Senate Bill 1246
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Florida Senate - 1999 SB 1246
By the Committee on Banking and Insurance
311-413B-99
1 A bill to be entitled
2 An act relating to the Division of Workers'
3 Compensation; amending s. 440.02, F.S.;
4 redefining the term "employee" to conform to
5 the transfer of enforcement powers and duties
6 to the Department of Insurance; amending s.
7 440.021, F.S.; exempting from chapter 120,
8 F.S., the collection of penalties by the
9 Department of Insurance pursuant to chapter
10 440, F.S.; amending s. 440.05, F.S.;
11 transferring exemption reporting requirements
12 from the Division of Workers' Compensation to
13 the Department of Insurance; amending s.
14 440.10, F.S.; authorizing the Department of
15 Insurance to assess civil penalties against
16 employers for failure to secure workers'
17 compensation coverage; amending s. 440.103,
18 F.S.; revising the requirements for obtaining a
19 building permit; conforming to the transfer of
20 enforcement of workers' compensation compliance
21 to the Department of Insurance; amending s.
22 440.106, F.S.; requiring the Department of
23 Insurance, rather than the Division of Workers'
24 Compensation, to report certain violations by
25 contractors to the appropriate state licensing
26 board; amending s. 440.107, F.S.; transferring
27 powers to enforce employer compliance with
28 coverage requirements from the Division of
29 Workers' Compensation to the Department of
30 Insurance; amending s. 440.108, F.S.; providing
31 that investigatory records of the Department of
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1 Insurance relating to workers' compensation
2 employer compliance are confidential and exempt
3 form the public records law to the same extent
4 that such records of the division are
5 confidential and exempt; amending s. 440.125,
6 F.S.; providing that medical records of injured
7 employees provided to the Agency for Health
8 Care Administration are confidential and exempt
9 from the public records law to the same extent
10 as medical records provided to the Division of
11 Workers' Compensation; amending s. 440.13,
12 F.S.; transferring from the Division of
13 Workers' Compensation to the Agency for Health
14 Care Administration powers and duties relating
15 to certification of health care providers for
16 workers' compensation, requests for independent
17 medical examinations, receiving reports of
18 medical treatment to injured workers, assessing
19 penalties against carriers for disallowing
20 payments to health care providers, auditing
21 health care providers and carriers, and related
22 medical-related responsibilities for workers'
23 compensation; providing for rules; creating a
24 Workers' Compensation Regulatory Reporting
25 Advisory Council; amending s. 440.15, F.S.;
26 authorizing the division to contract with a
27 third party for the administration and payment
28 of the supplemental benefits to injured
29 workers; amending s. 440.1925, F.S.;
30 transferring powers and duties relating to the
31 resolution of medical disputes from the
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1 division to the Agency for Health Care
2 Administration; amending s. 440.25, F.S.;
3 transferring powers and duties from the
4 division to the Agency for Health Care
5 Administration; amending s. 440.38, F.S.;
6 authorizing the division to contract with the
7 Florida Self-Insurers Guaranty Association,
8 Incorporated, for the administration and audit
9 of individual self-insurers; amending s.
10 440.385, F.S.; revising the powers and duties
11 of the Florida Self-Insurers Guaranty
12 Association, Incorporated; amending s. 440.44,
13 F.S.; conforming provisions related to
14 personnel appointed by the division; amending
15 s. 440.4416, F.S.; requiring the Workers'
16 Compensation Oversight Board to make
17 recommendations for revising reporting
18 requirements; amending s. 440.50, F.S.;
19 providing for deposit of civil penalties
20 imposed pursuant to chapter 440, F.S.; amending
21 s. 440.51, F.S.; transferring powers and duties
22 relating to self-insurers from the Department
23 of Insurance to the division; amending s.
24 440.525, F.S.; revising examination
25 requirements and authorizing the division to
26 contract with an independent examiner for the
27 examination of carriers and individual
28 self-insurers; amending s. 440.59, F.S.;
29 revising reporting requirements for the
30 division and the Department of Labor and
31 Employment Security; transferring powers,
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1 duties, records, personnel, property, and
2 funding for the examination of individual
3 self-insurers from the Department of Insurance
4 to the division; transferring powers, duties,
5 records, personnel, property, and funding for
6 enforcement of employer compliance with
7 coverage requirements, proof of coverage, and
8 exemption requirements from the division to the
9 Department of Insurance; transferring powers,
10 duties, records, personnel, property, and
11 funding related to medical services and
12 supplies for workers' compensation, medical
13 dispute resolution, and medical data reporting
14 requirements from the division to the Agency
15 for Health Care Administration; eliminating
16 positions within the Division of Workers'
17 Compensation, contingent upon the division
18 entering into certain contracts; providing
19 effective dates.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Paragraph (c) of subsection (14) of section
24 440.02, Florida Statutes, 1998 Supplement, is amended to read:
25 440.02 Definitions.--When used in this chapter, unless
26 the context clearly requires otherwise, the following terms
27 shall have the following meanings:
28 (14)
29 (c) "Employee" includes a sole proprietor or a partner
30 who devotes full time to the proprietorship or partnership
31 and, except as provided in this paragraph, elects to be
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1 included in the definition of employee by filing notice
2 thereof as provided in s. 440.05. Partners or sole proprietors
3 actively engaged in the construction industry are considered
4 employees unless they elect to be excluded from the definition
5 of employee by filing written notice of the election with the
6 Department of Insurance division as provided in s. 440.05.
7 However, no more than three partners in a partnership that is
8 actively engaged in the construction industry may elect to be
9 excluded. A sole proprietor or partner who is actively engaged
10 in the construction industry and who elects to be exempt from
11 this chapter by filing a written notice of the election with
12 the Department of Insurance division as provided in s. 440.05
13 is not an employee. For purposes of this chapter, an
14 independent contractor is an employee unless he or she meets
15 all of the conditions set forth in subparagraph (d)1.
16 Section 2. Section 440.021, Florida Statutes, is
17 amended to read:
18 440.021 Exemption of workers' compensation from
19 chapter 120.--Workers' compensation adjudications by judges of
20 compensation claims are exempt from chapter 120, and no judge
21 of compensation claims shall be considered an agency or a part
22 thereof. Communications of the result of investigations by the
23 division pursuant to s. 440.185(4) are exempt from chapter
24 120. In all instances in which the division or the Department
25 of Insurance institutes action to collect a penalty or
26 interest that is which may be due pursuant to this chapter,
27 the penalty or interest shall be assessed without hearing, and
28 the party against which such penalty or interest is assessed
29 shall be given written notice of such assessment and shall
30 have the right to protest within 20 days of such notice. Upon
31 receipt of a timely notice of protest and after such
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1 investigation as may be necessary, the division or the
2 Department of Insurance shall, if it agrees with such protest,
3 notify the protesting party that the assessment has been
4 revoked. If the division or the Department of Insurance does
5 not agree with the protest, it shall refer the matter to the
6 judge of compensation claims for determination pursuant to s.
7 440.25(3) and (4). Such action of the division or the
8 Department of Insurance is exempt from the provisions of
9 chapter 120.
10 Section 3. Section 440.05, Florida Statutes, 1998
11 Supplement, is amended to read:
12 440.05 Election of exemption; revocation of election;
13 notice; certification.--
14 (1) Each corporate officer who elects not to accept
15 the provisions of this chapter or who, after electing such
16 exemption, revokes that exemption shall mail to the Department
17 of Insurance division in Tallahassee notice to such effect in
18 accordance with a form to be prescribed by the Department of
19 Insurance division.
20 (2) Each sole proprietor or partner who elects to be
21 included in the definition of "employee" or who, after such
22 election, revokes that election must mail to the Department of
23 Insurance division in Tallahassee notice to such effect, in
24 accordance with a form to be prescribed by the Department of
25 Insurance division.
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 Department of
31 Insurance division on a form prescribed by the Department of
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1 Insurance division. The notice of election to be exempt from
2 the provisions of this chapter must be notarized and under
3 oath. The notice of election to be exempt which is submitted
4 to the Department of Insurance division by the sole
5 proprietor, partner, or officer of a corporation must list the
6 name, federal tax identification number, social security
7 number, all certified or registered licenses issued pursuant
8 to chapter 489 held by the person seeking the exemption, a
9 copy of relevant documentation as to employment status filed
10 with the Internal Revenue Service as specified by the
11 Department of Insurance division, a copy of the relevant
12 occupational license in the primary jurisdiction of the
13 business, and, for corporate officers and partners, the
14 registration number of the corporation or partnership filed
15 with the Division of Corporations of the Department of State.
16 The notice of election to be exempt must identify each sole
17 proprietorship, partnership, or corporation that employs the
18 person electing the exemption and must list the social
19 security number or federal tax identification number of each
20 such employer and the additional documentation required by
21 this section. In addition, the notice of election to be exempt
22 must provide that the sole proprietor, partner, or officer
23 electing an exemption is not entitled to benefits under this
24 chapter, must provide that the election does not exceed
25 exemption limits for officers and partnerships provided in s.
26 440.02, and must certify that any employees of the sole
27 proprietor, partner, or officer electing an exemption are
28 covered by workers' compensation insurance. Upon receipt of
29 the notice of the election to be exempt, receipt of all
30 application fees, and a determination by the Department of
31 Insurance division that the notice meets the requirements of
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1 this subsection, the Department of Insurance division shall
2 issue a certification of the election to the sole proprietor,
3 partner, or officer, unless the Department of Insurance
4 division determines that the information contained in the
5 notice is invalid. The Department of Insurance division shall
6 revoke a certificate of election to be exempt from coverage
7 upon a determination by the Department of Insurance division
8 that the person does not meet the requirements for exemption
9 or that the information contained in the notice of election to
10 be exempt is invalid. The certificate of election must list
11 the names of the sole proprietorship, partnership, or
12 corporation listed in the request for exemption. A new
13 certificate of election must be obtained each time the person
14 is employed by a new sole proprietorship, partnership, or
15 corporation that is not listed on the certificate of election.
16 A copy of the certificate of election must be sent to each
17 workers' compensation carrier identified in the request for
18 exemption. Upon filing a notice of revocation of election, a
19 sole proprietor, partner, or officer who is a subcontractor
20 must notify her or his contractor. Upon revocation of a
21 certificate of election of exemption by the Department of
22 Insurance division, the Department of Insurance division shall
23 notify the workers' compensation carriers identified in the
24 request for exemption.
25 (4) The notice of election to be exempt from the
26 provisions of this chapter must contain a notice that clearly
27 states in substance the following: "Any person who, knowingly
28 and with intent to injure, defraud, or deceive the Department
29 of Insurance division or any employer or employee, insurance
30 company, or purposes program, files a notice of election to be
31 exempt containing any false or misleading information is
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1 guilty of a felony of the third degree." Each person filing a
2 notice of election to be exempt shall personally sign the
3 notice and attest that he or she has reviewed, understands,
4 and acknowledges the foregoing notice.
