test result
22 back to the employer; and that a person may contest the drug
23 test result pursuant to law or to rules adopted by the Agency
24 for Health Care Administration.
25 9. A statement informing the employee or job applicant
26 of his or her responsibility to notify the laboratory of any
27 administrative or civil action brought pursuant to this
28 section.
29 10. A list of all drugs for which the employer will
30 test, described by brand name or common name, as applicable,
31 as well as by chemical name.
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1 11. A statement regarding any applicable collective
2 bargaining agreement or contract and the right to appeal to
3 the Public Employees Relations Commission or applicable court.
4 12. A statement notifying employees and job applicants
5 of their right to consult with a medical review officer for
6 technical information regarding prescription or
7 nonprescription medication.
8 Section 5. Section 440.125, Florida Statutes, is
9 amended to read:
10 440.125 Medical records and reports; identifying
11 information in employee medical bills; confidentiality.--
12 (1) Any medical records and medical reports of an
13 injured employee and any information identifying an injured
14 employee in medical bills which are provided to the
15 department, agency, or Department of Education Division of
16 Workers' Compensation of the Department of Labor and
17 Employment Security pursuant to s. 440.13 are confidential and
18 exempt from the provisions of s. 119.07(1) and s. 24(a), Art.
19 I of the State Constitution, except as otherwise provided by
20 this chapter.
21 (2) The Legislature finds that it is a public
22 necessity that an injured employee's medical records and
23 medical reports and information identifying the employee in
24 medical bills held by the department, agency, or Department of
25 Education Division of Workers' Compensation pursuant to s.
26 440.13 be confidential and exempt from the public records law.
27 Public access to such information is an invasion of the
28 injured employee's right to privacy in that personal,
29 sensitive information would be revealed, and public knowledge
30 of such information could lead to discrimination against the
31 employee by coworkers and others. Additionally, there is
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1 little utility in providing public access to such information
2 in that the effectiveness and efficiency of the workers'
3 compensation program can be otherwise adequately monitored and
4 evaluated.
5 (3) The department may share any confidential and
6 exempt information received pursuant to s. 440.13 with the
7 Agency for Health Care Administration in furtherance of the
8 agency's official duties under ss. 440.13 and 440.134. The
9 agency shall maintain the confidential and exempt status of
10 the information.
11 Section 6. Subsections (1), (3), (4), (5), (6), (7),
12 (8), (9), (11), (12), and (13) of section 440.13, Florida
13 Statutes, are amended to read:
14 440.13 Medical services and supplies; penalty for
15 violations; limitations.--
16 (1) DEFINITIONS.--As used in this section, the term:
17 (a) "Alternate medical care" means a change in
18 treatment or health care provider.
19 (b) "Attendant care" means care rendered by trained
20 professional attendants which is beyond the scope of household
21 duties. Family members may provide nonprofessional attendant
22 care, but may not be compensated under this chapter for care
23 that falls within the scope of household duties and other
24 services normally and gratuitously provided by family members.
25 "Family member" means a spouse, father, mother, brother,
26 sister, child, grandchild, father-in-law, mother-in-law, aunt,
27 or uncle.
28 (c) "Carrier" means, for purposes of this section,
29 insurance carrier, self-insurance fund or individually
30 self-insured employer, or assessable mutual insurer.
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1 (d) "Catastrophic injury" means an injury as defined
2 in s. 440.02.
3 (e) "Certified health care provider" means a health
4 care provider who has been certified by the agency division or
5 who has entered an agreement with a licensed managed care
6 organization to provide treatment to injured workers under
7 this section. Certification of such health care provider must
8 include documentation that the health care provider has read
9 and is familiar with the portions of the statute, impairment
10 guides, and rules which govern the provision of remedial
11 treatment, care, and attendance.
12 (f) "Compensable" means a determination by a carrier
13 or judge of compensation claims that a condition suffered by
14 an employee results from an injury arising out of and in the
15 course of employment.
16 (g) "Emergency services and care" means emergency
17 services and care as defined in s. 395.002.
18 (h) "Health care facility" means any hospital licensed
19 under chapter 395 and any health care institution licensed
20 under chapter 400.
21 (i) "Health care provider" means a physician or any
22 recognized practitioner who provides skilled services pursuant
23 to a prescription or under the supervision or direction of a
24 physician and who has been certified by the agency division as
25 a health care provider. The term "health care provider"
26 includes a health care facility.
27 (j) "Independent medical examiner" means a physician
28 selected by either an employee or a carrier to render one or
29 more independent medical examinations in connection with a
30 dispute arising under this chapter.
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1 (k) "Independent medical examination" means an
2 objective evaluation of the injured employee's medical
3 condition, including, but not limited to, impairment or work
4 status, performed by a physician or an expert medical advisor
5 at the request of a party, a judge of compensation claims, or
6 the agency division to assist in the resolution of a dispute
7 arising under this chapter.
8 (l) "Instance of overutilization" means a specific
9 inappropriate service or level of service provided to an
10 injured employee.
11 (m) "Medically necessary" means any medical service or
12 medical supply which is used to identify or treat an illness
13 or injury, is appropriate to the patient's diagnosis and
14 status of recovery, and is consistent with the location of
15 service, the level of care provided, and applicable practice
16 parameters. The service should be widely accepted among
17 practicing health care providers, based on scientific
18 criteria, and determined to be reasonably safe. The service
19 must not be of an experimental, investigative, or research
20 nature, except in those instances in which prior approval of
21 the Agency for Health Care Administration has been obtained.
22 The Agency for Health Care Administration shall adopt rules
23 providing for such approval on a case-by-case basis when the
24 service or supply is shown to have significant benefits to the
25 recovery and well-being of the patient.
26 (n) "Medicine" means a drug prescribed by an
27 authorized health care provider and includes only generic
28 drugs or single-source patented drugs for which there is no
29 generic equivalent, unless the authorized health care provider
30 writes or states that the brand-name drug as defined in s.
31 465.025 is medically necessary, or is a drug appearing on the
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1 schedule of drugs created pursuant to s. 465.025(6), or is
2 available at a cost lower than its generic equivalent.
3 (o) "Palliative care" means noncurative medical
4 services that mitigate the conditions, effects, or pain of an
5 injury.
6 (p) "Pattern or practice of overutilization" means
7 repetition of instances of overutilization within a specific
8 medical case or multiple cases by a single health care
9 provider.
10 (q) "Peer review" means an evaluation by two or more
11 physicians licensed under the same authority and with the same
12 or similar specialty as the physician under review, of the
13 appropriateness, quality, and cost of health care and health
14 services provided to a patient, based on medically accepted
15 standards.
16 (r) "Physician" or "doctor" means a physician licensed
17 under chapter 458, an osteopathic physician licensed under
18 chapter 459, a chiropractic physician licensed under chapter
19 460, a podiatric physician licensed under chapter 461, an
20 optometrist licensed under chapter 463, or a dentist licensed
21 under chapter 466, each of whom must be certified by the
22 agency division as a health care provider.
23 (s) "Reimbursement dispute" means any disagreement
24 between a health care provider or health care facility and
25 carrier concerning payment for medical treatment.
26 (t) "Utilization control" means a systematic process
27 of implementing measures that assure overall management and
28 cost containment of services delivered.
29 (u) "Utilization review" means the evaluation of the
30 appropriateness of both the level and the quality of health
31 care and health services provided to a patient, including, but
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1 not limited to, evaluation of the appropriateness of
2 treatment, hospitalization, or office visits based on
3 medically accepted standards. Such evaluation must be
4 accomplished by means of a system that identifies the
5 utilization of medical services based on medically accepted
6 standards as established by medical consultants with
7 qualifications similar to those providing the care under
8 review, and that refers patterns and practices of
9 overutilization to the agency division.
10 (3) PROVIDER ELIGIBILITY; AUTHORIZATION.--
11 (a) As a condition to eligibility for payment under
12 this chapter, a health care provider who renders services must
13 be a certified health care provider and must receive
14 authorization from the carrier before providing treatment.
15 This paragraph does not apply to emergency care. The agency
16 division shall adopt rules to implement the certification of
17 health care providers.
18 (b) A health care provider who renders emergency care
19 must notify the carrier by the close of the third business day
20 after it has rendered such care. If the emergency care results
21 in admission of the employee to a health care facility, the
22 health care provider must notify the carrier by telephone
23 within 24 hours after initial treatment. Emergency care is not
24 compensable under this chapter unless the injury requiring
25 emergency care arose as a result of a work-related accident.
26 Pursuant to chapter 395, all licensed physicians and health
27 care providers in this state shall be required to make their
28 services available for emergency treatment of any employee
29 eligible for workers' compensation benefits. To refuse to make
30 such treatment available is cause for revocation of a license.
31
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1 (c) A health care provider may not refer the employee
2 to another health care provider, diagnostic facility, therapy
3 center, or other facility without prior authorization from the
4 carrier, except when emergency care is rendered. Any referral
5 must be to a health care provider that has been certified by
6 the agency division, unless the referral is for emergency
7 treatment.
8 (d) A carrier must respond, by telephone or in
9 writing, to a request for authorization by the close of the
10 third business day after receipt of the request. A carrier who
11 fails to respond to a written request for authorization for
12 referral for medical treatment by the close of the third
13 business day after receipt of the request consents to the
14 medical necessity for such treatment. All such requests must
15 be made to the carrier. Notice to the carrier does not include
16 notice to the employer.
17 (e) Carriers shall adopt procedures for receiving,
18 reviewing, documenting, and responding to requests for
19 authorization. Such procedures shall be for a health care
20 provider certified under this section.
21 (f) By accepting payment under this chapter for
22 treatment rendered to an injured employee, a health care
23 provider consents to the jurisdiction of the agency division
24 as set forth in subsection (11) and to the submission of all
25 records and other information concerning such treatment to the
26 agency division in connection with a reimbursement dispute,
27 audit, or review as provided by this section. The health care
28 provider must further agree to comply with any decision of the
29 agency division rendered under this section.
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1 (g) The employee is not liable for payment for medical
2 treatment or services provided pursuant to this section except
3 as otherwise provided in this section.
4 (h) The provisions of s. 456.053 are applicable to
5 referrals among health care providers, as defined in
6 subsection (1), treating injured workers.
7 (i) Notwithstanding paragraph (d), a claim for
8 specialist consultations, surgical operations,
9 physiotherapeutic or occupational therapy procedures, X-ray
10 examinations, or special diagnostic laboratory tests that cost
11 more than $1,000 and other specialty services that the agency
12 division identifies by rule is not valid and reimbursable
13 unless the services have been expressly authorized by the
14 carrier, or unless the carrier has failed to respond within 10
15 days to a written request for authorization, or unless
16 emergency care is required. The insurer shall not refuse to
17 authorize such consultation or procedure unless the health
18 care provider or facility is not authorized or certified or
19 unless an expert medical advisor has determined that the
20 consultation or procedure is not medically necessary or
21 otherwise compensable under this chapter. Authorization of a
22 treatment plan does not constitute express authorization for
23 purposes of this section, except to the extent the carrier
24 provides otherwise in its authorization procedures. This
25 paragraph does not limit the carrier's obligation to identify
26 and disallow overutilization or billing errors.
27 (j) Notwithstanding anything in this chapter to the
28 contrary, a sick or injured employee shall be entitled, at all
29 times, to free, full, and absolute choice in the selection of
30 the pharmacy or pharmacist dispensing and filling
31 prescriptions for medicines required under this chapter. It is
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1 expressly forbidden for the agency division, an employer, or a
2 carrier, or any agent or representative of the agency
3 division, an employer, or a carrier to select the pharmacy or
4 pharmacist which the sick or injured employee must use;
5 condition coverage or payment on the basis of the pharmacy or
6 pharmacist utilized; or to otherwise interfere in the
7 selection by the sick or injured employee of a pharmacy or
8 pharmacist.
9 (4) NOTICE OF TREATMENT TO CARRIER; FILING WITH
10 DEPARTMENT DIVISION.--
11 (a) Any health care provider providing necessary
12 remedial treatment, care, or attendance to any injured worker
13 shall submit treatment reports to the carrier in a format
14 prescribed by the division in consultation with the agency. A
15 claim for medical or surgical treatment is not valid or
16 enforceable against such employer or employee, unless, by the
17 close of the third business day following the first treatment,
18 the physician providing the treatment furnishes to the
19 employer or carrier a preliminary notice of the injury and
20 treatment on forms prescribed by the division in consultation
21 with the agency and, within 15 days thereafter, furnishes to
22 the employer or carrier a complete report, and subsequent
23 thereto furnishes progress reports, if requested by the
24 employer or insurance carrier, at intervals of not less than 3
25 weeks apart or at less frequent intervals if requested on
26 forms prescribed by the department division.
27 (b) Upon the request of the division of Workers'
28 Compensation, each medical report or bill obtained or received
29 by the employer, the carrier, or the injured employee, or the
30 attorney for the employer, carrier, or injured employee, with
31 respect to the remedial treatment, care, and attendance of the
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1 injured employee, including any report of an examination,
2 diagnosis, or disability evaluation, must be filed with the
3 department Division of Workers' Compensation pursuant to rules
4 adopted by the department in consultation with the agency
5 division. The health care provider shall also furnish to the
6 injured employee or to his or her attorney, on demand, a copy
7 of his or her office chart, records, and reports, and may
8 charge the injured employee an amount authorized by the
9 department division for the copies. Each such health care
10 provider shall provide to the agency or department division
11 information about the remedial treatment, care, and attendance
12 which the agency or department division reasonably requests.
13 (c) It is the policy for the administration of the
14 workers' compensation system that there be reasonable access
15 to medical information by all parties to facilitate the
16 self-executing features of the law. Notwithstanding the
17 limitations in s. 456.057 and subject to the limitations in s.
18 381.004, upon the request of the employer, the carrier, an
19 authorized qualified rehabilitation provider, or the attorney
20 for the employer or carrier, the medical records of an injured
21 employee must be furnished to those persons and the medical
22 condition of the injured employee must be discussed with those
23 persons, if the records and the discussions are restricted to
24 conditions relating to the workplace injury. Any such
25 discussions may be held before or after the filing of a claim
26 without the knowledge, consent, or presence of any other party
27 or his or her agent or representative. A health care provider
28 who willfully refuses to provide medical records or to discuss
29 the medical condition of the injured employee, after a
30 reasonable request is made for such information pursuant to
31
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1 this subsection, shall be subject by the agency division to
2 one or more of the penalties set forth in paragraph (8)(b).
3 (5) INDEPENDENT MEDICAL EXAMINATIONS.--
4 (a) In any dispute concerning overutilization, medical
5 benefits, compensability, or disability under this chapter,
6 the carrier or the employee may select an independent medical
7 examiner. The examiner may be a health care provider treating
8 or providing other care to the employee. An independent
9 medical examiner may not render an opinion outside his or her
10 area of expertise, as demonstrated by licensure and applicable
11 practice parameters.
12 (b) Each party is bound by his or her selection of an
13 independent medical examiner and is entitled to an alternate
14 examiner only if:
15 1. The examiner is not qualified to render an opinion
16 upon an aspect of the employee's illness or injury which is
17 material to the claim or petition for benefits;
18 2. The examiner ceases to practice in the specialty
19 relevant to the employee's condition;
20 3. The examiner is unavailable due to injury, death,
21 or relocation outside a reasonably accessible geographic area;
22 or
23 4. The parties agree to an alternate examiner.
24
25 Any party may request, or a judge of compensation claims may
26 require, designation of an agency a division medical advisor
27 as an independent medical examiner. The opinion of the
28 advisors acting as examiners shall not be afforded the
29 presumption set forth in paragraph (9)(c).
30 (c) The carrier may, at its election, contact the
31 claimant directly to schedule a reasonable time for an
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1 independent medical examination. The carrier must confirm the
2 scheduling agreement in writing within 5 days and notify
3 claimant's counsel, if any, at least 7 days before the date
4 upon which the independent medical examination is scheduled to
5 occur. An attorney representing a claimant is not authorized
6 to schedule independent medical evaluations under this
7 subsection.
8 (d) If the employee fails to appear for the
9 independent medical examination without good cause and fails
10 to advise the physician at least 24 hours before the scheduled
11 date for the examination that he or she cannot appear, the
12 employee is barred from recovering compensation for any period
13 during which he or she has refused to submit to such
14 examination. Further, the employee shall reimburse the carrier
15 50 percent of the physician's cancellation or no-show fee
16 unless the carrier that schedules the examination fails to
17 timely provide to the employee a written confirmation of the
18 date of the examination pursuant to paragraph (c) which
19 includes an explanation of why he or she failed to appear. The
20 employee may appeal to a judge of compensation claims for
21 reimbursement when the carrier withholds payment in excess of
22 the authority granted by this section.
23 (e) No medical opinion other than the opinion of a
24 medical advisor appointed by the judge of compensation claims
25 or agency division, an independent medical examiner, or an
26 authorized treating provider is admissible in proceedings
27 before the judges of compensation claims.
