Senate Bill 1682c1

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    Florida Senate - 2000                           CS for SB 1682

    By the Committee on Governmental Oversight and Productivity





    302-1991A-00

  1                      A bill to be entitled

  2         An act relating to governmental reorganization;

  3         creating s. 17.001, F.S.; establishing the

  4         Office of the Chief Financial Officer; creating

  5         s. 20.121, F.S.; creating the Department of

  6         Financial Services; providing for the Office of

  7         the Commissioner of Insurance; providing for

  8         the Office of the Commissioner of Financial

  9         Institutions; providing for the Office of the

10         Commissioner of Securities and Finance;

11         providing for the office of the Commissioner of

12         the Treasury; establishing the manner of

13         appointment; providing qualifications;

14         transferring the Department of Banking and

15         Finance to the Department of Financial

16         Services; transferring the Department of

17         Insurance to the Department of Financial

18         Services; repealing s. 20.12, F.S.; abolishing

19         the Department of Banking and Finance;

20         repealing s. 20.13, F.S.; abolishing the

21         Department of Insurance; amending s. 20.165,

22         F.S.; transferring the Division of Certified

23         Public Accounting and the Board of Accountancy,

24         of the Department of Business and Professional

25         Regulation to the Department of Financial

26         Services; amending s. 350.061, F.S.;

27         authorizing the Public Counsel to represent the

28         public before the Insurance Rating Commission;

29         amending s. 350.0611, F.S.; authorizing the

30         Public Counsel to represent the public before

31         the Insurance Rating Commission; amending s.

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    Florida Senate - 2000                           CS for SB 1682
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  1         350.0613, F.S.; requiring the Insurance Rating

  2         Commission to furnish pleadings to the Public

  3         Counsel; creating s. 624.055, F.S.; defining

  4         the term "commission"; redesignating parts of

  5         ch. 624, F.S.; creating sections

  6         624.37-624.377, F.S.; creating the Insurance

  7         Rating Commission; establishing its powers and

  8         duties; providing for the appointment and

  9         confirmation of commissioners; establishing

10         terms of office and qualifications of

11         commissioners; establishing standards of

12         conduct; regulating ex parte communications;

13         amending ss. 175.141, 185.12, 408.701, 651.018,

14         F.S.; conforming references; amending s.

15         624.19, F.S.; authorizing the use of forms;

16         amending s. 624.307, F.S.; removing requirement

17         to employ actuaries; amending s. 624.321, F.S.;

18         conforming provisions to include the Insurance

19         Rating Commission; amending s. 624.322, F.S.;

20         conforming provisions to include the Insurance

21         Rating Commission; amending s. 626.9541, F.S.;

22         conforming provisions to substitute the

23         Insurance Rating Commission for the Department

24         of Insurance; amending s. 626.9926, F.S.;

25         conforming provisions to include the Insurance

26         Rating Commission; amending s. 627.031, F.S.;

27         substituting the Insurance Rating Commission

28         for the Department of Insurance; amending s.

29         627.0612, F.S.; conforming provisions to

30         include the commission; amending s. 627.0613,

31         F.S.; removing authority of the consumer

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  1         advocate; amending s. 627.062, F.S.; conforming

  2         provisions to substitute the commission for the

  3         department; repealing arbitration provisions;

  4         amending s. 627.0628, F.S.; modifying

  5         membership on the Florida Commission on

  6         Hurricane Loss Projection Methodology; amending

  7         ss. 627.0645, 627.06501, 627.0651, 627.0653,

  8         627.06535, 627.0654, 627.066, 627.072, 627.091,

  9         627.0915, 627.0916, 627.096, 627.101, 627.111,

10         627.141, 627.151, 627.192, 627.211, 627.212,

11         627.215, 627.221, 627.231, F.S.; substituting

12         the Insurance Rating Commission for the

13         department; amending ss. 627.241, 627.281,

14         627.291, 627.301, 627.311, 627.314, 627.331,

15         627.351, 627.3512, 627.357, 627.361, 627.410,

16         627.411, 627.6475, 627.6498, 627.6675,

17         627.6699, 627.6745, 627.678, 627.682, 627.727,

18         627.780, 627.782, 627.7825, 627.783, 627.793,

19         627.9407, 636.017, 641.19, 641.31, 641.3903,

20         641.3922, 641.402, 641.42, 642.027, 648.33,

21         F.S.; conforming provisions to changes made by

22         this act; authorizing the Governor to make

23         appointments to the Insurance Rating

24         Commission; transferring regulatory authority

25         related to rates to the Insurance Rating

26         Commission; directing the Division of Statutory

27         Revision to prepare draft legislation;

28         establishing the Financial Services Transition

29         Task Force; providing membership; establishing

30         duties; creating ss. 442.0011 and

31         633.801-633.825, F.S.; transferring to the

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  1         Division of State Fire Marshal, Department of

  2         Insurance, all powers, duties, and

  3         responsibilities of chapter 442, excluding ss.

  4         442.101 through 442.127, which relate to

  5         firefighter employers, firefighter employees,

  6         and firefighter places of employment, from the

  7         Division of Safety, Department of Labor and

  8         Employment Security; providing an effective

  9         date.

10

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

12

13         Section 1.  Effective January 7, 2003, section 17.001,

14  Florida Statutes, is created to read:

15         17.001  Financial Officer.--As provided in s. 4(c),

16  Art. IV of the State Constitution, the Chief Financial Officer

17  is the chief fiscal officer of the state and is responsible

18  for settling and approving accounts against the state and

19  keeping all state funds and securities.

20         Section 2.  Effective January 7, 2003, section 20.121,

21  Florida Statutes, is created to read:

22         20.121  Department of Financial Services.--There is

23  created a Department of Financial Services.

24         (1)  The head of the Department of Financial Services

25  is the Chief Financial Officer.

26         (2)(a)  The Division of Administration is created

27  within the Office of the Chief Financial Officer. The division

28  is headed by a director who is appointed by and serves at the

29  pleasure of the Chief Financial Officer. A Bureau of Financial

30  and Support Services is created within the division.

31

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    Florida Senate - 2000                           CS for SB 1682
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  1         (b)  The Division of Financial Investigations is

  2  created within the Office of the Chief Financial Officer. Its

  3  responsibilities include, but are not limited to, conducting

  4  investigations of insurance fraud. The division is headed by a

  5  director who is appointed by and serves at the pleasure of the

  6  Chief Financial Officer.

  7         (3)  Notwithstanding the requirements of s. 20.04 and

  8  except as otherwise provided in this section, the principal

  9  policy and program development unit of the department is the

10  "office." Each office is headed by a commissioner who is

11  appointed by and serves at the pleasure of the Chief Financial

12  Officer. Each commissioner shall perform such duties as are

13  specified in this section and such other duties as are

14  assigned by the Chief Financial Officer. The principal unit of

15  each office is the "division." Each division is headed by a

16  "director."

17         (4)(a)  The Office of the Commissioner of Insurance is

18  established in the Department of Financial Services. The

19  office shall be headed by the Commissioner of Insurance. Prior

20  to appointment as commissioner, the Commissioner of Insurance

21  must have had, within the previous 10 years, at least 5 years

22  of experience as a senior officer of an insurer, as defined in

23  s. 624.03, or insurance agency, as defined in s. 626.094, or

24  as an examiner or other senior employee of a state or federal

25  agency having regulatory responsibility over insurers or

26  insurance agencies.

27         (b)  The Office of the Commissioner of Insurance shall

28  consist of the following divisions:

29         1.  Division of Insurance Agents and Agencies;

30         2.  Division of Insurance Consumer Services;

31         3.  Division of Insurer Services;

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    Florida Senate - 2000                           CS for SB 1682
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  1         4.  Division of Rehabilitation and Liquidation;

  2         5.  Division of Risk Management; and

  3         6.  Division of State Fire Marshal.

  4         (5)(a)  The Office of the Commissioner of Financial

  5  Institutions is established in the Department of Financial

  6  Services. The office shall be headed by the Commissioner of

  7  Financial Institutions. Prior to appointment, the Commissioner

  8  of Financial Institutions must have had, within the previous

  9  10 years, at least 5 years of experience as a senior officer

10  of a financial institution, as defined in s. 655.005(h), or as

11  an examiner or other senior employee of a state or federal

12  agency having regulatory responsibility over financial

13  institutions.

14         (b)  The Office of the Commissioner of Financial

15  Institutions shall consist of the following divisions:

16         1.  Division of Banking; and

17         2.  Division of Credit Unions.

18         (c)  For purposes of chapter 120, the Commissioner of

19  Financial Institutions is the agency head for all divisions

20  within the Office of the Commissioner of Financial

21  Institutions. The commissioner shall be responsible for, and

22  take final agency action related to, the implementation and

23  enforcement of all statutes and rules within the regulatory

24  authority delegated to the Office of the Commissioner of

25  Financial Institutions and the divisions created within that

26  office. The Commissioner of Financial Institutions may serve

27  as the Director of the Division of Banking or the Director of

28  the Division of Credit Unions, or both.

29         (6)(a)  The Office of the Commissioner of Securities

30  and Finance is established within the Department of Financial

31  Services. The office shall be headed by the Commissioner of

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  1  Securities and Finance. Prior to appointment, the Commissioner

  2  of Securities and Finance must have had, within the previous

  3  10 years, at least 5 years of experience as a senior officer

  4  of a securities or finance company or as an examiner or other

  5  senior employee of a state or federal agency having regulatory

  6  responsibility over securities or finance companies.

  7         (b)  The Office of the Commissioner of Securities and

  8  Finance shall consist of the following divisions:

  9         1.  Division of Securities and Finance; and

10         2.  Division of Certified Public Accounting.

11         (c)  For purposes of chapter 120, the Commissioner of

12  Securities and Finance is the agency head for all divisions

13  within the Office of the Commissioner of Securities and

14  Finance. The commissioner shall be responsible for, and take

15  final agency action related to, the implementation and

16  enforcement of all statutes and rules within the regulatory

17  authority delegated to the Office of the Commissioner of

18  Securities and Finance. The Commissioner of Securities and

19  Finance may serve as Director of the Division of Securities

20  and Finance.

21         (7)(a)  The Office of the Commissioner of Treasury is

22  established in the Department of Financial Services. The

23  office shall be headed by the Commissioner of the Treasury.

24  The Commissioner of the Treasury must possess sufficient

25  education, business experience, and managerial ability to

26  effectively perform his or her duties.

27         (b)  The Office of the Commissioner of the Treasury

28  shall consist of the following divisions:

29         1.  Division of Accounting and Auditing, which is

30  responsible for, without limitation, unclaimed property;

31         2.  Division of Information Services; and

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  1         3.  Division of Treasury. A section of Government

  2  Employee Deferred Compensation is created within the Division

  3  of Treasury which shall administer the Government Employees

  4  Deferred Compensation Plan established under s. 112.215 for

  5  state employees.

  6         Section 3.  Effective January 7, 2003, the Department

  7  of Banking and Finance is transferred by a type two transfer,

  8  as defined in section 20.06, Florida Statutes, to the

  9  Department of Financial Services.

10         Section 4.  Effective January 7, 2003, the Department

11  of Insurance is transferred by a type two transfer, as defined

12  in section 20.06, Florida Statutes, to the Department of

13  Financial Services.

14         Section 5.  Effective January 7, 2003, section 20.12,

15  Florida Statutes, is repealed.

16         Section 6.  Effective January 7, 2003, section 20.13,

17  Florida Statutes, is repealed.

18         Section 7.  Effective January 7, 2003, subsections (2)

19  and (4) of section 20.165, Florida Statutes, are amended to

20  read:

21         20.165  Department of Business and Professional

22  Regulation.--There is created a Department of Business and

23  Professional Regulation.

24         (2)  The following divisions of the Department of

25  Business and Professional Regulation are established:

26         (a)  Division of Administration.

27         (b)  Division of Alcoholic Beverages and Tobacco.

28         (c)  Division of Certified Public Accounting.

29         1.  The director of the division shall be appointed by

30  the secretary of the department, subject to approval by a

31  majority of the Board of Accountancy.

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  1         2.  The offices of the division shall be located in

  2  Gainesville.

  3         (c)(d)  Division of Florida Land Sales, Condominiums,

  4  and Mobile Homes.

  5         (d)(e)  Division of Hotels and Restaurants.

  6         (e)(f)  Division of Pari-mutuel Wagering.

  7         (f)(g)  Division of Professions.

  8         (g)(h)  Division of Real Estate.

  9         1.  The director of the division shall be appointed by

10  the secretary of the department, subject to approval by a

11  majority of the Florida Real Estate Commission.

12         2.  The offices of the division shall be located in

13  Orlando.

14         (h)(i)  Division of Regulation.

15         (i)(j)  Division of Technology, Licensure, and Testing.

16         (4)(a)  The following boards are established within the

17  Division of Professions:

18         1.  Board of Architecture and Interior Design, created

19  under part I of chapter 481.

20         2.  Florida Board of Auctioneers, created under part VI

21  of chapter 468.

22         3.  Barbers' Board, created under chapter 476.

23         4.  Florida Building Code Administrators and Inspectors

24  Board, created under part XII of chapter 468.

25         5.  Construction Industry Licensing Board, created

26  under part I of chapter 489.

27         6.  Board of Cosmetology, created under chapter 477.

28         7.  Electrical Contractors' Licensing Board, created

29  under part II of chapter 489.

30         8.  Board of Employee Leasing Companies, created under

31  part XI of chapter 468.

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  1         9.  Board of Funeral Directors and Embalmers, created

  2  under chapter 470.

  3         10.  Board of Landscape Architecture, created under

  4  part II of chapter 481.

  5         11.  Board of Pilot Commissioners, created under

  6  chapter 310.

  7         12.  Board of Professional Engineers, created under

  8  chapter 471.

  9         13.  Board of Professional Geologists, created under

10  chapter 492.

11         14.  Board of Professional Surveyors and Mappers,

12  created under chapter 472.

13         15.  Board of Veterinary Medicine, created under

14  chapter 474.

15         (b)  The following board and commission are established

16  within the Division of Real Estate:

17         1.  Florida Real Estate Appraisal Board, created under

18  part II of chapter 475.

19         2.  Florida Real Estate Commission, created under part

20  I of chapter 475.

21         (c)  The following board is established within the

22  Division of Certified Public Accounting:

23         1.  Board of Accountancy, created under chapter 473.

24         Section 8.  Effective January 7, 2003, the Division of

25  Certified Public Accounting and the Board of Accountancy

26  created under chapter 473, Florida Statutes, are transferred

27  to the Department of Financial Services by a type two

28  transfer, as defined in section 20.06, Florida Statutes.

29         Section 9.  Subsection (1) of section 350.061, Florida

30  Statutes, is amended to read:

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    Florida Senate - 2000                           CS for SB 1682
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  1         350.061  Public Counsel; appointment; oath;

  2  restrictions on Public Counsel and his or her employees.--

  3         (1)  The Joint Legislative Auditing Committee shall

  4  appoint a Public Counsel by majority vote of the members of

  5  the committee to represent the general public of Florida

  6  before the Florida Public Service Commission and the Insurance

  7  Rating Commission. The Public Counsel shall be an attorney

  8  admitted to practice before the Florida Supreme Court and

  9  shall serve at the pleasure of the Joint Legislative Auditing

10  Committee, subject to annual reconfirmation by the committee.

11  Vacancies in the office shall be filled in the same manner as

12  the original appointment.

13         Section 10.  Section 350.0611, Florida Statutes, is

14  amended to read:

15         350.0611  Public Counsel; duties and powers.--It shall

16  be the duty of the Public Counsel to provide legal

17  representation for the people of the state in proceedings

18  before the Public Service Commission and the Insurance Rating

19  Commission. As used in this section, the term "commission"

20  includes both such commissions.  The Public Counsel shall have

21  such powers as are necessary to carry out the duties of his or

22  her office, including, but not limited to, the following

23  specific powers:

24         (1)  To recommend to the commission, by petition, the

25  commencement of any proceeding or action or to appear, in the

26  name of the state or its citizens, in any proceeding or action

27  before the commission and urge therein any position which he

28  or she deems to be in the public interest, whether consistent

29  or inconsistent with positions previously adopted by the

30  commission, and utilize therein all forms of discovery

31  available to attorneys in civil actions generally, subject to

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  1  protective orders of the commission which shall be reviewable

  2  by summary procedure in the circuit courts of this state;

  3         (2)  To have access to and use of all files, records,

  4  and data of the commission available to any other attorney

  5  representing parties in a proceeding before the commission;

  6         (3)  In any proceeding in which he or she has

  7  participated as a party, to seek review of any determination,

  8  finding, or order of the commission, or of any hearing

  9  examiner designated by the commission, in the name of the

10  state or its citizens;

11         (4)  To prepare and issue reports, recommendations, and

12  proposed orders to the commission, the Governor, and the

13  Legislature on any matter or subject within the jurisdiction

14  of the commission, and to make such recommendations as he or

15  she deems appropriate for legislation relative to commission

16  procedures, rules, jurisdiction, personnel, and functions;

17         (5)  To appear before other state agencies, federal

18  agencies, and state and federal courts in connection with

19  matters under the jurisdiction of the commission, in the name

20  of the state or its citizens.

21         Section 11.  Section 350.0613, Florida Statutes, is

22  amended to read:

23         350.0613  Public Counsel; employees; receipt of

24  pleadings.--The committee may authorize the Public Counsel to

25  employ clerical and technical assistants whose qualifications,

26  duties, and responsibilities the committee shall from time to

27  time prescribe. The committee may from time to time authorize

28  retention of the services of additional attorneys or experts

29  to the extent that the best interests of the people of the

30  state will be better served thereby, including the retention

31  of expert witnesses and other technical personnel for

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  1  participation in contested proceedings before the commission.

  2  The Public Service Commission and the Insurance Rating

  3  Commission shall furnish the Public Counsel with copies of the

  4  initial pleadings in all proceedings before the commission,

  5  and if the Public Counsel intervenes as a party in any

  6  proceeding he or she shall be served with copies of all

  7  subsequent pleadings, exhibits, and prepared testimony, if

  8  used. Upon filing notice of intervention, the Public Counsel

  9  shall serve all interested parties with copies of such notice

10  and all of his or her subsequent pleadings and exhibits.

11         Section 12.  Section 624.055, Florida Statutes, is

12  created to read:

13         624.055  "Commission" defined.--As used in the Florida

14  Insurance Code, the term "commission" means the Insurance

15  Rating Commission as established pursuant to s. 624.37.

16         Section 13.  Sections 624.401-624.489, Florida

17  Statutes, are redesignated as part IV of chapter 624, Florida

18  Statutes; sections 624.501-624.610, Florida Statutes, are

19  redesignated as part V of chapter 624, Florida Statutes;

20  sections 624.601-624.610, Florida Statutes, are redesignated

21  as part VI of chapter 624, Florida Statutes; and sections

22  624.80-624.91, Florida Statutes, are redesignated as part VII

23  of chapter 624, Florida Statutes.

24         Section 14.  Part III of chapter 624, Florida Statutes,

25  consisting of sections 624.37, 624.371, 624.372, 624.373,

26  624.374, 624.375, 624.376, and 624.377, Florida Statutes, is

27  created to read:

28                             Part III

29                   Insurance Rating Commission

30         624.37  Insurance Rating Commission; creation;

31  legislative intent.--There is created the Insurance Rating

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  1  Commission, an independent commission housed within the

  2  Department of Insurance. The Insurance Rating Commission shall

  3  have authority to approve rates for insurance as provided in

  4  this code, effective January 1, 2001, and shall exercise the

  5  powers and duties with respect to insurance rates which are

  6  provided to the department.

  7         624.371  Insurance Rating Commission; terms of

  8  commissioners.--

  9         (1)  The Insurance Rating Commission is

10  administratively housed in, but independent of, the

11  department. The commission shall have such powers and duties

12  regarding rates for insurance policies and health maintenance

13  organization contracts as are provided in the Florida

14  Insurance Code.

15         (2)  The commission shall consist of five full-time,

16  salaried commissioners appointed by the Governor and confirmed

17  by the Senate.

18         (3)  For the initial appointment of the commission, two

19  members must be appointed for 2-year terms, one member must be

20  appointed for a 3-year term, and two members must be appointed

21  for 4-year terms. All subsequent appointments of commissioners

22  will be for 4-year terms. Vacancies on the commission shall be

23  filled for the unexpired portion of the term.

24         (4)  One member of the commission shall be elected by

25  majority vote to serve as chair for a term of 2 years. A

26  member may not serve two consecutive terms as chair.

27         (5)  The primary duty of the chair is to serve as chief

28  administrative officer of the commission. The chair may also

29  participate in any proceedings pending before the commission.

30  The chair may assign the various proceedings pending before

31  the commission requiring hearings to two or more commissioners

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  1  or to the commission's office of hearing examiners under the

  2  supervision of the office of general counsel. Only those

  3  commissioners assigned to a proceeding requiring hearings may

  4  participate in the final decision of the commission as to that

  5  proceeding; however, if only two commissioners are assigned to

  6  a proceeding requiring hearings and they cannot agree on a

  7  final decision, the chair shall cast the deciding vote for

  8  final disposition of the proceeding. If more than two

  9  commissioners are assigned to any proceeding, a majority of

10  the members assigned constitutes a quorum and a majority vote

11  of the members assigned is required for final commission

12  disposition of those proceedings requiring actual

13  participation by the commissioners. If a commissioner becomes

14  unavailable after assignment to a particular proceeding, the

15  chair shall assign a substitute commissioner. In those

16  proceedings assigned to a hearing examiner, following the

17  conclusion of the hearings, the designated hearing examiner

18  shall prepare recommendations for final disposition by a

19  majority vote of the commission. A petition for

20  reconsideration must be voted upon by those commissioners

21  participating in the final disposition of the proceedings.

22         (6)  A majority of the commissioners may determine that

23  the full commission will sit in any proceeding. The public

24  counsel or a person or entity whose rates are regulated by the

25  commission and substantially affected by a proceeding may file

26  a petition requesting that the proceeding be assigned to the

27  full commission. Within 15 days after receipt by the

28  commission of any petition or application, the full commission

29  shall dispose of the petition by majority vote and render a

30  written decision thereon prior to assignment of less than the

31  full commission to a proceeding. In disposing of a petition,

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  1  the commission shall consider the overall public interest and

  2  impact of the pending proceeding, including, but not limited

  3  to, the magnitude of a rate filing, the number of

  4  policyholders and insureds affected, and the total premium

  5  revenues requested.

  6         (7)  This section does not prohibit a commissioner who

  7  is designated by the chair from conducting a hearing as

  8  provided under ss. 120.569 and 120.57(1) and the rules of the

  9  commission adopted pursuant thereto.

10         624.372  Qualifications of commissioners.--

11         (1)  Each member of the commission must be competent

12  and knowledgeable, based on actual experience, in at least one

13  of the following subject areas or disciplines:  insurance;

14  accounting; actuarial science; law; or finance.

15         (2)  A commissioner may not, at the time of appointment

16  or during his or her term of office:

17         (a)  Have any financial interest, other than ownership

18  of shares in a mutual fund or interest as a policyholder or

19  contract holder of a stock or mutual insurer or health

20  maintenance organization, in any business entity that,

21  directly or indirectly, owns or controls any person or entity

22  regulated by the commission, in any person or entity regulated

23  by the commission, or in any business entity that, either

24  directly or indirectly, is an affiliate or subsidiary of any

25  person or entity regulated by the commission.

26         (b)  Be employed by or engaged in any business activity

27  with any business entity that, directly or indirectly, owns or

28  controls any person or entity regulated by the commission, any

29  person or entity regulated by the commission, or any business

30  entity that, directly or indirectly, is an affiliate or

31

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  1  subsidiary of any person or entity regulated by the

  2  commission.

  3         (3)  If any commissioner becomes disqualified, he or

  4  she shall at once remove such disqualification or resign, and

  5  upon his or her failure to do so, he or she shall be suspended

  6  from office by the Governor.

  7         624.373  Commissioners; standards of conduct.--

  8         (1)  LEGISLATIVE INTENT.--In addition to the provision

  9  of part III of chapter 112, which are applicable to insurance

10  rating commissioners by virtue of their being public officers

11  and full-time employees of the executive branch of government,

12  the conduct of insurance rating commissioners is governed by

13  the standards of conduct provided in this section. In the

14  event of a conflict between this section and part III of

15  chapter 112, the more restrictive provision shall apply.

16         (2)  STANDARDS OF CONDUCT.--

17         (a)  A commissioner may not accept anything from any

18  business or entity that, directly or indirectly, owns or

19  controls any person or entity regulated by the commission,

20  from any person or entity regulated by the commission, or from

21  any business entity that, directly or indirectly, is an

22  affiliate or subsidiary of any person or entity regulated by

23  the commission.

24         (b)  If a commissioner acquires any financial interest

25  prohibited by s. 624.372 during his or her term of office as a

26  result of events or actions beyond the commissioner's control,

27  he or she shall immediately sell such financial interest or

28  place such financial interest in a blind trust at a financial

29  institution. A commissioner may not attempt to influence or

30  exercise any control over decisions regarding the blind trust.

31

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  1         (c)  A commissioner may not accept anything from a

  2  party in a proceeding pending before the commission.

  3         (d)  A commissioner, while in office, may not serve as

  4  the representative of any political party or on any executive

  5  committee or other governing body of a political party; serve

  6  as an executive officer or employee of any political party,

  7  committee, organization, or association; receive remuneration

  8  for activities on behalf of any candidate for public office;

  9  engage on behalf of any candidate for public office in the

10  solicitation of votes or other activities on behalf of such

11  candidacy; or become a candidate for election to any public

12  office.

13         (e)  A commissioner, during his or her term of office,

14  may not make any public comment regarding the merits of any

15  proceeding under ss. 120.569 and 120.57 which is pending

16  before the commission.

17         (f)  A commissioner may not conduct himself or herself

18  in an unprofessional manner at any time during the performance

19  of his or her duties.

20         (3)  The Commission on Ethics shall accept and

21  investigate any alleged violations of this section pursuant to

22  the procedures contained in ss. 112.322-112.3241. The

23  Commission on Ethics shall provide the Governor with a report

24  of its findings and recommendations. The Governor may enforce

25  the findings and recommendations of the Commission on Ethics,

26  pursuant to part III of chapter 112. An insurance rating

27  commissioner may request an advisory opinion from the

28  Commission on Ethics, pursuant to s. 112.322(3)(a), regarding

29  the standards of conduct or prohibitions set forth in this

30  section and in ss. 624.372, 624.374, and 624.377.

31         624.374  Ex parte communications.--

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  1         (1)  A commissioner should accord to every person who

  2  is legally interested in a proceeding, or the person's

  3  attorney, full right to be heard according to law, and except

  4  as authorized by law, may not initiate or consider ex parte

  5  communications concerning the merits, threat, or offer of

  6  reward in any proceeding other than a proceeding under s.

  7  120.54 or s. 120.565, workshops, or internal-affairs meetings.

  8  No individual may discuss ex parte with a commissioner the

  9  merits of any issue that he or she knows will be filed with

10  the commission within 90 days. This subsection does not apply

11  to commission staff.

12         (2)  This section does not prohibit any individual

13  policyholder from communicating with a commissioner, provided

14  that the policyholder is representing only himself or herself

15  without compensation.

16         (3)  This section does not apply to oral communications

17  or discussions in scheduled and noticed open public meetings

18  of educational programs or of a conference or other meeting of

19  an association of regulatory agencies.

20         (4)  If a commissioner knowingly receives an ex parte

21  communication relative to a proceeding, other than as set

22  forth in subsection (1), to which he or she is assigned, he or

23  she must place on the record of the proceeding copies of all

24  written communications received and all written responses to

25  the communications and a memorandum stating the substance of

26  all oral communications received and all oral responses made,

27  and shall give written notice to all parties to the

28  communication that such matters have been placed on the

29  record. Any party who wishes to respond to an ex parte

30  communication may do so. The response must be received by the

31  commission within 10 days after receiving notice that the ex

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  1  parte communication has been placed on the record. The

  2  commissioner may, if he or she considers it necessary to avert

  3  the effects of an ex parte communication received by him or

  4  her, withdraw from the proceeding, in which case the chair

  5  shall substitute another commissioner for the proceeding.

  6         (5)  Any individual who makes an ex parte communication

  7  shall submit to the commission a written statement that

  8  describes the nature of the communication and includes the

  9  name of the person making the communication, the name of the

10  commissioner or commissioners receiving the communication,

11  copies of all written communications made and all written

12  responses to the communication, and a memorandum stating the

13  substance of all oral communications received on all oral

14  responses made. The commission shall place on the record of a

15  proceeding all such communications.

16         (6)  Any commissioner who knowingly fails to place on

17  the record any ex parte communications, in violation of this

18  section, within 15 days after the date of such communication

19  is subject to removal and may be assessed a civil penalty not

20  to exceed $5,000.

21         (7)(a)  It is the duty of the Commission on Ethics to

22  receive and investigate sworn complaints of violations of this

23  section pursuant to the procedures contained in ss.

24  112.322-112.3241.

25         (b)  If the Commission on Ethics finds that there has

26  been a violation of this section by a public service

27  commissioner, it shall provide the Governor with a report of

28  its findings and recommendations. The Governor may enforce the

29  findings and recommendations of the Commission on Ethics

30  pursuant to part III of chapter 112.

31

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  1         (c)  If a commissioner fails or refuses to pay the

  2  Commission on Ethics any civil penalty assessed under this

  3  section, the Commission on Ethics may bring an action in any

  4  circuit court to enforce the penalty.

  5         624.375  Enforcement and interpretation.--Any violation

  6  of s. 624.372, s. 624.373, or s. 624.374, or s. 624.377 by a

  7  commissioner, former commissioner, or former employee is be

  8  punishable as provided in ss. 112.317 and 112.324. The

  9  Commission on Ethics may investigate complaints of violation

10  of such sections in the manner provided in part III of chapter

11  112. A commissioner may request an advisory opinion from the

12  Commission of Ethics as provided by s. 112.322(3)(a).

13         624.376  Place of meeting; expenditures; employment of

14  personnel.--

15         (1)  The offices of the commission must be located in

16  the vicinity of Tallahassee, but the commissioners may hold

17  sessions or hearings anywhere in the state at their

18  discretion.

19         (2)  The commission constitutes a separate budget

20  entity to be funded by appropriations from the Insurance

21  Commissioner's Regulatory Trust Fund.

22         (3)  The commission may employ clerical, technical, and

23  professional personnel reasonably necessary for the

24  performance of its duties.

25         (4)  The commission may employ actuaries, who shall be

26  at-will employees and who shall serve at the pleasure of the

27  commission. Actuaries employed under this subsection must be

28  members of the Society of Actuaries or the Casualty Actuarial

29  Society and are exempt from the Career Service System

30  established under chapter 110. The commission shall set the

31  salaries of the actuaries employed under this subsection in

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  1  accordance with s. 216.251(2)(a)5. at levels that are

  2  commensurate with salary levels paid to actuaries by the

  3  insurance industry.

  4         624.377  Former commissioners and employees;

  5  representation of clients before commission.--

  6         (1)  Any former commissioner of the Insurance Rating

  7  Commission is prohibited, for a period of 2 years following

  8  termination of service on the commission, from representing

  9  before the commission any client regulated by the commission.

10         (2)  Any former employee of the commission is

11  prohibited from representing before the commission any client

12  regulated by the commission on any matter that was pending at

13  the time of the employee's termination and in which such

14  former employee had participated.

15         (3)  For a period of 2 years following termination of

16  service on the commission, a former member may not accept

17  employment by or compensation from a business entity that,

18  directly or indirectly, owns or controls a person or entity

19  regulated by the commission, from a person or entity regulated

20  by the commission, from a business entity that, directly or

21  indirectly, is an affiliate or subsidiary of a person or

22  entity regulated by the commission, or from a business entity

23  or trade association that has been a party to a commission

24  proceeding that was pending within the 2 years preceding the

25  member's termination of service on the commission.

26         Section 15.  Section 175.141, Florida Statutes, is

27  amended to read:

28         175.141  Payment of excise tax credit on similar state

29  excise or license tax.--The tax herein authorized to be

30  imposed by each municipality and each special fire control

31  district shall in nowise be in addition to any similar state

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  1  excise or license tax imposed by part V IV of chapter 624, but

  2  the payor of the tax hereby authorized shall receive credit

  3  therefor on his or her said state excise or license tax and

  4  the balance of said state excise or license tax shall be paid

  5  to the Department of Revenue as provided by law.

  6         Section 16.  Section 185.12, Florida Statutes, is

  7  amended to read:

  8         185.12  Payment of excise tax credit on similar state

  9  excise or license tax.--The tax herein authorized shall in

10  nowise be additional to the similar state excise or license

11  tax imposed by part V IV, chapter 624, but the payor of the

12  tax hereby authorized shall receive credit therefor on his or

13  her state excise or license tax and the balance of said state

14  excise or license tax shall be paid to the Department of

15  Revenue as provided by law.

16         Section 17.  Subsection (14) of section 408.701,

17  Florida Statutes, is amended to read:

18         408.701  Community health purchasing; definitions.--As

19  used in ss. 408.70-408.706, the term:

20         (14)  "Health insurer" or "insurer" means an

21  organization licensed by the department under part IV III of

22  chapter 624 or part I of chapter 641.

23         Section 18.  Section 651.018, Florida Statutes, is

24  amended to read:

25         651.018  Administrative supervision.--The department

26  may place a facility in administrative supervision pursuant to

27  part VII VI of chapter 624.

28         Section 19.  Section 624.19, Florida Statutes, is

29  amended to read:

30         624.19  Existing forms and filings.--Every form of

31  insurance document and every rate or other filing lawfully in

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  1  use immediately prior to October 1, 1959, may continue to be

  2  so used or be effective until the department or commission

  3  otherwise prescribes pursuant to this code.

  4         Section 20.  Subsections (6) and (7) of section

  5  624.307, Florida Statutes, are amended to read:

  6         624.307  General powers; duties.--

  7         (6)  The department may employ actuaries who shall be

  8  at-will employees and who shall serve at the pleasure of the

  9  Insurance Commissioner. Actuaries employed pursuant to this

10  paragraph shall be members of the Society of Actuaries or the

11  Casualty Actuarial Society and shall be exempt from the Career

12  Service System established under chapter 110.  The salaries of

13  the actuaries employed pursuant to this paragraph by the

14  department shall be set in accordance with s. 216.251(2)(a)5.

15  and shall be set at levels which are commensurate with salary

16  levels paid to actuaries by the insurance industry.

17         (6)(7)  The department shall, within existing

18  resources, develop and implement an outreach program for the

19  purpose of encouraging the entry of additional insurers into

20  the Florida market.

21         Section 21.  Subsection (1) of section 624.321, Florida

22  Statutes, is amended to read:

23         624.321  Witnesses and evidence.--

24         (1)  As to any examination, investigation, or hearing

25  being conducted under this code, the Insurance Commissioner

26  and Treasurer or her or his designee or a member of the

27  Insurance Rating Commission or his or her designee:

28         (a)  May administer oaths, examine and cross-examine

29  witnesses, receive oral and documentary evidence; and

30         (b)  Shall have the power to subpoena witnesses, compel

31  their attendance and testimony, and require by subpoena the

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  1  production of books, papers, records, files, correspondence,

  2  documents, or other evidence which is relevant to the inquiry.

  3         Section 22.  Section 624.322, Florida Statutes, is

  4  amended to read:

  5         624.322  Testimony compelled; immunity from

  6  prosecution.--

  7         (1)  If any natural person asks to be excused from

  8  attending or testifying or from producing any books, papers,

  9  records, contracts, documents, or other evidence in connection

10  with any examination, hearing, or investigation being

11  conducted by the department or the commission or the examiners

12  of either its examiner, on the ground that the testimony or

13  evidence required of her or him may tend to incriminate the

14  person or subject her or him to a penalty or forfeiture, and

15  shall notwithstanding be directed to give such testimony or

16  produce such evidence, the person must, if so directed by the

17  department or commission and the Department of Legal Affairs,

18  nonetheless comply with such direction; but she or he shall

19  not thereafter be prosecuted or subjected to any penalty or

20  forfeiture for or on account of any transaction, matter, or

21  thing concerning which she or he may have so testified or

22  produced evidence; and no testimony so given or evidence

23  produced shall be received against the person upon any

24  criminal action, investigation, or proceeding.  However, no

25  such person so testifying shall be exempt from prosecution or

26  punishment for any perjury committed by her or him in such

27  testimony, and the testimony or evidence so given or produced

28  shall be admissible against her or him upon any criminal

29  action, investigation, or proceeding concerning such perjury.

30  No license or permit conferred or to be conferred to such

31

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  1  person shall be refused, suspended, or revoked based upon the

  2  use of such testimony.

  3         (2)  Any such individual may execute, acknowledge, and

  4  file in the office of the Department of Insurance or

  5  commission, whichever is applicable, a statement expressly

  6  waiving such immunity or privilege in respect to any

  7  transaction, matter, or thing specified in such statement; and

  8  thereupon the testimony of such individual or such evidence in

  9  relation to such transaction, matter, or thing may be received

10  or produced before any judge or justice, court, tribunal,

11  grand jury, or otherwise; and, if so received or produced,

12  such individual shall not be entitled to any immunity or

13  privileges on account of any testimony she or he may so give

14  or evidence so produced.

15         Section 23.  Paragraph (o) of subsection (1) of section

16  626.9541, Florida Statutes, is amended to read:

17         626.9541  Unfair methods of competition and unfair or

18  deceptive acts or practices defined.--

19         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

20  DECEPTIVE ACTS.--The following are defined as unfair methods

21  of competition and unfair or deceptive acts or practices:

22         (o)  Illegal dealings in premiums; excess or reduced

23  charges for insurance.--

24         1.  Knowingly collecting any sum as a premium or charge

25  for insurance, which is not then provided, or is not in due

26  course to be provided, subject to acceptance of the risk by

27  the insurer, by an insurance policy issued by an insurer as

28  permitted by this code.

29         2.  Knowingly collecting as a premium or charge for

30  insurance any sum in excess of or less than the premium or

31  charge applicable to such insurance, in accordance with the

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  1  applicable classifications and rates as filed with and

  2  approved by the commission department, and as specified in the

  3  policy; or, in cases when classifications, premiums, or rates

  4  are not required by this code to be so filed and approved,

  5  premiums and charges in excess of or less than those specified

  6  in the policy and as fixed by the insurer.  This provision

  7  shall not be deemed to prohibit the charging and collection,

  8  by surplus lines agents licensed under part VIII of this

  9  chapter, of the amount of applicable state and federal taxes,

10  or fees as authorized by s. 626.916(4), in addition to the

11  premium required by the insurer or the charging and

12  collection, by licensed agents, of the exact amount of any

13  discount or other such fee charged by a credit card facility

14  in connection with the use of a credit card, as authorized by

15  subparagraph (q)3., in addition to the premium required by the

16  insurer.  This subparagraph shall not be construed to prohibit

17  collection of a premium for a universal life or a variable or

18  indeterminate value insurance policy made in accordance with

19  the terms of the contract.

20         3.a.  Imposing or requesting an additional premium for

21  a policy of motor vehicle liability, personal injury

22  protection, medical payment, or collision insurance or any

23  combination thereof or refusing to renew the policy solely

24  because the insured was involved in a motor vehicle accident

25  unless the insurer's file contains information from which the

26  insurer in good faith determines that the insured was

27  substantially at fault in the accident.

28         b.  An insurer which imposes and collects such a

29  surcharge or which refuses to renew such policy shall, in

30  conjunction with the notice of premium due or notice of

31  nonrenewal, notify the named insured that he or she is

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  1  entitled to reimbursement of such amount or renewal of the

  2  policy under the conditions listed below and will subsequently

  3  reimburse him or her or renew the policy, if the named insured

  4  demonstrates that the operator involved in the accident was:

  5         (I)  Lawfully parked;

  6         (II)  Reimbursed by, or on behalf of, a person

  7  responsible for the accident or has a judgment against such

  8  person;

  9         (III)  Struck in the rear by another vehicle headed in

10  the same direction and was not convicted of a moving traffic

11  violation in connection with the accident;

12         (IV)  Hit by a "hit-and-run" driver, if the accident

13  was reported to the proper authorities within 24 hours after

14  discovering the accident;

15         (V)  Not convicted of a moving traffic violation in

16  connection with the accident, but the operator of the other

17  automobile involved in such accident was convicted of a moving

18  traffic violation;

19         (VI)  Finally adjudicated not to be liable by a court

20  of competent jurisdiction;

21         (VII)  In receipt of a traffic citation which was

22  dismissed or nolle prossed; or

23         (VIII)  Not at fault as evidenced by a written

24  statement from the insured establishing facts demonstrating

25  lack of fault which are not rebutted by information in the

26  insurer's file from which the insurer in good faith determines

27  that the insured was substantially at fault.

28         c.  In addition to the other provisions of this

29  subparagraph, an insurer may not fail to renew a policy if the

30  insured has had only one accident in which he or she was at

31  fault within the current 3-year period. However, an insurer

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  1  may nonrenew a policy for reasons other than accidents in

  2  accordance with s. 627.728.  This subparagraph does not

  3  prohibit nonrenewal of a policy under which the insured has

  4  had three or more accidents, regardless of fault, during the

  5  most recent 3-year period.

  6         4.  Imposing or requesting an additional premium for,

  7  or refusing to renew, a policy for motor vehicle insurance

  8  solely because the insured committed a noncriminal traffic

  9  infraction as described in s. 318.14 unless the infraction is:

10         a.  A second infraction committed within an 18-month

11  period, or a third or subsequent infraction committed within a

12  36-month period.

13         b.  A violation of s. 316.183, when such violation is a

14  result of exceeding the lawful speed limit by more than 15

15  miles per hour.

16         5.  Upon the request of the insured, the insurer and

17  licensed agent shall supply to the insured the complete proof

18  of fault or other criteria which justifies the additional

19  charge or cancellation.

20         6.  No insurer shall impose or request an additional

21  premium for motor vehicle insurance, cancel or refuse to issue

22  a policy, or refuse to renew a policy because the insured or

23  the applicant is a handicapped or physically disabled person,

24  so long as such handicap or physical disability does not

25  substantially impair such person's mechanically assisted

26  driving ability.

27         7.  No insurer may cancel or otherwise terminate any

28  insurance contract or coverage, or require execution of a

29  consent to rate endorsement, during the stated policy term for

30  the purpose of offering to issue, or issuing, a similar or

31  identical contract or coverage to the same insured with the

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  1  same exposure at a higher premium rate or continuing an

  2  existing contract or coverage with the same exposure at an

  3  increased premium.

