Florida Senate - 2017 SENATOR AMENDMENT
Bill No. CS/HB 7085, 1st Eng.
Ì655850-Î655850
LEGISLATIVE ACTION
Senate . House
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Floor: 1/RS/2R .
05/05/2017 11:31 AM .
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Senator Bradley moved the following:
1 Senate Amendment (with title amendment)
2
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.—
66 (3) PROVIDER ELIGIBILITY; AUTHORIZATION.—
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.
102 (12) CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM
103 REIMBURSEMENT ALLOWANCES.—
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.
142
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:
165 (2) TEMPORARY TOTAL DISABILITY.—
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.
180 (3) PERMANENT IMPAIRMENT BENEFITS.—
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.
228 (4) TEMPORARY PARTIAL DISABILITY.—
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).
335
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.
504
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.
707
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.
851
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.