Senate Bill sb2518

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    Florida Senate - 2003                                  SB 2518

    By Senator Webster





    9-767A-03                                           See HB 831

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         624.310, F.S.; revising definitions; conforming

  4         provisions to a revised definition; conforming

  5         provisions to certain governmental

  6         reorganization; prohibiting affiliated parties

  7         from certain activities constituting a conflict

  8         of interest; providing exceptions; authorizing

  9         the Office of Insurance Regulation to require

10         certain disclosures of personal interest;

11         specifying certain restrictions governing

12         affiliated party conduct; amending s. 624.316,

13         F.S.; deleting provisions providing for an

14         examination of an insurer pursuant to an

15         agreement between the Department of Financial

16         Services and the insurer; requiring such

17         examinations according to rules of the

18         department; amending s. 624.4095, F.S.;

19         conforming provisions to certain governmental

20         reorganization; providing for calculating

21         certain surplus for certain insurers; amending

22         s. 624.610, F.S.; conforming provisions to

23         certain governmental reorganization; revising

24         requirements for securities of a trust fund for

25         a single assuming insurer; amending ss. 628.461

26         and 628.4615, F.S.; specifying additional

27         nonapplication of acquisition of controlling

28         stock provisions to changes of ownership of a

29         domestic insurer or specialty insurer,

30         respectively, under certain circumstances;

31         creating ss. 634.042, 627.8401, 634.3076,

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         634.4062, and 651.029, F.S.; prohibiting

 2         certain investments by motor vehicle service

 3         agreement companies, premium finance companies,

 4         home warranty associations, service warranty

 5         associations, and continuing care providers,

 6         respectively; creating s. 641.263, F.S.;

 7         providing definitions; providing for risk-based

 8         capital for health maintenance organizations;

 9         requiring risk-based capital reports; providing

10         reporting requirements; providing requirements

11         for determining risk-based capital; providing

12         legislative findings; providing for adjusting

13         risk-based capital reports under certain

14         circumstances; providing requirements for

15         health maintenance organizations upon the

16         occurrence of certain events; providing notice

17         requirements; requiring a risk-based capital

18         plan for such events; providing plan

19         requirements; providing duties and

20         responsibilities of the Office of Insurance

21         Regulation; providing for office hearings of

22         challenges by health maintenance organizations;

23         providing notice requirements; providing

24         construction; authorizing the office to adopt

25         rules; authorizing the office to exempt certain

26         health maintenance organizations; specifying

27         absence of liability of the office or the

28         Financial Services Commission for certain

29         actions; providing for effect of certain

30         notices; providing alternative requirements for

31         risk-based capital reports for certain time

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         periods; providing legislative intent for the

 2         use of risk-based capital reports and other

 3         related documents; amending s. 440.20, F.S.;

 4         correcting a cross-reference; providing an

 5         effective date.

 6  

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

 8  

 9         Section 1.  Section 624.310, Florida Statutes, is

10  amended to read:

11         624.310  Enforcement; cease and desist orders; removal

12  of certain persons; fines.--

13         (1)  DEFINITIONS.--For the purposes of this section,

14  the term:

15         (a)  "Affiliated party of a licensee" means any person

16  who directs or participates in the conduct of the affairs of a

17  licensee and who is:

18         1.  A director, officer, employee, trustee, committee

19  member, or controlling stockholder of a licensee or a

20  subsidiary or service corporation of the licensee, other than

21  a controlling stockholder which is a holding company, or an

22  agent of a licensee or a subsidiary or service corporation of

23  the licensee;

24         2.  A person who has filed or is required to file a

25  statement or any other information required to be filed under

26  s. 628.461 or s. 628.4615;

27         3.  A stockholder, other than a stockholder that is a

28  holding company of the licensee, who participates in the

29  conduct of the affairs of the licensee; or

30         4.  An independent contractor who:

31  

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         a.  Renders a written opinion required by the laws of

 2  this state under her or his professional credentials on behalf

 3  of the licensee, which opinion is reasonably relied on by the

 4  office department in the performance of its duties; or

 5         b.  Affirmatively and knowingly conceals facts, through

 6  a written misrepresentation to the office department, with

 7  knowledge that such misrepresentation:

 8         (I)  Constitutes a violation of the insurance code or a

 9  lawful rule or order of the office department; and

10         (II)  Directly and materially endangers the ability of

11  the licensee to meet its obligations to policyholders.

12  

13  For the purposes of this subparagraph, any representation of

14  fact made by an independent contractor on behalf of a

15  licensee, affirmatively communicated as a representation of

16  the licensee to the independent contractor, shall not be

17  considered a misrepresentation by the independent contractor

18  to the office department.

19         (b)  "Licensee" means a person issued a license or

20  certificate of authority or approval under this code or a

21  person registered under a provision of this code.

22         (2)  ENFORCEMENT GENERALLY.--The office department may

23  institute such suits or other legal proceedings as may be

24  required to enforce any provision of this code. If it appears

25  that any person has violated any provision of this code for

26  which criminal prosecution is provided, the office department

27  shall provide the appropriate state attorney or other

28  prosecuting agency having jurisdiction with respect to such

29  prosecution with the relevant information in its possession.

30         (3)  CEASE AND DESIST ORDERS.--

31  

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         (a)  The office department may issue and serve a

 2  complaint stating charges upon any licensee or upon any

 3  affiliated party of a licensee, whenever the office department

 4  has reasonable cause to believe that the person or individual

 5  named therein is engaging in or has engaged in conduct that

 6  is:

 7         1.  An act that demonstrates a lack of fitness or

 8  trustworthiness to engage in the business of insurance, is

 9  hazardous to the insurance buying public, or constitutes

10  business operations that are a detriment to policyholders,

11  stockholders, investors, creditors, or the public;

12         2.  A violation of any provision of the Florida

13  Insurance Code;

14         3.  A violation of any rule of the office department;

15         4.  A violation of any order of the office department;

16  or

17         5.  A breach of any written agreement with the office

18  department.

19         (b)  The complaint shall contain a statement of facts

20  and notice of opportunity for a hearing pursuant to ss.

21  120.569 and 120.57.

22         (c)  If no hearing is requested within the time allowed

23  by ss. 120.569 and 120.57, or if a hearing is held and the

24  office department finds that any of the charges are proven,

25  the office department may enter an order directing the

26  licensee or the affiliated party of a licensee named in the

27  complaint to cease and desist from engaging in the conduct

28  complained of and take corrective action to remedy the effects

29  of past improper conduct and assure future compliance.

30         (d)  If the licensee or affiliated party of a licensee

31  named in the order fails to respond to the complaint within

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  the time allotted by ss. 120.569 and 120.57, the failure

 2  constitutes a default and justifies the entry of a cease and

 3  desist order.

 4         (e)  A contested or default cease and desist order is

 5  effective when reduced to writing and served upon the licensee

 6  or affiliated party of a licensee named therein. An

 7  uncontested cease and desist order is effective as agreed.

