HOUSE AMENDMENT
                                                  Bill No. HB 1655
    Amendment No. ___ (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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11  The Council for Smarter Government offered the following:
12  
13         Amendment (with title amendment) 
14  Remove from the bill:  Everything after the enacting clause
15  
16  and insert in lieu thereof:  
17         Section 1.  (1)  The Division of Workers' Compensation
18  of the Department of Labor and Employment Security is
19  transferred by a type two transfer, as defined in section
20  20.06(2), Florida Statutes, to the Department of Insurance,
21  except as otherwise provided in this section. The transfers to
22  the Department of Insurance shall include all resources, data,
23  records, property, and unexpended balances of appropriations,
24  allocations, or other funds. No personnel are transferred to
25  the Department of Insurance. The employees of the Department
26  of Labor and Employment Security's Division of Workers'
27  Compensation, Office of the Secretary, Office of
28  Administrative Services, and Office of General Counsel
29  employed by the Department of Labor and Employment Security as
30  of March 1, 2001 may be given hiring priority by the
31  Department of Insurance, and at least 300 of these employees
                                  1
    File original & 9 copies    04/20/01                          
    hsa0005                     03:43 pm         01655-sgc -325659

HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 shall be offered employment by the Department of Insurance, 2 effective October 1, 2001. To the extent feasible, the 3 positions established by the Department of Insurance will be 4 at pay grades comparable to the positions established by the 5 Department of Labor and Employment Security based on the 6 classification code and specifications of the positions for 7 work to be performed at the Department of Insurance. Offers of 8 employment to the 300 employees must be tendered no later than 9 August 15, 2001. The Department of Labor and Employment 10 Security shall offer, and if accepted provide, job placement 11 assistance to those employees not offered employment by the 12 Department of Insurance. After October 1, 2001, such 13 assistance, upon request, shall be provided to these employees 14 by the Agency for Workforce Innovation. The Department of 15 Insurance shall determine the number of positions needed to 16 administer the provisions of chapter 440, Florida Statutes. 17 The number of positions the department determines is needed 18 may not exceed the number of authorized positions and salary 19 and benefits that was authorized for the Division of Workers' 20 Compensation within the Department of Labor and Employment 21 Security prior to the transfer. Upon transfer of the Division 22 of Workers' Compensation, the number of required positions as 23 determined by the department shall be authorized within the 24 agency. The Department of Insurance is further authorized to 25 reassign, reorganize, or otherwise transfer positions to 26 appropriate administrative subdivisions within the department 27 and to establish such regional offices as are necessary to 28 properly enforce and administer its responsibilities under the 29 Florida Insurance Code and chapter 440, Florida Statutes. The 30 department may also enter into contracts with public or 31 private entities to administer its duties and responsibilities 2 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 associated with the transfer of the Division of Workers' 2 Compensation. All existing contracts related to those 3 functions that are transferred to the Department of Insurance 4 are subject to cancellation or renewal upon review by the 5 Department of Insurance. 6 (2) Three senior attorney positions and one 7 administrative assistant III position, and the related 8 property and unexpended balances of appropriations, 9 allocations, and other funds, are transferred from the Office 10 of General Counsel of the Department of Labor and Employment 11 Security to the Department of Insurance by a type two 12 transfer, as defined in section 20.06(2), Florida Statutes. 13 (3) The Office of the Judges of Compensation Claims is 14 transferred by a type two transfer, as defined in section 15 20.06(2), Florida Statutes, from the Department of Labor and 16 Employment Security to the Division of Administrative Hearings 17 of the Department of Management Services. 18 (4) Four positions within the Division of Workers' 19 Compensation of the Department of Labor and Employment 20 Security responsible for coding or entering data contained 21 within final orders issued by the judges of compensation 22 claims are transferred by a type two transfer, as defined in 23 section 20.06(2), Florida Statutes, to the Office of the 24 Judges of Compensation Claims within the Division of 25 Administrative Hearings of the Department of Management 26 Services. 27 (5) Ten positions within the Division of Workers' 28 Compensation of the Department of Labor and Employment 29 Security responsible for receiving and preparing docketing 30 orders for the petitions for benefits and for receiving and 31 entering data related to the petitions for benefits are 3 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 transferred by a type two transfer, as defined in section 2 20.06(2), Florida Statutes, to the Office of the Judges of 3 Compensation Claims within the Division of Administrative 4 Hearings of the Department of Management Services. 5 (6) Four positions within the Division of Workers' 6 Compensation of the Department of Labor and Employment 7 Security responsible for financial management, accounting, and 8 budgeting for the Office of the Judges of Compensation Claims 9 are transferred by a type two transfer, as defined in section 10 20.06(2), Florida Statutes, to the Office of the Judges of 11 Compensation Claims within the Division of Administrative 12 Hearings of the Department of Management Services. 13 (7) Twenty-nine full-time equivalent positions from 14 the Division of Workers' Compensation of the Department of 15 Labor and Employment Security and the records, property, and 16 unexpended balances of appropriations, allocations, and other 17 funds related to oversight of medical services in workers' 18 compensation provider relations, dispute and complaint 19 resolution, program evaluation, and data management are 20 transferred by a type two transfer, as defined in section 21 20.06(2), Florida Statutes, from the Department of Labor and 22 Employment Security to the Agency for Health Care 23 Administration. However, the claims review functions and 24 three-member panel shall not be so transferred and shall be 25 retained by the Department of Insurance. 26 (8) All statutory powers, duties, functions, rules, 27 records, personnel, property, and unexpended balances of 28 appropriations, allocations, and other funds of the Division 29 of Workers' Compensation, Office of Medical Services and 30 Rehabilitation, related to reemployment, training and 31 education, obligations to rehire, and preferred worker 4 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 requirements, consisting of 98 full-time equivalent positions, 2 are transferred by a type two transfer, as defined in section 3 20.06(2), Florida Statutes, from the Department of Labor and 4 Employment Security to the Department of Education. 5 (9) Except as provided in this section, the records, 6 property, and unexpended balances of appropriations, 7 allocations, and other funds and resources of the Office of 8 the Secretary and the Office of Administrative Services of the 9 Department of Labor and Employment Security which support the 10 activities and functions of the Division of Workers' 11 Compensation are transferred by a type two transfer as defined 12 in section 20.06(2), Florida Statutes, to the Department of 13 Insurance. The Department of Insurance, in consultation with 14 the Department of Labor and Employment Security, shall 15 determine the number of positions needed for administrative 16 support of the programs within the Division of Workers' 17 Compensation as transferred to the Department of Insurance. 18 The number of administrative support positions that the 19 Department of Insurance determines is needed may not exceed 20 the number of administrative support positions that was 21 authorized for the Department of Labor and Employment Security 22 for this purpose prior to the transfer. Upon transfer of the 23 Division of Workers' Compensation, the number of required 24 administrative support positions as determined by the 25 Department of Insurance shall be authorized within the 26 Department of Insurance. 27 (10) All the personnel, records, property, and 28 unexpended balances of appropriations, allocations, and other 29 funds and resources of the Office of the Secretary and the 30 Office of Administrative Services of the Department of Labor 31 and Employment Security which support the activities and 5 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 functions transferred under subsections (7) and (8) to the 2 Department of Education are transferred by a type two transfer 3 as defined in section 20.06(2), Florida Statutes, to the 4 Department of Education. 5 (11) The records, property, and unexpended balances of 6 appropriations, allocations, and other funds and resources of 7 the Office of the Secretary and the Office of Administrative 8 Services of the Department of Labor and Employment Security 9 which support the activities and functions transferred under 10 subsection (7) to the Agency for Health Care Administration 11 are transferred by a type two transfer as defined in section 12 20.06(2), Florida Statutes, to the Agency for Health Care 13 Administration. 14 (12) Effective July 1, 2001, all powers, duties, 15 functions, rules, records, personnel, property, and unexpended 16 balances of appropriations, allocations, and other funds of 17 the Unemployment Appeals Commission relating to the 18 commission's specified authority, powers, duties, and 19 responsibilities are transferred by a type two transfer, as 20 defined in s. 20.06(2), Florida Statutes, to the Agency for 21 Workforce Innovation. 22 (13) Effective July 1, 2001, all powers, duties, 23 functions, rules, records, personnel, property, and unexpended 24 balances of appropriations, allocations, and other funds of 25 the Public Employees Relations Commission relating to the 26 commission's specified authority, powers, duties, and 27 responsibilities are transferred by a type two transfer, as 28 defined in s. 20.06(2), Florida Statutes, to the Department of 29 Management Services. 30 (14) Effective July 1, 2001, the Office of Information 31 Systems is transferred by a type two transfer, as defined in 6 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 s. 20.06(2), Florida Statutes, from the Department of Labor 2 and Employment Security to the State Technology Office. 3 (15)(a) Effective July 1, 2001, the records, property, 4 and unexpended balances of appropriations, allocations, and 5 other funds and resources of the Office of the Secretary and 6 the Office of Administrative Services of the Department of 7 Labor and Employment Security which support the activities and 8 functions transferred under subsection (12) to the Agency for 9 Workforce Innovation are transferred as provided in s. 10 20.06(2), Florida Statutes, to the Agency for Workforce 11 Innovation. 12 (b) Effective July 1, 2001, the records, property, and 13 unexpended balances of appropriations, allocations, and other 14 funds and resources of the Office of the Secretary and the 15 Office of Administrative Services of the Department of Labor 16 and Employment Security which support the activities and 17 functions transferred under subsection (13) to the Department 18 of Management Services are transferred as provided in s. 19 20.06(2), Florida Statutes, to the Department of Management 20 Services. 21 (c) Effective July 1, 2001, the records, property, and 22 unexpended balances of appropriations, allocations, and other 23 funds and resources of the Office of the Secretary and the 24 Office of Administrative Services of the Department of Labor 25 and Employment Security which support the activities and 26 functions transferred under subsection (14) to the State 27 Technology Office are transferred as provided in s. 20.06(2), 28 Florida Statutes, to the State Technology Office. 29 (16) This act does not affect the validity of any 30 judicial or administrative proceeding involving the Department 31 of Labor and Employment Security, which is pending as of the 7 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 effective date of any transfer under this act. The successor 2 department, agency, or entity responsible for the program, 3 activity, or function relative to the proceeding shall be 4 substituted, as of the effective date of the applicable 5 transfer under this act, for the Department of Labor and 6 Employment Security as a party in interest in any such 7 proceedings. 8 (17) Effective July 1, 2001, eleven full-time 9 equivalent positions from the Division of Workers' 10 Compensation of the Department of Labor and Employment 11 Security, and the powers, duties, functions, rules, records, 12 personnel, property, and unexpended balances of 13 appropriations, allocations, and other funds related to the 14 administration of child labor laws under chapter 450, Florida 15 Statutes, are transferred by a type two transfer, as defined 16 in section 20.06(2), Florida Statutes, from the Department of 17 Labor and Employment Security to the Department of Business 18 and Professional Regulation. 19 (18) Effective July 1, 2001, thirty full-time 20 equivalent positions from the Compliance and Enforcement 21 Program in the Office of the Secretary and Administrative 22 Services and one senior attorney and one administrative 23 secretary from the Office of General Counsel in the Office of 24 the Secretary and Administrative Services, and the powers, 25 duties, functions, rules, records, personnel, property, and 26 unexpended balances of appropriations, allocations, and other 27 funds of the Office of the Secretary and Administrative 28 Services of the Department of Labor and Employment Security 29 related to the regulation of labor organizations under chapter 30 447, Florida Statutes, and the administration of migrant labor 31 and farm labor laws under chapter 450, Florida Statutes, are 8 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 transferred by a type two transfer, as defined in section 2 20.06 (2), Florida Statutes, from the Department of Labor and 3 Employment Security to the Department of Business and 4 Professional Regulation. 5 (19) Effective July 1, 2001, any other powers, duties, 6 functions, rules, records, property, and unexpended balances 7 of appropriations, allocations, and other funds of the 8 Department of Labor and Employment Security not otherwise 9 transferred by this act, relating to workplace regulation and 10 enforcement, including, but not limited to, those under 11 chapter 448, Florida Statutes, are transferred by a type two 12 transfer, as defined in section 20.06(2), Florida Statutes, 13 from the Department of Labor and Employment Security to the 14 Department of Business and Professional Regulation. 15 (20) Effective July 1, 2001, the records, property, 16 and unexpended balances of appropriations, allocations, and 17 other funds and resources of the Office of the Secretary and 18 Administrative Services of the Department of Labor and 19 Employment Security which support the activities and functions 20 transferred under subsections (17), (18), and (19) to the 21 Department of Business and Professional Regulation are 22 transferred as provided in section 20.06(2), Florida Statutes, 23 to the Department of Business and Professional Regulation. 24 (21) Notwithstanding any other provision of law, any 25 binding contract or interagency agreement existing on or 26 before October 1, 2001, between the Department of Labor and 27 Employment Security, or an entity or agent of the department, 28 and any other agency, entity, or person shall continue as a 29 binding contract or agreement for the remainder of the term of 30 such contract or agreement with the successor department, 31 agency, or entity responsible for the program, activity, or 9 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 functions relative to the contract or agreement. 2 Section 2. Paragraph (k) is added to subsection (2) of 3 section 20.13, Florida Statutes, to read: 4 20.13 Department of Insurance.--There is created a 5 Department of Insurance. 6 (2) The following divisions of the Department of 7 Insurance are established: 8 (k) Division of Workers' Compensation. 9 Section 3. Section 20.171, Florida Statutes, is 10 repealed. 11 Section 4. Paragraph (1) of subsection (2) of section 12 110.205, Florida Statutes, is amended to read: 13 110.205 Career service; exemptions.-- 14 (2) EXEMPT POSITIONS.--The exempt positions which are 15 not covered by this part include the following, provided that 16 no position, except for positions established for a limited 17 period of time pursuant to paragraph (h), shall be exempted if 18 the position reports to a position in the career service: 19 (l) All assistant division director, deputy division 20 director, and bureau chief positions in any department, and 21 those positions determined by the department to have 22 managerial responsibilities comparable to such positions, 23 which positions include, but are not limited to, positions in 24 the Department of Health, the Department of Children and 25 Family Services, and the Department of Corrections that are 26 assigned primary duties of serving as the superintendent or 27 assistant superintendent, or warden or assistant warden, of an 28 institution; positions in the Department of Corrections that 29 are assigned primary duties of serving as the circuit 30 administrator or deputy circuit administrator; positions in 31 the Department of Transportation that are assigned primary 10 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 duties of serving as regional toll managers and managers of 2 offices as defined in s. 20.23(3)(d)3. and (4)(d); positions 3 in the Department of Environmental Protection that are 4 assigned the duty of an Environmental Administrator or program 5 administrator; those positions described in s. 20.171 as 6 included in the Senior Management Service; and positions in 7 the Department of Health that are assigned the duties of 8 Environmental Administrator, Assistant County Health 9 Department Director, and County Health Department Financial 10 Administrator. Unless otherwise fixed by law, the department 11 shall set the salary and benefits of these positions in 12 accordance with the rules established for the Selected Exempt 13 Service. 14 Section 5. Section 440.015, Florida Statutes, is 15 amended to read: 16 440.015 Legislative intent.--It is the intent of the 17 Legislature that the Workers' Compensation Law be interpreted 18 so as to assure the quick and efficient delivery of disability 19 and medical benefits to an injured worker and to facilitate 20 the worker's return to gainful reemployment at a reasonable 21 cost to the employer. It is the specific intent of the 22 Legislature that workers' compensation cases shall be decided 23 on their merits. The workers' compensation system in Florida 24 is based on a mutual renunciation of common-law rights and 25 defenses by employers and employees alike. In addition, it is 26 the intent of the Legislature that the facts in a workers' 27 compensation case are not to be interpreted liberally in favor 28 of either the rights of the injured worker or the rights of 29 the employer. Additionally, the Legislature hereby declares 30 that disputes concerning the facts in workers' compensation 31 cases are not to be given a broad liberal construction in 11 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 favor of the employee on the one hand or of the employer on 2 the other hand, and the laws pertaining to workers' 3 compensation are to be construed in accordance with the basic 4 principles of statutory construction and not liberally in 5 favor of either employee or employer. It is the intent of the 6 Legislature to ensure the prompt delivery of benefits to the 7 injured worker. Therefore, an efficient and self-executing 8 system must be created which is not an economic or 9 administrative burden. The Division of Workers' Compensation 10 of the Department of Insurance, the Department of Education, 11 and the Agency for Health Care Administration shall administer 12 the Workers' Compensation Law in a manner that which 13 facilitates the self-execution of the system and the process 14 of ensuring a prompt and cost-effective delivery of payments. 15 Section 6. Subsections (11), (13), and (14) of section 16 440.02, Florida Statutes, are amended, and subsection (40) is 17 added to that section, to read: 18 440.02 Definitions.--When used in this chapter, unless 19 the context clearly requires otherwise, the following terms 20 shall have the following meanings: 21 (11) "Department" means the Department of Insurance 22 Labor and Employment Security. 23 (13) "Division" means the Division of Workers' 24 Compensation of the Department of Insurance Labor and 25 Employment Security. 26 (14)(a) "Employee" means any person engaged in any 27 employment under any appointment or contract of hire or 28 apprenticeship, express or implied, oral or written, whether 29 lawfully or unlawfully employed, and includes, but is not 30 limited to, aliens and minors. 31 (b) "Employee" includes any person who is an officer 12 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 of a corporation and who performs services for remuneration 2 for such corporation within this state, whether or not such 3 services are continuous. 4 1. Any officer of a corporation may elect to be exempt 5 from this chapter by filing written notice of the election 6 with the department division as provided in s. 440.05. 7 2. As to officers of a corporation who are actively 8 engaged in the construction industry, no more than three 9 officers may elect to be exempt from this chapter by filing 10 written notice of the election with the department division as 11 provided in s. 440.05. 12 3. An officer of a corporation who elects to be exempt 13 from this chapter by filing a written notice of the election 14 with the department division as provided in s. 440.05 is not 15 an employee. 16 17 Services are presumed to have been rendered to the corporation 18 if the officer is compensated by other than dividends upon 19 shares of stock of the corporation which the officer owns. 20 (c) "Employee" includes a sole proprietor or a partner 21 who devotes full time to the proprietorship or partnership 22 and, except as provided in this paragraph, elects to be 23 included in the definition of employee by filing notice 24 thereof as provided in s. 440.05. Partners or sole proprietors 25 actively engaged in the construction industry are considered 26 employees unless they elect to be excluded from the definition 27 of employee by filing written notice of the election with the 28 department division as provided in s. 440.05. However, no more 29 than three partners in a partnership that is actively engaged 30 in the construction industry may elect to be excluded. A sole 31 proprietor or partner who is actively engaged in the 13 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 construction industry and who elects to be exempt from this 2 chapter by filing a written notice of the election with the 3 department division as provided in s. 440.05 is not an 4 employee. For purposes of this chapter, an independent 5 contractor is an employee unless he or she meets all of the 6 conditions set forth in subparagraph (d)1. 7 (d) "Employee" does not include: 8 1. An independent contractor, if: 9 a. The independent contractor maintains a separate 10 business with his or her own work facility, truck, equipment, 11 materials, or similar accommodations; 12 b. The independent contractor holds or has applied for 13 a federal employer identification number, unless the 14 independent contractor is a sole proprietor who is not 15 required to obtain a federal employer identification number 16 under state or federal requirements; 17 c. The independent contractor performs or agrees to 18 perform specific services or work for specific amounts of 19 money and controls the means of performing the services or 20 work; 21 d. The independent contractor incurs the principal 22 expenses related to the service or work that he or she 23 performs or agrees to perform; 24 e. The independent contractor is responsible for the 25 satisfactory completion of work or services that he or she 26 performs or agrees to perform and is or could be held liable 27 for a failure to complete the work or services; 28 f. The independent contractor receives compensation 29 for work or services performed for a commission or on a 30 per-job or competitive-bid basis and not on any other basis; 31 g. The independent contractor may realize a profit or 14 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 suffer a loss in connection with performing work or services; 2 h. The independent contractor has continuing or 3 recurring business liabilities or obligations; and 4 i. The success or failure of the independent 5 contractor's business depends on the relationship of business 6 receipts to expenditures. 7 8 However, the determination as to whether an individual 9 included in the Standard Industrial Classification Manual of 10 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762, 11 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436, 12 2448, or 2449, or a newspaper delivery person, is an 13 independent contractor is governed not by the criteria in this 14 paragraph but by common-law principles, giving due 15 consideration to the business activity of the individual. 16 2. A real estate salesperson or agent, if that person 17 agrees, in writing, to perform for remuneration solely by way 18 of commission. 19 3. Bands, orchestras, and musical and theatrical 20 performers, including disk jockeys, performing in licensed 21 premises as defined in chapter 562, if a written contract 22 evidencing an independent contractor relationship is entered 23 into before the commencement of such entertainment. 24 4. An owner-operator of a motor vehicle who transports 25 property under a written contract with a motor carrier which 26 evidences a relationship by which the owner-operator assumes 27 the responsibility of an employer for the performance of the 28 contract, if the owner-operator is required to furnish the 29 necessary motor vehicle equipment and all costs incidental to 30 the performance of the contract, including, but not limited 31 to, fuel, taxes, licenses, repairs, and hired help; and the 15 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 owner-operator is paid a commission for transportation service 2 and is not paid by the hour or on some other time-measured 3 basis. 4 5. A person whose employment is both casual and not in 5 the course of the trade, business, profession, or occupation 6 of the employer. 7 6. A volunteer, except a volunteer worker for the 8 state or a county, municipality, or other governmental entity. 9 A person who does not receive monetary remuneration for 10 services is presumed to be a volunteer unless there is 11 substantial evidence that a valuable consideration was 12 intended by both employer and employee. For purposes of this 13 chapter, the term "volunteer" includes, but is not limited to: 14 a. Persons who serve in private nonprofit agencies and 15 who receive no compensation other than expenses in an amount 16 less than or equivalent to the standard mileage and per diem 17 expenses provided to salaried employees in the same agency or, 18 if such agency does not have salaried employees who receive 19 mileage and per diem, then such volunteers who receive no 20 compensation other than expenses in an amount less than or 21 equivalent to the customary mileage and per diem paid to 22 salaried workers in the community as determined by the 23 department division; and 24 b. Volunteers participating in federal programs 25 established under Pub. L. No. 93-113. 26 7. Any officer of a corporation who elects to be 27 exempt from this chapter. 28 8. A sole proprietor or officer of a corporation who 29 actively engages in the construction industry, and a partner 30 in a partnership that is actively engaged in the construction 31 industry, who elects to be exempt from the provisions of this 16 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 chapter. Such sole proprietor, officer, or partner is not an 2 employee for any reason until the notice of revocation of 3 election filed pursuant to s. 440.05 is effective. 4 9. An exercise rider who does not work for a single 5 horse farm or breeder, and who is compensated for riding on a 6 case-by-case basis, provided a written contract is entered 7 into prior to the commencement of such activity which 8 evidences that an employee/employer relationship does not 9 exist. 10 10. A taxicab, limousine, or other passenger 11 vehicle-for-hire driver who operates said vehicles pursuant to 12 a written agreement with a company which provides any 13 dispatch, marketing, insurance, communications, or other 14 services under which the driver and any fees or charges paid 15 by the driver to the company for such services are not 16 conditioned upon, or expressed as a proportion of, fare 17 revenues. 18 (40) "Agency" means the Agency for Health Care 19 Administration. 20 Section 7. Section 440.021, Florida Statutes, is 21 amended to read: 22 440.021 Exemption of workers' compensation from 23 chapter 120.--Workers' compensation adjudications by judges of 24 compensation claims are exempt from chapter 120, and no judge 25 of compensation claims shall be considered an agency or a part 26 thereof. Communications of the result of investigations by the 27 department division pursuant to s. 440.185(4) are exempt from 28 chapter 120. In all instances in which the department division 29 institutes action to collect a penalty or interest which may 30 be due pursuant to this chapter, the penalty or interest shall 31 be assessed without hearing, and the party against which such 17 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 penalty or interest is assessed shall be given written notice 2 of such assessment and shall have the right to protest within 3 20 days of such notice. Upon receipt of a timely notice of 4 protest and after such investigation as may be necessary, the 5 department division shall, if it agrees with such protest, 6 notify the protesting party that the assessment has been 7 revoked. If the department division does not agree with the 8 protest, it shall refer the matter to the judge of 9 compensation claims for determination pursuant to s. 10 440.25(2)-(5). Such action of the department division is 11 exempt from the provisions of chapter 120. 12 Section 8. Section 440.05, Florida Statutes, is 13 amended to read: 14 440.05 Election of exemption; revocation of election; 15 notice; certification.-- 16 (1) Each corporate officer who elects not to accept 17 the provisions of this chapter or who, after electing such 18 exemption, revokes that exemption shall mail to the department 19 division in Tallahassee notice to such effect in accordance 20 with a form to be prescribed by the department division. 21 (2) Each sole proprietor or partner who elects to be 22 included in the definition of "employee" or who, after such 23 election, revokes that election must mail to the department 24 division in Tallahassee notice to such effect, in accordance 25 with a form to be prescribed by the department division. 26 (3) Each sole proprietor, partner, or officer of a 27 corporation who is actively engaged in the construction 28 industry and who elects an exemption from this chapter or who, 29 after electing such exemption, revokes that exemption, must 30 mail a written notice to such effect to the department 31 division on a form prescribed by the department division 18 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 notice of election to be exempt from the provisions of this 2 chapter must be notarized and under oath. The notice of 3 election to be exempt which is submitted to the department 4 division by the sole proprietor, partner, or officer of a 5 corporation must list the name, federal tax identification 6 number, social security number, all certified or registered 7 licenses issued pursuant to chapter 489 held by the person 8 seeking the exemption, a copy of relevant documentation as to 9 employment status filed with the Internal Revenue Service as 10 specified by the department division, a copy of the relevant 11 occupational license in the primary jurisdiction of the 12 business, and, for corporate officers and partners, the 13 registration number of the corporation or partnership filed 14 with the Division of Corporations of the Department of State. 15 The notice of election to be exempt must identify each sole 16 proprietorship, partnership, or corporation that employs the 17 person electing the exemption and must list the social 18 security number or federal tax identification number of each 19 such employer and the additional documentation required by 20 this section. In addition, the notice of election to be exempt 21 must provide that the sole proprietor, partner, or officer 22 electing an exemption is not entitled to benefits under this 23 chapter, must provide that the election does not exceed 24 exemption limits for officers and partnerships provided in s. 25 440.02, and must certify that any employees of the sole 26 proprietor, partner, or officer electing an exemption are 27 covered by workers' compensation insurance. Upon receipt of 28 the notice of the election to be exempt, receipt of all 29 application fees, and a determination by the department 30 division that the notice meets the requirements of this 31 subsection, the department division shall issue a 19 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 certification of the election to the sole proprietor, partner, 2 or officer, unless the department division determines that the 3 information contained in the notice is invalid. The department 4 division shall revoke a certificate of election to be exempt 5 from coverage upon a determination by the department division 6 that the person does not meet the requirements for exemption 7 or that the information contained in the notice of election to 8 be exempt is invalid. The certificate of election must list 9 the names of the sole proprietorship, partnership, or 10 corporation listed in the request for exemption. A new 11 certificate of election must be obtained each time the person 12 is employed by a new sole proprietorship, partnership, or 13 corporation that is not listed on the certificate of election. 14 A copy of the certificate of election must be sent to each 15 workers' compensation carrier identified in the request for 16 exemption. Upon filing a notice of revocation of election, a 17 sole proprietor, partner, or officer who is a subcontractor 18 must notify her or his contractor. Upon revocation of a 19 certificate of election of exemption by the department 20 division, the department division shall notify the workers' 21 compensation carriers identified in the request for exemption. 22 (4) The notice of election to be exempt from the 23 provisions of this chapter must contain a notice that clearly 24 states in substance the following: "Any person who, knowingly 25 and with intent to injure, defraud, or deceive the department 26 division or any employer or employee, insurance company, or 27 purposes program, files a notice of election to be exempt 28 containing any false or misleading information is guilty of a 29 felony of the third degree." Each person filing a notice of 30 election to be exempt shall personally sign the notice and 31 attest that he or she has reviewed, understands, and 20 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 acknowledges the foregoing notice. 2 (5) A notice given under subsection (1), subsection 3 (2), or subsection (3) shall become effective when issued by 4 the department division or 30 days after an application for an 5 exemption is received by the department division, whichever 6 occurs first. However, if an accident or occupational disease 7 occurs less than 30 days after the effective date of the 8 insurance policy under which the payment of compensation is 9 secured or the date the employer qualified as a self-insurer, 10 such notice is effective as of 12:01 a.m. of the day following 11 the date it is mailed to the department division in 12 Tallahassee. 13 (6) A construction industry certificate of election to 14 be exempt which is issued in accordance with this section 15 shall be valid for 2 years after the effective date stated 16 thereon. Both the effective date and the expiration date must 17 be listed on the face of the certificate by the department 18 division. The construction industry certificate must expire at 19 midnight, 2 years from its issue date, as noted on the face of 20 the exemption certificate. Any person who has received from 21 the department division a construction industry certificate of 22 election to be exempt which is in effect on December 31, 1998, 23 shall file a new notice of election to be exempt by the last 24 day in his or her birth month following December 1, 1998. A 25 construction industry certificate of election to be exempt may 26 be revoked before its expiration by the sole proprietor, 27 partner, or officer for whom it was issued or by the 28 department division for the reasons stated in this section. 29 At least 60 days prior to the expiration date of a 30 construction industry certificate of exemption issued after 31 December 1, 1998, the department division shall send notice of 21 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the expiration date and an application for renewal to the 2 certificateholder at the address on the certificate. 3 (7) Any contractor responsible for compensation under 4 s. 440.10 may register in writing with the workers' 5 compensation carrier for any subcontractor and shall 6 thereafter be entitled to receive written notice from the 7 carrier of any cancellation or nonrenewal of the policy. 8 (8)(a) The department division must assess a fee of 9 $50 with each request for a construction industry certificate 10 of election to be exempt or renewal of election to be exempt 11 under this section. 12 (b) The funds collected by the department division 13 shall be used to administer this section, to audit the 14 businesses that pay the fee for compliance with any 15 requirements of this chapter, and to enforce compliance with 16 the provisions of this chapter. 17 (9) The department division may by rule prescribe 18 forms and procedures for filing an election of exemption, 19 revocation of election to be exempt, and notice of election of 20 coverage for all employers and require specified forms to be 21 submitted by all employers in filing for the election of 22 exemption. The department division may by rule prescribe forms 23 and procedures for issuing a certificate of the election of 24 exemption. 25 Section 9. Paragraph (d) of subsection (7) of section 26 440.09, Florida Statutes, is amended to read: 27 440.09 Coverage.-- 28 (7) 29 (d) The department division shall provide by rule for 30 the authorization and regulation of drug-testing policies, 31 procedures, and methods. Testing of injured employees shall 22 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 not commence until such rules are adopted. 2 Section 10. Paragraphs (f) and (g) of subsection (1) 3 of section 440.10, Florida Statutes, are amended to read: 4 440.10 Liability for compensation.-- 5 (1) 6 (f) If an employer willfully fails to secure 7 compensation as required by this chapter, the department 8 division may assess against the employer a penalty not to 9 exceed $5,000 for each employee of that employer who is 10 classified by the employer as an independent contractor but 11 who is found by the department division to not meet the 12 criteria for an independent contractor that are set forth in 13 s. 440.02. 14 (g) For purposes of this section, a person is 15 conclusively presumed to be an independent contractor if: 16 1. The independent contractor provides the general 17 contractor with an affidavit stating that he or she meets all 18 the requirements of s. 440.02(14)(d); and 19 2. The independent contractor provides the general 20 contractor with a valid certificate of workers' compensation 21 insurance or a valid certificate of exemption issued by the 22 department division. 23 24 A sole proprietor, partner, or officer of a corporation who 25 elects exemption from this chapter by filing a certificate of 26 election under s. 440.05 may not recover benefits or 27 compensation under this chapter. An independent contractor 28 who provides the general contractor with both an affidavit 29 stating that he or she meets the requirements of s. 30 440.02(14)(d) and a certificate of exemption is not an 31 employee under s. 440.02(14)(c) and may not recover benefits 23 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 under this chapter. For purposes of determining the 2 appropriate premium for workers' compensation coverage, 3 carriers may not consider any person who meets the 4 requirements of this paragraph to be an employee. 5 Section 11. Subsection (2), paragraph (a) of 6 subsection (3), and paragraph (g) of subsection (7) of section 7 440.102, Florida Statutes, are amended to read: 8 440.102 Drug-free workplace program requirements.--The 9 following provisions apply to a drug-free workplace program 10 implemented pursuant to law or to rules adopted by the Agency 11 for Health Care Administration: 12 (2) DRUG TESTING.--An employer may test an employee or 13 job applicant for any drug described in paragraph (1)(c). In 14 order to qualify as having established a drug-free workplace 15 program which affords an employer the ability to qualify for 16 the discounts provided under s. 627.0915 and deny medical and 17 indemnity benefits, under this chapter all drug testing 18 conducted by employers shall be in conformity with the 19 standards and procedures established in this section and all 20 applicable rules adopted pursuant to this section. However, an 21 employer does not have a legal duty under this section to 22 request an employee or job applicant to undergo drug testing. 