Florida Senate - 2017                          SENATOR AMENDMENT
       Bill No. CS/HB 7085, 1st Eng.
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/RS/2R         .                                
             05/05/2017 11:31 AM       .                                

       Senator Bradley moved the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (40) of section 440.02, Florida
    6  Statutes, is amended to read:
    7         440.02 Definitions.—When used in this chapter, unless the
    8  context clearly requires otherwise, the following terms shall
    9  have the following meanings:
   10         (40) “Specificity” means information on the petition for
   11  benefits sufficient to put the employer or carrier on notice of
   12  the exact statutory classification and outstanding time period
   13  for each requested benefit, the specific amount of each
   14  requested benefit, the calculation used for computing the
   15  requested benefit, of benefits being requested and includes a
   16  detailed explanation of any benefits received that should be
   17  increased, decreased, changed, or otherwise modified. If the
   18  petition is for medical benefits, the information must shall
   19  include specific details as to why such benefits are being
   20  requested, why such benefits are medically necessary, and why
   21  current treatment, if any, is not sufficient. Any petition
   22  requesting alternate or other medical care, including, but not
   23  limited to, petitions requesting psychiatric or psychological
   24  treatment, must specifically identify the physician, as defined
   25  in s. 440.13(1), who is recommending such treatment. A copy of a
   26  report from such physician making the recommendation for
   27  alternate or other medical care must shall also be attached to
   28  the petition. A judge of compensation claims may shall not order
   29  such treatment if a physician is not recommending such
   30  treatment.
   31         Section 2. Subsection (3) of section 440.093, Florida
   32  Statutes, is amended to read:
   33         440.093 Mental and nervous injuries.—
   34         (3) Subject to the payment of permanent benefits under s.
   35  440.15, in no event shall temporary benefits for a compensable
   36  mental or nervous injury be paid for more than 6 months after
   37  the date of maximum medical improvement for the injured
   38  employee’s physical injury or injuries, which shall be included
   39  in the maximum number of period of 104 weeks as provided in s.
   40  440.15(2) and (4). Mental or nervous injuries are compensable
   41  only in accordance with the terms of this section.
   42         Section 3. Paragraph (c) of subsection (3) of section
   43  440.105, Florida Statutes, is amended to read:
   44         440.105 Prohibited activities; reports; penalties;
   45  limitations.—
   46         (3) Whoever violates any provision of this subsection
   47  commits a misdemeanor of the first degree, punishable as
   48  provided in s. 775.082 or s. 775.083.
   49         (c) Except for an attorney who is retained by or for an
   50  injured worker and who receives a fee or other consideration
   51  from or on behalf of such worker, it is unlawful for any
   52  attorney or other person, in his or her individual capacity or
   53  in his or her capacity as a public or private employee, or for
   54  any firm, corporation, partnership, or association to receive
   55  any fee or other consideration or any gratuity from a person on
   56  account of services rendered for a person in connection with any
   57  proceedings arising under this chapter, unless such fee,
   58  consideration, or gratuity is approved by a judge of
   59  compensation claims or by the Deputy Chief Judge of Compensation
   60  Claims.
   61         Section 4. Paragraphs (d) and (i) of subsection (3) and
   62  paragraph (a) of subsection (12) of section 440.13, Florida
   63  Statutes, are amended to read:
   64         440.13 Medical services and supplies; penalty for
   65  violations; limitations.—
   67         (d) A carrier must respond, by telephone or in writing,
   68  must authorize, deny, or inform the provider of material
   69  deficiencies that prevent authorization or denial in response to
   70  a request for authorization from an authorized health care
   71  provider by the close of the third business day after receipt of
   72  the request. A carrier who fails to respond to a written request
   73  for authorization for referral for medical treatment by the
   74  close of the third business day after receipt of the request
   75  consents to the medical necessity for such treatment. All such
   76  requests must be made to the carrier. Notice to the employer
   77  carrier does not include notice to the carrier employer.
   78         (i) Notwithstanding paragraph (d), a claim for specialist
   79  consultations, surgical operations, physiotherapeutic or
   80  occupational therapy procedures, X-ray examinations, or special
   81  diagnostic laboratory tests that cost more than $1,000 and other
   82  specialty services that the department identifies by rule is not
   83  valid and reimbursable unless the services have been expressly
   84  authorized by the carrier, unless the carrier has failed to
   85  authorize, deny, or inform the provider of material deficiencies
   86  that prevent authorization or denial respond within 10 days
   87  after to a written request for authorization, or unless
   88  emergency care is required. The insurer shall authorize such
   89  consultation or procedure unless the health care provider or
   90  facility is not authorized, unless such treatment is not in
   91  accordance with practice parameters and protocols of treatment
   92  established in this chapter, or unless a judge of compensation
   93  claims has determined that the consultation or procedure is not
   94  medically necessary, not in accordance with the practice
   95  parameters and protocols of treatment established in this
   96  chapter, or otherwise not compensable under this chapter.
   97  Authorization of a treatment plan does not constitute express
   98  authorization for purposes of this section, except to the extent
   99  the carrier provides otherwise in its authorization procedures.
  100  This paragraph does not limit the carrier’s obligation to
  101  identify and disallow overutilization or billing errors.
  104         (a)1. A three-member panel is created, consisting of the
  105  Chief Financial Officer, or the Chief Financial Officer’s
  106  designee, and two members to be appointed by the Governor,
  107  subject to confirmation by the Senate, one member who, on
  108  account of present or previous vocation, employment, or
  109  affiliation, shall be classified as a representative of
  110  employers, the other member who, on account of previous
  111  vocation, employment, or affiliation, shall be classified as a
  112  representative of employees. The Governor shall appoint a new
  113  member to the panel within 120 days after a vacancy occurs. If
  114  the Governor fails to fill such vacancy, the Chief Financial
  115  Officer shall appoint a new member to the panel within 120 days
  116  after the expiration of the Governor’s opportunity to fill the
  117  vacancy, subject to confirmation by the Senate. If the Chief
  118  Financial Officer fails to fill such vacancy, authority to
  119  appoint such member reverts to the Governor.
