Senate Bill sb1140

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    Florida Senate - 2001                                  SB 1140

    By Senator Villalobos





    37-660-01

  1                      A bill to be entitled

  2         An act relating to self-insurers; amending s.

  3         440.38, F.S.; transferring operation of

  4         provisions requiring the securing of payment of

  5         compensation by employers from the Division of

  6         Workers' Compensation of the Department of

  7         Labor and Employment Security to the Florida

  8         Self-Insurer's Guaranty Association,

  9         Incorporated, and the Department of Insurance;

10         revising and clarifying requirements and

11         procedures; providing powers and duties of the

12         association and the departments; providing for

13         allocation or payment of state funds to the

14         association for certain purposes; providing

15         rulemaking authority; amending s. 440.385,

16         F.S.; revising and clarifying provisions

17         relating to the association's creation, board

18         of directors, powers and duties, insolvency

19         fund, and plan of operation; providing

20         additional powers of the association;

21         transferring the powers and duties of the

22         Department of Labor and Employment Security

23         relating to the association to the Department

24         of Insurance and revising such powers and

25         duties; providing additional powers and duties

26         of the Department of Insurance; providing for

27         oversight of the association by the department;

28         deleting a provision relating to detection and

29         prevention of employer insolvencies; amending

30         s. 440.386, F.S.; providing parity for the

31         association with the Department of Insurance

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  1         relating to proceedings for delinquency,

  2         liquidation, and conservation of assets;

  3         providing an effective date.

  4

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

  6

  7         Section 1.  Subsections (1), (2), and (3) of section

  8  440.38, Florida Statutes, are amended to read:

  9         440.38  Security for compensation; insurance carriers

10  and self-insurers.--

11         (1)  Every employer shall secure the payment of

12  compensation under this chapter:

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

14  such compensation with any stock company or mutual company or

15  association or exchange, authorized to do business in the

16  state;

17         (b)  By furnishing satisfactory proof to the Florida

18  Self-Insurers Guaranty Association, Incorporated, created in

19  s. 440.385, that it has the financial strength necessary to

20  assure timely payment of all current and future claims

21  division of its financial ability to pay such compensation

22  individually and on behalf of its subsidiary and affiliated

23  companies with employees in this state and receiving an

24  authorization from the Department of Insurance, division to

25  pay such compensation directly. The association shall review

26  the financial strength of applicants for membership, current

27  members, and former members and make recommendations to the

28  department regarding their qualifications to self-insure in

29  accordance with this act and ss. 440.385 and 440.386. The

30  Department of Insurance shall act in accordance with such

31  recommendations unless it determines by clear and convincing

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  1  evidence that the recommendations are erroneous. the following

  2  provisions:

  3         1.  The association division may recommend that the

  4  Department of Insurance, as a condition to such authorization,

  5  require an such employer to deposit with in a depository

  6  designated by the association a qualifying deposit. The

  7  association shall recommend the type and amount of the

  8  qualifying security deposit and shall division either an

  9  indemnity bond or securities, at the option of the employer,

10  of a kind and in an amount determined by the division and

11  subject to such conditions as the division may prescribe

12  conditions for the qualifying security deposit, which shall

13  include authorization for to the association to call the

14  qualifying security deposit division in the case of default to

15  sell any such securities sufficient to pay compensation awards

16  and related expenses of the association or to bring suit upon

17  such bonds, to procure prompt payment of compensation under

18  this chapter.  In addition, the division shall require, As a

19  condition to authorization to self-insure, the employer shall

20  provide proof that the employer has provided for competent

21  personnel with whom to deliver benefits and to provide a safe

22  working environment.  Further, The employer division shall

23  also provide evidence of require such employer to carry

24  reinsurance at levels that will ensure the financial strength

25  and actuarial soundness of such employer in accordance with

26  rules adopted promulgated by the Department of Insurance

27  division.  The Department of Insurance division may by rule

28  require that, in the event of an individual self-insurer's

29  insolvency, such qualifying security deposits indemnity bonds,

30  securities, and reinsurance policies are shall be payable to

31  the association Florida Self-Insurers Guaranty Association,

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  1  Incorporated, created pursuant to s. 440.385.  Any employer

  2  securing compensation in accordance with the provisions of

  3  this paragraph shall be known as a self-insurer and shall be

  4  classed as a carrier of her or his own insurance. All such

  5  employers shall, if requested, provide the association an

  6  actuarial report signed by a member of the American Academy of

  7  Actuaries providing an opinion of the appropriate present

  8  value of the reserves for current and future compensation

  9  claims. If any member or former member of the association

10  refuses to timely provide such a report, the association may

11  obtain an order from a circuit court requiring the member to

12  produce such a report and ordering such other relief as the

13  court determines appropriate. The association shall be

14  entitled to recover all reasonable costs and attorney's fees

15  in such proceedings.

16         2.  If the employer fails to maintain the foregoing

17  requirements, the association division shall recommend to the

18  Department of Insurance that it revoke the employer's

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

20  association division the certified opinion of an independent

21  actuary who is a member of the American Academy Society of

22  Actuaries as to the actuarial present value of the employer's

23  determined and estimated future compensation payments based on

24  cash reserves, using a 4-percent discount rate, and a

25  qualifying security deposit equal to 1.5 times the value so

26  certified. The employer shall thereafter annually provide such

27  a certified opinion until such time as the employer meets the

28  requirements of subparagraph 1.  The qualifying security

29  deposit shall be adjusted at the time of each such annual

30  report.  Upon the failure of the employer to timely provide

31  such opinion or to timely provide a security deposit in an

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  1  amount equal to 1.5 times the value certified in the latest

  2  opinion, the association shall recommend and the Department of

  3  Insurance division shall then revoke such employer's

  4  authorization to self-insure., and such Failure to comply with

  5  this provision shall be deemed to constitute an immediate

  6  serious danger to the public health, safety, or welfare

  7  sufficient to justify the summary suspension of the employer's

  8  authorization to self-insure pursuant to s. 120.68.