23 If an employer fails to maintain a drug-free workplace program 24 in accordance with the standards and procedures established in 25 this section and in applicable rules, the employer shall not 26 be eligible for discounts under s. 627.0915. All employers 27 qualifying for and receiving discounts provided under s. 28 627.0915 must be reported annually by the insurer to the 29 department division. 30 (3) NOTICE TO EMPLOYEES AND JOB APPLICANTS.-- 31 (a) One time only, prior to testing, an employer shall 24 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 give all employees and job applicants for employment a written 2 policy statement which contains: 3 1. A general statement of the employer's policy on 4 employee drug use, which must identify: 5 a. The types of drug testing an employee or job 6 applicant may be required to submit to, including 7 reasonable-suspicion drug testing or drug testing conducted on 8 any other basis. 9 b. The actions the employer may take against an 10 employee or job applicant on the basis of a positive confirmed 11 drug test result. 12 2. A statement advising the employee or job applicant 13 of the existence of this section. 14 3. A general statement concerning confidentiality. 15 4. Procedures for employees and job applicants to 16 confidentially report to a medical review officer the use of 17 prescription or nonprescription medications to a medical 18 review officer both before and after being tested. 19 5. A list of the most common medications, by brand 20 name or common name, as applicable, as well as by chemical 21 name, which may alter or affect a drug test. A list of such 22 medications as developed by the Agency for Health Care 23 Administration shall be available to employers through the 24 Division of Workers' Compensation of the Department of Labor 25 and Employment Security. 26 6. The consequences of refusing to submit to a drug 27 test. 28 7. A representative sampling of names, addresses, and 29 telephone numbers of employee assistance programs and local 30 drug rehabilitation programs. 31 8. A statement that an employee or job applicant who 25 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 receives a positive confirmed test result may contest or 2 explain the result to the medical review officer within 5 3 working days after receiving written notification of the test 4 result; that if an employee's or job applicant's explanation 5 or challenge is unsatisfactory to the medical review officer, 6 the medical review officer shall report a positive test result 7 back to the employer; and that a person may contest the drug 8 test result pursuant to law or to rules adopted by the Agency 9 for Health Care Administration. 10 9. A statement informing the employee or job applicant 11 of his or her responsibility to notify the laboratory of any 12 administrative or civil action brought pursuant to this 13 section. 14 10. A list of all drugs for which the employer will 15 test, described by brand name or common name, as applicable, 16 as well as by chemical name. 17 11. A statement regarding any applicable collective 18 bargaining agreement or contract and the right to appeal to 19 the Public Employees Relations Commission or applicable court. 20 12. A statement notifying employees and job applicants 21 of their right to consult with a medical review officer for 22 technical information regarding prescription or 23 nonprescription medication. 24 (7) EMPLOYER PROTECTION.-- 25 (g) This section does not prohibit an employer from 26 conducting medical screening or other tests required, 27 permitted, or not disallowed by any statute, rule, or 28 regulation for the purpose of monitoring exposure of employees 29 to toxic or other unhealthy substances in the workplace or in 30 the performance of job responsibilities. Such screening or 31 testing is limited to the specific substances expressly 26 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 identified in the applicable statute, rule, or regulation, 2 unless prior written consent of the employee is obtained for 3 other tests. Such screening or testing need not be in 4 compliance with the rules adopted by the Agency for Health 5 Care Administration under this chapter or under s. 112.0455. A 6 public employer may, through the use of an unbiased selection 7 procedure, conduct random drug tests of employees occupying 8 safety-sensitive or special-risk positions if the testing is 9 performed in accordance with drug-testing rules adopted by the 10 Agency for Health Care Administration and the Department of 11 Insurance Labor and Employment Security. If applicable, random 12 drug testing must be specified in a collective bargaining 13 agreement as negotiated by the appropriate certified 14 bargaining agent before such testing is implemented. 15 Section 12. Section 440.103, Florida Statutes, is 16 amended to read: 17 440.103 Building permits; identification of minimum 18 premium policy.--Except as otherwise provided in this chapter, 19 every employer shall, as a condition to receiving a building 20 permit, show proof that it has secured compensation for its 21 employees under this chapter as provided in ss. 440.10 and 22 440.38. Such proof of compensation must be evidenced by a 23 certificate of coverage issued by the carrier, a valid 24 exemption certificate approved by the division or the 25 department, or a copy of the employer's authority to 26 self-insure and shall be presented each time the employer 27 applies for a building permit. As provided in s. 627.413(5), 28 each certificate of coverage must show, on its face, whether 29 or not coverage is secured under the minimum premium 30 provisions of rules adopted by rating organizations licensed 31 by the Department of Insurance. The words "minimum premium 27 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 policy" or equivalent language shall be typed, printed, 2 stamped, or legibly handwritten. 3 Section 13. Paragraph (a) of subsection (2) of section 4 440.105, Florida Statutes, is amended to read: 5 440.105 Prohibited activities; reports; penalties; 6 limitations.-- 7 (2) Whoever violates any provision of this subsection 8 commits a misdemeanor of the second degree, punishable as 9 provided in s. 775.082 or s. 775.083. 10 (a) It shall be unlawful for any employer to 11 knowingly: 12 1. Coerce or attempt to coerce, as a precondition to 13 employment or otherwise, an employee to obtain a certificate 14 of election of exemption pursuant to s. 440.05. 15 2. Discharge or refuse to hire an employee or job 16 applicant because the employee or applicant has filed a claim 17 for benefits under this chapter. 18 3. Discharge, discipline, or take any other adverse 19 personnel action against any employee for disclosing 20 information to the department division or any law enforcement 21 agency relating to any violation or suspected violation of any 22 of the provisions of this chapter or rules promulgated 23 hereunder. 24 4. Violate a stop-work order issued by the department 25 division pursuant to s. 440.107. 26 Section 14. Subsections (3) and (4) of section 27 440.106, Florida Statutes, are amended to read: 28 440.106 Civil remedies; administrative penalties.-- 29 (3) Whenever any group or individual self-insurer, 30 carrier, rating bureau, or agent or other representative of 31 any carrier or rating bureau is determined to have violated s. 28 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 440.105, the department of Insurance may revoke or suspend the 2 authority or certification of any group or individual 3 self-insurer, carrier, agent, or broker. 4 (4) The department division shall report any 5 contractor determined in violation of requirements of this 6 chapter to the appropriate state licensing board for 7 disciplinary action. 8 Section 15. Section 440.107, Florida Statutes, is 9 amended to read: 10 440.107 Department Division powers to enforce employer 11 compliance with coverage requirements.-- 12 (1) The Legislature finds that the failure of an 13 employer to comply with the workers' compensation coverage 14 requirements under this chapter poses an immediate danger to 15 public health, safety, and welfare. The Legislature authorizes 16 the department division to secure employer compliance with the 17 workers' compensation coverage requirements and authorizes the 18 department division to conduct investigations for the purpose 19 of ensuring employer compliance. 20 (2) The department division and its authorized 21 representatives may enter and inspect any place of business at 22 any reasonable time for the limited purpose of investigating 23 compliance with workers' compensation coverage requirements 24 under this chapter. Each employer shall keep true and accurate 25 business records that contain such information as the 26 department division prescribes by rule. The business records 27 must contain information necessary for the department division 28 to determine compliance with workers' compensation coverage 29 requirements and must be maintained within this state by the 30 business, in such a manner as to be accessible within a 31 reasonable time upon request by the department division. The 29 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 business records must be open to inspection and be available 2 for copying by the department division at any reasonable time 3 and place and as often as necessary. The department division 4 may require from any employer any sworn or unsworn reports, 5 pertaining to persons employed by that employer, deemed 6 necessary for the effective administration of the workers' 7 compensation coverage requirements. 8 (3) In discharging its duties, the department division 9 may administer oaths and affirmations, certify to official 10 acts, issue subpoenas to compel the attendance of witnesses 11 and the production of books, papers, correspondence, 12 memoranda, and other records deemed necessary by the 13 department division as evidence in order to ensure proper 14 compliance with the coverage provisions of this chapter. 15 (4) If a person has refused to obey a subpoena to 16 appear before the department division or its authorized 17 representative and produce evidence requested by the 18 department division or to give testimony about the matter that 19 is under investigation, a court has jurisdiction to issue an 20 order requiring compliance with the subpoena if the court has 21 jurisdiction in the geographical area where the inquiry is 22 being carried on or in the area where the person who has 23 refused the subpoena is found, resides, or transacts business. 24 Failure to obey such a court order may be punished by the 25 court as contempt. 26 (5) Whenever the department division determines that 27 an employer who is required to secure the payment to his or 28 her employees of the compensation provided for by this chapter 29 has failed to do so, such failure shall be deemed an immediate 30 serious danger to public health, safety, or welfare sufficient 31 to justify service by the department division of a stop-work 30 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 order on the employer, requiring the cessation of all business 2 operations at the place of employment or job site. The order 3 shall take effect upon the date of service upon the employer, 4 unless the employer provides evidence satisfactory to the 5 department division of having secured any necessary insurance 6 or self-insurance and pays a civil penalty to the department 7 division, to be deposited by the department division into the 8 Workers' Compensation Administration Trust Fund, in the amount 9 of $100 per day for each day the employer was not in 10 compliance with this chapter. 11 (6) The department division may file a complaint in 12 the circuit court in and for Leon County to enjoin any 13 employer, who has failed to secure compensation as required by 14 this chapter, from employing individuals and from conducting 15 business until the employer presents evidence satisfactory to 16 the department division of having secured payment for 17 compensation and pays a civil penalty to the department 18 division, to be deposited by the department division into the 19 Workers' Compensation Administration Trust Fund, in the amount 20 of $100 per day for each day the employer was not in 21 compliance with this chapter. 22 (7) In addition to any penalty, stop-work order, or 23 injunction, the department division may assess against any 24 employer, who has failed to secure the payment of compensation 25 as required by this chapter, a penalty in the amount of: 26 (a) Twice the amount the employer would have paid 27 during periods it illegally failed to secure payment of 28 compensation in the preceding 3-year period based on the 29 employer's payroll during the preceding 3-year period; or 30 (b) One thousand dollars, whichever is greater. 31 31 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Any penalty assessed under this subsection is due within 30 2 days after the date on which the employer is notified, except 3 that, if the department division has posted a stop-work order 4 or obtained injunctive relief against the employer, payment is 5 due, in addition to those conditions set forth in this 6 section, as a condition to relief from a stop-work order or an 7 injunction. Interest shall accrue on amounts not paid when due 8 at the rate of 1 percent per month. 9 (8) The department division may bring an action in 10 circuit court to recover penalties assessed under this 11 section, including any interest owed to the department 12 division pursuant to this section. In any action brought by 13 the department division pursuant to this section in which it 14 prevails, the circuit court shall award costs, including the 15 reasonable costs of investigation and a reasonable attorney's 16 fee. 17 (9) Any judgment obtained by the department division 18 and any penalty due pursuant to the service of a stop-work 19 order or otherwise due under this section shall, until 20 collected, constitute a lien upon the entire interest of the 21 employer, legal or equitable, in any property, real or 22 personal, tangible or intangible; however, such lien is 23 subordinate to claims for unpaid wages and any prior recorded 24 liens, and a lien created by this section is not valid against 25 any person who, subsequent to such lien and in good faith and 26 for value, purchases real or personal property from such 27 employer or becomes the mortgagee on real or personal property 28 of such employer, or against a subsequent attaching creditor, 29 unless, with respect to real estate of the employer, a notice 30 of the lien is recorded in the public records of the county 31 where the real estate is located, and with respect to personal 32 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 property of the employer, the notice is recorded with the 2 Secretary of State. 3 (10) Any law enforcement agency in the state may, at 4 the request of the department division, render any assistance 5 necessary to carry out the provisions of this section, 6 including, but not limited to, preventing any employee or 7 other person from remaining at a place of employment or job 8 site after a stop-work order or injunction has taken effect. 9 (11) Actions by the department division under this 10 section must be contested as provided in chapter 120. All 11 civil penalties assessed by the department division must be 12 paid into the Workers' Compensation Administration Trust Fund. 13 The department division shall return any sums previously paid, 14 upon conclusion of an action, if the department division fails 15 to prevail and if so directed by an order of court or an 16 administrative hearing officer. The requirements of this 17 subsection may be met by posting a bond in an amount equal to 18 twice the penalty and in a form approved by the department 19 division. 20 Section 16. Subsection (1) of section 440.108, Florida 21 Statutes, is amended to read: 22 440.108 Investigatory records relating to workers' 23 compensation employer compliance; confidentiality.-- 24 (1) All investigatory records of the department 25 Division of Workers' Compensation made or received pursuant to 26 s. 440.107 and any records necessary to complete an 27 investigation are confidential and exempt from the provisions 28 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution 29 until the investigation is completed or ceases to be active. 30 For purposes of this section, an investigation is considered 31 "active" while such investigation is being conducted by the 33 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 department division with a reasonable, good-faith good faith 2 belief that it may lead to the filing of administrative, 3 civil, or criminal proceedings. An investigation does not 4 cease to be active if the agency is proceeding with reasonable 5 dispatch and there is a good faith belief that action may be 6 initiated by the agency or other administrative or law 7 enforcement agency. After an investigation is completed or 8 ceases to be active, records relating to the investigation 9 remain confidential and exempt from the provisions of s. 10 119.07(1) and s. 24(a), Art. I of the State Constitution if 11 disclosure would: 12 (a) Jeopardize the integrity of another active 13 investigation; 14 (b) Reveal a trade secret, as defined in s. 688.002; 15 (c) Reveal business or personal financial information; 16 (d) Reveal the identity of a confidential source; 17 (e) Defame or cause unwarranted damage to the good 18 name or reputation of an individual or jeopardize the safety 19 of an individual; or 20 (f) Reveal investigative techniques or procedures. 21 Section 17. Section 440.125, Florida Statutes, is 22 amended to read: 23 440.125 Medical records and reports; identifying 24 information in employee medical bills; confidentiality.-- 25 (1) Any medical records and medical reports of an 26 injured employee and any information identifying an injured 27 employee in medical bills which are provided to the 28 department, agency, or Department of Education Division of 29 Workers' Compensation of the Department of Labor and 30 Employment Security pursuant to s. 440.13 are confidential and 31 exempt from the provisions of s. 119.07(1) and s. 24(a), Art. 34 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 I of the State Constitution, except as otherwise provided by 2 this chapter. 3 (2) The Legislature finds that it is a public 4 necessity that an injured employee's medical records and 5 medical reports and information identifying the employee in 6 medical bills held by the department, agency, or Department of 7 Education Division of Workers' Compensation pursuant to s. 8 440.13 be confidential and exempt from the public records law. 9 Public access to such information is an invasion of the 10 injured employee's right to privacy in that personal, 11 sensitive information would be revealed, and public knowledge 12 of such information could lead to discrimination against the 13 employee by coworkers and others. Additionally, there is 14 little utility in providing public access to such information 15 in that the effectiveness and efficiency of the workers' 16 compensation program can be otherwise adequately monitored and 17 evaluated. 18 (3) The department may share any confidential and 19 exempt information received pursuant to s. 440.13 with the 20 Agency for Health Care Administration in furtherance of the 21 agency's official duties under ss. 440.13 and 440.134. The 22 agency shall maintain the confidential and exempt status of 23 the information. 24 Section 18. Section 440.13, Florida Statutes, is 25 amended to read: 26 440.13 Medical services and supplies; penalty for 27 violations; limitations.-- 28 (1) DEFINITIONS.--As used in this section, the term: 29 (a) "Alternate medical care" means a change in 30 treatment or health care provider. 31 (b) "Attendant care" means care rendered by trained 35 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 professional attendants which is beyond the scope of household 2 duties. Family members may provide nonprofessional attendant 3 care, but may not be compensated under this chapter for care 4 that falls within the scope of household duties and other 5 services normally and gratuitously provided by family members. 6 "Family member" means a spouse, father, mother, brother, 7 sister, child, grandchild, father-in-law, mother-in-law, aunt, 8 or uncle. 9 (c) "Carrier" means, for purposes of this section, 10 insurance carrier, self-insurance fund or individually 11 self-insured employer, or assessable mutual insurer. 12 (d) "Catastrophic injury" means an injury as defined 13 in s. 440.02. 14 (e) "Certified health care provider" means a health 15 care provider who has been certified by the agency division or 16 who has entered an agreement with a licensed managed care 17 organization to provide treatment to injured workers under 18 this section. Certification of such health care provider must 19 include documentation that the health care provider has read 20 and is familiar with the portions of the statute, impairment 21 guides, and rules which govern the provision of remedial 22 treatment, care, and attendance. 23 (f) "Compensable" means a determination by a carrier 24 or judge of compensation claims that a condition suffered by 25 an employee results from an injury arising out of and in the 26 course of employment. 27 (g) "Emergency services and care" means emergency 28 services and care as defined in s. 395.002. 29 (h) "Health care facility" means any hospital licensed 30 under chapter 395 and any health care institution licensed 31 under chapter 400. 36 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (i) "Health care provider" means a physician or any 2 recognized practitioner who provides skilled services pursuant 3 to a prescription or under the supervision or direction of a 4 physician and who has been certified by the agency division as 5 a health care provider. The term "health care provider" 6 includes a health care facility. 7 (j) "Independent medical examiner" means a physician 8 selected by either an employee or a carrier to render one or 9 more independent medical examinations in connection with a 10 dispute arising under this chapter. 11 (k) "Independent medical examination" means an 12 objective evaluation of the injured employee's medical 13 condition, including, but not limited to, impairment or work 14 status, performed by a physician or an expert medical advisor 15 at the request of a party, a judge of compensation claims, or 16 the agency division to assist in the resolution of a dispute 17 arising under this chapter. 18 (l) "Instance of overutilization" means a specific 19 inappropriate service or level of service provided to an 20 injured employee. 21 (m) "Medically necessary" means any medical service or 22 medical supply which is used to identify or treat an illness 23 or injury, is appropriate to the patient's diagnosis and 24 status of recovery, and is consistent with the location of 25 service, the level of care provided, and applicable practice 26 parameters. The service should be widely accepted among 27 practicing health care providers, based on scientific 28 criteria, and determined to be reasonably safe. The service 29 must not be of an experimental, investigative, or research 30 nature, except in those instances in which prior approval of 31 the Agency for Health Care Administration has been obtained. 37 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 The Agency for Health Care Administration shall adopt rules 2 providing for such approval on a case-by-case basis when the 3 service or supply is shown to have significant benefits to the 4 recovery and well-being of the patient. 5 (n) "Medicine" means a drug prescribed by an 6 authorized health care provider and includes only generic 7 drugs or single-source patented drugs for which there is no 8 generic equivalent, unless the authorized health care provider 9 writes or states that the brand-name drug as defined in s. 10 465.025 is medically necessary, or is a drug appearing on the 11 schedule of drugs created pursuant to s. 465.025(6), or is 12 available at a cost lower than its generic equivalent. 13 (o) "Palliative care" means noncurative medical 14 services that mitigate the conditions, effects, or pain of an 15 injury. 16 (p) "Pattern or practice of overutilization" means 17 repetition of instances of overutilization within a specific 18 medical case or multiple cases by a single health care 19 provider. 20 (q) "Peer review" means an evaluation by two or more 21 physicians licensed under the same authority and with the same 22 or similar specialty as the physician under review, of the 23 appropriateness, quality, and cost of health care and health 24 services provided to a patient, based on medically accepted 25 standards. 26 (r) "Physician" or "doctor" means a physician licensed 27 under chapter 458, an osteopathic physician licensed under 28 chapter 459, a chiropractic physician licensed under chapter 29 460, a podiatric physician licensed under chapter 461, an 30 optometrist licensed under chapter 463, or a dentist licensed 31 under chapter 466, each of whom must be certified by the 38 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 agency division as a health care provider. 2 (s) "Reimbursement dispute" means any disagreement 3 between a health care provider or health care facility and 4 carrier concerning payment for medical treatment. 5 (t) "Utilization control" means a systematic process 6 of implementing measures that assure overall management and 7 cost containment of services delivered. 8 (u) "Utilization review" means the evaluation of the 9 appropriateness of both the level and the quality of health 10 care and health services provided to a patient, including, but 11 not limited to, evaluation of the appropriateness of 12 treatment, hospitalization, or office visits based on 13 medically accepted standards. Such evaluation must be 14 accomplished by means of a system that identifies the 15 utilization of medical services based on medically accepted 16 standards as established by medical consultants with 17 qualifications similar to those providing the care under 18 review, and that refers patterns and practices of 19 overutilization to the agency division. 20 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.-- 21 (a) Subject to the limitations specified elsewhere in 22 this chapter, the employer shall furnish to the employee such 23 medically necessary remedial treatment, care, and attendance 24 for such period as the nature of the injury or the process of 25 recovery may require, including medicines, medical supplies, 26 durable medical equipment, orthoses, prostheses, and other 27 medically necessary apparatus. Remedial treatment, care, and 28 attendance, including work-hardening programs or 29 pain-management programs accredited by the Commission on 30 Accreditation of Rehabilitation Facilities or Joint Commission 31 on the Accreditation of Health Organizations or 39 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 pain-management programs affiliated with medical schools, 2 shall be considered as covered treatment only when such care 3 is given based on a referral by a physician as defined in this 4 chapter. Each facility shall maintain outcome data, including 5 work status at discharges, total program charges, total number 6 of visits, and length of stay. The department shall utilize 7 such data and report to the President of the Senate and the 8 Speaker of the House of Representatives regarding the efficacy 9 and cost-effectiveness of such program, no later than October 10 1, 1994. Medically necessary treatment, care, and attendance 11 does not include chiropractic services in excess of 18 12 treatments or rendered 8 weeks beyond the date of the initial 13 chiropractic treatment, whichever comes first, unless the 14 carrier authorizes additional treatment or the employee is 15 catastrophically injured. 16 (b) The employer shall provide appropriate 17 professional or nonprofessional attendant care performed only 18 at the direction and control of a physician when such care is 19 medically necessary. The value of nonprofessional attendant 20 care provided by a family member must be determined as 21 follows: 22 1. If the family member is not employed, the per-hour 23 value equals the federal minimum hourly wage. 24 2. If the family member is employed and elects to 25 leave that employment to provide attendant or custodial care, 26 the per-hour value of that care equals the per-hour value of 27 the family member's former employment, not to exceed the 28 per-hour value of such care available in the community at 29 large. A family member or a combination of family members 30 providing nonprofessional attendant care under this paragraph 31 may not be compensated for more than a total of 12 hours per 40 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 day. 2 (c) If the employer fails to provide treatment or care 3 required by this section after request by the injured 4 employee, the employee may obtain such treatment at the 5 expense of the employer, if the treatment is compensable and 6 medically necessary. There must be a specific request for the 7 treatment, and the employer or carrier must be given a 8 reasonable time period within which to provide the treatment 9 or care. However, the employee is not entitled to recover any 10 amount personally expended for the treatment or service unless 11 he or she has requested the employer to furnish that treatment 12 or service and the employer has failed, refused, or neglected 13 to do so within a reasonable time or unless the nature of the 14 injury requires such treatment, nursing, and services and the 15 employer or his or her superintendent or foreman, having 16 knowledge of the injury, has neglected to provide the 17 treatment or service. 18 (d) The carrier has the right to transfer the care of 19 an injured employee from the attending health care provider if 20 an independent medical examination determines that the 21 employee is not making appropriate progress in recuperation. 22 (e) Except in emergency situations and for treatment 23 rendered by a managed care arrangement, after any initial 24 examination and diagnosis by a physician providing remedial 25 treatment, care, and attendance, and before a proposed course 26 of medical treatment begins, each insurer shall review, in 27 accordance with the requirements of this chapter, the proposed 28 course of treatment, to determine whether such treatment would 29 be recognized as reasonably prudent. The review must be in 30 accordance with all applicable workers' compensation practice 31 parameters. The insurer must accept any such proposed course 41 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 of treatment unless the insurer notifies the physician of its 2 specific objections to the proposed course of treatment by the 3 close of the tenth business day after notification by the 4 physician, or a supervised designee of the physician, of the 5 proposed course of treatment. 6 (3) PROVIDER ELIGIBILITY; AUTHORIZATION.-- 7 (a) As a condition to eligibility for payment under 8 this chapter, a health care provider who renders services must 9 be a certified health care provider and must receive 10 authorization from the carrier before providing treatment. 11 This paragraph does not apply to emergency care. The agency 12 division shall adopt rules to implement the certification of 13 health care providers. As a one-time prerequisite to obtaining 14 certification, the agency division shall require each 15 physician to demonstrate proof of completion of a minimum 16 5-hour course that covers the subject areas of cost 17 containment, utilization control, ergonomics, and the practice 18 parameters adopted by the agency division governing the 19 physician's field of practice. The agency division shall 20 coordinate with the Agency for Health Care Administration, the 21 Florida Medical Association, the Florida Osteopathic Medical 22 Association, the Florida Chiropractic Association, the Florida 23 Podiatric Medical Association, the Florida Optometric 24 Association, the Florida Dental Association, and other health 25 professional organizations and their respective boards as 26 deemed necessary by the Agency for Health Care Administration 27 in complying with this subsection. No later than October 1, 28 1994, the division shall adopt rules regarding the criteria 29 and procedures for approval of courses and the filing of proof 30 of completion by the physicians. 31 (b) A health care provider who renders emergency care 42 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 must notify the carrier by the close of the third business day 2 after it has rendered such care. If the emergency care results 3 in admission of the employee to a health care facility, the 4 health care provider must notify the carrier by telephone 5 within 24 hours after initial treatment. Emergency care is not 6 compensable under this chapter unless the injury requiring 7 emergency care arose as a result of a work-related accident. 8 Pursuant to chapter 395, all licensed physicians and health 9 care providers in this state shall be required to make their 10 services available for emergency treatment of any employee 11 eligible for workers' compensation benefits. To refuse to make 12 such treatment available is cause for revocation of a license. 13 (c) A health care provider may not refer the employee 14 to another health care provider, diagnostic facility, therapy 15 center, or other facility without prior authorization from the 16 carrier, except when emergency care is rendered. Any referral 17 must be to a health care provider that has been certified by 18 the agency division, unless the referral is for emergency 19 treatment. 20 (d) A carrier must respond, by telephone or in 21 writing, to a request for authorization by the close of the 22 third business day after receipt of the request. A carrier who 23 fails to respond to a written request for authorization for 24 referral for medical treatment by the close of the third 25 business day after receipt of the request consents to the 26 medical necessity for such treatment. All such requests must 27 be made to the carrier. Notice to the carrier does not include 28 notice to the employer. 29 (e) Carriers shall adopt procedures for receiving, 30 reviewing, documenting, and responding to requests for 31 authorization. Such procedures shall be for a health care 43 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 provider certified under this section. 2 (f) By accepting payment under this chapter for 3 treatment rendered to an injured employee, a health care 4 provider consents to the jurisdiction of the agency division 5 as set forth in subsection (11) and to the submission of all 6 records and other information concerning such treatment to the 7 agency division in connection with a reimbursement dispute, 8 audit, or review as provided by this section. The health care 9 provider must further agree to comply with any decision of the 10 agency division rendered under this section. 11 (g) The employee is not liable for payment for medical 12 treatment or services provided pursuant to this section except 13 as otherwise provided in this section. 14 (h) The provisions of s. 456.053 are applicable to 15 referrals among health care providers, as defined in 16 subsection (1), treating injured workers. 17 (i) Notwithstanding paragraph (d), a claim for 18 specialist consultations, surgical operations, 19 physiotherapeutic or occupational therapy procedures, X-ray 20 examinations, or special diagnostic laboratory tests that cost 21 more than $1,000 and other specialty services that the agency 22 division identifies by rule is not valid and reimbursable 23 unless the services have been expressly authorized by the 24 carrier, or unless the carrier has failed to respond within 10 25 days to a written request for authorization, or unless 26 emergency care is required. The insurer shall not refuse to 27 authorize such consultation or procedure unless the health 28 care provider or facility is not authorized or certified or 29 unless an expert medical advisor has determined that the 30 consultation or procedure is not medically necessary or 31 otherwise compensable under this chapter. Authorization of a 44 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 treatment plan does not constitute express authorization for 2 purposes of this section, except to the extent the carrier 3 provides otherwise in its authorization procedures. This 4 paragraph does not limit the carrier's obligation to identify 5 and disallow overutilization or billing errors. 6 (j) Notwithstanding anything in this chapter to the 7 contrary, a sick or injured employee shall be entitled, at all 8 times, to free, full, and absolute choice in the selection of 9 the pharmacy or pharmacist dispensing and filling 10 prescriptions for medicines required under this chapter. It is 11 expressly forbidden for the agency division, an employer, or a 12 carrier, or any agent or representative of the agency 13 division, an employer, or a carrier to select the pharmacy or 14 pharmacist which the sick or injured employee must use; 15 condition coverage or payment on the basis of the pharmacy or 16 pharmacist utilized; or to otherwise interfere in the 17 selection by the sick or injured employee of a pharmacy or 18 pharmacist. 19 (4) NOTICE OF TREATMENT TO CARRIER; FILING WITH 20 DEPARTMENT DIVISION.-- 21 (a) Any health care provider providing necessary 22 remedial treatment, care, or attendance to any injured worker 23 shall submit treatment reports to the carrier in a format 24 prescribed by the department in consultation with the agency 25 division. A claim for medical or surgical treatment is not 26 valid or enforceable against such employer or employee, 27 unless, by the close of the third business day following the 28 first treatment, the physician providing the treatment 29 furnishes to the employer or carrier a preliminary notice of 30 the injury and treatment on forms prescribed by the department 31 in consultation with the agency division and, within 15 days 45 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 thereafter, furnishes to the employer or carrier a complete 2 report, and subsequent thereto furnishes progress reports, if 3 requested by the employer or insurance carrier, at intervals 4 of not less than 3 weeks apart or at less frequent intervals 5 if requested on forms prescribed by the department division. 6 (b) Each medical report or bill obtained or received 7 by the employer, the carrier, or the injured employee, or the 8 attorney for the employer, carrier, or injured employee, with 9 respect to the remedial treatment or care of the injured 10 employee, including any report of an examination, diagnosis, 11 or disability evaluation, must be filed with the department 12 Division of Workers' Compensation pursuant to rules adopted by 13 the department in consultation with the agency division. The 14 health care provider shall also furnish to the injured 15 employee or to his or her attorney, on demand, a copy of his 16 or her office chart, records, and reports, and may charge the 17 injured employee an amount authorized by the department 18 division for the copies. Each such health care provider shall 19 provide to the agency or department division any additional 20 information about the remedial treatment, care, and attendance 21 that the agency or department division reasonably requests. 22 (c) It is the policy for the administration of the 23 workers' compensation system that there be reasonable access 24 to medical information by all parties to facilitate the 25 self-executing features of the law. Notwithstanding the 26 limitations in s. 456.057 and subject to the limitations in s. 27 381.004, upon the request of the employer, the carrier, or the 28 attorney for either of them, the medical records of an injured 29 employee must be furnished to those persons and the medical 30 condition of the injured employee must be discussed with those 31 persons, if the records and the discussions are restricted to 46 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 conditions relating to the workplace injury. Any such 2 discussions may be held before or after the filing of a claim 3 without the knowledge, consent, or presence of any other party 4 or his or her agent or representative. A health care provider 5 who willfully refuses to provide medical records or to discuss 6 the medical condition of the injured employee, after a 7 reasonable request is made for such information pursuant to 8 this subsection, shall be subject by the agency division to 9 one or more of the penalties set forth in paragraph (8)(b). 10 (5) INDEPENDENT MEDICAL EXAMINATIONS.-- 11 (a) In any dispute concerning overutilization, medical 12 benefits, compensability, or disability under this chapter, 13 the carrier or the employee may select an independent medical 14 examiner. The examiner may be a health care provider treating 15 or providing other care to the employee. An independent 16 medical examiner may not render an opinion outside his or her 17 area of expertise, as demonstrated by licensure and applicable 18 practice parameters. 19 (b) Each party is bound by his or her selection of an 20 independent medical examiner and is entitled to an alternate 21 examiner only if: 22 1. The examiner is not qualified to render an opinion 23 upon an aspect of the employee's illness or injury which is 24 material to the claim or petition for benefits; 25 2. The examiner ceases to practice in the specialty 26 relevant to the employee's condition; 27 3. The examiner is unavailable due to injury, death, 28 or relocation outside a reasonably accessible geographic area; 29 or 30 4. The parties agree to an alternate examiner. 31 47 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Any party may request, or a judge of compensation claims may 2 require, designation of an agency a division medical advisor 3 as an independent medical examiner. The opinion of the 4 advisors acting as examiners shall not be afforded the 5 presumption set forth in paragraph (9)(c). 6 (c) The carrier may, at its election, contact the 7 claimant directly to schedule a reasonable time for an 8 independent medical examination. The carrier must confirm the 9 scheduling agreement in writing within 5 days and notify 10 claimant's counsel, if any, at least 7 days before the date 11 upon which the independent medical examination is scheduled to 12 occur. An attorney representing a claimant is not authorized 13 to schedule independent medical evaluations under this 14 subsection. 