 8         (f)  Whenever the office department finds that conduct

 9  described in paragraph (a) is likely to cause insolvency,

10  substantial dissipation or misvaluation of assets or earnings

11  of the licensee, substantial inability to pay claims on a

12  timely basis, or substantial prejudice to prospective or

13  existing insureds, policyholders, subscribers, or the public,

14  it may issue an emergency cease and desist order requiring the

15  licensee or any affiliated party of a licensee to immediately

16  cease and desist from engaging in the conduct complained of

17  and to take corrective and remedial action. The emergency

18  order is effective immediately upon service of a copy of the

19  order upon the licensee or affiliated party of a licensee

20  named therein and remains effective for 90 days. If the office

21  department begins nonemergency cease and desist proceedings

22  under this subsection, the emergency order remains effective

23  until the conclusion of the proceedings under ss. 120.569 and

24  120.57. Any emergency order entered under this subsection is

25  exempt from s. 119.07(1) and is confidential until it is made

26  permanent unless the office department finds that the

27  confidentiality will result in substantial risk of financial

28  loss to the public. All emergency cease and desist orders that

29  are not made permanent are available for public inspection 1

30  year from the date the emergency cease and desist order

31  expires; however, portions of an emergency cease and desist

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  order remain confidential and exempt from the provisions of s.

 2  119.07(1) if disclosure would:

 3         1.  Jeopardize the integrity of another active

 4  investigation;

 5         2.  Impair the safety and financial soundness of the

 6  licensee or affiliated party of a licensee;

 7         3.  Reveal personal financial information;

 8         4.  Reveal the identity of a confidential source;

 9         5.  Defame or cause unwarranted damage to the good name

10  or reputation of an individual or jeopardize the safety of an

11  individual; or

12         6.  Reveal investigative techniques or procedures.

13         (4)  REMOVAL OF AFFILIATED PARTIES OF A LICENSEE BY THE

14  OFFICE DEPARTMENT.--

15         (a)  The office department may issue and serve a

16  complaint stating charges upon any affiliated party of a

17  licensee and upon the licensee involved, whenever the office

18  department has reason to believe that an affiliated party of a

19  licensee is engaging in or has engaged in conduct that

20  constitutes:

21         1.  An act that demonstrates a lack of fitness or

22  trustworthiness to engage in the business of insurance through

23  engaging in illegal activity or mismanagement of business

24  activities;

25         2.  A willful violation of any law relating to the

26  business of insurance; however, if the violation constitutes a

27  misdemeanor, no complaint shall be served as provided in this

28  section until the affiliated party of a licensee is notified

29  in writing of the matter of the violation and has been

30  afforded a reasonable period of time, as set forth in the

31  notice, to correct the violation and has failed to do so;

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         3.  A violation of any other law involving fraud or

 2  moral turpitude that constitutes a felony;

 3         4.  A willful violation of any rule of the office

 4  department;

 5         5.  A willful violation of any order of the office

 6  department;

 7         6.  A material misrepresentation of fact, made

 8  knowingly and willfully or made with reckless disregard for

 9  the truth of the matter; or

10         7.  An act of commission or omission or a practice

11  which is a breach of trust or a breach of fiduciary duty.

12         (b)  The complaint shall contain a statement of facts

13  and notice of opportunity for a hearing pursuant to ss.

14  120.569 and 120.57.

15         (c)  If no hearing is requested within the time

16  allotted by ss. 120.569 and 120.57, or if a hearing is held

17  and the office department finds that any of the charges in the

18  complaint are proven true and that:

19         1.  The licensee has suffered or will likely suffer

20  loss or other damage;

21         2.  The interests of the policyholders, creditors, or

22  public are, or could be, seriously prejudiced by reason of the

23  violation or act or breach of fiduciary duty;

24         3.  The affiliated party of a licensee has received

25  financial gain by reason of the violation, act, or breach of

26  fiduciary duty; or

27         4.  The violation, act, or breach of fiduciary duty is

28  one involving personal dishonesty on the part of the

29  affiliated party of a licensee or the conduct jeopardizes or

30  could reasonably be anticipated to jeopardize the financial

31  soundness of the licensee,

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  

 2  The office department may enter an order removing the

 3  affiliated party of a licensee or restricting or prohibiting

 4  participation by the person in the affairs of that particular

 5  licensee or of any other licensee.

 6         (d)  If the affiliated party of a licensee fails to

 7  respond to the complaint within the time allotted by ss.

 8  120.569 and 120.57, the failure constitutes a default and

 9  justifies the entry of an order of removal, suspension, or

10  restriction.

11         (e)  A contested or default order of removal,

12  restriction, or prohibition is effective when reduced to

13  writing and served on the licensee and the affiliated party of

14  a licensee. An uncontested order of removal, restriction, or

15  prohibition is effective as agreed.

16         (f)1.  The chief executive officer, or the person

17  holding the equivalent office, of a licensee shall promptly

18  notify the office department if she or he has actual knowledge

19  that any affiliated party of a licensee is charged with a

20  felony in a state or federal court.

21         2.  Whenever any affiliated party of a licensee is

22  charged with a felony in a state or federal court or with the

23  equivalent of a felony in the courts of any foreign country

24  with which the United States maintains diplomatic relations,

25  and the charge alleges violation of any law involving fraud,

26  theft, or moral turpitude, the office department may enter an

27  emergency order suspending the affiliated party of a licensee

28  or restricting or prohibiting participation by the affiliated

29  party of a licensee in the affairs of the particular licensee

30  or of any other licensee upon service of the order upon the

31  licensee and the affiliated party of a licensee charged. The

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  order shall contain notice of opportunity for a hearing

 2  pursuant to ss. 120.569 and 120.57, where the affiliated party

 3  of a licensee may request a postsuspension hearing to show

 4  that continued service to or participation in the affairs of

 5  the licensee does not pose a threat to the interests of the

 6  licensee's policyholders or creditors and does not threaten to

 7  impair public confidence in the licensee. In accordance with

 8  applicable office departmental rules, the office department

 9  shall notify the affiliated party of a licensee whether the

10  order suspending or prohibiting the person from participation

11  in the affairs of a licensee will be rescinded or otherwise

12  modified. The emergency order remains in effect, unless

13  otherwise modified by the office department, until the

14  criminal charge is disposed of. The acquittal of the person

15  charged, or the final, unappealed dismissal of all charges

16  against the person, dissolves the emergency order, but does

17  not prohibit the office department from instituting

18  proceedings under paragraph (a). If the person charged is

19  convicted or pleads guilty or nolo contendere, whether or not

20  an adjudication of guilt is entered by the court, the

21  emergency order shall become final.

22         (g)  Any affiliated party of a licensee removed from

23  office pursuant to this section is not eligible for reelection

24  or appointment to the position or to any other official

25  position in any licensee in this state except upon the written

26  consent of the office department. Any affiliated party of a

27  licensee who is removed, restricted, or prohibited from

28  participation in the affairs of a licensee pursuant to this

29  section may petition the office department for modification or

30  termination of the removal, restriction, or prohibition.