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

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

11  the division and to the Florida Self-Insurers Guaranty

12  association, Incorporated, created pursuant to s. 440.385 the

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

14  the American Academy Society of Actuaries of the actuarial

15  present value of the determined and estimated future

16  compensation payments of the employer for claims incurred

17  while the member exercised the privilege of self-insurance,

18  using a discount rate of 4 percent. The employer shall provide

19  such an opinion at 6-month intervals thereafter until such

20  time as the latest opinion shows no remaining value of claims.

21  With each such opinion, the employer shall deposit with the

22  association division a qualifying security deposit in an

23  amount equal to the value certified by the actuary.  The

24  association has a cause of action against an employer, and

25  against any successor of the employer, who fails to timely

26  provide such opinion or who fails to timely maintain the

27  required security deposit with the association division. The

28  association shall recover a judgment in the amount of the

29  actuarial present value of the determined and estimated future

30  compensation payments of the employer for claims incurred

31  while the employer exercised the privilege of self-insurance,

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  1  together with attorney's fees.  For purposes of this section,

  2  the successor of an employer means any person, business

  3  entity, or group of persons or business entities, which holds

  4  or acquires legal or beneficial title to the majority of the

  5  assets or the majority of the shares of the employer.

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

  7  option of the employer, of:

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

  9  as prescribed by the association division, issued by a

10  corporation surety authorized to transact surety business by

11  the Department of Insurance, and whose policyholders' and

12  financial ratings, as reported in A.M. Best's Insurance

13  Reports, Property-Liability, are not less than "A" and "V",

14  respectively.

15         b.  Certificates of deposit with financial

16  institutions, the deposits of which are insured through the

17  Federal Deposit Insurance Corporation or the Federal Savings

18  and Loan Insurance Corporation.

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

20  association division issued by financial institutions located

21  within this state, the deposits of which are insured through

22  the Federal Deposit Insurance Corporation described in

23  sub-subparagraph b.

24         d.  Direct obligations of the United States Treasury

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

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

27  full faith and credit of this state.

28         5.  The qualifying security deposit shall be held by

29  the association division, or by a depository authorized by the

30  division, exclusively for the benefit of workers' compensation

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

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

  2  as necessary to guarantee the payment of compensation under

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

  4  of credit other qualifying security may be allowed to expire

  5  lapse, without 90 days' prior written notice to the

  6  association division and the deposit by the self-insuring

  7  employer of some other qualifying security deposit of equal

  8  value within 10 business days after such notice. Failure to

  9  provide such written notice or failure to timely provide

10  qualifying replacement security after such notice shall

11  constitute grounds for the association division to call or sue

12  upon the surety bond, or to act with respect to other pledged

13  security in any manner necessary to preserve its value for the

14  purposes intended by this section, including the exercise its

15  of rights under a letter of credit. Current self-insured

16  employers must comply with this section on or before December

17  31, 2001, or upon maturity of existing security deposits,

18  whichever occurs later the sale of any security at then

19  prevailing market rates, or the withdrawal of any funds

20  represented by any certificate of deposit forming part of the

21  qualifying security deposit. The Department of Insurance

22  division may specify by rule the amount of the qualifying

23  security deposit required prior to authorizing an employer to

24  self-insure and the amount of net worth required for an

25  employer to qualify for authorization to self-insure;

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

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

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

29  1983.  The Department of Insurance division shall adopt rules

30  to implement this paragraph;

31

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  1         (d)  By entering into an interlocal agreement with

  2  other local governmental entities to create a local government

  3  pool pursuant to s. 624.4622;

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

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

  6  Workers' Compensation Law and retain the benefit of the

  7  exclusiveness of liability provided in s. 440.11 by obtaining

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

  9  and casualty insurance carrier or an authorized life and

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

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

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

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

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

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

16  at least occupational injuries and illnesses, medical benefits

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

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

19  440.135, may participate in the 24-hour health insurance

20  coverage plan referenced in this paragraph. Disputes and

21  remedies arising under policies issued under this section are

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

23  the applicable provisions of the Florida Insurance Code and

24  rules adopted under the insurance code and other applicable

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

26  provide for health care by a health maintenance organization

27  or a preferred provider organization. The premium for such

28  24-hour health insurance policy shall be paid entirely by the

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

30  deductibles and coinsurance provisions that require the

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

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

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

  3  compensation as to medical benefits, the employer must also

  4  obtain an insurance policy or policies that provide indemnity

  5  benefits as follows:

  6         1.  If indemnity benefits are provided only for

  7  occupational-related disability, such benefits must be

  8  comparable to those required by this chapter.

  9         2.  If indemnity benefits are provided for both

10  occupational-related and nonoccupational-related disability,

11  such benefits must be comparable to those required by this

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

13  average weekly wages.

