Senate Bill sb1140c1

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    Florida Senate - 2001                           CS for SB 1140

    By the Committee on Banking and Insurance; and Senator
    Villalobos




    311-1784-01

  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 certain provisions relating to

29         detection and prevention of employer

30         insolvencies; amending s. 440.386, F.S.;

31         providing parity for the association with the

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    Florida Senate - 2001                           CS for SB 1140
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  1         Department of Insurance relating to proceedings

  2         for delinquency, liquidation, and conservation

  3         of assets; amending s. 440.24, F.S.; providing

  4         for the sale of securities on deposit to

  5         satisfy a compensation order; providing an

  6         effective date.

  7

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

  9

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

11  440.38, Florida Statutes, are amended to read:

12         440.38  Security for compensation; insurance carriers

13  and self-insurers.--

14         (1)  Every employer shall secure the payment of

15  compensation under this chapter:

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

17  such compensation with any stock company or mutual company or

18  association or exchange, authorized to do business in the

19  state;

20         (b)  By furnishing satisfactory proof to the Florida

21  Self-Insurers Guaranty Association, Incorporated, created in

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

23  assure timely payment of all current and future claims

24  division of its financial ability to pay such compensation

25  individually and on behalf of its subsidiary and affiliated

26  companies with employees in this state and receiving an

27  authorization from the Department of Insurance, division to

28  pay such compensation directly. The association shall review

29  the financial strength of applicants for membership, current

30  members, and former members and make recommendations to the

31  department regarding their qualifications to self-insure in

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    Florida Senate - 2001                           CS for SB 1140
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  1  accordance with this act and ss. 440.385 and 440.386. The

  2  department shall consult with the association on any

  3  recommendation before taking action. the following provisions:

  4         1.  The association division may recommend that the

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

  6  require an such employer to deposit with in a depository

  7  designated by the association a qualifying deposit. The

  8  association shall recommend the type and amount of the

  9  qualifying security deposit and shall division either an

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

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

12  subject to such conditions as the division may prescribe

13  conditions for the qualifying security deposit, which shall

14  include authorization for to the association to call the

15  qualifying security deposit division in the case of default to

16  sell any such securities sufficient to pay compensation awards

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

18  such bonds, to procure prompt payment of compensation under

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

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

21  provide proof that the employer has provided for competent

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

23  working environment.  Further, The employer division shall

24  also provide evidence of require such employer to carry

25  reinsurance at levels that will ensure the financial strength

26  and actuarial soundness of such employer in accordance with

27  rules adopted promulgated by the Department of Insurance

28  division.  The Department of Insurance division may by rule

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

30  insolvency, such qualifying security deposits indemnity bonds,

31  securities, and reinsurance policies are shall be payable to

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    Florida Senate - 2001                           CS for SB 1140
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  1  the association Florida Self-Insurers Guaranty Association,

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

  3  securing compensation in accordance with the provisions of

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

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

  6  employers shall, if requested, provide the association an

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

  8  Actuaries providing an opinion of the appropriate present

  9  value of the reserves for current and future compensation

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

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

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

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

14  court determines appropriate. The association shall be

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

16  in such proceedings.

17         2.  If the employer fails to maintain the foregoing

18  requirements, the association division shall recommend to the

19  Department of Insurance that it revoke the employer's

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

21  association division the certified opinion of an independent

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

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

24  determined and estimated future compensation payments based on

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

26  qualifying security deposit equal to 1.5 times the value so

27  certified. The employer shall thereafter annually provide such

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

29  requirements of subparagraph 1.  The qualifying security

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

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

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    Florida Senate - 2001                           CS for SB 1140
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  1  such opinion or to timely provide a security deposit in an

