Senate Bill 1406

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    Florida Senate - 1998                                  SB 1406

    By Senator Clary





    7-970-98

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.05, F.S.; authorizing the

  4         Division of Workers' Compensation of the

  5         Department of Labor and Employment Security to

  6         approve and revoke certificates of exemption;

  7         amending s. 440.105, F.S.; providing penalties;

  8         providing a time limitation for bringing an

  9         action under s. 440.105(4), F.S.; amending s.

10         440.107, F.S.; authorizing the division to

11         obtain employer work records and issue

12         subpoenas to compel the attendance of witnesses

13         and the production of documents; providing

14         limited immunity for witnesses; providing a

15         penalty; providing an effective date.

16

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

18

19         Section 1.  Subsections (3) and (4) of section 440.05,

20  Florida Statutes, are amended, present subsections (5) and (6)

21  of that section are redesignated as subsections (6) and (7),

22  respectively, and a new subsection (5) is added to that

23  section, to read:

24         440.05  Election of exemption; revocation of election;

25  notice; certification.--

26         (3)  Each sole proprietor, partner, or officer of a

27  corporation who is actively engaged in the construction

28  industry and who elects an exemption from this chapter or who,

29  after electing such exemption, revokes that exemption, must

30  mail a written notice to such effect to the division on a form

31  prescribed by the division. The notice of election to be

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  1  exempt from the provisions of this chapter must be notarized

  2  and under oath. The election must list the name, federal tax

  3  identification number, social security number, and all

  4  certified or registered licenses issued pursuant to chapter

  5  489 held by the person seeking the exemption. The form must

  6  identify each sole proprietorship, partnership, or corporation

  7  that employs the person electing the exemption and must list

  8  the social security number or federal tax identification

  9  number of each such employer. In addition, the election form

10  must provide that the sole proprietor, partner, or officer

11  electing an exemption is not entitled to benefits under this

12  chapter, must provide that the election does not exceed

13  exemption limits for officers and partnerships provided in s.

14  440.02, and must certify that any employees of the sole

15  proprietor, partner, or officer electing an exemption are

16  covered by workers' compensation insurance. Upon receipt of

17  the notice of the election to be exempt and a determination

18  that the notice meets the requirements of this subsection, the

19  division shall issue a certification of the election to the

20  sole proprietor, partner, or officer. The division may,

21  however, revoke the notice or cancel the certification of a

22  person who does not meet the requirements of s.

23  440.02(13)(d)1. defining independent contractor, or s.

24  440.02(13)(d)8., relating to sole proprietors, corporate

25  officers, and partners. The certificate of election must list

26  the names of the sole proprietorship, partnership, or

27  corporation listed in the request for exemption. A new

28  certificate of election must be obtained each time the person

29  is employed by a new sole proprietorship, partnership, or

30  corporation that is not listed on the certificate of election.

31  A copy of the certificate of election must be sent to each

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  1  workers' compensation carrier identified in the request for

  2  exemption. The certification of the election is valid until

  3  the sole proprietor, partner, or officer revokes her or his

  4  election. Upon filing a notice of revocation of election, a

  5  sole proprietor, partner, or officer who is a subcontractor

  6  must notify her or his contractor.

  7         (4)  A notice given under subsection (1), subsection

  8  (2), or subsection (3) is not effective until the division

  9  determines that the notice meets the requirements of this

10  section or until 30 days after the date it is mailed to the

11  division in Tallahassee, whichever occurs first. However, if

12  an accident or occupational disease occurs less than 30 days

13  after the effective date of the insurance policy under which

14  the payment of compensation is secured or the date the

15  employer qualified as a self-insurer, such notice is effective

16  as of 12:01 a.m. of the day following the date it is mailed to

17  the division in Tallahassee.

18         (5)  A certificate of election to be exempt which is

19  issued in accordance with subsection (3) must be in effect for

20  2 years after the effective date stated thereon. Both the

21  effective date and the expiration date must be listed on the

22  face of the certificate by the division in Tallahassee. A

23  certificate of election to be exempt may be revoked before its

24  expiration by the sole proprietor, partner, or officer for

25  whom it was issued or by the division for the reasons stated

26  in subsection (3).

