Senate Bill 0746c1

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    Florida Senate - 2000                            CS for SB 746

    By the Committee on Banking and Insurance; and Senators Clary,
    Lee, McKay, Brown-Waite and Casas




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  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 489.114, F.S.; revising workers'

  4         compensation coverage requirements; amending s.

  5         489.115, F.S.; revising certification and

  6         registration requirements for initial

  7         licensure; amending s. 489.510, F.S.; revising

  8         workers' compensation coverage requirements;

  9         amending s. 489.515, F.S.; revising

10         certification and registration requirements;

11         amending s. 440.38, F.S.; providing for the

12         type of qualifying security deposit necessary

13         to become a self-insured employer; amending s.

14         627.914, F.S.; revising the requirements of

15         reports of information by workers' compensation

16         insurers; conforming statutory

17         cross-references; providing an effective date.

18

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

20

21         Section 1.  Section 489.114, Florida Statutes, is

22  amended to read:

23         489.114  Evidence of workers' compensation

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

25  business organization, or qualifying agent engaged in the

26  business of contracting in this state and certified or

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

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

29  certificate of authority of the contractor, provide to the

30  Construction Industry Licensing Board, as provided by board

31  rule, evidence of workers' compensation coverage pursuant to

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

  2  Compensation of the Department of Labor and Employment

  3  Security receives notice of the cancellation of a policy of

  4  workers' compensation insurance insuring a person or entity

  5  governed by this section, the Division of Workers'

  6  Compensation shall certify and identify all persons or

  7  entities by certification or registration license number to

  8  the department after verification is made by the Division of

  9  Workers' Compensation that such cancellation has occurred or

10  that persons or entities governed by this section are no

11  longer covered by workers' compensation insurance.  Such

12  certification and verification by the Division of Workers'

13  Compensation shall result solely from records furnished to the

14  Division of Workers' Compensation by the persons or entities

15  governed by this section.  The department shall notify the

16  persons or entities governed by this section who have been

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

18  persons or entities notified shall provide certification of

19  compliance with chapter 440 to the department and pay an

20  administrative fine as provided by rule.  The failure to

21  maintain workers' compensation coverage as required by law

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

23  issuance or renewal of a certificate, registration, or

24  certificate of authority of the contractor under the

25  provisions of s. 489.129.

26         Section 2.  Paragraph (d) is added to subsection (5) of

27  section 489.115, Florida Statutes, to read:

28         489.115  Certification and registration; endorsement;

29  reciprocity; renewals; continuing education.--

30         (5)

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  1         (d)  If an applicant for initial licensure qualifies

  2  for an exemption from workers' compensation under s. 440.05,

  3  the department shall grant a license to the applicant who

  4  submits an affidavit on a form provided by the board attesting

  5  to the fact that the applicant will obtain such exemption

  6  within 10 days after initial licensure, if all other

  7  requirements for licensure are met.

  8         Section 3.  Section 489.510, Florida Statutes, is

  9  amended to read:

10         489.510  Evidence of workers' compensation

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

12  business organization, or qualifying agent engaged in the

13  business of contracting in this state and certified or

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

15  the issuance or renewal of a certificate or registration of

16  the contractor, provide to the Electrical Contractors'

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

18  workers' compensation coverage pursuant to chapter 440.  In

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

20  Department of Labor and Employment Security receives notice of

21  the cancellation of a policy of workers' compensation

22  insurance insuring a person or entity governed by this

23  section, the Division of Workers' Compensation shall certify

24  and identify all persons or entities by certification or

25  registration license number to the department after

26  verification is made by the Division of Workers' Compensation

27  that such cancellation has occurred or that persons or

28  entities governed by this section are no longer covered by

29  workers' compensation insurance.  Such certification and

30  verification by the Division of Workers' Compensation shall

31  result solely from records furnished to the Division of

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  1  Workers' Compensation by the persons or entities governed by

  2  this section. The department shall notify the persons or

  3  entities governed by this section who have been determined to

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

  5  entities notified shall provide certification of compliance

  6  with chapter 440 to the department and pay an administrative

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

  8  compensation coverage as required by law shall be grounds for

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

10  of a certificate or registration of the contractor under the

11  provisions of s. 489.533.