15 (d) If the employee fails to appear for the 16 independent medical examination without good cause and fails 17 to advise the physician at least 24 hours before the scheduled 18 date for the examination that he or she cannot appear, the 19 employee is barred from recovering compensation for any period 20 during which he or she has refused to submit to such 21 examination. Further, the employee shall reimburse the carrier 22 50 percent of the physician's cancellation or no-show fee 23 unless the carrier that schedules the examination fails to 24 timely provide to the employee a written confirmation of the 25 date of the examination pursuant to paragraph (c) which 26 includes an explanation of why he or she failed to appear. The 27 employee may appeal to a judge of compensation claims for 28 reimbursement when the carrier withholds payment in excess of 29 the authority granted by this section. 30 (e) No medical opinion other than the opinion of a 31 medical advisor appointed by the judge of compensation claims 48 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 or agency division, an independent medical examiner, or an 2 authorized treating provider is admissible in proceedings 3 before the judges of compensation claims. 4 (f) Attorney's fees incurred by an injured employee in 5 connection with delay of or opposition to an independent 6 medical examination, including, but not limited to, motions 7 for protective orders, are not recoverable under this chapter. 8 (6) UTILIZATION REVIEW.--Carriers shall review all 9 bills, invoices, and other claims for payment submitted by 10 health care providers in order to identify overutilization and 11 billing errors, and may hire peer review consultants or 12 conduct independent medical evaluations. Such consultants, 13 including peer review organizations, are immune from liability 14 in the execution of their functions under this subsection to 15 the extent provided in s. 766.101. If a carrier finds that 16 overutilization of medical services or a billing error has 17 occurred, it must disallow or adjust payment for such services 18 or error without order of a judge of compensation claims or 19 the agency division, if the carrier, in making its 20 determination, has complied with this section and rules 21 adopted by the agency division. 22 (7) UTILIZATION AND REIMBURSEMENT DISPUTES.-- 23 (a) Any health care provider, carrier, or employer who 24 elects to contest the disallowance or adjustment of payment by 25 a carrier under subsection (6) must, within 30 days after 26 receipt of notice of disallowance or adjustment of payment, 27 petition the agency division to resolve the dispute. The 28 petitioner must serve a copy of the petition on the carrier 29 and on all affected parties by certified mail. The petition 30 must be accompanied by all documents and records that support 31 the allegations contained in the petition. Failure of a 49 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 petitioner to submit such documentation to the agency division 2 results in dismissal of the petition. 3 (b) The carrier must submit to the agency division 4 within 10 days after receipt of the petition all documentation 5 substantiating the carrier's disallowance or adjustment. 6 Failure of the carrier to submit the requested documentation 7 to the agency division within 10 days constitutes a waiver of 8 all objections to the petition. 9 (c) Within 60 days after receipt of all documentation, 10 the agency division must provide to the petitioner, the 11 carrier, and the affected parties a written determination of 12 whether the carrier properly adjusted or disallowed payment. 13 The agency division must be guided by standards and policies 14 set forth in this chapter, including all applicable 15 reimbursement schedules, in rendering its determination. 16 (d) If the agency division finds an improper 17 disallowance or improper adjustment of payment by an insurer, 18 the insurer shall reimburse the health care provider, 19 facility, insurer, or employer within 30 days, subject to the 20 penalties provided in this subsection. 21 (e) The agency division shall adopt rules to carry out 22 this subsection. The rules may include provisions for 23 consolidating petitions filed by a petitioner and expanding 24 the timetable for rendering a determination upon a 25 consolidated petition. 26 (f) Any carrier that engages in a pattern or practice 27 of arbitrarily or unreasonably disallowing or reducing 28 payments to health care providers may be subject to one or 29 more of the following penalties imposed by the agency 30 division: 31 1. Repayment of the appropriate amount to the health 50 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 care provider. 2 2. An administrative fine assessed by the agency 3 division in an amount not to exceed $5,000 per instance of 4 improperly disallowing or reducing payments. 5 3. Award of the health care provider's costs, 6 including a reasonable attorney's fee, for prosecuting the 7 petition. 8 (8) PATTERN OR PRACTICE OF OVERUTILIZATION.-- 9 (a) Carriers must report to the agency division all 10 instances of overutilization including, but not limited to, 11 all instances in which the carrier disallows or adjusts 12 payment. The agency division shall determine whether a pattern 13 or practice of overutilization exists. 14 (b) If the agency division determines that a health 15 care provider has engaged in a pattern or practice of 16 overutilization or a violation of this chapter or rules 17 adopted by the agency division, it may impose one or more of 18 the following penalties: 19 1. An order of the agency division barring the 20 provider from payment under this chapter; 21 2. Deauthorization of care under review; 22 3. Denial of payment for care rendered in the future; 23 4. Decertification of a health care provider certified 24 as an expert medical advisor under subsection (9) or of a 25 rehabilitation provider certified under s. 440.49; 26 5. An administrative fine assessed by the agency 27 division in an amount not to exceed $5,000 per instance of 28 overutilization or violation; and 29 6. Notification of and review by the appropriate 30 licensing authority pursuant to s. 440.106(3). 31 (9) EXPERT MEDICAL ADVISORS.-- 51 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (a) The agency division shall certify expert medical 2 advisors in each specialty to assist the agency division and 3 the judges of compensation claims within the advisor's area of 4 expertise as provided in this section. The agency division 5 shall, in a manner prescribed by rule, in certifying, 6 recertifying, or decertifying an expert medical advisor, 7 consider the qualifications, training, impartiality, and 8 commitment of the health care provider to the provision of 9 quality medical care at a reasonable cost. As a prerequisite 10 for certification or recertification, the agency division 11 shall require, at a minimum, that an expert medical advisor 12 have specialized workers' compensation training or experience 13 under the workers' compensation system of this state and board 14 certification or board eligibility. 15 (b) The agency division shall contract with or employ 16 expert medical advisors to provide peer review or medical 17 consultation to the agency division or to a judge of 18 compensation claims in connection with resolving disputes 19 relating to reimbursement, differing opinions of health care 20 providers, and health care and physician services rendered 21 under this chapter. Expert medical advisors contracting with 22 the agency division shall, as a term of such contract, agree 23 to provide consultation or services in accordance with the 24 timetables set forth in this chapter and to abide by rules 25 adopted by the agency division, including, but not limited to, 26 rules pertaining to procedures for review of the services 27 rendered by health care providers and preparation of reports 28 and recommendations for submission to the agency division. 29 (c) If there is disagreement in the opinions of the 30 health care providers, if two health care providers disagree 31 on medical evidence supporting the employee's complaints or 52 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the need for additional medical treatment, or if two health 2 care providers disagree that the employee is able to return to 3 work, the agency division may, and the judge of compensation 4 claims shall, upon his or her own motion or within 15 days 5 after receipt of a written request by either the injured 6 employee, the employer, or the carrier, order the injured 7 employee to be evaluated by an expert medical advisor. The 8 opinion of the expert medical advisor is presumed to be 9 correct unless there is clear and convincing evidence to the 10 contrary as determined by the judge of compensation claims. 11 The expert medical advisor appointed to conduct the evaluation 12 shall have free and complete access to the medical records of 13 the employee. An employee who fails to report to and cooperate 14 with such evaluation forfeits entitlement to compensation 15 during the period of failure to report or cooperate. 16 (d) The expert medical advisor must complete his or 17 her evaluation and issue his or her report to the agency 18 division or to the judge of compensation claims within 45 days 19 after receipt of all medical records. The expert medical 20 advisor must furnish a copy of the report to the carrier and 21 to the employee. 22 (e) An expert medical advisor is not liable under any 23 theory of recovery for evaluations performed under this 24 section without a showing of fraud or malice. The protections 25 of s. 766.101 apply to any officer, employee, or agent of the 26 agency division and to any officer, employee, or agent of any 27 entity with which the agency division has contracted under 28 this subsection. 29 (f) If the agency division or a judge of compensation 30 claims determines that the services of a certified expert 31 medical advisor are required to resolve a dispute under this 53 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 section, the carrier must compensate the advisor for his or 2 her time in accordance with a schedule adopted by the agency 3 division. The agency division may assess a penalty not to 4 exceed $500 against any carrier that fails to timely 5 compensate an advisor in accordance with this section. 6 (10) WITNESS FEES.--Any health care provider who gives 7 a deposition shall be allowed a witness fee. The amount 8 charged by the witness may not exceed $200 per hour. An expert 9 witness who has never provided direct professional services to 10 a party but has merely reviewed medical records and provided 11 an expert opinion or has provided only direct professional 12 services that were unrelated to the workers' compensation case 13 may not be allowed a witness fee in excess of $200 per day. 14 (11) AUDITS BY AGENCY FOR HEALTH CARE ADMINISTRATION 15 DIVISION; JURISDICTION.-- 16 (a) The Agency for Health Care Administration Division 17 of Workers' Compensation of the Department of Labor and 18 Employment Security may investigate health care providers to 19 determine whether providers are complying with this chapter 20 and with rules adopted by the agency division, whether the 21 providers are engaging in overutilization, and whether 22 providers are engaging in improper billing practices. If the 23 agency division finds that a health care provider has 24 improperly billed, overutilized, or failed to comply with 25 agency division rules or the requirements of this chapter it 26 must notify the provider of its findings and may determine 27 that the health care provider may not receive payment from the 28 carrier or may impose penalties as set forth in subsection (8) 29 or other sections of this chapter. If the health care provider 30 has received payment from a carrier for services that were 31 improperly billed or for overutilization, it must return those 54 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 payments to the carrier. The agency division may assess a 2 penalty not to exceed $500 for each overpayment that is not 3 refunded within 30 days after notification of overpayment by 4 the agency division or carrier. 5 (b) The department division shall monitor and audit 6 carriers, as provided in s. 624.3161, to determine if medical 7 bills are paid in accordance with this section and department 8 division rules. Any employer, if self-insured, or carrier 9 found by the division not to be within 90 percent compliance 10 as to the payment of medical bills after July 1, 1994, must be 11 assessed a fine not to exceed 1 percent of the prior year's 12 assessment levied against such entity under s. 440.51 for 13 every quarter in which the entity fails to attain 90-percent 14 compliance. The department division shall fine or otherwise 15 discipline an employer or carrier, pursuant to this chapter, 16 the insurance code, or rules adopted by the department 17 division, for each late payment of compensation that is below 18 the minimum 90-percent performance standard. Any carrier that 19 is found to be not in compliance in subsequent consecutive 20 quarters must implement a medical-bill review program approved 21 by the division, and the carrier is subject to disciplinary 22 action by the Department of Insurance. 23 (c) The agency division has exclusive jurisdiction to 24 decide any matters concerning reimbursement, to resolve any 25 overutilization dispute under subsection (7), and to decide 26 any question concerning overutilization under subsection (8), 27 which question or dispute arises after January 1, 1994. 28 (d) The following agency division actions do not 29 constitute agency action subject to review under ss. 120.569 30 and 120.57 and do not constitute actions subject to s. 120.56: 31 referral by the entity responsible for utilization review; a 55 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 decision by the agency division to refer a matter to a peer 2 review committee; establishment by a health care provider or 3 entity of procedures by which a peer review committee reviews 4 the rendering of health care services; and the review 5 proceedings, report, and recommendation of the peer review 6 committee. 7 (12) CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM 8 REIMBURSEMENT ALLOWANCES.-- 9 (a) A three-member panel is created, consisting of the 10 Insurance Commissioner, or the Insurance Commissioner's 11 designee, and two members to be appointed by the Governor, 12 subject to confirmation by the Senate, one member who, on 13 account of present or previous vocation, employment, or 14 affiliation, shall be classified as a representative of 15 employers, the other member who, on account of previous 16 vocation, employment, or affiliation, shall be classified as a 17 representative of employees. The panel shall determine 18 statewide schedules of maximum reimbursement allowances for 19 medically necessary treatment, care, and attendance provided 20 by physicians, hospitals, ambulatory surgical centers, 21 work-hardening programs, pain programs, and durable medical 22 equipment. The maximum reimbursement allowances for inpatient 23 hospital care shall be based on a schedule of per diem rates, 24 to be approved by the three-member panel no later than March 25 1, 1994, to be used in conjunction with a precertification 26 manual as determined by the agency division. All compensable 27 charges for hospital outpatient care shall be reimbursed at 75 28 percent of usual and customary charges. Until the three-member 29 panel approves a schedule of per diem rates for inpatient 30 hospital care and it becomes effective, all compensable 31 charges for hospital inpatient care must be reimbursed at 75 56 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 percent of their usual and customary charges. Annually, the 2 three-member panel shall adopt schedules of maximum 3 reimbursement allowances for physicians, hospital inpatient 4 care, hospital outpatient care, ambulatory surgical centers, 5 work-hardening programs, and pain programs. However, the 6 maximum percentage of increase in the individual reimbursement 7 allowance may not exceed the percentage of increase in the 8 Consumer Price Index for the previous year. An individual 9 physician, hospital, ambulatory surgical center, pain program, 10 or work-hardening program shall be reimbursed either the usual 11 and customary charge for treatment, care, and attendance, the 12 agreed-upon contract price, the per diem rate for hospital 13 inpatient stay, or the maximum reimbursement allowance in the 14 appropriate schedule, whichever is less. 15 (b) As to reimbursement for a prescription medication, 16 the reimbursement amount for a prescription shall be the 17 average wholesale price times 1.2 plus $4.18 for the 18 dispensing fee, except where the carrier has contracted for a 19 lower amount. Fees for pharmaceuticals and pharmaceutical 20 services shall be reimbursable at the applicable fee schedule 21 amount. Where the employer or carrier has contracted for such 22 services and the employee elects to obtain them through a 23 provider not a party to the contract, the carrier shall 24 reimburse at the schedule, negotiated, or contract price, 25 whichever is lower. 26 (c) Reimbursement for all fees and other charges for 27 such treatment, care, and attendance, including treatment, 28 care, and attendance provided by any hospital or other health 29 care provider, ambulatory surgical center, work-hardening 30 program, or pain program, must not exceed the amounts provided 31 by the uniform schedule of maximum reimbursement allowances as 57 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 determined by the panel or as otherwise provided in this 2 section. This subsection also applies to independent medical 3 examinations performed by health care providers under this 4 chapter. Until the three-member panel approves a uniform 5 schedule of maximum reimbursement allowances and it becomes 6 effective, all compensable charges for treatment, care, and 7 attendance provided by physicians, ambulatory surgical 8 centers, work-hardening programs, or pain programs shall be 9 reimbursed at the lowest maximum reimbursement allowance 10 across all 1992 schedules of maximum reimbursement allowances 11 for the services provided regardless of the place of service. 12 In determining the uniform schedule, the panel shall first 13 approve the data which it finds representative of prevailing 14 charges in the state for similar treatment, care, and 15 attendance of injured persons. Each health care provider, 16 health care facility, ambulatory surgical center, 17 work-hardening program, or pain program receiving workers' 18 compensation payments shall maintain records verifying their 19 usual charges. In establishing the uniform schedule of maximum 20 reimbursement allowances, the panel must consider: 21 1. The levels of reimbursement for similar treatment, 22 care, and attendance made by other health care programs or 23 third-party providers; 24 2. The impact upon cost to employers for providing a 25 level of reimbursement for treatment, care, and attendance 26 which will ensure the availability of treatment, care, and 27 attendance required by injured workers; 28 3. The financial impact of the reimbursement 29 allowances upon health care providers and health care 30 facilities, including trauma centers as defined in s. 31 395.4001, and its effect upon their ability to make available 58 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 to injured workers such medically necessary remedial 2 treatment, care, and attendance. The uniform schedule of 3 maximum reimbursement allowances must be reasonable, must 4 promote health care cost containment and efficiency with 5 respect to the workers' compensation health care delivery 6 system, and must be sufficient to ensure availability of such 7 medically necessary remedial treatment, care, and attendance 8 to injured workers; and 9 4. The most recent average maximum allowable rate of 10 increase for hospitals determined by the Health Care Board 11 under chapter 408. 12 (13) REMOVAL OF PHYSICIANS FROM LISTS OF THOSE 13 AUTHORIZED TO RENDER MEDICAL CARE.--The agency division shall 14 remove from the list of physicians or facilities authorized to 15 provide remedial treatment, care, and attendance under this 16 chapter the name of any physician or facility found after 17 reasonable investigation to have: 18 (a) Engaged in professional or other misconduct or 19 incompetency in connection with medical services rendered 20 under this chapter; 21 (b) Exceeded the limits of his or her or its 22 professional competence in rendering medical care under this 23 chapter, or to have made materially false statements regarding 24 his or her or its qualifications in his or her application; 25 (c) Failed to transmit copies of medical reports to 26 the employer or carrier, or failed to submit full and truthful 27 medical reports of all his or her or its findings to the 28 employer or carrier as required under this chapter; 29 (d) Solicited, or employed another to solicit for 30 himself or herself or itself or for another, professional 31 treatment, examination, or care of an injured employee in 59 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 connection with any claim under this chapter; 2 (e) Refused to appear before, or to answer upon 3 request of, the agency division or any duly authorized officer 4 of the state, any legal question, or to produce any relevant 5 book or paper concerning his or her conduct under any 6 authorization granted to him or her under this chapter; 7 (f) Self-referred in violation of this chapter or 8 other laws of this state; or 9 (g) Engaged in a pattern of practice of 10 overutilization or a violation of this chapter or rules 11 adopted by the agency division. 12 (14) PAYMENT OF MEDICAL FEES.-- 13 (a) Except for emergency care treatment, fees for 14 medical services are payable only to a health care provider 15 certified and authorized to render remedial treatment, care, 16 or attendance under this chapter. A health care provider may 17 not collect or receive a fee from an injured employee within 18 this state, except as otherwise provided by this chapter. Such 19 providers have recourse against the employer or carrier for 20 payment for services rendered in accordance with this chapter. 21 (b) Fees charged for remedial treatment, care, and 22 attendance may not exceed the applicable fee schedules adopted 23 under this chapter. 24 (c) Notwithstanding any other provision of this 25 chapter, following overall maximum medical improvement from an 26 injury compensable under this chapter, the employee is 27 obligated to pay a copayment of $10 per visit for medical 28 services. The copayment shall not apply to emergency care 29 provided to the employee. 30 (15) PRACTICE PARAMETERS.-- 31 (a) The Agency for Health Care Administration, in 60 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 conjunction with the department division and appropriate 2 health professional associations and health-related 3 organizations shall develop and may adopt by rule 4 scientifically sound practice parameters for medical 5 procedures relevant to workers' compensation claimants. 6 Practice parameters developed under this section must focus on 7 identifying effective remedial treatments and promoting the 8 appropriate utilization of health care resources. Priority 9 must be given to those procedures that involve the greatest 10 utilization of resources either because they are the most 11 costly or because they are the most frequently performed. 12 Practice parameters for treatment of the 10 top procedures 13 associated with workers' compensation injuries including the 14 remedial treatment of lower-back injuries must be developed by 15 December 31, 1994. 16 (b) The guidelines may be initially based on 17 guidelines prepared by nationally recognized health care 18 institutions and professional organizations but should be 19 tailored to meet the workers' compensation goal of returning 20 employees to full employment as quickly as medically possible, 21 taking into consideration outcomes data collected from managed 22 care providers and any other inpatient and outpatient 23 facilities serving workers' compensation claimants. 24 (c) Procedures must be instituted which provide for 25 the periodic review and revision of practice parameters based 26 on the latest outcomes data, research findings, technological 27 advancements, and clinical experiences, at least once every 3 28 years. 29 (d) Practice parameters developed under this section 30 must be used by carriers and the agency division in evaluating 31 the appropriateness and overutilization of medical services 61 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 provided to injured employees. 2 Section 19. Subsection (23) of section 440.134, 3 Florida Statutes, is amended to read: 4 440.134 Workers' compensation managed care 5 arrangement.-- 6 (23) The agency shall immediately notify the 7 Department of Insurance and the Department of Labor and 8 Employment Security whenever it issues an administrative 9 complaint or an order or otherwise initiates legal proceedings 10 resulting in, or which may result in, suspension or revocation 11 of an insurer's authorization. 12 Section 20. Subsection (3) of section 440.14, Florida 13 Statutes, is amended to read: 14 440.14 Determination of pay.-- 15 (3) The department division shall establish by rule a 16 form which shall contain a simplified checklist of those items 17 which may be included as "wage" for determining the average 18 weekly wage. 19 Section 21. Subsections (11), (13), and (14) of 20 section 440.02, Florida Statutes, are amended, and subsection 21 (40) is added to that section, to read: 22 440.02 Definitions.--When used in this chapter, unless 23 the context clearly requires otherwise, the following terms 24 shall have the following meanings: 25 (11) "Department" means the Department of Insurance 26 Labor and Employment Security. 27 (13) "Division" means the Division of Workers' 28 Compensation of the Department of Insurance Labor and 29 Employment Security. 30 (14)(a) "Employee" means any person engaged in any 31 employment under any appointment or contract of hire or 62 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 apprenticeship, express or implied, oral or written, whether 2 lawfully or unlawfully employed, and includes, but is not 3 limited to, aliens and minors. 4 (b) "Employee" includes any person who is an officer 5 of a corporation and who performs services for remuneration 6 for such corporation within this state, whether or not such 7 services are continuous. 8 1. Any officer of a corporation may elect to be exempt 9 from this chapter by filing written notice of the election 10 with the department division as provided in s. 440.05. 11 2. As to officers of a corporation who are actively 12 engaged in the construction industry, no more than three 13 officers may elect to be exempt from this chapter by filing 14 written notice of the election with the department division as 15 provided in s. 440.05. 16 3. An officer of a corporation who elects to be exempt 17 from this chapter by filing a written notice of the election 18 with the department division as provided in s. 440.05 is not 19 an employee. 20 21 Services are presumed to have been rendered to the corporation 22 if the officer is compensated by other than dividends upon 23 shares of stock of the corporation which the officer owns. 24 (c) "Employee" includes a sole proprietor or a partner 25 who devotes full time to the proprietorship or partnership 26 and, except as provided in this paragraph, elects to be 27 included in the definition of employee by filing notice 28 thereof as provided in s. 440.05. Partners or sole proprietors 29 actively engaged in the construction industry are considered 30 employees unless they elect to be excluded from the definition 31 of employee by filing written notice of the election with the 63 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 department division as provided in s. 440.05. However, no more 2 than three partners in a partnership that is actively engaged 3 in the construction industry may elect to be excluded. A sole 4 proprietor or partner who is actively engaged in the 5 construction industry and who elects to be exempt from this 6 chapter by filing a written notice of the election with the 7 department division as provided in s. 440.05 is not an 8 employee. For purposes of this chapter, an independent 9 contractor is an employee unless he or she meets all of the 10 conditions set forth in subparagraph (d)1. 11 (d) "Employee" does not include: 12 1. An independent contractor, if: 13 a. The independent contractor maintains a separate 14 business with his or her own work facility, truck, equipment, 15 materials, or similar accommodations; 16 b. The independent contractor holds or has applied for 17 a federal employer identification number, unless the 18 independent contractor is a sole proprietor who is not 19 required to obtain a federal employer identification number 20 under state or federal requirements; 21 c. The independent contractor performs or agrees to 22 perform specific services or work for specific amounts of 23 money and controls the means of performing the services or 24 work; 25 d. The independent contractor incurs the principal 26 expenses related to the service or work that he or she 27 performs or agrees to perform; 28 e. The independent contractor is responsible for the 29 satisfactory completion of work or services that he or she 30 performs or agrees to perform and is or could be held liable 31 for a failure to complete the work or services; 64 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 f. The independent contractor receives compensation 2 for work or services performed for a commission or on a 3 per-job or competitive-bid basis and not on any other basis; 4 g. The independent contractor may realize a profit or 5 suffer a loss in connection with performing work or services; 6 h. The independent contractor has continuing or 7 recurring business liabilities or obligations; and 8 i. The success or failure of the independent 9 contractor's business depends on the relationship of business 10 receipts to expenditures. 11 12 However, the determination as to whether an individual 13 included in the Standard Industrial Classification Manual of 14 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762, 15 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436, 16 2448, or 2449, or a newspaper delivery person, is an 17 independent contractor is governed not by the criteria in this 18 paragraph but by common-law principles, giving due 19 consideration to the business activity of the individual. 20 2. A real estate salesperson or agent, if that person 21 agrees, in writing, to perform for remuneration solely by way 22 of commission. 23 3. Bands, orchestras, and musical and theatrical 24 performers, including disk jockeys, performing in licensed 25 premises as defined in chapter 562, if a written contract 26 evidencing an independent contractor relationship is entered 27 into before the commencement of such entertainment. 28 4. An owner-operator of a motor vehicle who transports 29 property under a written contract with a motor carrier which 30 evidences a relationship by which the owner-operator assumes 31 the responsibility of an employer for the performance of the 65 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 contract, if the owner-operator is required to furnish the 2 necessary motor vehicle equipment and all costs incidental to 3 the performance of the contract, including, but not limited 4 to, fuel, taxes, licenses, repairs, and hired help; and the 5 owner-operator is paid a commission for transportation service 6 and is not paid by the hour or on some other time-measured 7 basis. 8 5. A person whose employment is both casual and not in 9 the course of the trade, business, profession, or occupation 10 of the employer. 11 6. A volunteer, except a volunteer worker for the 12 state or a county, municipality, or other governmental entity. 13 A person who does not receive monetary remuneration for 14 services is presumed to be a volunteer unless there is 15 substantial evidence that a valuable consideration was 16 intended by both employer and employee. For purposes of this 17 chapter, the term "volunteer" includes, but is not limited to: 18 a. Persons who serve in private nonprofit agencies and 19 who receive no compensation other than expenses in an amount 20 less than or equivalent to the standard mileage and per diem 21 expenses provided to salaried employees in the same agency or, 22 if such agency does not have salaried employees who receive 23 mileage and per diem, then such volunteers who receive no 24 compensation other than expenses in an amount less than or 25 equivalent to the customary mileage and per diem paid to 26 salaried workers in the community as determined by the 27 department division; and 28 b. Volunteers participating in federal programs 29 established under Pub. L. No. 93-113. 30 7. Any officer of a corporation who elects to be 31 exempt from this chapter. 66 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 8. A sole proprietor or officer of a corporation who 2 actively engages in the construction industry, and a partner 3 in a partnership that is actively engaged in the construction 4 industry, who elects to be exempt from the provisions of this 5 chapter. Such sole proprietor, officer, or partner is not an 6 employee for any reason until the notice of revocation of 7 election filed pursuant to s. 440.05 is effective. 8 9. An exercise rider who does not work for a single 9 horse farm or breeder, and who is compensated for riding on a 10 case-by-case basis, provided a written contract is entered 11 into prior to the commencement of such activity which 12 evidences that an employee/employer relationship does not 13 exist. 14 10. A taxicab, limousine, or other passenger 15 vehicle-for-hire driver who operates said vehicles pursuant to 16 a written agreement with a company which provides any 17 dispatch, marketing, insurance, communications, or other 18 services under which the driver and any fees or charges paid 19 by the driver to the company for such services are not 20 conditioned upon, or expressed as a proportion of, fare 21 revenues. 22 (40) "Agency" means the Agency for Health Care 23 Administration. 24 Section 22. Section 440.15, Florida Statutes, is 25 amended to read: 26 440.15 Compensation for disability.--Compensation for 27 disability shall be paid to the employee, subject to the 28 limits provided in s. 440.12(2), as follows: 29 (1) PERMANENT TOTAL DISABILITY.-- 30 (a) In case of total disability adjudged to be 31 permanent, 66 2/3 percent of the average weekly wages shall 67 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 be paid to the employee during the continuance of such total 2 disability. 3 (b) Only a catastrophic injury as defined in s. 440.02 4 shall, in the absence of conclusive proof of a substantial 5 earning capacity, constitute permanent total disability. Only 6 claimants with catastrophic injuries are eligible for 7 permanent total benefits. In no other case may permanent total 8 disability be awarded. 9 (c) In cases of permanent total disability resulting 10 from injuries that occurred prior to July 1, 1955, such 11 payments shall not be made in excess of 700 weeks. 12 (d) If an employee who is being paid compensation for 13 permanent total disability becomes rehabilitated to the extent 14 that she or he establishes an earning capacity, the employee 15 shall be paid, instead of the compensation provided in 16 paragraph (a), benefits pursuant to subsection (3). The 17 department division shall adopt rules to enable a permanently 18 and totally disabled employee who may have reestablished an 19 earning capacity to undertake a trial period of reemployment 20 without prejudicing her or his return to permanent total 21 status in the case that such employee is unable to sustain an 22 earning capacity. 23 (e)1. The employer's or carrier's right to conduct 24 vocational evaluations or testing pursuant to s. 440.491 25 continues even after the employee has been accepted or 26 adjudicated as entitled to compensation under this chapter. 27 This right includes, but is not limited to, instances in which 28 such evaluations or tests are recommended by a treating 29 physician or independent medical-examination physician, 30 instances warranted by a change in the employee's medical 31 condition, or instances in which the employee appears to be 68 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 making appropriate progress in recuperation. This right may 2 not be exercised more than once every calendar year. 3 2. The carrier must confirm the scheduling of the 4 vocational evaluation or testing in writing, and must notify 5 employee's counsel, if any, at least 7 days before the date on 6 which vocational evaluation or testing is scheduled to occur. 7 3. Pursuant to an order of the judge of compensation 8 claims, the employer or carrier may withhold payment of 9 benefits for permanent total disability or supplements for any 10 period during which the employee willfully fails or refuses to 11 appear without good cause for the scheduled vocational 12 evaluation or testing. 13 (f)1. If permanent total disability results from 14 injuries that occurred subsequent to June 30, 1955, and for 15 which the liability of the employer for compensation has not 16 been discharged under s. 440.20(11), the injured employee 17 shall receive additional weekly compensation benefits equal to 18 5 percent of her or his weekly compensation rate, as 19 established pursuant to the law in effect on the date of her 20 or his injury, multiplied by the number of calendar years 21 since the date of injury. The weekly compensation payable and 22 the additional benefits payable under this paragraph, when 23 combined, may not exceed the maximum weekly compensation rate 24 in effect at the time of payment as determined pursuant to s. 25 440.12(2). Entitlement to these supplemental payments shall 26 cease at age 62 if the employee is eligible for social 27 security benefits under 42 U.S.C. ss. 402 and 423, whether or 28 not the employee has applied for such benefits. These 29 supplemental benefits shall be paid by the division out of the 30 Workers' Compensation Administration Trust Fund when the 31 injury occurred subsequent to June 30, 1955, and before July 69 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 1, 1984. These supplemental benefits shall be paid by the 2 employer when the injury occurred on or after July 1, 1984. 3 Supplemental benefits are not payable for any period prior to 4 October 1, 1974. 5 2.a. The department division shall provide by rule for 6 the periodic reporting to the department division of all 7 earnings of any nature and social security income by the 8 injured employee entitled to or claiming additional 9 compensation under subparagraph 1. Neither the department 10 division nor the employer or carrier shall make any payment of 11 those additional benefits provided by subparagraph 1. for any 12 period during which the employee willfully fails or refuses to 13 report upon request by the department division in the manner 14 prescribed by such rules. 15 b. The department division shall provide by rule for 16 the periodic reporting to the employer or carrier of all 17 earnings of any nature and social security income by the 18 injured employee entitled to or claiming benefits for 19 permanent total disability. The employer or carrier is not 20 required to make any payment of benefits for permanent total 21 disability for any period during which the employee willfully 22 fails or refuses to report upon request by the employer or 23 carrier in the manner prescribed by such rules or if any 24 employee who is receiving permanent total disability benefits 25 refuses to apply for or cooperate with the employer or carrier 26 in applying for social security benefits. 27 3. When an injured employee receives a full or partial 28 lump-sum advance of the employee's permanent total disability 29 compensation benefits, the employee's benefits under this 30 paragraph shall be computed on the employee's weekly 31 compensation rate as reduced by the lump-sum advance. 70 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (2) TEMPORARY TOTAL DISABILITY.-- 2 (a) In case of disability total in character but 3 temporary in quality, 66 2/3 percent of the average weekly 4 wages shall be paid to the employee during the continuance 5 thereof, not to exceed 104 weeks except as provided in this 6 subsection, s. 440.12(1), and s. 440.14(3). Once the employee 7 reaches the maximum number of weeks allowed, or the employee 8 reaches the date of maximum medical improvement, whichever 9 occurs earlier, temporary disability benefits shall cease and 10 the injured worker's permanent impairment shall be determined. 11 (b) Notwithstanding the provisions of paragraph (a), 12 an employee who has sustained the loss of an arm, leg, hand, 13 or foot, has been rendered a paraplegic, paraparetic, 14 quadriplegic, or quadriparetic, or has lost the sight of both 15 eyes shall be paid temporary total disability of 80 percent of 16 her or his average weekly wage. The increased temporary total 17 disability compensation provided for in this paragraph must 18 not extend beyond 6 months from the date of the accident. The 19 compensation provided by this paragraph is not subject to the 20 limits provided in s. 440.12(2), but instead is subject to a 21 maximum weekly compensation rate of $700. If, at the 22 conclusion of this period of increased temporary total 23 disability compensation, the employee is still temporarily 24 totally disabled, the employee shall continue to receive 25 temporary total disability compensation as set forth in 26 paragraphs (a) and (c). The period of time the employee has 27 received this increased compensation will be counted as part 28 of, and not in addition to, the maximum periods of time for 29 which the employee is entitled to compensation under paragraph 30 (a) but not paragraph (c). 31 (c) Temporary total disability benefits paid pursuant 71 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 to this subsection shall include such period as may be 2 reasonably necessary for training in the use of artificial 3 members and appliances, and shall include such period as the 4 employee may be receiving training and education under a 5 program pursuant to s. 440.49(1). Notwithstanding s. 6 440.02(9), the date of maximum medical improvement for 7 purposes of paragraph (3)(b) shall be no earlier than the last 8 day for which such temporary disability benefits are paid. 9 (d) The department division shall, by rule, provide 10 for the periodic reporting to the department division, 11 employer, or carrier of all earned income, including income 12 from social security, by the injured employee who is entitled 13 to or claiming benefits for temporary total disability. The 14 employer or carrier is not required to make any payment of 15 benefits for temporary total disability for any period during 16 which the employee willfully fails or refuses to report upon 17 request by the employer or carrier in the manner prescribed by 18 the rules. The rule must require the claimant to personally 19 sign the claim form and attest that she or he has reviewed, 20 understands, and acknowledges the foregoing. 