5 (5) A notice given under subsection (1), subsection
6 (2), or subsection (3) shall become effective when issued by
7 the Department of Insurance division or 30 days after an
8 application for an exemption is received by the Department of
9 Insurance division, whichever occurs first. However, if an
10 accident or occupational disease occurs less than 30 days
11 after the effective date of the insurance policy under which
12 the payment of compensation is secured or the date the
13 employer qualified as a self-insurer, such notice is effective
14 as of 12:01 a.m. of the day following the date it is mailed to
15 the Department of Insurance division in Tallahassee.
16 (6) A construction industry certificate of election to
17 be exempt that which is issued in accordance with this section
18 shall be valid for 2 years after the effective date stated
19 thereon. Both the effective date and the expiration date must
20 be listed on the face of the certificate by the Department of
21 Insurance division. The construction industry certificate must
22 expire at midnight, 2 years from its issue date, as noted on
23 the face of the exemption certificate. Any person who has
24 received from the division a construction industry certificate
25 of election to be exempt which is in effect on December 31,
26 1998, shall file with the Department of Insurance a new notice
27 of election to be exempt by the last day in his or her birth
28 month following December 1, 1998. A construction industry
29 certificate of election to be exempt may be revoked before its
30 expiration by the sole proprietor, partner, or officer for
31 whom it was issued or by the Department of Insurance division
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1 for the reasons stated in this section. At least 60 days
2 before prior to the expiration date of a construction industry
3 certificate of exemption issued after December 1, 1998, the
4 Department of Insurance division shall send notice of the
5 expiration date and an application for renewal to the
6 certificateholder at the address on the certificate.
7 (7) Any contractor responsible for compensation under
8 s. 440.10 may register in writing with the workers'
9 compensation carrier for any subcontractor and shall
10 thereafter be entitled to receive written notice from the
11 carrier of any cancellation or nonrenewal of the policy.
12 (8)(a) The Department of Insurance division may assess
13 a fee, not to exceed $50, with each request for a
14 nonconstruction election under this section.
15 (b) The Department of Insurance division must assess a
16 fee of $50 with each request for a construction industry
17 certificate of election to be exempt or renewal of election to
18 be exempt under this section.
19 (c) The funds collected by the Department of Insurance
20 division shall be deposited into the Insurance Commissioner's
21 Regulatory Trust Fund and shall be used to administer this
22 section, to audit the businesses that pay the fee for
23 compliance with any requirements of this chapter, and to
24 enforce compliance with the provisions of this chapter.
25 (9) The Department of Insurance division may by rule
26 prescribe forms and procedures for filing an election of
27 exemption, revocation of election to be exempt, and notice of
28 election of coverage for all employers and require specified
29 forms to be submitted by all employers in filing for the
30 election of exemption. The Department of Insurance division
31
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1 may by rule prescribe forms and procedures for issuing a
2 certificate of the election of exemption.
3 Section 4. Paragraphs (f) and (g) of subsection (1) of
4 section 440.10, Florida Statutes, 1998 Supplement, are amended
5 to read:
6 440.10 Liability for compensation.--
7 (1)
8 (f) If an employer willfully fails to secure
9 compensation as required by this chapter, the Department of
10 Insurance division may assess against the employer a penalty
11 not to exceed $5,000 for each employee of that employer who is
12 classified by the employer as an independent contractor but
13 who is found by the Department of Insurance division to not
14 meet the criteria for an independent contractor that are set
15 forth in s. 440.02.
16 (g) For purposes of this section, a person is
17 conclusively presumed to be an independent contractor if:
18 1. The independent contractor provides the general
19 contractor with an affidavit stating that he or she meets all
20 the requirements of s. 440.02(14)(d); and
21 2. The independent contractor provides the general
22 contractor with a valid certificate of workers' compensation
23 insurance or a valid certificate of exemption issued by the
24 Department of Insurance division.
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26 A sole proprietor, partner, or officer of a corporation who
27 elects exemption from this chapter by filing a certificate of
28 election under s. 440.05 may not recover benefits or
29 compensation under this chapter. An independent contractor
30 who provides the general contractor with both an affidavit
31 stating that he or she meets the requirements of s.
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1 440.02(14)(d) and a certificate of exemption is not an
2 employee under s. 440.02(14)(c) and may not recover benefits
3 under this chapter. For purposes of determining the
4 appropriate premium for workers' compensation coverage,
5 carriers may not consider any person who meets the
6 requirements of this paragraph to be an employee.
7 Section 5. Section 440.103, Florida Statutes, 1998
8 Supplement, is amended to read:
9 440.103 Building permits; identification of minimum
10 premium policy.--Except as otherwise provided in this chapter,
11 every employer shall, as a condition to receiving a building
12 permit, show proof that it has secured compensation for its
13 employees under this chapter as provided in ss. 440.10 and
14 440.38. Such proof of compensation must be evidenced by a
15 certificate of coverage issued by the carrier, a valid
16 exemption certificate approved by the Department of Insurance
17 division, or a copy of the employer's authority to self-insure
18 and shall be presented each time the employer applies for a
19 building permit. As provided in s. 627.413(5), each
20 certificate of coverage must show, on its face, whether or not
21 coverage is secured under the minimum premium provisions of
22 rules adopted by rating organizations licensed by the
23 Department of Insurance. The words "minimum premium policy" or
24 equivalent language shall be typed, printed, stamped, or
25 legibly handwritten.
26 Section 6. Subsection (4) of section 440.106, Florida
27 Statutes, 1998 Supplement, is amended to read:
28 440.106 Civil remedies; administrative penalties.--
29 (4) The Department of Insurance division shall report
30 any contractor determined in violation of requirements of this
31
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1 chapter to the appropriate state licensing board for
2 disciplinary action.
3 Section 7. Section 440.107, Florida Statutes, 1998
4 Supplement, is amended to read:
5 440.107 Department of Insurance Division powers to
6 enforce employer compliance with coverage requirements.--
7 (1) The Legislature finds that the failure of an
8 employer to comply with the workers' compensation coverage
9 requirements under this chapter poses an immediate danger to
10 public health, safety, and welfare. The Legislature authorizes
11 the Department of Insurance division to secure employer
12 compliance with the workers' compensation coverage
13 requirements and authorizes the Department of Insurance
14 division to conduct investigations for the purpose of ensuring
15 employer compliance.
16 (2) The Department of Insurance division and its
17 authorized representatives may enter and inspect any place of
18 business at any reasonable time for the limited purpose of
19 investigating compliance with workers' compensation coverage
20 requirements under this chapter. Each employer shall keep true
21 and accurate business records that contain such information as
22 the Department of Insurance division prescribes by rule. The
23 business records must contain information necessary for the
24 Department of Insurance division to determine compliance with
25 workers' compensation coverage requirements and must be
26 maintained within this state by the business, in such a manner
27 as to be accessible within a reasonable time upon request by
28 the Department of Insurance division. The business records
29 must be open to inspection and be available for copying by the
30 Department of Insurance division at any reasonable time and
31 place and as often as necessary. The Department of Insurance
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1 division may require from any employer any sworn or unsworn
2 reports, pertaining to persons employed by that employer,
3 deemed necessary for the effective administration of the
4 workers' compensation coverage requirements.
5 (3) In discharging its duties, the Department of
6 Insurance division may administer oaths and affirmations,
7 certify to official acts, issue subpoenas to compel the
8 attendance of witnesses and the production of books, papers,
9 correspondence, memoranda, and other records deemed necessary
10 by the Department of Insurance division as evidence in order
11 to ensure proper compliance with the coverage provisions of
12 this chapter.
13 (4) If a person has refused to obey a subpoena to
14 appear before the Department of Insurance division or its
15 authorized representative and produce evidence requested by
16 the Department of Insurance division or to give testimony
17 about the matter that is under investigation, a court has
18 jurisdiction to issue an order requiring compliance with the
19 subpoena if the court has jurisdiction in the geographical
20 area where the inquiry is being carried on or in the area
21 where the person who has refused the subpoena is found,
22 resides, or transacts business. Failure to obey such a court
23 order may be punished by the court as contempt.
24 (5) Whenever the Department of Insurance division
25 determines that an employer who is required to secure the
26 payment to his or her employees of the compensation provided
27 for by this chapter has failed to do so, such failure shall be
28 deemed an immediate serious danger to public health, safety,
29 or welfare sufficient to justify service by the Department of
30 Insurance division of a stop-work order on the employer,
31 requiring the cessation of all business operations at the
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1 place of employment or job site. The order shall take effect
2 upon the date of service upon the employer, unless the
3 employer provides evidence satisfactory to the division of
4 having secured any necessary insurance or self-insurance and
5 pays a civil penalty to the Department of Insurance division,
6 to be deposited by the Department of Insurance division into
7 the Insurance Commissioner's Regulatory Workers' Compensation
8 Administration Trust Fund, in the amount of $100 per day for
9 each day the employer was not in compliance with this chapter.
10 (6) The Department of Insurance division may file a
11 complaint in the circuit court in and for Leon County to
12 enjoin any employer, who has failed to secure compensation as
13 required by this chapter, from employing individuals and from
14 conducting business until the employer presents evidence
15 satisfactory to the Department of Insurance division of having
16 secured payment for compensation and pays a civil penalty to
17 the Department of Insurance division, to be deposited by the
18 Department of Insurance division into the Insurance
19 Commissioner's Regulatory Workers' Compensation Administration
20 Trust Fund, in the amount of $100 per day for each day the
21 employer was not in compliance with this chapter.
22 (7) In addition to any penalty, stop-work order, or
23 injunction, the Department of Insurance division may assess
24 against any employer, who has failed to secure the payment of
25 compensation as required by this chapter, a penalty in the
26 amount of:
27 (a) Twice the amount the employer would have paid
28 during periods it illegally failed to secure payment of
29 compensation in the preceding 3-year period based on the
30 employer's payroll during the preceding 3-year period; or
31 (b) One thousand dollars, whichever is greater.
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1
2 Any penalty assessed under this subsection is due within 30
3 days after the date on which the employer is notified, except
4 that, if the Department of Insurance division has posted a
5 stop-work order or obtained injunctive relief against the
6 employer, payment is due, in addition to those conditions set
7 forth in this section, as a condition to relief from a
8 stop-work order or an injunction. Interest shall accrue on
9 amounts not paid when due at the rate of 1 percent per month.
10 (8) The Department of Insurance division may bring an
11 action in circuit court to recover penalties assessed under
12 this section, including any interest owed to the Department of
13 Insurance division pursuant to this section. In any action
14 brought by the Department of Insurance division pursuant to
15 this section in which it prevails, the circuit court shall
16 award costs, including the reasonable costs of investigation
17 and a reasonable attorney's fee.