  120         2. The panel shall annually adopt determine statewide
  121  schedules of maximum reimbursement allowances for medically
  122  necessary treatment, care, and attendance provided by
  123  physicians, hospitals, ambulatory surgical centers, work
  124  hardening programs, pain programs, and durable medical
  125  equipment. The maximum reimbursement allowances for inpatient
  126  hospital care shall be based on a schedule of per diem rates, to
  127  be approved by the three-member panel no later than March 1,
  128  1994, to be used in conjunction with a precertification manual
  129  as determined by the department, including maximum hours in
  130  which an outpatient may remain in observation status, which
  131  shall not exceed 23 hours. All compensable charges for hospital
  132  outpatient care shall be reimbursed at 75 percent of usual and
  133  customary charges, except as otherwise provided by this
  134  subsection. Annually, the three-member panel shall adopt
  135  schedules of maximum reimbursement allowances for physicians,
  136  hospital inpatient care, hospital outpatient care, ambulatory
  137  surgical centers, work-hardening programs, and pain programs. An
  138  individual physician, hospital, ambulatory surgical center, pain
  139  program, or work-hardening program shall be reimbursed either
  140  the agreed-upon contract price or the maximum reimbursement
  141  allowance in the appropriate schedule.
  143  The department, as requested, shall provide data to the panel,
  144  including, but not limited to, utilization trends in the
  145  workers’ compensation health care delivery system. The
  146  department shall provide the panel with an annual report
  147  regarding the resolution of medical reimbursement disputes and
  148  any actions pursuant to subsection (8). The department shall
  149  provide administrative support and service to the panel to the
  150  extent requested by the panel. For prescription medication
  151  purchased under the requirements of this subsection, a
  152  dispensing practitioner shall not possess such medication unless
  153  payment has been made by the practitioner, the practitioner’s
  154  professional practice, or the practitioner’s practice management
  155  company or employer to the supplying manufacturer, wholesaler,
  156  distributor, or drug repackager within 60 days of the dispensing
  157  practitioner taking possession of that medication.
  158         Section 5. Paragraph (a) of subsection (2), paragraph (d)
  159  of subsection (3), paragraphs (a) and (e) of subsection (4), and
  160  subsection (6) of section 440.15, Florida Statutes, are amended,
  161  and subsection (13) is added to that section, to read:
  162         440.15 Compensation for disability.—Compensation for
  163  disability shall be paid to the employee, subject to the limits
  164  provided in s. 440.12(2), as follows:
  166         (a) Subject to subparagraph (3)(d)3. and subsections
  167  subsection (7) and (13), in case of disability total in
  168  character but temporary in quality, 66 2/3 or 66.67 percent of
  169  the average weekly wages shall be paid to the employee during
  170  the continuance thereof, not to exceed 104 weeks except as
  171  provided in this subsection and, s. 440.12(1), and s. 440.14(3).
  172  Once the employee reaches the maximum number of weeks allowed,
  173  or the employee reaches overall the date of maximum medical
  174  improvement, whichever occurs earlier, temporary disability
  175  benefits shall cease and the injured worker’s permanent
  176  impairment shall be determined. If the employee reaches the
  177  maximum number of weeks allowed, but has not reached overall
  178  maximum medical improvement, benefits shall be provided pursuant
  179  to subparagraph (3)(d)3.
  181         (d) After the employee has been certified by a doctor as
  182  having reached maximum medical improvement or 6 weeks before the
  183  expiration of temporary benefits, whichever occurs earlier, the
  184  certifying doctor shall evaluate the condition of the employee
  185  and assign an impairment rating, using the impairment schedule
  186  referred to in paragraph (b). If the certification and
  187  evaluation are performed by a doctor other than the employee’s
  188  treating doctor, the certification and evaluation must be
  189  submitted to the treating doctor, the employee, and the carrier
  190  within 10 days after the evaluation. The treating doctor must
  191  indicate to the carrier agreement or disagreement with the other
  192  doctor’s certification and evaluation.
  193         1. The certifying doctor shall issue a written report to
  194  the employee and the carrier certifying that maximum medical
  195  improvement has been reached, stating the impairment rating to
  196  the body as a whole, and providing any other information
  197  required by the department by rule. The carrier shall establish
  198  an overall maximum medical improvement date and permanent
  199  impairment rating, based upon all such reports.
  200         2. Within 14 days after the carrier’s knowledge of each
  201  maximum medical improvement date and impairment rating to the
  202  body as a whole upon which the carrier is paying benefits, the
  203  carrier shall report such maximum medical improvement date and,
  204  when determined, the overall maximum medical improvement date
  205  and associated impairment rating to the department in a format
  206  as set forth in department rule. If the employee has not been
  207  certified as having reached overall maximum medical improvement
  208  before the expiration of 254 98 weeks after the date temporary
  209  disability benefits begin to accrue, the carrier shall notify
  210  the treating doctor of the requirements of this section.
  211         3. If an employee receiving benefits under subsection (2)
  212  has not reached overall maximum medical improvement before
  213  receiving the maximum number of weeks of temporary disability
  214  benefits, the maximum number of weeks are extended for up to an
  215  additional 26 weeks. If the employee has not reached overall
  216  maximum medical improvement after receiving the additional weeks
  217  allowed under this subparagraph, a judge of compensation claims,
  218  upon petition, must determine the employee’s current eligibility
  219  for benefits under this subsection and subsection (1).
  220         4. If an employee receiving benefits under subsection (4)
  221  has not reached overall maximum medical improvement before
  222  receiving the maximum number of weeks of temporary disability
  223  benefits, the employee shall receive benefits under this
  224  subsection in accordance with the greatest single impairment
  225  rating assigned to the employee. Impairment benefits received
  226  under this subparagraph must be credited against indemnity
  227  benefits subsequently due to the employee.