21 (3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.-- 22 (a) Impairment benefits.-- 23 1. Once the employee has reached the date of maximum 24 medical improvement, impairment benefits are due and payable 25 within 20 days after the carrier has knowledge of the 26 impairment. 27 2. The three-member panel, in cooperation with the 28 department division, shall establish and use a uniform 29 permanent impairment rating schedule. This schedule must be 30 based on medically or scientifically demonstrable findings as 31 well as the systems and criteria set forth in the American 72 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Medical Association's Guides to the Evaluation of Permanent 2 Impairment; the Snellen Charts, published by American Medical 3 Association Committee for Eye Injuries; and the Minnesota 4 Department of Labor and Industry Disability Schedules. The 5 schedule should be based upon objective findings. The schedule 6 shall be more comprehensive than the AMA Guides to the 7 Evaluation of Permanent Impairment and shall expand the areas 8 already addressed and address additional areas not currently 9 contained in the guides. On August 1, 1979, and pending the 10 adoption, by rule, of a permanent schedule, Guides to the 11 Evaluation of Permanent Impairment, copyright 1977, 1971, 12 1988, by the American Medical Association, shall be the 13 temporary schedule and shall be used for the purposes hereof. 14 For injuries after July 1, 1990, pending the adoption by 15 department division rule of a uniform disability rating 16 schedule, the Minnesota Department of Labor and Industry 17 Disability Schedule shall be used unless that schedule does 18 not address an injury. In such case, the Guides to the 19 Evaluation of Permanent Impairment by the American Medical 20 Association shall be used. Determination of permanent 21 impairment under this schedule must be made by a physician 22 licensed under chapter 458, a doctor of osteopathic medicine 23 licensed under chapters 458 and 459, a chiropractic physician 24 licensed under chapter 460, a podiatric physician licensed 25 under chapter 461, an optometrist licensed under chapter 463, 26 or a dentist licensed under chapter 466, as appropriate 27 considering the nature of the injury. No other persons are 28 authorized to render opinions regarding the existence of or 29 the extent of permanent impairment. 30 3. All impairment income benefits shall be based on an 31 impairment rating using the impairment schedule referred to in 73 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 subparagraph 2. Impairment income benefits are paid weekly at 2 the rate of 50 percent of the employee's average weekly 3 temporary total disability benefit not to exceed the maximum 4 weekly benefit under s. 440.12. An employee's entitlement to 5 impairment income benefits begins the day after the employee 6 reaches maximum medical improvement or the expiration of 7 temporary benefits, whichever occurs earlier, and continues 8 until the earlier of: 9 a. The expiration of a period computed at the rate of 10 3 weeks for each percentage point of impairment; or 11 b. The death of the employee. 12 4. After the employee has been certified by a doctor 13 as having reached maximum medical improvement or 6 weeks 14 before the expiration of temporary benefits, whichever occurs 15 earlier, the certifying doctor shall evaluate the condition of 16 the employee and assign an impairment rating, using the 17 impairment schedule referred to in subparagraph 2. 18 Compensation is not payable for the mental, psychological, or 19 emotional injury arising out of depression from being out of 20 work. If the certification and evaluation are performed by a 21 doctor other than the employee's treating doctor, the 22 certification and evaluation must be submitted to the treating 23 doctor, and the treating doctor must indicate agreement or 24 disagreement with the certification and evaluation. The 25 certifying doctor shall issue a written report to the 26 department division, the employee, and the carrier certifying 27 that maximum medical improvement has been reached, stating the 28 impairment rating, and providing any other information 29 required by the department by rule division. If the employee 30 has not been certified as having reached maximum medical 31 improvement before the expiration of 102 weeks after the date 74 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 temporary total disability benefits begin to accrue, the 2 carrier shall notify the treating doctor of the requirements 3 of this section. 4 5. The carrier shall pay the employee impairment 5 income benefits for a period based on the impairment rating. 6 6. The department division may by rule specify forms 7 and procedures governing the method of payment of wage loss 8 and impairment benefits for dates of accidents before January 9 1, 1994, and for dates of accidents on or after January 1, 10 1994. 11 (b) Supplemental benefits.-- 12 1. All supplemental benefits must be paid in 13 accordance with this subsection. An employee is entitled to 14 supplemental benefits as provided in this paragraph as of the 15 expiration of the impairment period, if: 16 a. The employee has an impairment rating from the 17 compensable injury of 20 percent or more as determined 18 pursuant to this chapter; 19 b. The employee has not returned to work or has 20 returned to work earning less than 80 percent of the 21 employee's average weekly wage as a direct result of the 22 employee's impairment; and 23 c. The employee has in good faith attempted to obtain 24 employment commensurate with the employee's ability to work. 25 2. If an employee is not entitled to supplemental 26 benefits at the time of payment of the final weekly impairment 27 income benefit because the employee is earning at least 80 28 percent of the employee's average weekly wage, the employee 29 may become entitled to supplemental benefits at any time 30 within 1 year after the impairment income benefit period ends 31 if: 75 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 a. The employee earns wages that are less than 80 2 percent of the employee's average weekly wage for a period of 3 at least 90 days; 4 b. The employee meets the other requirements of 5 subparagraph 1.; and 6 c. The employee's decrease in earnings is a direct 7 result of the employee's impairment from the compensable 8 injury. 9 3. If an employee earns wages that are at least 80 10 percent of the employee's average weekly wage for a period of 11 at least 90 days during which the employee is receiving 12 supplemental benefits, the employee ceases to be entitled to 13 supplemental benefits for the filing period. Supplemental 14 benefits that have been terminated shall be reinstated when 15 the employee satisfies the conditions enumerated in 16 subparagraph 2. and files the statement required under 17 subparagraph 5. Notwithstanding any other provision, if an 18 employee is not entitled to supplemental benefits for 12 19 consecutive months, the employee ceases to be entitled to any 20 additional income benefits for the compensable injury. If the 21 employee is discharged within 12 months after losing 22 entitlement under this subsection, benefits may be reinstated 23 if the employee was discharged at that time with the intent to 24 deprive the employee of supplemental benefits. 25 4. During the period that impairment income benefits 26 or supplemental income benefits are being paid, the carrier 27 has the affirmative duty to determine at least annually 28 whether any extended unemployment or underemployment is a 29 direct result of the employee's impairment. To accomplish this 30 purpose, the division may require periodic reports from the 31 employee and the carrier, and it may, at the carrier's 76 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 expense, require any physical or other examinations, 2 vocational assessments, or other tests or diagnoses necessary 3 to verify that the carrier is performing its duty. Not more 4 than once in each 12 calendar months, the employee and the 5 carrier may each request that the division review the status 6 of the employee and determine whether the carrier has 7 performed its duty with respect to whether the employee's 8 unemployment or underemployment is a direct result of 9 impairment from the compensable injury. 10 4.5. After the initial determination of supplemental 11 benefits, the employee must file a statement with the carrier 12 stating that the employee has earned less than 80 percent of 13 the employee's average weekly wage as a direct result of the 14 employee's impairment, stating the amount of wages the 15 employee earned in the filing period, and stating that the 16 employee has in good faith sought employment commensurate with 17 the employee's ability to work. The statement must be filed 18 quarterly on a form and in the manner prescribed by the 19 department division. The department division may modify the 20 filing period as appropriate to an individual case. Failure to 21 file a statement relieves the carrier of liability for 22 supplemental benefits for the period during which a statement 23 is not filed. 24 5.6. The carrier shall begin payment of supplemental 25 benefits not later than the seventh day after the expiration 26 date of the impairment income benefit period and shall 27 continue to timely pay those benefits. The carrier may request 28 a mediation conference for the purpose of contesting the 29 employee's entitlement to or the amount of supplemental income 30 benefits. 31 6.7. Supplemental benefits are calculated quarterly 77 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 and paid monthly. For purposes of calculating supplemental 2 benefits, 80 percent of the employee's average weekly wage and 3 the average wages the employee has earned per week are 4 compared quarterly. For purposes of this paragraph, if the 5 employee is offered a bona fide position of employment that 6 the employee is capable of performing, given the physical 7 condition of the employee and the geographic accessibility of 8 the position, the employee's weekly wages are considered 9 equivalent to the weekly wages for the position offered to the 10 employee. 11 7.8. Supplemental benefits are payable at the rate of 12 80 percent of the difference between 80 percent of the 13 employee's average weekly wage determined pursuant to s. 14 440.14 and the weekly wages the employee has earned during the 15 reporting period, not to exceed the maximum weekly income 16 benefit under s. 440.12. 17 8.9. The department division may by rule define terms 18 that are necessary for the administration of this section and 19 forms and procedures governing the method of payment of 20 supplemental benefits for dates of accidents before January 1, 21 1994, and for dates of accidents on or after January 1, 1994. 22 (c) Duration of temporary impairment and supplemental 23 income benefits.--The employee's eligibility for temporary 24 benefits, impairment income benefits, and supplemental 25 benefits terminates on the expiration of 401 weeks after the 26 date of injury. 27 (4) TEMPORARY PARTIAL DISABILITY.-- 28 (a) In case of temporary partial disability, 29 compensation shall be equal to 80 percent of the difference 30 between 80 percent of the employee's average weekly wage and 31 the salary, wages, and other remuneration the employee is able 78 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 to earn, as compared weekly; however, the weekly benefits may 2 not exceed an amount equal to 66 2/3 percent of the 3 employee's average weekly wage at the time of injury. In order 4 to simplify the comparison of the preinjury average weekly 5 wage with the salary, wages, and other remuneration the 6 employee is able to earn, the department division may by rule 7 provide for the modification of the weekly comparison so as to 8 coincide as closely as possible with the injured worker's pay 9 periods. The amount determined to be the salary, wages, and 10 other remuneration the employee is able to earn shall in no 11 case be less than the sum actually being earned by the 12 employee, including earnings from sheltered employment. 13 (b) Such benefits shall be paid during the continuance 14 of such disability, not to exceed a period of 104 weeks, as 15 provided by this subsection and subsection (2). Once the 16 injured employee reaches the maximum number of weeks, 17 temporary disability benefits cease and the injured worker's 18 permanent impairment must be determined. The department 19 division may by rule specify forms and procedures governing 20 the method of payment of temporary disability benefits for 21 dates of accidents before January 1, 1994, and for dates of 22 accidents on or after January 1, 1994. 23 (5) SUBSEQUENT INJURY.-- 24 (a) The fact that an employee has suffered previous 25 disability, impairment, anomaly, or disease, or received 26 compensation therefor, shall not preclude her or him from 27 benefits for a subsequent aggravation or acceleration of the 28 preexisting condition nor preclude benefits for death 29 resulting therefrom, except that no benefits shall be payable 30 if the employee, at the time of entering into the employment 31 of the employer by whom the benefits would otherwise be 79 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 payable, falsely represents herself or himself in writing as 2 not having previously been disabled or compensated because of 3 such previous disability, impairment, anomaly, or disease and 4 the employer detrimentally relies on the misrepresentation. 5 Compensation for temporary disability, medical benefits, and 6 wage-loss benefits shall not be subject to apportionment. 7 (b) If a compensable permanent impairment, or any 8 portion thereof, is a result of aggravation or acceleration of 9 a preexisting condition, or is the result of merger with a 10 preexisting impairment, an employee eligible to receive 11 impairment benefits under paragraph (3)(a) shall receive such 12 benefits for the total impairment found to result, excluding 13 the degree of impairment existing at the time of the subject 14 accident or injury or which would have existed by the time of 15 the impairment rating without the intervention of the 16 compensable accident or injury. The degree of permanent 17 impairment attributable to the accident or injury shall be 18 compensated in accordance with paragraph (3)(a). As used in 19 this paragraph, "merger" means the combining of a preexisting 20 permanent impairment with a subsequent compensable permanent 21 impairment which, when the effects of both are considered 22 together, result in a permanent impairment rating which is 23 greater than the sum of the two permanent impairment ratings 24 when each impairment is considered individually. 25 (6) OBLIGATION TO REHIRE.--If the employer has not in 26 good faith made available to the employee, within a 100-mile 27 radius of the employee's residence, work appropriate to the 28 employee's physical limitations within 30 days after the 29 carrier notifies the employer of maximum medical improvement 30 and the employee's physical limitations, the employer shall 31 pay to the department division for deposit into the Workers' 80 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Compensation Administration Trust Fund a fine of $250 for 2 every $5,000 of the employer's workers' compensation premium 3 or payroll, not to exceed $2,000 per violation, as the 4 department division requires by rule. The employer is not 5 subject to this subsection if the employee is receiving 6 permanent total disability benefits or if the employer has 50 7 or fewer employees. 8 (7) EMPLOYEE REFUSES EMPLOYMENT.--If an injured 9 employee refuses employment suitable to the capacity thereof, 10 offered to or procured therefor, such employee shall not be 11 entitled to any compensation at any time during the 12 continuance of such refusal unless at any time in the opinion 13 of the judge of compensation claims such refusal is 14 justifiable. 15 (8) EMPLOYEE LEAVES EMPLOYMENT.--If an injured 16 employee, when receiving compensation for temporary partial 17 disability, leaves the employment of the employer by whom she 18 or he was employed at the time of the accident for which such 19 compensation is being paid, the employee shall, upon securing 20 employment elsewhere, give to such former employer an 21 affidavit in writing containing the name of her or his new 22 employer, the place of employment, and the amount of wages 23 being received at such new employment; and, until she or he 24 gives such affidavit, the compensation for temporary partial 25 disability will cease. The employer by whom such employee was 26 employed at the time of the accident for which such 27 compensation is being paid may also at any time demand of such 28 employee an additional affidavit in writing containing the 29 name of her or his employer, the place of her or his 30 employment, and the amount of wages she or he is receiving; 31 and if the employee, upon such demand, fails or refuses to 81 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 make and furnish such affidavit, her or his right to 2 compensation for temporary partial disability shall cease 3 until such affidavit is made and furnished. 4 (9) EMPLOYEE BECOMES INMATE OF INSTITUTION.--In case 5 an employee becomes an inmate of a public institution, then no 6 compensation shall be payable unless she or he has dependent 7 upon her or him for support a person or persons defined as 8 dependents elsewhere in this chapter, whose dependency shall 9 be determined as if the employee were deceased and to whom 10 compensation would be paid in case of death; and such 11 compensation as is due such employee shall be paid such 12 dependents during the time she or he remains such inmate. 13 (10) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER 14 AND FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE 15 ACT.-- 16 (a) Weekly compensation benefits payable under this 17 chapter for disability resulting from injuries to an employee 18 who becomes eligible for benefits under 42 U.S.C. s. 423 shall 19 be reduced to an amount whereby the sum of such compensation 20 benefits payable under this chapter and such total benefits 21 otherwise payable for such period to the employee and her or 22 his dependents, had such employee not been entitled to 23 benefits under this chapter, under 42 U.S.C. ss. 402 and 423, 24 does not exceed 80 percent of the employee's average weekly 25 wage. However, this provision shall not operate to reduce an 26 injured worker's benefits under this chapter to a greater 27 extent than such benefits would have otherwise been reduced 28 under 42 U.S.C. s. 424(a). This reduction of compensation 29 benefits is not applicable to any compensation benefits 30 payable for any week subsequent to the week in which the 31 injured worker reaches the age of 62 years. 82 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (b) If the provisions of 42 U.S.C. s. 424(a) are 2 amended to provide for a reduction or increase of the 3 percentage of average current earnings that the sum of 4 compensation benefits payable under this chapter and the 5 benefits payable under 42 U.S.C. ss. 402 and 423 can equal, 6 the amount of the reduction of benefits provided in this 7 subsection shall be reduced or increased accordingly. The 8 department division may by rule specify forms and procedures 9 governing the method for calculating and administering the 10 offset of benefits payable under this chapter and benefits 11 payable under 42 U.S.C. ss. 402 and 423. The department 12 division shall have first priority in taking any available 13 social security offsets on dates of accidents occurring before 14 July 1, 1984. 15 (c) No disability compensation benefits payable for 16 any week, including those benefits provided by paragraph 17 (1)(f), shall be reduced pursuant to this subsection until the 18 Social Security Administration determines the amount otherwise 19 payable to the employee under 42 U.S.C. ss. 402 and 423 and 20 the employee has begun receiving such social security benefit 21 payments. The employee shall, upon demand by the department 22 division, the employer, or the carrier, authorize the Social 23 Security Administration to release disability information 24 relating to her or him and authorize the Division of 25 Unemployment Compensation to release unemployment compensation 26 information relating to her or him, in accordance with rules 27 to be promulgated by the department division prescribing the 28 procedure and manner for requesting the authorization and for 29 compliance by the employee. Neither the department division 30 nor the employer or carrier shall make any payment of benefits 31 for total disability or those additional benefits provided by 83 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 paragraph (1)(f) for any period during which the employee 2 willfully fails or refuses to authorize the release of 3 information in the manner and within the time prescribed by 4 such rules. The authority for release of disability 5 information granted by an employee under this paragraph shall 6 be effective for a period not to exceed 12 months, such 7 authority to be renewable as the department division may 8 prescribe by rule. 9 (d) If compensation benefits are reduced pursuant to 10 this subsection, the minimum compensation provisions of s. 11 440.12(2) do not apply. 12 (11) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER 13 WHO HAS RECEIVED OR IS ENTITLED TO RECEIVE UNEMPLOYMENT 14 COMPENSATION.-- 15 (a) No compensation benefits shall be payable for 16 temporary total disability or permanent total disability under 17 this chapter for any week in which the injured employee has 18 received, or is receiving, unemployment compensation benefits. 19 (b) If an employee is entitled to temporary partial 20 benefits pursuant to subsection (4) and unemployment 21 compensation benefits, such unemployment compensation benefits 22 shall be primary and the temporary partial benefits shall be 23 supplemental only, the sum of the two benefits not to exceed 24 the amount of temporary partial benefits which would otherwise 25 be payable. 26 (12) FULL-PAY STATUS FOR CERTAIN LAW ENFORCEMENT 27 OFFICERS.--Any law enforcement officer as defined in s. 28 943.10(1), (2), or (3) who, while acting within the course of 29 employment as provided by s. 440.091, is maliciously or 30 intentionally injured and who thereby sustains a job-connected 31 disability compensable under this chapter shall be carried in 84 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 full-pay status rather than being required to use sick, 2 annual, or other leave. Full-pay status shall be granted only 3 after submission to the employing agency's head of a medical 4 report which gives a current diagnosis of the employee's 5 recovery and ability to return to work. In no case shall the 6 employee's salary and workers' compensation benefits exceed 7 the amount of the employee's regular salary requirements. 8 (13) REPAYMENT.--If an employee has received a sum as 9 an indemnity benefit under any classification or category of 10 benefit under this chapter to which she or he is not entitled, 11 the employee is liable to repay that sum to the employer or 12 the carrier or to have that sum deducted from future benefits, 13 regardless of the classification of benefits, payable to the 14 employee under this chapter; however, a partial payment of the 15 total repayment may not exceed 20 percent of the amount of the 16 biweekly payment. 17 Section 23. Section 440.17, Florida Statutes, is 18 amended to read: 19 440.17 Guardian for minor or incompetent.--Prior to 20 the filing of a claim, the department division, and after the 21 filing of a claim, a judge of compensation claims, may require 22 the appointment by a court of competent jurisdiction, for any 23 person who is mentally incompetent or a minor, of a guardian 24 or other representative to receive compensation payable to 25 such person under this chapter and to exercise the powers 26 granted to or to perform the duties required of such person 27 under this chapter; however, the judge of compensation claims, 28 in the judge of compensation claims' discretion, may designate 29 in the compensation award a person to whom payment of 30 compensation may be paid for a minor or incompetent, in which 31 event payment to such designated person shall discharge all 85 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 liability for such compensation. 2 Section 24. Section 440.185, Florida Statutes, is 3 amended to read: 4 440.185 Notice of injury or death; reports; penalties 5 for violations.-- 6 (1) An employee who suffers an injury arising out of 7 and in the course of employment shall advise his or her 8 employer of the injury within 30 days after the date of or 9 initial manifestation of the injury. Failure to so advise the 10 employer shall bar a petition under this chapter unless: 11 (a) The employer or the employer's agent had actual 12 knowledge of the injury; 13 (b) The cause of the injury could not be identified 14 without a medical opinion and the employee advised the 15 employer within 30 days after obtaining a medical opinion 16 indicating that the injury arose out of and in the course of 17 employment; 18 (c) The employer did not put its employees on notice 19 of the requirements of this section by posting notice pursuant 20 to s. 440.055; or 21 (d) Exceptional circumstances, outside the scope of 22 paragraph (a) or paragraph (b) justify such failure. 23 24 In the event of death arising out of and in the course of 25 employment, the requirements of this subsection shall be 26 satisfied by the employee's agent or estate. Documents 27 prepared by counsel in connection with litigation, including 28 but not limited to notices of appearance, petitions, motions, 29 or complaints, shall not constitute notice for purposes of 30 this section. 31 (2) Within 7 days after actual knowledge of injury or 86 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 death, the employer shall report such injury or death to its 2 carrier, in a format prescribed by the department division, 3 and shall provide a copy of such report to the employee or the 4 employee's estate. The report of injury shall contain the 5 following information: 6 (a) The name, address, and business of the employer; 7 (b) The name, social security number, street, mailing 8 address, telephone number, and occupation of the employee; 9 (c) The cause and nature of the injury or death; 10 (d) The year, month, day, and hour when, and the 11 particular locality where, the injury or death occurred; and 12 (e) Such other information as the department division 13 may require. 14 15 The carrier shall, within 14 days after the employer's receipt 16 of the form reporting the injury, file the information 17 required by this subsection with the department division in 18 Tallahassee. However, the department division may by rule 19 provide for a different reporting system for those types of 20 injuries which it determines should be reported in a different 21 manner and for those cases which involve minor injuries 22 requiring professional medical attention in which the employee 23 does not lose more than 7 days of work as a result of the 24 injury and is able to return to the job immediately after 25 treatment and resume regular work. 26 (3) In addition to the requirements of subsection (2), 27 the employer shall notify the department division within 24 28 hours by telephone or telegraph of any injury resulting in 29 death. However, this special notice shall not be required 30 when death results subsequent to the submission to the 31 department division of a previous report of the injury 87 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 pursuant to subsection (2). 2 (4) Within 3 days after the employer or the employee 3 informs the carrier of an injury the carrier shall mail to the 4 injured worker an informational brochure approved by the 5 department division which sets forth in clear and 6 understandable language an explanation of the rights, 7 benefits, procedures for obtaining benefits and assistance, 8 criminal penalties, and obligations of injured workers and 9 their employers under the Florida Workers' Compensation Law. 10 Annually, the carrier or its third-party administrator shall 11 mail to the employer an informational brochure approved by the 12 department division which sets forth in clear and 13 understandable language an explanation of the rights, 14 benefits, procedures for obtaining benefits and assistance, 15 criminal penalties, and obligations of injured workers and 16 their employers under the Florida Workers' Compensation Law. 17 All such informational brochures shall contain a notice that 18 clearly states in substance the following: "Any person who, 19 knowingly and with intent to injure, defraud, or deceive any 20 employer or employee, insurance company, or self-insured 21 program, files a statement of claim containing any false or 22 misleading information commits a felony of the third degree." 23 (5) Additional reports with respect to such injury and 24 of the condition of such employee, including copies of medical 25 reports, funeral expenses, and wage statements, shall be filed 26 by the employer or carrier to the department division at such 27 times and in such manner as the department division may 28 prescribe by rule. In carrying out its responsibilities under 29 this chapter, the department and agency division may by rule 30 provide for the obtaining of any medical records relating to 31 medical treatment provided pursuant to this chapter, 88 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 notwithstanding the provisions of ss. 90.503 and 395.3025(4). 2 (6) In the absence of a stipulation by the parties, 3 reports provided for in subsection (2), subsection (4), or 4 subsection (5) shall not be evidence of any fact stated in 5 such report in any proceeding relating thereto, except for 6 medical reports which, if otherwise qualified, may be admitted 7 at the discretion of the judge of compensation claims. 8 (7) Every carrier shall file with the department 9 division within 21 days after the issuance of a policy or 10 contract of insurance such policy information as the 11 department division may require, including notice of whether 12 the policy is a minimum premium policy. Notice of cancellation 13 or expiration of a policy as set out in s. 440.42(3) shall be 14 mailed to the department division in accordance with rules 15 adopted promulgated by the department division under chapter 16 120. 17 (8) When a claimant, employer, or carrier has the 18 right, or is required, to mail a report or notice with 19 required copies within the times prescribed in subsection (2), 20 subsection (4), or subsection (5), such mailing will be 21 completed and in compliance with this section if it is 22 postmarked and mailed prepaid to the appropriate recipient 23 prior to the expiration of the time periods prescribed in this 24 section. 25 (9) Any employer or carrier who fails or refuses to 26 timely send any form, report, or notice required by this 27 section shall be subject to a civil penalty not to exceed $500 28 for each such failure or refusal. However, any employer who 29 fails to notify the carrier of the injury on the prescribed 30 form or by letter within the 7 days required in subsection (2) 31 shall be liable for the civil penalty, which shall be paid by 89 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the employer and not the carrier. Failure by the employer to 2 meet its obligations under subsection (2) shall not relieve 3 the carrier from liability for the civil penalty if it fails 4 to comply with subsections (4) and (5). 5 (10) The department division may by rule prescribe 6 forms and procedures governing the submission of the change in 7 claims administration report and the risk class code and 8 standard industry code report for all lost time and denied 9 lost-time cases. The department division may by rule define 10 terms that are necessary for the effective administration of 11 this section. 12 (11) Any information in a report of injury or illness 13 filed pursuant to this section that would identify an ill or 14 injured employee is confidential and exempt from the 15 provisions of s. 119.07(1) and s. 24(a), Art. I of the State 16 Constitution. This subsection is subject to the Open 17 Government Sunset Review Act of 1995 in accordance with s. 18 119.15, and shall stand repealed on October 2, 2003, unless 19 reviewed and saved from repeal through reenactment by the 20 Legislature. 21 Section 25. Subsection (1) of section 440.191, Florida 22 Statutes, is amended to read: 23 440.191 Employee Assistance and Ombudsman Office.-- 24 (1)(a) In order to effect the self-executing features 25 of the Workers' Compensation Law, this chapter shall be 26 construed to permit injured employees and employers or the 27 employer's carrier to resolve disagreements without undue 28 expense, costly litigation, or delay in the provisions of 29 benefits. It is the duty of all who participate in the 30 workers' compensation system, including, but not limited to, 31 carriers, service providers, health care providers, attorneys, 90 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 employers, and employees, to attempt to resolve disagreements 2 in good faith and to cooperate with the department's 3 division's efforts to resolve disagreements between the 4 parties. The department division may by rule prescribe 5 definitions that are necessary for the effective 6 administration of this section. 7 (b) An Employee Assistance and Ombudsman Office is 8 created within the department Division of Workers' 9 Compensation to inform and assist injured workers, employers, 10 carriers, and health care providers in fulfilling their 11 responsibilities under this chapter. The department division 12 may by rule specify forms and procedures for administering 13 requests for assistance provided by this section. 14 (c) The Employee Assistance and Ombudsman Office, 15 Division of Workers' Compensation, shall be a resource 16 available to all employees who participate in the workers' 17 compensation system and shall take all steps necessary to 18 educate and disseminate information to employees and 19 employers. 20 Section 26. Subsections (1) and (8) of section 21 440.192, Florida Statutes, are amended to read: 22 440.192 Procedure for resolving benefit disputes.-- 23 (1) Subject to s. 440.191, any employee who has not 24 received a benefit to which the employee believes she or he is 25 entitled under this chapter shall serve by certified mail upon 26 the employer, the employer's carrier, and the department 27 division in Tallahassee a petition for benefits that meets the 28 requirements of this section. The department division shall 29 refer the petition to the Office of the Judges of Compensation 30 Claims. 31 (8) Within 14 days after receipt of a petition for 91 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 benefits by certified mail, the carrier must either pay the 2 requested benefits without prejudice to its right to deny 3 within 120 days from receipt of the petition or file a notice 4 of denial with the department division. The carrier must list 5 all benefits requested but not paid and explain its 6 justification for nonpayment in the notice of denial. A 7 carrier that does not deny compensability in accordance with 8 s. 440.20(4) is deemed to have accepted the employee's 9 injuries as compensable, unless it can establish material 10 facts relevant to the issue of compensability that could not 11 have been discovered through reasonable investigation within 12 the 120-day period. The carrier shall provide copies of the 13 notice to the filing party, employer, and claimant by 14 certified mail. 15 Section 27. Subsections (1), (3), and (4) of section 16 440.1925, Florida Statutes, are amended to read: 17 440.1925 Procedure for resolving maximum medical 18 improvement or permanent impairment disputes.-- 19 (1) Notwithstanding the limitations on carrier 20 independent medical examinations in s. 440.13, an employee or 21 carrier who wishes to obtain an opinion other than the opinion 22 of the treating physician or an agency a division advisor on 23 the issue of permanent impairment may obtain one independent 24 medical examination, except that the employee or carrier who 25 selects the treating physician is not entitled to obtain an 26 alternate opinion on the issue of permanent impairment, unless 27 the parties otherwise agree. This section and s. 440.13(2) do 28 not permit an employee or a carrier to obtain an additional 29 medical opinion on the issue of permanent impairment by 30 requesting an alternate treating physician pursuant to s. 31 440.13. 92 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (3) Disputes shall be resolved under this section 2 when: 3 (a) A carrier that is entitled to obtain a 4 determination of an employee's date of maximum medical 5 improvement or permanent impairment has done so; 6 (b) The independent medical examiner's opinion on the 7 date of the employee's maximum medical improvement and degree 8 or permanent impairment differs from the opinion of the 9 employee's treating physician on either of those issues, or 10 from the opinion of the expert medical advisor appointed by 11 the agency division on the degree of permanent impairment; or 12 (c) The carrier denies any portion of an employee's 13 claim petition for benefits due to disputed maximum medical 14 improvement or permanent impairment issues. 15 (4) Only opinions of the employee's treating 16 physician, an agency a division medical advisor, or an 17 independent medical examiner are admissible in proceedings 18 before a judge of compensation claims to resolve maximum 19 medical improvement or impairment disputes. 20 Section 28. Subsections (3), (6), (8), (9), (10), 21 (11), (12), (15), (16), and (17) of section 440.20, Florida 22 Statutes, are amended to read: 23 440.20 Time for payment of compensation; penalties for 24 late payment.-- 25 (3) Upon making payment, or upon suspension or 26 cessation of payment for any reason, the carrier shall 27 immediately notify the department division that it has 28 commenced, suspended, or ceased payment of compensation. The 29 department division may require such notification in any 30 format and manner it deems necessary to obtain accurate and 31 timely reporting. 93 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (6) If any installment of compensation for death or 2 dependency benefits, disability, permanent impairment, or wage 3 loss payable without an award is not paid within 7 days after 4 it becomes due, as provided in subsection (2), subsection (3), 5 or subsection (4), there shall be added to such unpaid 6 installment a punitive penalty of an amount equal to 20 7 percent of the unpaid installment or $5, which shall be paid 8 at the same time as, but in addition to, such installment of 9 compensation, unless notice is filed under subsection (4) or 10 unless such nonpayment results from conditions over which the 11 employer or carrier had no control. When any installment of 12 compensation payable without an award has not been paid within 13 7 days after it became due and the claimant concludes the 14 prosecution of the claim before a judge of compensation claims 15 without having specifically claimed additional compensation in 16 the nature of a penalty under this section, the claimant will 17 be deemed to have acknowledged that, owing to conditions over 18 which the employer or carrier had no control, such installment 19 could not be paid within the period prescribed for payment and 20 to have waived the right to claim such penalty. However, 21 during the course of a hearing, the judge of compensation 22 claims shall on her or his own motion raise the question of 23 whether such penalty should be awarded or excused. The 24 department division may assess without a hearing the punitive 25 penalty against either the employer or the insurance carrier, 26 depending upon who was at fault in causing the delay. The 27 insurance policy cannot provide that this sum will be paid by 28 the carrier if the department division or the judge of 29 compensation claims determines that the punitive penalty 30 should be made by the employer rather than the carrier. Any 31 additional installment of compensation paid by the carrier 94 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 pursuant to this section shall be paid directly to the 2 employee. 3 (8) In addition to any other penalties provided by 4 this chapter for late payment, if any installment of 5 compensation is not paid when it becomes due, the employer, 6 carrier, or servicing agent shall pay interest thereon at the 7 rate of 12 percent per year from the date the installment 8 becomes due until it is paid, whether such installment is 9 payable without an order or under the terms of an order. The 10 interest payment shall be the greater of the amount of 11 interest due or $5. 12 (a) Within 30 days after final payment of compensation 13 has been made, the employer, carrier, or servicing agent shall 14 send to the department division a notice, in accordance with a 15 form format and manner prescribed by the department division, 16 stating that such final payment has been made and stating the 17 total amount of compensation paid, the name of the employee 18 and of any other person to whom compensation has been paid, 19 the date of the injury or death, and the date to which 20 compensation has been paid. 21 (b) If the employer, carrier, or servicing agent fails 22 to so notify the department division within such time, the 23 department division shall assess against such employer, 24 carrier, or servicing agent a civil penalty in an amount not 25 over $100. 