Senate Bill 1992

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    Florida Senate - 2000                                  SB 1992

    By Senator King





    8-1297-00                                               See HB

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.02, F.S.; revising a monetary

  4         limit in a definition; excluding work done by

  5         state prisoners and county inmates from the

  6         definition of employment; amending s. 440.09,

  7         F.S.; excluding employees covered under the

  8         Defense Base Act from payment of benefits;

  9         amending s. 440.12, F.S.; providing for

10         electronic payment of compensation payments;

11         amending s. 440.13, F.S.; revising requirements

12         for submission of certain medical reports and

13         bills; granting rehabilitation providers access

14         to medical records; amending s. 440.134, F.S.;

15         revising a definition; requiring certain

16         insurers to provide medically necessary

17         remedial treatment, care, and attendance under

18         certain circumstances; requiring insurers'

19         workers' compensation managed care arrangements

20         to grant or deny requests for medical care

21         within a time certain; requiring insurers'

22         workers' compensation managed care arrangements

23         to notify injured workers of the outcome of

24         grievances within a time certain; providing a

25         presumption of resolution of a grievance absent

26         timely notice; amending s. 440.185, F.S.;

27         authorizing the division to contract with a

28         private entity for collection of certain policy

29         information; providing application; amending s.

30         440.192, F.S.; revising requirements and

31         procedures for filing petitions for benefits;

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    Florida Senate - 2000                                  SB 1992
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  1         permitting judges to dismiss portions of a

  2         petition; specifying that dismissal of

  3         petitions is without prejudice; amending s.

  4         440.20, F.S.; providing for payment of

  5         compensation by direct deposit under certain

  6         circumstances; authorizing not holding a

  7         hearing under certain circumstances; revising

  8         the period for payment; revising lump-sum

  9         settlement requirements; amending s. 440.22,

10         F.S.; excluding child support and alimony

11         claims from general exemption of workers'

12         compensation benefits from claims of creditors;

13         amending s. 440.271, F.S.; requiring the First

14         District Court of Appeal to establish a

15         specialized division to hear workers'

16         compensation cases; amending s. 440.38, F.S.;

17         providing for the type of qualifying security

18         deposit necessary to become a self-insured

19         employer; providing requirements, procedures,

20         and criteria; correcting cross references;

21         amending s. 440.45, F.S.; requiring the

22         judicial nominating commission to consider

23         whether judges of compensation claims have met

24         certain requirements; providing procedures;

25         authorizing the Governor to appoint certain

26         judges of compensation claims; requiring the

27         Office of Judges of Compensation Claims to

28         adopt certain additional rules; requiring the

29         Office of the Judges of Compensation Claims to

30         submit draft rules to the Governor and the

31         Legislature by November 1, 2000; requiring

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    Florida Senate - 2000                                  SB 1992
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  1         review by the Legislature; providing

  2         requirements and procedures; amending ss.

  3         489.114 and 489.510, F.S.; providing an

  4         exception to certain workers' compensation

  5         coverage evidence requirements; amending ss.

  6         489.115 and 489.515, F.S.; revising

  7         certification and registration requirements for

  8         initial licensure; amending s. 627.311, F.S.;

  9         providing for use of policyholder surplus for

10         purposes of funding certain deficits; amending

11         s. 627.914, F.S.; revising the requirements for

12         reports of information by workers' compensation

13         insurers; deleting a reporting requirement for

14         the Division of Workers' Compensation;

15         providing an appropriation; repealing s.

16         440.45(3), F.S., relating to judges of

17         compensation claims serving as docketing

18         judges; providing effective dates.

19

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

21

22         Section 1.  Subsection (4) and paragraph (c) of

23  subsection (16) of section 440.02, Florida Statutes, are

24  amended to read:

25         440.02  Definitions.--When used in this chapter, unless

26  the context clearly requires otherwise, the following terms

27  shall have the following meanings:

28         (4)  "Casual" as used in this section shall be taken to

29  refer only to employments when the work contemplated is to be

30  completed in not exceeding 10 working days, without regard to

31

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    Florida Senate - 2000                                  SB 1992
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  1  the number of persons employed, and when the total labor cost

  2  of such work is less than $1,000 $100.

  3         (16)

  4         (c)  "Employment" does not include service performed by

  5  or as:

  6         1.  Domestic servants in private homes.

  7         2.  Agricultural labor performed on a farm in the

  8  employ of a bona fide farmer, or association of farmers, who

  9  employs 5 or fewer regular employees and who employs fewer

10  than 12 other employees at one time for seasonal agricultural

11  labor that is completed in less than 30 days, provided such

12  seasonal employment does not exceed 45 days in the same

13  calendar year. The term "farm" includes stock, dairy, poultry,

14  fruit, fur-bearing animals, fish, and truck farms, ranches,

15  nurseries, and orchards. The term "agricultural labor"

16  includes field foremen, timekeepers, checkers, and other farm

17  labor supervisory personnel.

18         3.  Professional athletes, such as professional boxers,

19  wrestlers, baseball, football, basketball, hockey, polo,

20  tennis, jai alai, and similar players, and motorsports teams

21  competing in a motor racing event as defined in s. 549.08.

22         4.  Labor under a sentence of a court to perform

23  community services as provided in s. 316.193.

24         5.  State prisoners or county inmates except those

25  performing services for private employers or those enumerated

26  in s. 948.03(8)(a).

27         Section 2.  Subsection (2) of section 440.09, Florida

28  Statutes, is amended to read:

29         440.09  Coverage.--

30         (2)  Benefits are not payable in respect of the

31  disability or death of any employee covered by the Federal

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    Florida Senate - 2000                                  SB 1992
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  1  Employer's Liability Act, the Longshoremen's and Harbor

  2  Worker's Compensation Act, the Defense Base Act, or the Jones

  3  Act.

  4         Section 3.  Subsection (1) of section 440.12, Florida

  5  Statutes, is amended to read:

  6         440.12  Time for commencement and limits on weekly rate

  7  of compensation.--

  8         (1)  No compensation shall be allowed for the first 7

  9  days of the disability, except benefits provided for in s.

10  440.13. However, if the injury results in disability of more

11  than 21 days, compensation shall be allowed from the

12  commencement of the disability.  All weekly compensation

13  payments, except for the first payment, shall be paid by check

14  or, if authorized by the employee, deposited directly into the

15  employee's bank account or a bank account established by the

16  carrier for the employee.

