House Bill hb1655e1

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                                          HB 1655, First Engrossed



  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; transferring

12         certain rules to the Agency for Health Care

13         Administration; amending s. 20.13, F.S.;

14         providing for certain employees of the Division

15         to be given hiring priority by the Department

16         of Insurance; providing pay and employment

17         guidelines for such employees; creating the

18         Division of Workers' Compensation in the

19         Department of Insurance; repealing s. 20.171,

20         F.S., which creates the Department of Labor and

21         Employment Security; amending s. 440.015, F.S.;

22         designating state agencies to administer the

23         workers' compensation law; amending s. 440.02,

24         F.S.; providing definitions; amending ss.

25         110.025, 440.05, 440.09, 440.10, 440.021,

26         440.102, 440.103, 440.105, 440.106, 440.107,

27         440.108, 440.125, 440.13, 440.134, 440.14,

28         440.15, 440.17, 440.185, 440.191, 440.192,

29         440.1925, 440.20, 440.207, 440.211, 440.24,

30         440.25, 440.271, 440.345, 440.35, 440.38,

31         440.381, 440.385, 440.386, 440.40, 440.41,


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                                          HB 1655, First Engrossed



  1         440.42, 440.44, 440.49, 440.491, 440.50,

  2         440.51, 440.52, 440.525, 440.572, 440.59,

  3         440.591, 440.593, 443.012, 443.036, 447.02,

  4         447.205, 447.305, 450.12, 450.197, 450.28,

  5         468.529, 626.88, 626.989, 627.0915, 627.914,

  6         F.S., to conform to the transfers made by this

  7         act; providing for the continuation of

  8         contracts and agreements; amending s. 440.38,

  9         F.S.; transferring operation of provisions

10         requiring the securing of payment of

11         compensation by employers from the Division of

12         Workers' Compensation of the Department of

13         Labor and Employment Security to the Florida

14         Self-Insurer's Guaranty Association,

15         Incorporated, and the Department of Insurance;

16         revising and clarifying requirements and

17         procedures; providing powers and duties of the

18         association and the departments; providing for

19         allocation or payment of state funds to the

20         association for certain purposes; providing

21         rulemaking authority; amending s. 440.4416,

22         F.S.; revising the composition of the Workers'

23         Compensation Oversight Board; providing for

24         substitution of a successor agency as a party

25         in judicial and administrative proceedings;

26         providing severability; amending s. 624.3161,

27         F.S.; providing for market conduct examinations

28         with respect to workers' compensation;

29         providing legislative intent; providing for a

30         type two transfer of the administration of

31         child labor laws to the Department of Business


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                                          HB 1655, First Engrossed



  1         and Professional Regulation; providing for a

  2         type two transfer of certain functions of the

  3         Office of the Secretary and the Office of

  4         Administrative Services of the Department of

  5         Labor and Employment Security relating to labor

  6         organizations and migrant and farm labor

  7         registration to the Department of Business and

  8         Professional Regulation; providing for a type

  9         two transfer of other workplace regulation

10         functions to the Department of Business and

11         Professional Regulation; providing

12         appropriations; amending s. 447.02, F.S.;

13         conforming the definition of "department" to

14         the transfer of the regulation of labor

15         organizations to the Department of Business and

16         Professional Regulation; amending s. 450.012,

17         F.S.; conforming the definition of "department"

18         to the transfer of the regulation of child

19         labor to the Department of Business and

20         Professional Regulation; amending s. 450.191,

21         F.S., relating to the duties of the Executive

22         Office of the Governor with respect to migrant

23         labor; conforming provisions to changes made by

24         the act; amending s. 450.28, F.S.; conforming

25         the definition of "department" to the transfer

26         of the regulation of farm labor to the

27         Department of Business and Professional

28         Regulation; creating ss. 633.801, 633.802,

29         633.803, 633.804, 633.805, 633.806, 633.807,

30         633.808, 633.810, 633.812, 633.813, 633.814,

31         633.815, 633.816, 633.817, 633.818, 633.819,


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                                          HB 1655, First Engrossed



  1         633.820, 633.823, 633.824, and 633.825, F.S.;

  2         designating such sections as the Florida

  3         Firefighter Occupational Safety and Health Act;

  4         providing definitions; providing legislative

  5         intent; authorizing the Division of State Fire

  6         Marshal to adopt rules related to firefighter

  7         safety inspections; requiring the division to

  8         conduct a study; requiring firefighter

  9         employers to provide safe employment

10         conditions; authorizing the division to adopt

11         rules that prescribe means for preventing

12         accidents in places of firefighter employment

13         and establish standards for construction,

14         repair, and maintenance; requiring the division

15         to inspect places of firefighter employment and

16         to develop safety and health programs for those

17         firefighter employers whose employees have a

18         high frequency or severity of work-related

19         injuries; requiring certain firefighter

20         employers to establish workplace safety

21         committees and to maintain certain records;

22         providing penalties for firefighter employers

23         who violate provisions of the act; providing

24         exemptions; providing for the source of funding

25         of the division; specifying firefighter

26         employee rights and responsibilities; providing

27         penalties for firefighter employers who make

28         false statements to the division or to an

29         insurer; specifying applicability to volunteer

30         firefighters and volunteer fire departments;

31         authorizing the division to adopt rules for


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                                          HB 1655, First Engrossed



  1         assuring safe working conditions for all

  2         firefighter employees; amending s. 633.31,

  3         F.S.; changing the name and membership of the

  4         Firefighters Standards and Training Council;

  5         amending ss. 383.3362, 633.30, and 633.32,

  6         F.S., to conform; amending s. 633.33, F.S.;

  7         revising certain powers of the council;

  8         providing effective dates.

  9

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

11

12         Section 1.  (1)  The Division of Workers' Compensation

13  of the Department of Labor and Employment Security is

14  transferred by a type two transfer, as defined in section

15  20.06(2), Florida Statutes, to the Department of Insurance,

16  except as otherwise provided in this section. The transfers to

17  the Department of Insurance shall include all resources, data,

18  records, property, and unexpended balances of appropriations,

19  allocations, or other funds. No personnel are transferred to

20  the Department of Insurance. The employees of the Department

21  of Labor and Employment Security's Division of Workers'

22  Compensation, Office of the Secretary, Office of

23  Administrative Services, and Office of General Counsel

24  employed by the Department of Labor and Employment Security as

25  of March 1, 2001 may be given hiring priority by the

26  Department of Insurance, and at least 300 of these employees

27  shall be offered employment by the Department of Insurance,

28  effective October 1, 2001. To the extent feasible, the

29  positions established by the Department of Insurance will be

30  at pay grades comparable to the positions established by the

31  Department of Labor and Employment Security based on the


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                                          HB 1655, First Engrossed



  1  classification code and specifications of the positions for

  2  work to be performed at the Department of Insurance. Offers of

  3  employment to the 300 employees must be tendered no later than

  4  August 15, 2001. The Department of Labor and Employment

  5  Security shall offer, and if accepted provide, job placement

  6  assistance to those employees not offered employment by the

  7  Department of Insurance. After October 1, 2001, such

  8  assistance, upon request, shall be provided to these employees

  9  by the Agency for Workforce Innovation. The Department of

10  Insurance shall determine the number of positions needed to

11  administer the provisions of chapter 440, Florida Statutes.

12  The number of positions the department determines is needed

13  may not exceed the number of authorized positions and salary

14  and benefits that was authorized for the Division of Workers'

15  Compensation within the Department of Labor and Employment

16  Security prior to the transfer. Upon transfer of the Division

17  of Workers' Compensation, the number of required positions as

18  determined by the department shall be authorized within the

19  agency. The Department of Insurance is further authorized to

20  reassign, reorganize, or otherwise transfer positions to

21  appropriate administrative subdivisions within the department

22  and to establish such regional offices as are necessary to

23  properly enforce and administer its responsibilities under the

24  Florida Insurance Code and chapter 440, Florida Statutes. The

25  department may also enter into contracts with public or

26  private entities to administer its duties and responsibilities

27  associated with the transfer of the Division of Workers'

28  Compensation. All existing contracts related to those

29  functions that are transferred to the Department of Insurance

30  are subject to cancellation or renewal upon review by the

31  Department of Insurance.


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                                          HB 1655, First Engrossed



  1         (2)  Three senior attorney positions and one

  2  administrative assistant III position, and the related

  3  property and unexpended balances of appropriations,

  4  allocations, and other funds, are transferred from the Office

  5  of General Counsel of the Department of Labor and Employment

  6  Security to the Department of Insurance by a type two

  7  transfer, as defined in section 20.06(2), Florida Statutes.

  8         (3)  The Office of the Judges of Compensation Claims is

  9  transferred by a type two transfer, as defined in section

10  20.06(2), Florida Statutes, from the Department of Labor and

11  Employment Security to the Division of Administrative Hearings

12  of the Department of Management Services.

13         (4)  Four positions within the Division of Workers'

14  Compensation of the Department of Labor and Employment

15  Security responsible for coding or entering data contained

16  within final orders issued by the judges of compensation

17  claims are transferred by a type two transfer, as defined in

18  section 20.06(2), Florida Statutes, to the Office of the

19  Judges of Compensation Claims within the Division of

20  Administrative Hearings of the Department of Management

21  Services.

22         (5)  Ten positions within the Division of Workers'

23  Compensation of the Department of Labor and Employment

24  Security responsible for receiving and preparing docketing

25  orders for the petitions for benefits and for receiving and

26  entering data related to the petitions for benefits are

27  transferred by a type two transfer, as defined in section

28  20.06(2), Florida Statutes, to the Office of the Judges of

29  Compensation Claims within the Division of Administrative

30  Hearings of the Department of Management Services.

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                                          HB 1655, First Engrossed



  1         (6)  Four positions within the Division of Workers'

  2  Compensation of the Department of Labor and Employment

  3  Security responsible for financial management, accounting, and

  4  budgeting for the Office of the Judges of Compensation Claims

  5  are transferred by a type two transfer, as defined in section

  6  20.06(2), Florida Statutes, to the Office of the Judges of

  7  Compensation Claims within the Division of Administrative

  8  Hearings of the Department of Management Services.

  9         (7)  Effective July 1, 2001, 29 full-time equivalent

10  positions from the Division of Workers' Compensation of the

11  Department of Labor and Employment Security and the records,

12  property, and unexpended balances of appropriations,

13  allocations, and other funds related to oversight of medical

14  services in workers' compensation provider relations, dispute

15  and complaint resolution, program evaluation, and data

16  management are transferred by a type two transfer, as defined

17  in section 20.06(2), Florida Statutes, from the Department of

18  Labor and Employment Security to the Agency for Health Care

19  Administration. However, the claims review functions and

20  three-member panel shall not be so transferred and shall be

21  retained by the Department of Insurance.

22         (8)  All statutory powers, duties, functions, rules,

23  records, personnel, property, and unexpended balances of

24  appropriations, allocations, and other funds of the Division

25  of Workers' Compensation, Office of Medical Services and

26  Rehabilitation, related to reemployment, training and

27  education, obligations to rehire, and preferred worker

28  requirements, consisting of 98 full-time equivalent positions,

29  are transferred by a type two transfer, as defined in section

30  20.06(2), Florida Statutes, from the Department of Labor and

31  Employment Security to the Department of Education.


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                                          HB 1655, First Engrossed



  1         (9)  Except as provided in this section, the records,

  2  property, and unexpended balances of appropriations,

  3  allocations, and other funds and resources of the Office of

  4  the Secretary and the Office of Administrative Services of the

  5  Department of Labor and Employment Security which support the

  6  activities and functions of the Division of Workers'

  7  Compensation are transferred by a type two transfer as defined

  8  in section 20.06(2), Florida Statutes, to the Department of

  9  Insurance. The Department of Insurance, in consultation with

10  the Department of Labor and Employment Security, shall

11  determine the number of positions needed for administrative

12  support of the programs within the Division of Workers'

13  Compensation as transferred to the Department of Insurance.

14  The number of administrative support positions that the

15  Department of Insurance determines is needed may not exceed

16  the number of administrative support positions that was

17  authorized for the Department of Labor and Employment Security

18  for this purpose prior to the transfer. Upon transfer of the

19  Division of Workers' Compensation, the number of required

20  administrative support positions as determined by the

21  Department of Insurance shall be authorized within the

22  Department of Insurance.

23         (10)  All the personnel, records, property, and

24  unexpended balances of appropriations, allocations, and other

25  funds and resources of the Office of the Secretary and the

26  Office of Administrative Services of the Department of Labor

27  and Employment Security which support the activities and

28  functions transferred under subsections (7) and (8) to the

29  Department of Education are transferred by a type two transfer

30  as defined in section 20.06(2), Florida Statutes, to the

31  Department of Education.


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                                          HB 1655, First Engrossed



  1         (11)  The records, property, and unexpended balances of

  2  appropriations, allocations, and other funds and resources of

  3  the Office of the Secretary and the Office of Administrative

  4  Services of the Department of Labor and Employment Security

  5  which support the activities and functions transferred under

  6  subsection (7) to the Agency for Health Care Administration

  7  are transferred by a type two transfer as defined in section

  8  20.06(2), Florida Statutes, to the Agency for Health Care

  9  Administration.

10         (12)  Effective July 1, 2001, all powers, duties,

11  functions, rules, records, personnel, property, and unexpended

12  balances of appropriations, allocations, and other funds of

13  the Unemployment Appeals Commission relating to the

14  commission's specified authority, powers, duties, and

15  responsibilities are transferred by a type two transfer, as

16  defined in s. 20.06(2), Florida Statutes, to the Agency for

17  Workforce Innovation.

18         (13)  Effective July 1, 2001, all powers, duties,

19  functions, rules, records, personnel, property, and unexpended

20  balances of appropriations, allocations, and other funds of

21  the Public Employees Relations Commission relating to the

22  commission's specified authority, powers, duties, and

23  responsibilities are transferred by a type two transfer, as

24  defined in s. 20.06(2), Florida Statutes, to the Department of

25  Management Services.

26         (14)  Effective July 1, 2001, the Office of Information

27  Systems is transferred by a type two transfer, as defined in

28  s. 20.06(2), Florida Statutes, from the Department of Labor

29  and Employment Security to the State Technology Office. Upon

30  completion of this transfer, the State Technology Office and

31  the Department of Insurance shall enter into discussions to


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                                          HB 1655, First Engrossed



  1  determine whether it would be technologically feasible and

  2  cost effective to separate the Workers' Compensation

  3  Integrated System from its current mainframe platform and

  4  transfer ownership of this system to the Department of

  5  Insurance. If the Department of Insurance ultimately

  6  determines that it is technologically feasible and cost

  7  effective to transfer ownership of the Workers' Compensation

  8  Integrated System from the State Technology Office to the

  9  Department of Insurance, the State Technology Office and the

10  Department of Insurance shall jointly develop and implement a

11  plan to transfer this system to the Department of Insurance.

12         (15)(a)  Effective July 1, 2001, the records, property,

13  and unexpended balances of appropriations, allocations, and

14  other funds and resources of the Office of the Secretary and

15  the Office of Administrative Services of the Department of

16  Labor and Employment Security which support the activities and

17  functions transferred under subsection (12) to the Agency for

18  Workforce Innovation are transferred as provided in s.

19  20.06(2), Florida Statutes, to the Agency for Workforce

20  Innovation.

21         (b)  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 (13) to the Department

27  of Management Services are transferred as provided in s.

28  20.06(2), Florida Statutes, to the Department of Management

29  Services.

30         (c)  Effective July 1, 2001, the records, property, and

31  unexpended balances of appropriations, allocations, and other


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                                          HB 1655, First Engrossed



  1  funds and resources of the Office of the Secretary and the

  2  Office of Administrative Services of the Department of Labor

  3  and Employment Security which support the activities and

  4  functions transferred under subsection (14) to the State

  5  Technology Office are transferred as provided in s. 20.06(2),

  6  Florida Statutes, to the State Technology Office.

  7         (16)  This act does not affect the validity of any

  8  judicial or administrative proceeding involving the Department

  9  of Labor and Employment Security, which is pending as of the

10  effective date of any transfer under this act. The successor

11  department, agency, or entity responsible for the program,

12  activity, or function relative to the proceeding shall be

13  substituted, as of the effective date of the applicable

14  transfer under this act, for the Department of Labor and

15  Employment Security as a party in interest in any such

16  proceedings.

17         (17)  Effective July 1, 2001, eleven full-time

18  equivalent positions from the Division of Workers'

19  Compensation of the Department of Labor and Employment

20  Security, and the powers, duties, functions, rules, records,

21  personnel, property, and unexpended balances of

22  appropriations, allocations, and other funds related to the

23  administration of child labor laws under chapter 450, Florida

24  Statutes, are transferred by a type two transfer, as defined

25  in section 20.06(2), Florida Statutes, from the Department of

26  Labor and Employment Security to the Department of Business

27  and Professional Regulation.

28         (18)  Effective July 1, 2001, thirty full-time

29  equivalent positions from the Compliance and Enforcement

30  Program in the Office of the Secretary and Administrative

31  Services and one senior attorney and one administrative


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                                          HB 1655, First Engrossed



  1  secretary from the Office of General Counsel in the Office of

  2  the Secretary and Administrative Services, and the powers,

  3  duties, functions, rules, records, personnel, property, and

  4  unexpended balances of appropriations, allocations, and other

  5  funds of the Office of the Secretary and Administrative

  6  Services of the Department of Labor and Employment Security

  7  related to the regulation of labor organizations under chapter

  8  447, Florida Statutes, and the administration of migrant labor

  9  and farm labor laws under chapter 450, Florida Statutes, are

10  transferred by a type two transfer, as defined in section

11  20.06 (2), Florida Statutes, from the Department of Labor and

12  Employment Security to the Department of Business and

13  Professional Regulation.

14         (19)  Effective July 1, 2001, any other powers, duties,

15  functions, rules, records, property, and unexpended balances

16  of appropriations, allocations, and other funds of the

17  Department of Labor and Employment Security not otherwise

18  transferred by this act, relating to workplace regulation and

19  enforcement, including, but not limited to, those under

20  chapter 448, Florida Statutes, are transferred by a type two

21  transfer, as defined in section 20.06(2), Florida Statutes,

22  from the Department of Labor and Employment Security to the

23  Department of Business and Professional Regulation.

24         (20)  Effective July 1, 2001, the records, property,

25  and unexpended balances of appropriations, allocations, and

26  other funds and resources of the Office of the Secretary and

27  Administrative Services of the Department of Labor and

28  Employment Security which support the activities and functions

29  transferred under subsections (17), (18), and (19) to the

30  Department of Business and Professional Regulation are

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                                          HB 1655, First Engrossed



  1  transferred as provided in section 20.06(2), Florida Statutes,

  2  to the Department of Business and Professional Regulation.

  3         (21)  Notwithstanding any other provision of law, any

  4  binding contract or interagency agreement existing on or

  5  before October 1, 2001, between the Department of Labor and

  6  Employment Security, or an entity or agent of the department,

  7  and any other agency, entity, or person shall continue as a

  8  binding contract or agreement for the remainder of the term of

  9  such contract or agreement with the successor department,

10  agency, or entity responsible for the program, activity, or

11  functions relative to the contract or agreement.

12         (22)  All rules adopted by the Department of Labor and

13  Employment Security and the authority for such rules relating

14  to the regulation of workers' compensation medical services

15  are transferred to the Agency for Health Care Administration.

16         Section 2.  Paragraph (k) is added to subsection (2) of

17  section 20.13, Florida Statutes, to read:

18         20.13  Department of Insurance.--There is created a

19  Department of Insurance.

20         (2)  The following divisions of the Department of

21  Insurance are established:

22         (k)  Division of Workers' Compensation.

23         Section 3.  Section 20.171, Florida Statutes, is

24  repealed.

25         Section 4.  Paragraph (1) of subsection (2) of section

26  110.205, Florida Statutes, is amended to read:

27         110.205  Career service; exemptions.--

28         (2)  EXEMPT POSITIONS.--The exempt positions which are

29  not covered by this part include the following, provided that

30  no position, except for positions established for a limited

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                                          HB 1655, First Engrossed



  1  period of time pursuant to paragraph (h), shall be exempted if

  2  the position reports to a position in the career service:

  3         (l)  All assistant division director, deputy division

  4  director, and bureau chief positions in any department, and

  5  those positions determined by the department to have

  6  managerial responsibilities comparable to such positions,

  7  which positions include, but are not limited to, positions in

  8  the Department of Health, the Department of Children and

  9  Family Services, and the Department of Corrections that are

10  assigned primary duties of serving as the superintendent or

11  assistant superintendent, or warden or assistant warden, of an

12  institution; positions in the Department of Corrections that

13  are assigned primary duties of serving as the circuit

14  administrator or deputy circuit administrator; positions in

15  the Department of Transportation that are assigned primary

16  duties of serving as regional toll managers and managers of

17  offices as defined in s. 20.23(3)(d)3. and (4)(d); positions

18  in the Department of Environmental Protection that are

19  assigned the duty of an Environmental Administrator or program

20  administrator; those positions described in s. 20.171 as

21  included in the Senior Management Service; and positions in

22  the Department of Health that are assigned the duties of

23  Environmental Administrator, Assistant County Health

24  Department Director, and County Health Department Financial

25  Administrator. Unless otherwise fixed by law, the department

26  shall set the salary and benefits of these positions in

27  accordance with the rules established for the Selected Exempt

28  Service.

29         Section 5.  Section 440.015, Florida Statutes, is

30  amended to read:

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                                          HB 1655, First Engrossed



  1         440.015  Legislative intent.--It is the intent of the

  2  Legislature that the Workers' Compensation Law be interpreted

  3  so as to assure the quick and efficient delivery of disability

  4  and medical benefits to an injured worker and to facilitate

  5  the worker's return to gainful reemployment at a reasonable

  6  cost to the employer. It is the specific intent of the

  7  Legislature that workers' compensation cases shall be decided

  8  on their merits. The workers' compensation system in Florida

  9  is based on a mutual renunciation of common-law rights and

10  defenses by employers and employees alike. In addition, it is

11  the intent of the Legislature that the facts in a workers'

12  compensation case are not to be interpreted liberally in favor

13  of either the rights of the injured worker or the rights of

14  the employer. Additionally, the Legislature hereby declares

15  that disputes concerning the facts in workers' compensation

16  cases are not to be given a broad liberal construction in

17  favor of the employee on the one hand or of the employer on

18  the other hand, and the laws pertaining to workers'

19  compensation are to be construed in accordance with the basic

20  principles of statutory construction and not liberally in

21  favor of either employee or employer. It is the intent of the

22  Legislature to ensure the prompt delivery of benefits to the

23  injured worker. Therefore, an efficient and self-executing

24  system must be created which is not an economic or

25  administrative burden. The Division of Workers' Compensation

26  of the Department of Insurance, the Department of Education,

27  and the Agency for Health Care Administration shall administer

28  the Workers' Compensation Law in a manner that which

29  facilitates the self-execution of the system and the process

30  of ensuring a prompt and cost-effective delivery of payments.

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                                          HB 1655, First Engrossed



  1         Section 6.  Subsections (11), (13), and (14) of section

  2  440.02, Florida Statutes, are amended, and subsection (40) is

  3  added to that section, to read:

  4         440.02  Definitions.--When used in this chapter, unless

  5  the context clearly requires otherwise, the following terms

  6  shall have the following meanings:

  7         (11)  "Department" means the Department of Insurance

  8  Labor and Employment Security.

  9         (13)  "Division" means the Division of Workers'

10  Compensation of the Department of Insurance Labor and

11  Employment Security.

12         (14)(a)  "Employee" means any person engaged in any

13  employment under any appointment or contract of hire or

14  apprenticeship, express or implied, oral or written, whether

15  lawfully or unlawfully employed, and includes, but is not

16  limited to, aliens and minors.

17         (b)  "Employee" includes any person who is an officer

18  of a corporation and who performs services for remuneration

19  for such corporation within this state, whether or not such

20  services are continuous.

21         1.  Any officer of a corporation may elect to be exempt

22  from this chapter by filing written notice of the election

23  with the department division as provided in s. 440.05.

24         2.  As to officers of a corporation who are actively

25  engaged in the construction industry, no more than three

26  officers may elect to be exempt from this chapter by filing

27  written notice of the election with the department division as

28  provided in s. 440.05.

29         3.  An officer of a corporation who elects to be exempt

30  from this chapter by filing a written notice of the election

31


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                                          HB 1655, First Engrossed



  1  with the department division as provided in s. 440.05 is not

  2  an employee.

  3

  4  Services are presumed to have been rendered to the corporation

  5  if the officer is compensated by other than dividends upon

  6  shares of stock of the corporation which the officer owns.

  7         (c)  "Employee" includes a sole proprietor or a partner

  8  who devotes full time to the proprietorship or partnership

  9  and, except as provided in this paragraph, elects to be

10  included in the definition of employee by filing notice

11  thereof as provided in s. 440.05. Partners or sole proprietors

12  actively engaged in the construction industry are considered

13  employees unless they elect to be excluded from the definition

14  of employee by filing written notice of the election with the

15  department division as provided in s. 440.05. However, no more

16  than three partners in a partnership that is actively engaged

17  in the construction industry may elect to be excluded. A sole

18  proprietor or partner who is actively engaged in the

19  construction industry and who elects to be exempt from this

20  chapter by filing a written notice of the election with the

21  department division as provided in s. 440.05 is not an

22  employee. For purposes of this chapter, an independent

23  contractor is an employee unless he or she meets all of the

24  conditions set forth in subparagraph (d)1.

25         (d)  "Employee" does not include:

26         1.  An independent contractor, if:

27         a.  The independent contractor maintains a separate

28  business with his or her own work facility, truck, equipment,

29  materials, or similar accommodations;

30         b.  The independent contractor holds or has applied for

31  a federal employer identification number, unless the


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                                          HB 1655, First Engrossed



  1  independent contractor is a sole proprietor who is not

  2  required to obtain a federal employer identification number

  3  under state or federal requirements;

  4         c.  The independent contractor performs or agrees to

  5  perform specific services or work for specific amounts of

  6  money and controls the means of performing the services or

  7  work;

  8         d.  The independent contractor incurs the principal

  9  expenses related to the service or work that he or she

10  performs or agrees to perform;

11         e.  The independent contractor is responsible for the

12  satisfactory completion of work or services that he or she

13  performs or agrees to perform and is or could be held liable

14  for a failure to complete the work or services;

15         f.  The independent contractor receives compensation

16  for work or services performed for a commission or on a

17  per-job or competitive-bid basis and not on any other basis;

18         g.  The independent contractor may realize a profit or

19  suffer a loss in connection with performing work or services;

20         h.  The independent contractor has continuing or

21  recurring business liabilities or obligations; and

22         i.  The success or failure of the independent

23  contractor's business depends on the relationship of business

24  receipts to expenditures.

25

26  However, the determination as to whether an individual

27  included in the Standard Industrial Classification Manual of

28  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

29  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

30  2448, or 2449, or a newspaper delivery person, is an

31  independent contractor is governed not by the criteria in this


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                                          HB 1655, First Engrossed



  1  paragraph but by common-law principles, giving due

  2  consideration to the business activity of the individual.

  3         2.  A real estate salesperson or agent, if that person

  4  agrees, in writing, to perform for remuneration solely by way

  5  of commission.

  6         3.  Bands, orchestras, and musical and theatrical

  7  performers, including disk jockeys, performing in licensed

  8  premises as defined in chapter 562, if a written contract

  9  evidencing an independent contractor relationship is entered

10  into before the commencement of such entertainment.

11         4.  An owner-operator of a motor vehicle who transports

12  property under a written contract with a motor carrier which

13  evidences a relationship by which the owner-operator assumes

14  the responsibility of an employer for the performance of the

15  contract, if the owner-operator is required to furnish the

16  necessary motor vehicle equipment and all costs incidental to

17  the performance of the contract, including, but not limited

18  to, fuel, taxes, licenses, repairs, and hired help; and the

19  owner-operator is paid a commission for transportation service

20  and is not paid by the hour or on some other time-measured

21  basis.

22         5.  A person whose employment is both casual and not in

23  the course of the trade, business, profession, or occupation

24  of the employer.

25         6.  A volunteer, except a volunteer worker for the

26  state or a county, municipality, or other governmental entity.

27  A person who does not receive monetary remuneration for

28  services is presumed to be a volunteer unless there is

29  substantial evidence that a valuable consideration was

30  intended by both employer and employee. For purposes of this

31  chapter, the term "volunteer" includes, but is not limited to:


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                                          HB 1655, First Engrossed



  1         a.  Persons who serve in private nonprofit agencies and

  2  who receive no compensation other than expenses in an amount

  3  less than or equivalent to the standard mileage and per diem

  4  expenses provided to salaried employees in the same agency or,

  5  if such agency does not have salaried employees who receive

  6  mileage and per diem, then such volunteers who receive no

  7  compensation other than expenses in an amount less than or

  8  equivalent to the customary mileage and per diem paid to

  9  salaried workers in the community as determined by the

10  department division; and

11         b.  Volunteers participating in federal programs

12  established under Pub. L. No. 93-113.

13         7.  Any officer of a corporation who elects to be

14  exempt from this chapter.

15         8.  A sole proprietor or officer of a corporation who

16  actively engages in the construction industry, and a partner

17  in a partnership that is actively engaged in the construction

18  industry, who elects to be exempt from the provisions of this

19  chapter. Such sole proprietor, officer, or partner is not an

20  employee for any reason until the notice of revocation of

21  election filed pursuant to s. 440.05 is effective.

22         9.  An exercise rider who does not work for a single

23  horse farm or breeder, and who is compensated for riding on a

24  case-by-case basis, provided a written contract is entered

25  into prior to the commencement of such activity which

26  evidences that an employee/employer relationship does not

27  exist.

28         10.  A taxicab, limousine, or other passenger

29  vehicle-for-hire driver who operates said vehicles pursuant to

30  a written agreement with a company which provides any

31  dispatch, marketing, insurance, communications, or other


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                                          HB 1655, First Engrossed



  1  services under which the driver and any fees or charges paid

  2  by the driver to the company for such services are not

  3  conditioned upon, or expressed as a proportion of, fare

  4  revenues.

  5         (40)  "Agency" means the Agency for Health Care

  6  Administration.

  7         Section 7.  Section 440.021, Florida Statutes, is

  8  amended to read:

  9         440.021  Exemption of workers' compensation from

10  chapter 120.--Workers' compensation adjudications by judges of

11  compensation claims are exempt from chapter 120, and no judge

12  of compensation claims shall be considered an agency or a part

13  thereof. Communications of the result of investigations by the

14  department division pursuant to s. 440.185(4) are exempt from

15  chapter 120. In all instances in which the department division

16  institutes action to collect a penalty or interest which may

17  be due pursuant to this chapter, the penalty or interest shall

18  be assessed without hearing, and the party against which such

19  penalty or interest is assessed shall be given written notice

20  of such assessment and shall have the right to protest within

21  20 days of such notice. Upon receipt of a timely notice of

22  protest and after such investigation as may be necessary, the

23  department division shall, if it agrees with such protest,

24  notify the protesting party that the assessment has been

25  revoked.  If the department division does not agree with the

26  protest, it shall refer the matter to the judge of

27  compensation claims for determination pursuant to s.

28  440.25(2)-(5).  Such action of the department division is

29  exempt from the provisions of chapter 120.

30         Section 8.  Section 440.05, Florida Statutes, is

31  amended to read:


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                                          HB 1655, First Engrossed



  1         440.05  Election of exemption; revocation of election;

  2  notice; certification.--

  3         (1)  Each corporate officer who elects not to accept

  4  the provisions of this chapter or who, after electing such

  5  exemption, revokes that exemption shall mail to the department

  6  division in Tallahassee notice to such effect in accordance

  7  with a form to be prescribed by the department division.

  8         (2)  Each sole proprietor or partner who elects to be

  9  included in the definition of "employee" or who, after such

10  election, revokes that election must mail to the department

11  division in Tallahassee notice to such effect, in accordance

12  with a form to be prescribed by the department division.

13         (3)  Each sole proprietor, partner, or officer of a

14  corporation who is actively engaged in the construction

15  industry and who elects an exemption from this chapter or who,

16  after electing such exemption, revokes that exemption, must

17  mail a written notice to such effect to the department

18  division on a form prescribed by the department division

19  notice of election to be exempt from the provisions of this

20  chapter must be notarized and under oath. The notice of

21  election to be exempt which is submitted to the department

22  division by the sole proprietor, partner, or officer of a

23  corporation must list the name, federal tax identification

24  number, social security number, all certified or registered

25  licenses issued pursuant to chapter 489 held by the person

26  seeking the exemption, a copy of relevant documentation as to

27  employment status filed with the Internal Revenue Service as

28  specified by the department division, a copy of the relevant

29  occupational license in the primary jurisdiction of the

30  business, and, for corporate officers and partners, the

31  registration number of the corporation or partnership filed


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                                          HB 1655, First Engrossed



  1  with the Division of Corporations of the Department of State.

  2  The notice of election to be exempt must identify each sole

  3  proprietorship, partnership, or corporation that employs the

  4  person electing the exemption and must list the social

  5  security number or federal tax identification number of each

  6  such employer and the additional documentation required by

  7  this section. In addition, the notice of election to be exempt

  8  must provide that the sole proprietor, partner, or officer

  9  electing an exemption is not entitled to benefits under this

10  chapter, must provide that the election does not exceed

11  exemption limits for officers and partnerships provided in s.

12  440.02, and must certify that any employees of the sole

13  proprietor, partner, or officer electing an exemption are

14  covered by workers' compensation insurance. Upon receipt of

15  the notice of the election to be exempt, receipt of all

16  application fees, and a determination by the department

17  division that the notice meets the requirements of this

18  subsection, the department division shall issue a

19  certification of the election to the sole proprietor, partner,

20  or officer, unless the department division determines that the

21  information contained in the notice is invalid. The department

22  division shall revoke a certificate of election to be exempt

23  from coverage upon a determination by the department division

24  that the person does not meet the requirements for exemption

25  or that the information contained in the notice of election to

26  be exempt is invalid. The certificate of election must list

27  the names of the sole proprietorship, partnership, or

28  corporation listed in the request for exemption. A new

29  certificate of election must be obtained each time the person

30  is employed by a new sole proprietorship, partnership, or

31  corporation that is not listed on the certificate of election.


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                                          HB 1655, First Engrossed



  1  A copy of the certificate of election must be sent to each

  2  workers' compensation carrier identified in the request for

  3  exemption. Upon filing a notice of revocation of election, a

  4  sole proprietor, partner, or officer who is a subcontractor

  5  must notify her or his contractor.  Upon revocation of a

  6  certificate of election of exemption by the department

  7  division, the department division shall notify the workers'

  8  compensation carriers identified in the request for exemption.

  9         (4)  The notice of election to be exempt from the

10  provisions of this chapter must contain a notice that clearly

11  states in substance the following: "Any person who, knowingly

12  and with intent to injure, defraud, or deceive the department

13  division or any employer or employee, insurance company, or

14  purposes program, files a notice of election to be exempt

15  containing any false or misleading information is guilty of a

16  felony of the third degree." Each person filing a notice of

17  election to be exempt shall personally sign the notice and

18  attest that he or she has reviewed, understands, and

19  acknowledges the foregoing notice.