28 (f) Attorney's fees incurred by an injured employee in
29 connection with delay of or opposition to an independent
30 medical examination, including, but not limited to, motions
31 for protective orders, are not recoverable under this chapter.
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1 (6) UTILIZATION REVIEW.--Carriers shall review all
2 bills, invoices, and other claims for payment submitted by
3 health care providers in order to identify overutilization and
4 billing errors, and may hire peer review consultants or
5 conduct independent medical evaluations. Such consultants,
6 including peer review organizations, are immune from liability
7 in the execution of their functions under this subsection to
8 the extent provided in s. 766.101. If a carrier finds that
9 overutilization of medical services or a billing error has
10 occurred, it must disallow or adjust payment for such services
11 or error without order of a judge of compensation claims or
12 the agency division, if the carrier, in making its
13 determination, has complied with this section and rules
14 adopted by the agency division.
15 (7) UTILIZATION AND REIMBURSEMENT DISPUTES.--
16 (a) Any health care provider, carrier, or employer who
17 elects to contest the disallowance or adjustment of payment by
18 a carrier under subsection (6) must, within 30 days after
19 receipt of notice of disallowance or adjustment of payment,
20 petition the agency division to resolve the dispute. The
21 petitioner must serve a copy of the petition on the carrier
22 and on all affected parties by certified mail. The petition
23 must be accompanied by all documents and records that support
24 the allegations contained in the petition. Failure of a
25 petitioner to submit such documentation to the agency division
26 results in dismissal of the petition.
27 (b) The carrier must submit to the agency division
28 within 10 days after receipt of the petition all documentation
29 substantiating the carrier's disallowance or adjustment.
30 Failure of the carrier to submit the requested documentation
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1 to the agency division within 10 days constitutes a waiver of
2 all objections to the petition.
3 (c) Within 60 days after receipt of all documentation,
4 the agency division must provide to the petitioner, the
5 carrier, and the affected parties a written determination of
6 whether the carrier properly adjusted or disallowed payment.
7 The agency division must be guided by standards and policies
8 set forth in this chapter, including all applicable
9 reimbursement schedules, in rendering its determination.
10 (d) If the agency division finds an improper
11 disallowance or improper adjustment of payment by an insurer,
12 the insurer shall reimburse the health care provider,
13 facility, insurer, or employer within 30 days, subject to the
14 penalties provided in this subsection.
15 (e) The agency division shall adopt rules to carry out
16 this subsection. The rules may include provisions for
17 consolidating petitions filed by a petitioner and expanding
18 the timetable for rendering a determination upon a
19 consolidated petition.
20 (f) Any carrier that engages in a pattern or practice
21 of arbitrarily or unreasonably disallowing or reducing
22 payments to health care providers may be subject to one or
23 more of the following penalties imposed by the agency
24 division:
25 1. Repayment of the appropriate amount to the health
26 care provider.
27 2. An administrative fine assessed by the agency
28 division in an amount not to exceed $5,000 per instance of
29 improperly disallowing or reducing payments.
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1 3. Award of the health care provider's costs,
2 including a reasonable attorney's fee, for prosecuting the
3 petition.
4 (8) PATTERN OR PRACTICE OF OVERUTILIZATION.--
5 (a) Carriers must report to the agency division all
6 instances of overutilization including, but not limited to,
7 all instances in which the carrier disallows or adjusts
8 payment. The agency division shall determine whether a pattern
9 or practice of overutilization exists.
10 (b) If the agency division determines that a health
11 care provider has engaged in a pattern or practice of
12 overutilization or a violation of this chapter or rules
13 adopted by the agency division, it may impose one or more of
14 the following penalties:
15 1. An order of the agency division barring the
16 provider from payment under this chapter;
17 2. Deauthorization of care under review;
18 3. Denial of payment for care rendered in the future;
19 4. Decertification of a health care provider certified
20 as an expert medical advisor under subsection (9) or of a
21 rehabilitation provider certified under s. 440.49;
22 5. An administrative fine assessed by the agency
23 division in an amount not to exceed $5,000 per instance of
24 overutilization or violation; and
25 6. Notification of and review by the appropriate
26 licensing authority pursuant to s. 440.106(3).
27 (9) EXPERT MEDICAL ADVISORS.--
28 (a) The agency division shall certify expert medical
29 advisors in each specialty to assist the agency division and
30 the judges of compensation claims within the advisor's area of
31 expertise as provided in this section. The agency division
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1 shall, in a manner prescribed by rule, in certifying,
2 recertifying, or decertifying an expert medical advisor,
3 consider the qualifications, training, impartiality, and
4 commitment of the health care provider to the provision of
5 quality medical care at a reasonable cost. As a prerequisite
6 for certification or recertification, the agency division
7 shall require, at a minimum, that an expert medical advisor
8 have specialized workers' compensation training or experience
9 under the workers' compensation system of this state and board
10 certification or board eligibility.
11 (b) The agency division shall contract with or employ
12 expert medical advisors to provide peer review or medical
13 consultation to the agency division or to a judge of
14 compensation claims in connection with resolving disputes
15 relating to reimbursement, differing opinions of health care
16 providers, and health care and physician services rendered
17 under this chapter. Expert medical advisors contracting with
18 the agency division shall, as a term of such contract, agree
19 to provide consultation or services in accordance with the
20 timetables set forth in this chapter and to abide by rules
21 adopted by the agency division, including, but not limited to,
22 rules pertaining to procedures for review of the services
23 rendered by health care providers and preparation of reports
24 and recommendations for submission to the agency division.
25 (c) If there is disagreement in the opinions of the
26 health care providers, if two health care providers disagree
27 on medical evidence supporting the employee's complaints or
28 the need for additional medical treatment, or if two health
29 care providers disagree that the employee is able to return to
30 work, the agency division may, and the judge of compensation
31 claims shall, upon his or her own motion or within 15 days
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1 after receipt of a written request by either the injured
2 employee, the employer, or the carrier, order the injured
3 employee to be evaluated by an expert medical advisor. The
4 opinion of the expert medical advisor is presumed to be
5 correct unless there is clear and convincing evidence to the
6 contrary as determined by the judge of compensation claims.
7 The expert medical advisor appointed to conduct the evaluation
8 shall have free and complete access to the medical records of
9 the employee. An employee who fails to report to and cooperate
10 with such evaluation forfeits entitlement to compensation
11 during the period of failure to report or cooperate.
12 (d) The expert medical advisor must complete his or
13 her evaluation and issue his or her report to the agency
14 division or to the judge of compensation claims within 45 days
15 after receipt of all medical records. The expert medical
16 advisor must furnish a copy of the report to the carrier and
17 to the employee.
18 (e) An expert medical advisor is not liable under any
19 theory of recovery for evaluations performed under this
20 section without a showing of fraud or malice. The protections
21 of s. 766.101 apply to any officer, employee, or agent of the
22 agency division and to any officer, employee, or agent of any
23 entity with which the agency division has contracted under
24 this subsection.
25 (f) If the agency division or a judge of compensation
26 claims determines that the services of a certified expert
27 medical advisor are required to resolve a dispute under this
28 section, the carrier must compensate the advisor for his or
29 her time in accordance with a schedule adopted by the agency
30 division. The agency division may assess a penalty not to
31
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1 exceed $500 against any carrier that fails to timely
2 compensate an advisor in accordance with this section.
3 (11) AUDITS BY AGENCY FOR HEALTH CARE ADMINISTRATION
4 DIVISION; JURISDICTION.--
5 (a) The Agency for Health Care Administration Division
6 of Workers' Compensation of the Department of Labor and
7 Employment Security may investigate health care providers to
8 determine whether providers are complying with this chapter
9 and with rules adopted by the agency division, whether the
10 providers are engaging in overutilization, and whether
11 providers are engaging in improper billing practices. If the
12 agency division finds that a health care provider has
13 improperly billed, overutilized, or failed to comply with
14 agency division rules or the requirements of this chapter it
15 must notify the provider of its findings and may determine
16 that the health care provider may not receive payment from the
17 carrier or may impose penalties as set forth in subsection (8)
18 or other sections of this chapter. If the health care provider
19 has received payment from a carrier for services that were
20 improperly billed or for overutilization, it must return those
21 payments to the carrier. The agency division may assess a
22 penalty not to exceed $500 for each overpayment that is not
23 refunded within 30 days after notification of overpayment by
24 the agency division or carrier.
25 (b) The department division shall monitor and audit
26 carriers, as provided in s. 624.3161, to determine if medical
27 bills are paid in accordance with this section and department
28 division rules. Any employer, if self-insured, or carrier
29 found by the division not to be within 90 percent compliance
30 as to the payment of medical bills after July 1, 1994, must be
31 assessed a fine not to exceed 1 percent of the prior year's
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1 assessment levied against such entity under s. 440.51 for
2 every quarter in which the entity fails to attain 90-percent
3 compliance. The department division shall fine or otherwise
4 discipline an employer or carrier, pursuant to this chapter,
5 the insurance code, or rules adopted by the department
6 division, for each late payment of compensation that is below
7 the minimum 90-percent performance standard. Any carrier that
8 is found to be not in compliance in subsequent consecutive
9 quarters must implement a medical-bill review program approved
10 by the division, and the carrier is subject to disciplinary
11 action by the Department of Insurance.
12 (c) The agency division has exclusive jurisdiction to
13 decide any matters concerning reimbursement, to resolve any
14 overutilization dispute under subsection (7), and to decide
15 any question concerning overutilization under subsection (8),
16 which question or dispute arises after January 1, 1994.
17 (d) The following agency division actions do not
18 constitute agency action subject to review under ss. 120.569
19 and 120.57 and do not constitute actions subject to s. 120.56:
20 referral by the entity responsible for utilization review; a
21 decision by the agency division to refer a matter to a peer
22 review committee; establishment by a health care provider or
23 entity of procedures by which a peer review committee reviews
24 the rendering of health care services; and the review
25 proceedings, report, and recommendation of the peer review
26 committee.
27 (12) CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM
28 REIMBURSEMENT ALLOWANCES.--
29 (a) A three-member panel is created, consisting of the
30 Insurance Commissioner, or the Insurance Commissioner's
31 designee, and two members to be appointed by the Governor,
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1 subject to confirmation by the Senate, one member who, on
2 account of present or previous vocation, employment, or
3 affiliation, shall be classified as a representative of
4 employers, the other member who, on account of previous
5 vocation, employment, or affiliation, shall be classified as a
6 representative of employees. The panel shall determine
7 statewide schedules of maximum reimbursement allowances for
8 medically necessary treatment, care, and attendance provided
9 by physicians, hospitals, ambulatory surgical centers,
10 work-hardening programs, pain programs, and durable medical
11 equipment. The maximum reimbursement allowances for inpatient
12 hospital care shall be based on a schedule of per diem rates,
13 to be approved by the three-member panel no later than March
14 1, 1994, to be used in conjunction with a precertification
15 manual as determined by the agency division. All compensable
16 charges for hospital outpatient care shall be reimbursed at 75
17 percent of usual and customary charges. Until the three-member
18 panel approves a schedule of per diem rates for inpatient
19 hospital care and it becomes effective, all compensable
20 charges for hospital inpatient care must be reimbursed at 75
21 percent of their usual and customary charges. Annually, the
22 three-member panel shall adopt schedules of maximum
23 reimbursement allowances for physicians, hospital inpatient
24 care, hospital outpatient care, ambulatory surgical centers,
25 work-hardening programs, and pain programs. However, the
26 maximum percentage of increase in the individual reimbursement
27 allowance may not exceed the percentage of increase in the
28 Consumer Price Index for the previous year. An individual
29 physician, hospital, ambulatory surgical center, pain program,
30 or work-hardening program shall be reimbursed either the usual
31 and customary charge for treatment, care, and attendance, the
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1 agreed-upon contract price, or the maximum reimbursement
2 allowance in the appropriate schedule, whichever is less.
3 (b) As to reimbursement for a prescription medication,
4 the reimbursement amount for a prescription shall be the
5 average wholesale price times 1.2 plus $4.18 for the
6 dispensing fee, except where the carrier has contracted for a
7 lower amount. Fees for pharmaceuticals and pharmaceutical
8 services shall be reimbursable at the applicable fee schedule
9 amount. Where the employer or carrier has contracted for such
10 services and the employee elects to obtain them through a
11 provider not a party to the contract, the carrier shall
12 reimburse at the schedule, negotiated, or contract price,
13 whichever is lower.
14 (c) Reimbursement for all fees and other charges for
15 such treatment, care, and attendance, including treatment,
16 care, and attendance provided by any hospital or other health
17 care provider, ambulatory surgical center, work-hardening
18 program, or pain program, must not exceed the amounts provided
19 by the uniform schedule of maximum reimbursement allowances as
20 determined by the panel or as otherwise provided in this
21 section. This subsection also applies to independent medical
22 examinations performed by health care providers under this
23 chapter. Until the three-member panel approves a uniform
24 schedule of maximum reimbursement allowances and it becomes
25 effective, all compensable charges for treatment, care, and
26 attendance provided by physicians, ambulatory surgical
27 centers, work-hardening programs, or pain programs shall be
28 reimbursed at the lowest maximum reimbursement allowance
29 across all 1992 schedules of maximum reimbursement allowances
30 for the services provided regardless of the place of service.
31 In determining the uniform schedule, the panel shall first
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1 approve the data which it finds representative of prevailing
2 charges in the state for similar treatment, care, and
3 attendance of injured persons. Each health care provider,
4 health care facility, ambulatory surgical center,
5 work-hardening program, or pain program receiving workers'
6 compensation payments shall maintain records verifying their
7 usual charges. In establishing the uniform schedule of maximum
8 reimbursement allowances, the panel must consider:
9 1. The levels of reimbursement for similar treatment,
10 care, and attendance made by other health care programs or
11 third-party providers;
12 2. The impact upon cost to employers for providing a
13 level of reimbursement for treatment, care, and attendance
14 which will ensure the availability of treatment, care, and
15 attendance required by injured workers;
16 3. The financial impact of the reimbursement
17 allowances upon health care providers and health care
18 facilities, including trauma centers as defined in s.
19 395.4001, and its effect upon their ability to make available
20 to injured workers such medically necessary remedial
21 treatment, care, and attendance. The uniform schedule of
22 maximum reimbursement allowances must be reasonable, must
23 promote health care cost containment and efficiency with
24 respect to the workers' compensation health care delivery
25 system, and must be sufficient to ensure availability of such
26 medically necessary remedial treatment, care, and attendance
27 to injured workers; and
28 4. The most recent average maximum allowable rate of
29 increase for hospitals determined by the Health Care Board
30 under chapter 408.
31
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1 (13) REMOVAL OF PHYSICIANS FROM LISTS OF THOSE
2 AUTHORIZED TO RENDER MEDICAL CARE.--The agency division shall
3 remove from the list of physicians or facilities authorized to
4 provide remedial treatment, care, and attendance under this
5 chapter the name of any physician or facility found after
6 reasonable investigation to have:
7 (a) Engaged in professional or other misconduct or
8 incompetency in connection with medical services rendered
9 under this chapter;
10 (b) Exceeded the limits of his or her or its
11 professional competence in rendering medical care under this
12 chapter, or to have made materially false statements regarding
13 his or her or its qualifications in his or her application;
14 (c) Failed to transmit copies of medical reports to
15 the employer or carrier, or failed to submit full and truthful
16 medical reports of all his or her or its findings to the
17 employer or carrier as required under this chapter;
18 (d) Solicited, or employed another to solicit for
19 himself or herself or itself or for another, professional
20 treatment, examination, or care of an injured employee in
21 connection with any claim under this chapter;
22 (e) Refused to appear before, or to answer upon
23 request of, the agency division or any duly authorized officer
24 of the state, any legal question, or to produce any relevant
25 book or paper concerning his or her conduct under any
26 authorization granted to him or her under this chapter;
27 (f) Self-referred in violation of this chapter or
28 other laws of this state; or
29 (g) Engaged in a pattern of practice of
30 overutilization or a violation of this chapter or rules
31 adopted by the agency division.
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1 Section 7. Paragraph (c) of subsection (2) and
2 paragraph (a) of subsection (3) of section 440.15, Florida
3 Statutes, are amended to read:
4 440.15 Compensation for disability.--Compensation for
5 disability shall be paid to the employee, subject to the
6 limits provided in s. 440.12(2), as follows:
7 (2) TEMPORARY TOTAL DISABILITY.--
8 (c) Temporary total disability benefits paid pursuant
9 to this subsection shall include such period as may be
10 reasonably necessary for training in the use of artificial
11 members and appliances, and shall include such period as the
12 employee may be receiving training and education under a
13 program pursuant to s. 440.491. Notwithstanding s. 440.02 s.
14 440.02(9), the date of maximum medical improvement for
15 purposes of paragraph (3)(b) shall be no earlier than the last
16 day for which such temporary disability benefits are paid.