31  

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         (h)  Resignation or termination of an affiliated party

 2  of a licensee does not affect the office's department's

 3  jurisdiction to proceed under this subsection.

 4         (5)(a)  CONFLICT OF INTEREST.--An affiliated party of a

 5  licensee may not engage or participate, directly or

 6  indirectly, in any business or transaction conducted on behalf

 7  of or involving the licensee, subsidiary, or service

 8  corporation that would result in a conflict of the party's own

 9  personal interests with those of the licensee, subsidiary, or

10  service corporation with which he or she is affiliated,

11  unless:

12         1.  Such business or transactions are conducted in good

13  faith and are honest, fair, and reasonable to the licensee,

14  subsidiary, or service corporation and are on terms no more

15  favorable than would be offered to a disinterested third

16  party.

17         2.  A full disclosure of such business or transaction,

18  and the nature of the interest of the affiliated party of the

19  licensee, is made to the board of directors.

20         3.  Such business or transactions are approved in good

21  faith by the board of directors and any interested director

22  abstaining and such approval is recorded in the minutes.

23         4.  Any profits inuring to the affiliated party of a

24  licensee are not at the expense of the licensee, subsidiary,

25  or service corporation and do not prejudice the best interests

26  of the licensee, subsidiary, or service corporation in any

27  way.

28         5.  Such business or transactions do not represent a

29  breach of the fiduciary duty of an affiliated party of a

30  licensee and are not fraudulent, illegal, or ultra vires.

31  

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         (b)  Without limitation by any of the specific

 2  provisions of this section, the office may require the

 3  disclosure by affiliated parties of a licensee of their

 4  personal interests, directly or indirectly, in any business or

 5  transactions on behalf of or involving the licensee,

 6  subsidiary, or service corporation and of their control of or

 7  active participation in enterprises having activities related

 8  to the business of the licensee, subsidiary, or service

 9  corporation.

10         (c)  The following restrictions governing the conduct

11  of affiliated parties of a licensee are expressly specified,

12  but such specification is not to be construed in any manner as

13  excusing such parties from the observance of any other aspect

14  of the general fiduciary duty owed by such parties to the

15  licensee which they serve:

16         1.  A director of a licensee may not accept director

17  fees unless the director fees have been previously approved by

18  the board of directors and such fees represent reasonable

19  compensation for service as a director or member of a

20  committee. This subparagraph does not limit or preclude

21  reasonable compensation as otherwise authorized by paragraph

22  (a) for a director who also provides goods or services to the

23  licensee.

24         2.  An affiliated party of a licensee may not purchase

25  or otherwise obtain ownership of any asset of the licensee or

26  subsidiary at less than fair market value of such asset.

27         3.  An affiliated party of a licensee may not have any

28  interest, direct or indirect, of any evidence of indebtedness

29  of the licensee or subsidiary.

30         4.  An affiliated party of a licensee acting as proxy

31  for a stockholder of a licensee, subsidiary, or service

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  corporation may not, directly or indirectly, exercise,

 2  transfer, or delegate such vote or votes in any consideration

 3  of a private benefit or advantage. The voting rights of

 4  stockholders and directors may not be the subject of sale,

 5  barter, exchange, or similar transaction, directly or

 6  indirectly. Any affiliated party of a licensee who violates

 7  the provisions of this subparagraph is accountable to the

 8  licensee, subsidiary, or service corporation for any

 9  increment.

10         (6)(5)  ADMINISTRATIVE FINES; ENFORCEMENT.--

11         (a)  The office department may, in a proceeding

12  initiated pursuant to chapter 120, impose an administrative

13  fine against any person found in the proceeding to have

14  violated any provision of this code, a cease and desist order

15  of the office department, or any written agreement with the

16  office department. No proceeding shall be initiated and no

17  fine shall accrue until after the person has been notified in

18  writing of the nature of the violation and has been afforded a

19  reasonable period of time, as set forth in the notice, to

20  correct the violation and has failed to do so.

21         (b)  A fine imposed under this subsection may not

22  exceed the amounts specified in s. 624.4211, per violation.

23         (c)  The office department may, in addition to the

24  imposition of an administrative fine under this subsection,

25  also suspend or revoke the license or certificate of authority

26  of the licensee fined under this subsection.

27         (d)  Any administrative fine levied by the office

28  department under this subsection may be enforced by the office

29  department by appropriate proceedings in the circuit court of

30  the county in which the person resides or in which the

31  principal office of a licensee is located, or, in the case of

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  a foreign insurer or person not residing in this state, in

 2  Leon County. In any administrative or judicial proceeding

 3  arising under this section, a party may elect to correct the

 4  violation asserted by the office department, and, upon doing

 5  so, any fine shall cease to accrue; however, the election to

 6  correct the violation does not render any administrative or

 7  judicial proceeding moot. All fines collected under this

 8  section shall be paid to the Insurance Commissioner's

 9  Regulatory Trust Fund.

10         (e)  In imposing any administrative penalty or remedy

11  provided for under this section, the office department shall

12  take into account the appropriateness of the penalty with

13  respect to the size of the financial resources and the good

14  faith of the person charged, the gravity of the violation, the

15  history of previous violations, and other matters as justice

16  may require.

17         (f)  The imposition of an administrative fine under

18  this subsection may be in addition to any other penalty or

19  administrative fine authorized under this code.

20         (7)(6)  ADMINISTRATIVE PROCEDURES.--All administrative

21  proceedings brought under this section subsections (3), (4),

22  and (5) shall be conducted in accordance with chapter 120. Any

23  service required or authorized to be made by the office

24  department under this code shall be made by certified mail,

25  return receipt requested, delivered to the addressee only; by

26  personal delivery; or in accordance with chapter 48. The

27  service provided for herein shall be effective from the date

28  of delivery.

29         (8)(7)  OTHER LAWS NOT SUPERSEDED.--The provisions of

30  this section are in addition to other provisions of this code,

31  and shall not be construed to curtail, impede, replace, or

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  delete any other similar provision or power of the office

 2  department under the insurance code as defined in s. 624.01 or

 3  any power of the office department which may exist under the

 4  common law of this state. The procedures set forth in s.

 5  626.9581 do not apply to regulatory action taken pursuant to

 6  the provisions of this section.

 7         Section 2.  Paragraph (e) of subsection (2) of section

 8  624.316, Florida Statutes, is amended to read:

 9         624.316  Examination of insurers.--

10         (2)

11         (e)  The department shall adopt rules providing that,

12  upon agreement between the department and the insurer, an

13  examination under this section may be conducted by independent

14  certified public accountants, actuaries meeting criteria

15  specified by rule, and reinsurance specialists meeting

16  criteria specified by rule. The rules shall provide:

17         1.  That the agreement of the insurer is not required

18  if the department reasonably suspects criminal misconduct on

19  the part of the insurer.

20         2.  That the department shall provide the insurer with

21  a list of three firms acceptable to the department, and that

22  the insurer shall select the firm to conduct the examination

23  from the list provided by the department.