14         3.  The employer shall provide for each of its

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

16         4.  Policies providing coverage under this subsection

17  must use prescribed and acceptable underwriting standards,

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

19  If any insurance policy that provides coverage under this

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

21  the cancellation, termination, or nonrenewal is ineffective

22  until the self-insured employer or insurance carrier or

23  carriers notify the division and the Department of Insurance

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

25  Department of Insurance division has actually received the

26  notification. The Department of Insurance division must be

27  notified of replacement coverage under a workers' compensation

28  and employer's liability insurance policy or plan by the

29  employer prior to the effective date of the cancellation,

30  termination, or nonrenewal; or

31

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

  2  self-insurer under an approved individual

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

  4  s. 624.46225.  The Department of Insurance division may adopt

  5  rules to implement this subsection.

  6         (2)(a)  The Department of Insurance division shall

  7  adopt rules by which businesses may become qualified to

  8  provide underwriting claims-adjusting, loss control, and

  9  safety engineering services to self-insurers.

10         (b)  The Department of Insurance division shall adopt

11  rules requiring self-insurers to file any reports necessary to

12  fulfill the requirements of this chapter.  Any self-insurer

13  who fails to file any report as prescribed by the rules

14  adopted by the department division shall be subject to a civil

15  penalty not to exceed $100 per month, not to exceed $1,000,

16  for each such failure.

17         (3)(a)  The license of any stock company or mutual

18  company or association or exchange authorized to do insurance

19  business in the state shall for good cause, upon

20  recommendation of the division, be suspended or revoked by the

21  Department of Insurance.  No suspension or revocation shall

22  affect the liability of any carrier already incurred.

23         (a)(b)  The Department of Insurance division shall

24  suspend or revoke any authorization to a self-insurer for

25  failure to comply with this act or for good cause, as defined

26  by rule of the department division. No suspension or

27  revocation shall affect the liability of any self-insurer

28  already incurred.

29         (b)(c)  Violation of s. 440.381 by a self-insurance

30  fund shall result in the imposition of a fine not to exceed

31  $1,000 per audit if the self-insurance fund fails to act on

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  1  said audits by correcting errors in employee classification or

  2  accepted applications for coverage where it knew employee

  3  classifications were incorrect.  Such fines shall be levied by

  4  the Department of Insurance division and deposited into the

  5  Workers' Compensation Administration Trust Fund.

  6         Section 2.  Section 440.385, Florida Statutes, is

  7  amended to read:

  8         440.385  Florida Self-Insurers Guaranty Association,

  9  Incorporated.--

10         (1)  CREATION OF ASSOCIATION.--

11         (a)  There is created a nonprofit corporation to be

12  known as the "Florida Self-Insurers Guaranty Association,

13  Incorporated," hereinafter referred to as "the association."

14  Upon incorporation of the association, all individual

15  self-insurers as defined in ss. 440.02(23)(a) and

16  440.38(1)(b), other than individual self-insurers which are

17  public utilities or governmental entities, shall be members of

18  the association as a condition of their authority to

19  individually self-insure in this state.  The association shall

20  perform its functions under a plan of operation as established

21  and approved under subsection (5) and shall exercise its

22  powers and duties through a board of directors as established

23  under subsection (2). The corporation shall have those powers

24  granted or permitted corporations not for profit, as provided

25  in chapter 617. The activities of the association shall be

26  subject to review by the Department of Insurance.  The

27  Department of Insurance shall have oversight responsibility as

28  set forth in this act.  The corporation is specifically

29  authorized to enter into agreements with the State of Florida

30  to perform services previously performed by the Self-Insurance

31

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  1  Section of the Bureau of Operations Support of the Department

  2  of Labor and Employment Security.

  3         (b)  A member may voluntarily withdraw from the

  4  association when the member voluntarily terminates the

  5  self-insurance privilege and pays all assessments due to the

  6  date of such termination.  However, the withdrawing member

  7  shall continue to be bound by the provisions of this section

  8  relating to the period of his or her membership and any claims

  9  charged pursuant thereto.  The withdrawing member who is a

10  member on or after January 1, 1991, shall also be required to

11  provide to the association division upon withdrawal, and at

12  12-month intervals thereafter, satisfactory proof, including,

13  if requested by the association, a report of known and

14  potential claims certified by a member of the American Academy

15  of Actuaries, that it continues to meet the standards of s.

16  440.38(1)(b)1. in relation to claims incurred while the

17  withdrawing member exercised the privilege of self-insurance.

18  Such reporting shall continue until the withdrawing member

19  demonstrates to satisfies the association division that there

20  is no remaining value to claims incurred while the withdrawing

21  member was self-insured. If a withdrawing member fails or

22  refuses to timely provide an actuarial report to the

23  association, the association may obtain an order from a

24  circuit court requiring the member to produce such a report

25  and ordering such other relief as the court determines

26  appropriate.  The association shall be entitled to recover all

27  reasonable costs and attorney's fees expended in such

28  proceedings. If during this reporting period the withdrawing

29  member fails to meet the standards of s. 440.38(1)(b)1., the

30  withdrawing member who is a member on or after January 1,

31  1991, shall thereupon, and at 6-month intervals thereafter,

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  1  provide to the division and the association the certified

  2  opinion of an independent actuary who is a member of the

  3  American Academy Society of Actuaries of the actuarial present

  4  value of the determined and estimated future compensation

  5  payments of the member for claims incurred while the member

  6  was a self-insurer, using a discount rate of 4 percent.  With

  7  each such opinion, the withdrawing member shall deposit with

  8  the association division security in an amount equal to the

  9  value certified by the actuary and of a type that is

10  acceptable for qualifying security deposits under s.

