Senate Bill sb2340c1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
By the Committee on Banking and Insurance; and Senator Clary
311-2147A-02
1 A bill to be entitled
2 An act relating to transferring and reassigning
3 divisions, functions, and responsibilities of
4 the Department of Labor and Employment
5 Security; providing for a type two transfer of
6 the Division of Workers' Compensation to the
7 Department of Insurance; providing for a type
8 two transfer of workers' compensation medical
9 services to the Agency for Health Care
10 Administration; providing for a type two
11 transfer of workers' compensation
12 rehabilitation and reemployment services to the
13 Department of Education; providing for a type
14 two transfer of the administration of child
15 labor laws to the Department of Business and
16 Professional Regulation; providing for
17 comparable pay grades for the transferred
18 positions; authorizing the Department of
19 Insurance to reclassify and reorganize
20 positions within the department and establish
21 regional offices; authorizing the Department of
22 Insurance to enter into contracts; providing
23 for existing contracts to be subject to review
24 and cancellation; providing for a type two
25 transfer of certain functions of the Office of
26 the Secretary and the Office of Administrative
27 Services of the Department of Labor and
28 Employment Security relating to labor
29 organizations and migrant and farm labor
30 registration to the Department of Business and
31 Professional Regulation; providing for a type
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 two transfer of other workplace regulation
2 functions to the Department of Business and
3 Professional Regulation; providing for the
4 transfer of the Unemployment Appeals Commission
5 to the Agency for Workforce Innovation by a
6 type two transfer; providing for the transfer
7 of the Office of Information Systems to the
8 State Technology Office by a type two transfer;
9 requiring the State Technology Office and the
10 Department of Insurance to determine whether it
11 is feasible to transfer ownership of the
12 Workers' Compensation Integrated System to the
13 Department of Insurance; providing for the
14 continuation of contracts or agreements of the
15 Department of Labor and Employment Security;
16 providing for a successor department, agency,
17 or entity to be substituted for the Department
18 of Labor and Employment Security as a party in
19 interest in pending proceedings; exempting
20 specified state agencies, on a temporary basis,
21 from provisions relating to procurement of
22 property and services and leasing of space;
23 authorizing specified state agencies to develop
24 temporary emergency rules relating to the
25 implementation of the act; amending s. 20.13,
26 F.S.; establishing the Division of Workers'
27 Compensation within the Department of
28 Insurance; amending s. 20.50, F.S.; revising
29 provisions relating to the Agency for Workforce
30 Innovation to conform; revising
31 responsibilities of certain offices within the
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 agency; specifying that the Unemployment
2 Appeals Commission is not subject to the
3 agency; amending ss. 110.205, 112.19, 112.191,
4 121.125, 122.03, 238.06, 440.015, F.S., to
5 conform; amending s. 440.02, F.S.; providing a
6 definition for the term "agency"; conforming
7 definitions of "department" and "division" to
8 the transfer of the Division of Workers'
9 Compensation; amending ss. 440.021, 440.05,
10 440.09, 440.10, 440.102, 440.103, 440.104,
11 440.105, 440.106, 440.107, 440.108, 440.12,
12 440.125, F.S.; conforming provisions to reflect
13 the transfer of the Division of Workers'
14 Compensation; amending s. 440.13, F.S.,
15 relating to medical services and supplies under
16 the workers' compensation law; reassigning
17 certain functions from the Division of Workers'
18 Compensation to the Agency for Health Care
19 Administration; conforming agency references to
20 reflect the transfer of the Division of
21 Workers' Compensation; amending ss. 440.134,
22 440.14, F.S.; conforming provisions to changes
23 made by the act; amending s. 440.15, F.S.;
24 providing for the agency to specify certain
25 forms and procedures governing wage loss and
26 impairment benefits; conforming a cross
27 reference; amending ss. 440.185, 440.191,
28 440.192, 440.1925, F.S.; conforming provisions
29 to changes made by the act; amending ss.
30 440.20, 440.207, 440.211, F.S., relating to
31 payment of compensation; conforming provisions
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 to changes made by the act; amending s. 440.24,
2 F.S.; providing for the sale of securities on
3 deposit to satisfy a compensation order;
4 amending ss. 440.25, 440.271, F.S., relating to
5 mediation, hearings, and appeals; conforming
6 provisions to changes made by the act; amending
7 ss. 440.345, 440.35, F.S., relating to the
8 reporting of attorney's fees and employer
9 records of injury or death; conforming
10 provisions to changes made by the act; amending
11 ss. 440.38, 440.381, 440.385, F.S., relating to
12 security for compensation by insurance carriers
13 and self-insurers, audits of payroll and
14 classifications, and the creation, board of
15 directors, powers and duties, insolvency fund,
16 and plan of operation for the Florida
17 Self-Insurance Guaranty Association; conforming
18 provisions to reflect the transfer of the
19 Division of Workers' Compensation; amending ss.
20 440.40, 440.41, 440.42, F.S., relating to
21 employers posting notice of compensation,
22 substitution of carriers for employers with
23 respect to notice and the effect of an order,
24 and expiration of insurance policies, to
25 conform; amending s. 440.44, F.S., relating to
26 the administration of the Workers' Compensation
27 Law; conforming provisions to reflect the
28 transfer of the Division of Workers'
29 Compensation; amending s. 440.45, F.S.,
30 relating to the Office of the Judges of
31 Compensation Claims; clarifying the
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 responsibilities of the director of the
2 Division of Administrative Hearings as agency
3 head of the Office of the Judges of
4 Compensation Claims; amending s. 440.49, F.S.,
5 relating to the Special Disability Trust Fund;
6 conforming provisions to reflect the transfer
7 of the Division of Workers' Compensation;
8 reassigning responsibility for a report on the
9 Special Disability Trust Fund to the Department
10 of Insurance; amending s. 440.491, F.S.,
11 relating to the reemployment of injured
12 workers; conforming provisions to the transfer
13 of rehabilitation and reemployment services to
14 the Department of Education; amending ss.
15 440.50, 440.51, 440.52, F.S., relating to the
16 Workers' Compensation Administration Trust
17 Fund, expenses of administration, and certain
18 responsibilities of insurance carriers;
19 conforming references to reflect the transfer
20 of the Division of Workers' Compensation;
21 amending s. 440.525, F.S., relating to the
22 examination of carriers; conforming agency
23 references to the transfer of programs from the
24 Department of Labor and Employment Security to
25 the Department of Insurance; amending s.
26 440.572, F.S., to conform; amending s. 440.59,
27 F.S., relating to division reporting
28 requirements; eliminating unnecessary reporting
29 requirements; amending ss. 440.591, 440.593,
30 F.S., relating to authorization to self-insure,
31 reporting requirements, and rulemaking
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 authority; conforming provisions to changes
2 made by the act; amending s. 443.012, F.S.;
3 providing for the Unemployment Appeals
4 Commission to be created within the Agency for
5 Workforce Innovation rather than the Department
6 of Labor and Employment Security; conforming
7 provisions; amending s. 443.036, F.S.;
8 conforming the definition of "commission" to
9 the transfer of the Unemployment Appeals
10 Commission to the Agency for Workforce
11 Innovation; amending s. 447.02, F.S.;
12 conforming the definition of "department" to
13 the transfer of the regulation of labor
14 organizations to the Department of Business and
15 Professional Regulation; amending s. 447.305,
16 F.S.; providing that notification of
17 registrations and renewals of registration
18 shall be furnished to the Department of
19 Business and Professional Regulation, to
20 conform; amending s. 450.012, F.S.; conforming
21 the definition of "department" to the transfer
22 of the regulation of child labor to the
23 Department of Business and Professional
24 Regulation; amending s. 450.191, F.S., relating
25 to the duties of the Executive Office of the
26 Governor with respect to migrant labor;
27 conforming provisions to changes made by the
28 act; amending s. 450.28, F.S.; conforming the
29 definition of "department" to the transfer of
30 the regulation of farm labor to the Department
31 of Business and Professional Regulation;
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 amending s. 624.3161, F.S., relating to
2 insurance market conduct examinations;
3 conforming provisions to changes made by the
4 act; amending s. 626.88, F.S., relating to
5 self-insurance definitions; conforming
6 provisions to changes made by the act; amending
7 s. 626.989, F.S., relating to Division of
8 Insurance Fraud reporting requirements;
9 conforming provisions to changes made by the
10 act and establishing reporting deadlines;
11 amending s. 627.0915, F.S.; conforming
12 departmental references to changes made by the
13 act; amending s. 627.914, F.S., relating to
14 reporting requirements by self-insurers;
15 conforming provisions to changes made by the
16 act; repealing s. 20.171, F.S., relating to the
17 establishment and the authority and
18 organizational structure of the Department of
19 Labor and Employment Security; repealing s.
20 440.4416, F.S., relating to the Workers'
21 Compensation Oversight Board; providing for
22 severability; providing effective dates.
23
24 Be It Enacted by the Legislature of the State of Florida:
25
26 Section 1. (1) All powers, duties, functions, rules,
27 records, personnel, property, and unexpended balances of
28 appropriations, allocations, and other funds of the Division
29 of Workers' Compensation are transferred by a type two
30 transfer, as defined in section 20.06(2), Florida Statutes,
31 from the Department of Labor and Employment Security to the
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 Department of Insurance, except as otherwise provided in this
2 subsection, as follows: the full-time equivalent positions,
3 and the associated funding for salaries, benefits, other
4 capital outlay, and expenses related to oversight of medical
5 services in workers' compensation provider relations, dispute
6 and complaint resolution, program evaluation, data management,
7 and review of carrier medical bill payments, are transferred
8 by a type two transfer, as defined in section 20.06(2),
9 Florida Statutes, from the Department of Labor and Employment
10 Security to the Agency for Health Care Administration; the
11 full-time equivalent positions, and the associated funding for
12 salaries, benefits, other capital outlay, and expenses related
13 to the rehabilitation and reemployment of injured workers are
14 transferred by a type two transfer, as defined in section
15 20.06(2), Florida Statutes, from the Department of Labor and
16 Employment Security to the Department of Education; and the
17 full-time equivalent positions, and the associated funding for
18 salaries, benefits, other capital outlay, and expenses related
19 to the administration of child labor laws under chapter 450,
20 Florida Statutes, are transferred by a type two transfer, as
21 defined in section 20.06(2), Florida Statutes, from the
22 Department of Labor and Employment Security to the Department
23 of Business and Professional Regulation. To the extent
24 feasible, the positions transferred to the Department of
25 Insurance will be reclassified to pay grades comparable to the
26 positions established by the Department of Labor and
27 Employment Security, based on the classification codes and
28 specifications of the positions for work to be performed at
29 the Department of Insurance. The number of positions the
30 department establishes may not exceed the number of authorized
31 positions and the salary and benefits that were authorized for
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 the Division of Workers' Compensation within the Department of
2 Labor and Employment Security prior to the transfer. The
3 Department of Insurance is further authorized to reassign,
4 reorganize, reclassify, or otherwise transfer positions to
5 appropriate administrative subdivisions within the department
6 and to establish such regional offices as are necessary to
7 properly enforce and administer its responsibilities under the
8 Florida Insurance Code and chapter 440, Florida Statutes. The
9 department may also enter into contracts with public or
10 private entities to administer its duties and responsibilities
11 associated with the transfer of the Division of Workers'
12 Compensation.
13 (2) All powers, duties, functions, rules, records,
14 personnel, property, and unexpended balances of
15 appropriations, allocations, and other funds of the Office of
16 the Secretary and the Office of Administrative Services of the
17 Department of Labor and Employment Security related to the
18 regulation of labor organizations under chapter 447, Florida
19 Statutes, and the administration of migrant labor and farm
20 labor laws under chapter 450, Florida Statutes, are
21 transferred by a type two transfer, as defined in section
22 20.06(2), Florida Statutes, from the Department of Labor and
23 Employment Security to the Department of Business and
24 Professional Regulation.
25 (3) Any other powers, duties, functions, rules,
26 records, property, and unexpended balances of appropriations,
27 allocations, and other funds of the Department of Labor and
28 Employment Security not otherwise transferred by this act
29 relating to workplace regulation and enforcement, including,
30 but not limited to, those under chapter 448, Florida Statutes,
31 are transferred by a type two transfer, as defined in section
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 20.06(2), Florida Statutes, from the Department of Labor and
2 Employment Security to the Department of Business and
3 Professional Regulation. The Department of Business and
4 Professional Regulation is authorized to reassign, reorganize,
5 reclassify, or otherwise transfer positions to appropriate
6 administrative subdivisions within the department to
7 accomplish its workplace regulation responsibilities.
8 (4) All powers, duties, functions, rules, records,
9 personnel, property, and unexpended balances of
10 appropriations, allocations, and other funds of the
11 Unemployment Appeals Commission relating to the commission's
12 specified authority, powers, duties, and responsibilities are
13 transferred by a type two transfer, as defined in section
14 20.06(2), Florida Statutes, to the Agency for Workforce
15 Innovation.
16 (5) The Office of Information Systems is transferred
17 by a type two transfer, as defined in s. 20.06(2), Florida
18 Statutes, from the Department of Labor and Employment Security
19 to the State Technology Office. Upon completion of this
20 transfer, the State Technology Office and the Department of
21 Insurance shall enter into discussions to determine whether it
22 would be technologically feasible and cost effective to
23 separate the workers' compensation related systems and
24 transfer ownership of these systems to the Department of
25 Insurance. If the Department of Insurance determines that it
26 would be technologically feasible and cost effective to
27 transfer ownership of the workers' compensation related
28 systems from the State Technology Office to the Department of
29 Insurance, the Department of Insurance shall submit a transfer
30 plan and budget amendment requesting the transfer of these
31
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 systems. The transfer plan and budget amendment must be
2 approved by the Legislative Budget Commission.
3 (6)(a) The records, property, and unexpended balances
4 of appropriations, allocations, and other funds and resources
5 of the Office of the Secretary and the Office of
6 Administrative Services of the Department of Labor and
7 Employment Security which support the activities and functions
8 transferred under subsection (1) to the Department of
9 Insurance are transferred as provided in section 20.06(2),
10 Florida Statutes, to the Department of Insurance.
11 (b) The records, property, and unexpended balances of
12 appropriations, allocations, and other funds and resources of
13 the Office of the Secretary and the Office of Administrative
14 Services of the Department of Labor and Employment Security
15 which support the activities and functions transferred under
16 subsection (1) to the Agency for Health Care Administration
17 are transferred as provided in section 20.06(2), Florida
18 Statutes, to the Agency for Health Care Administration.
19 (c) The records, property, and unexpended balances of
20 appropriations, allocations, and other funds and resources of
21 the Office of the Secretary and the Office of Administrative
22 Services of the Department of Labor and Employment Security
23 which support the activities and functions transferred under
24 subsection (1) to the Department of Education are transferred
25 as provided in section 20.06(2), Florida Statutes, to the
26 Department of Education.
27 (d) The records, property, and unexpended balances of
28 appropriations, allocations, and other funds and resources of
29 the Office of the Secretary and the Office of Administrative
30 Services of the Department of Labor and Employment Security
31 which support the activities and functions transferred under
11
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 subsections (1), (2), and (3) to the Department of Business
2 and Professional Regulation are transferred as provided in
3 section 20.06(2), Florida Statutes, to the Department of
4 Business and Professional Regulation.
5 (e) The records, property, and unexpended balances of
6 appropriations, allocations, and other funds and resources of
7 the Office of the Secretary and the Office of Administrative
8 Services of the Department of Labor and Employment Security
9 which support the activities and functions transferred under
10 subsection (4) to the Agency for Workforce Innovation are
11 transferred as provided in section 20.06(2), Florida Statutes,
12 to the Agency for Workforce Innovation.
13 (f) The records, property, and unexpended balances of
14 appropriations, allocations, and other funds and resources of
15 the Office of the Secretary and the Office of Administrative
16 Services of the Department of Labor and Employment Security
17 which support the activities and functions transferred under
18 subsection (5) to the State Technology Office are transferred
19 as provided in section 20.06(2), Florida Statutes, to the
20 State Technology Office.
21 (7) The Department of Management Services shall become
22 the custodian of any property of the Department of Labor and
23 Employment Security which is not otherwise transferred for the
24 purposes of chapter 273, Florida Statutes. The Department of
25 Management Services is authorized to permit the use of such
26 property by organizations as necessary to implement the
27 provisions of this act.
28 (8) Any binding contract or interagency agreement
29 existing on or before July 1, 2002, between the Department of
30 Labor and Employment Security, or an entity or agent of the
31 department, and any other agency, entity, or person shall
12
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 continue as a binding contract or agreement for the remainder
2 of the term of such contract or agreement with the successor
3 department, agency, or entity responsible for the program,
4 activity, or functions relative to the contract or agreement.