20         (5)  A notice given under subsection (1), subsection

21  (2), or subsection (3) shall become effective when issued by

22  the department division or 30 days after an application for an

23  exemption is received by the department division, whichever

24  occurs first. However, if an accident or occupational disease

25  occurs less than 30 days after the effective date of the

26  insurance policy under which the payment of compensation is

27  secured or the date the employer qualified as a self-insurer,

28  such notice is effective as of 12:01 a.m. of the day following

29  the date it is mailed to the department division in

30  Tallahassee.

31


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                                          HB 1655, First Engrossed



  1         (6)  A construction industry certificate of election to

  2  be exempt which is issued in accordance with this section

  3  shall be valid for 2 years after the effective date stated

  4  thereon. Both the effective date and the expiration date must

  5  be listed on the face of the certificate by the department

  6  division. The construction industry certificate must expire at

  7  midnight, 2 years from its issue date, as noted on the face of

  8  the exemption certificate. Any person who has received from

  9  the department division a construction industry certificate of

10  election to be exempt which is in effect on December 31, 1998,

11  shall file a new notice of election to be exempt by the last

12  day in his or her birth month following December 1, 1998. A

13  construction industry certificate of election to be exempt may

14  be revoked before its expiration by the sole proprietor,

15  partner, or officer for whom it was issued or by the

16  department division for the reasons stated in this section.

17  At least 60 days prior to the expiration date of a

18  construction industry certificate of exemption issued after

19  December 1, 1998, the department division shall send notice of

20  the expiration date and an application for renewal to the

21  certificateholder at the address on the certificate.

22         (7)  Any contractor responsible for compensation under

23  s. 440.10 may register in writing with the workers'

24  compensation carrier for any subcontractor and shall

25  thereafter be entitled to receive written notice from the

26  carrier of any cancellation or nonrenewal of the policy.

27         (8)(a)  The department division must assess a fee of

28  $50 with each request for a construction industry certificate

29  of election to be exempt or renewal of election to be exempt

30  under this section.

31


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                                          HB 1655, First Engrossed



  1         (b)  The funds collected by the department division

  2  shall be used to administer this section, to audit the

  3  businesses that pay the fee for compliance with any

  4  requirements of this chapter, and to enforce compliance with

  5  the provisions of this chapter.

  6         (9)  The department division may by rule prescribe

  7  forms and procedures for filing an election of exemption,

  8  revocation of election to be exempt, and notice of election of

  9  coverage for all employers and require specified forms to be

10  submitted by all employers in filing for the election of

11  exemption. The department division may by rule prescribe forms

12  and procedures for issuing a certificate of the election of

13  exemption.

14         Section 9.  Paragraph (d) of subsection (7) of section

15  440.09, Florida Statutes, is amended to read:

16         440.09  Coverage.--

17         (7)

18         (d)  The department division shall provide by rule for

19  the authorization and regulation of drug-testing policies,

20  procedures, and methods. Testing of injured employees shall

21  not commence until such rules are adopted.

22         Section 10.  Paragraphs (f) and (g) of subsection (1)

23  of section 440.10, Florida Statutes, are amended to read:

24         440.10  Liability for compensation.--

25         (1)

26         (f)  If an employer willfully fails to secure

27  compensation as required by this chapter, the department

28  division may assess against the employer a penalty not to

29  exceed $5,000 for each employee of that employer who is

30  classified by the employer as an independent contractor but

31  who is found by the department division to not meet the


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                                          HB 1655, First Engrossed



  1  criteria for an independent contractor that are set forth in

  2  s. 440.02.

  3         (g)  For purposes of this section, a person is

  4  conclusively presumed to be an independent contractor if:

  5         1.  The independent contractor provides the general

  6  contractor with an affidavit stating that he or she meets all

  7  the requirements of s. 440.02(14)(d); and

  8         2.  The independent contractor provides the general

  9  contractor with a valid certificate of workers' compensation

10  insurance or a valid certificate of exemption issued by the

11  department division.

12

13  A sole proprietor, partner, or officer of a corporation who

14  elects exemption from this chapter by filing a certificate of

15  election under s. 440.05 may not recover benefits or

16  compensation under this chapter.  An independent contractor

17  who provides the general contractor with both an affidavit

18  stating that he or she meets the requirements of s.

19  440.02(14)(d) and a certificate of exemption is not an

20  employee under s. 440.02(14)(c) and may not recover benefits

21  under this chapter.  For purposes of determining the

22  appropriate premium for workers' compensation coverage,

23  carriers may not consider any person who meets the

24  requirements of this paragraph to be an employee.

25         Section 11.  Subsection (2), paragraph (a) of

26  subsection (3), and paragraph (g) of subsection (7) of section

27  440.102, Florida Statutes, are amended to read:

28         440.102  Drug-free workplace program requirements.--The

29  following provisions apply to a drug-free workplace program

30  implemented pursuant to law or to rules adopted by the Agency

31  for Health Care Administration:


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                                          HB 1655, First Engrossed



  1         (2)  DRUG TESTING.--An employer may test an employee or

  2  job applicant for any drug described in paragraph (1)(c). In

  3  order to qualify as having established a drug-free workplace

  4  program which affords an employer the ability to qualify for

  5  the discounts provided under s. 627.0915 and deny medical and

  6  indemnity benefits, under this chapter all drug testing

  7  conducted by employers shall be in conformity with the

  8  standards and procedures established in this section and all

  9  applicable rules adopted pursuant to this section. However, an

10  employer does not have a legal duty under this section to

11  request an employee or job applicant to undergo drug testing.

12  If an employer fails to maintain a drug-free workplace program

13  in accordance with the standards and procedures established in

14  this section and in applicable rules, the employer shall not

15  be eligible for discounts under s. 627.0915. All employers

16  qualifying for and receiving discounts provided under s.

17  627.0915 must be reported annually by the insurer to the

18  department division.

19         (3)  NOTICE TO EMPLOYEES AND JOB APPLICANTS.--

20         (a)  One time only, prior to testing, an employer shall

21  give all employees and job applicants for employment a written

22  policy statement which contains:

23         1.  A general statement of the employer's policy on

24  employee drug use, which must identify:

25         a.  The types of drug testing an employee or job

26  applicant may be required to submit to, including

27  reasonable-suspicion drug testing or drug testing conducted on

28  any other basis.

29         b.  The actions the employer may take against an

30  employee or job applicant on the basis of a positive confirmed

31  drug test result.


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                                          HB 1655, First Engrossed



  1         2.  A statement advising the employee or job applicant

  2  of the existence of this section.

  3         3.  A general statement concerning confidentiality.

  4         4.  Procedures for employees and job applicants to

  5  confidentially report to a medical review officer the use of

  6  prescription or nonprescription medications to a medical

  7  review officer both before and after being tested.

  8         5.  A list of the most common medications, by brand

  9  name or common name, as applicable, as well as by chemical

10  name, which may alter or affect a drug test. A list of such

11  medications as developed by the Agency for Health Care

12  Administration shall be available to employers through the

13  Division of Workers' Compensation of the Department of Labor

14  and Employment Security.

15         6.  The consequences of refusing to submit to a drug

16  test.

17         7.  A representative sampling of names, addresses, and

18  telephone numbers of employee assistance programs and local

19  drug rehabilitation programs.

20         8.  A statement that an employee or job applicant who

21  receives a positive confirmed test result may contest or

22  explain the result to the medical review officer within 5

23  working days after receiving written notification of the test

24  result; that if an employee's or job applicant's explanation

25  or challenge is unsatisfactory to the medical review officer,

26  the medical review officer shall report a positive test result

27  back to the employer; and that a person may contest the drug

28  test result pursuant to law or to rules adopted by the Agency

29  for Health Care Administration.

30         9.  A statement informing the employee or job applicant

31  of his or her responsibility to notify the laboratory of any


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                                          HB 1655, First Engrossed



  1  administrative or civil action brought pursuant to this

  2  section.

  3         10.  A list of all drugs for which the employer will

  4  test, described by brand name or common name, as applicable,

  5  as well as by chemical name.

  6         11.  A statement regarding any applicable collective

  7  bargaining agreement or contract and the right to appeal to

  8  the Public Employees Relations Commission or applicable court.

  9         12.  A statement notifying employees and job applicants

10  of their right to consult with a medical review officer for

11  technical information regarding prescription or

12  nonprescription medication.

13         (7)  EMPLOYER PROTECTION.--

14         (g)  This section does not prohibit an employer from

15  conducting medical screening or other tests required,

16  permitted, or not disallowed by any statute, rule, or

17  regulation for the purpose of monitoring exposure of employees

18  to toxic or other unhealthy substances in the workplace or in

19  the performance of job responsibilities. Such screening or

20  testing is limited to the specific substances expressly

21  identified in the applicable statute, rule, or regulation,

22  unless prior written consent of the employee is obtained for

23  other tests. Such screening or testing need not be in

24  compliance with the rules adopted by the Agency for Health

25  Care Administration under this chapter or under s. 112.0455. A

26  public employer may, through the use of an unbiased selection

27  procedure, conduct random drug tests of employees occupying

28  safety-sensitive or special-risk positions if the testing is

29  performed in accordance with drug-testing rules adopted by the

30  Agency for Health Care Administration and the Department of

31  Insurance Labor and Employment Security. If applicable, random


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                                          HB 1655, First Engrossed



  1  drug testing must be specified in a collective bargaining

  2  agreement as negotiated by the appropriate certified

  3  bargaining agent before such testing is implemented.

  4         Section 12.  Section 440.103, Florida Statutes, is

  5  amended to read:

  6         440.103  Building permits; identification of minimum

  7  premium policy.--Except as otherwise provided in this chapter,

  8  every employer shall, as a condition to receiving a building

  9  permit, show proof that it has secured compensation for its

10  employees under this chapter as provided in ss. 440.10 and

11  440.38. Such proof of compensation must be evidenced by a

12  certificate of coverage issued by the carrier, a valid

13  exemption certificate approved by the division or the

14  department, or a copy of the employer's authority to

15  self-insure and shall be presented each time the employer

16  applies for a building permit. As provided in s. 627.413(5),

17  each certificate of coverage must show, on its face, whether

18  or not coverage is secured under the minimum premium

19  provisions of rules adopted by rating organizations licensed

20  by the Department of Insurance. The words "minimum premium

21  policy" or equivalent language shall be typed, printed,

22  stamped, or legibly handwritten.

23         Section 13.  Paragraph (a) of subsection (2) of section

24  440.105, Florida Statutes, is amended to read:

25         440.105  Prohibited activities; reports; penalties;

26  limitations.--

27         (2)  Whoever violates any provision of this subsection

28  commits a misdemeanor of the second degree, punishable as

29  provided in s. 775.082 or s. 775.083.

30         (a)  It shall be unlawful for any employer to

31  knowingly:


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                                          HB 1655, First Engrossed



  1         1.  Coerce or attempt to coerce, as a precondition to

  2  employment or otherwise, an employee to obtain a certificate

  3  of election of exemption pursuant to s. 440.05.

  4         2.  Discharge or refuse to hire an employee or job

  5  applicant because the employee or applicant has filed a claim

  6  for benefits under this chapter.

  7         3.  Discharge, discipline, or take any other adverse

  8  personnel action against any employee for disclosing

  9  information to the department division or any law enforcement

10  agency relating to any violation or suspected violation of any

11  of the provisions of this chapter or rules promulgated

12  hereunder.

13         4.  Violate a stop-work order issued by the department

14  division pursuant to s. 440.107.

15         Section 14.  Subsections (3) and (4) of section

16  440.106, Florida Statutes, are amended to read:

17         440.106  Civil remedies; administrative penalties.--

18         (3)  Whenever any group or individual self-insurer,

19  carrier, rating bureau, or agent or other representative of

20  any carrier or rating bureau is determined to have violated s.

21  440.105, the department of Insurance may revoke or suspend the

22  authority or certification of any group or individual

23  self-insurer, carrier, agent, or broker.

24         (4)  The department division shall report any

25  contractor determined in violation of requirements of this

26  chapter to the appropriate state licensing board for

27  disciplinary action.

28         Section 15.  Section 440.107, Florida Statutes, is

29  amended to read:

30         440.107  Department Division powers to enforce employer

31  compliance with coverage requirements.--


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                                          HB 1655, First Engrossed



  1         (1)  The Legislature finds that the failure of an

  2  employer to comply with the workers' compensation coverage

  3  requirements under this chapter poses an immediate danger to

  4  public health, safety, and welfare. The Legislature authorizes

  5  the department division to secure employer compliance with the

  6  workers' compensation coverage requirements and authorizes the

  7  department division to conduct investigations for the purpose

  8  of ensuring employer compliance.

  9         (2)  The department division and its authorized

10  representatives may enter and inspect any place of business at

11  any reasonable time for the limited purpose of investigating

12  compliance with workers' compensation coverage requirements

13  under this chapter. Each employer shall keep true and accurate

14  business records that contain such information as the

15  department division prescribes by rule. The business records

16  must contain information necessary for the department division

17  to determine compliance with workers' compensation coverage

18  requirements and must be maintained within this state by the

19  business, in such a manner as to be accessible within a

20  reasonable time upon request by the department division. The

21  business records must be open to inspection and be available

22  for copying by the department division at any reasonable time

23  and place and as often as necessary. The department division

24  may require from any employer any sworn or unsworn reports,

25  pertaining to persons employed by that employer, deemed

26  necessary for the effective administration of the workers'

27  compensation coverage requirements.

28         (3)  In discharging its duties, the department division

29  may administer oaths and affirmations, certify to official

30  acts, issue subpoenas to compel the attendance of witnesses

31  and the production of books, papers, correspondence,


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                                          HB 1655, First Engrossed



  1  memoranda, and other records deemed necessary by the

  2  department division as evidence in order to ensure proper

  3  compliance with the coverage provisions of this chapter.

  4         (4)  If a person has refused to obey a subpoena to

  5  appear before the department division or its authorized

  6  representative and produce evidence requested by the

  7  department division or to give testimony about the matter that

  8  is under investigation, a court has jurisdiction to issue an

  9  order requiring compliance with the subpoena if the court has

10  jurisdiction in the geographical area where the inquiry is

11  being carried on or in the area where the person who has

12  refused the subpoena is found, resides, or transacts business.

13  Failure to obey such a court order may be punished by the

14  court as contempt.

15         (5)  Whenever the department division determines that

16  an employer who is required to secure the payment to his or

17  her employees of the compensation provided for by this chapter

18  has failed to do so, such failure shall be deemed an immediate

19  serious danger to public health, safety, or welfare sufficient

20  to justify service by the department division of a stop-work

21  order on the employer, requiring the cessation of all business

22  operations at the place of employment or job site. The order

23  shall take effect upon the date of service upon the employer,

24  unless the employer provides evidence satisfactory to the

25  department division of having secured any necessary insurance

26  or self-insurance and pays a civil penalty to the department

27  division, to be deposited by the department division into the

28  Workers' Compensation Administration Trust Fund, in the amount

29  of $100 per day for each day the employer was not in

30  compliance with this chapter.

31


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                                          HB 1655, First Engrossed



  1         (6)  The department division may file a complaint in

  2  the circuit court in and for Leon County to enjoin any

  3  employer, who has failed to secure compensation as required by

  4  this chapter, from employing individuals and from conducting

  5  business until the employer presents evidence satisfactory to

  6  the department division of having secured payment for

  7  compensation and pays a civil penalty to the department

  8  division, to be deposited by the department division into the

  9  Workers' Compensation Administration Trust Fund, in the amount

10  of $100 per day for each day the employer was not in

11  compliance with this chapter.

12         (7)  In addition to any penalty, stop-work order, or

13  injunction, the department division may assess against any

14  employer, who has failed to secure the payment of compensation

15  as required by this chapter, a penalty in the amount of:

16         (a)  Twice the amount the employer would have paid

17  during periods it illegally failed to secure payment of

18  compensation in the preceding 3-year period based on the

19  employer's payroll during the preceding 3-year period; or

20         (b)  One thousand dollars, whichever is greater.

21

22  Any penalty assessed under this subsection is due within 30

23  days after the date on which the employer is notified, except

24  that, if the department division has posted a stop-work order

25  or obtained injunctive relief against the employer, payment is

26  due, in addition to those conditions set forth in this

27  section, as a condition to relief from a stop-work order or an

28  injunction. Interest shall accrue on amounts not paid when due

29  at the rate of 1 percent per month.

30         (8)  The department division may bring an action in

31  circuit court to recover penalties assessed under this


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                                          HB 1655, First Engrossed



  1  section, including any interest owed to the department

  2  division pursuant to this section. In any action brought by

  3  the department division pursuant to this section in which it

  4  prevails, the circuit court shall award costs, including the

  5  reasonable costs of investigation and a reasonable attorney's

  6  fee.

  7         (9)  Any judgment obtained by the department division

  8  and any penalty due pursuant to the service of a stop-work

  9  order or otherwise due under this section shall, until

10  collected, constitute a lien upon the entire interest of the

11  employer, legal or equitable, in any property, real or

12  personal, tangible or intangible; however, such lien is

13  subordinate to claims for unpaid wages and any prior recorded

14  liens, and a lien created by this section is not valid against

15  any person who, subsequent to such lien and in good faith and

16  for value, purchases real or personal property from such

17  employer or becomes the mortgagee on real or personal property

18  of such employer, or against a subsequent attaching creditor,

19  unless, with respect to real estate of the employer, a notice

20  of the lien is recorded in the public records of the county

21  where the real estate is located, and with respect to personal

22  property of the employer, the notice is recorded with the

23  Secretary of State.

24         (10)  Any law enforcement agency in the state may, at

25  the request of the department division, render any assistance

26  necessary to carry out the provisions of this section,

27  including, but not limited to, preventing any employee or

28  other person from remaining at a place of employment or job

29  site after a stop-work order or injunction has taken effect.

30         (11)  Actions by the department division under this

31  section must be contested as provided in chapter 120. All


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                                          HB 1655, First Engrossed



  1  civil penalties assessed by the department division must be

  2  paid into the Workers' Compensation Administration Trust Fund.

  3  The department division shall return any sums previously paid,

  4  upon conclusion of an action, if the department division fails

  5  to prevail and if so directed by an order of court or an

  6  administrative hearing officer. The requirements of this

  7  subsection may be met by posting a bond in an amount equal to

  8  twice the penalty and in a form approved by the department

  9  division.

10         Section 16.  Subsection (1) of section 440.108, Florida

11  Statutes, is amended to read:

12         440.108  Investigatory records relating to workers'

13  compensation employer compliance; confidentiality.--

14         (1)  All investigatory records of the department

15  Division of Workers' Compensation made or received pursuant to

16  s. 440.107 and any records necessary to complete an

17  investigation are confidential and exempt from the provisions

18  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

19  until the investigation is completed or ceases to be active.

20  For purposes of this section, an investigation is considered

21  "active" while such investigation is being conducted by the

22  department division with a reasonable, good-faith good faith

23  belief that it may lead to the filing of administrative,

24  civil, or criminal proceedings. An investigation does not

25  cease to be active if the agency is proceeding with reasonable

26  dispatch and there is a good faith belief that action may be

27  initiated by the agency or other administrative or law

28  enforcement agency. After an investigation is completed or

29  ceases to be active, records relating to the investigation

30  remain confidential and exempt from the provisions of s.

31


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                                          HB 1655, First Engrossed



  1  119.07(1) and s. 24(a), Art. I of the State Constitution if

  2  disclosure would:

  3         (a)  Jeopardize the integrity of another active

  4  investigation;

  5         (b)  Reveal a trade secret, as defined in s. 688.002;

  6         (c)  Reveal business or personal financial information;

  7         (d)  Reveal the identity of a confidential source;

  8         (e)  Defame or cause unwarranted damage to the good

  9  name or reputation of an individual or jeopardize the safety

10  of an individual; or

11         (f)  Reveal investigative techniques or procedures.

12         Section 17.  Section 440.125, Florida Statutes, is

13  amended to read:

14         440.125  Medical records and reports; identifying

15  information in employee medical bills; confidentiality.--

16         (1)  Any medical records and medical reports of an

17  injured employee and any information identifying an injured

18  employee in medical bills which are provided to the

19  department, agency, or Department of Education Division of

20  Workers' Compensation of the Department of Labor and

21  Employment Security pursuant to s. 440.13 are confidential and

22  exempt from the provisions of s. 119.07(1) and s. 24(a), Art.

23  I of the State Constitution, except as otherwise provided by

24  this chapter.

25         (2)  The Legislature finds that it is a public

26  necessity that an injured employee's medical records and

27  medical reports and information identifying the employee in

28  medical bills held by the department, agency, or Department of

29  Education Division of Workers' Compensation pursuant to s.

30  440.13 be confidential and exempt from the public records law.

31  Public access to such information is an invasion of the


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                                          HB 1655, First Engrossed



  1  injured employee's right to privacy in that personal,

  2  sensitive information would be revealed, and public knowledge

  3  of such information could lead to discrimination against the

  4  employee by coworkers and others. Additionally, there is

  5  little utility in providing public access to such information

  6  in that the effectiveness and efficiency of the workers'

  7  compensation program can be otherwise adequately monitored and

  8  evaluated.

  9         (3)  The department may share any confidential and

10  exempt information received pursuant to s. 440.13 with the

11  Agency for Health Care Administration in furtherance of the

12  agency's official duties under ss. 440.13 and 440.134. The

13  agency shall maintain the confidential and exempt status of

14  the information.

15         Section 18.  Section 440.13, Florida Statutes, is

16  amended to read:

17         440.13  Medical services and supplies; penalty for

18  violations; limitations.--

19         (1)  DEFINITIONS.--As used in this section, the term:

20         (a)  "Alternate medical care" means a change in

21  treatment or health care provider.

22         (b)  "Attendant care" means care rendered by trained

23  professional attendants which is beyond the scope of household

24  duties. Family members may provide nonprofessional attendant

25  care, but may not be compensated under this chapter for care

26  that falls within the scope of household duties and other

27  services normally and gratuitously provided by family members.

28  "Family member" means a spouse, father, mother, brother,

29  sister, child, grandchild, father-in-law, mother-in-law, aunt,

30  or uncle.

31


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                                          HB 1655, First Engrossed



  1         (c)  "Carrier" means, for purposes of this section,

  2  insurance carrier, self-insurance fund or individually

  3  self-insured employer, or assessable mutual insurer.

  4         (d)  "Catastrophic injury" means an injury as defined

  5  in s. 440.02.

  6         (e)  "Certified health care provider" means a health

  7  care provider who has been certified by the agency division or

  8  who has entered an agreement with a licensed managed care

  9  organization to provide treatment to injured workers under

10  this section. Certification of such health care provider must

11  include documentation that the health care provider has read

12  and is familiar with the portions of the statute, impairment

13  guides, and rules which govern the provision of remedial

14  treatment, care, and attendance.

15         (f)  "Compensable" means a determination by a carrier

16  or judge of compensation claims that a condition suffered by

17  an employee results from an injury arising out of and in the

18  course of employment.

19         (g)  "Emergency services and care" means emergency

20  services and care as defined in s. 395.002.

21         (h)  "Health care facility" means any hospital licensed

22  under chapter 395 and any health care institution licensed

23  under chapter 400.

24         (i)  "Health care provider" means a physician or any

25  recognized practitioner who provides skilled services pursuant

26  to a prescription or under the supervision or direction of a

27  physician and who has been certified by the agency division as

28  a health care provider. The term "health care provider"

29  includes a health care facility.

30         (j)  "Independent medical examiner" means a physician

31  selected by either an employee or a carrier to render one or


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                                          HB 1655, First Engrossed



  1  more independent medical examinations in connection with a

  2  dispute arising under this chapter.

  3         (k)  "Independent medical examination" means an

  4  objective evaluation of the injured employee's medical

  5  condition, including, but not limited to, impairment or work

  6  status, performed by a physician or an expert medical advisor

  7  at the request of a party, a judge of compensation claims, or

  8  the agency division to assist in the resolution of a dispute

  9  arising under this chapter.

10         (l)  "Instance of overutilization" means a specific

11  inappropriate service or level of service provided to an

12  injured employee.

13         (m)  "Medically necessary" means any medical service or

14  medical supply which is used to identify or treat an illness

15  or injury, is appropriate to the patient's diagnosis and

16  status of recovery, and is consistent with the location of

17  service, the level of care provided, and applicable practice

18  parameters. The service should be widely accepted among

19  practicing health care providers, based on scientific

20  criteria, and determined to be reasonably safe. The service

21  must not be of an experimental, investigative, or research

22  nature, except in those instances in which prior approval of

23  the Agency for Health Care Administration has been obtained.

24  The Agency for Health Care Administration shall adopt rules

25  providing for such approval on a case-by-case basis when the

26  service or supply is shown to have significant benefits to the

27  recovery and well-being of the patient.

28         (n)  "Medicine" means a drug prescribed by an

29  authorized health care provider and includes only generic

30  drugs or single-source patented drugs for which there is no

31  generic equivalent, unless the authorized health care provider


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                                          HB 1655, First Engrossed



  1  writes or states that the brand-name drug as defined in s.

  2  465.025 is medically necessary, or is a drug appearing on the

  3  schedule of drugs created pursuant to s. 465.025(6), or is

  4  available at a cost lower than its generic equivalent.

  5         (o)  "Palliative care" means noncurative medical

  6  services that mitigate the conditions, effects, or pain of an

  7  injury.

  8         (p)  "Pattern or practice of overutilization" means

  9  repetition of instances of overutilization within a specific

10  medical case or multiple cases by a single health care

11  provider.

12         (q)  "Peer review" means an evaluation by two or more

13  physicians licensed under the same authority and with the same

14  or similar specialty as the physician under review, of the

15  appropriateness, quality, and cost of health care and health

16  services provided to a patient, based on medically accepted

17  standards.

18         (r)  "Physician" or "doctor" means a physician licensed

19  under chapter 458, an osteopathic physician licensed under

20  chapter 459, a chiropractic physician licensed under chapter

21  460, a podiatric physician licensed under chapter 461, an

22  optometrist licensed under chapter 463, or a dentist licensed

23  under chapter 466, each of whom must be certified by the

24  agency division as a health care provider.

25         (s)  "Reimbursement dispute" means any disagreement

26  between a health care provider or health care facility and

27  carrier concerning payment for medical treatment.

28         (t)  "Utilization control" means a systematic process

29  of implementing measures that assure overall management and

30  cost containment of services delivered.

31


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                                          HB 1655, First Engrossed



  1         (u)  "Utilization review" means the evaluation of the

  2  appropriateness of both the level and the quality of health

  3  care and health services provided to a patient, including, but

  4  not limited to, evaluation of the appropriateness of

  5  treatment, hospitalization, or office visits based on

  6  medically accepted standards. Such evaluation must be

  7  accomplished by means of a system that identifies the

  8  utilization of medical services based on medically accepted

  9  standards as established by medical consultants with

10  qualifications similar to those providing the care under

11  review, and that refers patterns and practices of

12  overutilization to the agency division.

13         (2)  MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--

14         (a)  Subject to the limitations specified elsewhere in

15  this chapter, the employer shall furnish to the employee such

16  medically necessary remedial treatment, care, and attendance

17  for such period as the nature of the injury or the process of

18  recovery may require, including medicines, medical supplies,

19  durable medical equipment, orthoses, prostheses, and other

20  medically necessary apparatus. Remedial treatment, care, and

21  attendance, including work-hardening programs or

22  pain-management programs accredited by the Commission on

23  Accreditation of Rehabilitation Facilities or Joint Commission

24  on the Accreditation of Health Organizations or

25  pain-management programs affiliated with medical schools,

26  shall be considered as covered treatment only when such care

27  is given based on a referral by a physician as defined in this

28  chapter. Each facility shall maintain outcome data, including

29  work status at discharges, total program charges, total number

30  of visits, and length of stay. The department shall utilize

31  such data and report to the President of the Senate and the


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                                          HB 1655, First Engrossed



  1  Speaker of the House of Representatives regarding the efficacy

  2  and cost-effectiveness of such program, no later than October

  3  1, 1994. Medically necessary treatment, care, and attendance

  4  does not include chiropractic services in excess of 18

  5  treatments or rendered 8 weeks beyond the date of the initial

  6  chiropractic treatment, whichever comes first, unless the

  7  carrier authorizes additional treatment or the employee is

  8  catastrophically injured.

  9         (b)  The employer shall provide appropriate

10  professional or nonprofessional attendant care performed only

11  at the direction and control of a physician when such care is

12  medically necessary. The value of nonprofessional attendant

13  care provided by a family member must be determined as

14  follows:

15         1.  If the family member is not employed, the per-hour

16  value equals the federal minimum hourly wage.

17         2.  If the family member is employed and elects to

18  leave that employment to provide attendant or custodial care,

19  the per-hour value of that care equals the per-hour value of

20  the family member's former employment, not to exceed the

21  per-hour value of such care available in the community at

22  large. A family member or a combination of family members

23  providing nonprofessional attendant care under this paragraph

24  may not be compensated for more than a total of 12 hours per

25  day.

26         (c)  If the employer fails to provide treatment or care

27  required by this section after request by the injured

28  employee, the employee may obtain such treatment at the

29  expense of the employer, if the treatment is compensable and

30  medically necessary. There must be a specific request for the

31  treatment, and the employer or carrier must be given a


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                                          HB 1655, First Engrossed



  1  reasonable time period within which to provide the treatment

  2  or care. However, the employee is not entitled to recover any

  3  amount personally expended for the treatment or service unless

  4  he or she has requested the employer to furnish that treatment

  5  or service and the employer has failed, refused, or neglected

  6  to do so within a reasonable time or unless the nature of the

  7  injury requires such treatment, nursing, and services and the

  8  employer or his or her superintendent or foreman, having

  9  knowledge of the injury, has neglected to provide the

10  treatment or service.

11         (d)  The carrier has the right to transfer the care of

12  an injured employee from the attending health care provider if

13  an independent medical examination determines that the

14  employee is not making appropriate progress in recuperation.

15         (e)  Except in emergency situations and for treatment

16  rendered by a managed care arrangement, after any initial

17  examination and diagnosis by a physician providing remedial

18  treatment, care, and attendance, and before a proposed course

19  of medical treatment begins, each insurer shall review, in

20  accordance with the requirements of this chapter, the proposed

21  course of treatment, to determine whether such treatment would

22  be recognized as reasonably prudent. The review must be in

23  accordance with all applicable workers' compensation practice

24  parameters. The insurer must accept any such proposed course

25  of treatment unless the insurer notifies the physician of its

26  specific objections to the proposed course of treatment by the

27  close of the tenth business day after notification by the

28  physician, or a supervised designee of the physician, of the

29  proposed course of treatment.

30         (3)  PROVIDER ELIGIBILITY; AUTHORIZATION.--

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                                          HB 1655, First Engrossed



  1         (a)  As a condition to eligibility for payment under

  2  this chapter, a health care provider who renders services must

  3  be a certified health care provider and must receive

  4  authorization from the carrier before providing treatment.

  5  This paragraph does not apply to emergency care. The agency

  6  division shall adopt rules to implement the certification of

  7  health care providers. As a one-time prerequisite to obtaining

  8  certification, the agency division shall require each

  9  physician to demonstrate proof of completion of a minimum

10  5-hour course that covers the subject areas of cost

11  containment, utilization control, ergonomics, and the practice

12  parameters adopted by the agency division governing the

13  physician's field of practice. The agency division shall

14  coordinate with the Agency for Health Care Administration, the

15  Florida Medical Association, the Florida Osteopathic Medical

16  Association, the Florida Chiropractic Association, the Florida

17  Podiatric Medical Association, the Florida Optometric

18  Association, the Florida Dental Association, and other health

19  professional organizations and their respective boards as

20  deemed necessary by the Agency for Health Care Administration

21  in complying with this subsection. No later than October 1,

22  1994, the division shall adopt rules regarding the criteria

23  and procedures for approval of courses and the filing of proof

24  of completion by the physicians.

25         (b)  A health care provider who renders emergency care

26  must notify the carrier by the close of the third business day

27  after it has rendered such care. If the emergency care results

28  in admission of the employee to a health care facility, the

29  health care provider must notify the carrier by telephone

30  within 24 hours after initial treatment. Emergency care is not

31  compensable under this chapter unless the injury requiring


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                                          HB 1655, First Engrossed



  1  emergency care arose as a result of a work-related accident.

  2  Pursuant to chapter 395, all licensed physicians and health

  3  care providers in this state shall be required to make their

  4  services available for emergency treatment of any employee

  5  eligible for workers' compensation benefits. To refuse to make

  6  such treatment available is cause for revocation of a license.

  7         (c)  A health care provider may not refer the employee

  8  to another health care provider, diagnostic facility, therapy

  9  center, or other facility without prior authorization from the

10  carrier, except when emergency care is rendered. Any referral

11  must be to a health care provider that has been certified by

12  the agency division, unless the referral is for emergency

13  treatment.

14         (d)  A carrier must respond, by telephone or in

15  writing, to a request for authorization by the close of the

16  third business day after receipt of the request. A carrier who

17  fails to respond to a written request for authorization for

18  referral for medical treatment by the close of the third

19  business day after receipt of the request consents to the

20  medical necessity for such treatment. All such requests must

21  be made to the carrier. Notice to the carrier does not include

22  notice to the employer.

23         (e)  Carriers shall adopt procedures for receiving,

24  reviewing, documenting, and responding to requests for

25  authorization. Such procedures shall be for a health care

26  provider certified under this section.

27         (f)  By accepting payment under this chapter for

28  treatment rendered to an injured employee, a health care

29  provider consents to the jurisdiction of the agency division

30  as set forth in subsection (11) and to the submission of all

31  records and other information concerning such treatment to the


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                                          HB 1655, First Engrossed



  1  agency division in connection with a reimbursement dispute,

  2  audit, or review as provided by this section. The health care

  3  provider must further agree to comply with any decision of the

  4  agency division rendered under this section.

  5         (g)  The employee is not liable for payment for medical

  6  treatment or services provided pursuant to this section except

  7  as otherwise provided in this section.

  8         (h)  The provisions of s. 456.053 are applicable to

  9  referrals among health care providers, as defined in

10  subsection (1), treating injured workers.

11         (i)  Notwithstanding paragraph (d), a claim for

12  specialist consultations, surgical operations,

13  physiotherapeutic or occupational therapy procedures, X-ray

14  examinations, or special diagnostic laboratory tests that cost

15  more than $1,000 and other specialty services that the agency

16  division identifies by rule is not valid and reimbursable

17  unless the services have been expressly authorized by the

18  carrier, or unless the carrier has failed to respond within 10

19  days to a written request for authorization, or unless

20  emergency care is required. The insurer shall not refuse to

21  authorize such consultation or procedure unless the health

22  care provider or facility is not authorized or certified or

23  unless an expert medical advisor has determined that the

24  consultation or procedure is not medically necessary or

25  otherwise compensable under this chapter. Authorization of a

26  treatment plan does not constitute express authorization for

27  purposes of this section, except to the extent the carrier

28  provides otherwise in its authorization procedures. This

29  paragraph does not limit the carrier's obligation to identify

30  and disallow overutilization or billing errors.