  4         8.  No insurer may issue a nonrenewal notice on any

  5  insurance contract or coverage, or require execution of a

  6  consent to rate endorsement, for the purpose of offering to

  7  issue, or issuing, a similar or identical contract or coverage

  8  to the same insured at a higher premium rate or continuing an

  9  existing contract or coverage at an increased premium without

10  meeting any applicable notice requirements.

11         9.  No insurer shall, with respect to premiums charged

12  for motor vehicle insurance, unfairly discriminate solely on

13  the basis of age, sex, marital status, or scholastic

14  achievement.

15         10.  Imposing or requesting an additional premium for

16  motor vehicle comprehensive or uninsured motorist coverage

17  solely because the insured was involved in a motor vehicle

18  accident or was convicted of a moving traffic violation.

19         11.  No insurer shall cancel or issue a nonrenewal

20  notice on any insurance policy or contract without complying

21  with any applicable cancellation or nonrenewal provision

22  required under the Florida Insurance Code.

23         12.  No insurer shall impose or request an additional

24  premium, cancel a policy, or issue a nonrenewal notice on any

25  insurance policy or contract because of any traffic infraction

26  when adjudication has been withheld and no points have been

27  assessed pursuant to s. 318.14(9) and (10).  However, this

28  subparagraph does not apply to traffic infractions involving

29  accidents in which the insurer has incurred a loss due to the

30  fault of the insured.

31

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  1         Section 24.  Section 626.9926, Florida Statutes, is

  2  amended to read:

  3         626.9926  Rate regulation not authorized.--Nothing in

  4  this act shall be construed to authorize the department or

  5  commission to directly or indirectly regulate the amount paid

  6  as consideration for entry into a viatical settlement contract

  7  or viatical settlement purchase agreement.

  8         Section 25.  Subsection (2) of section 627.031, Florida

  9  Statutes, is amended to read:

10         627.031  Purposes of this part; interpretation.--

11         (2)  It is the purpose of this part to protect

12  policyholders and the public against the adverse effects of

13  excessive, inadequate, or unfairly discriminatory insurance

14  rates, and to authorize the commission department to regulate

15  such rates.  If at any time the commission department has

16  reason to believe any such rate is excessive, inadequate, or

17  unfairly discriminatory under the law, it is directed to take

18  the necessary action to cause such rate to comply with the

19  laws of this state.

20         Section 26.  Section 627.0612, Florida Statutes, is

21  amended to read:

22         627.0612  Administrative proceedings in rating

23  determinations.--In any proceeding to determine whether rates,

24  rating plans, or other matters governed by this part comply

25  with the law, the appellate court shall set aside a final

26  order of the department or commission if the department or

27  commission has violated s. 120.57(1)(k) by substituting its

28  findings of fact for findings of an administrative law judge

29  which were supported by competent substantial evidence.

30         Section 27.  Subsection (3) of section 627.0613,

31  Florida Statutes, is amended to read:

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  1         627.0613  Consumer advocate.--The Insurance

  2  Commissioner must appoint a consumer advocate who must

  3  represent the general public of the state before the

  4  department.  The consumer advocate must report directly to the

  5  Insurance Commissioner, but is not otherwise under the

  6  authority of the department or of any employee of the

  7  department.  The consumer advocate has such powers as are

  8  necessary to carry out the duties of the office of consumer

  9  advocate, including, but not limited to, the powers to:

10         (3)  Examine rate and form filings submitted to the

11  department, hire consultants as necessary to aid in the review

12  process, and recommend to the department any position deemed

13  by the consumer advocate to be in the public interest.

14         Section 28.  Subsections (2), (3), and (6) of section

15  627.062, Florida Statutes, are amended to read:

16         627.062  Rate standards.--

17         (2)  As to all such classes of insurance:

18         (a)  Insurers or rating organizations shall establish

19  and use rates, rating schedules, or rating manuals to allow

20  the insurer a reasonable rate of return on such classes of

21  insurance written in this state.  A copy of rates, rating

22  schedules, rating manuals, premium credits or discount

23  schedules, and surcharge schedules, and changes thereto, shall

24  be filed with the commission department under one of the

25  following procedures:

26         1.  If the filing is made at least 90 days before the

27  proposed effective date and the filing is not implemented

28  during the commission's department's review of the filing and

29  any proceeding and judicial review, then such filing shall be

30  considered a "file and use" filing.  In such case, the

31  commission department shall finalize its review by issuance of

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  1  a notice of intent to approve or a notice of intent to

  2  disapprove within 90 days after receipt of the filing. The

  3  notice of intent to approve and the notice of intent to

  4  disapprove constitute agency action for purposes of the

  5  Administrative Procedure Act. Requests for supporting

  6  information, requests for mathematical or mechanical

  7  corrections, or notification to the insurer by the commission

  8  department of its preliminary findings shall not toll the

  9  90-day period during any such proceedings and subsequent

10  judicial review. The rate shall be deemed approved if the

11  commission department does not issue a notice of intent to

12  approve or a notice of intent to disapprove within 90 days

13  after receipt of the filing.

14         2.  If the filing is not made in accordance with the

15  provisions of subparagraph 1., such filing shall be made as

16  soon as practicable, but no later than 30 days after the

17  effective date, and shall be considered a "use and file"

18  filing.  An insurer making a "use and file" filing is

19  potentially subject to an order by the commission department

20  to return to policyholders portions of rates found to be

21  excessive, as provided in paragraph (h).

22         (b)  Upon receiving a rate filing, the commission

23  department shall review the rate filing to determine if a rate

24  is excessive, inadequate, or unfairly discriminatory.  In

25  making that determination, the commission department shall, in

26  accordance with generally accepted and reasonable actuarial

27  techniques, consider the following factors:

28         1.  Past and prospective loss experience within and

29  without this state.

30         2.  Past and prospective expenses.

31

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  1         3.  The degree of competition among insurers for the

  2  risk insured.

  3         4.  Investment income reasonably expected by the

  4  insurer, consistent with the insurer's investment practices,

  5  from investable premiums anticipated in the filing, plus any

  6  other expected income from currently invested assets

  7  representing the amount expected on unearned premium reserves

  8  and loss reserves.  The commission department may adopt

  9  promulgate rules using utilizing reasonable techniques of

10  actuarial science and economics to specify the manner in which

11  insurers shall calculate investment income attributable to

12  such classes of insurance written in this state and the manner

13  in which such investment income shall be used in the

14  calculation of insurance rates.  Such manner shall contemplate

15  allowances for an underwriting profit factor and full

16  consideration of investment income which produce a reasonable

17  rate of return; however, investment income from invested

18  surplus shall not be considered. The profit and contingency

19  factor as specified in the filing shall be used utilized in

20  computing excess profits in conjunction with s. 627.0625.

21         5.  The reasonableness of the judgment reflected in the

22  filing.

23         6.  Dividends, savings, or unabsorbed premium deposits

24  allowed or returned to Florida policyholders, members, or

25  subscribers.

26         7.  The adequacy of loss reserves.

27         8.  The cost of reinsurance.

28         9.  Trend factors, including trends in actual losses

29  per insured unit for the insurer making the filing.

30         10.  Conflagration and catastrophe hazards, if

31  applicable.

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  1         11.  A reasonable margin for underwriting profit and

  2  contingencies.

  3         12.  The cost of medical services, if applicable.

  4         13.  Other relevant factors which impact upon the

  5  frequency or severity of claims or upon expenses.

  6         (c)  In the case of fire insurance rates, consideration

  7  shall be given to the experience of the fire insurance

  8  business during a period of not less than the most recent

  9  5-year period for which such experience is available.

10         (d)  If conflagration or catastrophe hazards are given

11  consideration by an insurer in its rates or rating plan,

12  including surcharges and discounts, the insurer shall

13  establish a reserve for that portion of the premium allocated

14  to such hazard and shall maintain the premium in a catastrophe

15  reserve.  Any removal of such premiums from the reserve for

16  purposes other than paying claims associated with a

17  catastrophe or purchasing reinsurance for catastrophes shall

18  be subject to approval of the commission department. Any

19  ceding commission received by an insurer purchasing

20  reinsurance for catastrophes shall be placed in the

21  catastrophe reserve.

22         (e)  After consideration of the rate factors provided

23  in paragraphs (b), (c), and (d), a rate may be found by the

24  commission department to be excessive, inadequate, or unfairly

25  discriminatory based upon the following standards:

26         1.  Rates shall be deemed excessive if they are likely

27  to produce a profit from Florida business that is unreasonably

28  high in relation to the risk involved in the class of business

29  or if expenses are unreasonably high in relation to services

30  rendered.

31

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  1         2.  Rates shall be deemed excessive if, among other

  2  things, the rate structure established by a stock insurance

  3  company provides for replenishment of surpluses from premiums,

  4  when the replenishment is attributable to investment losses.

  5         3.  Rates shall be deemed inadequate if they are

  6  clearly insufficient, together with the investment income

  7  attributable to them, to sustain projected losses and expenses

  8  in the class of business to which they apply.

  9         4.  A rating plan, including discounts, credits, or

10  surcharges, shall be deemed unfairly discriminatory if it

11  fails to clearly and equitably reflect consideration of the

12  policyholder's participation in a risk management program

13  adopted pursuant to s. 627.0625.

14         5.  A rate shall be deemed inadequate as to the premium

15  charged to a risk or group of risks if discounts or credits

16  are allowed which exceed a reasonable reflection of expense

17  savings and reasonably expected loss experience from the risk

18  or group of risks.

19         6.  A rate shall be deemed unfairly discriminatory as

20  to a risk or group of risks if the application of premium

21  discounts, credits, or surcharges among such risks does not

22  bear a reasonable relationship to the expected loss and

23  expense experience among the various risks.

24         (f)  In reviewing a rate filing, the commission

25  department may require the insurer to provide at the insurer's

26  expense all information necessary to evaluate the condition of

27  the company and the reasonableness of the filing according to

28  the criteria enumerated in this section.

29         (g)  The commission department may at any time review a

30  rate, rating schedule, rating manual, or rate change; the

31  pertinent records of the insurer; and market conditions. If

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  1  the commission department finds on a preliminary basis that a

  2  rate may be excessive, inadequate, or unfairly discriminatory,

  3  the commission department shall initiate proceedings to

  4  disapprove the rate and shall so notify the insurer. However,

  5  the commission department may not disapprove as excessive any

  6  rate for which it has given final approval or which has been

  7  deemed approved for a period of 1 year after the effective

  8  date of the filing unless the commission department finds that

  9  a material misrepresentation or material error was made by the

10  insurer or was contained in the filing. Upon being so

11  notified, the insurer or rating organization shall, within 60

12  days, file with the commission department all information

13  which, in the belief of the insurer or organization, proves

14  the reasonableness, adequacy, and fairness of the rate or rate

15  change. The commission department shall issue a notice of

16  intent to approve or a notice of intent to disapprove pursuant

17  to the procedures of paragraph (a) within 90 days after

18  receipt of the insurer's initial response.  In such instances

19  and in any administrative proceeding relating to the legality

20  of the rate, the insurer or rating organization shall carry

21  the burden of proof by a preponderance of the evidence to show

22  that the rate is not excessive, inadequate, or unfairly

23  discriminatory. After the commission department notifies an

24  insurer that a rate may be excessive, inadequate, or unfairly

25  discriminatory, unless the commission department withdraws the

26  notification, the insurer shall not alter the rate except to

27  conform with the commission's department's notice until the

28  earlier of 120 days after the date the notification was

29  provided or 180 days after the date of the implementation of

30  the rate. The commission department may, subject to chapter

31  120, disapprove without the 60-day notification any rate

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  1  increase filed by an insurer within the prohibited time period

  2  or during the time that the legality of the increased rate is

  3  being contested.

  4         (h)  In the event the commission department finds that

  5  a rate or rate change is excessive, inadequate, or unfairly

  6  discriminatory, the commission department shall issue an order

  7  of disapproval specifying that a new rate or rate schedule

  8  which responds to the findings of the commission department be

  9  filed by the insurer.  The commission department shall further

10  order, for any "use and file" filing made in accordance with

11  subparagraph (a)2., that premiums charged each policyholder

12  constituting the portion of the rate above that which was

13  actuarially justified be returned to such policyholder in the

14  form of a credit or refund. If the commission department finds

15  that an insurer's rate or rate change is inadequate, the new

16  rate or rate schedule filed with the commission department in

17  response to such a finding shall be applicable only to new or

18  renewal business of the insurer written on or after the

19  effective date of the responsive filing.

20         (i)  Except as otherwise specifically provided in this

21  chapter, the commission department shall not prohibit any

22  insurer, including any residual market plan or joint

23  underwriting association, from paying acquisition costs based

24  on the full amount of premium, as defined in s. 627.403,

25  applicable to any policy, or prohibit any such insurer from

26  including the full amount of acquisition costs in a rate

27  filing.

28

29  The provisions of this subsection shall not apply to workers'

30  compensation and employer's liability insurance and to motor

31  vehicle insurance.

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  1         (3)(a)  For individual risks that are not rated in

  2  accordance with the insurer's rates, rating schedules, rating

  3  manuals, and underwriting rules filed with the commission

  4  department and which have been submitted to the insurer for

  5  individual rating, the insurer must maintain documentation on

  6  each risk subject to individual risk rating.  The

  7  documentation must identify the named insured and specify the

  8  characteristics and classification of the risk supporting the

  9  reason for the risk being individually risk rated, including

10  any modifications to existing approved forms to be used on the

11  risk.  The insurer must maintain these records for a period of

12  at least 5 years after the effective date of the policy.

13         (b)  Individual risk rates and modifications to

14  existing approved forms are not subject to this part or part

15  II, except for paragraph (a) and ss. 627.402, 627.403,

16  627.4035, 627.404, 627.405, 627.406, 627.407, 627.4085,

17  627.409, 627.4132, 627.4133, 627.415, 627.416, 627.417,

18  627.419, 627.425, 627.426, 627.4265, 627.427, and 627.428, but

19  are subject to all other applicable provisions of this code

20  and rules adopted thereunder.

21         (c)  This subsection does not apply to private

22  passenger motor vehicle insurance.

23         (6)(a)  After any action with respect to a rate filing

24  that constitutes agency action for purposes of the

25  Administrative Procedure Act, an insurer may, in lieu of

26  demanding a hearing under s. 120.57, require arbitration of

27  the rate filing. Arbitration shall be conducted by a board of

28  arbitrators consisting of an arbitrator selected by the

29  department, an arbitrator selected by the insurer, and an

30  arbitrator selected jointly by the other two arbitrators. Each

31  arbitrator must be certified by the American Arbitration

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  1  Association. A decision is valid only upon the affirmative

  2  vote of at least two of the arbitrators. No arbitrator may be

  3  an employee of any insurance regulator or regulatory body or

  4  of any insurer, regardless of whether or not the employing

  5  insurer does business in this state. The department and the

  6  insurer must treat the decision of the arbitrators as the

  7  final approval of a rate filing. Costs of arbitration shall be

  8  paid by the insurer.

  9         (b)  Arbitration under this subsection shall be

10  conducted pursuant to the procedures specified in ss.

11  682.06-682.10. Either party may apply to the circuit court to

12  vacate or modify the decision pursuant to s. 682.13 or s.

13  682.14. The department shall adopt rules for arbitration under

14  this subsection, which rules may not be inconsistent with the

15  arbitration rules of the American Arbitration Association as

16  of January 1, 1996.

17         (c)  Upon initiation of the arbitration process, the

18  insurer waives all rights to challenge the action of the

19  department under the Administrative Procedure Act or any other

20  provision of law; however, such rights are restored to the

21  insurer if the arbitrators fail to render a decision within 90

22  days after initiation of the arbitration process.

23         Section 29.  Subsection (2) and (3) of section

24  627.0628, Florida Statutes, are amended to read:

25         627.0628  Florida Commission on Hurricane Loss

26  Projection Methodology.--

27         (2)  COMMISSION CREATED.--

28         (a)  There is created the Florida Commission on

29  Hurricane Loss Projection Methodology, which is assigned to

30  the State Board of Administration.  The commission shall be

31  administratively housed within the State Board of

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  1  Administration, but it shall independently exercise the powers

  2  and duties specified in this section.

  3         (b)  The commission shall consist of the following 11

  4  members:

  5         1.  The Public Counsel or his or her designee from the

  6  Office of the Public Counsel insurance consumer advocate.

  7         2.  The Chief Operating Officer of the Florida

  8  Hurricane Catastrophe Fund.

  9         3.  The Executive Director of the Residential Property

10  and Casualty Joint Underwriting Association.

11         4.  The Director of the Division of Emergency

12  Management of the Department of Community Affairs.

13         5.  The actuary member of the Florida Hurricane

14  Catastrophe Fund Advisory Council.

15         6.  Six members appointed by the Insurance Rating

16  Commission Commissioner, as follows:

17         a.  An employee of the Insurance Rating Commission

18  Department of Insurance who is an actuary responsible for

19  property insurance rate filings.

20         b.  An actuary who is employed full time by a property

21  and casualty insurer which was responsible for at least 1

22  percent of the aggregate statewide direct written premium for

23  homeowner's insurance in the calendar year preceding the

24  member's appointment to the commission.

25         c.  An expert in insurance finance who is a full time

26  member of the faculty of the State University System and who

27  has a background in actuarial science.

28         d.  An expert in statistics who is a full time member

29  of the faculty of the State University System and who has a

30  background in insurance.

31

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  1         e.  An expert in computer system design who is a full

  2  time member of the faculty of the State University System.

  3         f.  An expert in meteorology who is a full time member

  4  of the faculty of the State University System and who

  5  specializes in hurricanes.

  6         (c)  Members designated under subparagraphs (b)1.-5.

  7  shall serve on the commission as long as they maintain the

  8  respective offices designated in subparagraphs (b)1.-5.

  9  Members appointed by the Insurance Rating Commission

10  Commissioner under subparagraph (b)6. shall serve on the

11  Florida Commission on Hurricane Loss Projection Methodology

12  for a 4-year term until the end of the term of office of the

13  Insurance Commissioner who appointed them, unless earlier

14  removed by the Insurance Rating Commission Commissioner for

15  cause.  Vacancies on the Florida Commission on Hurricane Loss

16  Projection Methodology shall be filled in the same manner as

17  the original appointment.

18         (d)  The State Board of Administration shall annually

19  appoint one of the members of the commission to serve as

20  chair.

21         (e)  Members of the commission shall serve without

22  compensation, but shall be reimbursed for per diem and travel

23  expenses pursuant to s. 112.061.

24         (f)  The State Board of Administration shall, as a cost

25  of administration of the Florida Hurricane Catastrophe Fund,

26  provide for travel, expenses, and staff support for the

27  commission.

28         (g)  There shall be no liability on the part of, and no

29  cause of action of any nature shall arise against, any member

30  of the commission, any member of the State Board of

31  Administration, or any employee of the State Board of

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  1  Administration for any action taken in the performance of

  2  their duties under this section. In addition, the commission

  3  may, in writing, waive any potential cause of action for

  4  negligence of a consultant, contractor, or contract employee

  5  engaged to assist the commission.

  6         (3)  ADOPTION AND EFFECT OF STANDARDS AND GUIDELINES.--

  7         (a)  The commission shall consider any actuarial

  8  methods, principles, standards, models, or output ranges that

  9  have the potential for improving the accuracy of or

10  reliability of the hurricane loss projections used in

11  residential property insurance rate filings.  The commission

12  shall, from time to time, adopt findings as to the accuracy or

13  reliability of particular methods, principles, standards,

14  models, or output ranges.

15         (b)  In establishing reimbursement premiums for the

16  Florida Hurricane Catastrophe Fund, the State Board of

17  Administration must, to the extent feasible, employ actuarial

18  methods, principles, standards, models, or output ranges found

19  by the commission to be accurate or reliable.

20         (c)  With respect to a rate filing under s. 627.062, an

21  insurer may employ actuarial methods, principles, standards,

22  models, or output ranges found by the commission to be

23  accurate or reliable to determine hurricane loss factors for

24  use in a rate filing under s. 627.062, which findings and

25  factors are admissible and relevant in consideration of a rate

26  filing by the Insurance Rating Commission department or in any

27  arbitration or administrative or judicial review.

28         (d)  The commission shall adopt initial actuarial

29  methods, principles, standards, models, or output ranges no

30  later than December 31, 1995.  The commission shall adopt

31  revisions to such actuarial methods, principles, standards,

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  1  models, or output ranges at least annually thereafter. As soon

  2  as possible, but no later than July 1, 1996, The commission

  3  shall adopt revised actuarial methods, principles, standards,

  4  models, or output ranges which include specification of

  5  acceptable computer models or output ranges derived from

  6  computer models.

  7         Section 30.  Persons who are members of the Florida

  8  Commission on Hurricane Loss Projection Methodology on

  9  December 31, 2000, shall remain members of the commission

10  until new members are appointed pursuant to section 627.0628,

11  Florida Statutes, as amended by this act, except that the

12  Public Counsel or his or her designee from the Office of the

13  Public Counsel shall become a member effective January 1,

14  2001, and the Insurance Consumer Advocate shall cease to be a

15  member on that date.

16         Section 31.  Subsections (1), (2), (3), (6), (7), and

17  (9) of section 627.0645, Florida Statutes, are amended to

18  read:

19         627.0645  Annual filings.--

20         (1)  Each rating organization filing rates for, and

21  each insurer writing, any line of property or casualty

22  insurance to which this part applies, except:

23         (a)  Workers' compensation and employer's liability

24  insurance; or

25         (b)  Commercial property and casualty insurance as

26  defined in s. 627.0625(1) other than commercial multiple line

27  and commercial motor vehicle,

28

29  shall make an annual base rate filing for each such line with

30  the commission department no later than 12 months after its

31

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  1  previous base rate filing, demonstrating that its rates are

  2  not inadequate.

  3         (2)(a)  Deviations filed by an insurer to any rating

  4  organization's base rate filing are not subject to this

  5  section.

  6         (b)  The commission department, after receiving a

  7  request to be exempted from the provisions of this section,

  8  may, for good cause due to insignificant numbers of policies

  9  in force or insignificant premium volume, exempt a company, by

10  line of coverage, from filing rates or rate certification as

11  required by this section.

12         (3)  The filing requirements of this section shall be

13  satisfied by one of the following methods:

14         (a)  A rate filing prepared by an actuary which

15  contains documentation demonstrating that the proposed rates

16  are not excessive, inadequate, or unfairly discriminatory

17  pursuant to the applicable rating laws and pursuant to rules

18  of the commission department.

19         (b)  If no rate change is proposed, a filing which

20  consists of a certification by an actuary that the existing

21  rate level produces rates which are actuarially sound and

22  which are not inadequate, as defined in s. 627.062.

23         (6)  If at the time a filing is required under this

24  section an insurer is in the process of completing a rate

25  review, the insurer may apply to the commission department for

26  an extension of up to an additional 30 days in which to make

27  the filing.  The request for extension must be received by the

28  commission department no later than the date the filing is

29  due.

30         (7)  Nothing in this section limits the commission's

31  department's authority to review rates at any time or to find

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  1  that a rate or rate change is excessive, inadequate, or

  2  unfairly discriminatory pursuant to s. 627.062.

  3         (9)  If an insurer fails to meet the filing

  4  requirements of this section and does not submit the filing

  5  within 60 days after the date the filing is due, the

  6  commission department may, in addition to any other penalty

  7  authorized by law, order the insurer to discontinue the

  8  issuance of policies for the line of insurance for which the

  9  required filing was not made until such time as the commission

10  department determines that the required filing is properly

11  submitted.

12         Section 32.  Subsection (1) of section 627.06501,

13  Florida Statutes, is amended to read:

14         627.06501  Insurance discounts for certain persons

15  completing driver improvement course.--

16         (1)  Any rate, rating schedule, or rating manual for

17  the liability, personal injury protection, and collision

18  coverages of a motor vehicle insurance policy filed with the

19  commission department may provide for an appropriate reduction

20  in premium charges as to such coverages when the principal

21  operator on the covered vehicle has successfully completed a

22  driver improvement course approved and certified by the

23  Department of Highway Safety and Motor Vehicles which is

24  effective in reducing crash or violation rates, or both, as

25  determined pursuant to s. 318.1451(5). Any discount, not to

26  exceed 10 percent, used by an insurer is presumed to be

27  appropriate unless credible data demonstrates otherwise.

28         Section 33.  Subsections (1), (2), (5), (9), (10),

29  (11), and (13) of section 627.0651, Florida Statutes, are

30  amended to read:

31

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  1         627.0651  Making and use of rates for motor vehicle

  2  insurance.--

  3         (1)  Insurers shall establish and use rates, rating

  4  schedules, or rating manuals to allow the insurer a reasonable

  5  rate of return on motor vehicle insurance written in this

  6  state.  A copy of rates, rating schedules, and rating manuals,

  7  and changes therein, shall be filed with the commission

  8  department under one of the following procedures:

  9         (a)  If the filing is made at least 60 days before the

10  proposed effective date and the filing is not implemented

11  during the commission's department's review of the filing and

12  any proceeding and judicial review, such filing shall be

13  considered a "file and use" filing.  In such case, the

14  commission department shall initiate proceedings to disapprove

15  the rate and so notify the insurer or shall finalize its

16  review within 60 days after receipt of the filing.

17  Notification to the insurer by the commission department of

18  its preliminary findings shall toll the 60-day period during

19  any such proceedings and subsequent judicial review.  The rate

20  shall be deemed approved if the commission department does not

21  issue notice to the insurer of its preliminary findings within

22  60 days after the filing.

23         (b)  If the filing is not made in accordance with the

24  provisions of paragraph (a), such filing shall be made as soon

25  as practicable, but no later than 30 days after the effective

26  date, and shall be considered a "use and file" filing.  An

27  insurer making a "use and file" filing is potentially subject

28  to an order by the commission department to return to

29  policyholders portions of rates found to be excessive, as

30  provided in subsection (11).

31

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  1         (2)  Upon receiving notice of a rate filing or rate

  2  change, the commission department shall review the rate or

  3  rate change to determine if the rate is excessive, inadequate,

  4  or unfairly discriminatory.  In making that determination, the

  5  commission department shall in accordance with generally

  6  accepted and reasonable actuarial techniques consider the

  7  following factors:

  8         (a)  Past and prospective loss experience within and

  9  outside this state.

10         (b)  The past and prospective expenses.

11         (c)  The degree of competition among insurers for the

12  risk insured.

13         (d)  Investment income reasonably expected by the

14  insurer, consistent with the insurer's investment practices,

15  from investable premiums anticipated in the filing, plus any

16  other expected income from currently invested assets

17  representing the amount expected on unearned premium reserves

18  and loss reserves.  Such investment income shall not include

19  income from invested surplus.  The commission department may

20  adopt promulgate rules using utilizing reasonable techniques

21  of actuarial science and economics to specify the manner in

22  which insurers shall calculate investment income attributable

23  to motor vehicle insurance policies written in this state and

24  the manner in which such investment income is used in the

25  calculation of insurance rates. Such manner shall contemplate

26  the use of a positive underwriting profit allowance in the

27  rates that will be compatible with a reasonable rate of return

28  plus provisions for contingencies. The total of the profit and

29  contingency factor as specified in the filing shall be

30  utilized in computing excess profits in conjunction with s.

31  627.066. In adopting promulgating such rules, the commission

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  1  department shall in all instances adhere to and implement the

  2  provisions of this paragraph.

  3         (e)  The reasonableness of the judgment reflected in

  4  the filing.

  5         (f)  Dividends, savings, or unabsorbed premium deposits

  6  allowed or returned to Florida policyholders, members, or

  7  subscribers.

  8         (g)  The cost of repairs to motor vehicles.

  9         (h)  The cost of medical services, if applicable.

10         (i)  The adequacy of loss reserves.

11         (j)  The cost of reinsurance.

12         (k)  Trend factors, including trends in actual losses

13  per insured unit for the insurer making the filing.

14         (l)  Other relevant factors which impact upon the

15  frequency or severity of claims or upon expenses.

16         (5)(a)  Rates shall be deemed inadequate if they are

17  clearly insufficient, together with the investment income

18  attributable to them, to sustain projected losses and expenses

19  in the class of business to which they apply.

20         (b)  The commission Insurance Commissioner shall have

21  the responsibility to ensure that rates for private passenger

22  vehicle insurance are adequate. To that end, the commission

23  department shall adopt promulgate rules and regulations

24  establishing standards defining inadequate rates on private

25  passenger vehicle insurance as defined in s. 627.041(8). If In

26  the event that the commission department finds that a rate or

27  rate change is inadequate, the commission department shall

28  order that a new rate or rate schedule be thereafter filed by

29  the insurer and shall further provide information as to the

30  manner in which noncompliance of the standards may be

31  corrected.  When a violation of this provision occurs, the

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  1  department shall impose an administrative fine pursuant to s.

  2  624.4211.

  3         (9)  In reviewing the rate or rate change filed, the

  4  commission department may require the insurer to provide at

  5  the insurer's expense all information necessary to evaluate

  6  the condition of the company and the reasonableness of the

  7  filing according to the criteria enumerated herein.

  8         (10)  The commission department may, at any time,

  9  review a rate or rate change, the pertinent records of the

10  insurer, and market conditions; and, if the commission

11  department finds on a preliminary basis that the rate or rate

12  change may be excessive, inadequate, or unfairly

13  discriminatory, the commission department shall so notify the

14  insurer.  However, the commission department may not

15  disapprove as excessive any rate for which it has given final

16  approval or which has been deemed approved for a period of 1

17  year after the effective date of the filing unless the

18  commission department finds that a material misrepresentation

19  or material error was made by the insurer or was contained in

20  the filing.  Upon being so notified, the insurer or rating

21  organization shall, within 60 days, file with the commission

22  department all information which, in the belief of the insurer

23  or organization, proves the reasonableness, adequacy, and

24  fairness of the rate or rate change.  In such instances and in

25  any administrative proceeding relating to the legality of the

26  rate, the insurer or rating organization shall carry the

27  burden of proof by a preponderance of the evidence to show

28  that the rate is not excessive, inadequate, or unfairly

29  discriminatory.  After the commission department notifies an

30  insurer that a rate may be excessive, inadequate, or unfairly

31  discriminatory, unless the commission department withdraws the

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  1  notification, the insurer shall not increase the rate until

  2  the earlier of 120 days after the date the notification was

  3  provided or 180 days after the date of the implementation of

  4  the rate. The commission department may, subject to chapter

  5  120, disapprove without the 60-day notification any rate

  6  increase filed by an insurer within the prohibited time period

  7  or during the time that the legality of the increased rate is

  8  being contested.

  9         (11)  If In the event the commission department finds

10  that a rate or rate change is excessive, inadequate, or

11  unfairly discriminatory, the commission department shall issue

12  an order of disapproval specifying that a new rate or rate

13  schedule which responds to the findings of the commission

14  department be filed by the insurer. The commission department

15  shall further order for any "use and file" filing made in

16  accordance with paragraph (1)(b), that premiums charged each

17  policyholder constituting the portion of the rate above that

18  which was actuarially justified be returned to such

19  policyholder in the form of a credit or refund. If the

20  commission department finds that an insurer's rate or rate

21  change is inadequate, the new rate or rate schedule filed with

22  the commission department in response to such a finding shall

23  be applicable only to new or renewal business of the insurer

24  written on or after the effective date of the responsive

25  filing.

26         (13)(a)  Underwriting rules not contained in rating

27  manuals shall be filed for private passenger automobile

28  insurance and homeowners' insurance.

29         (b)  The submission of rates, rating schedules, and

30  rating manuals to the commission department by a licensed

31  rating organization of which an insurer is a member or

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  1  subscriber will be sufficient compliance with this subsection

  2  for any insurer maintaining membership or subscribership in

  3  such organization, to the extent that the insurer uses the

  4  rates, rating schedules, and rating manuals of such

  5  organization.  All such information shall be available for

  6  public inspection, upon receipt by the commission department,

  7  during usual business hours.

  8         Section 34.  Section 627.0653, Florida Statutes, is

  9  amended to read:

10         627.0653  Insurance discounts for specified motor

11  vehicle equipment.--

12         (1)  Any rates, rating schedules, or rating manuals for

13  the liability, personal injury protection, and collision

14  coverages of a motor vehicle insurance policy filed with the

15  commission department shall provide a premium discount if the

16  insured vehicle is equipped with factory-installed, four-wheel

17  antilock brakes.

18         (2)  Each insurer writing motor vehicle comprehensive

19  coverage in this state shall include in its rating manual

20  discount provisions for comprehensive coverage which

21  specifically relate to an antitheft device or vehicle recovery

22  system utilized in the insured vehicle which are factory

23  installed or approved by the commission department. The

24  commission department shall adopt, by rule, procedures under

25  which manufacturers, distributors, or sellers may apply to the

26  commission department for approval of non-factory-installed

27  devices under this subsection.  The rules must include, at a

28  minimum, the test results that must accompany the application

29  and the standards for approval.

30         (3)  Any rates, rating schedules, or rating manuals for

31  personal injury protection coverage and medical payments

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  1  coverage, if offered, of a motor vehicle insurance policy

  2  filed with the commission department shall provide a premium

  3  discount if the insured vehicle is equipped with one or more

  4  air bags which are factory installed.

  5         (4)  The removal of a discount or credit does not

  6  constitute the imposition of, or request for, additional

  7  premium or a surcharge if the basis for the discount or credit

  8  no longer exists or is substantially eliminated.

  9         (5)  Each insurer writing motor vehicle comprehensive

10  coverage in this state may provide a premium discount for this

11  coverage if the insured vehicle has the complete

12  manufacturer's vehicle identification number permanently

13  etched on the windshield and all windows of the vehicle.  The

14  etching must be by a tool or process that does not destroy the

15  integrity of the glass or visibility for the operator of the

16  motor vehicle.  The identification numbers and letters must be

17  at least  1/4  inch in height.  A sticker may identify the

18  presence of this identification system.  The commission

19  department may, by rule, set forth appropriate guidelines to

20  implement this subsection.

21         Section 35.  Section 627.06535, Florida Statutes, is

22  amended to read:

23         627.06535  Electric vehicles; restrictions on imposing

24  surcharges.--An insurer may not impose a surcharge on the

25  premium for motor vehicle insurance written on an electric

26  vehicle, as defined in s. 320.01, if the surcharge is based on

27  a factor such as new technology, passenger payload,

28  weight-to-horsepower ratio, or types of materials, including

29  composite materials or aluminum, used to manufacture the

30  vehicle, unless the commission Department of Insurance

31

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  1  determines from actuarial data submitted to it that the

  2  surcharge is justified.

  3         Section 36.  Subsection (1) of section 627.0654,

  4  Florida Statutes, is amended to read:

  5         627.0654  Insurance discounts for buildings with fire

  6  sprinklers.--

  7         (1)  Any rates, rating schedules, or rating manuals for

  8  a new or renewal fire insurance policy for an existing or

  9  newly constructed building, whether used for commercial or

10  residential purposes, must provide for a premium discount if a

11  fire sprinkler system has been installed in the building in

12  accordance with nationally accepted fire sprinkler design

13  standards, as adopted by the commission department, and if the

14  fire sprinkler system is maintained in accordance with

15  nationally accepted standards.

16         Section 37.  Subsections (2), (7), (10), (11), and (13)

17  of section 627.066, Florida Statutes, are amended to read:

18         627.066  Excessive profits for motor vehicle insurance

19  prohibited.--

20         (2)  Each Florida private passenger automobile insurer

21  group shall file with the commission department, prior to July

22  1 of each year on forms prescribed by the commission

23  department, the following data for Florida private passenger

24  automobile business.  The data filed for the group shall be a

25  consolidation of the data of the individual insurers of the

26  group. The data shall include both voluntary and joint

27  underwriting association business, as follows:

28         (a)  Calendar-year total limits earned premium.

29         (b)  Accident-year incurred losses and loss adjustment

30  expenses.

31

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  1         (c)  The administrative and selling expenses incurred

  2  in this state or allocated to this state for the calendar

  3  year.

  4         (d)  Policyholder dividends incurred during the

  5  applicable calendar year.

  6         (7)  If the insurer group has realized an excessive

  7  profit, the commission department shall order a return of the

  8  excessive amounts after affording the insurer group an

  9  opportunity for hearing and otherwise complying with the

10  requirements of chapter 120.  Such excessive amounts shall be

11  refunded in all instances unless the insurer group

12  affirmatively demonstrates to the commission department that

13  the refund of the excessive amounts will render a member of

14  the insurer group financially impaired or will render it

15  insolvent under the provisions of the Florida Insurance Code.

16         (10)(a)  Cash refunds to policyholders may be rounded

17  to the nearest dollar.

18         (b)  Data in required reports to the commission

19  department may be rounded to the nearest dollar.

20         (c)  Rounding, if elected by the insurer group, shall

21  be applied consistently.

22         (11)(a)  Refunds shall be completed in one of the

23  following ways:

24         1.  If the insurer group elects to make a cash refund,

25  the refund shall be completed within 60 days of entry of a

26  final order indicating that excessive profits have been

27  realized.

28         2.  If the insurer group elects to make refunds in the

29  form of a credit to renewal policies, such credits shall be

30  applied to policy renewal premium notices which are forwarded

31  to insureds more than 60 calendar days after entry of a final

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  1  order indicating that excessive profits have been realized.

  2  If an insurer group has made this election but an insured

  3  thereafter cancels his or her policy or otherwise allows the

  4  policy to terminate, the insurer group shall make a cash

  5  refund not later than 60 days after termination of such

  6  coverage.

  7         (b)  Upon completion of the renewal credits or refund

  8  payments, the insurer group shall immediately certify to the

  9  commission department that the refunds have been made.

10         (13)  Since it appears to the Legislature that private

11  passenger automobile insurer groups have realized excessive

12  profits during all or part of the years 1977, 1978, and 1979

13  and that such profits were realized in part due to statutory

14  changes for which rates were not adequately adjusted, it is

15  the desire and intent of the Legislature that the provisions

16  of this section, as amended by chapter 80-236, Laws of

17  Florida, shall apply retroactively to excessive profits

18  realized during the years 1977, 1978, and 1979. In the event

19  that such retroactive application is judicially determined to

20  be unconstitutional, it is the intent of the Legislature that

21  the act be given prospective application as stated

22  hereinafter.  Prior to July 1, 1982, the data required by this

23  section shall be submitted to the department for the years

24  1979, 1980, and 1981.  Excessive profits shall be calculated

25  in accordance with the provisions of this section.  However,

26  only the excessive profits realized by the insurer group in

27  1981 shall be refunded to policyholders, and such refunds

28  shall be made in accordance with this section. Prior to July

29  1, 1983, the data required by this section shall be submitted

30  to the department for the years 1980, 1981, and 1982.

31  Excessive profits shall be calculated in accordance with this

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  1  section; however, refunds shall only be made for excessive

  2  profits realized in the years 1981 and 1982.  Thereafter,

  3  excessive profits shall be calculated and refunded on the

  4  basis of 3 years as set forth in this section.

  5         Section 38.  Subsection (4) of section 627.072, Florida

  6  Statutes, is amended to read:

  7         627.072  Making and use of rates.--

  8         (4)(a)  In the case of workers' compensation and

  9  employer's liability insurance, the commission department

10  shall consider using utilizing the following methodology in

11  rate determinations: Premiums, expenses, and expected claim

12  costs would be discounted to a common point of time, such as

13  the initial point of a policy year, in the determination of

14  rates; the cash-flow pattern of premiums, expenses, and claim

15  costs would be determined initially by using data from 8 to 10

16  of the largest insurers writing workers' compensation

17  insurance in the state; such insurers may be selected for

18  their statistical ability to report the data on an

19  accident-year basis and in accordance with subparagraphs

20  (b)1., 2., and 3., for at least 2 1/2  years; such a cash-flow

21  pattern would be modified when necessary in accordance with

22  the data and whenever a radical change in the payout pattern

23  is expected in the policy year under consideration.

24         (b)  If the methodology set forth in paragraph (a) is

25  used utilized, to facilitate the determination of such a

26  cash-flow pattern methodology:

27         1.  Each insurer shall include in its statistical

28  reporting to the rating bureau and the commission department

29  the accident year by calendar quarter data for paid-claim

30  costs;

31

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  1         2.  Each insurer shall submit financial reports to the

  2  rating bureau and the commission department which shall

  3  include total incurred claim amounts and paid-claim amounts by

  4  policy year and by injury types as of December 31 of each

  5  calendar year; and

  6         3.  Each insurer shall submit to the rating bureau and

  7  the commission department paid-premium data on an individual

  8  risk basis in which risks are to be subdivided by premium size

  9  as follows:

10

11  Number of Risks in

12    Premium Range                          Standard Premium Size

13

14  ...(to be filled in by carrier)...                   $300--999

15  ...(to be filled in by carrier)...                1,000--4,999

16  ...(to be filled in by carrier)...               5,000--49,999

17  ...(to be filled in by carrier)...              50,000--99,999

18  ...(to be filled in by carrier)...             100,000 or more

19  Total:

20

21         4.  Each insurer which does not have the capability of

22  reporting in accordance with subparagraphs 1., 2., and 3.

23  shall be required to commence such reporting procedures as of

24  January 1, 1980.

25         (c)  The Insurance Commissioner is directed to consider

26  using the methodology specified in paragraph (a) prior to

27  March 31, 1980; and, in the event the Insurance Commissioner

28  decides not to use this methodology, she or he shall report

29  such decision and the reasons therefor to the committees of

30  substance in the area of insurance in each house of the

31  Legislature by March 31, 1980.

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  1         Section 39.  Subsections (1), (5), and (6) of section

  2  627.091, Florida Statutes, are amended to read:

  3         627.091  Rate filings; workers' compensation and

  4  employer's liability insurances.--

  5         (1)  As to workers' compensation and employer's

  6  liability insurances, every insurer shall file with the

  7  commission department every manual of classifications, rules,

  8  and rates, every rating plan, and every modification of any of

  9  the foregoing which it proposes to use. Every insurer is

10  authorized to include deductible provisions in its manual of

11  classifications, rules, and rates. Such deductibles shall in

12  all cases be in a form and manner which is consistent with the

13  underlying purpose of chapter 440.

14         (5)  Pursuant to the provisions of s. 624.3161, the

15  commission department may examine the underlying statistical

16  data used in such filings.

17         (6)  Whenever the committee of a recognized rating

18  organization with responsibility for workers' compensation and

19  employer's liability insurance rates in this state meets to

20  discuss the necessity for, or a request for, Florida rate

21  increases or decreases, the determination of Florida rates,

22  the rates to be requested, and any other matters pertaining

23  specifically and directly to such Florida rates, such meetings

24  shall be held in this state and shall be subject to s.

25  286.011. The committee of such a rating organization shall

26  provide at least 3 weeks' prior notice of such meetings to the

27  commission department and shall provide at least 14 days'

28  prior notice of such meetings to the public by publication in

29  the Florida Administrative Weekly.