24         3.  that the insurer being examined must make payment

25  for the examination directly to the firm performing the

26  examination in accordance with the rates and terms established

27  agreed to by the department, the insurer, and the firm

28  performing the examination.

29         4.  That if the examination is conducted without the

30  consent of the insurer, the insurer must pay all reasonable

31  charges of the examining firm if the examination finds

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  impairment, insolvency, or criminal misconduct on the part of

 2  the insurer.

 3         Section 3.  Section 624.4095, Florida Statutes, is

 4  amended to read:

 5         624.4095  Premiums written; restrictions.--

 6         (1)  Whenever an insurer's ratio of actual or projected

 7  annual written premiums as adjusted in accordance with

 8  subsection (5)(4) to current or projected surplus as to

 9  policyholders as adjusted in accordance with subsection (6)(5)

10  exceeds 10 to 1 for gross written premiums or exceeds 4 to 1

11  for net written premiums, the office department shall suspend

12  the insurer's certificate of authority or establish by order

13  maximum gross or net annual premiums to be written by the

14  insurer consistent with maintaining the ratios specified

15  herein unless the insurer demonstrates to the office's

16  department's satisfaction that exceeding the ratios of this

17  section does not endanger the financial condition of the

18  insurer or endanger the interests of the insurer's

19  policyholders.

20         (2)  Projected annual net or gross premiums shall be

21  based on the actual writings to date for the insurer's current

22  calendar year or the insurer's writings for the previous

23  calendar year or both. Ratios shall be computed on an

24  annualized basis.

25         (3)  For the purposes of this section, gross premiums

26  written means direct premiums written and reinsurance assumed.

27         (4)  For the purposes of this section, surplus as to

28  policyholders for property and casualty insurers shall be

29  calculated as follows: (actual surplus as to policyholders)

30  minus (surplus as to policyholders of all subsidiary insurers

31  as allowed pursuant to s. 625.325).

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         (5)(4)  For the purposes of this section, for the

 2  calendar year ending December 31, 1990, and each subsequent

 3  year, premiums shall be calculated as the product of the

 4  actual or projected premiums and the following:

 5         (a)  For property insurance, 0.90.

 6         (b)  For casualty insurance, 1.25.

 7         (c)  For health insurance, 0.80.

 8         (d)  For all other kinds of insurance, 1.00.

 9         (6)(5)  This section shall not apply to:

10         (a)  Life insurance written by life or life and health

11  insurers; or

12         (b)  Life and health insurers which have a surplus as

13  to policyholders greater than $40 million and which have

14  written health insurance during each of the immediately

15  preceding five calendar years.

16         (7)(6)  For the purposes of this section, surplus as to

17  policyholders for life and health insurers shall be calculated

18  as follows: (actual or projected surplus as to policyholders)

19  minus (surplus as to policyholders required to be maintained

20  under s. 624.408 for liabilities relating to life insurance)

21  and minus (surplus as to policyholders of all subsidiary

22  insurers as allowed pursuant to s. 625.325).

23         Section 4.  Paragraph (c) of subsection (3) of section

24  624.610, Florida Statutes, is amended to read:

25         624.610  Reinsurance.--

26         (3)

27         (c)1.  Credit must be allowed when the reinsurance is

28  ceded to an assuming insurer that maintains a trust fund in a

29  qualified United States financial institution, as defined in

30  paragraph (5)(b), for the payment of the valid claims of its

31  United States ceding insurers and their assigns and successors

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  in interest. To enable the office department to determine the

 2  sufficiency of the trust fund, the assuming insurer shall

 3  report annually to the office department information

 4  substantially the same as that required to be reported on the

 5  NAIC Annual Statement form by authorized insurers. The

 6  assuming insurer shall submit to examination of its books and

 7  records by the office department and bear the expense of

 8  examination.

 9         2.a.  Credit for reinsurance must not be granted under

10  this subsection unless the form of the trust and any

11  amendments to the trust have been approved by:

12         (I)  The commissioner of the state in which the trust

13  is domiciled; or

14         (II)  The commissioner of another state who, pursuant

15  to the terms of the trust instrument, has accepted principal

16  regulatory oversight of the trust.

17         b.  The form of the trust and any trust amendments must

18  be filed with the commissioner of every state in which the

19  ceding insurer beneficiaries of the trust are domiciled. The

20  trust instrument must provide that contested claims are valid

21  and enforceable upon the final order of any court of competent

22  jurisdiction in the United States. The trust must vest legal

23  title to its assets in its trustees for the benefit of the

24  assuming insurer's United States ceding insurers and their

25  assigns and successors in interest. The trust and the assuming

26  insurer are subject to examination as determined by the

27  commissioner.

28         c.  The trust remains in effect for as long as the

29  assuming insurer has outstanding obligations due under the

30  reinsurance agreements subject to the trust. No later than

31  February 28 of each year, the trustee of the trust shall

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  report to the commissioner in writing the balance of the trust

 2  and list the trust's investments at the preceding year end,

 3  and shall certify that the trust will not expire prior to the

 4  following December 31.

 5         3.  The following requirements apply to the following

 6  categories of assuming insurer:

 7         a.  The trust fund for a single assuming insurer

 8  consists of funds in trust in an amount not less than the

 9  assuming insurer's liabilities attributable to reinsurance

10  ceded by United States ceding insurers, and, in addition, the

11  assuming insurer shall maintain a trusteed surplus of not less

12  than $20 million. Not less than 50 percent of the funds in the

13  trust covering the assuming insurer's liabilities attributable

14  to reinsurance ceded by United States ceding insurers and

15  trusteed surplus shall consist of assets of a quality

16  substantially similar to that required in part II of chapter

17  625. Clean, irrevocable, unconditional, and evergreen letters

18  of credit, issued or confirmed by a qualified United States

19  financial institution, as defined in paragraph (5)(a),

20  effective no later than December 31 of the year for which the

21  filing is made, and in the possession of the trust on or

22  before the filing date of its annual statement, may be used to

23  fund the remainder of the trust fund and trusteed surplus.

24         b.(I)  In the case of a group including incorporated

25  and individual unincorporated underwriters:

26         (A)  For reinsurance ceded under reinsurance agreements

27  with an inception, amendment, or renewal date on or after

28  August 1, 1995, the trust consists of a trusteed account in an

29  amount not less than the group's several liabilities

30  attributable to business ceded by United States domiciled

31  ceding insurers to any member of the group;

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 1         (B)  For reinsurance ceded under reinsurance agreements

 2  with an inception date on or before July 31, 1995, and not

 3  amended or renewed after that date, notwithstanding the other

 4  provisions of this section, the trust consists of a trusteed

 5  account in an amount not less than the group's several

 6  insurance and reinsurance liabilities attributable to business

 7  written in the United States; and

 8         (C)  In addition to these trusts, the group shall

 9  maintain in trust a trusteed surplus of which $100 million

10  must be held jointly for the benefit of the United States

11  domiciled ceding insurers of any member of the group for all

12  years of account.