18 (9) Any judgment obtained by the Department of
19 Insurance division and any penalty due pursuant to the service
20 of a stop-work order or otherwise due under this section
21 shall, until collected, constitute a lien upon the entire
22 interest of the employer, legal or equitable, in any property,
23 real or personal, tangible or intangible; however, such lien
24 is subordinate to claims for unpaid wages and any prior
25 recorded liens, and a lien created by this section is not
26 valid against any person who, subsequent to such lien and in
27 good faith and for value, purchases real or personal property
28 from such employer or becomes the mortgagee on real or
29 personal property of such employer, or against a subsequent
30 attaching creditor, unless, with respect to real estate of the
31 employer, a notice of the lien is recorded in the public
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1 records of the county where the real estate is located, and
2 with respect to personal property of the employer, the notice
3 is recorded with the Secretary of State.
4 (10) Any law enforcement agency in the state may, at
5 the request of the Department of Insurance division, render
6 any assistance necessary to carry out the provisions of this
7 section, including, but not limited to, preventing any
8 employee or other person from remaining at a place of
9 employment or job site after a stop-work order or injunction
10 has taken effect.
11 (11) Actions by the Department of Insurance division
12 under this section must be contested as provided in chapter
13 120. All civil penalties assessed by the Department of
14 Insurance division must be paid into the Insurance
15 Commissioner's Regulatory Workers' Compensation Administration
16 Trust Fund. The Department of Insurance division shall return
17 any sums previously paid, upon conclusion of an action, if the
18 Department of Insurance division fails to prevail and if so
19 directed by an order of court or an administrative hearing
20 officer. The requirements of this subsection may be met by
21 posting a bond in an amount equal to twice the penalty and in
22 a form approved by the Department of Insurance division.
23 Section 8. Subsection (1) of section 440.108, Florida
24 Statutes, 1998 Supplement, is amended to read:
25 440.108 Investigatory records relating to workers'
26 compensation employer compliance; confidentiality.--
27 (1) All investigatory records of the Department of
28 Insurance or the Division of Workers' Compensation made or
29 received pursuant to s. 440.107 and any records necessary to
30 complete an investigation are confidential and exempt from the
31 provisions of s. 119.07(1) and s. 24(a), Art. I of the State
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1 Constitution until the investigation is completed or ceases to
2 be active. For purposes of this section, an investigation is
3 considered "active" while such investigation is being
4 conducted by the Department of Insurance or the division with
5 a reasonable, good faith belief that it may lead to the filing
6 of administrative, civil, or criminal proceedings. An
7 investigation does not cease to be active if the agency is
8 proceeding with reasonable dispatch and there is a good faith
9 belief that action may be initiated by the agency or other
10 administrative or law enforcement agency. After an
11 investigation is completed or ceases to be active, records
12 relating to the investigation remain confidential and exempt
13 from the provisions of s. 119.07(1) and s. 24(a), Art. I of
14 the State Constitution if disclosure would:
15 (a) Jeopardize the integrity of another active
16 investigation;
17 (b) Reveal a trade secret, as defined in s. 688.002;
18 (c) Reveal business or personal financial information;
19 (d) Reveal the identity of a confidential source;
20 (e) Defame or cause unwarranted damage to the good
21 name or reputation of an individual or jeopardize the safety
22 of an individual; or
23 (f) Reveal investigative techniques or procedures.
24 Section 9. Section 440.125, Florida Statutes, is
25 amended to read:
26 440.125 Medical records and reports; identifying
27 information in employee medical bills; confidentiality.--
28 (1) Any medical records and medical reports of an
29 injured employee and any information identifying an injured
30 employee in medical bills which are provided to the Agency for
31 Health Care Administration or the Division of Workers'
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1 Compensation of the Department of Labor and Employment
2 Security pursuant to s. 440.13 are confidential and exempt
3 from the provisions of s. 119.07(1) and s. 24(a), Art. I of
4 the State Constitution, except as otherwise provided by this
5 chapter.
6 (2) The Legislature finds that it is a public
7 necessity that an injured employee's medical records and
8 medical reports and information identifying the employee in
9 medical bills held by the Agency for Health Care
10 Administration or the Division of Workers' Compensation
11 pursuant to s. 440.13 be confidential and exempt from the
12 public records law. Public access to such information is an
13 invasion of the injured employee's right to privacy in that
14 personal, sensitive information would be revealed, and public
15 knowledge of such information could lead to discrimination
16 against the employee by coworkers and others. Additionally,
17 there is little utility in providing public access to such
18 information in that the effectiveness and efficiency of the
19 workers' compensation program can be otherwise adequately
20 monitored and evaluated.
21 Section 10. Section 440.13, Florida Statutes, 1998
22 Supplement, is amended to read:
23 440.13 Medical services and supplies; penalty for
24 violations; limitations.--
25 (1) DEFINITIONS.--As used in this section, the term:
26 (a) "Alternate medical care" means a change in
27 treatment or health care provider.
28 (b) "Attendant care" means care rendered by trained
29 professional attendants which is beyond the scope of household
30 duties. Family members may provide nonprofessional attendant
31 care, but may not be compensated under this chapter for care
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1 that falls within the scope of household duties and other
2 services normally and gratuitously provided by family members.
3 "Family member" means a spouse, father, mother, brother,
4 sister, child, grandchild, father-in-law, mother-in-law, aunt,
5 or uncle.
6 (c) "Carrier" means, for purposes of this section,
7 insurance carrier, self-insurance fund or individually
8 self-insured employer, or assessable mutual insurer.
9 (d) "Catastrophic injury" means an injury as defined
10 in s. 440.02.
11 (e) "Certified health care provider" means a health
12 care provider who has been certified by the Agency for Health
13 Care Administration division or who has entered an agreement
14 with a licensed managed care organization to provide treatment
15 to injured workers under this section. Certification of such
16 health care provider must include documentation that the
17 health care provider has read and is familiar with the
18 portions of the statute, impairment guides, and rules which
19 govern the provision of remedial treatment, care, and
20 attendance.
21 (f) "Compensable" means a determination by a carrier
22 or judge of compensation claims that a condition suffered by
23 an employee results from an injury arising out of and in the
24 course of employment.
25 (g) "Emergency services and care" means emergency
26 services and care as defined in s. 395.002.
27 (h) "Health care facility" means any hospital licensed
28 under chapter 395 and any health care institution licensed
29 under chapter 400.
30 (i) "Health care provider" means a physician or any
31 recognized practitioner who provides skilled services pursuant
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1 to a prescription or under the supervision or direction of a
2 physician and who has been certified by the division as a
3 health care provider. The term "health care provider" includes
4 a health care facility.
5 (j) "Independent medical examiner" means a physician
6 selected by either an employee or a carrier to render one or
7 more independent medical examinations in connection with a
8 dispute arising under this chapter.
9 (k) "Independent medical examination" means an
10 objective evaluation of the injured employee's medical
11 condition, including, but not limited to, impairment or work
12 status, performed by a physician or an expert medical advisor
13 at the request of a party, a judge of compensation claims, or
14 the Agency for Health Care Administration division to assist
15 in the resolution of a dispute arising under this chapter.
16 (l) "Instance of overutilization" means a specific
17 inappropriate service or level of service provided to an
18 injured employee.
19 (m) "Medically necessary" means any medical service or
20 medical supply which is used to identify or treat an illness
21 or injury, is appropriate to the patient's diagnosis and
22 status of recovery, and is consistent with the location of
23 service, the level of care provided, and applicable practice
24 parameters. The service should be widely accepted among
25 practicing health care providers, based on scientific
26 criteria, and determined to be reasonably safe. The service
27 must not be of an experimental, investigative, or research
28 nature, except in those instances in which prior approval of
29 the Agency for Health Care Administration has been obtained.
30 The Agency for Health Care Administration shall adopt rules
31 providing for such approval on a case-by-case basis when the
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1 service or supply is shown to have significant benefits to the
2 recovery and well-being of the patient.
3 (n) "Medicine" means a drug prescribed by an
4 authorized health care provider and includes only generic
5 drugs or single-source patented drugs for which there is no
6 generic equivalent, unless the authorized health care provider
7 writes or states that the brand-name drug as defined in s.
8 465.025 is medically necessary, or is a drug appearing on the
9 schedule of drugs created pursuant to s. 465.025(6), or is
10 available at a cost lower than its generic equivalent.
11 (o) "Palliative care" means noncurative medical
12 services that mitigate the conditions, effects, or pain of an
13 injury.
14 (p) "Pattern or practice of overutilization" means
15 repetition of instances of overutilization within a specific
16 medical case or multiple cases by a single health care
17 provider.
18 (q) "Peer review" means an evaluation by two or more
19 physicians licensed under the same authority and with the same
20 or similar specialty as the physician under review, of the
21 appropriateness, quality, and cost of health care and health
22 services provided to a patient, based on medically accepted
23 standards.
24 (r) "Physician" or "doctor" means a physician licensed
25 under chapter 458, an osteopathic physician licensed under
26 chapter 459, a chiropractic physician licensed under chapter
27 460, a podiatric physician licensed under chapter 461, an
28 optometrist licensed under chapter 463, or a dentist licensed
29 under chapter 466, each of whom must be certified by the
30 division as a health care provider.
31
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1 (s) "Reimbursement dispute" means any disagreement
2 between a health care provider or health care facility and
3 carrier concerning payment for medical treatment.
4 (t) "Utilization control" means a systematic process
5 of implementing measures that assure overall management and
6 cost containment of services delivered.
7 (u) "Utilization review" means the evaluation of the
8 appropriateness of both the level and the quality of health
9 care and health services provided to a patient, including, but
10 not limited to, evaluation of the appropriateness of
11 treatment, hospitalization, or office visits based on
12 medically accepted standards. Such evaluation must be
13 accomplished by means of a system that identifies the
14 utilization of medical services based on medically accepted
15 standards as established by medical consultants with
16 qualifications similar to those providing the care under
17 review, and that refers patterns and practices of
18 overutilization to the division.
19 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--
20 (a) Subject to the limitations specified elsewhere in
21 this chapter, the employer shall furnish to the employee such
22 medically necessary remedial treatment, care, and attendance
23 for such period as the nature of the injury or the process of
24 recovery may require, including medicines, medical supplies,
25 durable medical equipment, orthoses, prostheses, and other
26 medically necessary apparatus. Remedial treatment, care, and
27 attendance, including work-hardening programs or
28 pain-management programs accredited by the Commission on
29 Accreditation of Rehabilitation Facilities or Joint Commission
30 on the Accreditation of Health Organizations or
31 pain-management programs affiliated with medical schools,
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1 shall be considered as covered treatment only when such care
2 is given based on a referral by a physician as defined in this
3 chapter. Each facility shall maintain outcome data, including
4 work status at discharges, total program charges, total number
5 of visits, and length of stay. The department shall utilize
6 such data and report to the President of the Senate and the
7 Speaker of the House of Representatives regarding the efficacy
8 and cost-effectiveness of such program, no later than October
9 1, 1994. Medically necessary treatment, care, and attendance
10 does not include chiropractic services in excess of 18
11 treatments or rendered 8 weeks beyond the date of the initial
12 chiropractic treatment, whichever comes first, unless the
13 carrier authorizes additional treatment or the employee is
14 catastrophically injured.