17 (3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--
18 (a) Impairment benefits.--
19 1. Once the employee has reached the date of maximum
20 medical improvement, impairment benefits are due and payable
21 within 20 days after the carrier has knowledge of the
22 impairment.
23 2. The three-member panel, in cooperation with the
24 division, shall establish and use a uniform permanent
25 impairment rating schedule. This schedule must be based on
26 medically or scientifically demonstrable findings as well as
27 the systems and criteria set forth in the American Medical
28 Association's Guides to the Evaluation of Permanent
29 Impairment; the Snellen Charts, published by American Medical
30 Association Committee for Eye Injuries; and the Minnesota
31 Department of Labor and Industry Disability Schedules. The
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1 schedule should be based upon objective findings. The schedule
2 shall be more comprehensive than the AMA Guides to the
3 Evaluation of Permanent Impairment and shall expand the areas
4 already addressed and address additional areas not currently
5 contained in the guides. On August 1, 1979, and pending the
6 adoption, by rule, of a permanent schedule, Guides to the
7 Evaluation of Permanent Impairment, copyright 1977, 1971,
8 1988, by the American Medical Association, shall be the
9 temporary schedule and shall be used for the purposes hereof.
10 For injuries after July 1, 1990, pending the adoption by
11 division rule of a uniform disability rating schedule, the
12 Minnesota Department of Labor and Industry Disability Schedule
13 shall be used unless that schedule does not address an injury.
14 In such case, the Guides to the Evaluation of Permanent
15 Impairment by the American Medical Association shall be used.
16 Determination of permanent impairment under this schedule must
17 be made by a physician licensed under chapter 458, a doctor of
18 osteopathic medicine licensed under chapters 458 and 459, a
19 chiropractic physician licensed under chapter 460, a podiatric
20 physician licensed under chapter 461, an optometrist licensed
21 under chapter 463, or a dentist licensed under chapter 466, as
22 appropriate considering the nature of the injury. No other
23 persons are authorized to render opinions regarding the
24 existence of or the extent of permanent impairment.
25 3. All impairment income benefits shall be based on an
26 impairment rating using the impairment schedule referred to in
27 subparagraph 2. Impairment income benefits are paid weekly at
28 the rate of 50 percent of the employee's average weekly
29 temporary total disability benefit not to exceed the maximum
30 weekly benefit under s. 440.12. An employee's entitlement to
31 impairment income benefits begins the day after the employee
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1 reaches maximum medical improvement or the expiration of
2 temporary benefits, whichever occurs earlier, and continues
3 until the earlier of:
4 a. The expiration of a period computed at the rate of
5 3 weeks for each percentage point of impairment; or
6 b. The death of the employee.
7 4. After the employee has been certified by a doctor
8 as having reached maximum medical improvement or 6 weeks
9 before the expiration of temporary benefits, whichever occurs
10 earlier, the certifying doctor shall evaluate the condition of
11 the employee and assign an impairment rating, using the
12 impairment schedule referred to in subparagraph 2.
13 Compensation is not payable for the mental, psychological, or
14 emotional injury arising out of depression from being out of
15 work. If the certification and evaluation are performed by a
16 doctor other than the employee's treating doctor, the
17 certification and evaluation must be submitted to the treating
18 doctor, and the treating doctor must indicate agreement or
19 disagreement with the certification and evaluation. The
20 certifying doctor shall issue a written report to the
21 division, the employee, and the carrier certifying that
22 maximum medical improvement has been reached, stating the
23 impairment rating, and providing any other information
24 required by the division. If the employee has not been
25 certified as having reached maximum medical improvement before
26 the expiration of 102 weeks after the date temporary total
27 disability benefits begin to accrue, the carrier shall notify
28 the treating doctor of the requirements of this section.
29 5. The carrier shall pay the employee impairment
30 income benefits for a period based on the impairment rating.
31
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1 6. The agency division may by rule specify forms and
2 procedures governing the method of payment of wage loss and
3 impairment benefits for dates of accidents before January 1,
4 1994, and for dates of accidents on or after January 1, 1994.
5 (a) A carrier that is entitled to obtain a
6 determination of an employee's date of maximum medical
7 improvement or permanent impairment has done so;
8 (b) The independent medical examiner's opinion on the
9 date of the employee's maximum medical improvement and degree
10 or permanent impairment differs from the opinion of the
11 employee's treating physician on either of those issues, or
12 from the opinion of the expert medical advisor appointed by
13 the agency division on the degree of permanent impairment; or
14 (c) The carrier denies any portion of an employee's
15 claim petition for benefits due to disputed maximum medical
16 improvement or permanent impairment issues.
17 (4) Only opinions of the employee's treating
18 physician, an agency a division medical advisor, or an
19 independent medical examiner are admissible in proceedings
20 before a judge of compensation claims to resolve maximum
21 medical improvement or impairment disputes.
22 Section 8. Subsections (3), (6), (8), (9), (10), (11),
23 (12), (15), (16), and (17) of section 440.20, Florida
24 Statutes, are amended to read:
25 440.20 Time for payment of compensation; penalties for
26 late payment.--
27 (3) Upon making payment, or upon suspension or
28 cessation of payment for any reason, the carrier shall
29 immediately notify the department division that it has
30 commenced, suspended, or ceased payment of compensation. The
31 department division may require such notification in any
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1 format and manner it deems necessary to obtain accurate and
2 timely reporting.
3 (6) If any installment of compensation for death or
4 dependency benefits, disability, permanent impairment, or wage
5 loss payable without an award is not paid within 7 days after
6 it becomes due, as provided in subsection (2), subsection (3),
7 or subsection (4), there shall be added to such unpaid
8 installment a punitive penalty of an amount equal to 20
9 percent of the unpaid installment or $5, which shall be paid
10 at the same time as, but in addition to, such installment of
11 compensation, unless notice is filed under subsection (4) or
12 unless such nonpayment results from conditions over which the
13 employer or carrier had no control. When any installment of
14 compensation payable without an award has not been paid within
15 7 days after it became due and the claimant concludes the
16 prosecution of the claim before a judge of compensation claims
17 without having specifically claimed additional compensation in
18 the nature of a penalty under this section, the claimant will
19 be deemed to have acknowledged that, owing to conditions over
20 which the employer or carrier had no control, such installment
21 could not be paid within the period prescribed for payment and
22 to have waived the right to claim such penalty. However,
23 during the course of a hearing, the judge of compensation
24 claims shall on her or his own motion raise the question of
25 whether such penalty should be awarded or excused. The
26 department division may assess without a hearing the punitive
27 penalty against either the employer or the insurance carrier,
28 depending upon who was at fault in causing the delay. The
29 insurance policy cannot provide that this sum will be paid by
30 the carrier if the department division or the judge of
31 compensation claims determines that the punitive penalty
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1 should be made by the employer rather than the carrier. Any
2 additional installment of compensation paid by the carrier
3 pursuant to this section shall be paid directly to the
4 employee.
5 (8) In addition to any other penalties provided by
6 this chapter for late payment, if any installment of
7 compensation is not paid when it becomes due, the employer,
8 carrier, or servicing agent shall pay interest thereon at the
9 rate of 12 percent per year from the date the installment
10 becomes due until it is paid, whether such installment is
11 payable without an order or under the terms of an order. The
12 interest payment shall be the greater of the amount of
13 interest due or $5.
14 (a) Within 30 days after final payment of compensation
15 has been made, the employer, carrier, or servicing agent shall
16 send to the department division a notice, in accordance with a
17 format and manner form prescribed by the department division,
18 stating that such final payment has been made and stating the
19 total amount of compensation paid, the name of the employee
20 and of any other person to whom compensation has been paid,
21 the date of the injury or death, and the date to which
22 compensation has been paid.
23 (b) If the employer, carrier, or servicing agent fails
24 to so notify the department division within such time, the
25 department division shall assess against such employer,
26 carrier, or servicing agent a civil penalty in an amount not
27 over $100.
28 (c) In order to ensure carrier compliance under this
29 chapter and provisions of the insurance code, the department
30 division shall monitor the performance of carriers by
31 conducting market conduct examinations, as provided in s.
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1 624.3161, and conducting investigations, as provided in s.
2 624.317. The department division shall impose penalties on
3 establish by rule minimum performance standards for carriers
4 to ensure that a minimum of 90 percent of all compensation
5 benefits are timely paid. The division shall fine a carrier as
6 provided in s. 440.13(11)(b) up to $50 for each late payment
7 of compensation pursuant to s. 624.4211 that is below the
8 minimum 90 percent performance standard. This paragraph does
9 not affect the imposition of any penalties or interest due to
10 the claimant. If a carrier contracts with a servicing agent to
11 fulfill its administrative responsibilities under this
12 chapter, the payment practices of the servicing agent are
13 deemed the payment practices of the carrier for the purpose of
14 assessing penalties against the carrier.
15 (9) The department division may upon its own
16 initiative at any time in a case in which payments are being
17 made without an award investigate same and shall, in any case
18 in which the right to compensation is controverted, or in
19 which payments of compensation have been stopped or suspended,
20 upon receipt of notice from any person entitled to
21 compensation or from the employer that the right to
22 compensation is controverted or that payments of compensation
23 have been stopped or suspended, make such investigations,
24 cause such medical examination to be made, or hold such
25 hearings, and take such further action as it considers will
26 properly protect the rights of all parties.
27 (10) Whenever the department division deems it
28 advisable, it may require any employer to make a deposit with
29 the Treasurer to secure the prompt and convenient payments of
30 such compensation; and payments therefrom upon any awards
31
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1 shall be made upon order of the department division or judge
2 of compensation claims.
3 (11)(a) When a claimant is not represented by counsel,
4 upon joint petition of all interested parties, a lump-sum
5 payment in exchange for the employer's or carrier's release
6 from liability for future medical expenses, as well as future
7 payments of compensation expenses and any other benefits
8 provided under this chapter, shall be allowed at any time in
9 any case in which the employer or carrier has filed a written
10 notice of denial within 120 days after the employer receives
11 notice of the injury, and the judge of compensation claims at
12 a hearing to consider the settlement proposal finds a
13 justiciable controversy as to legal or medical compensability
14 of the claimed injury or the alleged accident. The employer
15 or carrier may not pay any attorney's fees on behalf of the
16 claimant for any settlement under this section unless
17 expressly authorized elsewhere in this chapter. Upon the joint
18 petition of all interested parties and after giving due
19 consideration to the interests of all interested parties, the
20 judge of compensation claims may enter a compensation order
21 approving and authorizing the discharge of the liability of
22 the employer for compensation and remedial treatment, care,
23 and attendance, as well as rehabilitation expenses, by the
24 payment of a lump sum. Such a compensation order so entered
25 upon joint petition of all interested parties is not subject
26 to modification or review under s. 440.28. If the settlement
27 proposal together with supporting evidence is not approved by
28 the judge of compensation claims, it shall be considered void.
29 Upon approval of a lump-sum settlement under this subsection,
30 the judge of compensation claims shall send a report to the
31 Chief Judge of the amount of the settlement and a statement of
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1 the nature of the controversy. The Chief Judge shall keep a
2 record of all such reports filed by each judge of compensation
3 claims and shall submit to the Legislature a summary of all
4 such reports filed under this subsection annually by September
5 15.
6 (b) When a claimant is not represented by counsel,
7 upon joint petition of all interested parties, a lump-sum
8 payment in exchange for the employer's or carrier's release
9 from liability for future medical expenses, as well as future
10 payments of compensation and rehabilitation expenses, and any
11 other benefits provided under this chapter, may be allowed at
12 any time in any case after the injured employee has attained
13 maximum medical improvement. An employer or carrier may not
14 pay any attorney's fees on behalf of the claimant for any
15 settlement, unless expressly authorized elsewhere in this
16 chapter. A compensation order so entered upon joint petition
17 of all interested parties shall not be subject to modification
18 or review under s. 440.28. However, a judge of compensation
19 claims is not required to approve any award for lump-sum
20 payment when it is determined by the judge of compensation
21 claims that the payment being made is in excess of the value
22 of benefits the claimant would be entitled to under this
23 chapter. The judge of compensation claims shall make or cause
24 to be made such investigations as she or he considers
25 necessary, in each case in which the parties have stipulated
26 that a proposed final settlement of liability of the employer
27 for compensation shall not be subject to modification or
28 review under s. 440.28, to determine whether such final
29 disposition will definitely aid the rehabilitation of the
30 injured worker or otherwise is clearly for the best interests
31 of the person entitled to compensation and, in her or his
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1 discretion, may have an investigation made by the Department
2 of Education Rehabilitation Section of the Division of
3 Workers' Compensation. The joint petition and the report of
4 any investigation so made will be deemed a part of the
5 proceeding. An employer shall have the right to appear at any
6 hearing pursuant to this subsection which relates to the
7 discharge of such employer's liability and to present
8 testimony at such hearing. The carrier shall provide
9 reasonable notice to the employer of the time and date of any
10 such hearing and inform the employer of her or his rights to
11 appear and testify. The probability of the death of the
12 injured employee or other person entitled to compensation
13 before the expiration of the period during which such person
14 is entitled to compensation shall, in the absence of special
15 circumstances making such course improper, be determined in
16 accordance with the most recent United States Life Tables
17 published by the National Office of Vital Statistics of the
18 United States Department of Health and Human Services. The
19 probability of the happening of any other contingency
20 affecting the amount or duration of the compensation, except
21 the possibility of the remarriage of a surviving spouse, shall
22 be disregarded. As a condition of approving a lump-sum payment
23 to a surviving spouse, the judge of compensation claims, in
24 the judge of compensation claims' discretion, may require
25 security which will ensure that, in the event of the
26 remarriage of such surviving spouse, any unaccrued future
27 payments so paid may be recovered or recouped by the employer
28 or carrier. Such applications shall be considered and
29 determined in accordance with s. 440.25.
30 (c) Notwithstanding s. 440.21(2), when a claimant is
31 represented by counsel, the claimant may waive all rights to
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1 any and all benefits under this chapter by entering into a
2 settlement agreement releasing the employer and the carrier
3 from liability for workers' compensation benefits in exchange
4 for a lump-sum payment to the claimant. The settlement
5 agreement requires approval by the judge of compensation
6 claims only as to the attorney's fees paid to the claimant's
7 attorney by the claimant. The parties need not submit any
8 information or documentation in support of the settlement,
9 except as needed to justify the amount of the attorney's fees.
10 Neither the employer nor the carrier is responsible for any
11 attorney's fees relating to the settlement and release of
12 claims under this section. Payment of the lump-sum settlement
13 amount must be made within 14 days after the date the judge of
14 compensation claims mails the order approving the attorney's
15 fees. Any order entered by a judge of compensation claims
16 approving the attorney's fees as set out in the settlement
17 under this subsection is not considered to be an award and is
18 not subject to modification or review. The judge of
19 compensation claims shall report these settlements to the
20 Deputy Chief Judge in accordance with the requirements set
21 forth in paragraphs (a) and (b). Settlements entered into
22 under this subsection are valid and apply to all dates of
23 accident.
24 (d)1. With respect to any lump-sum settlement under
25 this subsection, a judge of compensation claims must consider
26 at the time of the settlement, whether the settlement
27 allocation provides for the appropriate recovery of child
28 support arrearages.
29 2. When reviewing any settlement of lump-sum payment
30 pursuant to this subsection, judges of compensation claims
31 shall consider the interests of the worker and the worker's
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1 family when approving the settlement, which must consider and
2 provide for appropriate recovery of past due support.
3 (e) This section applies to all claims that the
4 parties have not previously settled, regardless of the date of
5 accident.
6 (12)(a) Liability of an employer for future payments
7 of compensation may not be discharged by advance payment
8 unless prior approval of a judge of compensation claims or the
9 department division has been obtained as hereinafter provided.
10 The approval shall not constitute an adjudication of the
11 claimant's percentage of disability.
12 (b) When the claimant has reached maximum recovery and
13 returned to her or his former or equivalent employment with no
14 substantial reduction in wages, such approval of a reasonable
15 advance payment of a part of the compensation payable to the
16 claimant may be given informally by letter by a judge of
17 compensation claims or, by the department division director,
18 or by the administrator of claims of the division.
19 (c) In the event the claimant has not returned to the
20 same or equivalent employment with no substantial reduction in
21 wages or has suffered a substantial loss of earning capacity
22 or a physical impairment, actual or apparent:
23 1. An advance payment of compensation not in excess of
24 $2,000 may be approved informally by letter, without hearing,
25 by any judge of compensation claims or the Chief Judge.
26 2. An advance payment of compensation not in excess of
27 $2,000 may be ordered by any judge of compensation claims
28 after giving the interested parties an opportunity for a
29 hearing thereon pursuant to not less than 10 days' notice by
30 mail, unless such notice is waived, and after giving due
31 consideration to the interests of the person entitled thereto.