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

  3  opinion, the association shall provide such information to the

  4  department along with a recommendation, and the Department of

  5  Insurance division shall then revoke an such employer's

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

  7  this provision shall be deemed to constitute an immediate

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

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

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

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

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

13  the division and to the Florida Self-Insurers Guaranty

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

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

16  the American Academy Society of Actuaries of the actuarial

17  present value of the determined and estimated future

18  compensation payments of the employer for claims incurred

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

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

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

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

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

24  association division a qualifying security deposit in an

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

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

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

28  provide such opinion or who fails to timely maintain the

29  required security deposit with the association division. The

30  association shall recover a judgment in the amount of the

31  actuarial present value of the determined and estimated future

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    Florida Senate - 2001                           CS for SB 1140
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  1  compensation payments of the employer for claims incurred

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

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

  4  the successor of an employer means any person, business

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

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

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

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

  9  option of the employer, of:

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

11  as prescribed by the association division, issued by a

12  corporation surety authorized to transact surety business by

13  the Department of Insurance, and whose policyholders' and

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

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

16  respectively.

17         b.  Certificates of deposit with financial

18  institutions, the deposits of which are insured through the

19  Federal Deposit Insurance Corporation or the Federal Savings

20  and Loan Insurance Corporation.

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

22  association division issued by financial institutions located

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

24  the Federal Deposit Insurance Corporation described in

25  sub-subparagraph b.

26         d.  Direct obligations of the United States Treasury

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

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

29  full faith and credit of this state.

30         5.  The qualifying security deposit shall be held by

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

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    Florida Senate - 2001                           CS for SB 1140
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  1  division, exclusively for the benefit of workers' compensation

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

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

  4  as necessary to guarantee the payment of compensation under

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

  6  of credit other qualifying security may be allowed to expire

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

  8  association division and the deposit by the self-insuring

  9  employer of some other qualifying security deposit of equal

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

11  provide such written notice or failure to timely provide

12  qualifying replacement security after such notice shall

13  constitute grounds for the association division to call or sue

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

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

16  purposes intended by this section, including the exercise its

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

18  employers must comply with this section on or before December

19  31, 2001, or upon maturity of existing security deposits,

20  whichever occurs later the sale of any security at then

21  prevailing market rates, or the withdrawal of any funds

22  represented by any certificate of deposit forming part of the

23  qualifying security deposit. The Department of Insurance

24  division may specify by rule the amount of the qualifying

25  security deposit required prior to authorizing an employer to

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

27  employer to qualify for authorization to self-insure;

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

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

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

31

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    Florida Senate - 2001                           CS for SB 1140
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  1  1983.  The Department of Insurance division shall adopt rules

  2  to implement this paragraph;

  3         (d)  By entering into an interlocal agreement with

  4  other local governmental entities to create a local government

  5  pool pursuant to s. 624.4622;

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

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

  8  Workers' Compensation Law and retain the benefit of the

  9  exclusiveness of liability provided in s. 440.11 by obtaining

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

11  and casualty insurance carrier or an authorized life and

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

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

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

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

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

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

18  at least occupational injuries and illnesses, medical benefits

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

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

21  440.135, may participate in the 24-hour health insurance

22  coverage plan referenced in this paragraph. Disputes and

23  remedies arising under policies issued under this section are

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

25  the applicable provisions of the Florida Insurance Code and

26  rules adopted under the insurance code and other applicable

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

28  provide for health care by a health maintenance organization

29  or a preferred provider organization. The premium for such

30  24-hour health insurance policy shall be paid entirely by the

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

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    Florida Senate - 2001                           CS for SB 1140
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  1  deductibles and coinsurance provisions that require the

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

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

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

  5  compensation as to medical benefits, the employer must also

  6  obtain an insurance policy or policies that provide indemnity

  7  benefits as follows:

  8         1.  If indemnity benefits are provided only for

  9  occupational-related disability, such benefits must be

10  comparable to those required by this chapter.

11         2.  If indemnity benefits are provided for both

12  occupational-related and nonoccupational-related disability,

13  such benefits must be comparable to those required by this

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

15  average weekly wages.