11  440.38(1)(b).  The withdrawing member shall continue to

12  provide such opinions and to provide such security until such

13  time as the latest opinion shows no remaining value of claims.

14  The association has a cause of action against a withdrawing

15  member, and against any successor of a withdrawing member, who

16  fails to timely provide the required opinion or who fails to

17  maintain the required deposit with the division.  The

18  association shall be entitled to recover a judgment in the

19  amount of the actuarial present value of the determined and

20  estimated future compensation payments of the withdrawing

21  member for claims incurred during the time that the

22  withdrawing member exercised the privilege of self-insurance,

23  together with reasonable attorney's fees. The association is

24  also entitled to recover reasonable attorney's fees in any

25  action to compel production of any actuarial report required

26  by this statute. For purposes of this section, the successor

27  of a withdrawing member means any person, business entity, or

28  group of persons or business entities, which holds or acquires

29  legal or beneficial title to the majority of the assets or the

30  majority of the shares of the withdrawing member.

31

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  1         (2)  BOARD OF DIRECTORS.--The board of directors of the

  2  association shall consist of nine persons and shall be

  3  organized as established in the plan of operation. All board

  4  members shall be experienced in self-insurance in this state.

  5  With respect to initial appointments, the Secretary of Labor

  6  and Employment Security shall, by July 15, 1982, approve and

  7  appoint to the board persons who are experienced with

  8  self-insurance in this state and who are recommended by the

  9  individual self-insurers in this state required to become

10  members of the association pursuant to the provisions of

11  paragraph (1)(a). In the event the secretary finds that any

12  person so recommended does not have the necessary

13  qualifications for service on the board and a majority of the

14  board has been appointed, the secretary shall request the

15  directors thus far approved and appointed to recommend another

16  person for appointment to the board. Each director shall serve

17  for a 4-year term and may be reappointed.  Appointments after

18  March 21, 2001, other than initial appointments shall be made

19  by the Insurance Commissioner Secretary of Labor and

20  Employment Security upon recommendation of members of the

21  association.  Any vacancy on the board shall be filled for the

22  remaining period of the term in the same manner as

23  appointments other than initial appointments are made. Each

24  director shall be reimbursed for expenses incurred in carrying

25  out the duties of the board on behalf of the association.

26         (3)  POWERS AND DUTIES.--

27         (a)  Upon creation of the Insolvency Fund pursuant to

28  the provisions of subsection (4), the association is obligated

29  for payment of compensation under this chapter to insolvent

30  members' employees resulting from incidents and injuries

31  existing prior to the member becoming an insolvent member and

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  1  from incidents and injuries occurring within 30 days after the

  2  member has become an insolvent member, provided the incidents

  3  giving rise to claims for compensation under this chapter

  4  occur during the year in which such insolvent member is a

  5  member of the guaranty fund and was assessable pursuant to the

  6  plan of operation, and provided the employee makes timely

  7  claim for such payments according to procedures set forth by a

  8  court of competent jurisdiction over the delinquency or

  9  bankruptcy proceedings of the insolvent member. Such

10  obligation includes only that amount due the injured worker or

11  workers of the insolvent member under this chapter.  In no

12  event is the association obligated to a claimant in an amount

13  in excess of the obligation of the insolvent member.  The

14  association shall be deemed the insolvent employer for

15  purposes of this chapter to the extent of its obligation on

16  the covered claims and, to such extent, shall have all rights,

17  duties, and obligations of the insolvent employer as if the

18  employer had not become insolvent. However, in no event shall

19  the association be liable for any penalties or interest.

20         (b)  The association may:

21         1.  Employ or retain such persons as are necessary to

22  handle claims and perform other duties of the association.

23         2.  Borrow funds necessary to effect the purposes of

24  this section in accord with the plan of operation.

25         3.  Sue or be sued.

26         4.  Negotiate and become a party to such contracts as

27  are necessary to carry out the purposes of this section.

28         5.  Purchase such reinsurance as is determined

29  necessary pursuant to the plan of operation.

30         6.  Review all applicants for membership in the

31  association to determine whether the applicant is qualified

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  1  for membership under the law.  The association shall recommend

  2  to the Department of Insurance that the application be

  3  accepted or rejected based on the criteria set forth in s.

  4  440.38(1)(b).  The department shall approve or disapprove the

  5  application as provided in subsection (6).  Prior to a final

  6  determination by the Division of Workers' Compensation as to

  7  whether or not to approve any applicant for membership in the

  8  association, the association may issue opinions to the

  9  division concerning any applicant, which opinions shall be

10  considered by the division prior to any final determination.

11         7.  Collect and review financial information from

12  employers and make recommendations to the Department of

13  Insurance regarding the appropriate security deposit and

14  reinsurance amounts necessary for an employer to demonstrate

15  that it has the financial strength necessary to assure the

16  timely payment of all current and future claims. The

17  association shall be the sole entity authorized to audit and

18  examine an employer to verify the financial strength of its

19  current and former members. If the association determines that

20  a current or former self-insured employer does not have the

21  financial strength necessary to assure the timely payment of

22  all current and estimated future claims, the association may

23  recommend to the department that the department:

24         a.  Revoke the employer's self-insurance privilege.

25         b.  Require the employer to provide a certified opinion

26  of an independent actuary who is a member of the American

27  Academy of Actuaries as to the actuarial present value of the

28  employer's estimated current and future compensation payments,

29  using a 4-percent discount rate.