5 (9) This act does not affect the validity of any
6 judicial or administrative proceeding involving the Department
7 of Labor and Employment Security which is pending as of the
8 effective date of any transfer under this act. The successor
9 department, agency, or entity responsible for the program,
10 activity, or function relative to the proceeding shall be
11 substituted, as of the effective date of the applicable
12 transfer under this act, for the Department of Labor and
13 Employment Security as a party in interest in any such
14 proceedings.
15 (10) So that the farm labor, child labor, and
16 workplace regulation programs may be fully integrated into the
17 mission of the Department of Business and Professional
18 Regulation in an effective manner, notwithstanding the
19 provisions of sections 216.292 and 216.351, Florida Statutes,
20 upon this act becoming a law the Department of Business and
21 Professional Regulation is authorized to transfer resources
22 between services and make revisions to the authorized budget
23 as necessary to reengineer business processes for the purpose
24 of reducing costs and increasing program efficiencies. These
25 actions are subject to the review and approval provisions in
26 section 216.172, Florida Statutes.
27 Section 2. Paragraph (k) is added to subsection (2) of
28 section 20.13, Florida Statutes, to read:
29 20.13 Department of Insurance.--There is created a
30 Department of Insurance.
31
13
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (2) The following divisions of the Department of
2 Insurance are established:
3 (k) Division of Workers' Compensation.
4 Section 3. Subsections (2) and (3) of section 20.50,
5 Florida Statutes, are amended to read:
6 20.50 Agency for Workforce Innovation.--There is
7 created the Agency for Workforce Innovation within the
8 Department of Management Services. The agency shall be a
9 separate budget entity, and the director of the agency shall
10 be the agency head for all purposes. The agency shall not be
11 subject to control, supervision, or direction by the
12 Department of Management Services in any manner, including,
13 but not limited to, personnel, purchasing, transactions
14 involving real or personal property, and budgetary matters.
15 (2) The Agency for Workforce Innovation shall be the
16 designated administrative agency for receipt of federal
17 workforce development grants and other federal funds, and
18 shall carry out the duties and responsibilities assigned by
19 the Governor under each federal grant assigned to the agency.
20 The agency shall be a separate budget entity and shall expend
21 each revenue source as provided by federal and state law and
22 as provided in plans developed by and agreements with
23 Workforce Florida, Inc. The agency shall prepare and submit as
24 a separate budget entity a unified budget request for
25 workforce development, in accordance with chapter 216 for, and
26 in conjunction with, Workforce Florida, Inc., and its board.
27 The head of the agency is the director of Workforce
28 Innovation, who shall be appointed by the Governor.
29 Accountability and reporting functions of the agency shall be
30 administered by the director or his or her designee. Included
31 in these functions are budget management, financial
14
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 management, audit, performance management standards and
2 controls, assessing outcomes of service delivery, and
3 financial administration of workforce programs pursuant to s.
4 445.004(5) and (9). Within the agency's overall organizational
5 structure, the agency shall include the following offices
6 which shall have the specified responsibilities:
7 (a) The Office of Workforce Services shall administer
8 state merit system program staff within the unemployment
9 compensation program, the Rapid Response program, the Work
10 Opportunity Tax Credit program, the Alien Labor Certification
11 program, and any other programs that are delivered directly by
12 agency staff rather than through the one-stop workforce
13 service delivery system, pursuant to policies of Workforce
14 Florida, Inc. The office shall be responsible for delivering
15 services through the one-stop delivery system and for ensuring
16 that participants in welfare transition programs receive case
17 management services, diversion assistance, support services,
18 including subsidized child care and transportation services,
19 Medicaid services, and transition assistance to enable them to
20 succeed in the workforce. The office shall be directed by the
21 Deputy Director for Workforce Services, who shall be appointed
22 by and serve at the pleasure of the director.
23 (b) The Office of Program Support Workforce Investment
24 and Accountability shall administer state merit system program
25 staff within the workforce service delivery system, pursuant
26 to policies of Workforce Florida, Inc. The office shall be
27 responsible for delivering services through the one-stop
28 delivery system and for ensuring that participants in welfare
29 transition programs receive case management services,
30 diversion assistance, support services, including subsidized
31 child care and transportation services, Medicaid services, and
15
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 transition assistance to enable them to succeed in the
2 workforce. The office shall also be responsible for program
3 quality assurance, grants and contract management procurement,
4 contracting, financial management, accounting, audits, and
5 reporting verification. The office shall be directed by the
6 Deputy Director for Program Support Workforce Investment and
7 Accountability, who shall be appointed by and serve at the
8 pleasure of the director. The office shall be responsible
9 for:
10 1. Establishing standards and controls for reporting
11 budgeting, expenditure, and performance information for
12 assessing outcomes, service delivery, and financial
13 administration of workforce programs pursuant to s. 445.004(5)
14 and (9).
15 1.2. Establishing monitoring, quality assurance, and
16 quality improvement systems that routinely assess the quality
17 and effectiveness of contracted programs and services.
18 2.3. Annual review of each regional workforce board
19 and administrative entity to ensure adequate systems of
20 reporting and control are in place, and monitoring, quality
21 assurance, and quality improvement activities are conducted
22 routinely, and corrective action is taken to eliminate
23 deficiencies.
24 (c) The Office of Agency Support Workforce Information
25 Services shall be responsible for procurement, human resource
26 services, and information services including delivering
27 deliver information on labor markets, employment, occupations,
28 and performance, and shall implement and maintain information
29 systems that are required for the effective operation of the
30 one-stop delivery system and the school readiness services
31 system, including, but not limited to, those systems described
16
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 in s. 445.009. The office will be under the direction of the
2 Deputy Director for Agency Support Workforce Information
3 Services, who shall be appointed by and serve at the pleasure
4 of the director. The office shall be responsible for
5 establishing:
6 1. Information systems and controls that report
7 reliable, timely and accurate fiscal and performance data for
8 assessing outcomes, service delivery, and financial
9 administration of workforce programs pursuant to s. 445.004(5)
10 and (9).
11 2. Information systems that support service
12 integration and case management by providing for case tracking
13 for participants in welfare transition programs.
14 3. Information systems that support school readiness
15 services.
16 (d) The Unemployment Appeals Commission, authorized by
17 s. 443.012, shall not be subject to the control, supervision,
18 or direction by the Agency for Workforce Innovation in the
19 performance of its powers and duties but shall receive any and
20 all support and assistance from the agency that may be
21 required for the performance of its duties.
22 (3) The Agency for Workforce Innovation shall serve as
23 the designated agency for purposes of each federal workforce
24 development grant assigned to it for administration. The
25 agency shall carry out the duties assigned to it by the
26 Governor, under the terms and conditions of each grant. The
27 agency shall have the level of authority and autonomy
28 necessary to be the designated recipient of each federal grant
29 assigned to it, and shall disperse such grants pursuant to the
30 plans and policies of Workforce Florida, Inc. The director
31 may, upon delegation from the Governor and pursuant to
17
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 agreement with Workforce Florida, Inc., sign contracts,
2 grants, and other instruments as necessary to execute
3 functions assigned to the agency. Notwithstanding other
4 provisions of law, the following federal grants and other
5 funds are assigned for administration to the Agency for
6 Workforce Innovation:
7 (a) Programs authorized under Title I of the Workforce
8 Investment Act of 1998, Pub. L. No. 105-220, except for
9 programs funded directly by the United States Department of
10 Labor under Title I, s. 167.
11 (b) Programs authorized under the Wagner-Peyser Act of
12 1933, as amended, 29 U.S.C. ss. 49 et seq.
13 (c) Welfare-to-work grants administered by the United
14 States Department of Labor under Title IV, s. 403, of the
15 Social Security Act, as amended.
16 (d) Activities authorized under Title II of the Trade
17 Act of 1974, as amended, 2 U.S.C. ss. 2271 et seq., and the
18 Trade Adjustment Assistance Program.
19 (e) Activities authorized under chapter 41 of Title 38
20 U.S.C., including job counseling, training, and placement for
21 veterans.
22 (f) Employment and training activities carried out
23 under the Community Services Block Grant Act, 42 U.S.C. ss.
24 9901 et seq.
25 (g) Employment and training activities carried out
26 under funds awarded to this state by the United States
27 Department of Housing and Urban Development.
28 (h) Designated state and local program expenditures
29 under part A of Title IV of the Social Security Act for
30 welfare transition workforce services associated with the
31 Temporary Assistance for Needy Families Program.
18
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (i) Programs authorized under the National and
2 Community Service Act of 1990, 42 U.S.C. ss. 12501 et seq.,
3 and the Service-America programs, the National Service Trust
4 programs, the Civilian Community Corps, the Corporation for
5 National and Community Service, the American Conservation and
6 Youth Service Corps, and the Points of Light Foundation
7 programs, if such programs are awarded to the state.
8 (j) The Unemployment Compensation program provided
9 pursuant to chapter 443.
10 (k)(j) Other programs funded by federal or state
11 appropriations, as determined by the Legislature in the
12 General Appropriations Act or by law.
13 Section 4. Paragraph (m) of subsection (2) of section
14 110.205, Florida Statutes, is amended to read:
15 110.205 Career service; exemptions.--
16 (2) EXEMPT POSITIONS.--The exempt positions that are
17 not covered by this part include the following:
18 (m) All assistant division director, deputy division
19 director, and bureau chief positions in any department, and
20 those positions determined by the department to have
21 managerial responsibilities comparable to such positions,
22 which positions include, but are not limited to, positions in
23 the Department of Health, the Department of Children and
24 Family Services, and the Department of Corrections that are
25 assigned primary duties of serving as the superintendent or
26 assistant superintendent, or warden or assistant warden, of an
27 institution; positions in the Department of Corrections that
28 are assigned primary duties of serving as the circuit
29 administrator or deputy circuit administrator; positions in
30 the Department of Transportation that are assigned primary
31 duties of serving as regional toll managers and managers of
19
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 offices as defined in s. 20.23(3)(d)3. and (4)(d); positions
2 in the Department of Environmental Protection that are
3 assigned the duty of an Environmental Administrator or program
4 administrator; those positions described in s. 20.171 as
5 included in the Senior Management Service; and positions in
6 the Department of Health that are assigned the duties of
7 Environmental Administrator, Assistant County Health
8 Department Director, and County Health Department Financial
9 Administrator. Unless otherwise fixed by law, the department
10 shall set the salary and benefits of these positions in
11 accordance with the rules established for the Selected Exempt
12 Service.
13 Section 5. Paragraph (h) of subsection (2) of section
14 112.19, Florida Statutes, is amended to read:
15 112.19 Law enforcement, correctional, and correctional
16 probation officers; death benefits.--
17 (2)
18 (h)1. Any employer who employs a full-time law
19 enforcement, correctional, or correctional probation officer
20 who, on or after January 1, 1995, suffers a catastrophic
21 injury, as defined in s. 440.02 s. 440.02(37), in the line of
22 duty shall pay the entire premium of the employer's health
23 insurance plan for the injured employee, the injured
24 employee's spouse, and for each dependent child of the injured
25 employee until the child reaches the age of majority or until
26 the end of the calendar year in which the child reaches the
27 age of 25 if the child continues to be dependent for support,
28 or the child is a full-time or part-time student and is
29 dependent for support. The term "health insurance plan" does
30 not include supplemental benefits that are not part of the
31 basic group health insurance plan. If the injured employee
20
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 subsequently dies, the employer shall continue to pay the
2 entire health insurance premium for the surviving spouse until
3 remarried, and for the dependent children, under the
4 conditions outlined in this paragraph. However:
5 a. Health insurance benefits payable from any other
6 source shall reduce benefits payable under this section.
7 b. It is unlawful for a person to willfully and
8 knowingly make, or cause to be made, or to assist, conspire
9 with, or urge another to make, or cause to be made, any false,
10 fraudulent, or misleading oral or written statement to obtain
11 health insurance coverage as provided under this paragraph. A
12 person who violates this sub-subparagraph commits a
13 misdemeanor of the first degree, punishable as provided in s.
14 775.082 or s. 775.083.
15 c. In addition to any applicable criminal penalty,
16 upon conviction for a violation as described in
17 sub-subparagraph b., a law enforcement, correctional, or
18 correctional probation officer or other beneficiary who
19 receives or seeks to receive health insurance benefits under
20 this paragraph shall forfeit the right to receive such health
21 insurance benefits, and shall reimburse the employer for all
22 benefits paid due to the fraud or other prohibited activity.
23 For purposes of this sub-subparagraph, "conviction" means a
24 determination of guilt that is the result of a plea or trial,
25 regardless of whether adjudication is withheld.
26 2. In order for the officer, spouse, and dependent
27 children to be eligible for such insurance coverage, the
28 injury must have occurred as the result of the officer's
29 response to fresh pursuit, the officer's response to what is
30 reasonably believed to be an emergency, or an unlawful act
31 perpetrated by another. Except as otherwise provided herein,
21
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 nothing in this paragraph shall be construed to limit health
2 insurance coverage for which the officer, spouse, or dependent
3 children may otherwise be eligible, except that a person who
4 qualifies under this section shall not be eligible for the
5 health insurance subsidy provided under chapter 121, chapter
6 175, or chapter 185.
7 Section 6. Paragraph (g) of subsection (2) of section
8 112.191, Florida Statutes, is amended to read:
9 112.191 Firefighters; death benefits.--
10 (2)
11 (g)1. Any employer who employs a full-time firefighter
12 who, on or after January 1, 1995, suffers a catastrophic
13 injury, as defined in s. 440.02 s. 440.02(37), in the line of
14 duty shall pay the entire premium of the employer's health
15 insurance plan for the injured employee, the injured
16 employee's spouse, and for each dependent child of the injured
17 employee until the child reaches the age of majority or until
18 the end of the calendar year in which the child reaches the
19 age of 25 if the child continues to be dependent for support,
20 or the child is a full-time or part-time student and is
21 dependent for support. The term "health insurance plan" does
22 not include supplemental benefits that are not part of the
23 basic group health insurance plan. If the injured employee
24 subsequently dies, the employer shall continue to pay the
25 entire health insurance premium for the surviving spouse until
26 remarried, and for the dependent children, under the
27 conditions outlined in this paragraph. However:
28 a. Health insurance benefits payable from any other
29 source shall reduce benefits payable under this section.
30 b. It is unlawful for a person to willfully and
31 knowingly make, or cause to be made, or to assist, conspire
22
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 with, or urge another to make, or cause to be made, any false,
2 fraudulent, or misleading oral or written statement to obtain
3 health insurance coverage as provided under this paragraph. A
4 person who violates this sub-subparagraph commits a
5 misdemeanor of the first degree, punishable as provided in s.
6 775.082 or s. 775.083.
7 c. In addition to any applicable criminal penalty,
8 upon conviction for a violation as described in
9 sub-subparagraph b., a firefighter or other beneficiary who
10 receives or seeks to receive health insurance benefits under
11 this paragraph shall forfeit the right to receive such health
12 insurance benefits, and shall reimburse the employer for all
13 benefits paid due to the fraud or other prohibited activity.
14 For purposes of this sub-subparagraph, "conviction" means a
15 determination of guilt that is the result of a plea or trial,
16 regardless of whether adjudication is withheld.
17 2. In order for the firefighter, spouse, and dependent
18 children to be eligible for such insurance coverage, the
19 injury must have occurred as the result of the firefighter's
20 response to what is reasonably believed to be an emergency
21 involving the protection of life or property, or an unlawful
22 act perpetrated by another. Except as otherwise provided
23 herein, nothing in this paragraph shall be construed to limit
24 health insurance coverage for which the firefighter, spouse,
25 or dependent children may otherwise be eligible, except that a
26 person who qualifies for benefits under this section shall not
27 be eligible for the health insurance subsidy provided under
28 chapter 121, chapter 175, or chapter 185.
29
30 Notwithstanding any provision of this section to the contrary,
31 the death benefits provided in paragraphs (b), (c), and (f)
23
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 shall also be applicable and paid in cases where a firefighter
2 received bodily injury prior to July 1, 1993, and subsequently
3 died on or after July 1, 1993, as a result of such
4 in-line-of-duty injury.
5 Section 7. Section 121.125, Florida Statutes, is
6 amended to read:
7 121.125 Credit for workers' compensation payment
8 periods.--A member of the retirement system created by this
9 chapter who has been eligible or becomes eligible to receive
10 workers' compensation payments for an injury or illness
11 occurring during his or her employment while a member of any
12 state retirement system shall, upon return to active
13 employment with a covered employer for 1 calendar month or
14 upon approval for disability retirement in accordance with s.