13         (II)  The incorporated members of the group must not be

14  engaged in any business other than underwriting of a member of

15  the group, and are subject to the same level of regulation and

16  solvency control by the group's domiciliary regulator as the

17  unincorporated members.

18         (III)  Within 90 days after its financial statements

19  are due to be filed with the group's domiciliary regulator,

20  the group shall provide to the commissioner an annual

21  certification by the group's domiciliary regulator of the

22  solvency of each underwriter member or, if a certification is

23  unavailable, financial statements, prepared by independent

24  public accountants, of each underwriter member of the group.

25         Section 5.  Section 627.8401, Florida Statutes, is

26  created to read:

27         627.8401  Prohibited investments and loans.--A premium

28  finance company shall not directly or indirectly invest in or

29  lend its funds upon the security of any note or other evidence

30  of indebtedness of any director, officer, or controlling

31  stockholder of the premium finance company.

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 1         Section 6.  Subsection (2) of section 628.461, Florida

 2  Statutes, is amended to read:

 3         628.461  Acquisition of controlling stock.--

 4         (2)  This section does not apply to any acquisition of

 5  voting securities of a domestic stock insurer or of a

 6  controlling company by any person who, on July 1, 1976, is the

 7  owner of a majority of such voting securities or who, on or

 8  after July 1, 1976, becomes the owner of a majority of such

 9  voting securities with the approval of the department pursuant

10  to this section. Further, the provisions of this section shall

11  not apply to a change of ownership of a domestic insurer

12  resulting from changes within an insurance holding company of

13  which the insurer is a member, provided the insurer

14  establishes that no new person or entity will have the ability

15  to influence or control the activities of the insurer and that

16  the reorganization will not result in any changes in the

17  officers, directors, or business plan of the domestic insurer.

18         Section 7.  Subsection (3) of section 628.4615, Florida

19  Statutes, is amended to read:

20         628.4615  Specialty insurers; acquisition of

21  controlling stock, ownership interest, assets, or control;

22  merger or consolidation.--

23         (3)  This section does not apply to any acquisition of

24  voting securities or ownership interest of a specialty insurer

25  or of a controlling company by any person who, on July 9,

26  1986, is the owner of a majority of such voting securities or

27  ownership interest or who, on or after July 9, 1986, becomes

28  the owner of a majority of such voting securities or ownership

29  interest with the approval of the department pursuant to this

30  section. Further, the provisions of this section shall not

31  apply to a change of ownership of a specialty insurer

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    9-767A-03                                           See HB 831




 1  resulting from changes within a holding company of which the

 2  specialty insurer is a member, provided the specialty insurer

 3  establishes that no new person or entity will have the ability

 4  to influence or control the activities of the specialty

 5  insurer and that the reorganization will not result in any

 6  changes in the officers, directors, or business plan of the

 7  specialty insurer.

 8         Section 8.  Section 634.042, Florida Statutes, is

 9  created to read:

10         634.042  Prohibited investments and loans.--A motor

11  vehicle service agreement company shall not directly or

12  indirectly invest in or lend its funds upon the security of

13  any note or other evidence of indebtedness of any director,

14  officer, or controlling stockholder of the motor vehicle

15  service agreement company.

16         Section 9.  Section 634.3076, Florida Statutes, is

17  created to read:

18         634.3076  Prohibited investments and loans.--A home

19  warranty association shall not directly or indirectly invest

20  in or lend its funds upon the security of any note or other

21  evidence of indebtedness of any director, officer, or

22  controlling stockholder of the home warranty association.

23         Section 10.  Section 634.4062, Florida Statutes, is

24  created to read:

25         634.4062  Prohibited investments and loans.--A service

26  warranty association shall not directly or indirectly invest

27  in or lend its funds upon the security of any note or other

28  evidence of indebtedness of any director, officer, or

29  controlling stockholder of the service warranty association.

30         Section 11.  Section 641.263, Florida Statutes, is

31  created to read:

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 1         641.263  Risk-based capital.--

 2         (1)  For purposes of this section, the term:

 3         (a)  "Adjusted risk-based capital report" means a

 4  risk-based capital report which has been adjusted by the

 5  office in accordance with paragraph (2)(b).

 6         (b)  "Association" means the National Association of

 7  Insurance Commissioners.

 8         (c)  "Corrective order" means an order issued by the

 9  office specifying corrective actions which the office has

10  determined are required.

11         (d)  "Risk-based capital instructions" means the

12  risk-based capital report, including risk-based capital

13  instructions adopted by the association, as these risk-based

14  capital instructions may be amended by the association from

15  time to time in accordance with the procedures adopted by the

16  association.

17         (e)  "Risk-based capital level" means a health

18  maintenance organization's company action level risk-based

19  capital, regulatory action level risk-based capital,

20  authorized control level risk-based capital, or mandatory

21  control level risk-based capital. For purposes of this

22  paragraph, the term:

23         1.  "Company action level risk-based capital" means the

24  product of 2.0 and the health maintenance organization's

25  authorized control level risk-based capital.

26         2.  "Regulatory action level risk-based capital" means

27  the product of 1.5 and the health maintenance organization's

28  authorized control level risk-based capital.

29         3.  "Authorized control level risk-based capital" means

30  the number determined under the risk-based capital formula in

31  accordance with the risk-based capital instructions.

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 1         4.  "Mandatory control level risk-based capital" means

 2  the product of .70 and the authorized control level risk-based

 3  capital.

 4         (f)  "Risk-based capital plan" means a comprehensive

 5  financial plan containing the elements specified in paragraph

 6  (3)(b). If the office rejects the risk-based capital plan and

 7  the plan is revised by the health maintenance organization,

 8  with or without the office's recommendation, the plan shall be

 9  called the "revised risk-based capital plan."

10         (g)  "Risk-based capital report" means the report

11  required in subsection (2).

12         (h)  "Total adjusted capital" means the sum of:

13         1.  A health maintenance organization's net worth,

14  consisting of its statutory capital and surplus, as determined

15  in accordance with the statutory accounting applicable to the

16  annual financial statements required to be filed under s.

17  641.26.

18         2.  Such other items, if any, as the risk-based capital

19  instructions may provide.

20         (2)(a)  A health maintenance organization shall, on or

21  prior to April 1 of each year, prepare and submit to the

22  office a report of its risk-based capital levels as of the end

23  of the calendar year, in a form and containing such

24  information as is required by the risk-based capital

25  instructions. In addition, a health maintenance organization

26  shall file its risk-based capital report:

27         1.  With the association in accordance with the

28  risk-based capital instructions.

29         2.  With the chief insurance regulatory official in any

30  state in which the health maintenance organization is

31  authorized to do business. If such official has notified the

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 1  health maintenance organization of his or her request in

 2  writing, the health maintenance organization shall file its

 3  risk-based capital report no later than the later of 15 days

 4  after the receipt of notice to file its risk-based capital

 5  report with that state or April 1.

 6         (b)  A health maintenance organization's risk-based

 7  capital shall be determined in accordance with the formula set

 8  forth in the risk-based capital instructions. The formula

 9  shall take into account and may adjust for the covariance

10  between:

11         1.  Asset risks.