26 (c) In order to ensure carrier compliance under this 27 chapter and provisions of the insurance code, the department 28 division shall monitor the performance of carriers by 29 conducting market conduct examinations, as provided in s. 30 624.3161, and conducting investigations, as provided in s. 31 624.317. The department division shall impose penalties on 95 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 establish by rule minimum performance standards for carriers 2 to ensure that a minimum of 90 percent of all compensation 3 benefits are timely paid. The division shall fine a carrier as 4 provided in s. 440.13(11)(b) up to $50 for each late payment 5 of compensation pursuant to s. 624.4211 that is below the 6 minimum 90 percent performance standard. This paragraph does 7 not affect the imposition of any penalties or interest due to 8 the claimant. If a carrier contracts with a servicing agent to 9 fulfill its administrative responsibilities under this 10 chapter, the payment practices of the servicing agent are 11 deemed the payment practices of the carrier for the purpose of 12 assessing penalties against the carrier. 13 (9) The department division may upon its own 14 initiative at any time in a case in which payments are being 15 made without an award investigate same and shall, in any case 16 in which the right to compensation is controverted, or in 17 which payments of compensation have been stopped or suspended, 18 upon receipt of notice from any person entitled to 19 compensation or from the employer that the right to 20 compensation is controverted or that payments of compensation 21 have been stopped or suspended, make such investigations, 22 cause such medical examination to be made, or hold such 23 hearings, and take such further action as it considers will 24 properly protect the rights of all parties. 25 (10) Whenever the department division deems it 26 advisable, it may require any employer to make a deposit with 27 the Treasurer to secure the prompt and convenient payments of 28 such compensation; and payments therefrom upon any awards 29 shall be made upon order of the department division or judge 30 of compensation claims. 31 (11)(a) Upon joint petition of all interested parties, 96 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 a lump-sum payment in exchange for the employer's or carrier's 2 release from liability for future medical expenses, as well as 3 future payments of compensation expenses and any other 4 benefits provided under this chapter, shall be allowed at any 5 time in any case in which the employer or carrier has filed a 6 written notice of denial within 120 days after the date of the 7 injury, and the judge of compensation claims at a hearing to 8 consider the settlement proposal finds a justiciable 9 controversy as to legal or medical compensability of the 10 claimed injury or the alleged accident. The employer or 11 carrier may not pay any attorney's fees on behalf of the 12 claimant for any settlement under this section unless 13 expressly authorized elsewhere in this chapter. Upon the joint 14 petition of all interested parties and after giving due 15 consideration to the interests of all interested parties, the 16 judge of compensation claims may enter a compensation order 17 approving and authorizing the discharge of the liability of 18 the employer for compensation and remedial treatment, care, 19 and attendance, as well as rehabilitation expenses, by the 20 payment of a lump sum. Such a compensation order so entered 21 upon joint petition of all interested parties is not subject 22 to modification or review under s. 440.28. If the settlement 23 proposal together with supporting evidence is not approved by 24 the judge of compensation claims, it shall be considered void. 25 Upon approval of a lump-sum settlement under this subsection, 26 the judge of compensation claims shall send a report to the 27 Chief Judge of the amount of the settlement and a statement of 28 the nature of the controversy. The Chief Judge shall keep a 29 record of all such reports filed by each judge of compensation 30 claims and shall submit to the Legislature a summary of all 31 such reports filed under this subsection annually by September 97 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 15. 2 (b) Upon joint petition of all interested parties, a 3 lump-sum payment in exchange for the employer's or carrier's 4 release from liability for future medical expenses, as well as 5 future payments of compensation and rehabilitation expenses, 6 and any other benefits provided under this chapter, may be 7 allowed at any time in any case after the injured employee has 8 attained maximum medical improvement. An employer or carrier 9 may not pay any attorney's fees on behalf of the claimant for 10 any settlement, unless expressly authorized elsewhere in this 11 chapter. A compensation order so entered upon joint petition 12 of all interested parties shall not be subject to modification 13 or review under s. 440.28. However, a judge of compensation 14 claims is not required to approve any award for lump-sum 15 payment when it is determined by the judge of compensation 16 claims that the payment being made is in excess of the value 17 of benefits the claimant would be entitled to under this 18 chapter. The judge of compensation claims shall make or cause 19 to be made such investigations as she or he considers 20 necessary, in each case in which the parties have stipulated 21 that a proposed final settlement of liability of the employer 22 for compensation shall not be subject to modification or 23 review under s. 440.28, to determine whether such final 24 disposition will definitely aid the rehabilitation of the 25 injured worker or otherwise is clearly for the best interests 26 of the person entitled to compensation and, in her or his 27 discretion, may have an investigation made by the Department 28 of Education Rehabilitation Section of the Division of 29 Workers' Compensation. The joint petition and the report of 30 any investigation so made will be deemed a part of the 31 proceeding. An employer shall have the right to appear at any 98 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 hearing pursuant to this subsection which relates to the 2 discharge of such employer's liability and to present 3 testimony at such hearing. The carrier shall provide 4 reasonable notice to the employer of the time and date of any 5 such hearing and inform the employer of her or his rights to 6 appear and testify. When the claimant is represented by 7 counsel or when the claimant and carrier or employer are 8 represented by counsel, final approval of the lump-sum 9 settlement agreement, as provided for in a joint petition and 10 stipulation, shall be approved by entry of an order within 7 11 days after the filing of such joint petition and stipulation 12 without a hearing, unless the judge of compensation claims 13 determines, in her or his discretion, that additional 14 testimony is needed before such settlement can be approved or 15 disapproved and so notifies the parties. The probability of 16 the death of the injured employee or other person entitled to 17 compensation before the expiration of the period during which 18 such person is entitled to compensation shall, in the absence 19 of special circumstances making such course improper, be 20 determined in accordance with the most recent United States 21 Life Tables published by the National Office of Vital 22 Statistics of the United States Department of Health and Human 23 Services. The probability of the happening of any other 24 contingency affecting the amount or duration of the 25 compensation, except the possibility of the remarriage of a 26 surviving spouse, shall be disregarded. As a condition of 27 approving a lump-sum payment to a surviving spouse, the judge 28 of compensation claims, in the judge of compensation claims' 29 discretion, may require security which will ensure that, in 30 the event of the remarriage of such surviving spouse, any 31 unaccrued future payments so paid may be recovered or recouped 99 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 by the employer or carrier. Such applications shall be 2 considered and determined in accordance with s. 440.25. 3 (c) This section applies to all claims that the 4 parties have not previously settled, regardless of the date of 5 accident. 6 (12)(a) Liability of an employer for future payments 7 of compensation may not be discharged by advance payment 8 unless prior approval of a judge of compensation claims or the 9 department division has been obtained as hereinafter provided. 10 The approval shall not constitute an adjudication of the 11 claimant's percentage of disability. 12 (b) When the claimant has reached maximum recovery and 13 returned to her or his former or equivalent employment with no 14 substantial reduction in wages, such approval of a reasonable 15 advance payment of a part of the compensation payable to the 16 claimant may be given informally by letter by a judge of 17 compensation claims or, by the department division director, 18 or by the administrator of claims of the division. 19 (c) In the event the claimant has not returned to the 20 same or equivalent employment with no substantial reduction in 21 wages or has suffered a substantial loss of earning capacity 22 or a physical impairment, actual or apparent: 23 1. An advance payment of compensation not in excess of 24 $2,000 may be approved informally by letter, without hearing, 25 by any judge of compensation claims or the Chief Judge. 26 2. An advance payment of compensation not in excess of 27 $2,000 may be ordered by any judge of compensation claims 28 after giving the interested parties an opportunity for a 29 hearing thereon pursuant to not less than 10 days' notice by 30 mail, unless such notice is waived, and after giving due 31 consideration to the interests of the person entitled thereto. 100 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 When the parties have stipulated to an advance payment of 2 compensation not in excess of $2,000, such advance may be 3 approved by an order of a judge of compensation claims, with 4 or without hearing, or informally by letter by any such judge 5 of compensation claims, or by the department division 6 director, if such advance is found to be for the best 7 interests of the person entitled thereto. 8 3. When the parties have stipulated to an advance 9 payment in excess of $2,000, subject to the approval of the 10 department division, such payment may be approved by a judge 11 of compensation claims by order if the judge finds that such 12 advance payment is for the best interests of the person 13 entitled thereto and is reasonable under the circumstances of 14 the particular case. The judge of compensation claims shall 15 make or cause to be made such investigations as she or he 16 considers necessary concerning the stipulation and, in her or 17 his discretion, may have an investigation of the matter made 18 by the Department of Education Rehabilitation Section of the 19 division. The stipulation and the report of any investigation 20 shall be deemed a part of the record of the proceedings. 21 (d) When an application for an advance payment in 22 excess of $2,000 is opposed by the employer or carrier, it 23 shall be heard by a judge of compensation claims after giving 24 the interested parties not less than 10 days' notice of such 25 hearing by mail, unless such notice is waived. In her or his 26 discretion, the judge of compensation claims may have an 27 investigation of the matter made by the Department of 28 Education Rehabilitation Section of the division, in which 29 event the report and recommendation of that section will be 30 deemed a part of the record of the proceedings. If the judge 31 of compensation claims finds that such advance payment is for 101 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the best interests of the person entitled to compensation, 2 will not materially prejudice the rights of the employer and 3 carrier, and is reasonable under the circumstances of the 4 case, she or he may order the same paid. However, in no event 5 may any such advance payment under this paragraph be granted 6 in excess of $7,500 or 26 weeks of benefits in any 48-month 7 period, whichever is greater, from the date of the last 8 advance payment. 9 (15)(a) The department division shall examine on an 10 ongoing basis claims files in accordance with ss. 624.3161 and 11 624.310(5) in order to identify questionable claims-handling 12 techniques, questionable patterns or practices of claims, or a 13 pattern of repeated unreasonably controverted claims by 14 employers, carriers, and self-insurers, health care providers, 15 health care facilities, training and education providers, or 16 any others providing services to employees pursuant to this 17 chapter and may certify its findings to the Department of 18 Insurance. If the department finds such questionable 19 techniques, patterns, or repeated unreasonably controverted 20 claims as constitute a general business practice of a carrier, 21 in the judgment of the division shall be certified in its 22 findings by the division to the Department of Insurance or 23 such other appropriate licensing agency. Such certification by 24 the division is exempt from the provisions of chapter 120. 25 Upon receipt of any such certification, the department of 26 Insurance shall take appropriate action so as to bring such 27 general business practices to a halt pursuant to s. 28 440.38(3)(a) or may impose penalties pursuant to s. 624.4211. 29 The department division may initiate investigations of 30 questionable techniques, patterns, practices, or repeated 31 unreasonably controverted claims. The department division may 102 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 by rule establish penalties for violations and forms and 2 procedures for corrective action plans and for auditing 3 carriers. 4 (b) As to any examination, investigation, or hearing 5 being conducted under this chapter, the Treasurer or his or 6 her designee Secretary of Labor and Employment Security or the 7 secretary's designee: 8 1. May administer oaths, examine and cross-examine 9 witnesses, receive oral and documentary evidence; and 10 2. Shall have the power to subpoena witnesses, compel 11 their attendance and testimony, and require by subpoena the 12 production of books, papers, records, files, correspondence, 13 documents, or other evidence which is relevant to the inquiry. 14 (c) If any person refuses to comply with any such 15 subpoena or to testify as to any matter concerning which she 16 or he may be lawfully interrogated, the Circuit Court of Leon 17 County or of the county wherein such examination, 18 investigation, or hearing is being conducted, or of the county 19 wherein such person resides, may, on the application of the 20 department, issue an order requiring such person to comply 21 with the subpoena and to testify. 22 (d) Subpoenas shall be served, and proof of such 23 service made, in the same manner as if issued by a circuit 24 court. Witness fees, costs, and reasonable travel expenses, if 25 claimed, shall be allowed the same as for testimony in a 26 circuit court. 27 (e) The division shall publish annually a report which 28 indicates the promptness of first payment of compensation 29 records of each carrier or self-insurer so as to focus 30 attention on those carriers or self-insurers with poor payment 31 records for the preceding year. A copy of such report shall be 103 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 certified to The department of Insurance which shall take 2 appropriate steps so as to cause such poor carrier payment 3 practices to halt pursuant to s. 440.38(3)(a). In addition, 4 the department division shall take appropriate action so as to 5 halt such poor payment practices of self-insurers. "Poor 6 payment practice" means a practice of late payment sufficient 7 to constitute a general business practice. 8 (f) The department division shall promulgate rules 9 providing guidelines to carriers, self-insurers, and employers 10 to indicate behavior that may be construed as questionable 11 claims-handling techniques, questionable patterns of claims, 12 repeated unreasonably controverted claims, or poor payment 13 practices. 14 (16) No penalty assessed under this section may be 15 recouped by any carrier or self-insurer in the rate base, the 16 premium, or any rate filing. In the case of carriers, The 17 Department of Insurance shall enforce this subsection; and in 18 the case of self-insurers, the division shall enforce this 19 subsection. 20 (17) The department division may by rule establish 21 audit procedures and set standards for the Automated Carrier 22 Performance System. 23 Section 29. Subsections (1) and (2) of section 24 440.207, Florida Statutes, are amended to read: 25 440.207 Workers' compensation system guide.-- 26 (1) The department Division of Workers' Compensation 27 of the Department of Labor and Employment Security shall 28 educate all persons providing or receiving benefits pursuant 29 to this chapter as to their rights and responsibilities under 30 this chapter. 31 (2) The department division shall publish an 104 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 understandable guide to the workers' compensation system which 2 shall contain an explanation of benefits provided; services 3 provided by the Employee Assistance and Ombudsman Office; 4 procedures regarding mediation, the hearing process, and civil 5 and criminal penalties; relevant rules of the department 6 division; and such other information as the department 7 division believes will inform employees, employers, carriers, 8 and those providing services pursuant to this chapter of their 9 rights and responsibilities under this chapter and the rules 10 of the department division. For the purposes of this 11 subsection, a guide is understandable if the text of the guide 12 is written at a level of readability not exceeding the eighth 13 grade level, as determined by a recognized readability test. 14 Section 30. Subsection (1) of section 440.211, Florida 15 Statutes, is amended to read: 16 440.211 Authorization of collective bargaining 17 agreement.-- 18 (1) Subject to the limitation stated in subsection 19 (2), a provision that is mutually agreed upon in any 20 collective bargaining agreement filed with the department 21 division between an individually self-insured employer or 22 other employer upon consent of the employer's carrier and a 23 recognized or certified exclusive bargaining representative 24 establishing any of the following shall be valid and binding: 25 (a) An alternative dispute resolution system to 26 supplement, modify, or replace the provisions of this chapter 27 which may include, but is not limited to, conciliation, 28 mediation, and arbitration. Arbitration held pursuant to this 29 section shall be binding on the parties. 30 (b) The use of an agreed-upon list of certified health 31 care providers of medical treatment which may be the exclusive 105 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 source of all medical treatment under this chapter. 2 (c) The use of a limited list of physicians to conduct 3 independent medical examinations which the parties may agree 4 shall be the exclusive source of independent medical examiners 5 pursuant to this chapter. 6 (d) A light-duty, modified-job, or return-to-work 7 program. 8 (e) A vocational rehabilitation or retraining program. 9 Section 31. Subsections (1), (2), and (3) of section 10 440.24, Florida Statutes, are amended to read: 11 440.24 Enforcement of compensation orders; 12 penalties.-- 13 (1) In case of default by the employer or carrier in 14 the payment of compensation due under any compensation order 15 of a judge of compensation claims or other failure by the 16 employer or carrier to comply with such order within 10 days 17 after the order becomes final, any circuit court of this state 18 within the jurisdiction of which the employer or carrier 19 resides or transacts business shall, upon application by the 20 department division or any beneficiary under such order, have 21 jurisdiction to issue a rule nisi directing such employer or 22 carrier to show cause why a writ of execution, or such other 23 process as may be necessary to enforce the terms of such 24 order, shall not be issued, and, unless such cause is shown, 25 the court shall have jurisdiction to issue a writ of execution 26 or such other process or final order as may be necessary to 27 enforce the terms of such order of the judge of compensation 28 claims. 29 (2) In any case where the employer is insured and the 30 carrier fails to comply with any compensation order of a judge 31 of compensation claims or court within 10 days after such 106 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 order becomes final, the division shall notify the department 2 of Insurance of such failure, and the Department of Insurance 3 shall thereupon suspend the license of such carrier to do an 4 insurance business in this state, until such carrier has 5 complied with such order. 6 (3) In any case where the employer is a self-insurer 7 and fails to comply with any compensation order of a judge of 8 compensation claims or court within 10 days after such order 9 becomes final, the department division may suspend or revoke 10 any authorization previously given to the employer to become a 11 self-insurer, and the department division may sell such of the 12 securities deposited by such self-insurer with the department 13 division as may be necessary to satisfy such order. 14 Section 32. Subsections (4), (5), and (7) of section 15 440.25, Florida Statutes, are amended to read: 16 440.25 Procedures for mediation and hearings.-- 17 (4)(a) If, on the 10th day following commencement of 18 mediation, the questions in dispute have not been resolved, 19 the judge of compensation claims shall hold a pretrial 20 hearing. The judge of compensation claims shall give the 21 interested parties at least 7 days' advance notice of the 22 pretrial hearing by mail. At the pretrial hearing, the judge 23 of compensation claims shall, subject to paragraph (b), set a 24 date for the final hearing that allows the parties at least 30 25 days to conduct discovery unless the parties consent to an 26 earlier hearing date. 27 (b) The final hearing must be held and concluded 28 within 45 days after the pretrial hearing. Continuances may be 29 granted only if the requesting party demonstrates to the judge 30 of compensation claims that the reason for requesting the 31 continuance arises from circumstances beyond the party's 107 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 control. 2 (c) The judge of compensation claims shall give the 3 interested parties at least 7 days' advance notice of the 4 final hearing, served upon the interested parties by mail. 5 (d) The hearing shall be held in the county where the 6 injury occurred, if the injury occurred in this state, unless 7 otherwise agreed to between the parties and authorized by the 8 judge of compensation claims in the county where the injury 9 occurred. If the injury occurred without the state and is one 10 for which compensation is payable under this chapter, then the 11 hearing above referred to may be held in the county of the 12 employer's residence or place of business, or in any other 13 county of the state which will, in the discretion of the Chief 14 Judge, be the most convenient for a hearing. The hearing shall 15 be conducted by a judge of compensation claims, who shall, 16 within 14 days after final hearing, unless otherwise agreed by 17 the parties, determine the dispute in a summary manner. At 18 such hearing, the claimant and employer may each present 19 evidence in respect of such claim and may be represented by 20 any attorney authorized in writing for such purpose. When 21 there is a conflict in the medical evidence submitted at the 22 hearing, the provisions of s. 440.13 shall apply. The report 23 or testimony of the expert medical advisor shall be made a 24 part of the record of the proceeding and shall be given the 25 same consideration by the judge of compensation claims as is 26 accorded other medical evidence submitted in the proceeding; 27 and all costs incurred in connection with such examination and 28 testimony may be assessed as costs in the proceeding, subject 29 to the provisions of s. 440.13. No judge of compensation 30 claims may make a finding of a degree of permanent impairment 31 that is greater than the greatest permanent impairment rating 108 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 given the claimant by any examining or treating physician, 2 except upon stipulation of the parties. 3 (e) The order making an award or rejecting the claim, 4 referred to in this chapter as a "compensation order," shall 5 set forth the findings of ultimate facts and the mandate; and 6 the order need not include any other reason or justification 7 for such mandate. The compensation order shall be filed in the 8 office of the department division at Tallahassee. A copy of 9 such compensation order shall be sent by mail to the parties 10 and attorneys of record at the last known address of each, 11 with the date of mailing noted thereon. 12 (f) Each judge of compensation claims is required to 13 submit a special report to the Chief Judge in each contested 14 workers' compensation case in which the case is not determined 15 within 14 days of final hearing. Said form shall be provided 16 by the Chief Judge and shall contain the names of the judge of 17 compensation claims and of the attorneys involved and a brief 18 explanation by the judge of compensation claims as to the 19 reason for such a delay in issuing a final order. The Chief 20 Judge shall compile these special reports into an annual 21 public report to the Governor, the department Secretary of 22 Labor and Employment Security, the Legislature, The Florida 23 Bar, and the appellate district judicial nominating 24 commissions. 25 (g) Judges of compensation claims shall adopt and 26 enforce uniform local rules for workers' compensation. 27 (h) Notwithstanding any other provision of this 28 section, the judge of compensation claims may require the 29 appearance of the parties and counsel before her or him 30 without written notice for an emergency conference where there 31 is a bona fide emergency involving the health, safety, or 109 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 welfare of an employee. An emergency conference under this 2 section may result in the entry of an order or the rendering 3 of an adjudication by the judge of compensation claims. 4 (i) To expedite dispute resolution and to enhance the 5 self-executing features of the Workers' Compensation Law, the 6 Chief Judge shall make provision by rule or order for the 7 resolution of appropriate motions by judges of compensation 8 claims without oral hearing upon submission of brief written 9 statements in support and opposition, and for expedited 10 discovery and docketing. 11 (j) To further expedite dispute resolution and to 12 enhance the self-executing features of the system, those 13 petitions filed in accordance with s. 440.192 that involve a 14 claim for benefits of $5,000 or less shall, in the absence of 15 compelling evidence to the contrary, be presumed to be 16 appropriate for expedited resolution under this paragraph; and 17 any other claim filed in accordance with s. 440.192, upon the 18 written agreement of both parties and application by either 19 party, may similarly be resolved under this paragraph. For 20 purposes of expedited resolution pursuant to this paragraph, 21 the Chief Judge shall make provision by rule or order for 22 expedited and limited discovery and expedited docketing in 23 such cases. At least 15 days prior to hearing, the parties 24 shall exchange and file with the judge of compensation claims 25 a pretrial outline of all issues, defenses, and witnesses on a 26 form promulgated by the Chief Judge; provided, in no event 27 shall such hearing be held without 15 days' written notice to 28 all parties. No pretrial hearing shall be held. The judge of 29 compensation claims shall limit all argument and presentation 30 of evidence at the hearing to a maximum of 30 minutes, and 31 such hearings shall not exceed 30 minutes in length. Neither 110 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 party shall be required to be represented by counsel. The 2 employer or carrier may be represented by an adjuster or other 3 qualified representative. The employer or carrier and any 4 witness may appear at such hearing by telephone. The rules of 5 evidence shall be liberally construed in favor of allowing 6 introduction of evidence. 7 (5)(a) Procedures with respect to appeals from orders 8 of judges of compensation claims shall be governed by rules 9 adopted by the Supreme Court. Such an order shall become final 10 30 days after mailing of copies of such order to the parties, 11 unless appealed pursuant to such rules. 12 (b) An appellant may be relieved of any necessary 13 filing fee by filing a verified petition of indigency for 14 approval as provided in s. 57.081(1) and may be relieved in 15 whole or in part from the costs for preparation of the record 16 on appeal if, within 15 days after the date notice of the 17 estimated costs for the preparation is served, the appellant 18 files with the judge of compensation claims a copy of the 19 designation of the record on appeal, and a verified petition 20 to be relieved of costs. A verified petition filed prior to 21 the date of service of the notice of the estimated costs shall 22 be deemed not timely filed. The verified petition relating to 23 record costs shall contain a sworn statement that the 24 appellant is insolvent and a complete, detailed, and sworn 25 financial affidavit showing all the appellant's assets, 26 liabilities, and income. Failure to state in the affidavit all 27 assets and income, including marital assets and income, shall 28 be grounds for denying the petition with prejudice. The 29 department division shall promulgate rules as may be required 30 pursuant to this subsection, including forms for use in all 31 petitions brought under this subsection. The appellant's 111 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 attorney, or the appellant if she or he is not represented by 2 an attorney, shall include as a part of the verified petition 3 relating to record costs an affidavit or affirmation that, in 4 her or his opinion, the notice of appeal was filed in good 5 faith and that there is a probable basis for the District 6 Court of Appeal, First District, to find reversible error, and 7 shall state with particularity the specific legal and factual 8 grounds for the opinion. Failure to so affirm shall be grounds 9 for denying the petition. A copy of the verified petition 10 relating to record costs shall be served upon all interested 11 parties, including the department division and the Office of 12 the General Counsel, Department of Labor and Employment 13 Security, in Tallahassee. The judge of compensation claims 14 shall promptly conduct a hearing on the verified petition 15 relating to record costs, giving at least 15 days' notice to 16 the appellant, the department division, and all other 17 interested parties, all of whom shall be parties to the 18 proceedings. The judge of compensation claims may enter an 19 order without such hearing if no objection is filed by an 20 interested party within 20 days from the service date of the 21 verified petition relating to record costs. Such proceedings 22 shall be conducted in accordance with the provisions of this 23 section and with the workers' compensation rules of procedure, 24 to the extent applicable. In the event an insolvency petition 25 is granted, the judge of compensation claims shall direct the 26 department division to pay record costs and filing fees from 27 the Workers' Compensation Administrative Trust Fund pending 28 final disposition of the costs of appeal. The department 29 division may transcribe or arrange for the transcription of 30 the record in any proceeding for which it is ordered to pay 31 the cost of the record. In the event the insolvency petition 112 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 is denied, the judge of compensation claims may enter an order 2 requiring the petitioner to reimburse the department division 3 for costs incurred in opposing the petition, including 4 investigation and travel expenses. 5 (c) As a condition of filing a notice of appeal to the 6 District Court of Appeal, First District, an employer who has 7 not secured the payment of compensation under this chapter in 8 compliance with s. 440.38 shall file with the notice of appeal 9 a good and sufficient bond, as provided in s. 59.13, 10 conditioned to pay the amount of the demand and any interest 11 and costs payable under the terms of the order if the appeal 12 is dismissed, or if the District Court of Appeal, First 13 District, affirms the award in any amount. Upon the failure of 14 such employer to file such bond with the judge of compensation 15 claims or the District Court of Appeal, First District, along 16 with the notice of appeal, the District Court of Appeal, First 17 District, shall dismiss the notice of appeal. 18 (7) An injured employee claiming or entitled to 19 compensation shall submit to such physical examination by a 20 certified expert medical advisor approved by the agency 21 division or the judge of compensation claims as the agency 22 division or the judge of compensation claims may require. The 23 place or places shall be reasonably convenient for the 24 employee. Such physician or physicians as the employee, 25 employer, or carrier may select and pay for may participate in 26 an examination if the employee, employer, or carrier so 27 requests. Proceedings shall be suspended and no compensation 28 shall be payable for any period during which the employee may 29 refuse to submit to examination. Any interested party shall 30 have the right in any case of death to require an autopsy, the 31 cost thereof to be borne by the party requesting it; and the 113 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 judge of compensation claims shall have authority to order and 2 require an autopsy and may, in her or his discretion, withhold 3 her or his findings and award until an autopsy is held. 4 Section 33. Section 440.271, Florida Statutes, is 5 amended to read: 6 440.271 Appeal of order of judge of compensation 7 claims.--Review of any order of a judge of compensation claims 8 entered pursuant to this chapter shall be by appeal to the 9 District Court of Appeal, First District. Appeals shall be 10 filed in accordance with rules of procedure prescribed by the 11 Supreme Court for review of such orders. The department 12 division shall be given notice of any proceedings pertaining 13 to s. 440.25, regarding indigency, or s. 440.49, regarding the 14 Special Disability Trust Fund, and shall have the right to 15 intervene in any proceedings. 16 Section 34. Section 440.345, Florida Statutes, is 17 amended to read: 18 440.345 Reporting of attorney's fees.--All fees paid 19 to attorneys for services rendered under this chapter shall be 20 reported to the department division as the department division 21 requires by rule. The department division shall annually 22 summarize such data in a report to the Workers' Compensation 23 Oversight Board. 24 Section 35. Section 440.35, Florida Statutes, is 25 amended to read: 26 440.35 Record of injury or death.--Every employer 27 shall keep a record in respect of any injury to an employee. 28 Such record shall contain such information of disability or 29 death in respect of such injury as the department division may 30 by regulation require, and shall be available to inspection by 31 the department division or by any state authority at such time 114 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 and under such conditions as the department division may by 2 regulation prescribe. 3 Section 36. Subsections (1), (2), and (3) of section 4 440.38, Florida Statutes, are amended to read: 5 440.38 Security for compensation; insurance carriers 6 and self-insurers.-- 7 (1) Every employer shall secure the payment of 8 compensation under this chapter: 9 (a) By insuring and keeping insured the payment of 10 such compensation with any stock company or mutual company or 11 association or exchange, authorized to do business in the 12 state; 13 (b) By furnishing satisfactory proof to the department 14 division of its financial ability to pay such compensation 15 individually and on behalf of its subsidiary and affiliated 16 companies with employees in this state and receiving an 17 authorization from the department division to pay such 18 compensation directly in accordance with the following 19 provisions: 20 1. The department division may, as a condition to such 21 authorization, require such employer to deposit in a 22 depository designated by the department division either an 23 indemnity bond or securities, at the option of the employer, 24 of a kind and in an amount determined by the department 25 division and subject to such conditions as the department 26 division may prescribe, which shall include authorization to 27 the department division in the case of default to sell any 28 such securities sufficient to pay compensation awards or to 29 bring suit upon such bonds, to procure prompt payment of 30 compensation under this chapter. In addition, the department 31 division shall require, as a condition to authorization to 115 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 self-insure, proof that the employer has provided for 2 competent personnel with whom to deliver benefits and to 3 provide a safe working environment. Further, the department 4 division shall require such employer to carry reinsurance at 5 levels that will ensure the actuarial soundness of such 6 employer in accordance with rules promulgated by the 7 department division. The department division may by rule 8 require that, in the event of an individual self-insurer's 9 insolvency, such indemnity bonds, securities, and reinsurance 10 policies shall be payable to the Florida Self-Insurers 11 Guaranty Association, Incorporated, created pursuant to s. 12 440.385. Any employer securing compensation in accordance 13 with the provisions of this paragraph shall be known as a 14 self-insurer and shall be classed as a carrier of her or his 15 own insurance. 16 2. If the employer fails to maintain the foregoing 17 requirements, the department division shall revoke the 18 employer's authority to self-insure, unless the employer 19 provides to the department division the certified opinion of 20 an independent actuary who is a member of the American Society 21 of Actuaries as to the actuarial present value of the 22 employer's determined and estimated future compensation 23 payments based on cash reserves, using a 4-percent discount 24 rate, and a qualifying security deposit equal to 1.5 times the 25 value so certified. The employer shall thereafter annually 26 provide such a certified opinion until such time as the 27 employer meets the requirements of subparagraph 1. The 28 qualifying security deposit shall be adjusted at the time of 29 each such annual report. Upon the failure of the employer to 30 timely provide such opinion or to timely provide a security 31 deposit in an amount equal to 1.5 times the value certified in 116 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the latest opinion, the department division shall then revoke 2 such employer's authorization to self-insure, and such failure 3 shall be deemed to constitute an immediate serious danger to 4 the public health, safety, or welfare sufficient to justify 5 the summary suspension of the employer's authorization to 6 self-insure pursuant to s. 120.68. 7 3. Upon the suspension or revocation of the employer's 8 authorization to self-insure, the employer shall provide to 9 the department division and to the Florida Self-Insurers 10 Guaranty Association, Incorporated, created pursuant to s. 11 440.385 the certified opinion of an independent actuary who is 12 a member of the American Society of Actuaries of the actuarial 13 present value of the determined and estimated future 14 compensation payments of the employer for claims incurred 15 while the member exercised the privilege of self-insurance, 16 using a discount rate of 4 percent. The employer shall provide 17 such an opinion at 6-month intervals thereafter until such 18 time as the latest opinion shows no remaining value of claims. 19 With each such opinion, the employer shall deposit with the 20 department division a qualifying security deposit in an amount 21 equal to the value certified by the actuary. The association 22 has a cause of action against an employer, and against any 23 successor of the employer, who fails to timely provide such 24 opinion or who fails to timely maintain the required security 25 deposit with the department division. The association shall 26 recover a judgment in the amount of the actuarial present 27 value of the determined and estimated future compensation 28 payments of the employer for claims incurred while the 29 employer exercised the privilege of self-insurance, together 30 with attorney's fees. For purposes of this section, the 31 successor of an employer means any person, business entity, or 117 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 group of persons or business entities, which holds or acquires 2 legal or beneficial title to the majority of the assets or the 3 majority of the shares of the employer. 4 4. A qualifying security deposit shall consist, at the 5 option of the employer, of: 6 a. Surety bonds, in a form and containing such terms 7 as prescribed by the department division, issued by a 8 corporation surety authorized to transact surety business by 9 the Department of Insurance, and whose policyholders' and 10 financial ratings, as reported in A.M. Best's Insurance 11 Reports, Property-Liability, are not less than "A" and "V", 12 respectively. 13 b. Certificates of deposit with financial 14 institutions, the deposits of which are insured through the 15 Federal Deposit Insurance Corporation or the Federal Savings 16 and Loan Insurance Corporation. 17 c. Irrevocable letters of credit in favor of the 18 department division issued by financial institutions described 19 in sub-subparagraph b. 20 d. Direct obligations of the United States Treasury 21 backed by the full faith and credit of the United States. 22 e. Securities issued by this state and backed by the 23 full faith and credit of this state. 