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1 When the parties have stipulated to an advance payment of
2 compensation not in excess of $2,000, such advance may be
3 approved by an order of a judge of compensation claims, with
4 or without hearing, or informally by letter by any such judge
5 of compensation claims, or by the department division
6 director, if such advance is found to be for the best
7 interests of the person entitled thereto.
8 3. When the parties have stipulated to an advance
9 payment in excess of $2,000, subject to the approval of the
10 department division, such payment may be approved by a judge
11 of compensation claims by order if the judge finds that such
12 advance payment is for the best interests of the person
13 entitled thereto and is reasonable under the circumstances of
14 the particular case. The judge of compensation claims shall
15 make or cause to be made such investigations as she or he
16 considers necessary concerning the stipulation and, in her or
17 his discretion, may have an investigation of the matter made
18 by the Department of Education Rehabilitation Section of the
19 division. The stipulation and the report of any investigation
20 shall be deemed a part of the record of the proceedings.
21 (d) When an application for an advance payment in
22 excess of $2,000 is opposed by the employer or carrier, it
23 shall be heard by a judge of compensation claims after giving
24 the interested parties not less than 10 days' notice of such
25 hearing by mail, unless such notice is waived. In her or his
26 discretion, the judge of compensation claims may have an
27 investigation of the matter made by the Department of
28 Education Rehabilitation Section of the division, in which
29 event the report and recommendation of that section will be
30 deemed a part of the record of the proceedings. If the judge
31 of compensation claims finds that such advance payment is for
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1 the best interests of the person entitled to compensation,
2 will not materially prejudice the rights of the employer and
3 carrier, and is reasonable under the circumstances of the
4 case, she or he may order the same paid. However, in no event
5 may any such advance payment under this paragraph be granted
6 in excess of $7,500 or 26 weeks of benefits in any 48-month
7 period, whichever is greater, from the date of the last
8 advance payment.
9 (15)(a) The department division shall examine on an
10 ongoing basis claims files in accordance with ss. 624.3161 and
11 624.310(5) in order to identify questionable claims-handling
12 techniques, questionable patterns or practices of claims, or a
13 pattern of repeated unreasonably controverted claims by
14 employers, carriers, and self-insurers, health care providers,
15 health care facilities, training and education providers, or
16 any others providing services to employees pursuant to this
17 chapter and may certify its findings to the Department of
18 Insurance. If the department finds such questionable
19 techniques, patterns, or repeated unreasonably controverted
20 claims as constitute a general business practice of a carrier,
21 in the judgment of the division shall be certified in its
22 findings by the division to the Department of Insurance or
23 such other appropriate licensing agency. Such certification by
24 the division is exempt from the provisions of chapter 120.
25 Upon receipt of any such certification, the department of
26 Insurance shall take appropriate action so as to bring such
27 general business practices to a halt pursuant to s.
28 440.38(3)(a) or may impose penalties pursuant to s. 624.4211.
29 The department division may initiate investigations of
30 questionable techniques, patterns, practices, or repeated
31 unreasonably controverted claims. The department division may
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1 by rule establish penalties for violations and forms and
2 procedures for corrective action plans and for auditing
3 carriers.
4 (b) As to any examination, investigation, or hearing
5 being conducted under this chapter, the Treasurer or his or
6 her designee Secretary of Labor and Employment Security or the
7 secretary's designee:
8 1. May administer oaths, examine and cross-examine
9 witnesses, receive oral and documentary evidence; and
10 2. Shall have the power to subpoena witnesses, compel
11 their attendance and testimony, and require by subpoena the
12 production of books, papers, records, files, correspondence,
13 documents, or other evidence which is relevant to the inquiry.
14 (c) If any person refuses to comply with any such
15 subpoena or to testify as to any matter concerning which she
16 or he may be lawfully interrogated, the Circuit Court of Leon
17 County or of the county wherein such examination,
18 investigation, or hearing is being conducted, or of the county
19 wherein such person resides, may, on the application of the
20 department, issue an order requiring such person to comply
21 with the subpoena and to testify.
22 (d) Subpoenas shall be served, and proof of such
23 service made, in the same manner as if issued by a circuit
24 court. Witness fees, costs, and reasonable travel expenses, if
25 claimed, shall be allowed the same as for testimony in a
26 circuit court.
27 (e) The division shall publish annually a report which
28 indicates the promptness of first payment of compensation
29 records of each carrier or self-insurer so as to focus
30 attention on those carriers or self-insurers with poor payment
31 records for the preceding year. A copy of such report shall be
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1 certified to The department of Insurance which shall take
2 appropriate steps so as to cause such poor carrier payment
3 practices to halt pursuant to s. 440.38(3)(a). In addition,
4 the department division shall take appropriate action so as to
5 halt such poor payment practices of self-insurers. "Poor
6 payment practice" means a practice of late payment sufficient
7 to constitute a general business practice.
8 (f) The department division shall promulgate rules
9 providing guidelines to carriers, self-insurers, and employers
10 to indicate behavior that may be construed as questionable
11 claims-handling techniques, questionable patterns of claims,
12 repeated unreasonably controverted claims, or poor payment
13 practices.
14 (16) No penalty assessed under this section may be
15 recouped by any carrier or self-insurer in the rate base, the
16 premium, or any rate filing. In the case of carriers, The
17 Department of Insurance shall enforce this subsection; and in
18 the case of self-insurers, the division shall enforce this
19 subsection.
20 (17) The department division may by rule establish
21 audit procedures and set standards for the Automated Carrier
22 Performance System.
23 Section 9. Subsection (1) of section 440.207, Florida
24 Statutes, is amended to read:
25 440.207 Workers' compensation system guide.--
26 (1) The Division of Workers' Compensation of the
27 Department of Insurance Labor and Employment Security shall
28 educate all persons providing or receiving benefits pursuant
29 to this chapter as to their rights and responsibilities under
30 this chapter.
31
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1 Section 10. Subsections (1), (2), and (3) of section
2 440.24, Florida Statutes, are amended to read:
3 440.24 Enforcement of compensation orders;
4 penalties.--
5 (1) In case of default by the employer or carrier in
6 the payment of compensation due under any compensation order
7 of a judge of compensation claims or other failure by the
8 employer or carrier to comply with such order within 10 days
9 after the order becomes final, any circuit court of this state
10 within the jurisdiction of which the employer or carrier
11 resides or transacts business shall, upon application by the
12 department division or any beneficiary under such order, have
13 jurisdiction to issue a rule nisi directing such employer or
14 carrier to show cause why a writ of execution, or such other
15 process as may be necessary to enforce the terms of such
16 order, shall not be issued, and, unless such cause is shown,
17 the court shall have jurisdiction to issue a writ of execution
18 or such other process or final order as may be necessary to
19 enforce the terms of such order of the judge of compensation
20 claims.
21 (2) In any case where the employer is insured and the
22 carrier fails to comply with any compensation order of a judge
23 of compensation claims or court within 10 days after such
24 order becomes final, the division shall notify the department
25 of Insurance of such failure, and the Department of Insurance
26 shall thereupon suspend the license of such carrier to do an
27 insurance business in this state, until such carrier has
28 complied with such order.
29 (3) In any case where the employer is a self-insurer
30 and fails to comply with any compensation order of a judge of
31 compensation claims or court within 10 days after such order
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1 becomes final, the department division may suspend or revoke
2 any authorization previously given to the employer to become a
3 self-insurer, and the Florida Self-Insurer's Guaranty
4 Association division may sell such of the securities deposited
5 by such self-insurer with the association division as may be
6 necessary to satisfy such order.
7 Section 11. Subsections (5) and (7) of section 440.25,
8 Florida Statutes, are amended to read:
9 440.25 Procedures for mediation and hearings.--
10 (5)(a) Procedures with respect to appeals from orders
11 of judges of compensation claims shall be governed by rules
12 adopted by the Supreme Court. Such an order shall become final
13 30 days after mailing of copies of such order to the parties,
14 unless appealed pursuant to such rules.
15 (b) An appellant may be relieved of any necessary
16 filing fee by filing a verified petition of indigency for
17 approval as provided in s. 57.081(1) and may be relieved in
18 whole or in part from the costs for preparation of the record
19 on appeal if, within 15 days after the date notice of the
20 estimated costs for the preparation is served, the appellant
21 files with the judge of compensation claims a copy of the
22 designation of the record on appeal, and a verified petition
23 to be relieved of costs. A verified petition filed prior to
24 the date of service of the notice of the estimated costs shall
25 be deemed not timely filed. The verified petition relating to
26 record costs shall contain a sworn statement that the
27 appellant is insolvent and a complete, detailed, and sworn
28 financial affidavit showing all the appellant's assets,
29 liabilities, and income. Failure to state in the affidavit all
30 assets and income, including marital assets and income, shall
31 be grounds for denying the petition with prejudice. The Office
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1 of the Judges of Compensation Claims shall adopt rules as may
2 be required pursuant to this subsection, including forms for
3 use in all petitions brought under this subsection. The
4 appellant's attorney, or the appellant if she or he is not
5 represented by an attorney, shall include as a part of the
6 verified petition relating to record costs an affidavit or
7 affirmation that, in her or his opinion, the notice of appeal
8 was filed in good faith and that there is a probable basis for
9 the District Court of Appeal, First District, to find
10 reversible error, and shall state with particularity the
11 specific legal and factual grounds for the opinion. Failure to
12 so affirm shall be grounds for denying the petition. A copy of
13 the verified petition relating to record costs shall be served
14 upon all interested parties. The judge of compensation claims
15 shall promptly conduct a hearing on the verified petition
16 relating to record costs, giving at least 15 days' notice to
17 the appellant, the department division, and all other
18 interested parties, all of whom shall be parties to the
19 proceedings. The judge of compensation claims may enter an
20 order without such hearing if no objection is filed by an
21 interested party within 20 days from the service date of the
22 verified petition relating to record costs. Such proceedings
23 shall be conducted in accordance with the provisions of this
24 section and with the workers' compensation rules of procedure,
25 to the extent applicable. In the event an insolvency petition
26 is granted, the judge of compensation claims shall direct the
27 department division to pay record costs and filing fees from
28 the Workers' Compensation Administrative Trust Fund pending
29 final disposition of the costs of appeal. The department
30 division may transcribe or arrange for the transcription of
31
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1 the record in any proceeding for which it is ordered to pay
2 the cost of the record.
3 (c) As a condition of filing a notice of appeal to the
4 District Court of Appeal, First District, an employer who has
5 not secured the payment of compensation under this chapter in
6 compliance with s. 440.38 shall file with the notice of appeal
7 a good and sufficient bond, as provided in s. 59.13,
8 conditioned to pay the amount of the demand and any interest
9 and costs payable under the terms of the order if the appeal
10 is dismissed, or if the District Court of Appeal, First
11 District, affirms the award in any amount. Upon the failure of
12 such employer to file such bond with the judge of compensation
13 claims or the District Court of Appeal, First District, along
14 with the notice of appeal, the District Court of Appeal, First
15 District, shall dismiss the notice of appeal.
16 (7) An injured employee claiming or entitled to
17 compensation shall submit to such physical examination by a
18 certified expert medical advisor approved by the agency
19 division or the judge of compensation claims as the agency
20 division or the judge of compensation claims may require. The
21 place or places shall be reasonably convenient for the
22 employee. Such physician or physicians as the employee,
23 employer, or carrier may select and pay for may participate in
24 an examination if the employee, employer, or carrier so
25 requests. Proceedings shall be suspended and no compensation
26 shall be payable for any period during which the employee may
27 refuse to submit to examination. Any interested party shall
28 have the right in any case of death to require an autopsy, the
29 cost thereof to be borne by the party requesting it; and the
30 judge of compensation claims shall have authority to order and
31
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1 require an autopsy and may, in her or his discretion, withhold
2 her or his findings and award until an autopsy is held.
3 Section 12. Section 440.271, Florida Statutes, is
4 amended to read:
5 440.271 Appeal of order of judge of compensation
6 claims.--Review of any order of a judge of compensation claims
7 entered pursuant to this chapter shall be by appeal to the
8 District Court of Appeal, First District. Appeals shall be
9 filed in accordance with rules of procedure prescribed by the
10 Supreme Court for review of such orders. The department
11 division shall be given notice of any proceedings pertaining
12 to s. 440.25, regarding indigency, or s. 440.49, regarding the
13 Special Disability Trust Fund, and shall have the right to
14 intervene in any proceedings.
15 Section 13. Subsections (1), (2), and (3) of section
16 440.38, Florida Statutes, are amended to read:
17 440.38 Security for compensation; insurance carriers
18 and self-insurers.--
19 (1) Every employer shall secure the payment of
20 compensation under this chapter:
21 (a) By insuring and keeping insured the payment of
22 such compensation with any stock company or mutual company or
23 association or exchange, authorized to do business in the
24 state;
25 (b) By furnishing satisfactory proof to the Florida
26 Self-Insurers Guaranty Association, Incorporated, created in
27 s. 440.385, that it has the financial strength necessary to
28 assure timely payment of all current and future claims
29 division of its financial ability to pay such compensation
30 individually and on behalf of its subsidiary and affiliated
31 companies with employees in this state and receiving an
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1 authorization from the Department of Insurance division to pay
2 such compensation directly. The association shall review the
3 financial strength of applicants for membership, current
4 members, and former members and make recommendations to the
5 department regarding their qualifications to self-insure in
6 accordance with this act and ss. 440.385 and 440.386. The
7 department shall consult with the association on any
8 recommendation before taking action. the following provisions:
9 1. The association division may recommend that the
10 Department of Insurance require an employer to deposit with
11 the association division a qualifying security deposit. The
12 association division shall recommend determine the type and
13 amount of the qualifying security deposit and shall prescribe
14 conditions for the qualifying security deposit, which shall
15 include authorization for the association division to call the
16 qualifying security deposit in the case of default. In
17 addition, the division shall require, As a condition to
18 authorization to self-insure, the employer shall provide proof
19 that the employer has provided for competent personnel with
20 whom to deliver benefits and to provide a safe working
21 environment. Further, The employer division shall also provide
22 evidence of require such employer to carry reinsurance at
23 levels that will ensure the financial strength and actuarial
24 soundness of such employer in accordance with rules adopted
25 promulgated by the Department of Insurance division. The
26 Department of Insurance division may by rule require that, in
27 the event of an individual self-insurer's insolvency, such
28 qualifying security deposits and reinsurance policies are
29 payable to the Florida Self-Insurers Guaranty association,
30 Incorporated, created pursuant to s. 440.385. Any employer
31 securing compensation in accordance with the provisions of
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1 this paragraph shall be known as a self-insurer and shall be
2 classed as a carrier of her or his own insurance. All such
3 employers shall, if requested, provide the association with an
4 actuarial report signed by a member of the American Academy of
5 Actuaries providing an opinion of the appropriate present
6 value of the reserves for current and future compensation
7 claims. If any member or former member of the association
8 refuses to timely provide such a report, the association may
9 obtain an order from a circuit court requiring the member to
10 produce such a report and ordering such other relief as the
11 court determines appropriate. The association shall be
12 entitled to recover all reasonable costs and attorney's fees
13 in such proceedings.
14 2. If the employer fails to maintain the foregoing
15 requirements, the association division shall recommend to the
16 Department of Insurance that it revoke the employer's
17 authority to self-insure, unless the employer provides to the
18 association division the certified opinion of an independent
19 actuary who is a member of the American Academy Society of
20 Actuaries as to the actuarial present value of the employer's
21 determined and estimated future compensation payments based on
22 cash reserves, using a 4-percent discount rate, and a
23 qualifying security deposit equal to 1.5 times the value so
24 certified. The employer shall thereafter annually provide such
25 a certified opinion until such time as the employer meets the
26 requirements of subparagraph 1. The qualifying security
27 deposit shall be adjusted at the time of each such annual
28 report. Upon the failure of the employer to timely provide
29 such opinion or to timely provide a security deposit in an
30 amount equal to 1.5 times the value certified in the latest
31 opinion, the association shall provide such information to the
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1 department along with a recommendation, and the Department of
2 Insurance division shall then revoke an such employer's
3 authorization to self-insure., and such Failure to comply with
4 this provision shall be deemed to constitute an immediate
5 serious danger to the public health, safety, or welfare
6 sufficient to justify the summary suspension of the employer's
7 authorization to self-insure pursuant to s. 120.68.
8 3. Upon the suspension or revocation of the employer's
9 authorization to self-insure, the employer shall provide to
10 the division and to the Florida Self-Insurers Guaranty
11 association, Incorporated, created pursuant to s. 440.385 the
12 certified opinion of an independent actuary who is a member of
13 the American Academy Society of Actuaries of the actuarial
14 present value of the determined and estimated future
15 compensation payments of the employer for claims incurred
16 while the member exercised the privilege of self-insurance,
17 using a discount rate of 4 percent. The employer shall provide
18 such an opinion at 6-month intervals thereafter until such
19 time as the latest opinion shows no remaining value of claims.