  229         (a) Subject to subparagraph (3)(d)3. and subsections
  230  subsection (7) and (13), in case of temporary partial
  231  disability, compensation shall be equal to 80 percent of the
  232  difference between 80 percent of the employee’s average weekly
  233  wage and the salary, wages, and other remuneration the employee
  234  is able to earn postinjury, as compared weekly; however, weekly
  235  temporary partial disability benefits may not exceed an amount
  236  equal to 66 2/3 or 66.67 percent of the employee’s average
  237  weekly wage at the time of accident. In order to simplify the
  238  comparison of the preinjury average weekly wage with the salary,
  239  wages, and other remuneration the employee is able to earn
  240  postinjury, the department may by rule provide for payment of
  241  the initial installment of temporary partial disability benefits
  242  to be paid as a partial week so that payment for remaining weeks
  243  of temporary partial disability can coincide as closely as
  244  possible with the postinjury employer’s work week. The amount
  245  determined to be the salary, wages, and other remuneration the
  246  employee is able to earn shall in no case be less than the sum
  247  actually being earned by the employee, including earnings from
  248  sheltered employment. Benefits shall be payable under this
  249  subsection only if overall maximum medical improvement has not
  250  been reached and the medical conditions resulting from the
  251  accident create restrictions on the injured employee’s ability
  252  to return to work.
  253         (e) Subject to subparagraph (3)(d)3. and subsections (7)
  254  and (13), such benefits shall be paid during the continuance of
  255  such disability, not to exceed a period of 104 weeks, as
  256  provided by this subsection and subsection (2). Once the injured
  257  employee reaches the maximum number of weeks, temporary
  258  disability benefits cease and the injured worker’s permanent
  259  impairment must be determined. If the employee is terminated
  260  from postinjury employment based on the employee’s misconduct,
  261  temporary partial disability benefits are not payable as
  262  provided for in this section. The department shall by rule
  263  specify forms and procedures governing the method and time for
  264  payment of temporary disability benefits for dates of accidents
  265  before January 1, 1994, and for dates of accidents on or after
  266  January 1, 1994.
  267         (6) EMPLOYEE REFUSES EMPLOYMENT.—If an injured employee
  268  refuses employment suitable to the capacity thereof, offered to
  269  or procured therefor, such employee shall not be entitled to any
  270  compensation at any time during the continuance of such refusal
  271  unless at any time in the opinion of the judge of compensation
  272  claims such refusal is justifiable. Time periods for the payment
  273  of benefits in accordance with this section shall be counted in
  274  determining the limitation of benefits as provided for in
  275  paragraphs (2)(a), (3)(c), and (4)(b).
  276         (13)MAXIMUM BENEFITS ALLOWED.An employee may not receive
  277  more than 260 weeks of temporary total disability benefits
  278  pursuant to subsection (2), temporary partial disability
  279  benefits pursuant to subsection (4), or temporary total
  280  disability benefits pursuant to s. 440.491, or a combination
  281  thereof, except as provided in subparagraph (3)(d)3.
  282         Section 6. Subsections (2), (4), (5), and (7) of section
  283  440.192, Florida Statutes, are amended to read:
  284         440.192 Procedure for resolving benefit disputes.—
  285         (2) Upon receipt, the Office of the Judges of Compensation
  286  Claims shall review each petition and shall dismiss each
  287  petition or any portion of such a petition that does not on its
  288  face meet the requirements of this section and the definition of
  289  specificity under s. 440.02 and specifically identify or itemize
  290  the following:
  291         (a) The name, address, and telephone number, and social
  292  security number of the employee.
  293         (b) The name, address, and telephone number of the
  294  employer.
  295         (c) A detailed description of the injury and cause of the
  296  injury, including the county in this state or, if outside this
  297  state, the state location of the occurrence and the date or
  298  dates of the accident.
  299         (d) A detailed description of the employee’s job, work
  300  responsibilities, and work the employee was performing when the
  301  injury occurred.
  302         (e) The specific time period for which compensation and the
  303  specific classification of compensation were not timely
  304  provided.
  305         (f) The specific date of maximum medical improvement,
  306  character of disability, and specific statement of all benefits
  307  or compensation that the employee is seeking. A claim for
  308  permanent benefits must include the specific date of maximum
  309  medical improvement and the specific date that such permanent
  310  benefits are claimed to begin.
  311         (g) All specific travel costs to which the employee
  312  believes she or he is entitled, including dates of travel and
  313  purpose of travel, means of transportation, and mileage and
  314  including the date the request for mileage was filed with the
  315  carrier and a copy of the request filed with the carrier.
  316         (h) A specific listing of all medical charges alleged
  317  unpaid, including the name and address of the medical provider,
  318  the amounts due, and the specific dates of treatment.
  319         (i) The type or nature of treatment care or attendance
  320  sought and the justification for such treatment. If the employee
  321  is under the care of a physician for an injury identified under
  322  paragraph (c), a copy of the physician’s request, authorization,
  323  or recommendation for treatment, care, or attendance must
  324  accompany the petition.
  325         (j) The specific amount of compensation claimed and the
  326  methodology used to calculate the average weekly wage, if the
  327  average weekly wage calculated by the employer or carrier is
  328  disputed; otherwise, the average weekly wage and corresponding
  329  compensation calculated by the employer or carrier are presumed
  330  to be accurate.
  331         (k)(j) Specific explanation of any other disputed issue
  332  that a judge of compensation claims will be called to rule upon.
  333         (l) Evidence of a good faith effort to resolve the dispute
  334  pursuant to subsection (4).
  336  The dismissal of any petition or portion of such a petition
  337  under this subsection section is without prejudice and does not
  338  require a hearing.
  339         (4) Before filing a petition, the claimant, or, if the
  340  claimant is represented by counsel, the claimant’s attorney,
  341  must make a good faith effort to resolve the dispute. The
  342  petition must include evidence and a certification by the
  343  claimant or, if the claimant is represented by counsel, the
  344  claimant’s attorney, stating that the claimant, or attorney if
  345  the claimant is represented by counsel, has made a good faith
  346  effort to resolve the dispute and that the claimant or attorney
  347  was unable to resolve the dispute with the carrier or employer,
  348  if self-insured. If the petition is not dismissed under
  349  subsection (2), the judge of compensation claims must review the
  350  evidence required under this subsection and determine, using
  351  independent discretion, whether the claimant or claimant’s
  352  attorney made a good faith effort to resolve the dispute. Upon
  353  determining that the claimant or claimant’s attorney did not
  354  make a good faith effort to resolve the dispute, the judge of
  355  compensation claims must dismiss the petition and may impose
  356  sanctions to ensure compliance with this section. Such sanctions
  357  may include an order to pay to the carrier or employer the
  358  reasonable expenses incurred because of the filing of the
  359  petition, including attorney fees, not to exceed $200 per hour,
  360  based on the number of necessary hours related to the
  361  determination that the claimant or, if the claimant is
  362  represented by counsel, the claimant’s attorney has not made a
  363  good faith effort to resolve the dispute.