15 121.091(4), receive full retirement credit for the period
16 prior to such return to active employment or disability
17 retirement for which the workers' compensation payments were
18 received. However, no member may receive retirement credit
19 for any such period occurring after the earlier of the date of
20 maximum medical improvement has been attained as defined in s.
21 440.02 s. 440.02(9) or the date termination has occurred as
22 defined in s. 121.021(39). The employer of record at the time
23 of the worker's compensation injury or illness shall make the
24 required retirement contributions based on the member's rate
25 of monthly compensation immediately prior to his or her
26 receiving workers' compensation payments for retirement credit
27 received by the member.
28 Section 8. Subsection (7) of section 122.03, Florida
29 Statutes, is amended to read:
30 122.03 Contributions; participants; prior service
31 credit.--
24
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (7) A member of the retirement system created by this
2 chapter who has been eligible or becomes eligible to receive
3 workers' compensation payments for an injury or illness
4 occurring during his or her employment while a member of any
5 state retirement system shall, upon his or her return to
6 active employment with a covered employer for 1 calendar month
7 or upon his or her approval for disability retirement in
8 accordance with s. 122.09, receive full retirement credit for
9 the period prior to such return to active employment or
10 disability retirement for which the workers' compensation
11 payments were received. However, no member may receive
12 retirement credit for any such period occurring after the
13 earlier of the date of maximum medical improvement has been
14 attained as defined in s. 440.02 s. 440.02(9) or the date
15 termination has occurred as defined in s. 121.021(39). The
16 employer of record at the time of the worker's compensation
17 injury or illness shall make the required employee and
18 employer retirement contributions based on the member's rate
19 of monthly compensation immediately prior to receipt of
20 workers' compensation payments.
21 Section 9. Subsection (10) of section 238.06, Florida
22 Statutes, is amended to read:
23 238.06 Membership application, creditable service, and
24 time for making contributions.--
25 (10) A member of the retirement system created by this
26 chapter who has been eligible or becomes eligible to receive
27 workers' compensation payments for an injury or illness
28 occurring during his or her employment while a member of any
29 state retirement system shall, upon his or her return to
30 active employment with a covered employer for 1 calendar month
31 or upon his or her approval for disability retirement in
25
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 accordance with s. 238.07, receive full retirement credit for
2 the period prior to such return to active employment or
3 disability retirement for which the workers' compensation
4 payments were received. However, no member may receive
5 retirement credit for any such period occurring after the
6 earlier of the date of maximum medical improvement has been
7 attained as defined in s. 440.02 s. 440.02(9) or the date
8 termination has occurred as defined in s. 121.021(39). The
9 employer of record at the time of the worker's compensation
10 injury or illness shall make the required employee and
11 employer retirement contributions based on the member's rate
12 of monthly compensation immediately
13 Section 10. Section 440.015, Florida Statutes, is
14 amended to read:
15 440.015 Legislative intent.--It is the intent of the
16 Legislature that the Workers' Compensation Law be interpreted
17 so as to assure the quick and efficient delivery of disability
18 and medical benefits to an injured worker and to facilitate
19 the worker's return to gainful reemployment at a reasonable
20 cost to the employer. It is the specific intent of the
21 Legislature that workers' compensation cases shall be decided
22 on their merits. The workers' compensation system in Florida
23 is based on a mutual renunciation of common-law rights and
24 defenses by employers and employees alike. In addition, it is
25 the intent of the Legislature that the facts in a workers'
26 compensation case are not to be interpreted liberally in favor
27 of either the rights of the injured worker or the rights of
28 the employer. Additionally, the Legislature hereby declares
29 that disputes concerning the facts in workers' compensation
30 cases are not to be given a broad liberal construction in
31 favor of the employee on the one hand or of the employer on
26
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 the other hand, and the laws pertaining to workers'
2 compensation are to be construed in accordance with the basic
3 principles of statutory construction and not liberally in
4 favor of either employee or employer. It is the intent of the
5 Legislature to ensure the prompt delivery of benefits to the
6 injured worker. Therefore, an efficient and self-executing
7 system must be created which is not an economic or
8 administrative burden. The department, agency, the Department
9 of Education, and the Division of Administrative Hearings
10 Division of Workers' Compensation shall administer the
11 Workers' Compensation Law in a manner which facilitates the
12 self-execution of the system and the process of ensuring a
13 prompt and cost-effective delivery of payments.
14 Section 11. Subsections (3) through (39) of section
15 440.02, Florida Statutes, are renumbered as subsections (4)
16 through (40), respectively, a new subsection (3) is added to
17 that section, and present subsections (11), (13), and (14) of
18 that section are amended, to read:
19 440.02 Definitions.--When used in this chapter, unless
20 the context clearly requires otherwise, the following terms
21 shall have the following meanings:
22 (3) "Agency" means the Agency for Health Care
23 Administration.
24 (12)(11) "Department" means the Department of
25 Insurance Labor and Employment Security.
26 (14)(13) "Division" means the Division of Workers'
27 Compensation of the Department of Insurance Labor and
28 Employment Security.
29 (15)(14)(a) "Employee" means any person engaged in any
30 employment under any appointment or contract of hire or
31 apprenticeship, express or implied, oral or written, whether
27
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 lawfully or unlawfully employed, and includes, but is not
2 limited to, aliens and minors.
3 (b) "Employee" includes any person who is an officer
4 of a corporation and who performs services for remuneration
5 for such corporation within this state, whether or not such
6 services are continuous.
7 1. Any officer of a corporation may elect to be exempt
8 from this chapter by filing written notice of the election
9 with the department division as provided in s. 440.05.
10 2. As to officers of a corporation who are actively
11 engaged in the construction industry, no more than three
12 officers may elect to be exempt from this chapter by filing
13 written notice of the election with the department division as
14 provided in s. 440.05.
15 3. An officer of a corporation who elects to be exempt
16 from this chapter by filing a written notice of the election
17 with the department division as provided in s. 440.05 is not
18 an employee.
19
20 Services are presumed to have been rendered to the corporation
21 if the officer is compensated by other than dividends upon
22 shares of stock of the corporation which the officer owns.
23 (c) "Employee" includes a sole proprietor or a partner
24 who devotes full time to the proprietorship or partnership
25 and, except as provided in this paragraph, elects to be
26 included in the definition of employee by filing notice
27 thereof as provided in s. 440.05. Partners or sole proprietors
28 actively engaged in the construction industry are considered
29 employees unless they elect to be excluded from the definition
30 of employee by filing written notice of the election with the
31 department division as provided in s. 440.05. However, no more
28
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 than three partners in a partnership that is actively engaged
2 in the construction industry may elect to be excluded. A sole
3 proprietor or partner who is actively engaged in the
4 construction industry and who elects to be exempt from this
5 chapter by filing a written notice of the election with the
6 department division as provided in s. 440.05 is not an
7 employee. For purposes of this chapter, an independent
8 contractor is an employee unless he or she meets all of the
9 conditions set forth in subparagraph (d)1.
10 (d) "Employee" does not include:
11 1. An independent contractor, if:
12 a. The independent contractor maintains a separate
13 business with his or her own work facility, truck, equipment,
14 materials, or similar accommodations;
15 b. The independent contractor holds or has applied for
16 a federal employer identification number, unless the
17 independent contractor is a sole proprietor who is not
18 required to obtain a federal employer identification number
19 under state or federal requirements;
20 c. The independent contractor performs or agrees to
21 perform specific services or work for specific amounts of
22 money and controls the means of performing the services or
23 work;
24 d. The independent contractor incurs the principal
25 expenses related to the service or work that he or she
26 performs or agrees to perform;
27 e. The independent contractor is responsible for the
28 satisfactory completion of work or services that he or she
29 performs or agrees to perform and is or could be held liable
30 for a failure to complete the work or services;
31
29
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 f. The independent contractor receives compensation
2 for work or services performed for a commission or on a
3 per-job or competitive-bid basis and not on any other basis;
4 g. The independent contractor may realize a profit or
5 suffer a loss in connection with performing work or services;
6 h. The independent contractor has continuing or
7 recurring business liabilities or obligations; and
8 i. The success or failure of the independent
9 contractor's business depends on the relationship of business
10 receipts to expenditures.
11
12 However, the determination as to whether an individual
13 included in the Standard Industrial Classification Manual of
14 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,
15 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,
16 2448, or 2449, or a newspaper delivery person, is an
17 independent contractor is governed not by the criteria in this
18 paragraph but by common-law principles, giving due
19 consideration to the business activity of the individual.
20 2. A real estate salesperson or agent, if that person
21 agrees, in writing, to perform for remuneration solely by way
22 of commission.
23 3. Bands, orchestras, and musical and theatrical
24 performers, including disk jockeys, performing in licensed
25 premises as defined in chapter 562, if a written contract
26 evidencing an independent contractor relationship is entered
27 into before the commencement of such entertainment.
28 4. An owner-operator of a motor vehicle who transports
29 property under a written contract with a motor carrier which
30 evidences a relationship by which the owner-operator assumes
31 the responsibility of an employer for the performance of the
30
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 contract, if the owner-operator is required to furnish the
2 necessary motor vehicle equipment and all costs incidental to
3 the performance of the contract, including, but not limited
4 to, fuel, taxes, licenses, repairs, and hired help; and the
5 owner-operator is paid a commission for transportation service
6 and is not paid by the hour or on some other time-measured
7 basis.
8 5. A person whose employment is both casual and not in
9 the course of the trade, business, profession, or occupation
10 of the employer.
11 6. A volunteer, except a volunteer worker for the
12 state or a county, municipality, or other governmental entity.
13 A person who does not receive monetary remuneration for
14 services is presumed to be a volunteer unless there is
15 substantial evidence that a valuable consideration was
16 intended by both employer and employee. For purposes of this
17 chapter, the term "volunteer" includes, but is not limited to:
18 a. Persons who serve in private nonprofit agencies and
19 who receive no compensation other than expenses in an amount
20 less than or equivalent to the standard mileage and per diem
21 expenses provided to salaried employees in the same agency or,
22 if such agency does not have salaried employees who receive
23 mileage and per diem, then such volunteers who receive no
24 compensation other than expenses in an amount less than or
25 equivalent to the customary mileage and per diem paid to
26 salaried workers in the community as determined by the
27 department division; and
28 b. Volunteers participating in federal programs
29 established under Pub. L. No. 93-113.
30 7. Any officer of a corporation who elects to be
31 exempt from this chapter.
31
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 8. A sole proprietor or officer of a corporation who
2 actively engages in the construction industry, and a partner
3 in a partnership that is actively engaged in the construction
4 industry, who elects to be exempt from the provisions of this
5 chapter. Such sole proprietor, officer, or partner is not an
6 employee for any reason until the notice of revocation of
7 election filed pursuant to s. 440.05 is effective.
8 9. An exercise rider who does not work for a single
9 horse farm or breeder, and who is compensated for riding on a
10 case-by-case basis, provided a written contract is entered
11 into prior to the commencement of such activity which
12 evidences that an employee/employer relationship does not
13 exist.
14 10. A taxicab, limousine, or other passenger
15 vehicle-for-hire driver who operates said vehicles pursuant to
16 a written agreement with a company which provides any
17 dispatch, marketing, insurance, communications, or other
18 services under which the driver and any fees or charges paid
19 by the driver to the company for such services are not
20 conditioned upon, or expressed as a proportion of, fare
21 revenues.
22 11. A person who performs services as a sports
23 official for an entity sponsoring an interscholastic sports
24 event or for a public entity or private, nonprofit
25 organization that sponsors an amateur sports event. For
26 purposes of this subparagraph, such a person is an independent
27 contractor. For purposes of this subparagraph, the term
28 "sports official" means any person who is a neutral
29 participant in a sports event, including, but not limited to,
30 umpires, referees, judges, linespersons, scorekeepers, or
31 timekeepers. This subparagraph does not apply to any person
32
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 employed by a district school board who serves as a sports
2 official as required by the employing school board or who
3 serves as a sports official as part of his or her
4 responsibilities during normal school hours.
5 Section 12. Section 440.021, Florida Statutes, is
6 amended to read:
7 440.021 Exemption of workers' compensation from
8 chapter 120.--Workers' compensation adjudications by judges of
9 compensation claims are exempt from chapter 120, and no judge
10 of compensation claims shall be considered an agency or a part
11 thereof. Communications of the result of investigations by the
12 department division pursuant to s. 440.185(4) are exempt from
13 chapter 120. In all instances in which the department division
14 institutes action to collect a penalty or interest which may
15 be due pursuant to this chapter, the penalty or interest shall
16 be assessed without hearing, and the party against which such
17 penalty or interest is assessed shall be given written notice
18 of such assessment and shall have the right to protest within
19 20 days of such notice. Upon receipt of a timely notice of
20 protest and after such investigation as may be necessary, the
21 department division shall, if it agrees with such protest,
22 notify the protesting party that the assessment has been
23 revoked. If the department division does not agree with the
24 protest, it shall refer the matter to the judge of
25 compensation claims for determination pursuant to s.
26 440.25(2)-(5). Such action of the department division is
27 exempt from the provisions of chapter 120.
28 Section 13. Section 440.05, Florida Statutes, is
29 amended to read:
30 440.05 Election of exemption; revocation of election;
31 notice; certification.--
33
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (1) Each corporate officer who elects not to accept
2 the provisions of this chapter or who, after electing such
3 exemption, revokes that exemption shall mail to the department
4 division in Tallahassee notice to such effect in accordance
5 with a form to be prescribed by the department division.
6 (2) Each sole proprietor or partner who elects to be
7 included in the definition of "employee" or who, after such
8 election, revokes that election must mail to the department
9 division in Tallahassee notice to such effect, in accordance
10 with a form to be prescribed by the department division.
11 (3) Each sole proprietor, partner, or officer of a
12 corporation who is actively engaged in the construction
13 industry and who elects an exemption from this chapter or who,
14 after electing such exemption, revokes that exemption, must
15 mail a written notice to such effect to the department
16 division on a form prescribed by the department division. The
17 notice of election to be exempt from the provisions of this
18 chapter must be notarized and under oath. The notice of
19 election to be exempt which is submitted to the department
20 division by the sole proprietor, partner, or officer of a
21 corporation must list the name, federal tax identification
22 number, social security number, all certified or registered
23 licenses issued pursuant to chapter 489 held by the person
24 seeking the exemption, a copy of relevant documentation as to
25 employment status filed with the Internal Revenue Service as
26 specified by the department division, a copy of the relevant
27 occupational license in the primary jurisdiction of the
28 business, and, for corporate officers and partners, the
29 registration number of the corporation or partnership filed
30 with the Division of Corporations of the Department of State.
31 The notice of election to be exempt must identify each sole
34
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 proprietorship, partnership, or corporation that employs the
2 person electing the exemption and must list the social
3 security number or federal tax identification number of each
4 such employer and the additional documentation required by
5 this section. In addition, the notice of election to be exempt
6 must provide that the sole proprietor, partner, or officer
7 electing an exemption is not entitled to benefits under this
8 chapter, must provide that the election does not exceed
9 exemption limits for officers and partnerships provided in s.
10 440.02, and must certify that any employees of the sole
11 proprietor, partner, or officer electing an exemption are
12 covered by workers' compensation insurance. Upon receipt of
13 the notice of the election to be exempt, receipt of all
14 application fees, and a determination by the department
15 division that the notice meets the requirements of this
16 subsection, the department division shall issue a
17 certification of the election to the sole proprietor, partner,
18 or officer, unless the department division determines that the
19 information contained in the notice is invalid. The department
20 division shall revoke a certificate of election to be exempt
21 from coverage upon a determination by the department division
22 that the person does not meet the requirements for exemption
23 or that the information contained in the notice of election to
24 be exempt is invalid. The certificate of election must list
25 the names of the sole proprietorship, partnership, or
26 corporation listed in the request for exemption. A new
27 certificate of election must be obtained each time the person
28 is employed by a new sole proprietorship, partnership, or
29 corporation that is not listed on the certificate of election.
30 A copy of the certificate of election must be sent to each
31 workers' compensation carrier identified in the request for
35
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 exemption. Upon filing a notice of revocation of election, a
2 sole proprietor, partner, or officer who is a subcontractor
3 must notify her or his contractor. Upon revocation of a
4 certificate of election of exemption by the department
5 division, the department division shall notify the workers'
6 compensation carriers identified in the request for exemption.
7 (4) The notice of election to be exempt from the
8 provisions of this chapter must contain a notice that clearly
9 states in substance the following: "Any person who, knowingly
10 and with intent to injure, defraud, or deceive the department
11 division or any employer or employee, insurance company, or
12 purposes program, files a notice of election to be exempt
13 containing any false or misleading information is guilty of a
14 felony of the third degree." Each person filing a notice of
15 election to be exempt shall personally sign the notice and
16 attest that he or she has reviewed, understands, and
17 acknowledges the foregoing notice.