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                                          HB 1655, First Engrossed



  1         (j)  Notwithstanding anything in this chapter to the

  2  contrary, a sick or injured employee shall be entitled, at all

  3  times, to free, full, and absolute choice in the selection of

  4  the pharmacy or pharmacist dispensing and filling

  5  prescriptions for medicines required under this chapter. It is

  6  expressly forbidden for the agency division, an employer, or a

  7  carrier, or any agent or representative of the agency

  8  division, an employer, or a carrier to select the pharmacy or

  9  pharmacist which the sick or injured employee must use;

10  condition coverage or payment on the basis of the pharmacy or

11  pharmacist utilized; or to otherwise interfere in the

12  selection by the sick or injured employee of a pharmacy or

13  pharmacist.

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

15  DEPARTMENT DIVISION.--

16         (a)  Any health care provider providing necessary

17  remedial treatment, care, or attendance to any injured worker

18  shall submit treatment reports to the carrier in a format

19  prescribed by the department in consultation with the agency

20  division. A claim for medical or surgical treatment is not

21  valid or enforceable against such employer or employee,

22  unless, by the close of the third business day following the

23  first treatment, the physician providing the treatment

24  furnishes to the employer or carrier a preliminary notice of

25  the injury and treatment on forms prescribed by the department

26  in consultation with the agency division and, within 15 days

27  thereafter, furnishes to the employer or carrier a complete

28  report, and subsequent thereto furnishes progress reports, if

29  requested by the employer or insurance carrier, at intervals

30  of not less than 3 weeks apart or at less frequent intervals

31  if requested on forms prescribed by the department division.


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                                          HB 1655, First Engrossed



  1         (b)  Each medical report or bill obtained or received

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

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

  4  respect to the remedial treatment or care of the injured

  5  employee, including any report of an examination, diagnosis,

  6  or disability evaluation, must be filed with the department

  7  Division of Workers' Compensation pursuant to rules adopted by

  8  the department in consultation with the agency division. The

  9  health care provider shall also furnish to the injured

10  employee or to his or her attorney, on demand, a copy of his

11  or her office chart, records, and reports, and may charge the

12  injured employee an amount authorized by the department

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

14  provide to the agency or department division any additional

15  information about the remedial treatment, care, and attendance

16  that the agency or department division reasonably requests.

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

18  workers' compensation system that there be reasonable access

19  to medical information by all parties to facilitate the

20  self-executing features of the law. Notwithstanding the

21  limitations in s. 456.057 and subject to the limitations in s.

22  381.004, upon the request of the employer, the carrier, or the

23  attorney for either of them, the medical records of an injured

24  employee must be furnished to those persons and the medical

25  condition of the injured employee must be discussed with those

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

27  conditions relating to the workplace injury. Any such

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

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

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

31  who willfully refuses to provide medical records or to discuss


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                                          HB 1655, First Engrossed



  1  the medical condition of the injured employee, after a

  2  reasonable request is made for such information pursuant to

  3  this subsection, shall be subject by the agency division to

  4  one or more of the penalties set forth in paragraph (8)(b).

  5         (5)  INDEPENDENT MEDICAL EXAMINATIONS.--

  6         (a)  In any dispute concerning overutilization, medical

  7  benefits, compensability, or disability under this chapter,

  8  the carrier or the employee may select an independent medical

  9  examiner. The examiner may be a health care provider treating

10  or providing other care to the employee. An independent

11  medical examiner may not render an opinion outside his or her

12  area of expertise, as demonstrated by licensure and applicable

13  practice parameters.

14         (b)  Each party is bound by his or her selection of an

15  independent medical examiner and is entitled to an alternate

16  examiner only if:

17         1.  The examiner is not qualified to render an opinion

18  upon an aspect of the employee's illness or injury which is

19  material to the claim or petition for benefits;

20         2.  The examiner ceases to practice in the specialty

21  relevant to the employee's condition;

22         3.  The examiner is unavailable due to injury, death,

23  or relocation outside a reasonably accessible geographic area;

24  or

25         4.  The parties agree to an alternate examiner.

26

27  Any party may request, or a judge of compensation claims may

28  require, designation of an agency a division medical advisor

29  as an independent medical examiner. The opinion of the

30  advisors acting as examiners shall not be afforded the

31  presumption set forth in paragraph (9)(c).


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                                          HB 1655, First Engrossed



  1         (c)  The carrier may, at its election, contact the

  2  claimant directly to schedule a reasonable time for an

  3  independent medical examination. The carrier must confirm the

  4  scheduling agreement in writing within 5 days and notify

  5  claimant's counsel, if any, at least 7 days before the date

  6  upon which the independent medical examination is scheduled to

  7  occur. An attorney representing a claimant is not authorized

  8  to schedule independent medical evaluations under this

  9  subsection.

10         (d)  If the employee fails to appear for the

11  independent medical examination without good cause and fails

12  to advise the physician at least 24 hours before the scheduled

13  date for the examination that he or she cannot appear, the

14  employee is barred from recovering compensation for any period

15  during which he or she has refused to submit to such

16  examination. Further, the employee shall reimburse the carrier

17  50 percent of the physician's cancellation or no-show fee

18  unless the carrier that schedules the examination fails to

19  timely provide to the employee a written confirmation of the

20  date of the examination pursuant to paragraph (c) which

21  includes an explanation of why he or she failed to appear. The

22  employee may appeal to a judge of compensation claims for

23  reimbursement when the carrier withholds payment in excess of

24  the authority granted by this section.

25         (e)  No medical opinion other than the opinion of a

26  medical advisor appointed by the judge of compensation claims

27  or agency division, an independent medical examiner, or an

28  authorized treating provider is admissible in proceedings

29  before the judges of compensation claims.

30         (f)  Attorney's fees incurred by an injured employee in

31  connection with delay of or opposition to an independent


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                                          HB 1655, First Engrossed



  1  medical examination, including, but not limited to, motions

  2  for protective orders, are not recoverable under this chapter.

  3         (6)  UTILIZATION REVIEW.--Carriers shall review all

  4  bills, invoices, and other claims for payment submitted by

  5  health care providers in order to identify overutilization and

  6  billing errors, and may hire peer review consultants or

  7  conduct independent medical evaluations. Such consultants,

  8  including peer review organizations, are immune from liability

  9  in the execution of their functions under this subsection to

10  the extent provided in s. 766.101. If a carrier finds that

11  overutilization of medical services or a billing error has

12  occurred, it must disallow or adjust payment for such services

13  or error without order of a judge of compensation claims or

14  the agency division, if the carrier, in making its

15  determination, has complied with this section and rules

16  adopted by the agency division.

17         (7)  UTILIZATION AND REIMBURSEMENT DISPUTES.--

18         (a)  Any health care provider, carrier, or employer who

19  elects to contest the disallowance or adjustment of payment by

20  a carrier under subsection (6) must, within 30 days after

21  receipt of notice of disallowance or adjustment of payment,

22  petition the agency division to resolve the dispute. The

23  petitioner must serve a copy of the petition on the carrier

24  and on all affected parties by certified mail. The petition

25  must be accompanied by all documents and records that support

26  the allegations contained in the petition. Failure of a

27  petitioner to submit such documentation to the agency division

28  results in dismissal of the petition.

29         (b)  The carrier must submit to the agency division

30  within 10 days after receipt of the petition all documentation

31  substantiating the carrier's disallowance or adjustment.


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                                          HB 1655, First Engrossed



  1  Failure of the carrier to submit the requested documentation

  2  to the agency division within 10 days constitutes a waiver of

  3  all objections to the petition.

  4         (c)  Within 60 days after receipt of all documentation,

  5  the agency division must provide to the petitioner, the

  6  carrier, and the affected parties a written determination of

  7  whether the carrier properly adjusted or disallowed payment.

  8  The agency division must be guided by standards and policies

  9  set forth in this chapter, including all applicable

10  reimbursement schedules, in rendering its determination.

11         (d)  If the agency division finds an improper

12  disallowance or improper adjustment of payment by an insurer,

13  the insurer shall reimburse the health care provider,

14  facility, insurer, or employer within 30 days, subject to the

15  penalties provided in this subsection.

16         (e)  The agency division shall adopt rules to carry out

17  this subsection. The rules may include provisions for

18  consolidating petitions filed by a petitioner and expanding

19  the timetable for rendering a determination upon a

20  consolidated petition.

21         (f)  Any carrier that engages in a pattern or practice

22  of arbitrarily or unreasonably disallowing or reducing

23  payments to health care providers may be subject to one or

24  more of the following penalties imposed by the agency

25  division:

26         1.  Repayment of the appropriate amount to the health

27  care provider.

28         2.  An administrative fine assessed by the agency

29  division in an amount not to exceed $5,000 per instance of

30  improperly disallowing or reducing payments.

31


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                                          HB 1655, First Engrossed



  1         3.  Award of the health care provider's costs,

  2  including a reasonable attorney's fee, for prosecuting the

  3  petition.

  4         (8)  PATTERN OR PRACTICE OF OVERUTILIZATION.--

  5         (a)  Carriers must report to the agency division all

  6  instances of overutilization including, but not limited to,

  7  all instances in which the carrier disallows or adjusts

  8  payment. The agency division shall determine whether a pattern

  9  or practice of overutilization exists.

10         (b)  If the agency division determines that a health

11  care provider has engaged in a pattern or practice of

12  overutilization or a violation of this chapter or rules

13  adopted by the agency division, it may impose one or more of

14  the following penalties:

15         1.  An order of the agency division barring the

16  provider from payment under this chapter;

17         2.  Deauthorization of care under review;

18         3.  Denial of payment for care rendered in the future;

19         4.  Decertification of a health care provider certified

20  as an expert medical advisor under subsection (9) or of a

21  rehabilitation provider certified under s. 440.49;

22         5.  An administrative fine assessed by the agency

23  division in an amount not to exceed $5,000 per instance of

24  overutilization or violation; and

25         6.  Notification of and review by the appropriate

26  licensing authority pursuant to s. 440.106(3).

27         (9)  EXPERT MEDICAL ADVISORS.--

28         (a)  The agency division shall certify expert medical

29  advisors in each specialty to assist the agency division and

30  the judges of compensation claims within the advisor's area of

31  expertise as provided in this section. The agency division


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                                          HB 1655, First Engrossed



  1  shall, in a manner prescribed by rule, in certifying,

  2  recertifying, or decertifying an expert medical advisor,

  3  consider the qualifications, training, impartiality, and

  4  commitment of the health care provider to the provision of

  5  quality medical care at a reasonable cost. As a prerequisite

  6  for certification or recertification, the agency division

  7  shall require, at a minimum, that an expert medical advisor

  8  have specialized workers' compensation training or experience

  9  under the workers' compensation system of this state and board

10  certification or board eligibility.

11         (b)  The agency division shall contract with or employ

12  expert medical advisors to provide peer review or medical

13  consultation to the agency division or to a judge of

14  compensation claims in connection with resolving disputes

15  relating to reimbursement, differing opinions of health care

16  providers, and health care and physician services rendered

17  under this chapter. Expert medical advisors contracting with

18  the agency division shall, as a term of such contract, agree

19  to provide consultation or services in accordance with the

20  timetables set forth in this chapter and to abide by rules

21  adopted by the agency division, including, but not limited to,

22  rules pertaining to procedures for review of the services

23  rendered by health care providers and preparation of reports

24  and recommendations for submission to the agency division.

25         (c)  If there is disagreement in the opinions of the

26  health care providers, if two health care providers disagree

27  on medical evidence supporting the employee's complaints or

28  the need for additional medical treatment, or if two health

29  care providers disagree that the employee is able to return to

30  work, the agency division may, and the judge of compensation

31  claims shall, upon his or her own motion or within 15 days


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                                          HB 1655, First Engrossed



  1  after receipt of a written request by either the injured

  2  employee, the employer, or the carrier, order the injured

  3  employee to be evaluated by an expert medical advisor. The

  4  opinion of the expert medical advisor is presumed to be

  5  correct unless there is clear and convincing evidence to the

  6  contrary as determined by the judge of compensation claims.

  7  The expert medical advisor appointed to conduct the evaluation

  8  shall have free and complete access to the medical records of

  9  the employee. An employee who fails to report to and cooperate

10  with such evaluation forfeits entitlement to compensation

11  during the period of failure to report or cooperate.

12         (d)  The expert medical advisor must complete his or

13  her evaluation and issue his or her report to the agency

14  division or to the judge of compensation claims within 45 days

15  after receipt of all medical records. The expert medical

16  advisor must furnish a copy of the report to the carrier and

17  to the employee.

18         (e)  An expert medical advisor is not liable under any

19  theory of recovery for evaluations performed under this

20  section without a showing of fraud or malice. The protections

21  of s. 766.101 apply to any officer, employee, or agent of the

22  agency division and to any officer, employee, or agent of any

23  entity with which the agency division has contracted under

24  this subsection.

25         (f)  If the agency division or a judge of compensation

26  claims determines that the services of a certified expert

27  medical advisor are required to resolve a dispute under this

28  section, the carrier must compensate the advisor for his or

29  her time in accordance with a schedule adopted by the agency

30  division. The agency division may assess a penalty not to

31


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                                          HB 1655, First Engrossed



  1  exceed $500 against any carrier that fails to timely

  2  compensate an advisor in accordance with this section.

  3         (10)  WITNESS FEES.--Any health care provider who gives

  4  a deposition shall be allowed a witness fee. The amount

  5  charged by the witness may not exceed $200 per hour. An expert

  6  witness who has never provided direct professional services to

  7  a party but has merely reviewed medical records and provided

  8  an expert opinion or has provided only direct professional

  9  services that were unrelated to the workers' compensation case

10  may not be allowed a witness fee in excess of $200 per day.

11         (11)  AUDITS BY AGENCY FOR HEALTH CARE ADMINISTRATION

12  DIVISION; JURISDICTION.--

13         (a)  The Agency for Health Care Administration Division

14  of Workers' Compensation of the Department of Labor and

15  Employment Security may investigate health care providers to

16  determine whether providers are complying with this chapter

17  and with rules adopted by the agency division, whether the

18  providers are engaging in overutilization, and whether

19  providers are engaging in improper billing practices. If the

20  agency division finds that a health care provider has

21  improperly billed, overutilized, or failed to comply with

22  agency division rules or the requirements of this chapter it

23  must notify the provider of its findings and may determine

24  that the health care provider may not receive payment from the

25  carrier or may impose penalties as set forth in subsection (8)

26  or other sections of this chapter. If the health care provider

27  has received payment from a carrier for services that were

28  improperly billed or for overutilization, it must return those

29  payments to the carrier. The agency division may assess a

30  penalty not to exceed $500 for each overpayment that is not

31


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                                          HB 1655, First Engrossed



  1  refunded within 30 days after notification of overpayment by

  2  the agency division or carrier.

  3         (b)  The department division shall monitor and audit

  4  carriers, as provided in s. 624.3161, to determine if medical

  5  bills are paid in accordance with this section and department

  6  division rules. Any employer, if self-insured, or carrier

  7  found by the division not to be within 90 percent compliance

  8  as to the payment of medical bills after July 1, 1994, must be

  9  assessed a fine not to exceed 1 percent of the prior year's

10  assessment levied against such entity under s. 440.51 for

11  every quarter in which the entity fails to attain 90-percent

12  compliance. The department division shall fine or otherwise

13  discipline an employer or carrier, pursuant to this chapter,

14  the insurance code, or rules adopted by the department

15  division, for each late payment of compensation that is below

16  the minimum 90-percent performance standard. Any carrier that

17  is found to be not in compliance in subsequent consecutive

18  quarters must implement a medical-bill review program approved

19  by the division, and the carrier is subject to disciplinary

20  action by the Department of Insurance.

21         (c)  The agency division has exclusive jurisdiction to

22  decide any matters concerning reimbursement, to resolve any

23  overutilization dispute under subsection (7), and to decide

24  any question concerning overutilization under subsection (8),

25  which question or dispute arises after January 1, 1994.

26         (d)  The following agency division actions do not

27  constitute agency action subject to review under ss. 120.569

28  and 120.57 and do not constitute actions subject to s. 120.56:

29  referral by the entity responsible for utilization review; a

30  decision by the agency division to refer a matter to a peer

31  review committee; establishment by a health care provider or


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                                          HB 1655, First Engrossed



  1  entity of procedures by which a peer review committee reviews

  2  the rendering of health care services; and the review

  3  proceedings, report, and recommendation of the peer review

  4  committee.

  5         (12)  CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM

  6  REIMBURSEMENT ALLOWANCES.--

  7         (a)  A three-member panel is created, consisting of the

  8  Insurance Commissioner, or the Insurance Commissioner's

  9  designee, and two members to be appointed by the Governor,

10  subject to confirmation by the Senate, one member who, on

11  account of present or previous vocation, employment, or

12  affiliation, shall be classified as a representative of

13  employers, the other member who, on account of previous

14  vocation, employment, or affiliation, shall be classified as a

15  representative of employees. The panel shall determine

16  statewide schedules of maximum reimbursement allowances for

17  medically necessary treatment, care, and attendance provided

18  by physicians, hospitals, ambulatory surgical centers,

19  work-hardening programs, pain programs, and durable medical

20  equipment. The maximum reimbursement allowances for inpatient

21  hospital care shall be based on a schedule of per diem rates,

22  to be approved by the three-member panel no later than March

23  1, 1994, to be used in conjunction with a precertification

24  manual as determined by the agency division. All compensable

25  charges for hospital outpatient care shall be reimbursed at 75

26  percent of usual and customary charges. Until the three-member

27  panel approves a schedule of per diem rates for inpatient

28  hospital care and it becomes effective, all compensable

29  charges for hospital inpatient care must be reimbursed at 75

30  percent of their usual and customary charges. Annually, the

31  three-member panel shall adopt schedules of maximum


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                                          HB 1655, First Engrossed



  1  reimbursement allowances for physicians, hospital inpatient

  2  care, hospital outpatient care, ambulatory surgical centers,

  3  work-hardening programs, and pain programs. However, the

  4  maximum percentage of increase in the individual reimbursement

  5  allowance may not exceed the percentage of increase in the

  6  Consumer Price Index for the previous year. An individual

  7  physician, hospital, ambulatory surgical center, pain program,

  8  or work-hardening program shall be reimbursed either the usual

  9  and customary charge for treatment, care, and attendance, the

10  agreed-upon contract price, the per diem rate for hospital

11  inpatient stay, or the maximum reimbursement allowance in the

12  appropriate schedule, whichever is less.

13         (b)  As to reimbursement for a prescription medication,

14  the reimbursement amount for a prescription shall be the

15  average wholesale price times 1.2 plus $4.18 for the

16  dispensing fee, except where the carrier has contracted for a

17  lower amount. Fees for pharmaceuticals and pharmaceutical

18  services shall be reimbursable at the applicable fee schedule

19  amount. Where the employer or carrier has contracted for such

20  services and the employee elects to obtain them through a

21  provider not a party to the contract, the carrier shall

22  reimburse at the schedule, negotiated, or contract price,

23  whichever is lower.

24         (c)  Reimbursement for all fees and other charges for

25  such treatment, care, and attendance, including treatment,

26  care, and attendance provided by any hospital or other health

27  care provider, ambulatory surgical center, work-hardening

28  program, or pain program, must not exceed the amounts provided

29  by the uniform schedule of maximum reimbursement allowances as

30  determined by the panel or as otherwise provided in this

31  section. This subsection also applies to independent medical


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                                          HB 1655, First Engrossed



  1  examinations performed by health care providers under this

  2  chapter. Until the three-member panel approves a uniform

  3  schedule of maximum reimbursement allowances and it becomes

  4  effective, all compensable charges for treatment, care, and

  5  attendance provided by physicians, ambulatory surgical

  6  centers, work-hardening programs, or pain programs shall be

  7  reimbursed at the lowest maximum reimbursement allowance

  8  across all 1992 schedules of maximum reimbursement allowances

  9  for the services provided regardless of the place of service.

10  In determining the uniform schedule, the panel shall first

11  approve the data which it finds representative of prevailing

12  charges in the state for similar treatment, care, and

13  attendance of injured persons. Each health care provider,

14  health care facility, ambulatory surgical center,

15  work-hardening program, or pain program receiving workers'

16  compensation payments shall maintain records verifying their

17  usual charges. In establishing the uniform schedule of maximum

18  reimbursement allowances, the panel must consider:

19         1.  The levels of reimbursement for similar treatment,

20  care, and attendance made by other health care programs or

21  third-party providers;

22         2.  The impact upon cost to employers for providing a

23  level of reimbursement for treatment, care, and attendance

24  which will ensure the availability of treatment, care, and

25  attendance required by injured workers;

26         3.  The financial impact of the reimbursement

27  allowances upon health care providers and health care

28  facilities, including trauma centers as defined in s.

29  395.4001, and its effect upon their ability to make available

30  to injured workers such medically necessary remedial

31  treatment, care, and attendance. The uniform schedule of


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                                          HB 1655, First Engrossed



  1  maximum reimbursement allowances must be reasonable, must

  2  promote health care cost containment and efficiency with

  3  respect to the workers' compensation health care delivery

  4  system, and must be sufficient to ensure availability of such

  5  medically necessary remedial treatment, care, and attendance

  6  to injured workers; and

  7         4.  The most recent average maximum allowable rate of

  8  increase for hospitals determined by the Health Care Board

  9  under chapter 408.

10         (13)  REMOVAL OF PHYSICIANS FROM LISTS OF THOSE

11  AUTHORIZED TO RENDER MEDICAL CARE.--The agency division shall

12  remove from the list of physicians or facilities authorized to

13  provide remedial treatment, care, and attendance under this

14  chapter the name of any physician or facility found after

15  reasonable investigation to have:

16         (a)  Engaged in professional or other misconduct or

17  incompetency in connection with medical services rendered

18  under this chapter;

19         (b)  Exceeded the limits of his or her or its

20  professional competence in rendering medical care under this

21  chapter, or to have made materially false statements regarding

22  his or her or its qualifications in his or her application;

23         (c)  Failed to transmit copies of medical reports to

24  the employer or carrier, or failed to submit full and truthful

25  medical reports of all his or her or its findings to the

26  employer or carrier as required under this chapter;

27         (d)  Solicited, or employed another to solicit for

28  himself or herself or itself or for another, professional

29  treatment, examination, or care of an injured employee in

30  connection with any claim under this chapter;

31


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                                          HB 1655, First Engrossed



  1         (e)  Refused to appear before, or to answer upon

  2  request of, the agency division or any duly authorized officer

  3  of the state, any legal question, or to produce any relevant

  4  book or paper concerning his or her conduct under any

  5  authorization granted to him or her under this chapter;

  6         (f)  Self-referred in violation of this chapter or

  7  other laws of this state; or

  8         (g)  Engaged in a pattern of practice of

  9  overutilization or a violation of this chapter or rules

10  adopted by the agency division.

11         (14)  PAYMENT OF MEDICAL FEES.--

12         (a)  Except for emergency care treatment, fees for

13  medical services are payable only to a health care provider

14  certified and authorized to render remedial treatment, care,

15  or attendance under this chapter. A health care provider may

16  not collect or receive a fee from an injured employee within

17  this state, except as otherwise provided by this chapter. Such

18  providers have recourse against the employer or carrier for

19  payment for services rendered in accordance with this chapter.

20         (b)  Fees charged for remedial treatment, care, and

21  attendance may not exceed the applicable fee schedules adopted

22  under this chapter.

23         (c)  Notwithstanding any other provision of this

24  chapter, following overall maximum medical improvement from an

25  injury compensable under this chapter, the employee is

26  obligated to pay a copayment of $10 per visit for medical

27  services. The copayment shall not apply to emergency care

28  provided to the employee.

29         (15)  PRACTICE PARAMETERS.--

30         (a)  The Agency for Health Care Administration, in

31  conjunction with the department division and appropriate


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                                          HB 1655, First Engrossed



  1  health professional associations and health-related

  2  organizations shall develop and may adopt by rule

  3  scientifically sound practice parameters for medical

  4  procedures relevant to workers' compensation claimants.

  5  Practice parameters developed under this section must focus on

  6  identifying effective remedial treatments and promoting the

  7  appropriate utilization of health care resources. Priority

  8  must be given to those procedures that involve the greatest

  9  utilization of resources either because they are the most

10  costly or because they are the most frequently performed.

11  Practice parameters for treatment of the 10 top procedures

12  associated with workers' compensation injuries including the

13  remedial treatment of lower-back injuries must be developed by

14  December 31, 1994.

15         (b)  The guidelines may be initially based on

16  guidelines prepared by nationally recognized health care

17  institutions and professional organizations but should be

18  tailored to meet the workers' compensation goal of returning

19  employees to full employment as quickly as medically possible,

20  taking into consideration outcomes data collected from managed

21  care providers and any other inpatient and outpatient

22  facilities serving workers' compensation claimants.

23         (c)  Procedures must be instituted which provide for

24  the periodic review and revision of practice parameters based

25  on the latest outcomes data, research findings, technological

26  advancements, and clinical experiences, at least once every 3

27  years.

28         (d)  Practice parameters developed under this section

29  must be used by carriers and the agency division in evaluating

30  the appropriateness and overutilization of medical services

31  provided to injured employees.


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                                          HB 1655, First Engrossed



  1         Section 19.  Subsection (23) of section 440.134,

  2  Florida Statutes, is amended to read:

  3         440.134  Workers' compensation managed care

  4  arrangement.--

  5         (23)  The agency shall immediately notify the

  6  Department of Insurance and the Department of Labor and

  7  Employment Security whenever it issues an administrative

  8  complaint or an order or otherwise initiates legal proceedings

  9  resulting in, or which may result in, suspension or revocation

10  of an insurer's authorization.

11         Section 20.  Subsection (3) of section 440.14, Florida

12  Statutes, is amended to read:

13         440.14  Determination of pay.--

14         (3)  The department division shall establish by rule a

15  form which shall contain a simplified checklist of those items

16  which may be included as "wage" for determining the average

17  weekly wage.

18         Section 21.  Section 440.15, Florida Statutes, is

19  amended to read:

20         440.15  Compensation for disability.--Compensation for

21  disability shall be paid to the employee, subject to the

22  limits provided in s. 440.12(2), as follows:

23         (1)  PERMANENT TOTAL DISABILITY.--

24         (a)  In case of total disability adjudged to be

25  permanent, 66 2/3  percent of the average weekly wages shall

26  be paid to the employee during the continuance of such total

27  disability.

28         (b)  Only a catastrophic injury as defined in s. 440.02

29  shall, in the absence of conclusive proof of a substantial

30  earning capacity, constitute permanent total disability. Only

31  claimants with catastrophic injuries are eligible for


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                                          HB 1655, First Engrossed



  1  permanent total benefits. In no other case may permanent total

  2  disability be awarded.

  3         (c)  In cases of permanent total disability resulting

  4  from injuries that occurred prior to July 1, 1955, such

  5  payments shall not be made in excess of 700 weeks.

  6         (d)  If an employee who is being paid compensation for

  7  permanent total disability becomes rehabilitated to the extent

  8  that she or he establishes an earning capacity, the employee

  9  shall be paid, instead of the compensation provided in

10  paragraph (a), benefits pursuant to subsection (3). The

11  department division shall adopt rules to enable a permanently

12  and totally disabled employee who may have reestablished an

13  earning capacity to undertake a trial period of reemployment

14  without prejudicing her or his return to permanent total

15  status in the case that such employee is unable to sustain an

16  earning capacity.

17         (e)1.  The employer's or carrier's right to conduct

18  vocational evaluations or testing pursuant to s. 440.491

19  continues even after the employee has been accepted or

20  adjudicated as entitled to compensation under this chapter.

21  This right includes, but is not limited to, instances in which

22  such evaluations or tests are recommended by a treating

23  physician or independent medical-examination physician,

24  instances warranted by a change in the employee's medical

25  condition, or instances in which the employee appears to be

26  making appropriate progress in recuperation. This right may

27  not be exercised more than once every calendar year.

28         2.  The carrier must confirm the scheduling of the

29  vocational evaluation or testing in writing, and must notify

30  employee's counsel, if any, at least 7 days before the date on

31  which vocational evaluation or testing is scheduled to occur.


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                                          HB 1655, First Engrossed



  1         3.  Pursuant to an order of the judge of compensation

  2  claims, the employer or carrier may withhold payment of

  3  benefits for permanent total disability or supplements for any

  4  period during which the employee willfully fails or refuses to

  5  appear without good cause for the scheduled vocational

  6  evaluation or testing.

  7         (f)1.  If permanent total disability results from

  8  injuries that occurred subsequent to June 30, 1955, and for

  9  which the liability of the employer for compensation has not

10  been discharged under s. 440.20(11), the injured employee

11  shall receive additional weekly compensation benefits equal to

12  5 percent of her or his weekly compensation rate, as

13  established pursuant to the law in effect on the date of her

14  or his injury, multiplied by the number of calendar years

15  since the date of injury. The weekly compensation payable and

16  the additional benefits payable under this paragraph, when

17  combined, may not exceed the maximum weekly compensation rate

18  in effect at the time of payment as determined pursuant to s.

19  440.12(2). Entitlement to these supplemental payments shall

20  cease at age 62 if the employee is eligible for social

21  security benefits under 42 U.S.C. ss. 402 and 423, whether or

22  not the employee has applied for such benefits. These

23  supplemental benefits shall be paid by the division out of the

24  Workers' Compensation Administration Trust Fund when the

25  injury occurred subsequent to June 30, 1955, and before July

26  1, 1984. These supplemental benefits shall be paid by the

27  employer when the injury occurred on or after July 1, 1984.

28  Supplemental benefits are not payable for any period prior to

29  October 1, 1974.

30         2.a.  The department division shall provide by rule for

31  the periodic reporting to the department division of all


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                                          HB 1655, First Engrossed



  1  earnings of any nature and social security income by the

  2  injured employee entitled to or claiming additional

  3  compensation under subparagraph 1. Neither the department

  4  division nor the employer or carrier shall make any payment of

  5  those additional benefits provided by subparagraph 1. for any

  6  period during which the employee willfully fails or refuses to

  7  report upon request by the department division in the manner

  8  prescribed by such rules.

  9         b.  The department division shall provide by rule for

10  the periodic reporting to the employer or carrier of all

11  earnings of any nature and social security income by the

12  injured employee entitled to or claiming benefits for

13  permanent total disability. The employer or carrier is not

14  required to make any payment of benefits for permanent total

15  disability for any period during which the employee willfully

16  fails or refuses to report upon request by the employer or

17  carrier in the manner prescribed by such rules or if any

18  employee who is receiving permanent total disability benefits

19  refuses to apply for or cooperate with the employer or carrier

20  in applying for social security benefits.

21         3.  When an injured employee receives a full or partial

22  lump-sum advance of the employee's permanent total disability

23  compensation benefits, the employee's benefits under this

24  paragraph shall be computed on the employee's weekly

25  compensation rate as reduced by the lump-sum advance.

26         (2)  TEMPORARY TOTAL DISABILITY.--

27         (a)  In case of disability total in character but

28  temporary in quality, 66 2/3  percent of the average weekly

29  wages shall be paid to the employee during the continuance

30  thereof, not to exceed 104 weeks except as provided in this

31  subsection, s. 440.12(1), and s. 440.14(3). Once the employee


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                                          HB 1655, First Engrossed



  1  reaches the maximum number of weeks allowed, or the employee

  2  reaches the date of maximum medical improvement, whichever

  3  occurs earlier, temporary disability benefits shall cease and

  4  the injured worker's permanent impairment shall be determined.

  5         (b)  Notwithstanding the provisions of paragraph (a),

  6  an employee who has sustained the loss of an arm, leg, hand,

  7  or foot, has been rendered a paraplegic, paraparetic,

  8  quadriplegic, or quadriparetic, or has lost the sight of both

  9  eyes shall be paid temporary total disability of 80 percent of

10  her or his average weekly wage. The increased temporary total

11  disability compensation provided for in this paragraph must

12  not extend beyond 6 months from the date of the accident. The

13  compensation provided by this paragraph is not subject to the

14  limits provided in s. 440.12(2), but instead is subject to a

15  maximum weekly compensation rate of $700. If, at the

16  conclusion of this period of increased temporary total

17  disability compensation, the employee is still temporarily

18  totally disabled, the employee shall continue to receive

19  temporary total disability compensation as set forth in

20  paragraphs (a) and (c). The period of time the employee has

21  received this increased compensation will be counted as part

22  of, and not in addition to, the maximum periods of time for

23  which the employee is entitled to compensation under paragraph

24  (a) but not paragraph (c).

25         (c)  Temporary total disability benefits paid pursuant

26  to this subsection shall include such period as may be

27  reasonably necessary for training in the use of artificial

28  members and appliances, and shall include such period as the

29  employee may be receiving training and education under a

30  program pursuant to s. 440.49(1). Notwithstanding s.

31  440.02(9), the date of maximum medical improvement for


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                                          HB 1655, First Engrossed



  1  purposes of paragraph (3)(b) shall be no earlier than the last

  2  day for which such temporary disability benefits are paid.

  3         (d)  The department division shall, by rule, provide

  4  for the periodic reporting to the department division,

  5  employer, or carrier of all earned income, including income

  6  from social security, by the injured employee who is entitled

  7  to or claiming benefits for temporary total disability. The

  8  employer or carrier is not required to make any payment of

  9  benefits for temporary total disability for any period during

10  which the employee willfully fails or refuses to report upon

11  request by the employer or carrier in the manner prescribed by

12  the rules. The rule must require the claimant to personally

13  sign the claim form and attest that she or he has reviewed,

14  understands, and acknowledges the foregoing.

15         (3)  PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--

16         (a)  Impairment benefits.--

17         1.  Once the employee has reached the date of maximum

18  medical improvement, impairment benefits are due and payable

19  within 20 days after the carrier has knowledge of the

20  impairment.

21         2.  The three-member panel, in cooperation with the

22  department division, shall establish and use a uniform

23  permanent impairment rating schedule. This schedule must be

24  based on medically or scientifically demonstrable findings as

25  well as the systems and criteria set forth in the American

26  Medical Association's Guides to the Evaluation of Permanent

27  Impairment; the Snellen Charts, published by American Medical

28  Association Committee for Eye Injuries; and the Minnesota

29  Department of Labor and Industry Disability Schedules. The

30  schedule should be based upon objective findings. The schedule

31  shall be more comprehensive than the AMA Guides to the


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                                          HB 1655, First Engrossed



  1  Evaluation of Permanent Impairment and shall expand the areas

  2  already addressed and address additional areas not currently

  3  contained in the guides. On August 1, 1979, and pending the

  4  adoption, by rule, of a permanent schedule, Guides to the

  5  Evaluation of Permanent Impairment, copyright 1977, 1971,

  6  1988, by the American Medical Association, shall be the

  7  temporary schedule and shall be used for the purposes hereof.

  8  For injuries after July 1, 1990, pending the adoption by

  9  department division rule of a uniform disability rating

10  schedule, the Minnesota Department of Labor and Industry

11  Disability Schedule shall be used unless that schedule does

12  not address an injury. In such case, the Guides to the

13  Evaluation of Permanent Impairment by the American Medical

14  Association shall be used. Determination of permanent

15  impairment under this schedule must be made by a physician

16  licensed under chapter 458, a doctor of osteopathic medicine

17  licensed under chapters 458 and 459, a chiropractic physician

18  licensed under chapter 460, a podiatric physician licensed

19  under chapter 461, an optometrist licensed under chapter 463,

20  or a dentist licensed under chapter 466, as appropriate

21  considering the nature of the injury. No other persons are

22  authorized to render opinions regarding the existence of or

23  the extent of permanent impairment.