12         Section 4.  Subsection (3) of section 489.515, Florida

13  Statutes, is amended to read:

14         489.515  Issuance of certificates; registrations.--

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

16  the renewal of a certificate or registration, the applicant

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

18  attesting to the fact that the applicant has obtained both

19  workers' compensation insurance or an acceptable exemption

20  certificate issued by the department and public liability and

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

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

23  board shall by rule establish a procedure to verify the

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

25         (b)  If an applicant for initial licensure qualifies

26  for an exemption from workers' compensation under s. 440.05,

27  the department shall grant a license to the applicant who

28  submits an affidavit on a form provided by the board attesting

29  to the fact that the applicant will obtain such exemption

30  within 10 days after initial licensure, if all other

31  requirements for licensure are met.

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  1         Section 5.  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 such employer to deposit with in a

18  depository designated by the division a qualifying security

19  deposit either an indemnity bond or securities, at the option

20  of the employer, of a kind and in an amount determined by the

21  division and subject to such conditions as the division

22  prescribes may prescribe, which must shall include

23  authorization to the division in the case of default or in the

24  case of the individual self-insured employer ceasing or

25  suspending the payment of compensation to its employees as

26  required in this chapter to call the qualifying security

27  deposit sell any such securities sufficient to pay

28  compensation awards or to bring suit upon such bonds, to

29  ensure procure prompt payment of compensation under this

30  chapter.  In addition, the division shall require, as a

31  condition to authorization to self-insure, proof that the

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  1  employer has provided for competent personnel with whom to

  2  deliver benefits and to provide a safe working environment.

  3  Further, the division shall require such employer to carry

  4  reinsurance at levels that will ensure the actuarial soundness

  5  of such employer in accordance with rules promulgated by the

  6  division.  The division may by rule require that, in the event

  7  of an individual self-insurer's insolvency, such qualifying

  8  security deposit indemnity bonds, securities, and reinsurance

  9  policies are shall be payable to the Florida Self-Insurers

10  Guaranty Association, Incorporated, created pursuant to s.

11  440.385.  Any employer securing compensation in accordance

12  with the provisions of this paragraph shall be known as a

13  self-insurer and shall be classed as a carrier of her or his

14  own insurance.

15         2.  If the employer fails to maintain the foregoing

16  requirements, the division shall revoke the employer's

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

18  division the certified opinion of an independent actuary who

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

20  actuarial present value of the employer's determined and

21  estimated future compensation payments based on cash reserves,

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

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

24  employer shall thereafter annually provide such a certified

25  opinion until such time as the employer meets the requirements

26  of subparagraph 1.  The qualifying security deposit shall be

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

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

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

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

31  shall then revoke such employer's authorization to

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

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

  3  welfare sufficient to justify the summary suspension of the

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

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

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

  7  the division and to the Florida Self-Insurers Guaranty

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

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

10  the American Society of Actuaries of the actuarial present

11  value of the determined and estimated future compensation

12  payments of the employer for claims incurred while the member

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

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

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

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

17  opinion, the employer shall deposit with the division a

18  qualifying security deposit in an amount equal to the value

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

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

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

22  fails to timely maintain the required security deposit with

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

24  amount of the actuarial present value of the determined and

25  estimated future compensation payments of the employer for

26  claims incurred while the employer exercised the privilege of

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

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

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

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

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  1  the majority of the assets or the majority of the shares of

  2  the employer.

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

  4  option of the employer, of:

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

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

  7  authorized to transact surety business by the Department of

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

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

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

11         b.  Certificates of deposit with financial

12  institutions, the deposits of which are insured through the

13  Federal Deposit Insurance Corporation or the Federal Savings

14  and Loan Insurance Corporation.