15 (b) The employer shall provide appropriate
16 professional or nonprofessional attendant care performed only
17 at the direction and control of a physician when such care is
18 medically necessary. The value of nonprofessional attendant
19 care provided by a family member must be determined as
20 follows:
21 1. If the family member is not employed, the per-hour
22 value equals the federal minimum hourly wage.
23 2. If the family member is employed and elects to
24 leave that employment to provide attendant or custodial care,
25 the per-hour value of that care equals the per-hour value of
26 the family member's former employment, not to exceed the
27 per-hour value of such care available in the community at
28 large. A family member or a combination of family members
29 providing nonprofessional attendant care under this paragraph
30 may not be compensated for more than a total of 12 hours per
31 day.
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1 (c) If the employer fails to provide treatment or care
2 required by this section after request by the injured
3 employee, the employee may obtain such treatment at the
4 expense of the employer, if the treatment is compensable and
5 medically necessary. There must be a specific request for the
6 treatment, and the employer or carrier must be given a
7 reasonable time period within which to provide the treatment
8 or care. However, the employee is not entitled to recover any
9 amount personally expended for the treatment or service unless
10 he or she has requested the employer to furnish that treatment
11 or service and the employer has failed, refused, or neglected
12 to do so within a reasonable time or unless the nature of the
13 injury requires such treatment, nursing, and services and the
14 employer or his or her superintendent or foreman, having
15 knowledge of the injury, has neglected to provide the
16 treatment or service.
17 (d) The carrier has the right to transfer the care of
18 an injured employee from the attending health care provider if
19 an independent medical examination determines that the
20 employee is not making appropriate progress in recuperation.
21 (e) Except in emergency situations and for treatment
22 rendered by a managed care arrangement, after any initial
23 examination and diagnosis by a physician providing remedial
24 treatment, care, and attendance, and before a proposed course
25 of medical treatment begins, each insurer shall review, in
26 accordance with the requirements of this chapter, the proposed
27 course of treatment, to determine whether such treatment would
28 be recognized as reasonably prudent. The review must be in
29 accordance with all applicable workers' compensation practice
30 parameters. The insurer must accept any such proposed course
31 of treatment unless the insurer notifies the physician of its
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1 specific objections to the proposed course of treatment by the
2 close of the tenth business day after notification by the
3 physician, or a supervised designee of the physician, of the
4 proposed course of treatment.
5 (3) PROVIDER ELIGIBILITY; AUTHORIZATION.--
6 (a) As a condition to eligibility for payment under
7 this chapter, a health care provider who renders services must
8 be a certified health care provider and must receive
9 authorization from the carrier before providing treatment.
10 This paragraph does not apply to emergency care. The Agency
11 for Health Care Administration division shall adopt rules to
12 implement the certification of health care providers. As a
13 one-time prerequisite to obtaining certification, the Agency
14 for Health Care Administration division shall require each
15 physician to demonstrate proof of completion of a minimum
16 5-hour course that covers the subject areas of cost
17 containment, utilization control, ergonomics, and the practice
18 parameters adopted by the division governing the physician's
19 field of practice. The Agency for Health Care Administration
20 division shall coordinate with the Agency for Health Care
21 Administration, the Florida Medical Association, the Florida
22 Osteopathic Medical Association, the Florida Chiropractic
23 Association, the Florida Podiatric Medical Association, the
24 Florida Optometric Association, the Florida Dental
25 Association, and other health professional organizations and
26 their respective boards as deemed necessary by the Agency for
27 Health Care Administration in complying with this subsection.
28 No later than October 1, 2000 1994, the Agency for Health Care
29 Administration division shall adopt rules regarding the
30 criteria and procedures for approval of courses and the filing
31 of proof of completion by the physicians.
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1 (b) A health care provider who renders emergency care
2 must notify the carrier by the close of the third business day
3 after it has rendered such care. If the emergency care results
4 in admission of the employee to a health care facility, the
5 health care provider must notify the carrier by telephone
6 within 24 hours after initial treatment. Emergency care is not
7 compensable under this chapter unless the injury requiring
8 emergency care arose as a result of a work-related accident.
9 Pursuant to chapter 395, all licensed physicians and health
10 care providers in this state shall be required to make their
11 services available for emergency treatment of any employee
12 eligible for workers' compensation benefits. To refuse to make
13 such treatment available is cause for revocation of a license.
14 (c) A health care provider may not refer the employee
15 to another health care provider, diagnostic facility, therapy
16 center, or other facility without prior authorization from the
17 carrier, except when emergency care is rendered. Any referral
18 must be to a health care provider that has been certified by
19 the Agency for Health Care Administration division, unless the
20 referral is for emergency treatment.
21 (d) A carrier must respond, by telephone or in
22 writing, to a request for authorization by the close of the
23 third business day after receipt of the request. A carrier who
24 fails to respond to a written request for authorization for
25 referral for medical treatment by the close of the third
26 business day after receipt of the request consents to the
27 medical necessity for such treatment. All such requests must
28 be made to the carrier. Notice to the carrier does not include
29 notice to the employer.
30 (e) Carriers shall adopt procedures for receiving,
31 reviewing, documenting, and responding to requests for
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1 authorization. Such procedures shall be for a health care
2 provider certified under this section.
3 (f) By accepting payment under this chapter for
4 treatment rendered to an injured employee, a health care
5 provider consents to the jurisdiction of the Agency for Health
6 Care Administration division as set forth in subsection (11)
7 and to the submission of all records and other information
8 concerning such treatment to the Agency for Health Care
9 Administration division in connection with a reimbursement
10 dispute, audit, or review as provided by this section. The
11 health care provider must further agree to comply with any
12 decision of the Agency for Health Care Administration division
13 rendered under this section.
14 (g) The employee is not liable for payment for medical
15 treatment or services provided pursuant to this section except
16 as otherwise provided in this section.
17 (h) The provisions of s. 455.654 are applicable to
18 referrals among health care providers, as defined in
19 subsection (1), treating injured workers.
20 (i) Notwithstanding paragraph (d), a claim for
21 specialist consultations, surgical operations,
22 physiotherapeutic or occupational therapy procedures, X-ray
23 examinations, or special diagnostic laboratory tests that cost
24 more than $1,000 and other specialty services that the Agency
25 for Health Care Administration division identifies by rule is
26 not valid and reimbursable unless the services have been
27 expressly authorized by the carrier, or unless the carrier has
28 failed to respond within 10 days to a written request for
29 authorization, or unless emergency care is required. The
30 insurer shall not refuse to authorize such consultation or
31 procedure unless the health care provider or facility is not
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1 authorized or certified or unless an expert medical advisor
2 has determined that the consultation or procedure is not
3 medically necessary or otherwise compensable under this
4 chapter. Authorization of a treatment plan does not constitute
5 express authorization for purposes of this section, except to
6 the extent the carrier provides otherwise in its authorization
7 procedures. This paragraph does not limit the carrier's
8 obligation to identify and disallow overutilization or billing
9 errors.
10 (j) Notwithstanding anything in this chapter to the
11 contrary, a sick or injured employee shall be entitled, at all
12 times, to free, full, and absolute choice in the selection of
13 the pharmacy or pharmacist dispensing and filling
14 prescriptions for medicines required under this chapter. It is
15 expressly forbidden for the Agency for Health Care
16 Administration division, an employer, or a carrier, or any
17 agent or representative of the agency division, an employer,
18 or a carrier to select the pharmacy or pharmacist which the
19 sick or injured employee must use; condition coverage or
20 payment on the basis of the pharmacy or pharmacist utilized;
21 or to otherwise interfere in the selection by the sick or
22 injured employee of a pharmacy or pharmacist.
23 (4) NOTICE OF TREATMENT TO CARRIER; FILING WITH AGENCY
24 FOR HEALTH CARE ADMINISTRATION DIVISION.--
25 (a) Any health care provider providing necessary
26 remedial treatment, care, or attendance to any injured worker
27 shall submit treatment reports to the carrier in a format
28 prescribed by the Agency for Health Care Administration
29 division. A claim for medical or surgical treatment is not
30 valid or enforceable against such employer or employee,
31 unless, by the close of the third business day following the
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1 first treatment, the physician providing the treatment
2 furnishes to the employer or carrier a preliminary notice of
3 the injury and treatment on forms prescribed by the Agency for
4 Health Care Administration division and, within 15 days
5 thereafter, furnishes to the employer or carrier a complete
6 report, and subsequent thereto furnishes progress reports, if
7 requested by the employer or insurance carrier, at intervals
8 of not less than 3 weeks apart or at less frequent intervals
9 if requested on forms prescribed by the Agency for Health Care
10 Administration division.
11 (b) Each medical report or bill obtained or received
12 by the employer, the carrier, or the injured employee, or the
13 attorney for the employer, carrier, or injured employee, with
14 respect to the remedial treatment or care of the injured
15 employee, including any report of an examination, diagnosis,
16 or disability evaluation, must be filed with the Agency for
17 Health Care Administration Division of Workers' Compensation
18 pursuant to rules adopted by the agency division. The health
19 care provider shall also furnish to the injured employee or to
20 his or her attorney, on demand, a copy of his or her office
21 chart, records, and reports, and may charge the injured
22 employee an amount authorized by the Agency for Health Care
23 Administration division for the copies. Each such health care
24 provider shall provide to the Agency for Health Care
25 Administration division any additional information about the
26 remedial treatment, care, and attendance that the Agency for
27 Health Care Administration division reasonably requests.
28 (c) It is the policy for the administration of the
29 workers' compensation system that there be reasonable access
30 to medical information by all parties to facilitate the
31 self-executing features of the law. Notwithstanding the
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1 limitations in s. 455.667 and subject to the limitations in s.
2 381.004, upon the request of the employer, the carrier, or the
3 attorney for either of them, the medical records of an injured
4 employee must be furnished to those persons and the medical
5 condition of the injured employee must be discussed with those
6 persons, if the records and the discussions are restricted to
7 conditions relating to the workplace injury. Any such
8 discussions may be held before or after the filing of a claim
9 without the knowledge, consent, or presence of any other party
10 or his or her agent or representative. A health care provider
11 who willfully refuses to provide medical records or to discuss
12 the medical condition of the injured employee, after a
13 reasonable request is made for such information pursuant to
14 this subsection, shall be subject by the Agency for Health
15 Care Administration division to one or more of the penalties
16 set forth in paragraph (8)(b).
17 (5) INDEPENDENT MEDICAL EXAMINATIONS.--
18 (a) In any dispute concerning overutilization, medical
19 benefits, compensability, or disability under this chapter,
20 the carrier or the employee may select an independent medical
21 examiner. The examiner may be a health care provider treating
22 or providing other care to the employee. An independent
23 medical examiner may not render an opinion outside his or her
24 area of expertise, as demonstrated by licensure and applicable
25 practice parameters.
26 (b) Each party is bound by his or her selection of an
27 independent medical examiner and is entitled to an alternate
28 examiner only if:
29 1. The examiner is not qualified to render an opinion
30 upon an aspect of the employee's illness or injury which is
31 material to the claim or petition for benefits;
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1 2. The examiner ceases to practice in the specialty
2 relevant to the employee's condition;
3 3. The examiner is unavailable due to injury, death,
4 or relocation outside a reasonably accessible geographic area;
5 or
6 4. The parties agree to an alternate examiner.