  364         (5)(a) All motions to dismiss must state with particularity
  365  the basis for the motion. The judge of compensation claims shall
  366  enter an order upon such motions without hearing, unless good
  367  cause for hearing is shown. Dismissal of any petition or portion
  368  of a petition under this subsection is without prejudice.
  369         (b) Upon motion that a petition or portion of a petition be
  370  dismissed for lack of specificity, the judge of compensation
  371  claims shall enter an order on the motion, unless stipulated in
  372  writing by the parties, within 10 days after the motion is
  373  filed, or, if good cause for hearing is shown, within 20 days
  374  after hearing on the motion. When any petition or portion of a
  375  petition is dismissed for lack of specificity under this
  376  subsection, the claimant must be allowed 20 days after the date
  377  of the order of dismissal in which to file an amended petition.
  378  Any grounds for dismissal for lack of specificity under this
  379  section which are not asserted within 30 days after receipt of
  380  the petition for benefits are thereby waived.
  381         (7) Notwithstanding the provisions of s. 440.34, a judge of
  382  compensation claims may not award attorney attorney’s fees
  383  payable by the employer or carrier for services expended or
  384  costs incurred before prior to the filing of a petition that
  385  does not meet the requirements of this section.
  386         Section 7. Paragraphs (c) and (j) of subsection (4) of
  387  section 440.25, Florida Statutes, are amended to read:
  388         440.25 Procedures for mediation and hearings.—
  389         (4)
  390         (c) The judge of compensation claims shall give the
  391  interested parties at least 14 days’ advance notice of the final
  392  hearing, served upon the interested parties by mail or by
  393  electronic means approved by the Deputy Chief Judge. At least 5
  394  days before the final hearing, the claimant’s attorney must file
  395  with the judge of compensation claims and serve on all
  396  interested parties a personal attestation detailing his or her
  397  hours to date, which specifically allocates the hours by each
  398  benefit claimed, and accounting for hours relating to multiple
  399  benefits in a manner that apportions such hours by percentage,
  400  in whole numbers, to each benefit.
  401         (j) A judge of compensation claims may not award interest
  402  on unpaid medical bills and the amount of such bills may not be
  403  used to calculate the amount of interest awarded. Regardless of
  404  the date benefits were initially requested, attorney attorney’s
  405  fees do not attach under this subsection until 45 30 days after
  406  the date the carrier or self-insured employer receives the
  407  petition.
  408         Section 8. Section 440.34, Florida Statutes, is amended to
  409  read
  410         440.34 Attorney Attorney’s fees; costs.—
  411         (1) A judge of compensation claims may award attorney fees
  412  payable to the claimant pursuant to this section to be paid by
  413  the employer or carrier. An employer or carrier may not pay a
  414  fee, gratuity, or other consideration may not be paid for a
  415  claimant in connection with any proceedings arising under this
  416  chapter, unless approved by the judge of compensation claims or
  417  court having jurisdiction over such proceedings. Attorney fees
  418  awarded Any attorney’s fee approved by a judge of compensation
  419  claims for benefits secured on behalf of a claimant must equal
  420  to 20 percent of the first $5,000 of the amount of the benefits
  421  secured, 15 percent of the next $5,000 of the amount of the
  422  benefits secured, 10 percent of the remaining amount of the
  423  benefits secured to be provided during the first 10 years after
  424  the date the claim is filed, and 5 percent of the benefits
  425  secured after 10 years. A The judge of compensation claims shall
  426  not approve a compensation order, a joint stipulation for lump
  427  sum settlement, a stipulation or agreement between a claimant
  428  and his or her attorney, or any other agreement related to
  429  benefits under this chapter which provides for an attorney’s fee
  430  in excess of the amount permitted by this section. The judge of
  431  compensation claims is not required to approve any retainer
  432  agreement between the claimant and his or her attorney is not
  433  subject to approval by a judge of compensation claims but must
  434  be filed with the Office of the Judges of Compensation Claims.
  435  Notwithstanding s. 440.22, attorney fees are a lien upon
  436  compensation payable to the claimant. A retainer agreement may
  437  not place any portion of the employee’s compensation into an
  438  escrow account until benefits are secured. The retainer
  439  agreement as to fees and costs may not be for compensation in
  440  excess of the amount allowed under this subsection or subsection
  441  (7).
  442         (2)(a) In awarding a claimant’s attorney fees attorney’s
  443  fee, a the judge of compensation claims must shall consider only
  444  those benefits secured by the attorney. An Attorney is not
  445  entitled to attorney’s fees are not due in any of the following
  446  circumstances:
  447         1. For representation in any issue that was ripe, due, and
  448  owing and that reasonably could have been addressed, but was not
  449  addressed, during the pendency of other issues for the same
  450  injury;
  451         2. On claimant attorney hours related to a benefit upon
  452  which the claimant did not prevail; or
  453         3. On claimant attorney hours that the judge of
  454  compensation claims apportions to benefits upon which the
  455  claimant did not prevail, pursuant to paragraph (5)(d).
  456         (b) The amount, statutory basis, and type of benefits
  457  obtained through legal representation shall be listed on all
  458  attorney attorney’s fees awarded by a the judge of compensation
  459  claims. For purposes of this section, the term “benefits
  460  secured” does not include future medical benefits to be provided
  461  on any date more than 5 years after the date the petition claim
  462  is filed. In the event an offer to settle an issue pending
  463  before a judge of compensation claims, including attorney
  464  attorney’s fees as provided for in this section, is communicated
  465  in writing to the claimant or the claimant’s attorney at least
  466  30 days before prior to the trial date on such issue, for
  467  purposes of calculating the amount of attorney attorney’s fees
  468  to be taxed against the employer or carrier, the term “benefits
  469  secured” includes shall be deemed to include only that amount
  470  awarded to the claimant above the amount specified in the offer
  471  to settle. If multiple issues are pending before a the judge of
  472  compensation claims, said offer of settlement must shall address
  473  each issue pending and shall state explicitly whether or not the
  474  offer on each issue is severable. The written offer must shall
  475  also unequivocally state whether or not it includes medical
  476  witness fees and expenses and all other costs associated with
  477  the claim.