30         Section 40.  Section 627.0915, Florida Statutes, is

31  amended to read:

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  1         627.0915  Rate filings; workers' compensation,

  2  drug-free workplace, and safe employers.--The commission

  3  Department of Insurance shall approve rating plans for

  4  workers' compensation insurance that give specific

  5  identifiable consideration in the setting of rates to

  6  employers that either implement a drug-free workplace program

  7  pursuant to rules adopted by the Division of Workers'

  8  Compensation of the Department of Labor and Employment

  9  Security or implement a safety program approved by the

10  Division of Safety pursuant to rules adopted by the Division

11  of Safety of the Department of Labor and Employment Security

12  or implement both a drug-free workplace program and a safety

13  program. The Division of Safety may by rule require that the

14  client of a help supply services company comply with the

15  essential requirements of a workplace safety program as a

16  condition for receiving a premium credit. The plans must take

17  effect January 1, 1994, must be actuarially sound, and must

18  state the savings anticipated to result from such drug-testing

19  and safety programs.

20         Section 41.  Section 627.0916, Florida Statutes, is

21  amended to read:

22         627.0916  Agricultural horse farms.--Notwithstanding

23  any other provision of this chapter to the contrary, any

24  rates, rating schedules, or rating manuals for workers'

25  compensation and employer's liability insurance filed with the

26  commission Department of Insurance shall provide for the rates

27  of an agricultural horse farm engaged in breeding or training

28  to be separated into the following three rate classifications

29  and the premium paid shall be applied proportionately

30  according to payroll: breeding activity involving stallions;

31

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  1  breeding activity not involving stallions, including but not

  2  limited to boarding and foaling; and training.

  3         Section 42.  Subsection (1) of section 627.096, Florida

  4  Statutes, is amended to read:

  5         627.096  Workers' Compensation Rating Bureau.--

  6         (1)  There is created within the commission department

  7  a Workers' Compensation Rating Bureau, which shall make an

  8  investigation and study of all insurers authorized to issue

  9  workers' compensation and employer's liability coverage in

10  this state. Such bureau shall study the data, statistics,

11  schedules, or other information as it may deem necessary to

12  assist and advise the commission department in its review of

13  filings made by or on behalf of workers' compensation and

14  employer's liability insurers. The commission department shall

15  have the authority to adopt promulgate rules requiring all

16  workers' compensation and employer's liability insurers to

17  submit to the rating bureau any data, statistics, schedules,

18  and other information deemed necessary to the rating bureau's

19  study and advisement.

20         Section 43.  Section 627.101, Florida Statutes, is

21  amended to read:

22         627.101  When filing becomes effective; workers'

23  compensation and employer's liability insurances.--

24         (1)  The commission department shall review filings as

25  to workers' compensation and employer's liability insurances

26  as soon as reasonably possible after they have been made in

27  order to determine whether they meet the applicable

28  requirements of this part. If the commission department

29  determines that part of a rate filing does not meet the

30  applicable requirements of this part, it may reject so much of

31

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  1  the filing as does not meet these requirements, and approve

  2  the remainder of the filing.

  3         (2)  The commission department shall specifically

  4  approve the filing before it becomes effective, unless the

  5  commission department has concluded it to be in the public

  6  interest to hold a public hearing to determine whether the

  7  filing meets the requirements of this chapter and has given

  8  notice of such hearing to the insurer or rating organization

  9  that made the filing, and in which case the effectiveness of

10  the filing shall be subject to the further order of the

11  commission department made as provided in s. 627.111.  If the

12  commission department specifically disapproves the filing, the

13  provisions of subsection (4) shall apply.

14         (3)  An insurer or rating organization may, at the time

15  it makes a filing with the commission department, request a

16  public hearing thereon. In such event, the commission

17  department shall give notice of the hearing.

18         (4)  If the commission department disapproves a filing,

19  it shall promptly give notice of such disapproval to the

20  insurer or rating organization that made the filing, stating

21  the respects in which it finds that the filing does not meet

22  the requirements of this chapter. If the commission department

23  approves a filing, it shall give prompt notice thereof to the

24  insurer or rating organization that made the filing, and in

25  which case the filing shall become effective upon such

26  approval or upon such subsequent date as may be satisfactory

27  to the commission department and the insurer or rating

28  organization that made the filing.

29         Section 44.  Section 627.111, Florida Statutes, is

30  amended to read:

31         627.111  Effective date of filing.--

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  1         (1)  If, pursuant to s. 627.101(2), the commission

  2  department determines to hold a public hearing as to a filing,

  3  or it holds such a public hearing pursuant to request therefor

  4  under s. 627.101(3), it shall give written notice thereof to

  5  the rating organization or insurer that made the filing and

  6  shall hold such hearing within 30 days, and not less than 10

  7  days prior to the date of the hearing, it shall give written

  8  notice of the hearing to the insurer or rating organization

  9  that made the filing. The commission department may also, in

10  its discretion, give advance public notice of such hearing by

11  publication of notice in one or more daily newspapers of

12  general circulation in this state.

13         (2)  If the order of the commission department

14  disapproves the filing, the filing shall not become effective

15  during the effectiveness of such order. If the order of the

16  commission department approves the filing, the filing shall

17  become effective upon the date of the order or upon such

18  subsequent date as may be satisfactory to the insurer or

19  rating organization that made the filing.

20         Section 45.  Section 627.141, Florida Statutes, is

21  amended to read:

22         627.141  Subsequent disapproval of filing; workers'

23  compensation and employer's liability insurances.--If at any

24  time after a filing has been approved by it or has otherwise

25  become effective the commission department finds that the

26  filing no longer meets the requirements of this chapter, it

27  shall issue an order specifying in what respects it finds that

28  such filing fails to meet such requirements and stating when,

29  within a reasonable period thereafter, such filing shall be

30  deemed no longer effective.  The order shall not affect any

31

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  1  insurance contract or policy made or issued prior to the

  2  expiration of the period set forth in the order.

  3         Section 46.  Subsection (1) of section 627.151, Florida

  4  Statutes, is amended to read:

  5         627.151  Basis of approval or disapproval of workers'

  6  compensation or employer's liability insurance filing; scope

  7  of disapproval power.--

  8         (1)  In determining at any time whether to approve or

  9  disapprove a filing as to workers' compensation or employer's

10  liability insurance, or to permit the filing otherwise to

11  become effective, the commission department shall give

12  consideration only to the applicable standards and factors

13  referred to in ss. 627.062 and 627.072.

14         Section 47.  Paragraph (f) of subsection (2) of section

15  627.192, Florida Statutes, is amended to read:

16         627.192  Workers' compensation insurance; employee

17  leasing arrangements.--

18         (2)  For purposes of the Florida Insurance Code:

19         (f)  "Premium subject to dispute" means that the

20  insured has provided a written notice of dispute to the

21  insurer or service carrier, has initiated any applicable

22  proceeding for resolving such disputes as prescribed by law or

23  rating organization procedures approved by the commission

24  department, or has initiated litigation regarding the premium

25  dispute. The insured must have detailed the specific areas of

26  dispute and provided an estimate of the premium the insured

27  believes to be correct. The insured must have paid any

28  undisputed portion of the bill.

29         Section 48.  Section 627.211, Florida Statutes, is

30  amended to read:

31

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  1         627.211  Deviations; workers' compensation and

  2  employer's liability insurances.--

  3         (1)  Every member or subscriber to a rating

  4  organization shall, as to workers' compensation or employer's

  5  liability insurance, adhere to the filings made on its behalf

  6  by such organization; except that any such insurer may make

  7  written application to the commission department for

  8  permission to file a uniform percentage decrease or increase

  9  to be applied to the premiums produced by the rating system so

10  filed for a kind of insurance, for a class of insurance which

11  is found by the commission department to be a proper rating

12  unit for the application of such uniform percentage decrease

13  or increase, or for a subdivision of workers' compensation or

14  employer's liability insurance:

15         (a)  Comprised of a group of manual classifications

16  which is treated as a separate unit for ratemaking purposes;

17  or

18         (b)  For which separate expense provisions are included

19  in the filings of the rating organization.

20

21  Such application shall specify the basis for the modification

22  and shall be accompanied by the data upon which the applicant

23  relies.  A copy of the application and data shall be sent

24  simultaneously to the rating organization.

25         (2)  Every member or subscriber to a rating

26  organization may, as to workers' compensation and employer's

27  liability insurance, file a plan or plans to use deviations

28  that vary according to factors present in each insured's

29  individual risk.  The insurer that files for the deviations

30  provided in this subsection shall file the qualifications for

31  the plans, schedules of rating factors, and the maximum

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  1  deviation factors which shall be subject to the approval of

  2  the commission department pursuant to s. 627.091. The actual

  3  deviation which shall be used for each insured that qualifies

  4  under this subsection may not exceed the maximum filed

  5  deviation under that plan and shall be based on the merits of

  6  each insured's individual risk as determined by using

  7  schedules of rating factors which shall be applied uniformly.

  8  Insurers shall maintain statistical data in accordance with

  9  the schedule of rating factors.  Such data shall be available

10  to support the continued use of such varying deviations.

11         (3)  In considering an application for the deviation,

12  the commission department shall give consideration to the

13  applicable principles for ratemaking as set forth in ss.

14  627.062 and 627.072, the financial condition of the insurer,

15  and the impact of the deviation on the current market

16  conditions including the composition of the market, the

17  stability of rates, and the level of competition in the

18  market.  In evaluating the financial condition of the insurer,

19  the commission department may consider: (1) the insurer's

20  audited financial statements and whether the statements

21  provide unqualified opinions or contain significant

22  qualifications or "subject to" provisions; (2) any independent

23  or other actuarial certification of loss reserves; (3) whether

24  workers' compensation and employer's liability reserves are

25  above the midpoint or best estimate of the actuary's reserve

26  range estimate; (4) the adequacy of the proposed rate; (5)

27  historical experience demonstrating the profitability of the

28  insurer; (6) the existence of excess or other reinsurance that

29  contains a sufficiently low attachment point and maximums that

30  provide adequate protection to the insurer; and (7) other

31  factors considered relevant to the financial condition of the

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  1  insurer by the commission department. The commission

  2  department shall approve the deviation if it finds it to be

  3  justified, it would not endanger the financial condition of

  4  the insurer, it would not adversely affect the current market

  5  conditions including the composition of the market, the

  6  stability of rates, and the level of competition in the

  7  market, and that the deviation would not constitute predatory

  8  pricing.  It shall disapprove the deviation if it finds that

  9  the resulting premiums would be excessive, inadequate, or

10  unfairly discriminatory, would endanger the financial

11  condition of the insurer, or would adversely affect current

12  market conditions including the composition of the

13  marketplace, the stability of rates, and the level of

14  competition in the market, or would result in predatory

15  pricing.  The insurer may not use a deviation unless the

16  deviation is specifically approved by the commission

17  department.

18         (4)  No filing for a deviation may be made pursuant to

19  this section prior to January 1, 1997. Notwithstanding the

20  provisions of this subsection, the department may extend or

21  renew any deviation filed and approved prior to the effective

22  date of this subsection.

23         (4)(5)  Each deviation permitted to be filed shall be

24  effective for a period of 1 year unless terminated, extended,

25  or modified with the approval of the commission department. If

26  at any time after a deviation has been approved the commission

27  department finds that the deviation no longer meets the

28  requirements of this code, it shall notify the insurer in what

29  respects it finds that the deviation fails to meet such

30  requirements and specify when, within a reasonable period

31  thereafter, the deviation shall be deemed no longer effective.

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  1  The notice shall not affect any insurance contract or policy

  2  made or issued prior to the expiration of the period set forth

  3  in the notice.

  4         (5)(6)  For purposes of this section, the commission

  5  department, when considering the experience of any insurer,

  6  shall consider the experience of any predecessor insurer when

  7  the business and the liabilities of the predecessor insurer

  8  were assumed by the insurer pursuant to an order of the

  9  department which approves the assumption of the business and

10  the liabilities.

11         Section 49.  Section 627.212, Florida Statutes, is

12  amended to read:

13         627.212  Workplace safety program surcharge.--The

14  commission department shall approve a rating plan for workers'

15  compensation coverage insurance that provides for carriers

16  voluntarily to impose a surcharge of no more than 10 percent

17  on the premium of a policyholder or fund member if that

18  policyholder or fund member has been identified by the

19  Department of Labor and Employment Security as having been

20  required to implement a safety program and having failed to

21  establish or maintain, either in whole or in part, a safety

22  program. The division shall adopt rules prescribing the

23  criteria for the employee safety programs.

24         Section 50.  Subsections (1), (9), and (12) of section

25  627.215, Florida Statutes, are amended to read:

26         627.215  Excessive profits for workers' compensation,

27  employer's liability, commercial property, and commercial

28  casualty insurance prohibited.--

29         (1)(a)  Each insurer group writing workers'

30  compensation and employer's liability insurance as defined in

31  s. 624.605(1)(c), commercial property insurance as defined in

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  1  s. 627.0625, commercial umbrella liability insurance as

  2  defined in s. 627.0625, or commercial casualty insurance as

  3  defined in s. 627.0625 shall file with the commission

  4  department prior to July 1 of each year, on a form prescribed

  5  by the commission department, the following data for the

  6  component types of such insurance as provided in the form:

  7         1.  Calendar-year earned premium.

  8         2.  Accident-year incurred losses and loss adjustment

  9  expenses.

10         3.  The administrative and selling expenses incurred in

11  this state or allocated to this state for the calendar year.

12         4.  Policyholder dividends applicable to the calendar

13  year.

14

15  Nothing herein is intended to prohibit an insurer from filing

16  on a calendar-year basis.

17         (b)  The data filed for the group shall be a

18  consolidation of the data of the individual insurers of the

19  group. However, an insurer may elect to either consolidate

20  commercial umbrella liability insurance data with commercial

21  casualty insurance data or to separately file data for

22  commercial umbrella liability insurance.  Each insurer shall

23  elect its method of filing commercial umbrella liability

24  insurance at the time of filing data for accident year 1987

25  and shall thereafter continue filing under the same method. In

26  the case of commercial umbrella liability insurance data

27  reported separately, a separate excessive profits test shall

28  be applied and the test period shall be 10 years. In the case

29  of workers' compensation and employer's liability insurance,

30  the final report for the test period including accident years

31  1984, 1985, and 1986 must be filed prior to July 1, 1988.  In

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  1  the case of commercial property and commercial casualty

  2  insurance, the final report for the test period including

  3  accident years 1987, 1988, and 1989 must be filed prior to

  4  July 1, 1991.

  5         (9)  If the insurer group has realized an excessive

  6  profit, the department shall order a return of the excessive

  7  amounts after affording the insurer group an opportunity for

  8  hearing and otherwise complying with the requirements of

  9  chapter 120.  Such excessive amounts shall be refunded in all

10  instances unless the insurer group affirmatively demonstrates

11  to the commission department that the refund of the excessive

12  amounts will render a member of the insurer group financially

13  impaired or will render it insolvent under the provisions of

14  the Florida Insurance Code.

15         (12)(a)  Refunds shall be completed in one of the

16  following ways:

17         1.  If the insurer group elects to make a cash refund,

18  the refund shall be completed within 60 days of entry of a

19  final order indicating that excessive profits have been

20  realized.

21         2.  If the insurer group elects to make refunds in the

22  form of a credit to renewal policies, such credits shall be

23  applied to policy renewal premium notices which are forwarded

24  to insureds more than 60 calendar days after entry of a final

25  order indicating that excessive profits have been realized.

26  If an insurer group has made this election but an insured

27  thereafter cancels her or his policy or otherwise allows the

28  policy to terminate, the insurer group shall make a cash

29  refund not later than 60 days after termination of such

30  coverage.

31

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  1         (b)  Upon completion of the renewal credits or refund

  2  payments, the insurer group shall immediately certify to the

  3  commission department that the refunds have been made.

  4         Section 51.  Subsection (1) of section 627.221, Florida

  5  Statutes, is amended to read:

  6         627.221  Rating organizations; licensing; fee.--

  7         (1)  A person, whether located within or outside this

  8  state, may make application to the commission department for a

  9  license as a rating organization.  As to property or inland

10  marine insurance, the application shall be for such kinds of

11  insurance or subdivisions thereof or classes of risk or a part

12  or combination thereof as are specified in the application.

13  As to casualty and surety insurances, the application shall be

14  for such kinds of insurance or subdivisions thereof as are

15  specified in the application.  The applicant shall file with

16  its application:

17         (a)  A copy of its constitution, its articles of

18  agreement or association or its certificate of incorporation,

19  and of its bylaws, rules, and regulations governing the

20  conduct of its business;

21         (b)  A list of its members and subscribers;

22         (c)  The name and address of a resident of this state

23  upon whom notices or orders of the department or process

24  affecting such rating organization may be served; and

25         (d)  A statement of its qualifications as a rating

26  organization.

27

28  If the commission department finds that the applicant is

29  competent, trustworthy, and otherwise qualified to act as a

30  rating organization and that its constitution, articles of

31  agreement or association or certificate of incorporation, and

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  1  its bylaws, rules, and regulations governing the conduct of

  2  its business conform to the requirements of law, it shall

  3  issue a license specifying (in the case of a casualty or

  4  surety rating organization) the kinds of insurance or

  5  subdivisions thereof, or (in the case of a property insurance

  6  rating organization) the kinds of insurance or subdivisions

  7  thereof or classes of risk or a part or combination thereof,

  8  for which the applicant is authorized to act as a rating

  9  organization.

10         Section 52.  Section 627.231, Florida Statutes, is

11  amended to read:

12         627.231  Subscribers to rating organizations.--

13         (1)  Subject to rules and regulations which have been

14  approved by the commission department as reasonable, each

15  rating organization shall permit any insurer, not a member, to

16  subscribe to its rating services. As to property and marine

17  rating organizations, an insurer shall be so permitted to

18  subscribe to rating services for any kind of insurance,

19  subdivision thereof, or class of risk or a part or combination

20  thereof for which the rating organization is authorized so to

21  act. As to casualty and surety rating organizations, an

22  insurer shall be so permitted to subscribe to rating services

23  for any kind of insurance or subdivision thereof for which the

24  rating organization is authorized so to act. The rating

25  organization shall give notice to subscribers of proposed

26  changes in such rules and regulations.

27         (2)  The reasonableness of any rule or regulation in

28  its application to subscribers, or the refusal of any rating

29  organization to admit an insurer as a subscriber, shall, at

30  the request of any subscriber or any such insurer, be reviewed

31  by the commission department. If the commission department

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  1  finds that such rule or regulation is unreasonable in its

  2  application to subscribers, it shall order that such rule or

  3  regulation shall not be applicable to subscribers. If the

  4  rating organization fails to grant or reject an insurer's

  5  application for subscribership within 30 days after it was

  6  made, the insurer may request a review by the commission

  7  department as if the application had been rejected. If the

  8  commission department finds that the insurer has been refused

  9  admittance to the rating organization as a subscriber without

10  justification, it shall order the rating organization to admit

11  the insurer as a subscriber.  If it finds that the action of

12  the rating organization was justified, it shall make an order

13  affirming its action.

14         (3)  Each rating organization shall furnish its rating

15  services without discrimination to its members and

16  subscribers.

17         Section 53.  Section 627.241, Florida Statutes, is

18  amended to read:

19         627.241  Notice of changes.--Every rating organization

20  shall notify the commission department promptly of every

21  change in:

22         (1)  Its constitution, its articles of agreement or

23  association, or its certificate of incorporation, and its

24  bylaws, rules and regulations governing the conduct of its

25  business;

26         (2)  Its list of members and subscribers; and

27         (3)  The name and address of the resident of this state

28  designated by it upon whom notices or orders of the department

29  or process affecting such rating organization may be served.

30         Section 54.  Section 627.281, Florida Statutes, is

31  amended to read:

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  1         627.281  Appeal from rating organization; workers'

  2  compensation and employer's liability insurance filings.--

  3         (1)  Any member or subscriber to a rating organization

  4  may appeal to the commission department from the action or

  5  decision of such rating organization in approving or rejecting

  6  any proposed change in or addition to the workers'

  7  compensation or employer's liability insurance filings of such

  8  rating organization, and the commission department shall issue

  9  an order approving the decision of such rating organization or

10  directing it to give further consideration to such proposal.

11  If such appeal is from the action or decision of the rating

12  organization in rejecting a proposed addition to its filings,

13  the commission department may, if in the event that it finds

14  that such action or decision was unreasonable, issue an order

15  directing the rating organization to make an addition to its

16  filings, on behalf of its members and subscribers, in a manner

17  consistent with its findings, within a reasonable time after

18  the issuance of such order.

19         (2)  If such appeal is based upon the failure of the

20  rating organization to make a filing on behalf of such member

21  or subscriber which is based on a system of expense provisions

22  which differs, in accordance with the right granted in s.

23  627.072(2), from the system of expense provisions included in

24  a filing made by the rating organization, the commission

25  department shall, if it grants the appeal, order the rating

26  organization to make the requested filing for use by the

27  appellant.  In deciding such appeal, the commission department

28  shall apply the applicable standards set forth in ss. 627.062

29  and 627.072.

30         Section 55.  Subsection (2) of section 627.291, Florida

31  Statutes, is amended to read:

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  1         627.291  Information to be furnished insureds; appeal

  2  by insureds; workers' compensation and employer's liability

  3  insurances.--

  4         (2)  As to workers' compensation and employer's

  5  liability insurances, every rating organization and every

  6  insurer which makes its own rates shall provide within this

  7  state reasonable means whereby any person aggrieved by the

  8  application of its rating system may be heard, in person or by

  9  his or her authorized representative, on his or her written

10  request to review the manner in which such rating system has

11  been applied in connection with the insurance afforded him or

12  her.  If the rating organization or insurer fails to grant or

13  rejects such request within 30 days after it is made, the

14  applicant may proceed in the same manner as if his or her

15  application had been rejected.  Any party affected by the

16  action of such rating organization or insurer on such request

17  may, within 30 days after written notice of such action,

18  appeal to the commission department, which may affirm or

19  reverse such action.

20         Section 56.  Section 627.301, Florida Statutes, is

21  amended to read:

22         627.301  Advisory organizations.--

23         (1)  No advisory organization shall conduct its

24  operations in this state unless and until it has filed with

25  the commission department:

26         (a)  A copy of its constitution, articles of

27  incorporation, articles of agreement or of association, and

28  bylaws or rules and regulations governing its activities, all

29  duly certified by the custodian of the originals thereof;

30         (b)  A list of its members and subscribers; and

31

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  1         (c)  The name and address of a resident of this state

  2  upon whom notices or orders of the department or process may

  3  be served.

  4         (2)  Every such advisory organization shall notify the

  5  commission department promptly of every change in:

  6         (a)  Its constitution;

  7         (b)  Its articles of incorporation, agreement, or

  8  association;

  9         (c)  Its bylaws, rules and regulations governing the

10  conduct of its business;

11         (d)  The list of members and subscribers; and

12         (e)  The name and address of the resident of this state

13  designated by it upon whom notices or orders of the commission

14  department or process affecting such organization may be

15  served.

16         (3)  No such advisory organization shall engage in any

17  unfair or unreasonable practice with respect to such

18  activities.

19         Section 57.  Subsection (4) of section 627.311, Florida

20  Statutes, is amended to read:

21         627.311  Joint underwriters and joint reinsurers.--

22         (4)(a)  Effective upon this act becoming a law, The

23  department shall, after consultation with insurers, approve a

24  joint underwriting plan of insurers which shall operate as a

25  nonprofit entity. For the purposes of this subsection, the

26  term "insurer" includes group self-insurance funds authorized

27  by s. 624.4621, commercial self-insurance funds authorized by

28  s. 624.462, assessable mutual insurers authorized under s.

29  628.6011, and insurers licensed to write workers' compensation

30  and employer's liability insurance in this state. The purpose

31  of the plan is to provide workers' compensation and employer's

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  1  liability insurance to applicants who are required by law to

  2  maintain workers' compensation and employer's liability

  3  insurance and who are in good faith entitled to but who are

  4  unable to purchase such insurance through the voluntary

  5  market. The joint underwriting plan shall issue policies

  6  beginning January 1, 1994. The plan must have actuarially

  7  sound rates that assure that the plan is self-supporting.

  8         (b)  The operation of the plan is subject to the

  9  supervision of a 13-member board of governors. The board of

10  governors shall be comprised of:

11         1.  Five of the 20 domestic insurers, as defined in s.

12  624.06(1), having the largest voluntary direct premiums

13  written in this state for workers' compensation and employer's

14  liability insurance, which shall be elected by those 20

15  domestic insurers;

16         2.  Five of the 20 foreign insurers as defined in s.

17  624.06(2) having the largest voluntary direct premiums written

18  in this state for workers' compensation and employer's

19  liability insurance, which shall be elected by those 20

20  foreign insurers;

21         3.  One person, who shall serve as the chair, appointed

22  by the Insurance Commissioner;

23         4.  One person appointed by the largest property and

24  casualty insurance agents' association in this state; and

25         5.  The consumer advocate appointed under s. 627.0613

26  or the consumer advocate's designee.

27

28  Each board member shall serve a 4-year term and may serve

29  consecutive terms. No board member shall be an insurer which

30  provides service to the plan or which has an affiliate which

31  provides services to the plan or which is serviced by a

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  1  service company or third-party administrator which provides

  2  services to the plan or which has an affiliate which provides

  3  services to the plan. The minutes, audits, and procedures of

  4  the board of governors are subject to chapter 119.

  5         (c)  The operation of the plan shall be governed by a

  6  plan of operation that is prepared at the direction of the

  7  board of governors. The plan of operation may be changed at

  8  any time by the board of governors or upon request of the

  9  department or commission. The plan of operation and all

10  changes thereto are subject to the approval of the department,

11  except that all changes related to rates are subject to

12  approval of the commission. The plan of operation shall:

13         1.  Authorize the board to engage in the activities

14  necessary to implement this subsection, including, but not

15  limited to, borrowing money.

16         2.  Develop criteria for eligibility for coverage by

17  the plan, including, but not limited to, documented rejection

18  by at least two insurers which reasonably assures that

19  insureds covered under the plan are unable to acquire coverage

20  in the voluntary market. Any insured may voluntarily elect to

21  accept coverage from an insurer for a premium equal to or

22  greater than the plan premium if the insurer writing the

23  coverage adheres to the provisions of s. 627.171.

24         3.  Require notice from the agent to the insured at the

25  time of the application for coverage that the application is

26  for coverage with the plan and that coverage may be available

27  through an insurer, group self-insurers' fund, commercial

28  self-insurance fund, or assessable mutual insurer through

29  another agent at a lower cost.

30

31

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  1         4.  Establish programs to encourage insurers to provide

  2  coverage to applicants of the plan in the voluntary market and

  3  to insureds of the plan, including, but not limited to:

  4         a.  Establishing procedures for an insurer to use in

  5  notifying the plan of the insurer's desire to provide coverage

  6  to applicants to the plan or existing insureds of the plan and

  7  in describing the types of risks in which the insurer is

  8  interested. The description of the desired risks must be on a

  9  form developed by the plan.

10         b.  Developing forms and procedures that provide an

11  insurer with the information necessary to determine whether

12  the insurer wants to write particular applicants to the plan

13  or insureds of the plan.

14         c.  Developing procedures for notice to the plan and

15  the applicant to the plan or insured of the plan that an

16  insurer will insure the applicant or the insured of the plan,

17  and notice of the cost of the coverage offered; and developing

18  procedures for the selection of an insuring entity by the

19  applicant or insured of the plan.

20         d.  Provide for a market-assistance plan to assist in

21  the placement of employers. All applications for coverage in

22  the plan received 45 days before the effective date for

23  coverage shall be processed through the market-assistance

24  plan. A market-assistance plan specifically designed to serve

25  the needs of small good policyholders as defined by the board

26  must be finalized by January 1, 1994.

27         5.  Provide for policy and claims services to the

28  insureds of the plan of the nature and quality provided for

29  insureds in the voluntary market.

30

31

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  1         6.  Provide for the review of applications for coverage

  2  with the plan for reasonableness and accuracy, using any

  3  available historic information regarding the insured.

  4         7.  Provide for procedures for auditing insureds of the

  5  plan which are based on reasonable business judgment and are

  6  designed to maximize the likelihood that the plan will collect

  7  the appropriate premiums.

  8         8.  Authorize the plan to terminate the coverage of and

  9  refuse future coverage for any insured that submits a

10  fraudulent application to the plan or provides fraudulent or

11  grossly erroneous records to the plan or to any service

12  provider of the plan in conjunction with the activities of the

13  plan.

14         9.  Establish service standards for agents who submit

15  business to the plan.

16         10.  Establish criteria and procedures to prohibit any

17  agent who does not adhere to the established service standards

18  from placing business with the plan or receiving, directly or

19  indirectly, any commissions for business placed with the plan.

20         11.  Provide for the establishment of reasonable safety

21  programs for all insureds in the plan.

22         12.  Authorize the plan to terminate the coverage of

23  and refuse future coverage to any insured who fails to pay

24  premiums or surcharges when due; who, at the time of

25  application, is delinquent in payments of workers'

26  compensation or employer's liability insurance premiums or

27  surcharges owed to an insurer, group self-insurers' fund,

28  commercial self-insurance fund, or assessable mutual insurer

29  licensed to write such coverage in this state; or who refuses

30  to substantially comply with any safety programs recommended

31  by the plan.

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  1         13.  Authorize the board of governors to provide the

  2  services required by the plan through staff employed by the

  3  plan, through reasonably compensated service providers who

  4  contract with the plan to provide services as specified by the

  5  board of governors, or through a combination of employees and

  6  service providers.

  7         14.  Provide for service standards for service

  8  providers, methods of determining adherence to those service

  9  standards, incentives and disincentives for service, and

10  procedures for terminating contracts for service providers

11  that fail to adhere to service standards.

12         15.  Provide procedures for selecting service providers

13  and standards for qualification as a service provider that

14  reasonably assure that any service provider selected will

15  continue to operate as an ongoing concern and is capable of

16  providing the specified services in the manner required.

17         16.  Provide for reasonable accounting and

18  data-reporting practices.

19         17.  Provide for annual review of costs associated with

20  the administration and servicing of the policies issued by the

21  plan to determine alternatives by which costs can be reduced.

22         18.  Authorize the acquisition of such excess insurance

23  or reinsurance as is consistent with the purposes of the plan.

24         19.  Provide for an annual report to the department on

25  a date specified by the department and containing such

26  information as the department reasonably requires.

27         20.  Establish multiple rating plans for various

28  classifications of risk which reflect risk of loss, hazard

29  grade, actual losses, size of premium, and compliance with

30  loss control. At least one of such plans must be a

31  preferred-rating plan to accommodate small-premium

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  1  policyholders with good experience as defined in

  2  sub-subparagraph 22.a.

  3         21.  Establish agent commission schedules.

  4         22.  Establish three subplans as follows:

  5         a.  Subplan "A" must include those insureds whose

  6  annual premium does not exceed $2,500 and who have neither

  7  incurred any lost-time claims nor incurred medical-only claims

  8  exceeding 50 percent of their premium for the immediate 2

  9  years.

10         b.  Subplan "B" must include insureds that are

11  employers identified by the board of governors as high-risk

12  employers due solely to the nature of the operations being

13  performed by those insureds and for whom no market exists in

14  the voluntary market, and whose experience modifications are

15  less than 1.00.

16         c.  Subplan "C" must include all other insureds within

17  the plan.

18         (d)  The plan must be funded through actuarially sound

19  premiums charged to insureds of the plan. The plan may issue

20  assessable policies only to those insureds in subplan "C."

21  Those assessable policies must be clearly identified as

22  assessable by containing, in contrasting color and in not less

23  than 10-point type, the following statements: "This is an

24  assessable policy. If the plan is unable to pay its

25  obligations, policyholders will be required to contribute on a

26  pro rata earned premium basis the money necessary to meet any

27  assessment levied." The plan may issue assessable policies

28  with differing terms and conditions to different groups within

29  the plan when a reasonable basis exists for the

30  differentiation. The plan may offer rating, dividend plans,

31  and other plans to encourage loss prevention programs.

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  1         (e)  The plan shall establish and use its rates and

  2  rating plans, and the plan may establish and use changes in

  3  rating plans at any time, but no more frequently than two

  4  times per any rating class for any calendar year. By December

  5  1, 1993, and December 1 of each year thereafter, the board

  6  shall establish and use actuarially sound rates for use by the

  7  plan to assure that the plan is self-funding while those rates

  8  are in effect. Such rates and rating plans must be filed with

  9  the commission department within 30 calendar days after their

10  effective dates, and shall be considered a "use and file"

11  filing. Any disapproval by the commission department must have

12  an effective date that is at least 60 days from the date of

13  disapproval of the rates and rating plan and must have

14  prospective effect only. The plan may not be subject to any

15  order by the commission department to return to policyholders

16  any portion of the rates disapproved by the commission

17  department. The commission department may not disapprove any

18  rates or rating plans unless it demonstrates that such rates

19  and rating plans are excessive, inadequate, or unfairly

20  discriminatory.

21         (f)  No later than June 1 of each year, the plan shall

22  obtain an independent actuarial certification of the results

23  of the operations of the plan for prior years, and shall

24  furnish a copy of the certification to the commission

25  department. If, after the effective date of the plan, the

26  projected ultimate incurred losses and expenses and dividends

27  for prior years exceed collected premiums, accrued net

28  investment income, and prior assessments for prior years, the

29  certification is subject to review and approval by the

30  commission department before it becomes final.

31

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  1         (g)  Whenever a deficit exists, the plan shall, within

  2  90 days, provide the department and the commission with a

  3  program to eliminate the deficit within a reasonable time. The

  4  deficit may be funded both through increased premiums charged

  5  to insureds of the plan for subsequent years and through

  6  assessments on insureds in the plan if the plan uses

  7  assessable policies.

  8         (h)  Any premium or assessments collected by the plan

  9  in excess of the amount necessary to fund projected ultimate

10  incurred losses and expenses of the plan and not paid to

11  insureds of the plan in conjunction with loss prevention or

12  dividend programs shall be retained by the plan for future

13  use.

14         (i)  The decisions of the board of governors do not

15  constitute final agency action and are not subject to chapter

16  120.

17         (j)  Policies for insureds shall be issued by the plan.

18         (k)  The plan created under this subsection is liable

19  only for payment for losses arising under policies issued by

20  the plan with dates of accidents occurring on or after January

21  1, 1994.

22         (l)  Plan losses are the sole and exclusive

23  responsibility of the plan, and payment for such losses must

24  be funded in accordance with this subsection and must not

25  come, directly or indirectly, from insurers or any guaranty

26  association for such insurers.

27         (m)  Each joint underwriting plan or association

28  created under this section is not a state agency, board, or

29  commission. However, for the purposes of s. 199.183(1) only,

30  the joint underwriting plan is a political subdivision of the

31  state and is exempt from the corporate income tax.

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  1         (n)  Each joint underwriting plan or association may

  2  elect to pay premium taxes on the premiums received on its

  3  behalf or may elect to have the member insurers to whom the

  4  premiums are allocated pay the premium taxes if the member

  5  insurer had written the policy. The joint underwriting plan or

  6  association shall notify the member insurers and the

  7  Department of Revenue by January 15 of each year of its

  8  election for the same year. As used in this paragraph, the

  9  term "premiums received" means the consideration for

10  insurance, by whatever name called, but does not include any

11  policy assessment or surcharge received by the joint

12  underwriting association as a result of apportioning losses or

13  deficits of the association pursuant to this section.

14         (o)  Effective midnight, December 31, 1993, the Florida

15  Workers' Compensation Insurance Plan, administered by the

16  National Council on Compensation Insurance, shall terminate,

17  except with respect to workers' compensation policies issued

18  pursuant to such Florida Workers' Compensation Insurance Plan

19  with inception dates on or before December 31, 1993.

20         (p)  Neither the plan nor any member of the board of

21  governors is liable for monetary damages to any person for any

22  statement, vote, decision, or failure to act, regarding the

23  management or policies of the plan, unless:

24         1.  The member breached or failed to perform her or his

25  duties as a member; and

26         2.  The member's breach of, or failure to perform,

27  duties constitutes:

28         a.  A violation of the criminal law, unless the member

29  had reasonable cause to believe her or his conduct was

30  unlawful. A judgment or other final adjudication against a

31  member in any criminal proceeding for violation of the

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  1  criminal law estops that member from contesting the fact that

  2  her or his breach, or failure to perform, constitutes a

  3  violation of the criminal law; but does not estop the member

  4  from establishing that she or he had reasonable cause to

  5  believe that her or his conduct was lawful or had no

  6  reasonable cause to believe that her or his conduct was

  7  unlawful;

  8         b.  A transaction from which the member derived an

  9  improper personal benefit, either directly or indirectly; or

10         c.  Recklessness or any act or omission that was

11  committed in bad faith or with malicious purpose or in a

12  manner exhibiting wanton and willful disregard of human

13  rights, safety, or property. For purposes of this

14  sub-subparagraph, the term "recklessness" means the acting, or

15  omission to act, in conscious disregard of a risk:

16         (I)  Known, or so obvious that it should have been

17  known, to the member; and

18         (II)  Known to the member, or so obvious that it should

19  have been known, to be so great as to make it highly probable

20  that harm would follow from such act or omission.

21         (q)  No insurer shall provide workers' compensation and

22  employer's liability insurance to any person who is delinquent

23  in the payment of premiums, assessments, penalties, or

24  surcharges owed to the plan.

25         (5)  As used in this section and ss. 215.555 and

26  627.351, the term "collateral protection insurance" means

27  commercial property insurance of which a creditor is the

28  primary beneficiary and policyholder and which protects or

29  covers an interest of the creditor arising out of a credit

30  transaction secured by real or personal property. Initiation

31  of such coverage is triggered by the mortgagor's failure to

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  1  maintain insurance coverage as required by the mortgage or

  2  other lending document. Collateral protection insurance is not

  3  residential coverage.

  4         Section 58.  Subsection (6) of section 627.314, Florida

  5  Statutes, is amended to read:

  6         627.314  Concerted action by two or more insurers.--

  7         (6)  Notwithstanding any other provisions of this part,

  8  insurers shall not participate directly or indirectly in the

  9  deliberations or decisions of rating organizations on private

10  passenger automobile insurance.  However, such rating

11  organizations shall, upon request of individual insurers, be

12  required to furnish at reasonable cost the rate indications

13  resulting from the loss and expense statistics gathered by

14  them. Individual insurers may modify the indications to

15  reflect their individual experience in determining their own

16  rates.  Such rates shall be filed with the commission

17  department for public inspection whenever requested and shall

18  be available for public announcement only by the press,

19  commission department, or insurer.

20         Section 59.  Section 627.331, Florida Statutes, is

21  amended to read:

22         627.331  Recording and reporting of loss, expense, and

23  claims experience; rating information.--

24         (1)  The commission department may adopt promulgate

25  rules and statistical plans which shall thereafter be used by

26  each insurer in the recording and reporting of its loss,

27  expense, and claims experience, in order that the experience

28  of all insurers may be made available at least annually in

29  such form and detail as may be necessary to aid the department

30  in determining whether the insurer's activities comply with

31  the applicable standards of this code.

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  1         (2)  In adopting promulgating such rules and plans, the

  2  commission department shall give due consideration to the

  3  rating systems in use in this state and, in order that such

  4  rules and plans may be as uniform as is practicable among the

  5  several states, to the rules and to the form of the plans used

  6  for such rating systems in other states.  No insurer shall be

  7  required to record or report its loss experience on a

  8  classification basis that is inconsistent with the rating

  9  system used by it, except for motor vehicle insurance as

10  otherwise provided by law.

11         (3)  The commission department may designate one or

12  more rating organizations or other agencies to assist it in

13  gathering such experience and making compilations thereof; and

14  such compilations shall be made available, subject to

15  reasonable rules adopted promulgated by the commission

16  department, to insurers and rating organizations.

17         Section 60.  Subsections (1), (2), (4), (5), and (6) of

18  section 627.351, Florida Statutes, are amended to read:

19         627.351  Insurance risk apportionment plans.--

20         (1)  MOTOR VEHICLE INSURANCE RISK

21  APPORTIONMENT.--Agreements may be made among casualty and

22  surety insurers with respect to the equitable apportionment

23  among them of insurance which may be afforded applicants who

24  are in good faith entitled to, but are unable to, procure such

25  insurance through ordinary methods, and such insurers may

26  agree among themselves on the use of reasonable rate

27  modifications for such insurance.  Such agreements and rate

28  modifications shall be subject to the approval of the

29  department.  The department shall, after consultation with the

30  insurers licensed to write automobile liability insurance in

31  this state, adopt a reasonable plan or plans for the equitable

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  1  apportionment among such insurers of applicants for such

  2  insurance who are in good faith entitled to, but are unable

  3  to, procure such insurance through ordinary methods, and, when

  4  such plan has been adopted, all such insurers shall subscribe

  5  thereto and shall participate therein.  Such plan or plans

  6  shall include rules for classification of risks and rates

  7  therefor.  The plan or plans shall make available

  8  noncancelable coverage as provided in s. 627.7275(2).  Any

  9  insured placed with the plan shall be notified of the fact

10  that insurance coverage is being afforded through the plan and

11  not through the private market, and such notification shall be

12  given in writing within 10 days of such placement.  To assure

13  that plan rates are made adequate to pay claims and expenses,

14  insurers shall develop a means of obtaining loss and expense

15  experience at least annually, and the plan shall file such

16  experience, when available, with the commission department in

17  sufficient detail to make a determination of rate adequacy.

18  Prior to the filing of such experience with the commission

19  department, the plan shall poll each member insurer as to the

20  need for an actuary who is a member of the Casualty Actuarial

21  Society and who is not affiliated with the plan's statistical

22  agent to certify the plan's rate adequacy. If a majority of

23  those insurers responding indicate a need for such

24  certification, the plan shall include the certification as

25  part of its experience filing.  Such experience shall be filed

26  with the commission department not more than 9 months

27  following the end of the annual statistical period under

28  review, together with a rate filing based on that said

29  experience.  The commission department shall initiate

30  proceedings to disapprove the rate and so notify the plan or

31  shall finalize its review within 60 days after of receipt of

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  1  the filing. Notification to the plan by the commission

  2  department of its preliminary findings, which include a point

  3  of entry to the plan pursuant to chapter 120, shall toll the

  4  60-day period during any such proceedings and subsequent

  5  judicial review.  The rate shall be deemed approved if the

  6  commission department does not issue notice to the plan of its

  7  preliminary findings within 60 days of the filing.  In

  8  addition to provisions for claims and expenses, the ratemaking

  9  formula shall include a factor for projected claims trending

10  and 5 percent for contingencies.  In no instance shall the

11  formula include a renewal discount for plan insureds. However,

12  the plan shall reunderwrite each insured on an annual basis,

13  based upon all applicable rating factors approved by the

14  department.  Trend factors shall not be found to be

15  inappropriate if not in excess of trend factors normally used

16  in the development of residual market rates by the appropriate

17  licensed rating organization.  Each application for coverage

18  in the plan shall include, in boldfaced 12-point type

19  immediately preceding the applicant's signature, the following

20  statement:

21

22         "THIS INSURANCE IS BEING AFFORDED THROUGH THE

23         FLORIDA JOINT UNDERWRITING ASSOCIATION AND NOT

24         THROUGH THE PRIVATE MARKET. PLEASE BE ADVISED

25         THAT COVERAGE WITH A PRIVATE INSURER MAY BE

26         AVAILABLE FROM ANOTHER AGENT AT A LOWER COST.

27         AGENT AND COMPANY LISTINGS ARE AVAILABLE IN THE

28         LOCAL YELLOW PAGES."

29

30

31

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  1  The plan shall annually report to the commission

  2  department the number and percentage of plan insureds

  3  who are not surcharged due to their driving record.