30         c.  Require an increase in the employer's security

31  deposit in an amount determined by the association to be

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  1  necessary to assure payment of compensation claims.  The

  2  department shall act on such recommendations as provided in

  3  subsection (6).  The association has a cause of action against

  4  an employer, and against any successor of an employer, who

  5  fails to provide an additional security deposit required by

  6  the department.  The association shall recover a judgment in

  7  the amount of the requested additional security deposit

  8  together with reasonable attorney's fees.  For the purposes of

  9  this section, the successor of an employer is any person,

10  business entity, or group of persons or business entities that

11  holds or acquires legal or beneficial title to the majority of

12  the assets or the majority of the shares of the employer.

13         8.7.  Charge fees to any member of the association to

14  cover the actual costs of examining the financial and safety

15  conditions of that member.

16         9.8.  Charge an applicant for membership in the

17  association a fee sufficient to cover the actual costs of

18  examining the financial condition of the applicant.

19         (c)1.  To the extent necessary to secure funds for the

20  payment of covered claims and also to pay the reasonable costs

21  to administer them, the association, subject to approval by

22  the Department of Insurance Labor and Employment Security,

23  upon certification of the board of directors, shall levy

24  assessments based on the annual normal premium each employer

25  would have paid had the employer not been self-insured. The

26  department's review of the assessment shall be limited to

27  determining whether the amount was accurately calculated under

28  this provision.  Every assessment shall be made as a uniform

29  percentage of the figure applicable to all individual

30  self-insurers, provided that the assessment levied against any

31  self-insurer in any one year shall not exceed 1 percent of the

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  1  annual normal premium during the calendar year preceding the

  2  date of the assessment. Assessments shall be remitted to and

  3  administered by the board of directors in the manner specified

  4  by the approved plan.  Each employer so assessed shall have at

  5  least 30 days' written notice as to the date the assessment is

  6  due and payable.  The association shall levy assessments

  7  against any newly admitted member of the association so that

  8  the basis of contribution of any newly admitted member is the

  9  same as previously admitted members, provision for which shall

10  be contained in the plan of operation.

11         2.  If, in any one year, funds available from such

12  assessments, together with funds previously raised, are not

13  sufficient to make all the payments or reimbursements then

14  owing, the funds available shall be prorated, and the unpaid

15  portion shall be paid as soon thereafter as sufficient

16  additional funds become available.

17         3.  State funds may be allocated or paid to the

18  association for the payment of the costs involved in the

19  administration of the association and the audit of individual

20  self-insurers. However, no state funds of any kind shall be

21  allocated or paid to the association or any of its accounts

22  for payment of covered claims or related expenses except those

23  state funds accruing to the association by and through the

24  assignment of rights of an insolvent employer. In addition, no

25  association funds or fees shall be allocated to the department

26  or to any regulatory trust fund.

27         (4)  INSOLVENCY FUND.--Upon the adoption of a plan of

28  operation or the adoption of rules by the Department of Labor

29  and Employment Security pursuant to subsection (5), there

30  shall be created an Insolvency Fund to be managed by the

31  association.

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  1         (a)  The Insolvency Fund is created for purposes of

  2  meeting the obligations of insolvent members incurred while

  3  members of the association and after the exhaustion of any

  4  security deposit bond, as required under this chapter.

  5  However, if such security deposit bond, surety, or reinsurance

  6  policy is payable to the Florida Self-Insurers Guaranty

  7  Association, the association shall commence to provide

  8  benefits out of the Insolvency Fund and be reimbursed from the

  9  security deposit bond, surety, or reinsurance policy.  The

10  method of operation of the Insolvency Fund shall be defined in

11  the plan of operation as provided in subsection (5).

12         (b)  The department shall have the authority to audit

13  the financial soundness of the Insolvency Fund annually.

14         (c)  The department may offer certain amendments to the

15  plan of operation to the board of directors of the association

16  for purposes of assuring the ongoing financial soundness of

17  the Insolvency Fund and its ability to meet the obligations of

18  this section.

19         (d)  The department actuary may make certain

20  recommendations to improve the orderly payment of claims.

21         (5)  PLAN OF OPERATION.--The association shall operate

22  pursuant to a plan of operation approved by the board of

23  directors.  The plan of operation in effect on March 1, 2001,

24  and approved by the Department of Labor and Employment

25  Security shall remain in effect. However, any amendments to

26  the plan shall not become effective until approved by the

27  Department of Insurance. By September 15, 1982, the board of

28  directors shall submit to the Department of Labor and

29  Employment Security a proposed plan of operation for the

30  administration of the association and the Insolvency Fund.

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  1         (a)  The purpose of the plan of operation shall be to

  2  provide the association and the board of directors with the

  3  authority and responsibility to establish the necessary

  4  programs and to take the necessary actions to protect against

  5  the insolvency of a member of the association.  In addition,

  6  the plan shall provide that the members of the association

  7  shall be responsible for maintaining an adequate Insolvency

  8  Fund to meet the obligations of insolvent members provided for

  9  under this act and shall authorize the board of directors to

10  contract and employ those persons with the necessary expertise

11  to carry out this stated purpose. The Department of Insurance

12  shall approve any amendments to the plan consistent with this

13  act, and determined appropriate to carry out the duties and

14  responsibilities of the association.