18 (5) A notice given under subsection (1), subsection
19 (2), or subsection (3) shall become effective when issued by
20 the department division or 30 days after an application for an
21 exemption is received by the department division, whichever
22 occurs first. However, if an accident or occupational disease
23 occurs less than 30 days after the effective date of the
24 insurance policy under which the payment of compensation is
25 secured or the date the employer qualified as a self-insurer,
26 such notice is effective as of 12:01 a.m. of the day following
27 the date it is mailed to the department division in
28 Tallahassee.
29 (6) A construction industry certificate of election to
30 be exempt which is issued in accordance with this section
31 shall be valid for 2 years after the effective date stated
36
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 thereon. Both the effective date and the expiration date must
2 be listed on the face of the certificate by the department
3 division. The construction industry certificate must expire at
4 midnight, 2 years from its issue date, as noted on the face of
5 the exemption certificate. Any person who has received from
6 the division a construction industry certificate of election
7 to be exempt which is in effect on December 31, 1998, shall
8 file a new notice of election to be exempt by the last day in
9 his or her birth month following December 1, 1998. A
10 construction industry certificate of election to be exempt may
11 be revoked before its expiration by the sole proprietor,
12 partner, or officer for whom it was issued or by the
13 department division for the reasons stated in this section.
14 At least 60 days prior to the expiration date of a
15 construction industry certificate of exemption issued after
16 December 1, 1998, the department division shall send notice of
17 the expiration date and an application for renewal to the
18 certificateholder at the address on the certificate.
19 (7) Any contractor responsible for compensation under
20 s. 440.10 may register in writing with the workers'
21 compensation carrier for any subcontractor and shall
22 thereafter be entitled to receive written notice from the
23 carrier of any cancellation or nonrenewal of the policy.
24 (8)(a) The department division must assess a fee of
25 $50 with each request for a construction industry certificate
26 of election to be exempt or renewal of election to be exempt
27 under this section.
28 (b) The funds collected by the department division
29 shall be used to administer this section, to audit the
30 businesses that pay the fee for compliance with any
31
37
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 requirements of this chapter, and to enforce compliance with
2 the provisions of this chapter.
3 (9) The department division may by rule prescribe
4 forms and procedures for filing an election of exemption,
5 revocation of election to be exempt, and notice of election of
6 coverage for all employers and require specified forms to be
7 submitted by all employers in filing for the election of
8 exemption. The department division may by rule prescribe forms
9 and procedures for issuing a certificate of the election of
10 exemption.
11 Section 14. Paragraph (d) of subsection (7) of section
12 440.09, Florida Statutes, is amended to read:
13 440.09 Coverage.--
14 (7)
15 (d) The agency division shall provide by rule for the
16 authorization and regulation of drug-testing policies,
17 procedures, and methods. Testing of injured employees shall
18 not commence until such rules are adopted.
19 Section 15. Paragraphs (f) and (g) of subsection (1)
20 of section 440.10, Florida Statutes, are amended to read:
21 440.10 Liability for compensation.--
22 (1)
23 (f) If an employer willfully fails to secure
24 compensation as required by this chapter, the department
25 division may assess against the employer a penalty not to
26 exceed $5,000 for each employee of that employer who is
27 classified by the employer as an independent contractor but
28 who is found by the department division to not meet the
29 criteria for an independent contractor that are set forth in
30 s. 440.02.
31
38
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (g) For purposes of this section, a person is
2 conclusively presumed to be an independent contractor if:
3 1. The independent contractor provides the general
4 contractor with an affidavit stating that he or she meets all
5 the requirements of s. 440.02(14)(d); and
6 2. The independent contractor provides the general
7 contractor with a valid certificate of workers' compensation
8 insurance or a valid certificate of exemption issued by the
9 department division.
10
11 A sole proprietor, partner, or officer of a corporation who
12 elects exemption from this chapter by filing a certificate of
13 election under s. 440.05 may not recover benefits or
14 compensation under this chapter. An independent contractor
15 who provides the general contractor with both an affidavit
16 stating that he or she meets the requirements of s.
17 440.02(14)(d) and a certificate of exemption is not an
18 employee under s. 440.02(14)(c) and may not recover benefits
19 under this chapter. For purposes of determining the
20 appropriate premium for workers' compensation coverage,
21 carriers may not consider any person who meets the
22 requirements of this paragraph to be an employee.
23 Section 16. Subsection (2), paragraph (a) of
24 subsection (3), and paragraph (g) of subsection (7) of section
25 440.102, Florida Statutes, are amended to read:
26 440.102 Drug-free workplace program requirements.--The
27 following provisions apply to a drug-free workplace program
28 implemented pursuant to law or to rules adopted by the Agency
29 for Health Care Administration:
30 (2) DRUG TESTING.--An employer may test an employee or
31 job applicant for any drug described in paragraph (1)(c). In
39
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 order to qualify as having established a drug-free workplace
2 program which affords an employer the ability to qualify for
3 the discounts provided under s. 627.0915 and deny medical and
4 indemnity benefits, under this chapter all drug testing
5 conducted by employers shall be in conformity with the
6 standards and procedures established in this section and all
7 applicable rules adopted pursuant to this section. However, an
8 employer does not have a legal duty under this section to
9 request an employee or job applicant to undergo drug testing.
10 If an employer fails to maintain a drug-free workplace program
11 in accordance with the standards and procedures established in
12 this section and in applicable rules, the employer shall not
13 be eligible for discounts under s. 627.0915. All employers
14 qualifying for and receiving discounts provided under s.
15 627.0915 must be reported annually by the insurer to the
16 department division.
17 (3) NOTICE TO EMPLOYEES AND JOB APPLICANTS.--prior to
18 his or her receiving workers' compensation payments.
19 (a) One time only, prior to testing, an employer shall
20 give all employees and job applicants for employment a written
21 policy statement which contains:
22 1. A general statement of the employer's policy on
23 employee drug use, which must identify:
24 a. The types of drug testing an employee or job
25 applicant may be required to submit to, including
26 reasonable-suspicion drug testing or drug testing conducted on
27 any other basis.
28 b. The actions the employer may take against an
29 employee or job applicant on the basis of a positive confirmed
30 drug test result.
31
40
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
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
41
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
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 Labor and Employment Security. If applicable, random drug
42
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 testing must be specified in a collective bargaining agreement
2 as negotiated by the appropriate certified bargaining agent
3 before such testing is implemented.
4 Section 17. 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 department or the former
14 Division of Workers' Compensation of the Department of Labor
15 and Employment Security, or a copy of the employer's authority
16 to self-insure and shall be presented each time the employer
17 applies for a building permit. As provided in s. 627.413(5),
18 each certificate of coverage must show, on its face, whether
19 or not coverage is secured under the minimum premium
20 provisions of rules adopted by rating organizations licensed
21 by the department of Insurance. The words "minimum premium
22 policy" or equivalent language shall be typed, printed,
23 stamped, or legibly handwritten.
24 Section 18. Subsection (1) of section 440.104, Florida
25 Statutes, is amended to read:
26 440.104 Competitive bidder; civil actions.--
27 (1) Any person engaged in the construction industry,
28 as provided in s. 440.02 s. 440.02(7), who loses a competitive
29 bid for a contract shall have a cause of action for damages
30 against the person awarded the contract for which the bid was
31 made, if the person making the losing bid establishes that the
43
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 winning bidder knew or should have known that he or she was in
2 violation of s. 440.10, s. 440.105, or s. 440.38 while
3 performing the work under the contract.
4 Section 19. Paragraph (a) of subsection (2) of section
5 440.105, Florida Statutes, is amended to read:
6 440.105 Prohibited activities; reports; penalties;
7 limitations.--
8 (2) Whoever violates any provision of this subsection
9 commits a misdemeanor of the second degree, punishable as
10 provided in s. 775.082 or s. 775.083.
11 (a) It shall be unlawful for any employer to
12 knowingly:
13 1. Coerce or attempt to coerce, as a precondition to
14 employment or otherwise, an employee to obtain a certificate
15 of election of exemption pursuant to s. 440.05.
16 2. Discharge or refuse to hire an employee or job
17 applicant because the employee or applicant has filed a claim
18 for benefits under this chapter.
19 3. Discharge, discipline, or take any other adverse
20 personnel action against any employee for disclosing
21 information to the department division or any law enforcement
22 agency relating to any violation or suspected violation of any
23 of the provisions of this chapter or rules promulgated
24 hereunder.
25 4. Violate a stop-work order issued by the department
26 division pursuant to s. 440.107.
27 Section 20. Subsections (3) and (4) of section
28 440.106, Florida Statutes, are amended to read:
29 440.106 Civil remedies; administrative penalties.--
30 (3) Whenever any group or individual self-insurer,
31 carrier, rating bureau, or agent or other representative of
44
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 any carrier or rating bureau is determined to have violated s.
2 440.105, the department of Insurance may revoke or suspend the
3 authority or certification of any group or individual
4 self-insurer, carrier, agent, or broker.
5 (4) The department division shall report any
6 contractor determined in violation of requirements of this
7 chapter to the appropriate state licensing board for
8 disciplinary action.
9 Section 21. Section 440.107, Florida Statutes, is
10 amended to read:
11 440.107 Department Division powers to enforce employer
12 compliance with coverage requirements.--
13 (1) The Legislature finds that the failure of an
14 employer to comply with the workers' compensation coverage
15 requirements under this chapter poses an immediate danger to
16 public health, safety, and welfare. The Legislature authorizes
17 the department division to secure employer compliance with the
18 workers' compensation coverage requirements and authorizes the
19 department division to conduct investigations for the purpose
20 of ensuring employer compliance.
21 (2) The department division and its authorized
22 representatives may enter and inspect any place of business at
23 any reasonable time for the limited purpose of investigating
24 compliance with workers' compensation coverage requirements
25 under this chapter. Each employer shall keep true and accurate
26 business records that contain such information as the
27 department division prescribes by rule. The business records
28 must contain information necessary for the department division
29 to determine compliance with workers' compensation coverage
30 requirements and must be maintained within this state by the
31 business, in such a manner as to be accessible within a
45
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 reasonable time upon request by the department division. The
2 business records must be open to inspection and be available
3 for copying by the department division at any reasonable time
4 and place and as often as necessary. The department division
5 may require from any employer any sworn or unsworn reports,
6 pertaining to persons employed by that employer, deemed
7 necessary for the effective administration of the workers'
8 compensation coverage requirements.
9 (3) In discharging its duties, the department division
10 may administer oaths and affirmations, certify to official
11 acts, issue subpoenas to compel the attendance of witnesses
12 and the production of books, papers, correspondence,
13 memoranda, and other records deemed necessary by the
14 department division as evidence in order to ensure proper
15 compliance with the coverage provisions of this chapter.
16 (4) If a person has refused to obey a subpoena to
17 appear before the department division or its authorized
18 representative and produce evidence requested by the
19 department division or to give testimony about the matter that
20 is under investigation, a court has jurisdiction to issue an
21 order requiring compliance with the subpoena if the court has
22 jurisdiction in the geographical area where the inquiry is
23 being carried on or in the area where the person who has
24 refused the subpoena is found, resides, or transacts business.
25 Failure to obey such a court order may be punished by the
26 court as contempt.
27 (5) Whenever the department division determines that
28 an employer who is required to secure the payment to his or
29 her employees of the compensation provided for by this chapter
30 has failed to do so, such failure shall be deemed an immediate
31 serious danger to public health, safety, or welfare sufficient
46
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 to justify service by the department division of a stop-work
2 order on the employer, requiring the cessation of all business
3 operations at the place of employment or job site. The order
4 shall take effect upon the date of service upon the employer,
5 unless the employer provides evidence satisfactory to the
6 department division of having secured any necessary insurance
7 or self-insurance 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 (6) The department division may file a complaint in
13 the circuit court in and for Leon County to enjoin any
14 employer, who has failed to secure compensation as required by
15 this chapter, from employing individuals and from conducting
16 business until the employer presents evidence satisfactory to
17 the department division of having secured payment for
18 compensation and pays a civil penalty to the department
19 division, to be deposited by the department division into the
20 Workers' Compensation Administration Trust Fund, in the amount
21 of $100 per day for each day the employer was not in
22 compliance with this chapter.
23 (7) In addition to any penalty, stop-work order, or
24 injunction, the department division may assess against any
25 employer, who has failed to secure the payment of compensation
26 as required by this chapter, a penalty in the amount of:
27 (a) Twice the amount the employer would have paid
28 during periods it illegally failed to secure payment of
29 compensation in the preceding 3-year period based on the
30 employer's payroll during the preceding 3-year period; or
31 (b) One thousand dollars, whichever is greater.
47
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1
2 Any penalty assessed under this subsection is due within 30
3 days after the date on which the employer is notified, except
4 that, if the department division has posted a stop-work order
5 or obtained injunctive relief against the employer, payment is
6 due, in addition to those conditions set forth in this
7 section, as a condition to relief from a stop-work order or an
8 injunction. Interest shall accrue on amounts not paid when due
9 at the rate of 1 percent per month.
10 (8) The department division may bring an action in
11 circuit court to recover penalties assessed under this
12 section, including any interest owed to the department
13 division pursuant to this section. In any action brought by
14 the department division pursuant to this section in which it
15 prevails, the circuit court shall award costs, including the
16 reasonable costs of investigation and a reasonable attorney's
17 fee.
18 (9) Any judgment obtained by the department division
19 and any penalty due pursuant to the service of a stop-work
20 order or otherwise due under this section shall, until
21 collected, constitute a lien upon the entire interest of the
22 employer, legal or equitable, in any property, real or
23 personal, tangible or intangible; however, such lien is
24 subordinate to claims for unpaid wages and any prior recorded
25 liens, and a lien created by this section is not valid against
26 any person who, subsequent to such lien and in good faith and
27 for value, purchases real or personal property from such
28 employer or becomes the mortgagee on real or personal property
29 of such employer, or against a subsequent attaching creditor,
30 unless, with respect to real estate of the employer, a notice
31 of the lien is recorded in the public records of the county
48
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 where the real estate is located, and with respect to personal
2 property of the employer, the notice is recorded with the
3 Secretary of State.
4 (10) Any law enforcement agency in the state may, at
5 the request of the department division, render any assistance
6 necessary to carry out the provisions of this section,
7 including, but not limited to, preventing any employee or
8 other person from remaining at a place of employment or job
9 site after a stop-work order or injunction has taken effect.
10 (11) Actions by the department division under this
11 section must be contested as provided in chapter 120. All
12 civil penalties assessed by the department division must be
13 paid into the Workers' Compensation Administration Trust Fund.
14 The department division shall return any sums previously paid,
15 upon conclusion of an action, if the department division fails
16 to prevail and if so directed by an order of court or an
17 administrative hearing officer. The requirements of this
18 subsection may be met by posting a bond in an amount equal to
19 twice the penalty and in a form approved by the department
20 division.
21 Section 22. Subsection (1) of section 440.108, Florida
22 Statutes, is amended to read:
23 440.108 Investigatory records relating to workers'
24 compensation employer compliance; confidentiality.--
25 (1) All investigatory records of the department
26 Division of Workers' Compensation made or received pursuant to
27 s. 440.107 and any records necessary to complete an
28 investigation are confidential and exempt from the provisions
29 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
30 until the investigation is completed or ceases to be active.
31 For purposes of this section, an investigation is considered
49
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 "active" while such investigation is being conducted by the
2 department division with a reasonable, good faith belief that
3 it may lead to the filing of administrative, civil, or
4 criminal proceedings. An investigation does not cease to be
5 active if the agency is proceeding with reasonable dispatch
6 and there is a good faith belief that action may be initiated
7 by the agency or other administrative or law enforcement
8 agency. After an investigation is completed or ceases to be
9 active, records relating to the investigation remain
10 confidential and exempt from the provisions of s. 119.07(1)
11 and s. 24(a), Art. I of the State Constitution if disclosure
12 would:
13 (a) Jeopardize the integrity of another active
14 investigation;
15 (b) Reveal a trade secret, as defined in s. 688.002;
16 (c) Reveal business or personal financial information;
17 (d) Reveal the identity of a confidential source;
18 (e) Defame or cause unwarranted damage to the good
19 name or reputation of an individual or jeopardize the safety
20 of an individual; or
21 (f) Reveal investigative techniques or procedures.