  4         (2)  WINDSTORM INSURANCE RISK APPORTIONMENT.--

  5         (a)  Agreements may be made among property insurers

  6  with respect to the equitable apportionment among them of

  7  insurance which may be afforded applicants who are in good

  8  faith entitled to, but are unable to procure, such insurance

  9  through ordinary methods; and such insurers may agree among

10  themselves on the use of reasonable rate modifications for

11  such insurance. Such agreements and rate modifications shall

12  be subject to the applicable provisions of this chapter.

13         (b)  The department shall require all insurers holding

14  a certificate of authority to transact property insurance on a

15  direct basis in this state, other than joint underwriting

16  associations and other entities formed pursuant to this

17  section, to provide windstorm coverage to applicants from

18  areas determined to be eligible pursuant to paragraph (c) who

19  in good faith are entitled to, but are unable to procure, such

20  coverage through ordinary means; or it shall adopt a

21  reasonable plan or plans for the equitable apportionment or

22  sharing among such insurers of windstorm coverage, which may

23  include formation of an association for this purpose. As used

24  in this subsection, the term "property insurance" means

25  insurance on real or personal property, as defined in s.

26  624.604, including insurance for fire, industrial fire, allied

27  lines, farmowners multiperil, homeowners' multiperil,

28  commercial multiperil, and mobile homes, and including

29  liability coverages on all such insurance, but excluding

30  inland marine as defined in s. 624.607(3) and excluding

31  vehicle insurance as defined in s. 624.605(1)(a) other than

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  1  insurance on mobile homes used as permanent dwellings. The

  2  department shall adopt rules that provide a formula for the

  3  recovery and repayment of any deferred assessments.

  4         1.  For the purpose of this section, properties

  5  eligible for such windstorm coverage are defined as dwellings,

  6  buildings, and other structures, including mobile homes which

  7  are used as dwellings and which are tied down in compliance

  8  with mobile home tie-down requirements prescribed by the

  9  Department of Highway Safety and Motor Vehicles pursuant to s.

10  320.8325, and the contents of all such properties. An

11  applicant or policyholder is eligible for coverage only if an

12  offer of coverage cannot be obtained by or for the applicant

13  or policyholder from an admitted insurer at approved rates.

14         2.a.(I)  All insurers required to be members of such

15  association shall participate in its writings, expenses, and

16  losses. Surplus of the association shall be retained for the

17  payment of claims and shall not be distributed to the member

18  insurers. Such participation by member insurers shall be in

19  the proportion that the net direct premiums of each member

20  insurer written for property insurance in this state during

21  the preceding calendar year bear to the aggregate net direct

22  premiums for property insurance of all member insurers, as

23  reduced by any credits for voluntary writings, in this state

24  during the preceding calendar year. For the purposes of this

25  subsection, the term "net direct premiums" means direct

26  written premiums for property insurance, reduced by premium

27  for liability coverage and for the following if included in

28  allied lines: rain and hail on growing crops; livestock;

29  association direct premiums booked; National Flood Insurance

30  Program direct premiums; and similar deductions specifically

31  authorized by the plan of operation and approved by the

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  1  department. A member's participation shall begin on the first

  2  day of the calendar year following the year in which it is

  3  issued a certificate of authority to transact property

  4  insurance in the state and shall terminate 1 year after the

  5  end of the calendar year during which it no longer holds a

  6  certificate of authority to transact property insurance in the

  7  state. The commissioner, after review of annual statements,

  8  other reports, and any other statistics that the commissioner

  9  deems necessary, shall certify to the association the

10  aggregate direct premiums written for property insurance in

11  this state by all member insurers.

12         (II)  The plan of operation shall provide for a board

13  of directors consisting of the Insurance Consumer Advocate

14  appointed under s. 627.0613, 1 consumer representative

15  appointed by the Insurance Commissioner, 1 consumer

16  representative appointed by the Governor, and 12 additional

17  members appointed as specified in the plan of operation. One

18  of the 12 additional members shall be elected by the domestic

19  companies of this state on the basis of cumulative weighted

20  voting based on the net direct premiums of domestic companies

21  in this state. Nothing in the 1997 amendments to this

22  paragraph terminates the existing board or the terms of any

23  members of the board.

24         (III)  The plan of operation shall provide a formula

25  whereby a company voluntarily providing windstorm coverage in

26  affected areas will be relieved wholly or partially from

27  apportionment of a regular assessment pursuant to

28  sub-sub-subparagraph d.(I) or sub-sub-subparagraph d.(II).

29         (IV)  A company which is a member of a group of

30  companies under common management may elect to have its

31  credits applied on a group basis, and any company or group may

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  1  elect to have its credits applied to any other company or

  2  group.

  3         (V)  There shall be no credits or relief from

  4  apportionment to a company for emergency assessments collected

  5  from its policyholders under sub-sub-subparagraph d.(III).

  6         (VI)  The plan of operation may also provide for the

  7  award of credits, for a period not to exceed 3 years, from a

  8  regular assessment pursuant to sub-sub-subparagraph d.(I) or

  9  sub-sub-subparagraph d.(II) as an incentive for taking

10  policies out of the Residential Property and Casualty Joint

11  Underwriting Association.  In order to qualify for the

12  exemption under this sub-sub-subparagraph, the take-out plan

13  must provide that at least 40 percent of the policies removed

14  from the Residential Property and Casualty Joint Underwriting

15  Association cover risks located in Dade, Broward, and Palm

16  Beach Counties or at least 30 percent of the policies so

17  removed cover risks located in Dade, Broward, and Palm Beach

18  Counties and an additional 50 percent of the policies so

19  removed cover risks located in other coastal counties, and

20  must also provide that no more than 15 percent of the policies

21  so removed may exclude windstorm coverage.  With the approval

22  of the department, the association may waive these geographic

23  criteria for a take-out plan that removes at least the lesser

24  of 100,000 Residential Property and Casualty Joint

25  Underwriting Association policies or 15 percent of the total

26  number of Residential Property and Casualty Joint Underwriting

27  Association policies, provided the governing board of the

28  Residential Property and Casualty Joint Underwriting

29  Association certifies that the take-out plan will materially

30  reduce the Residential Property and Casualty Joint

31  Underwriting Association's 100-year probable maximum loss from

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  1  hurricanes.  With the approval of the department, the board

  2  may extend such credits for an additional year if the insurer

  3  guarantees an additional year of renewability for all policies

  4  removed from the Residential Property and Casualty Joint

  5  Underwriting Association, or for 2 additional years if the

  6  insurer guarantees 2 additional years of renewability for all

  7  policies removed from the Residential Property and Casualty

  8  Joint Underwriting Association.

  9         b.  Assessments to pay deficits in the association

10  under this subparagraph shall be included as an appropriate

11  factor in the making of rates as provided in s. 627.3512.

12         c.  The Legislature finds that the potential for

13  unlimited deficit assessments under this subparagraph may

14  induce insurers to attempt to reduce their writings in the

15  voluntary market, and that such actions would worsen the

16  availability problems that the association was created to

17  remedy. It is the intent of the Legislature that insurers

18  remain fully responsible for paying regular assessments and

19  collecting emergency assessments for any deficits of the

20  association; however, it is also the intent of the Legislature

21  to provide a means by which assessment liabilities may be

22  amortized over a period of years.

23         d.(I)  When the deficit incurred in a particular

24  calendar year is 10 percent or less of the aggregate statewide

25  direct written premium for property insurance for the prior

26  calendar year for all member insurers, the association shall

27  levy an assessment on member insurers in an amount equal to

28  the deficit.

29         (II)  When the deficit incurred in a particular

30  calendar year exceeds 10 percent of the aggregate statewide

31  direct written premium for property insurance for the prior

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  1  calendar year for all member insurers, the association shall

  2  levy an assessment on member insurers in an amount equal to

  3  the greater of 10 percent of the deficit or 10 percent of the

  4  aggregate statewide direct written premium for property

  5  insurance for the prior calendar year for member insurers. Any

  6  remaining deficit shall be recovered through emergency

  7  assessments under sub-sub-subparagraph (III).

  8         (III)  Upon a determination by the board of directors

  9  that a deficit exceeds the amount that will be recovered

10  through regular assessments on member insurers, pursuant to

11  sub-sub-subparagraph (I) or sub-sub-subparagraph (II), the

12  board shall levy, after verification by the department,

13  emergency assessments to be collected by member insurers and

14  by underwriting associations created pursuant to this section

15  which write property insurance, upon issuance or renewal of

16  property insurance policies other than National Flood

17  Insurance policies in the year or years following levy of the

18  regular assessments. The amount of the emergency assessment

19  collected in a particular year shall be a uniform percentage

20  of that year's direct written premium for property insurance

21  for all member insurers and underwriting associations,

22  excluding National Flood Insurance policy premiums, as

23  annually determined by the board and verified by the

24  department. The department shall verify the arithmetic

25  calculations involved in the board's determination within 30

26  days after receipt of the information on which the

27  determination was based. Notwithstanding any other provision

28  of law, each member insurer and each underwriting association

29  created pursuant to this section shall collect emergency

30  assessments from its policyholders without such obligation

31  being affected by any credit, limitation, exemption, or

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  1  deferment.  The emergency assessments so collected shall be

  2  transferred directly to the association on a periodic basis as

  3  determined by the association. The aggregate amount of

  4  emergency assessments levied under this sub-sub-subparagraph

  5  in any calendar year may not exceed the greater of 10 percent

  6  of the amount needed to cover the original deficit, plus

  7  interest, fees, commissions, required reserves, and other

  8  costs associated with financing of the original deficit, or 10

  9  percent of the aggregate statewide direct written premium for

10  property insurance written by member insurers and underwriting

11  associations for the prior year, plus interest, fees,

12  commissions, required reserves, and other costs associated

13  with financing the original deficit. The board may pledge the

14  proceeds of the emergency assessments under this

15  sub-sub-subparagraph as the source of revenue for bonds, to

16  retire any other debt incurred as a result of the deficit or

17  events giving rise to the deficit, or in any other way that

18  the board determines will efficiently recover the deficit. The

19  emergency assessments under this sub-sub-subparagraph shall

20  continue as long as any bonds issued or other indebtedness

21  incurred with respect to a deficit for which the assessment

22  was imposed remain outstanding, unless adequate provision has

23  been made for the payment of such bonds or other indebtedness

24  pursuant to the document governing such bonds or other

25  indebtedness. Emergency assessments collected under this

26  sub-sub-subparagraph are not part of an insurer's rates, are

27  not premium, and are not subject to premium tax, fees, or

28  commissions; however, failure to pay the emergency assessment

29  shall be treated as failure to pay premium.

30         (IV)  Each member insurer's share of the total regular

31  assessments under sub-sub-subparagraph (I) or

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  1  sub-sub-subparagraph (II) shall be in the proportion that the

  2  insurer's net direct premium for property insurance in this

  3  state, for the year preceding the assessment bears to the

  4  aggregate statewide net direct premium for property insurance

  5  of all member insurers, as reduced by any credits for

  6  voluntary writings for that year.

  7         (V)  If regular deficit assessments are made under

  8  sub-sub-subparagraph (I) or sub-sub-subparagraph (II), or by

  9  the Residential Property and Casualty Joint Underwriting

10  Association under sub-subparagraph (6)(b)3.a. or

11  sub-subparagraph (6)(b)3.b., the association shall levy upon

12  the association's policyholders, as part of its next rate

13  filing, or by a separate rate filing solely for this purpose,

14  a market equalization surcharge in a percentage equal to the

15  total amount of such regular assessments divided by the

16  aggregate statewide direct written premium for property

17  insurance for member insurers for the prior calendar year.

18  Market equalization surcharges under this sub-sub-subparagraph

19  are not considered premium and are not subject to commissions,

20  fees, or premium taxes; however, failure to pay a market

21  equalization surcharge shall be treated as failure to pay

22  premium.

23         e.  The governing body of any unit of local government,

24  any residents of which are insured under the plan, may issue

25  bonds as defined in s. 125.013 or s. 166.101 to fund an

26  assistance program, in conjunction with the association, for

27  the purpose of defraying deficits of the association. In order

28  to avoid needless and indiscriminate proliferation,

29  duplication, and fragmentation of such assistance programs,

30  any unit of local government, any residents of which are

31  insured by the association, may provide for the payment of

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  1  losses, regardless of whether or not the losses occurred

  2  within or outside of the territorial jurisdiction of the local

  3  government. Revenue bonds may not be issued until validated

  4  pursuant to chapter 75, unless a state of emergency is

  5  declared by executive order or proclamation of the Governor

  6  pursuant to s. 252.36 making such findings as are necessary to

  7  determine that it is in the best interests of, and necessary

  8  for, the protection of the public health, safety, and general

  9  welfare of residents of this state and the protection and

10  preservation of the economic stability of insurers operating

11  in this state, and declaring it an essential public purpose to

12  permit certain municipalities or counties to issue bonds as

13  will provide relief to claimants and policyholders of the

14  association and insurers responsible for apportionment of plan

15  losses. Any such unit of local government may enter into such

16  contracts with the association and with any other entity

17  created pursuant to this subsection as are necessary to carry

18  out this paragraph. Any bonds issued under this

19  sub-subparagraph shall be payable from and secured by moneys

20  received by the association from assessments under this

21  subparagraph, and assigned and pledged to or on behalf of the

22  unit of local government for the benefit of the holders of

23  such bonds. The funds, credit, property, and taxing power of

24  the state or of the unit of local government shall not be

25  pledged for the payment of such bonds. If any of the bonds

26  remain unsold 60 days after issuance, the department shall

27  require all insurers subject to assessment to purchase the

28  bonds, which shall be treated as admitted assets; each insurer

29  shall be required to purchase that percentage of the unsold

30  portion of the bond issue that equals the insurer's relative

31  share of assessment liability under this subsection. An

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  1  insurer shall not be required to purchase the bonds to the

  2  extent that the department determines that the purchase would

  3  endanger or impair the solvency of the insurer. The authority

  4  granted by this sub-subparagraph is additional to any bonding

  5  authority granted by subparagraph 6.

  6         3.  The plan shall also provide that any member with a

  7  surplus as to policyholders of $20 million or less writing 25

  8  percent or more of its total countrywide property insurance

  9  premiums in this state may petition the department, within the

10  first 90 days of each calendar year, to qualify as a limited

11  apportionment company. The apportionment of such a member

12  company in any calendar year for which it is qualified shall

13  not exceed its gross participation, which shall not be

14  affected by the formula for voluntary writings. In no event

15  shall a limited apportionment company be required to

16  participate in any apportionment of losses pursuant to

17  sub-sub-subparagraph 2.d.(I) or sub-sub-subparagraph 2.d.(II)

18  in the aggregate which exceeds $50 million after payment of

19  available plan funds in any calendar year. However, a limited

20  apportionment company shall collect from its policyholders any

21  emergency assessment imposed under sub-sub-subparagraph

22  2.d.(III). The plan shall provide that, if the department

23  determines that any regular assessment will result in an

24  impairment of the surplus of a limited apportionment company,

25  the department may direct that all or part of such assessment

26  be deferred. However, there shall be no limitation or

27  deferment of an emergency assessment to be collected from

28  policyholders under sub-sub-subparagraph 2.d.(III).

29         4.  The plan shall provide for the deferment, in whole

30  or in part, of a regular assessment of a member insurer under

31  sub-sub-subparagraph 2.d.(I) or sub-sub-subparagraph 2.d.(II),

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  1  but not for an emergency assessment collected from

  2  policyholders under sub-sub-subparagraph 2.d.(III), if, in the

  3  opinion of the commissioner, payment of such regular

  4  assessment would endanger or impair the solvency of the member

  5  insurer. In the event a regular assessment against a member

  6  insurer is deferred in whole or in part, the amount by which

  7  such assessment is deferred may be assessed against the other

  8  member insurers in a manner consistent with the basis for

  9  assessments set forth in sub-sub-subparagraph 2.d.(I) or

10  sub-sub-subparagraph 2.d.(II).

11         5.a.  The plan of operation may include deductibles and

12  rules for classification of risks and rate modifications

13  consistent with the objective of providing and maintaining

14  funds sufficient to pay catastrophe losses.

15         b.  The association may require arbitration of a rate

16  filing under s. 627.062(6). It is the intent of the

17  Legislature that the rates for coverage provided by the

18  association be actuarially sound and not competitive with

19  approved rates charged in the admitted voluntary market such

20  that the association functions as a residual market mechanism

21  to provide insurance only when the insurance cannot be

22  procured in the voluntary market.  The plan of operation shall

23  provide a mechanism to assure that, beginning no later than

24  January 1, 1999, the rates charged by the association for each

25  line of business are reflective of approved rates in the

26  voluntary market for hurricane coverage for each line of

27  business in the various areas eligible for association

28  coverage.

29         c.  The association shall provide for windstorm

30  coverage on residential properties in limits up to $10 million

31  for commercial lines residential risks and up to $1 million

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  1  for personal lines residential risks. If coverage with the

  2  association is sought for a residential risk valued in excess

  3  of these limits, coverage shall be available to the risk up to

  4  the replacement cost or actual cash value of the property, at

  5  the option of the insured, if coverage for the risk cannot be

  6  located in the authorized market. The association must accept

  7  a commercial lines residential risk with limits above $10

  8  million or a personal lines residential risk with limits above

  9  $1 million if coverage is not available in the authorized

10  market.  The association may write coverage above the limits

11  specified in this subparagraph with or without facultative or

12  other reinsurance coverage, as the association determines

13  appropriate.

14         d.  The plan of operation must provide objective

15  criteria and procedures, approved by the department, to be

16  uniformly applied for all applicants in determining whether an

17  individual risk is so hazardous as to be uninsurable. In

18  making this determination and in establishing the criteria and

19  procedures, the following shall be considered:

20         (I)  Whether the likelihood of a loss for the

21  individual risk is substantially higher than for other risks

22  of the same class; and

23         (II)  Whether the uncertainty associated with the

24  individual risk is such that an appropriate premium cannot be

25  determined.

26

27  The acceptance or rejection of a risk by the association

28  pursuant to such criteria and procedures must be construed as

29  the private placement of insurance, and the provisions of

30  chapter 120 do not apply.

31

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  1         e.  The policies issued by the association must provide

  2  that if the association obtains an offer from an authorized

  3  insurer to cover the risk at its approved rates under either a

  4  standard policy including wind coverage or, if consistent with

  5  the insurer's underwriting rules as filed with the department,

  6  a basic policy including wind coverage, the risk is no longer

  7  eligible for coverage through the association. Upon

  8  termination of eligibility, the association shall provide

  9  written notice to the policyholder and agent of record stating

10  that the association policy must be canceled as of 60 days

11  after the date of the notice because of the offer of coverage

12  from an authorized insurer. Other provisions of the insurance

13  code relating to cancellation and notice of cancellation do

14  not apply to actions under this sub-subparagraph.

15         f.  Association policies and applications must include

16  a notice that the association policy could, under this

17  section, be replaced with a policy issued by an authorized

18  insurer that does not provide coverage identical to the

19  coverage provided by the association. The notice shall also

20  specify that acceptance of association coverage creates a

21  conclusive presumption that the applicant or policyholder is

22  aware of this potential.

23         6.a.  The plan of operation may authorize the formation

24  of a private nonprofit corporation, a private nonprofit

25  unincorporated association, a partnership, a trust, a limited

26  liability company, or a nonprofit mutual company which may be

27  empowered, among other things, to borrow money by issuing

28  bonds or by incurring other indebtedness and to accumulate

29  reserves or funds to be used for the payment of insured

30  catastrophe losses. The plan may authorize all actions

31

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  1  necessary to facilitate the issuance of bonds, including the

  2  pledging of assessments or other revenues.

  3         b.  Any entity created under this subsection, or any

  4  entity formed for the purposes of this subsection, may sue and

  5  be sued, may borrow money; issue bonds, notes, or debt

  6  instruments; pledge or sell assessments, market equalization

  7  surcharges and other surcharges, rights, premiums, contractual

  8  rights, projected recoveries from the Florida Hurricane

  9  Catastrophe Fund, other reinsurance recoverables, and other

10  assets as security for such bonds, notes, or debt instruments;

11  enter into any contracts or agreements necessary or proper to

12  accomplish such borrowings; and take other actions necessary

13  to carry out the purposes of this subsection. The association

14  may issue bonds or incur other indebtedness, or have bonds

15  issued on its behalf by a unit of local government pursuant to

16  subparagraph (g)2., in the absence of a hurricane or other

17  weather-related event, upon a determination by the association

18  subject to approval by the department that such action would

19  enable it to efficiently meet the financial obligations of the

20  association and that such financings are reasonably necessary

21  to effectuate the requirements of this subsection. Any such

22  entity may accumulate reserves and retain surpluses as of the

23  end of any association year to provide for the payment of

24  losses incurred by the association during that year or any

25  future year. The association shall incorporate and continue

26  the plan of operation and articles of agreement in effect on

27  the effective date of chapter 76-96, Laws of Florida, to the

28  extent that it is not inconsistent with chapter 76-96, and as

29  subsequently modified consistent with chapter 76-96. The board

30  of directors and officers currently serving shall continue to

31  serve until their successors are duly qualified as provided

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  1  under the plan. The assets and obligations of the plan in

  2  effect immediately prior to the effective date of chapter

  3  76-96 shall be construed to be the assets and obligations of

  4  the successor plan created herein.

  5         c.  In recognition of s. 10, Art. I of the State

  6  Constitution, prohibiting the impairment of obligations of

  7  contracts, it is the intent of the Legislature that no action

  8  be taken whose purpose is to impair any bond indenture or

  9  financing agreement or any revenue source committed by

10  contract to such bond or other indebtedness issued or incurred

11  by the association or any other entity created under this

12  subsection.

13         7.  On such coverage, an agent's remuneration shall be

14  that amount of money payable to the agent by the terms of his

15  or her contract with the company with which the business is

16  placed. However, no commission will be paid on that portion of

17  the premium which is in excess of the standard premium of that

18  company.

19         8.  Subject to approval by the department, the

20  association may establish different eligibility requirements

21  and operational procedures for any line or type of coverage

22  for any specified eligible area or portion of an eligible area

23  if the board determines that such changes to the eligibility

24  requirements and operational procedures are justified due to

25  the voluntary market being sufficiently stable and competitive

26  in such area or for such line or type of coverage and that

27  consumers who, in good faith, are unable to obtain insurance

28  through the voluntary market through ordinary methods would

29  continue to have access to coverage from the association. When

30  coverage is sought in connection with a real property

31  transfer, such requirements and procedures shall not provide

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  1  for an effective date of coverage later than the date of the

  2  closing of the transfer as established by the transferor, the

  3  transferee, and, if applicable, the lender.

  4         9.  Notwithstanding any other provision of law:

  5         a.  The pledge or sale of, the lien upon, and the

  6  security interest in any rights, revenues, or other assets of

  7  the association created or purported to be created pursuant to

  8  any financing documents to secure any bonds or other

  9  indebtedness of the association shall be and remain valid and

10  enforceable, notwithstanding the commencement of and during

11  the continuation of, and after, any rehabilitation,

12  insolvency, liquidation, bankruptcy, receivership,

13  conservatorship, reorganization, or similar proceeding against

14  the association under the laws of this state or any other

15  applicable laws.

16         b.  No such proceeding shall relieve the association of

17  its obligation, or otherwise affect its ability to perform its

18  obligation, to continue to collect, or levy and collect,

19  assessments, market equalization or other surcharges,

20  projected recoveries from the Florida Hurricane Catastrophe

21  Fund, reinsurance recoverables, or any other rights, revenues,

22  or other assets of the association pledged.

23         c.  Each such pledge or sale of, lien upon, and

24  security interest in, including the priority of such pledge,

25  lien, or security interest, any such assessments, emergency

26  assessments, market equalization or renewal surcharges,

27  projected recoveries from the Florida Hurricane Catastrophe

28  Fund, reinsurance recoverables, or other rights, revenues, or

29  other assets which are collected, or levied and collected,

30  after the commencement of and during the pendency of or after

31

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  1  any such proceeding shall continue unaffected by such

  2  proceeding.

  3         d.  As used in this subsection, the term "financing

  4  documents" means any agreement, instrument, or other document

  5  now existing or hereafter created evidencing any bonds or

  6  other indebtedness of the association or pursuant to which any

  7  such bonds or other indebtedness has been or may be issued and

  8  pursuant to which any rights, revenues, or other assets of the

  9  association are pledged or sold to secure the repayment of

10  such bonds or indebtedness, together with the payment of

11  interest on such bonds or such indebtedness, or the payment of

12  any other obligation of the association related to such bonds

13  or indebtedness.

14         e.  Any such pledge or sale of assessments, revenues,

15  contract rights or other rights or assets of the association

16  shall constitute a lien and security interest, or sale, as the

17  case may be, that is immediately effective and attaches to

18  such assessments, revenues, contract, or other rights or

19  assets, whether or not imposed or collected at the time the

20  pledge or sale is made. Any such pledge or sale is effective,

21  valid, binding, and enforceable against the association or

22  other entity making such pledge or sale, and valid and binding

23  against and superior to any competing claims or obligations

24  owed to any other person or entity, including policyholders in

25  this state, asserting rights in any such assessments,

26  revenues, contract, or other rights or assets to the extent

27  set forth in and in accordance with the terms of the pledge or

28  sale contained in the applicable financing documents, whether

29  or not any such person or entity has notice of such pledge or

30  sale and without the need for any physical delivery,

31  recordation, filing, or other action.

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  1         f.  There shall be no liability on the part of, and no

  2  cause of action of any nature shall arise against, any member

  3  insurer or its agents or employees, agents or employees of the

  4  association, members of the board of directors of the

  5  association, or the department or its representatives, for any

  6  action taken by them in the performance of their duties or

  7  responsibilities under this subsection. Such immunity does not

  8  apply to actions for breach of any contract or agreement

  9  pertaining to insurance, or any willful tort.

10         (c)  The provisions of paragraph (b) are applicable

11  only with respect to:

12         1.  Those areas that were eligible for coverage under

13  this subsection on April 9, 1993; or

14         2.  Any county or area as to which the department,

15  after public hearing, finds that the following criteria exist:

16         a.  Due to the lack of windstorm insurance coverage in

17  the county or area so affected, economic growth and

18  development is being deterred or otherwise stifled in such

19  county or area, mortgages are in default, and financial

20  institutions are unable to make loans;

21         b.  The county or area so affected has adopted and is

22  enforcing the structural requirements of the State Minimum

23  Building Codes, as defined in s. 553.73, for new construction

24  and has included adequate minimum floor elevation requirements

25  for structures in areas subject to inundation; and

26         c.  Extending windstorm insurance coverage to such

27  county or area is consistent with and will implement and

28  further the policies and objectives set forth in applicable

29  state laws, rules, and regulations governing coastal

30  management, coastal construction, comprehensive planning,

31  beach and shore preservation, barrier island preservation,

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  1  coastal zone protection, and the Coastal Zone Protection Act

  2  of 1985.

  3

  4  Any time after the department has determined that the criteria

  5  referred to in this subparagraph do not exist with respect to

  6  any county or area of the state, it may, after a subsequent

  7  public hearing, declare that such county or area is no longer

  8  eligible for windstorm coverage through the plan.

  9         (d)  For the purpose of evaluating whether the criteria

10  of paragraph (c) are met, such criteria shall be applied as

11  the situation would exist if policies had not been written by

12  the Florida Residential Property and Casualty Joint

13  Underwriting Association and property insurance for such

14  policyholders was not available.

15         (e)  Notwithstanding the provisions of subparagraph

16  (c)2. or paragraph (d), eligibility shall not be extended to

17  any area that was not eligible on March 1, 1997, except that

18  the department may act with respect to any petition on which a

19  hearing was held prior to May 9, 1997.

20         (4)  MEDICAL MALPRACTICE RISK APPORTIONMENT.--

21         (a)  The department shall, after consultation with

22  insurers as set forth in paragraph (b), adopt a joint

23  underwriting plan as set forth in paragraph (d).

24         (b)  Entities licensed to issue casualty insurance as

25  defined in s. 624.605(1)(b), (k), and (q) and self-insurers

26  authorized to issue medical malpractice insurance under s.

27  627.357 shall participate in the plan and shall be members of

28  the Joint Underwriting Association.

29         (c)  The Joint Underwriting Association shall operate

30  subject to the supervision and approval of a board of

31  governors consisting of representatives of five of the

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  1  insurers participating in the Joint Underwriting Association,

  2  an attorney to be named by The Florida Bar, a physician to be

  3  named by the Florida Medical Association, a dentist to be

  4  named by the Florida Dental Association, and a hospital

  5  representative to be named by the Florida Hospital

  6  Association.  The board of governors shall choose, during the

  7  first meeting of the board after June 30 of each year, one of

  8  its members to serve as chair of the board and another member

  9  to serve as vice chair of the board.  There shall be no

10  liability on the part of, and no cause of action of any nature

11  shall arise against, any member insurer, self-insurer, or its

12  agents or employees, the Joint Underwriting Association or its

13  agents or employees, members of the board of governors, or the

14  department or its representatives for any action taken by them

15  in the performance of their powers and duties under this

16  subsection.

17         (d)  The plan shall provide coverage for claims arising

18  out of the rendering of, or failure to render, medical care or

19  services and, in the case of health care facilities, coverage

20  for bodily injury or property damage to the person or property

21  of any patient arising out of the insured's activities, in

22  appropriate policy forms for all health care providers as

23  defined in paragraph (h).  The plan shall include, but shall

24  not be limited to:

25         1.  Classifications of risks and rates which reflect

26  past and prospective loss and expense experience in different

27  areas of practice and in different geographical areas.  To

28  assure that plan rates are adequate to pay claims and

29  expenses, the Joint Underwriting Association shall develop a

30  means of obtaining loss and expense experience; and the plan

31  shall file such experience, when available, with the

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  1  commission department in sufficient detail to make a

  2  determination of rate adequacy.  Within 60 days after a rate

  3  filing, the commission department shall approve such rates or

  4  rate revisions as are fully supported by the filing.  In

  5  addition to provisions for claims and expenses, the ratemaking

  6  formula may include a factor for projected claims trending and

  7  a margin for contingencies.  The use of trend factors shall

  8  not be found to be inappropriate.

  9         2.  A rating plan which reasonably recognizes the prior

10  claims experience of insureds.

11         3.  Provisions as to rates for:

12         a.  Insureds who are retired or semiretired.

13         b.  The estates of deceased insureds.

14         c.  Part-time professionals.

15         4.  Protection in an amount not to exceed $250,000 per

16  claim, $750,000 annual aggregate for health care providers

17  other than hospitals and in an amount not to exceed $1.5

18  million per claim, $5 million annual aggregate for hospitals.

19  Such coverage for health care providers other than hospitals

20  shall be available as primary coverage and as excess coverage

21  for the layer of coverage between the primary coverage and the

22  total limits of $250,000 per claim, $750,000 annual aggregate.

23  The plan shall also provide tail coverage in these amounts to

24  insureds whose claims-made coverage with another insurer or

25  trust has or will be terminated.  Such tail coverage shall

26  provide coverage for incidents that occurred during the

27  claims-made policy period for which a claim is made after the

28  policy period.

29         5.  A risk management program for insureds of the

30  association.  This program shall include, but not be limited

31  to: investigation and analysis of frequency, severity, and

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  1  causes of adverse or untoward medical injuries; development of

  2  measures to control these injuries; systematic reporting of

  3  medical incidents; investigation and analysis of patient

  4  complaints; and auditing of association members to assure

  5  implementation of this program. The plan may refuse to insure

  6  any insured who refuses or fails to comply with the risk

  7  management program implemented by the association.  Prior to

  8  cancellation or refusal to renew an insured, the association

  9  shall provide the insured 60 days' notice of intent to cancel

10  or nonrenew and shall further notify the insured of any action

11  which must be taken to be in compliance with the risk

12  management program.

13         (e)  In the event an underwriting deficit exists for

14  any policy year the plan is in effect, any surplus which has

15  accrued from previous years and is not projected within

16  reasonable actuarial certainty to be needed for payment of

17  claims in the year the surplus arose shall be used to offset

18  the deficit to the extent available.

19         1.  As to remaining deficit, except those relating to

20  deficit assessment coverage, each policyholder shall pay to

21  the association a premium contingency assessment not to exceed

22  one-third of the premium payment paid by such policyholder to

23  the association for that policy year.  The association shall

24  pay no further claims on any policy for the policyholder who

25  fails to pay the premium contingency assessment.

26         2.  If there is any remaining deficit under the plan

27  after maximum collection of the premium contingency

28  assessment, such deficit shall be recovered from the companies

29  participating in the plan in the proportion that the net

30  direct premiums of each such member written during the

31  calendar year immediately preceding the end of the policy year

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  1  for which there is a deficit assessment bear to the aggregate

  2  net direct premiums written in this state by all members of

  3  the association.  The term "premiums" as used herein means

  4  premiums for the lines of insurance defined in s.

  5  624.605(1)(b), (k), and (q), including premiums for such

  6  coverage issued under package policies.

  7         (f)  The plan shall provide for one or more insurers

  8  able and willing to provide policy service through licensed

  9  resident agents and claims service on behalf of all other

10  insurers participating in the plan.  In the event no insurer

11  is able and willing to provide such services, the Joint

12  Underwriting Association is authorized to perform any and all

13  such services.

14         (g)  All books, records, documents, or audits relating

15  to the Joint Underwriting Association or its operation shall

16  be open to public inspection, except that a claim file in the

17  possession of the Joint Underwriting Association is

18  confidential and exempt from the provisions of s. 119.07(1)

19  during the processing of that claim.  Any information

20  contained in these files that identifies an injured person is

21  confidential and exempt from the provisions of s. 119.07(1).

22         (h)  As used in this subsection:

23         1.  "Health care provider" means hospitals licensed

24  under chapter 395; physicians licensed under chapter 458;

25  osteopathic physicians licensed under chapter 459; podiatric

26  physicians licensed under chapter 461; dentists licensed under

27  chapter 466; chiropractic physicians licensed under chapter

28  460; naturopaths licensed under chapter 462; nurses licensed

29  under chapter 464; midwives licensed under chapter 467;

30  clinical laboratories registered under chapter 483; physician

31  assistants licensed under chapter 458 or chapter 459; physical

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  1  therapists and physical therapist assistants licensed under

  2  chapter 486; health maintenance organizations certificated

  3  under part I of chapter 641; ambulatory surgical centers

  4  licensed under chapter 395; other medical facilities as

  5  defined in subparagraph 2.; blood banks, plasma centers,

  6  industrial clinics, and renal dialysis facilities; or

  7  professional associations, partnerships, corporations, joint

  8  ventures, or other associations for professional activity by

  9  health care providers.

10         2.  "Other medical facility" means a facility the

11  primary purpose of which is to provide human medical

12  diagnostic services or a facility providing nonsurgical human

13  medical treatment, to which facility the patient is admitted

14  and from which facility the patient is discharged within the

15  same working day, and which facility is not part of a

16  hospital.  However, a facility existing for the primary

17  purpose of performing terminations of pregnancy or an office

18  maintained by a physician or dentist for the practice of

19  medicine shall not be construed to be an "other medical

20  facility."

21         3.  "Health care facility" means any hospital licensed

22  under chapter 395, health maintenance organization

23  certificated under part I of chapter 641, ambulatory surgical

24  center licensed under chapter 395, or other medical facility

25  as defined in subparagraph 2.

26         (i)  The manager of the plan or the manager's assistant

27  is the agent for service of process for the plan.

28         (5)  PROPERTY AND CASUALTY INSURANCE RISK

29  APPORTIONMENT.--The department shall adopt by rule a joint

30  underwriting plan to equitably apportion among insurers

31  authorized in this state to write property insurance as

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  1  defined in s. 624.604 or casualty insurance as defined in s.

  2  624.605, the underwriting of one or more classes of property

  3  insurance or casualty insurance, except for the types of

  4  insurance that are included within property insurance or

  5  casualty insurance for which an equitable apportionment plan,

  6  assigned risk plan, or joint underwriting plan is authorized

  7  under s. 627.311 or subsection (1), subsection (2), subsection

  8  (3), subsection (4), or subsection (6) and except for risks

  9  eligible for flood insurance written through the federal flood

10  insurance program to persons with risks eligible under

11  subparagraph (a)1. and who are in good faith entitled to, but

12  are unable to, obtain such property or casualty insurance

13  coverage, including excess coverage, through the voluntary

14  market. For purposes of this subsection, an adequate level of

15  coverage means that coverage which is required by state law or

16  by responsible or prudent business practices. The Joint

17  Underwriting Association shall not be required to provide

18  coverage for any type of risk for which there are no insurers

19  providing similar coverage in this state. The department may

20  designate one or more participating insurers who agree to

21  provide policyholder and claims service, including the

22  issuance of policies, on behalf of the participating insurers.

23         (a)  The plan shall provide:

24         1.  A means of establishing eligibility of a risk for

25  obtaining insurance through the plan, which provides that:

26         a.  A risk shall be eligible for such property

27  insurance or casualty insurance as is required by Florida law

28  if the insurance is unavailable in the voluntary market,

29  including the market assistance program and the surplus lines

30  market.

31

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  1         b.  A commercial risk not eligible under

  2  sub-subparagraph a. shall be eligible for property or casualty

  3  insurance if:

  4         (I)  The insurance is unavailable in the voluntary

  5  market, including the market assistance plan and the surplus

  6  lines market;

  7         (II)  Failure to secure the insurance would

  8  substantially impair the ability of the entity to conduct its

  9  affairs; and

10         (III)  The risk is not determined by the Risk

11  Underwriting Committee to be uninsurable.

12         c.  In the event the Federal Government terminates the

13  Federal Crime Insurance Program established under 44 C.F.R.

14  ss. 80-83, Florida commercial and residential risks previously

15  insured under the federal program shall be eligible under the

16  plan.

17         d.(I)  In the event a risk is eligible under this

18  paragraph and in the event the market assistance plan receives

19  a minimum of 100 applications for coverage within a 3-month

20  period, or 200 applications for coverage within a 1-year

21  period or less, for a given class of risk contained in the

22  classification system defined in the plan of operation of the

23  Joint Underwriting Association, and unless the market

24  assistance plan provides a quotation for at least 80 percent

25  of such applicants, such classification shall immediately be

26  eligible for coverage in the Joint Underwriting Association.

27         (II)  Any market assistance plan application which is

28  rejected because an individual risk is so hazardous as to be

29  practically uninsurable, considering whether the likelihood of

30  a loss for such a risk is substantially higher than for other

31  risks of the same class due to individual risk

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  1  characteristics, prior loss experience, unwillingness to

  2  cooperate with a prior insurer, physical characteristics and

  3  physical location shall not be included in the minimum

  4  percentage calculation provided above. In the event that there

  5  is any legal or administrative challenge to a determination by

  6  the department that the conditions of this subparagraph have

  7  been met for eligibility for coverage in the Joint

  8  Underwriting Association for a given classification, any

  9  eligible risk may obtain coverage during the pendency of any

10  such challenge.

11         e.  In order to qualify as a quotation for the purpose

12  of meeting the minimum percentage calculation in this

13  subparagraph, the quoted premium must meet the following

14  criteria:

15         (I)  In the case of an admitted carrier, the quoted

16  premium must not exceed the premium available for a given

17  classification currently in use by the Joint Underwriting

18  Association or the premium developed by using the rates and

19  rating plans on file with the department by the quoting

20  insurer, whichever is greater.

21         (II)  In the case of an authorized surplus lines

22  insurer, the quoted premium must not exceed the premium

23  available for a given classification currently in use by the

24  Joint Underwriting Association by more than 25 percent, after

25  consideration of any individual risk surcharge or credit.

26         f.  Any agent who falsely certifies the unavailability

27  of coverage as provided by sub-subparagraphs a. and b., is

28  subject to the penalties provided in s. 626.611.

29         2.  A means for the equitable apportionment of profits

30  or losses and expenses among participating insurers.

31

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  1         3.  Rules for the classification of risks and rates

  2  which reflect the past and prospective loss experience.

  3         4.  A rating plan which reasonably reflects the prior

  4  claims experience of the insureds. Such rating plan shall

  5  include at least two levels of rates for risks that have

  6  favorable loss experience and risks that have unfavorable loss

  7  experience, as established by the plan.

  8         5.  Reasonable limits to available amounts of

  9  insurance. Such limits may not be less than the amounts of

10  insurance required of eligible risks by Florida law.

11         6.  Risk management requirements for insurance where

12  such requirements are reasonable and are expected to reduce

13  losses.

14         7.  Deductibles as may be necessary to meet the needs

15  of insureds.

16         8.  Policy forms which are consistent with the forms in

17  use by the majority of the insurers providing coverage in the

18  voluntary market for the coverage requested by the applicant.

19         9.  A means to remove risks from the plan once such

20  risks no longer meet the eligibility requirements of this

21  paragraph. For this purpose, the plan shall include the

22  following requirements: At each 6-month interval after the

23  activation of any class of insureds, the board of governors or

24  its designated committee shall review the number of

25  applications to the market assistance plan for that class. If,

26  based on these latest numbers, at least 90 percent of such

27  applications have been provided a quotation, the Joint

28  Underwriting Association shall cease underwriting new

29  applications for such class within 30 days, and notification

30  of this decision shall be sent to the Insurance Commissioner,

31  the major agents' associations, and the board of directors of

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  1  the market assistance plan. A quotation for the purpose of

  2  this subparagraph shall meet the same criteria for a quotation

  3  as provided in sub-subparagraph d. All policies which were

  4  previously written for that class shall continue in force

  5  until their normal expiration date, at which time, subject to

  6  the required timely notification of nonrenewal by the Joint

  7  Underwriting Association, the insured may then elect to

  8  reapply to the Joint Underwriting Association according to the

  9  requirements of eligibility. If, upon reapplication, those

10  previously insured Joint Underwriting Association risks meet

11  the eligibility requirements, the Joint Underwriting

12  Association shall provide the coverage requested.

13         10.  A means for providing credits to insurers against

14  any deficit assessment levied pursuant to paragraph (c), for

15  risks voluntarily written through the market assistance plan

16  by such insurers.