16         3.  The employer shall provide for each of its

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

18         4.  Policies providing coverage under this subsection

19  must use prescribed and acceptable underwriting standards,

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

21  If any insurance policy that provides coverage under this

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

23  the cancellation, termination, or nonrenewal is ineffective

24  until the self-insured employer or insurance carrier or

25  carriers notify the division and the Department of Insurance

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

27  Department of Insurance division has actually received the

28  notification. The Department of Insurance division must be

29  notified of replacement coverage under a workers' compensation

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

31

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  1  employer prior to the effective date of the cancellation,

  2  termination, or nonrenewal; or

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

  4  self-insurer under an approved individual

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

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

  7  rules to implement this subsection.

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

  9  adopt rules by which businesses may become qualified to

10  provide underwriting claims-adjusting, loss control, and

11  safety engineering services to self-insurers.

12         (b)  The Department of Insurance division shall adopt

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

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

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

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

17  penalty not to exceed $100 for each such failure.

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

19  company or association or exchange authorized to do insurance

20  business in the state shall for good cause, upon

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

22  Department of Insurance.  No suspension or revocation shall

23  affect the liability of any carrier already incurred.

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

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

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

27  by rule of the department division. No suspension or

28  revocation shall affect the liability of any self-insurer

29  already incurred.

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

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

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

  2  said audits by correcting errors in employee classification or

  3  accepted applications for coverage where it knew employee

  4  classifications were incorrect.  Such fines shall be levied by

  5  the Department of Insurance division and deposited into the

  6  Workers' Compensation Administration Trust Fund.

  7         Section 2.  Section 440.385, Florida Statutes, is

  8  amended to read:

  9         440.385  Florida Self-Insurers Guaranty Association,

10  Incorporated.--

11         (1)  CREATION OF ASSOCIATION.--

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

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

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

15  Upon incorporation of the association, all individual

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

17  440.38(1)(b), other than individual self-insurers which are

18  public utilities or governmental entities, shall be members of

19  the association as a condition of their authority to

20  individually self-insure in this state.  The association

21  corporation shall perform its functions under a plan of

22  operation as established and approved under subsection (5) and

23  shall exercise its powers and duties through a board of

24  directors as established under subsection (2). The association

25  corporation shall have those powers granted or permitted

26  associations corporations not for profit, as provided in

27  chapter 617. The activities of the association shall be

28  subject to review by the Department of Insurance. The

29  Department of Insurance shall have oversight responsibility as

30  set forth in this act. The association is specifically

31

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  1  authorized to enter into agreements with the State of Florida

  2  to perform specified services.

  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. Prior to a final determination by the Division of

  6  Workers' Compensation as to whether or not to approve any

  7  applicant for membership in the association, the association

  8  may issue opinions to the division concerning any applicant,

  9  which opinions shall be considered by the division prior to

10  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 may audit and examine an employer to verify the

18  financial strength of its current and former members. If the

19  association determines that a current or former self-insured

20  employer does not have the financial strength necessary to

21  assure the timely payment of all current and estimated future

22  claims, the association may recommend to the department that

23  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

                                  16

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  1  necessary to assure payment of compensation claims.  The

  2  department shall act on such recommendations.  The association

  3  has a cause of action against an employer, and against any

  4  successor of an employer, who fails to provide an additional

  5  security deposit required by the department.  The association

  6  shall recover a judgment in the amount of the requested

  7  additional security deposit together with reasonable

  8  attorney's fees.  For the purposes of this section, the

  9  successor of an employer is any person, business entity, or

10  group of persons or business entities that holds or acquires

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

12  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         10.  Implement any and all procedures necessary to

20  ensure compliance with regulatory actions taken by the

21  department.