  478         (3) If a any party prevails should prevail in any
  479  proceedings before a judge of compensation claims or court,
  480  there shall be taxed against the nonprevailing party the
  481  reasonable costs of such proceedings, not to include attorney
  482  attorney’s fees. A claimant is responsible for the payment of
  483  her or his own attorney attorney’s fees, except that a claimant
  484  is entitled to recover attorney fees an attorney’s fee in an
  485  amount equal to the amount provided for in subsection (1),
  486  subsection (5), or subsection (6) (7) from a carrier or
  487  employer:
  488         (a) Against whom she or he successfully asserts a petition
  489  for medical benefits only, if the claimant has not filed or is
  490  not entitled to file at such time a claim for disability,
  491  permanent impairment, wage-loss, or death benefits, arising out
  492  of the same accident;
  493         (b) In a any case in which the employer or carrier files a
  494  response to petition denying benefits with the Office of the
  495  Judges of Compensation Claims and the injured person has
  496  employed an attorney in the successful prosecution of the
  497  petition;
  498         (c) In a proceeding in which a carrier or employer denies
  499  that an accident occurred for which compensation benefits are
  500  payable, and the claimant prevails on the issue of
  501  compensability; or
  502         (d) In cases in which where the claimant successfully
  503  prevails in proceedings filed under s. 440.24 or s. 440.28.
  505  Regardless of the date benefits were initially requested,
  506  attorney attorney’s fees do shall not attach under this
  507  subsection until 45 30 days after the date the carrier or
  508  employer, if self-insured, receives the petition.
  509         (4) In such cases in which the claimant is responsible for
  510  the payment of her or his own attorney’s fees, such fees are a
  511  lien upon compensation payable to the claimant, notwithstanding
  512  s. 440.22.
  513         (4)(5) If any proceedings are had for review of any claim,
  514  award, or compensation order before any court, the court may, in
  515  its discretion, award the injured employee or dependent attorney
  516  fees an attorney’s fee to be paid by the employer or carrier, in
  517  its discretion, which shall be paid as the court may direct.
  518         (5)(a) As used in this subsection, the term:
  519         1.“Attorney hours” means the number of hours necessary for
  520  the claimant’s attorney to obtain the benefits secured, as
  521  determined by a judge of compensation claims. The term only
  522  includes hours expended by the claimant’s attorney reasonably
  523  related to claimed benefits upon which the claimant prevailed.
  524         2.“Customary fee” means the average hourly rate that an
  525  attorney for a claimant customarily charges in the same locality
  526  for similar legal services under this chapter, as determined by
  527  a judge of compensation claims.
  528         3.“Departure fee” means the amount of attorney fees
  529  calculated by a judge of compensation claims in place of the fee
  530  allowed under subsection (1) when attorney fees are due under
  531  this section.
  532         (b) A departure fee under this subsection is in place of,
  533  not in addition to, the amount allowed under subsection (1) or
  534  subsection (6).
  535         (c) Upon a petition for a departure fee, a judge of
  536  compensation claims may depart from the attorney fees amount set
  537  forth in subsection (1) upon a finding that the attorney fees
  538  provided for in that subsection are less than 60 percent or
  539  greater than 125 percent of the customary fee when the amount
  540  allowed under subsection (1) is converted to an hourly rate by
  541  dividing that amount by the attorney hours necessary to obtain
  542  the benefits secured.
  543         (d)1. When resolving a petition for a departure fee under
  544  this subsection, a judge of compensation claims must determine
  545  the number of attorney hours by making detailed findings that
  546  specifically allocate and account for the attorney hours to each
  547  benefit claimed by the claimant’s attorney that, in the
  548  independent discretion of the judge of compensation claims,
  549  reasonably relate to:
  550         a. Benefits upon which the claimant prevailed;
  551         b. Benefits upon which the claimant did not prevail; and
  552         c. Multiple benefits, regarding which the judge of
  553  compensation claims shall exercise independent discretion and
  554  apportion such hours by percentage, in whole numbers, to each
  555  benefit claimed.
  556         2.A judge of compensation claims must reduce the number of
  557  attorney hours if the judge of compensation claims independently
  558  determines that the number of attorney hours is excessive.
  559         (e) A judge of compensation claims may determine the
  560  customary fee and is not limited to an average hourly rate or
  561  number of attorney hours pled by a party. In determining the
  562  customary fee, the judge of compensation claims may rely on
  563  evidence or take notice of credible data, including attorney fee
  564  data on file with the Office of the Judges of Compensation
  565  Claims or The Florida Bar. The judge of compensation claims may
  566  not exceed the amount or hours pled by the claimant’s attorney.
  567         (f) If a departure is permitted pursuant to paragraph (c),
  568  a judge of compensation claims must consider the following
  569  factors when departing from the amount set forth in subsection
  570  (1):
  571         1. The time and labor reasonably required, the novelty and
  572  difficulty of the questions involved, and the skill required to
  573  properly perform the legal services as established by evidence
  574  or as independently determined by the judge of compensation
  575  claims.
  576         2. The customary fee.
  577         3. The experience, reputation, and ability of the attorney
  578  or attorneys providing services.
  579         4. The time limits imposed by the circumstances.
  580         5. The contingency or certainty of a claimant’s attorney
  581  fee, taking into account any retainer agreement filed under this
  582  section.
  583         6. The volume of hours expended by the claimant’s attorney
  584  which were devoted to issues upon which the claimant prevailed,
  585  and the volume of hours expended devoted to issues upon which
  586  the claimant did not prevail.
  587         7. Whether the total fee available under this section in
  588  relation to the amount involved in the controversy is excessive.
  589         8. Whether the total fee available under this section in
  590  relation to the amount of benefits secured is excessive.
  591         9. Whether the departure fee sought by the claimant’s
  592  attorney is excessive.
  593         10. Whether the departure fee sought by the claimant’s
  594  attorney shocks the conscience as excessive.