27         Section 2.  Section 440.105, Florida Statutes, is

28  amended to read:

29         440.105  Prohibited activities; penalties;

30  limitations.--

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  1         (1)(a)  Any insurance carrier, any individual

  2  self-insured, any commercial or group self-insurance fund, any

  3  professional practitioner licensed or regulated by the

  4  Department of Business and Professional Regulation, except as

  5  otherwise provided by law, any medical review committee as

  6  defined in s. 766.101, any private medical review committee,

  7  and any insurer, agent, or other person licensed under the

  8  insurance code, or any employee thereof, having knowledge or

  9  who believes that a fraudulent act or any other act or

10  practice which, upon conviction, constitutes a felony or

11  misdemeanor under this chapter is being or has been committed

12  shall send to the Division of Insurance Fraud, Bureau of

13  Workers' Compensation Fraud, a report or information pertinent

14  to such knowledge or belief and such additional information

15  relative thereto as the bureau may require. The bureau shall

16  review such information or reports and select such information

17  or reports as, in its judgment, may require further

18  investigation. It shall then cause an independent examination

19  of the facts surrounding such information or report to be made

20  to determine the extent, if any, to which a fraudulent act or

21  any other act or practice which, upon conviction, constitutes

22  a felony or a misdemeanor under this chapter is being

23  committed. The bureau shall report any alleged violations of

24  law which its investigations disclose to the appropriate

25  licensing agency and state attorney or other prosecuting

26  agency having jurisdiction with respect to any such violations

27  of this chapter. If prosecution by the state attorney or other

28  prosecuting agency having jurisdiction with respect to such

29  violation is not begun within 60 days of the bureau's report,

30  the state attorney or other prosecuting agency having

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  1  jurisdiction with respect to such violation shall inform the

  2  bureau of the reasons for the lack of prosecution.

  3         (b)  In the absence of fraud or bad faith, a person is

  4  not subject to civil liability for libel, slander, or any

  5  other relevant tort by virtue of filing reports, without

  6  malice, or furnishing other information, without malice,

  7  required by this section or required by the bureau, and no

  8  civil cause of action of any nature shall arise against such

  9  person:

10         1.  For any information relating to suspected

11  fraudulent acts furnished to or received from law enforcement

12  officials, their agents, or employees;

13         2.  For any information relating to suspected

14  fraudulent acts furnished to or received from other persons

15  subject to the provisions of this chapter; or

16         3.  For any such information relating to suspected

17  fraudulent acts furnished in reports to the bureau, or the

18  National Association of Insurance Commissioners.

19         (2)  Whoever violates any provision of this subsection

20  commits a misdemeanor of the second degree, punishable as

21  provided in s. 775.082 or s. 775.083.

22         (a)  It is shall be unlawful for any employer to

23  knowingly:

24         1.  Coerce or attempt to coerce, as a precondition to

25  employment or otherwise, an employee to obtain a certificate

26  of election of exemption pursuant to s. 440.05.

27         2.  Discharge or refuse to hire an employee or job

28  applicant because the employee or applicant has filed a claim

29  for benefits under this chapter.

30         3.  Discharge, discipline, or take any other adverse

31  personnel action against any employee for disclosing

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  1  information to the division or any law enforcement agency

  2  relating to any violation or suspected violation of any of the

  3  provisions of this chapter or rules promulgated hereunder.

  4         4.  Violate a stop-work order issued by the division

  5  pursuant to s. 440.107.

  6         (b)  It is shall be unlawful for any insurance entity

  7  to revoke or cancel a workers' compensation insurance policy

  8  or membership because an employer has returned an employee to

  9  work or hired an employee who has filed a workers'

10  compensation claim.

11         (3)  Whoever violates any provision of this subsection

12  commits a misdemeanor of the first degree, punishable as

13  provided in s. 775.082 or s. 775.083.

14         (a)  It is shall be unlawful for any employer to

15  knowingly fail to update applications for coverage as required

16  by s. 440.381(1) and Department of Insurance rules, or to post

17  notice of coverage pursuant to s. 440.40.

18         (b)  It is shall be unlawful for any attorney or other

19  person, in his or her individual capacity or in his or her

20  capacity as a public or private employee, or for any firm,

21  corporation, partnership, or association to receive any fee or

22  other consideration or any gratuity from a person on account

23  of services rendered for a person in connection with any

24  proceedings arising under this chapter, unless such fee,

25  consideration, or gratuity is approved by a judge of

26  compensation claims or by the Chief Judge of Compensation

27  Claims.

28         (4)(a)  Whoever violates any provision of this

29  subsection commits insurance fraud. If the value of any

30  property involved in violation of this subsection:

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  1         1.  Is less than $20,000, the offender commits a felony

  2  of the third degree, punishable as provided in s. 775.082, s.

  3  775.083, or s. 775.084.

  4         2.  Is $20,000 or more, but less than $100,000, the

  5  offender commits a felony of the second degree, punishable as

  6  provided in s. 775.082, s. 775.083, or s. 775.084.

  7         3.  Is $100,000 or more, the offender commits a felony

  8  of the first degree, punishable as provided in s. 775.082, s.