15         (b)  The plan of operation, and any amendments thereto,

16  shall take effect upon approval in writing by the department.

17  If the board of directors fails to submit a plan by September

18  15, 1982, or fails to make required amendments to the plan

19  within 30 days thereafter, the department shall promulgate

20  such rules as are necessary to effectuate the provisions of

21  this subsection.  Such rules shall continue in force until

22  modified by the department or superseded by a plan submitted

23  by the board of directors and approved by the department.

24         (b)(c)  All member employers shall comply with the plan

25  of operation.

26         (c)(d)  The plan of operation shall:

27         1.  Establish the procedures whereby all the powers and

28  duties of the association under subsection (3) will be

29  performed.

30         2.  Establish procedures for handling assets of the

31  association.

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  1         3.  Establish the amount and method of reimbursing

  2  members of the board of directors under subsection (2).

  3         4.  Establish procedures by which claims may be filed

  4  with the association and establish acceptable forms of proof

  5  of covered claims.  Notice of claims to the receiver or

  6  liquidator of the insolvent employer shall be deemed notice to

  7  the association or its agent, and a list of such claims shall

  8  be submitted periodically to the association or similar

  9  organization in another state by the receiver or liquidator.

10         5.  Establish regular places and times for meetings of

11  the board of directors.

12         6.  Establish procedures for records to be kept of all

13  financial transactions of the association and its agents and

14  the board of directors.

15         7.  Provide that any member employer aggrieved by any

16  final action or decision of the association may appeal to the

17  department within 30 days after the action or decision.

18         8.  Establish the procedures whereby recommendations of

19  candidates for the board of directors shall be submitted to

20  the department.

21         9.  Contain additional provisions necessary or proper

22  for the execution of the powers and duties of the association.

23         (d)(e)  The plan of operation may provide that any or

24  all of the powers and duties of the association, except those

25  specified under subparagraphs (c)(d)1. and 2., be delegated to

26  a corporation, association, or other organization which

27  performs or will perform functions similar to those of this

28  association or its equivalent in two or more states.  Such a

29  corporation, association, or organization shall be reimbursed

30  as a servicing facility would be reimbursed and shall be paid

31  for its performance of any other functions of the association.

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  1  A delegation of powers or duties under this subsection shall

  2  take effect only with the approval of both the board of

  3  directors and the department and may be made only to a

  4  corporation, association, or organization which extends

  5  protection which is not substantially less favorable and

  6  effective than the protection provided by this section.

  7         (6)  POWERS AND DUTIES OF DEPARTMENT OF INSURANCE LABOR

  8  AND EMPLOYMENT SECURITY.--

  9         (a)  The department shall:

10         (a)1.  Review recommendations of the association

11  concerning whether current or former self-insured employers or

12  members of the association have the financial strength

13  necessary to ensure the timely payment of all current and

14  estimated future claims.  If the association determines an

15  employer does not have the financial strength necessary to

16  ensure the timely payment of all current and future claims and

17  recommends action pursuant to paragraph (3)(b), the Department

18  of Insurance shall take such action as necessary to order the

19  employer to comply with the recommendation unless the

20  department determines by clear and convincing evidence that

21  the recommendation is erroneous. Notify the association of the

22  existence of an insolvent employer not later than 3 days after

23  it receives notice of the determination of insolvency.

24         (b)  Contract with the association for the

25  administration and audit of the individual self-insurers, said

26  duties to include, but not be limited to, the following:

27         1.  Process applications for self-insurance.

28         2.  Collect and review financial statements and loss

29  reserve information from individual self-insurers.  Collect

30  and maintain files for original security deposit documents and

31

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  1  reinsurance policies from individual self-insurers and, if

  2  necessary, perfect security interests in security deposits.

  3         3.  Process compliance documentation for individual

  4  self-insurers and provide same to the Department of Insurance.

  5         4.  Collect all data necessary to calculate annual

  6  premium for all individual self-insurers, including individual

  7  self-insurers that are public utilities or governmental

  8  entities, and provide such calculated annual premium to the

  9  Department of Insurance for assessment purposes.

10         5.  Inspect and audit annually, if necessary, the

11  payroll and other records of each individual self-insurer,

12  including individual self-insurers that are public utilities

13  or governmental entities, in order to determine the wages paid

14  by each individual self-insurer, the premium such individual

15  self-insurer would have to pay if insured, and all payments of

16  compensation made by such individual self-insurer during each

17  prior period with the results of such audit provided to the

18  Department of Insurance.  For the purposes of this section,

19  the payroll records of each individual self-insurer shall be

20  open to inspection and audit by the association or its

21  authorized representative, during regular business hours.

22         6.  Provide legal representation to implement the

23  administration and audit of individual self-insurers and make

24  recommendations regarding prosecution of any administrative or

25  legal proceedings necessitated by the department's regulation

26  of the individual self-insurers.

27         7.  Implement any and all procedures necessary to

28  ensure compliance with regulatory actions taken by the

29  department.

30         (c)2.  Contract with an attorney or attorneys

31  recommended by the association for representation of the

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  1  department in any administrative or legal proceedings

  2  necessitated by the recommended regulation of the individual

  3  self-insurers. Upon request of the board of directors, provide

  4  the association with a statement of the annual normal premiums

  5  of each member employer.