7
8 Any party may request, or a judge of compensation claims may
9 require, designation of an Agency for Health Care
10 Administration a division medical advisor as an independent
11 medical examiner. The opinion of the advisors acting as
12 examiners shall not be afforded the presumption set forth in
13 paragraph (9)(c).
14 (c) The carrier may, at its election, contact the
15 claimant directly to schedule a reasonable time for an
16 independent medical examination. The carrier must confirm the
17 scheduling agreement in writing within 5 days and notify
18 claimant's counsel, if any, at least 7 days before the date
19 upon which the independent medical examination is scheduled to
20 occur. An attorney representing a claimant is not authorized
21 to schedule independent medical evaluations under this
22 subsection.
23 (d) If the employee fails to appear for the
24 independent medical examination without good cause and fails
25 to advise the physician at least 24 hours before the scheduled
26 date for the examination that he or she cannot appear, the
27 employee is barred from recovering compensation for any period
28 during which he or she has refused to submit to such
29 examination. Further, the employee shall reimburse the carrier
30 50 percent of the physician's cancellation or no-show fee
31 unless the carrier that schedules the examination fails to
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1 timely provide to the employee a written confirmation of the
2 date of the examination pursuant to paragraph (c) which
3 includes an explanation of why he or she failed to appear. The
4 employee may appeal to a judge of compensation claims for
5 reimbursement when the carrier withholds payment in excess of
6 the authority granted by this section.
7 (e) No medical opinion other than the opinion of a
8 medical advisor appointed by the judge of compensation claims
9 or the Agency for Health Care Administration division, an
10 independent medical examiner, or an authorized treating
11 provider is admissible in proceedings before the judges of
12 compensation claims.
13 (f) Attorney's fees incurred by an injured employee in
14 connection with delay of or opposition to an independent
15 medical examination, including, but not limited to, motions
16 for protective orders, are not recoverable under this chapter.
17 (6) UTILIZATION REVIEW.--Carriers shall review all
18 bills, invoices, and other claims for payment submitted by
19 health care providers in order to identify overutilization and
20 billing errors, and may hire peer review consultants or
21 conduct independent medical evaluations. Such consultants,
22 including peer review organizations, are immune from liability
23 in the execution of their functions under this subsection to
24 the extent provided in s. 766.101. If a carrier finds that
25 overutilization of medical services or a billing error has
26 occurred, it must disallow or adjust payment for such services
27 or error without order of a judge of compensation claims or
28 the Agency for Health Care Administration division, if the
29 carrier, in making its determination, has complied with this
30 section and rules adopted by the Agency for Health Care
31 Administration division.
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1 (7) UTILIZATION AND REIMBURSEMENT DISPUTES.--
2 (a) Any health care provider, carrier, or employer who
3 elects to contest the disallowance or adjustment of payment by
4 a carrier under subsection (6) must, within 30 days after
5 receipt of notice of disallowance or adjustment of payment,
6 petition the Agency for Health Care Administration division to
7 resolve the dispute. The petitioner must serve a copy of the
8 petition on the carrier and on all affected parties by
9 certified mail. The petition must be accompanied by all
10 documents and records that support the allegations contained
11 in the petition. Failure of a petitioner to submit such
12 documentation to the Agency for Health Care Administration
13 division results in dismissal of the petition.
14 (b) The carrier must submit to the Agency for Health
15 Care Administration division within 10 days after receipt of
16 the petition all documentation substantiating the carrier's
17 disallowance or adjustment. Failure of the carrier to submit
18 the requested documentation to the Agency for Health Care
19 Administration division within 10 days constitutes a waiver of
20 all objections to the petition.
21 (c) Within 60 days after receipt of all documentation,
22 the Agency for Health Care Administration division must
23 provide to the petitioner, the carrier, and the affected
24 parties a written determination of whether the carrier
25 properly adjusted or disallowed payment. The Agency for Health
26 Care Administration division must be guided by standards and
27 policies set forth in this chapter, including all applicable
28 reimbursement schedules, in rendering its determination.
29 (d) If the Agency for Health Care Administration
30 division finds an improper disallowance or improper adjustment
31 of payment by an insurer, the insurer shall reimburse the
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1 health care provider, facility, insurer, or employer within 30
2 days, subject to the penalties provided in this subsection.
3 (e) The Agency for Health Care Administration division
4 shall adopt rules to carry out this subsection. The rules may
5 include provisions for consolidating petitions filed by a
6 petitioner and expanding the timetable for rendering a
7 determination upon a consolidated petition.
8 (f) Any carrier that engages in a pattern or practice
9 of arbitrarily or unreasonably disallowing or reducing
10 payments to health care providers may be subject to one or
11 more of the following penalties imposed by the Agency for
12 Health Care Administration division:
13 1. Repayment of the appropriate amount to the health
14 care provider.
15 2. An administrative fine assessed by the Agency for
16 Health Care Administration division in an amount not to exceed
17 $5,000 per instance of improperly disallowing or reducing
18 payments.
19 3. Award of the health care provider's costs,
20 including a reasonable attorney's fee, for prosecuting the
21 petition.
22 (8) PATTERN OR PRACTICE OF OVERUTILIZATION.--
23 (a) Carriers must report to the Agency for Health Care
24 Administration division all instances of overutilization
25 including, but not limited to, all instances in which the
26 carrier disallows or adjusts payment. The Agency for Health
27 Care Administration division shall determine whether a pattern
28 or practice of overutilization exists.
29 (b) If the Agency for Health Care Administration
30 division determines that a health care provider has engaged in
31 a pattern or practice of overutilization or a violation of
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1 this chapter or rules adopted by the Agency for Health Care
2 Administration division, it may impose one or more of the
3 following penalties:
4 1. An order of the Agency for Health Care
5 Administration division barring the provider from payment
6 under this chapter;
7 2. Deauthorization of care under review;
8 3. Denial of payment for care rendered in the future;
9 4. Decertification of a health care provider certified
10 as an expert medical advisor under subsection (9) or of a
11 rehabilitation provider certified under s. 440.49;
12 5. An administrative fine assessed by the Agency for
13 Health Care Administration division in an amount not to exceed
14 $5,000 per instance of overutilization or violation; and
15 6. Notification of and review by the appropriate
16 licensing authority pursuant to s. 440.106(3).
17 (9) EXPERT MEDICAL ADVISORS.--
18 (a) The Agency for Health Care Administration division
19 shall certify expert medical advisors in each specialty to
20 assist the Agency for Health Care Administration division and
21 the judges of compensation claims within the advisor's area of
22 expertise as provided in this section. The Agency for Health
23 Care Administration division shall, in a manner prescribed by
24 rule, in certifying, recertifying, or decertifying an expert
25 medical advisor, consider the qualifications, training,
26 impartiality, and commitment of the health care provider to
27 the provision of quality medical care at a reasonable cost. As
28 a prerequisite for certification or recertification, the
29 Agency for Health Care Administration division shall require,
30 at a minimum, that an expert medical advisor have specialized
31 workers' compensation training or experience under the
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1 workers' compensation system of this state and board
2 certification or board eligibility.
3 (b) The Agency for Health Care Administration division
4 shall contract with or employ expert medical advisors to
5 provide peer review or medical consultation to the Agency for
6 Health Care Administration division or to a judge of
7 compensation claims in connection with resolving disputes
8 relating to reimbursement, differing opinions of health care
9 providers, and health care and physician services rendered
10 under this chapter. Expert medical advisors contracting with
11 the Agency for Health Care Administration division shall, as a
12 term of such contract, agree to provide consultation or
13 services in accordance with the timetables set forth in this
14 chapter and to abide by rules adopted by the Agency for Health
15 Care Administration division, including, but not limited to,
16 rules pertaining to procedures for review of the services
17 rendered by health care providers and preparation of reports
18 and recommendations for submission to the Agency for Health
19 Care Administration division.
20 (c) If there is disagreement in the opinions of the
21 health care providers, if two health care providers disagree
22 on medical evidence supporting the employee's complaints or
23 the need for additional medical treatment, or if two health
24 care providers disagree that the employee is able to return to
25 work, the Agency for Health Care Administration division may,
26 and the judge of compensation claims shall, upon his or her
27 own motion or within 15 days after receipt of a written
28 request by either the injured employee, the employer, or the
29 carrier, order the injured employee to be evaluated by an
30 expert medical advisor. The opinion of the expert medical
31 advisor is presumed to be correct unless there is clear and
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1 convincing evidence to the contrary as determined by the judge
2 of compensation claims. The expert medical advisor appointed
3 to conduct the evaluation shall have free and complete access
4 to the medical records of the employee. An employee who fails
5 to report to and cooperate with such evaluation forfeits
6 entitlement to compensation during the period of failure to
7 report or cooperate.
8 (d) The expert medical advisor must complete his or
9 her evaluation and issue his or her report to the Agency for
10 Health Care Administration division or to the judge of
11 compensation claims within 45 days after receipt of all
12 medical records. The expert medical advisor must furnish a
13 copy of the report to the carrier and to the employee.
14 (e) An expert medical advisor is not liable under any
15 theory of recovery for evaluations performed under this
16 section without a showing of fraud or malice. The protections
17 of s. 766.101 apply to any officer, employee, or agent of the
18 Agency for Health Care Administration division and to any
19 officer, employee, or agent of any entity with which the
20 Agency for Health Care Administration division has contracted
21 under this subsection.
22 (f) If the Agency for Health Care Administration
23 division or a judge of compensation claims determines that the
24 services of a certified expert medical advisor are required to
25 resolve a dispute under this section, the carrier must
26 compensate the advisor for his or her time in accordance with
27 a schedule adopted by the Agency for Health Care
28 Administration division. The Agency for Health Care
29 Administration division may assess a penalty not to exceed
30 $500 against any carrier that fails to timely compensate an
31 advisor in accordance with this section.
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1 (10) WITNESS FEES.--Any health care provider who gives
2 a deposition shall be allowed a witness fee. The amount
3 charged by the witness may not exceed $200 per hour. An expert
4 witness who has never provided direct professional services to
5 a party but has merely reviewed medical records and provided
6 an expert opinion or has provided only direct professional
7 services that were unrelated to the workers' compensation case
8 may not be allowed a witness fee in excess of $200 per day.