17         11.  That the Joint Underwriting Association shall

18  operate subject to the supervision and approval of a board of

19  governors consisting of 13 individuals appointed by the

20  Insurance Commissioner, and shall have an executive or

21  underwriting committee. At least four of the members shall be

22  representatives of insurance trade associations as follows:

23  one member from the American Insurance Association, one member

24  from the Alliance of American Insurers, one member from the

25  National Association of Independent Insurers, and one member

26  from an unaffiliated insurer writing coverage on a national

27  basis. Two representatives shall be from two of the statewide

28  agents' associations. Each board member shall be appointed to

29  serve for 2-year terms beginning on a date designated by the

30  plan and shall serve at the pleasure of the commissioner.

31  Members may be reappointed for subsequent terms.

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  1         (b)  Rates used by the Joint Underwriting Association

  2  shall be actuarially sound. To the extent applicable, the rate

  3  standards set forth in s. 627.062 shall be considered by the

  4  commission department in establishing rates to be used by the

  5  joint underwriting plan. The initial rate level shall be

  6  determined using the rates, rules, rating plans, and

  7  classifications contained in the most current Insurance

  8  Services Office (ISO) filing with the department or the filing

  9  of other licensed rating organizations with an additional

10  increment of 25 percent of premium. For any type of coverage

11  or classification which lends itself to manual rating for

12  which the Insurance Services Office or another licensed rating

13  organization does not file or publish a rate, the Joint

14  Underwriting Association shall file and use an initial rate

15  based on the average current market rate. The initial rate

16  level for the rate plan shall also be subject to an experience

17  and schedule rating plan which may produce a maximum of 25

18  percent debits or credits. For any risk which does not lend

19  itself to manual rating and for which no rate has been

20  promulgated under the rate plan, the board shall develop and

21  file with the commissioner, subject to his or her approval,

22  appropriate criteria and factors for rating the individual

23  risk. Such criteria and factors shall include, but not be

24  limited to, loss rating plans, composite rating plans, and

25  unique and unusual risk rating plans. The initial rates

26  required under this paragraph shall be adjusted in conformity

27  with future filings by the Insurance Services Office with the

28  commission department and shall remain in effect until such

29  time as the Joint Underwriting Association has sufficient data

30  as to independently justify an actuarially sound change in

31  such rates.

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  1         (c)1.  In the event an underwriting deficit exists for

  2  any policy year the plan is in effect, any surplus which has

  3  accrued from previous years and is not projected within

  4  reasonable actuarial certainty to be needed for payment for

  5  claims in the year the surplus arose shall be used to offset

  6  the deficit to the extent available.

  7         2.  As to any remaining deficit, the board of governors

  8  of the Joint Underwriting Association shall levy and collect

  9  an assessment in an amount sufficient to offset such deficit.

10  Such assessment shall be levied against the insurers

11  participating in the plan during the year giving rise to the

12  assessment. Any assessments against insurers for the lines of

13  property and casualty insurance issued to commercial risks

14  shall be recovered from the participating insurers in the

15  proportion that the net direct premium of each insurer for

16  commercial risks written during the preceding calendar year

17  bears to the aggregate net direct premium written for

18  commercial risks by all members of the plan for the lines of

19  insurance included in the plan. Any assessments against

20  insurers for the lines of property and casualty insurance

21  issued to personal risks eligible under sub-subparagraph

22  (a)1.a. or sub-subparagraph (a)1.c. shall be recovered from

23  the participating insurers in the proportion that the net

24  direct premium of each insurer for personal risks written

25  during the preceding calendar year bears to the aggregate net

26  direct premium written for personal risks by all members of

27  the plan for the lines of insurance included in the plan.

28         3.  The board shall take all reasonable and prudent

29  steps necessary to collect the amount of assessment due from

30  each participating insurer and policyholder, including, if

31  prudent, filing suit to collect such assessment. If the board

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  1  is unable to collect an assessment from any insurer, the

  2  uncollected assessments shall be levied as an additional

  3  assessment against the participating insurers and any

  4  participating insurer required to pay an additional assessment

  5  as a result of such failure to pay shall have a cause of

  6  action against such nonpaying insurer.

  7         4.  Any funds or entitlements that the state may be

  8  eligible to receive by virtue of the Federal Government's

  9  termination of the Federal Crime Insurance Program referenced

10  in sub-subparagraph (a)1.c. may be used under the plan to

11  offset any subsequent underwriting deficits that may occur

12  from risks previously insured with the Federal Crime Insurance

13  Program.

14         5.  Assessments shall be included as an appropriate

15  factor in the making of rates as provided in s. 627.3512.

16         6.a.  The Legislature finds that the potential for

17  unlimited assessments under this paragraph may induce insurers

18  to attempt to reduce their writings in the voluntary market,

19  and that such actions would worsen the availability problems

20  that the association was created to remedy. It is the intent

21  of the Legislature that insurers remain fully responsible for

22  covering any deficits of the association; however, it is also

23  the intent of the Legislature to provide a means by which

24  assessment liabilities may be amortized over a period of

25  years.

26         b.  The total amount of deficit assessments under this

27  paragraph with respect to any year may not exceed 10 percent

28  of the statewide total gross written premium for all insurers

29  for the coverages referred to in the introductory language of

30  this subsection for the prior year, except that if the deficit

31  with respect to any plan year exceeds such amount and bonds

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  1  are issued under sub-subparagraph c. to defray the deficit,

  2  the total amount of assessments with respect to such deficit

  3  may not in any year exceed 10 percent of the deficit, or such

  4  lesser percentage as is sufficient to retire the bonds as

  5  determined by the board, and shall continue annually until the

  6  bonds are retired.

  7         c.  The governing body of any unit of local government,

  8  any residents or businesses of which are insured by the

  9  association, may issue bonds as defined in s. 125.013 or s.

10  166.101 from time to time to fund an assistance program, in

11  conjunction with the association, for the purpose of defraying

12  deficits of the association. Revenue bonds may not be issued

13  until validated pursuant to chapter 75, unless a state of

14  emergency is declared by executive order or proclamation of

15  the Governor pursuant to s. 252.36 making such findings as are

16  necessary to determine that it is in the best interests of,

17  and necessary for, the protection of the public health,

18  safety, and general welfare of residents of this state and the

19  protection and preservation of the economic stability of

20  insurers operating in this state, and declaring it an

21  essential public purpose to permit certain municipalities or

22  counties to issue such bonds as will provide relief to

23  claimants and policyholders of the joint underwriting

24  association and insurers responsible for apportionment of

25  association losses. The unit of local government shall enter

26  into such contracts with the association as are necessary to

27  carry out this paragraph. Any bonds issued under this

28  sub-subparagraph shall be payable from and secured by moneys

29  received by the association from assessments under this

30  paragraph, and assigned and pledged to or on behalf of the

31  unit of local government for the benefit of the holders of

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  1  such bonds. The funds, credit, property, and taxing power of

  2  the state or of the unit of local government shall not be

  3  pledged for the payment of such bonds. If any of the bonds

  4  remain unsold 60 days after issuance, the department shall

  5  require all insurers subject to assessment to purchase the

  6  bonds, which shall be treated as admitted assets; each insurer

  7  shall be required to purchase that percentage of the unsold

  8  portion of the bond issue that equals the insurer's relative

  9  share of assessment liability under this subsection. An

10  insurer shall not be required to purchase the bonds to the

11  extent that the department determines that the purchase would

12  endanger or impair the solvency of the insurer.

13         7.  The plan shall provide for the deferment, in whole

14  or in part, of the assessment of an insurer if the department

15  finds that payment of the assessment would endanger or impair

16  the solvency of the insurer. In the event an assessment

17  against an insurer is deferred in whole or in part, the amount

18  by which such assessment is deferred may be assessed against

19  the other member insurers in a manner consistent with the

20  basis for assessments set forth in subparagraph 2.

21         (d)  Upon adoption of the plan, all insurers authorized

22  in this state to underwrite property or casualty insurance

23  shall participate in the plan.

24         (e)  A Risk Underwriting Committee of the Joint

25  Underwriting Association composed of three members experienced

26  in evaluating insurance risks is created to review risks

27  rejected by the voluntary market for which application is made

28  for insurance through the joint underwriting plan. The

29  committee shall consist of a representative of the market

30  assistance plan created under s. 627.3515, a member selected

31  by the insurers participating in the Joint Underwriting

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  1  Association, and a member named by the Insurance Commissioner.

  2  The Risk Underwriting Committee shall appoint such advisory

  3  committees as are provided for in the plan and are necessary

  4  to conduct its functions. The salaries and expenses of the

  5  members of the Risk Underwriting Committee and its advisory

  6  committees shall be paid by the joint underwriting plan. The

  7  plan approved by the department shall establish criteria and

  8  procedures for use by the Risk Underwriting Committee for

  9  determining whether an individual risk is so hazardous as to

10  be uninsurable. In making this determination and in

11  establishing the criteria and procedures, the following shall

12  be considered:

13         1.  Whether the likelihood of a loss for the individual

14  risk is substantially higher than for other risks of the same

15  class; and

16         2.  Whether the uncertainty associated with the

17  individual risk is such that an appropriate premium cannot be

18  determined.

19

20  The acceptance or rejection of a risk by the underwriting

21  committee shall be construed as the private placement of

22  insurance, and the provisions of chapter 120 shall not apply.

23         (f)  There shall be no liability on the part of, and no

24  cause of action of any nature shall arise against, any member

25  insurer or its agents or employees, the Florida Property and

26  Casualty Joint Underwriting Association or its agents or

27  employees, members of the board of governors, or the

28  department or its representatives for any action taken by them

29  in the performance of their duties under this subsection. Such

30  immunity does not apply to actions for breach of any contract

31

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  1  or agreement pertaining to insurance, or any other willful

  2  tort.

  3         (6)  RESIDENTIAL PROPERTY AND CASUALTY JOINT

  4  UNDERWRITING ASSOCIATION.--

  5         (a)  There is created a joint underwriting association

  6  for equitable apportionment or sharing among insurers of

  7  property and casualty insurance covering residential property,

  8  for applicants who are in good faith entitled, but are unable,

  9  to procure insurance through the voluntary market. The

10  association shall operate pursuant to a plan of operation

11  approved by order of the department. The plan is subject to

12  continuous review by the department. The department may, by

13  order, withdraw approval of all or part of a plan if the

14  department determines that conditions have changed since

15  approval was granted and that the purposes of the plan require

16  changes in the plan.  For the purposes of this subsection,

17  residential coverage includes both personal lines residential

18  coverage, which consists of the type of coverage provided by

19  homeowner's, mobile home owner's, dwelling, tenant's,

20  condominium unit owner's, and similar policies, and commercial

21  lines residential coverage, which consists of the type of

22  coverage provided by condominium association, apartment

23  building, and similar policies.

24         (b)1.  All insurers authorized to write subject lines

25  of business in this state, other than underwriting

26  associations or other entities created under this section,

27  must participate in and be members of the Residential Property

28  and Casualty Joint Underwriting Association. A member's

29  participation shall begin on the first day of the calendar

30  year following the year in which the member was issued a

31  certificate of authority to transact insurance for subject

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  1  lines of business in this state and shall terminate 1 year

  2  after the end of the first calendar year during which the

  3  member no longer holds a certificate of authority to transact

  4  insurance for subject lines of business in this state.

  5         2.  All revenues, assets, liabilities, losses, and

  6  expenses of the association shall be divided into two separate

  7  accounts, one of which is for personal lines residential

  8  coverages and the other of which is for commercial lines

  9  residential coverages.  Revenues, assets, liabilities, losses,

10  and expenses not attributable to particular coverages shall be

11  prorated between the accounts.

12         3.  With respect to a deficit in an account:

13         a.  When the deficit incurred in a particular calendar

14  year is not greater than 10 percent of the aggregate statewide

15  direct written premium for the subject lines of business for

16  the prior calendar year for all member insurers, the entire

17  deficit shall be recovered through assessments of member

18  insurers under paragraph (g).

19         b.  When the deficit incurred in a particular calendar

20  year exceeds 10 percent of the aggregate statewide direct

21  written premium for the subject lines of business for the

22  prior calendar year for all member insurers, the association

23  shall levy an assessment on member insurers in an amount equal

24  to the greater of 10 percent of the deficit or 10 percent of

25  the aggregate statewide direct written premium for the subject

26  lines of business for the prior calendar year for all member

27  insurers. Any remaining deficit shall be recovered through

28  emergency assessments under sub-subparagraph d.

29         c.  Each member insurer's share of the total assessment

30  under sub-subparagraph a. or sub-subparagraph b. shall be in

31  the proportion that the member insurer's direct written

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  1  premium for the subject lines of business for the year

  2  preceding the assessment bears to the aggregate statewide

  3  direct written premium for the subject lines of business for

  4  that year for all member insurers.

  5         d.  Upon a determination by the board of governors that

  6  a deficit in an account exceeds the amount that will be

  7  recovered through regular assessments on member insurers under

  8  sub-subparagraph a. or sub-subparagraph b., the board shall

  9  levy, after verification by the department, emergency

10  assessments to be collected by member insurers and by

11  underwriting associations created under this section which

12  write subject lines of business upon issuance or renewal of

13  policies for subject lines of business, excluding National

14  Flood Insurance policies, in the year or years following levy

15  of the regular assessments.  The amount of the emergency

16  assessment collected in a particular year shall be a uniform

17  percentage of that year's direct written premium for subject

18  lines of business for all member insurers and underwriting

19  associations, excluding National Flood Insurance Program

20  policy premiums, as annually determined by the board and

21  verified by the department. The department shall verify the

22  arithmetic calculations involved in the board's determination

23  within 30 days after receipt of the information on which the

24  determination was based. Notwithstanding any other provision

25  of law, each member insurer and each underwriting association

26  created under this section which writes subject lines of

27  business shall collect emergency assessments from its

28  policyholders without such obligation being affected by any

29  credit, limitation, exemption, or deferment. The emergency

30  assessments so collected shall be transferred directly to the

31  association on a periodic basis as determined by the

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  1  association.  The aggregate amount of emergency assessments

  2  levied under this sub-subparagraph in any calendar year may

  3  not exceed the greater of 10 percent of the amount needed to

  4  cover the original deficit, plus interest, fees, commissions,

  5  required reserves, and other costs associated with financing

  6  of the original deficit, or 10 percent of the aggregate

  7  statewide direct written premium for subject lines of business

  8  written by member insurers and underwriting associations for

  9  the prior year, plus interest, fees, commissions, required

10  reserves, and other costs associated with financing the

11  original deficit.

12         e.  The board may pledge the proceeds of assessments,

13  projected recoveries from the Florida Hurricane Catastrophe

14  Fund, other insurance and reinsurance recoverables, market

15  equalization surcharges and other surcharges, and other funds

16  available to the association as the source of revenue for and

17  to secure bonds issued under paragraph (g), bonds or other

18  indebtedness issued under subparagraph (c)3., or lines of

19  credit or other financing mechanisms issued or created under

20  this subsection, or to retire any other debt incurred as a

21  result of deficits or events giving rise to deficits, or in

22  any other way that the board determines will efficiently

23  recover such deficits. The purpose of the lines of credit or

24  other financing mechanisms is to provide additional resources

25  to assist the association in covering claims and expenses

26  attributable to a catastrophe. As used in this subsection, the

27  term "assessments" includes regular assessments under

28  sub-subparagraph a., sub-subparagraph b., or subparagraph

29  (g)1. and emergency assessments under sub-subparagraph d.

30  Emergency assessments collected under sub-subparagraph d. are

31  not part of an insurer's rates, are not premium, and are not

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  1  subject to premium tax, fees, or commissions; however, failure

  2  to pay the emergency assessment shall be treated as failure to

  3  pay premium. The emergency assessments under sub-subparagraph

  4  d. shall continue as long as any bonds issued or other

  5  indebtedness incurred with respect to a deficit for which the

  6  assessment was imposed remain outstanding, unless adequate

  7  provision has been made for the payment of such bonds or other

  8  indebtedness pursuant to the documents governing such bonds or

  9  other indebtedness.

10         f.  As used in this subsection, the term "subject lines

11  of business" means, with respect to the personal lines

12  account, any personal lines policy defined in s. 627.4025, and

13  means, with respect to the commercial lines account, all

14  commercial property and commercial fire insurance.

15         (c)  The plan of operation of the association:

16         1.  May provide for one or more designated insurers,

17  able and willing to provide policy and claims service, to act

18  on behalf of the association to provide such service.  Each

19  licensed agent shall be entitled to indicate the order of

20  preference regarding who will service the business placed by

21  the agent.  The association shall adhere to each agent's

22  preferences unless after consideration of other factors in

23  assigning agents, including, but not limited to, servicing

24  capacity and fee arrangements, the association has reason to

25  believe it is in the best interest of the association to make

26  a different assignment.

27         2.  Must provide for adoption of residential property

28  and casualty insurance policy forms, which forms must be

29  approved by the department prior to use.  The association

30  shall adopt the following policy forms:

31

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  1         a.  Standard personal lines policy forms including wind

  2  coverage, which are multiperil policies providing what is

  3  generally considered to be full coverage of a residential

  4  property similar to the coverage provided under an HO-2, HO-3,

  5  HO-4, or HO-6 policy.

  6         b.  Standard personal lines policy forms without wind

  7  coverage, which are the same as the policies described in

  8  sub-subparagraph a. except that they do not include wind

  9  coverage.

10         c.  Basic personal lines policy forms including wind

11  coverage, which are policies similar to an HO-8 policy or a

12  dwelling fire policy that provide coverage meeting the

13  requirements of the secondary mortgage market, but which

14  coverage is more limited than the coverage under a standard

15  policy.

16         d.  Basic personal lines policy forms without wind

17  coverage, which are the same as the policies described in

18  sub-subparagraph c. except that they do not include wind

19  coverage.

20         e.  Commercial lines residential policy forms including

21  wind coverage that are generally similar to the basic perils

22  of full coverage obtainable for commercial residential

23  structures in the admitted voluntary market.

24         f.  Commercial lines residential policy forms without

25  wind coverage, which are the same as the policies described in

26  sub-subparagraph e. except that they do not include wind

27  coverage.

28         3.  May provide that the association may employ or

29  otherwise contract with individuals or other entities to

30  provide administrative or professional services that may be

31  appropriate to effectuate the plan.  The association shall

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  1  have the power to borrow funds, by issuing bonds or by

  2  incurring other indebtedness, and shall have other powers

  3  reasonably necessary to effectuate the requirements of this

  4  subsection. The association may issue bonds or incur other

  5  indebtedness, or have bonds issued on its behalf by a unit of

  6  local government pursuant to subparagraph (g)2., in the

  7  absence of a hurricane or other weather-related event, upon a

  8  determination by the association, subject to approval by the

  9  department, that such action would enable it to efficiently

10  meet the financial obligations of the association and that

11  such financings are reasonably necessary to effectuate the

12  requirements of this subsection.  The association is

13  authorized to take all actions needed to facilitate tax-free

14  status for any such bonds or indebtedness, including formation

15  of trusts or other affiliated entities.  The association shall

16  have the authority to pledge assessments, projected recoveries

17  from the Florida Hurricane Catastrophe Fund, other reinsurance

18  recoverables, market equalization and other surcharges, and

19  other funds available to the association as security for bonds

20  or other indebtedness.  In recognition of s. 10, Art. I of the

21  State Constitution, prohibiting the impairment of obligations

22  of contracts, it is the intent of the Legislature that no

23  action be taken whose purpose is to impair any bond indenture

24  or financing agreement or any revenue source committed by

25  contract to such bond or other indebtedness.

26         4.  Must require that the association operate subject

27  to the supervision and approval of a board of governors

28  consisting of 13 individuals, including 1 who is elected as

29  chair. The board shall consist of:

30         a.  The insurance consumer advocate appointed under s.

31  627.0613.

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  1         b.  Five members designated by the insurance industry.

  2         c.  Five consumer representatives appointed by the

  3  Insurance Commissioner. Two of the consumer representatives

  4  must, at the time of appointment, be holders of policies

  5  issued by the association, who are selected with consideration

  6  given to reflecting the geographic balance of association

  7  policyholders. Two of the consumer members must be individuals

  8  who are minority persons as defined in s. 288.703(3). One of

  9  the consumer members shall have expertise in the field of

10  mortgage lending.

11         d.  Two representatives of the insurance industry

12  appointed by the Insurance Commissioner. Of the two insurance

13  industry representatives appointed by the Insurance

14  Commissioner, at least one must be an individual who is a

15  minority person as defined in s. 288.703(3).

16

17  Any board member may be disapproved or removed and replaced by

18  the commissioner at any time for cause. All board members,

19  including the chair, must be appointed to serve for 3-year

20  terms beginning annually on a date designated by the plan.

21         5.  Must provide a procedure for determining the

22  eligibility of a risk for coverage, as follows:

23         a.  With respect to personal lines residential risks,

24  if the risk is offered coverage from an authorized insurer at

25  the insurer's approved rate under either a standard policy

26  including wind coverage or, if consistent with the insurer's

27  underwriting rules as filed with the department, a basic

28  policy including wind coverage, the risk is not eligible for

29  any policy issued by the association. If the risk accepts an

30  offer of coverage through the market assistance plan or an

31  offer of coverage through a mechanism established by the

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  1  association before a policy is issued to the risk by the

  2  association or during the first 30 days of coverage by the

  3  association, and the producing agent who submitted the

  4  application to the plan or to the association is not currently

  5  appointed by the insurer, the insurer shall either appoint the

  6  agent to service the risk or, if the insurer places the

  7  coverage through a new agent, require the new agent who then

  8  writes the policy to pay not less than 50 percent of the first

  9  year's commission to the producing agent who submitted the

10  application to the plan or the association, except that if the

11  new agent is an employee or exclusive agent of the insurer,

12  the new agent shall pay a policy fee of $50 to the producing

13  agent in lieu of splitting the commission. If the risk is not

14  able to obtain any such offer, the risk is eligible for either

15  a standard policy including wind coverage or a basic policy

16  including wind coverage issued by the association; however, if

17  the risk could not be insured under a standard policy

18  including wind coverage regardless of market conditions, the

19  risk shall be eligible for a basic policy including wind

20  coverage unless rejected under subparagraph 8. The association

21  shall determine the type of policy to be provided on the basis

22  of objective standards specified in the underwriting manual

23  and based on generally accepted underwriting practices.

24         b.  With respect to commercial lines residential risks,

25  if the risk is offered coverage under a policy including wind

26  coverage from an authorized insurer at its approved rate, the

27  risk is not eligible for any policy issued by the association.

28  If the risk accepts an offer of coverage through the market

29  assistance plan or an offer of coverage through a mechanism

30  established by the association before a policy is issued to

31  the risk by the association, and the producing agent who

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  1  submitted the application to the plan or the association is

  2  not currently appointed by the insurer, the insurer shall

  3  either appoint the agent to service the risk or, if the

  4  insurer places the coverage through a new agent, require the

  5  new agent who then writes the policy to pay not less than 50

  6  percent of the first year's commission to the producing agent

  7  who submitted the application to the plan, except that if the

  8  new agent is an employee or exclusive agent of the insurer,

  9  the new agent shall pay a policy fee of $50 to the producing

10  agent in lieu of splitting the commission. If the risk is not

11  able to obtain any such offer, the risk is eligible for a

12  policy including wind coverage issued by the association.

13         c.  This subparagraph does not require the association

14  to provide wind coverage or hurricane coverage in any area in

15  which such coverage is available through the Florida Windstorm

16  Underwriting Association.

17         6.  Must include rules for classifications of risks and

18  rates therefor.

19         7.  Must provide that if premium and investment income

20  attributable to a particular plan year are in excess of

21  projected losses and expenses of the plan attributable to that

22  year, such excess shall be held in surplus. Such surplus shall

23  be available to defray deficits as to future years and shall

24  be used for that purpose prior to assessing member insurers as

25  to any plan year.

26         8.  Must provide objective criteria and procedures to

27  be uniformly applied for all applicants in determining whether

28  an individual risk is so hazardous as to be uninsurable. In

29  making this determination and in establishing the criteria and

30  procedures, the following shall be considered:

31

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  1         a.  Whether the likelihood of a loss for the individual

  2  risk is substantially higher than for other risks of the same

  3  class; and

  4         b.  Whether the uncertainty associated with the

  5  individual risk is such that an appropriate premium cannot be

  6  determined.

  7

  8  The acceptance or rejection of a risk by the association shall

  9  be construed as the private placement of insurance, and the

10  provisions of chapter 120 shall not apply.

11         9.  Must provide that the association shall make its

12  best efforts to procure catastrophe reinsurance at reasonable

13  rates, as determined by the board of governors.

14         10.  Must provide that in the event of regular deficit

15  assessments under sub-subparagraph (b)3.a. or sub-subparagraph

16  (b)3.b., or by the Florida Windstorm Underwriting Association

17  under sub-sub-subparagraph (2)(b)2.d.(I) or

18  sub-sub-subparagraph (2)(b)2.d.(II), the association shall

19  levy upon association policyholders in its next rate filing,

20  or by a separate rate filing solely for this purpose, a market

21  equalization surcharge in a percentage equal to the total

22  amount of such regular assessments divided by the aggregate

23  statewide direct written premium for subject lines of business

24  for member insurers for the prior calendar year. Market

25  equalization surcharges under this subparagraph are not

26  considered premium and are not subject to commissions, fees,

27  or premium taxes; however, failure to pay a market

28  equalization surcharge shall be treated as failure to pay

29  premium.

30         11.  The policies issued by the association must

31  provide that, if the association or the market assistance plan

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  1  obtains an offer from an authorized insurer to cover the risk

  2  at its approved rates under either a standard policy including

  3  wind coverage or a basic policy including wind coverage, the

  4  risk is no longer eligible for coverage through the

  5  association. However, if the risk is located in an area in

  6  which Florida Windstorm Underwriting Association coverage is

  7  available, such an offer of a standard or basic policy

  8  terminates eligibility regardless of whether or not the offer

  9  includes wind coverage. Upon termination of eligibility, the

10  association shall provide written notice to the policyholder

11  and agent of record stating that the association policy shall

12  be canceled as of 60 days after the date of the notice because

13  of the offer of coverage from an authorized insurer. Other

14  provisions of the insurance code relating to cancellation and

15  notice of cancellation do not apply to actions under this

16  subparagraph.

17         12.  Association policies and applications must include

18  a notice that the association policy could, under this section

19  or s. 627.3511, be replaced with a policy issued by an

20  admitted insurer that does not provide coverage identical to

21  the coverage provided by the association. The notice shall

22  also specify that acceptance of association coverage creates a

23  conclusive presumption that the applicant or policyholder is

24  aware of this potential.

25         13.  May establish, subject to approval by the

26  department, different eligibility requirements and operational

27  procedures for any line or type of coverage for any specified

28  county or area if the board determines that such changes to

29  the eligibility requirements and operational procedures are

30  justified due to the voluntary market being sufficiently

31  stable and competitive in such area or for such line or type

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  1  of coverage and that consumers who, in good faith, are unable

  2  to obtain insurance through the voluntary market through

  3  ordinary methods would continue to have access to coverage

  4  from the association. When coverage is sought in connection

  5  with a real property transfer, such requirements and

  6  procedures shall not provide for an effective date of coverage

  7  later than the date of the closing of the transfer as

  8  established by the transferor, the transferee, and, if

  9  applicable, the lender.

10         (d)1.  It is the intent of the Legislature that the

11  rates for coverage provided by the association be actuarially

12  sound and not competitive with approved rates charged in the

13  admitted voluntary market, so that the association functions

14  as a residual market mechanism to provide insurance only when

15  the insurance cannot be procured in the voluntary market.

16  Rates shall include an appropriate catastrophe loading factor

17  that reflects the actual catastrophic exposure of the

18  association and recognizes that the association has little or

19  no capital or surplus; and the association shall carefully

20  review each rate filing to assure that provider compensation

21  is not excessive.

22         2.  For each county, the average rates of the

23  association for each line of business for personal lines

24  residential policies shall be no lower than the average rates

25  charged by the insurer that had the highest average rate in

26  that county among the 20 insurers with the greatest total

27  direct written premium in the state for that line of business

28  in the preceding year, except that with respect to mobile home

29  coverages, the average rates of the association shall be no

30  lower than the average rates charged by the insurer that had

31  the highest average rate in that county among the 5 insurers

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  1  with the greatest total written premium for mobile home

  2  owner's policies in the state in the preceding year.

  3         3.  Rates for commercial residential coverage shall not

  4  be subject to the requirements of subparagraph 2., but shall

  5  be subject to all other requirements of this paragraph and s.

  6  627.062.

  7         4.  Nothing in this paragraph shall require or allow

  8  the association to adopt a rate that is inadequate under s.

  9  627.062 or to reduce rates approved under s. 627.062.

10         5.  The association may require arbitration of a filing

11  pursuant to s. 627.062(6). Rate filings of the association

12  under this paragraph shall be made on a use and file basis

13  under s. 627.062(2)(a)2. The association shall make a rate

14  filing at least once a year, but no more often than quarterly.

15         (e)  Coverage through the association is hereby

16  activated effective upon approval of the plan, and shall

17  remain activated until coverage is deactivated pursuant to

18  paragraph (f). Thereafter, coverage through the association

19  shall be reactivated by order of the department only under one

20  of the following circumstances:

21         1.  If the market assistance plan receives a minimum of

22  100 applications for coverage within a 3-month period, or 200

23  applications for coverage within a 1-year period or less for

24  residential coverage, unless the market assistance plan

25  provides a quotation from admitted carriers at their filed

26  rates for at least 90 percent of such applicants. Any market

27  assistance plan application that is rejected because an

28  individual risk is so hazardous as to be uninsurable using the

29  criteria specified in subparagraph (c)8. shall not be included

30  in the minimum percentage calculation provided herein. In the

31  event that there is a legal or administrative challenge to a

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  1  determination by the department that the conditions of this

  2  subparagraph have been met for eligibility for coverage in the

  3  association, any eligible risk may obtain coverage during the

  4  pendency of such challenge.

  5         2.  In response to a state of emergency declared by the

  6  Governor under s. 252.36, the department may activate coverage

  7  by order for the period of the emergency upon a finding by the

  8  department that the emergency significantly affects the

  9  availability of residential property insurance.

10         (f)  The activities of the association shall be

11  reviewed at least annually by the board and, upon

12  recommendation by the board or petition of any interested

13  party, coverage shall be deactivated if the department finds

14  that the conditions giving rise to its activation no longer

15  exist.

16         (g)1.  The board shall certify to the department its

17  needs for annual assessments as to a particular calendar year,

18  and any startup or interim assessments that it deems to be

19  necessary to sustain operations as to a particular year

20  pending the receipt of annual assessments. Upon verification,

21  the department shall approve such certification, and the board

22  shall levy such annual, startup, or interim assessments. Such

23  assessments shall be prorated as provided in paragraph (b).

24  The board shall take all reasonable and prudent steps

25  necessary to collect the amount of assessment due from each

26  participating member insurer, including, if prudent, filing

27  suit to collect such assessment. If the board is unable to

28  collect an assessment from any member insurer, the uncollected

29  assessments shall be levied as an additional assessment

30  against the participating member insurers and any

31  participating member insurer required to pay an additional

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  1  assessment as a result of such failure to pay shall have a

  2  cause of action against such nonpaying member insurer.

  3  Assessments shall be included as an appropriate factor in the

  4  making of rates.

  5         2.  The governing body of any unit of local government,

  6  any residents of which are insured by the association, may

  7  issue bonds as defined in s. 125.013 or s. 166.101 from time

  8  to time to fund an assistance program, in conjunction with the

  9  association, for the purpose of defraying deficits of the

10  association. In order to avoid needless and indiscriminate

11  proliferation, duplication, and fragmentation of such

12  assistance programs, any unit of local government, any

13  residents of which are insured by the association, may provide

14  for the payment of losses, regardless of whether or not the

15  losses occurred within or outside of the territorial

16  jurisdiction of the local government. Revenue bonds may not be

17  issued until validated pursuant to chapter 75, unless a state

18  of emergency is declared by executive order or proclamation of

19  the Governor pursuant to s. 252.36 making such findings as are

20  necessary to determine that it is in the best interests of,

21  and necessary for, the protection of the public health,

22  safety, and general welfare of residents of this state and the

23  protection and preservation of the economic stability of

24  insurers operating in this state, and declaring it an

25  essential public purpose to permit certain municipalities or

26  counties to issue such bonds as will permit relief to

27  claimants and policyholders of the joint underwriting

28  association and insurers responsible for apportionment of

29  association losses. Any such unit of local government may

30  enter into such contracts with the association and with any

31  other entity created pursuant to this subsection as are

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  1  necessary to carry out this paragraph. Any bonds issued under

  2  this subparagraph shall be payable from and secured by moneys

  3  received by the association from emergency assessments under

  4  sub-subparagraph (b)3.d., and assigned and pledged to or on

  5  behalf of the unit of local government for the benefit of the

  6  holders of such bonds.  The funds, credit, property, and

  7  taxing power of the state or of the unit of local government

  8  shall not be pledged for the payment of such bonds. If any of

  9  the bonds remain unsold 60 days after issuance, the department

10  shall require all insurers subject to assessment to purchase

11  the bonds, which shall be treated as admitted assets; each

12  insurer shall be required to purchase that percentage of the

13  unsold portion of the bond issue that equals the insurer's

14  relative share of assessment liability under this subsection.

15  An insurer shall not be required to purchase the bonds to the

16  extent that the department determines that the purchase would

17  endanger or impair the solvency of the insurer.

18         3.a.  In addition to any credits, bonuses, or

19  exemptions provided under s. 627.3511, the board shall adopt a

20  program for the reduction of both new and renewal writings in

21  the association. The board may consider any prudent and not

22  unfairly discriminatory approach to reducing association

23  writings, but must adopt at least a credit against assessment

24  liability or other liability that provides an incentive for

25  insurers to take risks out of the association and to keep

26  risks out of the association by maintaining or increasing

27  voluntary writings in counties in which association risks are

28  highly concentrated and a program to provide a formula under

29  which an insurer voluntarily taking risks out of the

30  association by maintaining or increasing voluntary writings

31

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  1  will be relieved wholly or partially from assessments under

  2  sub-subparagraphs (b)3.a. and b.

  3         b.  Any credit or exemption from regular assessments

  4  adopted under this subparagraph shall last no longer than the

  5  3 years following the cancellation or expiration of the policy

  6  by the association. With the approval of the department, the

  7  board may extend such credits for an additional year if the

  8  insurer guarantees an additional year of renewability for all

  9  policies removed from the association, or for 2 additional

10  years if the insurer guarantees 2 additional years of

11  renewability for all policies so removed.

12         c.  There shall be no credit, limitation, exemption, or

13  deferment from emergency assessments to be collected from

14  policyholders pursuant to sub-subparagraph (b)3.d.

15         4.  The plan shall provide for the deferment, in whole

16  or in part, of the assessment of a member insurer, other than

17  an emergency assessment collected from policyholders pursuant

18  to sub-subparagraph (b)3.d., if the department finds that

19  payment of the assessment would endanger or impair the

20  solvency of the insurer. In the event an assessment against a

21  member insurer is deferred in whole or in part, the amount by

22  which such assessment is deferred may be assessed against the

23  other member insurers in a manner consistent with the basis

24  for assessments set forth in paragraph (b).

25         (h)  Nothing in this subsection shall be construed to

26  preclude the issuance of residential property insurance

27  coverage pursuant to part VIII of chapter 626.

28         (i)  There shall be no liability on the part of, and no

29  cause of action of any nature shall arise against, any member

30  insurer or its agents or employees, the association or its

31  agents or employees, members of the board of governors or

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  1  their respective designees at a board meeting, association

  2  committee members, or the department or its representatives,

  3  for any action taken by them in the performance of their

  4  duties or responsibilities under this subsection. Such

  5  immunity does not apply to:

  6         1.  Any of the foregoing persons or entities for any

  7  willful tort;

  8         2.  The association or its servicing or producing

  9  agents for breach of any contract or agreement pertaining to

10  insurance coverage;

11         3.  The association with respect to issuance or payment

12  of debt; or

13         4.  Any member insurer with respect to any action to

14  enforce a member insurer's obligations to the association

15  under this subsection.

16         (j)  The Residential Property and Casualty Joint

17  Underwriting Association is not a state agency, board, or

18  commission. However, for the purposes of s. 199.183(1), the

19  Residential Property and Casualty Joint Underwriting

20  Association shall be considered a political subdivision of the

21  state and shall be exempt from the corporate income tax.

22         (k)  Upon a determination by the board of governors

23  that the conditions giving rise to the establishment and

24  activation of the association no longer exist, and upon the

25  consent thereto by order of the department, the association is

26  dissolved. Upon dissolution, the assets of the association

27  shall be applied first to pay all debts, liabilities, and

28  obligations of the association, including the establishment of

29  reasonable reserves for any contingent liabilities or

30  obligations, and all remaining assets of the association shall

31

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  1  become property of the state and deposited in the Florida

  2  Hurricane Catastrophe Fund.

  3         (l)  All obligations, rights, assets, and liabilities

  4  of the Florida Property and Casualty Joint Underwriting

  5  Association created by subsection (5), which obligations,

  6  rights, assets, or liabilities relate to the provision of

  7  commercial lines residential property insurance coverage as

  8  described in this section are hereby transferred to the

  9  Residential Property and Casualty Joint Underwriting

10  Association. The Residential Property and Casualty Joint

11  Underwriting Association is not required to issue endorsements

12  or certificates of assumption to insureds during the remaining

13  term of in-force transferred policies.

14         (m)  Notwithstanding any other provision of law:

15         1.  The pledge or sale of, the lien upon, and the

16  security interest in any rights, revenues, or other assets of

17  the association created or purported to be created pursuant to

18  any financing documents to secure any bonds or other

19  indebtedness of the association shall be and remain valid and

20  enforceable, notwithstanding the commencement of and during

21  the continuation of, and after, any rehabilitation,

22  insolvency, liquidation, bankruptcy, receivership,

23  conservatorship, reorganization, or similar proceeding against

24  the association under the laws of this state.

25         2.  No such proceeding shall relieve the association of

26  its obligation, or otherwise affect its ability to perform its

27  obligation, to continue to collect, or levy and collect,

28  assessments, market equalization or other surcharges under

29  subparagraph (c)10., or any other rights, revenues, or other

30  assets of the association pledged pursuant to any financing

31  documents.

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  1         3.  Each such pledge or sale of, lien upon, and

  2  security interest in, including the priority of such pledge,

  3  lien, or security interest, any such assessments, market

  4  equalization or other surcharges, or other rights, revenues,

  5  or other assets which are collected, or levied and collected,

  6  after the commencement of and during the pendency of, or

  7  after, any such proceeding shall continue unaffected by such

  8  proceeding.  As used in this subsection, the term "financing

  9  documents" means any agreement or agreements, instrument or

10  instruments, or other document or documents now existing or

11  hereafter created evidencing any bonds or other indebtedness

12  of the association or pursuant to which any such bonds or

13  other indebtedness has been or may be issued and pursuant to

14  which any rights, revenues, or other assets of the association

15  are pledged or sold to secure the repayment of such bonds or

16  indebtedness, together with the payment of interest on such

17  bonds or such indebtedness, or the payment of any other

18  obligation of the association related to such bonds or

19  indebtedness.

20         4.  Any such pledge or sale of assessments, revenues,

21  contract rights, or other rights or assets of the association

22  shall constitute a lien and security interest, or sale, as the

23  case may be, that is immediately effective and attaches to

24  such assessments, revenues, or contract rights or other rights

25  or assets, whether or not imposed or collected at the time the

26  pledge or sale is made.  Any such pledge or sale is effective,

27  valid, binding, and enforceable against the association or

28  other entity making such pledge or sale, and valid and binding

29  against and superior to any competing claims or obligations

30  owed to any other person or entity, including policyholders in

31  this state, asserting rights in any such assessments,

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  1  revenues, or contract rights or other rights or assets to the

  2  extent set forth in and in accordance with the terms of the

  3  pledge or sale contained in the applicable financing

  4  documents, whether or not any such person or entity has notice

  5  of such pledge or sale and without the need for any physical

  6  delivery, recordation, filing, or other action.

  7         (n)1.  The following records of the Residential

  8  Property and Casualty Joint Underwriting Association are

  9  confidential and exempt from the provisions of s. 119.07(1)

10  and s. 24(a), Art. I of the State Constitution:

11         a.  Underwriting files, except that a policyholder or

12  an applicant shall have access to his or her own underwriting

13  files.

14         b.  Claims files, until termination of all litigation

15  and settlement of all claims arising out of the same incident,

16  although portions of the claims files may remain exempt, as

17  otherwise provided by law. Confidential and exempt claims file

18  records may be released to other governmental agencies upon

19  written request and demonstration of need; such records held

20  by the receiving agency remain confidential and exempt as

21  provided for herein.

22         c.  Records obtained or generated by an internal

23  auditor pursuant to a routine audit, until the audit is

24  completed, or if the audit is conducted as part of an

25  investigation, until the investigation is closed or ceases to

26  be active.  An investigation is considered "active" while the

27  investigation is being conducted with a reasonable, good faith

28  belief that it could lead to the filing of administrative,

29  civil, or criminal proceedings.

30         d.  Matters reasonably encompassed in privileged

31  attorney-client communications.

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  1         e.  Proprietary information licensed to the association

  2  under contract and the contract provides for the

  3  confidentiality of such proprietary information.

  4         f.  All information relating to the medical condition

  5  or medical status of an association employee which is not

  6  relevant to the employee's capacity to perform his or her

  7  duties, except as otherwise provided in this paragraph.

  8  Information which is exempt shall include, but is not limited

  9  to, information relating to workers' compensation, insurance

10  benefits, and retirement or disability benefits.

11         g.  Upon an employee's entrance into the employee

12  assistance program, a program to assist any employee who has a

13  behavioral or medical disorder, substance abuse problem, or

14  emotional difficulty which affects the employee's job

15  performance, all records relative to that participation shall

16  be confidential and exempt from the provisions of s. 119.07(1)

17  and s. 24(a), Art. I of the State Constitution, except as

18  otherwise provided in s. 112.0455(11).

19         h.  Information relating to negotiations for financing,

20  reinsurance, depopulation, or contractual services, until the

21  conclusion of the negotiations.