  6         (b)  The department may:

  7         (d)1.  Direct the association to require from each

  8  individual self-insurer, at such time and in accordance with

  9  such regulations as the department prescribes, reports in

10  respect to wages paid, the amount of premiums such individual

11  self-insurer would have to pay if insured, and all payments of

12  compensation made by such individual self-insurer during each

13  prior period and determine the amounts paid by each individual

14  self-insurer and the amounts paid by all individual

15  self-insurers during such period.  For the purposes of this

16  section, the payroll records of each individual self-insurer

17  shall be open to annual inspection and audit by the

18  association or its authorized representative, during regular

19  business hours, and if any audit of such records of an

20  individual self-insurer discloses a deficiency in the amount

21  reported to the association or in the amounts paid to the

22  Department of Insurance by an individual self-insurer for its

23  assessment for the Workers' Compensation Administration Trust

24  Fund, the association may assess the cost of such audit

25  against the individual self-insurer. Require that the

26  association notify the member employers and any other

27  interested parties of the determination of insolvency and of

28  their rights under this section.  Such notification shall be

29  by mail at the last known address thereof when available; but,

30  if sufficient information for notification by mail is not

31

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  1  available, notice by publication in a newspaper of general

  2  circulation shall be sufficient.

  3         (e)2.  Suspend or revoke the authority of any member

  4  employer failing to pay an assessment when due or failing to

  5  comply with the plan of operation to self-insure in this

  6  state. As an alternative, the department may levy a fine on

  7  any member employer failing to pay an assessment when due.

  8  Such fine shall not exceed 5 percent of the unpaid assessment

  9  per month, except that no fine shall be less than $100 per

10  month.

11         3.  Revoke the designation of any servicing facility if

12  the department finds that claims are being handled

13  unsatisfactorily.

14         (7)  EFFECT OF PAID CLAIMS.--

15         (a)  Any person who recovers from the association under

16  this section shall be deemed to have assigned his or her

17  rights to the association to the extent of such recovery.

18  Every claimant seeking the protection of this section shall

19  cooperate with the association to the same extent as such

20  person would have been required to cooperate with the

21  insolvent member.  The association shall have no cause of

22  action against the employee of the insolvent member for any

23  sums the association has paid out, except such causes of

24  action as the insolvent member would have had if such sums had

25  been paid by the insolvent member.  In the case of an

26  insolvent member operating on a plan with assessment

27  liability, payments of claims by the association shall not

28  operate to reduce the liability of the insolvent member to the

29  receiver, liquidator, or statutory successor for unpaid

30  assessments.

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  1         (b)  The receiver, liquidator, or statutory successor

  2  of an insolvent member shall be bound by settlements of

  3  covered claims by the association or a similar organization in

  4  another state.  The court having jurisdiction shall grant such

  5  claims priority against the assets of the insolvent member

  6  equal to that to which the claimant would have been entitled

  7  in the absence of this section. The expense of the association

  8  or similar organization in handling claims shall be accorded

  9  the same priority as the expenses of the liquidator.

10         (c)  The association shall file periodically with the

11  receiver or liquidator of the insolvent member statements of

12  the covered claims paid by the association and estimates of

13  anticipated claims on the association, which shall preserve

14  the rights of the association against the assets of the

15  insolvent member.

16         (8)  PREVENTION OF INSOLVENCIES.--To aid in the

17  detection and prevention of employer insolvencies:

18         (a)  Upon determination by majority vote that any

19  member employer may be insolvent or in a financial condition

20  hazardous to the employees thereof or to the public, it shall

21  be the duty of the board of directors to notify the Department

22  of Labor and Employment Security of any information indicating

23  such condition.

24         (b)  The board of directors may, upon majority vote,

25  request that the department determine the condition of any

26  member employer which the board in good faith believes may no

27  longer be qualified to be a member of the association.  Within

28  30 days of the receipt of such request or, for good cause

29  shown, within a reasonable time thereafter, the department

30  shall make such determination and shall forthwith advise the

31  board of its findings. Each request for a determination shall

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  1  be kept on file by the department, but the request shall not

  2  be open to public inspection prior to the release of the

  3  determination to the public.

  4         (c)  It shall also be the duty of the department to

  5  report to the board of directors when it has reasonable cause

  6  to believe that a member employer may be in such a financial

  7  condition as to be no longer qualified to be a member of the

  8  association.

  9         (d)  The board of directors may, upon majority vote,

10  make reports and recommendations to the department upon any

11  matter which is germane to the solvency, liquidation,

12  rehabilitation, or conservation of any member employer. Such

13  reports and recommendations shall not be considered public

14  documents.

15         (e)  The board of directors may, upon majority vote,

16  make recommendations to the department for the detection and

17  prevention of employer insolvencies.

18         (f)  The board of directors shall, at the conclusion of

19  any member's insolvency in which the association was obligated

20  to pay covered claims, prepare a report on the history and

21  cause of such insolvency, based on the information available

22  to the association, and shall submit such report to the

23  department.

24         (8)(9)  EXAMINATION OF THE ASSOCIATION.--The

25  association shall be subject to examination and regulation by

26  the Department of Insurance as provided in this chapter Labor

27  and Employment Security.  No later than March 30 of each year,

28  the board of directors shall submit an audited a financial

29  statement report for the preceding calendar year in a form

30  approved by the department.

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  1         (9)(10)  IMMUNITY.--There shall be no liability on the

  2  part of, and no cause of action of any nature shall arise

  3  against, any member employer, the association or its agents or

  4  employees, the board of directors, or the Department of

  5  Insurance Labor and Employment Security or its representatives

  6  for any action taken by them in the performance of their

  7  powers and duties under this section.