  595         (g) A judge of compensation claims shall determine the
  596  hourly rate used to compute the departure fee awarded under this
  597  subsection, in $1 increments, based upon consideration of the
  598  factors in paragraph (f). A judge of compensation claims may
  599  exercise independent judgment in setting the hourly rate and is
  600  not limited to an hourly rate pled by a party. However, the
  601  hourly rate may not exceed $200 per hour.
  602         (h) The departure fee must be the attorney hours determined
  603  under paragraph (d) multiplied by the hourly rate determined
  604  under paragraph (g). The claimant is responsible for attorney
  605  fees pursuant to his or her retainer agreement which exceed the
  606  departure fee.
  607         (i) The employer or carrier may contest the departure fee
  608  awarded under this subsection within 20 calendar days after the
  609  entry of the departure fee award if the number of attorney hours
  610  determined by the presiding judge of compensation claims under
  611  paragraph (d) exceeds 125 percent of the number of hours the
  612  employer’s or carrier’s attorney attests were devoted to the
  613  defense of the benefits secured. Upon the filing of a request by
  614  the employer or carrier, the departure fee award must be vacated
  615  and reviewed de novo upon the existing record by a judge of
  616  compensation claims in a different district as assigned by the
  617  Deputy Chief Judge of Compensation Claims. The reviewing judge
  618  of compensation claims must issue an order determining the
  619  departure fee, making all determinations and findings required
  620  under this subsection. The judge of compensation claims must
  621  issue the order within 30 calendar days after receiving the
  622  assignment. This paragraph does not apply to cases settled under
  623  s. 440.20(11) or if a stipulation has been filed resolving the
  624  claimant’s attorney fees.
  625         (6) A judge of compensation claims may not enter an order
  626  approving the contents of a retainer agreement that permits
  627  placing any portion of the employee’s compensation into an
  628  escrow account until benefits have been secured.
  629         (7) If an attorney attorney’s fee is owed under paragraph
  630  (3)(a), a the judge of compensation claims may approve an
  631  alternative attorney attorney’s fee not to exceed $1,500 only
  632  once per accident, based on a maximum hourly rate of $200 $150
  633  per hour, if the judge of compensation claims expressly finds
  634  that the attorney attorney’s fee amount provided for in
  635  subsection (1), based on benefits secured, results in an
  636  effective hourly rate of less than $200 per hour fails to fairly
  637  compensate the attorney for disputed medical-only claims as
  638  provided in paragraph (3)(a) and the circumstances of the
  639  particular case warrant such action. The attorney fees under
  640  this subsection are in place of, not in addition to, any
  641  attorney fees available under this section.
  642         Section 9. Section 440.345, Florida Statutes, is amended to
  643  read:
  644         440.345 Reporting of attorney attorney’s fees.—All fees
  645  paid to attorneys for services rendered under this chapter shall
  646  be reported to the Office of the Judges of Compensation Claims
  647  as the Division of Administrative Hearings requires by rule. A
  648  carrier must specify in its report the total amount of attorney
  649  fees paid for and the total number of attorney hours spent on
  650  services related to the defense of petitions, and the total
  651  amount of attorney fees paid for services unrelated to the
  652  defense of petitions.
  653         Section 10. Paragraph (b) of subsection (6) of section
  654  440.491, Florida Statutes, is amended to read:
  655         440.491 Reemployment of injured workers; rehabilitation.—
  656         (6) TRAINING AND EDUCATION.—
  657         (b) When an employee who has attained maximum medical
  658  improvement is unable to earn at least 80 percent of the
  659  compensation rate and requires training and education to obtain
  660  suitable gainful employment, the employer or carrier shall pay
  661  the employee additional training and education temporary total
  662  compensation benefits while the employee receives such training
  663  and education for a period not to exceed 26 weeks, which period
  664  may be extended for an additional 26 weeks or less, if such
  665  extended period is determined to be necessary and proper by a
  666  judge of compensation claims. The benefits provided under this
  667  paragraph are shall not be in addition to the maximum number of
  668  104 weeks as specified in s. 440.15(2). However, a carrier or
  669  employer is not precluded from voluntarily paying additional
  670  temporary total disability compensation beyond that period. If
  671  an employee requires temporary residence at or near a facility
  672  or an institution providing training and education which is
  673  located more than 50 miles away from the employee’s customary
  674  residence, the reasonable cost of board, lodging, or travel must
  675  be borne by the department from the Workers’ Compensation
  676  Administration Trust Fund established by s. 440.50. An employee
  677  who refuses to accept training and education that is recommended
  678  by the vocational evaluator and considered necessary by the
  679  department will forfeit any additional training and education
  680  benefits and any additional compensation payment for lost wages
  681  under this chapter. The carrier shall notify the injured
  682  employee of the availability of training and education benefits
  683  as specified in this chapter. The Department of Financial
  684  Services shall include information regarding the eligibility for
  685  training and education benefits in informational materials
  686  specified in ss. 440.207 and 440.40.
  687         Section 11. Section 627.211, Florida Statutes, is amended
  688  to read:
  689         627.211 Deviations and departures; workers’ compensation
  690  and employer’s liability insurances.—
  691         (1) Except as provided in subsection (7), every member or
  692  subscriber to a rating organization shall, as to workers’
  693  compensation or employer’s liability insurance, adhere to the
  694  filings made on its behalf by such organization; except that any
  695  such insurer may make written application to the office for
  696  permission to file a uniform percentage decrease or increase to
  697  be applied to the premiums produced by the rating system so
  698  filed for a kind of insurance, for a class of insurance which is
  699  found by the office to be a proper rating unit for the
  700  application of such uniform percentage decrease or increase, or
  701  for a subdivision of workers’ compensation or employer’s
  702  liability insurance:
  703         (a) Comprised of a group of manual classifications which is
  704  treated as a separate unit for ratemaking purposes; or
  705         (b) For which separate expense provisions are included in
  706  the filings of the rating organization.
  708  Such application shall specify the basis for the modification
  709  and shall be accompanied by the data upon which the applicant
  710  relies. A copy of the application and data shall be sent
  711  simultaneously to the rating organization.
  712         (2) Every member or subscriber to a rating organization
  713  may, as to workers’ compensation and employer’s liability
  714  insurance, file a plan or plans to use deviations that vary
  715  according to factors present in each insured’s individual risk.