22         i.  Minutes of closed meetings regarding underwriting

23  files, and minutes of closed meetings regarding an open claims

24  file until termination of all litigation and settlement of all

25  claims with regard to that claim, except that information

26  otherwise confidential or exempt by law will be redacted.

27

28  When an authorized insurer is considering underwriting a risk

29  insured by the association, relevant underwriting files and

30  confidential claims files may be released to the insurer

31  provided the insurer agrees in writing, notarized and under

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  1  oath, to maintain the confidentiality of such files.  When a

  2  file is transferred to an insurer that file is no longer a

  3  public record because it is not held by an agency subject to

  4  the provisions of the public records law. Underwriting files

  5  and confidential claims files may also be released to staff of

  6  and the board of governors of the market assistance plan

  7  established pursuant to s. 627.3515, who must retain the

  8  confidentiality of such files, except such files may be

  9  released to authorized insurers that are considering assuming

10  the risks to which the files apply, provided the insurer

11  agrees in writing, notarized and under oath, to maintain the

12  confidentiality of such files.  Finally, the association or

13  the board or staff of the market assistance plan may make the

14  following information obtained from underwriting files and

15  confidential claims files available to licensed general lines

16  insurance agents: name, address, and telephone number of the

17  residential property owner or insured; location of the risk;

18  rating information; loss history; and policy type.  The

19  receiving licensed general lines insurance agent must retain

20  the confidentiality of the information received.

21         2.  Portions of meetings of the Residential Property

22  and Casualty Joint Underwriting Association are exempt from

23  the provisions of s. 286.011 and s. 24(b), Art. I of the State

24  Constitution wherein confidential underwriting files or

25  confidential open claims files are discussed.  All portions of

26  association meetings which are closed to the public shall be

27  recorded by a court reporter.  The court reporter shall record

28  the times of commencement and termination of the meeting, all

29  discussion and proceedings, the names of all persons present

30  at any time, and the names of all persons speaking.  No

31  portion of any closed meeting shall be off the record.

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  1  Subject to the provisions hereof and s. 119.07(2)(a), the

  2  court reporter's notes of any closed meeting shall be retained

  3  by the association for a minimum of 5 years. A copy of the

  4  transcript, less any exempt matters, of any closed meeting

  5  wherein claims are discussed shall become public as to

  6  individual claims after settlement of the claim.

  7         Section 61.  Subsections (3) and (4) of section

  8  627.3512, Florida Statutes, are amended to read:

  9         627.3512  Recoupment of residual market deficit

10  assessments.--

11         (3)  The insurer or insurer group shall file with the

12  commission department a statement setting forth the amount of

13  the assessment factor and an explanation of how the factor

14  will be applied, at least 15 days prior to the factor being

15  applied to any policies.  The statement shall include

16  documentation of the assessment paid by the insurer or insurer

17  group and the arithmetic calculations supporting the

18  assessment factor.  The commission department shall complete

19  its review within 15 days after receipt of the filing and

20  shall limit its review to verification of the arithmetic

21  calculations.  The insurer or insurer group may use the

22  assessment factor at any time after the expiration of the

23  15-day period unless the commission department has notified

24  the insurer or insurer group in writing that the arithmetic

25  calculations are incorrect.

26         (4)  The commission department may adopt rules to

27  implement this section.

28         Section 62.  Subsection (8) of section 627.357, Florida

29  Statutes, is amended to read:

30         627.357  Medical malpractice self-insurance.--

31

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  1         (8)  The expense factors associated with rates used by

  2  a fund shall be filed with the commission department at least

  3  30 days prior to use and may not be used until approved by the

  4  commission department.  The commission department shall

  5  disapprove the rates unless the filed expense factors

  6  associated therewith are justified and reasonable for the

  7  benefits and services provided.

  8         Section 63.  Section 627.361, Florida Statutes, is

  9  amended to read:

10         627.361  False or misleading information.--No person

11  shall willfully withhold information from or knowingly give

12  false or misleading information to the department, commission,

13  any statistical agency designated by the department or

14  commission, any rating organization, or any insurer, which

15  will affect the rates or premiums chargeable under this part.

16         Section 64.  Subsections (6), (7), and (8) of section

17  627.410, Florida Statutes, are amended to read:

18         627.410  Filing, approval of forms.--

19         (6)(a)  An insurer shall not deliver or issue for

20  delivery or renew in this state any health insurance policy

21  form until it has filed with the commission department a copy

22  of every applicable rating manual, rating schedule, change in

23  rating manual, and change in rating schedule; if rating

24  manuals and rating schedules are not applicable, the insurer

25  must file with the commission department applicable premium

26  rates and any change in applicable premium rates.

27         (b)  The commission department may establish by rule,

28  for each type of health insurance form, procedures to be used

29  in ascertaining the reasonableness of benefits in relation to

30  premium rates and may, by rule, exempt from any requirement of

31  paragraph (a) any health insurance policy form or type thereof

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  1  (as specified in such rule) to which form or type such

  2  requirements may not be practically applied or to which form

  3  or type the application of such requirements is not desirable

  4  or necessary for the protection of the public. With respect to

  5  any health insurance policy form or type thereof which is

  6  exempted by rule from any requirement of paragraph (a),

  7  premium rates filed pursuant to ss. 627.640 and 627.662 shall

  8  be for informational purposes.

  9         (c)  Every filing made pursuant to this subsection

10  shall be made within the same time period provided in, and

11  shall be deemed to be approved under the same conditions as

12  those provided in, subsection (2), except that such filings

13  shall be made with the commission, rather than the department.

14         (d)  Every filing made pursuant to this subsection,

15  except disability income policies and accidental death

16  policies, shall be prohibited from applying the following

17  rating practices:

18         1.  Select and ultimate premium schedules.

19         2.  Premium class definitions which classify insured

20  based on year of issue or duration since issue.

21         3.  Attained age premium structures on policy forms

22  under which more than 50 percent of the policies are issued to

23  persons age 65 or over.

24         (e)  Except as provided in subparagraph 1., an insurer

25  shall continue to make available for purchase any individual

26  policy form issued on or after October 1, 1993.  A policy form

27  shall not be considered to be available for purchase unless

28  the insurer has actively offered it for sale in the previous

29  12 months.

30         1.  An insurer may discontinue the availability of a

31  policy form if the insurer provides to the department and

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  1  commission in writing its decision at least 30 days prior to

  2  discontinuing the availability of the form of the policy or

  3  certificate.  After receipt of the notice by the department

  4  and commission, the insurer shall no longer offer for sale the

  5  policy form or certificate form in this state.

  6         2.  An insurer that discontinues the availability of a

  7  policy form pursuant to subparagraph 1. shall not file for

  8  approval a new policy form providing similar benefits as the

  9  discontinued form for a period of 5 years after the insurer

10  provides notice to the department of the discontinuance. The

11  period of discontinuance may be reduced if the department or

12  commission determines that a shorter period is appropriate.

13         3.  The experience of all policy forms providing

14  similar benefits shall be combined for all rating purposes.

15         (7)(a)  Each insurer subject to the requirements of

16  subsection (6) shall make an annual filing with the commission

17  department no later than 12 months after its previous filing,

18  demonstrating the reasonableness of benefits in relation to

19  premium rates.  The commission department, after receiving a

20  request to be exempted from the provisions of this section,

21  may, for good cause due to insignificant numbers of policies

22  in force or insignificant premium volume, exempt a company, by

23  line of coverage, from filing rates or rate certification as

24  required by this section.

25         (b)  The filing required by this subsection shall be

26  satisfied by one of the following methods:

27         1.  A rate filing prepared by an actuary which contains

28  documentation demonstrating the reasonableness of benefits in

29  relation to premiums charged in accordance with the applicable

30  rating laws and rules adopted promulgated by the commission

31  department.

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  1         2.  If no rate change is proposed, a filing which

  2  consists of a certification by an actuary that benefits are

  3  reasonable in relation to premiums currently charged in

  4  accordance with applicable laws and rules adopted promulgated

  5  by the commission department.

  6         (c)  As used in this section, "actuary" means an

  7  individual who is a member of the Society of Actuaries or the

  8  American Academy of Actuaries.  If an insurer does not employ

  9  or otherwise retain the services of an actuary, the insurer's

10  certification shall be prepared by insurer personnel or

11  consultants with a minimum of 5 years' experience in insurance

12  ratemaking. The chief executive officer of the insurer shall

13  review and sign the certification indicating his or her

14  agreement with its conclusions.

15         (d)  If at the time a filing is required under this

16  section an insurer is in the process of completing a rate

17  review, the insurer may apply to the commission department for

18  an extension of up to an additional 30 days in which to make

19  the filing.  The request for extension must be received by the

20  commission department in its offices in Tallahassee no later

21  than the date the filing is due.

22         (e)  If an insurer fails to meet the filing

23  requirements of this subsection and does not submit the filing

24  within 60 days following the date the filing is due, the

25  commission department may, in addition to any other penalty

26  authorized by law, order the insurer to discontinue the

27  issuance of policies for which the required filing was not

28  made, until such time as the commission department determines

29  that the required filing is properly submitted.

30         (8)(a)  For the purposes of subsections (6) and (7),

31  benefits of an individual accident and health insurance policy

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  1  form, including Medicare supplement policies as defined in s.

  2  627.672, when authorized by rules adopted by the commission

  3  department, and excluding long-term care insurance policies as

  4  defined in s. 627.9404, and other policy forms under which

  5  more than 50 percent of the policies are issued to individuals

  6  age 65 and over, are deemed to be reasonable in relation to

  7  premium rates if the rates are filed pursuant to a loss ratio

  8  guarantee and both the initial rates and the durational and

  9  lifetime loss ratios have been approved by the commission

10  department, and such benefits shall continue to be deemed

11  reasonable for renewal rates while the insurer complies with

12  such guarantee, provided the currently expected lifetime loss

13  ratio is not more than 5 percent less than the filed lifetime

14  loss ratio as certified to by an actuary.  The commission

15  department shall have the right to bring an administrative

16  action should it deem that the lifetime loss ratio will not be

17  met.  For Medicare supplement filings, the commission

18  department may withdraw a previously approved filing which was

19  made pursuant to a loss ratio guarantee if it determines that

20  the filing is not in compliance with ss. 627.671-627.675 or

21  the currently expected lifetime loss ratio is less than the

22  filed lifetime loss ratio as certified by an actuary in the

23  initial guaranteed loss ratio filing.  If this section

24  conflicts with ss. 627.671-627.675, ss. 627.671-627.675 shall

25  control.

26         (b)  The renewal premium rates shall be deemed to be

27  approved upon filing with the commission department if the

28  filing is accompanied by the most current approved loss ratio

29  guarantee. The loss ratio guarantee shall be in writing, shall

30  be signed by an officer of the insurer, and shall contain at

31  least:

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  1         1.  A recitation of the anticipated lifetime and

  2  durational target loss ratios contained in the actuarial

  3  memorandum filed with the policy form when it was originally

  4  approved.  The durational target loss ratios shall be

  5  calculated for 1-year experience periods.  If statutory

  6  changes have rendered any portion of such actuarial memorandum

  7  obsolete, the loss ratio guarantee shall also include an

  8  amendment to the actuarial memorandum reflecting current law

  9  and containing new lifetime and durational loss ratio targets.

10         2.  A guarantee that the applicable loss ratios for the

11  experience period in which the new rates will take effect, and

12  for each experience period thereafter until new rates are

13  filed, will meet the loss ratios referred to in subparagraph

14  1.

15         3.  A guarantee that the applicable loss ratio results

16  for the experience period will be independently audited at the

17  insurer's expense.  The audit shall be performed in the second

18  calendar quarter of the year following the end of the

19  experience period, and the audited results shall be reported

20  to the commission department no later than the end of such

21  quarter.  The commission department shall establish by rule

22  the minimum information reasonably necessary to be included in

23  the report.  The audit shall be done in accordance with

24  accepted accounting and actuarial principles.

25         4.  A guarantee that affected policyholders in this

26  state shall be issued a proportional refund, based on the

27  premium earned, of the amount necessary to bring the

28  applicable experience period loss ratio up to the durational

29  target loss ratio referred to in subparagraph 1.  The refund

30  shall be made to all policyholders in this state who are

31  insured under the applicable policy form as of the last day of

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  1  the experience period, except that no refund need be made to a

  2  policyholder in an amount less than $10. Refunds less than $10

  3  shall be aggregated and paid pro rata to the policyholders

  4  receiving refunds.  The refund shall include interest at the

  5  then-current variable loan interest rate for life insurance

  6  policies established by the National Association of Insurance

  7  Commissioners, from the end of the experience period until the

  8  date of payment.  Payments shall be made during the third

  9  calendar quarter of the year following the experience period

10  for which a refund is determined to be due. However, no

11  refunds shall be made until 60 days after the filing of the

12  audit report in order that the commission department has

13  adequate time to review the report.

14         5.  A guarantee that if the applicable loss ratio

15  exceeds the durational target loss ratio for that experience

16  period by more than 20 percent, provided there are at least

17  2,000 policyholders on the form nationwide or, if not, then

18  accumulated each calendar year until 2,000 policyholder years

19  is reached, the insurer, if directed by the commission

20  department, shall withdraw the policy form for the purposes of

21  issuing new policies.

22         (c)  As used in this subsection:

23         1.  "Loss ratio" means the ratio of incurred claims to

24  earned premium.

25         2.  "Applicable loss ratio" means the loss ratio

26  attributable solely to this state if there are 2,000 or more

27  policyholders in the state. If there are 500 or more

28  policyholders in this state but less than 2,000, it is the

29  linear interpolation of the nationwide loss ratio and the loss

30  ratio for this state.  If there are less than 500

31  policyholders in this state, it is the nationwide loss ratio.

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  1         3.  "Experience period" means the period, ordinarily a

  2  calendar year, for which a loss ratio guarantee is calculated.

  3         Section 65.  Section 627.411, Florida Statutes, is

  4  amended to read:

  5         627.411  Grounds for disapproval.--

  6         (1)  The department shall disapprove any form filed

  7  under s. 627.410(1)-(5) s. 627.410, or withdraw any previous

  8  approval thereof, only if the form:

  9         (a)  Is in any respect in violation of, or does not

10  comply with, this code.

11         (b)  Contains or incorporates by reference, where such

12  incorporation is otherwise permissible, any inconsistent,

13  ambiguous, or misleading clauses, or exceptions and conditions

14  which deceptively affect the risk purported to be assumed in

15  the general coverage of the contract.

16         (c)  Has any title, heading, or other indication of its

17  provisions which is misleading.

18         (d)  Is printed or otherwise reproduced in such manner

19  as to render any material provision of the form substantially

20  illegible.

21         (e)  Is for health insurance, and provides benefits

22  which are unreasonable in relation to the premium charged,

23  contains provisions that which are unfair or inequitable or

24  contrary to the public policy of this state or that which

25  encourage misrepresentation, or which apply rating practices

26  which result in premium escalations that are not viable for

27  the policyholder market or result in unfair discrimination in

28  sales practices.

29         (f)  Excludes coverage for human immunodeficiency virus

30  infection or acquired immune deficiency syndrome or contains

31  limitations in the benefits payable, or in the terms or

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  1  conditions of such contract, for human immunodeficiency virus

  2  infection or acquired immune deficiency syndrome which are

  3  different than those which apply to any other sickness or

  4  medical condition.

  5         (2)  The commission shall disapprove any health

  6  insurance rate filing under s. 627.410(6), (7), or (8) or

  7  withdraw any previous approval thereof only if the benefits

  8  are unreasonable in relation to the premium charged or the

  9  filing applies rating practices that result in premium

10  escalations that are not viable for the policyholder market or

11  result in unfair discrimination in sales practices. In

12  determining whether the benefits are reasonable in relation to

13  the premium charged, the commission department, in accordance

14  with reasonable actuarial techniques, shall consider:

15         (a)  Past loss experience and prospective loss

16  experience within and without this state.

17         (b)  Allocation of expenses.

18         (c)  Risk and contingency margins, along with

19  justification of such margins.

20         (d)  Acquisition costs.

21         Section 66.  Paragraph (c) of subsection (7) of section

22  627.6475, Florida Statutes, is amended to read:

23         627.6475  Individual reinsurance pool.--

24         (7)  INDIVIDUAL HEALTH REINSURANCE PROGRAM.--

25         (c)1.  The board, as part of the plan of operation,

26  shall establish a methodology for determining premium rates to

27  be charged by the program for reinsuring eligible individuals

28  pursuant to this section. The methodology must include a

29  system for classifying individuals which reflects the types of

30  case characteristics commonly used by carriers in this state.

31  The methodology must provide for the development of basic

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  1  reinsurance premium rates, which shall be multiplied by the

  2  factors set for them in this paragraph to determine the

  3  premium rates for the program. The basic reinsurance premium

  4  rates shall be established by the board, subject to the

  5  approval of the commission department, and shall be set at

  6  levels that reasonably approximate gross premiums charged to

  7  eligible individuals for individual health insurance by health

  8  insurance issuers. The premium rates set by the board may vary

  9  by geographical area, as determined under this section, to

10  reflect differences in cost. An eligible individual may be

11  reinsured for a rate that is five times the rate established

12  by the board.

13         2.  The board shall periodically review the methodology

14  established, including the system of classification and any

15  rating factors, to ensure that it reasonably reflects the

16  claims experience of the program. The board may propose

17  changes to the rates that are subject to the approval of the

18  commission department.

19         Section 67.  Paragraph (a) of subsection (4) of section

20  627.6498, Florida Statutes, is amended to read:

21         627.6498  Minimum benefits coverage; exclusions;

22  premiums; deductibles.--

23         (4)  PREMIUMS, DEDUCTIBLES, AND COINSURANCE.--

24         (a)  The plan shall provide for annual deductibles for

25  major medical expense coverage in the amount of $1,000 or any

26  higher amounts proposed by the board and approved by the

27  commission department, plus the benefits payable under any

28  other type of insurance coverage or workers' compensation.

29  The schedule of premiums and deductibles shall be established

30  by the association. With regard to any preferred provider

31  arrangement used utilized by the association, the deductibles

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  1  provided in this paragraph shall be the minimum deductibles

  2  applicable to the preferred providers and higher deductibles,

  3  as approved by the department, may be applied to providers who

  4  are not preferred providers.

  5         1.  Separate schedules of premium rates based on age

  6  may apply for individual risks.

  7         2.  Rates are subject to approval by the commission

  8  department.

  9         3.  Standard risk rates for coverages issued by the

10  association shall be established by the commission department,

11  pursuant to s. 627.6675(3).

12         4.  The board shall establish separate premium

13  schedules for low-risk individuals, medium-risk individuals,

14  and high-risk individuals and shall revise premium schedules

15  annually beginning January 1999. No rate shall exceed 200

16  percent of the standard risk rate for low-risk individuals,

17  225 percent of the standard risk rate for medium-risk

18  individuals, or 250 percent of the standard risk rate for

19  high-risk individuals. For the purpose of determining what

20  constitutes a low-risk individual, medium-risk individual, or

21  high-risk individual, the board shall consider the anticipated

22  claims payment for individuals based upon an individual's

23  health condition.

24         Section 68.  Section 627.6675, Florida Statutes, is

25  amended to read:

26         627.6675  Conversion on termination of

27  eligibility.--Subject to all of the provisions of this

28  section, a group policy delivered or issued for delivery in

29  this state by an insurer or nonprofit health care services

30  plan that provides, on an expense-incurred basis, hospital,

31  surgical, or major medical expense insurance, or any

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  1  combination of these coverages, shall provide that an employee

  2  or member whose insurance under the group policy has been

  3  terminated for any reason, including discontinuance of the

  4  group policy in its entirety or with respect to an insured

  5  class, and who has been continuously insured under the group

  6  policy, and under any group policy providing similar benefits

  7  that the terminated group policy replaced, for at least 3

  8  months immediately prior to termination, shall be entitled to

  9  have issued to him or her by the insurer a policy or

10  certificate of health insurance, referred to in this section

11  as a "converted policy." A group insurer may meet the

12  requirements of this section by contracting with another

13  insurer, authorized in this state, to issue an individual

14  converted policy, which policy has been approved by the

15  department under s. 627.410. An employee or member shall not

16  be entitled to a converted policy if termination of his or her

17  insurance under the group policy occurred because he or she

18  failed to pay any required contribution, or because any

19  discontinued group coverage was replaced by similar group

20  coverage within 31 days after discontinuance.

21         (1)  TIME LIMIT.--Written application for the converted

22  policy shall be made and the first premium must be paid to the

23  insurer, not later than 63 days after termination of the group

24  policy. However, if termination was the result of failure to

25  pay any required premium or contribution and such nonpayment

26  of premium was due to acts of an employer or policyholder

27  other than the employee or certificateholder, written

28  application for the converted policy must be made and the

29  first premium must be paid to the insurer not later than 63

30  days after notice of termination is mailed by the insurer or

31  the employer, whichever is earlier, to the employee's or

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  1  certificateholder's last address as shown by the record of the

  2  insurer or the employer, whichever is applicable. In such case

  3  of termination due to nonpayment of premium by the employer or

  4  policyholder, the premium for the converted policy may not

  5  exceed the rate for the prior group coverage for the period of

  6  coverage under the converted policy prior to the date notice

  7  of termination is mailed to the employee or certificateholder.

  8  For the period of coverage after such date, the premium for

  9  the converted policy is subject to the requirements of

10  subsection (3).

11         (2)  EVIDENCE OF INSURABILITY.--The converted policy

12  shall be issued without evidence of insurability.

13         (3)  CONVERSION PREMIUM; EFFECT ON PREMIUM RATES FOR

14  GROUP COVERAGE.--

15         (a)  The premium for the converted policy shall be

16  determined in accordance with premium rates applicable to the

17  age and class of risk of each person to be covered under the

18  converted policy and to the type and amount of insurance

19  provided.  However, the premium for the converted policy may

20  not exceed 200 percent of the standard risk rate as

21  established by the commission department, pursuant to this

22  subsection.

23         (b)  Actual or expected experience under converted

24  policies may be combined with such experience under group

25  policies for the purposes of determining premium and loss

26  experience and establishing premium rate levels for group

27  coverage.

28         (c)  The commission department shall annually determine

29  standard risk rates, using reasonable actuarial techniques and

30  standards adopted by the commission department by rule. The

31  standard risk rates must be determined as follows:

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  1         1.  Standard risk rates for individual coverage must be

  2  determined separately for indemnity policies, preferred

  3  provider/exclusive provider policies, and health maintenance

  4  organization contracts.

  5         2.  The commission department shall survey insurers and

  6  health maintenance organizations representing at least an 80

  7  percent market share, based on premiums earned in the state

  8  for the most recent calendar year, for each of the categories

  9  specified in subparagraph 1.

10         3.  Standard risk rate schedules must be determined,

11  computed as the average rates charged by the carriers

12  surveyed, giving appropriate weight to each carrier's

13  statewide market share of earned premiums.

14         4.  The rate schedule shall be determined from analysis

15  of the one county with the largest market share in the state

16  of all such carriers.

17         5.  The rate for other counties must be determined by

18  using the weighted average of each carrier's county factor

19  relationship to the county determined in subparagraph 4.

20         6.  The rate schedule must be determined for different

21  age brackets and family size brackets.

22         (4)  EFFECTIVE DATE OF COVERAGE.--The effective date of

23  the converted policy shall be the day following the

24  termination of insurance under the group policy.

25         (5)  SCOPE OF COVERAGE.--The converted policy shall

26  cover the employee or member and his or her dependents who

27  were covered by the group policy on the date of termination of

28  insurance.  At the option of the insurer, a separate converted

29  policy may be issued to cover any dependent.

30         (6)  OPTIONAL COVERAGE.--The insurer shall not be

31  required to issue a converted policy covering any person who

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  1  is or could be covered by Medicare. The insurer shall not be

  2  required to issue a converted policy covering a person if

  3  paragraphs (a) and (b) apply to the person:

  4         (a)  If any of the following apply to the person:

  5         1.  The person is covered for similar benefits by

  6  another hospital, surgical, medical, or major medical expense

  7  insurance policy or hospital or medical service subscriber

  8  contract or medical practice or other prepayment plan, or by

  9  any other plan or program.

10         2.  The person is eligible for similar benefits,

11  whether or not actually provided coverage, under any

12  arrangement of coverage for individuals in a group, whether on

13  an insured or uninsured basis.

14         3.  Similar benefits are provided for or are available

15  to the person under any state or federal law.

16         (b)  If the benefits provided under the sources

17  referred to in subparagraph (a)1. or the benefits provided or

18  available under the sources referred to in subparagraphs (a)2.

19  and 3., together with the benefits provided by the converted

20  policy, would result in overinsurance according to the

21  insurer's standards.  The insurer's standards must bear some

22  reasonable relationship to actual health care costs in the

23  area in which the insured lives at the time of conversion and

24  must be filed with the department prior to their use in

25  denying coverage.

26         (7)  INFORMATION REQUESTED BY INSURER.--

27         (a)  A converted policy may include a provision under

28  which the insurer may request information, in advance of any

29  premium due date, of any person covered thereunder as to

30  whether:

31

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  1         1.  The person is covered for similar benefits by

  2  another hospital, surgical, medical, or major medical expense

  3  insurance policy or hospital or medical service subscriber

  4  contract or medical practice or other prepayment plan or by

  5  any other plan or program.

  6         2.  The person is covered for similar benefits under

  7  any arrangement of coverage for individuals in a group,

  8  whether on an insured or uninsured basis.

  9         3.  Similar benefits are provided for or are available

10  to the person under any state or federal law.

11         (b)  The converted policy may provide that the insurer

12  may refuse to renew the policy or the coverage of any person

13  only for one or more of the following reasons:

14         1.  Either the benefits provided under the sources

15  referred to in subparagraphs (a)1. and 2. for the person or

16  the benefits provided or available under the sources referred

17  to in subparagraph (a)3. for the person, together with the

18  benefits provided by the converted policy, would result in

19  overinsurance according to the insurer's standards on file

20  with the department.

21         2.  The converted policyholder fails to provide the

22  information requested pursuant to paragraph (a).

23         3.  Fraud or intentional misrepresentation in applying

24  for any benefits under the converted policy.

25         4.  Other reasons approved by the department.

26         (8)  BENEFITS OFFERED.--

27         (a)  An insurer shall not be required to issue a

28  converted policy that provides benefits in excess of those

29  provided under the group policy from which conversion is made.

30

31

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  1         (b)  An insurer shall offer the benefits specified in

  2  s. 627.668 and the benefits specified in s. 627.669 if those

  3  benefits were provided in the group plan.

  4         (c)  An insurer shall offer maternity benefits and

  5  dental benefits if those benefits were provided in the group

  6  plan.

  7         (9)  PREEXISTING CONDITION PROVISION.--The converted

  8  policy shall not exclude a preexisting condition not excluded

  9  by the group policy. However, the converted policy may provide

10  that any hospital, surgical, or medical benefits payable under

11  the converted policy may be reduced by the amount of any such

12  benefits payable under the group policy after the termination

13  of covered under the group policy. The converted policy may

14  also provide that during the first policy year the benefits

15  payable under the converted policy, together with the benefits

16  payable under the group policy, shall not exceed those that

17  would have been payable had the individual's insurance under

18  the group policy remained in force.

19         (10)  REQUIRED OPTION FOR MAJOR MEDICAL

20  COVERAGE.--Subject to the provisions and conditions of this

21  part, the employee or member shall be entitled to obtain a

22  converted policy providing major medical coverage under a plan

23  meeting the following requirements:

24         (a)  A maximum benefit equal to the lesser of the

25  policy limit of the group policy from which the individual

26  converted or $500,000 per covered person for all covered

27  medical expenses incurred during the covered person's

28  lifetime.

29         (b)  Payment of benefits at the rate of 80 percent of

30  covered medical expenses which are in excess of the

31  deductible, until 20 percent of such expenses in a benefit

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  1  period reaches $2,000, after which benefits will be paid at

  2  the rate of 90 percent during the remainder of the contract

  3  year unless the insured is in the insurer's case management

  4  program, in which case benefits shall be paid at the rate of

  5  100 percent during the remainder of the contract year.  For

  6  the purposes of this paragraph, "case management program"

  7  means the specific supervision and management of the medical

  8  care provided or prescribed for a specific individual, which

  9  may include the use of health care providers designated by the

10  insurer.  Payment of benefits for outpatient treatment of

11  mental illness, if provided in the converted policy, may be at

12  a lesser rate but not less than 50 percent.

13         (c)  A deductible for each calendar year that must be

14  $500, $1,000, or $2,000, at the option of the policyholder.

15         (d)  The term "covered medical expenses," as used in

16  this subsection, shall be consistent with those customarily

17  offered by the insurer under group or individual health

18  insurance policies but is not required to be identical to the

19  covered medical expenses provided in the group policy from

20  which the individual converted.

21         (11)  ALTERNATIVE PLANS.--The insurer shall, in

22  addition to the option required by subsection (10), offer the

23  standard health benefit plan, as established pursuant to s.

24  627.6699(12). The insurer may, at its option, also offer

25  alternative plans for group health conversion in addition to

26  the plans required by this section.

27         (12)  RETIREMENT COVERAGE.--If coverage would be

28  continued under the group policy on an employee following the

29  employee's retirement prior to the time he or she is or could

30  be covered by Medicare, the employee may elect, instead of

31  such continuation of group insurance, to have the same

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  1  conversion rights as would apply had his or her insurance

  2  terminated at retirement by reason or termination of

  3  employment or membership.

  4         (13)  REDUCTION OF COVERAGE DUE TO MEDICARE.--The

  5  converted policy may provide for reduction of coverage on any

  6  person upon his or her eligibility for coverage under Medicare

  7  or under any other state or federal law providing for benefits

  8  similar to those provided by the converted policy.

  9         (14)  CONVERSION PRIVILEGE ALLOWED.--The conversion

10  privilege shall also be available to any of the following:

11         (a)  The surviving spouse, if any, at the death of the

12  employee or member, with respect to the spouse and the

13  children whose coverages under the group policy terminate by

14  reason of the death, otherwise to each surviving child whose

15  coverage under the group policy terminates by reason of such

16  death, or, if the group policy provides for continuation of

17  dependents' coverages following the employee's or member's

18  death, at the end of such continuation.

19         (b)  The former spouse whose coverage would otherwise

20  terminate because of annulment or dissolution of marriage, if

21  the former spouse is dependent for financial support.

22         (c)  The spouse of the employee or member upon

23  termination of coverage of the spouse, while the employee or

24  member remains insured under the group policy, by reason of

25  ceasing to be a qualified family member under the group

26  policy, with respect to the spouse and the children whose

27  coverages under the group policy terminate at the same time.

28         (d)  A child solely with respect to himself or herself

29  upon termination of his or her coverage by reason of ceasing

30  to be a qualified family member under the group policy, if a

31

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  1  conversion privilege is not otherwise provided in this

  2  subsection with respect to such termination.

  3         (15)  BENEFIT LEVELS.--If the benefit levels required

  4  in subsection (10) exceed the benefit levels provided under

  5  the group policy, the conversion policy may offer benefits

  6  which are substantially similar to those provided under the

  7  group policy in lieu of those required in subsection (10).

  8         (16)  GROUP COVERAGE INSTEAD OF INDIVIDUAL

  9  COVERAGE.--The insurer may elect to provide group insurance

10  coverage instead of issuing a converted individual policy.

11         (17)  NOTIFICATION.--A notification of the conversion

12  privilege shall be included in each certificate of coverage.

13  The insurer shall mail an election and premium notice form,

14  including an outline of coverage, on a form approved by the

15  department, within 14 days after an individual who is eligible

16  for a converted policy gives notice to the insurer that the

17  individual is considering applying for the converted policy or

18  otherwise requests such information. The outline of coverage

19  must contain a description of the principal benefits and

20  coverage provided by the policy and its principal exclusions

21  and limitations, including, but not limited to, deductibles

22  and coinsurance.

23         (18)  OUTSIDE CONVERSIONS.--A converted policy that is

24  delivered outside of this state must be on a form that could

25  be delivered in the other jurisdiction as a converted policy

26  had the group policy been issued in that jurisdiction.

27         (19)  APPLICABILITY.--This section does not require

28  conversion on termination of eligibility for a policy or

29  contract that provides benefits for specified diseases, or for

30  accidental injuries only, disability income, Medicare

31

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  1  supplement, hospital indemnity, limited benefit,

  2  nonconventional, or excess policies.

  3         (20)  Nothing in this section or in the incorporation

  4  of it into insurance policies shall be construed to require

  5  insurers to provide benefits equal to those provided in the

  6  group policy from which the individual converted; provided,

  7  however, that comprehensive benefits are offered which shall

  8  be subject to approval by the Insurance Commissioner.

  9         Section 69.  Subsections (3), (6), (8), (11), (12), and

10  (16) of section 627.6699, Florida Statutes, are amended to

11  read:

12         627.6699  Employee Health Care Access Act.--

13         (3)  DEFINITIONS.--As used in this section, the term:

14         (a)  "Actuarial certification" means a written

15  statement, by a member of the American Academy of Actuaries or

16  another person acceptable to the commission department, that a

17  small employer carrier is in compliance with subsection (6),

18  based upon the person's examination, including a review of the

19  appropriate records and of the actuarial assumptions and

20  methods used by the carrier in establishing premium rates for

21  applicable health benefit plans.

22         (b)  "Basic health benefit plan" and "standard health

23  benefit plan" mean low-cost health care plans developed

24  pursuant to subsection (12).

25         (c)  "Board" means the board of directors of the

26  program.

27         (d)  "Carrier" means a person who provides health

28  benefit plans in this state, including an authorized insurer,

29  a health maintenance organization, a multiple-employer welfare

30  arrangement, or any other person providing a health benefit

31  plan that is subject to insurance regulation in this state.

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  1  However, the term does not include a multiple-employer welfare

  2  arrangement, which multiple-employer welfare arrangement

  3  operates solely for the benefit of the members or the members

  4  and the employees of such members, and was in existence on

  5  January 1, 1992.

  6         (e)  "Case management program" means the specific

  7  supervision and management of the medical care provided or

  8  prescribed for a specific individual, which may include the

  9  use of health care providers designated by the carrier.

10         (f)  "Creditable coverage" has the same meaning

11  ascribed in s. 627.6561.

12         (g)  "Dependent" means the spouse or child of an

13  eligible employee, subject to the applicable terms of the

14  health benefit plan covering that employee.

15         (h)  "Eligible employee" means an employee who works

16  full time, having a normal workweek of 25 or more hours, and

17  who has met any applicable waiting-period requirements or

18  other requirements of this act.  The term includes a

19  self-employed individual, a sole proprietor, a partner of a

20  partnership, or an independent contractor, if the sole

21  proprietor, partner, or independent contractor is included as

22  an employee under a health benefit plan of a small employer,

23  but does not include a part-time, temporary, or substitute

24  employee.

25         (i)  "Established geographic area" means the county or

26  counties, or any portion of a county or counties, within which

27  the carrier provides or arranges for health care services to

28  be available to its insureds, members, or subscribers.

29         (j)  "Guaranteed-issue basis" means an insurance policy

30  that must be offered to an employer, employee, or dependent of

31

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  1  the employee, regardless of health status, preexisting

  2  conditions, or claims history.

  3         (k)  "Health benefit plan" means any hospital or

  4  medical policy or certificate, hospital or medical service

  5  plan contract, or health maintenance organization subscriber

  6  contract. The term does not include accident-only, specified

  7  disease, individual hospital indemnity, credit, dental-only,

  8  vision-only, Medicare supplement, long-term care, or

  9  disability income insurance; similar supplemental plans

10  provided under a separate policy, certificate, or contract of

11  insurance, which cannot duplicate coverage under an underlying

12  health plan and are specifically designed to fill gaps in the

13  underlying health plan, coinsurance, or deductibles; coverage

14  issued as a supplement to liability insurance; workers'

15  compensation or similar insurance; or automobile

16  medical-payment insurance.

17         (l)  "Late enrollee" means an eligible employee or

18  dependent as defined under s. 627.6561(1)(b).

19         (m)  "Limited benefit policy or contract" means a

20  policy or contract that provides coverage for each person

21  insured under the policy for a specifically named disease or

22  diseases, a specifically named accident, or a specifically

23  named limited market that fulfills an experimental or

24  reasonable need, such as the small group market.

25         (n)  "Modified community rating" means a method used to

26  develop carrier premiums which spreads financial risk across a

27  large population and allows adjustments for age, gender,

28  family composition, tobacco usage, and geographic area as

29  determined under paragraph (5)(j).

30

31

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  1         (o)  "Participating carrier" means any carrier that

  2  issues health benefit plans in this state except a small

  3  employer carrier that elects to be a risk-assuming carrier.

  4         (p)  "Plan of operation" means the plan of operation of

  5  the program, including articles, bylaws, and operating rules,

  6  adopted by the board under subsection (11).

  7         (q)  "Program" means the Florida Small Employer Carrier

  8  Reinsurance Program created under subsection (11).

  9         (r)  "Rating period" means the calendar period for

10  which premium rates established by a small employer carrier

11  are assumed to be in effect.

12         (s)  "Reinsuring carrier" means a small employer

13  carrier that elects to comply with the requirements set forth

14  in subsection (11).

15         (t)  "Risk-assuming carrier" means a small employer

16  carrier that elects to comply with the requirements set forth

17  in subsection (10).

18         (u)  "Self-employed individual" means an individual or

19  sole proprietor who derives his or her income from a trade or

20  business carried on by the individual or sole proprietor which

21  results in taxable income as indicated on IRS Form 1040,

22  schedule C or F, and which generated taxable income in one of

23  the 2 previous years.

24         (v)  "Small employer" means, in connection with a

25  health benefit plan with respect to a calendar year and a plan

26  year, any person, sole proprietor, self-employed individual,

27  independent contractor, firm, corporation, partnership, or

28  association that is actively engaged in business, has its

29  principal place of business in this state, employed an average

30  of at least 1 but not more than 50 eligible employees on

31  business days during the preceding calendar year, and employs

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  1  at least 1 employee on the first day of the plan year.  For

  2  purposes of this section, a sole proprietor, an independent

  3  contractor, or a self-employed individual is considered a

  4  small employer only if all of the conditions and criteria

  5  established in this section are met.

  6         (w)  "Small employer carrier" means a carrier that

  7  offers health benefit plans covering eligible employees of one

  8  or more small employers.

  9         (6)  RESTRICTIONS RELATING TO PREMIUM RATES.--

10         (a)  The commission department may, by rule, establish

11  regulations to administer this subsection section and to

12  assure that rating practices used by small employer carriers

13  are consistent with the purpose of this section, including

14  assuring that differences in rates charged for health benefit

15  plans by small employer carriers are reasonable and reflect

16  objective differences in plan design, not including

17  differences due to the nature of the groups assumed to select

18  particular health benefit plans.

19         (b)  For all small employer health benefit plans that

20  are subject to this section and are issued by small employer

21  carriers on or after January 1, 1994, premium rates for health

22  benefit plans subject to this section are subject to the

23  following:

24         1.  Small employer carriers must use a modified

25  community rating methodology in which the premium for each

26  small employer must be determined solely on the basis of the

27  eligible employee's and eligible dependent's gender, age,

28  family composition, tobacco use, or geographic area as

29  determined under paragraph (5)(j).

30         2.  Rating factors related to age, gender, family

31  composition, tobacco use, or geographic location may be

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  1  developed by each carrier to reflect the carrier's experience.

  2  The factors used by carriers are subject to commission

  3  department review and approval.

  4         3.  Small employer carriers may not modify the rate for

  5  a small employer for 12 months from the initial issue date or

  6  renewal date, unless the composition of the group changes or

  7  benefits are changed.

  8         4.  Carriers participating in the alliance program, in

  9  accordance with ss. 408.70-408.706, may apply a different

10  community rate to business written in that program.

11         (c)  For all small employer health benefit plans that

12  are subject to this section, that are issued by small employer

13  carriers before January 1, 1994, and that are renewed on or

14  after January 1, 1995, renewal rates must be based on the same

15  modified community rating standard applied to new business.

16         (d)  Notwithstanding s. 627.401(2), this section and

17  ss. 627.410 and 627.411 apply to any health benefit plan

18  provided by a small employer carrier that provides coverage to

19  one or more employees of a small employer regardless of where

20  the policy, certificate, or contract is issued or delivered,

21  if the health benefit plan covers employees or their covered

22  dependents who are residents of this state.

23         (8)  MAINTENANCE OF RECORDS.--

24         (a)  Each small employer carrier must maintain at its

25  principal place of business a complete and detailed

26  description of its rating practices and renewal practices,

27  including information and documentation that demonstrate that

28  its rating methods and practices are based upon commonly

29  accepted actuarial assumptions and are in accordance with

30  sound actuarial principles.

31

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  1         (b)  Each small employer carrier must file with the

  2  commission department on or before March 15 of each year an

  3  actuarial certification that the carrier is in compliance with

  4  this section and that the rating methods of the carrier are

  5  actuarially sound. The certification must be in a form and

  6  manner and contain the information prescribed by the

  7  commission department.  The carrier must retain a copy of the

  8  certification at its principal place of business.

  9         (c)  A small employer carrier must make the information

10  and documentation described in paragraph (a) available to the

11  commission and the department upon request.  The information

12  constitutes proprietary and trade secret information and may

13  not be disclosed by the commission or the department to

14  persons outside the commission or department, except as agreed

15  to by the carrier or as ordered by a court of competent

16  jurisdiction.

17         (d)  Each small employer carrier must file with the

18  department quarterly an enrollment report as directed by the

19  department.  Such report shall not constitute proprietary or

20  trade secret information.

21         (11)  SMALL EMPLOYER HEALTH REINSURANCE PROGRAM.--

22         (a)  There is created a nonprofit entity to be known as

23  the "Florida Small Employer Health Reinsurance Program."

24         (b)1.  The program shall operate subject to the

25  supervision and control of the board.

26         2.  Effective upon this act becoming a law, the board

27  shall consist of the commissioner or his or her designee, who

28  shall serve as the chairperson, and 13 additional members who

29  are representatives of carriers and insurance agents and are

30  appointed by the commissioner and serve as follows:

31

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  1         a.  The commissioner shall include representatives of

  2  small employer carriers subject to assessment under this

  3  subsection.  If two or more carriers elect to be risk-assuming

  4  carriers, the membership must include at least two

  5  representatives of risk-assuming carriers; if one carrier is

  6  risk-assuming, one member must be a representative of such

  7  carrier.  At least one member must be a carrier who is subject

  8  to the assessments, but is not a small employer carrier.