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

16  division issued by financial institutions located within this

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

18  Deposit Insurance Corporation described in sub-subparagraph b.

19         d.  Direct obligations of the United States Treasury

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

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

22  full faith and credit of this state.

23         5.  The qualifying security deposit shall be held by

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

25  exclusively for the benefit of workers' compensation

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

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

28  as necessary to guarantee the payment of compensation under

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

30  of credit other qualifying security may be allowed to expire

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

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

  2  security deposit of equal value within 10 business days after

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

  4  timely provide qualifying replacement security after such

  5  notice shall constitute grounds for the division to call or

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

  7  pledged security in any manner necessary to preserve its value

  8  for the purposes intended by this section, including the

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

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

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

12  security deposits, whichever occurs later;, the sale of any

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

14  any funds represented by any certificate of deposit forming

15  part of the qualifying security deposit;

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

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

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

19  1983.  The division shall adopt rules to implement this

20  paragraph;

21         (d)  By entering into an interlocal agreement with

22  other local governmental entities to create a local government

23  pool pursuant to s. 624.4622 s. 440.575;

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

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

26  Workers' Compensation Law and retain the benefit of the

27  exclusiveness of liability provided in s. 440.11 by obtaining

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

29  and casualty insurance carrier or an authorized life and

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

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

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

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

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

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

  5  at least occupational injuries and illnesses, medical benefits

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

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

  8  440.135, may participate in the 24-hour health insurance

  9  coverage plan referenced in this paragraph. Disputes and

10  remedies arising under policies issued under this section are

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

12  the applicable provisions of the Florida Insurance Code and

13  rules adopted under the insurance code and other applicable

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

15  provide for health care by a health maintenance organization

16  or a preferred provider organization. The premium for such

17  24-hour health insurance policy shall be paid entirely by the

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

19  deductibles and coinsurance provisions that require the

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

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

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

23  compensation as to medical benefits, the employer must also

24  obtain an insurance policy or policies that provide indemnity

25  benefits as follows:

26         1.  If indemnity benefits are provided only for

27  occupational-related disability, such benefits must be

28  comparable to those required by this chapter.

29         2.  If indemnity benefits are provided for both

30  occupational-related and nonoccupational-related disability,

31  such benefits must be comparable to those required by this

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

  2  average weekly wages.

  3         3.  The employer shall provide for each of its

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

  5         4.  Policies providing coverage under this subsection

  6  must use prescribed and acceptable underwriting standards,

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

  8  If any insurance policy that provides coverage under this

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

10  the cancellation, termination, or nonrenewal is ineffective

11  until the self-insured employer or insurance carrier or

12  carriers notify the division and the Department of Insurance

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

14  division has actually received the notification. The division

15  must be notified of replacement coverage under a workers'

16  compensation and employer's liability insurance policy or plan

17  by the employer prior to the effective date of the

18  cancellation, termination, or nonrenewal; or

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

20  self-insurer under an approved individual

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

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

23  implement this subsection.

24         Section 6.  Effective July 1, 2000, section 627.914,

25  Florida Statutes, is amended to read:

26         627.914  Reports of information by workers'

27  compensation insurers required.--

28         (1)  The department shall promulgate rules and

29  statistical plans which shall thereafter be used by each

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

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

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

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

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

  4  aid the department in determining whether Florida experience

  5  for workers' compensation insurance is sufficient for

  6  establishing rates.