20 With each such opinion, the employer shall deposit with the
21 association division a qualifying security deposit in an
22 amount equal to the value certified by the actuary. The
23 association has a cause of action against an employer, and
24 against any successor of the employer, who fails to timely
25 provide such opinion or who fails to timely maintain the
26 required security deposit with the association division. The
27 association shall recover a judgment in the amount of the
28 actuarial present value of the determined and estimated future
29 compensation payments of the employer for claims incurred
30 while the employer exercised the privilege of self-insurance,
31 together with attorney's fees. For purposes of this section,
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1 the successor of an employer means any person, business
2 entity, or group of persons or business entities, which holds
3 or acquires legal or beneficial title to the majority of the
4 assets or the majority of the shares of the employer.
5 4. A qualifying security deposit shall consist, at the
6 option of the employer, of:
7 a. Surety bonds, in a form and containing such terms
8 as prescribed by the association division, issued by a
9 corporation surety authorized to transact surety business by
10 the Department of Insurance, and whose policyholders' and
11 financial ratings, as reported in A.M. Best's Insurance
12 Reports, Property-Liability, are not less than "A" and "V",
13 respectively.
14 b. Irrevocable letters of credit in favor of the
15 association division issued by financial institutions located
16 within this state, the deposits of which are insured through
17 the Federal Deposit Insurance Corporation.
18 5. The qualifying security deposit shall be held by
19 the association division exclusively for the benefit of
20 workers' compensation claimants. The security shall not be
21 subject to assignment, execution, attachment, or any legal
22 process whatsoever, except as necessary to guarantee the
23 payment of compensation under this chapter. No surety bond may
24 be terminated, and no letter of credit may be allowed to
25 expire, without 90 days' prior written notice to the
26 association division and the deposit by the self-insuring
27 employer of some other qualifying security deposit of equal
28 value within 10 business days after such notice. Failure to
29 provide such written notice or failure to timely provide
30 qualifying replacement security after such notice shall
31 constitute grounds for the association division to call or sue
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1 upon the surety bond or to exercise its rights under a letter
2 of credit. Current self-insured employers must comply with
3 this section on or before December 31, 2001, or upon the
4 maturity of existing security deposits, whichever occurs
5 later. The Department of Insurance division may specify by
6 rule the amount of the qualifying security deposit required
7 prior to authorizing an employer to self-insure and the amount
8 of net worth required for an employer to qualify for
9 authorization to self-insure;
10 (c) By entering into a contract with a public utility
11 under an approved utility-provided self-insurance program as
12 set forth in s. 624.46225 in effect as of July 1, 1983. The
13 Department of Insurance division shall adopt rules to
14 implement this paragraph;
15 (d) By entering into an interlocal agreement with
16 other local governmental entities to create a local government
17 pool pursuant to s. 624.4622;
18 (e) In accordance with s. 440.135, an employer, other
19 than a local government unit, may elect coverage under the
20 Workers' Compensation Law and retain the benefit of the
21 exclusiveness of liability provided in s. 440.11 by obtaining
22 a 24-hour health insurance policy from an authorized property
23 and casualty insurance carrier or an authorized life and
24 health insurance carrier, or by participating in a fully or
25 partially self-insured 24-hour health plan that is established
26 or maintained by or for two or more employers, so long as the
27 law of this state is not preempted by the Employee Retirement
28 Income Security Act of 1974, Pub. L. No. 93-406, or any
29 amendment to that law, which policy or plan must provide, for
30 at least occupational injuries and illnesses, medical benefits
31 that are comparable to those required by this chapter. A local
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1 government unit, as a single employer, in accordance with s.
2 440.135, may participate in the 24-hour health insurance
3 coverage plan referenced in this paragraph. Disputes and
4 remedies arising under policies issued under this section are
5 governed by the terms and conditions of the policies and under
6 the applicable provisions of the Florida Insurance Code and
7 rules adopted under the insurance code and other applicable
8 laws of this state. The 24-hour health insurance policy may
9 provide for health care by a health maintenance organization
10 or a preferred provider organization. The premium for such
11 24-hour health insurance policy shall be paid entirely by the
12 employer. The 24-hour health insurance policy may use
13 deductibles and coinsurance provisions that require the
14 employee to pay a portion of the actual medical care received
15 by the employee. If an employer obtains a 24-hour health
16 insurance policy or self-insured plan to secure payment of
17 compensation as to medical benefits, the employer must also
18 obtain an insurance policy or policies that provide indemnity
19 benefits as follows:
20 1. If indemnity benefits are provided only for
21 occupational-related disability, such benefits must be
22 comparable to those required by this chapter.
23 2. If indemnity benefits are provided for both
24 occupational-related and nonoccupational-related disability,
25 such benefits must be comparable to those required by this
26 chapter, except that they must be based on 60 percent of the
27 average weekly wages.
28 3. The employer shall provide for each of its
29 employees life insurance with a death benefit of $100,000.
30 4. Policies providing coverage under this subsection
31 must use prescribed and acceptable underwriting standards,
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1 forms, and policies approved by the Department of Insurance.
2 If any insurance policy that provides coverage under this
3 section is canceled, terminated, or nonrenewed for any reason,
4 the cancellation, termination, or nonrenewal is ineffective
5 until the self-insured employer or insurance carrier or
6 carriers notify the division and the Department of Insurance
7 of the cancellation, termination, or nonrenewal, and until the
8 Department of Insurance division has actually received the
9 notification. The Department of Insurance division must be
10 notified of replacement coverage under a workers' compensation
11 and employer's liability insurance policy or plan by the
12 employer prior to the effective date of the cancellation,
13 termination, or nonrenewal; or
14 (f) By entering into a contract with an individual
15 self-insurer under an approved individual
16 self-insurer-provided self-insurance program as set forth in
17 s. 624.46225. The Department of Insurance division may adopt
18 rules to administer this subsection.
19 (2)(a) The Department of Insurance division shall
20 adopt rules by which businesses may become qualified to
21 provide underwriting claims-adjusting, loss control, and
22 safety engineering services to self-insurers.
23 (b) The Department of Insurance division shall adopt
24 rules requiring self-insurers to file any reports necessary to
25 fulfill the requirements of this chapter. Any self-insurer
26 who fails to file any report as prescribed by the rules
27 adopted by the department division shall be subject to a civil
28 penalty not to exceed $100 for each such failure.
29 (3)(a) The license of any stock company or mutual
30 company or association or exchange authorized to do insurance
31 business in the state shall for good cause, upon
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1 recommendation of the division, be suspended or revoked by the
2 Department of Insurance. No suspension or revocation shall
3 affect the liability of any carrier already incurred.
4 (a)(b) The Department of Insurance division shall
5 suspend or revoke any authorization to a self-insurer for
6 failure to comply with this act or for good cause, as defined
7 by rule of the department division. No suspension or
8 revocation shall affect the liability of any self-insurer
9 already incurred.
10 (b)(c) Violation of s. 440.381 by a self-insurance
11 fund shall result in the imposition of a fine not to exceed
12 $1,000 per audit if the self-insurance fund fails to act on
13 said audits by correcting errors in employee classification or
14 accepted applications for coverage where it knew employee
15 classifications were incorrect. Such fines shall be levied by
16 the Department of Insurance division and deposited into the
17 Workers' Compensation Administration Trust Fund.
18 Section 14. Subsections (3) and (7) of section
19 440.381, Florida Statutes, are amended to read:
20 440.381 Application for coverage; reporting payroll;
21 payroll audit procedures; penalties.--
22 (3) The department of Insurance and the Department of
23 Labor and Employment Security shall establish by rule minimum
24 requirements for audits of payroll and classifications in
25 order to ensure that the appropriate premium is charged for
26 workers' compensation coverage. The rules shall ensure that
27 audits performed by both carriers and employers are adequate
28 to provide that all sources of payments to employees,
29 subcontractors, and independent contractors have been reviewed
30 and that the accuracy of classification of employees has been
31 verified. The rules shall provide that employers in all
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1 classes other than the construction class be audited not less
2 frequently than biennially and may provide for more frequent
3 audits of employers in specified classifications based on
4 factors such as amount of premium, type of business, loss
5 ratios, or other relevant factors. In no event shall employers
6 in the construction class, generating more than the amount of
7 premium required to be experience rated, be audited less than
8 annually. The annual audits required for construction classes
9 shall consist of physical onsite audits. Payroll verification
10 audit rules must include, but need not be limited to, the use
11 of state and federal reports of employee income, payroll and
12 other accounting records, certificates of insurance maintained
13 by subcontractors, and duties of employees.
14 (7) If an employee suffering a compensable injury was
15 not reported as earning wages on the last quarterly earnings
16 report filed with the Division of Unemployment Compensation
17 before the accident, the employer shall indemnify the carrier
18 for all workers' compensation benefits paid to or on behalf of
19 the employee unless the employer establishes that the employee
20 was hired after the filing of the quarterly report, in which
21 case the employer and employee shall attest to the fact that
22 the employee was employed by the employer at the time of the
23 injury. It shall be the responsibility of the Division of
24 Workers' Compensation to collect all necessary data so as to
25 enable it to notify the carrier of the name of an injured
26 worker who was not reported as earning wages on the last
27 quarterly earnings report. The division is hereby authorized
28 to release such records to the carrier which will enable the
29 carrier to seek reimbursement as provided under this
30 subsection. Failure of the employer to indemnify the insurer
31 within 21 days after demand by the insurer shall constitute
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1 grounds for the insurer to immediately cancel coverage. Any
2 action for indemnification brought by the carrier shall be
3 cognizable in the circuit court having jurisdiction where the
4 employer or carrier resides or transacts business. The
5 insurer shall be entitled to a reasonable attorney's fee if it
6 recovers any portion of the benefits paid in such action.
7 Section 15. Section 440.385, Florida Statutes, is
8 amended to read:
9 440.385 Florida Self-Insurers Guaranty Association,
10 Incorporated.--
11 (1) CREATION OF ASSOCIATION.--
12 (a) There is created a nonprofit corporation to be
13 known as the "Florida Self-Insurers Guaranty Association,
14 Incorporated," hereinafter referred to as "the association."
15 Upon incorporation of the association, all individual
16 self-insurers as defined in ss. 440.02(24)(a) ss.
17 440.02(23)(a) and 440.38(1)(b), other than individual
18 self-insurers which are public utilities or governmental
19 entities, shall be members of the association as a condition
20 of their authority to individually self-insure in this state.
21 The association corporation shall perform its functions under
22 a plan of operation as established and approved under
23 subsection (5) and shall exercise its powers and duties
24 through a board of directors as established under subsection
25 (2). The association corporation shall have those powers
26 granted or permitted associations corporations not for profit,
27 as provided in chapter 617. The activities of the association
28 shall be subject to review by the Department of Insurance. The
29 Department of Insurance shall have oversight responsibility as
30 set forth in this act. The association is specifically
31
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1 authorized to enter into agreements with the State of Florida
2 to perform specified services.
3 (b) A member may voluntarily withdraw from the
4 association when the member voluntarily terminates the
5 self-insurance privilege and pays all assessments due to the
6 date of such termination. However, the withdrawing member
7 shall continue to be bound by the provisions of this section
8 relating to the period of his or her membership and any claims
9 charged pursuant thereto. The withdrawing member who is a
10 member on or after January 1, 1991, shall also be required to
11 provide to the association division upon withdrawal, and at
12 12-month intervals thereafter, satisfactory proof, including,
13 if requested by the association, a report of known and
14 potential claims certified by a member of the American Academy
15 of Actuaries, that it continues to meet the standards of s.
16 440.38(1)(b)1. in relation to claims incurred while the
17 withdrawing member exercised the privilege of self-insurance.
18 Such reporting shall continue until the withdrawing member
19 demonstrates to satisfies the association division that there
20 is no remaining value to claims incurred while the withdrawing
21 member was self-insured. If a withdrawing member fails or
22 refuses to timely provide an actuarial report to the
23 association, the association may obtain an order from a
24 circuit court requiring the member to produce such a report
25 and ordering such other relief as the court determines
26 appropriate. The association shall be entitled to recover all
27 reasonable costs and attorney's fees expended in such
28 proceedings. If during this reporting period the withdrawing
29 member fails to meet the standards of s. 440.38(1)(b)1., the
30 withdrawing member who is a member on or after January 1,
31 1991, shall thereupon, and at 6-month intervals thereafter,
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1 provide to the division and the association the certified
2 opinion of an independent actuary who is a member of the
3 American Academy Society of Actuaries of the actuarial present
4 value of the determined and estimated future compensation
5 payments of the member for claims incurred while the member
6 was a self-insurer, using a discount rate of 4 percent. With
7 each such opinion, the withdrawing member shall deposit with
8 the association division security in an amount equal to the
9 value certified by the actuary and of a type that is
10 acceptable for qualifying security deposits under s.
11 440.38(1)(b). The withdrawing member shall continue to
12 provide such opinions and to provide such security until such
13 time as the latest opinion shows no remaining value of claims.
14 The association has a cause of action against a withdrawing
15 member, and against any successor of a withdrawing member, who
16 fails to timely provide the required opinion or who fails to
17 maintain the required deposit with the division. The
18 association shall be entitled to recover a judgment in the
19 amount of the actuarial present value of the determined and
20 estimated future compensation payments of the withdrawing
21 member for claims incurred during the time that the
22 withdrawing member exercised the privilege of self-insurance,
23 together with reasonable attorney's fees. The association is
24 also entitled to recover reasonable attorney's fees in any
25 action to compel production of any actuarial report required
26 by this statute. For purposes of this section, the successor
27 of a withdrawing member means any person, business entity, or
28 group of persons or business entities, which holds or acquires
29 legal or beneficial title to the majority of the assets or the
30 majority of the shares of the withdrawing member.
31
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1 (2) BOARD OF DIRECTORS.--The board of directors of the
2 association shall consist of nine persons and shall be
3 organized as established in the plan of operation. All board
4 members shall be experienced in self-insurance in this state.
5 With respect to initial appointments, the Secretary of Labor
6 and Employment Security shall, by July 15, 1982, approve and
7 appoint to the board persons who are experienced with
8 self-insurance in this state and who are recommended by the
9 individual self-insurers in this state required to become
10 members of the association pursuant to the provisions of
11 paragraph (1)(a). In the event the secretary finds that any
12 person so recommended does not have the necessary
13 qualifications for service on the board and a majority of the
14 board has been appointed, the secretary shall request the
15 directors thus far approved and appointed to recommend another
16 person for appointment to the board. Each director shall serve
17 for a 4-year term and may be reappointed. Appointments after
18 December 31, 2001, other than initial appointments shall be
19 made by the Insurance Commissioner Secretary of Labor and
20 Employment Security upon recommendation of members of the
21 association. Any vacancy on the board shall be filled for the
22 remaining period of the term in the same manner as
23 appointments other than initial appointments are made. Each
24 director shall be reimbursed for expenses incurred in carrying
25 out the duties of the board on behalf of the association.
26 (3) POWERS AND DUTIES.--
27 (a) Upon creation of the Insolvency Fund pursuant to
28 the provisions of subsection (4), the association is obligated
29 for payment of compensation under this chapter to insolvent
30 members' employees resulting from incidents and injuries
31 existing prior to the member becoming an insolvent member and
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1 from incidents and injuries occurring within 30 days after the
2 member has become an insolvent member, provided the incidents
3 giving rise to claims for compensation under this chapter
4 occur during the year in which such insolvent member is a
5 member of the guaranty fund and was assessable pursuant to the
6 plan of operation, and provided the employee makes timely
7 claim for such payments according to procedures set forth by a
8 court of competent jurisdiction over the delinquency or
9 bankruptcy proceedings of the insolvent member. Such
10 obligation includes only that amount due the injured worker or
11 workers of the insolvent member under this chapter. In no
12 event is the association obligated to a claimant in an amount
13 in excess of the obligation of the insolvent member. The
14 association shall be deemed the insolvent employer for
15 purposes of this chapter to the extent of its obligation on
16 the covered claims and, to such extent, shall have all rights,
17 duties, and obligations of the insolvent employer as if the
18 employer had not become insolvent. However, in no event shall
19 the association be liable for any penalties or interest.
20 (b) The association may:
21 1. Employ or retain such persons as are necessary to
22 handle claims and perform other duties of the association.
23 2. Borrow funds necessary to effect the purposes of
24 this section in accord with the plan of operation.
25 3. Sue or be sued.
26 4. Negotiate and become a party to such contracts as
27 are necessary to carry out the purposes of this section.
28 5. Purchase such reinsurance as is determined
29 necessary pursuant to the plan of operation.
30 6. Review all applicants for membership in the
31 association to determine whether the applicant is qualified
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1 for membership under the law. The association shall recommend
2 to the Department of Insurance that the application be
3 accepted or rejected based on the criteria set forth in s.
4 440.38(1)(b). The department shall approve or disapprove the
5 application. Prior to a final determination by the Division of
6 Workers' Compensation as to whether or not to approve any
7 applicant for membership in the association, the association
8 may issue opinions to the division concerning any applicant,
9 which opinions shall be considered by the division prior to
10 any final determination.