  9  Subject to such restrictions, at least five members shall be

10  selected from individuals recommended by small employer

11  carriers pursuant to procedures provided by rule of the

12  department. Three members shall be selected from a list of

13  health insurance carriers that issue individual health

14  insurance policies. At least two of the three members selected

15  must be reinsuring carriers. Two members shall be selected

16  from a list of insurance agents who are actively engaged in

17  the sale of health insurance.

18         b.  A member appointed under this subparagraph shall

19  serve a term of 4 years and shall continue in office until the

20  member's successor takes office, except that, in order to

21  provide for staggered terms, the commissioner shall designate

22  two of the initial appointees under this subparagraph to serve

23  terms of 2 years and shall designate three of the initial

24  appointees under this subparagraph to serve terms of 3 years.

25         3.  The commissioner may remove a member for cause.

26         4.  Vacancies on the board shall be filled in the same

27  manner as the original appointment for the unexpired portion

28  of the term.

29         5.  The commissioner may require an entity that

30  recommends persons for appointment to submit additional lists

31  of recommended appointees.

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  1         (c)1.

  2         a.  No later than August 15, 1992, the board shall

  3  submit to the department a plan of operation to assure the

  4  fair, reasonable, and equitable administration of the program.

  5  The board may at any time submit to the department any

  6  amendments to the plan that the board finds to be necessary or

  7  suitable.

  8         b.  No later than September 15, 1992, the department

  9  shall, after notice and hearing, approve the plan of operation

10  if it determines that the plan submitted by the board is

11  suitable to assure the fair, reasonable, and equitable

12  administration of the program and provides for the sharing of

13  program gains and losses equitably and proportionately in

14  accordance with paragraph (j).

15         c.  The plan of operation, or any amendment thereto,

16  becomes effective upon written approval of the department.

17         2.  If the board fails to submit a suitable plan of

18  operation by August 15, 1992, the department shall, after

19  notice and hearing, adopt a temporary plan of operation by

20  September 15, 1992.  The department shall amend or rescind the

21  temporary plan of operation, as appropriate, after it approves

22  a suitable plan of operation submitted by the board.

23         (d)  The plan of operation must, among other things:

24         1.  Establish procedures for handling and accounting

25  for program assets and moneys and for an annual fiscal

26  reporting to the department.

27         2.  Establish procedures for selecting an administering

28  carrier and set forth the powers and duties of the

29  administering carrier.

30         3.  Establish procedures for reinsuring risks.

31

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  1         4.  Establish procedures for collecting assessments

  2  from participating carriers to provide for claims reinsured by

  3  the program and for administrative expenses, other than

  4  amounts payable to the administrative carrier, incurred or

  5  estimated to be incurred during the period for which the

  6  assessment is made.

  7         5.  Provide for any additional matters at the

  8  discretion of the board.

  9         (e)  The board shall:

10         1.  Recommend to the department market conduct

11  requirements and other requirements for carriers and agents,

12  including requirements relating to:

13         a.  Registration by each carrier with the department of

14  its intention to be a small employer carrier under this

15  section;

16         b.  Publication by the department of a list of all

17  small employer carriers, including a requirement applicable to

18  agents and carriers that a health benefit plan may not be sold

19  by a carrier that is not identified as a small employer

20  carrier;

21         c.  The availability of a broadly publicized, toll-free

22  telephone number for access by small employers to information

23  concerning this section;

24         d.  Periodic reports by carriers and agents concerning

25  health benefit plans issued; and

26         e.  Methods concerning periodic demonstration by small

27  employer carriers and agents that they are marketing or

28  issuing health benefit plans to small employers.

29         2.  By January 1, 1995, the board shall conduct a study

30  of the effectiveness of this section and may recommend, to the

31  department, improvements to achieve greater rate stability,

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  1  accessibility, and affordability in the small employer

  2  marketplace.

  3         (f)  The program has the general powers and authority

  4  granted under the laws of this state to insurance companies

  5  and health maintenance organizations licensed to transact

  6  business, except the power to issue health benefit plans

  7  directly to groups or individuals.  In addition thereto, the

  8  program has specific authority to:

  9         1.  Enter into contracts as necessary or proper to

10  carry out the provisions and purposes of this act, including

11  the authority to enter into contracts with similar programs of

12  other states for the joint performance of common functions or

13  with persons or other organizations for the performance of

14  administrative functions.

15         2.  Sue or be sued, including taking any legal action

16  necessary or proper for recovering any assessments and

17  penalties for, on behalf of, or against the program or any

18  carrier.

19         3.  Take any legal action necessary to avoid the

20  payment of improper claims against the program.

21         4.  Issue reinsurance policies, in accordance with the

22  requirements of this act.

23         5.  Establish rules, conditions, and procedures for

24  reinsurance risks under the program participation.

25         6.  Establish actuarial functions as appropriate for

26  the operation of the program.

27         7.  Assess participating carriers in accordance with

28  paragraph (j), and make advance interim assessments as may be

29  reasonable and necessary for organizational and interim

30  operating expenses.  Interim assessments shall be credited as

31

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  1  offsets against any regular assessments due following the

  2  close of the calendar year.

  3         8.  Appoint appropriate legal, actuarial, and other

  4  committees as necessary to provide technical assistance in the

  5  operation of the program, and in any other function within the

  6  authority of the program.

  7         9.  Borrow money to effect the purposes of the program.

  8  Any notes or other evidences of indebtedness of the program

  9  which are not in default constitute legal investments for

10  carriers and may be carried as admitted assets.

11         10.  To the extent necessary, increase the $5,000

12  deductible reinsurance requirement to adjust for the effects

13  of inflation.

14         (g)  A reinsuring carrier may reinsure with the program

15  coverage of an eligible employee of a small employer, or any

16  dependent of such an employee, subject to each of the

17  following provisions:

18         1.  With respect to a standard and basic health care

19  plan, the program must reinsure the level of coverage

20  provided; and, with respect to any other plan, the program

21  must reinsure the coverage up to, but not exceeding, the level

22  of coverage provided under the standard and basic health care

23  plan.

24         2.  Except in the case of a late enrollee, a reinsuring

25  carrier may reinsure an eligible employee or dependent within

26  60 days after the commencement of the coverage of the small

27  employer. A newly employed eligible employee or dependent of a

28  small employer may be reinsured within 60 days after the

29  commencement of his or her coverage.

30         3.  A small employer carrier may reinsure an entire

31  employer group within 60 days after the commencement of the

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  1  group's coverage under the plan. The carrier may choose to

  2  reinsure newly eligible employees and dependents of the

  3  reinsured group pursuant to subparagraph 1.

  4         4.  The program may not reimburse a participating

  5  carrier with respect to the claims of a reinsured employee or

  6  dependent until the carrier has paid incurred claims of at

  7  least $5,000 in a calendar year for benefits covered by the

  8  program.  In addition, the reinsuring carrier shall be

  9  responsible for 10 percent of the next $50,000 and 5 percent

10  of the next $100,000 of incurred claims during a calendar year

11  and the program shall reinsure the remainder.

12         5.  The board annually shall adjust the initial level

13  of claims and the maximum limit to be retained by the carrier

14  to reflect increases in costs and utilization within the

15  standard market for health benefit plans within the state. The

16  adjustment shall not be less than the annual change in the

17  medical component of the "Consumer Price Index for All Urban

18  Consumers" of the Bureau of Labor Statistics of the Department

19  of Labor, unless the board proposes and the department

20  approves a lower adjustment factor.

21         6.  A small employer carrier may terminate reinsurance

22  for all reinsured employees or dependents on any plan

23  anniversary.

24         7.  The premium rate charged for reinsurance by the

25  program to a health maintenance organization that is approved

26  by the Secretary of Health and Human Services as a federally

27  qualified health maintenance organization pursuant to 42

28  U.S.C. s. 300e(c)(2)(A) and that, as such, is subject to

29  requirements that limit the amount of risk that may be ceded

30  to the program, which requirements are more restrictive than

31  subparagraph 4., shall be reduced by an amount equal to that

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  1  portion of the risk, if any, which exceeds the amount set

  2  forth in subparagraph 4. which may not be ceded to the

  3  program.

  4         8.  The board may consider adjustments to the premium

  5  rates charged for reinsurance by the program for carriers that

  6  use effective cost containment measures, including high-cost

  7  case management, as defined by the board.

  8         9.  A reinsuring carrier shall apply its

  9  case-management and claims-handling techniques, including, but

10  not limited to, utilization review, individual case

11  management, preferred provider provisions, other managed care

12  provisions or methods of operation, consistently with both

13  reinsured business and nonreinsured business.

14         (h)1.  The board, as part of the plan of operation,

15  shall establish a methodology for determining premium rates to

16  be charged by the program for reinsuring small employers and

17  individuals pursuant to this section.  The methodology shall

18  include a system for classification of small employers that

19  reflects the types of case characteristics commonly used by

20  small employer carriers in the state.  The methodology shall

21  provide for the development of basic reinsurance premium

22  rates, which shall be multiplied by the factors set for them

23  in this paragraph to determine the premium rates for the

24  program. The basic reinsurance premium rates shall be

25  established by the board, subject to the approval of the

26  commission department, and shall be set at levels which

27  reasonably approximate gross premiums charged to small

28  employers by small employer carriers for health benefit plans

29  with benefits similar to the standard and basic health benefit

30  plan.  The premium rates set by the board may vary by

31  geographical area, as determined under this section, to

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  1  reflect differences in cost.  The multiplying factors must be

  2  established as follows:

  3         a.  The entire group may be reinsured for a rate that

  4  is 1.5 times the rate established by the board.

  5         b.  An eligible employee or dependent may be reinsured

  6  for a rate that is 5 times the rate established by the board.

  7         2.  The board periodically shall review the methodology

  8  established, including the system of classification and any

  9  rating factors, to assure that it reasonably reflects the

10  claims experience of the program.  The board may propose

11  changes to the rates which shall be subject to the approval of

12  the commission department.

13         (i)  If a health benefit plan for a small employer

14  issued in accordance with this subsection is entirely or

15  partially reinsured with the program, the premium charged to

16  the small employer for any rating period for the coverage

17  issued must be consistent with the requirements relating to

18  premium rates set forth in s. 627.4106.

19         (j)1.  Before March 1 of each calendar year, the board

20  shall determine and report to the department the program net

21  loss for the previous year, including administrative expenses

22  for that year, and the incurred losses for the year, taking

23  into account investment income and other appropriate gains and

24  losses.

25         2.  Any net loss for the year shall be recouped by

26  assessment of the carriers, as follows:

27         a.  The operating losses of the program shall be

28  assessed in the following order subject to the specified

29  limitations.  The first tier of assessments shall be made

30  against reinsuring carriers in an amount which shall not

31  exceed 5 percent of each reinsuring carrier's premiums from

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  1  health benefit plans covering small employers.  If such

  2  assessments have been collected and additional moneys are

  3  needed, the board shall make a second tier of assessments in

  4  an amount which shall not exceed 0.5 percent of each carrier's

  5  health benefit plan premiums.  Except as provided in paragraph

  6  (n), risk-assuming carriers are exempt from all assessments

  7  authorized pursuant to this section.  The amount paid by a

  8  reinsuring carrier for the first tier of assessments shall be

  9  credited against any additional assessments made.

10         b.  The board shall equitably assess carriers for

11  operating losses of the plan based on market share.  The board

12  shall annually assess each carrier a portion of the operating

13  losses of the plan.  The first tier of assessments shall be

14  determined by multiplying the operating losses by a fraction,

15  the numerator of which equals the reinsuring carrier's earned

16  premium pertaining to direct writings of small employer health

17  benefit plans in the state during the calendar year for which

18  the assessment is levied, and the denominator of which equals

19  the total of all such premiums earned by reinsuring carriers

20  in the state during that calendar year. The second tier of

21  assessments shall be based on the premiums that all carriers,

22  except risk-assuming carriers, earned on all health benefit

23  plans written in this state. The board may levy interim

24  assessments against carriers to ensure the financial ability

25  of the plan to cover claims expenses and administrative

26  expenses paid or estimated to be paid in the operation of the

27  plan for the calendar year prior to the association's

28  anticipated receipt of annual assessments for that calendar

29  year.  Any interim assessment is due and payable within 30

30  days after receipt by a carrier of the interim assessment

31  notice. Interim assessment payments shall be credited against

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  1  the carrier's annual assessment.  Health benefit plan premiums

  2  and benefits paid by a carrier that are less than an amount

  3  determined by the board to justify the cost of collection may

  4  not be considered for purposes of determining assessments.

  5         c.  Subject to the approval of the department, the

  6  board shall make an adjustment to the assessment formula for

  7  reinsuring carriers that are approved as federally qualified

  8  health maintenance organizations by the Secretary of Health

  9  and Human Services pursuant to 42 U.S.C. s. 300e(c)(2)(A) to

10  the extent, if any, that restrictions are placed on them that

11  are not imposed on other small employer carriers.

12         3.  Before March 1 of each year, the board shall

13  determine and file with the department an estimate of the

14  assessments needed to fund the losses incurred by the program

15  in the previous calendar year.

16         4.  If the board determines that the assessments needed

17  to fund the losses incurred by the program in the previous

18  calendar year will exceed the amount specified in subparagraph

19  2., the board shall evaluate the operation of the program and

20  report its findings, including any recommendations for changes

21  to the plan of operation, to the department within 90 days

22  following the end of the calendar year in which the losses

23  were incurred.  The evaluation shall include an estimate of

24  future assessments, the administrative costs of the program,

25  the appropriateness of the premiums charged and the level of

26  carrier retention under the program, and the costs of coverage

27  for small employers. If the board fails to file a report with

28  the department within 90 days following the end of the

29  applicable calendar year, the department may evaluate the

30  operations of the program and implement such amendments to the

31

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  1  plan of operation the department deems necessary to reduce

  2  future losses and assessments.

  3         5.  If assessments exceed the amount of the actual

  4  losses and administrative expenses of the program, the excess

  5  shall be held as interest and used by the board to offset

  6  future losses or to reduce program premiums. As used in this

  7  paragraph, the term "future losses" includes reserves for

  8  incurred but not reported claims.

  9         6.  Each carrier's proportion of the assessment shall

10  be determined annually by the board, based on annual

11  statements and other reports considered necessary by the board

12  and filed by the carriers with the board.

13         7.  Provision shall be made in the plan of operation

14  for the imposition of an interest penalty for late payment of

15  an assessment.

16         8.  A carrier may seek, from the commissioner, a

17  deferment, in whole or in part, from any assessment made by

18  the board.  The department may defer, in whole or in part, the

19  assessment of a carrier if, in the opinion of the department,

20  the payment of the assessment would place the carrier in a

21  financially impaired condition.  If an assessment against a

22  carrier is deferred, in whole or in part, the amount by which

23  the assessment is deferred may be assessed against the other

24  carriers in a manner consistent with the basis for assessment

25  set forth in this section. The carrier receiving such

26  deferment remains liable to the program for the amount

27  deferred and is prohibited from reinsuring any individuals or

28  groups in the program if it fails to pay assessments.

29         (k)  Neither the participation in the program as

30  reinsuring carriers, the establishment of rates, forms, or

31  procedures, nor any other joint or collective action required

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  1  by this act, may be the basis of any legal action, criminal or

  2  civil liability, or penalty against the program or any of its

  3  carriers either jointly or separately.

  4         (l)  The board, as part of the plan of operation, shall

  5  develop standards setting forth the manner and levels of

  6  compensation to be paid to agents for the sale of basic and

  7  standard health benefit plans.  In establishing such

  8  standards, the board shall take into consideration the need to

  9  assure the broad availability of coverages, the objectives of

10  the program, the time and effort expended in placing the

11  coverage, the need to provide ongoing service to the small

12  employer, the levels of compensation currently used in the

13  industry, and the overall costs of coverage to small employers

14  selecting these plans.

15         (m)  The board shall monitor compliance with this

16  section, including the market conduct of small employer

17  carriers, and shall report to the department any unfair trade

18  practices and misleading or unfair conduct by a small employer

19  carrier that has been reported to the board by agents,

20  consumers, or any other person. The department shall

21  investigate all reports and, upon a finding of noncompliance

22  with this section or of unfair or misleading practices, shall

23  take action against the small employer carrier as permitted

24  under the insurance code or chapter 641.  The board is not

25  given investigatory or regulatory powers, but must forward all

26  reports of cases or abuse or misrepresentation to the

27  department.

28         (n)  Notwithstanding paragraph (j), the administrative

29  expenses of the program shall be recouped by assessment of

30  risk-assuming carriers and reinsuring carriers and such

31  amounts shall not be considered part of the operating losses

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  1  of the plan for the purposes of this paragraph.  Each

  2  carrier's portion of such administrative expenses shall be

  3  determined by multiplying the total of such administrative

  4  expenses by a fraction, the numerator of which equals the

  5  carrier's earned premium pertaining to direct writing of small

  6  employer health benefit plans in the state during the calendar

  7  year for which the assessment is levied, and the denominator

  8  of which equals the total of such premiums earned by all

  9  carriers in the state during such calendar year.

10         (12)  STANDARD, BASIC, AND LIMITED HEALTH BENEFIT

11  PLANS.--

12         (a)1.  By May 15, 1993, the commissioner shall appoint

13  a health benefit plan committee composed of four

14  representatives of carriers which shall include at least two

15  representatives of HMOs, at least one of which is a staff

16  model HMO, two representatives of agents, four representatives

17  of small employers, and one employee of a small employer.  The

18  carrier members shall be selected from a list of individuals

19  recommended by the board.  The commissioner may require the

20  board to submit additional recommendations of individuals for

21  appointment.  As alliances are established under s. 408.702,

22  each alliance shall also appoint an additional member to the

23  committee.

24         2.  The committee shall develop changes to the form and

25  level of coverages for the standard health benefit plan and

26  the basic health benefit plan, and shall submit the forms, and

27  levels of coverages to the department by September 30, 1993.

28  The department must approve such forms and levels of coverages

29  by November 30, 1993, and may return the submissions to the

30  committee for modification on a schedule that allows the

31  department to grant final approval by November 30, 1993.

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  1         3.  The plans shall comply with all of the requirements

  2  of this subsection.

  3         4.  The plans must be filed with and approved by the

  4  department prior to issuance or delivery by any small employer

  5  carrier.

  6         5.  After approval of the revised health benefit plans,

  7  if the department determines that modifications to a plan

  8  might be appropriate, the commissioner shall appoint a new

  9  health benefit plan committee in the manner provided in

10  subparagraph 1. to submit recommended modifications to the

11  department for approval.

12         (b)1.  Each small employer carrier issuing new health

13  benefit plans shall offer to any small employer, upon request,

14  a standard health benefit plan and a basic health benefit plan

15  that meets the criteria set forth in this section.

16         2.  For purposes of this subsection, the terms

17  "standard health benefit plan" and "basic health benefit plan"

18  mean policies or contracts that a small employer carrier

19  offers to eligible small employers that contain:

20         a.  An exclusion for services that are not medically

21  necessary or that are not covered preventive health services;

22  and

23         b.  A procedure for preauthorization by the small

24  employer carrier, or its designees.

25         3.  A small employer carrier may include the following

26  managed care provisions in the policy or contract to control

27  costs:

28         a.  A preferred provider arrangement or exclusive

29  provider organization or any combination thereof, in which a

30  small employer carrier enters into a written agreement with

31  the provider to provide services at specified levels of

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  1  reimbursement or to provide reimbursement to specified

  2  providers. Any such written agreement between a provider and a

  3  small employer carrier must contain a provision under which

  4  the parties agree that the insured individual or covered

  5  member has no obligation to make payment for any medical

  6  service rendered by the provider which is determined not to be

  7  medically necessary.  A carrier may use preferred provider

  8  arrangements or exclusive provider arrangements to the same

  9  extent as allowed in group products that are not issued to

10  small employers.

11         b.  A procedure for utilization review by the small

12  employer carrier or its designees.

13

14  This subparagraph does not prohibit a small employer carrier

15  from including in its policy or contract additional managed

16  care and cost containment provisions, subject to the approval

17  of the department, which have potential for controlling costs

18  in a manner that does not result in inequitable treatment of

19  insureds or subscribers.  The carrier may use such provisions

20  to the same extent as authorized for group products that are

21  not issued to small employers.

22         4.  The standard health benefit plan shall include:

23         a.  Coverage for inpatient hospitalization;

24         b.  Coverage for outpatient services;

25         c.  Coverage for newborn children pursuant to s.

26  627.6575;

27         d.  Coverage for child care supervision services

28  pursuant to s. 627.6579;

29         e.  Coverage for adopted children upon placement in the

30  residence pursuant to s. 627.6578;

31         f.  Coverage for mammograms pursuant to s. 627.6613;

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  1         g.  Coverage for handicapped children pursuant to s.

  2  627.6615;

  3         h.  Emergency or urgent care out of the geographic

  4  service area; and

  5         i.  Coverage for services provided by a hospice

  6  licensed under s. 400.602 in cases where such coverage would

  7  be the most appropriate and the most cost-effective method for

  8  treating a covered illness.

  9         5.  The standard health benefit plan and the basic

10  health benefit plan may include a schedule of benefit

11  limitations for specified services and procedures.  If the

12  committee develops such a schedule of benefits limitation for

13  the standard health benefit plan or the basic health benefit

14  plan, a small employer carrier offering the plan must offer

15  the employer an option for increasing the benefit schedule

16  amounts by 4 percent annually.

17         6.  The basic health benefit plan shall include all of

18  the benefits specified in subparagraph 4.; however, the basic

19  health benefit plan shall place additional restrictions on the

20  benefits and utilization and may also impose additional cost

21  containment measures.

22         7.  Sections 627.419(2), (3), and (4), 627.6574,

23  627.6612, 627.66121, 627.66122, 627.6616, 627.6618, 627.668,

24  and 627.66911 apply to the standard health benefit plan and to

25  the basic health benefit plan. However, notwithstanding said

26  provisions, the plans may specify limits on the number of

27  authorized treatments, if such limits are reasonable and do

28  not discriminate against any type of provider.

29         8.  Each small employer carrier that provides for

30  inpatient and outpatient services by allopathic hospitals may

31  provide as an option of the insured similar inpatient and

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  1  outpatient services by hospitals accredited by the American

  2  Osteopathic Association when such services are available and

  3  the osteopathic hospital agrees to provide the service.

  4         (c)  If a small employer rejects, in writing, the

  5  standard health benefit plan and the basic health benefit

  6  plan, the small employer carrier may offer the small employer

  7  a limited benefit policy or contract.

  8         (d)1.  Upon offering coverage under a standard health

  9  benefit plan, a basic health benefit plan, or a limited

10  benefit policy or contract for any small employer, the small

11  employer carrier shall provide such employer group with a

12  written statement that contains, at a minimum:

13         a.  An explanation of those mandated benefits and

14  providers that are not covered by the policy or contract;

15         b.  An explanation of the managed care and cost control

16  features of the policy or contract, along with all appropriate

17  mailing addresses and telephone numbers to be used by insureds

18  in seeking information or authorization; and

19         c.  An explanation of the primary and preventive care

20  features of the policy or contract.

21

22  Such disclosure statement must be presented in a clear and

23  understandable form and format and must be separate from the

24  policy or certificate or evidence of coverage provided to the

25  employer group.

26         2.  Before a small employer carrier issues a standard

27  health benefit plan, a basic health benefit plan, or a limited

28  benefit policy or contract, it must obtain from the

29  prospective policyholder a signed written statement in which

30  the prospective policyholder:

31

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  1         a.  Certifies as to eligibility for coverage under the

  2  standard health benefit plan, basic health benefit plan, or

  3  limited benefit policy or contract;

  4         b.  Acknowledges the limited nature of the coverage and

  5  an understanding of the managed care and cost control features

  6  of the policy or contract;

  7         c.  Acknowledges that if misrepresentations are made

  8  regarding eligibility for coverage under a standard health

  9  benefit plan, a basic health benefit plan, or a limited

10  benefit policy or contract, the person making such

11  misrepresentations forfeits coverage provided by the policy or

12  contract; and

13         d.  If a limited plan is requested, acknowledges that

14  the prospective policyholder had been offered, at the time of

15  application for the insurance policy or contract, the

16  opportunity to purchase any health benefit plan offered by the

17  carrier and that the prospective policyholder had rejected

18  that coverage.

19

20  A copy of such written statement shall be provided to the

21  prospective policyholder no later than at the time of delivery

22  of the policy or contract, and the original of such written

23  statement shall be retained in the files of the small employer

24  carrier for the period of time that the policy or contract

25  remains in effect or for 5 years, whichever period is longer.

26         3.  Any material statement made by an applicant for

27  coverage under a health benefit plan which falsely certifies

28  as to the applicant's eligibility for coverage serves as the

29  basis for terminating coverage under the policy or contract.

30         4.  Each marketing communication that is intended to be

31  used in the marketing of a health benefit plan in this state

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  1  must be submitted for review by the department prior to use

  2  and must contain the disclosures stated in this subsection.

  3         (e)1.  A small employer carrier may not use any policy,

  4  contract, or form, or rate under this section, including

  5  applications, enrollment forms, policies, contracts,

  6  certificates, evidences of coverage, riders, amendments,

  7  endorsements, and disclosure forms, until the carrier insurer

  8  has filed it with the department and the department has

  9  approved it under ss. 627.410, 627.4106, and 627.411.

10         2.  A small employer carrier may not use any rate until

11  the carrier has filed it with the commission and the

12  commission has approved it under ss. 627.410 and 627.411. A

13  small employer carrier must file with the department by

14  December 1, 1993, the standard and basic health benefit plan

15  that it intends to initially use to comply with this

16  subsection during calendar year 1994, together with the rates

17  therefor, and the department must approve the submissions by

18  January 1, 1994.

19         (16)  RULEMAKING AUTHORITY.--The department may adopt

20  rules to administer this section, including rules governing

21  compliance by small employer carriers and small employers,

22  except for rules related to rates. The commission may adopt

23  rules to administer this section related to rates.

24         Section 70.  Subsections (2), (4), and (7) of section

25  627.6745, Florida Statutes, are amended to read:

26         627.6745  Loss ratio standards; public rate hearings.--

27         (2)  Each entity providing Medicare supplement policies

28  or certificates in this state shall file annually its rates,

29  rating schedules, and supporting documentation with the

30  commission demonstrating that it is in compliance with the

31  applicable loss ratio standards of this code.  The filing of

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  1  rates and rating schedules shall demonstrate that the actual

  2  and expected losses in relation to premiums comply with the

  3  requirements of this section.

  4         (4)  Each insurer providing Medicare supplement

  5  insurance to residents of this state shall annually submit to

  6  the commission department information on actual loss ratios on

  7  forms prescribed by the National Association of Insurance

  8  Commissioners pursuant to the Omnibus Budget Reconciliation

  9  Act of 1990 (Pub. L. No. 101-508).

10         (7)  The commission department shall adopt a written

11  policy statement regarding the holding of public hearings

12  prior to approval of any premium increases for Medicare

13  supplement insurance policies.

14         Section 71.  Section 627.678, Florida Statutes, is

15  amended to read:

16         627.678  Rules.--

17         (1)  For the effective protection of the public

18  interest, the department shall have full power and authority

19  to adopt, promulgate, and enforce separate rules pertaining to

20  issuance and use of each type of credit insurance defined in

21  s. 627.677, except for matters related to rates. The

22  commission may adopt rules related to rates for credit life

23  and disability insurance consistent with the provisions of

24  this part.

25         (2)  Rules made pursuant to this section shall be

26  principally designed, and shall be promulgated with the

27  purpose of protecting the borrower from excessive charges by

28  or collected through the lender for insurance in relation to

29  the amount of the loan, to avoid duplication or overlapping of

30  insurance coverage and to avoid loss of the borrower's funds

31  by short-rate cancellation or termination of such insurance.

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  1  However, nothing in such rules shall be construed to authorize

  2  the department to prohibit operation of normal dividend

  3  distributions under participating insurance contracts.

  4         Section 72.  Section 627.6785, Florida Statutes, is

  5  amended to read:

  6         627.6785  Filing of rates with department.--

  7         (1)  Credit disability and credit life insurers shall

  8  file with the commission department a copy of all rates and

  9  any rate changes used in this state, subject to the procedures

10  specified in s. 627.410.

11         (2)  No credit disability rate and no credit life rate

12  shall exceed the maximum allowable rate promulgated by the

13  commission department.

14         (3)  No credit life rate or credit disability rate

15  shall be deemed to comply with the allowable rate criteria

16  contained in this part if the benefits provided are not

17  reasonable in relation to the premium charged or if the rate

18  it contains age restrictions which make ineligible for credit

19  life those debtors or lessors 70 years of age or under, or for

20  credit disability those debtors or lessors 65 years of age or

21  under, at the time the indebtedness is incurred. However, for

22  credit life, the coverage shall be provided, at a minimum,

23  until the earlier of the maturity date of the loan or the loan

24  anniversary at age 71, and, for credit disability, the

25  coverage shall be provided, at a minimum, until the earlier of

26  the maturity date of the loan or the loan anniversary at age

27  66.

28         Section 73.  Section 627.682, Florida Statutes, is

29  amended to read:

30         627.682  Filing, approval of forms.--All forms of

31  policies, certificates of insurance, statements of insurance,

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  1  applications for insurance, binders, endorsements, and riders

  2  of credit life or disability insurance delivered or issued for

  3  delivery in this state shall be filed with and approved by the

  4  department before use as provided in ss. 627.410 and 627.411.

  5  In addition to grounds as specified in s. 627.411, the

  6  department, upon compliance with the procedures set forth in

  7  s. 627.410, shall disapprove any such form and may withdraw

  8  any previous approval thereof if the benefits provided therein

  9  are not reasonable in relation to the premiums charged, or if

10  it contains provisions that which are unjust, unfair,

11  inequitable, misleading, or deceptive or that which encourage

12  misrepresentation of such policy.

13         Section 74.  Subsection (9) of section 627.727, Florida

14  Statutes, is amended to read:

15         627.727  Motor vehicle insurance; uninsured and

16  underinsured vehicle coverage; insolvent insurer protection.--

17         (9)  Insurers may offer policies of uninsured motorist

18  coverage containing policy provisions, in language approved by

19  the department, establishing that if the insured accepts this

20  offer:

21         (a)  The coverage provided as to two or more motor

22  vehicles shall not be added together to determine the limit of

23  insurance coverage available to an injured person for any one

24  accident, except as provided in paragraph (c).

25         (b)  If at the time of the accident the injured person

26  is occupying a motor vehicle, the uninsured motorist coverage

27  available to her or him is the coverage available as to that

28  motor vehicle.

29         (c)  If the injured person is occupying a motor vehicle

30  which is not owned by her or him or by a family member

31  residing with her or him, the injured person is entitled to

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  1  the highest limits of uninsured motorist coverage afforded for

  2  any one vehicle as to which she or he is a named insured or

  3  insured family member.  Such coverage shall be excess over the

  4  coverage on the vehicle the injured person is occupying.

  5         (d)  The uninsured motorist coverage provided by the

  6  policy does not apply to the named insured or family members

  7  residing in her or his household who are injured while

  8  occupying any vehicle owned by such insureds for which

  9  uninsured motorist coverage was not purchased.

10         (e)  If, at the time of the accident the injured person

11  is not occupying a motor vehicle, she or he is entitled to

12  select any one limit of uninsured motorist coverage for any

13  one vehicle afforded by a policy under which she or he is

14  insured as a named insured or as an insured resident of the

15  named insured's household.

16

17  In connection with the offer authorized by this subsection,

18  insurers shall inform the named insured, applicant, or lessee,

19  on a form approved by the department, of the limitations

20  imposed under this subsection and that such coverage is an

21  alternative to coverage without such limitations.  If this

22  form is signed by a named insured, applicant, or lessee, it

23  shall be conclusively presumed that there was an informed,

24  knowing acceptance of such limitations. When the named

25  insured, applicant, or lessee has initially accepted such

26  limitations, such acceptance shall apply to any policy which

27  renews, extends, changes, supersedes, or replaces an existing

28  policy unless the named insured requests deletion of such

29  limitations and pays the appropriate premium for such

30  coverage.  Any insurer who provides coverage which includes

31  the limitations provided in this subsection shall file revised

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  1  premium rates with the commission department for such

  2  uninsured motorist coverage to take effect prior to initially

  3  providing such coverage.  The revised rates shall reflect the

  4  anticipated reduction in loss costs attributable to such

  5  limitations but shall in any event reflect a reduction in the

  6  uninsured motorist coverage premium of at least 20 percent for

  7  policies with such limitations.  Such filing shall not

  8  increase the rates for coverage which does not contain the

  9  limitations authorized by this subsection, and such rates

10  shall remain in effect until the insurer demonstrates the need

11  for a change in uninsured motorist rates pursuant to s.

12  627.0651.

13         Section 75.  Subsection (1) of section 627.780, Florida

14  Statutes, is amended to read:

15         627.780  Illegal dealings in risk premium.--

16         (1)  A person may not knowingly quote, charge, accept,

17  collect, or receive a premium for title insurance other than

18  the premium adopted by the commission department.

19         Section 76.  Section 627.782, Florida Statutes, is

20  amended to read:

21         627.782  Adoption of rates.--

22         (1)  Subject to the rating provisions of this code, the

23  commission department must adopt a rule specifying the premium

24  to be charged in this state by title insurers for the

25  respective types of title insurance contracts and, for

26  policies issued through agents or agencies, the percentage of

27  such premium required to be retained by the title insurer

28  which shall not be less than 30 percent. However, in a

29  transaction subject to the Real Estate Settlement Procedures

30  Act of 1974, 12 U.S.C. ss. 2601 et seq., as amended, no

31  portion of the premium attributable to providing a primary

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  1  title service shall be paid to or retained by any person who

  2  does not actually perform or is not liable for the performance

  3  of such service. The commission department may, by rule,

  4  establish limitations on related title services charges made

  5  in addition to the premium based upon the expenses associated

  6  with the services rendered and other relevant factors.

  7         (2)  In adopting premium rates, the commission

  8  department must give due consideration to the following:

  9         (a)  The title insurers' loss experience and

10  prospective loss experience under closing protection letters

11  and policy liabilities.

12         (b)  A reasonable margin for underwriting profit and

13  contingencies, including contingent liability under s.

14  627.7865, sufficient to allow title insurers, agents, and

15  agencies to earn a rate of return on their capital that will

16  attract and retain adequate capital investment in the title

17  insurance business and maintain an efficient title insurance

18  delivery system.

19         (c)  Past expenses and prospective expenses for

20  administration and handling of risks.

21         (d)  Liability for defalcation.

22         (e)  Other relevant factors.

23         (3)  Rates may be grouped by classification or schedule

24  and may differ as to class of risk assumed.

25         (4)  Rates may not be excessive, inadequate, or

26  unfairly discriminatory.

27         (5)  The premium applies to each $100 of insurance

28  issued to an insured.

29         (6)  The premium rates apply throughout this state.

30         (7)  The commission department shall, in accordance

31  with the standards provided in subsection (2), review the

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  1  premium as needed, but not less frequently than once every 3

  2  years, and shall, based upon the review required by this

  3  subsection, revise the premium if the results of the review so

  4  warrant.

  5         (8)  The commission department may, by rule, require

  6  licensees under this part to annually submit statistical

  7  information, including loss and expense data, as the

  8  department determines to be necessary to analyze premium

  9  rates, retention rates, and the condition of the title

10  insurance industry.

11         Section 77.  Section 627.7825, Florida Statutes, is

12  amended to read:

13         627.7825  Alternative rate adoption.--Notwithstanding

14  s. 627.782(1) and (7), the premium rates to be charged by

15  title insurers in this state from July 1, 1999, through June

16  30, 2002, for title insurance contracts shall be as set forth

17  in this section. The rules related to premium rates for title

18  insurance, including endorsements, adopted by the department

19  and in effect on April 1, 1999, that do not conflict with the

20  provisions of this section shall remain in effect until June

21  30, 2002.  The commission department shall not grant a rate

22  deviation pursuant to s. 627.783 for the premium rates

23  established in this section and in department rules in effect

24  on April 1, 1999, which that do not conflict with this

25  section.

26         (1)  ORIGINAL TITLE INSURANCE RATES.--

27         (a)  For owner and leasehold title insurance:

28         1.  The premium for the original owner's or for

29  leasehold insurance shall be:

30

31

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  1                                             Per        Minimum

  2                                             Thousand   Insurer

  3                                                        Retention

  4  From $0 to $100,000 of liability written   $5.75      30%

  5  From $100,000 to $1 million, add           $5.00      30%

  6  Over $1 million and up to $5 million, add  $2.50      35%

  7  Over $5 million and up to $10 million, add $2.25      40%

  8  Over $10 million, add                      $2.00      40%

  9

10  The minimum premium for all conveyances except multiple

11  conveyances shall be $100. The minimum premium for multiple

12  conveyances on the same property shall be $60.

13         2.  In all cases, the owner's policy shall be issued

14  for the full insurable value of the premises.

15         (b)  For mortgage title insurance:

16         1.  The premium for the original mortgage title

17  insurance shall be:

18

19                                             Per        Minimum

20                                             Thousand   Insurer

21                                                        Retention

22  From $0 to $100,000 of liability written   $5.75      30%

23  From $100,000 to $1 million, add           $5.00      30%

24  Over $1 million and up to $5 million, add  $2.50      35%

25  Over $5 million and up to $10 million, add $2.25      40%

26  Over $10 million, add                      $2.00      40%

27

28  The minimum premium for all conveyances except multiple

29  conveyances shall be $100. The minimum premium for multiple

30  conveyances on the same property shall be $60.

31

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  1         2.  A mortgage title insurance policy shall not be

  2  issued for an amount less than the full principal debt. A

  3  policy may, however, be issued for an amount up to 25 percent

  4  in excess of the principal debt to cover interest and

  5  foreclosure costs.

  6         (2)  REISSUE RATES.--

  7         (a)  The reissue premium charge for owner's, mortgage,

  8  and leasehold title insurance policies shall be:

  9

10                                             Per Thousand

11  Up to $100,000 of liability written        $3.30

12  Over $100,000 and up to $1 million, add    $3.00

13  Over $1 million and up to $10 million, add $2.00

14  Over $10 million, add                      $1.50

15

16  The minimum premium shall be $100.

17         (b)  Provided a previous owner's policy was issued

18  insuring the seller or the mortgagor in the current

19  transaction and that both the reissuing agent and the

20  reissuing underwriter retain for their respective files copies

21  of the prior owner's policy or policies, the reissue premium

22  rates in paragraph (a) shall apply to:

23         1.  Policies on real property which is unimproved

24  except for roads, bridges, drainage facilities, and utilities

25  if the current owner's title has been insured prior to the

26  application for a new policy;

27         2.  Policies issued with an effective date of less than

28  3 years after the effective date of the policy insuring the

29  seller or mortgagor in the current transaction; or

30

31

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  1         3.  Mortgage policies issued on refinancing of property

  2  insured by an original owner's policy which insured the title

  3  of the current mortgagor.

  4         (c)  Any amount of new insurance, in the aggregate, in

  5  excess of the amount under the previous policy shall be

  6  computed at the original owner's or leasehold rates, as

  7  provided in subsection (1).

  8         (3)  NEW HOME PURCHASE DISCOUNT.--Provided the seller

  9  has not leased or occupied the premises, the original premium

10  for a policy on the first sale of residential property with a

11  one to four family improvement that is granted a certificate

12  of occupancy shall be discounted by the amount of premium paid

13  for any prior loan policies insuring the lien of a mortgage

14  executed by the seller on the premises. In the case of prior

15  loan policies insuring the lien of a mortgage on multiple

16  units or parcels, the discount shall be prorated by dividing

17  the amount of the premium paid for the prior loan policies by

18  the total number of units or parcels without regard to varying

19  unit or parcel value. The minimum new home purchase premium

20  shall be $200. The new home purchase discount may not be

21  combined with any other reduction from original premium rates

22  provided for in this section. The insurer shall reserve for

23  unearned premiums only on the excess amount of the policy over

24  the amount of the actual or prorated amount of the prior loan

25  policy.

26         (4)  SUBSTITUTION LOANS RATES.--

27         (a)  When the same borrower and the same lender make a

28  substitution loan on the same property, the title to which was

29  insured by an insurer in connection with the previous loan,

30  the following premium rates for substitution loans shall

31  apply:

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  1

  2  Age of Previous Loan    Premium Rates

  3  3 years or under        30 percent of the original rates

  4  From 3 to 4 years       40 percent of the original rates

  5  From 4 to 5 years       50 percent of the original rates

  6  From 5 to 10 years      60 percent of the original rates

  7  Over 10 years           100 percent of original rates

  8

  9  The minimum premium for substitution loan rates shall be $100.

10         (b)  At the time a substitution loan is made, the

11  unpaid principal balance of the previous loan will be

12  considered the amount of insurance in force on which the

13  foregoing premium rates shall be calculated. To these rates

14  shall be added the original rates in the applicable schedules

15  for any new insurance, including any difference between the

16  unpaid principal balance of the previous loan and the amount

17  of the new loan.

18         (c)  In the case of a substitution loan of $250,000 or

19  more, when the same borrower and any lender make a

20  substitution loan on the same property, the title to which was

21  insured by an insurer in connection with the previous loan,

22  the premium for such substitution loans shall be the rates as

23  set forth in paragraphs (a) and (b).

24         Section 78.  Section 627.783, Florida Statutes, is

25  amended to read:

26         627.783  Rate deviation.--

27         (1)  A title insurer may petition the commission

28  department for an order authorizing a specific deviation from

29  the adopted premium, and a title insurer or title insurance

30  agent may petition the commission department for an order

31  authorizing and permitting a specific deviation above the

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  1  reasonable charge for related title services rendered

  2  specified in s. 627.782(1).  The petition shall be in writing

  3  and sworn to and shall set forth allegations of fact upon

  4  which the petitioner will rely, including the petitioner's

  5  reasons for requesting the deviation.  Any authorized title

  6  insurer, agent, or agency may join in the petition for like

  7  authority to deviate or may file a separate petition praying

  8  for like authority or opposing the deviation. The commission

  9  department shall rule on all such petitions simultaneously.

10         (2)  If, in the judgment of the commission department,

11  the requested deviation is not justified, the commission

12  department may enter an order denying the petition.  An order

13  granting a petition constitutes an amendment to the adopted

14  premium as to the petitioners named in the order, and is

15  subject to s. 627.782.

16         Section 79.  Section 627.793, Florida Statutes, is

17  amended to read:

18         627.793  Rulemaking authority.--The department may is

19  authorized to adopt rules implementing the provisions of this

20  part, except for those provisions related to rates. The

21  commission may adopt rules implementing the provisions of this

22  part relating to rates.