9 (11) AUDITS BY AGENCY FOR HEALTH CARE ADMINISTRATION
10 DIVISION; JURISDICTION.--
11 (a) The Agency for Health Care Administration Division
12 of Workers' Compensation of the Department of Labor and
13 Employment Security may investigate health care providers to
14 determine whether providers are complying with this chapter
15 and with rules adopted by the Agency for Health Care
16 Administration division, whether the providers are engaging in
17 overutilization, and whether providers are engaging in
18 improper billing practices. If the Agency for Health Care
19 Administration division finds that a health care provider has
20 improperly billed, overutilized, or failed to comply with
21 division rules of the Agency for Health Care Administration or
22 the requirements of this chapter it must notify the provider
23 of its findings and may determine that the health care
24 provider may not receive payment from the carrier or may
25 impose penalties as set forth in subsection (8) or other
26 sections of this chapter. If the health care provider has
27 received payment from a carrier for services that were
28 improperly billed or for overutilization, it must return those
29 payments to the carrier. The Agency for Health Care
30 Administration division may assess a penalty not to exceed
31 $500 for each overpayment that is not refunded within 30 days
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1 after notification of overpayment by the Agency for Health
2 Care Administration division or carrier.
3 (b) The Agency for Health Care Administration division
4 shall monitor and audit carriers to determine if medical bills
5 are paid in accordance with this section and Agency for Health
6 Care Administration division rules. Any employer, if
7 self-insured, or carrier found by the Agency for Health Care
8 Administration division not to be within 90 percent compliance
9 as to the payment of medical bills after July 1, 1994, must be
10 assessed a fine not to exceed 1 percent of the prior year's
11 assessment levied against such entity under s. 440.51 for
12 every quarter in which the entity fails to attain 90-percent
13 compliance. The Agency for Health Care Administration division
14 shall fine an employer or carrier, pursuant to rules adopted
15 by the Agency for Health Care Administration division, for
16 each late payment of compensation that is below the minimum
17 90-percent performance standard. Any carrier that is found to
18 be not in compliance in subsequent consecutive quarters must
19 implement a medical-bill review program approved by the Agency
20 for Health Care Administration division, and the carrier is
21 subject to disciplinary action by the Department of Insurance.
22 (c) The Agency for Health Care Administration division
23 has exclusive jurisdiction to decide any matters concerning
24 reimbursement, to resolve any overutilization dispute under
25 subsection (7), and to decide any question concerning
26 overutilization under subsection (8), which question or
27 dispute arises after January 1, 1994.
28 (d) The following Agency for Health Care
29 Administration division actions do not constitute agency
30 action subject to review under ss. 120.569 and 120.57 and do
31 not constitute actions subject to s. 120.56: referral by the
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1 entity responsible for utilization review; a decision by the
2 Agency for Health Care Administration division to refer a
3 matter to a peer review committee; establishment by a health
4 care provider or entity of procedures by which a peer review
5 committee reviews the rendering of health care services; and
6 the review proceedings, report, and recommendation of the peer
7 review committee.
8 (12) CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM
9 REIMBURSEMENT ALLOWANCES.--
10 (a) A three-member panel is created, consisting of the
11 Insurance Commissioner, or the Insurance Commissioner's
12 designee, and two members to be appointed by the Governor,
13 subject to confirmation by the Senate, one member who, on
14 account of present or previous vocation, employment, or
15 affiliation, shall be classified as a representative of
16 employers, the other member who, on account of previous
17 vocation, employment, or affiliation, shall be classified as a
18 representative of employees. The panel shall determine
19 statewide schedules of maximum reimbursement allowances for
20 medically necessary treatment, care, and attendance provided
21 by physicians, hospitals, ambulatory surgical centers,
22 work-hardening programs, pain programs, and durable medical
23 equipment. The maximum reimbursement allowances for inpatient
24 hospital care shall be based on a schedule of per diem rates,
25 to be approved by the three-member panel no later than March
26 1, 1994, to be used in conjunction with a precertification
27 manual as determined by the division. All compensable charges
28 for hospital outpatient care shall be reimbursed at 75 percent
29 of usual and customary charges. Until the three-member panel
30 approves a schedule of per diem rates for inpatient hospital
31 care and it becomes effective, all compensable charges for
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1 hospital inpatient care must be reimbursed at 75 percent of
2 their usual and customary charges. Annually, the three-member
3 panel shall adopt schedules of maximum reimbursement
4 allowances for physicians, hospital inpatient care, hospital
5 outpatient care, ambulatory surgical centers, work-hardening
6 programs, and pain programs. However, the maximum percentage
7 of increase in the individual reimbursement allowance may not
8 exceed the percentage of increase in the Consumer Price Index
9 for the previous year. An individual physician, hospital,
10 ambulatory surgical center, pain program, or work-hardening
11 program shall be reimbursed either the usual and customary
12 charge for treatment, care, and attendance, the agreed-upon
13 contract price, or the maximum reimbursement allowance in the
14 appropriate schedule, whichever is less.
15 (b) As to reimbursement for a prescription medication,
16 the reimbursement amount for a prescription shall be the
17 average wholesale price times 1.2 plus $4.18 for the
18 dispensing fee, except where the carrier has contracted for a
19 lower amount. Fees for pharmaceuticals and pharmaceutical
20 services shall be reimbursable at the applicable fee schedule
21 amount. Where the employer or carrier has contracted for such
22 services and the employee elects to obtain them through a
23 provider not a party to the contract, the carrier shall
24 reimburse at the schedule, negotiated, or contract price,
25 whichever is lower.
26 (c) Reimbursement for all fees and other charges for
27 such treatment, care, and attendance, including treatment,
28 care, and attendance provided by any hospital or other health
29 care provider, ambulatory surgical center, work-hardening
30 program, or pain program, must not exceed the amounts provided
31 by the uniform schedule of maximum reimbursement allowances as
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1 determined by the panel or as otherwise provided in this
2 section. This subsection also applies to independent medical
3 examinations performed by health care providers under this
4 chapter. Until the three-member panel approves a uniform
5 schedule of maximum reimbursement allowances and it becomes
6 effective, all compensable charges for treatment, care, and
7 attendance provided by physicians, ambulatory surgical
8 centers, work-hardening programs, or pain programs shall be
9 reimbursed at the lowest maximum reimbursement allowance
10 across all 1992 schedules of maximum reimbursement allowances
11 for the services provided regardless of the place of service.
12 In determining the uniform schedule, the panel shall first
13 approve the data which it finds representative of prevailing
14 charges in the state for similar treatment, care, and
15 attendance of injured persons. Each health care provider,
16 health care facility, ambulatory surgical center,
17 work-hardening program, or pain program receiving workers'
18 compensation payments shall maintain records verifying their
19 usual charges. In establishing the uniform schedule of maximum
20 reimbursement allowances, the panel must consider:
21 1. The levels of reimbursement for similar treatment,
22 care, and attendance made by other health care programs or
23 third-party providers;
24 2. The impact upon cost to employers for providing a
25 level of reimbursement for treatment, care, and attendance
26 which will ensure the availability of treatment, care, and
27 attendance required by injured workers;
28 3. The financial impact of the reimbursement
29 allowances upon health care providers and health care
30 facilities, including trauma centers as defined in s. 395.401,
31 and its effect upon their ability to make available to injured
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1 workers such medically necessary remedial treatment, care, and
2 attendance. The uniform schedule of maximum reimbursement
3 allowances must be reasonable, must promote health care cost
4 containment and efficiency with respect to the workers'
5 compensation health care delivery system, and must be
6 sufficient to ensure availability of such medically necessary
7 remedial treatment, care, and attendance to injured workers;
8 and
9 4. The most recent average maximum allowable rate of
10 increase for hospitals determined by the Health Care Board
11 under chapter 408.
12 (13) REMOVAL OF PHYSICIANS FROM LISTS OF THOSE
13 AUTHORIZED TO RENDER MEDICAL CARE.--The Agency for Health Care
14 Administration division shall remove from the list of
15 physicians or facilities authorized to provide remedial
16 treatment, care, and attendance under this chapter the name of
17 any physician or facility found after reasonable investigation
18 to have:
19 (a) Engaged in professional or other misconduct or
20 incompetency in connection with medical services rendered
21 under this chapter;
22 (b) Exceeded the limits of his or her or its
23 professional competence in rendering medical care under this
24 chapter, or to have made materially false statements regarding
25 his or her or its qualifications in his or her application;
26 (c) Failed to transmit copies of medical reports to
27 the employer or carrier, or failed to submit full and truthful
28 medical reports of all his or her or its findings to the
29 employer or carrier as required under this chapter;
30 (d) Solicited, or employed another to solicit for
31 himself or herself or itself or for another, professional
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1 treatment, examination, or care of an injured employee in
2 connection with any claim under this chapter;
3 (e) Refused to appear before, or to answer upon
4 request of, the Agency for Health Care Administration division
5 or any duly authorized officer of the state, any legal
6 question, or to produce any relevant book or paper concerning
7 his or her conduct under any authorization granted to him or
8 her under this chapter;
9 (f) Self-referred in violation of this chapter or
10 other laws of this state; or
11 (g) Engaged in a pattern of practice of
12 overutilization or a violation of this chapter or rules
13 adopted by the Agency for Health Care Administration division.
14 (14) PAYMENT OF MEDICAL FEES.--
15 (a) Except for emergency care treatment, fees for
16 medical services are payable only to a health care provider
17 certified and authorized to render remedial treatment, care,
18 or attendance under this chapter. A health care provider may
19 not collect or receive a fee from an injured employee within
20 this state, except as otherwise provided by this chapter. Such
21 providers have recourse against the employer or carrier for
22 payment for services rendered in accordance with this chapter.
23 (b) Fees charged for remedial treatment, care, and
24 attendance may not exceed the applicable fee schedules adopted
25 under this chapter.
26 (c) Notwithstanding any other provision of this
27 chapter, following overall maximum medical improvement from an
28 injury compensable under this chapter, the employee is
29 obligated to pay a copayment of $10 per visit for medical
30 services. The copayment shall not apply to emergency care
31 provided to the employee.
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1 (15) PRACTICE PARAMETERS.--
2 (a) The Agency for Health Care Administration, in
3 conjunction with the division and appropriate health
4 professional associations and health-related organizations
5 shall develop and may adopt by rule scientifically sound
6 practice parameters for medical procedures relevant to
7 workers' compensation claimants. Practice parameters developed
8 under this section must focus on identifying effective
9 remedial treatments and promoting the appropriate utilization
10 of health care resources. Priority must be given to those
11 procedures that involve the greatest utilization of resources
12 either because they are the most costly or because they are
13 the most frequently performed. Practice parameters for
14 treatment of the 10 top procedures associated with workers'
15 compensation injuries including the remedial treatment of
16 lower-back injuries must be developed by December 31, 1994.
17 (b) The guidelines may be initially based on
18 guidelines prepared by nationally recognized health care
19 institutions and professional organizations but should be
20 tailored to meet the workers' compensation goal of returning
21 employees to full employment as quickly as medically possible,
22 taking into consideration outcomes data collected from managed
23 care providers and any other inpatient and outpatient
24 facilities serving workers' compensation claimants.
25 (c) Procedures must be instituted which provide for
26 the periodic review and revision of practice parameters based
27 on the latest outcomes data, research findings, technological
28 advancements, and clinical experiences, at least once every 3
29 years.
30 (d) Practice parameters developed under this section
31 must be used by carriers and the Agency for Health Care
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1 Administration division in evaluating the appropriateness and
2 overutilization of medical services provided to injured
3 employees.