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

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

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

25  the Department of Insurance Labor and Employment Security,

26  upon certification of the board of directors, shall levy

27  assessments based on the annual written normal premium each

28  employer would have paid had the employer not been

29  self-insured. Every assessment shall be made as a uniform

30  percentage of the figure applicable to all individual

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

                                  17

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

  2  annual written normal premium during the calendar year

  3  preceding the date of the assessment. Assessments shall be

  4  remitted to and administered by the board of directors in the

  5  manner specified by the approved plan.  Each employer so

  6  assessed shall have at least 30 days' written notice as to the

  7  date the assessment is due and payable.  The association shall

  8  levy assessments against any newly admitted member of the

  9  association so that the basis of contribution of any newly

10  admitted member is the same as previously admitted members,

11  provision for which shall be contained in the plan of

12  operation.

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

14  assessments, together with funds previously raised, are not

15  sufficient to make all the payments or reimbursements then

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

17  portion shall be paid as soon thereafter as sufficient

18  additional funds become available.

19         3.  Funds may be allocated or paid from the Workers'

20  Compensation Administration Trust Fund to contract with the

21  association to perform services required by law. However, no

22  state funds of any kind shall be allocated or paid to the

23  association or any of its accounts for payment of covered

24  claims or related expenses except those state funds accruing

25  to the association by and through the assignment of rights of

26  an insolvent employer. The department shall not levy any

27  assessment on the Florida Self-Insurance Guaranty Association.

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

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

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

31

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

  2  association.

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

  4  meeting the obligations of insolvent members incurred while

  5  members of the association and after the exhaustion of any

  6  security deposit bond, as required under this chapter.

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

  8  policy is payable to the Florida Self-Insurers Guaranty

  9  Association, the association shall commence to provide

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

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

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

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

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

15  the financial soundness of the Insolvency Fund annually.

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

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

18  for purposes of assuring the ongoing financial soundness of

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

20  this section.

21         (d)  The department actuary may make certain

22  recommendations to improve the orderly payment of claims.

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

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

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

26  and approved by the Department of Labor and Employment

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

28  the plan shall not become effective until approved by the

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

30  directors shall submit to the Department of Labor and

31

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  1  Employment Security a proposed plan of operation for the

  2  administration of the association and the Insolvency Fund.

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

  4  provide the association and the board of directors with the

  5  authority and responsibility to establish the necessary

  6  programs and to take the necessary actions to protect against

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

  8  the plan shall provide that the members of the association

  9  shall be responsible for maintaining an adequate Insolvency

10  Fund to meet the obligations of insolvent members provided for

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

12  contract and employ those persons with the necessary expertise

13  to carry out this stated purpose. By January 1, 2002, the

14  board of directors shall submit to the Department of Insurance

15  a proposed plan of operation for the administration of the

16  association. The Department of Insurance shall approve the

17  plan by order, consistent with this act. The Department of

18  Insurance shall approve any amendments to the plan, by order

19  consistent with this act, and determined appropriate to carry

20  out the duties and responsibilities of the association.

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

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

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

24  15, 1982, or fails to make required amendments to the plan

25  within 30 days thereafter, the department shall promulgate

26  such rules as are necessary to effectuate the provisions of

27  this subsection.  Such rules shall continue in force until

28  modified by the department or superseded by a plan submitted

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

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

31  of operation.

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

  2         1.  Establish the procedures whereby all the powers and

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

  4  performed.

  5         2.  Establish procedures for handling assets of the

  6  association.

  7         3.  Establish the amount and method of reimbursing

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

  9         4.  Establish procedures by which claims may be filed

10  with the association and establish acceptable forms of proof

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

12  liquidator of the insolvent employer shall be deemed notice to

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

14  be submitted periodically to the association or similar

15  organization in another state by the receiver or liquidator.

16         5.  Establish regular places and times for meetings of

17  the board of directors.

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

19  financial transactions of the association and its agents and

20  the board of directors.

21         7.  Provide that any member employer aggrieved by any

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

23  department within 30 days after the action or decision.

24         8.  Establish the procedures whereby recommendations of

25  candidates for the board of directors shall be submitted to

26  the department.