24 5. The qualifying security deposit shall be held by 25 the department division, or by a depository authorized by the 26 department division, exclusively for the benefit of workers' 27 compensation claimants. The security shall not be subject to 28 assignment, execution, attachment, or any legal process 29 whatsoever, except as necessary to guarantee the payment of 30 compensation under this chapter. No surety bond may be 31 terminated, and no other qualifying security may be allowed to 118 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 lapse, without 90 days' prior notice to the department 2 division and deposit by the self-insuring employer of other 3 qualifying security of equal value within 10 business days 4 after such notice. Failure to provide such notice or failure 5 to timely provide qualifying replacement security after such 6 notice shall constitute grounds for the department division to 7 call or sue upon the surety bond, or to act with respect to 8 other pledged security in any manner necessary to preserve its 9 value for the purposes intended by this section, including the 10 exercise of rights under a letter of credit, the sale of any 11 security at then prevailing market rates, or the withdrawal of 12 any funds represented by any certificate of deposit forming 13 part of the qualifying security deposit. The department 14 division may specify by rule the amount of the qualifying 15 security deposit required prior to authorizing an employer to 16 self-insure and the amount of net worth required for an 17 employer to qualify for authorization to self-insure; 18 (c) By entering into a contract with a public utility 19 under an approved utility-provided self-insurance program as 20 set forth in s. 440.571 in effect as of July 1, 1983. The 21 department division shall adopt rules to implement this 22 paragraph; 23 (d) By entering into an interlocal agreement with 24 other local governmental entities to create a local government 25 pool pursuant to s. 624.4622; 26 (e) In accordance with s. 440.135, an employer, other 27 than a local government unit, may elect coverage under the 28 Workers' Compensation Law and retain the benefit of the 29 exclusiveness of liability provided in s. 440.11 by obtaining 30 a 24-hour health insurance policy from an authorized property 31 and casualty insurance carrier or an authorized life and 119 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 health insurance carrier, or by participating in a fully or 2 partially self-insured 24-hour health plan that is established 3 or maintained by or for two or more employers, so long as the 4 law of this state is not preempted by the Employee Retirement 5 Income Security Act of 1974, Pub. L. No. 93-406, or any 6 amendment to that law, which policy or plan must provide, for 7 at least occupational injuries and illnesses, medical benefits 8 that are comparable to those required by this chapter. A local 9 government unit, as a single employer, in accordance with s. 10 440.135, may participate in the 24-hour health insurance 11 coverage plan referenced in this paragraph. Disputes and 12 remedies arising under policies issued under this section are 13 governed by the terms and conditions of the policies and under 14 the applicable provisions of the Florida Insurance Code and 15 rules adopted under the insurance code and other applicable 16 laws of this state. The 24-hour health insurance policy may 17 provide for health care by a health maintenance organization 18 or a preferred provider organization. The premium for such 19 24-hour health insurance policy shall be paid entirely by the 20 employer. The 24-hour health insurance policy may use 21 deductibles and coinsurance provisions that require the 22 employee to pay a portion of the actual medical care received 23 by the employee. If an employer obtains a 24-hour health 24 insurance policy or self-insured plan to secure payment of 25 compensation as to medical benefits, the employer must also 26 obtain an insurance policy or policies that provide indemnity 27 benefits as follows: 28 1. If indemnity benefits are provided only for 29 occupational-related disability, such benefits must be 30 comparable to those required by this chapter. 31 2. If indemnity benefits are provided for both 120 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 occupational-related and nonoccupational-related disability, 2 such benefits must be comparable to those required by this 3 chapter, except that they must be based on 60 percent of the 4 average weekly wages. 5 3. The employer shall provide for each of its 6 employees life insurance with a death benefit of $100,000. 7 4. Policies providing coverage under this subsection 8 must use prescribed and acceptable underwriting standards, 9 forms, and policies approved by the Department of Insurance. 10 If any insurance policy that provides coverage under this 11 section is canceled, terminated, or nonrenewed for any reason, 12 the cancellation, termination, or nonrenewal is ineffective 13 until the self-insured employer or insurance carrier or 14 carriers notify the division and the Department of Insurance 15 of the cancellation, termination, or nonrenewal, and until the 16 department division has actually received the notification. 17 The department division must be notified of replacement 18 coverage under a workers' compensation and employer's 19 liability insurance policy or plan by the employer prior to 20 the effective date of the cancellation, termination, or 21 nonrenewal; or 22 (f) By entering into a contract with an individual 23 self-insurer under an approved individual 24 self-insurer-provided self-insurance program as set forth in 25 s. 624.46225. The department division may adopt rules to 26 implement this subsection. 27 (2)(a) The department division shall adopt rules by 28 which businesses may become qualified to provide underwriting 29 claims-adjusting, loss control, and safety engineering 30 services to self-insurers. 31 (b) The department division shall adopt rules 121 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 requiring self-insurers to file any reports necessary to 2 fulfill the requirements of this chapter. Any self-insurer who 3 fails to file any report as prescribed by the rules adopted by 4 the department division shall be subject to a civil penalty 5 not to exceed $100 for each such failure. 6 (3)(a) The license of any stock company or mutual 7 company or association or exchange authorized to do insurance 8 business in the state shall for good cause, upon 9 recommendation of the division, be suspended or revoked by the 10 Department of Insurance. No suspension or revocation shall 11 affect the liability of any carrier already incurred. 12 (b) The department division shall suspend or revoke 13 any authorization to a self-insurer for good cause, as defined 14 by rule of the department division. No suspension or 15 revocation shall affect the liability of any self-insurer 16 already incurred. 17 (c) Violation of s. 440.381 by a self-insurance fund 18 shall result in the imposition of a fine not to exceed $1,000 19 per audit if the self-insurance fund fails to act on said 20 audits by correcting errors in employee classification or 21 accepted applications for coverage where it knew employee 22 classifications were incorrect. Such fines shall be levied by 23 the department division and deposited into the Workers' 24 Compensation Administration Trust Fund. 25 Section 37. Subsections (3) and (7) of section 26 440.381, Florida Statutes, are amended to read: 27 440.381 Application for coverage; reporting payroll; 28 payroll audit procedures; penalties.-- 29 (3) The department of Insurance and the Department of 30 Labor and Employment Security shall establish by rule minimum 31 requirements for audits of payroll and classifications in 122 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 order to ensure that the appropriate premium is charged for 2 workers' compensation coverage. The rules shall ensure that 3 audits performed by both carriers and employers are adequate 4 to provide that all sources of payments to employees, 5 subcontractors, and independent contractors have been reviewed 6 and that the accuracy of classification of employees has been 7 verified. The rules shall provide that employers in all 8 classes other than the construction class be audited not less 9 frequently than biennially and may provide for more frequent 10 audits of employers in specified classifications based on 11 factors such as amount of premium, type of business, loss 12 ratios, or other relevant factors. In no event shall employers 13 in the construction class, generating more than the amount of 14 premium required to be experience rated, be audited less than 15 annually. The annual audits required for construction classes 16 shall consist of physical onsite audits. Payroll verification 17 audit rules must include, but need not be limited to, the use 18 of state and federal reports of employee income, payroll and 19 other accounting records, certificates of insurance maintained 20 by subcontractors, and duties of employees. 21 (7) If an employee suffering a compensable injury was 22 not reported as earning wages on the last quarterly earnings 23 report filed with the Division of Unemployment Compensation 24 before the accident, the employer shall indemnify the carrier 25 for all workers' compensation benefits paid to or on behalf of 26 the employee unless the employer establishes that the employee 27 was hired after the filing of the quarterly report, in which 28 case the employer and employee shall attest to the fact that 29 the employee was employed by the employer at the time of the 30 injury. It shall be the responsibility of the Division of 31 Workers' Compensation to collect all necessary data so as to 123 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 enable it to notify the carrier of the name of an injured 2 worker who was not reported as earning wages on the last 3 quarterly earnings report. The division is hereby authorized 4 to release such records to the carrier which will enable the 5 carrier to seek reimbursement as provided under this 6 subsection. Failure of the employer to indemnify the insurer 7 within 21 days after demand by the insurer shall constitute 8 grounds for the insurer to immediately cancel coverage. Any 9 action for indemnification brought by the carrier shall be 10 cognizable in the circuit court having jurisdiction where the 11 employer or carrier resides or transacts business. The 12 insurer shall be entitled to a reasonable attorney's fee if it 13 recovers any portion of the benefits paid in such action. 14 Section 38. Section 440.385, Florida Statutes, is 15 amended to read: 16 440.385 Florida Self-Insurers Guaranty Association, 17 Incorporated.-- 18 (1) CREATION OF ASSOCIATION.-- 19 (a) There is created a nonprofit corporation to be 20 known as the "Florida Self-Insurers Guaranty Association, 21 Incorporated," hereinafter referred to as "the association." 22 Upon incorporation of the association, all individual 23 self-insurers as defined in ss. 440.02(23)(a) and 24 440.38(1)(b), other than individual self-insurers which are 25 public utilities or governmental entities, shall be members of 26 the association as a condition of their authority to 27 individually self-insure in this state. The association 28 corporation shall perform its functions under a plan of 29 operation as established and approved under subsection (5) and 30 shall exercise its powers and duties through a board of 31 directors as established under subsection (2). The association 124 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 corporation shall have those powers granted or permitted 2 associations corporations not for profit, as provided in 3 chapter 617. The activities of the association shall be 4 subject to review by the Department of Insurance. The 5 Department of Insurance shall have oversight responsibility as 6 set forth in this act. The association is specifically 7 authorized to enter into agreements with the State of Florida 8 to perform specified services. 9 (b) A member may voluntarily withdraw from the 10 association when the member voluntarily terminates the 11 self-insurance privilege and pays all assessments due to the 12 date of such termination. However, the withdrawing member 13 shall continue to be bound by the provisions of this section 14 relating to the period of his or her membership and any claims 15 charged pursuant thereto. The withdrawing member who is a 16 member on or after January 1, 1991, shall also be required to 17 provide to the association division upon withdrawal, and at 18 12-month intervals thereafter, satisfactory proof, including, 19 if requested by the association, a report of known and 20 potential claims certified by a member of the American Academy 21 of Actuaries, that it continues to meet the standards of s. 22 440.38(1)(b)1. in relation to claims incurred while the 23 withdrawing member exercised the privilege of self-insurance. 24 Such reporting shall continue until the withdrawing member 25 demonstrates to satisfies the association division that there 26 is no remaining value to claims incurred while the withdrawing 27 member was self-insured. If a withdrawing member fails or 28 refuses to timely provide an actuarial report to the 29 association, the association may obtain an order from a 30 circuit court requiring the member to produce such a report 31 and ordering such other relief as the court determines 125 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 appropriate. The association shall be entitled to recover all 2 reasonable costs and attorney's fees expended in such 3 proceedings. If during this reporting period the withdrawing 4 member fails to meet the standards of s. 440.38(1)(b)1., the 5 withdrawing member who is a member on or after January 1, 6 1991, shall thereupon, and at 6-month intervals thereafter, 7 provide to the division and the association the certified 8 opinion of an independent actuary who is a member of the 9 American Academy Society of Actuaries of the actuarial present 10 value of the determined and estimated future compensation 11 payments of the member for claims incurred while the member 12 was a self-insurer, using a discount rate of 4 percent. With 13 each such opinion, the withdrawing member shall deposit with 14 the association division security in an amount equal to the 15 value certified by the actuary and of a type that is 16 acceptable for qualifying security deposits under s. 17 440.38(1)(b). The withdrawing member shall continue to 18 provide such opinions and to provide such security until such 19 time as the latest opinion shows no remaining value of claims. 20 The association has a cause of action against a withdrawing 21 member, and against any successor of a withdrawing member, who 22 fails to timely provide the required opinion or who fails to 23 maintain the required deposit with the division. The 24 association shall be entitled to recover a judgment in the 25 amount of the actuarial present value of the determined and 26 estimated future compensation payments of the withdrawing 27 member for claims incurred during the time that the 28 withdrawing member exercised the privilege of self-insurance, 29 together with reasonable attorney's fees. The association is 30 also entitled to recover reasonable attorney's fees in any 31 action to compel production of any actuarial report required 126 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 by this statute. For purposes of this section, the successor 2 of a withdrawing member means any person, business entity, or 3 group of persons or business entities, which holds or acquires 4 legal or beneficial title to the majority of the assets or the 5 majority of the shares of the withdrawing member. 6 (2) BOARD OF DIRECTORS.--The board of directors of the 7 association shall consist of nine persons and shall be 8 organized as established in the plan of operation. All board 9 members shall be experienced in self-insurance in this state. 10 With respect to initial appointments, the Secretary of Labor 11 and Employment Security shall, by July 15, 1982, approve and 12 appoint to the board persons who are experienced with 13 self-insurance in this state and who are recommended by the 14 individual self-insurers in this state required to become 15 members of the association pursuant to the provisions of 16 paragraph (1)(a). In the event the secretary finds that any 17 person so recommended does not have the necessary 18 qualifications for service on the board and a majority of the 19 board has been appointed, the secretary shall request the 20 directors thus far approved and appointed to recommend another 21 person for appointment to the board. Each director shall serve 22 for a 4-year term and may be reappointed. Appointments after 23 March 21, 2001, other than initial appointments shall be made 24 by the Insurance Commissioner Secretary of Labor and 25 Employment Security upon recommendation of members of the 26 association. Any vacancy on the board shall be filled for the 27 remaining period of the term in the same manner as 28 appointments other than initial appointments are made. Each 29 director shall be reimbursed for expenses incurred in carrying 30 out the duties of the board on behalf of the association. 31 (3) POWERS AND DUTIES.-- 127 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (a) Upon creation of the Insolvency Fund pursuant to 2 the provisions of subsection (4), the association is obligated 3 for payment of compensation under this chapter to insolvent 4 members' employees resulting from incidents and injuries 5 existing prior to the member becoming an insolvent member and 6 from incidents and injuries occurring within 30 days after the 7 member has become an insolvent member, provided the incidents 8 giving rise to claims for compensation under this chapter 9 occur during the year in which such insolvent member is a 10 member of the guaranty fund and was assessable pursuant to the 11 plan of operation, and provided the employee makes timely 12 claim for such payments according to procedures set forth by a 13 court of competent jurisdiction over the delinquency or 14 bankruptcy proceedings of the insolvent member. Such 15 obligation includes only that amount due the injured worker or 16 workers of the insolvent member under this chapter. In no 17 event is the association obligated to a claimant in an amount 18 in excess of the obligation of the insolvent member. The 19 association shall be deemed the insolvent employer for 20 purposes of this chapter to the extent of its obligation on 21 the covered claims and, to such extent, shall have all rights, 22 duties, and obligations of the insolvent employer as if the 23 employer had not become insolvent. However, in no event shall 24 the association be liable for any penalties or interest. 25 (b) The association may: 26 1. Employ or retain such persons as are necessary to 27 handle claims and perform other duties of the association. 28 2. Borrow funds necessary to effect the purposes of 29 this section in accord with the plan of operation. 30 3. Sue or be sued. 31 4. Negotiate and become a party to such contracts as 128 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 are necessary to carry out the purposes of this section. 2 5. Purchase such reinsurance as is determined 3 necessary pursuant to the plan of operation. 4 6. Review all applicants for membership in the 5 association to determine whether the applicant is qualified 6 for membership under the law. The association shall recommend 7 to the Department of Insurance that the application be 8 accepted or rejected based on the criteria set forth in s. 9 440.38(1)(b). The department shall approve or disapprove the 10 application. Prior to a final determination by the Division of 11 Workers' Compensation as to whether or not to approve any 12 applicant for membership in the association, the association 13 may issue opinions to the division concerning any applicant, 14 which opinions shall be considered by the division prior to 15 any final determination. 16 7. Collect and review financial information from 17 employers and make recommendations to the Department of 18 Insurance regarding the appropriate security deposit and 19 reinsurance amounts necessary for an employer to demonstrate 20 that it has the financial strength necessary to assure the 21 timely payment of all current and future claims. The 22 association may audit and examine an employer to verify the 23 financial strength of its current and former members. If the 24 association determines that a current or former self-insured 25 employer does not have the financial strength necessary to 26 assure the timely payment of all current and estimated future 27 claims, the association may recommend to the department that 28 the department: 29 a. Revoke the employer's self-insurance privilege. 30 b. Require the employer to provide a certified opinion 31 of an independent actuary who is a member of the American 129 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Academy of Actuaries as to the actuarial present value of the 2 employer's estimated current and future compensation payments, 3 using a 4-percent discount rate. 4 c. Require an increase in the employer's security 5 deposit in an amount determined by the association to be 6 necessary to assure payment of compensation claims. The 7 department shall act on such recommendations. The association 8 has a cause of action against an employer, and against any 9 successor of an employer, who fails to provide an additional 10 security deposit required by the department. The association 11 shall recover a judgment in the amount of the requested 12 additional security deposit together with reasonable 13 attorney's fees. For the purposes of this section, the 14 successor of an employer is any person, business entity, or 15 group of persons or business entities that holds or acquires 16 legal or beneficial title to the majority of the assets or the 17 majority of the shares of the employer. 18 8.7. Charge fees to any member of the association to 19 cover the actual costs of examining the financial and safety 20 conditions of that member. 21 9.8. Charge an applicant for membership in the 22 association a fee sufficient to cover the actual costs of 23 examining the financial condition of the applicant. 24 10. Implement any and all procedures necessary to 25 ensure compliance with regulatory actions taken by the 26 department. 27 (c)1. To the extent necessary to secure funds for the 28 payment of covered claims and also to pay the reasonable costs 29 to administer them, the association, subject to approval by 30 the Department of Insurance Labor and Employment Security, 31 upon certification of the board of directors, shall levy 130 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 assessments based on the annual written normal premium each 2 employer would have paid had the employer not been 3 self-insured. Every assessment shall be made as a uniform 4 percentage of the figure applicable to all individual 5 self-insurers, provided that the assessment levied against any 6 self-insurer in any one year shall not exceed 1 percent of the 7 annual written normal premium during the calendar year 8 preceding the date of the assessment. Assessments shall be 9 remitted to and administered by the board of directors in the 10 manner specified by the approved plan. Each employer so 11 assessed shall have at least 30 days' written notice as to the 12 date the assessment is due and payable. The association shall 13 levy assessments against any newly admitted member of the 14 association so that the basis of contribution of any newly 15 admitted member is the same as previously admitted members, 16 provision for which shall be contained in the plan of 17 operation. 18 2. If, in any one year, funds available from such 19 assessments, together with funds previously raised, are not 20 sufficient to make all the payments or reimbursements then 21 owing, the funds available shall be prorated, and the unpaid 22 portion shall be paid as soon thereafter as sufficient 23 additional funds become available. 24 3. Funds may be allocated or paid from the Workers' 25 Compensation Administration Trust Fund to contract with the 26 association to perform services required by law. However, no 27 state funds of any kind shall be allocated or paid to the 28 association or any of its accounts for payment of covered 29 claims or related expenses except those state funds accruing 30 to the association by and through the assignment of rights of 31 an insolvent employer. The department shall not levy any 131 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 assessment on the Florida Self-Insurance Guaranty Association. 2 (4) INSOLVENCY FUND.--Upon the adoption of a plan of 3 operation or the adoption of rules by the Department of Labor 4 and Employment Security pursuant to subsection (5), there 5 shall be created an Insolvency Fund to be managed by the 6 association. 7 (a) The Insolvency Fund is created for purposes of 8 meeting the obligations of insolvent members incurred while 9 members of the association and after the exhaustion of any 10 security deposit bond, as required under this chapter. 11 However, if such security deposit bond, surety, or reinsurance 12 policy is payable to the Florida Self-Insurers Guaranty 13 Association, the association shall commence to provide 14 benefits out of the Insolvency Fund and be reimbursed from the 15 security deposit bond, surety, or reinsurance policy. The 16 method of operation of the Insolvency Fund shall be defined in 17 the plan of operation as provided in subsection (5). 18 (b) The department shall have the authority to audit 19 the financial soundness of the Insolvency Fund annually. 20 (c) The department may offer certain amendments to the 21 plan of operation to the board of directors of the association 22 for purposes of assuring the ongoing financial soundness of 23 the Insolvency Fund and its ability to meet the obligations of 24 this section. 25 (d) The department actuary may make certain 26 recommendations to improve the orderly payment of claims. 27 (5) PLAN OF OPERATION.--The association shall operate 28 pursuant to a plan of operation approved by the board of 29 directors. The plan of operation in effect on March 1, 2001, 30 and approved by the Department of Labor and Employment 31 Security shall remain in effect. However, any amendments to 132 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the plan shall not become effective until approved by the 2 Department of Insurance. By September 15, 1982, the board of 3 directors shall submit to the Department of Labor and 4 Employment Security a proposed plan of operation for the 5 administration of the association and the Insolvency Fund. 6 (a) The purpose of the plan of operation shall be to 7 provide the association and the board of directors with the 8 authority and responsibility to establish the necessary 9 programs and to take the necessary actions to protect against 10 the insolvency of a member of the association. In addition, 11 the plan shall provide that the members of the association 12 shall be responsible for maintaining an adequate Insolvency 13 Fund to meet the obligations of insolvent members provided for 14 under this act and shall authorize the board of directors to 15 contract and employ those persons with the necessary expertise 16 to carry out this stated purpose. By January 1, 2002, the 17 board of directors shall submit to the Department of Insurance 18 a proposed plan of operation for the administration of the 19 association. The Department of Insurance shall approve the 20 plan by order, consistent with this act. The Department of 21 Insurance shall approve any amendments to the plan, by order 22 consistent with this act, and determined appropriate to carry 23 out the duties and responsibilities of the association. 24 (b) The plan of operation, and any amendments thereto, 25 shall take effect upon approval in writing by the department. 26 If the board of directors fails to submit a plan by September 27 15, 1982, or fails to make required amendments to the plan 28 within 30 days thereafter, the department shall promulgate 29 such rules as are necessary to effectuate the provisions of 30 this subsection. Such rules shall continue in force until 31 modified by the department or superseded by a plan submitted 133 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 by the board of directors and approved by the department. 2 (b)(c) All member employers shall comply with the plan 3 of operation. 4 (c)(d) The plan of operation shall: 5 1. Establish the procedures whereby all the powers and 6 duties of the association under subsection (3) will be 7 performed. 8 2. Establish procedures for handling assets of the 9 association. 10 3. Establish the amount and method of reimbursing 11 members of the board of directors under subsection (2). 12 4. Establish procedures by which claims may be filed 13 with the association and establish acceptable forms of proof 14 of covered claims. Notice of claims to the receiver or 15 liquidator of the insolvent employer shall be deemed notice to 16 the association or its agent, and a list of such claims shall 17 be submitted periodically to the association or similar 18 organization in another state by the receiver or liquidator. 19 5. Establish regular places and times for meetings of 20 the board of directors. 21 6. Establish procedures for records to be kept of all 22 financial transactions of the association and its agents and 23 the board of directors. 24 7. Provide that any member employer aggrieved by any 25 final action or decision of the association may appeal to the 26 department within 30 days after the action or decision. 27 8. Establish the procedures whereby recommendations of 28 candidates for the board of directors shall be submitted to 29 the department. 30 9. Contain additional provisions necessary or proper 31 for the execution of the powers and duties of the association. 134 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (d)(e) The plan of operation may provide that any or 2 all of the powers and duties of the association, except those 3 specified under subparagraphs (c)(d)1. and 2., be delegated to 4 a corporation, association, or other organization which 5 performs or will perform functions similar to those of this 6 association or its equivalent in two or more states. Such a 7 corporation, association, or organization shall be reimbursed 8 as a servicing facility would be reimbursed and shall be paid 9 for its performance of any other functions of the association. 10 A delegation of powers or duties under this subsection shall 11 take effect only with the approval of both the board of 12 directors and the department and may be made only to a 13 corporation, association, or organization which extends 14 protection which is not substantially less favorable and 15 effective than the protection provided by this section. 16 (6) POWERS AND DUTIES OF DEPARTMENT OF INSURANCE LABOR 17 AND EMPLOYMENT SECURITY.-- 18 (a) The department shall: 19 1. review recommendations of the association 20 concerning whether current or former self-insured employers or 21 members of the association have the financial strength 22 necessary to ensure the timely payment of all current and 23 estimated future claims. If the association determines an 24 employer does not have the financial strength necessary to 25 ensure the timely payment of all current and future claims and 26 recommends action pursuant to paragraph (3)(b), the Department 27 of Insurance may take such action as necessary to order the 28 employer to comply with the recommendation. Notify the 29 association of the existence of an insolvent employer not 30 later than 3 days after it receives notice of the 31 determination of insolvency. 135 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (b) The department may: 2 1. Contract with the association for services, which 3 may include, but not be limited to, the following: 4 a. Process applications for self-insurance. 5 b. Collect and review financial statements and loss 6 reserve information from individual self-insurers. 7 c. Collect and maintain files for original security 8 deposit documents and reinsurance policies from individual 9 self-insurers and, if necessary, perfect security interests in 10 security deposits. 11 d. Process compliance documentation for individual 12 self-insurers and provide same to the Department of Insurance. 13 e. Collect all data necessary to calculate annual 14 premium for all individual self-insurers, including individual 15 self-insurers that are public utilities or governmental 16 entities, and provide such calculated annual premium to the 17 Department of Insurance for assessment purposes. 18 f. Inspect and audit annually, if necessary, the 19 payroll and other records of each individual self-insurer, 20 including individual self-insurers that are public utilities 21 or governmental entities, in order to determine the wages paid 22 by each individual self-insurer, the premium such individual 23 self-insurer would have to pay if insured, and all payments of 24 compensation made by such individual self-insurer during each 25 prior period with the results of such audit provided to the 26 Department of Insurance. For the purposes of this section, 27 the payroll records of each individual self-insurer shall be 28 open to inspection and audit by the association, the 29 department, or their authorized representative, during regular 30 business hours. 31 g. Provide legal representation to implement the 136 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 administration and audit of individual self-insurers and make 2 recommendations regarding prosecution of any administrative or 3 legal proceedings necessitated by the department's regulation 4 of the individual self-insurers. 5 2. Contract with an attorney or attorneys recommended 6 by the association for representation of the department in any 7 administrative or legal proceedings necessitated by the 8 recommended regulation of the individual self-insurers. Upon 9 request of the board of directors, provide the association 10 with a statement of the annual normal premiums of each member 11 employer. 12 (b) The department may: 13 3.1. Direct the association to require from each 14 individual self-insurer, at such time and in accordance with 15 such regulations as the department prescribes, reports in 16 respect to wages paid, the amount of premiums such individual 17 self-insurer would have to pay if insured, and all payments of 18 compensation made by such individual self-insurer during each 19 prior period and determine the amounts paid by each individual 20 self-insurer and the amounts paid by all individual 21 self-insurers during such period. For the purposes of this 22 section, the payroll records of each individual self-insurer 23 shall be open to annual inspection and audit by the 24 association, the department, or their authorized 25 representative, during regular business hours, and if any 26 audit of such records of an individual self-insurer discloses 27 a deficiency in the amount reported to the association or in 28 the amounts paid to the Department of Insurance by an 29 individual self-insurer for its assessment for the Workers' 30 Compensation Administration Trust Fund, the Department of 31 Insurance or the association may assess the cost of such audit 137 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 against the individual self-insurer. 2 4. Require that the association notify the member 3 employers and any other interested parties of the 4 determination of insolvency and of their rights under this 5 section. Such notification shall be by mail at the last known 6 address thereof when available; but, if sufficient information 7 for notification by mail is not available, notice by 8 publication in a newspaper of general circulation shall be 9 sufficient. 10 5.2. Suspend or revoke the authority of any member 11 employer failing to pay an assessment when due or failing to 12 comply with the plan of operation to self-insure in this 13 state. As an alternative, the department may levy a fine on 14 any member employer failing to pay an assessment when due. 15 Such fine shall not exceed 5 percent of the unpaid assessment 16 per month, except that no fine shall be less than $100 per 17 month. 18 3. Revoke the designation of any servicing facility if 19 the department finds that claims are being handled 20 unsatisfactorily. 21 (7) EFFECT OF PAID CLAIMS.-- 22 (a) Any person who recovers from the association under 23 this section shall be deemed to have assigned his or her 24 rights to the association to the extent of such recovery. 25 Every claimant seeking the protection of this section shall 26 cooperate with the association to the same extent as such 27 person would have been required to cooperate with the 28 insolvent member. The association shall have no cause of 29 action against the employee of the insolvent member for any 30 sums the association has paid out, except such causes of 31 action as the insolvent member would have had if such sums had 138 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 been paid by the insolvent member. In the case of an 2 insolvent member operating on a plan with assessment 3 liability, payments of claims by the association shall not 4 operate to reduce the liability of the insolvent member to the 5 receiver, liquidator, or statutory successor for unpaid 6 assessments. 7 (b) The receiver, liquidator, or statutory successor 8 of an insolvent member shall be bound by settlements of 9 covered claims by the association or a similar organization in 10 another state. The court having jurisdiction shall grant such 11 claims priority against the assets of the insolvent member 12 equal to that to which the claimant would have been entitled 13 in the absence of this section. The expense of the association 14 or similar organization in handling claims shall be accorded 15 the same priority as the expenses of the liquidator. 16 (c) The association shall file periodically with the 17 receiver or liquidator of the insolvent member statements of 18 the covered claims paid by the association and estimates of 19 anticipated claims on the association, which shall preserve 20 the rights of the association against the assets of the 21 insolvent member. 22 (8) NOTIFICATION PREVENTION OF INSOLVENCIES.--To aid 23 in the detection and prevention of employer insolvencies: 24 (a) upon determination by majority vote that any 25 member employer may be insolvent or in a financial condition 26 hazardous to the employees thereof or to the public, it shall 27 be the duty of the board of directors to notify the Department 28 of Insurance Labor and Employment Security of any information 29 indicating such condition. 30 (b) The board of directors may, upon majority vote, 31 request that the department determine the condition of any 139 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 member employer which the board in good faith believes may no 2 longer be qualified to be a member of the association. Within 3 30 days of the receipt of such request or, for good cause 4 shown, within a reasonable time thereafter, the department 5 shall make such determination and shall forthwith advise the 6 board of its findings. Each request for a determination shall 7 be kept on file by the department, but the request shall not 8 be open to public inspection prior to the release of the 9 determination to the public. 10 (c) It shall also be the duty of the department to 11 report to the board of directors when it has reasonable cause 12 to believe that a member employer may be in such a financial 13 condition as to be no longer qualified to be a member of the 14 association. 15 (d) The board of directors may, upon majority vote, 16 make reports and recommendations to the department upon any 17 matter which is germane to the solvency, liquidation, 18 rehabilitation, or conservation of any member employer. Such 19 reports and recommendations shall not be considered public 20 documents. 21 (e) The board of directors may, upon majority vote, 22 make recommendations to the department for the detection and 23 prevention of employer insolvencies. 24 (f) The board of directors shall, at the conclusion of 25 any member's insolvency in which the association was obligated 26 to pay covered claims, prepare a report on the history and 27 cause of such insolvency, based on the information available 28 to the association, and shall submit such report to the 29 department. 30 (9) EXAMINATION OF THE ASSOCIATION.--The association 31 shall be subject to examination and regulation by the 140 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Department of Insurance Labor and Employment Security. No 2 later than March 30 of each year, the board of directors shall 3 submit an audited a financial statement report for the 4 preceding calendar year in a form approved by the department. 5 (10) IMMUNITY.--There shall be no liability on the 6 part of, and no cause of action of any nature shall arise 7 against, any member employer, the association or its agents or 8 employees, the board of directors, or the Department of 9 Insurance Labor and Employment Security or its representatives 10 for any action taken by them in the performance of their 11 powers and duties under this section. 12 (11) STAY OF PROCEEDINGS; REOPENING OF DEFAULT 13 JUDGMENTS.--All proceedings in which an insolvent employer is 14 a party, or is obligated to defend a party, in any court or 15 before any quasi-judicial body or administrative board in this 16 state shall be stayed for up to 6 months, or for such 17 additional period from the date the employer becomes an 18 insolvent member, as is deemed necessary by a court of 19 competent jurisdiction to permit proper defense by the 20 association of all pending causes of action as to any covered 21 claims arising from a judgment under any decision, verdict, or 22 finding based on the default of the insolvent member. The 23 association, either on its own behalf or on behalf of the 24 insolvent member, may apply to have such judgment, order, 25 decision, verdict, or finding set aside by the same court or 26 administrator that made such judgment, order, decision, 27 verdict, or finding and shall be permitted to defend against 28 such claim on the merits. If requested by the association, 29 the stay of proceedings may be shortened or waived. 30 (12) LIMITATION ON CERTAIN ACTIONS.--Notwithstanding 31 any other provision of this chapter, a covered claim, as 141 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 defined herein, with respect to which settlement is not 2 effected and pursuant to which suit is not instituted against 3 the insured of an insolvent member or the association within 1 4 year after the deadline for filing claims with the receiver of 5 the insolvent member, or any extension of the deadline, shall 6 thenceforth be barred as a claim against the association. 7 (13) CORPORATE INCOME TAX CREDIT.