  8         (10)(11)  STAY OF PROCEEDINGS; REOPENING OF DEFAULT

  9  JUDGMENTS.--All proceedings in which an insolvent employer is

10  a party, or is obligated to defend a party, in any court or

11  before any quasi-judicial body or administrative board in this

12  state shall be stayed for up to 6 months, or for such

13  additional period from the date the employer becomes an

14  insolvent member, as is deemed necessary by a court of

15  competent jurisdiction to permit proper defense by the

16  association of all pending causes of action as to any covered

17  claims arising from a judgment under any decision, verdict, or

18  finding based on the default of the insolvent member. The

19  association, either on its own behalf or on behalf of the

20  insolvent member, may apply to have such judgment, order,

21  decision, verdict, or finding set aside by the same court or

22  administrator that made such judgment, order, decision,

23  verdict, or finding and shall be permitted to defend against

24  such claim on the merits.  If requested by the association,

25  the stay of proceedings may be shortened or waived.

26         (11)(12)  LIMITATION ON CERTAIN

27  ACTIONS.--Notwithstanding any other provision of this chapter,

28  a covered claim, as defined herein, with respect to which

29  settlement is not effected and pursuant to which suit is not

30  instituted against the insured of an insolvent member or the

31  association within 1 year after the deadline for filing claims

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  1  with the receiver of the insolvent member, or any extension of

  2  the deadline, shall thenceforth be barred as a claim against

  3  the association.

  4         (12)(13)  CORPORATE INCOME TAX CREDIT.--Any sums

  5  acquired by a member by refund, dividend, or otherwise from

  6  the association shall be payable within 30 days of receipt to

  7  the Department of Insurance for deposit with the Treasurer to

  8  the credit of the General Revenue Fund.  All provisions of

  9  chapter 220 relating to penalties and interest on delinquent

10  corporate income tax payments apply to payments due under this

11  subsection.

12         Section 3.  Subsections (2), (3), and (4) of section

13  440.386, Florida Statutes, are amended to read:

14         440.386  Individual self-insurers' insolvency;

15  conservation; liquidation.--

16         (2)  COMMENCEMENT OF DELINQUENCY PROCEEDING.--The

17  Department of Insurance or the Florida Self-Insurers Guaranty

18  Association, Incorporated, may commence a delinquency any such

19  proceeding by application to the court for an order directing

20  the individual self-insurer to show cause why the department

21  or association should not have the relief prayed for. The

22  Florida Self-Insurers Guaranty Association, Incorporated, may

23  petition the department to commence such proceedings, and upon

24  receipt of such petition, the department shall commence such

25  proceeding.  On the return of such order to show cause, and

26  after a full hearing, the court shall either deny the

27  application or grant the application, together with such other

28  relief as the nature of the case and the interests of the

29  claimants, creditors, stockholders, members, subscribers, or

30  public may require.  The Department of Insurance and the

31  association shall give Florida Self-Insurers Guaranty

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  1  Association, Incorporated, shall be given reasonable written

  2  notice to each other by the department of all hearings which

  3  pertain to an adjudication of insolvency of a member

  4  individual self-insurer.

  5         (3)  GROUNDS FOR LIQUIDATION.--The Department of

  6  Insurance or the association may apply to the court for an

  7  order appointing a receiver and directing the receiver to

  8  liquidate the business of a domestic individual self-insurer

  9  if such individual self-insurer is insolvent.  Florida

10  Self-Insurers Guaranty Association, Incorporated, may petition

11  the department to apply to the court for such order.  Upon

12  receipt of such petition, the department shall apply to the

13  court for such order.

14         (4)  GROUNDS FOR CONSERVATION; FOREIGN INDIVIDUAL

15  SELF-INSURERS.--

16         (a)  The Department of Insurance or the association may

17  apply to the court for an order appointing a receiver or

18  ancillary receiver, and directing the receiver to conserve the

19  assets within this state, of a foreign individual self-insurer

20  if such individual self-insurer is insolvent.  Florida

21  Self-Insurers Guaranty Association, Incorporated, may petition

22  the department to apply for such order, and, upon receipt of

23  such petition, the department shall apply to the court for

24  such order.

25         (b)  An order to conserve the assets of an individual

26  self-insurer shall require the receiver forthwith to take

27  possession of the property of the receiver within the state

28  and to conserve it, subject to the further direction of the

29  court.

30         Section 4.  This act shall take effect October 1, 2001.

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

  2                       LEGISLATIVE SUMMARY

  3
      Revises provisions relating to self-insurers and the
  4    Florida Self-Insurers Guaranty Association, Incorporated.
      Transfers operation of provisions requiring the securing
  5    of payment of compensation by employers from the Division
      of Workers' Compensation of the Department of Labor and
  6    Employment Security to the association and the Department
      of Insurance. Provides for allocation or payment of state
  7    funds to the association for specified purposes. Revises
      and clarifies provisions relating to the association's
  8    creation, board of directors, powers and duties,
      insolvency fund, and plan of operation. Provides
  9    additional powers of the association. Transfers the
      powers and duties of the Department of Labor and
10    Employment Security relating to the association to the
      Department of Insurance and revises such powers and
11    duties. Provides additional powers and duties of the
      Department of Insurance and provides for oversight of the
12    association by the department. Provides parity for the
      association with the Department of Insurance relating to
13    proceedings for delinquency, liquidation, and
      conservation of assets. (See bill for details.)
14

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