27         9.  Contain additional provisions necessary or proper

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

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

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

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

                                  21

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  1  a corporation, association, or other organization which

  2  performs or will perform functions similar to those of this

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

  4  corporation, association, or organization shall be reimbursed

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

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

  7  A delegation of powers or duties under this subsection shall

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

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

10  corporation, association, or organization which extends

11  protection which is not substantially less favorable and

12  effective than the protection provided by this section.

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

14  AND EMPLOYMENT SECURITY.--

15         (a)  The department shall:

16         1.  review recommendations of the association

17  concerning whether current or former self-insured employers or

18  members of the association have the financial strength

19  necessary to ensure the timely payment of all current and

20  estimated future claims.  If the association determines an

21  employer does not have the financial strength necessary to

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

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

24  of Insurance may take such action as necessary to order the

25  employer to comply with the recommendation. Notify the

26  association of the existence of an insolvent employer not

27  later than 3 days after it receives notice of the

28  determination of insolvency.

29         (b)  The department may:

30         1.  Contract with the association for services, which

31  may include, but not be limited to, the following:

                                  22

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  1         a.  Process applications for self-insurance.

  2         b.  Collect and review financial statements and loss

  3  reserve information from individual self-insurers.

  4         c.  Collect and maintain files for original security

  5  deposit documents and reinsurance policies from individual

  6  self-insurers and, if necessary, perfect security interests in

  7  security deposits.

  8         d.  Process compliance documentation for individual

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

10         e.  Collect all data necessary to calculate annual

11  premium for all individual self-insurers, including individual

12  self-insurers that are public utilities or governmental

13  entities, and provide such calculated annual premium to the

14  Department of Insurance for assessment purposes.

15         f.  Inspect and audit annually, if necessary, the

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

17  including individual self-insurers that are public utilities

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

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

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

21  compensation made by such individual self-insurer during each

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

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

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

25  open to inspection and audit by the association, the

26  department, or their authorized representative, during regular

27  business hours.

28         g.  Provide legal representation to implement the

29  administration and audit of individual self-insurers and make

30  recommendations regarding prosecution of any administrative or

31

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  1  legal proceedings necessitated by the department's regulation

  2  of the individual self-insurers.

  3         2.  Contract with an attorney or attorneys recommended

  4  by the association for representation of the department in any

  5  administrative or legal proceedings necessitated by the

  6  recommended regulation of the individual self-insurers. Upon

  7  request of the board of directors, provide the association

  8  with a statement of the annual normal premiums of each member

  9  employer.

10         (b)  The department may:

11         3.1.  Direct the association to require from each

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

13  such regulations as the department prescribes, reports in

14  respect to wages paid, the amount of premiums 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 and determine the amounts paid by each individual

18  self-insurer and the amounts paid by all individual

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

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

21  shall be open to annual inspection and audit by the

22  association, the department, or their authorized

23  representative, during regular business hours, and if any

24  audit of such records of an individual self-insurer discloses

25  a deficiency in the amount reported to the association or in

26  the amounts paid to the Department of Insurance by an

27  individual self-insurer for its assessment for the Workers'

28  Compensation Administration Trust Fund, the Department of

29  Insurance or the association may assess the cost of such audit

30  against the individual self-insurer.

31

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  1         4.  Require that the association notify the member

  2  employers and any other interested parties of the

  3  determination of insolvency and of their rights under this

  4  section.  Such notification shall be by mail at the last known

  5  address thereof when available; but, if sufficient information

  6  for notification by mail is not available, notice by

  7  publication in a newspaper of general circulation shall be

  8  sufficient.

  9         5.2.  Suspend or revoke the authority of any member

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

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

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

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

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

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

16  month.

17         3.  Revoke the designation of any servicing facility if

18  the department finds that claims are being handled

19  unsatisfactorily.