12         2.  Credit risks.

13         3.  Underwriting risks.

14         4.  All other business risks and such other relevant

15  risks as are set forth in the risk-based capital instructions,

16  determined in each case by applying the factors in the manner

17  set forth in the risk-based capital instructions.

18         (c)  The Legislature finds that an excess of capital

19  over the amount produced by the risk-based capital

20  requirements contained in this section and the formulas,

21  schedules, and instructions referenced in this section is

22  desirable in the health maintenance organization business.

23  Accordingly, health maintenance organizations should seek to

24  maintain capital above the risk-based capital levels required

25  by this section. Further, the Legislature finds that

26  additional capital is used and useful in the health

27  maintenance organization business and helps to secure a health

28  maintenance organization against various risks inherent in, or

29  affecting, such business and not accounted for or only

30  partially measured by the risk-based capital requirements

31  contained in this section.

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 1         (d)  If a health maintenance organization files a

 2  risk-based capital report that in the judgment of the office

 3  is inaccurate, the office shall adjust the risk-based capital

 4  report to correct the inaccuracy and shall notify the health

 5  maintenance organization of the adjustment. The notice shall

 6  contain a statement of the reason for the adjustment. A

 7  risk-based capital report as so adjusted is referred to as an

 8  "adjusted risk-based capital report."

 9         (3)(a)  A company action level event includes:

10         1.  The filing of a risk-based capital report by a

11  health maintenance organization that indicates that the health

12  maintenance organization's total adjusted capital is greater

13  than or equal to its regulatory action level risk-based

14  capital but less than its company action level risk-based

15  capital;

16         2.  Notification by the office to the health

17  maintenance organization of an adjusted risk-based capital

18  report that indicates the event described in subparagraph 1.,

19  provided the health maintenance organization does not

20  challenge the adjusted risk-based capital report under

21  subsection (7); or

22         3.  If, pursuant to the provisions of subsection (7), a

23  health maintenance organization challenges an adjusted

24  risk-based capital report that indicates the event described

25  in subparagraph 1., the notification by the office to the

26  health maintenance organization that the office has, after a

27  hearing, rejected the health maintenance organization's

28  challenge.

29         (b)  If a company action level event occurs, the health

30  maintenance organization shall prepare and submit to the

31  office a risk-based capital plan that shall:

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 1         1.  Identify the conditions that contribute to the

 2  company action level event.

 3         2.  Contain proposals of corrective actions that the

 4  health maintenance organization intends to take and that would

 5  be expected to result in the elimination of the company action

 6  level event.

 7         3.  Provide projections of the health maintenance

 8  organization's financial results in the current year and at

 9  least the 2 succeeding years, both in the absence of proposed

10  corrective actions and giving effect to the proposed

11  corrective actions, including projections of statutory balance

12  sheets, operating income, net income, capital and surplus, and

13  risk-based capital levels. The projections for both new and

14  renewal businesses might include separate projections for each

15  major line of business and might separately identify each

16  significant income, expense, and benefit component.

17         4.  Identify the key assumptions impacting the health

18  maintenance organization's projections and the sensitivity of

19  the projections to the assumptions.

20         5.  Identify the quality of, and problems associated

21  with, the health maintenance organization's business,

22  including, but not limited to, its assets, anticipated

23  business growth and associated surplus strain, extraordinary

24  exposure to risk, mix of business, and use of reinsurance, if

25  any, in each case.

26         (c)  The risk-based capital plan shall be submitted:

27         1.  Within 45 days after a company action level event;

28  or

29         2.  If the health maintenance organization challenges

30  an adjusted risk-based capital report pursuant to the

31  provisions of subsection (7), within 45 days after

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 1  notification to the health maintenance organization that the

 2  office has, after a hearing, rejected the health maintenance

 3  organization's challenge.

 4         (d)  Within 60 days after the submission by a health

 5  maintenance organization of a risk-based capital plan to the

 6  office, the office shall notify the health maintenance

 7  organization whether the risk-based capital plan shall be

 8  implemented or is, in the judgment of the office,

 9  unsatisfactory. If the office determines the risk-based

10  capital plan is unsatisfactory, the notification to the health

11  maintenance organization shall set forth the reasons for the

12  determination and may set forth proposed revisions which will

13  render the risk-based capital plan satisfactory in the

14  judgment of the office. Upon notification from the office, the

15  health maintenance organization shall prepare a revised

16  risk-based capital plan, which may incorporate by reference

17  any revisions proposed by the office, and shall submit the

18  revised risk-based capital plan to the office:

19         1.  Within 45 days after the notification from the

20  office; or

21         2.  If the health maintenance organization challenges

22  the notification from the office under the provisions of

23  subsection (7), within 45 days after a notification to the

24  health maintenance organization that the office has, after a

25  hearing, rejected the health maintenance organization's

26  challenge.

27         (e)  If the office notifies a health maintenance

28  organization that the health maintenance organization's

29  risk-based capital plan or revised risk-based capital plan is

30  unsatisfactory, the office may, at its discretion, subject to

31  the health maintenance organization's right to a hearing under

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 1  the provisions of subsection (7), specify in the notification

 2  that the notification constitutes a regulatory action level

 3  event.

 4         (f)  Each domestic health maintenance organization that

 5  files a risk-based capital plan or revised risk-based capital

 6  plan with the office shall file a copy of the risk-based

 7  capital plan or revised risk-based capital plan with the

 8  insurance office in any state in which the health maintenance

 9  organization is authorized to do business if:

10         1.  The state has a risk-based capital provision

11  substantially similar to the provisions of s. 641.264.

12         2.  The insurance office of that state has notified the

13  health maintenance organization of its request for the filing

14  in writing, in which case the health maintenance organization

15  shall file a copy of the risk-based capital plan or revised

16  risk-based capital plan in that state no later than the later

17  of:

18         a.  Fifteen days after the receipt of notice to file a

19  copy of its risk-based capital plan or revised risk-based

20  capital plan with the state; or

21         b.  The date on which the risk-based capital plan or

22  revised risk-based capital plan is filed under paragraph (c)

23  or paragraph (d).