23         Section 80.  Subsection (6) of section 627.9407,

24  Florida Statutes, is amended to read:

25         627.9407  Disclosure, advertising, and performance

26  standards for long-term care insurance.--

27         (6)  LOSS RATIO AND RESERVE STANDARDS.--

28         (a)  The department shall adopt rules establishing loss

29  ratio and reserve standards for long-term-care long-term care

30  insurance policies.  The rules must contain a specific

31  reference to long-term-care long-term care insurance policies.

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  1  Such loss ratio and reserve standards shall be established at

  2  levels at which benefits are reasonable in relation to

  3  premiums and that provide for adequate reserving of the

  4  long-term-care long-term care insurance risk.

  5         (b)  The commission shall adopt rules establishing

  6  loss-ratio standards for long-term-care policies. The rules

  7  must contain a specific reference to long-term-care insurance

  8  policies. Such loss-ratio standards shall be established at

  9  levels at which benefits are reasonable in relation to

10  premiums.

11         Section 81.  Section 636.017, Florida Statutes, is

12  amended to read:

13         636.017  Rates and charges.--

14         (1)  The rates charged by any prepaid limited health

15  service organization to its subscribers shall not be

16  excessive, inadequate, or unfairly discriminatory.  The

17  commission department may require whatever information it

18  deems necessary to determine that a rate or proposed rate

19  meets the requirements of this section.

20         (2)  In determining whether a rate is in compliance

21  with subsection (1), the commission department must take into

22  consideration the limited services provided, the method in

23  which the services are provided, and the method of provider

24  payment.  This section may not be construed as authorizing the

25  commission department to establish by rule minimum loss ratios

26  for prepaid limited health service organizations' rates.

27         Section 82.  Present subsections (4) through (21) of

28  section 641.19, Florida Statutes, are redesignated as

29  subsections (5) through (22), respectively, and a new

30  subsection (4) is added to that section to read:

31         641.19  Definitions.--As used in this part, the term:

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  1         (4)  "Commission" means the Insurance Rating

  2  Commission.

  3         Section 83.  Subsections (2), (3), and (38) of section

  4  641.31, Florida Statutes, are amended to read:

  5         641.31  Health maintenance contracts.--

  6         (2)  The rates charged by any health maintenance

  7  organization to its subscribers shall not be excessive,

  8  inadequate, or unfairly discriminatory or follow a rating

  9  methodology that is inconsistent, indeterminate, or ambiguous

10  or encourages misrepresentation or misunderstanding.  The

11  commission department, in accordance with generally accepted

12  actuarial practice as applied to health maintenance

13  organizations, may define by rule what constitutes excessive,

14  inadequate, or unfairly discriminatory rates and may require

15  whatever information it deems necessary to determine that a

16  rate or proposed rate meets the requirements of this

17  subsection.

18         (3)(a)  If a health maintenance organization desires to

19  amend any contract with its subscribers or any certificate or

20  member handbook, or desires to change any basic health

21  maintenance contract, certificate, grievance procedure, or

22  member handbook form, or application form where written

23  application is required and is to be made a part of the

24  contract, or printed amendment, addendum, rider, or

25  endorsement form or form of renewal certificate, it may do so,

26  upon filing with the department the proposed change or

27  amendment.  Any proposed change shall be effective

28  immediately, subject to disapproval by the department.

29  Following receipt of notice of such disapproval or withdrawal

30  of approval, no health maintenance organization shall issue or

31

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  1  use any form disapproved by the department or as to which the

  2  department has withdrawn approval.

  3         (b)  Any change in the rate is subject to paragraph (d)

  4  and requires at least 30 days' advance written notice to the

  5  subscriber. In the case of a group member, there may be a

  6  contractual agreement with the health maintenance organization

  7  to have the employer provide the required notice to the

  8  individual members of the group.

  9         (c)  The department shall disapprove any form filed

10  under this subsection, or withdraw any previous approval

11  thereof, if the form:

12         1.  Is in any respect in violation of, or does not

13  comply with, any provision of this part or rule adopted

14  thereunder.

15         2.  Contains or incorporates by reference, where such

16  incorporation is otherwise permissible, any inconsistent,

17  ambiguous, or misleading clauses or exceptions and conditions

18  which deceptively affect the risk purported to be assumed in

19  the general coverage of the contract.

20         3.  Has any title, heading, or other indication of its

21  provisions which is misleading.

22         4.  Is printed or otherwise reproduced in such a manner

23  as to render any material provision of the form substantially

24  illegible.

25         5.  Contains provisions which are unfair, inequitable,

26  or contrary to the public policy of this state or which

27  encourage misrepresentation.

28         6.  Excludes coverage for human immunodeficiency virus

29  infection or acquired immune deficiency syndrome or contains

30  limitations in the benefits payable, or in the terms or

31  conditions of such contract, for human immunodeficiency virus

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  1  infection or acquired immune deficiency syndrome which are

  2  different than those which apply to any other sickness or

  3  medical condition.

  4         (d)  Any change in rates charged for the contract must

  5  be filed with the commission department not less than 30 days

  6  in advance of the effective date. At the expiration of such 30

  7  days, the rate filing shall be deemed approved unless prior to

  8  such time the filing has been affirmatively approved or

  9  disapproved by order of the commission department. The

10  approval of the filing by the commission department

11  constitutes a waiver of any unexpired portion of such waiting

12  period. The commission department may extend by not more than

13  an additional 15 days the period within which it may so

14  affirmatively approve or disapprove any such filing, by giving

15  notice of such extension before expiration of the initial

16  30-day period. At the expiration of any such period as so

17  extended, and in the absence of such prior affirmative

18  approval or disapproval, any such filing shall be deemed

19  approved.

20         (e)  It is not the intent of this subsection to

21  restrict unduly the right to modify rates in the exercise of

22  reasonable business judgment.

23         (38)(a)  Notwithstanding any other provision of this

24  part, a health maintenance organization that meets the

25  requirements of paragraph (b) may, through a point-of-service

26  rider to its contract providing comprehensive health care

27  services, include a point-of-service benefit. Under such a

28  rider, a subscriber or other covered person of the health

29  maintenance organization may choose, at the time of covered

30  service, a provider with whom the health maintenance

31  organization does not have a health maintenance organization

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  1  provider contract. The rider may not require a referral from

  2  the health maintenance organization for the point-of-service

  3  benefits.

  4         (b)  A health maintenance organization offering a

  5  point-of-service rider under this subsection must have a valid

  6  certificate of authority issued under the provisions of the

  7  chapter, must have been licensed under this chapter for a

  8  minimum of 3 years, and must at all times that it has riders

  9  in effect maintain a minimum surplus of $5 million.

10         (c)  Premiums paid in for the point-of-service riders

11  may not exceed 15 percent of total premiums for all health

12  plan products sold by the health maintenance organization

13  offering the rider. If the premiums paid for point-of-service

14  riders exceed 15 percent, the health maintenance organization

15  must notify the department and the commission and, once this

16  fact is known, must immediately cease offering such a rider

17  until it is in compliance with the rider premium cap.

18         (d)  Notwithstanding the limitations of deductibles and

19  copayment provisions in this part, a point-of-service rider

20  may require the subscriber to pay a reasonable copayment for

21  each visit for services provided by a noncontracted provider

22  chosen at the time of the service. The copayment by the

23  subscriber may either be a specific dollar amount or a

24  percentage of the reimbursable provider charges covered by the

25  contract and must be paid by the subscriber to the

26  noncontracted provider upon receipt of covered services. The

27  point-of-service rider may require that a reasonable annual

28  deductible for the expenses associated with the

29  point-of-service rider be met and may include a lifetime

30  maximum benefit amount. The rider must include the language

31  required by s. 627.6044 and must comply with copayment limits

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  1  described in s. 627.6471. Section 641.315(2) and (3) does not

  2  apply to a point-of-service rider authorized under this

  3  subsection.

  4         (e)  The term "point of service" may not be used by a

  5  health maintenance organization except with riders permitted

  6  under this section or with forms approved by the department in

  7  which a point-of-service product is offered with an indemnity

  8  carrier.

  9         (f)  A point-of-service rider must be filed and

10  approved under ss. 627.410 and 627.411.

11         Section 84.  Paragraph (b) of subsection (10) of

12  section 641.3903, Florida Statutes, is amended to read:

13         641.3903  Unfair methods of competition and unfair or

14  deceptive acts or practices defined.--The following are

15  defined as unfair methods of competition and unfair or

16  deceptive acts or practices:

17         (10)  ILLEGAL DEALINGS IN PREMIUMS; EXCESS OR REDUCED

18  CHARGES FOR HEALTH MAINTENANCE COVERAGE.--

19         (b)  Knowingly collecting as a premium or charge for

20  health maintenance coverage any sum in excess of or less than

21  the premium or charge applicable to health maintenance

22  coverage, in accordance with the applicable classifications

23  and rates as filed with the commission department, and as

24  specified in the health maintenance contract.

25         Section 85.  Subsection (3) of section 641.3922,

26  Florida Statutes, is amended to read:

27         641.3922  Conversion contracts; conditions.--Issuance

28  of a converted contract shall be subject to the following

29  conditions:

30         (3)  CONVERSION PREMIUM.--The premium for the converted

31  contract shall be determined in accordance with premium rates

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  1  applicable to the age and class of risk of each person to be

  2  covered under the converted contract and to the type and

  3  amount of coverage provided. However, the premium for the

  4  converted contract may not exceed 200 percent of the standard

  5  risk rate, as established by the commission department under

  6  s. 627.6675(3). The mode of payment for the converted contract

  7  shall be quarterly or more frequently at the option of the

  8  organization, unless otherwise mutually agreed upon between

  9  the subscriber and the organization.

10         Section 86.  Present subsections (2) through (11) of

11  section 641.402, Florida Statutes, are redesignated as

12  subsections (3) through (12), respectively, and a new

13  subsection (2) is added to that section to read:

14         641.402  Definitions.--As used in this part, the term:

15         (2)  "Commission" means the Insurance Rating

16  Commission.

17         Section 87.  Subsection (2) and (7) of section 641.42,

18  Florida Statutes, are amended to read:

19         641.42  Prepaid health clinic contracts.--

20         (2)  The rates charged by any clinic to its subscribers

21  shall not be excessive, inadequate, or unfairly

22  discriminatory. The commission department, in accordance with

23  generally accepted actuarial practice, may define by rule what

24  constitutes excessive, inadequate, or unfairly discriminatory

25  rates and may require whatever information the commission

26  department deems necessary to determine that a rate or

27  proposed rate meets the requirements of this subsection.

28         (7)(a)  If a clinic desires to amend any contract with

29  any of its subscribers or desires to change any rate charged

30  for the contract, the clinic may do so, upon filing with the

31

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  1  department the proposed amendment to the contract or upon

  2  filing with the commission the proposed change in rates.

  3         (b)  No prepaid health clinic contract form or

  4  application form when written application is required and is

  5  to be made a part of the policy or contract, or no printed

  6  amendment, addendum, rider, or endorsement form or form of

  7  renewal certificate, shall be delivered or issued for delivery

  8  in this state, unless the form has been filed with the

  9  department at its offices in Tallahassee by or in behalf of

10  the clinic which proposes to use such form and has been

11  approved by the department. Every such filing shall be made

12  not less than 30 days in advance of any such use or delivery.

13  At the expiration of such 30 days, the form so filed shall be

14  deemed approved unless prior to the end of the 30 days the

15  form has been affirmatively approved or disapproved by the

16  department.  The approval of any such form by the department

17  constitutes a waiver of any unexpired portion of such waiting

18  period.  The department may extend by not more than an

19  additional 15 days the period within which the department may

20  so affirmatively approve or disapprove any such form, by

21  giving notice of such extension before the expiration of the

22  initial 30-day period.  At the expiration of any such period

23  as so extended, and in the absence of such prior affirmative

24  approval or disapproval, such form shall be deemed approved.

25  The department may, for cause, withdraw a previous approval.

26  No clinic shall issue or use any form which has been

27  disapproved by the department or any form for which the

28  department has withdrawn approval.

29         (c)  The department shall disapprove any form filed

30  under this subsection, or withdraw any previous approval of

31  the form, only if the form:

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  1         1.  Is in any respect in violation of, or does not

  2  comply with, any provision of this part or rule adopted under

  3  this part.

  4         2.  Contains or incorporates by reference, where such

  5  incorporation is otherwise permissible, any inconsistent,

  6  ambiguous, or misleading clauses, or exceptions and conditions

  7  which deceptively affect the risk purported to be assumed in

  8  the general coverage of the contract.

  9         3.  Has a misleading title, misleading heading, or

10  other indication of the provisions of the form which is

11  misleading.

12         4.  Is printed or otherwise reproduced in such manner

13  as to render any material provision of the form substantially

14  illegible.

15         (8)  No rate or rate change shall be used unless the

16  rate has been filed with and approved by the commission

17  pursuant to the same procedures as provided in subsection (7).

18  The commission shall disapprove any such rate, or withdraw any

19  previous approval, only if the rate

20         5.  provides benefits that which are unreasonable in

21  relation to the rate charged or contains provisions that which

22  are unfair, inequitable, or contrary to the public policy of

23  this state or encourage misrepresentation.

24         (d)  In determining whether the benefits are reasonable

25  in relation to the rate charged, the commission department, in

26  accordance with reasonable actuarial techniques, shall

27  consider:

28         (a)1.  Past loss experience and prospective loss

29  experience.

30         (b)2.  Allocation of expenses.

31

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  1         (c)3.  Risk and contingency margins, along with

  2  justification of such margins.

  3         (d)4.  Acquisition costs.

  4         (e)5.  Other factors deemed appropriate by the

  5  commission department, based on sound actuarial techniques.

  6         Section 88.  Section 642.027, Florida Statutes, is

  7  amended to read:

  8         642.027  Premium rates.--No policy of legal expense

  9  insurance may be issued in this state unless the premium rates

10  for the insurance have been filed with and approved by the

11  commission department.  Premium rates shall be established and

12  justified in accordance with generally accepted insurance

13  principles, including, but not limited to, the experience or

14  judgment of the insurer making the rate filing or actuarial

15  computations.  The commission department may disapprove rates

16  that are excessive, inadequate, or unfairly discriminatory.

17  Rates are not unfairly discriminatory because they are

18  averaged broadly among persons insured under group, blanket,

19  or franchise policies.  The commission department may require

20  the submission of any other information reasonably necessary

21  in determining whether to approve or disapprove a filing made

22  under this section or s. 642.025.

23         Section 89.  Subsection (2) of section 648.33, Florida

24  Statutes, is amended to read:

25         648.33  Bail bond rates.--

26         (2)  It is unlawful for a bail bond agent to execute a

27  bail bond without charging a premium therefor, and the premium

28  rate may not exceed or be less than the premium rate as filed

29  with and approved by the commission department.

30         Section 90.  Effective upon this act becoming law, the

31  Governor may make appointments to the Insurance Rating

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  1  Commission pursuant to section 624.371, Florida Statutes, as

  2  created by this act, for terms of office beginning on January

  3  1, 2001.

  4         Section 91.  Effective January 1, 2001, all activities

  5  and functions of the Department of Insurance related to

  6  reviewing, approving, or establishing rates for insurers and

  7  other entities regulated by the department are transferred to

  8  the Insurance Rating Commission pursuant to a type two

  9  transfer as defined in section 20.06, Florida Statutes.

10  Effective upon this act becoming law, the Department of

11  Insurance and the Executive Office of the Governor shall

12  jointly prepare a budget amendment pursuant to chapter 216,

13  Florida Statutes, to implement the plan, in consultation with

14  the legislative committees having jurisdiction over the

15  Department of Insurance.

16         Section 92.  By January 31, 2001, the Division of

17  Statutory Revision of the Office of Legislative Services shall

18  prepare and submit to the President of the Senate and the

19  Speaker of the House of Representatives draft substantive

20  legislation to conform the Florida Statutes to the provisions

21  of this act. The legislation shall not be drafted as a

22  reviser's bill. The draft shall include provisions:

23         (1)  Changing the term "Comptroller" or "Treasurer" to

24  "Chief Financial Officer" with respect to functions of the

25  Chief Financial Officer where appropriate;

26         (2)  Changing references to the "Department of Banking

27  and Finance" or the "Department of Insurance" to the

28  "Department of Financial Services" where appropriate; and

29         (3)  Otherwise conforming the statutes to the abolition

30  of the offices of Comptroller and Treasurer, the creation of

31  the Office of the Chief Financial Officer, the abolition of

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  1  the Department of Banking and Finance and the Department of

  2  Insurance, and the creation of the Department of Financial

  3  Services.

  4         Section 93.  (1)  The Financial Services Transition

  5  Task Force is established. All members of the task force shall

  6  be appointed prior to September 1, 2000. The task force shall

  7  be composed of:

  8         (a)  One consumer a representative appointed by the

  9  Governor;

10         (b)  Two members appointed by the President of the

11  Senate;

12         (c)  Two members appointed by the Speaker of the House

13  of Representatives;

14         (d)  Two members appointed by the Comptroller; and

15         (e)  Two members appointed by the Insurance

16  Commissioner and Treasurer.

17         (2)  The organizational meeting of the task force must

18  be held by October 1, 2000. The members of the task force

19  shall elect a chair by majority vote. Members of the task

20  force shall serve without compensation, but shall be

21  reimbursed for per diem and travel expenses as provided in

22  section 112.061, Florida Statutes.

23         (3)  The purpose of the task force is to review the

24  Florida Statutes and rules and:

25         (a)  Recommend amendments to statutes and rules made

26  necessary by the changes made by this act;

27         (b)  Identify any organizational problems involving,

28  without limitation, communication among divisions, technical

29  assistance, and other services, and recommend solutions to the

30  identified problems;

31

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  1         (c)  Identify any issues related to technology,

  2  including the coordination or incompatibility of technology

  3  systems, and suggest solutions to the identified problems;

  4         (d)  Recommend methods to improve departmental

  5  accountability, including, but not limited to, modification of

  6  performance measures.

  7         (4)  The task force may procure information and

  8  assistance from any officer or agency of the state or any

  9  subdivision thereof. All such officials and agencies shall

10  give the task force all relevant information and assistance

11  with respect to any matter within their knowledge or control.

12         (5)  The task force shall submit an initial report to

13  the Governor, the President of the Senate, and the Speaker of

14  the House of Representatives by January 1, 2001.

15         (6)  The task force shall submit a final report to the

16  Governor, the President of the Senate, and the Speaker of the

17  House of Representatives by January 1, 2002.

18         (7)  The task force terminates upon submission of its

19  final report.

20         Section 94.  Effective July 1, 2000, section 442.0011,

21  Florida Statutes, is created to read:

22         442.0011  Exclusion from chapter.--This chapter is not

23  applicable to any firefighter employee, and firefighter

24  employer, or any place of firefighter employment covered by

25  ss. 633-801 through 633.830.

26         Section 95.  Effective July 1, 2000, section 633.801,

27  Florida Statutes, is created to read:

28         633.801  Short title.--Sections 633.801 through 633.830

29  may be cited as the "Florida Firefighters Occupational Safety

30  and Health Act."

31

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  1         Section 96.  Effective July 1, 2000, section 633.802,

  2  Florida Statutes, is created to read:

  3         633.802  Definitions.--Unless the context clearly

  4  requires otherwise, the following definitions apply to ss.

  5  633.801 through 633.830:

  6         (1)  "Department" means the Department of Insurance.

  7         (2)  "Division" means the Division of State Fire

  8  Marshal of the Department of Insurance.

  9         (3)  "Firefighter employee" means any person engaged in

10  any employment, public or private, as a firefighter under any

11  appointment or contract of hire or apprenticeship, express or

12  implied, oral or written, whether lawfully or unlawfully

13  employed, and includes all volunteer firefighters responding

14  to or assisting with fire or medical emergencies whether or

15  not the firefighter is on duty.

16         (4)  "Firefighter employer" means the state and all

17  political subdivisions thereof, all public and quasi-public

18  corporations therein, and every person carrying on any

19  employment thereof, which employs firefighters or which uses

20  volunteer firefighters.

21         (5)  "Firefighter employment" or "employment" means any

22  service performed by a firefighter employee for the

23  firefighter employer, and includes the use of all volunteer

24  firefighters.

25         (6)  "Firefighter place of employment" or "place of

26  employment" means the physical location at which the

27  firefighter is employed.

28         Section 97.  Effective July 1, 2000, section 633.803,

29  Florida Statutes, is created to read:

30         633.803  Legislative intent.--It is the intent of the

31  Legislature to enhance firefighter occupational safety and

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  1  health in this state through the implementation and

  2  maintenance of policies, procedures, practices, rules, and

  3  standards that reduce the incidence of firefighter employee

  4  accidents, firefighter occupational diseases, and firefighter

  5  fatalities compensable under chapter 440 or otherwise. The

  6  Legislature further intends that the division develop a means

  7  by which it can identify individual firefighter employers with

  8  a high frequency or severity of work-related injuries; conduct

  9  safety inspections of those firefighter employers; and assist

10  those firefighter employers in the development and

11  implemention of firefighter employee safety and health

12  programs. In addition, it is the intent of the Legislature

13  that the division administer the provisions of ss. 633.801

14  through 633.830; provide assistance to firefighter employers,

15  firefighter employees, and insurers; and enforce the policies,

16  rules, and standards set forth in ss. 633.801 through 633.830.

17         Section 98.  Effective July 1, 2000, section 633.804,

18  Florida Statutes, is created to read:

19         633.804  Safety inspections, consultations; rules.--The

20  division shall adopt rules governing the manner, means, and

21  frequency of firefighter employer and firefighter employee

22  safety inspections and consultations by all insurers and

23  self-insurers.

24         Section 99.  Effective July 1, 2000, section 633.805,

25  Florida Statutes, is created to read:

26         633.805  Division to make study of firefighter

27  occupational diseases, etc.--The division shall make a

28  continuous study of firefighter occupational diseases and the

29  ways and means for their control and prevention and shall make

30  and enforce necessary regulations for such control. For this

31  purpose, the division is authorized to cooperate with

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  1  firefighter employers, firefighter employees, and insurers and

  2  with the Department of Health.

  3         Section 100.  Effective July 1, 2000, section 633.806,

  4  Florida Statutes, is created to read:

  5         633.806  Investigations by the division; refusal to

  6  admit; penalty.--

  7         (1)  The division shall make studies and investigations

  8  with respect to safety provisions and the causes of

  9  firefighter injuries in firefighter places of employment, and

10  shall make to the Legislature and firefighter employers and

11  insurers such recommendations as it considers proper as to the

12  best means of preventing firefighter injuries. In making such

13  studies and investigations, the division may:

14         (a)  Cooperate with any agency of the United States

15  charged with the duty of enforcing any law securing safety

16  against injury in any place of firefighter employment covered

17  by ss. 633.801 through 633.830, or any agency or department of

18  the state engaged in enforcing any law to assure safety for

19  firefighter employees.

20         (b)  Allow any such agency or department to have access

21  to the records of the division.

22         (2)  The division and its authorized representatives

23  may enter and inspect any place of firefighter employment at

24  any reasonable time for the purpose of investigating

25  compliance with ss. 633.801 through 633.830 and making

26  inspections for the proper enforcement of ss. 633.801 through

27  633.830. Any firefighter employer who refuses to admit any

28  member of the division or its authorized representative to any

29  place of firefighter employment or to allow investigation and

30  inspection pursuant to this subsection is guilty of a

31

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  1  misdemeanor of the second degree, punishable as provided in s.

  2  775.082 or s. 775.083.

  3         (3)  The division by rule may adopt procedures for

  4  conducting investigations of firefighter employers under ss.

  5  633.801 through 633.830.

  6         Section 101.  Effective July 1, 2000, section 633.807,

  7  Florida Statutes, is created to read:

  8         633.807  Safety; firefighter employer

  9  responsibilities.--Every firefighter employer shall furnish to

10  firefighters employment that is safe for the firefighter

11  employees, furnish and use safety devices and safeguards,

12  adopt and use methods and processes reasonably adequate to

13  render such an employment and place of employment safe, and do

14  every other thing reasonably necessary to protect the lives,

15  health, and safety of such firefighter employees. As used in

16  this section, the terms "safe" and "safety" as applied to any

17  employment or place of firefighter employment mean such

18  freedom from danger as is reasonably necessary for the

19  protection of the lives, health, and safety of firefighter

20  employees, including conditions and methods of sanitation and

21  hygiene. Safety devices and safeguards required to be

22  furnished by the firefighter employer by this section or by

23  the division under authority of this section shall not include

24  personal apparel and protective devices that replace personal

25  apparel normally worn by firefighter employees during regular

26  working hours.

27         Section 102.  Effective July 1, 2000, section 633.808,

28  Florida Statutes, is created to read:

29         633.808  Division authority.--The division shall:

30         (1)  Investigate and prescribe by rule what safety

31  devices, safeguards, or other means of protection must be

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  1  adopted for the prevention of accidents in every firefighter

  2  place of employment or at any fire scene; determine what

  3  suitable devices, safeguards, or other means of protection for

  4  the prevention of occupational diseases must be adopted or

  5  followed in any or all such firefighter places of employment

  6  or at any fire scene; and adopt reasonable rules for the

  7  prevention of accidents, the safety, protection, and security

  8  of firefighters engaged in interior firefighting, and the

  9  prevention of occupational diseases.

10         (2)  Ascertain, fix, and order such reasonable

11  standards and rules for the construction, repair, and

12  maintenance of firefighter places of employment as shall

13  render them safe. Such rules and standards must be adopted in

14  accordance with chapter 120.

15         (3)  Assist firefighter employers in the development

16  and implementation of firefighter employee safety training

17  programs by contracting with professional safety

18  organizations.

19         (4)  Adopt rules prescribing recordkeeping

20  responsibilities for firefighter employers, which may include

21  rules for maintaining a log and summary of occupational

22  injuries, diseases, and illnesses and for producing on request

23  a notice of injury and firefighter employee accident

24  investigation records, and rules prescribing a retention

25  schedule for such records.

26         Section 103.  Effective July 1, 2000, section 633.809,

27  Florida Statutes, is created to read:

28         633.809  Right of entry.--The division and its

29  authorized representatives may enter at any reasonable time

30  any firefighter place of employment for the purpose of

31  examining any tool, appliance, or machinery used in such

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  1  employment and may make inspections for the proper enforcement

  2  of ss. 633.801 through 633.830. A firefighter employer or

  3  owner may not refuse to admit any member of the division or

  4  its authorized representatives to any firefighter place of

  5  employment.

  6         Section 104.  Effective July 1, 2000, section 633.810,

  7  Florida Statutes, is created to read:

  8         633.810  Firefighter employers whose firefighter

  9  employees have a high frequency of work-related injuries.--The

10  division shall develop a means by which it can identify

11  individual firefighter employers whose firefighter employees

12  have a high frequency or severity of work-related injuries.

13  The division shall carry out safety inspections of the

14  facilities and operations of these firefighter employers in

15  order to assist them in reducing the frequency and severity of

16  work-related injuries. The division shall develop safety and

17  health programs for those firefighter employers. Insurers

18  shall distribute these safety and health programs to the

19  firefighter employers so identified by the division. Those

20  firefighter employers identified by the division as having a

21  high frequency or severity of work-related injuries shall

22  implement a division-developed safety and health program. The

23  division shall carry out safety inspections of those

24  firefighter employers so identified to ensure compliance with

25  the safety and health program and to assist such firefighter

26  employers in reducing the number of work-related injuries. The

27  division may not assess penalties as the result of such

28  inspections, except as provided by s. 633.813. Copies of any

29  report made as the result of such an inspection must be

30  provided to the firefighter employer and its insurer.

31  Firefighter employers may submit their own safety and health

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  1  programs to the division for approval in lieu of using the

  2  division-developed safety and health program. The division

  3  must promptly review the program submitted and approve or

  4  disapprove it. Upon approval by the division, the program must

  5  be implemented by the firefighter employer. If the program is

  6  not approved or if a program is not submitted, the firefighter

  7  employer must implement the division-developed program. The

  8  division shall adopt rules setting forth the criteria for

  9  safety and health programs.

10         Section 105.  Effective July 1, 2000, section 633.811,

11  Florida Statutes, is created to read:

12         633.811  Insurer consultations.--Each insurer writing

13  workers' compensation insurance in this state, each

14  firefighter employer qualifying as an individual self-insurer

15  under s. 440.38, each self-insurance fund under s. 624.461,

16  and each assessable mutual insurer under s. 628.6011 must

17  provide safety consultations to each of its policyholders who

18  requests such consultations. Each such insurer or self-insurer

19  must inform its policyholders of the availability of such

20  consultations. The division is responsible for approving all

21  safety and health programs. The division shall aid all

22  insurers and self insurers in establishing their safety and

23  health programs by setting out criteria in an appropriate

24  format.

25         Section 106.  Effective July 1, 2000, section 633.812,

26  Florida Statutes, is created to read:

27         633.812  Workplace safety committees and safety

28  coordinators.--

29         (1)  In order to promote health and safety in places of

30  firefighter employment in this state:

31

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  1         (a)  Each firefighter employer of 20 or more

  2  firefighter employees shall establish and administer a

  3  workplace safety committee in accordance with rules adopted

  4  under this section.

  5         (b)  Each firefighter employer of fewer than 20

  6  firefighter employees which is identified by the division as

  7  having high frequency or severity of work-related injuries

  8  shall establish and administer a workplace safety committee or

  9  designate a workplace safety coordinator who shall establish

10  and administer workplace safety activities in accordance with

11  rules adopted under this section.

12         (2)  The division shall adopt rules:

13         (a)  Prescribing the membership of the workplace safety

14  committees so as to ensure an equal number of firefighter

15  employee representatives, who are volunteers or are elected by

16  their peers, and of firefighter employer representatives, and

17  specifying the frequency of meetings.

18         (b)  Requiring firefighter employers to make adequate

19  records of each meeting and to file and to maintain the

20  records subject to inspection by the division.

21         (c)  Prescribing the duties and functions of the

22  workplace safety committee and workplace safety coordinator,

23  which include, but are not limited to:

24         1.  Establishing procedures for workplace safety

25  inspections by the committee.

26         2.  Establishing procedures investigating all workplace

27  accidents, safety-related incidents, illnesses, and deaths.

28         3.  Evaluating accident-prevention and

29  illness-prevention programs.

30         4.  Prescribing guidelines for the training of safety

31  committee members.

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  1         (3)  The composition, selection, and function of safety

  2  committees shall be a mandatory topic of negotiations with any

  3  certified collective bargaining agent for firefighter

  4  employers that operate under a collective bargaining

  5  agreement. Firefighter employers that operate under a

  6  collective bargaining agreement that contains provisions

  7  regulating the formation and operation of workplace safety

  8  committees that meet or exceed the minimum requirements

  9  contained in this section, or firefighter employers who

10  otherwise have existing workplace safety committees that meet

11  or exceed the minimum requirements established by this section

12  are in compliance with this section.

13         (4)  Firefighter employees must be compensated their

14  regular hourly wage while engaged in workplace safety

15  committee or workplace safety coordinator training, meetings,

16  or other duties prescribed under this section.

17         Section 107.  Effective July 1, 2000, section 633.813,

18  Florida Statutes, is created to read:

19         633.813  Firefighter employer penalties.--If any

20  firefighter employer violates or fails or refuses to comply

21  with ss. 633.801 through 633.830, or with any rule adopted by

22  the division, in accordance with chapter 120, for the

23  prevention of injuries, accidents, or occupational diseases or

24  with any lawful order of the division in connection with ss.

25  633.801 through 633.830, or fails or refuses to furnish or

26  adopt any safety device, safeguard, or other means of

27  protection prescribed by the division under ss. 633.801

28  through 633.830 for the prevention of accidents or

29  occupational diseases, the division may assess against the

30  firefighter employer a civil penalty of not less than $100 nor

31  more than $5,000 for each day the violation, omission,

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  1  failure, or refusal continues after the firefighter employer

  2  has been given notice thereof in writing. The total penalty

  3  for each violation may not exceed $50,000. The division shall

  4  adopt rules requiring penalties commensurate with the

  5  frequency or severity, or both, of safety violations. A

  6  hearing must be held in the county where the violation,

  7  omission, failure, or refusal is alleged to have occurred,

  8  unless otherwise agreed to by the firefighter employer and

  9  authorized by the division. All penalties assessed and

10  collected under this section shall be deposited in the

11  Insurance Commissioner's Regulatory Trust Fund.

12         Section 108.  Effective July 1, 2000, section 633.814,

13  Florida Statutes, is created to read:

14         633.814  Division cooperation with Federal Government;

15  exemption from division requirements.--

16         (1)  The division shall cooperate with the Federal

17  Government so that duplicate inspections will be avoided yet

18  assure safe places of firefighter employment for the citizens

19  of this state.

20         (2)  Except as provided in this section, a private

21  firefighter employer is not subject to the requirements of the

22  division if:

23         (a)  The private firefighter employer is subject to the

24  federal regulations in 29 C.F.R. ss. 1910 and 1926;

25         (b)  The private firefighter employer has adopted and

26  implemented a written safety program that conforms to the

27  requirements of 29 C.F.R. ss. 1910 and 1926;

28         (c)  A private firefighter employer with 20 or more

29  full-time firefighter employees shall include provisions for a

30  safety committee in the safety program. The safety committee

31  must include firefighter employee representation and must meet

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  1  at least once each calendar quarter. The private firefighter

  2  employer must make adequate records of each meeting and

  3  maintain the records subject to inspections under subsection

  4  (3). The safety committee shall, if appropriate, make

  5  recommendations regarding improvements to the safety program

  6  and corrections of hazards affecting workplace safety; and

  7         (d)  The private firefighter employer provides the

  8  division with a written statement that certifies compliance

  9  with this subsection.

10         (3)  The division may enter at any reasonable time any

11  place of firefighter employment for the purposes of verifying

12  the accuracy of the written certification. If the division

13  determines that the firefighter employer has not complied with

14  the requirements of subsection (2), the firefighter employer

15  shall be subject to the rules of the division until the

16  firefighter employer complies with subsection (2) and

17  recertifies that fact to the division.

18         (4)  This section shall not restrict the division from

19  performing any duties pursuant to a written contract between

20  the division and the Federal Occupational Safety and Health

21  Administration (OSHA).

22         Section 109.  Effective July 1, 2000, section 633.815,

23  Florida Statutes, is created to read:

24         633.815  Failure to implement a safety and health

25  program; cancellations.--If a firefighter employer that is

26  found by the division to have a high frequency or severity of

27  work-related injuries fails to implement a safety and health

28  program, the insurer or self-insurer's fund that is providing

29  coverage fo r the firefighter employer may cancel the contract

30  for insurance with the firefighter employer. In the

31  alternative, the insurer or fund may terminate any discount or

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  1  deviation granted to the firefighter employer for the

  2  remainder of the term of the policy. If the contract is

  3  canceled or the discount or deviation is terminated, the

  4  insurer must make such reports as are required by law.

  5         Section 110.  Effective July 1, 2000, section 633.816,

  6  Florida Statutes, is created to read:

  7         633.816  Expenses of administration.--The amounts that

  8  are needed to administer ss. 633.801 through 633.830 shall be

  9  disbursed from the Insurance Commissioner's Regulatory Trust

10  Fund.

11         Section 111.  Effective July 1, 2000, section 633.817,

12  Florida Statutes, is created to read:

13         633.817  Refusal to admit; penalty.--The division and

14  its authorized representatives may enter and inspect any place

15  of firefighter employment at any reasonable time for the

16  purpose of investigating compliance with ss. 633.801 through

17  633.830 and conducting inspections for the proper enforcement

18  of ss. 633.801 through 633.830. A firefighter employer who

19  refuses to admit any member of the division or its authorized

20  representative to any place of employment or to allow

21  investigation and inspection pursuant to this section commits

22  a misdemeanor of the second degree, punishable as provided in

23  s. 775.082 or s. 775.083.

24         Section 112.  Effective July 1, 2000, section 633.818,

25  Florida Statutes, is created to read:

26         633.818  Firefighter employee rights and

27  responsibilities.--

28         (1)  Each firefighter employee of a firefighter

29  employer covered under ss. 633.801 through 633.830 shall

30  comply with rules adopted by the division and with reasonable

31  workplace safety and health standards, rules, policies,

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  1  procedures, and work practices established by the firefighter

  2  employer and the workplace safety committee. A firefighter

  3  employee who knowingly fails to comply with this subsection

  4  maybe disciplined or discharged by the firefighter employer.

  5         (2)  A firefighter employer may not discharge, threaten

  6  to discharge, cause to be discharged, intimidate, coerce,

  7  otherwise discipline, or in any manner discriminate against a

  8  firefighter employee for any of the following reasons:

  9         (a)  The firefighter employee has testified or is about

10  to testify, on her or his own behalf, or on behalf of others,

11  in any proceeding instituted under ss. 633.801 through

12  633.830;

13         (b)  The firefighter employee has exercised any other

14  right afforded under ss. 633.801 through 633.830; or

15         (c)  The firefighter employee is engaged in activities

16  relating to the workplace safety committee.

17         (3)  Neither pay, position, seniority, nor other

18  benefit may be lost for exercising any right under, or for

19  seeking compliance with, any requirement of ss. 633.801

20  through 633.830.

21         Section 113.  Effective July 1, 2000, section 633.819,

22  Florida Statutes, is created to read:

23         633.819  Compliance.--Failure of a firefighter employer

24  or an insurer to comply with ss. 633.801 through 633.830, or

25  with any rules adopted under s.. 633.801 through 633.830,

26  constitutes grounds for the division to seek remedies,

27  including injunctive relief, for compliance by making

28  appropriate filings with the Circuit Court of Leon County.

29         Section 114.  Effective July 1, 2000, section 633.820,

30  Florida Statutes, is created to read:

31

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  1         633.820  False statements to insurers.--A firefighter

  2  employer who knowingly and willfully falsifies or conceals a

  3  material fact, makes a false, fictitious, or fraudulent

  4  statement or representation; or makes or uses any false

  5  document knowing the document to contain any false fictitious,

  6  or fraudulent entry or statement to an insurer of workers'

  7  compensation insurance under ss. 633.801 through 633.830 is

  8  guilty of a misdemeanor of the second degree, punishable as

  9  provided in s. 775.082 or s. 775.083.

10         Section 115.  Effective July 1, 2000, section 633.821,

11  Florida Statutes, is created to read:

12         633.821  Insurer penalties.--If any insurer violates,

13  or fails or refuses to comply with, ss. 633.801 through

14  633.830 or with any rule adopted or order issued under ss.

15  633.801 through 633.830, the division, after notice and

16  hearing in accordance with chapter 120, may assess against the

17  insurer a civil penalty of not less than $100 nor more than

18  $5,000 each day the violation, failure, or refusal continues

19  after the insurer has been given written notice thereof. The

20  total penalty for each violation, failure, or refusal may not

21  exceed $50,000. The division shall adopt rules providing for

22  penalties for noncompliance with ss. 633.801 through 633.830

23  by insurers. All penalties assessed and collected under this

24  section shall be deposited in the Insurance Commissioner's

25  Regulatory Trust Fund.

26         Section 116.  Effective July 1, 2000, section 633.823,

27  Florida Statutes, is created to read:

28         633.823  Matters within jurisdiction of the division;

29  false, fictitious, or fraudulent acts, statements, and

30  representations prohibited; penalty; statute of

31  limitations.--A person may not, in any matter within the

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  1  jurisdiction of the division, knowingly and willfully falsify

  2  or conceal a material fact; make any false, fictitious, or

  3  fraudulent statement or representation; or make or use any

  4  false document, knowing the same to contain any false,

  5  fictitious, or fraudulent statement or entry. A person who

  6  violates this section commits a misdemeanor of the second

  7  degree, punishable as provided in s. 775.082 or s. 775.083.

  8  The statute of limitations for prosecution of an act committed

  9  in violation of this section is 5 years after the date the act

10  was committed or, if not discovered within 30 days after the

11  act was committed, 5 years after the date the act was

12  discovered.

13         Section 117.  Effective July 1, 2000, section 633.825,

14  Florida Statutes, is created to read:

15         633.825  Workplace safety.--

16         (1)  The division shall assist in making the workplace

17  a safer place to work and decreasing the frequency and

18  severity of on-the-job injuries.

19         (2) The division shall have the authority to adopt

20  rules for the purpose of assuring safe working conditions for

21  all firefighter employees by authorizing the enforcement of

22  effective standards, assisting and encouraging firefighter

23  employers to maintain safe working conditions, and by

24  providing for education and training in the field of safety.

25  For firefighter employers, the division may by rule adopt

26  subparts C through T and subpart Z of 29 C.F.R. part 1910;

27  subparts C through Z of 29 C.F.R. part 1926; subparts A

28  through D, subpart I, and subpart M of 29 C.F.R. part 1928;

29  subparts A through G of 29 C.F.R. part 1917; subparts A

30  through L and subpart Z of 29 C.F.R. part 1915; subparts A

31  through J of 29 C.F.R. part 1918, latest revision, provided

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  1  that 29 C.F.R. s. 1910.156 applies to volunteer firefighters

  2  and fire departments operated by the state or political

  3  subdivisions; the National Fire Protection Association, Inc.,

  4  Standard 1500, paragraph 5-7 (Personal Alert Safety System)

  5  (1992 edition); and ANSI A 10.4-1990.

  6         (3)  The provisions of chapter 440 which pertain to

  7  workplace safety shall be applicable to the division.

  8         (4)  The division shall have authority to adopt any

  9  rule necessary to implement, interpret, and make specific any

10  matter pertaining to any subject or reference contained in

11  this section, including all of the provisions referred to in

12  subsection (2), as they relate to firefighter employees,

13  firefighter employers, and firefighter places of employment.

14         Section 118.  Except as otherwise provided in this act,

15  this act shall take effect January 1, 2001.

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1682

  3

  4  Creates the Department of Financial Services and designates
    the Chief Financial Officer as the department head January 7,
  5  2003.

  6  Transfers the Department of Banking and Finance and the
    Department of Insurance to the new Department of Financial
  7  Services.

  8  Establishes four offices in the department, each headed by a
    commissioner.
  9
    Provides final order authority to the Commissioner of
10  Financial Institutions and the Commissioner of Securities and
    Finance.
11
    Transfers the Division of Accountancy and its related board to
12  the department and places the Division in the Office of the
    Commissioner of Securities and Finance.
13
    Creates an Insurance Rating Commission effective January 1,
14  2001, and transfers all ratemaking authority currently housed
    in the Department of Insurance to the commission.
15
    Establishes the manner in which commissioners are appointed
16  and confirmed, as well as provides for qualifications.

17  Provides that the Public Counsel is to represent the public
    before the commission.
18
    Creates the Florida Firefighters Occupational Safety and
19  Health Act, and delegates authority to implement the act to
    the Division of State Fire Marshal effective July 1, 2000.
20
    Creates the Financial Services Transition Task Force.
21

22

23

24

25

26

27

28

29

30

31

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