24         3.  All impairment income benefits shall be based on an

25  impairment rating using the impairment schedule referred to in

26  subparagraph 2. Impairment income benefits are paid weekly at

27  the rate of 50 percent of the employee's average weekly

28  temporary total disability benefit not to exceed the maximum

29  weekly benefit under s. 440.12. An employee's entitlement to

30  impairment income benefits begins the day after the employee

31  reaches maximum medical improvement or the expiration of


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                                          HB 1655, First Engrossed



  1  temporary benefits, whichever occurs earlier, and continues

  2  until the earlier of:

  3         a.  The expiration of a period computed at the rate of

  4  3 weeks for each percentage point of impairment; or

  5         b.  The death of the employee.

  6         4.  After the employee has been certified by a doctor

  7  as having reached maximum medical improvement or 6 weeks

  8  before the expiration of temporary benefits, whichever occurs

  9  earlier, the certifying doctor shall evaluate the condition of

10  the employee and assign an impairment rating, using the

11  impairment schedule referred to in subparagraph 2.

12  Compensation is not payable for the mental, psychological, or

13  emotional injury arising out of depression from being out of

14  work. If the certification and evaluation are performed by a

15  doctor other than the employee's treating doctor, the

16  certification and evaluation must be submitted to the treating

17  doctor, and the treating doctor must indicate agreement or

18  disagreement with the certification and evaluation. The

19  certifying doctor shall issue a written report to the

20  department division, the employee, and the carrier certifying

21  that maximum medical improvement has been reached, stating the

22  impairment rating, and providing any other information

23  required by the department by rule division. If the employee

24  has not been certified as having reached maximum medical

25  improvement before the expiration of 102 weeks after the date

26  temporary total disability benefits begin to accrue, the

27  carrier shall notify the treating doctor of the requirements

28  of this section.

29         5.  The carrier shall pay the employee impairment

30  income benefits for a period based on the impairment rating.

31


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                                          HB 1655, First Engrossed



  1         6.  The department division may by rule specify forms

  2  and procedures governing the method of payment of wage loss

  3  and impairment benefits for dates of accidents before January

  4  1, 1994, and for dates of accidents on or after January 1,

  5  1994.

  6         (b)  Supplemental benefits.--

  7         1.  All supplemental benefits must be paid in

  8  accordance with this subsection. An employee is entitled to

  9  supplemental benefits as provided in this paragraph as of the

10  expiration of the impairment period, if:

11         a.  The employee has an impairment rating from the

12  compensable injury of 20 percent or more as determined

13  pursuant to this chapter;

14         b.  The employee has not returned to work or has

15  returned to work earning less than 80 percent of the

16  employee's average weekly wage as a direct result of the

17  employee's impairment; and

18         c.  The employee has in good faith attempted to obtain

19  employment commensurate with the employee's ability to work.

20         2.  If an employee is not entitled to supplemental

21  benefits at the time of payment of the final weekly impairment

22  income benefit because the employee is earning at least 80

23  percent of the employee's average weekly wage, the employee

24  may become entitled to supplemental benefits at any time

25  within 1 year after the impairment income benefit period ends

26  if:

27         a.  The employee earns wages that are less than 80

28  percent of the employee's average weekly wage for a period of

29  at least 90 days;

30         b.  The employee meets the other requirements of

31  subparagraph 1.; and


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                                          HB 1655, First Engrossed



  1         c.  The employee's decrease in earnings is a direct

  2  result of the employee's impairment from the compensable

  3  injury.

  4         3.  If an employee earns wages that are at least 80

  5  percent of the employee's average weekly wage for a period of

  6  at least 90 days during which the employee is receiving

  7  supplemental benefits, the employee ceases to be entitled to

  8  supplemental benefits for the filing period. Supplemental

  9  benefits that have been terminated shall be reinstated when

10  the employee satisfies the conditions enumerated in

11  subparagraph 2. and files the statement required under

12  subparagraph 5. Notwithstanding any other provision, if an

13  employee is not entitled to supplemental benefits for 12

14  consecutive months, the employee ceases to be entitled to any

15  additional income benefits for the compensable injury. If the

16  employee is discharged within 12 months after losing

17  entitlement under this subsection, benefits may be reinstated

18  if the employee was discharged at that time with the intent to

19  deprive the employee of supplemental benefits.

20         4.  During the period that impairment income benefits

21  or supplemental income benefits are being paid, the carrier

22  has the affirmative duty to determine at least annually

23  whether any extended unemployment or underemployment is a

24  direct result of the employee's impairment. To accomplish this

25  purpose, the division may require periodic reports from the

26  employee and the carrier, and it may, at the carrier's

27  expense, require any physical or other examinations,

28  vocational assessments, or other tests or diagnoses necessary

29  to verify that the carrier is performing its duty. Not more

30  than once in each 12 calendar months, the employee and the

31  carrier may each request that the division review the status


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                                          HB 1655, First Engrossed



  1  of the employee and determine whether the carrier has

  2  performed its duty with respect to whether the employee's

  3  unemployment or underemployment is a direct result of

  4  impairment from the compensable injury.

  5         4.5.  After the initial determination of supplemental

  6  benefits, the employee must file a statement with the carrier

  7  stating that the employee has earned less than 80 percent of

  8  the employee's average weekly wage as a direct result of the

  9  employee's impairment, stating the amount of wages the

10  employee earned in the filing period, and stating that the

11  employee has in good faith sought employment commensurate with

12  the employee's ability to work. The statement must be filed

13  quarterly on a form and in the manner prescribed by the

14  department division. The department division may modify the

15  filing period as appropriate to an individual case. Failure to

16  file a statement relieves the carrier of liability for

17  supplemental benefits for the period during which a statement

18  is not filed.

19         5.6.  The carrier shall begin payment of supplemental

20  benefits not later than the seventh day after the expiration

21  date of the impairment income benefit period and shall

22  continue to timely pay those benefits. The carrier may request

23  a mediation conference for the purpose of contesting the

24  employee's entitlement to or the amount of supplemental income

25  benefits.

26         6.7.  Supplemental benefits are calculated quarterly

27  and paid monthly. For purposes of calculating supplemental

28  benefits, 80 percent of the employee's average weekly wage and

29  the average wages the employee has earned per week are

30  compared quarterly. For purposes of this paragraph, if the

31  employee is offered a bona fide position of employment that


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                                          HB 1655, First Engrossed



  1  the employee is capable of performing, given the physical

  2  condition of the employee and the geographic accessibility of

  3  the position, the employee's weekly wages are considered

  4  equivalent to the weekly wages for the position offered to the

  5  employee.

  6         7.8.  Supplemental benefits are payable at the rate of

  7  80 percent of the difference between 80 percent of the

  8  employee's average weekly wage determined pursuant to s.

  9  440.14 and the weekly wages the employee has earned during the

10  reporting period, not to exceed the maximum weekly income

11  benefit under s. 440.12.

12         8.9.  The department division may by rule define terms

13  that are necessary for the administration of this section and

14  forms and procedures governing the method of payment of

15  supplemental benefits for dates of accidents before January 1,

16  1994, and for dates of accidents on or after January 1, 1994.

17         (c)  Duration of temporary impairment and supplemental

18  income benefits.--The employee's eligibility for temporary

19  benefits, impairment income benefits, and supplemental

20  benefits terminates on the expiration of 401 weeks after the

21  date of injury.

22         (4)  TEMPORARY PARTIAL DISABILITY.--

23         (a)  In case of temporary partial disability,

24  compensation shall be equal to 80 percent of the difference

25  between 80 percent of the employee's average weekly wage and

26  the salary, wages, and other remuneration the employee is able

27  to earn, as compared weekly; however, the weekly benefits may

28  not exceed an amount equal to 66 2/3  percent of the

29  employee's average weekly wage at the time of injury. In order

30  to simplify the comparison of the preinjury average weekly

31  wage with the salary, wages, and other remuneration the


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                                          HB 1655, First Engrossed



  1  employee is able to earn, the department division may by rule

  2  provide for the modification of the weekly comparison so as to

  3  coincide as closely as possible with the injured worker's pay

  4  periods. The amount determined to be the salary, wages, and

  5  other remuneration the employee is able to earn shall in no

  6  case be less than the sum actually being earned by the

  7  employee, including earnings from sheltered employment.

  8         (b)  Such benefits shall be paid during the continuance

  9  of such disability, not to exceed a period of 104 weeks, as

10  provided by this subsection and subsection (2). Once the

11  injured employee reaches the maximum number of weeks,

12  temporary disability benefits cease and the injured worker's

13  permanent impairment must be determined. The department

14  division may by rule specify forms and procedures governing

15  the method of payment of temporary disability benefits for

16  dates of accidents before January 1, 1994, and for dates of

17  accidents on or after January 1, 1994.

18         (5)  SUBSEQUENT INJURY.--

19         (a)  The fact that an employee has suffered previous

20  disability, impairment, anomaly, or disease, or received

21  compensation therefor, shall not preclude her or him from

22  benefits for a subsequent aggravation or acceleration of the

23  preexisting condition nor preclude benefits for death

24  resulting therefrom, except that no benefits shall be payable

25  if the employee, at the time of entering into the employment

26  of the employer by whom the benefits would otherwise be

27  payable, falsely represents herself or himself in writing as

28  not having previously been disabled or compensated because of

29  such previous disability, impairment, anomaly, or disease and

30  the employer detrimentally relies on the misrepresentation.

31


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                                          HB 1655, First Engrossed



  1  Compensation for temporary disability, medical benefits, and

  2  wage-loss benefits shall not be subject to apportionment.

  3         (b)  If a compensable permanent impairment, or any

  4  portion thereof, is a result of aggravation or acceleration of

  5  a preexisting condition, or is the result of merger with a

  6  preexisting impairment, an employee eligible to receive

  7  impairment benefits under paragraph (3)(a) shall receive such

  8  benefits for the total impairment found to result, excluding

  9  the degree of impairment existing at the time of the subject

10  accident or injury or which would have existed by the time of

11  the impairment rating without the intervention of the

12  compensable accident or injury. The degree of permanent

13  impairment attributable to the accident or injury shall be

14  compensated in accordance with paragraph (3)(a). As used in

15  this paragraph, "merger" means the combining of a preexisting

16  permanent impairment with a subsequent compensable permanent

17  impairment which, when the effects of both are considered

18  together, result in a permanent impairment rating which is

19  greater than the sum of the two permanent impairment ratings

20  when each impairment is considered individually.

21         (6)  OBLIGATION TO REHIRE.--If the employer has not in

22  good faith made available to the employee, within a 100-mile

23  radius of the employee's residence, work appropriate to the

24  employee's physical limitations within 30 days after the

25  carrier notifies the employer of maximum medical improvement

26  and the employee's physical limitations, the employer shall

27  pay to the department division for deposit into the Workers'

28  Compensation Administration Trust Fund a fine of $250 for

29  every $5,000 of the employer's workers' compensation premium

30  or payroll, not to exceed $2,000 per violation, as the

31  department division requires by rule. The employer is not


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                                          HB 1655, First Engrossed



  1  subject to this subsection if the employee is receiving

  2  permanent total disability benefits or if the employer has 50

  3  or fewer employees.

  4         (7)  EMPLOYEE REFUSES EMPLOYMENT.--If an injured

  5  employee refuses employment suitable to the capacity thereof,

  6  offered to or procured therefor, such employee shall not be

  7  entitled to any compensation at any time during the

  8  continuance of such refusal unless at any time in the opinion

  9  of the judge of compensation claims such refusal is

10  justifiable.

11         (8)  EMPLOYEE LEAVES EMPLOYMENT.--If an injured

12  employee, when receiving compensation for temporary partial

13  disability, leaves the employment of the employer by whom she

14  or he was employed at the time of the accident for which such

15  compensation is being paid, the employee shall, upon securing

16  employment elsewhere, give to such former employer an

17  affidavit in writing containing the name of her or his new

18  employer, the place of employment, and the amount of wages

19  being received at such new employment; and, until she or he

20  gives such affidavit, the compensation for temporary partial

21  disability will cease. The employer by whom such employee was

22  employed at the time of the accident for which such

23  compensation is being paid may also at any time demand of such

24  employee an additional affidavit in writing containing the

25  name of her or his employer, the place of her or his

26  employment, and the amount of wages she or he is receiving;

27  and if the employee, upon such demand, fails or refuses to

28  make and furnish such affidavit, her or his right to

29  compensation for temporary partial disability shall cease

30  until such affidavit is made and furnished.

31


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                                          HB 1655, First Engrossed



  1         (9)  EMPLOYEE BECOMES INMATE OF INSTITUTION.--In case

  2  an employee becomes an inmate of a public institution, then no

  3  compensation shall be payable unless she or he has dependent

  4  upon her or him for support a person or persons defined as

  5  dependents elsewhere in this chapter, whose dependency shall

  6  be determined as if the employee were deceased and to whom

  7  compensation would be paid in case of death; and such

  8  compensation as is due such employee shall be paid such

  9  dependents during the time she or he remains such inmate.

10         (10)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER

11  AND FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE

12  ACT.--

13         (a)  Weekly compensation benefits payable under this

14  chapter for disability resulting from injuries to an employee

15  who becomes eligible for benefits under 42 U.S.C. s. 423 shall

16  be reduced to an amount whereby the sum of such compensation

17  benefits payable under this chapter and such total benefits

18  otherwise payable for such period to the employee and her or

19  his dependents, had such employee not been entitled to

20  benefits under this chapter, under 42 U.S.C. ss. 402 and 423,

21  does not exceed 80 percent of the employee's average weekly

22  wage. However, this provision shall not operate to reduce an

23  injured worker's benefits under this chapter to a greater

24  extent than such benefits would have otherwise been reduced

25  under 42 U.S.C. s. 424(a). This reduction of compensation

26  benefits is not applicable to any compensation benefits

27  payable for any week subsequent to the week in which the

28  injured worker reaches the age of 62 years.

29         (b)  If the provisions of 42 U.S.C. s. 424(a) are

30  amended to provide for a reduction or increase of the

31  percentage of average current earnings that the sum of


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                                          HB 1655, First Engrossed



  1  compensation benefits payable under this chapter and the

  2  benefits payable under 42 U.S.C. ss. 402 and 423 can equal,

  3  the amount of the reduction of benefits provided in this

  4  subsection shall be reduced or increased accordingly. The

  5  department division may by rule specify forms and procedures

  6  governing the method for calculating and administering the

  7  offset of benefits payable under this chapter and benefits

  8  payable under 42 U.S.C. ss. 402 and 423. The department

  9  division shall have first priority in taking any available

10  social security offsets on dates of accidents occurring before

11  July 1, 1984.

12         (c)  No disability compensation benefits payable for

13  any week, including those benefits provided by paragraph

14  (1)(f), shall be reduced pursuant to this subsection until the

15  Social Security Administration determines the amount otherwise

16  payable to the employee under 42 U.S.C. ss. 402 and 423 and

17  the employee has begun receiving such social security benefit

18  payments. The employee shall, upon demand by the department

19  division, the employer, or the carrier, authorize the Social

20  Security Administration to release disability information

21  relating to her or him and authorize the Division of

22  Unemployment Compensation to release unemployment compensation

23  information relating to her or him, in accordance with rules

24  to be promulgated by the department division prescribing the

25  procedure and manner for requesting the authorization and for

26  compliance by the employee. Neither the department division

27  nor the employer or carrier shall make any payment of benefits

28  for total disability or those additional benefits provided by

29  paragraph (1)(f) for any period during which the employee

30  willfully fails or refuses to authorize the release of

31  information in the manner and within the time prescribed by


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                                          HB 1655, First Engrossed



  1  such rules. The authority for release of disability

  2  information granted by an employee under this paragraph shall

  3  be effective for a period not to exceed 12 months, such

  4  authority to be renewable as the department division may

  5  prescribe by rule.

  6         (d)  If compensation benefits are reduced pursuant to

  7  this subsection, the minimum compensation provisions of s.

  8  440.12(2) do not apply.

  9         (11)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER

10  WHO HAS RECEIVED OR IS ENTITLED TO RECEIVE UNEMPLOYMENT

11  COMPENSATION.--

12         (a)  No compensation benefits shall be payable for

13  temporary total disability or permanent total disability under

14  this chapter for any week in which the injured employee has

15  received, or is receiving, unemployment compensation benefits.

16         (b)  If an employee is entitled to temporary partial

17  benefits pursuant to subsection (4) and unemployment

18  compensation benefits, such unemployment compensation benefits

19  shall be primary and the temporary partial benefits shall be

20  supplemental only, the sum of the two benefits not to exceed

21  the amount of temporary partial benefits which would otherwise

22  be payable.

23         (12)  FULL-PAY STATUS FOR CERTAIN LAW ENFORCEMENT

24  OFFICERS.--Any law enforcement officer as defined in s.

25  943.10(1), (2), or (3) who, while acting within the course of

26  employment as provided by s. 440.091, is maliciously or

27  intentionally injured and who thereby sustains a job-connected

28  disability compensable under this chapter shall be carried in

29  full-pay status rather than being required to use sick,

30  annual, or other leave. Full-pay status shall be granted only

31  after submission to the employing agency's head of a medical


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                                          HB 1655, First Engrossed



  1  report which gives a current diagnosis of the employee's

  2  recovery and ability to return to work. In no case shall the

  3  employee's salary and workers' compensation benefits exceed

  4  the amount of the employee's regular salary requirements.

  5         (13)  REPAYMENT.--If an employee has received a sum as

  6  an indemnity benefit under any classification or category of

  7  benefit under this chapter to which she or he is not entitled,

  8  the employee is liable to repay that sum to the employer or

  9  the carrier or to have that sum deducted from future benefits,

10  regardless of the classification of benefits, payable to the

11  employee under this chapter; however, a partial payment of the

12  total repayment may not exceed 20 percent of the amount of the

13  biweekly payment.

14         Section 22.  Section 440.17, Florida Statutes, is

15  amended to read:

16         440.17  Guardian for minor or incompetent.--Prior to

17  the filing of a claim, the department division, and after the

18  filing of a claim, a judge of compensation claims, may require

19  the appointment by a court of competent jurisdiction, for any

20  person who is mentally incompetent or a minor, of a guardian

21  or other representative to receive compensation payable to

22  such person under this chapter and to exercise the powers

23  granted to or to perform the duties required of such person

24  under this chapter; however, the judge of compensation claims,

25  in the judge of compensation claims' discretion, may designate

26  in the compensation award a person to whom payment of

27  compensation may be paid for a minor or incompetent, in which

28  event payment to such designated person shall discharge all

29  liability for such compensation.

30         Section 23.  Section 440.185, Florida Statutes, is

31  amended to read:


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                                          HB 1655, First Engrossed



  1         440.185  Notice of injury or death; reports; penalties

  2  for violations.--

  3         (1)  An employee who suffers an injury arising out of

  4  and in the course of employment shall advise his or her

  5  employer of the injury within 30 days after the date of or

  6  initial manifestation of the injury. Failure to so advise the

  7  employer shall bar a petition under this chapter unless:

  8         (a)  The employer or the employer's agent had actual

  9  knowledge of the injury;

10         (b)  The cause of the injury could not be identified

11  without a medical opinion and the employee advised the

12  employer within 30 days after obtaining a medical opinion

13  indicating that the injury arose out of and in the course of

14  employment;

15         (c)  The employer did not put its employees on notice

16  of the requirements of this section by posting notice pursuant

17  to s. 440.055; or

18         (d)  Exceptional circumstances, outside the scope of

19  paragraph (a) or paragraph (b) justify such failure.

20

21  In the event of death arising out of and in the course of

22  employment, the requirements of this subsection shall be

23  satisfied by the employee's agent or estate. Documents

24  prepared by counsel in connection with litigation, including

25  but not limited to notices of appearance, petitions, motions,

26  or complaints, shall not constitute notice for purposes of

27  this section.

28         (2)  Within 7 days after actual knowledge of injury or

29  death, the employer shall report such injury or death to its

30  carrier, in a format prescribed by the department division,

31  and shall provide a copy of such report to the employee or the


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  1  employee's estate. The report of injury shall contain the

  2  following information:

  3         (a)  The name, address, and business of the employer;

  4         (b)  The name, social security number, street, mailing

  5  address, telephone number, and occupation of the employee;

  6         (c)  The cause and nature of the injury or death;

  7         (d)  The year, month, day, and hour when, and the

  8  particular locality where, the injury or death occurred; and

  9         (e)  Such other information as the department division

10  may require.

11

12  The carrier shall, within 14 days after the employer's receipt

13  of the form reporting the injury, file the information

14  required by this subsection with the department division in

15  Tallahassee. However, the department division may by rule

16  provide for a different reporting system for those types of

17  injuries which it determines should be reported in a different

18  manner and for those cases which involve minor injuries

19  requiring professional medical attention in which the employee

20  does not lose more than 7 days of work as a result of the

21  injury and is able to return to the job immediately after

22  treatment and resume regular work.

23         (3)  In addition to the requirements of subsection (2),

24  the employer shall notify the department division within 24

25  hours by telephone or telegraph of any injury resulting in

26  death.  However, this special notice shall not be required

27  when death results subsequent to the submission to the

28  department division of a previous report of the injury

29  pursuant to subsection (2).

30         (4)  Within 3 days after the employer or the employee

31  informs the carrier of an injury the carrier shall mail to the


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  1  injured worker an informational brochure approved by the

  2  department division which sets forth in clear and

  3  understandable language an explanation of the rights,

  4  benefits, procedures for obtaining benefits and assistance,

  5  criminal penalties, and obligations of injured workers and

  6  their employers under the Florida Workers' Compensation Law.

  7  Annually, the carrier or its third-party administrator shall

  8  mail to the employer an informational brochure approved by the

  9  department division which sets forth in clear and

10  understandable language an explanation of the rights,

11  benefits, procedures for obtaining benefits and assistance,

12  criminal penalties, and obligations of injured workers and

13  their employers under the Florida Workers' Compensation Law.

14  All such informational brochures shall contain a notice that

15  clearly states in substance the following: "Any person who,

16  knowingly and with intent to injure, defraud, or deceive any

17  employer or employee, insurance company, or self-insured

18  program, files a statement of claim containing any false or

19  misleading information commits a felony of the third degree."

20         (5)  Additional reports with respect to such injury and

21  of the condition of such employee, including copies of medical

22  reports, funeral expenses, and wage statements, shall be filed

23  by the employer or carrier to the department division at such

24  times and in such manner as the department division may

25  prescribe by rule.  In carrying out its responsibilities under

26  this chapter, the department and agency division may by rule

27  provide for the obtaining of any medical records relating to

28  medical treatment provided pursuant to this chapter,

29  notwithstanding the provisions of ss. 90.503 and 395.3025(4).

30         (6)  In the absence of a stipulation by the parties,

31  reports provided for in subsection (2), subsection (4), or


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  1  subsection (5) shall not be evidence of any fact stated in

  2  such report in any proceeding relating thereto, except for

  3  medical reports which, if otherwise qualified, may be admitted

  4  at the discretion of the judge of compensation claims.

  5         (7)  Every carrier shall file with the department

  6  division within 21 days after the issuance of a policy or

  7  contract of insurance such policy information as the

  8  department division may require, including notice of whether

  9  the policy is a minimum premium policy. Notice of cancellation

10  or expiration of a policy as set out in s. 440.42(3) shall be

11  mailed to the department division in accordance with rules

12  adopted promulgated by the department division under chapter

13  120.

14         (8)  When a claimant, employer, or carrier has the

15  right, or is required, to mail a report or notice with

16  required copies within the times prescribed in subsection (2),

17  subsection (4), or subsection (5), such mailing will be

18  completed and in compliance with this section if it is

19  postmarked and mailed prepaid to the appropriate recipient

20  prior to the expiration of the time periods prescribed in this

21  section.

22         (9)  Any employer or carrier who fails or refuses to

23  timely send any form, report, or notice required by this

24  section shall be subject to a civil penalty not to exceed $500

25  for each such failure or refusal. However, any employer who

26  fails to notify the carrier of the injury on the prescribed

27  form or by letter within the 7 days required in subsection (2)

28  shall be liable for the civil penalty, which shall be paid by

29  the employer and not the carrier.  Failure by the employer to

30  meet its obligations under subsection (2) shall not relieve

31


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                                          HB 1655, First Engrossed



  1  the carrier from liability for the civil penalty if it fails

  2  to comply with subsections (4) and (5).

  3         (10)  The department division may by rule prescribe

  4  forms and procedures governing the submission of the change in

  5  claims administration report and the risk class code and

  6  standard industry code report for all lost time and denied

  7  lost-time cases. The department division may by rule define

  8  terms that are necessary for the effective administration of

  9  this section.

10         (11)  Any information in a report of injury or illness

11  filed pursuant to this section that would identify an ill or

12  injured employee is confidential and exempt from the

13  provisions of s. 119.07(1) and s. 24(a), Art. I of the State

14  Constitution. This subsection is subject to the Open

15  Government Sunset Review Act of 1995 in accordance with s.

16  119.15, and shall stand repealed on October 2, 2003, unless

17  reviewed and saved from repeal through reenactment by the

18  Legislature.

19         Section 24.  Subsection (1) of section 440.191, Florida

20  Statutes, is amended to read:

21         440.191  Employee Assistance and Ombudsman Office.--

22         (1)(a)  In order to effect the self-executing features

23  of the Workers' Compensation Law, this chapter shall be

24  construed to permit injured employees and employers or the

25  employer's carrier to resolve disagreements without undue

26  expense, costly litigation, or delay in the provisions of

27  benefits. It is the duty of all who participate in the

28  workers' compensation system, including, but not limited to,

29  carriers, service providers, health care providers, attorneys,

30  employers, and employees, to attempt to resolve disagreements

31  in good faith and to cooperate with the department's


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                                          HB 1655, First Engrossed



  1  division's efforts to resolve disagreements between the

  2  parties. The department division may by rule prescribe

  3  definitions that are necessary for the effective

  4  administration of this section.

  5         (b)  An Employee Assistance and Ombudsman Office is

  6  created within the department Division of Workers'

  7  Compensation to inform and assist injured workers, employers,

  8  carriers, and health care providers in fulfilling their

  9  responsibilities under this chapter. The department division

10  may by rule specify forms and procedures for administering

11  requests for assistance provided by this section.

12         (c)  The Employee Assistance and Ombudsman Office,

13  Division of Workers' Compensation, shall be a resource

14  available to all employees who participate in the workers'

15  compensation system and shall take all steps necessary to

16  educate and disseminate information to employees and

17  employers.

18         Section 25.  Subsections (1) and (8) of section

19  440.192, Florida Statutes, are amended to read:

20         440.192  Procedure for resolving benefit disputes.--

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

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

23  entitled under this chapter shall serve by certified mail upon

24  the employer, the employer's carrier, and the department

25  division in Tallahassee a petition for benefits that meets the

26  requirements of this section. The department division shall

27  refer the petition to the Office of the Judges of Compensation

28  Claims.

29         (8)  Within 14 days after receipt of a petition for

30  benefits by certified mail, the carrier must either pay the

31  requested benefits without prejudice to its right to deny


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                                          HB 1655, First Engrossed



  1  within 120 days from receipt of the petition or file a notice

  2  of denial with the department division. The carrier must list

  3  all benefits requested but not paid and explain its

  4  justification for nonpayment in the notice of denial. A

  5  carrier that does not deny compensability in accordance with

  6  s. 440.20(4) is deemed to have accepted the employee's

  7  injuries as compensable, unless it can establish material

  8  facts relevant to the issue of compensability that could not

  9  have been discovered through reasonable investigation within

10  the 120-day period. The carrier shall provide copies of the

11  notice to the filing party, employer, and claimant by

12  certified mail.

13         Section 26.  Subsections (1), (3), and (4) of section

14  440.1925, Florida Statutes, are amended to read:

15         440.1925  Procedure for resolving maximum medical

16  improvement or permanent impairment disputes.--

17         (1)  Notwithstanding the limitations on carrier

18  independent medical examinations in s. 440.13, an employee or

19  carrier who wishes to obtain an opinion other than the opinion

20  of the treating physician or an agency a division advisor on

21  the issue of permanent impairment may obtain one independent

22  medical examination, except that the employee or carrier who

23  selects the treating physician is not entitled to obtain an

24  alternate opinion on the issue of permanent impairment, unless

25  the parties otherwise agree. This section and s. 440.13(2) do

26  not permit an employee or a carrier to obtain an additional

27  medical opinion on the issue of permanent impairment by

28  requesting an alternate treating physician pursuant to s.

29  440.13.

30         (3)  Disputes shall be resolved under this section

31  when:


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                                          HB 1655, First Engrossed



  1         (a)  A carrier that is entitled to obtain a

  2  determination of an employee's date of maximum medical

  3  improvement or permanent impairment has done so;

  4         (b)  The independent medical examiner's opinion on the

  5  date of the employee's maximum medical improvement and degree

  6  or permanent impairment differs from the opinion of the

  7  employee's treating physician on either of those issues, or

  8  from the opinion of the expert medical advisor appointed by

  9  the agency division on the degree of permanent impairment; or

10         (c)  The carrier denies any portion of an employee's

11  claim petition for benefits due to disputed maximum medical

12  improvement or permanent impairment issues.

13         (4)  Only opinions of the employee's treating

14  physician, an agency a division medical advisor, or an

15  independent medical examiner are admissible in proceedings

16  before a judge of compensation claims to resolve maximum

17  medical improvement or impairment disputes.

18         Section 27.  Subsections (3), (6), (8), (9), (10),

19  (11), (12), (15), (16), and (17) of section 440.20, Florida

20  Statutes, are amended to read:

21         440.20  Time for payment of compensation; penalties for

22  late payment.--

23         (3)  Upon making payment, or upon suspension or

24  cessation of payment for any reason, the carrier shall

25  immediately notify the department division that it has

26  commenced, suspended, or ceased payment of compensation. The

27  department division may require such notification in any

28  format and manner it deems necessary to obtain accurate and

29  timely reporting.

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

31  dependency benefits, disability, permanent impairment, or wage


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                                          HB 1655, First Engrossed



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

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

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

  4  installment a punitive penalty of an amount equal to 20

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

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

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

  8  unless such nonpayment results from conditions over which the

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

10  compensation payable without an award has not been paid within

11  7 days after it became due and the claimant concludes the

12  prosecution of the claim before a judge of compensation claims

13  without having specifically claimed additional compensation in

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

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

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

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

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

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

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

21  whether such penalty should be awarded or excused. The

22  department division may assess without a hearing the punitive

23  penalty against either the employer or the insurance carrier,

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

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

26  the carrier if the department division or the judge of

27  compensation claims determines that the punitive penalty

28  should be made by the employer rather than the carrier. Any

29  additional installment of compensation paid by the carrier

30  pursuant to this section shall be paid directly to the

31  employee.


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                                          HB 1655, First Engrossed



  1         (8)  In addition to any other penalties provided by

  2  this chapter for late payment, if any installment of

  3  compensation is not paid when it becomes due, the employer,

  4  carrier, or servicing agent shall pay interest thereon at the

  5  rate of 12 percent per year from the date the installment

  6  becomes due until it is paid, whether such installment is

  7  payable without an order or under the terms of an order. The

  8  interest payment shall be the greater of the amount of

  9  interest due or $5.

10         (a)  Within 30 days after final payment of compensation

11  has been made, the employer, carrier, or servicing agent shall

12  send to the department division a notice, in accordance with a

13  form format and manner prescribed by the department division,

14  stating that such final payment has been made and stating the

15  total amount of compensation paid, the name of the employee

16  and of any other person to whom compensation has been paid,

17  the date of the injury or death, and the date to which

18  compensation has been paid.

19         (b)  If the employer, carrier, or servicing agent fails

20  to so notify the department division within such time, the

21  department division shall assess against such employer,

22  carrier, or servicing agent a civil penalty in an amount not

23  over $100.

24         (c)  In order to ensure carrier compliance under this

25  chapter and provisions of the insurance code, the department

26  division shall monitor the performance of carriers by

27  conducting market conduct examinations, as provided in s.

28  624.3161, and conducting investigations, as provided in s.

29  624.317. The department division shall impose penalties on

30  establish by rule minimum performance standards for carriers

31  to ensure that a minimum of 90 percent of all compensation


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                                          HB 1655, First Engrossed



  1  benefits are timely paid. The division shall fine a carrier as

  2  provided in s. 440.13(11)(b) up to $50 for each late payment

  3  of compensation pursuant to s. 624.4211 that is below the

  4  minimum 90 percent performance standard. This paragraph does

  5  not affect the imposition of any penalties or interest due to

  6  the claimant. If a carrier contracts with a servicing agent to

  7  fulfill its administrative responsibilities under this

  8  chapter, the payment practices of the servicing agent are

  9  deemed the payment practices of the carrier for the purpose of

10  assessing penalties against the carrier.

11         (9)  The department division may upon its own

12  initiative at any time in a case in which payments are being

13  made without an award investigate same and shall, in any case

14  in which the right to compensation is controverted, or in

15  which payments of compensation have been stopped or suspended,

16  upon receipt of notice from any person entitled to

17  compensation or from the employer that the right to

18  compensation is controverted or that payments of compensation

19  have been stopped or suspended, make such investigations,

20  cause such medical examination to be made, or hold such

21  hearings, and take such further action as it considers will

22  properly protect the rights of all parties.

23         (10)  Whenever the department division deems it

24  advisable, it may require any employer to make a deposit with

25  the Treasurer to secure the prompt and convenient payments of

26  such compensation; and payments therefrom upon any awards

27  shall be made upon order of the department division or judge

28  of compensation claims.

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

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

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


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                                          HB 1655, First Engrossed



  1  future payments of compensation expenses and any other

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

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

  4  written notice of denial within 120 days after the date of the

  5  injury, and the judge of compensation claims at a hearing to

  6  consider the settlement proposal finds a justiciable

  7  controversy as to legal or medical compensability of the

  8  claimed injury or the alleged accident. The employer or

  9  carrier may not pay any attorney's fees on behalf of the

10  claimant for any settlement under this section unless

11  expressly authorized elsewhere in this chapter. Upon the joint

12  petition of all interested parties and after giving due

13  consideration to the interests of all interested parties, the

14  judge of compensation claims may enter a compensation order

15  approving and authorizing the discharge of the liability of

16  the employer for compensation and remedial treatment, care,

17  and attendance, as well as rehabilitation expenses, by the

18  payment of a lump sum. Such a compensation order so entered

19  upon joint petition of all interested parties is not subject

20  to modification or review under s. 440.28. If the settlement

21  proposal together with supporting evidence is not approved by

22  the judge of compensation claims, it shall be considered void.

23  Upon approval of a lump-sum settlement under this subsection,

24  the judge of compensation claims shall send a report to the

25  Chief Judge of the amount of the settlement and a statement of

26  the nature of the controversy. The Chief Judge shall keep a

27  record of all such reports filed by each judge of compensation

28  claims and shall submit to the Legislature a summary of all

29  such reports filed under this subsection annually by September

30  15.