  9  775.083, or s. 775.084.

10         (b)(a)  It is shall be unlawful for any employer to

11  knowingly:

12         1.  Present or cause to be presented any false,

13  fraudulent, or misleading oral or written statement to any

14  person as evidence of compliance with s. 440.38.

15         2.  Make a deduction from the pay of any employee

16  entitled to the benefits of this chapter for the purpose of

17  requiring the employee to pay any portion of premium paid by

18  the employer to a carrier or to contribute to a benefit fund

19  or department maintained by such employer for the purpose of

20  providing compensation or medical services and supplies as

21  required by this chapter.

22         3.  Fail to secure payment of compensation if required

23  to do so by this chapter.

24         (c)(b)  It is shall be unlawful for any person:

25         1.  To knowingly make, or cause to be made, any false,

26  fraudulent, or misleading oral or written statement for the

27  purpose of obtaining or denying any benefit or payment under

28  this chapter.

29         2.  To present or cause to be presented any written or

30  oral statement as part of, or in support of, a claim for

31  payment or of other benefit pursuant to any provision of this

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  1  chapter, knowing that such statement contains any false,

  2  incomplete, or misleading information concerning any fact or

  3  thing material to such claim.

  4         3.  To prepare or cause to be prepared any written or

  5  oral statement that is intended to be presented to any

  6  employer, insurance company, or self-insured program in

  7  connection with, or in support of, any claim for payment or

  8  other benefit pursuant to any provision of this chapter,

  9  knowing that such statement contains any false, incomplete, or

10  misleading information concerning any fact or thing material

11  to such claim.

12         4.  To knowingly assist, conspire with, or urge any

13  person to engage in activity prohibited by this section.

14         5.  To knowingly make any false, fraudulent, or

15  misleading oral or written statement, or to knowingly omit or

16  conceal material information, required by s. 440.185 or s.

17  440.381, for the purpose of obtaining workers' compensation

18  coverage or for the purpose of avoiding, delaying, or

19  diminishing the amount of payment of any workers' compensation

20  premiums.

21         6.  To knowingly misrepresent or conceal payroll,

22  classification of workers, or information regarding an

23  employer's loss history which would be material to the

24  computation and application of an experience rating

25  modification factor for the purpose of avoiding or diminishing

26  the amount of payment of any workers' compensation premiums.

27         7.  To knowingly present or cause to be presented any

28  false, fraudulent, or misleading oral or written statement to

29  any person as evidence of compliance with s. 440.38.

30         (d)(c)  It is shall be unlawful for any physician

31  licensed under chapter 458, osteopathic physician licensed

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  1  under chapter 459, chiropractic physician licensed under

  2  chapter 460, podiatric physician licensed under chapter 461,

  3  optometric physician licensed under chapter 463, or any other

  4  practitioner licensed under the laws of this state to

  5  knowingly and willfully assist, conspire with, or urge any

  6  person to fraudulently violate any of the provisions of this

  7  chapter.

  8         (e)(d)  It is shall be unlawful for any person or

  9  governmental entity licensed under chapter 395 to maintain or

10  operate a hospital in such a manner so that such person or

11  governmental entity knowingly and willfully allows the use of

12  the facilities of such hospital by any person, in a scheme or

13  conspiracy to fraudulently violate any of the provisions of

14  this chapter.

15         (f)(e)  It is shall be unlawful for any attorney or

16  other person, in his or her individual capacity or in his or

17  her capacity as a public or private employee, or any firm,

18  corporation, partnership, or association, to knowingly assist,

19  conspire with, or urge any person to fraudulently violate any

20  of the provisions of this chapter.

21         (g)(f)  It is shall be unlawful for any attorney or

22  other person, in his or her individual capacity or in his or

23  her capacity as a public or private employee or for any firm,

24  corporation, partnership, or association, to unlawfully

25  solicit any business in and about city or county hospitals,

26  courts, or any public institution or public place; in and

27  about private hospitals or sanitariums; in and about any

28  private institution; or upon private property of any character

29  whatsoever for the purpose of making workers' compensation

30  claims.

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  1         (5)  This section does shall not be construed to

  2  preclude the applicability of any other provision of criminal

  3  law which that applies or may apply to any transaction.

  4         (6)  For the purpose of the section, the term:

  5         (a)  "Statement" includes, but is not limited to, any

  6  notice, representation, statement, proof of injury, bill for

  7  services, diagnosis, prescription, hospital or doctor records,

  8  X ray, test result, or other evidence of loss, injury, or

  9  expense.

10         (b)  "Property" means property as defined in s.

11  812.012.

12         (c)  "Value" means value as defined in s. 812.012.