22 Section 23. Subsection (2) of section 440.12, Florida
23 Statutes, is amended to read:
24 440.12 Time for commencement and limits on weekly rate
25 of compensation.--
26 (2) Compensation for disability resulting from
27 injuries which occur after December 31, 1974, shall not be
28 less than $20 per week. However, if the employee's wages at
29 the time of injury are less than $20 per week, he or she shall
30 receive his or her full weekly wages. If the employee's wages
31
50
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 at the time of the injury exceed $20 per week, compensation
2 shall not exceed an amount per week which is:
3 (a) Equal to 100 percent of the statewide average
4 weekly wage, determined as hereinafter provided for the year
5 in which the injury occurred; however, the increase to 100
6 percent from 66 2/3 percent of the statewide average weekly
7 wage shall apply only to injuries occurring on or after August
8 1, 1979; and
9 (b) Adjusted to the nearest dollar.
10
11 For the purpose of this subsection, the "statewide average
12 weekly wage" means the average weekly wage paid by employers
13 subject to the Florida Unemployment Compensation Law as
14 reported to the Agency for Workforce Innovation department for
15 the four calendar quarters ending each June 30, which average
16 weekly wage shall be determined by the Agency for Workforce
17 Innovation department on or before November 30 of each year
18 and shall be used in determining the maximum weekly
19 compensation rate with respect to injuries occurring in the
20 calendar year immediately following. The statewide average
21 weekly wage determined by the Agency for Workforce Innovation
22 department shall be reported annually to the Legislature.
23 Section 24. Section 440.125, Florida Statutes, is
24 amended to read:
25 440.125 Medical records and reports; identifying
26 information in employee medical bills; confidentiality.--
27 (1) Any medical records and medical reports of an
28 injured employee and any information identifying an injured
29 employee in medical bills which are provided to the
30 department, Division of Workers' Compensation of the
31 Department of Labor and Employment Security pursuant to s.
51
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 440.13 are confidential and exempt from the provisions of s.
2 119.07(1) and s. 24(a), Art. I of the State Constitution,
3 except as otherwise provided by this chapter. The department
4 may share any such confidential and exempt records, reports,
5 or information received pursuant to s. 440.13 with the Agency
6 for Health Care Administration and the Department of Education
7 in furtherance of their official duties under ss. 440.13 and
8 440.134. The agency and the department shall maintain the
9 confidential and exempt status of such records, reports, and
10 information received.
11 (2) The Legislature finds that it is a public
12 necessity that an injured employee's medical records and
13 medical reports and information identifying the employee in
14 medical bills held by the Division of Workers' Compensation
15 pursuant to s. 440.13 be confidential and exempt from the
16 public records law. Public access to such information is an
17 invasion of the injured employee's right to privacy in that
18 personal, sensitive information would be revealed, and public
19 knowledge of such information could lead to discrimination
20 against the employee by coworkers and others. Additionally,
21 there is little utility in providing public access to such
22 information in that the effectiveness and efficiency of the
23 workers' compensation program can be otherwise adequately
24 monitored and evaluated.
25 Section 25. Subsections (1), (3), (4), (5), (6), (7),
26 (8), (9), (11), (12), (13), and (15) of section 440.13,
27 Florida Statutes, are amended to read:
28 440.13 Medical services and supplies; penalty for
29 violations; limitations.--
30 (1) DEFINITIONS.--As used in this section, the term:
31
52
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (a) "Alternate medical care" means a change in
2 treatment or health care provider.
3 (b) "Attendant care" means care rendered by trained
4 professional attendants which is beyond the scope of household
5 duties. Family members may provide nonprofessional attendant
6 care, but may not be compensated under this chapter for care
7 that falls within the scope of household duties and other
8 services normally and gratuitously provided by family members.
9 "Family member" means a spouse, father, mother, brother,
10 sister, child, grandchild, father-in-law, mother-in-law, aunt,
11 or uncle.
12 (c) "Carrier" means, for purposes of this section,
13 insurance carrier, self-insurance fund or individually
14 self-insured employer, or assessable mutual insurer.
15 (d) "Catastrophic injury" means an injury as defined
16 in s. 440.02.
17 (e) "Certified health care provider" means a health
18 care provider who has been certified by the agency division or
19 who has entered an agreement with a licensed managed care
20 organization to provide treatment to injured workers under
21 this section. Certification of such health care provider must
22 include documentation that the health care provider has read
23 and is familiar with the portions of the statute, impairment
24 guides, and rules which govern the provision of remedial
25 treatment, care, and attendance.
26 (f) "Compensable" means a determination by a carrier
27 or judge of compensation claims that a condition suffered by
28 an employee results from an injury arising out of and in the
29 course of employment.
30 (g) "Emergency services and care" means emergency
31 services and care as defined in s. 395.002.
53
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (h) "Health care facility" means any hospital licensed
2 under chapter 395 and any health care institution licensed
3 under chapter 400.
4 (i) "Health care provider" means a physician or any
5 recognized practitioner who provides skilled services pursuant
6 to a prescription or under the supervision or direction of a
7 physician and who has been certified by the agency division as
8 a health care provider. The term "health care provider"
9 includes a health care facility.
10 (j) "Independent medical examiner" means a physician
11 selected by either an employee or a carrier to render one or
12 more independent medical examinations in connection with a
13 dispute arising under this chapter.
14 (k) "Independent medical examination" means an
15 objective evaluation of the injured employee's medical
16 condition, including, but not limited to, impairment or work
17 status, performed by a physician or an expert medical advisor
18 at the request of a party, a judge of compensation claims, or
19 the agency division to assist in the resolution of a dispute
20 arising under this chapter.
21 (l) "Instance of overutilization" means a specific
22 inappropriate service or level of service provided to an
23 injured employee.
24 (m) "Medically necessary" means any medical service or
25 medical supply which is used to identify or treat an illness
26 or injury, is appropriate to the patient's diagnosis and
27 status of recovery, and is consistent with the location of
28 service, the level of care provided, and applicable practice
29 parameters. The service should be widely accepted among
30 practicing health care providers, based on scientific
31 criteria, and determined to be reasonably safe. The service
54
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 must not be of an experimental, investigative, or research
2 nature, except in those instances in which prior approval of
3 the Agency for Health Care Administration has been obtained.
4 The Agency for Health Care Administration shall adopt rules
5 providing for such approval on a case-by-case basis when the
6 service or supply is shown to have significant benefits to the
7 recovery and well-being of the patient.
8 (n) "Medicine" means a drug prescribed by an
9 authorized health care provider and includes only generic
10 drugs or single-source patented drugs for which there is no
11 generic equivalent, unless the authorized health care provider
12 writes or states that the brand-name drug as defined in s.
13 465.025 is medically necessary, or is a drug appearing on the
14 schedule of drugs created pursuant to s. 465.025(6), or is
15 available at a cost lower than its generic equivalent.
16 (o) "Palliative care" means noncurative medical
17 services that mitigate the conditions, effects, or pain of an
18 injury.
19 (p) "Pattern or practice of overutilization" means
20 repetition of instances of overutilization within a specific
21 medical case or multiple cases by a single health care
22 provider.
23 (q) "Peer review" means an evaluation by two or more
24 physicians licensed under the same authority and with the same
25 or similar specialty as the physician under review, of the
26 appropriateness, quality, and cost of health care and health
27 services provided to a patient, based on medically accepted
28 standards.
29 (r) "Physician" or "doctor" means a physician licensed
30 under chapter 458, an osteopathic physician licensed under
31 chapter 459, a chiropractic physician licensed under chapter
55
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 460, a podiatric physician licensed under chapter 461, an
2 optometrist licensed under chapter 463, or a dentist licensed
3 under chapter 466, each of whom must be certified by the
4 agency division as a health care provider.
5 (s) "Reimbursement dispute" means any disagreement
6 between a health care provider or health care facility and
7 carrier concerning payment for medical treatment.
8 (t) "Utilization control" means a systematic process
9 of implementing measures that assure overall management and
10 cost containment of services delivered.
11 (u) "Utilization review" means the evaluation of the
12 appropriateness of both the level and the quality of health
13 care and health services provided to a patient, including, but
14 not limited to, evaluation of the appropriateness of
15 treatment, hospitalization, or office visits based on
16 medically accepted standards. Such evaluation must be
17 accomplished by means of a system that identifies the
18 utilization of medical services based on medically accepted
19 standards as established by medical consultants with
20 qualifications similar to those providing the care under
21 review, and that refers patterns and practices of
22 overutilization to the agency division.
23 (3) PROVIDER ELIGIBILITY; AUTHORIZATION.--
24 (a) As a condition to eligibility for payment under
25 this chapter, a health care provider who renders services must
26 be a certified health care provider and must receive
27 authorization from the carrier before providing treatment.
28 This paragraph does not apply to emergency care. The agency
29 division shall adopt rules to implement the certification of
30 health care providers.
31
56
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (b) A health care provider who renders emergency care
2 must notify the carrier by the close of the third business day
3 after it has rendered such care. If the emergency care results
4 in admission of the employee to a health care facility, the
5 health care provider must notify the carrier by telephone
6 within 24 hours after initial treatment. Emergency care is not
7 compensable under this chapter unless the injury requiring
8 emergency care arose as a result of a work-related accident.
9 Pursuant to chapter 395, all licensed physicians and health
10 care providers in this state shall be required to make their
11 services available for emergency treatment of any employee
12 eligible for workers' compensation benefits. To refuse to make
13 such treatment available is cause for revocation of a license.
14 (c) A health care provider may not refer the employee
15 to another health care provider, diagnostic facility, therapy
16 center, or other facility without prior authorization from the
17 carrier, except when emergency care is rendered. Any referral
18 must be to a health care provider that has been certified by
19 the agency division, unless the referral is for emergency
20 treatment.
21 (d) A carrier must respond, by telephone or in
22 writing, to a request for authorization by the close of the
23 third business day after receipt of the request. A carrier who
24 fails to respond to a written request for authorization for
25 referral for medical treatment by the close of the third
26 business day after receipt of the request consents to the
27 medical necessity for such treatment. All such requests must
28 be made to the carrier. Notice to the carrier does not include
29 notice to the employer.
30 (e) Carriers shall adopt procedures for receiving,
31 reviewing, documenting, and responding to requests for
57
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 authorization. Such procedures shall be for a health care
2 provider certified under this section.
3 (f) By accepting payment under this chapter for
4 treatment rendered to an injured employee, a health care
5 provider consents to the jurisdiction of the agency division
6 as set forth in subsection (11) and to the submission of all
7 records and other information concerning such treatment to the
8 agency division in connection with a reimbursement dispute,
9 audit, or review as provided by this section. The health care
10 provider must further agree to comply with any decision of the
11 agency division rendered under this section.
12 (g) The employee is not liable for payment for medical
13 treatment or services provided pursuant to this section except
14 as otherwise provided in this section.
15 (h) The provisions of s. 456.053 are applicable to
16 referrals among health care providers, as defined in
17 subsection (1), treating injured workers.
18 (i) Notwithstanding paragraph (d), a claim for
19 specialist consultations, surgical operations,
20 physiotherapeutic or occupational therapy procedures, X-ray
21 examinations, or special diagnostic laboratory tests that cost
22 more than $1,000 and other specialty services that the agency
23 division identifies by rule is not valid and reimbursable
24 unless the services have been expressly authorized by the
25 carrier, or unless the carrier has failed to respond within 10
26 days to a written request for authorization, or unless
27 emergency care is required. The insurer shall not refuse to
28 authorize such consultation or procedure unless the health
29 care provider or facility is not authorized or certified or
30 unless an expert medical advisor has determined that the
31 consultation or procedure is not medically necessary or
58
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 otherwise compensable under this chapter. Authorization of a
2 treatment plan does not constitute express authorization for
3 purposes of this section, except to the extent the carrier
4 provides otherwise in its authorization procedures. This
5 paragraph does not limit the carrier's obligation to identify
6 and disallow overutilization or billing errors.
7 (j) Notwithstanding anything in this chapter to the
8 contrary, a sick or injured employee shall be entitled, at all
9 times, to free, full, and absolute choice in the selection of
10 the pharmacy or pharmacist dispensing and filling
11 prescriptions for medicines required under this chapter. It is
12 expressly forbidden for the agency division, an employer, or a
13 carrier, or any agent or representative of the agency
14 division, an employer, or a carrier to select the pharmacy or
15 pharmacist which the sick or injured employee must use;
16 condition coverage or payment on the basis of the pharmacy or
17 pharmacist utilized; or to otherwise interfere in the
18 selection by the sick or injured employee of a pharmacy or
19 pharmacist.
20 (4) NOTICE OF TREATMENT TO CARRIER; FILING WITH
21 DEPARTMENT DIVISION.--
22 (a) Any health care provider providing necessary
23 remedial treatment, care, or attendance to any injured worker
24 shall submit treatment reports to the carrier in a format
25 prescribed by the department in consultation with the agency
26 division. A claim for medical or surgical treatment is not
27 valid or enforceable against such employer or employee,
28 unless, by the close of the third business day following the
29 first treatment, the physician providing the treatment
30 furnishes to the employer or carrier a preliminary notice of
31 the injury and treatment on forms prescribed by the department
59
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 in consultation with the agency division and, within 15 days
2 thereafter, furnishes to the employer or carrier a complete
3 report, and subsequent thereto furnishes progress reports, if
4 requested by the employer or insurance carrier, at intervals
5 of not less than 3 weeks apart or at less frequent intervals
6 if requested on forms prescribed by the department in
7 consultation with the agency division.
8 (b) Upon the request of the department or agency
9 Division of Workers' Compensation, each medical report or bill
10 obtained or received by the employer, the carrier, or the
11 injured employee, or the attorney for the employer, carrier,
12 or injured employee, with respect to the remedial treatment,
13 care, and attendance of the injured employee, including any
14 report of an examination, diagnosis, or disability evaluation,
15 must be filed with the department or agency Division of
16 Workers' Compensation pursuant to rules adopted by the
17 department in consultation with the agency division. The
18 health care provider shall also furnish to the injured
19 employee or to his or her attorney, on demand, a copy of his
20 or her office chart, records, and reports, and may charge the
21 injured employee an amount authorized by the department
22 division for the copies. Each such health care provider shall
23 provide to the agency or department division information about
24 the remedial treatment, care, and attendance which the agency
25 or department division reasonably requests.
26 (c) It is the policy for the administration of the
27 workers' compensation system that there be reasonable access
28 to medical information by all parties to facilitate the
29 self-executing features of the law. Notwithstanding the
30 limitations in s. 456.057 and subject to the limitations in s.
31 381.004, upon the request of the employer, the carrier, an
60
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 authorized qualified rehabilitation provider, or the attorney
2 for the employer or carrier, the medical records of an injured
3 employee must be furnished to those persons and the medical
4 condition of the injured employee must be discussed with those
5 persons, if the records and the discussions are restricted to
6 conditions relating to the workplace injury. Any such
7 discussions may be held before or after the filing of a claim
8 without the knowledge, consent, or presence of any other party
9 or his or her agent or representative. A health care provider
10 who willfully refuses to provide medical records or to discuss
11 the medical condition of the injured employee, after a
12 reasonable request is made for such information pursuant to
13 this subsection, shall be subject by the agency division to
14 one or more of the penalties set forth in paragraph (8)(b).
15 (5) INDEPENDENT MEDICAL EXAMINATIONS.--
16 (a) In any dispute concerning overutilization, medical
17 benefits, compensability, or disability under this chapter,
18 the carrier or the employee may select an independent medical
19 examiner. The examiner may be a health care provider treating
20 or providing other care to the employee. An independent
21 medical examiner may not render an opinion outside his or her
22 area of expertise, as demonstrated by licensure and applicable
23 practice parameters.
24 (b) Each party is bound by his or her selection of an
25 independent medical examiner and is entitled to an alternate
26 examiner only if:
27 1. The examiner is not qualified to render an opinion
28 upon an aspect of the employee's illness or injury which is
29 material to the claim or petition for benefits;
30 2. The examiner ceases to practice in the specialty
31 relevant to the employee's condition;
61
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 3. The examiner is unavailable due to injury, death,
2 or relocation outside a reasonably accessible geographic area;
3 or
4 4. The parties agree to an alternate examiner.
5
6 Any party may request, or a judge of compensation claims may
7 require, designation of an agency a division medical advisor
8 as an independent medical examiner. The opinion of the
9 advisors acting as examiners shall not be afforded the
10 presumption set forth in paragraph (9)(c).
11 (c) The carrier may, at its election, contact the
12 claimant directly to schedule a reasonable time for an
13 independent medical examination. The carrier must confirm the
14 scheduling agreement in writing within 5 days and notify
15 claimant's counsel, if any, at least 7 days before the date
16 upon which the independent medical examination is scheduled to
17 occur. An attorney representing a claimant is not authorized
18 to schedule independent medical evaluations under this
19 subsection.