31


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                                          HB 1655, First Engrossed



  1         (b)  Upon joint petition of all interested parties, a

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

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

  4  future payments of compensation and rehabilitation expenses,

  5  and any other benefits provided under this chapter, may be

  6  allowed at any time in any case after the injured employee has

  7  attained maximum medical improvement. An employer or carrier

  8  may not pay any attorney's fees on behalf of the claimant for

  9  any settlement, unless expressly authorized elsewhere in this

10  chapter. A compensation order so entered upon joint petition

11  of all interested parties shall not be subject to modification

12  or review under s. 440.28. However, a judge of compensation

13  claims is not required to approve any award for lump-sum

14  payment when it is determined by the judge of compensation

15  claims that the payment being made is in excess of the value

16  of benefits the claimant would be entitled to under this

17  chapter. The judge of compensation claims shall make or cause

18  to be made such investigations as she or he considers

19  necessary, in each case in which the parties have stipulated

20  that a proposed final settlement of liability of the employer

21  for compensation shall not be subject to modification or

22  review under s. 440.28, to determine whether such final

23  disposition will definitely aid the rehabilitation of the

24  injured worker or otherwise is clearly for the best interests

25  of the person entitled to compensation and, in her or his

26  discretion, may have an investigation made by the Department

27  of Education Rehabilitation Section of the Division of

28  Workers' Compensation. The joint petition and the report of

29  any investigation so made will be deemed a part of the

30  proceeding. An employer shall have the right to appear at any

31  hearing pursuant to this subsection which relates to the


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                                          HB 1655, First Engrossed



  1  discharge of such employer's liability and to present

  2  testimony at such hearing. The carrier shall provide

  3  reasonable notice to the employer of the time and date of any

  4  such hearing and inform the employer of her or his rights to

  5  appear and testify. When the claimant is represented by

  6  counsel or when the claimant and carrier or employer are

  7  represented by counsel, final approval of the lump-sum

  8  settlement agreement, as provided for in a joint petition and

  9  stipulation, shall be approved by entry of an order within 7

10  days after the filing of such joint petition and stipulation

11  without a hearing, unless the judge of compensation claims

12  determines, in her or his discretion, that additional

13  testimony is needed before such settlement can be approved or

14  disapproved and so notifies the parties. The probability of

15  the death of the injured employee or other person entitled to

16  compensation before the expiration of the period during which

17  such person is entitled to compensation shall, in the absence

18  of special circumstances making such course improper, be

19  determined in accordance with the most recent United States

20  Life Tables published by the National Office of Vital

21  Statistics of the United States Department of Health and Human

22  Services. The probability of the happening of any other

23  contingency affecting the amount or duration of the

24  compensation, except the possibility of the remarriage of a

25  surviving spouse, shall be disregarded. As a condition of

26  approving a lump-sum payment to a surviving spouse, the judge

27  of compensation claims, in the judge of compensation claims'

28  discretion, may require security which will ensure that, in

29  the event of the remarriage of such surviving spouse, any

30  unaccrued future payments so paid may be recovered or recouped

31


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                                          HB 1655, First Engrossed



  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.


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                                          HB 1655, First Engrossed



  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


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                                          HB 1655, First Engrossed



  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


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                                          HB 1655, First Engrossed



  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


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                                          HB 1655, First Engrossed



  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 28.  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


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                                          HB 1655, First Engrossed



  1         (2)  The department division shall publish an

  2  understandable guide to the workers' compensation system which

  3  shall contain an explanation of benefits provided; services

  4  provided by the Employee Assistance and Ombudsman Office;

  5  procedures regarding mediation, the hearing process, and civil

  6  and criminal penalties; relevant rules of the department

  7  division; and such other information as the department

  8  division believes will inform employees, employers, carriers,

  9  and those providing services pursuant to this chapter of their

10  rights and responsibilities under this chapter and the rules

11  of the department division. For the purposes of this

12  subsection, a guide is understandable if the text of the guide

13  is written at a level of readability not exceeding the eighth

14  grade level, as determined by a recognized readability test.

15         Section 29.  Subsection (1) of section 440.211, Florida

16  Statutes, is amended to read:

17         440.211  Authorization of collective bargaining

18  agreement.--

19         (1)  Subject to the limitation stated in subsection

20  (2), a provision that is mutually agreed upon in any

21  collective bargaining agreement filed with the department

22  division between an individually self-insured employer or

23  other employer upon consent of the employer's carrier and a

24  recognized or certified exclusive bargaining representative

25  establishing any of the following shall be valid and binding:

26         (a)  An alternative dispute resolution system to

27  supplement, modify, or replace the provisions of this chapter

28  which may include, but is not limited to, conciliation,

29  mediation, and arbitration. Arbitration held pursuant to this

30  section shall be binding on the parties.

31


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                                          HB 1655, First Engrossed



  1         (b)  The use of an agreed-upon list of certified health

  2  care providers of medical treatment which may be the exclusive

  3  source of all medical treatment under this chapter.

  4         (c)  The use of a limited list of physicians to conduct

  5  independent medical examinations which the parties may agree

  6  shall be the exclusive source of independent medical examiners

  7  pursuant to this chapter.

  8         (d)  A light-duty, modified-job, or return-to-work

  9  program.

10         (e)  A vocational rehabilitation or retraining program.

11         Section 30.  Subsections (1), (2), and (3) of section

12  440.24, Florida Statutes, are amended to read:

13         440.24  Enforcement of compensation orders;

14  penalties.--

15         (1)  In case of default by the employer or carrier in

16  the payment of compensation due under any compensation order

17  of a judge of compensation claims or other failure by the

18  employer or carrier to comply with such order within 10 days

19  after the order becomes final, any circuit court of this state

20  within the jurisdiction of which the employer or carrier

21  resides or transacts business shall, upon application by the

22  department division or any beneficiary under such order, have

23  jurisdiction to issue a rule nisi directing such employer or

24  carrier to show cause why a writ of execution, or such other

25  process as may be necessary to enforce the terms of such

26  order, shall not be issued, and, unless such cause is shown,

27  the court shall have jurisdiction to issue a writ of execution

28  or such other process or final order as may be necessary to

29  enforce the terms of such order of the judge of compensation

30  claims.

31


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                                          HB 1655, First Engrossed



  1         (2)  In any case where the employer is insured and the

  2  carrier fails to comply with any compensation order of a judge

  3  of compensation claims or court within 10 days after such

  4  order becomes final, the division shall notify the department

  5  of Insurance of such failure, and the Department of Insurance

  6  shall thereupon suspend the license of such carrier to do an

  7  insurance business in this state, until such carrier has

  8  complied with such order.

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

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

11  compensation claims or court within 10 days after such order

12  becomes final, the department division may suspend or revoke

13  any authorization previously given to the employer to become a

14  self-insurer, and the department division may sell such of the

15  securities deposited by such self-insurer with the department

16  division as may be necessary to satisfy such order.

17         Section 31.  Subsections (4), (5), and (7) of section

18  440.25, Florida Statutes, are amended to read:

19         440.25  Procedures for mediation and hearings.--

20         (4)(a)  If, on the 10th day following commencement of

21  mediation, the questions in dispute have not been resolved,

22  the judge of compensation claims shall hold a pretrial

23  hearing. The judge of compensation claims shall give the

24  interested parties at least 7 days' advance notice of the

25  pretrial hearing by mail. At the pretrial hearing, the judge

26  of compensation claims shall, subject to paragraph (b), set a

27  date for the final hearing that allows the parties at least 30

28  days to conduct discovery unless the parties consent to an

29  earlier hearing date.

30         (b)  The final hearing must be held and concluded

31  within 45 days after the pretrial hearing. Continuances may be


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                                          HB 1655, First Engrossed



  1  granted only if the requesting party demonstrates to the judge

  2  of compensation claims that the reason for requesting the

  3  continuance arises from circumstances beyond the party's

  4  control.

  5         (c)  The judge of compensation claims shall give the

  6  interested parties at least 7 days' advance notice of the

  7  final hearing, served upon the interested parties by mail.

  8         (d)  The hearing shall be held in the county where the

  9  injury occurred, if the injury occurred in this state, unless

10  otherwise agreed to between the parties and authorized by the

11  judge of compensation claims in the county where the injury

12  occurred. If the injury occurred without the state and is one

13  for which compensation is payable under this chapter, then the

14  hearing above referred to may be held in the county of the

15  employer's residence or place of business, or in any other

16  county of the state which will, in the discretion of the Chief

17  Judge, be the most convenient for a hearing. The hearing shall

18  be conducted by a judge of compensation claims, who shall,

19  within 14 days after final hearing, unless otherwise agreed by

20  the parties, determine the dispute in a summary manner. At

21  such hearing, the claimant and employer may each present

22  evidence in respect of such claim and may be represented by

23  any attorney authorized in writing for such purpose. When

24  there is a conflict in the medical evidence submitted at the

25  hearing, the provisions of s. 440.13 shall apply. The report

26  or testimony of the expert medical advisor shall be made a

27  part of the record of the proceeding and shall be given the

28  same consideration by the judge of compensation claims as is

29  accorded other medical evidence submitted in the proceeding;

30  and all costs incurred in connection with such examination and

31  testimony may be assessed as costs in the proceeding, subject


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                                          HB 1655, First Engrossed



  1  to the provisions of s. 440.13. No judge of compensation

  2  claims may make a finding of a degree of permanent impairment

  3  that is greater than the greatest permanent impairment rating

  4  given the claimant by any examining or treating physician,

  5  except upon stipulation of the parties.

  6         (e)  The order making an award or rejecting the claim,

  7  referred to in this chapter as a "compensation order," shall

  8  set forth the findings of ultimate facts and the mandate; and

  9  the order need not include any other reason or justification

10  for such mandate. The compensation order shall be filed in the

11  office of the department division at Tallahassee. A copy of

12  such compensation order shall be sent by mail to the parties

13  and attorneys of record at the last known address of each,

14  with the date of mailing noted thereon.

15         (f)  Each judge of compensation claims is required to

16  submit a special report to the Chief Judge in each contested

17  workers' compensation case in which the case is not determined

18  within 14 days of final hearing. Said form shall be provided

19  by the Chief Judge and shall contain the names of the judge of

20  compensation claims and of the attorneys involved and a brief

21  explanation by the judge of compensation claims as to the

22  reason for such a delay in issuing a final order. The Chief

23  Judge shall compile these special reports into an annual

24  public report to the Governor, the department Secretary of

25  Labor and Employment Security, the Legislature, The Florida

26  Bar, and the appellate district judicial nominating

27  commissions.

28         (g)  Judges of compensation claims shall adopt and

29  enforce uniform local rules for workers' compensation.

30         (h)  Notwithstanding any other provision of this

31  section, the judge of compensation claims may require the


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                                          HB 1655, First Engrossed



  1  appearance of the parties and counsel before her or him

  2  without written notice for an emergency conference where there

  3  is a bona fide emergency involving the health, safety, or

  4  welfare of an employee. An emergency conference under this

  5  section may result in the entry of an order or the rendering

  6  of an adjudication by the judge of compensation claims.

  7         (i)  To expedite dispute resolution and to enhance the

  8  self-executing features of the Workers' Compensation Law, the

  9  Chief Judge shall make provision by rule or order for the

10  resolution of appropriate motions by judges of compensation

11  claims without oral hearing upon submission of brief written

12  statements in support and opposition, and for expedited

13  discovery and docketing.

14         (j)  To further expedite dispute resolution and to

15  enhance the self-executing features of the system, those

16  petitions filed in accordance with s. 440.192 that involve a

17  claim for benefits of $5,000 or less shall, in the absence of

18  compelling evidence to the contrary, be presumed to be

19  appropriate for expedited resolution under this paragraph; and

20  any other claim filed in accordance with s. 440.192, upon the

21  written agreement of both parties and application by either

22  party, may similarly be resolved under this paragraph. For

23  purposes of expedited resolution pursuant to this paragraph,

24  the Chief Judge shall make provision by rule or order for

25  expedited and limited discovery and expedited docketing in

26  such cases. At least 15 days prior to hearing, the parties

27  shall exchange and file with the judge of compensation claims

28  a pretrial outline of all issues, defenses, and witnesses on a

29  form promulgated by the Chief Judge; provided, in no event

30  shall such hearing be held without 15 days' written notice to

31  all parties. No pretrial hearing shall be held. The judge of


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                                          HB 1655, First Engrossed



  1  compensation claims shall limit all argument and presentation

  2  of evidence at the hearing to a maximum of 30 minutes, and

  3  such hearings shall not exceed 30 minutes in length. Neither

  4  party shall be required to be represented by counsel. The

  5  employer or carrier may be represented by an adjuster or other

  6  qualified representative. The employer or carrier and any

  7  witness may appear at such hearing by telephone. The rules of

  8  evidence shall be liberally construed in favor of allowing

  9  introduction of evidence.

10         (5)(a)  Procedures with respect to appeals from orders

11  of judges of compensation claims shall be governed by rules

12  adopted by the Supreme Court. Such an order shall become final

13  30 days after mailing of copies of such order to the parties,

14  unless appealed pursuant to such rules.

15         (b)  An appellant may be relieved of any necessary

16  filing fee by filing a verified petition of indigency for

17  approval as provided in s. 57.081(1) and may be relieved in

18  whole or in part from the costs for preparation of the record

19  on appeal if, within 15 days after the date notice of the

20  estimated costs for the preparation is served, the appellant

21  files with the judge of compensation claims a copy of the

22  designation of the record on appeal, and a verified petition

23  to be relieved of costs. A verified petition filed prior to

24  the date of service of the notice of the estimated costs shall

25  be deemed not timely filed. The verified petition relating to

26  record costs shall contain a sworn statement that the

27  appellant is insolvent and a complete, detailed, and sworn

28  financial affidavit showing all the appellant's assets,

29  liabilities, and income. Failure to state in the affidavit all

30  assets and income, including marital assets and income, shall

31  be grounds for denying the petition with prejudice. The


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                                          HB 1655, First Engrossed



  1  department division shall promulgate rules as may be required

  2  pursuant to this subsection, including forms for use in all

  3  petitions brought under this subsection. The appellant's

  4  attorney, or the appellant if she or he is not represented by

  5  an attorney, shall include as a part of the verified petition

  6  relating to record costs an affidavit or affirmation that, in

  7  her or his opinion, the notice of appeal was filed in good

  8  faith and that there is a probable basis for the District

  9  Court of Appeal, First District, to find reversible error, and

10  shall state with particularity the specific legal and factual

11  grounds for the opinion. Failure to so affirm shall be grounds

12  for denying the petition. A copy of the verified petition

13  relating to record costs shall be served upon all interested

14  parties, including the department division and the Office of

15  the General Counsel, Department of Labor and Employment

16  Security, in Tallahassee. The judge of compensation claims

17  shall promptly conduct a hearing on the verified petition

18  relating to record costs, giving at least 15 days' notice to

19  the appellant, the department division, and all other

20  interested parties, all of whom shall be parties to the

21  proceedings. The judge of compensation claims may enter an

22  order without such hearing if no objection is filed by an

23  interested party within 20 days from the service date of the

24  verified petition relating to record costs. Such proceedings

25  shall be conducted in accordance with the provisions of this

26  section and with the workers' compensation rules of procedure,

27  to the extent applicable. In the event an insolvency petition

28  is granted, the judge of compensation claims shall direct the

29  department division to pay record costs and filing fees from

30  the Workers' Compensation Administrative Trust Fund pending

31  final disposition of the costs of appeal. The department


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                                          HB 1655, First Engrossed



  1  division may transcribe or arrange for the transcription of

  2  the record in any proceeding for which it is ordered to pay

  3  the cost of the record. In the event the insolvency petition

  4  is denied, the judge of compensation claims may enter an order

  5  requiring the petitioner to reimburse the department division

  6  for costs incurred in opposing the petition, including

  7  investigation and travel expenses.

  8         (c)  As a condition of filing a notice of appeal to the

  9  District Court of Appeal, First District, an employer who has

10  not secured the payment of compensation under this chapter in

11  compliance with s. 440.38 shall file with the notice of appeal

12  a good and sufficient bond, as provided in s. 59.13,

13  conditioned to pay the amount of the demand and any interest

14  and costs payable under the terms of the order if the appeal

15  is dismissed, or if the District Court of Appeal, First

16  District, affirms the award in any amount. Upon the failure of

17  such employer to file such bond with the judge of compensation

18  claims or the District Court of Appeal, First District, along

19  with the notice of appeal, the District Court of Appeal, First

20  District, shall dismiss the notice of appeal.

21         (7)  An injured employee claiming or entitled to

22  compensation shall submit to such physical examination by a

23  certified expert medical advisor approved by the agency

24  division or the judge of compensation claims as the agency

25  division or the judge of compensation claims may require. The

26  place or places shall be reasonably convenient for the

27  employee. Such physician or physicians as the employee,

28  employer, or carrier may select and pay for may participate in

29  an examination if the employee, employer, or carrier so

30  requests. Proceedings shall be suspended and no compensation

31  shall be payable for any period during which the employee may


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                                          HB 1655, First Engrossed



  1  refuse to submit to examination. Any interested party shall

  2  have the right in any case of death to require an autopsy, the

  3  cost thereof to be borne by the party requesting it; and the

  4  judge of compensation claims shall have authority to order and

  5  require an autopsy and may, in her or his discretion, withhold

  6  her or his findings and award until an autopsy is held.

  7         Section 32.  Section 440.271, Florida Statutes, is

  8  amended to read:

  9         440.271  Appeal of order of judge of compensation

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

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

12  District Court of Appeal, First District.  Appeals shall be

13  filed in accordance with rules of procedure prescribed by the

14  Supreme Court for review of such orders. The department

15  division shall be given notice of any proceedings pertaining

16  to s. 440.25, regarding indigency, or s. 440.49, regarding the

17  Special Disability Trust Fund, and shall have the right to

18  intervene in any proceedings.

19         Section 33.  Section 440.345, Florida Statutes, is

20  amended to read:

21         440.345  Reporting of attorney's fees.--All fees paid

22  to attorneys for services rendered under this chapter shall be

23  reported to the department division as the department division

24  requires by rule. The department division shall annually

25  summarize such data in a report to the Workers' Compensation

26  Oversight Board.

27         Section 34.  Section 440.35, Florida Statutes, is

28  amended to read:

29         440.35  Record of injury or death.--Every employer

30  shall keep a record in respect of any injury to an employee.

31  Such record shall contain such information of disability or


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                                          HB 1655, First Engrossed



  1  death in respect of such injury as the department division may

  2  by regulation require, and shall be available to inspection by

  3  the department division or by any state authority at such time

  4  and under such conditions as the department division may by

  5  regulation prescribe.

  6         Section 35.  Subsections (1), (2), and (3) of section

  7  440.38, Florida Statutes, are amended to read:

  8         Section 36.  Subsections (1), (2), and (3) of section

  9  440.38, Florida Statutes, are amended to read:

10         440.38  Security for compensation; insurance carriers

11  and self-insurers.--

12         (1)  Every employer shall secure the payment of

13  compensation under this chapter:

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

15  such compensation with any stock company or mutual company or

16  association or exchange, authorized to do business in the

17  state;

18         (b)  By furnishing satisfactory proof to the Florida

19  Self-Insurers Guaranty Association, Incorporated, created in

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

21  assure timely payment of all current and future claims

22  division of its financial ability to pay such compensation

23  individually and on behalf of its subsidiary and affiliated

24  companies with employees in this state and receiving an

25  authorization from the Department of Insurance, division to

26  pay such compensation directly. The association shall review

27  the financial strength of applicants for membership, current

28  members, and former members and make recommendations to the

29  department regarding their qualifications to self-insure in

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

31


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                                          HB 1655, First Engrossed



  1  department shall consult with the association on any

  2  recommendation before taking action. the following provisions:

  3         1.  The association division may recommend that the

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

  5  require an such employer to deposit with in a depository

  6  designated by the association a qualifying deposit. The

  7  association shall recommend the type and amount of the

  8  qualifying security deposit and shall division either an

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

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

11  subject to such conditions as the division may prescribe

12  conditions for the qualifying security deposit, which shall

13  include authorization for to the association to call the

14  qualifying security deposit division in the case of default to

15  sell any such securities sufficient to pay compensation awards

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

17  such bonds, to procure prompt payment of compensation under

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

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

20  provide proof that the employer has provided for competent

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

22  working environment.  Further, The employer division shall

23  also provide evidence of require such employer to carry

24  reinsurance at levels that will ensure the financial strength

25  and actuarial soundness of such employer in accordance with

26  rules adopted promulgated by the Department of Insurance

27  division.  The Department of Insurance division may by rule

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

29  insolvency, such qualifying security deposits indemnity bonds,

30  securities, and reinsurance policies are shall be payable to

31  the association Florida Self-Insurers Guaranty Association,


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                                          HB 1655, First Engrossed



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

  2  securing compensation in accordance with the provisions of

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

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

  5  employers shall, if requested, provide the association an

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

  7  Actuaries providing an opinion of the appropriate present

  8  value of the reserves for current and future compensation

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

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

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

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

13  court determines appropriate. The association shall be

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

15  in such proceedings.

16         2.  If the employer fails to maintain the foregoing

17  requirements, the association division shall recommend to the

18  Department of Insurance that it revoke the employer's

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

20  association division the certified opinion of an independent

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

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

23  determined and estimated future compensation payments based on

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

25  qualifying security deposit equal to 1.5 times the value so

26  certified. The employer shall thereafter annually provide such

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

28  requirements of subparagraph 1.  The qualifying security

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

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

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


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                                          HB 1655, First Engrossed



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

  2  opinion, the association shall provide such information to the

  3  department along with a recommendation, and the Department of

  4  Insurance division shall then revoke an such employer's

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

  6  this provision shall be deemed to constitute an immediate

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

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

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

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

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

12  the division and to the Florida Self-Insurers Guaranty

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

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

15  the American Academy Society of Actuaries of the actuarial

16  present value of the determined and estimated future

17  compensation payments of the employer for claims incurred

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

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

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

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

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

23  association division a qualifying security deposit in an

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

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

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

27  provide such opinion or who fails to timely maintain the

28  required security deposit with the association division. The

29  association shall recover a judgment in the amount of the

30  actuarial present value of the determined and estimated future

31  compensation payments of the employer for claims incurred


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                                          HB 1655, First Engrossed



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

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

  3  the successor of an employer means any person, business

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

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

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

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

  8  option of the employer, of:

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

10  as prescribed by the association division, issued by a

11  corporation surety authorized to transact surety business by

12  the Department of Insurance, and whose policyholders' and

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

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

15  respectively.

16         b.  Certificates of deposit with financial

17  institutions, the deposits of which are insured through the

18  Federal Deposit Insurance Corporation or the Federal Savings

19  and Loan Insurance Corporation.

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

21  association division issued by financial institutions located

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

23  the Federal Deposit Insurance Corporation described in

24  sub-subparagraph b.

25         d.  Direct obligations of the United States Treasury

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

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

28  full faith and credit of this state.

29         5.  The qualifying security deposit shall be held by

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

31  division, exclusively for the benefit of workers' compensation


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                                          HB 1655, First Engrossed



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

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

  3  as necessary to guarantee the payment of compensation under

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

  5  of credit other qualifying security may be allowed to expire

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

  7  association division and the deposit by the self-insuring

  8  employer of some other qualifying security deposit of equal

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

10  provide such written notice or failure to timely provide

11  qualifying replacement security after such notice shall

12  constitute grounds for the association division to call or sue

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

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

15  purposes intended by this section, including the exercise its

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

17  employers must comply with this section on or before December

18  31, 2001, or upon maturity of existing security deposits,

19  whichever occurs later the sale of any security at then

20  prevailing market rates, or the withdrawal of any funds

21  represented by any certificate of deposit forming part of the

22  qualifying security deposit. The Department of Insurance

23  division may specify by rule the amount of the qualifying

24  security deposit required prior to authorizing an employer to

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

26  employer to qualify for authorization to self-insure;

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

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

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

30  1983.  The Department of Insurance division shall adopt rules

31  to implement this paragraph;


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                                          HB 1655, First Engrossed



  1         (d)  By entering into an interlocal agreement with

  2  other local governmental entities to create a local government

  3  pool pursuant to s. 624.4622;

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

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

  6  Workers' Compensation Law and retain the benefit of the

  7  exclusiveness of liability provided in s. 440.11 by obtaining

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

  9  and casualty insurance carrier or an authorized life and

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

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

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

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

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

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

16  at least occupational injuries and illnesses, medical benefits

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

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

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

20  coverage plan referenced in this paragraph. Disputes and

21  remedies arising under policies issued under this section are

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

23  the applicable provisions of the Florida Insurance Code and

24  rules adopted under the insurance code and other applicable

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

26  provide for health care by a health maintenance organization

27  or a preferred provider organization. The premium for such

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

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

30  deductibles and coinsurance provisions that require the

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


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                                          HB 1655, First Engrossed



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

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

  3  compensation as to medical benefits, the employer must also

  4  obtain an insurance policy or policies that provide indemnity

  5  benefits as follows:

  6         1.  If indemnity benefits are provided only for

  7  occupational-related disability, such benefits must be

  8  comparable to those required by this chapter.

  9         2.  If indemnity benefits are provided for both

10  occupational-related and nonoccupational-related disability,

11  such benefits must be comparable to those required by this

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

13  average weekly wages.

14         3.  The employer shall provide for each of its

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

16         4.  Policies providing coverage under this subsection

17  must use prescribed and acceptable underwriting standards,

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

19  If any insurance policy that provides coverage under this

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

21  the cancellation, termination, or nonrenewal is ineffective

22  until the self-insured employer or insurance carrier or

23  carriers notify the division and the Department of Insurance

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

25  Department of Insurance division has actually received the

26  notification. The Department of Insurance division must be

27  notified of replacement coverage under a workers' compensation

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

29  employer prior to the effective date of the cancellation,

30  termination, or nonrenewal; or

31


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                                          HB 1655, First Engrossed



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

  2  self-insurer under an approved individual

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

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

  5  rules to implement this subsection.

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

  7  adopt rules by which businesses may become qualified to

  8  provide underwriting claims-adjusting, loss control, and

  9  safety engineering services to self-insurers.

10         (b)  The Department of Insurance division shall adopt

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

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

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

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

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

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

17  company or association or exchange authorized to do insurance

18  business in the state shall for good cause, upon

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

20  Department of Insurance.  No suspension or revocation shall

21  affect the liability of any carrier already incurred.

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

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

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

25  by rule of the department division. No suspension or

26  revocation shall affect the liability of any self-insurer

27  already incurred.

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

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

30  $1,000 per audit if the self-insurance fund fails to act on

31  said audits by correcting errors in employee classification or


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                                          HB 1655, First Engrossed



  1  accepted applications for coverage where it knew employee

  2  classifications were incorrect.  Such fines shall be levied by

  3  the Department of Insurance division and deposited into the

  4  Workers' Compensation Administration Trust Fund.

  5         Section 37.  Subsections (3) and (7) of section

  6  440.381, Florida Statutes, are amended to read:

  7         440.381  Application for coverage; reporting payroll;

  8  payroll audit procedures; penalties.--

  9         (3)  The department of Insurance and the Department of

10  Labor and Employment Security shall establish by rule minimum

11  requirements for audits of payroll and classifications in

12  order to ensure that the appropriate premium is charged for

13  workers' compensation coverage. The rules shall ensure that

14  audits performed by both carriers and employers are adequate

15  to provide that all sources of payments to employees,

16  subcontractors, and independent contractors have been reviewed

17  and that the accuracy of classification of employees has been

18  verified. The rules shall provide that employers in all

19  classes other than the construction class be audited not less

20  frequently than biennially and may provide for more frequent

21  audits of employers in specified classifications based on

22  factors such as amount of premium, type of business, loss

23  ratios, or other relevant factors. In no event shall employers

24  in the construction class, generating more than the amount of

25  premium required to be experience rated, be audited less than

26  annually. The annual audits required for construction classes

27  shall consist of physical onsite audits. Payroll verification

28  audit rules must include, but need not be limited to, the use

29  of state and federal reports of employee income, payroll and

30  other accounting records, certificates of insurance maintained

31  by subcontractors, and duties of employees.


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                                          HB 1655, First Engrossed



  1         (7)  If an employee suffering a compensable injury was

  2  not reported as earning wages on the last quarterly earnings

  3  report filed with the Division of Unemployment Compensation

  4  before the accident, the employer shall indemnify the carrier

  5  for all workers' compensation benefits paid to or on behalf of

  6  the employee unless the employer establishes that the employee

  7  was hired after the filing of the quarterly report, in which

  8  case the employer and employee shall attest to the fact that

  9  the employee was employed by the employer at the time of the

10  injury. It shall be the responsibility of the Division of

11  Workers' Compensation to collect all necessary data so as to

12  enable it to notify the carrier of the name of an injured

13  worker who was not reported as earning wages on the last

14  quarterly earnings report. The division is hereby authorized

15  to release such records to the carrier which will enable the

16  carrier to seek reimbursement as provided under this

17  subsection. Failure of the employer to indemnify the insurer

18  within 21 days after demand by the insurer shall constitute

19  grounds for the insurer to immediately cancel coverage.  Any

20  action for indemnification brought by the carrier shall be

21  cognizable in the circuit court having jurisdiction where the

22  employer or carrier resides or transacts business.  The

23  insurer shall be entitled to a reasonable attorney's fee if it

24  recovers any portion of the benefits paid in such action.

25         Section 38.  Section 440.385, Florida Statutes, is

26  amended to read:

27         440.385  Florida Self-Insurers Guaranty Association,

28  Incorporated.--

29         (1)  CREATION OF ASSOCIATION.--

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

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


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                                          HB 1655, First Engrossed



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

  2  Upon incorporation of the association, all individual

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

  4  440.38(1)(b), other than individual self-insurers which are

  5  public utilities or governmental entities, shall be members of

  6  the association as a condition of their authority to

  7  individually self-insure in this state.  The association

  8  corporation shall perform its functions under a plan of

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

10  shall exercise its powers and duties through a board of

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

12  corporation shall have those powers granted or permitted

13  associations corporations not for profit, as provided in

14  chapter 617. The activities of the association shall be

15  subject to review by the Department of Insurance. The

16  Department of Insurance shall have oversight responsibility as

17  set forth in this act. The association is specifically

18  authorized to enter into agreements with the State of Florida

19  to perform specified services.

20         (b)  A member may voluntarily withdraw from the

21  association when the member voluntarily terminates the

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

23  date of such termination.  However, the withdrawing member

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

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

26  charged pursuant thereto.  The withdrawing member who is a

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

28  provide to the association division upon withdrawal, and at

29  12-month intervals thereafter, satisfactory proof, including,

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

31  potential claims certified by a member of the American Academy


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                                          HB 1655, First Engrossed



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

  2  440.38(1)(b)1. in relation to claims incurred while the

  3  withdrawing member exercised the privilege of self-insurance.

  4  Such reporting shall continue until the withdrawing member

  5  demonstrates to satisfies the association division that there

  6  is no remaining value to claims incurred while the withdrawing

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

  8  refuses to timely provide an actuarial report to the

  9  association, the association may obtain an order from a

10  circuit court requiring the member to produce such a report

11  and ordering such other relief as the court determines

12  appropriate.  The association shall be entitled to recover all

13  reasonable costs and attorney's fees expended in such

14  proceedings. If during this reporting period the withdrawing

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

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

17  1991, shall thereupon, and at 6-month intervals thereafter,

18  provide to the division and the association the certified

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

20  American Academy Society of Actuaries of the actuarial present

21  value of the determined and estimated future compensation

22  payments of the member for claims incurred while the member

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

24  each such opinion, the withdrawing member shall deposit with

25  the association division security in an amount equal to the

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

27  acceptable for qualifying security deposits under s.

28  440.38(1)(b).  The withdrawing member shall continue to

29  provide such opinions and to provide such security until such

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

31  The association has a cause of action against a withdrawing


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                                          HB 1655, First Engrossed



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

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

  3  maintain the required deposit with the division.  The

  4  association shall be entitled to recover a judgment in the

  5  amount of the actuarial present value of the determined and

  6  estimated future compensation payments of the withdrawing

  7  member for claims incurred during the time that the

  8  withdrawing member exercised the privilege of self-insurance,

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

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

11  action to compel production of any actuarial report required

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

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

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

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

16  majority of the shares of the withdrawing member.

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

18  association shall consist of nine persons and shall be

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

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

21  As of December 31, 2003, six members of the board shall be

22  individual self-insurers in this state. The board members who

23  are individual self-insurers shall be officers or full-time

24  employees of the self-insured company they represent. If the

25  individual self-insurer board member's company voluntarily

26  withdraws such member's privilege to self-insure, the board

27  member may complete the remaining term of his or her

28  appointment. With respect to initial appointments, the

29  Secretary of Labor and Employment Security shall, by July 15,

30  1982, approve and appoint to the board persons who are

31  experienced with self-insurance in this state and who are


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                                          HB 1655, First Engrossed



  1  recommended by the individual self-insurers in this state

  2  required to become members of the association pursuant to the

  3  provisions of paragraph (1)(a). In the event the secretary

  4  finds that any person so recommended does not have the

  5  necessary qualifications for service on the board and a

  6  majority of the board has been appointed, the secretary shall

  7  request the directors thus far approved and appointed to

  8  recommend another person for appointment to the board. Each

  9  director shall serve for a 4-year term and may be reappointed.

10  Appointments after March 21, 2001, other than initial

11  appointments shall be made by the Insurance Commissioner

12  Secretary of Labor and Employment Security upon recommendation

13  of members of the association.  Any vacancy on the board shall

14  be filled for the remaining period of the term in the same

15  manner as appointments other than initial appointments are

16  made. Each director shall be reimbursed for expenses incurred

17  in carrying out the duties of the board on behalf of the

18  association.

19         (3)  POWERS AND DUTIES.--

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

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

22  for payment of compensation under this chapter to insolvent

23  members' employees resulting from incidents and injuries

24  existing prior to the member becoming an insolvent member and

25  from incidents and injuries occurring within 30 days after the

26  member has become an insolvent member, provided the incidents

27  giving rise to claims for compensation under this chapter

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

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

30  plan of operation, and provided the employee makes timely

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


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                                          HB 1655, First Engrossed



  1  court of competent jurisdiction over the delinquency or

  2  bankruptcy proceedings of the insolvent member. Such

  3  obligation includes only that amount due the injured worker or

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

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

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

  7  association shall be deemed the insolvent employer for

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

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

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

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

12  the association be liable for any penalties or interest.

13         (b)  The association may:

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

15  handle claims and perform other duties of the association.

16         2.  Borrow funds necessary to effect the purposes of

17  this section in accord with the plan of operation.

18         3.  Sue or be sued.

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

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

21         5.  Purchase such reinsurance as is determined

22  necessary pursuant to the plan of operation.

23         6.  Review all applicants for membership in the

24  association to determine whether the applicant is qualified

25  for membership under the law.  The association shall recommend

26  to the Department of Insurance that the application be

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

28  440.38(1)(b).  The department shall approve or disapprove the

29  application. Prior to a final determination by the Division of

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

31  applicant for membership in the association, the association


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                                          HB 1655, First Engrossed



  1  may issue opinions to the division concerning any applicant,

  2  which opinions shall be considered by the division prior to

  3  any final determination.