--Any sums acquired 8 by a member by refund, dividend, or otherwise from the 9 association shall be payable within 30 days of receipt to the 10 Department of Insurance for deposit with the Treasurer to the 11 credit of the General Revenue Fund. All provisions of chapter 12 220 relating to penalties and interest on delinquent corporate 13 income tax payments apply to payments due under this 14 subsection. 15 Section 39. Subsections (2), (3), and (4) of section 16 440.386, Florida Statutes, are amended to read: 17 440.386 Individual self-insurers' insolvency; 18 conservation; liquidation.-- 19 (2) COMMENCEMENT OF DELINQUENCY PROCEEDING.--The 20 Department of Insurance or the Florida Self-Insurers Guaranty 21 Association, Incorporated, may commence a delinquency any such 22 proceeding by application to the court for an order directing 23 the individual self-insurer to show cause why the department 24 or association should not have the relief prayed for. The 25 Florida Self-Insurers Guaranty Association, Incorporated, may 26 petition the department to commence such proceedings, and upon 27 receipt of such petition, the department shall commence such 28 proceeding. On the return of such order to show cause, and 29 after a full hearing, the court shall either deny the 30 application or grant the application, together with such other 31 relief as the nature of the case and the interests of the 142 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 claimants, creditors, stockholders, members, subscribers, or 2 public may require. The Department of Insurance and the 3 association shall give Florida Self-Insurers Guaranty 4 Association, Incorporated, shall be given reasonable written 5 notice to each other by the department of all hearings which 6 pertain to an adjudication of insolvency of a member 7 individual self-insurer. 8 (3) GROUNDS FOR LIQUIDATION.--The Department of 9 Insurance or the association may apply to the court for an 10 order appointing a receiver and directing the receiver to 11 liquidate the business of a domestic individual self-insurer 12 if such individual self-insurer is insolvent. Florida 13 Self-Insurers Guaranty Association, Incorporated, may petition 14 the department to apply to the court for such order. Upon 15 receipt of such petition, the department shall apply to the 16 court for such order. 17 (4) GROUNDS FOR CONSERVATION; FOREIGN INDIVIDUAL 18 SELF-INSURERS.-- 19 (a) The Department of Insurance or the association may 20 apply to the court for an order appointing a receiver or 21 ancillary receiver, and directing the receiver to conserve the 22 assets within this state, of a foreign individual self-insurer 23 if such individual self-insurer is insolvent. Florida 24 Self-Insurers Guaranty Association, Incorporated, may petition 25 the department to apply for such order, and, upon receipt of 26 such petition, the department shall apply to the court for 27 such order. 28 (b) An order to conserve the assets of an individual 29 self-insurer shall require the receiver forthwith to take 30 possession of the property of the receiver within the state 31 and to conserve it, subject to the further direction of the 143 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 court. 2 Section 40. Section 440.40, Florida Statutes, is 3 amended to read: 4 440.40 Compensation notice.--Every employer who has 5 secured compensation under the provisions of this chapter 6 shall keep posted in a conspicuous place or places in and 7 about her or his place or places of business typewritten or 8 printed notices, in accordance with a form prescribed by the 9 department division, stating that such employer has secured 10 the payment of compensation in accordance with the provisions 11 of this chapter. Such notices shall contain the name and 12 address of the carrier, if any, with whom the employer has 13 secured payment of compensation and the date of the expiration 14 of the policy. The department division may by rule prescribe 15 the form of the notices and require carriers to provide the 16 notices to policyholders. 17 Section 41. Section 440.41, Florida Statutes, is 18 amended to read: 19 440.41 Substitution of carrier for employer.--In any 20 case where the employer is not a self-insurer, in order that 21 the liability for compensation imposed by this chapter may be 22 most effectively discharged by the employer, and in order that 23 the administration of this chapter in respect of such 24 liability may be facilitated, the department division shall by 25 regulation provide for the discharge, by the carrier for such 26 employer, of such obligations and duties of the employer in 27 respect of such liability, imposed by this chapter upon the 28 employer, as it considers proper in order to effectuate the 29 provisions of this chapter. For such purposes: 30 (1) Notice to or knowledge of an employer of the 31 occurrence of the injury shall be notice to or knowledge of 144 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the carrier. 2 (2) Jurisdiction of the employer by the judges of 3 compensation claims, the department division, or any court 4 under this chapter shall be jurisdiction of the carrier. 5 (3) Any requirement by the judges of compensation 6 claims, the department division, or any court under any 7 compensation order, finding, or decision shall be binding upon 8 the carrier in the same manner and to the same extent as upon 9 the employer. 10 Section 42. Subsection (3) of section 440.42, Florida 11 Statutes, is amended to read: 12 440.42 Insurance policies; liability.-- 13 (3) No contract or policy of insurance issued by a 14 carrier under this chapter shall expire or be canceled until 15 at least 30 days have elapsed after a notice of cancellation 16 has been sent to the department division and to the employer 17 in accordance with the provisions of s. 440.185(7). However, 18 when duplicate or dual coverage exists by reason of two 19 different carriers having issued policies of insurance to the 20 same employer securing the same liability, it shall be 21 presumed that only that policy with the later effective date 22 shall be in force and that the earlier policy terminated upon 23 the effective date of the latter. In the event that both 24 policies carry the same effective date, one of the policies 25 may be canceled instanter upon filing a notice of cancellation 26 with the department division and serving a copy thereof upon 27 the employer in such manner as the department division 28 prescribes by rule. The department division may by rule 29 prescribe the content of the notice of retroactive 30 cancellation and specify the time, place, and manner in which 31 the notice of cancellation is to be served. 145 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Section 43. Section 440.44, Florida Statutes, is 2 amended to read: 3 440.44 Workers' compensation; staff organization.-- 4 (1) INTERPRETATION OF LAW.--As a guide to the 5 interpretation of this chapter, the Legislature takes due 6 notice of federal social and labor acts and hereby creates an 7 agency to administer such acts passed for the benefit of 8 employees and employers in Florida industry, and desires to 9 meet the requirements of such federal acts wherever not 10 inconsistent with the Constitution and laws of Florida. 11 (2) INTENT.--It is the intent of the Legislature that 12 the department, the agency, and the Department of Education 13 division assume an active and forceful role in their its 14 administration of this act, so as to ensure that the system 15 operates efficiently and with maximum benefit to both 16 employers and employees. 17 (3) EXPENDITURES.--The department, the agency, the 18 Department of Education, division and the Chief Judge shall 19 make such expenditures, including expenditures for personal 20 services and rent at the seat of government and elsewhere, for 21 law books; for telephone services and WATS lines; for books of 22 reference, periodicals, equipment, and supplies; and for 23 printing and binding as may be necessary in the administration 24 of this chapter. All expenditures in the administration of 25 this chapter shall be allowed and paid as provided in s. 26 440.50 upon the presentation of itemized vouchers therefor 27 approved by the department, the agency, the Department of 28 Education, division or the Chief Judge. 29 (4) MERIT SYSTEM PRINCIPLE OF PERSONNEL 30 ADMINISTRATION.--Subject to the other provisions of this 31 chapter, the department, the agency, and the Department of 146 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Education are division is authorized to appoint, and prescribe 2 the duties and powers of, bureau chiefs, attorneys, 3 accountants, medical advisers, technical assistants, 4 inspectors, claims examiners, and such other employees as may 5 be necessary in the performance of its duties under this 6 chapter. 7 (5) OFFICE.--The department, the agency, the 8 Department of Education, division and the Chief Judge shall 9 maintain and keep open during reasonable business hours an 10 office, which shall be provided in the Capitol or some other 11 suitable building in the City of Tallahassee, for the 12 transaction of business under this chapter, at which office 13 the official records and papers shall be kept. The office 14 shall be furnished and equipped. The department, the agency 15 division, any judge of compensation claims, or the Chief Judge 16 may hold sessions and conduct hearings at any place within the 17 state. 18 (6) SEAL.--The division and, the Office of the Judges 19 of Compensation Claims judges of compensation claims, and the 20 Chief Judge shall have seals a seal upon which shall be 21 inscribed the words "State of Florida Department of Insurance 22 ...Seal" and the "Division of Administrative Hearings... 23 Seal." respectively. of Labor and Employment Security--Seal." 24 (7) DESTRUCTION OF OBSOLETE RECORDS.--The department 25 division is expressly authorized to provide by regulation for 26 and to destroy obsolete records of the department division and 27 commission. 28 (8) PROCEDURE.--In the exercise of their its duties 29 and functions requiring administrative hearings, the 30 department and the agency division shall proceed in accordance 31 with the Administrative Procedure Act. The authority of the 147 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 department and the agency division to issue orders resulting 2 from administrative hearings as provided for in this chapter 3 shall not infringe upon the jurisdiction of the judges of 4 compensation claims. 5 Section 44. Section 440.4416, Florida Statutes, is 6 hereby repealed. 7 Section 45. Subsection (1) of section 440.45, Florida 8 Statutes, is amended to read: 9 440.45 Office of the Judges of Compensation Claims.-- 10 (1) There is hereby created the Office of the Judges 11 of Compensation Claims within the Division of Administrative 12 Hearing of the Department of Management Services Department of 13 Labor and Employment Security. The Office of the Judges of 14 Compensation Claims shall be headed by a Chief Judge. The 15 Chief Judge shall be appointed by the Governor for a term of 4 16 years from a list of three names submitted by the statewide 17 nominating commission created under subsection (2). The Chief 18 Judge must possess the same qualifications for appointment as 19 a judge of compensation claims, and the procedure for 20 reappointment of the Chief Judge will be the same as for 21 reappointment of a judge of compensation claims. The office 22 shall be a separate budget entity and the Chief Judge shall be 23 its agency head for all purposes. The Division of 24 Administrative Hearings Department of Labor and Employment 25 Security shall provide administrative support and service to 26 the office to the extent requested by the Chief Judge but 27 shall not direct, supervise, or control the Office of the 28 Judges of Compensation Claims in any manner, including, but 29 not limited to, personnel, purchasing, budgetary matters, or 30 property transactions. The operating budget of the Office of 31 the Judges of Compensation Claims shall be paid out of the 148 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Workers' Compensation Administration Trust Fund established in 2 s. 440.50. 3 Section 46. Subsections (1), (2), (7), (8), (9), (10), 4 and (11) of section 440.49, Florida Statutes, are amended to 5 read: 6 440.49 Limitation of liability for subsequent injury 7 through Special Disability Trust Fund.-- 8 (1) LEGISLATIVE INTENT.--Whereas it is often difficult 9 for workers with disabilities to achieve employment or to 10 become reemployed following an injury, and it is the desire of 11 the Legislature to facilitate the return of these workers to 12 the workplace, it is the purpose of this section to encourage 13 the employment, reemployment, and accommodation of the 14 physically disabled by reducing an employer's insurance 15 premium for reemploying an injured worker, to decrease 16 litigation between carriers on apportionment issues, and to 17 protect employers from excess liability for compensation and 18 medical expense when an injury to a physically disabled worker 19 merges with, aggravates, or accelerates her or his preexisting 20 permanent physical impairment to cause either a greater 21 disability or permanent impairment, or an increase in 22 expenditures for temporary compensation or medical benefits 23 than would have resulted from the injury alone. The department 24 division or the administrator shall inform all employers of 25 the existence and function of the fund and shall interpret 26 eligibility requirements liberally. However, this subsection 27 shall not be construed to create or provide any benefits for 28 injured employees or their dependents not otherwise provided 29 by this chapter. The entitlement of an injured employee or her 30 or his dependents to compensation under this chapter shall be 31 determined without regard to this subsection, the provisions 149 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 of which shall be considered only in determining whether an 2 employer or carrier who has paid compensation under this 3 chapter is entitled to reimbursement from the Special 4 Disability Trust Fund. 5 (2) DEFINITIONS.--As used in this section, the term: 6 (a) "Permanent physical impairment" means and is 7 limited to the conditions listed in paragraph (6)(a). 8 (b) "Preferred worker" means a worker who, because of 9 a permanent impairment resulting from a compensable injury or 10 occupational disease, is unable to return to the worker's 11 regular employment. 12 (c) "Merger" describes or means that: 13 1. If the permanent physical impairment had not 14 existed, the subsequent accident or occupational disease would 15 not have occurred; 16 2. The permanent disability or permanent impairment 17 resulting from the subsequent accident or occupational disease 18 is materially and substantially greater than that which would 19 have resulted had the permanent physical impairment not 20 existed, and the employer has been required to pay, and has 21 paid, permanent total disability or permanent impairment 22 benefits for that materially and substantially greater 23 disability; 24 3. The preexisting permanent physical impairment is 25 aggravated or accelerated as a result of the subsequent injury 26 or occupational disease, or the preexisting impairment has 27 contributed, medically and circumstantially, to the need for 28 temporary compensation, medical, or attendant care and the 29 employer has been required to pay, and has paid, temporary 30 compensation, medical, or attendant care benefits for the 31 aggravated preexisting permanent impairment; or 150 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 4. Death would not have been accelerated if the 2 permanent physical impairment had not existed. 3 (d) "Excess permanent compensation" means that 4 compensation for permanent impairment, or permanent total 5 disability or death benefits, for which the employer or 6 carrier is otherwise entitled to reimbursement from the 7 Special Disability Trust Fund. 8 (e) "Administrator" means the entity selected by the 9 commission to review, allow, deny, compromise, controvert, and 10 litigate claims of the Special Disability Trust Fund. 11 (f) "Corporation" means the Special Disability Trust 12 Fund Financing Corporation, as created under subsection (14). 13 (g) "Commission" means the Special Disability Trust 14 Fund Privatization Commission, as created under subsection 15 (13). 16 17 In addition to the definitions contained in this subsection, 18 the department division may by rule prescribe definitions that 19 are necessary for the effective administration of this 20 section. 21 (7) REIMBURSEMENT OF EMPLOYER.-- 22 (a) The right to reimbursement as provided in this 23 section is barred unless written notice of claim of the right 24 to such reimbursement is filed by the employer or carrier 25 entitled to such reimbursement with the department division or 26 administrator at Tallahassee within 2 years after the date the 27 employee last reached maximum medical improvement, or within 2 28 years after the date of the first payment of compensation for 29 permanent total disability, wage loss, or death, whichever is 30 later. The notice of claim must contain such information as 31 the department division by rule requires or as established by 151 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the administrator; and the employer or carrier claiming 2 reimbursement shall furnish such evidence in support of the 3 claim as the department division or administrator reasonably 4 may require. 5 (b) For notice of claims on the Special Disability 6 Trust Fund filed on or after July 1, 1978, the Special 7 Disability Trust Fund shall, within 120 days after receipt of 8 notice that a carrier has paid, been required to pay, or 9 accepted liability for excess compensation, serve notice of 10 the acceptance of the claim for reimbursement. 11 (c) A proof of claim must be filed on each notice of 12 claim on file as of June 30, 1997, within 1 year after July 1, 13 1997, or the right to reimbursement of the claim shall be 14 barred. A notice of claim on file on or before June 30, 1997, 15 may be withdrawn and refiled if, at the time refiled, the 16 notice of claim remains within the limitation period specified 17 in paragraph (a). Such refiling shall not toll, extend, or 18 otherwise alter in any way the limitation period applicable to 19 the withdrawn and subsequently refiled notice of claim. Each 20 proof of claim filed shall be accompanied by a proof-of-claim 21 fee as provided in paragraph (9)(d). The Special Disability 22 Trust Fund shall, within 120 days after receipt of the proof 23 of claim, serve notice of the acceptance of the claim for 24 reimbursement. This paragraph shall apply to all claims 25 notwithstanding the provisions of subsection (12). 26 (d) Each notice of claim filed or refiled on or after 27 July 1, 1997, must be accompanied by a notification fee as 28 provided in paragraph (9)(d). A proof of claim must be filed 29 within 1 year after the date the notice of claim is filed or 30 refiled, accompanied by a proof-of-claim fee as provided in 31 paragraph (9)(d), or the claim shall be barred. The 152 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 notification fee shall be waived if both the notice of claim 2 and proof of claim are submitted together as a single filing. 3 The Special Disability Trust Fund shall, within 180 days after 4 receipt of the proof of claim, serve notice of the acceptance 5 of the claim for reimbursement. This paragraph shall apply to 6 all claims notwithstanding the provisions of subsection (12). 7 (e) For dates of accident on or after January 1, 1994, 8 the Special Disability Trust Fund shall, within 120 days of 9 receipt of notice that a carrier has been required to pay, and 10 has paid over $10,000 in benefits, serve notice of the 11 acceptance of the claim for reimbursement. Failure of the 12 Special Disability Trust Fund to serve notice of acceptance 13 shall give rise to the right to request a hearing on the claim 14 for reimbursement. If the Special Disability Trust Fund 15 through its representative denies or controverts the claim, 16 the right to such reimbursement shall be barred unless an 17 application for a hearing thereon is filed with the department 18 division or administrator at Tallahassee within 60 days after 19 notice to the employer or carrier of such denial or 20 controversion. When such application for a hearing is timely 21 filed, the claim shall be heard and determined in accordance 22 with the procedure prescribed in s. 440.25, to the extent that 23 such procedure is applicable, and in accordance with the 24 workers' compensation rules of procedure. In such proceeding 25 on a claim for reimbursement, the Special Disability Trust 26 Fund shall be made the party respondent, and no findings of 27 fact made with respect to the claim of the injured employee or 28 the dependents for compensation, including any finding made or 29 order entered pursuant to s. 440.20(11), shall be res 30 judicata. The Special Disability Trust Fund may not be joined 31 or made a party to any controversy or dispute between an 153 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 employee and the dependents and the employer or between two or 2 more employers or carriers without the written consent of the 3 fund. 4 (f) When it has been determined that an employer or 5 carrier is entitled to reimbursement in any amount, the 6 employer or carrier shall be reimbursed annually from the 7 Special Disability Trust Fund for the compensation and medical 8 benefits paid by the employer or carrier for which the 9 employer or carrier is entitled to reimbursement, upon filing 10 request therefor and submitting evidence of such payment in 11 accordance with rules prescribed by the department division, 12 which rules may include parameters for annual audits. The 13 Special Disability Trust Fund shall pay the approved 14 reimbursement requests on a first-in, first-out basis 15 reflecting the order in which the reimbursement requests were 16 received. 17 (g) The department division may by rule require 18 specific forms and procedures for the administration and 19 processing of claims made through the Special Disability Trust 20 Fund. 21 (8) PREFERRED WORKER PROGRAM.--The The Department of 22 Education division or administrator shall issue identity cards 23 to preferred workers upon request by qualified employees and 24 the department shall reimburse an employer, from the Special 25 Disability Trust Fund, for the cost of workers' compensation 26 premium related to the preferred workers payroll for up to 3 27 years of continuous employment upon satisfactory evidence of 28 placement and issuance of payroll and classification records 29 and upon the employee's certification of employment. The 30 department and the Department of Education division may by 31 rule prescribe definitions, forms, and procedures for the 154 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 administration of the preferred worker program. The Department 2 of Education division may by rule prescribe the schedule for 3 submission of forms for participation in the program. 4 (9) SPECIAL DISABILITY TRUST FUND.-- 5 (a) There is established in the State Treasury a 6 special fund to be known as the "Special Disability Trust 7 Fund," which shall be available only for the purposes stated 8 in this section; and the assets thereof may not at any time be 9 appropriated or diverted to any other use or purpose. The 10 Treasurer shall be the custodian of such fund, and all moneys 11 and securities in such fund shall be held in trust by such 12 Treasurer and shall not be the money or property of the state. 13 The Treasurer is authorized to disburse moneys from such fund 14 only when approved by the department division or corporation 15 and upon the order of the Comptroller. The Treasurer shall 16 deposit any moneys paid into such fund into such depository 17 banks as the department division or corporation may designate 18 and is authorized to invest any portion of the fund which, in 19 the opinion of the division, is not needed for current 20 requirements, in the same manner and subject to all the 21 provisions of the law with respect to the deposits of state 22 funds by such Treasurer. All interest earned by such portion 23 of the fund as may be invested by the Treasurer shall be 24 collected by her or him and placed to the credit of such fund. 25 (b)1. The Special Disability Trust Fund shall be 26 maintained by annual assessments upon the insurance companies 27 writing compensation insurance in the state, the commercial 28 self-insurers under ss. 624.462 and 624.4621, the assessable 29 mutuals under s. 628.601, and the self-insurers under this 30 chapter, which assessments shall become due and be paid 31 quarterly at the same time and in addition to the assessments 155 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 provided in s. 440.51. The department division shall estimate 2 annually in advance the amount necessary for the 3 administration of this subsection and the maintenance of this 4 fund and shall make such assessment in the manner hereinafter 5 provided. 6 2. The annual assessment shall be calculated to 7 produce during the ensuing fiscal year an amount which, when 8 combined with that part of the balance in the fund on June 30 9 of the current fiscal year which is in excess of $100,000, is 10 equal to the average of: 11 a. The sum of disbursements from the fund during the 12 immediate past 3 calendar years, and 13 b. Two times the disbursements of the most recent 14 calendar year. 15 16 Such amount shall be prorated among the insurance companies 17 writing compensation insurance in the state and the 18 self-insurers. Provided however, for those carriers that have 19 excluded ceded reinsurance premiums from their assessments on 20 or before January 1, 2000, no assessments on ceded reinsurance 21 premiums shall be paid by those carriers until such time as 22 the Division of Workers' Compensation of the Department of 23 Labor and Employment Security or the department advises each 24 of those carriers of the impact that the inclusion of ceded 25 reinsurance premiums has on their assessment. The department 26 division may not recover any past underpayments of assessments 27 levied against any carrier that on or before January 1, 2000, 28 excluded ceded reinsurance premiums from their assessment 29 prior to the point that the Division of Workers' Compensation 30 of the Department of Labor and Employment Security or the 31 department advises of the appropriate assessment that should 156 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 have been paid. 2 3. The net premiums written by the companies for 3 workers' compensation in this state and the net premium 4 written applicable to the self-insurers in this state are the 5 basis for computing the amount to be assessed as a percentage 6 of net premiums. Such payments shall be made by each carrier 7 and self-insurer to the department division for the Special 8 Disability Trust Fund in accordance with such regulations as 9 the department division prescribes. 10 4. The Treasurer is authorized to receive and credit 11 to such Special Disability Trust Fund any sum or sums that may 12 at any time be contributed to the state by the United States 13 under any Act of Congress, or otherwise, to which the state 14 may be or become entitled by reason of any payments made out 15 of such fund. 16 (c) Notwithstanding the Special Disability Trust Fund 17 assessment rate calculated pursuant to this section, the rate 18 assessed shall not exceed 4.52 percent. 19 (d) The Special Disability Trust Fund shall be 20 supplemented by a $250 notification fee on each notice of 21 claim filed or refiled after July 1, 1997, and a $500 fee on 22 each proof of claim filed in accordance with subsection (7). 23 Revenues from the fee shall be deposited into the Special 24 Disability Trust Fund and are exempt from the deduction 25 required by s. 215.20. The fees provided in this paragraph 26 shall not be imposed upon any insurer which is in receivership 27 with the Department of Insurance. 28 (e) The Department of Insurance Labor and Employment 29 Security or administrator shall report annually on the status 30 of the Special Disability Trust Fund. The report shall update 31 the estimated undiscounted and discounted fund liability, as 157 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 determined by an independent actuary, change in the total 2 number of notices of claim on file with the fund in addition 3 to the number of newly filed notices of claim, change in the 4 number of proofs of claim processed by the fund, the fee 5 revenues refunded and revenues applied to pay down the 6 liability of the fund, the average time required to reimburse 7 accepted claims, and the average administrative costs per 8 claim. The department or administrator shall submit its 9 report to the Governor, the President of the Senate, and the 10 Speaker of the House of Representatives by December 1 of each 11 year. 12 (10) DEPARTMENT DIVISION ADMINISTRATION OF FUND; 13 CLAIMS; ADVISORY COMMITTEE; EXPENSES.--The department division 14 or administrator shall administer the Special Disability Trust 15 Fund with authority to allow, deny, compromise, controvert, 16 and litigate claims made against it and to designate an 17 attorney to represent it in proceedings involving claims 18 against the fund, including negotiation and consummation of 19 settlements, hearings before judges of compensation claims, 20 and judicial review. The department division or administrator 21 or the attorney designated by it shall be given notice of all 22 hearings and proceedings involving the rights or obligations 23 of such fund and shall have authority to make expenditures for 24 such medical examinations, expert witness fees, depositions, 25 transcripts of testimony, and the like as may be necessary to 26 the proper defense of any claim. The department division shall 27 appoint an advisory committee composed of representatives of 28 management, compensation insurance carriers, and self-insurers 29 to aid it in formulating policies with respect to conservation 30 of the fund, who shall serve without compensation for such 31 terms as specified by it, but be reimbursed for travel 158 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 expenses as provided in s. 112.061. All expenditures made in 2 connection with conservation of the fund, including the salary 3 of the attorney designated to represent it and necessary 4 travel expenses, shall be allowed and paid from the Special 5 Disability Trust Fund as provided in this section upon the 6 presentation of itemized vouchers therefor approved by the 7 department division. 8 (11) EFFECTIVE DATES.--This section does not apply to 9 any case in which the accident causing the subsequent injury 10 or death or the disablement or death from a subsequent 11 occupational disease occurred prior to July 1, 1955, or on or 12 after January 1, 1998. In no event shall the Special 13 Disability Trust Fund be liable for, or reimburse employers or 14 carriers for, any case in which the accident causing the 15 subsequent injury or death or the disablement or death from a 16 subsequent occupational disease occurred on or after January 17 1, 1998. The Special Disability Trust Fund shall continue to 18 reimburse employers or carriers for subsequent injuries 19 occurring prior to January 1, 1998, and the department 20 division shall continue to assess for and the department 21 division or administrator shall fund reimbursements as 22 provided in subsection (9) for this purpose. 23 Section 47. Section 440.491, Florida Statutes, is 24 amended to read: 25 440.491 Reemployment of injured workers; 26 rehabilitation.-- 27 (1) DEFINITIONS.--As used in this section, the term: 28 (a) "Carrier" means group self-insurance funds or 29 individual self-insureds authorized under this chapter and 30 commercial funds or insurance entities authorized to write 31 workers' compensation insurance under chapter 624. 159 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (b) "Medical care coordination" includes, but is not 2 limited to, coordinating physical rehabilitation services such 3 as medical, psychiatric, or therapeutic treatment for the 4 injured employee, providing health training to the employee 5 and family, and monitoring the employee's recovery. The 6 purposes of medical care coordination are to minimize the 7 disability and recovery period without jeopardizing medical 8 stability, to assure that proper medical treatment and other 9 restorative services are timely provided in a logical 10 sequence, and to contain medical costs. 11 (c) "Qualified rehabilitation provider" means a 12 rehabilitation nurse, rehabilitation counselor, vocational 13 evaluator, rehabilitation facility, or agency approved by the 14 Department of Education division as qualified to provide 15 reemployment assessments, medical care coordination, 16 reemployment services, or vocational evaluations under this 17 chapter. 18 (d) "Reemployment assessment" means a written 19 assessment performed by a qualified rehabilitation provider 20 which provides a comprehensive review of the medical 21 diagnosis, treatment, and prognosis; includes conferences with 22 the employer, physician, and claimant; and recommends a 23 cost-effective physical and vocational rehabilitation plan to 24 assist the employee in returning to suitable gainful 25 employment. 26 (e) "Reemployment services" means services that 27 include, but are not limited to, vocational counseling, 28 job-seeking skills training, ergonomic job analysis, 29 transferable skills analysis, selective job placement, labor 30 market surveys, and arranging other services such as education 31 or training, vocational and on-the-job, which may be needed by 160 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 the employee to secure suitable gainful employment. 2 (f) "Reemployment status review" means a review to 3 determine whether an injured employee is at risk of not 4 returning to work. 5 (g) "Suitable gainful employment" means employment or 6 self-employment that is reasonably attainable in light of the 7 employee's age, education, work history, transferable skills, 8 previous occupation, and injury, and which offers an 9 opportunity to restore the individual as soon as practicable 10 and as nearly as possible to his or her average weekly 11 earnings at the time of injury. 12 (h) "Vocational evaluation" means a review of the 13 employee's physical and intellectual capabilities, his or her 14 aptitudes and achievements, and his or her work-related 15 behaviors to identify the most cost-effective means toward the 16 employee's return to suitable gainful employment. 17 (2) INTENT.--It is the intent of this section to 18 implement a systematic review by carriers of the factors that 19 are predictive of longer-term disability and to encourage the 20 provision of medical care coordination and reemployment 21 services that are necessary to assist the employee in 22 returning to work as soon as is medically feasible. 23 (3) REEMPLOYMENT STATUS REVIEWS AND REPORTS.-- 24 (a) When an employee who has suffered an injury 25 compensable under this chapter is unemployed 60 days after the 26 date of injury and is receiving benefits for temporary total 27 disability, temporary partial disability, or wage loss, and 28 has not yet been provided medical care coordination and 29 reemployment services voluntarily by the carrier, the carrier 30 must determine whether the employee is likely to return to 31 work and must report its determination to the Department of 161 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Education division. The carrier must thereafter determine the 2 reemployment status of the employee at 90-day intervals as 3 long as the employee remains unemployed, is not receiving 4 medical care coordination or reemployment services, and is 5 receiving the benefits specified in this subsection. 6 (b) If medical care coordination or reemployment 7 services are voluntarily undertaken within 60 days of the date 8 of injury, such services may continue to be provided as agreed 9 by the employee and the carrier. 10 (4) REEMPLOYMENT ASSESSMENTS.-- 11 (a) The carrier may require the employee to receive a 12 reemployment assessment as it considers appropriate. However, 13 the carrier is encouraged to obtain a reemployment assessment 14 if: 15 1. The carrier determines that the employee is at risk 16 of remaining unemployed. 17 2. The case involves catastrophic or serious injury. 18 (b) The carrier shall authorize only a qualified 19 rehabilitation provider to provide the reemployment 20 assessment. The rehabilitation provider shall conduct its 21 assessment and issue a report to the carrier, the employee, 22 and the Department of Education division within 30 days after 23 the time such assessment is complete. 24 (c) If the rehabilitation provider recommends that the 25 employee receive medical care coordination or reemployment 26 services, the carrier shall advise the employee of the 27 recommendation and determine whether the employee wishes to 28 receive such services. The employee shall have 15 days after 29 the date of receipt of the recommendation in which to agree to 30 accept such services. If the employee elects to receive 31 services, the carrier may refer the employee to a 162 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 rehabilitation provider for such coordination or services 2 within 15 days of receipt of the assessment report or notice 3 of the employee's election, whichever is later. 4 (5) MEDICAL CARE COORDINATION AND REEMPLOYMENT 5 SERVICES.-- 6 (a) Once the carrier has assigned a case to a 7 qualified rehabilitation provider for medical care 8 coordination or reemployment services, the provider shall 9 develop a reemployment plan and submit the plan to the carrier 10 and the employee for approval. 11 (b) If the rehabilitation provider concludes that 12 training and education are necessary to return the employee to 13 suitable gainful employment, or if the employee has not 14 returned to suitable gainful employment within 180 days after 15 referral for reemployment services or receives $2,500 in 16 reemployment services, whichever comes first, the carrier must 17 discontinue reemployment services and refer the employee to 18 the Department of Education division for a vocational 19 evaluation. Notwithstanding any provision of chapter 289 or 20 chapter 627, the cost of a reemployment assessment and the 21 first $2,500 in reemployment services to an injured employee 22 must not be treated as loss adjustment expense for workers' 23 compensation ratemaking purposes. 24 (c) A carrier may voluntarily provide medical care 25 coordination or reemployment services to the employee at 26 intervals more frequent than those required in this section. 27 For the purpose of monitoring reemployment, the carrier or the 28 rehabilitation provider shall report to the Department of 29 Education division, in the manner prescribed by the Department 30 of Education division, the date of reemployment and wages of 31 the employee. The carrier shall report its voluntary service 163 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 activity to the Department of Education division as required 2 by rule. Voluntary services offered by the carrier for any of 3 the following injuries must be considered benefits for 4 purposes of ratemaking: traumatic brain injury; spinal cord 5 injury; amputation, including loss of an eye or eyes; burns of 6 5 percent or greater of the total body surface. 7 (d) If medical care coordination or reemployment 8 services have not been undertaken as prescribed in paragraph 9 (3)(b), a qualified rehabilitation service provider, facility, 10 or agency that performs a reemployment assessment shall not 11 provide medical care coordination or reemployment services for 12 the employees it assesses. 13 (6) TRAINING AND EDUCATION.-- 14 (a) Upon referral of an injured employee by the 15 carrier, or upon the request of an injured employee, the 16 Department of Education division shall conduct a training and 17 education screening to determine whether it should refer the 18 employee for a vocational evaluation and, if appropriate, 19 approve training and education or other vocational services 20 for the employee. The Department of Education division may 21 not approve formal training and education programs unless it 22 determines, after consideration of the reemployment 23 assessment, pertinent reemployment status reviews or reports, 24 and such other relevant factors as it prescribes by rule, that 25 the reemployment plan is likely to result in return to 26 suitable gainful employment. The Department of Education 27 division is authorized to expend moneys from the Workers' 28 Compensation Administration Trust Fund, established by s. 29 440.50, to secure appropriate training and education or other 30 vocational services when necessary to satisfy the 31 recommendation of a vocational evaluator. The Department of 164 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Education division shall establish training and education 2 standards pertaining to employee eligibility, course curricula 3 and duration, and associated costs. 4 (b) When it appears that an employee who has attained 5 maximum medical improvement requires training and education to 6 obtain suitable gainful employment, the employer shall pay the 7 employee additional temporary total compensation while the 8 employee receives such training and education for a period not 9 to exceed 26 weeks, which period may be extended for an 10 additional 26 weeks or less, if such extended period is 11 determined to be necessary and proper by a judge of 12 compensation claims. However, a carrier or employer is not 13 precluded from voluntarily paying additional temporary total 14 disability compensation beyond that period. If an employee 15 requires temporary residence at or near a facility or an 16 institution providing training and education which is located 17 more than 50 miles away from the employee's customary 18 residence, the reasonable cost of board, lodging, or travel 19 must be borne by the Department of Insurance division from the 20 Workers' Compensation Administration Trust Fund established by 21 s. 440.50. An employee who refuses to accept training and 22 education that is recommended by the vocational evaluator and 23 considered necessary by the Department of Education division 24 is subject to a 50-percent reduction in weekly compensation 25 benefits, including wage-loss benefits, as determined under s. 26 440.15(3)(b). 27 (7) PROVIDER QUALIFICATIONS.