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

  8  workers' compensation insurance shall transmit the following

  9  information to the department each year with its annual

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

11  with respect to reinsurance for nationwide experience and on a

12  direct basis for Florida experience:

13         (a)  Premiums written;

14         (b)  Premiums earned;

15         (c)  Dividends aid or credited to policyholders;

16         (d)  Losses paid;

17         (e)  Allocated loss adjustment expenses;

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

19  losses paid;

20         (g)  Unallocated loss adjustment expenses;

21         (h)  The ratio of unallocated loss adjustment expenses

22  to losses paid;

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

24  allocated loss adjustment expenses;

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

26  allocated loss adjustment expenses to premiums earned;

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

28  of each year;

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

30  31 of each year;

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

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

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

  4  adjustment expenses and unallocated loss adjustment expenses,

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

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

  7  year.

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

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

10  shall include the information for the preceding year ending

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

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

13  eight stages of development.

14         (2)(4)  Each insurer and self-insurance fund authorized

15  to write a policy of workers' compensation insurance shall

16  transmit the information for paragraphs (a) through (e) (a),

17  (b), (d), and (e) annually on both Florida experience and

18  nationwide experience separately:

19         (a)  Payrolls by classification.

20         (b)  Manual premiums by classification.

21         (c)  Standard premiums by classification.

22         (d)  Losses by classification and injury type.

23         (e)  Expenses.

24

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

26  1 April 1 of each year.  All reports shall be filed in

27  accordance with standard reporting procedures for insurers,

28  which procedures have received approval by the department, and

29  shall contain data for the most recent policy period

30  available.  A statistical or rating organization may be used

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

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  1  required by this section.  The statistical or rating

  2  organization shall report each data element in the aggregate

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

  4  under this section who elect to have the rating organization

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

  6  shall be named in the report.

  7         (3)(5)  Individual self-insurers Self-insurers

  8  authorized to transact workers' compensation insurance as

  9  provided in s. 440.02(21)(a) s. 440.02 shall report only

10  Florida data as prescribed in paragraphs (a) through (e) of

11  subsection (2) (4) to the Division of Workers' Compensation of

12  the Department of Labor and Employment Security.

13         (a)  The Division of Workers' Compensation shall

14  publish the dates and forms necessary to enable individual

15  self-insurers to comply with this section.

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

17  the information collected under this section to the Department

18  of Insurance in a manner prescribed by the department.

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

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

21  the data required by this section and calculating experience

22  ratings.

23         (4)(6)  The department shall provide a summary of

24  information provided pursuant to subsection subsections (2)

25  and (4) in its annual report.

26         Section 7.  This act shall take effect upon becoming a

27  law.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 746

  3

  4  The committee substitute makes the following changes:

  5  Requires the Department of Business and Professional
    Regulation to issue initial licenses to individuals seeking to
  6  engage in the business of contracting in Florida if the
    applicant:
  7
    1)    qualifies for an exemption from workers' compensation
  8        coverage under s. 440.05, F.S.;

  9  2)    submits an affidavit on a form provided by the
          applicable regulatory board attesting to the fact that
10        the applicant will obtain such exemption within 10 days
          of initial licensure; and
11
    3)    meets all other requirements for licensure. An
12        individual seeking an exemption from workers'
          compensation coverage would still be required to provide
13        proof of licensure under ch. 489, F.S., to the Division
          of Workers' Compensation prior to obtaining an exemption
14        from coverage.

15  Revises the deadline for individual self-insured employers to
    comply with the revised workers' compensation security deposit
16  requirements from on or before December 21, 2000, to December
    31, 2000, or upon maturity of the security deposits, whichever
17  occurs later.

18  Amends s. 627.914, F.S., effective July 1, 2000, to delete the
    requirement that insurers report certain workers' compensation
19  data to the Department of Insurance, which is duplicative of
    data that is submitted to the department by statistical agents
20  for the insurers; and changes the date for a rating
    organization to submit an aggregate compilation of payrolls,
21  premium, losses, and expense for all companies from April 1,
    to July 1 of each year, which will improve the quality and
22  timeliness of the data.

23  Eliminates the Division of Workers' Compensation rulemaking
    authority, as authorized by the bill, for establishing net
24  worth and security deposit requirements.

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