  4         7.  Collect and review financial information from

  5  employers and make recommendations to the Department of

  6  Insurance regarding the appropriate security deposit and

  7  reinsurance amounts necessary for an employer to demonstrate

  8  that it has the financial strength necessary to assure the

  9  timely payment of all current and future claims. The

10  association may audit and examine an employer to verify the

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

12  association determines that a current or former self-insured

13  employer does not have the financial strength necessary to

14  assure the timely payment of all current and estimated future

15  claims, the association may recommend to the department that

16  the department:

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

18         b.  Require the employer to provide a certified opinion

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

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

21  employer's estimated current and future compensation payments,

22  using a 4-percent discount rate.

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

24  deposit in an amount determined by the association to be

25  necessary to assure payment of compensation claims.  The

26  department shall act on such recommendations.  The association

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

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

29  security deposit required by the department.  The association

30  shall recover a judgment in the amount of the requested

31  additional security deposit together with reasonable


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                                          HB 1655, First Engrossed



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

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

  3  group of persons or business entities that holds or acquires

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

  5  majority of the shares of the employer.

  6         8.7.  Charge fees to any member of the association to

  7  cover the actual costs of examining the financial and safety

  8  conditions of that member.

  9         9.8.  Charge an applicant for membership in the

10  association a fee sufficient to cover the actual costs of

11  examining the financial condition of the applicant.

12         10.  Implement any and all procedures necessary to

13  ensure compliance with regulatory actions taken by the

14  department.

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

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

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

18  the Department of Insurance Labor and Employment Security,

19  upon certification of the board of directors, shall levy

20  assessments based on the annual written normal premium each

21  employer would have paid had the employer not been

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

23  percentage of the figure applicable to all individual

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

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

26  annual written normal premium during the calendar year

27  preceding the date of the assessment. Assessments shall be

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

29  manner specified by the approved plan.  Each employer so

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

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


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                                          HB 1655, First Engrossed



  1  levy assessments against any newly admitted member of the

  2  association so that the basis of contribution of any newly

  3  admitted member is the same as previously admitted members,

  4  provision for which shall be contained in the plan of

  5  operation.

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

  7  assessments, together with funds previously raised, are not

  8  sufficient to make all the payments or reimbursements then

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

10  portion shall be paid as soon thereafter as sufficient

11  additional funds become available.

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

13  Compensation Administration Trust Fund to contract with the

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

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

16  association or any of its accounts for payment of covered

17  claims or related expenses except those state funds accruing

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

19  an insolvent employer. The department shall not levy any

20  assessment on the Florida Self-Insurance Guaranty Association.

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

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

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

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

25  association.

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

27  meeting the obligations of insolvent members incurred while

28  members of the association and after the exhaustion of any

29  security deposit bond, as required under this chapter.

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

31  policy is payable to the Florida Self-Insurers Guaranty


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  1  Association, the association shall commence to provide

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

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

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

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

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

  7  the financial soundness of the Insolvency Fund annually.

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

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

10  for purposes of assuring the ongoing financial soundness of

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

12  this section.

13         (d)  The department actuary may make certain

14  recommendations to improve the orderly payment of claims.

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

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

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

18  and approved by the Department of Labor and Employment

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

20  the plan shall not become effective until approved by the

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

22  directors shall submit to the Department of Labor and

23  Employment Security a proposed plan of operation for the

24  administration of the association and the Insolvency Fund.

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

26  provide the association and the board of directors with the

27  authority and responsibility to establish the necessary

28  programs and to take the necessary actions to protect against

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

30  the plan shall provide that the members of the association

31  shall be responsible for maintaining an adequate Insolvency


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                                          HB 1655, First Engrossed



  1  Fund to meet the obligations of insolvent members provided for

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

  3  contract and employ those persons with the necessary expertise

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

  5  board of directors shall submit to the Department of Insurance

  6  a proposed plan of operation for the administration of the

  7  association. The Department of Insurance shall approve the

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

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

10  consistent with this act, and determined appropriate to carry

11  out the duties and responsibilities of the association.

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

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

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

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

16  within 30 days thereafter, the department shall promulgate

17  such rules as are necessary to effectuate the provisions of

18  this subsection.  Such rules shall continue in force until

19  modified by the department or superseded by a plan submitted

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

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

22  of operation.

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

24         1.  Establish the procedures whereby all the powers and

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

26  performed.

27         2.  Establish procedures for handling assets of the

28  association.

29         3.  Establish the amount and method of reimbursing

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

31


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  1         4.  Establish procedures by which claims may be filed

  2  with the association and establish acceptable forms of proof

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

  4  liquidator of the insolvent employer shall be deemed notice to

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

  6  be submitted periodically to the association or similar

  7  organization in another state by the receiver or liquidator.

  8         5.  Establish regular places and times for meetings of

  9  the board of directors.

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

11  financial transactions of the association and its agents and

12  the board of directors.

13         7.  Provide that any member employer aggrieved by any

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

15  department within 30 days after the action or decision.

16         8.  Establish the procedures whereby recommendations of

17  candidates for the board of directors shall be submitted to

18  the department.

19         9.  Contain additional provisions necessary or proper

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

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

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

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

24  a corporation, association, or other organization which

25  performs or will perform functions similar to those of this

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

27  corporation, association, or organization shall be reimbursed

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

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

30  A delegation of powers or duties under this subsection shall

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


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                                          HB 1655, First Engrossed



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

  2  corporation, association, or organization which extends

  3  protection which is not substantially less favorable and

  4  effective than the protection provided by this section.

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

  6  AND EMPLOYMENT SECURITY.--

  7         (a)  The department shall:

  8         1.  review recommendations of the association

  9  concerning whether current or former self-insured employers or

10  members of the association have the financial strength

11  necessary to ensure the timely payment of all current and

12  estimated future claims.  If the association determines an

13  employer does not have the financial strength necessary to

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

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

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

17  employer to comply with the recommendation. Notify the

18  association of the existence of an insolvent employer not

19  later than 3 days after it receives notice of the

20  determination of insolvency.

21         (b)  The department may:

22         1.  Contract with the association for services, which

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

24         a.  Process applications for self-insurance.

25         b.  Collect and review financial statements and loss

26  reserve information from individual self-insurers.

27         c.  Collect and maintain files for original security

28  deposit documents and reinsurance policies from individual

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

30  security deposits.

31


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                                          HB 1655, First Engrossed



  1         d.  Process compliance documentation for individual

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

  3         e.  Collect all data necessary to calculate annual

  4  premium for all individual self-insurers, including individual

  5  self-insurers that are public utilities or governmental

  6  entities, and provide such calculated annual premium to the

  7  Department of Insurance for assessment purposes.

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

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

10  including individual self-insurers that are public utilities

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

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

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

14  compensation made by such individual self-insurer during each

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

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

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

18  open to inspection and audit by the association, the

19  department, or their authorized representative, during regular

20  business hours.

21         g.  Provide legal representation to implement the

22  administration and audit of individual self-insurers and make

23  recommendations regarding prosecution of any administrative or

24  legal proceedings necessitated by the department's regulation

25  of the individual self-insurers.

26         2.  Contract with an attorney or attorneys recommended

27  by the association for representation of the department in any

28  administrative or legal proceedings necessitated by the

29  recommended regulation of the individual self-insurers. Upon

30  request of the board of directors, provide the association

31


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                                          HB 1655, First Engrossed



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

  2  employer.

  3         (b)  The department may:

  4         3.1.  Direct the association to require from each

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

  6  such regulations as the department prescribes, reports in

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

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

  9  compensation made by such individual self-insurer during each

10  prior period and determine the amounts paid by each individual

11  self-insurer and the amounts paid by all individual

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

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

14  shall be open to annual inspection and audit by the

15  association, the department, or their authorized

16  representative, during regular business hours, and if any

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

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

19  the amounts paid to the Department of Insurance by an

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

21  Compensation Administration Trust Fund, the Department of

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

23  against the individual self-insurer.

24         4.  Require that the association notify the member

25  employers and any other interested parties of the

26  determination of insolvency and of their rights under this

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

28  address thereof when available; but, if sufficient information

29  for notification by mail is not available, notice by

30  publication in a newspaper of general circulation shall be

31  sufficient.


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                                          HB 1655, First Engrossed



  1         5.2.  Suspend or revoke the authority of any member

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

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

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

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

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

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

  8  month.

  9         3.  Revoke the designation of any servicing facility if

10  the department finds that claims are being handled

11  unsatisfactorily.

12         (7)  EFFECT OF PAID CLAIMS.--

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

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

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

16  Every claimant seeking the protection of this section shall

17  cooperate with the association to the same extent as such

18  person would have been required to cooperate with the

19  insolvent member.  The association shall have no cause of

20  action against the employee of the insolvent member for any

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

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

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

24  insolvent member operating on a plan with assessment

25  liability, payments of claims by the association shall not

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

27  receiver, liquidator, or statutory successor for unpaid

28  assessments.

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

30  of an insolvent member shall be bound by settlements of

31  covered claims by the association or a similar organization in


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                                          HB 1655, First Engrossed



  1  another state.  The court having jurisdiction shall grant such

  2  claims priority against the assets of the insolvent member

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

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

  5  or similar organization in handling claims shall be accorded

  6  the same priority as the expenses of the liquidator.

  7         (c)  The association shall file periodically with the

  8  receiver or liquidator of the insolvent member statements of

  9  the covered claims paid by the association and estimates of

10  anticipated claims on the association, which shall preserve

11  the rights of the association against the assets of the

12  insolvent member.

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

14  in the detection and prevention of employer insolvencies:

15         (a)  upon determination by majority vote that any

16  member employer may be insolvent or in a financial condition

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

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

19  of Insurance Labor and Employment Security of any information

20  indicating such condition.

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

22  request that the department determine the condition of any

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

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

25  30 days of the receipt of such request or, for good cause

26  shown, within a reasonable time thereafter, the department

27  shall make such determination and shall forthwith advise the

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

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

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

31  determination to the public.


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                                          HB 1655, First Engrossed



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

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

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

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

  5  association.

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

  7  make reports and recommendations to the department upon any

  8  matter which is germane to the solvency, liquidation,

  9  rehabilitation, or conservation of any member employer. Such

10  reports and recommendations shall not be considered public

11  documents.

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

13  make recommendations to the department for the detection and

14  prevention of employer insolvencies.

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

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

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

18  cause of such insolvency, based on the information available

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

20  department.

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

22  shall be subject to examination and regulation by the

23  Department of Insurance Labor and Employment Security.  No

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

25  submit an audited a financial statement report for the

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

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

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

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

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

31  Insurance Labor and Employment Security or its representatives


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                                          HB 1655, First Engrossed



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

  2  powers and duties under this section.

  3         (11)  STAY OF PROCEEDINGS; REOPENING OF DEFAULT

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

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

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

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

  8  additional period from the date the employer becomes an

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

10  competent jurisdiction to permit proper defense by the

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

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

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

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

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

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

17  administrator that made such judgment, order, decision,

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

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

20  the stay of proceedings may be shortened or waived.

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

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

23  defined herein, with respect to which settlement is not

24  effected and pursuant to which suit is not instituted against

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

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

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

28  thenceforth be barred as a claim against the association.

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

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

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


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                                          HB 1655, First Engrossed



  1  Department of Insurance for deposit with the Treasurer to the

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

  3  220 relating to penalties and interest on delinquent corporate

  4  income tax payments apply to payments due under this

  5  subsection.

  6         Section 39.  Subsections (2), (3), and (4) of section

  7  440.386, Florida Statutes, are amended to read:

  8         440.386  Individual self-insurers' insolvency;

  9  conservation; liquidation.--

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

11  Department of Insurance or the Florida Self-Insurers Guaranty

12  Association, Incorporated, may commence a delinquency any such

13  proceeding by application to the court for an order directing

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

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

16  Florida Self-Insurers Guaranty Association, Incorporated, may

17  petition the department to commence such proceedings, and upon

18  receipt of such petition, the department shall commence such

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

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

21  application or grant the application, together with such other

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

23  claimants, creditors, stockholders, members, subscribers, or

24  public may require.  The Department of Insurance and the

25  association shall give Florida Self-Insurers Guaranty

26  Association, Incorporated, shall be given reasonable written

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

28  pertain to an adjudication of insolvency of a member

29  individual self-insurer.

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

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


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                                          HB 1655, First Engrossed



  1  order appointing a receiver and directing the receiver to

  2  liquidate the business of a domestic individual self-insurer

  3  if such individual self-insurer is insolvent.  Florida

  4  Self-Insurers Guaranty Association, Incorporated, may petition

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

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

  7  court for such order.

  8         (4)  GROUNDS FOR CONSERVATION; FOREIGN INDIVIDUAL

  9  SELF-INSURERS.--

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

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

12  ancillary receiver, and directing the receiver to conserve the

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

14  if such individual self-insurer is insolvent.  Florida

15  Self-Insurers Guaranty Association, Incorporated, may petition

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

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

18  such order.

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

20  self-insurer shall require the receiver forthwith to take

21  possession of the property of the receiver within the state

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

23  court.

24         Section 40.  Section 440.40, Florida Statutes, is

25  amended to read:

26         440.40  Compensation notice.--Every employer who has

27  secured compensation under the provisions of this chapter

28  shall keep posted in a conspicuous place or places in and

29  about her or his place or places of business typewritten or

30  printed notices, in accordance with a form prescribed by the

31  department division, stating that such employer has secured


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                                          HB 1655, First Engrossed



  1  the payment of compensation in accordance with the provisions

  2  of this chapter. Such notices shall contain the name and

  3  address of the carrier, if any, with whom the employer has

  4  secured payment of compensation and the date of the expiration

  5  of the policy. The department division may by rule prescribe

  6  the form of the notices and require carriers to provide the

  7  notices to policyholders.

  8         Section 41.  Section 440.41, Florida Statutes, is

  9  amended to read:

10         440.41  Substitution of carrier for employer.--In any

11  case where the employer is not a self-insurer, in order that

12  the liability for compensation imposed by this chapter may be

13  most effectively discharged by the employer, and in order that

14  the administration of this chapter in respect of such

15  liability may be facilitated, the department division shall by

16  regulation provide for the discharge, by the carrier for such

17  employer, of such obligations and duties of the employer in

18  respect of such liability, imposed by this chapter upon the

19  employer, as it considers proper in order to effectuate the

20  provisions of this chapter.  For such purposes:

21         (1)  Notice to or knowledge of an employer of the

22  occurrence of the injury shall be notice to or knowledge of

23  the carrier.

24         (2)  Jurisdiction of the employer by the judges of

25  compensation claims, the department division, or any court

26  under this chapter shall be jurisdiction of the carrier.

27         (3)  Any requirement by the judges of compensation

28  claims, the department division, or any court under any

29  compensation order, finding, or decision shall be binding upon

30  the carrier in the same manner and to the same extent as upon

31  the employer.


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                                          HB 1655, First Engrossed



  1         Section 42.  Subsection (3) of section 440.42, Florida

  2  Statutes, is amended to read:

  3         440.42  Insurance policies; liability.--

  4         (3)  No contract or policy of insurance issued by a

  5  carrier under this chapter shall expire or be canceled until

  6  at least 30 days have elapsed after a notice of cancellation

  7  has been sent to the department division and to the employer

  8  in accordance with the provisions of s. 440.185(7).  However,

  9  when duplicate or dual coverage exists by reason of two

10  different carriers having issued policies of insurance to the

11  same employer securing the same liability, it shall be

12  presumed that only that policy with the later effective date

13  shall be in force and that the earlier policy terminated upon

14  the effective date of the latter.  In the event that both

15  policies carry the same effective date, one of the policies

16  may be canceled instanter upon filing a notice of cancellation

17  with the department division and serving a copy thereof upon

18  the employer in such manner as the department division

19  prescribes by rule. The department division may by rule

20  prescribe the content of the notice of retroactive

21  cancellation and specify the time, place, and manner in which

22  the notice of cancellation is to be served.

23         Section 43.  Section 440.44, Florida Statutes, is

24  amended to read:

25         440.44  Workers' compensation; staff organization.--

26         (1)  INTERPRETATION OF LAW.--As a guide to the

27  interpretation of this chapter, the Legislature takes due

28  notice of federal social and labor acts and hereby creates an

29  agency to administer such acts passed for the benefit of

30  employees and employers in Florida industry, and desires to

31


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                                          HB 1655, First Engrossed



  1  meet the requirements of such federal acts wherever not

  2  inconsistent with the Constitution and laws of Florida.

  3         (2)  INTENT.--It is the intent of the Legislature that

  4  the department, the agency, and the Department of Education

  5  division assume an active and forceful role in their its

  6  administration of this act, so as to ensure that the system

  7  operates efficiently and with maximum benefit to both

  8  employers and employees.

  9         (3)  EXPENDITURES.--The department, the agency, the

10  Department of Education, division and the Chief Judge shall

11  make such expenditures, including expenditures for personal

12  services and rent at the seat of government and elsewhere, for

13  law books; for telephone services and WATS lines; for books of

14  reference, periodicals, equipment, and supplies; and for

15  printing and binding as may be necessary in the administration

16  of this chapter.  All expenditures in the administration of

17  this chapter shall be allowed and paid as provided in s.

18  440.50 upon the presentation of itemized vouchers therefor

19  approved by the department, the agency, the Department of

20  Education, division or the Chief Judge.

21         (4)  MERIT SYSTEM PRINCIPLE OF PERSONNEL

22  ADMINISTRATION.--Subject to the other provisions of this

23  chapter, the department, the agency, and the Department of

24  Education are division is authorized to appoint, and prescribe

25  the duties and powers of, bureau chiefs, attorneys,

26  accountants, medical advisers, technical assistants,

27  inspectors, claims examiners, and such other employees as may

28  be necessary in the performance of its duties under this

29  chapter.

30         (5)  OFFICE.--The department, the agency, the

31  Department of Education, division and the Chief Judge shall


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                                          HB 1655, First Engrossed



  1  maintain and keep open during reasonable business hours an

  2  office, which shall be provided in the Capitol or some other

  3  suitable building in the City of Tallahassee, for the

  4  transaction of business under this chapter, at which office

  5  the official records and papers shall be kept.  The office

  6  shall be furnished and equipped.  The department, the agency

  7  division, any judge of compensation claims, or the Chief Judge

  8  may hold sessions and conduct hearings at any place within the

  9  state.

10         (6)  SEAL.--The division and, the Office of the Judges

11  of Compensation Claims judges of compensation claims, and the

12  Chief Judge shall have seals a seal upon which shall be

13  inscribed the words "State of Florida Department of Insurance

14  ...Seal" and the "Division of Administrative Hearings...

15  Seal." respectively. of Labor and Employment Security--Seal."

16         (7)  DESTRUCTION OF OBSOLETE RECORDS.--The department

17  division is expressly authorized to provide by regulation for

18  and to destroy obsolete records of the department division and

19  commission.

20         (8)  PROCEDURE.--In the exercise of their its duties

21  and functions requiring administrative hearings, the

22  department and the agency division shall proceed in accordance

23  with the Administrative Procedure Act.  The authority of the

24  department and the agency division to issue orders resulting

25  from administrative hearings as provided for in this chapter

26  shall not infringe upon the jurisdiction of the judges of

27  compensation claims.

28         Section 44.  Section 440.4416, Florida Statutes, is

29  hereby repealed.

30         Section 45.  Subsection (1) of section 440.45, Florida

31  Statutes, is amended to read:


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                                          HB 1655, First Engrossed



  1         440.45  Office of the Judges of Compensation Claims.--

  2         (1)  There is hereby created the Office of the Judges

  3  of Compensation Claims within the Division of Administrative

  4  Hearing of the Department of Management Services Department of

  5  Labor and Employment Security. The Office of the Judges of

  6  Compensation Claims shall be headed by a Chief Judge.  The

  7  Chief Judge shall be appointed by the Governor for a term of 4

  8  years from a list of three names submitted by the statewide

  9  nominating commission created under subsection (2). The Chief

10  Judge must possess the same qualifications for appointment as

11  a judge of compensation claims, and the procedure for

12  reappointment of the Chief Judge will be the same as for

13  reappointment of a judge of compensation claims. The office

14  shall be a separate budget entity and the Chief Judge shall be

15  its agency head for all purposes.  The Division of

16  Administrative Hearings Department of Labor and Employment

17  Security shall provide administrative support and service to

18  the office to the extent requested by the Chief Judge but

19  shall not direct, supervise, or control the Office of the

20  Judges of Compensation Claims in any manner, including, but

21  not limited to, personnel, purchasing, budgetary matters, or

22  property transactions. The operating budget of the Office of

23  the Judges of Compensation Claims shall be paid out of the

24  Workers' Compensation Administration Trust Fund established in

25  s. 440.50.

26         Section 46.  Subsections (1), (2), (7), (8), (9), (10),

27  and (11) of section 440.49, Florida Statutes, are amended to

28  read:

29         440.49  Limitation of liability for subsequent injury

30  through Special Disability Trust Fund.--

31


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  1         (1)  LEGISLATIVE INTENT.--Whereas it is often difficult

  2  for workers with disabilities to achieve employment or to

  3  become reemployed following an injury, and it is the desire of

  4  the Legislature to facilitate the return of these workers to

  5  the workplace, it is the purpose of this section to encourage

  6  the employment, reemployment, and accommodation of the

  7  physically disabled by reducing an employer's insurance

  8  premium for reemploying an injured worker, to decrease

  9  litigation between carriers on apportionment issues, and to

10  protect employers from excess liability for compensation and

11  medical expense when an injury to a physically disabled worker

12  merges with, aggravates, or accelerates her or his preexisting

13  permanent physical impairment to cause either a greater

14  disability or permanent impairment, or an increase in

15  expenditures for temporary compensation or medical benefits

16  than would have resulted from the injury alone. The department

17  division or the administrator shall inform all employers of

18  the existence and function of the fund and shall interpret

19  eligibility requirements liberally. However, this subsection

20  shall not be construed to create or provide any benefits for

21  injured employees or their dependents not otherwise provided

22  by this chapter. The entitlement of an injured employee or her

23  or his dependents to compensation under this chapter shall be

24  determined without regard to this subsection, the provisions

25  of which shall be considered only in determining whether an

26  employer or carrier who has paid compensation under this

27  chapter is entitled to reimbursement from the Special

28  Disability Trust Fund.

29         (2)  DEFINITIONS.--As used in this section, the term:

30         (a)  "Permanent physical impairment" means and is

31  limited to the conditions listed in paragraph (6)(a).


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  1         (b)  "Preferred worker" means a worker who, because of

  2  a permanent impairment resulting from a compensable injury or

  3  occupational disease, is unable to return to the worker's

  4  regular employment.

  5         (c)  "Merger" describes or means that:

  6         1.  If the permanent physical impairment had not

  7  existed, the subsequent accident or occupational disease would

  8  not have occurred;

  9         2.  The permanent disability or permanent impairment

10  resulting from the subsequent accident or occupational disease

11  is materially and substantially greater than that which would

12  have resulted had the permanent physical impairment not

13  existed, and the employer has been required to pay, and has

14  paid, permanent total disability or permanent impairment

15  benefits for that materially and substantially greater

16  disability;

17         3.  The preexisting permanent physical impairment is

18  aggravated or accelerated as a result of the subsequent injury

19  or occupational disease, or the preexisting impairment has

20  contributed, medically and circumstantially, to the need for

21  temporary compensation, medical, or attendant care and the

22  employer has been required to pay, and has paid, temporary

23  compensation, medical, or attendant care benefits for the

24  aggravated preexisting permanent impairment; or

25         4.  Death would not have been accelerated if the

26  permanent physical impairment had not existed.

27         (d)  "Excess permanent compensation" means that

28  compensation for permanent impairment, or permanent total

29  disability or death benefits, for which the employer or

30  carrier is otherwise entitled to reimbursement from the

31  Special Disability Trust Fund.


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  1         (e)  "Administrator" means the entity selected by the

  2  commission to review, allow, deny, compromise, controvert, and

  3  litigate claims of the Special Disability Trust Fund.

  4         (f)  "Corporation" means the Special Disability Trust

  5  Fund Financing Corporation, as created under subsection (14).

  6         (g)  "Commission" means the Special Disability Trust

  7  Fund Privatization Commission, as created under subsection

  8  (13).

  9

10  In addition to the definitions contained in this subsection,

11  the department division may by rule prescribe definitions that

12  are necessary for the effective administration of this

13  section.

14         (7)  REIMBURSEMENT OF EMPLOYER.--

15         (a)  The right to reimbursement as provided in this

16  section is barred unless written notice of claim of the right

17  to such reimbursement is filed by the employer or carrier

18  entitled to such reimbursement with the department division or

19  administrator at Tallahassee within 2 years after the date the

20  employee last reached maximum medical improvement, or within 2

21  years after the date of the first payment of compensation for

22  permanent total disability, wage loss, or death, whichever is

23  later. The notice of claim must contain such information as

24  the department division by rule requires or as established by

25  the administrator; and the employer or carrier claiming

26  reimbursement shall furnish such evidence in support of the

27  claim as the department division or administrator reasonably

28  may require.

29         (b)  For notice of claims on the Special Disability

30  Trust Fund filed on or after July 1, 1978, the Special

31  Disability Trust Fund shall, within 120 days after receipt of


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                                          HB 1655, First Engrossed



  1  notice that a carrier has paid, been required to pay, or

  2  accepted liability for excess compensation, serve notice of

  3  the acceptance of the claim for reimbursement.

  4         (c)  A proof of claim must be filed on each notice of

  5  claim on file as of June 30, 1997, within 1 year after July 1,

  6  1997, or the right to reimbursement of the claim shall be

  7  barred. A notice of claim on file on or before June 30, 1997,

  8  may be withdrawn and refiled if, at the time refiled, the

  9  notice of claim remains within the limitation period specified

10  in paragraph (a).  Such refiling shall not toll, extend, or

11  otherwise alter in any way the limitation period applicable to

12  the withdrawn and subsequently refiled notice of claim. Each

13  proof of claim filed shall be accompanied by a proof-of-claim

14  fee as provided in paragraph (9)(d). The Special Disability

15  Trust Fund shall, within 120 days after receipt of the proof

16  of claim, serve notice of the acceptance of the claim for

17  reimbursement. This paragraph shall apply to all claims

18  notwithstanding the provisions of subsection (12).

19         (d)  Each notice of claim filed or refiled on or after

20  July 1, 1997, must be accompanied by a notification fee as

21  provided in paragraph (9)(d).  A proof of claim must be filed

22  within 1 year after the date the notice of claim is filed or

23  refiled, accompanied by a proof-of-claim fee as provided in

24  paragraph (9)(d), or the claim shall be barred.  The

25  notification fee shall be waived if both the notice of claim

26  and proof of claim are submitted together as a single filing.

27  The Special Disability Trust Fund shall, within 180 days after

28  receipt of the proof of claim, serve notice of the acceptance

29  of the claim for reimbursement.  This paragraph shall apply to

30  all claims notwithstanding the provisions of subsection (12).

31


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                                          HB 1655, First Engrossed



  1         (e)  For dates of accident on or after January 1, 1994,

  2  the Special Disability Trust Fund shall, within 120 days of

  3  receipt of notice that a carrier has been required to pay, and

  4  has paid over $10,000 in benefits, serve notice of the

  5  acceptance of the claim for reimbursement. Failure of the

  6  Special Disability Trust Fund to serve notice of acceptance

  7  shall give rise to the right to request a hearing on the claim

  8  for reimbursement. If the Special Disability Trust Fund

  9  through its representative denies or controverts the claim,

10  the right to such reimbursement shall be barred unless an

11  application for a hearing thereon is filed with the department

12  division or administrator at Tallahassee within 60 days after

13  notice to the employer or carrier of such denial or

14  controversion. When such application for a hearing is timely

15  filed, the claim shall be heard and determined in accordance

16  with the procedure prescribed in s. 440.25, to the extent that

17  such procedure is applicable, and in accordance with the

18  workers' compensation rules of procedure. In such proceeding

19  on a claim for reimbursement, the Special Disability Trust

20  Fund shall be made the party respondent, and no findings of

21  fact made with respect to the claim of the injured employee or

22  the dependents for compensation, including any finding made or

23  order entered pursuant to s. 440.20(11), shall be res

24  judicata. The Special Disability Trust Fund may not be joined

25  or made a party to any controversy or dispute between an

26  employee and the dependents and the employer or between two or

27  more employers or carriers without the written consent of the

28  fund.

29         (f)  When it has been determined that an employer or

30  carrier is entitled to reimbursement in any amount, the

31  employer or carrier shall be reimbursed annually from the


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                                          HB 1655, First Engrossed



  1  Special Disability Trust Fund for the compensation and medical

  2  benefits paid by the employer or carrier for which the

  3  employer or carrier is entitled to reimbursement, upon filing

  4  request therefor and submitting evidence of such payment in

  5  accordance with rules prescribed by the department division,

  6  which rules may include parameters for annual audits. The

  7  Special Disability Trust Fund shall pay the approved

  8  reimbursement requests on a first-in, first-out basis

  9  reflecting the order in which the reimbursement requests were

10  received.

11         (g)  The department division may by rule require

12  specific forms and procedures for the administration and

13  processing of claims made through the Special Disability Trust

14  Fund.

15         (8)  PREFERRED WORKER PROGRAM.--The The Department of

16  Education division or administrator shall issue identity cards

17  to preferred workers upon request by qualified employees and

18  the department shall reimburse an employer, from the Special

19  Disability Trust Fund, for the cost of workers' compensation

20  premium related to the preferred workers payroll for up to 3

21  years of continuous employment upon satisfactory evidence of

22  placement and issuance of payroll and classification records

23  and upon the employee's certification of employment. The

24  department and the Department of Education division may by

25  rule prescribe definitions, forms, and procedures for the

26  administration of the preferred worker program. The Department

27  of Education division may by rule prescribe the schedule for

28  submission of forms for participation in the program.

29         (9)  SPECIAL DISABILITY TRUST FUND.--

30         (a)  There is established in the State Treasury a

31  special fund to be known as the "Special Disability Trust


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                                          HB 1655, First Engrossed



  1  Fund," which shall be available only for the purposes stated

  2  in this section; and the assets thereof may not at any time be

  3  appropriated or diverted to any other use or purpose. The

  4  Treasurer shall be the custodian of such fund, and all moneys

  5  and securities in such fund shall be held in trust by such

  6  Treasurer and shall not be the money or property of the state.

  7  The Treasurer is authorized to disburse moneys from such fund

  8  only when approved by the department division or corporation

  9  and upon the order of the Comptroller. The Treasurer shall

10  deposit any moneys paid into such fund into such depository

11  banks as the department division or corporation may designate

12  and is authorized to invest any portion of the fund which, in

13  the opinion of the division, is not needed for current

14  requirements, in the same manner and subject to all the

15  provisions of the law with respect to the deposits of state

16  funds by such Treasurer. All interest earned by such portion

17  of the fund as may be invested by the Treasurer shall be

18  collected by her or him and placed to the credit of such fund.

19         (b)1.  The Special Disability Trust Fund shall be

20  maintained by annual assessments upon the insurance companies

21  writing compensation insurance in the state, the commercial

22  self-insurers under ss. 624.462 and 624.4621, the assessable

23  mutuals under s. 628.601, and the self-insurers under this

24  chapter, which assessments shall become due and be paid

25  quarterly at the same time and in addition to the assessments

26  provided in s. 440.51. The department division shall estimate

27  annually in advance the amount necessary for the

28  administration of this subsection and the maintenance of this

29  fund and shall make such assessment in the manner hereinafter

30  provided.

31


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                                          HB 1655, First Engrossed



  1         2.  The annual assessment shall be calculated to

  2  produce during the ensuing fiscal year an amount which, when

  3  combined with that part of the balance in the fund on June 30

  4  of the current fiscal year which is in excess of $100,000, is

  5  equal to the average of:

  6         a.  The sum of disbursements from the fund during the

  7  immediate past 3 calendar years, and

  8         b.  Two times the disbursements of the most recent

  9  calendar year.

10

11  Such amount shall be prorated among the insurance companies

12  writing compensation insurance in the state and the

13  self-insurers. Provided however, for those carriers that have

14  excluded ceded reinsurance premiums from their assessments on

15  or before January 1, 2000, no assessments on ceded reinsurance

16  premiums shall be paid by those carriers until such time as

17  the Division of Workers' Compensation of the Department of

18  Labor and Employment Security or the department advises each

19  of those carriers of the impact that the inclusion of ceded

20  reinsurance premiums has on their assessment. The department

21  division may not recover any past underpayments of assessments

22  levied against any carrier that on or before January 1, 2000,

23  excluded ceded reinsurance premiums from their assessment

24  prior to the point that the Division of Workers' Compensation

25  of the Department of Labor and Employment Security or the

26  department advises of the appropriate assessment that should

27  have been paid.

28         3.  The net premiums written by the companies for

29  workers' compensation in this state and the net premium

30  written applicable to the self-insurers in this state are the

31  basis for computing the amount to be assessed as a percentage


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                                          HB 1655, First Engrossed



  1  of net premiums. Such payments shall be made by each carrier

  2  and self-insurer to the department division for the Special

  3  Disability Trust Fund in accordance with such regulations as

  4  the department division prescribes.

  5         4.  The Treasurer is authorized to receive and credit

  6  to such Special Disability Trust Fund any sum or sums that may

  7  at any time be contributed to the state by the United States

  8  under any Act of Congress, or otherwise, to which the state

  9  may be or become entitled by reason of any payments made out

10  of such fund.

11         (c)  Notwithstanding the Special Disability Trust Fund

12  assessment rate calculated pursuant to this section, the rate

13  assessed shall not exceed 4.52 percent.

14         (d)  The Special Disability Trust Fund shall be

15  supplemented by a $250 notification fee on each notice of

16  claim filed or refiled after July 1, 1997, and a $500 fee on

17  each proof of claim filed in accordance with subsection (7).

18  Revenues from the fee shall be deposited into the Special

19  Disability Trust Fund and are exempt from the deduction

20  required by s. 215.20. The fees provided in this paragraph

21  shall not be imposed upon any insurer which is in receivership

22  with the Department of Insurance.

23         (e)  The Department of Insurance Labor and Employment

24  Security or administrator shall report annually on the status

25  of the Special Disability Trust Fund.  The report shall update

26  the estimated undiscounted and discounted fund liability, as

27  determined by an independent actuary, change in the total

28  number of notices of claim on file with the fund in addition

29  to the number of newly filed notices of claim, change in the

30  number of proofs of claim processed by the fund, the fee

31  revenues refunded and revenues applied to pay down the


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                                          HB 1655, First Engrossed



  1  liability of the fund, the average time required to reimburse

  2  accepted claims, and the average administrative costs per

  3  claim.  The department or administrator shall submit its

  4  report to the Governor, the President of the Senate, and the

  5  Speaker of the House of Representatives by December 1 of each

  6  year.