4 (16)(a) The Workers' Compensation Regulatory Reporting
5 Advisory Council is created within the Agency for Health Care
6 Administration for the purpose of evaluating current reporting
7 provisions of this chapter relating to medical services and
8 supplies, medical benefits and disputes, and workers'
9 compensation managed care arrangements in order to make
10 recommendations to the Governor for providing such information
11 in the most cost-effective and efficient manner. The council
12 shall consist of the representatives of the three carriers
13 with the largest voluntary net premiums written in this state
14 for workers' compensation; three individual self-insurers; and
15 three certified health care providers, appointed by the
16 Governor to serve terms of 4 years each. The Director of the
17 Agency for Health Care Administration or his or her designee
18 and the Director for the Division of Risk Management of the
19 Department of Insurance or his or her designee shall serve as
20 nonvoting members of the council. Each member of the council
21 shall serve until a successor is appointed. The chair and any
22 other officers of the council shall be selected by the council
23 members for a 1-year term and may succeed themselves.
24 (b) The council is assigned to the Agency for Health
25 Care Administration for administrative and fiscal
26 accountability purposes, but the council and its staff shall
27 otherwise function independently of the control and direction
28 of the agency. The agency shall furnish dedicated
29 administrative and secretarial assistance to the council and
30 other assistance to the council as requested.
31
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1 (c) The council shall hold a minimum of four regular
2 meetings annually, and other meetings may be called by the
3 chair upon giving at least 1 week's notice to all members and
4 the public pursuant to chapter 120. Other meetings may also be
5 held upon the written request of at least four other members
6 of the council, with at least 1 week's notice of such meeting
7 being given to all members and the public by the chair
8 pursuant to chapter 120. Emergency meetings may be held
9 without notice upon the request of all members of the council.
10 (d) A majority of the membership of the council
11 constitutes a quorum. An action of the council is not
12 considered adopted unless the action is taken pursuant to the
13 affirmative vote of a majority of the members present, but not
14 fewer than four members of the council at a meeting held
15 pursuant to paragraph (c), and the vote is recorded in the
16 minutes of that meeting.
17 (e) The chair shall cause to be made a complete record
18 of the proceedings of the council. The proceedings of the
19 council shall be open to the public and the records shall be
20 open for public inspection.
21 (f) The meetings of the council shall be held in the
22 central office of the department in Tallahassee unless the
23 chair determines that special circumstances warrant meeting at
24 another location.
25 (g) Members of the council are entitled to per diem
26 and travel expenses pursuant to s. 112.061.
27 Section 11. Effective July 1, 1999, paragraph (f) of
28 subsection (1) of section 440.15, Florida Statutes, 1998
29 Supplement, is amended to read:
30
31
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1 440.15 Compensation for disability.--Compensation for
2 disability shall be paid to the employee, subject to the
3 limits provided in s. 440.12(2), as follows:
4 (1) PERMANENT TOTAL DISABILITY.--
5 (f)1. If permanent total disability results from
6 injuries that occurred subsequent to June 30, 1955, and for
7 which the liability of the employer for compensation has not
8 been discharged under s. 440.20(11) s. 440.20(12), the injured
9 employee shall receive additional weekly compensation benefits
10 equal to 5 percent of her or his weekly compensation rate, as
11 established pursuant to the law in effect on the date of her
12 or his injury, multiplied by the number of calendar years
13 since the date of injury. The weekly compensation payable and
14 the additional benefits payable under this paragraph, when
15 combined, may not exceed the maximum weekly compensation rate
16 in effect at the time of payment as determined pursuant to s.
17 440.12(2). Entitlement to these supplemental payments shall
18 cease at age 62 if the employee is eligible for social
19 security benefits under 42 U.S.C. ss. 402 and 423, whether or
20 not the employee has applied for such benefits. The division
21 may contract with an entity to administer the payment of
22 supplemental benefits to employees injured subsequent to June
23 30, 1955, and before July 1, 1984. These supplemental benefits
24 shall be paid by the division out of the Workers' Compensation
25 Administration Trust Fund when the injury occurred subsequent
26 to June 30, 1955, and before July 1, 1984. These supplemental
27 benefits shall be paid by the employer when the injury
28 occurred on or after July 1, 1984. Supplemental benefits are
29 not payable for any period prior to October 1, 1974.
30 2.a. The division shall provide by rule for the
31 periodic reporting to the division or an administrator of all
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1 earnings of any nature and social security income by the
2 injured employee entitled to or claiming additional
3 compensation under subparagraph 1. Neither the division nor an
4 administrator, nor the employer or carrier, shall make any
5 payment of those additional benefits provided by subparagraph
6 1. for any period during which the employee willfully fails or
7 refuses to report upon request by the division or an
8 administrator in the manner prescribed by such rules.
9 b. The division shall provide by rule for the periodic
10 reporting to the employer or carrier of all earnings of any
11 nature and social security income by the injured employee
12 entitled to or claiming benefits for permanent total
13 disability. The employer or carrier is not required to make
14 any payment of benefits for permanent total disability for any
15 period during which the employee willfully fails or refuses to
16 report upon request by the employer or carrier in the manner
17 prescribed by such rules or if any employee who is receiving
18 permanent total disability benefits refuses to apply for or
19 cooperate with the employer or carrier in applying for social
20 security benefits.
21 3. When an injured employee receives a full or partial
22 lump-sum advance of the employee's permanent total disability
23 compensation benefits, the employee's benefits under this
24 paragraph shall be computed on the employee's weekly
25 compensation rate as reduced by the lump-sum advance.
26 Section 12. Subsections (1) and (4) of section
27 440.1925, Florida Statutes, are amended to read:
28 440.1925 Procedure for resolving maximum medical
29 improvement or permanent impairment disputes.--
30 (1) Notwithstanding the limitations on carrier
31 independent medical examinations in s. 440.13, an employee or
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1 carrier who wishes to obtain an opinion other than the opinion
2 of the treating physician or an Agency for Health Care
3 Administration a division advisor on the issue of permanent
4 impairment may obtain one independent medical examination,
5 except that the employee or carrier who selects the treating
6 physician is not entitled to obtain an alternate opinion on
7 the issue of permanent impairment, unless the parties
8 otherwise agree. This section and s. 440.13(2) do not permit
9 an employee or a carrier to obtain an additional medical
10 opinion on the issue of permanent impairment by requesting an
11 alternate treating physician pursuant to s. 440.13.
12 (4) Only opinions of the employee's treating
13 physician, an Agency for Health Care Administration a division
14 medical advisor, or an independent medical examiner are
15 admissible in proceedings before a judge of compensation
16 claims to resolve maximum medical improvement or impairment
17 disputes.
18 Section 13. Subsection (7) of section 440.25, Florida
19 Statutes, is amended to read:
20 440.25 Procedures for mediation and hearings.--
21 (7) An injured employee claiming or entitled to
22 compensation shall submit to such physical examination by a
23 certified expert medical advisor approved by the Agency for
24 Health Care Administration division or the judge of
25 compensation claims as the Agency for Health Care
26 Administration division or the judge of compensation claims
27 may require. The place or places shall be reasonably
28 convenient for the employee. Such physician or physicians as
29 the employee, employer, or carrier may select and pay for may
30 participate in an examination if the employee, employer, or
31 carrier so requests. Proceedings shall be suspended and no
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1 compensation shall be payable for any period during which the
2 employee may refuse to submit to examination. Any interested
3 party shall have the right in any case of death to require an
4 autopsy, the cost thereof to be borne by the party requesting
5 it; and the judge of compensation claims shall have authority
6 to order and require an autopsy and may, in her or his
7 discretion, withhold her or his findings and award until an
8 autopsy is held.
9 Section 14. Effective July 1, 1999, subsection (7) is
10 added to section 440.38, Florida Statutes, to read:
11 440.38 Security for compensation; insurance carriers
12 and self-insurers.--
13 (7) The division may contract with the Florida
14 Self-Insurers Guaranty Association, Incorporated, for the
15 administration and audit of the individual self-insurers.
16 Section 15. Effective July 1, 1999, paragraph (c) of
17 subsection (3) of section 440.385, Florida Statutes, is
18 amended to read:
19 440.385 Florida Self-Insurers Guaranty Association,
20 Incorporated.--
21 (3) POWERS AND DUTIES.--
22 (c)1. To the extent necessary to secure funds for the
23 payment of covered claims and also to pay the reasonable costs
24 to administer them, the Department of Labor and Employment
25 Security, upon certification of the board of directors, shall
26 levy assessments based on the annual normal premium each
27 employer would have paid had the employer not been
28 self-insured. Every assessment shall be made as a uniform
29 percentage of the figure applicable to all individual
30 self-insurers, provided that the assessment levied against any
31 self-insurer in any one year shall not exceed 1 percent of the
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1 annual normal premium during the calendar year preceding the
2 date of the assessment. Assessments shall be remitted to and
3 administered by the board of directors in the manner specified
4 by the approved plan. Each employer so assessed shall have at
5 least 30 days' written notice as to the date the assessment is
6 due and payable. The association shall levy assessments
7 against any newly admitted member of the association so that
8 the basis of contribution of any newly admitted member is the
9 same as previously admitted members, provision for which shall
10 be contained in the plan of operation.
11 2. If, in any one year, funds available from such
12 assessments, together with funds previously raised, are not
13 sufficient to make all the payments or reimbursements then
14 owing, the funds available shall be prorated, and the unpaid
15 portion shall be paid as soon thereafter as sufficient
16 additional funds become available.
17 3. No state funds of any kind shall be allocated or
18 paid to the association or any of its accounts except those
19 state funds accruing to the association by and through the
20 assignment of rights of an insolvent employer or for the
21 purpose of auditing individual self-insurers.
22 Section 16. Effective July 1, 1999, subsection (4) of
23 section 440.44, Florida Statutes, is amended to read:
24 440.44 Workers' compensation; staff organization.--
25 (4) MERIT SYSTEM PRINCIPLE OF PERSONNEL
26 ADMINISTRATION.--Subject to the other provisions of this
27 chapter, the division is authorized to appoint, and prescribe
28 the duties and powers of, bureau chiefs, attorneys,
29 accountants, qualified rehabilitation providers medical
30 advisers, technical assistants, inspectors, claims examiners,
31
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1 and such other employees as may be necessary in the
2 performance of its duties under this chapter.
3 Section 17. Effective July 1, 1999, subsection (2) of
4 section 440.4416, Florida Statutes, is amended to read:
5 440.4416 Workers' Compensation Oversight Board.--
6 (2) POWERS AND DUTIES; ORGANIZATION.--
7 (a) The board shall have all the powers necessary and
8 convenient to carry out and effectuate the purposes of this
9 section, including, but not limited to, the power to:
10 1. Conduct public hearings.
11 2. Report to the Legislature by January 1, 1995, as to
12 the feasibility of a return-to-work program that includes
13 incentives for employers who encourage such a program and
14 disincentives for employers who hinder such a program.
15 2.3. Prescribe qualifications for board employees.