11 7. Collect and review financial information from
12 employers and make recommendations to the Department of
13 Insurance regarding the appropriate security deposit and
14 reinsurance amounts necessary for an employer to demonstrate
15 that it has the financial strength necessary to assure the
16 timely payment of all current and future claims. The
17 association may audit and examine an employer to verify the
18 financial strength of its current and former members. If the
19 association determines that a current or former self-insured
20 employer does not have the financial strength necessary to
21 assure the timely payment of all current and estimated future
22 claims, the association may recommend to the department that
23 the department:
24 a. Revoke the employer's self-insurance privilege.
25 b. Require the employer to provide a certified opinion
26 of an independent actuary who is a member of the American
27 Academy of Actuaries as to the actuarial present value of the
28 employer's estimated current and future compensation payments,
29 using a 4-percent discount rate.
30 c. Require an increase in the employer's security
31 deposit in an amount determined by the association to be
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1 necessary to assure payment of compensation claims. The
2 department shall act on such recommendations. The association
3 has a cause of action against an employer, and against any
4 successor of an employer, who fails to provide an additional
5 security deposit required by the department. The association
6 shall recover a judgment in the amount of the requested
7 additional security deposit together with reasonable
8 attorney's fees. For the purposes of this section, the
9 successor of an employer is any person, business entity, or
10 group of persons or business entities that holds or acquires
11 legal or beneficial title to the majority of the assets or the
12 majority of the shares of the employer.
13 8.7. Charge fees to any member of the association to
14 cover the actual costs of examining the financial and safety
15 conditions of that member.
16 9.8. Charge an applicant for membership in the
17 association a fee sufficient to cover the actual costs of
18 examining the financial condition of the applicant.
19 10. Implement any and all procedures necessary to
20 ensure compliance with regulatory actions taken by the
21 department.
22 (c)1. To the extent necessary to secure funds for the
23 payment of covered claims and also to pay the reasonable costs
24 to administer them, the association, subject to approval by
25 the Department of Insurance Labor and Employment Security,
26 upon certification of the board of directors, shall levy
27 assessments based on the annual written normal premium each
28 employer would have paid had the employer not been
29 self-insured. Every assessment shall be made as a uniform
30 percentage of the figure applicable to all individual
31 self-insurers, provided that the assessment levied against any
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1 self-insurer in any one year shall not exceed 1 percent of the
2 annual written normal premium during the calendar year
3 preceding the date of the assessment. Assessments shall be
4 remitted to and administered by the board of directors in the
5 manner specified by the approved plan. Each employer so
6 assessed shall have at least 30 days' written notice as to the
7 date the assessment is due and payable. The association shall
8 levy assessments against any newly admitted member of the
9 association so that the basis of contribution of any newly
10 admitted member is the same as previously admitted members,
11 provision for which shall be contained in the plan of
12 operation.
13 2. If, in any one year, funds available from such
14 assessments, together with funds previously raised, are not
15 sufficient to make all the payments or reimbursements then
16 owing, the funds available shall be prorated, and the unpaid
17 portion shall be paid as soon thereafter as sufficient
18 additional funds become available.
19 3. Funds may be allocated or paid from the Workers'
20 Compensation Administration Trust Fund to contract with the
21 association to perform services required by law. However, no
22 state funds of any kind shall be allocated or paid to the
23 association or any of its accounts for payment of covered
24 claims or related expenses except those state funds accruing
25 to the association by and through the assignment of rights of
26 an insolvent employer. The department shall not levy any
27 assessment on the Florida Self-Insurance Guaranty Association.
28 (4) INSOLVENCY FUND.--Upon the adoption of a plan of
29 operation or the adoption of rules by the Department of Labor
30 and Employment Security pursuant to subsection (5), there
31
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1 shall be created an Insolvency Fund to be managed by the
2 association.
3 (a) The Insolvency Fund is created for purposes of
4 meeting the obligations of insolvent members incurred while
5 members of the association and after the exhaustion of any
6 security deposit bond, as required under this chapter.
7 However, if such security deposit bond, surety, or reinsurance
8 policy is payable to the Florida Self-Insurers Guaranty
9 Association, the association shall commence to provide
10 benefits out of the Insolvency Fund and be reimbursed from the
11 security deposit bond, surety, or reinsurance policy. The
12 method of operation of the Insolvency Fund shall be defined in
13 the plan of operation as provided in subsection (5).
14 (b) The department shall have the authority to audit
15 the financial soundness of the Insolvency Fund annually.
16 (c) The department may offer certain amendments to the
17 plan of operation to the board of directors of the association
18 for purposes of assuring the ongoing financial soundness of
19 the Insolvency Fund and its ability to meet the obligations of
20 this section.
21 (d) The department actuary may make certain
22 recommendations to improve the orderly payment of claims.
23 (5) PLAN OF OPERATION.--The association shall operate
24 pursuant to a plan of operation approved by the board of
25 directors. The plan of operation in effect on November 1,
26 2001, and approved by the Department of Labor and Employment
27 Security shall remain in effect. However, any amendments to
28 the plan shall not become effective until approved by the
29 Department of Insurance. By September 15, 1982, the board of
30 directors shall submit to the Department of Labor and
31
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1 Employment Security a proposed plan of operation for the
2 administration of the association and the Insolvency Fund.
3 (a) The purpose of the plan of operation shall be to
4 provide the association and the board of directors with the
5 authority and responsibility to establish the necessary
6 programs and to take the necessary actions to protect against
7 the insolvency of a member of the association. In addition,
8 the plan shall provide that the members of the association
9 shall be responsible for maintaining an adequate Insolvency
10 Fund to meet the obligations of insolvent members provided for
11 under this act and shall authorize the board of directors to
12 contract and employ those persons with the necessary expertise
13 to carry out this stated purpose. By June 1, 2002, the board
14 of directors shall submit to the Department of Insurance a
15 proposed plan of operation for the administration of the
16 association. The Department of Insurance shall approve the
17 plan by order, consistent with this act. The Department of
18 Insurance shall approve any amendments to the plan, by order
19 consistent with this act, and determined appropriate to carry
20 out the duties and responsibilities of the association.
21 (b) The plan of operation, and any amendments thereto,
22 shall take effect upon approval in writing by the department.
23 If the board of directors fails to submit a plan by September
24 15, 1982, or fails to make required amendments to the plan
25 within 30 days thereafter, the department shall promulgate
26 such rules as are necessary to effectuate the provisions of
27 this subsection. Such rules shall continue in force until
28 modified by the department or superseded by a plan submitted
29 by the board of directors and approved by the department.
30 (b)(c) All member employers shall comply with the plan
31 of operation.
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1 (c)(d) The plan of operation shall:
2 1. Establish the procedures whereby all the powers and
3 duties of the association under subsection (3) will be
4 performed.
5 2. Establish procedures for handling assets of the
6 association.
7 3. Establish the amount and method of reimbursing
8 members of the board of directors under subsection (2).
9 4. Establish procedures by which claims may be filed
10 with the association and establish acceptable forms of proof
11 of covered claims. Notice of claims to the receiver or
12 liquidator of the insolvent employer shall be deemed notice to
13 the association or its agent, and a list of such claims shall
14 be submitted periodically to the association or similar
15 organization in another state by the receiver or liquidator.
16 5. Establish regular places and times for meetings of
17 the board of directors.
18 6. Establish procedures for records to be kept of all
19 financial transactions of the association and its agents and
20 the board of directors.
21 7. Provide that any member employer aggrieved by any
22 final action or decision of the association may appeal to the
23 department within 30 days after the action or decision.
24 8. Establish the procedures whereby recommendations of
25 candidates for the board of directors shall be submitted to
26 the department.
27 9. Contain additional provisions necessary or proper
28 for the execution of the powers and duties of the association.
29 (d)(e) The plan of operation may provide that any or
30 all of the powers and duties of the association, except those
31 specified under subparagraphs (c)(d)1. and 2., be delegated to
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1 a corporation, association, or other organization which
2 performs or will perform functions similar to those of this
3 association or its equivalent in two or more states. Such a
4 corporation, association, or organization shall be reimbursed
5 as a servicing facility would be reimbursed and shall be paid
6 for its performance of any other functions of the association.
7 A delegation of powers or duties under this subsection shall
8 take effect only with the approval of both the board of
9 directors and the department and may be made only to a
10 corporation, association, or organization which extends
11 protection which is not substantially less favorable and
12 effective than the protection provided by this section.
13 (6) POWERS AND DUTIES OF DEPARTMENT OF INSURANCE LABOR
14 AND EMPLOYMENT SECURITY.--
15 (a) The department shall:
16 1. review recommendations of the association
17 concerning whether current or former self-insured employers or
18 members of the association have the financial strength
19 necessary to ensure the timely payment of all current and
20 estimated future claims. If the association determines an
21 employer does not have the financial strength necessary to
22 ensure the timely payment of all current and future claims and
23 recommends action pursuant to paragraph (3)(b), the Department
24 of Insurance may take such action as necessary to order the
25 employer to comply with the recommendation. Notify the
26 association of the existence of an insolvent employer not
27 later than 3 days after it receives notice of the
28 determination of insolvency.
29 (b) The department may:
30 1. Contract with the association for services, which
31 may include, but not be limited to, the following:
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1 a. Process applications for self-insurance.
2 b. Collect and review financial statements and loss
3 reserve information from individual self-insurers.
4 c. Collect and maintain files for original security
5 deposit documents and reinsurance policies from individual
6 self-insurers and, if necessary, perfect security interests in
7 security deposits.
8 d. Process compliance documentation for individual
9 self-insurers and provide same to the Department of Insurance.
10 e. Collect all data necessary to calculate annual
11 premium for all individual self-insurers, including individual
12 self-insurers that are public utilities or governmental
13 entities, and provide such calculated annual premium to the
14 Department of Insurance for assessment purposes.
15 f. Inspect and audit annually, if necessary, the
16 payroll and other records of each individual self-insurer,
17 including individual self-insurers that are public utilities
18 or governmental entities, in order to determine the wages paid
19 by each individual self-insurer, the premium such individual
20 self-insurer would have to pay if insured, and all payments of
21 compensation made by such individual self-insurer during each
22 prior period with the results of such audit provided to the
23 Department of Insurance. For the purposes of this section,
24 the payroll records of each individual self-insurer shall be
25 open to inspection and audit by the association, the
26 department, or their authorized representative, during regular
27 business hours.
28 g. Provide legal representation to implement the
29 administration and audit of individual self-insurers and make
30 recommendations regarding prosecution of any administrative or
31
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1 legal proceedings necessitated by the department's regulation
2 of the individual self-insurers.
3 2. Contract with an attorney or attorneys recommended
4 by the association for representation of the department in any
5 administrative or legal proceedings necessitated by the
6 recommended regulation of the individual self-insurers. Upon
7 request of the board of directors, provide the association
8 with a statement of the annual normal premiums of each member
9 employer.
10 (b) The department may:
11 3.1. Direct the association to require from each
12 individual self-insurer, at such time and in accordance with
13 such regulations as the department prescribes, reports in
14 respect to wages paid, the amount of premiums such individual
15 self-insurer would have to pay if insured, and all payments of
16 compensation made by such individual self-insurer during each
17 prior period and determine the amounts paid by each individual
18 self-insurer and the amounts paid by all individual
19 self-insurers during such period. For the purposes of this
20 section, the payroll records of each individual self-insurer
21 shall be open to annual inspection and audit by the
22 association, the department, or their authorized
23 representative, during regular business hours, and if any
24 audit of such records of an individual self-insurer discloses
25 a deficiency in the amount reported to the association or in
26 the amounts paid to the Department of Insurance by an
27 individual self-insurer for its assessment for the Workers'
28 Compensation Administration Trust Fund, the Department of
29 Insurance or the association may assess the cost of such audit
30 against the individual self-insurer.
31
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1 4. Require that the association notify the member
2 employers and any other interested parties of the
3 determination of insolvency and of their rights under this
4 section. Such notification shall be by mail at the last known
5 address thereof when available; but, if sufficient information
6 for notification by mail is not available, notice by
7 publication in a newspaper of general circulation shall be
8 sufficient.
9 5.2. Suspend or revoke the authority of any member
10 employer failing to pay an assessment when due or failing to
11 comply with the plan of operation to self-insure in this
12 state. As an alternative, the department may levy a fine on
13 any member employer failing to pay an assessment when due.
14 Such fine shall not exceed 5 percent of the unpaid assessment
15 per month, except that no fine shall be less than $100 per
16 month.
17 3. Revoke the designation of any servicing facility if
18 the department finds that claims are being handled
19 unsatisfactorily.
20 (7) EFFECT OF PAID CLAIMS.--
21 (a) Any person who recovers from the association under
22 this section shall be deemed to have assigned his or her
23 rights to the association to the extent of such recovery.
24 Every claimant seeking the protection of this section shall
25 cooperate with the association to the same extent as such
26 person would have been required to cooperate with the
27 insolvent member. The association shall have no cause of
28 action against the employee of the insolvent member for any
29 sums the association has paid out, except such causes of
30 action as the insolvent member would have had if such sums had
31 been paid by the insolvent member. In the case of an
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1 insolvent member operating on a plan with assessment
2 liability, payments of claims by the association shall not
3 operate to reduce the liability of the insolvent member to the
4 receiver, liquidator, or statutory successor for unpaid
5 assessments.
6 (b) The receiver, liquidator, or statutory successor
7 of an insolvent member shall be bound by settlements of
8 covered claims by the association or a similar organization in
9 another state. The court having jurisdiction shall grant such
10 claims priority against the assets of the insolvent member
11 equal to that to which the claimant would have been entitled
12 in the absence of this section. The expense of the association
13 or similar organization in handling claims shall be accorded
14 the same priority as the expenses of the liquidator.
15 (c) The association shall file periodically with the
16 receiver or liquidator of the insolvent member statements of
17 the covered claims paid by the association and estimates of
18 anticipated claims on the association, which shall preserve
19 the rights of the association against the assets of the
20 insolvent member.
21 (8) NOTIFICATION PREVENTION OF INSOLVENCIES.--To aid
22 in the detection and prevention of employer insolvencies:
23 (a) upon determination by majority vote that any
24 member employer may be insolvent or in a financial condition
25 hazardous to the employees thereof or to the public, it shall
26 be the duty of the board of directors to notify the Department
27 of Insurance Labor and Employment Security of any information
28 indicating such condition.
29 (b) The board of directors may, upon majority vote,
30 request that the department determine the condition of any
31 member employer which the board in good faith believes may no
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1 longer be qualified to be a member of the association. Within
2 30 days of the receipt of such request or, for good cause
3 shown, within a reasonable time thereafter, the department
4 shall make such determination and shall forthwith advise the
5 board of its findings. Each request for a determination shall
6 be kept on file by the department, but the request shall not
7 be open to public inspection prior to the release of the
8 determination to the public.
9 (c) It shall also be the duty of the department to
10 report to the board of directors when it has reasonable cause
11 to believe that a member employer may be in such a financial
12 condition as to be no longer qualified to be a member of the
13 association.
14 (d) The board of directors may, upon majority vote,
15 make reports and recommendations to the department upon any
16 matter which is germane to the solvency, liquidation,
17 rehabilitation, or conservation of any member employer. Such
18 reports and recommendations shall not be considered public
19 documents.
20 (e) The board of directors may, upon majority vote,
21 make recommendations to the department for the detection and
22 prevention of employer insolvencies.
23 (f) The board of directors shall, at the conclusion of
24 any member's insolvency in which the association was obligated
25 to pay covered claims, prepare a report on the history and
26 cause of such insolvency, based on the information available
27 to the association, and shall submit such report to the
28 department.
29 (9) EXAMINATION OF THE ASSOCIATION.--The association
30 shall be subject to examination and regulation by the
31 Department of Insurance Labor and Employment Security. No
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1 later than March 30 of each year, the board of directors shall
2 submit an audited a financial statement report for the
3 preceding calendar year in a form approved by the department.
4 (10) IMMUNITY.--There shall be no liability on the
5 part of, and no cause of action of any nature shall arise
6 against, any member employer, the association or its agents or
7 employees, the board of directors, or the Department of
8 Insurance Labor and Employment Security or its representatives
9 for any action taken by them in the performance of their
10 powers and duties under this section.
11 (11) STAY OF PROCEEDINGS; REOPENING OF DEFAULT
12 JUDGMENTS.--All proceedings in which an insolvent employer is
13 a party, or is obligated to defend a party, in any court or
14 before any quasi-judicial body or administrative board in this
15 state shall be stayed for up to 6 months, or for such
16 additional period from the date the employer becomes an
17 insolvent member, as is deemed necessary by a court of
18 competent jurisdiction to permit proper defense by the
19 association of all pending causes of action as to any covered
20 claims arising from a judgment under any decision, verdict, or
21 finding based on the default of the insolvent member. The
22 association, either on its own behalf or on behalf of the
23 insolvent member, may apply to have such judgment, order,
24 decision, verdict, or finding set aside by the same court or
25 administrator that made such judgment, order, decision,
26 verdict, or finding and shall be permitted to defend against
27 such claim on the merits. If requested by the association,
28 the stay of proceedings may be shortened or waived.