  716  The insurer that files for the deviations provided in this
  717  subsection shall file the qualifications for the plans,
  718  schedules of rating factors, and the maximum deviation factors
  719  which shall be subject to the approval of the office pursuant to
  720  s. 627.091. The actual deviation which shall be used for each
  721  insured that qualifies under this subsection may not exceed the
  722  maximum filed deviation under that plan and shall be based on
  723  the merits of each insured’s individual risk as determined by
  724  using schedules of rating factors which shall be applied
  725  uniformly. Insurers shall maintain statistical data in
  726  accordance with the schedule of rating factors. Such data shall
  727  be available to support the continued use of such varying
  728  deviations.
  729         (3) In considering an application for the deviation, the
  730  office shall give consideration to the applicable principles for
  731  ratemaking as set forth in ss. 627.062 and 627.072 and the
  732  financial condition of the insurer. In evaluating the financial
  733  condition of the insurer, the office may consider: (1) the
  734  insurer’s audited financial statements and whether the
  735  statements provide unqualified opinions or contain significant
  736  qualifications or “subject to” provisions; (2) any independent
  737  or other actuarial certification of loss reserves; (3) whether
  738  workers’ compensation and employer’s liability reserves are
  739  above the midpoint or best estimate of the actuary’s reserve
  740  range estimate; (4) the adequacy of the proposed rate; (5)
  741  historical experience demonstrating the profitability of the
  742  insurer; (6) the existence of excess or other reinsurance that
  743  contains a sufficiently low attachment point and maximums that
  744  provide adequate protection to the insurer; and (7) other
  745  factors considered relevant to the financial condition of the
  746  insurer by the office. The office shall approve the deviation if
  747  it finds it to be justified, it would not endanger the financial
  748  condition of the insurer, and it would not constitute predatory
  749  pricing. The office shall disapprove the deviation if it finds
  750  that the resulting premiums would be excessive, inadequate, or
  751  unfairly discriminatory, would endanger the financial condition
  752  of the insurer, or would result in predatory pricing. The
  753  insurer may not use a deviation unless the deviation is
  754  specifically approved by the office. An insurer may apply the
  755  premiums approved pursuant to s. 627.091 or its uniform
  756  deviation approved pursuant to this section to a particular
  757  insured according to underwriting guidelines filed with and
  758  approved by the office, such approval to be based on ss. 627.062
  759  and 627.072.
  760         (4) Each deviation permitted to be filed shall be effective
  761  for a period of 1 year unless terminated, extended, or modified
  762  with the approval of the office. If at any time after a
  763  deviation has been approved the office finds that the deviation
  764  no longer meets the requirements of this code, it shall notify
  765  the insurer in what respects it finds that the deviation fails
  766  to meet such requirements and specify when, within a reasonable
  767  period thereafter, the deviation shall be deemed no longer
  768  effective. The notice shall not affect any insurance contract or
  769  policy made or issued prior to the expiration of the period set
  770  forth in the notice.
  771         (5) For purposes of this section, the office, when
  772  considering the experience of any insurer, shall consider the
  773  experience of any predecessor insurer when the business and the
  774  liabilities of the predecessor insurer were assumed by the
  775  insurer pursuant to an order of the office which approves the
  776  assumption of the business and the liabilities.
  777         (6) The office shall submit an annual report to the
  778  President of the Senate and the Speaker of the House of
  779  Representatives by January 15 of each year which evaluates
  780  competition in the workers’ compensation insurance market in
  781  this state. The report must contain an analysis of the
  782  availability and affordability of workers’ compensation coverage
  783  and whether the current market structure, conduct, and
  784  performance are conducive to competition, based upon economic
  785  analysis and tests. The purpose of this report is to aid the
  786  Legislature in determining whether changes to the workers’
  787  compensation rating laws are warranted. The report must also
  788  document that the office has complied with the provisions of s.
  789  627.096 which require the office to investigate and study all
  790  workers’ compensation insurers in the state and to study the
  791  data, statistics, schedules, or other information as it finds
  792  necessary to assist in its review of workers’ compensation rate
  793  filings.
  794         (7)Without approval of the office, a member or subscriber
  795  to a rating organization may depart from the filings made on its
  796  behalf by a rating organization for a period of 12 months by a
  797  uniform decrease of up to 5 percent to be applied uniformly to
  798  the premiums resulting from the approved rates for the policy
  799  period. The member or subscriber must file an informational
  800  departure statement with the office within 30 days after initial
  801  use of such departure, specifying the percentage of the
  802  departure from the approved rates and an explanation of how the
  803  departure will be applied. If the departure is to be applied
  804  over a subsequent 12-month period, the member or subscriber must
  805  file a supplemental informational departure statement pursuant
  806  to this subsection at least 30 days before the end of the
  807  current period. If the office determines that a departure
  808  violates the applicable principles for ratemaking under ss.
  809  627.062 and 627.072, would result in predatory pricing, or
  810  imperils the financial condition of the member or subscriber,
  811  the office must issue an order specifying its findings and
  812  stating the time period within which the departure expires,
  813  which must be within a reasonable time period after the order is
  814  issued. The order does not affect an insurance contract or
  815  policy made or issued before the departure expiration period set
  816  forth in the order.
  817         Section 12. (1) The Department of Financial Services, in
  818  consultation with the three-member panel, shall contract with an
  819  independent consultant to evaluate Florida’s current
  820  reimbursement methodology for medical services provided by
  821  hospitals and ambulatory surgical centers pursuant to s. 440.13,
  822  Florida Statutes. The study must evaluate the feasibility of
  823  adopting other reimbursement methods, including group health
  824  outpatient reimbursement rates. The study must include an
  825  evaluation of the payments, prices, utilization, and outcomes
  826  associated with each of the reimbursement methods. The
  827  consultant shall submit a report with findings and
  828  recommendations to the Speaker of the House of Representatives
  829  and the President of the Senate by November 1, 2017.