13         (7)  Notwithstanding any other provision of law, a

14  proceeding under subsection (4) may be commenced at any time

15  within 5 years after the cause of action accrues; however, in

16  such a proceeding, the period of limitation is tolled whenever

17  the defendant is continuously absent from this state or is

18  without a reasonably ascertainable place of residence or work

19  within this state, but such a period of limitation may not be

20  extended by more than 1 year. If a criminal prosecution,

21  action, or other proceeding is brought, or intervened in, to

22  punish, prevent, or restrain any violation of subsection (4),

23  the running of the period of limitation prescribed by this

24  section, which is based in whole or in part upon any matter

25  complained of in any such prosecution, action, or proceeding,

26  is tolled during the pendency of the prosecution, action, or

27  proceeding and for 2 years following the termination of the

28  prosecution, action, or proceeding.

29         (8)(7)  All claim forms as provided for in this chapter

30  must shall contain a notice that clearly states in substance

31  the following: "Any person who, knowingly and with intent to

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  1  injure, defraud, or deceive any employer or employee,

  2  insurance company, or self-insured program, files a statement

  3  of claim containing any false or misleading information is

  4  guilty of a felony of the third degree." Each claimant shall

  5  personally sign the claim form and attest that he or she has

  6  reviewed, understands, and acknowledges the foregoing notice.

  7         Section 3.  Present subsections (1) through (7) of

  8  section 440.107, Florida Statutes, are redesignated as

  9  subsections (5) through (11), respectively, and new

10  subsections (1), (2), (3), and (4) are added to that section

11  to read:

12         440.107  Division powers to enforce employer compliance

13  with coverage requirements.--

14         (1)  RECORDS AND REPORTS.--Each employer shall keep

15  true and accurate work records that contain such information

16  as the division prescribes by rules. The work records must be

17  open to inspection and be subject to being copied by the

18  division at any reasonable time and as often as necessary. The

19  division may require from any employer any sworn or unsworn

20  reports, pertaining to persons employed by that employer,

21  which the division considers necessary for the effective

22  administration of this chapter.

23         (2)  OATHS AND WITNESSES.--In discharging the duties

24  imposed by this chapter, the division may administer oaths and

25  affirmations, certify to official acts, and issue subpoenas to

26  compel the attendance of witnesses and the production of

27  books, papers, correspondence, memoranda, and other records

28  that the division considers necessary as evidence in

29  connection with the administration of this chapter.

30         (3)  SUBPOENAS.--If a person has refused to obey a

31  subpoena to appear before the division and produce evidence

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  1  requested by the division or to give testimony about the

  2  matter that is under investigation, a court has jurisdiction

  3  to issue an order requiring compliance with the subpoena if

  4  the court has jurisdiction in the geographical area where the

  5  inquiry is being carried on or in the area where the person

  6  who has refused the subpoena is found, resides, or transacts

  7  business. Failure to obey such a court order may be punished

  8  by the court as contempt. Any person who without just cause

  9  fails or refuses to attend and testify at a hearing, to answer

10  any lawful inquiry, or to produce books, papers,

11  correspondence, memoranda, and other records, if it is in his

12  or her power to do so, in obedience to a subpoena issued by

13  the division is guilty of a misdemeanor of the second degree,

14  punishable as provided in s. 775.082 or s. 775.083, and each

15  day such a violation continues is a separate offense.

16         (4)  PROTECTION AGAINST SELF-INCRIMINATION.--A person

17  may not be excused from attending and testifying or from

18  producing books, papers, correspondence, memoranda, and other

19  records before the division in obedience to a subpoena issued

20  in any cause or proceeding before the division on the grounds

21  that the testimony or evidence, documentary or otherwise,

22  required of him or her may tend to incriminate him or her or

23  subject him or her to a penalty or forfeiture; however, an

24  individual may not be prosecuted or subjected to any penalty

25  or forfeiture on the basis of such testimony, books, papers,

26  correspondence, memoranda, or other records, or any evidence

27  derived therefrom, after having claimed his or her privilege

28  against self-incrimination, except that the person is not

29  immune from prosecution and punishment for perjury committed

30  in so testifying.

31         Section 4.  This act shall take effect October 1, 1998.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Authorizes the Division of Workers' Compensation of the
      Department of Labor and Employment Security to approve
  4    and revoke certificates of exemption. Provides penalties
      for insurance fraud. Provides a time limitation for
  5    bringing an action under s. 440.105(4), F.S. Authorizes
      the division to obtain employer work records and issue
  6    subpoenas to compel the attendance of witnesses and the
      production of documents. Provides for limited immunity
  7    from prosecution based on such testimony or documents.
      Provides a penalty for failure to appear or to produce
  8    such documents.

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