17         Section 4.  Paragraphs (b) and (c) of subsection (4) of

18  section 440.13, Florida Statutes, are amended to read:

19         440.13  Medical services and supplies; penalty for

20  violations; limitations.--

21         (4)  NOTICE OF TREATMENT TO CARRIER; FILING WITH

22  DIVISION.--

23         (b)  Upon the request of the Division of Workers'

24  Compensation, each medical report or bill obtained or received

25  by the employer, the carrier, or the injured employee, or the

26  attorney for the employer, carrier, or injured employee, with

27  respect to the remedial treatment, or care, and attendance of

28  the injured employee, including any report of an examination,

29  diagnosis, or disability evaluation, must be filed with the

30  Division of Workers' Compensation pursuant to rules adopted by

31  the division. The health care provider shall also furnish to

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    Florida Senate - 2000                                  SB 1992
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  1  the injured employee or to his or her attorney, on demand, a

  2  copy of his or her office chart, records, and reports, and may

  3  charge the injured employee an amount authorized by the

  4  division for the copies. Each such health care provider shall

  5  provide to the division any additional information about the

  6  remedial treatment, care, and attendance that the division

  7  reasonably requests.

  8         (c)  It is the policy for the administration of the

  9  workers' compensation system that there be reasonable access

10  to medical information by all parties to facilitate the

11  self-executing features of the law. Notwithstanding the

12  limitations in s. 455.667 and subject to the limitations in s.

13  381.004, upon the request of the employer, the carrier, a

14  rehabilitation provider, or the attorney for the employer or

15  carrier either of them, the medical records of an injured

16  employee must be furnished to those persons and the medical

17  condition of the injured employee must be discussed with those

18  persons, if the records and the discussions are restricted to

19  conditions relating to the workplace injury. Any such

20  discussions may be held before or after the filing of a claim

21  without the knowledge, consent, or presence of any other party

22  or his or her agent or representative. A health care provider

23  who willfully refuses to provide medical records or to discuss

24  the medical condition of the injured employee, after a

25  reasonable request is made for such information pursuant to

26  this subsection, shall be subject by the division to one or

27  more of the penalties set forth in paragraph (8)(b).

28         Section 5.  Paragraph (d) of subsection (1), paragraph

29  (b) of subsection (2), and paragraphs (c) and (d) of

30  subsection (15) of section 440.134, Florida Statutes, are

31  amended to read:

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    Florida Senate - 2000                                  SB 1992
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  1         440.134  Workers' compensation managed care

  2  arrangement.--

  3         (1)  As used in this section, the term:

  4         (d)  "Grievance" means a written complaint filed by an

  5  injured worker expressing dissatisfaction with the insurer's

  6  workers' compensation managed care arrangement's refusal to

  7  provide medical care provided by an insurer's workers'

  8  compensation managed care arrangement health care providers,

  9  expressed in writing by an injured worker.

10         (2)

11         (b)  Effective January 1, 1997, the employer shall,

12  subject to the limitations specified elsewhere in this

13  chapter, furnish to the employee solely through managed care

14  arrangements such medically necessary remedial treatment,

15  care, and attendance for such period as the nature of the

16  injury or the process of recovery requires pursuant to s.

17  440.13(2)(a) and (b).  An employer that has secured coverage

18  under s. 440.38(1)(b) as an individual self-insurer or under

19  s. 440.38(6) shall furnish such medically necessary remedial

20  treatment, care, and attendance for such a period as the

21  nature of the injury or the process of recovery requires,

22  pursuant to s. 440.13(2)(a) and (b), through managed care

23  arrangements or without managed care arrangements.  An

24  employer that has secured coverage under s. 440.38(1)(b) as an

25  individual self-insurer or under s. 440.38(6) is exempt from

26  the application and approval requirements of s. 440.134(2)(a)

27  and the filing requirements of subsections (5) and (12), and

28  paragraph (15)(g).

29         (15)

30         (c)  At the time the workers' compensation managed care

31  arrangement is implemented, the insurer must provide detailed

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  1  information to workers and health care providers describing

  2  how a grievance may be registered with the insurer. Within 30

  3  days after the date a request for medical care is received by

  4  the insurer's workers' compensation managed care arrangement,

  5  the insurer shall grant or deny the request.  If the insurer

  6  denies the request, the insurer shall notify the injured

  7  worker in writing of his or her right to file a grievance.

  8         (d)  Grievances must be considered in a timely manner

  9  and must be transmitted to appropriate decisionmakers who have

10  the authority to fully investigate the issue and take

11  corrective action. If the insurer does not notify the injured

12  worker of the outcome of the grievance in writing within 30

13  days, the grievance shall be presumed to be resolved against

14  the injured worker and the grievance procedures shall be

15  presumed to be exhausted for purposes of s. 440.192(3).

16         Section 6.  Subsection (7) of section 440.185, Florida

17  Statutes, is amended to read:

18         440.185  Notice of injury or death; reports; penalties

19  for violations.--

20         (7)  Every carrier shall file with the division within

21  21 days after the issuance of a policy or contract of

22  insurance such policy information as the division may require,

23  including notice of whether the policy is a minimum premium

24  policy. Notice of cancellation or expiration of a policy as

25  set out in s. 440.42(2) shall be mailed to the division in

26  accordance with rules promulgated by the division under

27  chapter 120. The division may contract with a private entity

28  for the collection of policy information required to be filed

29  by carriers pursuant to this subsection and the receipt of

30  notices of cancellation or expiration of a policy required to

31  be filed by carriers pursuant to s. 440.42(2).  The submission

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    Florida Senate - 2000                                  SB 1992
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  1  of policy information or notices of cancellation or expiration

  2  to the contracted private entity satisfies the filing

  3  requirements of this subsection and s. 440.42(2).

  4         Section 7.  Subsections (1), (2), and (5) of section

  5  440.192, Florida Statutes, are amended to read:

  6         440.192  Procedure for resolving benefit disputes.--

  7         (1)  Subject to s. 440.191, any employee who has not

  8  received a benefit to which the employee believes she or he is

  9  entitled under this chapter shall file by certified mail, or

10  by electronic means approved by the Chief Judge, with the

11  appropriate local Office of the Judges of Compensation Claims

12  a petition for benefits that meets the requirements of this

13  section.  The division shall inform employees of the location

14  of the appropriate Office of the Judges of Compensation Claims

15  for purposes of filing a petition for benefits.  The employee

16  shall also serve copies of the petition for benefits by

17  certified mail, or by electronic means approved by the Chief

18  Judge, upon the employer, the employer's carrier, and the

19  division in Tallahassee a petition for benefits that meets the

20  requirements of this section. The division shall refer the

21  petition to the Office of the Judges of Compensation Claims.