  7         (10)  DEPARTMENT DIVISION ADMINISTRATION OF FUND;

  8  CLAIMS; ADVISORY COMMITTEE; EXPENSES.--The department division

  9  or administrator shall administer the Special Disability Trust

10  Fund with authority to allow, deny, compromise, controvert,

11  and litigate claims made against it and to designate an

12  attorney to represent it in proceedings involving claims

13  against the fund, including negotiation and consummation of

14  settlements, hearings before judges of compensation claims,

15  and judicial review. The department division or administrator

16  or the attorney designated by it shall be given notice of all

17  hearings and proceedings involving the rights or obligations

18  of such fund and shall have authority to make expenditures for

19  such medical examinations, expert witness fees, depositions,

20  transcripts of testimony, and the like as may be necessary to

21  the proper defense of any claim. The department division shall

22  appoint an advisory committee composed of representatives of

23  management, compensation insurance carriers, and self-insurers

24  to aid it in formulating policies with respect to conservation

25  of the fund, who shall serve without compensation for such

26  terms as specified by it, but be reimbursed for travel

27  expenses as provided in s. 112.061. All expenditures made in

28  connection with conservation of the fund, including the salary

29  of the attorney designated to represent it and necessary

30  travel expenses, shall be allowed and paid from the Special

31  Disability Trust Fund as provided in this section upon the


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                                          HB 1655, First Engrossed



  1  presentation of itemized vouchers therefor approved by the

  2  department division.

  3         (11)  EFFECTIVE DATES.--This section does not apply to

  4  any case in which the accident causing the subsequent injury

  5  or death or the disablement or death from a subsequent

  6  occupational disease occurred prior to July 1, 1955, or on or

  7  after January 1, 1998.  In no event shall the Special

  8  Disability Trust Fund be liable for, or reimburse employers or

  9  carriers for, any case in which the accident causing the

10  subsequent injury or death or the disablement or death from a

11  subsequent occupational disease occurred on or after January

12  1, 1998.  The Special Disability Trust Fund shall continue to

13  reimburse employers or carriers for subsequent injuries

14  occurring prior to January 1, 1998, and the department

15  division shall continue to assess for and the department

16  division or administrator shall fund reimbursements as

17  provided in subsection (9) for this purpose.

18         Section 47.  Section 440.491, Florida Statutes, is

19  amended to read:

20         440.491  Reemployment of injured workers;

21  rehabilitation.--

22         (1)  DEFINITIONS.--As used in this section, the term:

23         (a)  "Carrier" means group self-insurance funds or

24  individual self-insureds authorized under this chapter and

25  commercial funds or insurance entities authorized to write

26  workers' compensation insurance under chapter 624.

27         (b)  "Medical care coordination" includes, but is not

28  limited to, coordinating physical rehabilitation services such

29  as medical, psychiatric, or therapeutic treatment for the

30  injured employee, providing health training to the employee

31  and family, and monitoring the employee's recovery. The


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                                          HB 1655, First Engrossed



  1  purposes of medical care coordination are to minimize the

  2  disability and recovery period without jeopardizing medical

  3  stability, to assure that proper medical treatment and other

  4  restorative services are timely provided in a logical

  5  sequence, and to contain medical costs.

  6         (c)  "Qualified rehabilitation provider" means a

  7  rehabilitation nurse, rehabilitation counselor, vocational

  8  evaluator, rehabilitation facility, or agency approved by the

  9  Department of Education division as qualified to provide

10  reemployment assessments, medical care coordination,

11  reemployment services, or vocational evaluations under this

12  chapter.

13         (d)  "Reemployment assessment" means a written

14  assessment performed by a qualified rehabilitation provider

15  which provides a comprehensive review of the medical

16  diagnosis, treatment, and prognosis; includes conferences with

17  the employer, physician, and claimant; and recommends a

18  cost-effective physical and vocational rehabilitation plan to

19  assist the employee in returning to suitable gainful

20  employment.

21         (e)  "Reemployment services" means services that

22  include, but are not limited to, vocational counseling,

23  job-seeking skills training, ergonomic job analysis,

24  transferable skills analysis, selective job placement, labor

25  market surveys, and arranging other services such as education

26  or training, vocational and on-the-job, which may be needed by

27  the employee to secure suitable gainful employment.

28         (f)  "Reemployment status review" means a review to

29  determine whether an injured employee is at risk of not

30  returning to work.

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                                          HB 1655, First Engrossed



  1         (g)  "Suitable gainful employment" means employment or

  2  self-employment that is reasonably attainable in light of the

  3  employee's age, education, work history, transferable skills,

  4  previous occupation, and injury, and which offers an

  5  opportunity to restore the individual as soon as practicable

  6  and as nearly as possible to his or her average weekly

  7  earnings at the time of injury.

  8         (h)  "Vocational evaluation" means a review of the

  9  employee's physical and intellectual capabilities, his or her

10  aptitudes and achievements, and his or her work-related

11  behaviors to identify the most cost-effective means toward the

12  employee's return to suitable gainful employment.

13         (2)  INTENT.--It is the intent of this section to

14  implement a systematic review by carriers of the factors that

15  are predictive of longer-term disability and to encourage the

16  provision of medical care coordination and reemployment

17  services that are necessary to assist the employee in

18  returning to work as soon as is medically feasible.

19         (3)  REEMPLOYMENT STATUS REVIEWS AND REPORTS.--

20         (a)  When an employee who has suffered an injury

21  compensable under this chapter is unemployed 60 days after the

22  date of injury and is receiving benefits for temporary total

23  disability, temporary partial disability, or wage loss, and

24  has not yet been provided medical care coordination and

25  reemployment services voluntarily by the carrier, the carrier

26  must determine whether the employee is likely to return to

27  work and must report its determination to the Department of

28  Education division. The carrier must thereafter determine the

29  reemployment status of the employee at 90-day intervals as

30  long as the employee remains unemployed, is not receiving

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                                          HB 1655, First Engrossed



  1  medical care coordination or reemployment services, and is

  2  receiving the benefits specified in this subsection.

  3         (b)  If medical care coordination or reemployment

  4  services are voluntarily undertaken within 60 days of the date

  5  of injury, such services may continue to be provided as agreed

  6  by the employee and the carrier.

  7         (4)  REEMPLOYMENT ASSESSMENTS.--

  8         (a)  The carrier may require the employee to receive a

  9  reemployment assessment as it considers appropriate. However,

10  the carrier is encouraged to obtain a reemployment assessment

11  if:

12         1.  The carrier determines that the employee is at risk

13  of remaining unemployed.

14         2.  The case involves catastrophic or serious injury.

15         (b)  The carrier shall authorize only a qualified

16  rehabilitation provider to provide the reemployment

17  assessment. The rehabilitation provider shall conduct its

18  assessment and issue a report to the carrier, the employee,

19  and the Department of Education division within 30 days after

20  the time such assessment is complete.

21         (c)  If the rehabilitation provider recommends that the

22  employee receive medical care coordination or reemployment

23  services, the carrier shall advise the employee of the

24  recommendation and determine whether the employee wishes to

25  receive such services. The employee shall have 15 days after

26  the date of receipt of the recommendation in which to agree to

27  accept such services. If the employee elects to receive

28  services, the carrier may refer the employee to a

29  rehabilitation provider for such coordination or services

30  within 15 days of receipt of the assessment report or notice

31  of the employee's election, whichever is later.


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                                          HB 1655, First Engrossed



  1         (5)  MEDICAL CARE COORDINATION AND REEMPLOYMENT

  2  SERVICES.--

  3         (a)  Once the carrier has assigned a case to a

  4  qualified rehabilitation provider for medical care

  5  coordination or reemployment services, the provider shall

  6  develop a reemployment plan and submit the plan to the carrier

  7  and the employee for approval.

  8         (b)  If the rehabilitation provider concludes that

  9  training and education are necessary to return the employee to

10  suitable gainful employment, or if the employee has not

11  returned to suitable gainful employment within 180 days after

12  referral for reemployment services or receives $2,500 in

13  reemployment services, whichever comes first, the carrier must

14  discontinue reemployment services and refer the employee to

15  the Department of Education division for a vocational

16  evaluation. Notwithstanding any provision of chapter 289 or

17  chapter 627, the cost of a reemployment assessment and the

18  first $2,500 in reemployment services to an injured employee

19  must not be treated as loss adjustment expense for workers'

20  compensation ratemaking purposes.

21         (c)  A carrier may voluntarily provide medical care

22  coordination or reemployment services to the employee at

23  intervals more frequent than those required in this section.

24  For the purpose of monitoring reemployment, the carrier or the

25  rehabilitation provider shall report to the Department of

26  Education division, in the manner prescribed by the Department

27  of Education division, the date of reemployment and wages of

28  the employee. The carrier shall report its voluntary service

29  activity to the Department of Education division as required

30  by rule. Voluntary services offered by the carrier for any of

31  the following injuries must be considered benefits for


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                                          HB 1655, First Engrossed



  1  purposes of ratemaking: traumatic brain injury; spinal cord

  2  injury; amputation, including loss of an eye or eyes; burns of

  3  5 percent or greater of the total body surface.

  4         (d)  If medical care coordination or reemployment

  5  services have not been undertaken as prescribed in paragraph

  6  (3)(b), a qualified rehabilitation service provider, facility,

  7  or agency that performs a reemployment assessment shall not

  8  provide medical care coordination or reemployment services for

  9  the employees it assesses.

10         (6)  TRAINING AND EDUCATION.--

11         (a)  Upon referral of an injured employee by the

12  carrier, or upon the request of an injured employee, the

13  Department of Education division shall conduct a training and

14  education screening to determine whether it should refer the

15  employee for a vocational evaluation and, if appropriate,

16  approve training and education or other vocational services

17  for the employee.  The Department of Education division may

18  not approve formal training and education programs unless it

19  determines, after consideration of the reemployment

20  assessment, pertinent reemployment status reviews or reports,

21  and such other relevant factors as it prescribes by rule, that

22  the reemployment plan is likely to result in return to

23  suitable gainful employment.  The Department of Education

24  division is authorized to expend moneys from the Workers'

25  Compensation Administration Trust Fund, established by s.

26  440.50, to secure appropriate training and education or other

27  vocational services when necessary to satisfy the

28  recommendation of a vocational evaluator.  The Department of

29  Education division shall establish training and education

30  standards pertaining to employee eligibility, course curricula

31  and duration, and associated costs.


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                                          HB 1655, First Engrossed



  1         (b)  When it appears that an employee who has attained

  2  maximum medical improvement requires training and education to

  3  obtain suitable gainful employment, the employer shall pay the

  4  employee additional temporary total compensation while the

  5  employee receives such training and education for a period not

  6  to exceed 26 weeks, which period may be extended for an

  7  additional 26 weeks or less, if such extended period is

  8  determined to be necessary and proper by a judge of

  9  compensation claims. However, a carrier or employer is not

10  precluded from voluntarily paying additional temporary total

11  disability compensation beyond that period. If an employee

12  requires temporary residence at or near a facility or an

13  institution providing training and education which is located

14  more than 50 miles away from the employee's customary

15  residence, the reasonable cost of board, lodging, or travel

16  must be borne by the Department of Insurance division from the

17  Workers' Compensation Administration Trust Fund established by

18  s. 440.50. An employee who refuses to accept training and

19  education that is recommended by the vocational evaluator and

20  considered necessary by the Department of Education division

21  is subject to a 50-percent reduction in weekly compensation

22  benefits, including wage-loss benefits, as determined under s.

23  440.15(3)(b).

24         (7)  PROVIDER QUALIFICATIONS.--

25         (a)  The Department of Education division shall

26  investigate and maintain a directory of each qualified public

27  and private rehabilitation provider, facility, and agency, and

28  shall establish by rule the minimum qualifications,

29  credentials, and requirements that each rehabilitation service

30  provider, facility, and agency must satisfy to be eligible for

31  listing in the directory. These minimum qualifications and


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                                          HB 1655, First Engrossed



  1  credentials must be based on those generally accepted within

  2  the service specialty for which the provider, facility, or

  3  agency is approved.

  4         (b)  The Department of Education division shall impose

  5  a biennial application fee of $25 for each listing in the

  6  directory, and all such fees must be deposited in the Workers'

  7  Compensation Administration Trust Fund.

  8         (c)  The Department of Education division shall monitor

  9  and evaluate each rehabilitation service provider, facility,

10  and agency qualified under this subsection to ensure its

11  compliance with the minimum qualifications and credentials

12  established by the Department of Education division. The

13  failure of a qualified rehabilitation service provider,

14  facility, or agency to provide the Department of Education

15  division with information requested or access necessary for

16  the Department of Education division to satisfy its

17  responsibilities under this subsection is grounds for

18  disqualifying the provider, facility, or agency from further

19  referrals.

20         (d)  A qualified rehabilitation service provider,

21  facility, or agency may not be authorized by an employer, a

22  carrier, or the Department of Education division to provide

23  any services, including expert testimony, under this section

24  in this state unless the provider, facility, or agency is

25  listed or has been approved for listing in the directory. This

26  restriction does not apply to services provided outside this

27  state under this section.

28         (e)  The Department of Education division, after

29  consultation with representatives of employees, employers,

30  carriers, rehabilitation providers, and qualified training and

31


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                                          HB 1655, First Engrossed



  1  education providers, shall adopt rules governing professional

  2  practices and standards.

  3         (8)  CARRIER PRACTICES.--The department division shall

  4  monitor the selection of providers and the provision of

  5  services by carriers under this section for consistency with

  6  legislative intent set forth in subsection (2).

  7         (9)  PERMANENT DISABILITY.--The judge of compensation

  8  claims may not adjudicate an injured employee as permanently

  9  and totally disabled until or unless the carrier is given the

10  opportunity to provide a reemployment assessment.

11         Section 48.  Section 440.50, Florida Statutes, is

12  amended to read:

13         440.50  Workers' Compensation Administration Trust

14  Fund.--

15         (1)(a)  There is established in the State Treasury a

16  special fund to be known as the "Workers' Compensation

17  Administration Trust Fund" for the purpose of providing for

18  the payment of all expenses in respect to the administration

19  of this chapter, including the vocational rehabilitation of

20  injured employees as provided in s. 440.49 and the payments

21  due under s. 440.15(1)(f), the funding of the fixed

22  administrative expenses of the plan, and the funding of the

23  Bureau of Workers' Compensation Fraud within the Department of

24  Insurance.  Such fund shall be administered by the department

25  division.

26         (b)  The department division is authorized to transfer

27  as a loan an amount not in excess of $250,000 from such

28  special fund to the Special Disability Trust Fund established

29  by s. 440.49(9), which amount shall be repaid to said special

30  fund in annual payments equal to not less than 10 percent of

31  moneys received for such Special Disability Trust Fund.


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                                          HB 1655, First Engrossed



  1         (2)  The Treasurer is authorized to disburse moneys

  2  from such fund only when approved by the department division

  3  and upon the order of the Comptroller.

  4         (3)  The Treasurer shall deposit any moneys paid into

  5  such fund into such depository banks as the department

  6  division may designate and is authorized to invest any portion

  7  of the fund which, in the opinion of the department division,

  8  is not needed for current requirements, in the same manner and

  9  subject to all the provisions of the law with respect to the

10  deposit of state funds by such Treasurer.  All interest earned

11  by such portion of the fund as may be invested by the

12  Treasurer shall be collected by him or her and placed to the

13  credit of such fund.

14         (4)  All civil penalties provided in this chapter, if

15  not voluntarily paid, may be collected by civil suit brought

16  by the department division and shall be paid into such fund.

17         Section 49.  Section 440.51, Florida Statutes, is

18  amended to read:

19         440.51  Expenses of administration.--

20         (1)  The department division shall estimate annually in

21  advance the amounts necessary for the administration of this

22  chapter, in the following manner.

23         (a)  The department division shall, by July 1 of each

24  year, notify carriers and self-insurers of the assessment

25  rate, which shall be based on the anticipated expenses of the

26  administration of this chapter for the next calendar year.

27  Such assessment rate shall take effect January 1 of the next

28  calendar year and shall be included in workers' compensation

29  rate filings approved by the Department of Insurance which

30  become effective on or after January 1 of the next calendar

31  year. Assessments shall become due and be paid quarterly.


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                                          HB 1655, First Engrossed



  1         (b)  The total expenses of administration shall be

  2  prorated among the carriers writing compensation insurance in

  3  the state and self-insurers.  The net premiums collected by

  4  carriers and the amount of premiums calculated by the

  5  department division for self-insured employers are the basis

  6  for computing the amount to be assessed. When reporting

  7  deductible policy premium for purposes of computing

  8  assessments levied after July 1, 2001, full policy premium

  9  value must be reported prior to application of deductible

10  discounts or credits. This amount may be assessed as a

11  specific amount or as a percentage of net premiums payable as

12  the department division may direct, provided such amount so

13  assessed shall not exceed 2.75 percent, beginning January 1,

14  2001, except during the interim period from July 1, 2000,

15  through December 31, 2000, such assessments shall not exceed 4

16  percent of such net premiums.  The carriers may elect to make

17  the payments required under s. 440.15(1)(f) rather than having

18  these payments made by the department division.  In that

19  event, such payments will be credited to the carriers, and the

20  amount due by the carrier under this section will be reduced

21  accordingly.

22         (2)  The department division shall provide by

23  regulation for the collection of the amounts assessed against

24  each carrier.  Such amounts shall be paid within 30 days from

25  the date that notice is served upon such carrier.  If such

26  amounts are not paid within such period, there may be assessed

27  for each 30 days the amount so assessed remains unpaid, a

28  civil penalty equal to 10 percent of the amount so unpaid,

29  which shall be collected at the same time and a part of the

30  amount assessed. For those carriers who excluded ceded

31  reinsurance premiums from their assessments prior to January


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                                          HB 1655, First Engrossed



  1  1, 2000, the department division shall not recover any past

  2  underpayments of assessments related to ceded reinsurance

  3  premiums prior to January 1, 2001, against such carriers.

  4         (3)  If any carrier fails to pay the amounts assessed

  5  against him or her under the provisions of this section within

  6  60 days from the time such notice is served upon him or her,

  7  the Department of Insurance upon being advised by the division

  8  may suspend or revoke the authorization to insure compensation

  9  in accordance with the procedure in s. 440.38(3)(a). The

10  department division may permit a carrier to remit any

11  underpayment of assessments for assessments levied after

12  January 1, 2001.

13         (4)  All amounts collected under the provisions of this

14  section shall be paid into the fund established in s. 440.50.

15         (5)  Any amount so assessed against and paid by an

16  insurance carrier, self-insurer authorized pursuant to s.

17  624.4621, or commercial self-insurance fund authorized under

18  ss. 624.460-624.488 shall be allowed as a deduction against

19  the amount of any other tax levied by the state upon the

20  premiums, assessments, or deposits for workers' compensation

21  insurance on contracts or policies of said insurance carrier,

22  self-insurer, or commercial self-insurance fund. Any insurance

23  carrier claiming such a deduction against the amount of any

24  such tax shall not be required to pay any additional

25  retaliatory tax levied pursuant to s. 624.5091 as a result of

26  claiming such deduction. Because deductions under this

27  subsection are available to insurance carriers, s. 624.5091

28  does not limit such deductions in any manner.

29         (6)(a)  The department division may require from each

30  carrier, at such time and in accordance with such regulations

31  as the department division may prescribe, reports in respect


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                                          HB 1655, First Engrossed



  1  to all gross earned premiums and of all payments of

  2  compensation made by such carrier during each prior period,

  3  and may determine the amounts paid by each carrier and the

  4  amounts paid by all carriers during such period.

  5         (b)  The Department of Insurance may require from each

  6  self-insurer, at such time and in accordance with such

  7  regulations as the Department of Insurance prescribes, reports

  8  in respect to wages paid, the amount of premiums such

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

10  compensation made by such self-insurer during each prior

11  period, and may determine the amounts paid by each

12  self-insurer and the amounts paid by all self-insurers during

13  such period. For the purposes of this section, the payroll

14  records of each self-insurer shall be open to annual

15  inspection and audit by the Department of Insurance or its

16  authorized representative, during regular business hours; and

17  if any audit of such records of a self-insurer discloses a

18  deficiency in the amounts reported to the Department of

19  Insurance or in the amounts paid to the Department of

20  Insurance by a self-insurer pursuant to this section, the

21  Department of Insurance may assess the cost of such audit

22  against the self-insurer.

23         (7)  The department division shall keep accumulated

24  cost records of all injuries occurring within the state coming

25  within the purview of this chapter on a policy and

26  calendar-year basis.  For the purpose of this chapter, a

27  "calendar year" is defined as the year in which the injury is

28  reported to the department division; "policy year" is defined

29  as that calendar year in which the policy becomes effective,

30  and the losses under such policy shall be chargeable against

31  the policy year so defined.


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                                          HB 1655, First Engrossed



  1         (8)  The department division shall assign an account

  2  number to each employer under this chapter and an account

  3  number to each insurance carrier authorized to write workers'

  4  compensation insurance in the state; and it shall be the duty

  5  of the department division under the account number so

  6  assigned to keep the cost experience of each carrier and the

  7  cost experience of each employer under the account number so

  8  assigned by calendar and policy year, as above defined.

  9         (9)  In addition to the above, it shall be the duty of

10  the department division to keep the accident experience, as

11  classified by the department division, by industry as follows:

12         (a)  Cause of the injury;

13         (b)  Nature of the injury; and

14         (c)  Type of disability.

15         (10)  In every case where the duration of disability

16  exceeds 30 days, the carrier shall establish a sufficient

17  reserve to pay all benefits to which the injured employee, or

18  in case of death, his or her dependents, may be entitled to

19  under the law.  In establishing the reserve, consideration

20  shall be given to the nature of the injury, the probable

21  period of disability, and the estimated cost of medical

22  benefits.

23         (11)  The department division shall furnish to any

24  employer or carrier, upon request, its individual experience.

25  The division shall furnish to the Department of Insurance,

26  upon request, the Florida experience as developed under

27  accident year or calendar year.

28         (12)  In addition to any other penalties provided by

29  this law, the failure to submit any report or other

30  information required by this law shall be just cause to

31  suspend the right of a self-insurer to operate as such, or,


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                                          HB 1655, First Engrossed



  1  upon certification by the division to the Department of

  2  Insurance that a carrier has failed or refused to furnish such

  3  reports, shall be just cause for the Department of Insurance

  4  to suspend or revoke the license of such carrier.

  5         (13)  As used in s. 440.50 and this section, the term:

  6         (a)  "Plan" means the workers' compensation joint

  7  underwriting plan provided for in s. 627.311(4).

  8         (b)  "Fixed administrative expenses" means the expenses

  9  of the plan, not to exceed $750,000, which are directly

10  related to the plan's administration but which do not vary in

11  direct relationship to the amount of premium written by the

12  plan and which do not include loss adjustment premiums.

13         (14)  Before July 1 in each year, the plan shall notify

14  the department division of the amount of the plan's gross

15  written premiums for the preceding calendar year. Whenever the

16  plan's gross written premiums reported to the department

17  division are less than $30 million, the department division

18  shall transfer to the plan, subject to appropriation by the

19  Legislature, an amount not to exceed the plan's fixed

20  administrative expenses for the preceding calendar year.

21         Section 50.  Section 440.52, Florida Statutes, is

22  amended to read:

23         440.52  Registration of insurance carriers; notice of

24  cancellation or expiration of policy; suspension or revocation

25  of authority.--

26         (1)  Each insurance carrier who desires to write such

27  compensation insurance in compliance with this chapter shall

28  be required, before writing such insurance, to register with

29  the division and pay a registration fee of $100. This shall be

30  deposited by the division in the fund created by s. 440.50.

31


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                                          HB 1655, First Engrossed



  1         (1)(2)  A carrier or self-insurance fund that receives

  2  notice pursuant to s. 440.05 shall notify the contractor of

  3  the cancellation or expiration of the insurance.

  4         (2)(3)  If the department division finds, after due

  5  notice and a hearing at which the insurance carrier is

  6  entitled to be heard in person or by counsel and present

  7  evidence, that the insurance carrier has repeatedly failed to

  8  comply with its obligations under this chapter, the department

  9  division may request the Department of Insurance to suspend or

10  revoke the authorization of such insurance carrier to write

11  workers' compensation insurance under this chapter.  Such

12  suspension or revocation shall not affect the liability of any

13  such insurance carrier under policies in force prior to the

14  suspension or revocation.

15         (3)(4)  In addition to the penalties prescribed in

16  subsection (3), violation of s. 440.381 by an insurance

17  carrier shall result in the imposition of a fine not to exceed

18  $1,000 per audit, if the insurance carrier fails to act on

19  said audits by correcting errors in employee classification or

20  accepted applications for coverage where it knew employee

21  classifications were incorrect.  Such fines shall be levied by

22  the Department of Insurance and deposited into the Insurance

23  Commissioner's Regulatory Trust Fund.

24         Section 51.  Section 440.525, Florida Statutes, is

25  amended to read:

26         440.525  Examination of carriers.--Beginning July 1,

27  1994, The Division of Workers' Compensation of the department

28  of Labor and Employment Security may examine each carrier as

29  often as is warranted to ensure that carriers are fulfilling

30  their obligations under the law, and shall examine each

31  carrier not less frequently than once every 3 years. The


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                                          HB 1655, First Engrossed



  1  examination must cover the preceding 3 fiscal years of the

  2  carrier's operations and must commence within 12 months after

  3  the end of the most recent fiscal year being covered by the

  4  examination. The examination may cover any period of the

  5  carrier's operations since the last previous examination.

  6         Section 52.  Section 440.572, Florida Statutes, is

  7  amended to read:

  8         440.572  Authorization for individual self-insurer to

  9  provide coverage.--An individual self-insurer having a net

10  worth of not less than $250 million as authorized by s.

11  440.38(1)(f) may assume by contract the liabilities under this

12  chapter of contractors and subcontractors, or each of them,

13  employed by or on behalf of such individual self-insurer when

14  performing work on or adjacent to property owned or used by

15  the individual self-insurer by the department division. The

16  net worth of the individual self-insurer shall include the

17  assets of the self-insurer's parent company and its

18  subsidiaries, sister companies, affiliated companies, and

19  other related entities, located within the geographic

20  boundaries of the state.

21         Section 53.  Section 440.59, Florida Statutes, is

22  amended to read:

23         440.59  Reporting requirements.--

24         (1)  The department of Labor and Employment Security

25  shall annually prepare a report of the administration of this

26  chapter for the preceding calendar year, including a detailed

27  statement of the receipts of and expenditures from the fund

28  established in s. 440.50 and a statement of the causes of the

29  accidents leading to the injuries for which the awards were

30  made, together with such recommendations as the department

31  considers advisable. On or before September 15 of each year,


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                                          HB 1655, First Engrossed



  1  the department shall submit a copy of the report to the

  2  Governor, the President of the Senate, the Speaker of the

  3  House of Representatives, the Democratic and Republican

  4  Leaders of the Senate and the House of Representatives, and

  5  the chairs of the legislative committees having jurisdiction

  6  over workers' compensation.

  7         (2)  The Division of Workers' Compensation of the

  8  department of Labor and Employment Security shall periodically

  9  complete on a quarterly basis an analysis of the previous

10  quarter's injuries which resulted in workers' compensation

11  claims as deemed necessary by the department. The analysis

12  shall include the information, data, and statistics deemed

13  relevant by the department be broken down by risk

14  classification, shall show for each such risk classification

15  the frequency and severity for the various types of injury,

16  and shall include an analysis of the causes of such injuries.

17  The department division shall make available distribute to

18  each employer and self-insurer in the state covered by the

19  Workers' Compensation Law the data relevant to its workforce.

20  The report shall also be distributed to the insurers

21  authorized to write workers' compensation insurance in the

22  state.

23         (3)  The department division shall annually prepare a

24  closed claim report for all claims for which the employee lost

25  more than 7 days from work and shall submit a copy of the

26  report to the Governor, the President of the Senate, the

27  Speaker of the House of Representatives, the Democratic and

28  Republican Leaders of the Senate and the House of

29  Representatives, and the chairs of the legislative committees

30  having jurisdiction over workers' compensation on or before

31  September 15 of each year. The closed claim report shall


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                                          HB 1655, First Engrossed



  1  include information, data, and statistics deemed relevant by

  2  the department, but not be limited to, an analysis of all

  3  claims closed during the preceding year as to the date of

  4  accident, age of the injured employee, occupation of the

  5  injured employee, type of injury, body part affected, type and

  6  duration of indemnity benefits paid, permanent impairment

  7  rating, medical benefits identified by type of health care

  8  provider, and type and cost of any rehabilitation benefits

  9  provided.

10         (4)  The department division shall prepare an annual

11  report for all claims for which the employee lost more than 7

12  days from work and shall submit a copy of the report to the

13  Governor, the President of the Senate, the Speaker of the

14  House of Representatives, the Democratic and Republican

15  Leaders of the Senate and the House of Representatives, and

16  the chairs of the legislative committees having jurisdiction

17  over workers' compensation, on or before September 15 of each

18  year. The annual report shall include information, data, and

19  statistics deemed relevant by the department a status report

20  on all cases involving work-related injuries in the previous

21  10 years. The annual report shall include, but not be limited

22  to, the number of open and closed cases, the number of cases

23  receiving various types of benefits, the cash and medical

24  benefits paid between the date of injury and the evaluation

25  date, the number of litigated cases, and the amount of

26  attorney's fees paid in each case.

27         (5)  The Chief Judge must prepare an annual report

28  summarizing the disposition of mediation conferences and must

29  submit the report to the Governor, the President of the

30  Senate, the Speaker of the House of Representatives, the

31  Democratic and Republican Leaders of the Senate and the House


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                                          HB 1655, First Engrossed



  1  of Representatives, and the chairs of the legislative

  2  committees having jurisdiction over workers' compensation, on

  3  or before September 15 of each year.

  4         Section 54.  Section 440.591, Florida Statutes, is

  5  amended to read:

  6         440.591  Administrative procedure; rulemaking

  7  authority.--The department, the agency, and the Department of

  8  Education have division has authority to adopt rules pursuant

  9  to ss. 120.536(1) and 120.54 to implement the provisions of

10  this chapter conferring duties upon it.

11         Section 55.  Section 440.593, Florida Statutes, is

12  amended to read:

13         440.593  Electronic reporting.--The department division

14  may establish by rule an electronic reporting system whereby

15  an employer or carrier is required to submit information

16  electronically rather than by filing otherwise required forms

17  or reports. The department division may by rule establish

18  different deadlines for reporting information to the

19  department division via the electronic reporting system than

20  are otherwise required.

21         Section 56.  Effective July 1, 2001, section 633.801,

22  Florida Statutes, is created to read:

23         633.801  Short title.--Sections 633.801 through 633.825

24  may be cited as the "Florida Firefighter Occupational Safety

25  and Health Act."

26         Section 57.  Effective July 1, 2001, section 633.802,

27  Florida Statutes, is created to read:

28         633.802  Definitions.--As used in ss. 633.801-633.825,

29  unless the context clearly indicates otherwise, the term:

30         (1)  "Department" means the Department of Insurance.

31


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                                          HB 1655, First Engrossed



  1         (2)  "Division" means the Division of State Fire

  2  Marshal of the Department of Insurance.

  3         (3)  "Firefighter employee" means any person engaged in

  4  any employment, public or private, as a firefighter under any

  5  appointment or contract of hire or apprenticeship, express or

  6  implied, oral or written, whether lawfully or unlawfully

  7  employed, and responding to or assisting with fire and medical

  8  emergencies whether or not the firefighter is on duty, except

  9  those appointed under s. 590.02(1)(d).

10         (4)  "Firefighter employer" means the state and all

11  political subdivisions thereof, all public and quasi-public

12  corporations therein, and any person carrying on any

13  employment thereof, which employs firefighters or which uses

14  volunteer firefighters, except those appointed under s.

15  590.02(1)(d).

16         (5)  "Firefighter employment" or "employment" means any

17  service performed by a firefighter employee for the

18  firefighter employer.

19         (6)  "Place of firefighter employment" or "place of

20  employment" means the physical location at which the

21  firefighter is employed.

22         Section 58.  Effective July 1, 2001, section 633.803,

23  Florida Statutes, is created to read:

24         633.803  Legislative intent.--It is the intent of the

25  Legislature to enhance firefighter occupational safety and

26  health in this state through the implementation and

27  maintenance of policies, procedures, practices, rules, and

28  standards that reduce the incidence of firefighter employee

29  accidents, firefighter occupational diseases, and firefighter

30  fatalities compensable under chapter 440 or otherwise. The

31  Legislature further intends that the division develop a means


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                                          HB 1655, First Engrossed



  1  by which it can identify individual firefighter employers with

  2  a high frequency or severity of work-related injuries, conduct

  3  safety inspections of those firefighter employers, and assist

  4  those firefighter employers in the development and

  5  implemention of firefighter employee safety and health

  6  programs. In addition, it is the intent of the Legislature

  7  that the division administer the provisions of ss.

  8  633.801-633.825; provide assistance to firefighter employers,

  9  firefighter employees, and insurers; and enforce the policies,

10  rules, and standards set forth in ss. 633.801-633.825.

11         Section 59.  Effective July 1, 2001, section 633.804,

12  Florida Statutes, is created to read:

13         633.804  Safety inspections, consultations; rules.--The

14  division shall adopt rules governing the manner, means, and

15  frequency of firefighter employer and firefighter employee

16  safety inspections and consultations by all insurers and

17  self-insurers.

18         Section 60.  Effective July 1, 2001, section 633.805,

19  Florida Statutes, is created to read:

20         633.805  Division to make study of firefighter

21  occupational diseases, etc.--The division shall make a

22  continuous study of firefighter occupational diseases and the

23  ways and means for their control and prevention and shall make

24  and enforce necessary regulations for such control. For this

25  purpose, the division is authorized to cooperate with

26  firefighter employers, firefighter employees, and insurers and

27  with the Department of Health.

28         Section 61.  Effective July 1, 2001, section 633.806,

29  Florida Statutes, is created to read:

30         633.806  Investigations by the division; refusal to

31  admit; penalty.--


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  1         (1)  The division shall make studies and investigations

  2  with respect to safety provisions and the causes of

  3  firefighter injuries in places of firefighter employment, and

  4  shall make to the Legislature and firefighter employers and

  5  insurers such recommendations as it considers proper as to the

  6  best means of preventing firefighter injuries. In making such

  7  studies and investigations, the division may:

  8         (a)  Cooperate with any agency of the United States

  9  charged with the duty of enforcing any law securing safety

10  against injury in any place of firefighter employment covered

11  by ss. 633.801-633.825, or any agency or department of the

12  state engaged in enforcing any law to assure safety for

13  firefighter employees.

14         (b)  Allow any such agency or department to have access

15  to the records of the division.

16         (2)  The division by rule may adopt procedures for

17  conducting investigations of firefighter employers under ss.

18  633.801-633.825.

19         Section 62.  Effective July 1, 2001, section 633.807,

20  Florida Statutes, is created to read:

21         633.807  Safety; firefighter employer

22  responsibilities.--Every firefighter employer shall furnish to

23  firefighters employment that is safe for the firefighter

24  employees, furnish and use safety devices and safeguards,

25  adopt and use methods and processes reasonably adequate to

26  render such an employment and place of employment safe, and do

27  every other thing reasonably necessary to protect the lives,

28  health, and safety of such firefighter employees. As used in

29  this section, the terms "safe" and "safety" as applied to any

30  employment or place of firefighter employment mean such

31  freedom from danger as is reasonably necessary for the


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  1  protection of the lives, health, and safety of firefighter

  2  employees, including conditions and methods of sanitation and

  3  hygiene. Safety devices and safeguards required to be

  4  furnished by the firefighter employer by this section or by

  5  the division under authority of this section shall not include

  6  personal apparel and protective devices that replace personal

  7  apparel normally worn by firefighter employees during regular

  8  working hours.