24         (4)(a)  A regulatory action level event includes, with

25  respect to a health maintenance organization:

26         1.  The filing of a risk-based capital report by the

27  health maintenance organization that indicates that the health

28  maintenance organization's total adjusted capital is greater

29  than or equal to its authorized control level risk-based

30  capital but less than its regulatory action level risk-based

31  capital;

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 1         2.  Notification by the office to a health maintenance

 2  organization of an adjusted risk-based capital report that

 3  indicates the event described in subparagraph 1., provided the

 4  health maintenance organization does not challenge the

 5  adjusted risk-based capital report under the provisions of

 6  subsection (7);

 7         3.  If, pursuant to the provisions of subsection (7),

 8  the health maintenance organization challenges an adjusted

 9  risk-based capital report that indicates the event described

10  in subparagraph 1., the notification by the office to the

11  health maintenance organization that the office has, after a

12  hearing, rejected the health maintenance organization's

13  challenge;

14         4.  The failure of the health maintenance organization

15  to file a risk-based capital report by April 1, unless the

16  health maintenance organization has provided an explanation

17  for the failure that is satisfactory to the office and has

18  cured the failure within 10 days after April 1;

19         5.  The failure of the health maintenance organization

20  to submit a risk-based capital plan to the office within the

21  time period set forth in paragraph (3)(c);

22         6.  Notification by the office to the health

23  maintenance organization that:

24         a.  The risk-based capital plan or revised risk-based

25  capital plan submitted by the health maintenance organization

26  is, in the judgment of the office, unsatisfactory; and

27         b.  Notification constitutes a regulatory action level

28  event with respect to the health maintenance organization,

29  provided the health maintenance organization has not

30  challenged the determination under subsection (7);

31  

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 1         7.  If, pursuant to subsection (7), the health

 2  maintenance organization challenges a determination by the

 3  office under subparagraph 6., the notification by the office

 4  to the health maintenance organization that the office has,

 5  after a hearing, rejected the health maintenance

 6  organization's challenge;

 7         8.  Notification by the office to the health

 8  maintenance organization that the health maintenance

 9  organization has failed to adhere to its risk-based capital

10  plan or revised risk-based capital plan, but only if the

11  failure has a substantial adverse effect on the ability of the

12  health maintenance organization to eliminate the company

13  action level event in accordance with its risk-based capital

14  plan or revised risk-based capital plan and the office has so

15  stated in the notification, provided the health maintenance

16  organization has not challenged the determination under

17  subsection (7); or

18         9.  If, pursuant to subsection (7), the health

19  maintenance organization challenges a determination by the

20  office under subparagraph 8., the notification by the office

21  to the health maintenance organization that the office has,

22  after a hearing, rejected the health maintenance

23  organization's challenge.

24         (b)  If a regulatory action level event occurs, the

25  office shall:

26         1.  Require the health maintenance organization to

27  prepare and submit a risk-based capital plan or, if

28  applicable, a revised risk-based capital plan.

29         2.  Perform such examination or analysis as the office

30  deems necessary of the assets, liabilities, and operations of

31  

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 1  the health maintenance organization, including a review of its

 2  risk-based capital plan or revised risk-based capital plan.

 3         3.  Subsequent to the examination or analysis, issue a

 4  corrective order specifying such corrective actions as the

 5  office shall determine are required.

 6         (c)  In determining corrective actions, the office may

 7  take into account factors the office deems relevant with

 8  respect to the health maintenance organization based upon the

 9  office's examination or analysis of the assets, liabilities,

10  and operations of the health maintenance organization,

11  including, but not limited to, the results of any sensitivity

12  tests undertaken pursuant to the risk-based capital

13  instructions. The risk-based capital plan or revised

14  risk-based capital plan shall be submitted:

15         1.  Within 45 days after the occurrence of the

16  regulatory action level event;

17         2.  If the health maintenance organization challenges

18  an adjusted risk-based capital report pursuant to subsection

19  (7) and the challenge is not frivolous in the judgment of the

20  office, within 45 days after the notification to the health

21  maintenance organization that the office has, after a hearing,

22  rejected the health maintenance organization's challenge; or

23         3.  If the health maintenance organization challenges a

24  revised risk-based capital plan pursuant to subsection (7) and

25  the challenge is not frivolous in the judgment of the office,

26  within 45 days after the notification to the health

27  maintenance organization that the office has, after a hearing,

28  rejected the health maintenance organization's challenge.

29         (d)  The office may retain actuaries, investment

30  experts, and other consultants as may be necessary in the

31  judgment of the office to review the health maintenance

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 1  organization's risk-based capital plan or revised risk-based

 2  capital plan; examine or analyze the assets, liabilities, and

 3  operations, including contractual relationships, of the health

 4  maintenance organization; and formulate the corrective order

 5  with respect to the health maintenance organization. The fees,

 6  costs, and expenses relating to consultants shall be borne by

 7  the affected health maintenance organization or such other

 8  party as directed by the office.

 9         (5)(a)  An authorized control level event includes:

10         1.  The filing of a risk-based capital report by the

11  health maintenance organization that indicates that the health

12  maintenance organization's total adjusted capital is greater

13  than or equal to its mandatory control level risk-based

14  capital but less than its authorized control level risk-based

15  capital;

16         2.  Notification by the office to the health

17  maintenance organization of an adjusted risk-based capital

18  report that indicates the event described in subparagraph 1.,

19  provided the health maintenance organization does not

20  challenge the adjusted risk-based capital report under

21  subsection (7);

22         3.  If, pursuant to subsection (7), the health

23  maintenance organization challenges an adjusted risk-based

24  capital report that indicates the event described in

25  subparagraph 1., notification by the office to the health

26  maintenance organization that the office has, after a hearing,

27  rejected the health maintenance organization's challenge;

28         4.  The failure of the health maintenance organization

29  to respond, in a manner satisfactory to the office, to a

30  corrective order, provided the health maintenance organization

31  

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  has not challenged the corrective order under subsection (7);

 2  or

 3         5.  If the health maintenance organization has

 4  challenged a corrective order under subsection (7) and the

 5  office has, after a hearing, rejected the challenge or

 6  modified the corrective order, the failure of the health

 7  maintenance organization to respond, in a manner satisfactory

 8  to the office, to the corrective order subsequent to rejection

 9  or modification by the office.

10         (b)  If an authorized control level event occurs, with

11  respect to a health maintenance organization, the office

12  shall:

13         1.  Take such actions as are required under paragraph

14  (4)(b) regarding a health maintenance organization with

15  respect to which regulatory action level event has occurred;

16  or

17         2.  If the office deems it to be in the best interests

18  of the subscribers and creditors of the health maintenance

19  organization and of the public, take such actions as are

20  necessary to cause the health maintenance organization to be

21  placed under regulatory control under chapter 631. If the

22  office takes such actions, the authorized control level event

23  shall be deemed sufficient grounds for the office to take

24  action under chapter 631 and the office shall have the rights,

25  powers, and duties with respect to the health maintenance

26  organization as are set forth in such chapter. If the office

27  takes actions under this subparagraph pursuant to an adjusted

28  risk-based capital report, the health maintenance organization

29  shall be entitled to such protections as are afforded to

30  health maintenance organizations under the summary proceedings

31  provisions of s. 120.574.

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         (6)(a)  A mandatory control level event includes:

 2         1.  The filing of a risk-based capital report by the

 3  health maintenance organization that indicates that the health

 4  maintenance organization's total adjusted capital is less than

 5  its mandatory control level risk-based capital;

 6         2.  Notification by the office to the health

 7  maintenance organization of an adjusted risk-based capital

 8  report that indicates the event described in subparagraph 1.,

 9  provided the health maintenance organization does not

10  challenge the adjusted risk-based capital report under

11  subsection (7); or

12         3.  If, pursuant to subsection (7), the health

13  maintenance organization challenges an adjusted risk-based

14  capital report that indicates the event described in

15  subparagraph 1., notification by the office to the health

16  maintenance organization that the office has, after a hearing,

17  rejected the health maintenance organization's challenge.