22         (2)  Upon receipt, the judge The Office of the Judges

23  of compensation claims shall review each petition and shall

24  dismiss each petition or any portion of such petition, upon

25  the judge's its own motion or upon the motion of any party,

26  that does not on its face specifically identify or itemize the

27  following:

28         (a)  Name, address, telephone number, and social

29  security number of the employee.

30         (b)  Name, address, and telephone number of the

31  employer.

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  1         (c)  A detailed description of the injury and cause of

  2  the injury, including the location of the occurrence.

  3         (d)  A detailed description of the employee's job, work

  4  responsibilities, and work the employee was performing when

  5  the injury occurred.

  6         (e)  The time period for which compensation was not

  7  timely provided.

  8         (f)  Date of maximum medical improvement, character of

  9  disability, and specific statement of all benefits or

10  compensation that the employee is seeking.

11         (g)  All travel costs to which the employee believes

12  she or he is entitled, including dates of travel and purpose

13  of travel, means of transportation, and mileage.

14         (h)  Specific listing of all medical charges alleged

15  unpaid, including the name and address of the medical

16  provider, the amounts due, and the specific dates of

17  treatment.

18         (i)  The type or nature of treatment care or attendance

19  sought and the justification for such treatment.

20         (j)  Specific explanation of any other disputed issue

21  that a judge of compensation claims will be called to rule

22  upon.

23

24  The dismissal of any petition or any portion of such petition

25  under this section shall be without prejudice and shall not

26  require a hearing.

27         (5)  All motions to dismiss must state with

28  particularity the basis for the motion. The judge of

29  compensation claims shall enter an order upon such motions

30  without hearing, unless good cause for hearing is shown. When

31  any petition or portion of such petition is dismissed for lack

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  1  of specificity under this subsection, the claimant must be

  2  allowed 20 days after the date of the order of dismissal in

  3  which to file an amended petition. Any grounds for dismissal

  4  for lack of specificity under this section not asserted within

  5  30 days after receipt of the petition for benefits are thereby

  6  waived.

  7         Section 8.  Paragraph (a) of subsection (1), subsection

  8  (6), and paragraph (a) of subsection (11) of section 440.20,

  9  Florida Statutes, are amended to read:

10         440.20  Time for payment of compensation; penalties for

11  late payment.--

12         (1)(a)  Unless it denies compensability or entitlement

13  to benefits, the carrier shall pay compensation directly to

14  the employee as required by ss. 440.14, 440.15, and 440.16, in

15  accordance with the obligations set forth in such sections. If

16  authorized by the employee, the carrier's obligation to pay

17  compensation directly to the employee is satisfied when the

18  carrier directly deposits, by electronic transfer or other

19  means, compensation into the employee's bank account or into a

20  bank account which has been established by the carrier for the

21  employee.  Compensation by direct deposit shall be deemed paid

22  on the date the funds become available for withdrawal by the

23  employee.

24         (6)  If any installment of compensation for death or

25  dependency benefits, disability, permanent impairment, or wage

26  loss payable without an award is not paid within 7 days after

27  it becomes due, as provided in subsection (2), subsection (3),

28  or subsection (4), there shall be added to such unpaid

29  installment a punitive penalty of an amount equal to 20

30  percent of the unpaid installment or $5, which shall be paid

31  at the same time as, but in addition to, such installment of

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  1  compensation, unless notice is filed under subsection (4) or

  2  unless such nonpayment results from conditions over which the

  3  employer or carrier had no control. When any installment of

  4  compensation payable without an award has not been paid within

  5  7 days after it became due and the claimant concludes the

  6  prosecution of the claim before a judge of compensation claims

  7  without having specifically claimed additional compensation in

  8  the nature of a penalty under this section, the claimant will

  9  be deemed to have acknowledged that, owing to conditions over

10  which the employer or carrier had no control, such installment

11  could not be paid within the period prescribed for payment and

12  to have waived the right to claim such penalty. However,

13  during the course of a hearing, the judge of compensation

14  claims shall on her or his own motion raise the question of

15  whether such penalty should be awarded or excused. The

16  division may assess without a hearing the punitive penalty

17  against either the employer or the insurance carrier,

18  depending upon who was at fault in causing the delay. The

19  insurance policy cannot provide that this sum will be paid by

20  the carrier if the division or the judge of compensation

21  claims determines that the punitive penalty should be made by

22  the employer rather than the carrier. Any additional

23  installment of compensation paid by the carrier pursuant to

24  this section shall be paid directly to the employee by check

25  or, if authorized by the employee, by direct deposit into the

26  employee's bank account or into a bank account which has been

27  established by the carrier for the employee.

28         (11)(a)  Upon joint petition of all interested parties,

29  a lump-sum payment in exchange for the employer's or carrier's

30  release from liability for future medical expenses, as well as

31  future payments of compensation expenses and any other

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  1  benefits provided under this chapter, shall be allowed at any

  2  time in any case in which the employer or carrier has filed a

  3  written notice of denial within 120 days after the employer

  4  receives notice date of the injury, and the judge of

  5  compensation claims at a hearing to consider the settlement

  6  proposal finds a justiciable controversy as to legal or

  7  medical compensability of the claimed injury or the alleged

  8  accident. A judge of compensation claims shall not be required

  9  to hold a hearing if the claimant is represented by an

10  attorney and all parties stipulate that a hearing is

11  unnecessary.  The employer or carrier may not pay any

12  attorney's fees on behalf of the claimant for any settlement

13  under this section unless expressly authorized elsewhere in

14  this chapter. Upon the joint petition of all interested

15  parties and after giving due consideration to the interests of

16  all interested parties, the judge of compensation claims may

17  enter a compensation order approving and authorizing the

18  discharge of the liability of the employer for compensation

19  and remedial treatment, care, and attendance, as well as

20  rehabilitation expenses, by the payment of a lump sum. Such a

21  compensation order so entered upon joint petition of all

22  interested parties is not subject to modification or review

23  under s. 440.28. If the settlement proposal together with

24  supporting evidence is not approved by the judge of

25  compensation claims, it shall be considered void. Upon

26  approval of a lump-sum settlement under this subsection, the

27  judge of compensation claims shall send a report to the Chief

28  Judge of the amount of the settlement and a statement of the

29  nature of the controversy. The Chief Judge shall keep a record

30  of all such reports filed by each judge of compensation claims

31

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  1  and shall submit to the Legislature a summary of all such

  2  reports filed under this subsection annually by September 15.