20 (d) If the employee fails to appear for the
21 independent medical examination without good cause and fails
22 to advise the physician at least 24 hours before the scheduled
23 date for the examination that he or she cannot appear, the
24 employee is barred from recovering compensation for any period
25 during which he or she has refused to submit to such
26 examination. Further, the employee shall reimburse the carrier
27 50 percent of the physician's cancellation or no-show fee
28 unless the carrier that schedules the examination fails to
29 timely provide to the employee a written confirmation of the
30 date of the examination pursuant to paragraph (c) which
31 includes an explanation of why he or she failed to appear. The
62
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 employee may appeal to a judge of compensation claims for
2 reimbursement when the carrier withholds payment in excess of
3 the authority granted by this section.
4 (e) No medical opinion other than the opinion of a
5 medical advisor appointed by the judge of compensation claims
6 or agency division, an independent medical examiner, or an
7 authorized treating provider is admissible in proceedings
8 before the judges of compensation claims.
9 (f) Attorney's fees incurred by an injured employee in
10 connection with delay of or opposition to an independent
11 medical examination, including, but not limited to, motions
12 for protective orders, are not recoverable under this chapter.
13 (6) UTILIZATION REVIEW.--Carriers shall review all
14 bills, invoices, and other claims for payment submitted by
15 health care providers in order to identify overutilization and
16 billing errors, and may hire peer review consultants or
17 conduct independent medical evaluations. Such consultants,
18 including peer review organizations, are immune from liability
19 in the execution of their functions under this subsection to
20 the extent provided in s. 766.101. If a carrier finds that
21 overutilization of medical services or a billing error has
22 occurred, it must disallow or adjust payment for such services
23 or error without order of a judge of compensation claims or
24 the agency division, if the carrier, in making its
25 determination, has complied with this section and rules
26 adopted by the agency division.
27 (7) UTILIZATION AND REIMBURSEMENT DISPUTES.--
28 (a) Any health care provider, carrier, or employer who
29 elects to contest the disallowance or adjustment of payment by
30 a carrier under subsection (6) must, within 30 days after
31 receipt of notice of disallowance or adjustment of payment,
63
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 petition the agency division to resolve the dispute. The
2 petitioner must serve a copy of the petition on the carrier
3 and on all affected parties by certified mail. The petition
4 must be accompanied by all documents and records that support
5 the allegations contained in the petition. Failure of a
6 petitioner to submit such documentation to the agency division
7 results in dismissal of the petition.
8 (b) The carrier must submit to the agency division
9 within 10 days after receipt of the petition all documentation
10 substantiating the carrier's disallowance or adjustment.
11 Failure of the carrier to submit the requested documentation
12 to the agency division within 10 days constitutes a waiver of
13 all objections to the petition.
14 (c) Within 60 days after receipt of all documentation,
15 the agency division must provide to the petitioner, the
16 carrier, and the affected parties a written determination of
17 whether the carrier properly adjusted or disallowed payment.
18 The agency division must be guided by standards and policies
19 set forth in this chapter, including all applicable
20 reimbursement schedules, in rendering its determination.
21 (d) If the agency division finds an improper
22 disallowance or improper adjustment of payment by an insurer,
23 the insurer shall reimburse the health care provider,
24 facility, insurer, or employer within 30 days, subject to the
25 penalties provided in this subsection.
26 (e) The agency division shall adopt rules to carry out
27 this subsection. The rules may include provisions for
28 consolidating petitions filed by a petitioner and expanding
29 the timetable for rendering a determination upon a
30 consolidated petition.
31
64
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (f) Any carrier that engages in a pattern or practice
2 of arbitrarily or unreasonably disallowing or reducing
3 payments to health care providers may be subject to one or
4 more of the following penalties imposed by the agency
5 division:
6 1. Repayment of the appropriate amount to the health
7 care provider.
8 2. An administrative fine assessed by the agency
9 division in an amount not to exceed $5,000 per instance of
10 improperly disallowing or reducing payments.
11 3. Award of the health care provider's costs,
12 including a reasonable attorney's fee, for prosecuting the
13 petition.
14 (8) PATTERN OR PRACTICE OF OVERUTILIZATION.--
15 (a) Carriers must report to the agency division all
16 instances of overutilization including, but not limited to,
17 all instances in which the carrier disallows or adjusts
18 payment. The agency division shall determine whether a pattern
19 or practice of overutilization exists.
20 (b) If the agency division determines that a health
21 care provider has engaged in a pattern or practice of
22 overutilization or a violation of this chapter or rules
23 adopted by the agency division, it may impose one or more of
24 the following penalties:
25 1. An order of the agency division barring the
26 provider from payment under this chapter;
27 2. Deauthorization of care under review;
28 3. Denial of payment for care rendered in the future;
29 4. Decertification of a health care provider certified
30 as an expert medical advisor under subsection (9) or of a
31 rehabilitation provider certified under s. 440.49;
65
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 5. An administrative fine assessed by the agency
2 division in an amount not to exceed $5,000 per instance of
3 overutilization or violation; and
4 6. Notification of and review by the appropriate
5 licensing authority pursuant to s. 440.106(3).
6 (9) EXPERT MEDICAL ADVISORS.--
7 (a) The agency division shall certify expert medical
8 advisors in each specialty to assist the agency division and
9 the judges of compensation claims within the advisor's area of
10 expertise as provided in this section. The agency division
11 shall, in a manner prescribed by rule, in certifying,
12 recertifying, or decertifying an expert medical advisor,
13 consider the qualifications, training, impartiality, and
14 commitment of the health care provider to the provision of
15 quality medical care at a reasonable cost. As a prerequisite
16 for certification or recertification, the agency division
17 shall require, at a minimum, that an expert medical advisor
18 have specialized workers' compensation training or experience
19 under the workers' compensation system of this state and board
20 certification or board eligibility.
21 (b) The agency division shall contract with or employ
22 expert medical advisors to provide peer review or medical
23 consultation to the agency division or to a judge of
24 compensation claims in connection with resolving disputes
25 relating to reimbursement, differing opinions of health care
26 providers, and health care and physician services rendered
27 under this chapter. Expert medical advisors contracting with
28 the agency division shall, as a term of such contract, agree
29 to provide consultation or services in accordance with the
30 timetables set forth in this chapter and to abide by rules
31 adopted by the agency division, including, but not limited to,
66
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 rules pertaining to procedures for review of the services
2 rendered by health care providers and preparation of reports
3 and recommendations for submission to the agency division.
4 (c) If there is disagreement in the opinions of the
5 health care providers, if two health care providers disagree
6 on medical evidence supporting the employee's complaints or
7 the need for additional medical treatment, or if two health
8 care providers disagree that the employee is able to return to
9 work, the agency division may, and the judge of compensation
10 claims shall, upon his or her own motion or within 15 days
11 after receipt of a written request by either the injured
12 employee, the employer, or the carrier, order the injured
13 employee to be evaluated by an expert medical advisor. The
14 opinion of the expert medical advisor is presumed to be
15 correct unless there is clear and convincing evidence to the
16 contrary as determined by the judge of compensation claims.
17 The expert medical advisor appointed to conduct the evaluation
18 shall have free and complete access to the medical records of
19 the employee. An employee who fails to report to and cooperate
20 with such evaluation forfeits entitlement to compensation
21 during the period of failure to report or cooperate.
22 (d) The expert medical advisor must complete his or
23 her evaluation and issue his or her report to the agency
24 division or to the judge of compensation claims within 45 days
25 after receipt of all medical records. The expert medical
26 advisor must furnish a copy of the report to the carrier and
27 to the employee.
28 (e) An expert medical advisor is not liable under any
29 theory of recovery for evaluations performed under this
30 section without a showing of fraud or malice. The protections
31 of s. 766.101 apply to any officer, employee, or agent of the
67
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 agency division and to any officer, employee, or agent of any
2 entity with which the agency division has contracted under
3 this subsection.
4 (f) If the agency division or a judge of compensation
5 claims determines that the services of a certified expert
6 medical advisor are required to resolve a dispute under this
7 section, the carrier must compensate the advisor for his or
8 her time in accordance with a schedule adopted by the agency
9 division. The agency division may assess a penalty not to
10 exceed $500 against any carrier that fails to timely
11 compensate an advisor in accordance with this section.
12 (11) AUDITS BY AGENCY FOR HEALTH CARE ADMINISTRATION
13 AND THE DEPARTMENT OF INSURANCE DIVISION; JURISDICTION.--
14 (a) The Agency for Health Care Administration Division
15 of Workers' Compensation of the Department of Labor and
16 Employment Security may investigate health care providers to
17 determine whether providers are complying with this chapter
18 and with rules adopted by the agency division, whether the
19 providers are engaging in overutilization, and whether
20 providers are engaging in improper billing practices. If the
21 agency division finds that a health care provider has
22 improperly billed, overutilized, or failed to comply with
23 agency division rules or the requirements of this chapter it
24 must notify the provider of its findings and may determine
25 that the health care provider may not receive payment from the
26 carrier or may impose penalties as set forth in subsection (8)
27 or other sections of this chapter. If the health care provider
28 has received payment from a carrier for services that were
29 improperly billed or for overutilization, it must return those
30 payments to the carrier. The agency division may assess a
31 penalty not to exceed $500 for each overpayment that is not
68
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
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
69
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
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
70
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
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, or the maximum reimbursement
11 allowance in the appropriate schedule, whichever is less.
12 (b) As to reimbursement for a prescription medication,
13 the reimbursement amount for a prescription shall be the
14 average wholesale price times 1.2 plus $4.18 for the
15 dispensing fee, except where the carrier has contracted for a
16 lower amount. Fees for pharmaceuticals and pharmaceutical
17 services shall be reimbursable at the applicable fee schedule
18 amount. Where the employer or carrier has contracted for such
19 services and the employee elects to obtain them through a
20 provider not a party to the contract, the carrier shall
21 reimburse at the schedule, negotiated, or contract price,
22 whichever is lower.
23 (c) Reimbursement for all fees and other charges for
24 such treatment, care, and attendance, including treatment,
25 care, and attendance provided by any hospital or other health
26 care provider, ambulatory surgical center, work-hardening
27 program, or pain program, must not exceed the amounts provided
28 by the uniform schedule of maximum reimbursement allowances as
29 determined by the panel or as otherwise provided in this
30 section. This subsection also applies to independent medical
31 examinations performed by health care providers under this
71
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 chapter. Until the three-member panel approves a uniform
2 schedule of maximum reimbursement allowances and it becomes
3 effective, all compensable charges for treatment, care, and
4 attendance provided by physicians, ambulatory surgical
5 centers, work-hardening programs, or pain programs shall be
6 reimbursed at the lowest maximum reimbursement allowance
7 across all 1992 schedules of maximum reimbursement allowances
8 for the services provided regardless of the place of service.
9 In determining the uniform schedule, the panel shall first
10 approve the data which it finds representative of prevailing
11 charges in the state for similar treatment, care, and
12 attendance of injured persons. Each health care provider,
13 health care facility, ambulatory surgical center,
14 work-hardening program, or pain program receiving workers'
15 compensation payments shall maintain records verifying their
16 usual charges. In establishing the uniform schedule of maximum
17 reimbursement allowances, the panel must consider:
18 1. The levels of reimbursement for similar treatment,
19 care, and attendance made by other health care programs or
20 third-party providers;
21 2. The impact upon cost to employers for providing a
22 level of reimbursement for treatment, care, and attendance
23 which will ensure the availability of treatment, care, and
24 attendance required by injured workers;
25 3. The financial impact of the reimbursement
26 allowances upon health care providers and health care
27 facilities, including trauma centers as defined in s.
28 395.4001, and its effect upon their ability to make available
29 to injured workers such medically necessary remedial
30 treatment, care, and attendance. The uniform schedule of
31 maximum reimbursement allowances must be reasonable, must
72
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 promote health care cost containment and efficiency with
2 respect to the workers' compensation health care delivery
3 system, and must be sufficient to ensure availability of such
4 medically necessary remedial treatment, care, and attendance
5 to injured workers; and
6 4. The most recent average maximum allowable rate of
7 increase for hospitals determined by the Health Care Board
8 under chapter 408.
9 (13) REMOVAL OF PHYSICIANS FROM LISTS OF THOSE
10 AUTHORIZED TO RENDER MEDICAL CARE.--The agency division shall
11 remove from the list of physicians or facilities authorized to
12 provide remedial treatment, care, and attendance under this
13 chapter the name of any physician or facility found after
14 reasonable investigation to have:
15 (a) Engaged in professional or other misconduct or
16 incompetency in connection with medical services rendered
17 under this chapter;
18 (b) Exceeded the limits of his or her or its
19 professional competence in rendering medical care under this
20 chapter, or to have made materially false statements regarding
21 his or her or its qualifications in his or her application;
22 (c) Failed to transmit copies of medical reports to
23 the employer or carrier, or failed to submit full and truthful
24 medical reports of all his or her or its findings to the
25 employer or carrier as required under this chapter;
26 (d) Solicited, or employed another to solicit for
27 himself or herself or itself or for another, professional
28 treatment, examination, or care of an injured employee in
29 connection with any claim under this chapter;
30 (e) Refused to appear before, or to answer upon
31 request of, the agency division or any duly authorized officer
73
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 of the state, any legal question, or to produce any relevant
2 book or paper concerning his or her conduct under any
3 authorization granted to him or her under this chapter;
4 (f) Self-referred in violation of this chapter or
5 other laws of this state; or
6 (g) Engaged in a pattern of practice of
7 overutilization or a violation of this chapter or rules
8 adopted by the agency division.
9 (15) PRACTICE PARAMETERS.--
10 (a) The Agency for Health Care Administration, in
11 conjunction with the department division and appropriate
12 health professional associations and health-related
13 organizations shall develop and may adopt by rule
14 scientifically sound practice parameters for medical
15 procedures relevant to workers' compensation claimants.
16 Practice parameters developed under this section must focus on
17 identifying effective remedial treatments and promoting the
18 appropriate utilization of health care resources. Priority
19 must be given to those procedures that involve the greatest
20 utilization of resources either because they are the most
21 costly or because they are the most frequently performed.
22 Practice parameters for treatment of the 10 top procedures
23 associated with workers' compensation injuries including the
24 remedial treatment of lower-back injuries must be developed by
25 December 31, 1994.
26 (b) The guidelines may be initially based on
27 guidelines prepared by nationally recognized health care
28 institutions and professional organizations but should be
29 tailored to meet the workers' compensation goal of returning
30 employees to full employment as quickly as medically possible,
31 taking into consideration outcomes data collected from managed
74
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 care providers and any other inpatient and outpatient
2 facilities serving workers' compensation claimants.
3 (c) Procedures must be instituted which provide for
4 the periodic review and revision of practice parameters based
5 on the latest outcomes data, research findings, technological
6 advancements, and clinical experiences, at least once every 3
7 years.
8 (d) Practice parameters developed under this section
9 must be used by carriers and the agency division in evaluating
10 the appropriateness and overutilization of medical services
11 provided to injured employees.
12 Section 26. Subsection (23) of section 440.134,
13 Florida Statutes, is amended to read:
14 440.134 Workers' compensation managed care
15 arrangement.--
16 (23) The agency shall immediately notify the
17 department of Insurance and the Department of Labor and
18 Employment Security whenever it issues an administrative
19 complaint or an order or otherwise initiates legal proceedings
20 resulting in, or which may result in, suspension or revocation
21 of an insurer's authorization.
22 Section 27. Subsections (3) and (4) of section 440.14,
23 Florida Statutes, are amended to read:
24 440.14 Determination of pay.--
25 (3) The department division shall establish by rule a
26 form which shall contain a simplified checklist of those items
27 which may be included as "wage" for determining the average
28 weekly wage.
29 (4) Upon termination of the employee or upon
30 termination of the payment of fringe benefits of any employee
31 who is collecting indemnity benefits pursuant to s. 440.15(2)
75
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 or (3)(b), the employer shall within 7 days of such
2 termination file a corrected 13-week wage statement reflecting
3 the wages paid and the fringe benefits that had been paid to
4 the injured employee, as provided defined in s. 440.02(27).
5 Section 28. Paragraphs (d) and (f) of subsection (1),
6 paragraphs (c) and (d) of subsection (2), subsections (3),
7 (4), and (6), and paragraphs (b) and (c) of subsection (10) of
8 section 440.15, Florida Statutes, are amended to read:
9 440.15 Compensation for disability.--Compensation for
10 disability shall be paid to the employee, subject to the
11 limits provided in s. 440.12(2), as follows:
12 (1) PERMANENT TOTAL DISABILITY.--
13 (d) If an employee who is being paid compensation for
14 permanent total disability becomes rehabilitated to the extent
15 that she or he establishes an earning capacity, the employee
16 shall be paid, instead of the compensation provided in
17 paragraph (a), benefits pursuant to subsection (3). The
18 department division shall adopt rules to enable a permanently
19 and totally disabled employee who may have reestablished an
20 earning capacity to undertake a trial period of reemployment
21 without prejudicing her or his return to permanent total
22 status in the case that such employee is unable to sustain an
23 earning capacity.