18         (b)  If a mandatory control level event occurs, the

19  office shall take such actions as are necessary to place the

20  health maintenance organization under regulatory control under

21  chapter 631. If the office takes such actions, the mandatory

22  control level event shall be deemed sufficient grounds for the

23  office to take action under chapter 631 and the office shall

24  have the rights, powers, and duties with respect to the health

25  maintenance organization as are set forth in such chapter. If

26  the office takes actions under this paragraph pursuant to an

27  adjusted risk-based capital report, the health maintenance

28  organization shall be entitled to the summary proceedings

29  protections of s. 120.574. However, the office may forego

30  action for up to 90 days after the mandatory control level

31  event if the office finds there is a reasonable expectation

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  that the mandatory control level event may be eliminated

 2  within the 90-day period.

 3         (7)  Upon the occurrence of any of the following

 4  events, the health maintenance organization shall have the

 5  right to a confidential official hearing, on record, at which

 6  the health maintenance organization may challenge any

 7  determination or action by the office. The health maintenance

 8  organization shall notify the office of its request for a

 9  hearing within 5 days after the notification by the office

10  under this subsection. Upon receipt of the health maintenance

11  organization's request for a hearing, the office shall set a

12  date for the hearing, which shall be no less than 10 nor more

13  than 30 days after the date of the health maintenance

14  organization's request. Such events are:

15         (a)  Notification to a health maintenance organization

16  by the office of an adjusted risk-based capital report.

17         (b)  Notification to a health maintenance organization

18  by the office that:

19         1.  The health maintenance organization's risk-based

20  capital plan or revised risk-based capital plan is

21  unsatisfactory.

22         2.  Notification constitutes a regulatory action level

23  event with respect to the health maintenance organization.

24         (c)  Notification to a health maintenance organization

25  by the office that the health maintenance organization has

26  failed to adhere to its risk-based capital plan or revised

27  risk-based capital plan and that the failure has a substantial

28  adverse effect on the ability of the health maintenance

29  organization to eliminate the company action level event with

30  respect to the health maintenance organization in accordance

31  

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  with its risk-based capital plan or revised risk-based capital

 2  plan.

 3         (d)  Notification to a health maintenance organization

 4  by the office of a corrective order with respect to the health

 5  maintenance organization.

 6         (8)(a)  This section is supplemental to any other

 7  provisions of this part and shall not preclude or limit any

 8  other powers or duties of the office as provided in the

 9  insurance code.

10         (b)  The office may adopt reasonable rules necessary to

11  implement this section.

12         (c)  The office may exempt from the application of this

13  section a health maintenance organization that:

14         1.  Writes direct business only in this state;

15         2.  Assumes no reinsurance in excess of 5 percent of

16  direct premium written, and writes direct annual premiums for

17  comprehensive medical business of $2 million or less; or

18         3.  Is a limited health service organization that

19  covers less than 2,000 lives.

20         (9)  There shall be no liability on the part of, and no

21  cause of action shall arise against, the commissioner or the

22  office or its employees or agents for any action taken by them

23  in the performance of their powers and duties under this

24  section.

25         (10)  All notices by the office to a health maintenance

26  organization that may result in regulatory action under this

27  section shall be effective upon dispatch if transmitted by

28  registered or certified mail or, in the case of any other

29  transmission, shall be effective upon the health maintenance

30  organization's receipt of notice.

31  

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1         (11)  For risk-based capital reports required to be

 2  filed in 2004, 2005, and 2006 by health maintenance

 3  organizations with respect to their 2003, 2004, and 2005

 4  annual statement data, the following requirements shall apply

 5  in lieu of the provisions of subsections (3), (4), (5), and

 6  (6):

 7         (a)  If a company action level event occurs with

 8  respect to a health maintenance organization, the office shall

 9  take no regulatory action under this section.

10         (b)  If a regulatory action level event as provided in

11  subparagraphs (4)(a)1., 2., or 3. occurs, the office shall

12  take the actions required under subsection (3).

13         (c)  If a regulatory action level event as provided in

14  subparagraphs (4)(a)4., 5., 6., 7., 8., or 9. occurs or an

15  authorized control level event occurs, the office shall take

16  the actions required under subsection (4) with respect to the

17  health maintenance organization.

18         (d)  If a mandatory control level event occurs with

19  respect to a health maintenance organization, the office shall

20  take the actions required under subsection (5) with respect to

21  the health maintenance organization.

22  

23  Nothing in this subsection restricts or otherwise limits the

24  office's authority under other provisions of the insurance

25  code.

26         (12)  It is the intent of the Legislature that the

27  risk-based capital instructions, risk-based capital reports,

28  adjusted risk-based capital reports, risk-based capital plans,

29  revised risk-based capital plans, and related documents,

30  materials, or information are intended solely for use by the

31  office in monitoring the solvency of health maintenance

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  organizations and the need for possible corrective action with

 2  respect to health maintenance organizations and shall not be

 3  used by the office for ratemaking, considered or introduced as

 4  evidence in any rate proceeding, or used by the office to

 5  calculate or derive any elements of an appropriate premium

 6  level or rate of return for any line of insurance that a

 7  health maintenance organization or any affiliate is authorized

 8  to write.

 9         Section 12.  Section 651.029, Florida Statutes, is

10  created to read:

11         651.029  Prohibited investments and loans.--A provider

12  shall not directly or indirectly invest in or lend its funds

13  upon the security of any note or other evidence of

14  indebtedness of any director, officer, or controlling

15  stockholder of the provider.

16         Section 13.  Paragraph (a) of subsection (15) of

17  section 440.20, Florida Statutes, is amended to read:

18         440.20  Time for payment of compensation; penalties for

19  late payment.--

20         (15)(a)  The department shall examine on an ongoing

21  basis claims files in accordance with s. 624.3161 and may

22  impose fines pursuant to s. 624.310(6)(5) and this chapter in

23  order to identify questionable claims-handling techniques,

24  questionable patterns or practices of claims, or a pattern of

25  repeated unreasonably controverted claims by carriers, as

26  defined in s. 440.02, providing services to employees pursuant

27  to this chapter. If the department finds such questionable

28  techniques, patterns, or repeated unreasonably controverted

29  claims as constitute a general business practice of a carrier,

30  as defined in s. 440.02, the department shall take appropriate

31  action so as to bring such general business practices to a

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    Florida Senate - 2003                                  SB 2518
    9-767A-03                                           See HB 831




 1  halt pursuant to s. 440.38(3) or may impose penalties pursuant

 2  to s. 624.4211. The department may initiate investigations of

 3  questionable techniques, patterns, practices, or repeated

 4  unreasonably controverted claims. The department may by rule

 5  establish forms and procedures for corrective action plans and

 6  for auditing carriers.

 7         Section 14.  This act shall take effect October 1,

 8  2003.

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