  3         Section 9.  Section 440.22, Florida Statutes, is

  4  amended to read:

  5         440.22  Assignment and exemption from claims of

  6  creditors.--No assignment, release, or commutation of

  7  compensation or benefits due or payable under this chapter

  8  except as provided by this chapter shall be valid, and such

  9  compensation and benefits shall be exempt from all claims of

10  creditors, and from levy, execution and attachments or other

11  remedy for recovery or collection of a debt, which exemption

12  may not be waived. However, the exemption of workers'

13  compensation claims from creditors does not extend to claims

14  based on an award of child support or alimony.

15         Section 10.  Section 440.271, Florida Statutes, is

16  amended to read:

17         440.271  Appeal of order of judge of compensation

18  claims.--Review of any order of a judge of compensation claims

19  entered pursuant to this chapter shall be by appeal to the

20  District Court of Appeal, First District. To promote

21  consistency and uniformity in the application of this chapter,

22  the District Court of Appeal, First District, shall establish

23  a specialized division to hear all appeals of orders of judges

24  of compensation claims.  The court may structure the division

25  to hear workers' compensation cases exclusively or in addition

26  to other appeals.  Appeals shall be filed in accordance with

27  rules of procedure prescribed by the Supreme Court for review

28  of such orders.  The division shall be given notice of any

29  proceedings pertaining to s. 440.25, regarding indigency, or

30  s. 440.49, regarding the Special Disability Trust Fund, and

31  shall have the right to intervene in any proceedings.

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  1         Section 11.  Subsection (1) of section 440.38, Florida

  2  Statutes, is amended to read:

  3         440.38  Security for compensation; insurance carriers

  4  and self-insurers.--

  5         (1)  Every employer shall secure the payment of

  6  compensation under this chapter:

  7         (a)  By insuring and keeping insured the payment of

  8  such compensation with any stock company or mutual company or

  9  association or exchange, authorized to do business in the

10  state;

11         (b)  By furnishing satisfactory proof to the division

12  of her or his financial ability to pay such compensation and

13  receiving an authorization from the division to pay such

14  compensation directly in accordance with the following

15  provisions:

16         1.  The division may, as a condition to such

17  authorization, require an such employer to deposit with in a

18  depository designated by the division a qualifying security

19  deposit.  The division shall determine the type and amount of

20  the qualifying security deposit and shall either an indemnity

21  bond or securities, at the option of the employer, of a kind

22  and in an amount determined by the division and subject to

23  such conditions as the division may prescribe conditions for

24  the qualifying security deposit, which shall include

25  authorization for to the division to call the qualifying

26  security deposit in the case of default to sell any such

27  securities sufficient to pay compensation awards or to bring

28  suit upon such bonds, to procure prompt payment of

29  compensation under this chapter.  In addition, the division

30  shall require, as a condition to authorization to self-insure,

31  proof that the employer has provided for competent personnel

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  1  with whom to deliver benefits and to provide a safe working

  2  environment.  Further, the division shall require such

  3  employer to carry reinsurance at levels that will ensure the

  4  actuarial soundness of such employer in accordance with rules

  5  promulgated by the division.  The division may by rule require

  6  that, in the event of an individual self-insurer's insolvency,

  7  such qualifying security deposits indemnity bonds, securities,

  8  and reinsurance policies are shall be payable to the Florida

  9  Self-Insurers Guaranty Association, Incorporated, created

10  pursuant to s. 440.385.  Any employer securing compensation in

11  accordance with the provisions of this paragraph shall be

12  known as a self-insurer and shall be classed as a carrier of

13  her or his own insurance.

14         2.  If the employer fails to maintain the foregoing

15  requirements, the division shall revoke the employer's

16  authority to self-insure, unless the employer provides to the

17  division the certified opinion of an independent actuary who

18  is a member of the American Society of Actuaries as to the

19  actuarial present value of the employer's determined and

20  estimated future compensation payments based on cash reserves,

21  using a 4-percent discount rate, and a qualifying security

22  deposit equal to 1.5 times the value so certified. The

23  employer shall thereafter annually provide such a certified

24  opinion until such time as the employer meets the requirements

25  of subparagraph 1.  The qualifying security deposit shall be

26  adjusted at the time of each such annual report.  Upon the

27  failure of the employer to timely provide such opinion or to

28  timely provide a security deposit in an amount equal to 1.5

29  times the value certified in the latest opinion, the division

30  shall then revoke such employer's authorization to

31  self-insure, and such failure shall be deemed to constitute an

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  1  immediate serious danger to the public health, safety, or

  2  welfare sufficient to justify the summary suspension of the

  3  employer's authorization to self-insure pursuant to s. 120.68.

  4         3.  Upon the suspension or revocation of the employer's

  5  authorization to self-insure, the employer shall provide to

  6  the division and to the Florida Self-Insurers Guaranty

  7  Association, Incorporated, created pursuant to s. 440.385 the

  8  certified opinion of an independent actuary who is a member of

  9  the American Society of Actuaries of the actuarial present

10  value of the determined and estimated future compensation

11  payments of the employer for claims incurred while the member

12  exercised the privilege of self-insurance, using a discount

13  rate of 4 percent. The employer shall provide such an opinion

14  at 6-month intervals thereafter until such time as the latest

15  opinion shows no remaining value of claims.  With each such

16  opinion, the employer shall deposit with the division a

17  qualifying security deposit in an amount equal to the value

18  certified by the actuary.  The association has a cause of

19  action against an employer, and against any successor of the

20  employer, who fails to timely provide such opinion or who

21  fails to timely maintain the required security deposit with

22  the division. The association shall recover a judgment in the

23  amount of the actuarial present value of the determined and

24  estimated future compensation payments of the employer for

25  claims incurred while the employer exercised the privilege of

26  self-insurance, together with attorney's fees.  For purposes

27  of this section, the successor of an employer means any

28  person, business entity, or group of persons or business

29  entities, which holds or acquires legal or beneficial title to

30  the majority of the assets or the majority of the shares of

31  the employer.