  830         (2) Effective July 1, 2017, the sum of $50,000 in
  831  nonrecurring funds from the Workers’ Compensation Administration
  832  Trust Fund is appropriated to the Department of Financial
  833  Services for the purpose of funding the study.
  834         Section 13. (1) The Office of Insurance Regulation shall
  835  contract with an independent consultant to evaluate the
  836  competition, availability, and affordability of workers’
  837  compensation insurance in Florida, which evaluation must include
  838  a review of the current administered pricing rating system,
  839  including deviations authorized under s. 627.211(7), to evaluate
  840  the advantages and disadvantages of a loss cost system and to
  841  evaluate other mechanisms that can be used to increase
  842  competition in the marketplace. The consultant shall submit a
  843  report of its findings and recommendations to the Governor, the
  844  Senate, and the House of Representatives no later than November
  845  1, 2017.
  846         (2) Effective July 1, 2017, the sum of $25,000 in
  847  nonrecurring funds from the Workers’ Compensation Administration
  848  Trust Fund is appropriated to the Office of Insurance Regulation
  849  for the purpose of funding the study.
  850         Section 14. This act shall take effect July 1, 2017.
  852  ================= T I T L E  A M E N D M E N T ================
  853  And the title is amended as follows:
  854         Delete everything before the enacting clause
  855  and insert:
  856                        A bill to be entitled                      
  857         An act relating to workers’ compensation insurance;
  858         amending s. 440.02, F.S.; redefining the term
  859         “specificity”; amending s. 440.093, F.S.; conforming a
  860         provision to changes made by the act; amending s.
  861         440.105, F.S.; revising a prohibition against
  862         receiving certain fees, consideration, or gratuities
  863         under certain circumstances; amending s. 440.13, F.S.;
  864         requiring carriers to authorize, deny, or inform
  865         providers of certain material deficiencies preventing
  866         authorization or denial in response to certain
  867         requests by such providers; revising construction
  868         relating to notice to employers and carriers; revising
  869         a condition under which claims for specified specialty
  870         services are deemed valid and reimbursable; requiring
  871         the Governor, or the Chief Financial Officer, in
  872         certain circumstances, to appoint a member to fill a
  873         vacancy on the three-member panel within specified
  874         timeframes; requiring the annual adoption of statewide
  875         schedules of maximum reimbursement allowances by the
  876         panel; amending s. 440.15, F.S.; revising conditions,
  877         limits, requirements, and other provisions relating to
  878         temporary total disability benefits and temporary
  879         partial disability benefits; amending s. 440.192,
  880         F.S.; revising conditions when the Office of the
  881         Judges of Compensation Claims must dismiss petitions
  882         for benefits; revising requirements for such
  883         petitions; revising construction relating to
  884         dismissals of petitions or portions of such petitions;
  885         requiring claimants or claimants’ attorneys to make a
  886         good faith effort to resolve disputes before filing
  887         petitions; requiring petitions to include evidence of
  888         such efforts; providing procedures and requirements
  889         for judges of compensation claims in reviewing and
  890         adjudicating such petitions; authorizing such judges
  891         to order sanctions under certain circumstances,
  892         including an order to pay attorney fees up to a
  893         specified hourly rate; providing that certain
  894         dismissed petitions or portions thereof are without
  895         prejudice; requiring judges of compensation claims to
  896         enter orders on certain motions to dismiss within
  897         specified timeframes; revising a condition under which
  898         such judges may not award certain attorney fees;
  899         amending s. 440.25, F.S.; requiring a claimant’s
  900         attorney to file and serve, by a specified time before
  901         the final hearing, a personal attestation relating to
  902         the attorney’s hours to date; revising the timeframe
  903         under which certain attorney fees attach; amending s.
  904         440.34, F.S.; deleting a provision that prohibits
  905         judges of compensation claims from approving certain
  906         agreements; revising provisions relating to retainer
  907         agreements; deleting a condition specifying when
  908         attorney fees are a lien upon compensation payable to
  909         the claimant; revising circumstances under which
  910         attorney fees are not due to claimants; revising a
  911         condition under a provision relating to attorney fees
  912         on medical-only claims; revising the timeframe under
  913         which certain attorney fees attach; defining terms;
  914         providing procedures, conditions, and requirements for
  915         the determination of customary fees and departure fees
  916         by judges of compensation claims; specifying factors
  917         that must be considered by judges of compensation
  918         claims when departing from certain amounts; providing
  919         requirements in determining hourly rates used to
  920         compute departure fees; specifying a limit to hourly
  921         rates; providing a calculation for the departure fee;
  922         providing that claimants are responsible for certain
  923         attorney fees that exceed departure fees; authorizing
  924         employers or carriers to contest, under certain
  925         circumstances, awarded departure fee amounts within a
  926         specified timeframe; providing procedures for
  927         reviewing and adjudicating a contested departure fee
  928         award; providing applicability; deleting a provision
  929         prohibiting judges of compensation claims from
  930         approving certain retainer agreements; revising the
  931         maximum hourly rates for alternative attorney fees
  932         awarded under certain circumstances; providing
  933         construction; conforming provisions to changes made by
  934         the act; conforming cross-references; amending s.
  935         440.345, F.S.; revising requirements for a carrier’s
  936         reporting of attorney fees to the Office of the Judges
  937         of Compensation Claims; amending s. 440.491, F.S.;
  938         conforming a provision to changes made by the act;
  939         revising a provision that provides for forfeiture of
  940         certain compensation if an employee refuses to accept
  941         certain training and education; amending s. 627.211,
  942         F.S.; authorizing rating organization members or
  943         subscribers to depart up a specified percentage from
  944         certain filings without approval from the Office of
  945         Insurance Regulation for a specified timeframe;
  946         requiring such members or subscribers to file
  947         informational departure statements with the office
  948         within a specified timeframe; requiring such members
  949         or subscribers, under certain circumstances, to file
  950         supplemental informational departure statements within
  951         a specified timeframe; requiring the office to issue a
  952         specified order if it finds the order violates certain
  953         ratemaking principles, would result in predatory
  954         pricing, or imperils the financial condition of the
  955         member or subscriber; providing construction;
  956         requiring the Department of Financial Services, in
  957         consultation with the three-member panel, to contract
  958         with an independent consultant to conduct a specified
  959         study; requiring the consultant to submit a report to
  960         the Legislature by a specified date; providing an
  961         appropriation; requiring the office to contract with
  962         an independent consultant to make certain evaluations;
  963         requiring such consultant to submit a report to the
  964         Governor and Legislature by a specified date;
  965         providing an appropriation; providing an effective
  966         date.