20         (7)  EFFECT OF PAID CLAIMS.--

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

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

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

24  Every claimant seeking the protection of this section shall

25  cooperate with the association to the same extent as such

26  person would have been required to cooperate with the

27  insolvent member.  The association shall have no cause of

28  action against the employee of the insolvent member for any

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

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

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

                                  25

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  1  insolvent member operating on a plan with assessment

  2  liability, payments of claims by the association shall not

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

  4  receiver, liquidator, or statutory successor for unpaid

  5  assessments.

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

  7  of an insolvent member shall be bound by settlements of

  8  covered claims by the association or a similar organization in

  9  another state.  The court having jurisdiction shall grant such

10  claims priority against the assets of the insolvent member

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

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

13  or similar organization in handling claims shall be accorded

14  the same priority as the expenses of the liquidator.

15         (c)  The association shall file periodically with the

16  receiver or liquidator of the insolvent member statements of

17  the covered claims paid by the association and estimates of

18  anticipated claims on the association, which shall preserve

19  the rights of the association against the assets of the

20  insolvent member.

21         (8)  NOTIFICATION PREVENTION OF INSOLVENCIES.--To aid

22  in the detection and prevention of employer insolvencies:

23         (a)  upon determination by majority vote that any

24  member employer may be insolvent or in a financial condition

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

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

27  of Insurance Labor and Employment Security of any information

28  indicating such condition.

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

30  request that the department determine the condition of any

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

                                  26

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

  2  30 days of the receipt of such request or, for good cause

  3  shown, within a reasonable time thereafter, the department

  4  shall make such determination and shall forthwith advise the

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

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

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

  8  determination to the public.

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

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

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

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

13  association.

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

15  make reports and recommendations to the department upon any

16  matter which is germane to the solvency, liquidation,

17  rehabilitation, or conservation of any member employer. Such

18  reports and recommendations shall not be considered public

19  documents.

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

21  make recommendations to the department for the detection and

22  prevention of employer insolvencies.

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

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

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

26  cause of such insolvency, based on the information available

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

28  department.

29         (9)  EXAMINATION OF THE ASSOCIATION.--The association

30  shall be subject to examination and regulation by the

31  Department of Insurance Labor and Employment Security.  No

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  1  later than March 30 of each year, the board of directors shall

  2  submit an audited a financial statement report for the

  3  preceding calendar year in a form approved by the department.

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

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

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

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

  8  Insurance Labor and Employment Security or its representatives

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

10  powers and duties under this section.

11         (11)  STAY OF PROCEEDINGS; REOPENING OF DEFAULT

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

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

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

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

16  additional period from the date the employer becomes an

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

18  competent jurisdiction to permit proper defense by the

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

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

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

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

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

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

25  administrator that made such judgment, order, decision,

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

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

28  the stay of proceedings may be shortened or waived.

29         (12)  LIMITATION ON CERTAIN ACTIONS.--Notwithstanding

30  any other provision of this chapter, a covered claim, as

31  defined herein, with respect to which settlement is not

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  1  effected and pursuant to which suit is not instituted against

  2  the insured of an insolvent member or the association within 1

  3  year after the deadline for filing claims with the receiver of

  4  the insolvent member, or any extension of the deadline, shall

  5  thenceforth be barred as a claim against the association.

  6         (13)  CORPORATE INCOME TAX CREDIT.--Any sums acquired

  7  by a member by refund, dividend, or otherwise from the

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

  9  Department of Insurance for deposit with the Treasurer to the

10  credit of the General Revenue Fund.  All provisions of chapter

11  220 relating to penalties and interest on delinquent corporate

12  income tax payments apply to payments due under this

13  subsection.