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  1         4.  A qualifying security deposit shall consist, at the

  2  option of the employer, of:

  3         a.  Surety bonds, in a form and containing such terms

  4  as prescribed by the division, issued by a corporation surety

  5  authorized to transact surety business by the Department of

  6  Insurance, and whose policyholders' and financial ratings, as

  7  reported in A.M. Best's Insurance Reports, Property-Liability,

  8  are not less than "A" and "V", respectively.

  9         b.  Certificates of deposit with financial

10  institutions, the deposits of which are insured through the

11  Federal Deposit Insurance Corporation or the Federal Savings

12  and Loan Insurance Corporation.

13         b.c.  Irrevocable letters of credit in favor of the

14  division issued by financial institutions located within this

15  state, the deposits of which are insured through the Federal

16  Deposit Insurance Corporation described in sub-subparagraph b.

17         d.  Direct obligations of the United States Treasury

18  backed by the full faith and credit of the United States.

19         e.  Securities issued by this state and backed by the

20  full faith and credit of this state.

21         5.  The qualifying security deposit shall be held by

22  the division, or by a depository authorized by the division,

23  exclusively for the benefit of workers' compensation

24  claimants. The security shall not be subject to assignment,

25  execution, attachment, or any legal process whatsoever, except

26  as necessary to guarantee the payment of compensation under

27  this chapter.  No surety bond may be terminated, and no letter

28  of credit other qualifying security may be allowed to expire

29  lapse, without 90 days' prior notice to the division and

30  deposit by the self-insuring employer of some other qualifying

31  security deposit of equal value within 10 business days after

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  1  such notice. Failure to provide such notice or failure to

  2  timely provide qualifying replacement security after such

  3  notice shall constitute grounds for the division to call or

  4  sue upon the surety bond, or to act with respect to other

  5  pledged security in any manner necessary to preserve its value

  6  for the purposes intended by this section, including the

  7  exercise its of rights under a letter of credit. Current

  8  self-insured employers must comply with this section on or

  9  before December 31, 2000, or upon maturity of existing

10  security deposits, whichever occurs later, the sale of any

11  security at then prevailing market rates, or the withdrawal of

12  any funds represented by any certificate of deposit forming

13  part of the qualifying security deposit;

14         (c)  By entering into a contract with a public utility

15  under an approved utility-provided self-insurance program as

16  set forth in s. 624.46225 440.571 in effect as of July 1,

17  1983.  The division shall adopt rules to implement this

18  paragraph;

19         (d)  By entering into an interlocal agreement with

20  other local governmental entities to create a local government

21  pool pursuant to s. 624.4622 440.575;

22         (e)  In accordance with s. 440.135, an employer, other

23  than a local government unit, may elect coverage under the

24  Workers' Compensation Law and retain the benefit of the

25  exclusiveness of liability provided in s. 440.11 by obtaining

26  a 24-hour health insurance policy from an authorized property

27  and casualty insurance carrier or an authorized life and

28  health insurance carrier, or by participating in a fully or

29  partially self-insured 24-hour health plan that is established

30  or maintained by or for two or more employers, so long as the

31  law of this state is not preempted by the Employee Retirement

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  1  Income Security Act of 1974, Pub. L. No. 93-406, or any

  2  amendment to that law, which policy or plan must provide, for

  3  at least occupational injuries and illnesses, medical benefits

  4  that are comparable to those required by this chapter. A local

  5  government unit, as a single employer, in accordance with s.

  6  440.135, may participate in the 24-hour health insurance

  7  coverage plan referenced in this paragraph. Disputes and

  8  remedies arising under policies issued under this section are

  9  governed by the terms and conditions of the policies and under

10  the applicable provisions of the Florida Insurance Code and

11  rules adopted under the insurance code and other applicable

12  laws of this state. The 24-hour health insurance policy may

13  provide for health care by a health maintenance organization

14  or a preferred provider organization. The premium for such

15  24-hour health insurance policy shall be paid entirely by the

16  employer. The 24-hour health insurance policy may use

17  deductibles and coinsurance provisions that require the

18  employee to pay a portion of the actual medical care received

19  by the employee. If an employer obtains a 24-hour health

20  insurance policy or self-insured plan to secure payment of

21  compensation as to medical benefits, the employer must also

22  obtain an insurance policy or policies that provide indemnity

23  benefits as follows:

24         1.  If indemnity benefits are provided only for

25  occupational-related disability, such benefits must be

26  comparable to those required by this chapter.

27         2.  If indemnity benefits are provided for both

28  occupational-related and nonoccupational-related disability,

29  such benefits must be comparable to those required by this

30  chapter, except that they must be based on 60 percent of the

31  average weekly wages.

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  1         3.  The employer shall provide for each of its

  2  employees life insurance with a death benefit of $100,000.

  3         4.  Policies providing coverage under this subsection

  4  must use prescribed and acceptable underwriting standards,

  5  forms, and policies approved by the Department of Insurance.

  6  If any insurance policy that provides coverage under this

  7  section is canceled, terminated, or nonrenewed for any reason,

  8  the cancellation, termination, or nonrenewal is ineffective

  9  until the self-insured employer or insurance carrier or

10  carriers notify the division and the Department of Insurance

11  of the cancellation, termination, or nonrenewal, and until the

12  division has actually received the notification. The division

13  must be notified of replacement coverage under a workers'

14  compensation and employer's liability insurance policy or plan

15  by the employer prior to the effective date of the

16  cancellation, termination, or nonrenewal; or

17         (f)  By entering into a contract with an individual

18  self-insurer under an approved individual

19  self-insurer-provided self-insurance program as set forth in

20  s. 624.46225 440.571.  The division may adopt rules to

21  implement this subsection.

22         Section 12.  Subsections (2) and (5) of section 440.45,

23  Florida Statutes, are amended to read:

24         440.45  Office of the Judges of Compensation Claims.--

25         (2)(a)  The Governor shall appoint full-time judges of

26  compensation claims to conduct proceedings as required by this

27  chapter or other law. No person may be nominated to serve as a

28  judge of compensation claims unless he or she has been a

29  member of The Florida Bar in good standing and is

30  knowledgeable in the practice of law of workers' compensation.