-- 28 (a) The Department of Education division shall 29 investigate and maintain a directory of each qualified public 30 and private rehabilitation provider, facility, and agency, and 31 shall establish by rule the minimum qualifications, 165 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 credentials, and requirements that each rehabilitation service 2 provider, facility, and agency must satisfy to be eligible for 3 listing in the directory. These minimum qualifications and 4 credentials must be based on those generally accepted within 5 the service specialty for which the provider, facility, or 6 agency is approved. 7 (b) The Department of Education division shall impose 8 a biennial application fee of $25 for each listing in the 9 directory, and all such fees must be deposited in the Workers' 10 Compensation Administration Trust Fund. 11 (c) The Department of Education division shall monitor 12 and evaluate each rehabilitation service provider, facility, 13 and agency qualified under this subsection to ensure its 14 compliance with the minimum qualifications and credentials 15 established by the Department of Education division. The 16 failure of a qualified rehabilitation service provider, 17 facility, or agency to provide the Department of Education 18 division with information requested or access necessary for 19 the Department of Education division to satisfy its 20 responsibilities under this subsection is grounds for 21 disqualifying the provider, facility, or agency from further 22 referrals. 23 (d) A qualified rehabilitation service provider, 24 facility, or agency may not be authorized by an employer, a 25 carrier, or the Department of Education division to provide 26 any services, including expert testimony, under this section 27 in this state unless the provider, facility, or agency is 28 listed or has been approved for listing in the directory. This 29 restriction does not apply to services provided outside this 30 state under this section. 31 (e) The Department of Education division, after 166 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 consultation with representatives of employees, employers, 2 carriers, rehabilitation providers, and qualified training and 3 education providers, shall adopt rules governing professional 4 practices and standards. 5 (8) CARRIER PRACTICES.--The department division shall 6 monitor the selection of providers and the provision of 7 services by carriers under this section for consistency with 8 legislative intent set forth in subsection (2). 9 (9) PERMANENT DISABILITY.--The judge of compensation 10 claims may not adjudicate an injured employee as permanently 11 and totally disabled until or unless the carrier is given the 12 opportunity to provide a reemployment assessment. 13 Section 48. Section 440.50, Florida Statutes, is 14 amended to read: 15 440.50 Workers' Compensation Administration Trust 16 Fund.-- 17 (1)(a) There is established in the State Treasury a 18 special fund to be known as the "Workers' Compensation 19 Administration Trust Fund" for the purpose of providing for 20 the payment of all expenses in respect to the administration 21 of this chapter, including the vocational rehabilitation of 22 injured employees as provided in s. 440.49 and the payments 23 due under s. 440.15(1)(f), the funding of the fixed 24 administrative expenses of the plan, and the funding of the 25 Bureau of Workers' Compensation Fraud within the Department of 26 Insurance. Such fund shall be administered by the department 27 division. 28 (b) The department division is authorized to transfer 29 as a loan an amount not in excess of $250,000 from such 30 special fund to the Special Disability Trust Fund established 31 by s. 440.49(9), which amount shall be repaid to said special 167 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 fund in annual payments equal to not less than 10 percent of 2 moneys received for such Special Disability Trust Fund. 3 (2) The Treasurer is authorized to disburse moneys 4 from such fund only when approved by the department division 5 and upon the order of the Comptroller. 6 (3) The Treasurer shall deposit any moneys paid into 7 such fund into such depository banks as the department 8 division may designate and is authorized to invest any portion 9 of the fund which, in the opinion of the department division, 10 is not needed for current requirements, in the same manner and 11 subject to all the provisions of the law with respect to the 12 deposit of state funds by such Treasurer. All interest earned 13 by such portion of the fund as may be invested by the 14 Treasurer shall be collected by him or her and placed to the 15 credit of such fund. 16 (4) All civil penalties provided in this chapter, if 17 not voluntarily paid, may be collected by civil suit brought 18 by the department division and shall be paid into such fund. 19 Section 49. Section 440.51, Florida Statutes, is 20 amended to read: 21 440.51 Expenses of administration.-- 22 (1) The department division shall estimate annually in 23 advance the amounts necessary for the administration of this 24 chapter, in the following manner. 25 (a) The department division shall, by July 1 of each 26 year, notify carriers and self-insurers of the assessment 27 rate, which shall be based on the anticipated expenses of the 28 administration of this chapter for the next calendar year. 29 Such assessment rate shall take effect January 1 of the next 30 calendar year and shall be included in workers' compensation 31 rate filings approved by the Department of Insurance which 168 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 become effective on or after January 1 of the next calendar 2 year. Assessments shall become due and be paid quarterly. 3 (b) The total expenses of administration shall be 4 prorated among the carriers writing compensation insurance in 5 the state and self-insurers. The net premiums collected by 6 carriers and the amount of premiums calculated by the 7 department division for self-insured employers are the basis 8 for computing the amount to be assessed. When reporting 9 deductible policy premium for purposes of computing 10 assessments levied after July 1, 2001, full policy premium 11 value must be reported prior to application of deductible 12 discounts or credits. This amount may be assessed as a 13 specific amount or as a percentage of net premiums payable as 14 the department division may direct, provided such amount so 15 assessed shall not exceed 2.75 percent, beginning January 1, 16 2001, except during the interim period from July 1, 2000, 17 through December 31, 2000, such assessments shall not exceed 4 18 percent of such net premiums. The carriers may elect to make 19 the payments required under s. 440.15(1)(f) rather than having 20 these payments made by the department division. In that 21 event, such payments will be credited to the carriers, and the 22 amount due by the carrier under this section will be reduced 23 accordingly. 24 (2) The department division shall provide by 25 regulation for the collection of the amounts assessed against 26 each carrier. Such amounts shall be paid within 30 days from 27 the date that notice is served upon such carrier. If such 28 amounts are not paid within such period, there may be assessed 29 for each 30 days the amount so assessed remains unpaid, a 30 civil penalty equal to 10 percent of the amount so unpaid, 31 which shall be collected at the same time and a part of the 169 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 amount assessed. For those carriers who excluded ceded 2 reinsurance premiums from their assessments prior to January 3 1, 2000, the department division shall not recover any past 4 underpayments of assessments related to ceded reinsurance 5 premiums prior to January 1, 2001, against such carriers. 6 (3) If any carrier fails to pay the amounts assessed 7 against him or her under the provisions of this section within 8 60 days from the time such notice is served upon him or her, 9 the Department of Insurance upon being advised by the division 10 may suspend or revoke the authorization to insure compensation 11 in accordance with the procedure in s. 440.38(3)(a). The 12 department division may permit a carrier to remit any 13 underpayment of assessments for assessments levied after 14 January 1, 2001. 15 (4) All amounts collected under the provisions of this 16 section shall be paid into the fund established in s. 440.50. 17 (5) Any amount so assessed against and paid by an 18 insurance carrier, self-insurer authorized pursuant to s. 19 624.4621, or commercial self-insurance fund authorized under 20 ss. 624.460-624.488 shall be allowed as a deduction against 21 the amount of any other tax levied by the state upon the 22 premiums, assessments, or deposits for workers' compensation 23 insurance on contracts or policies of said insurance carrier, 24 self-insurer, or commercial self-insurance fund. Any insurance 25 carrier claiming such a deduction against the amount of any 26 such tax shall not be required to pay any additional 27 retaliatory tax levied pursuant to s. 624.5091 as a result of 28 claiming such deduction. Because deductions under this 29 subsection are available to insurance carriers, s. 624.5091 30 does not limit such deductions in any manner. 31 (6)(a) The department division may require from each 170 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 carrier, at such time and in accordance with such regulations 2 as the department division may prescribe, reports in respect 3 to all gross earned premiums and of all payments of 4 compensation made by such carrier during each prior period, 5 and may determine the amounts paid by each carrier and the 6 amounts paid by all carriers during such period. 7 (b) The Department of Insurance may require from each 8 self-insurer, at such time and in accordance with such 9 regulations as the Department of Insurance prescribes, reports 10 in respect to wages paid, the amount of premiums such 11 self-insurer would have to pay if insured, and all payments of 12 compensation made by such self-insurer during each prior 13 period, and may determine the amounts paid by each 14 self-insurer and the amounts paid by all self-insurers during 15 such period. For the purposes of this section, the payroll 16 records of each self-insurer shall be open to annual 17 inspection and audit by the Department of Insurance or its 18 authorized representative, during regular business hours; and 19 if any audit of such records of a self-insurer discloses a 20 deficiency in the amounts reported to the Department of 21 Insurance or in the amounts paid to the Department of 22 Insurance by a self-insurer pursuant to this section, the 23 Department of Insurance may assess the cost of such audit 24 against the self-insurer. 25 (7) The department division shall keep accumulated 26 cost records of all injuries occurring within the state coming 27 within the purview of this chapter on a policy and 28 calendar-year basis. For the purpose of this chapter, a 29 "calendar year" is defined as the year in which the injury is 30 reported to the department division; "policy year" is defined 31 as that calendar year in which the policy becomes effective, 171 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 and the losses under such policy shall be chargeable against 2 the policy year so defined. 3 (8) The department division shall assign an account 4 number to each employer under this chapter and an account 5 number to each insurance carrier authorized to write workers' 6 compensation insurance in the state; and it shall be the duty 7 of the department division under the account number so 8 assigned to keep the cost experience of each carrier and the 9 cost experience of each employer under the account number so 10 assigned by calendar and policy year, as above defined. 11 (9) In addition to the above, it shall be the duty of 12 the department division to keep the accident experience, as 13 classified by the department division, by industry as follows: 14 (a) Cause of the injury; 15 (b) Nature of the injury; and 16 (c) Type of disability. 17 (10) In every case where the duration of disability 18 exceeds 30 days, the carrier shall establish a sufficient 19 reserve to pay all benefits to which the injured employee, or 20 in case of death, his or her dependents, may be entitled to 21 under the law. In establishing the reserve, consideration 22 shall be given to the nature of the injury, the probable 23 period of disability, and the estimated cost of medical 24 benefits. 25 (11) The department division shall furnish to any 26 employer or carrier, upon request, its individual experience. 27 The division shall furnish to the Department of Insurance, 28 upon request, the Florida experience as developed under 29 accident year or calendar year. 30 (12) In addition to any other penalties provided by 31 this law, the failure to submit any report or other 172 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 information required by this law shall be just cause to 2 suspend the right of a self-insurer to operate as such, or, 3 upon certification by the division to the Department of 4 Insurance that a carrier has failed or refused to furnish such 5 reports, shall be just cause for the Department of Insurance 6 to suspend or revoke the license of such carrier. 7 (13) As used in s. 440.50 and this section, the term: 8 (a) "Plan" means the workers' compensation joint 9 underwriting plan provided for in s. 627.311(4). 10 (b) "Fixed administrative expenses" means the expenses 11 of the plan, not to exceed $750,000, which are directly 12 related to the plan's administration but which do not vary in 13 direct relationship to the amount of premium written by the 14 plan and which do not include loss adjustment premiums. 15 (14) Before July 1 in each year, the plan shall notify 16 the department division of the amount of the plan's gross 17 written premiums for the preceding calendar year. Whenever the 18 plan's gross written premiums reported to the department 19 division are less than $30 million, the department division 20 shall transfer to the plan, subject to appropriation by the 21 Legislature, an amount not to exceed the plan's fixed 22 administrative expenses for the preceding calendar year. 23 Section 50. Section 440.52, Florida Statutes, is 24 amended to read: 25 440.52 Registration of insurance carriers; notice of 26 cancellation or expiration of policy; suspension or revocation 27 of authority.-- 28 (1) Each insurance carrier who desires to write such 29 compensation insurance in compliance with this chapter shall 30 be required, before writing such insurance, to register with 31 the division and pay a registration fee of $100. This shall be 173 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 deposited by the division in the fund created by s. 440.50. 2 (1)(2) A carrier or self-insurance fund that receives 3 notice pursuant to s. 440.05 shall notify the contractor of 4 the cancellation or expiration of the insurance. 5 (2)(3) If the department division finds, after due 6 notice and a hearing at which the insurance carrier is 7 entitled to be heard in person or by counsel and present 8 evidence, that the insurance carrier has repeatedly failed to 9 comply with its obligations under this chapter, the department 10 division may request the Department of Insurance to suspend or 11 revoke the authorization of such insurance carrier to write 12 workers' compensation insurance under this chapter. Such 13 suspension or revocation shall not affect the liability of any 14 such insurance carrier under policies in force prior to the 15 suspension or revocation. 16 (3)(4) In addition to the penalties prescribed in 17 subsection (3), violation of s. 440.381 by an insurance 18 carrier shall result in the imposition of a fine not to exceed 19 $1,000 per audit, if the insurance carrier fails to act on 20 said audits by correcting errors in employee classification or 21 accepted applications for coverage where it knew employee 22 classifications were incorrect. Such fines shall be levied by 23 the Department of Insurance and deposited into the Insurance 24 Commissioner's Regulatory Trust Fund. 25 Section 51. Section 440.525, Florida Statutes, is 26 amended to read: 27 440.525 Examination of carriers.--Beginning July 1, 28 1994, The Division of Workers' Compensation of the department 29 of Labor and Employment Security may examine each carrier as 30 often as is warranted to ensure that carriers are fulfilling 31 their obligations under the law, and shall examine each 174 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 carrier not less frequently than once every 3 years. The 2 examination must cover the preceding 3 fiscal years of the 3 carrier's operations and must commence within 12 months after 4 the end of the most recent fiscal year being covered by the 5 examination. The examination may cover any period of the 6 carrier's operations since the last previous examination. 7 Section 52. Section 440.572, Florida Statutes, is 8 amended to read: 9 440.572 Authorization for individual self-insurer to 10 provide coverage.--An individual self-insurer having a net 11 worth of not less than $250 million as authorized by s. 12 440.38(1)(f) may assume by contract the liabilities under this 13 chapter of contractors and subcontractors, or each of them, 14 employed by or on behalf of such individual self-insurer when 15 performing work on or adjacent to property owned or used by 16 the individual self-insurer by the department division. The 17 net worth of the individual self-insurer shall include the 18 assets of the self-insurer's parent company and its 19 subsidiaries, sister companies, affiliated companies, and 20 other related entities, located within the geographic 21 boundaries of the state. 22 Section 53. Section 440.59, Florida Statutes, is 23 amended to read: 24 440.59 Reporting requirements.-- 25 (1) The department of Labor and Employment Security 26 shall annually prepare a report of the administration of this 27 chapter for the preceding calendar year, including a detailed 28 statement of the receipts of and expenditures from the fund 29 established in s. 440.50 and a statement of the causes of the 30 accidents leading to the injuries for which the awards were 31 made, together with such recommendations as the department 175 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 considers advisable. On or before September 15 of each year, 2 the department shall submit a copy of the report to the 3 Governor, the President of the Senate, the Speaker of the 4 House of Representatives, the Democratic and Republican 5 Leaders of the Senate and the House of Representatives, and 6 the chairs of the legislative committees having jurisdiction 7 over workers' compensation. 8 (2) The Division of Workers' Compensation of the 9 department of Labor and Employment Security shall periodically 10 complete on a quarterly basis an analysis of the previous 11 quarter's injuries which resulted in workers' compensation 12 claims as deemed necessary by the department. The analysis 13 shall include the information, data, and statistics deemed 14 relevant by the department be broken down by risk 15 classification, shall show for each such risk classification 16 the frequency and severity for the various types of injury, 17 and shall include an analysis of the causes of such injuries. 18 The department division shall make available distribute to 19 each employer and self-insurer in the state covered by the 20 Workers' Compensation Law the data relevant to its workforce. 21 The report shall also be distributed to the insurers 22 authorized to write workers' compensation insurance in the 23 state. 24 (3) The department division shall annually prepare a 25 closed claim report for all claims for which the employee lost 26 more than 7 days from work and shall submit a copy of the 27 report to the Governor, the President of the Senate, the 28 Speaker of the House of Representatives, the Democratic and 29 Republican Leaders of the Senate and the House of 30 Representatives, and the chairs of the legislative committees 31 having jurisdiction over workers' compensation on or before 176 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 September 15 of each year. The closed claim report shall 2 include information, data, and statistics deemed relevant by 3 the department, but not be limited to, an analysis of all 4 claims closed during the preceding year as to the date of 5 accident, age of the injured employee, occupation of the 6 injured employee, type of injury, body part affected, type and 7 duration of indemnity benefits paid, permanent impairment 8 rating, medical benefits identified by type of health care 9 provider, and type and cost of any rehabilitation benefits 10 provided. 11 (4) The department division shall prepare an annual 12 report for all claims for which the employee lost more than 7 13 days from work and shall submit a copy of the report to the 14 Governor, the President of the Senate, the Speaker of the 15 House of Representatives, the Democratic and Republican 16 Leaders of the Senate and the House of Representatives, and 17 the chairs of the legislative committees having jurisdiction 18 over workers' compensation, on or before September 15 of each 19 year. The annual report shall include information, data, and 20 statistics deemed relevant by the department a status report 21 on all cases involving work-related injuries in the previous 22 10 years. The annual report shall include, but not be limited 23 to, the number of open and closed cases, the number of cases 24 receiving various types of benefits, the cash and medical 25 benefits paid between the date of injury and the evaluation 26 date, the number of litigated cases, and the amount of 27 attorney's fees paid in each case. 28 (5) The Chief Judge must prepare an annual report 29 summarizing the disposition of mediation conferences and must 30 submit the report to the Governor, the President of the 31 Senate, the Speaker of the House of Representatives, the 177 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Democratic and Republican Leaders of the Senate and the House 2 of Representatives, and the chairs of the legislative 3 committees having jurisdiction over workers' compensation, on 4 or before September 15 of each year. 5 Section 54. Section 440.591, Florida Statutes, is 6 amended to read: 7 440.591 Administrative procedure; rulemaking 8 authority.--The department, the agency, and the Department of 9 Education have division has authority to adopt rules pursuant 10 to ss. 120.536(1) and 120.54 to implement the provisions of 11 this chapter conferring duties upon it. 12 Section 55. Section 440.593, Florida Statutes, is 13 amended to read: 14 440.593 Electronic reporting.--The department division 15 may establish by rule an electronic reporting system whereby 16 an employer or carrier is required to submit information 17 electronically rather than by filing otherwise required forms 18 or reports. The department division may by rule establish 19 different deadlines for reporting information to the 20 department division via the electronic reporting system than 21 are otherwise required. 22 Section 56. Subsections (1), (4), and (5) of section 23 443.012, Florida Statutes, are amended to read: 24 443.012 Unemployment Appeals Commission.-- 25 (1) There is created within the Agency for Workforce 26 Innovation Department of Labor and Employment Security an 27 Unemployment Appeals Commission, hereinafter referred to as 28 the "commission." The commission shall consist of a chair and 29 two other members to be appointed by the Governor, subject to 30 confirmation by the Senate. Not more than one appointee must 31 be a person who, on account of previous vocation, employment, 178 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 or affiliation, is classified as a representative of 2 employers; and not more than one such appointee must be a 3 person who, on account of previous vocation, employment, or 4 affiliation, is classified as a representative of employees. 5 (a) The chair shall devote his or her entire time to 6 commission duties and shall be responsible for the 7 administrative functions of the commission. 8 (b) The chair shall have the authority to appoint a 9 general counsel and such other personnel as may be necessary 10 to carry out the duties and responsibilities of the 11 commission. 12 (c) The chair shall have the qualifications required 13 by law for a judge of the circuit court and shall not engage 14 in any other business vocation or employment. Notwithstanding 15 any other provisions of existing law, the chair shall be paid 16 a salary equal to that paid under state law to a judge of the 17 circuit court. 18 (d) The remaining members shall be paid a stipend of 19 $100 for each day they are engaged in the work of the 20 commission. The chair and other members shall also be 21 reimbursed for travel expenses, as provided in s. 112.061. 22 (e) The total salary and travel expenses of each 23 member of the commission shall be paid from the Employment 24 Security Administration Trust Fund. 25 (4) The property, personnel, and appropriations 26 relating to the specified authority, powers, duties, and 27 responsibilities of the commission shall be provided to the 28 commission by the Agency for Workforce Innovation Department 29 of Labor and Employment Security. 30 (5) The commission shall not be subject to control, 31 supervision, or direction by the Agency for Workforce 179 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Innovation Department of Labor and Employment Security in the 2 performance of its powers and duties under this chapter. 3 Section 57. Subsection (12) of section 443.036, 4 Florida Statutes, is amended to read: 5 443.036 Definitions.--As used in this chapter, unless 6 the context clearly requires otherwise: 7 (12) COMMISSION.--"Commission" means the Unemployment 8 Appeals Commission of the Department of Labor and Employment 9 Security. 10 Section 58. Subsection (3) of section 447.02, Florida 11 Statutes, is amended to read: 12 447.02 Definitions.--The following terms, when used in 13 this chapter, shall have the meanings ascribed to them in this 14 section: 15 (3) The term "department" means the Department of 16 Business and Professional Regulation Labor and Employment 17 Security. 18 Section 59. Subsections (1), (3), and (4) of section 19 447.205, Florida Statutes, are amended to read: 20 447.205 Public Employees Relations Commission.-- 21 (1) There is hereby created within the Department of 22 Management Services Labor and Employment Security the Public 23 Employees Relations Commission, hereinafter referred to as the 24 "commission." The commission shall be composed of a chair and 25 two full-time members to be appointed by the Governor, subject 26 to confirmation by the Senate, from persons representative of 27 the public and known for their objective and independent 28 judgment, who shall not be employed by, or hold any commission 29 with, any governmental unit in the state or any employee 30 organization, as defined in this part, while in such office. 31 In no event shall more than one appointee be a person who, on 180 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 account of previous vocation, employment, or affiliation, is, 2 or has been, classified as a representative of employers; and 3 in no event shall more than one such appointee be a person 4 who, on account of previous vocation, employment, or 5 affiliation, is, or has been, classified as a representative 6 of employees or employee organizations. The commissioners 7 shall devote full time to commission duties and shall not 8 engage in any other business, vocation, or employment while in 9 such office. Beginning January 1, 1980, the chair shall be 10 appointed for a term of 4 years, one commissioner for a term 11 of 1 year, and one commissioner for a term of 2 years. 12 Thereafter, Every term of office shall be for 4 years; and 13 each term of the office of chair shall commence on January 1 14 of the second year following each regularly scheduled general 15 election at which a Governor is elected to a full term of 16 office. In the event of a vacancy prior to the expiration of 17 a term of office, an appointment shall be made for the 18 unexpired term of that office. The chair shall be responsible 19 for the administrative functions of the commission and shall 20 have the authority to employ such personnel as may be 21 necessary to carry out the provisions of this part. Once 22 appointed to the office of chair, the chair shall serve as 23 chair for the duration of the term of office of chair. 24 Nothing contained herein prohibits a chair or commissioner 25 from serving multiple terms. 26 (3) The commission, in the performance of its powers 27 and duties under this part, shall not be subject to control, 28 supervision, or direction by the Department of Management 29 Services Labor and Employment Security. 30 (4) The property, personnel, and appropriations 31 related to the commission's specified authority, powers, 181 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 duties, and responsibilities shall be provided to the 2 commission by the Department of Management Services Labor and 3 Employment Security. 4 Section 60. Subsection (4) of section 447.305, Florida 5 Statutes, is amended to read: 6 447.305 Registration of employee organization.-- 7 (4) Notification of registrations and renewals of 8 registration shall be furnished at regular intervals by the 9 commission to the Department of Business and Professional 10 Regulation Labor and Employment Security. 11 Section 61. Subsection (4) of section 450.012, Florida 12 Statutes, is amended to read: 13 450.012 Definitions.--For the purpose of this chapter, 14 the word, phrase, or term: 15 (4) "Department" means the Department of Business and 16 Professional Regulation Labor and Employment Security. 17 Section 62. Subsection (2) of section 450.28, Florida 18 Statutes, is amended to read: 19 450.28 Definitions.-- 20 (2) "Department" means the Department of Business and 21 Professional Regulation Labor and Employment Security. 22 Section 63. Subsection (1) of section 450.191, Florida 23 Statutes, is amended to read: 24 450.191 Executive Office of the Governor; powers and 25 duties.-- 26 (1) The Executive Office of the Governor is authorized 27 and directed to: 28 (a) Advise and consult with employers of migrant 29 workers as to the ways and means of improving living 30 conditions of seasonal workers; 31 (b) Cooperate with the Department of Health in 182 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 establishing minimum standards of preventive and curative 2 health and of housing and sanitation in migrant labor camps 3 and in making surveys to determine the adequacy of preventive 4 and curative health services available to occupants of migrant 5 labor camps; 6 (c) Provide coordination for the enforcement of ss. 7 381.008-381.0088; 8 (d) Cooperate with the other departments of government 9 in coordinating all applicable labor laws, including, but not 10 limited to, those relating to private employment agencies, 11 child labor, wage payments, wage claims, and crew leaders; 12 (e) Cooperate with the Department of Education to 13 provide educational facilities for the children of migrant 14 laborers; 15 (f) Cooperate with the Department of Highway Safety 16 and Motor Vehicles to establish minimum standards for the 17 transporting of migrant laborers; 18 (g) Cooperate with the Department of Agriculture and 19 Consumer Services to conduct an education program for 20 employers of migrant laborers pertaining to the standards, 21 methods, and objectives of the office; 22 (h) Cooperate with the Department of Children and 23 Family Services in coordinating all public assistance programs 24 as they may apply to migrant laborers; 25 (i) Coordinate all federal, state, and local programs 26 pertaining to migrant laborers; and 27 (j) Cooperate with the farm labor office of the 28 Department of Business and Professional Regulation Labor and 29 Employment Security in the recruitment and referral of migrant 30 laborers and other persons for the planting, cultivation, and 31 harvesting of agricultural crops in Florida. 183 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 Section 64. Subsection (3) of section 468.529, Florida 2 Statutes, is amended to read: 3 468.529 Licensee's insurance; employment tax; benefit 4 plans.-- 5 (3) A licensed employee leasing company shall within 6 30 days of initiation or termination notify its workers' 7 compensation insurance carrier, the Department of Insurance 8 Division of Workers' Compensation, and the Division of 9 Unemployment Compensation of the Department of Revenue Labor 10 and Employment Security of both the initiation or the 11 termination of the company's relationship with any client 12 company. 13 Section 65. Subsections (1) and (5) of section 14 624.3161, Florida Statutes, are amended to read: 15 624.3161 Market conduct examinations.-- 16 (1) As often as it deems necessary, the department 17 shall examine each licensed rating organization, each advisory 18 organization, each group, association carrier as defined in s. 19 440.02,, or other organization of insurers which engages in 20 joint underwriting or joint reinsurance, and each authorized 21 insurer transacting in this state any class of insurance to 22 which the provisions of chapter 627 are applicable. The 23 examination shall be for the purpose of ascertaining 24 compliance by the person examined with the applicable 25 provisions of chapters 440, 624, 626, 627, and 635. 26 (5) Such examinations shall also be subject to the 27 applicable provisions of ss. 624.318, 624.319, 624.321, and 28 624.322 and chapter 440. 29 Section 66. Paragraph (m) of subsection (1) of section 30 626.88, Florida Statutes, is amended to read: 31 626.88 Definitions of "administrator" and "insurer".-- 184 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (1) For the purposes of this part, an "administrator" 2 is any person who directly or indirectly solicits or effects 3 coverage of, collects charges or premiums from, or adjusts or 4 settles claims on residents of this state in connection with 5 authorized commercial self-insurance funds or with insured or 6 self-insured programs which provide life or health insurance 7 coverage or coverage of any other expenses described in s. 8 624.33(1), other than any of the following persons: 9 (m) A person approved by the Department of Insurance 10 Division of Workers' Compensation of the Department of Labor 11 and Employment Security who administers only self-insured 12 workers' compensation plans. 13 Section 67. Subsection (9) of section 626.989, Florida 14 Statutes, is amended to read: 15 626.989 Investigation by department or Division of 16 Insurance Fraud; compliance; immunity; confidential 17 information; reports to division; division investigator's 18 power of arrest.-- 19 (9) In recognition of the complementary roles of 20 investigating instances of workers' compensation fraud and 21 enforcing compliance with the workers' compensation coverage 22 requirements under chapter 440, the Division of Insurance 23 Fraud of the Department of Insurance is and the Division of 24 Workers' Compensation of the Department of Labor and 25 Employment Security are directed to prepare and submit a joint 26 performance report to the President of the Senate and the 27 Speaker of the House of Representatives by November 1 of each 28 year for each of the next 2 years, and then every 3 years 29 thereafter, describing the results obtained in achieving 30 compliance with the workers' compensation coverage 31 requirements and reducing the incidence of workers' 185 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 compensation fraud. 2 Section 68. Section 627.0915, Florida Statutes, is 3 amended to read: 4 627.0915 Rate filings; workers' compensation, 5 drug-free workplace, and safe employers.--The Department of 6 Insurance shall approve rating plans for workers' compensation 7 insurance that give specific identifiable consideration in the 8 setting of rates to employers that either implement a 9 drug-free workplace program pursuant to rules adopted by the 10 department Division of Workers' Compensation of the Department 11 of Labor and Employment Security or implement a safety program 12 approved by the Division of Safety pursuant to rules adopted 13 by the Division of Safety of the Department of Labor and 14 Employment Security or implement both a drug-free workplace 15 program and a safety program. The Division of Safety may by 16 rule require that the client of a help supply services company 17 comply with the essential requirements of a workplace safety 18 program as a condition for receiving a premium credit. The 19 plans must take effect January 1, 1994, must be actuarially 20 sound, and must state the savings anticipated to result from 21 such drug-testing program and safety programs. 22 Section 69. Subsection (5) of section 627.914, Florida 23 Statutes, is amended to read: 24 627.914 Reports of information by workers' 25 compensation insurers required.-- 26 (5) Self-insurers authorized to transact workers' 27 compensation insurance as provided in s. 440.02 shall report 28 only Florida data as prescribed in paragraphs (a)-(e) of 29 subsection (4) to the department Division of Workers' 30 Compensation of the Department of Labor and Employment 31 Security. 186 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 (a) The department Division of Workers' Compensation 2 shall publish the dates and forms necessary to enable 3 self-insurers to comply with this section. 4 (b) The Division of Workers' Compensation shall report 5 the information collected under this section to the Department 6 of Insurance in a manner prescribed by the department. 7 (b)(c) A statistical or rating organization may be 8 used by self-insurers for the purposes of reporting the data 9 required by this section and calculating experience ratings. 10 Section 70. If any provision of this act or its 11 application to any person or circumstance is held invalid, the 12 invalidity does not affect other provisions or applications of 13 the act which can be given effect without the invalid 14 provision or application, and to this end the provisions of 15 this act are severable. 16 Section 71. To the extent that any conflict exists 17 between this act and the provisions of SB 1926, or similar 18 legislation, which transfers the Office of Judges of 19 Compensation Claims to the Division of Administration 20 Hearings, the provisions of SB 1926 or the similar legislation 21 shall control. 22 Section 72. Unless otherwise expressly provided for in 23 this act, this act shall take effect October 1, 2001. 24 25 26 ================ T I T L E A M E N D M E N T =============== 27 And the title is amended as follows: 28 On page 1, line 1, through 5, line 29, 29 remove the entire title of the bill: 30 31 and insert in lieu thereof: 187 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 A bill to be entitled 2 An act relating to The Department of Labor and 3 Employment Security; transferring the Division 4 of Workers' Compensation from the Department of 5 Labor and Employment Security to the Department 6 of Insurance; providing exceptions; 7 transferring various functions, powers, duties, 8 personnel, and assets relating to workers' 9 compensation to the Department of Education, 10 the Agency for Health Care Administration, and 11 the Department of Insurance; amending s. 20.13, 12 F.S.; providing for certain employees of the 13 Division to be given hiring priority by the 14 Department of Insurance; providing pay and 15 employment guidelines for such employees; 16 creating the Division of Workers' Compensation 17 in the Department of Insurance; repealing s. 18 20.171, F.S., which creates the Department of 19 Labor and Employment Security; amending s. 20 440.015, F.S.; designating state agencies to 21 administer the workers' compensation law; 22 amending s. 440.02, F.S.; providing 23 definitions; amending ss. 110.025, 440.05, 24 440.09, 440.10, 440.021, 440.102, 440.103, 25 440.105, 440.106, 440.107, 440.108, 440.125, 26 440.13, 440.134, 440.14, 440.15, 440.17, 27 440.185, 440.191, 440.192, 440.1925, 440.20, 28 440.207, 440.211, 440.24, 440.25, 440.271, 29 440.345, 440.35, 440.38, 440.381, 440.385, 30 440.386, 440.40, 440.41, 440.42, 440.44, 31 440.49, 440.491, 440.50, 440.51, 440.52, 188 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 440.525, 440.572, 440.59, 440.591, 440.593, 2 443.012, 443.036, 447.02, 447.205, 447.305, 3 450.12, 450.197, 450.28, 468.529, 626.88, 4 626.989, 627.0915, 627.914, F.S., to conform to 5 the transfers made by this act; providing for 6 the continuation of contracts and agreements; 7 amending s. 440.4416, F.S.; revising the 8 composition of the Workers' Compensation 9 Oversight Board; providing for substitution of 10 a successor agency as a party in judicial and 11 administrative proceedings; providing 12 severability; amending s. 624.3161, F.S.; 13 providing for market conduct examinations with 14 respect to workers' compensation; providing 15 legislative intent; providing for a type two 16 transfer of the administration of child labor 17 laws to the Department of Business and 18 Professional Regulation; providing for a type 19 two transfer of certain functions of the Office 20 of the Secretary and the Office of 21 Administrative Services of the Department of 22 Labor and Employment Security relating to labor 23 organizations and migrant and farm labor 24 registration to the Department of Business and 25 Professional Regulation; providing for a type 26 two transfer of other workplace regulation 27 functions to the Department of Business and 28 Professional Regulation; providing 29 appropriations; amending s. 447.02, F.S.; 30 conforming the definition of "department" to 31 the transfer of the regulation of labor 189 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659
HOUSE AMENDMENT Bill No. HB 1655 Amendment No. ___ (for drafter's use only) 1 organizations to the Department of Business and 2 Professional Regulation; amending s. 450.012, 3 F.S.; conforming the definition of "department" 4 to the transfer of the regulation of child 5 labor to the Department of Business and 6 Professional Regulation; amending s. 450.191, 7 F.S., relating to the duties of the Executive 8 Office of the Governor with respect to migrant 9 labor; conforming provisions to changes made by 10 the act; amending s. 450.28, F.S.; conforming 11 the definition of "department" to the transfer 12 of the regulation of farm labor to the 13 Department of Business and Professional 14 Regulation; providing effective dates. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 190 File original & 9 copies 04/20/01 hsa0005 03:43 pm 01655-sgc -325659