24 (f)1. If permanent total disability results from
25 injuries that occurred subsequent to June 30, 1955, and for
26 which the liability of the employer for compensation has not
27 been discharged under s. 440.20(11), the injured employee
28 shall receive additional weekly compensation benefits equal to
29 5 percent of her or his weekly compensation rate, as
30 established pursuant to the law in effect on the date of her
31 or his injury, multiplied by the number of calendar years
76
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 since the date of injury. The weekly compensation payable and
2 the additional benefits payable under this paragraph, when
3 combined, may not exceed the maximum weekly compensation rate
4 in effect at the time of payment as determined pursuant to s.
5 440.12(2). Entitlement to these supplemental payments shall
6 cease at age 62 if the employee is eligible for social
7 security benefits under 42 U.S.C. ss. 402 and 423, whether or
8 not the employee has applied for such benefits. These
9 supplemental benefits shall be paid by the department division
10 out of the Workers' Compensation Administration Trust Fund
11 when the injury occurred subsequent to June 30, 1955, and
12 before July 1, 1984. These supplemental benefits shall be paid
13 by the employer when the injury occurred on or after July 1,
14 1984. Supplemental benefits are not payable for any period
15 prior to October 1, 1974.
16 2.a. The department division shall provide by rule for
17 the periodic reporting to the department division of all
18 earnings of any nature and social security income by the
19 injured employee entitled to or claiming additional
20 compensation under subparagraph 1. Neither the department
21 division nor the employer or carrier shall make any payment of
22 those additional benefits provided by subparagraph 1. for any
23 period during which the employee willfully fails or refuses to
24 report upon request by the department division in the manner
25 prescribed by such rules.
26 b. The department division shall provide by rule for
27 the periodic reporting to the employer or carrier of all
28 earnings of any nature and social security income by the
29 injured employee entitled to or claiming benefits for
30 permanent total disability. The employer or carrier is not
31 required to make any payment of benefits for permanent total
77
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 disability for any period during which the employee willfully
2 fails or refuses to report upon request by the employer or
3 carrier in the manner prescribed by such rules or if any
4 employee who is receiving permanent total disability benefits
5 refuses to apply for or cooperate with the employer or carrier
6 in applying for social security benefits.
7 3. When an injured employee receives a full or partial
8 lump-sum advance of the employee's permanent total disability
9 compensation benefits, the employee's benefits under this
10 paragraph shall be computed on the employee's weekly
11 compensation rate as reduced by the lump-sum advance.
12 (2) TEMPORARY TOTAL DISABILITY.--
13 (c) Temporary total disability benefits paid pursuant
14 to this subsection shall include such period as may be
15 reasonably necessary for training in the use of artificial
16 members and appliances, and shall include such period as the
17 employee may be receiving training and education under a
18 program pursuant to s. 440.491. Notwithstanding s. 440.02(9),
19 the date of maximum medical improvement for purposes of
20 paragraph (3)(b) shall be no earlier than the last day for
21 which such temporary disability benefits are paid.
22 (d) The department division shall, by rule, provide
23 for the periodic reporting to the department division,
24 employer, or carrier of all earned income, including income
25 from social security, by the injured employee who is entitled
26 to or claiming benefits for temporary total disability. The
27 employer or carrier is not required to make any payment of
28 benefits for temporary total disability for any period during
29 which the employee willfully fails or refuses to report upon
30 request by the employer or carrier in the manner prescribed by
31 the rules. The rule must require the claimant to personally
78
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 sign the claim form and attest that she or he has reviewed,
2 understands, and acknowledges the foregoing.
3 (3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--
4 (a) Impairment benefits.--
5 1. Once the employee has reached the date of maximum
6 medical improvement, impairment benefits are due and payable
7 within 20 days after the carrier has knowledge of the
8 impairment.
9 2. The three-member panel, in cooperation with the
10 department division, shall establish and use a uniform
11 permanent impairment rating schedule. This schedule must be
12 based on medically or scientifically demonstrable findings as
13 well as the systems and criteria set forth in the American
14 Medical Association's Guides to the Evaluation of Permanent
15 Impairment; the Snellen Charts, published by American Medical
16 Association Committee for Eye Injuries; and the Minnesota
17 Department of Labor and Industry Disability Schedules. The
18 schedule should be based upon objective findings. The schedule
19 shall be more comprehensive than the AMA Guides to the
20 Evaluation of Permanent Impairment and shall expand the areas
21 already addressed and address additional areas not currently
22 contained in the guides. On August 1, 1979, and pending the
23 adoption, by rule, of a permanent schedule, Guides to the
24 Evaluation of Permanent Impairment, copyright 1977, 1971,
25 1988, by the American Medical Association, shall be the
26 temporary schedule and shall be used for the purposes hereof.
27 For injuries after July 1, 1990, pending the adoption by
28 division rule of a uniform disability rating agency schedule,
29 the Minnesota Department of Labor and Industry Disability
30 Schedule shall be used unless that schedule does not address
31 an injury. In such case, the Guides to the Evaluation of
79
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 Permanent Impairment by the American Medical Association shall
2 be used. Determination of permanent impairment under this
3 schedule must be made by a physician licensed under chapter
4 458, a doctor of osteopathic medicine licensed under chapters
5 458 and 459, a chiropractic physician licensed under chapter
6 460, a podiatric physician licensed under chapter 461, an
7 optometrist licensed under chapter 463, or a dentist licensed
8 under chapter 466, as appropriate considering the nature of
9 the injury. No other persons are authorized to render opinions
10 regarding the existence of or the extent of permanent
11 impairment.
12 3. All impairment income benefits shall be based on an
13 impairment rating using the impairment schedule referred to in
14 subparagraph 2. Impairment income benefits are paid weekly at
15 the rate of 50 percent of the employee's average weekly
16 temporary total disability benefit not to exceed the maximum
17 weekly benefit under s. 440.12. An employee's entitlement to
18 impairment income benefits begins the day after the employee
19 reaches maximum medical improvement or the expiration of
20 temporary benefits, whichever occurs earlier, and continues
21 until the earlier of:
22 a. The expiration of a period computed at the rate of
23 3 weeks for each percentage point of impairment; or
24 b. The death of the employee.
25 4. After the employee has been certified by a doctor
26 as having reached maximum medical improvement or 6 weeks
27 before the expiration of temporary benefits, whichever occurs
28 earlier, the certifying doctor shall evaluate the condition of
29 the employee and assign an impairment rating, using the
30 impairment schedule referred to in subparagraph 2.
31 Compensation is not payable for the mental, psychological, or
80
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 emotional injury arising out of depression from being out of
2 work. If the certification and evaluation are performed by a
3 doctor other than the employee's treating doctor, the
4 certification and evaluation must be submitted to the treating
5 doctor, and the treating doctor must indicate agreement or
6 disagreement with the certification and evaluation. The
7 certifying doctor shall issue a written report to the
8 department division, the employee, and the carrier certifying
9 that maximum medical improvement has been reached, stating the
10 impairment rating, and providing any other information
11 required by the department by rule division. If the employee
12 has not been certified as having reached maximum medical
13 improvement before the expiration of 102 weeks after the date
14 temporary total disability benefits begin to accrue, the
15 carrier shall notify the treating doctor of the requirements
16 of this section.
17 5. The carrier shall pay the employee impairment
18 income benefits for a period based on the impairment rating.
19 6. The department division may by rule specify forms
20 and procedures governing the method of payment of wage loss
21 and impairment benefits for dates of accidents before January
22 1, 1994, and for dates of accidents on or after January 1,
23 1994.
24 (b) Supplemental benefits.--
25 1. All supplemental benefits must be paid in
26 accordance with this subsection. An employee is entitled to
27 supplemental benefits as provided in this paragraph as of the
28 expiration of the impairment period, if:
29 a. The employee has an impairment rating from the
30 compensable injury of 20 percent or more as determined
31 pursuant to this chapter;
81
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 b. The employee has not returned to work or has
2 returned to work earning less than 80 percent of the
3 employee's average weekly wage as a direct result of the
4 employee's impairment; and
5 c. The employee has in good faith attempted to obtain
6 employment commensurate with the employee's ability to work.
7 2. If an employee is not entitled to supplemental
8 benefits at the time of payment of the final weekly impairment
9 income benefit because the employee is earning at least 80
10 percent of the employee's average weekly wage, the employee
11 may become entitled to supplemental benefits at any time
12 within 1 year after the impairment income benefit period ends
13 if:
14 a. The employee earns wages that are less than 80
15 percent of the employee's average weekly wage for a period of
16 at least 90 days;
17 b. The employee meets the other requirements of
18 subparagraph 1.; and
19 c. The employee's decrease in earnings is a direct
20 result of the employee's impairment from the compensable
21 injury.
22 3. If an employee earns wages that are at least 80
23 percent of the employee's average weekly wage for a period of
24 at least 90 days during which the employee is receiving
25 supplemental benefits, the employee ceases to be entitled to
26 supplemental benefits for the filing period. Supplemental
27 benefits that have been terminated shall be reinstated when
28 the employee satisfies the conditions enumerated in
29 subparagraph 2. and files the statement required under
30 subparagraph 5. Notwithstanding any other provision, if an
31 employee is not entitled to supplemental benefits for 12
82
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 consecutive months, the employee ceases to be entitled to any
2 additional income benefits for the compensable injury. If the
3 employee is discharged within 12 months after losing
4 entitlement under this subsection, benefits may be reinstated
5 if the employee was discharged at that time with the intent to
6 deprive the employee of supplemental benefits.
7 4. During the period that impairment income benefits
8 or supplemental income benefits are being paid, the carrier
9 has the affirmative duty to determine at least annually
10 whether any extended unemployment or underemployment is a
11 direct result of the employee's impairment. To accomplish this
12 purpose, the division may require periodic reports from the
13 employee and the carrier, and it may, at the carrier's
14 expense, require any physical or other examinations,
15 vocational assessments, or other tests or diagnoses necessary
16 to verify that the carrier is performing its duty. Not more
17 than once in each 12 calendar months, the employee and the
18 carrier may each request that the division review the status
19 of the employee and determine whether the carrier has
20 performed its duty with respect to whether the employee's
21 unemployment or underemployment is a direct result of
22 impairment from the compensable injury.
23 4.5. After the initial determination of supplemental
24 benefits, the employee must file a statement with the carrier
25 stating that the employee has earned less than 80 percent of
26 the employee's average weekly wage as a direct result of the
27 employee's impairment, stating the amount of wages the
28 employee earned in the filing period, and stating that the
29 employee has in good faith sought employment commensurate with
30 the employee's ability to work. The statement must be filed
31 quarterly on a form and in the manner prescribed by the
83
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 department division. The department division may modify the
2 filing period as appropriate to an individual case. Failure to
3 file a statement relieves the carrier of liability for
4 supplemental benefits for the period during which a statement
5 is not filed.
6 5.6. The carrier shall begin payment of supplemental
7 benefits not later than the seventh day after the expiration
8 date of the impairment income benefit period and shall
9 continue to timely pay those benefits. The carrier may request
10 a mediation conference for the purpose of contesting the
11 employee's entitlement to or the amount of supplemental income
12 benefits.
13 6.7. Supplemental benefits are calculated quarterly
14 and paid monthly. For purposes of calculating supplemental
15 benefits, 80 percent of the employee's average weekly wage and
16 the average wages the employee has earned per week are
17 compared quarterly. For purposes of this paragraph, if the
18 employee is offered a bona fide position of employment that
19 the employee is capable of performing, given the physical
20 condition of the employee and the geographic accessibility of
21 the position, the employee's weekly wages are considered
22 equivalent to the weekly wages for the position offered to the
23 employee.
24 7.8. Supplemental benefits are payable at the rate of
25 80 percent of the difference between 80 percent of the
26 employee's average weekly wage determined pursuant to s.
27 440.14 and the weekly wages the employee has earned during the
28 reporting period, not to exceed the maximum weekly income
29 benefit under s. 440.12.
30 8.9. The department division may by rule define terms
31 that are necessary for the administration of this section and
84
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 forms and procedures governing the method of payment of
2 supplemental benefits for dates of accidents before January 1,
3 1994, and for dates of accidents on or after January 1, 1994.
4 (c) Duration of temporary impairment and supplemental
5 income benefits.--The employee's eligibility for temporary
6 benefits, impairment income benefits, and supplemental
7 benefits terminates on the expiration of 401 weeks after the
8 date of injury.
9 (4) TEMPORARY PARTIAL DISABILITY.--
10 (a) In case of temporary partial disability,
11 compensation shall be equal to 80 percent of the difference
12 between 80 percent of the employee's average weekly wage and
13 the salary, wages, and other remuneration the employee is able
14 to earn, as compared weekly; however, the weekly benefits may
15 not exceed an amount equal to 66 2/3 percent of the
16 employee's average weekly wage at the time of injury. In order
17 to simplify the comparison of the preinjury average weekly
18 wage with the salary, wages, and other remuneration the
19 employee is able to earn, the department division may by rule
20 provide for the modification of the weekly comparison so as to
21 coincide as closely as possible with the injured worker's pay
22 periods. The amount determined to be the salary, wages, and
23 other remuneration the employee is able to earn shall in no
24 case be less than the sum actually being earned by the
25 employee, including earnings from sheltered employment.
26 (b) Such benefits shall be paid during the continuance
27 of such disability, not to exceed a period of 104 weeks, as
28 provided by this subsection and subsection (2). Once the
29 injured employee reaches the maximum number of weeks,
30 temporary disability benefits cease and the injured worker's
31 permanent impairment must be determined. The department
85
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 division may by rule specify forms and procedures governing
2 the method of payment of temporary disability benefits for
3 dates of accidents before January 1, 1994, and for dates of
4 accidents on or after January 1, 1994.
5 (6) OBLIGATION TO REHIRE.--If the employer has not in
6 good faith made available to the employee, within a 100-mile
7 radius of the employee's residence, work appropriate to the
8 employee's physical limitations within 30 days after the
9 carrier notifies the employer of maximum medical improvement
10 and the employee's physical limitations, the employer shall
11 pay to the department division for deposit into the Workers'
12 Compensation Administration Trust Fund a fine of $250 for
13 every $5,000 of the employer's workers' compensation premium
14 or payroll, not to exceed $2,000 per violation, as the
15 department division requires by rule. The employer is not
16 subject to this subsection if the employee is receiving
17 permanent total disability benefits or if the employer has 50
18 or fewer employees.
19 (10) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER
20 AND FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE
21 ACT.--
22 (b) If the provisions of 42 U.S.C. s. 424(a) are
23 amended to provide for a reduction or increase of the
24 percentage of average current earnings that the sum of
25 compensation benefits payable under this chapter and the
26 benefits payable under 42 U.S.C. ss. 402 and 423 can equal,
27 the amount of the reduction of benefits provided in this
28 subsection shall be reduced or increased accordingly. The
29 department division may by rule specify forms and procedures
30 governing the method for calculating and administering the
31 offset of benefits payable under this chapter and benefits
86
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 payable under 42 U.S.C. ss. 402 and 423. The department
2 division shall have first priority in taking any available
3 social security offsets on dates of accidents occurring before
4 July 1, 1984.
5 (c) No disability compensation benefits payable for
6 any week, including those benefits provided by paragraph
7 (1)(f), shall be reduced pursuant to this subsection until the
8 Social Security Administration determines the amount otherwise
9 payable to the employee under 42 U.S.C. ss. 402 and 423 and
10 the employee has begun receiving such social security benefit
11 payments. The employee shall, upon demand by the department
12 division, the employer, or the carrier, authorize the Social
13 Security Administration to release disability information
14 relating to her or him and authorize the Division of
15 Unemployment Compensation to release unemployment compensation
16 information relating to her or him, in accordance with rules
17 to be adopted promulgated by the department division
18 prescribing the procedure and manner for requesting the
19 authorization and for compliance by the employee. Neither the
20 department division nor the employer or carrier shall make any
21 payment of benefits for total disability or those additional
22 benefits provided by paragraph (1)(f) for any period during
23 which the employee willfully fails or refuses to authorize the
24 release of information in the manner and within the time
25 prescribed by such rules. The authority for release of
26 disability information granted by an employee under this
27 paragraph shall be effective for a period not to exceed 12
28 months, such authority to be renewable as the department
29 division may prescribe by rule.