31

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  1  No judge of compensation claims shall engage in the private

  2  practice of law during a term of office.

  3         (b)  Except as provided in paragraph (c), the Governor

  4  shall appoint a judge of compensation claims from a list of

  5  three persons nominated by a statewide nominating commission.

  6  The statewide nominating commission shall be composed of the

  7  following:

  8         1.  Five members, at least one of whom must be a member

  9  of a minority group as defined in s. 288.703(3), one of each

10  who resides in each of the territorial jurisdictions of the

11  district courts of appeal, appointed by the Board of Governors

12  of The Florida Bar from among The Florida Bar members who are

13  engaged in the practice of law. On July 1, 1999, the term of

14  office of each person appointed by the Board of Governors of

15  The Florida Bar to the commission expires. The Board of

16  Governors shall appoint members who reside in the odd-numbered

17  district court of appeal jurisdictions to 4-year terms each,

18  beginning July 1, 1999, and members who reside in the

19  even-numbered district court of appeal jurisdictions to 2-year

20  terms each, beginning July 1, 1999. Thereafter, each member

21  shall be appointed for a 4-year term;

22         2.  Five electors, at least one of whom must be a

23  member of a minority group as defined in s. 288.703(3), one of

24  each who resides in each of the territorial jurisdictions of

25  the district courts of appeal, appointed by the Governor. On

26  July 1, 1999, the term of office of each person appointed by

27  the Governor to the commission expires. The Governor shall

28  appoint members who reside in the odd-numbered district court

29  of appeal jurisdictions to 2-year terms each, beginning July

30  1, 1999, and members who reside in the even-numbered district

31  court of appeal jurisdictions to 4-year terms each, beginning

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  1  July 1, 1999. Thereafter, each member shall be appointed for a

  2  4-year term; and

  3         3.  Five electors, at least one of whom must be a

  4  member of a minority group as defined in s. 288.703(3), one of

  5  each who resides in the territorial jurisdictions of the

  6  district courts of appeal, selected and appointed by a

  7  majority vote of the other 10 members of the commission. On

  8  October 1, 1999, the term of office of each person appointed

  9  to the commission by its other members expires. A majority of

10  the other members of the commission shall appoint members who

11  reside in the odd-numbered district court of appeal

12  jurisdictions to 2-year terms each, beginning October 1, 1999,

13  and members who reside in the even-numbered district court of

14  appeal jurisdictions to 4-year terms each, beginning October

15  1, 1999. Thereafter, each member shall be appointed for a

16  4-year term.

17

18  A vacancy occurring on the commission shall be filled by the

19  original appointing authority for the unexpired balance of the

20  term. No attorney who appears before any judge of compensation

21  claims more than four times a year is eligible to serve on the

22  statewide nominating commission. The meetings and

23  determinations of the nominating commission as to the judges

24  of compensation claims shall be open to the public.

25         (c)  Each judge of compensation claims shall be

26  appointed for a term of 4 years, but during the term of office

27  may be removed by the Governor for cause. Prior to the

28  expiration of a judge's term of office, the statewide

29  nominating commission shall review the judge's conduct and

30  determine whether the judge's performance is satisfactory. In

31  determining whether a judge's performance is satisfactory, the

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  1  commission shall consider the extent to which the judge has

  2  met the requirements of this chapter, including, but not

  3  limited to, the requirements of ss. 440.192(2), 440.25(1),

  4  440.25(4)(a)-(f), 440.34(2), and 440.442.  If the commission

  5  finds that judges generally are unable to meet a particular

  6  statutory requirement for reasons beyond their control, the

  7  commission shall request the Legislature to review that

  8  particular requirement. If the judge's performance is deemed

  9  satisfactory, the commission shall report its finding to the

10  Governor no later than 6 months prior to the expiration of the

11  judge's term of office. The Governor shall review the

12  commission's report and may reappoint the judge for an

13  additional 4-year term. If the Governor does not reappoint the

14  judge, the Governor shall inform the commission. The judge

15  shall remain in office until the Governor has appointed a

16  successor judge in accordance with paragraphs (a) and (b). If

17  a vacancy occurs during a judge's unexpired term, the

18  statewide nominating commission does not find the judge's

19  performance is satisfactory, or the Governor does not

20  reappoint the judge, the Governor shall appoint a successor

21  judge for a term of 4 years in accordance with paragraph (b).

22         (d)  The Governor may appoint any attorney with 3 years

23  of experience in the practice of law in this state to serve as

24  a judge of compensation claims pro hac vice in the absence or

25  disqualification of any full-time judge of compensation claims

26  or to serve temporarily as an additional judge of compensation

27  claims in any area of the state in which the Governor

28  determines that a need exists for such additional judge.

29  However, no attorney so appointed by the Governor shall serve

30  for a period to exceed 60 successive days.

31

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  1         (5)  The Office of the Judges of Compensation Claims

  2  shall promulgate rules to effect the purposes of this section.

  3  Such rules shall include procedural rules applicable to

  4  workers' compensation claim resolution and uniform criteria

  5  for measuring the performance of the office, including, but

  6  not limited to, the number of cases assigned and disposed, the

  7  age of pending and disposed cases, timeliness of

  8  decisionmaking, extraordinary fee awards, and the data

  9  necessary for the judicial nominating commission to review the

10  performance of judges as required in paragraph (2)(c) and

11  other performance indicators. On or before November 1, 2000,

12  the Office of the Judges of Compensation Claims shall submit a

13  draft of these rules to the Governor, the Speaker of the House

14  of Representatives, and the President of the Senate.  The

15  Legislature shall review the draft rules and may approve,

16  modify and approve, disapprove, or take no action on the

17  rules.  If the Legislature approves the draft rules, or

18  modifies and approves the draft rules, the draft rules shall

19  take effect.  If the Legislature takes no action on the draft

20  rules, the Office of the Judges of Compensation Claims shall

21  adopt the draft rules pursuant to chapter 120.  If the

22  Legislature disapproves the draft rules, the Legislature shall

23  convey the reasons for disapproval to the Office of the Judges

24  of Compensation Claims for use in redrafting the rules. The

25  workers' compensation rules of procedure approved by the

26  Supreme Court shall apply until the rules promulgated by the

27  Office of the Judges of Compensation Claims pursuant to this

28  section become effective.