  9         Section 63.  Effective July 1, 2001, section 633.808,

10  Florida Statutes, is created to read:

11         633.808  Division authority.--The division shall:

12         (1)  Investigate and prescribe by rule what safety

13  devices, safeguards, or other means of protection must be

14  adopted for the prevention of accidents in every place of

15  firefighter employment or at any fire scene; determine what

16  suitable devices, safeguards, or other means of protection for

17  the prevention of occupational diseases must be adopted or

18  followed in any or all such places of firefighter employment

19  or at any fire scene; and adopt reasonable rules for the

20  prevention of accidents, the safety, protection, and security

21  of firefighters engaged in interior firefighting, and the

22  prevention of occupational diseases.

23         (2)  Ascertain, fix, and order such reasonable

24  standards and rules for the construction, repair, and

25  maintenance of places of firefighter employment as shall

26  render them safe. Such rules and standards must be adopted in

27  accordance with chapter 120.

28         (3)  Assist firefighter employers in the development

29  and implementation of firefighter employee safety training

30  programs by contracting with professional safety

31  organizations.


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  1         (4)  Adopt rules prescribing recordkeeping

  2  responsibilities for firefighter employers, which may include

  3  rules for maintaining a log and summary of occupational

  4  injuries, diseases, and illnesses and for producing on request

  5  a notice of injury and firefighter employee accident

  6  investigation records, and rules prescribing a retention

  7  schedule for such records.

  8         Section 64.  Effective July 1, 2001, section 633.810,

  9  Florida Statutes, is created to read:

10         633.810  Firefighter employers whose firefighter

11  employees have a high frequency or severity of work-related

12  injuries.--The division shall develop a means by which it can

13  identify individual firefighter employers whose firefighter

14  employees have a high frequency or severity of work-related

15  injuries. The division shall carry out safety inspections of

16  the facilities and operations of these firefighter employers

17  in order to assist them in reducing the frequency and severity

18  of work-related injuries. The division shall develop safety

19  and health programs for those firefighter employers. Insurers

20  shall distribute these safety and health programs to the

21  firefighter employers so identified by the division. Those

22  firefighter employers identified by the division as having a

23  high frequency or severity of work-related injuries shall

24  implement a division-developed safety and health program. The

25  division shall carry out safety inspections of those

26  firefighter employers so identified to ensure compliance with

27  the safety and health program and to assist such firefighter

28  employers in reducing the number of work-related injuries. The

29  division may not assess penalties as the result of such

30  inspections, except as provided by s. 633.813. Copies of any

31  report made as the result of such an inspection must be


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  1  provided to the firefighter employer and its insurer.

  2  Firefighter employers may submit their own safety and health

  3  programs to the division for approval in lieu of using the

  4  division-developed safety and health program. The division

  5  must promptly review the program submitted and approve or

  6  disapprove it. Upon approval by the division, the program must

  7  be implemented by the firefighter employer. If the program is

  8  not approved or if a program is not submitted, the firefighter

  9  employer must implement the division-developed program. The

10  division shall adopt rules setting forth the criteria for

11  safety and health programs, as such rules relate to this

12  section.

13         Section 65.  Effective July 1, 2001, section 633.812,

14  Florida Statutes, is created to read:

15         633.812  Workplace safety committees and safety

16  coordinators.--

17         (1)  In order to promote health and safety in places of

18  firefighter employment in this state:

19         (a)  Each firefighter employer of 20 or more

20  firefighter employees shall establish and administer a

21  workplace safety committee in accordance with rules adopted

22  under this section.

23         (b)  Each firefighter employer of fewer than 20

24  firefighter employees that is identified by the division as

25  having a high frequency or severity of work-related injuries

26  shall establish and administer a workplace safety committee or

27  designate a workplace safety coordinator who shall establish

28  and administer workplace safety activities in accordance with

29  rules adopted under this section.

30         (2)  The division shall adopt rules:

31


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  1         (a)  Prescribing the membership of the workplace safety

  2  committees so as to ensure an equal number of firefighter

  3  employee representatives, who are volunteers or are elected by

  4  their peers, and of firefighter employer representatives and

  5  specifying the frequency of meetings.

  6         (b)  Requiring firefighter employers to make adequate

  7  records of each meeting and to file and maintain the records

  8  subject to inspection by the division.

  9         (c)  Prescribing the duties and functions of the

10  workplace safety committee and workplace safety coordinator,

11  which include, but are not limited to:

12         1.  Establishing procedures for workplace safety

13  inspections by the committee.

14         2.  Establishing procedures investigating all workplace

15  accidents, safety-related incidents, illnesses, and deaths.

16         3.  Evaluating accident prevention and illness

17  prevention programs.

18         4.  Prescribing guidelines for the training of

19  workplace safety committee members.

20         (3)  The composition, selection, and function of

21  workplace safety committees shall be a mandatory topic of

22  negotiations with any certified collective bargaining agent

23  for firefighter employers that operate under a collective

24  bargaining agreement. Firefighter employers that operate under

25  a collective bargaining agreement that contains provisions

26  regulating the formation and operation of workplace safety

27  committees that meet or exceed the minimum requirements

28  contained in this section, or that otherwise have existing

29  workplace safety committees that meet or exceed the minimum

30  requirements established by this section, are in compliance

31  with this section.


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  1         (4)  Firefighter employees must be compensated at their

  2  regular hourly wages while engaged in workplace safety

  3  committee or workplace safety coordinator training, meetings,

  4  or other duties prescribed under this section.

  5         Section 66.  Effective July 1, 2001, section 633.813,

  6  Florida Statutes, is created to read:

  7         633.813  Firefighter employer penalties.--If any

  8  firefighter employer violates or fails or refuses to comply

  9  with ss. 633.801-633.825, any rule adopted by the division in

10  accordance with chapter 120 for the prevention of injuries,

11  accidents, or occupational diseases, or any lawful order of

12  the division in connection with ss. 633.801-633.825, or fails

13  or refuses to furnish or adopt any safety device, safeguard,

14  or other means of protection prescribed by the division under

15  ss. 633.801-633.825 for the prevention of accidents or

16  occupational diseases, the division may assess against the

17  firefighter employer a civil penalty of not less than $100 nor

18  more than $5,000 for each day the violation, failure, or

19  refusal continues after the firefighter employer has been

20  given notice thereof in writing. The total penalty for each

21  violation may not exceed $50,000. The division shall adopt

22  rules requiring penalties commensurate with the frequency or

23  severity, or both, of safety violations. A hearing must be

24  held in the county where the violation, failure, or refusal is

25  alleged to have occurred unless otherwise agreed to by the

26  firefighter employer and authorized by the division. All

27  penalties assessed and collected under this section shall be

28  deposited in the Insurance Commissioner's Regulatory Trust

29  Fund.

30         Section 67.  Effective July 1, 2001, section 633.814,

31  Florida Statutes, is created to read:


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  1         633.814  Division cooperation with Federal Government;

  2  exemption from division requirements.--

  3         (1)  The division shall cooperate with the Federal

  4  Government so that duplicate inspections will be avoided yet

  5  assure safe places of firefighter employment for the citizens

  6  of this state.

  7         (2)  Except as provided in this section, a private

  8  firefighter employer is not subject to the requirements of the

  9  division if:

10         (a)  The private firefighter employer is subject to the

11  federal regulations in 29 C.F.R. ss. 1910 and 1926;

12         (b)  The private firefighter employer has adopted and

13  implemented a written safety program that conforms to the

14  requirements of 29 C.F.R. ss. 1910 and 1926;

15         (c)  A private firefighter employer with 20 or more

16  full-time firefighter employees includes provisions for a

17  workplace safety committee in its safety program. The

18  workplace safety committee must include firefighter employee

19  representation and must meet at least once each calendar

20  quarter. The private firefighter employer must make adequate

21  records of each meeting and maintain the records subject to

22  inspections under subsection (3). The workplace safety

23  committee shall, if appropriate, make recommendations

24  regarding improvements to the safety program and corrections

25  of hazards affecting workplace safety; and

26         (d)  The private firefighter employer provides the

27  division with a written statement that certifies compliance

28  with this subsection.

29         (3)  The division may enter at any reasonable time any

30  place of firefighter employment for the purpose of verifying

31  the accuracy of the written certification required pursuant to


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                                          HB 1655, First Engrossed



  1  paragraph (2)(d). If the division determines that the

  2  firefighter employer has not complied with the requirements of

  3  subsection (2), the firefighter employer shall be subject to

  4  the rules of the division until the firefighter employer

  5  complies with subsection (2) and recertifies that fact to the

  6  division.

  7         (4)  This section shall not restrict the division from

  8  performing any duties pursuant to a written contract between

  9  the division and the federal Occupational Safety and Health

10  Administration (OSHA).

11         Section 68.  Effective July 1, 2001, section 633.815,

12  Florida Statutes, is created to read:

13         633.815  Failure to implement a safety and health

14  program; cancellations.--If a firefighter employer that is

15  found by the division to have a high frequency or severity of

16  work-related injuries fails to implement a safety and health

17  program, the insurer or self-insurer's fund that is providing

18  coverage for the firefighter employer may cancel the contract

19  for insurance with the firefighter employer. In the

20  alternative, the insurer or fund may terminate any discount or

21  deviation granted to the firefighter employer for the

22  remainder of the term of the policy. If the contract is

23  canceled or the discount or deviation is terminated, the

24  insurer must make such reports as are required by law.

25         Section 69.  Effective July 1, 2001, section 633.816,

26  Florida Statutes, is created to read:

27         633.816  Expenses of administration.--The amounts that

28  are needed to administer ss. 633.801-633.825 shall be

29  disbursed from the Insurance Commissioner's Regulatory Trust

30  Fund.

31


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                                          HB 1655, First Engrossed



  1         Section 70.  Effective July 1, 2001, section 633.817,

  2  Florida Statutes, is created to read:

  3         633.817  Refusal to admit; penalty.--The division and

  4  its authorized representatives may enter and inspect any place

  5  of firefighter employment at any reasonable time for the

  6  purpose of investigating compliance with ss. 633.801-633.825

  7  and conducting inspections for the proper enforcement of ss.

  8  633.801-633.825. A firefighter employer who refuses to admit

  9  any member of the division or its authorized representative to

10  any place of employment or to allow investigation and

11  inspection pursuant to this section commits a misdemeanor of

12  the second degree, punishable as provided in s. 775.082 or s.

13  775.083.

14         Section 71.  Effective July 1, 2001, section 633.818,

15  Florida Statutes, is created to read:

16         633.818  Firefighter employee rights and

17  responsibilities.--

18         (1)  Each firefighter employee of a firefighter

19  employer covered under ss. 633.801-633.825 shall comply with

20  rules adopted by the division and with reasonable workplace

21  safety and health standards, rules, policies, procedures, and

22  work practices established by the firefighter employer and the

23  workplace safety committee. A firefighter employee who

24  knowingly fails to comply with this subsection may be

25  disciplined or discharged by the firefighter employer.

26         (2)  A firefighter employer may not discharge, threaten

27  to discharge, cause to be discharged, intimidate, coerce,

28  otherwise discipline, or in any manner discriminate against a

29  firefighter employee for any of the following reasons:

30

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                                          HB 1655, First Engrossed



  1         (a)  The firefighter employee has testified or is about

  2  to testify, on her or his own behalf or on behalf of others,

  3  in any proceeding instituted under ss. 633.801-633.825;

  4         (b)  The firefighter employee has exercised any other

  5  right afforded under ss. 633.801-633.825; or

  6         (c)  The firefighter employee is engaged in activities

  7  relating to the workplace safety committee.

  8         (3)  Neither pay, position, seniority, nor other

  9  benefit may be lost for exercising any right under, or for

10  seeking compliance with any requirement of, ss.

11  633.801-633.825.

12         Section 72.  Effective July 1, 2001, section 633.819,

13  Florida Statutes, is created to read:

14         633.819  Compliance.--Failure of a firefighter employer

15  or an insurer to comply with ss. 633.801-633.825 or with any

16  rules adopted thereunder constitutes grounds for the division

17  to seek remedies, including injunctive relief, for

18  noncompliance by making appropriate filings with the circuit

19  court.

20         Section 73.  Effective July 1, 2001, section 633.820,

21  Florida Statutes, is created to read:

22         633.820  False statements to insurers.--A firefighter

23  employer who knowingly and willfully falsifies or conceals a

24  material fact, makes a false, fictitious, or fraudulent

25  statement or representation, or makes or uses any false

26  document knowing the document to contain any false,

27  fictitious, or fraudulent entry or statement to an insurer of

28  workers' compensation insurance under ss. 633.801-633.825

29  commits a misdemeanor of the second degree, punishable as

30  provided in s. 775.082 or s. 775.083.

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  1         Section 74.  Effective July 1, 2001, section 633.823,

  2  Florida Statutes, is created to read:

  3         633.823  Matters within jurisdiction of the division;

  4  false, fictitious, or fraudulent acts, statements, and

  5  representations prohibited; penalty; statute of

  6  limitations.--A person may not, in any matter within the

  7  jurisdiction of the division, knowingly and willfully falsify

  8  or conceal a material fact; make any false, fictitious, or

  9  fraudulent statement or representation; or make or use any

10  false document, knowing the same to contain any false,

11  fictitious, or fraudulent statement or entry. A person who

12  violates this section commits a misdemeanor of the second

13  degree, punishable as provided in s. 775.082 or s. 775.083.

14  The statute of limitations for prosecution of an act committed

15  in violation of this section is 5 years after the date the act

16  was committed or, if not discovered within 30 days after the

17  act was committed, 5 years after the date the act was

18  discovered.

19         Section 75.  Effective July 1, 2001, section 633.824,

20  Florida Statutes, is created to read:

21         633.824  Volunteer firefighters; volunteer fire

22  departments.--Sections 633.803-633.825 apply to volunteer

23  firefighters and volunteer fire departments.

24         Section 76.  Effective July 1, 2001, section 633.825,

25  Florida Statutes, is created to read:

26         633.825  Workplace safety.--

27         (1)  The division shall assist in making places of

28  firefighter employment safer places to work and decreasing the

29  frequency and severity of work-related injuries.

30         (2)  The division shall have the authority to adopt

31  rules for the purpose of assuring safe working conditions for


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                                          HB 1655, First Engrossed



  1  all firefighter employees by authorizing the enforcement of

  2  effective standards, assisting and encouraging firefighter

  3  employers to maintain safe working conditions, and providing

  4  for education and training in the field of safety.

  5  Specifically, the division may by rule adopt all or any part

  6  of subparts C through T and subpart Z of 29 C.F.R. part 1910

  7  as revised April 8, 1998; the National Fire Protection

  8  Association, Inc., Standard 1500, paragraph 5-7 (Personal

  9  Alert Safety System) (1992 edition); and ANSI A 10.4-1990.

10         (3)  With respect to 29 C.F.R. s. 1910.134(g)(4), the

11  two individuals located outside the immediately dangerous to

12  life and health atmosphere may be assigned to an additional

13  rule, such as incident commander, pumper operator, engineer,

14  or driver, so long as such individual is able to immediately

15  perform assistance or rescue activities without jeopardizing

16  the safety or health of any firefighter working at an

17  incident. Also with respect to 29 C.F.R. s. 1910.134(g)(4):

18         (a)  Each county, municipality, or special district

19  shall implement such provision by April 1, 2002, except as

20  provided in paragraph (b).

21         (b)  If any county, municipality, or special district

22  is unable to implement such provision by April 1, 2002,

23  without adding additional personnel to its firefighting staff

24  or expending significant additional funds, such county,

25  municipality, or special district shall have an additional 6

26  months within which to implement such provision. Such county,

27  municipality, or special district shall notify the division

28  that the 6-month extension to implement such provision is in

29  effect in such county, municipality, or special district

30  within 30 days after its decision to extend the time for an

31


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                                          HB 1655, First Engrossed



  1  additional 6 months. The decision to extend the time for

  2  implementation shall be made prior to April 1, 2002.

  3         (c)  If, after the extension granted in paragraph (b),

  4  the county, municipality, or special district, after having

  5  worked with and cooperated fully with the division and the

  6  Firefighters Employment, Standards, and Training Council, is

  7  still unable to implement such provision without adding

  8  additional personnel to its firefighting staff or expending

  9  significant additional funds, such county, municipality, or

10  special district shall be exempt from the requirements of 29

11  C.F.R. s. 1910.134(g)(4). Nevertheless, each year thereafter

12  the division shall review each such county, municipality, or

13  special district to determine if such county, municipality, or

14  special district has the ability to implement such provision

15  without adding additional personnel to its firefighting staff

16  or expending significant additional funds. If the division

17  determines that any county, municipality, or special district

18  has the ability to implement such provision without adding

19  additional personnel to its firefighting staff or expending

20  significant additional funds, the division shall require such

21  county, municipality, or special district to implement such

22  provision. Such requirement by the division under this

23  paragraph constitutes final agency action subject to chapter

24  120.

25         (4)  The provisions of chapter 440 which pertain to

26  workplace safety shall be applicable to the division.

27         (5)  The division shall have the authority to adopt any

28  rule necessary to implement, interpret, and make specific the

29  provisions of this section; however, the division may not

30  adopt by rule any other standard or standards of the

31  Occupational Safety and Health Administration or the National


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                                          HB 1655, First Engrossed



  1  Fire Protection Association without specific legislative

  2  authority.

  3         Section 77.  Paragraph (c) of subsection (3) of section

  4  383.3362, Florida Statutes, is amended to read:

  5         383.3362  Sudden Infant Death Syndrome.--

  6         (3)  TRAINING.--

  7         (c)  The Department of Health, in consultation with the

  8  Emergency Medical Services Advisory Council, the Firefighters

  9  Employment, Standards, and Training Council, and the Criminal

10  Justice Standards and Training Commission, shall develop and

11  adopt, by rule, curriculum that, at a minimum, includes

12  training in the nature of SIDS, standard procedures to be

13  followed by law enforcement agencies in investigating cases

14  involving sudden deaths of infants, and training in responding

15  appropriately to the parents or caretakers who have requested

16  assistance.

17         Section 78.  Subsection (4) of section 633.30, Florida

18  Statutes, is amended to read:

19         633.30  Standards for firefighting; definitions.--As

20  used in this chapter:

21         (4)  "Council" means the Firefighters Employment,

22  Standards, and Training Council.

23         Section 79.  Effective July 1, 2001, subsections (1)

24  and (2) of section 633.31, Florida Statutes, are amended to

25  read:

26         633.31  Firefighters Employment, Standards, and

27  Training Council.--

28         (1)  There is created within the Department of

29  Insurance a Firefighters Employment, Standards, and Training

30  Council of thirteen nine members appointed by the State Fire

31  Marshal.  Two members shall be fire chiefs who shall be


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                                          HB 1655, First Engrossed



  1  appointed by the Florida Fire Chiefs Association, two members

  2  shall be firefighters who are not officers who shall be

  3  appointed by the Florida Professional Firefighters'

  4  Association, two members shall be firefighter officers who are

  5  not fire chiefs who shall be appointed by the State Fire

  6  Marshal, one member shall be appointed by the Florida League

  7  of Cities, one member shall be appointed by the Florida

  8  Association of Counties, one member shall be appointed by the

  9  Florida Association of Special Districts, one member shall be

10  appointed by the Florida Fire Marshal's Association, one

11  member shall be appointed by the State Fire Marshal, and one

12  member shall be a director or instructor of a state-certified

13  firefighting training facility who shall be appointed by the

14  State Fire Marshal. To be eligible for appointment as a fire

15  chief member, firefighter officer member, firefighter member,

16  or a director or instructor of a state-certified firefighting

17  facility, a person shall have had at least 4 years' experience

18  in the firefighting profession. The remaining member, who

19  shall be appointed by the State Fire Marshal, two members

20  shall not be a member or representative members of the

21  firefighting profession or of any local government. Members

22  shall serve only as long as they continue to meet the criteria

23  under which they were appointed, or unless a member has failed

24  to appear at three consecutive and properly noticed meetings

25  unless excused by the chair.

26         (2)  Initially, the State Fire Marshal shall appoint

27  three members for terms of 4 years, two members for terms of 3

28  years, two members for terms of 2 years, and two members for

29  terms of 1 year.  Thereafter, Members shall be appointed for

30  4-year terms and in no event shall a member serve more than

31  two consecutive terms.  Any vacancy shall be filled in the


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                                          HB 1655, First Engrossed



  1  manner of the original appointment for the remaining time of

  2  the term.

  3         Section 80.  Subsection (4) of section 633.32, Florida

  4  Statutes, is amended to read:

  5         633.32  Organization; meetings; quorum; compensation;

  6  seal.--

  7         (4)  The council may adopt a seal for its use

  8  containing the words "Firefighters Employment, Standards, and

  9  Training Council."

10         Section 81.  Subsections (4) and (5) of section 633.33,

11  Florida Statutes, are amended to read:

12         633.33  Special powers; firefighter training.--The

13  council shall have special powers in connection with the

14  employment and training of firefighters to:

15         (4)  Consult and cooperate with any employing agency,

16  university, college, community college, the Florida State Fire

17  College, or other educational institution concerning the

18  employment and safety of firefighters, including, but not

19  limited to, the safety of firefighters while at the scene of a

20  fire and at the scene of any incident related to emergency

21  services to which a firefighter responds, development of

22  firefighter training schools and programs of courses of

23  instruction, including, but not limited to, education and

24  training in the areas of fire science, fire technology, fire

25  administration, and all allied and supporting fields.

26         (5)  Make or support studies on any aspect of

27  firefighting employment, education, and training or

28  recruitment.

29         Section 82.  Subsections (1), (4), and (5) of section

30  443.012, Florida Statutes, are amended to read:

31         443.012  Unemployment Appeals Commission.--


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                                          HB 1655, First Engrossed



  1         (1)  There is created within the Agency for Workforce

  2  Innovation Department of Labor and Employment Security an

  3  Unemployment Appeals Commission, hereinafter referred to as

  4  the "commission."  The commission shall consist of a chair and

  5  two other members to be appointed by the Governor, subject to

  6  confirmation by the Senate.  Not more than one appointee must

  7  be a person who, on account of previous vocation, employment,

  8  or affiliation, is classified as a representative of

  9  employers; and not more than one such appointee must be a

10  person who, on account of previous vocation, employment, or

11  affiliation, is classified as a representative of employees.

12         (a)  The chair shall devote his or her entire time to

13  commission duties and shall be responsible for the

14  administrative functions of the commission.

15         (b)  The chair shall have the authority to appoint a

16  general counsel and such other personnel as may be necessary

17  to carry out the duties and responsibilities of the

18  commission.

19         (c)  The chair shall have the qualifications required

20  by law for a judge of the circuit court and shall not engage

21  in any other business vocation or employment. Notwithstanding

22  any other provisions of existing law, the chair shall be paid

23  a salary equal to that paid under state law to a judge of the

24  circuit court.

25         (d)  The remaining members shall be paid a stipend of

26  $100 for each day they are engaged in the work of the

27  commission.  The chair and other members shall also be

28  reimbursed for travel expenses, as provided in s. 112.061.

29         (e)  The total salary and travel expenses of each

30  member of the commission shall be paid from the Employment

31  Security Administration Trust Fund.


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                                          HB 1655, First Engrossed



  1         (4)  The property, personnel, and appropriations

  2  relating to the specified authority, powers, duties, and

  3  responsibilities of the commission shall be provided to the

  4  commission by the Agency for Workforce Innovation Department

  5  of Labor and Employment Security.

  6         (5)  The commission shall not be subject to control,

  7  supervision, or direction by the Agency for Workforce

  8  Innovation Department of Labor and Employment Security in the

  9  performance of its powers and duties under this chapter.

10         Section 83.  Subsection (12) of section 443.036,

11  Florida Statutes, is amended to read:

12         443.036  Definitions.--As used in this chapter, unless

13  the context clearly requires otherwise:

14         (12)  COMMISSION.--"Commission" means the Unemployment

15  Appeals Commission of the Department of Labor and Employment

16  Security.

17         Section 84.  Subsection (3) of section 447.02, Florida

18  Statutes, is amended to read:

19         447.02  Definitions.--The following terms, when used in

20  this chapter, shall have the meanings ascribed to them in this

21  section:

22         (3)  The term "department" means the Department of

23  Business and Professional Regulation Labor and Employment

24  Security.

25         Section 85.  Subsections (1), (3), and (4) of section

26  447.205, Florida Statutes, are amended to read:

27         447.205  Public Employees Relations Commission.--

28         (1)  There is hereby created within the Department of

29  Management Services Labor and Employment Security the Public

30  Employees Relations Commission, hereinafter referred to as the

31  "commission."  The commission shall be composed of a chair and


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                                          HB 1655, First Engrossed



  1  two full-time members to be appointed by the Governor, subject

  2  to confirmation by the Senate, from persons representative of

  3  the public and known for their objective and independent

  4  judgment, who shall not be employed by, or hold any commission

  5  with, any governmental unit in the state or any employee

  6  organization, as defined in this part, while in such office.

  7  In no event shall more than one appointee be a person who, on

  8  account of previous vocation, employment, or affiliation, is,

  9  or has been, classified as a representative of employers; and

10  in no event shall more than one such appointee be a person

11  who, on account of previous vocation, employment, or

12  affiliation, is, or has been, classified as a representative

13  of employees or employee organizations.  The commissioners

14  shall devote full time to commission duties and shall not

15  engage in any other business, vocation, or employment while in

16  such office. Beginning January 1, 1980, the chair shall be

17  appointed for a term of 4 years, one commissioner for a term

18  of 1 year, and one commissioner for a term of 2 years.

19  Thereafter, Every term of office shall be for 4 years; and

20  each term of the office of chair shall commence on January 1

21  of the second year following each regularly scheduled general

22  election at which a Governor is elected to a full term of

23  office.  In the event of a vacancy prior to the expiration of

24  a term of office, an appointment shall be made for the

25  unexpired term of that office. The chair shall be responsible

26  for the administrative functions of the commission and shall

27  have the authority to employ such personnel as may be

28  necessary to carry out the provisions of this part.  Once

29  appointed to the office of chair, the chair shall serve as

30  chair for the duration of the term of office of chair.

31


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                                          HB 1655, First Engrossed



  1  Nothing contained herein prohibits a chair or commissioner

  2  from serving multiple terms.

  3         (3)  The commission, in the performance of its powers

  4  and duties under this part, shall not be subject to control,

  5  supervision, or direction by the Department of Management

  6  Services Labor and Employment Security.

  7         (4)  The property, personnel, and appropriations

  8  related to the commission's specified authority, powers,

  9  duties, and responsibilities shall be provided to the

10  commission by the Department of Management Services Labor and

11  Employment Security.

12         Section 86.  Subsection (4) of section 447.305, Florida

13  Statutes, is amended to read:

14         447.305  Registration of employee organization.--

15         (4)  Notification of registrations and renewals of

16  registration shall be furnished at regular intervals by the

17  commission to the Department of Business and Professional

18  Regulation Labor and Employment Security.

19         Section 87.  Subsection (4) of section 450.012, Florida

20  Statutes, is amended to read:

21         450.012  Definitions.--For the purpose of this chapter,

22  the word, phrase, or term:

23         (4)  "Department" means the Department of Business and

24  Professional Regulation Labor and Employment Security.

25         Section 88.  Subsection (2) of section 450.28, Florida

26  Statutes, is amended to read:

27         450.28  Definitions.--

28         (2)  "Department" means the Department of Business and

29  Professional Regulation Labor and Employment Security.

30         Section 89.  Subsection (1) of section 450.191, Florida

31  Statutes, is amended to read:


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                                          HB 1655, First Engrossed



  1         450.191  Executive Office of the Governor; powers and

  2  duties.--

  3         (1)  The Executive Office of the Governor is authorized

  4  and directed to:

  5         (a)  Advise and consult with employers of migrant

  6  workers as to the ways and means of improving living

  7  conditions of seasonal workers;

  8         (b)  Cooperate with the Department of Health in

  9  establishing minimum standards of preventive and curative

10  health and of housing and sanitation in migrant labor camps

11  and in making surveys to determine the adequacy of preventive

12  and curative health services available to occupants of migrant

13  labor camps;

14         (c)  Provide coordination for the enforcement of ss.

15  381.008-381.0088;

16         (d)  Cooperate with the other departments of government

17  in coordinating all applicable labor laws, including, but not

18  limited to, those relating to private employment agencies,

19  child labor, wage payments, wage claims, and crew leaders;

20         (e)  Cooperate with the Department of Education to

21  provide educational facilities for the children of migrant

22  laborers;

23         (f)  Cooperate with the Department of Highway Safety

24  and Motor Vehicles to establish minimum standards for the

25  transporting of migrant laborers;

26         (g)  Cooperate with the Department of Agriculture and

27  Consumer Services to conduct an education program for

28  employers of migrant laborers pertaining to the standards,

29  methods, and objectives of the office;

30

31


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                                          HB 1655, First Engrossed



  1         (h)  Cooperate with the Department of Children and

  2  Family Services in coordinating all public assistance programs

  3  as they may apply to migrant laborers;

  4         (i)  Coordinate all federal, state, and local programs

  5  pertaining to migrant laborers; and

  6         (j)  Cooperate with the farm labor office of the

  7  Department of Business and Professional Regulation Labor and

  8  Employment Security in the recruitment and referral of migrant

  9  laborers and other persons for the planting, cultivation, and

10  harvesting of agricultural crops in Florida.

11         Section 90.  Subsection (3) of section 468.529, Florida

12  Statutes, is amended to read:

13         468.529  Licensee's insurance; employment tax; benefit

14  plans.--

15         (3)  A licensed employee leasing company shall within

16  30 days of initiation or termination notify its workers'

17  compensation insurance carrier, the Department of Insurance

18  Division of Workers' Compensation, and the Division of

19  Unemployment Compensation of the Department of Revenue Labor

20  and Employment Security of both the initiation or the

21  termination of the company's relationship with any client

22  company.

23         Section 91.  Subsections (1) and (5) of section

24  624.3161, Florida Statutes, are amended to read:

25         624.3161  Market conduct examinations.--

26         (1)  As often as it deems necessary, the department

27  shall examine each licensed rating organization, each advisory

28  organization, each group, association carrier as defined in s.

29  440.02,, or other organization of insurers which engages in

30  joint underwriting or joint reinsurance, and each authorized

31  insurer transacting in this state any class of insurance to


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                                          HB 1655, First Engrossed



  1  which the provisions of chapter 627 are applicable.  The

  2  examination shall be for the purpose of ascertaining

  3  compliance by the person examined with the applicable

  4  provisions of chapters 440, 624, 626, 627, and 635.

  5         (5)  Such examinations shall also be subject to the

  6  applicable provisions of ss. 624.318, 624.319, 624.321, and

  7  624.322 and chapter 440.

  8         Section 92.  Paragraph (m) of subsection (1) of section

  9  626.88, Florida Statutes, is amended to read:

10         626.88  Definitions of "administrator" and "insurer".--

11         (1)  For the purposes of this part, an "administrator"

12  is any person who directly or indirectly solicits or effects

13  coverage of, collects charges or premiums from, or adjusts or

14  settles claims on residents of this state in connection with

15  authorized commercial self-insurance funds or with insured or

16  self-insured programs which provide life or health insurance

17  coverage or coverage of any other expenses described in s.

18  624.33(1), other than any of the following persons:

19         (m)  A person approved by the Department of Insurance

20  Division of Workers' Compensation of the Department of Labor

21  and Employment Security who administers only self-insured

22  workers' compensation plans.

23         Section 93.  Subsection (9) of section 626.989, Florida

24  Statutes, is amended to read:

25         626.989  Investigation by department or Division of

26  Insurance Fraud; compliance; immunity; confidential

27  information; reports to division; division investigator's

28  power of arrest.--

29         (9)  In recognition of the complementary roles of

30  investigating instances of workers' compensation fraud and

31  enforcing compliance with the workers' compensation coverage


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                                          HB 1655, First Engrossed



  1  requirements under chapter 440, the Division of Insurance

  2  Fraud of the Department of Insurance is and the Division of

  3  Workers' Compensation of the Department of Labor and

  4  Employment Security are directed to prepare and submit a joint

  5  performance report to the President of the Senate and the

  6  Speaker of the House of Representatives by November 1 of each

  7  year for each of the next 2 years, and then every 3 years

  8  thereafter, describing the results obtained in achieving

  9  compliance with the workers' compensation coverage

10  requirements and reducing the incidence of workers'

11  compensation fraud.

12         Section 94.  Section 627.0915, Florida Statutes, is

13  amended to read:

14         627.0915  Rate filings; workers' compensation,

15  drug-free workplace, and safe employers.--The Department of

16  Insurance shall approve rating plans for workers' compensation

17  insurance that give specific identifiable consideration in the

18  setting of rates to employers that either implement a

19  drug-free workplace program pursuant to rules adopted by the

20  Division of Workers' Compensation of the Department of Labor

21  and Employment Security or implement a safety program pursuant

22  to provisions of the rating plan approved by the Division of

23  Safety pursuant to rules adopted by the Division of Safety of

24  the Department of Labor and Employment Security or implement

25  both a drug-free workplace program and a safety program. The

26  Division of Safety may by rule require that the client of a

27  help supply services company comply with the essential

28  requirements of a workplace safety program as a condition for

29  receiving a premium credit. The plans must take effect January

30  1, 1994, must be actuarially sound, and must state the savings

31


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                                          HB 1655, First Engrossed



  1  anticipated to result from such drug-testing and safety

  2  programs.

  3         Section 95.  Subsection (5) of section 627.914, Florida

  4  Statutes, is amended to read:

  5         627.914  Reports of information by workers'

  6  compensation insurers required.--

  7         (5)  Self-insurers authorized to transact workers'

  8  compensation insurance as provided in s. 440.02 shall report

  9  only Florida data as prescribed in paragraphs (a)-(e) of

10  subsection (4) to the department Division of Workers'

11  Compensation of the Department of Labor and Employment

12  Security.

13         (a)  The department Division of Workers' Compensation

14  shall publish the dates and forms necessary to enable

15  self-insurers to comply with this section.

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

17  the information collected under this section to the Department

18  of Insurance in a manner prescribed by the department.

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

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

21  required by this section and calculating experience ratings.

22         Section 96.  If any provision of this act or its

23  application to any person or circumstance is held invalid, the

24  invalidity does not affect other provisions or applications of

25  the act which can be given effect without the invalid

26  provision or application, and to this end the provisions of

27  this act are severable.

28         Section 97.  To the extent that any conflict exists

29  between this act and the provisions of SB 1926, or similar

30  legislation, which transfers the Office of Judges of

31  Compensation Claims to the Division of Administration


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                                          HB 1655, First Engrossed



  1  Hearings, the provisions of SB 1926 or the similar legislation

  2  shall control.

  3         Section 98.  Unless otherwise expressly provided for in

  4  this act, this act shall take effect October 1, 2001.

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