29 (12) LIMITATION ON CERTAIN ACTIONS.--Notwithstanding
30 any other provision of this chapter, a covered claim, as
31 defined herein, with respect to which settlement is not
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1 effected and pursuant to which suit is not instituted against
2 the insured of an insolvent member or the association within 1
3 year after the deadline for filing claims with the receiver of
4 the insolvent member, or any extension of the deadline, shall
5 thenceforth be barred as a claim against the association.
6 (13) CORPORATE INCOME TAX CREDIT.--Any sums acquired
7 by a member by refund, dividend, or otherwise from the
8 association shall be payable within 30 days of receipt to the
9 Department of Insurance for deposit with the Treasurer to the
10 credit of the General Revenue Fund. All provisions of chapter
11 220 relating to penalties and interest on delinquent corporate
12 income tax payments apply to payments due under this
13 subsection.
14 Section 16. Subsections (2), (3), and (4) of section
15 440.386, Florida Statutes, are amended to read:
16 440.386 Individual self-insurers' insolvency;
17 conservation; liquidation.--
18 (2) COMMENCEMENT OF DELINQUENCY PROCEEDING.--The
19 Department of Insurance or the Florida Self-Insurers Guaranty
20 Association, Incorporated, may commence a delinquency any such
21 proceeding by application to the court for an order directing
22 the individual self-insurer to show cause why the department
23 or association should not have the relief prayed for. The
24 Florida Self-Insurers Guaranty Association, Incorporated, may
25 petition the department to commence such proceedings, and upon
26 receipt of such petition, the department shall commence such
27 proceeding. On the return of such order to show cause, and
28 after a full hearing, the court shall either deny the
29 application or grant the application, together with such other
30 relief as the nature of the case and the interests of the
31 claimants, creditors, stockholders, members, subscribers, or
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1 public may require. The Department of Insurance and the
2 association shall give Florida Self-Insurers Guaranty
3 Association, Incorporated, shall be given reasonable written
4 notice to each other by the department of all hearings which
5 pertain to an adjudication of insolvency of a member
6 individual self-insurer.
7 (3) GROUNDS FOR LIQUIDATION.--The Department of
8 Insurance or the association may apply to the court for an
9 order appointing a receiver and directing the receiver to
10 liquidate the business of a domestic individual self-insurer
11 if such individual self-insurer is insolvent. Florida
12 Self-Insurers Guaranty Association, Incorporated, may petition
13 the department to apply to the court for such order. Upon
14 receipt of such petition, the department shall apply to the
15 court for such order.
16 (4) GROUNDS FOR CONSERVATION; FOREIGN INDIVIDUAL
17 SELF-INSURERS.--
18 (a) The Department of Insurance or the association may
19 apply to the court for an order appointing a receiver or
20 ancillary receiver, and directing the receiver to conserve the
21 assets within this state, of a foreign individual self-insurer
22 if such individual self-insurer is insolvent. Florida
23 Self-Insurers Guaranty Association, Incorporated, may petition
24 the department to apply for such order, and, upon receipt of
25 such petition, the department shall apply to the court for
26 such order.
27 (b) An order to conserve the assets of an individual
28 self-insurer shall require the receiver forthwith to take
29 possession of the property of the receiver within the state
30 and to conserve it, subject to the further direction of the
31 court.
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1 Section 17. Subsection (8) and paragraph (e) of
2 subsection (9) of section 440.49, Florida Statutes, are
3 amended to read:
4 440.49 Limitation of liability for subsequent injury
5 through Special Disability Trust Fund.--
6 (8) PREFERRED WORKER PROGRAM.--The Department of
7 Education division or administrator shall issue identity cards
8 to preferred workers upon request by qualified employees; and
9 the Department of Insurance shall reimburse an employer, from
10 the Special Disability Trust Fund, for the cost of workers'
11 compensation premium related to the preferred workers payroll
12 for up to 3 years of continuous employment upon satisfactory
13 evidence of placement and issuance of payroll and
14 classification records and upon the employee's certification
15 of employment. The department and the Department of Education
16 division may by rule prescribe definitions, forms, and
17 procedures for the administration of the preferred worker
18 program. The Department of Education division may by rule
19 prescribe the schedule for submission of forms for
20 participation in the program.
21 (9) SPECIAL DISABILITY TRUST FUND.--
22 (e) The Department of Insurance Labor and Employment
23 Security or administrator shall report annually on the status
24 of the Special Disability Trust Fund. The report shall update
25 the estimated undiscounted and discounted fund liability, as
26 determined by an independent actuary, change in the total
27 number of notices of claim on file with the fund in addition
28 to the number of newly filed notices of claim, change in the
29 number of proofs of claim processed by the fund, the fee
30 revenues refunded and revenues applied to pay down the
31 liability of the fund, the average time required to reimburse
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1 accepted claims, and the average administrative costs per
2 claim. The department or administrator shall submit its
3 report to the Governor, the President of the Senate, and the
4 Speaker of the House of Representatives by December 1 of each
5 year.
6 Section 18. Present paragraphs (b) through (h) of
7 subsection (1) of section 440.491, Florida Statutes, are
8 redesignated as paragraphs (c) through (i), respectively, and
9 a new paragraph (b) is added to that subsection, and paragraph
10 (c) of subsection (1), paragraph (a) of subsection (3),
11 paragraph (b) of subsection (4), paragraphs (b) and (c) of
12 subsection (5), and subsections (6), (7), and (8) of that
13 section are amended, to read:
14 440.491 Reemployment of injured workers;
15 rehabilitation.--
16 (1) DEFINITIONS.--As used in this section, the term:
17 (b) "Department" means the Department of Education.
18 (d)(c) "Qualified rehabilitation provider" means a
19 rehabilitation nurse, rehabilitation counselor, vocational
20 evaluator, rehabilitation facility, or agency approved by the
21 Department of Education division as qualified to provide
22 reemployment assessments, medical care coordination,
23 reemployment services, or vocational evaluations under this
24 chapter.
25 (3) REEMPLOYMENT STATUS REVIEWS AND REPORTS.--
26 (a) When an employee who has suffered an injury
27 compensable under this chapter is unemployed 60 days after the
28 date of injury and is receiving benefits for temporary total
29 disability, temporary partial disability, or wage loss, and
30 has not yet been provided medical care coordination and
31 reemployment services voluntarily by the carrier, the carrier
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1 must determine whether the employee is likely to return to
2 work and must report its determination to the department
3 division. The carrier must thereafter determine the
4 reemployment status of the employee at 90-day intervals as
5 long as the employee remains unemployed, is not receiving
6 medical care coordination or reemployment services, and is
7 receiving the benefits specified in this subsection.
8 (4) REEMPLOYMENT ASSESSMENTS.--
9 (b) The carrier shall authorize only a qualified
10 rehabilitation provider to provide the reemployment
11 assessment. The rehabilitation provider shall conduct its
12 assessment and issue a report to the carrier, the employee,
13 and the department division within 30 days after the time such
14 assessment is complete.
15 (5) MEDICAL CARE COORDINATION AND REEMPLOYMENT
16 SERVICES.--
17 (b) If the rehabilitation provider concludes that
18 training and education are necessary to return the employee to
19 suitable gainful employment, or if the employee has not
20 returned to suitable gainful employment within 180 days after
21 referral for reemployment services or receives $2,500 in
22 reemployment services, whichever comes first, the carrier must
23 discontinue reemployment services and refer the employee to
24 the department division for a vocational evaluation.
25 Notwithstanding any provision of chapter 289 or chapter 627,
26 the cost of a reemployment assessment and the first $2,500 in
27 reemployment services to an injured employee must not be
28 treated as loss adjustment expense for workers' compensation
29 ratemaking purposes.
30 (c) A carrier may voluntarily provide medical care
31 coordination or reemployment services to the employee at
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1 intervals more frequent than those required in this section.
2 For the purpose of monitoring reemployment, the carrier or the
3 rehabilitation provider shall report to the department
4 division, in the manner prescribed by the department division,
5 the date of reemployment and wages of the employee. The
6 carrier shall report its voluntary service activity to the
7 department division as required by rule. Voluntary services
8 offered by the carrier for any of the following injuries must
9 be considered benefits for purposes of ratemaking: traumatic
10 brain injury; spinal cord injury; amputation, including loss
11 of an eye or eyes; burns of 5 percent or greater of the total
12 body surface.
13 (6) TRAINING AND EDUCATION.--
14 (a) Upon referral of an injured employee by the
15 carrier, or upon the request of an injured employee, the
16 department division shall conduct a training and education
17 screening to determine whether it should refer the employee
18 for a vocational evaluation and, if appropriate, approve
19 training and education or other vocational services for the
20 employee. The department division may not approve formal
21 training and education programs unless it determines, after
22 consideration of the reemployment assessment, pertinent
23 reemployment status reviews or reports, and such other
24 relevant factors as it prescribes by rule, that the
25 reemployment plan is likely to result in return to suitable
26 gainful employment. The department division is authorized to
27 expend moneys from the Workers' Compensation Administration
28 Trust Fund, established by s. 440.50, to secure appropriate
29 training and education or other vocational services when
30 necessary to satisfy the recommendation of a vocational
31 evaluator. The department division shall establish training
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1 and education standards pertaining to employee eligibility,
2 course curricula and duration, and associated costs.
3 (b) When it appears that an employee who has attained
4 maximum medical improvement requires training and education to
5 obtain suitable gainful employment, the employer shall pay the
6 employee additional temporary total compensation while the
7 employee receives such training and education for a period not
8 to exceed 26 weeks, which period may be extended for an
9 additional 26 weeks or less, if such extended period is
10 determined to be necessary and proper by a judge of
11 compensation claims. However, a carrier or employer is not
12 precluded from voluntarily paying additional temporary total
13 disability compensation beyond that period. If an employee
14 requires temporary residence at or near a facility or an
15 institution providing training and education which is located
16 more than 50 miles away from the employee's customary
17 residence, the reasonable cost of board, lodging, or travel
18 must be borne by the department division from the Workers'
19 Compensation Administration Trust Fund established by s.
20 440.50. An employee who refuses to accept training and
21 education that is recommended by the vocational evaluator and
22 considered necessary by the department division is subject to
23 a 50-percent reduction in weekly compensation benefits,
24 including wage-loss benefits, as determined under s.
25 440.15(3)(b).
26 (7) PROVIDER QUALIFICATIONS.--
27 (a) The department division shall investigate and
28 maintain a directory of each qualified public and private
29 rehabilitation provider, facility, and agency, and shall
30 establish by rule the minimum qualifications, credentials, and
31 requirements that each rehabilitation service provider,
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1 facility, and agency must satisfy to be eligible for listing
2 in the directory. These minimum qualifications and credentials
3 must be based on those generally accepted within the service
4 specialty for which the provider, facility, or agency is
5 approved.
6 (b) The department division shall impose a biennial
7 application fee of $25 for each listing in the directory, and
8 all such fees must be deposited in the Workers' Compensation
9 Administration Trust Fund.
10 (c) The department division shall monitor and evaluate
11 each rehabilitation service provider, facility, and agency
12 qualified under this subsection to ensure its compliance with
13 the minimum qualifications and credentials established by the
14 department division. The failure of a qualified rehabilitation
15 service provider, facility, or agency to provide the
16 department division with information requested or access
17 necessary for the department division to satisfy its
18 responsibilities under this subsection is grounds for
19 disqualifying the provider, facility, or agency from further
20 referrals.
21 (d) A qualified rehabilitation service provider,
22 facility, or agency may not be authorized by an employer, a
23 carrier, or the department division to provide any services,
24 including expert testimony, under this section in this state
25 unless the provider, facility, or agency is listed or has been
26 approved for listing in the directory. This restriction does
27 not apply to services provided outside this state under this
28 section.
29 (e) The department division, after consultation with
30 representatives of employees, employers, carriers,
31 rehabilitation providers, and qualified training and education
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1 providers, shall adopt rules governing professional practices
2 and standards.
3 (8) CARRIER PRACTICES.--The department division shall
4 monitor the selection of providers and the provision of
5 services by carriers under this section for consistency with
6 legislative intent set forth in subsection (2).
7 Section 19. Section 440.525, Florida Statutes, is
8 amended to read:
9 440.525 Examination of carriers.--Beginning July 1,
10 1994, The Division of Workers' Compensation of the Department
11 of Insurance Labor and Employment Security may examine each
12 carrier as often as is warranted to ensure that carriers are
13 fulfilling their obligations under the law, and shall examine
14 each carrier not less frequently than once every 3 years. The
15 examination must cover the preceding 3 fiscal years of the
16 carrier's operations and must commence within 12 months after
17 the end of the most recent fiscal year being covered by the
18 examination. The examination may cover any period of the
19 carrier's operations since the last previous examination.
20 Section 20. Subsections (1), (4), and (5) of section
21 443.012, Florida Statutes, are amended to read:
22 443.012 Unemployment Appeals Commission.--
23 (1) There is created within the Agency for Workforce
24 Innovation Department of Labor and Employment Security an
25 Unemployment Appeals Commission, hereinafter referred to as
26 the "commission." The commission shall consist of a chair and
27 two other members to be appointed by the Governor, subject to
28 confirmation by the Senate. Not more than one appointee must
29 be a person who, on account of previous vocation, employment,
30 or affiliation, is classified as a representative of
31 employers; and not more than one such appointee must be a
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1 person who, on account of previous vocation, employment, or
2 affiliation, is classified as a representative of employees.
3 (a) The chair shall devote his or her entire time to
4 commission duties and shall be responsible for the
5 administrative functions of the commission.
6 (b) The chair shall have the authority to appoint a
7 general counsel and such other personnel as may be necessary
8 to carry out the duties and responsibilities of the
9 commission.
10 (c) The chair shall have the qualifications required
11 by law for a judge of the circuit court and shall not engage
12 in any other business vocation or employment. Notwithstanding
13 any other provisions of existing law, the chair shall be paid
14 a salary equal to that paid under state law to a judge of the
15 circuit court.
16 (d) The remaining members shall be paid a stipend of
17 $100 for each day they are engaged in the work of the
18 commission. The chair and other members shall also be
19 reimbursed for travel expenses, as provided in s. 112.061.
20 (e) The total salary and travel expenses of each
21 member of the commission shall be paid from the Employment
22 Security Administration Trust Fund.
23 (4) The property, personnel, and appropriations
24 relating to the specified authority, powers, duties, and
25 responsibilities of the commission shall be provided to the
26 commission by the Agency for Workforce Innovation Department
27 of Labor and Employment Security.
28 (5) The commission shall not be subject to control,
29 supervision, or direction by the Agency for Workforce
30 Innovation Department of Labor and Employment Security in the
31 performance of its powers and duties under this chapter.
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1 Section 21. Subsection (12) of section 443.036,
2 Florida Statutes, is amended to read:
3 443.036 Definitions.--As used in this chapter, unless
4 the context clearly requires otherwise:
5 (12) COMMISSION.--"Commission" means the Unemployment
6 Appeals Commission of the Department of Labor and Employment
7 Security.
8 Section 22. Subsection (3) of section 447.02, Florida
9 Statutes, is amended to read:
10 447.02 Definitions.--The following terms, when used in
11 this chapter, shall have the meanings ascribed to them in this
12 section:
13 (3) The term "department" means the Department of
14 Business and Professional Regulation Labor and Employment
15 Security.
16 Section 23. Subsection (4) of section 447.305, Florida
17 Statutes, is amended to read:
18 447.305 Registration of employee organization.--
19 (4) Notification of registrations and renewals of
20 registration shall be furnished at regular intervals by the
21 commission to the Department of Business and Professional
22 Regulation Labor and Employment Security.
23 Section 24. Subsection (4) of section 450.012, Florida
24 Statutes, is amended to read:
25 450.012 Definitions.--For the purpose of this chapter,
26 the word, phrase, or term:
27 (4) "Department" means the Department of Business and
28 Professional Regulation Labor and Employment Security.
29 Section 25. Paragraph (j) of subsection (1) of section
30 450.191, Florida Statutes, is amended to read:
31
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1 450.191 Executive Office of the Governor; powers and
2 duties.--
3 (1) The Executive Office of the Governor is authorized
4 and directed to:
5 (j) Cooperate with the farm labor office of the
6 Department of Business and Professional Regulation Labor and
7 Employment Security in the recruitment and referral of migrant
8 laborers and other persons for the planting, cultivation, and
9 harvesting of agricultural crops in Florida.