29         Section 13.  Section 489.114, Florida Statutes, is

30  amended to read:

31

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  1         489.114  Evidence of workers' compensation

  2  coverage.--Except as provided in s. 489.115(5)(d), any person,

  3  business organization, or qualifying agent engaged in the

  4  business of contracting in this state and certified or

  5  registered under this part shall, as a condition precedent to

  6  the issuance or renewal of a certificate, registration, or

  7  certificate of authority of the contractor, provide to the

  8  Construction Industry Licensing Board, as provided by board

  9  rule, evidence of workers' compensation coverage pursuant to

10  chapter 440.  In the event that the Division of Workers'

11  Compensation of the Department of Labor and Employment

12  Security receives notice of the cancellation of a policy of

13  workers' compensation insurance insuring a person or entity

14  governed by this section, the Division of Workers'

15  Compensation shall certify and identify all persons or

16  entities by certification or registration license number to

17  the department after verification is made by the Division of

18  Workers' Compensation that such cancellation has occurred or

19  that persons or entities governed by this section are no

20  longer covered by workers' compensation insurance.  Such

21  certification and verification by the Division of Workers'

22  Compensation shall result solely from records furnished to the

23  Division of Workers' Compensation by the persons or entities

24  governed by this section.  The department shall notify the

25  persons or entities governed by this section who have been

26  determined to be in noncompliance with chapter 440, and the

27  persons or entities notified shall provide certification of

28  compliance with chapter 440 to the department and pay an

29  administrative fine as provided by rule.  The failure to

30  maintain workers' compensation coverage as required by law

31  shall be grounds for the board to revoke, suspend, or deny the

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  1  issuance or renewal of a certificate, registration, or

  2  certificate of authority of the contractor under the

  3  provisions of s. 489.129.

  4         Section 14.  Paragraph (d) is added to subsection (5)

  5  of section 489.115, Florida Statutes, to read:

  6         489.115  Certification and registration; endorsement;

  7  reciprocity; renewals; continuing education.--

  8         (5)

  9         (d)  If qualifying for an exemption from workers'

10  compensation coverage requirements under s. 440.05, an

11  applicant for initial issuance of a certificate or

12  registration shall submit as a prerequisite an affidavit

13  attesting to the fact that the applicant will obtain an

14  exemption within 10 days after the date the initial

15  certificate or registration is issued by the board.

16         Section 15.  Section 489.510, Florida Statutes, is

17  amended to read:

18         489.510  Evidence of workers' compensation

19  coverage.--Except as provided in s. 489.515(3)(b), any person,

20  business organization, or qualifying agent engaged in the

21  business of contracting in this state and certified or

22  registered under this part shall, as a condition precedent to

23  the issuance or renewal of a certificate or registration of

24  the contractor, provide to the Electrical Contractors'

25  Licensing Board, as provided by board rule, evidence of

26  workers' compensation coverage pursuant to chapter 440.  In

27  the event that the Division of Workers' Compensation of the

28  Department of Labor and Employment Security receives notice of

29  the cancellation of a policy of workers' compensation

30  insurance insuring a person or entity governed by this

31  section, the Division of Workers' Compensation shall certify

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  1  and identify all persons or entities by certification or

  2  registration license number to the department after

  3  verification is made by the Division of Workers' Compensation

  4  that such cancellation has occurred or that persons or

  5  entities governed by this section are no longer covered by

  6  workers' compensation insurance.  Such certification and

  7  verification by the Division of Workers' Compensation shall

  8  result solely from records furnished to the Division of

  9  Workers' Compensation by the persons or entities governed by

10  this section. The department shall notify the persons or

11  entities governed by this section who have been determined to

12  be in noncompliance with chapter 440, and the persons or

13  entities notified shall provide certification of compliance

14  with chapter 440 to the department and pay an administrative

15  fine as provided by rule.  The failure to maintain workers'

16  compensation coverage as required by law shall be grounds for

17  the board to revoke, suspend, or deny the issuance or renewal

18  of a certificate or registration of the contractor under the

19  provisions of s. 489.533.

20         Section 16.  Subsection (3) of section 489.515, Florida

21  Statutes, is amended to read:

22         489.515  Issuance of certificates; registrations.--

23         (3)(a)  As a prerequisite to the initial issuance or

24  the renewal of a certificate or registration, the applicant

25  shall submit an affidavit on a form provided by the board

26  attesting to the fact that the applicant has obtained both

27  workers' compensation insurance or an acceptable exemption

28  certificate issued by the department and public liability and

29  property damage insurance for the health, safety, and welfare

30  of the public in amounts determined by rule of the board. The

31

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  1  board shall by rule establish a procedure to verify the

  2  accuracy of such affidavits based upon a random audit method.

  3         (b)  If qualifying for an exemption from workers'

  4  compensation coverage requirements under s. 440.05, an

  5  applicant for initial issuance of a certificate or

  6  registration shall submit as a prerequisite an affidavit

  7  attesting to the fact that the applicant will obtain an

  8  exemption within 10 days after the date the initial

  9  certificate or registration is issued by the board.

10         Section 17.  Paragraphs (g) and (p) of subsection (4)

11  of section 627.311, Florida Statutes, are amended to read:

12         627.311  Joint underwriters and joint reinsurers.--

13         (4)

14         (g)  Whenever a deficit exists, the plan shall, within

15  90 days, provide the department with a program to eliminate

16  the deficit within a reasonable time. The deficit may be

17  funded both through increased premiums charged to insureds of

18  the plan for subsequent years, through the use of policyholder

19  surplus attributable to any year, and through assessments on

20  insureds in the plan if the plan uses assessable policies.

21         (p)  Neither the plan nor any member of the board of

22  governors is liable for monetary damages to any person for any

23  statement, vote, decision, or failure to act, regarding the

24  management or policies of the plan, unless:

25         1.  The member breached or failed to perform her or his

26  duties as a member; and

27         2.  The member's breach of, or failure to perform,

28  duties constitutes:

29         a.  A violation of the criminal law, unless the member

30  had reasonable cause to believe her or his conduct was not

31  unlawful. A judgment or other final adjudication against a

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  1  member in any criminal proceeding for violation of the

  2  criminal law estops that member from contesting the fact that

  3  her or his breach, or failure to perform, constitutes a

  4  violation of the criminal law; but does not estop the member

  5  from establishing that she or he had reasonable cause to

  6  believe that her or his conduct was lawful or had no

  7  reasonable cause to believe that her or his conduct was

  8  unlawful;

  9         b.  A transaction from which the member derived an

10  improper personal benefit, either directly or indirectly; or

11         c.  Recklessness or any act or omission that was

12  committed in bad faith or with malicious purpose or in a

13  manner exhibiting wanton and willful disregard of human

14  rights, safety, or property. For purposes of this

15  sub-subparagraph, the term "recklessness" means the acting, or

16  omission to act, in conscious disregard of a risk:

17         (I)  Known, or so obvious that it should have been

18  known, to the member; and

19         (II)  Known to the member, or so obvious that it should

20  have been known, to be so great as to make it highly probable

21  that harm would follow from such act or omission.