16 3.4. Appear on its own behalf before other boards,
17 commissions, or agencies of the state or Federal Government.
18 4.5. Make and execute contracts to the extent that
19 such contracts are consistent with duties and powers set forth
20 in this section and elsewhere in the law of this state.
21 (b) The board shall adopt bylaws, formulate workers'
22 compensation legislation or amendments, review, advise, and
23 appear before the Legislature in connection with legislation
24 that impacts the workers' compensation system, advise the
25 division on policy, administrative and legislative issues, and
26 appear before other state or federal agencies in connection
27 with matters impacting the workers' compensation system.
28 (c) The board shall select a chair who shall serve for
29 a period of 2 years and until a successor is elected and
30 qualified. The chair shall be the chief administrative officer
31
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1 of the board and shall have the authority to plan, direct,
2 coordinate, and execute the powers and duties of the board.
3 (d) The board shall hold such meetings during the year
4 as it deems necessary, except that the chair, a quorum of the
5 board, or the division may call meetings. The board shall
6 maintain transcripts of each meeting. Such transcripts shall
7 be available to any interested person in accordance with
8 chapter 119.
9 (e) The board shall approve the bylaws or amendments
10 thereto by unanimous vote. All other board actions or
11 recommendations shall be approved by not less than a majority
12 vote of employee representatives and majority vote of employer
13 representatives, unless the bylaws otherwise provide.
14 (f) The board shall evaluate the current reporting
15 requirements for carriers and individual self-insurers under
16 the provisions of this chapter and make recommendations to the
17 Governor, the President of the Senate, and the Speaker of the
18 House of Representatives, on or before January 1 of each year,
19 for revising the reporting requirements to facilitate the
20 reporting of information to the division in the most
21 cost-effective and efficient manner.
22 Section 18. Subsection (4) of section 440.50, Florida
23 Statutes, 1998 Supplement, is amended to read:
24 440.50 Workers' Compensation Administration Trust
25 Fund.--
26 (4)(a) All civil penalties that are imposed by the
27 division, as provided in this chapter, if not voluntarily
28 paid, may be collected by civil suit brought by the division
29 and shall be paid into the Workers' Compensation
30 Administration Trust such Fund.
31
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1 (b) All civil penalties that are imposed by the
2 Department of Insurance, as provided in this chapter, shall be
3 deposited into the Insurance Commissioner's Regulatory Trust
4 Fund.
5 (c) All civil penalties that are imposed by the Agency
6 for Health Care Administration, as provided in this chapter,
7 shall be deposited into the Health Care Trust Fund.
8 Section 19. Subsection (6) of section 440.51, Florida
9 Statutes, is amended to read:
10 440.51 Expenses of administration.--
11 (6)(a) The division may require from each carrier, at
12 such time and in accordance with such rules regulations as the
13 division prescribes may prescribe, reports in respect to all
14 gross earned premiums and of all payments of compensation made
15 by such carrier during each prior period, and may determine
16 the amounts paid by each carrier and the amounts paid by all
17 carriers during such period.
18 (b) The division Department of Insurance may require
19 from each self-insurer, at such time and in accordance with
20 such rules regulations as the division Department of Insurance
21 prescribes, reports in respect to wages paid, the amount of
22 premiums such self-insurer would have to pay if insured, and
23 all payments of compensation made by such self-insurer during
24 each prior period, and may determine the amounts paid by each
25 self-insurer and the amounts paid by all self-insurers during
26 such period. For the purposes of this section, the payroll
27 records of each self-insurer shall be open to annual
28 inspection and audit by the division Department of Insurance
29 or its authorized representative, during regular business
30 hours; and if any audit of such records of a self-insurer
31 discloses a deficiency in the amounts reported to the division
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1 Department of Insurance or in the amounts paid to the division
2 Department of Insurance by a self-insurer pursuant to this
3 section, the division or its representative Department of
4 Insurance may assess the cost of such audit against the
5 self-insurer.
6 Section 20. Effective July 1, 1999, section 440.525,
7 Florida Statutes, is amended to read:
8 440.525 Examination of carriers.--Beginning July 1,
9 1994, The division of Workers' Compensation of the Department
10 of Labor and Employment Security may examine each carrier as
11 often as is warranted to ensure that carriers are fulfilling
12 their obligations under the law, and shall examine each
13 carrier not less frequently than once every 3 years. The
14 examination must cover the preceding 3 fiscal years of the
15 carrier's operations and must commence within 12 months after
16 the end of the most recent fiscal year being covered by the
17 examination. The examination may cover any period of the
18 carrier's operations since the last previous examination. The
19 examination may be conducted by an independent professional
20 examiner under contract with the division, in which case
21 payment shall be made directly to the contracted examiner by
22 the insurer or employer in accordance with rates and terms
23 agreed to by the division and the examiner.
24 Section 21. Effective July 1, 1999, section 440.59,
25 Florida Statutes, is amended to read:
26 440.59 Reporting requirements.--
27 (1) The Department of Labor and Employment Security
28 shall annually prepare a report in the most effective and
29 efficient manner possible of the administration of this
30 chapter for the preceding calendar year, including a detailed
31 statement of the receipts of and expenditures from the fund
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1 established in s. 440.50 and a statement of the causes of the
2 accidents leading to the injuries for which the awards were
3 made, together with such recommendations as the department
4 considers advisable. On or before September 15 of each year,
5 the department shall submit a copy of the report to the
6 Governor, the President of the Senate, the Speaker of the
7 House of Representatives, the Democratic and Republican
8 Leaders of the Senate and the House of Representatives, and
9 the chairs of the legislative committees having jurisdiction
10 over workers' compensation.
11 (2) The Division of Workers' Compensation of the
12 Department of Labor and Employment Security shall annually
13 analyze complete on a quarterly basis an analysis of the
14 previous calendar year's quarter's injuries that which
15 resulted in workers' compensation claims. The analysis shall
16 be broken down by risk classification, shall show for each
17 such risk classification the frequency and severity for the
18 various types of injury, and shall include an analysis of the
19 causes of such injuries. Upon request, the division shall
20 distribute to each employer and self-insurer in the state
21 covered by the Workers' Compensation Law the data relevant to
22 its workforce. Upon request, the report shall also be
23 distributed to the insurers authorized to write workers'
24 compensation insurance in the state.
25 (3) The division shall annually prepare and make
26 available a closed claim report for all claims for which the
27 employee lost more than 7 days from work and shall submit a
28 copy of the report to the Governor, the President of the
29 Senate, the Speaker of the House of Representatives, the
30 Democratic and Republican Leaders of the Senate and the House
31 of Representatives, and the chairs of the legislative
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1 committees having jurisdiction over workers' compensation on
2 or before September 15 of each year. The closed claim report
3 shall include, but not be limited to, an analysis of all
4 claims closed during the preceding year as to the date of
5 accident, age of the injured employee, occupation of the
6 injured employee, type of injury, body part affected, type and
7 duration of indemnity benefits paid, permanent impairment
8 rating, medical benefits identified by type of health care
9 provider, and type and cost of any rehabilitation benefits
10 provided.
11 (4) The division shall prepare and make available an
12 annual report for all claims for which the employee lost more
13 than 7 days from work and shall submit a copy of the report to
14 the Governor, the President of the Senate, the Speaker of the
15 House of Representatives, the Democratic and Republican
16 Leaders of the Senate and the House of Representatives, and
17 the chairs of the legislative committees having jurisdiction
18 over workers' compensation, on or before September 15 of each
19 year. The annual report shall include a status report on all
20 cases involving work-related injuries in the previous 10
21 years. The annual report shall include, but not be limited to,
22 the number of open and closed cases, the number of cases
23 receiving various types of benefits, the cash and medical
24 benefits paid between the date of injury and the evaluation
25 date, the number of litigated cases, and the amount of
26 attorney's fees paid in each case.
27 (5) The Chief Judge must prepare an annual report
28 summarizing the disposition of mediation conferences and must
29 submit the report to the Governor, the President of the
30 Senate, the Speaker of the House of Representatives, the
31 Democratic and Republican Leaders of the Senate and the House
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1 of Representatives, and the chairs of the legislative
2 committees having jurisdiction over workers' compensation, on
3 or before September 15 of each year.
4 Section 22. All powers, duties, functions, rules,
5 records, personnel, property, and unexpended balances of
6 appropriations, allocations, or other funds of the Department
7 of Insurance related to the examination of individual
8 self-insurers, as established in chapter 440, Florida
9 Statutes, are transferred by a type two transfer, as defined
10 in section 20.06(2), Florida Statutes, from the Department of
11 Insurance to the Division of Workers' Compensation.
12 Section 23. All powers, duties, functions, rules,
13 records, personnel, property, and unexpended balances of
14 appropriations, allocations, or other funds of the Division of
15 Workers' Compensation related to the enforcement of employer
16 compliance with coverage requirements, proof of coverage, and
17 exemptions, as established in chapter 440, Florida Statutes,
18 are transferred by a type two transfer, as defined in section
19 20.06(2), Florida Statutes, from the Division of Workers'
20 Compensation to the Department of Insurance.
21 Section 24. All powers, duties, functions, rules,
22 records, personnel, property, and unexpended balances of
23 appropriations, allocations, or other funds of the Division of
24 Workers' Compensation related to medical services and
25 supplies, dispute resolution, and medical data reporting
26 requirements, as established in chapter 440, Florida Statutes,
27 are transferred by a type two transfer, as defined in section
28 20.06(2), Florida Statutes, from the Division of Workers'
29 Compensation to the Agency for Health Care Administration.
30 Section 25. Seven positions within the Division of
31 Workers' Compensation responsible for the regulation of
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1 individual self-insurers are eliminated, contingent upon the
2 division contracting with Florida Self-Insurers Guaranty
3 Association, Incorporated, as authorized under section
4 440.385, Florida Statutes.
5 Section 26. Sixteen positions within the Division of
6 Workers' Compensation responsible for examining carriers and
7 individual self-insurers are eliminated, contingent upon the
8 division contracting the audit function to independent
9 examiners, as authorized under section 440.525, Florida
10 Statutes.
11 Section 27. Five positions within the Division of
12 Workers' Compensation responsible for administering
13 supplemental benefit payments to workers injured subsequent to
14 July 1, 1984, are eliminated, contingent upon the division
15 contracting with a third-party administrator, as authorized
16 under section 440.15, Florida Statutes.
17 Section 28. Except for this section, which shall take
18 effect upon becoming a law, and except as otherwise provided
19 in this act, this act shall take effect July 1, 2000.
20
21 *****************************************
22 SENATE SUMMARY
23 Transfers functions relating to examination of individual
workers' compensation self-insurers from the Department
24 of Insurance to the Division of Workers' Compensation.
Transfers functions related to enforcement of employer
25 compliance from the Division of Workers' Compensation to
the Department of Insurance. Transfers functions related
26 to medical services, supplies, and data and dispute
resolution from the Division of Workers' Compensation to
27 the Agency for Health Care Administration.
28
29
30
31
61