10 Section 26. Subsection (2) of section 450.28, Florida
11 Statutes, is amended to read:
12 450.28 Definitions.--
13 (2) "Department" means the Department of Business and
14 Professional Regulation Labor and Employment Security.
15 Section 27. Section 627.0915, Florida Statutes, is
16 amended to read:
17 627.0915 Rate filings; workers' compensation,
18 drug-free workplace, and safe employers.--The Department of
19 Insurance shall approve rating plans for workers' compensation
20 insurance that give specific identifiable consideration in the
21 setting of rates to employers that either implement a
22 drug-free workplace program pursuant to rules adopted by the
23 Division of Workers' Compensation of the Department of
24 Insurance Labor and Employment Security or implement a safety
25 program pursuant to provisions of the rating plan or implement
26 both a drug-free workplace program and a safety program. The
27 plans must be actuarially sound and must state the savings
28 anticipated to result from such drug-testing and safety
29 programs.
30 Section 28. Paragraph (m) of subsection (2) of section
31 110.205, Florida Statutes, is amended to read:
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1 110.205 Career service; exemptions.--
2 (2) EXEMPT POSITIONS.--The exempt positions that are
3 not covered by this part include the following:
4 (m) All assistant division director, deputy division
5 director, and bureau chief positions in any department, and
6 those positions determined by the department to have
7 managerial responsibilities comparable to such positions,
8 which positions include, but are not limited to, positions in
9 the Department of Health, the Department of Children and
10 Family Services, and the Department of Corrections that are
11 assigned primary duties of serving as the superintendent or
12 assistant superintendent, or warden or assistant warden, of an
13 institution; positions in the Department of Corrections that
14 are assigned primary duties of serving as the circuit
15 administrator or deputy circuit administrator; positions in
16 the Department of Transportation that are assigned primary
17 duties of serving as regional toll managers and managers of
18 offices as defined in s. 20.23(3)(d)3. and (4)(d); positions
19 in the Department of Environmental Protection that are
20 assigned the duty of an Environmental Administrator or program
21 administrator; those positions described in s. 20.171 as
22 included in the Senior Management Service; and positions in
23 the Department of Health that are assigned the duties of
24 Environmental Administrator, Assistant County Health
25 Department Director, and County Health Department Financial
26 Administrator. Unless otherwise fixed by law, the department
27 shall set the salary and benefits of these positions in
28 accordance with the rules established for the Selected Exempt
29 Service.
30 Section 29. Paragraph (h) of subsection (2) of section
31 112.19, Florida Statutes, is amended to read:
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1 112.19 Law enforcement, correctional, and correctional
2 probation officers; death benefits.--
3 (2)
4 (h)1. Any employer who employs a full-time law
5 enforcement, correctional, or correctional probation officer
6 who, on or after January 1, 1995, suffers a catastrophic
7 injury, as defined in s. 440.02 s. 440.02(37), in the line of
8 duty shall pay the entire premium of the employer's health
9 insurance plan for the injured employee, the injured
10 employee's spouse, and for each dependent child of the injured
11 employee until the child reaches the age of majority or until
12 the end of the calendar year in which the child reaches the
13 age of 25 if the child continues to be dependent for support,
14 or the child is a full-time or part-time student and is
15 dependent for support. The term "health insurance plan" does
16 not include supplemental benefits that are not part of the
17 basic group health insurance plan. If the injured employee
18 subsequently dies, the employer shall continue to pay the
19 entire health insurance premium for the surviving spouse until
20 remarried, and for the dependent children, under the
21 conditions outlined in this paragraph. However:
22 a. Health insurance benefits payable from any other
23 source shall reduce benefits payable under this section.
24 b. It is unlawful for a person to willfully and
25 knowingly make, or cause to be made, or to assist, conspire
26 with, or urge another to make, or cause to be made, any false,
27 fraudulent, or misleading oral or written statement to obtain
28 health insurance coverage as provided under this paragraph. A
29 person who violates this sub-subparagraph commits a
30 misdemeanor of the first degree, punishable as provided in s.
31 775.082 or s. 775.083.
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1 c. In addition to any applicable criminal penalty,
2 upon conviction for a violation as described in
3 sub-subparagraph b., a law enforcement, correctional, or
4 correctional probation officer or other beneficiary who
5 receives or seeks to receive health insurance benefits under
6 this paragraph shall forfeit the right to receive such health
7 insurance benefits, and shall reimburse the employer for all
8 benefits paid due to the fraud or other prohibited activity.
9 For purposes of this sub-subparagraph, "conviction" means a
10 determination of guilt that is the result of a plea or trial,
11 regardless of whether adjudication is withheld.
12 2. In order for the officer, spouse, and dependent
13 children to be eligible for such insurance coverage, the
14 injury must have occurred as the result of the officer's
15 response to fresh pursuit, the officer's response to what is
16 reasonably believed to be an emergency, or an unlawful act
17 perpetrated by another. Except as otherwise provided herein,
18 nothing in this paragraph shall be construed to limit health
19 insurance coverage for which the officer, spouse, or dependent
20 children may otherwise be eligible, except that a person who
21 qualifies under this section shall not be eligible for the
22 health insurance subsidy provided under chapter 121, chapter
23 175, or chapter 185.
24 Section 30. Paragraph (g) of subsection (2) of section
25 112.191, Florida Statutes, is amended to read:
26 112.191 Firefighters; death benefits.--
27 (2)
28 (g)1. Any employer who employs a full-time firefighter
29 who, on or after January 1, 1995, suffers a catastrophic
30 injury, as defined in s. 440.02 s. 440.02(37), in the line of
31 duty shall pay the entire premium of the employer's health
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1 insurance plan for the injured employee, the injured
2 employee's spouse, and for each dependent child of the injured
3 employee until the child reaches the age of majority or until
4 the end of the calendar year in which the child reaches the
5 age of 25 if the child continues to be dependent for support,
6 or the child is a full-time or part-time student and is
7 dependent for support. The term "health insurance plan" does
8 not include supplemental benefits that are not part of the
9 basic group health insurance plan. If the injured employee
10 subsequently dies, the employer shall continue to pay the
11 entire health insurance premium for the surviving spouse until
12 remarried, and for the dependent children, under the
13 conditions outlined in this paragraph. However:
14 a. Health insurance benefits payable from any other
15 source shall reduce benefits payable under this section.
16 b. It is unlawful for a person to willfully and
17 knowingly make, or cause to be made, or to assist, conspire
18 with, or urge another to make, or cause to be made, any false,
19 fraudulent, or misleading oral or written statement to obtain
20 health insurance coverage as provided under this paragraph. A
21 person who violates this sub-subparagraph commits a
22 misdemeanor of the first degree, punishable as provided in s.
23 775.082 or s. 775.083.
24 c. In addition to any applicable criminal penalty,
25 upon conviction for a violation as described in
26 sub-subparagraph b., a firefighter or other beneficiary who
27 receives or seeks to receive health insurance benefits under
28 this paragraph shall forfeit the right to receive such health
29 insurance benefits, and shall reimburse the employer for all
30 benefits paid due to the fraud or other prohibited activity.
31 For purposes of this sub-subparagraph, "conviction" means a
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1 determination of guilt that is the result of a plea or trial,
2 regardless of whether adjudication is withheld.
3 2. In order for the firefighter, spouse, and dependent
4 children to be eligible for such insurance coverage, the
5 injury must have occurred as the result of the firefighter's
6 response to what is reasonably believed to be an emergency
7 involving the protection of life or property, or an unlawful
8 act perpetrated by another. Except as otherwise provided
9 herein, nothing in this paragraph shall be construed to limit
10 health insurance coverage for which the firefighter, spouse,
11 or dependent children may otherwise be eligible, except that a
12 person who qualifies for benefits under this section shall not
13 be eligible for the health insurance subsidy provided under
14 chapter 121, chapter 175, or chapter 185.
15
16 Notwithstanding any provision of this section to the contrary,
17 the death benefits provided in paragraphs (b), (c), and (f)
18 shall also be applicable and paid in cases where a firefighter
19 received bodily injury prior to July 1, 1993, and subsequently
20 died on or after July 1, 1993, as a result of such
21 in-line-of-duty injury.
22 Section 31. Section 121.125, Florida Statutes, is
23 amended to read:
24 121.125 Credit for workers' compensation payment
25 periods.--A member of the retirement system created by this
26 chapter who has been eligible or becomes eligible to receive
27 workers' compensation payments for an injury or illness
28 occurring during his or her employment while a member of any
29 state retirement system shall, upon return to active
30 employment with a covered employer for 1 calendar month or
31 upon approval for disability retirement in accordance with s.
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1 121.091(4), receive full retirement credit for the period
2 prior to such return to active employment or disability
3 retirement for which the workers' compensation payments were
4 received. However, no member may receive retirement credit
5 for any such period occurring after the earlier of the date of
6 maximum medical improvement has been attained as defined in s.
7 440.02 s. 440.02(9) or the date termination has occurred as
8 defined in s. 121.021(39). The employer of record at the time
9 of the worker's compensation injury or illness shall make the
10 required retirement contributions based on the member's rate
11 of monthly compensation immediately prior to his or her
12 receiving workers' compensation payments for retirement credit
13 received by the member.
14 Section 32. Subsection (7) of section 122.03, Florida
15 Statutes, is amended to read:
16 122.03 Contributions; participants; prior service
17 credit.--
18 (7) A member of the retirement system created by this
19 chapter who has been eligible or becomes eligible to receive
20 workers' compensation payments for an injury or illness
21 occurring during his or her employment while a member of any
22 state retirement system shall, upon his or her return to
23 active employment with a covered employer for 1 calendar month
24 or upon his or her approval for disability retirement in
25 accordance with s. 122.09, receive full retirement credit for
26 the period prior to such return to active employment or
27 disability retirement for which the workers' compensation
28 payments were received. However, no member may receive
29 retirement credit for any such period occurring after the
30 earlier of the date of maximum medical improvement has been
31 attained as defined in s. 440.02 s. 440.02(9) or the date
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1 termination has occurred as defined in s. 121.021(39). The
2 employer of record at the time of the worker's compensation
3 injury or illness shall make the required employee and
4 employer retirement contributions based on the member's rate
5 of monthly compensation immediately prior to receipt of
6 workers' compensation payments.
7 Section 33. Subsection (10) of section 238.06, Florida
8 Statutes, is amended to read:
9 238.06 Membership application, creditable service, and
10 time for making contributions.--
11 (10) A member of the retirement system created by this
12 chapter who has been eligible or becomes eligible to receive
13 workers' compensation payments for an injury or illness
14 occurring during his or her employment while a member of any
15 state retirement system shall, upon his or her return to
16 active employment with a covered employer for 1 calendar month
17 or upon his or her approval for disability retirement in
18 accordance with s. 238.07, receive full retirement credit for
19 the period prior to such return to active employment or
20 disability retirement for which the workers' compensation
21 payments were received. However, no member may receive
22 retirement credit for any such period occurring after the
23 earlier of the date of maximum medical improvement has been
24 attained as defined in s. 440.02 s. 440.02(9) or the date
25 termination has occurred as defined in s. 121.021(39). The
26 employer of record at the time of the worker's compensation
27 injury or illness shall make the required employee and
28 employer retirement contributions based on the member's rate
29 of monthly compensation immediately prior to his or her
30 receiving workers' compensation payments.
31
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1 Section 34. Subsection (1) of section 440.10, Florida
2 Statutes, is amended to read:
3 440.10 Liability for compensation.--
4 (1)(a) Every employer coming within the provisions of
5 this chapter, including any brought within the chapter by
6 waiver of exclusion or of exemption, shall be liable for, and
7 shall secure, the payment to his or her employees, or any
8 physician, surgeon, or pharmacist providing services under the
9 provisions of s. 440.13, of the compensation payable under ss.
10 440.13, 440.15, and 440.16. Any contractor or subcontractor
11 who engages in any public or private construction in the state
12 shall secure and maintain compensation for his or her
13 employees under this chapter as provided in s. 440.38.
14 (b) In case a contractor sublets any part or parts of
15 his or her contract work to a subcontractor or subcontractors,
16 all of the employees of such contractor and subcontractor or
17 subcontractors engaged on such contract work shall be deemed
18 to be employed in one and the same business or establishment;
19 and the contractor shall be liable for, and shall secure, the
20 payment of compensation to all such employees, except to
21 employees of a subcontractor who has secured such payment.
22 (c) A contractor may require a subcontractor to
23 provide evidence of workers' compensation insurance or a copy
24 of his or her certificate of election. A subcontractor
25 electing to be exempt as a sole proprietor, partner, or
26 officer of a corporation shall provide a copy of his or her
27 certificate of election to the contractor.
28 (d)1. If a contractor becomes liable for the payment
29 of compensation to the employees of a subcontractor who has
30 failed to secure such payment in violation of s. 440.38, the
31 contractor or other third-party payor shall be entitled to
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1 recover from the subcontractor all benefits paid or payable
2 plus interest unless the contractor and subcontractor have
3 agreed in writing that the contractor will provide coverage.
4 2. If a contractor or third-party payor becomes liable
5 for the payment of compensation to the employee of a
6 subcontractor who is actively engaged in the construction
7 industry and has elected to be exempt from the provisions of
8 this chapter, but whose election is invalid, the contractor or
9 third-party payor may recover from the claimant, partnership,
10 or corporation all benefits paid or payable plus interest,
11 unless the contractor and the subcontractor have agreed in
12 writing that the contractor will provide coverage.
13 (e) A subcontractor is not liable for the payment of
14 compensation to the employees of another subcontractor on such
15 contract work and is not protected by the
16 exclusiveness-of-liability provisions of s. 440.11 from action
17 at law or in admiralty on account of injury of such employee
18 of another subcontractor.
19 (f) If an employer willfully fails to secure
20 compensation as required by this chapter, the division may
21 assess against the employer a penalty not to exceed $5,000 for
22 each employee of that employer who is classified by the
23 employer as an independent contractor but who is found by the
24 division to not meet the criteria for an independent
25 contractor that are set forth in s. 440.02.
26 (g) For purposes of this section, a person is
27 conclusively presumed to be an independent contractor if:
28 1. The independent contractor provides the general
29 contractor with an affidavit stating that he or she meets all
30 the requirements of s. 440.02(15)(d) s. 440.02(14)(d); and
31
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1 2. The independent contractor provides the general
2 contractor with a valid certificate of workers' compensation
3 insurance or a valid certificate of exemption issued by the
4 division.
5
6 A sole proprietor, partner, or officer of a corporation who
7 elects exemption from this chapter by filing a certificate of
8 election under s. 440.05 may not recover benefits or
9 compensation under this chapter. An independent contractor
10 who provides the general contractor with both an affidavit
11 stating that he or she meets the requirements of s.
12 440.02(15)(d) s. 440.02(14)(d) and a certificate of exemption
13 is not an employee under s. 440.02(15)(c) s. 440.02(14)(c) and
14 may not recover benefits under this chapter. For purposes of
15 determining the appropriate premium for workers' compensation
16 coverage, carriers may not consider any person who meets the
17 requirements of this paragraph to be an employee.
18 Section 35. Subsection (1) of section 440.104, Florida
19 Statutes, is amended to read:
20 440.104 Competitive bidder; civil actions.--
21 (1) Any person engaged in the construction industry,
22 as provided in s. 440.02 s. 440.02(7), who loses a competitive
23 bid for a contract shall have a cause of action for damages
24 against the person awarded the contract for which the bid was
25 made, if the person making the losing bid establishes that the
26 winning bidder knew or should have known that he or she was in
27 violation of s. 440.10, s. 440.105, or s. 440.38 while
28 performing the work under the contract.
29 Section 36. Subsection (4) of section 440.14, Florida
30 Statutes, is amended to read:
31 440.14 Determination of pay.--
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Florida Senate - 2001 SB 66-C
311-747A-02
1 (4) Upon termination of the employee or upon
2 termination of the payment of fringe benefits of any employee
3 who is collecting indemnity benefits pursuant to s. 440.15(2)
4 or (3)(b), the employer shall within 7 days of such
5 termination file a corrected 13-week wage statement reflecting
6 the wages paid and the fringe benefits that had been paid to
7 the injured employee, as provided defined in s. 440.02(28) s.
8 440.02(27).
9 Section 37. Sections 20.171 and 440.4416, Florida
10 Statutes, are repealed.
11 Section 38. If any provision of this act or its
12 application to any person or circumstance is held invalid, the
13 invalidity does not affect other provisions or applications of
14 the act which can be given effect without the invalid
15 provision or application, and to this end the provisions of
16 this act are severable.
17 Section 39. This act shall take effect January 1,
18 2002.
19
20 *****************************************
21 LEGISLATIVE SUMMARY
22
Transfers various divisions, offices, and functions from
23 the Department of Labor and Employment Security to the
Department of Insurance, the Agency for Health Care
24 Administration, the Department of Education, the
Department of Business and Professional Regulation, and
25 the State Technology Office. Transfers the Unemployment
Appeals Commission to the Agency for Workforce
26 Innovation. Makes other revisions, to conform. (See bill
for details.)
27
28
29
30
31
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