22         Section 18.  Effective July 1, 2000, section 627.914,

23  Florida Statutes, is amended to read:

24         627.914  Reports of information by workers'

25  compensation insurers required.--

26         (1)  The department shall promulgate rules and

27  statistical plans which shall thereafter be used by each

28  insurer and self-insurance fund as defined in s. 624.461 in

29  the recording and reporting of loss, expense, and claims

30  experience, in order that the experience of all insurers and

31  self-insurance funds self-insurers may be made available at

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  1  least annually in such form and detail as may be necessary to

  2  aid the department in determining whether Florida experience

  3  for workers' compensation insurance is sufficient for

  4  establishing rates.

  5         (2)  Any insurer authorized to write a policy of

  6  workers' compensation insurance shall transmit the following

  7  information to the department each year with its annual

  8  report, and such information shall be reported on a net basis

  9  with respect to reinsurance for nationwide experience and on a

10  direct basis for Florida experience:

11         (a)  Premiums written;

12         (b)  Premiums earned;

13         (c)  Dividends paid or credited to policyholders;

14         (d)  Losses paid;

15         (e)  Allocated loss adjustment expenses;

16         (f)  The ratio of allocated loss adjustment expenses to

17  losses paid;

18         (g)  Unallocated loss adjustment expenses;

19         (h)  The ratio of unallocated loss adjustment expenses

20  to losses paid;

21         (i)  The total of losses paid and unallocated and

22  allocated loss adjustment expenses;

23         (j)  The ratio of losses paid and unallocated and

24  allocated loss adjustment expenses to premiums earned;

25         (k)  The number of claims outstanding as of December 31

26  of each year;

27         (l)  The total amount of losses unpaid as of December

28  31 of each year;

29         (m)  The total amount of allocated and unallocated loss

30  adjustment expenses unpaid as of December 31 of each year; and

31

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  1         (n)  The total of losses paid and allocated loss

  2  adjustment expenses and unallocated loss adjustment expenses,

  3  plus the total of losses unpaid as of December 31 of each year

  4  and loss adjustment expenses unpaid as of December 31 of each

  5  year.

  6         (3)  A report of the information required in subsection

  7  (2) shall be filed no later than April 1 of each year and

  8  shall include the information for the preceding year ending

  9  December 31. All reports shall be on a calendar-accident year

10  basis, and each calendar-accident year shall be reported at

11  eight stages of development.

12         (2)(4)  Each insurer and self-insurance fund authorized

13  to write a policy of workers' compensation insurance shall

14  transmit the information for paragraphs (a), (b), (c), (d),

15  and (e) annually on both Florida experience and nationwide

16  experience separately:

17         (a)  Payrolls by classification.

18         (b)  Manual premiums by classification.

19         (c)  Standard premiums by classification.

20         (d)  Losses by classification and injury type.

21         (e)  Expenses.

22

23  A report of this information shall be filed no later than July

24  April 1 of each year.  All reports shall be filed in

25  accordance with standard reporting procedures for insurers,

26  which procedures have received approval by the department, and

27  shall contain data for the most recent policy period

28  available.  A statistical or rating organization may be used

29  by insurers and self-insurance funds to report the data

30  required by this section.  The statistical or rating

31  organization shall report each data element in the aggregate

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2000                                  SB 1992
    8-1297-00                                               See HB




  1  only for insurers and self-insurance funds required to report

  2  under this section who elect to have the rating organization

  3  report on their behalf. Such insurers and self-insurance funds

  4  shall be named in the report.

  5         (3)(5)  Individual self-insurers as defined authorized

  6  to transact workers' compensation insurance as provided in s.

  7  440.02 shall report only Florida data as prescribed in

  8  paragraphs (a) through (e) of subsection (2) (4) to the

  9  Division of Workers' Compensation of the Department of Labor

10  and Employment Security.

11         (a)  The Division of Workers' Compensation shall

12  publish the dates and forms necessary to enable individual

13  self-insurers to comply with this section.

14         (b)  The Division of Workers' Compensation shall report

15  the information collected under this section to the Department

16  of Insurance in a manner prescribed by the department.

17         (b)(c)  A statistical or rating organization may be

18  used by individual self-insurers for the purposes of reporting

19  the data required by this section and calculating experience

20  ratings.

21         (4)(6)  The department shall provide a summary of

22  information provided pursuant to subsection subsections (2)

23  and (4) in its annual report.

24         Section 19.  There is appropriated to the Department of

25  Labor and Employment Security from the Workers' Compensation

26  Trust Fund $1,400,000 for the purpose of hiring additional

27  mediators to carry out the functions of section 440.25(3),

28  Florida Statutes.

29         Section 20.  Subsection (3) of section 440.45, Florida

30  Statutes, is repealed.

31

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2000                                  SB 1992
    8-1297-00                                               See HB




  1         Section 21.  Except as otherwise provided in this act,

  2  this act shall take effect October 1, 2000.

  3

  4            *****************************************

  5                       LEGISLATIVE SUMMARY

  6    Revising various workers' compensation provisions
      relating to definitions; electronic payment of
  7    compensation payments; submission of medical reports and
      bills; provider access to medical records; medically
  8    necessary remedial treatment, care, and attendance
      requirements; grants or denials of requests for medical
  9    care; grievances; state contracts for collecting policy
      information; filing petitions for benefits; lump-sum
10    settlement requirements; creditor's claims; a specialized
      court division to hear workers' compensation cases;
11    qualifying security deposits for self-insured employers;
      judicial nominating commission reviews of judges of
12    compensation claims; appointment of judges by the
      Governor; rules of the Office of Judges of Compensation
13    Claims; certification and registration requirements for
      initial licensure; and reports of information by workers'
14    compensation insurers. (See bill for details.)

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