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

15  440.386, Florida Statutes, are amended to read:

16         440.386  Individual self-insurers' insolvency;

17  conservation; liquidation.--

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

19  Department of Insurance or the Florida Self-Insurers Guaranty

20  Association, Incorporated, may commence a delinquency any such

21  proceeding by application to the court for an order directing

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

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

24  Florida Self-Insurers Guaranty Association, Incorporated, may

25  petition the department to commence such proceedings, and upon

26  receipt of such petition, the department shall commence such

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

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

29  application or grant the application, together with such other

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

31  claimants, creditors, stockholders, members, subscribers, or

                                  29

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  1  public may require.  The Department of Insurance and the

  2  association shall give Florida Self-Insurers Guaranty

  3  Association, Incorporated, shall be given reasonable written

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

  5  pertain to an adjudication of insolvency of a member

  6  individual self-insurer.

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

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

  9  order appointing a receiver and directing the receiver to

10  liquidate the business of a domestic individual self-insurer

11  if such individual self-insurer is insolvent.  Florida

12  Self-Insurers Guaranty Association, Incorporated, may petition

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

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

15  court for such order.

16         (4)  GROUNDS FOR CONSERVATION; FOREIGN INDIVIDUAL

17  SELF-INSURERS.--

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

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

20  ancillary receiver, and directing the receiver to conserve the

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

22  if such individual self-insurer is insolvent.  Florida

23  Self-Insurers Guaranty Association, Incorporated, may petition

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

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

26  such order.

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

28  self-insurer shall require the receiver forthwith to take

29  possession of the property of the receiver within the state

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

31  court.

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  1         Section 4.  Subsection (3) of section 440.24, Florida

  2  Statutes, is amended to read:

  3         440.24  Enforcement of compensation orders;

  4  penalties.--

  5         (3)  In any case where the employer is a self-insurer

  6  and fails to comply with any compensation order of a judge of

  7  compensation claims or court within 10 days after such order

  8  becomes final, the department division may suspend or revoke

  9  any authorization previously given to the employer to become a

10  self-insurer, and the Florida Self-Insurer's Guaranty

11  Association division may sell such of the securities deposited

12  by such self-insurer with the Florida Self-Insurer's Guaranty

13  Association division as may be necessary to satisfy such

14  order.

15         Section 5.  This act shall take effect October 1, 2001.

16

17

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    Florida Senate - 2001                           CS for SB 1140
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1140

  3

  4  Revises the duties and authority of the Department of
    Insurance (department) and the Florida Self-Insurers Guaranty
  5  Association (association) relative to regulation of individual
    self-insured employers, including the following:
  6
    Provides that the department shall consult with the
  7  association regarding the association's recommendations for
    actions to be taken with respect to sef-insured employers and
  8  applicants for approval to self-insure, rather than requiring
    the department to take such actions unless it determines by
  9  clear and convincing evidence that the recommendations are
    erroneous.
10
    Provides that the department may, rather than shall, contract
11  with the association for specified services.

12  Strikes the specified amount of the fine that applies if a
    self-insurer fails to file any report as prescribed by rules
13  adopted by the department.

14  Provides that either the department or the association may
    audit a self-insured employer, rather than providing that the
15  association is the sole entity authorized to audit employers.

16  Specifies that assessments on self-insured employers are based
    on annual ""written" premium each employer would have paid had
17  the employer not been self-insured.

18  Specifies that funds may be allocated or paid from the
    Workers' Compensation Administration Trust Fund to contract
19  with the association to perform services required by law.

20  Specifies that the department shall not levy any assessment on
    the association.
21
    Provides that by January 1, 2002, the board of the association
22  shall submit to the department a proposed plan of operation
    for approval by the department.
23
    Retains current law that the department may require that the
24  association notify the member employers and any other
    interested parties of the determination of insolvency and of
25  their rights under this section.

26  Retains the current law that the association notify the
    department of any information indicating that a member
27  employer may be insolvent or in a financial condition
    hazardous to the employees or to the public.
28
    Amends s. 440.24, F.S., to authorize the department to suspend
29  or revoke any authorization of an employer to self-insure if
    the employer fails to comply with ay compensation order of a
30  judge of compensation claims or court and to authorize the
    association to sell such securities deposited by the
31  self-insurer with the association as may be necessary to
    satisfy the order.
                                  32

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