30
31
87
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 Section 29. Subsections (2), (3), (4), (5), (7), and
2 (10) of section 440.185, Florida Statutes, are amended to
3 read:
4 440.185 Notice of injury or death; reports; penalties
5 for violations.--
6 (2) Within 7 days after actual knowledge of injury or
7 death, the employer shall report such injury or death to its
8 carrier, in a format prescribed by the department division,
9 and shall provide a copy of such report to the employee or the
10 employee's estate. The report of injury shall contain the
11 following information:
12 (a) The name, address, and business of the employer;
13 (b) The name, social security number, street, mailing
14 address, telephone number, and occupation of the employee;
15 (c) The cause and nature of the injury or death;
16 (d) The year, month, day, and hour when, and the
17 particular locality where, the injury or death occurred; and
18 (e) Such other information as the department division
19 may require.
20
21 The carrier shall, within 14 days after the employer's receipt
22 of the form reporting the injury, file the information
23 required by this subsection with the department division in
24 Tallahassee. However, the department division may by rule
25 provide for a different reporting system for those types of
26 injuries which it determines should be reported in a different
27 manner and for those cases which involve minor injuries
28 requiring professional medical attention in which the employee
29 does not lose more than 7 days of work as a result of the
30 injury and is able to return to the job immediately after
31 treatment and resume regular work.
88
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (3) In addition to the requirements of subsection (2),
2 the employer shall notify the department division within 24
3 hours by telephone or telegraph of any injury resulting in
4 death. However, this special notice shall not be required
5 when death results subsequent to the submission to the
6 department division of a previous report of the injury
7 pursuant to subsection (2).
8 (4) Within 3 days after the employer or the employee
9 informs the carrier of an injury the carrier shall mail to the
10 injured worker an informational brochure approved by the
11 department division which sets forth in clear and
12 understandable language an explanation of the rights,
13 benefits, procedures for obtaining benefits and assistance,
14 criminal penalties, and obligations of injured workers and
15 their employers under the Florida Workers' Compensation Law.
16 Annually, the carrier or its third-party administrator shall
17 mail to the employer an informational brochure approved by the
18 department division which sets forth in clear and
19 understandable language an explanation of the rights,
20 benefits, procedures for obtaining benefits and assistance,
21 criminal penalties, and obligations of injured workers and
22 their employers under the Florida Workers' Compensation Law.
23 All such informational brochures shall contain a notice that
24 clearly states in substance the following: "Any person who,
25 knowingly and with intent to injure, defraud, or deceive any
26 employer or employee, insurance company, or self-insured
27 program, files a statement of claim containing any false or
28 misleading information commits a felony of the third degree."
29 (5) Additional reports with respect to such injury and
30 of the condition of such employee, including copies of medical
31 reports, funeral expenses, and wage statements, shall be filed
89
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 by the employer or carrier to the department division at such
2 times and in such manner as the department division may
3 prescribe by rule. In carrying out its responsibilities under
4 this chapter, the department or agency division may by rule
5 provide for the obtaining of any medical records relating to
6 medical treatment provided pursuant to this chapter,
7 notwithstanding the provisions of ss. 90.503 and 395.3025(4).
8 (7) Every carrier shall file with the department
9 division within 21 days after the issuance of a policy or
10 contract of insurance such policy information as the
11 department division requires, including notice of whether the
12 policy is a minimum premium policy. Notice of cancellation or
13 expiration of a policy as set out in s. 440.42(3) shall be
14 mailed to the department division in accordance with rules
15 adopted by the department division under chapter 120. The
16 department division may contract with a private entity for the
17 collection of policy information required to be filed by
18 carriers under this subsection and the receipt of notices of
19 cancellation or expiration of a policy required to be filed by
20 carriers under s. 440.42(3). The submission of policy
21 information or notices of cancellation or expiration to the
22 contracted private entity satisfies the filing requirements of
23 this subsection and s. 440.42(3).
24 (10) The department division may by rule prescribe
25 forms and procedures governing the submission of the change in
26 claims administration report and the risk class code and
27 standard industry code report for all lost time and denied
28 lost-time cases. The department division may by rule define
29 terms that are necessary for the effective administration of
30 this section.
31
90
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 Section 30. Subsection (1) and paragraph (d) of
2 subsection (2) of section 440.191, Florida Statutes, are
3 amended to read:
4 440.191 Employee Assistance and Ombudsman Office.--
5 (1)(a) In order to effect the self-executing features
6 of the Workers' Compensation Law, this chapter shall be
7 construed to permit injured employees and employers or the
8 employer's carrier to resolve disagreements without undue
9 expense, costly litigation, or delay in the provisions of
10 benefits. It is the duty of all who participate in the
11 workers' compensation system, including, but not limited to,
12 carriers, service providers, health care providers, attorneys,
13 employers, and employees, to attempt to resolve disagreements
14 in good faith and to cooperate with the department's
15 division's efforts to resolve disagreements between the
16 parties. The department division may by rule prescribe
17 definitions that are necessary for the effective
18 administration of this section.
19 (b) An Employee Assistance and Ombudsman Office is
20 created within the department Division of Workers'
21 Compensation to inform and assist injured workers, employers,
22 carriers, and health care providers in fulfilling their
23 responsibilities under this chapter. The department division
24 may by rule specify forms and procedures for administering
25 requests for assistance provided by this section.
26 (c) The Employee Assistance and Ombudsman Office,
27 Division of Workers' Compensation, shall be a resource
28 available to all employees who participate in the workers'
29 compensation system and shall take all steps necessary to
30 educate and disseminate information to employees and
31 employers.
91
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (2)
2 (d) The Employee Assistance and Ombudsman Office may
3 assign an ombudsman to assist the employee in resolving the
4 dispute. If the dispute is not resolved within 30 days after
5 the employee contacts the office, the ombudsman shall, at the
6 employee's request, assist the employee in drafting a petition
7 for benefits and explain the procedures for filing petitions.
8 The department division may by rule determine the method used
9 to calculate the 30-day period. The Employee Assistance and
10 Ombudsman Office may not represent employees before the judges
11 of compensation claims. An employer or carrier may not pay any
12 attorneys' fees on behalf of the employee for services
13 rendered or costs incurred in connection with this section,
14 unless expressly authorized elsewhere in this chapter.
15 Section 31. Subsection (1) of section 440.192, Florida
16 Statutes, is amended to read:
17 440.192 Procedure for resolving benefit disputes.--
18 (1) Subject to s. 440.191, any employee who has not
19 received a benefit to which the employee believes she or he is
20 entitled under this chapter shall file by certified mail, or
21 by electronic means approved by the Deputy Chief Judge, with
22 the Office of the Judges of Compensation Claims a petition for
23 benefits which meets the requirements of this section. The
24 department division shall inform employees of the location of
25 the Office of the Judges of Compensation Claims for purposes
26 of filing a petition for benefits. The employee shall also
27 serve copies of the petition for benefits by certified mail,
28 or by electronic means approved by the Deputy Chief Judge,
29 upon the employer and the employer's carrier. The Deputy Chief
30 Judge shall refer the petitions to the judges of compensation
31 claims.
92
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 Section 32. Subsections (1), (3), and (4) of section
2 440.1925, Florida Statutes, are amended to read:
3 440.1925 Procedure for resolving maximum medical
4 improvement or permanent impairment disputes.--
5 (1) Notwithstanding the limitations on carrier
6 independent medical examinations in s. 440.13, an employee or
7 carrier who wishes to obtain an opinion other than the opinion
8 of the treating physician or an agency a division advisor on
9 the issue of permanent impairment may obtain one independent
10 medical examination, except that the employee or carrier who
11 selects the treating physician is not entitled to obtain an
12 alternate opinion on the issue of permanent impairment, unless
13 the parties otherwise agree. This section and s. 440.13(2) do
14 not permit an employee or a carrier to obtain an additional
15 medical opinion on the issue of permanent impairment by
16 requesting an alternate treating physician pursuant to s.
17 440.13.
18 (3) Disputes shall be resolved under this section
19 when:
20 (a) A carrier that is entitled to obtain a
21 determination of an employee's date of maximum medical
22 improvement or permanent impairment has done so;
23 (b) The independent medical examiner's opinion on the
24 date of the employee's maximum medical improvement and degree
25 or permanent impairment differs from the opinion of the
26 employee's treating physician on either of those issues, or
27 from the opinion of the expert medical advisor appointed by
28 the agency division on the degree of permanent impairment; or
29 (c) The carrier denies any portion of an employee's
30 claim petition for benefits due to disputed maximum medical
31 improvement or permanent impairment issues.
93
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (4) Only opinions of the employee's treating
2 physician, an agency a division medical advisor, or an
3 independent medical examiner are admissible in proceedings
4 before a judge of compensation claims to resolve maximum
5 medical improvement or impairment disputes.
6 Section 33. Subsections (3), (6), (8), (9), (10),
7 (11), (12), (15), (16), and (17) of section 440.20, Florida
8 Statutes, are amended to read:
9 440.20 Time for payment of compensation; penalties for
10 late payment.--
11 (3) Upon making payment, or upon suspension or
12 cessation of payment for any reason, the carrier shall
13 immediately notify the department division that it has
14 commenced, suspended, or ceased payment of compensation. The
15 department division may require such notification in any
16 format and manner it deems necessary to obtain accurate and
17 timely reporting.
18 (6) If any installment of compensation for death or
19 dependency benefits, disability, permanent impairment, or wage
20 loss payable without an award is not paid within 7 days after
21 it becomes due, as provided in subsection (2), subsection (3),
22 or subsection (4), there shall be added to such unpaid
23 installment a punitive penalty of an amount equal to 20
24 percent of the unpaid installment or $5, which shall be paid
25 at the same time as, but in addition to, such installment of
26 compensation, unless notice is filed under subsection (4) or
27 unless such nonpayment results from conditions over which the
28 employer or carrier had no control. When any installment of
29 compensation payable without an award has not been paid within
30 7 days after it became due and the claimant concludes the
31 prosecution of the claim before a judge of compensation claims
94
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 without having specifically claimed additional compensation in
2 the nature of a penalty under this section, the claimant will
3 be deemed to have acknowledged that, owing to conditions over
4 which the employer or carrier had no control, such installment
5 could not be paid within the period prescribed for payment and
6 to have waived the right to claim such penalty. However,
7 during the course of a hearing, the judge of compensation
8 claims shall on her or his own motion raise the question of
9 whether such penalty should be awarded or excused. The
10 department division may assess without a hearing the punitive
11 penalty against either the employer or the insurance carrier,
12 depending upon who was at fault in causing the delay. The
13 insurance policy cannot provide that this sum will be paid by
14 the carrier if the department division or the judge of
15 compensation claims determines that the punitive penalty
16 should be made by the employer rather than the carrier. Any
17 additional installment of compensation paid by the carrier
18 pursuant to this section shall be paid directly to the
19 employee.
20 (8) In addition to any other penalties provided by
21 this chapter for late payment, if any installment of
22 compensation is not paid when it becomes due, the employer,
23 carrier, or servicing agent shall pay interest thereon at the
24 rate of 12 percent per year from the date the installment
25 becomes due until it is paid, whether such installment is
26 payable without an order or under the terms of an order. The
27 interest payment shall be the greater of the amount of
28 interest due or $5.
29 (a) Within 30 days after final payment of compensation
30 has been made, the employer, carrier, or servicing agent shall
31 send to the department division a notice, in accordance with a
95
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 format and manner form prescribed by the department division,
2 stating that such final payment has been made and stating the
3 total amount of compensation paid, the name of the employee
4 and of any other person to whom compensation has been paid,
5 the date of the injury or death, and the date to which
6 compensation has been paid.
7 (b) If the employer, carrier, or servicing agent fails
8 to so notify the department division within such time, the
9 department division shall assess against such employer,
10 carrier, or servicing agent a civil penalty in an amount not
11 over $100.
12 (c) In order to ensure carrier compliance under this
13 chapter and provisions of the Florida Insurance Code, the
14 department division shall monitor the performance of carriers
15 by conducting market conduct examinations, as provided in s.
16 624.3161, and conducting investigations, as provided in s.
17 624.317. The department division shall establish by rule
18 minimum performance standards for carriers to ensure that a
19 minimum of 90 percent of all compensation benefits are timely
20 paid. The department division shall fine a carrier as provided
21 in s. 440.13(11)(b) up to $250 $50 for each late payment of
22 compensation. If the department finds patterns or practices of
23 untimely payment, the department shall impose penalties as
24 provided pursuant to s. 624.4211 that is below the minimum 90
25 percent performance standard. This paragraph does not affect
26 the imposition of any penalties or interest due to the
27 claimant. If a carrier contracts with a servicing agent to
28 fulfill its administrative responsibilities under this
29 chapter, the payment practices of the servicing agent are
30 deemed the payment practices of the carrier for the purpose of
31 assessing penalties against the carrier.
96
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (9) The department division may upon its own
2 initiative at any time in a case in which payments are being
3 made without an award investigate same and shall, in any case
4 in which the right to compensation is controverted, or in
5 which payments of compensation have been stopped or suspended,
6 upon receipt of notice from any person entitled to
7 compensation or from the employer that the right to
8 compensation is controverted or that payments of compensation
9 have been stopped or suspended, make such investigations,
10 cause such medical examination to be made, or hold such
11 hearings, and take such further action as it considers will
12 properly protect the rights of all parties.
13 (10) Whenever the department division deems it
14 advisable, it may require any employer to make a deposit with
15 the Treasurer to secure the prompt and convenient payments of
16 such compensation; and payments therefrom upon any awards
17 shall be made upon order of the department division or judge
18 of compensation claims.
19 (11)(a) When a claimant is not represented by counsel,
20 upon joint petition of all interested parties, a lump-sum
21 payment in exchange for the employer's or carrier's release
22 from liability for future medical expenses, as well as future
23 payments of compensation expenses and any other benefits
24 provided under this chapter, shall be allowed at any time in
25 any case in which the employer or carrier has filed a written
26 notice of denial within 120 days after the employer receives
27 notice of the injury, and the judge of compensation claims at
28 a hearing to consider the settlement proposal finds a
29 justiciable controversy as to legal or medical compensability
30 of the claimed injury or the alleged accident. The employer
31 or carrier may not pay any attorney's fees on behalf of the
97
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 claimant for any settlement under this section unless
2 expressly authorized elsewhere in this chapter. Upon the joint
3 petition of all interested parties and after giving due
4 consideration to the interests of all interested parties, the
5 judge of compensation claims may enter a compensation order
6 approving and authorizing the discharge of the liability of
7 the employer for compensation and remedial treatment, care,
8 and attendance, as well as rehabilitation expenses, by the
9 payment of a lump sum. Such a compensation order so entered
10 upon joint petition of all interested parties is not subject
11 to modification or review under s. 440.28. If the settlement
12 proposal together with supporting evidence is not approved by
13 the judge of compensation claims, it shall be considered void.
14 Upon approval of a lump-sum settlement under this subsection,
15 the judge of compensation claims shall send a report to the
16 Chief Judge of the amount of the settlement and a statement of
17 the nature of the controversy. The Chief Judge shall keep a
18 record of all such reports filed by each judge of compensation
19 claims and shall submit to the Legislature a summary of all
20 such reports filed under this subsection annually by September
21 15.
22 (b) When a claimant is not represented by counsel,
23 upon joint petition of all interested parties, a lump-sum
24 payment in exchange for the employer's or carrier's release
25 from liability for future medical expenses, as well as future
26 payments of compensation and rehabilitation expenses, and any
27 other benefits provided under this chapter, may be allowed at
28 any time in any case after the injured employee has attained
29 maximum medical improvement. An employer or carrier may not
30 pay any attorney's fees on behalf of the claimant for any
31 settlement, unless expressly authorized elsewhere in this
98
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 chapter. A compensation order so entered upon joint petition
2 of all interested parties shall not be subject to modification
3 or review under s. 440.28. However, a judge of compensation
4 claims is not required to approve any award for lump-sum
5 payment when it is determined by the judge of compensation
6 claims that the payment being made is in excess of the value
7 of benefits the claimant would be entitled to under this
8 chapter. The judge of compensation claims shall make or cause
9 to be made such investigations as she or he considers
10 necessary, in each case in which the parties have stipulated
11 that a proposed final settlement of liability of the employer
12 for compensation shall not be subject to modification or
13 review under s. 440.28, to determine whether such final
14 disposition will definitely aid the rehabilitation of the
15 injured worker or otherwise is clearly for the best interests
16 of the person entitled to compensation and, in her or his
17 discretion, may have an investigation made by the
18 Rehabilitation Section of the Division of Workers'
19 Compensation. The joint petition and the report of any
20 investigation so made will be deemed a part of the proceeding.
21 An employer shall have the right to appear at any hearing
22 pursuant to this subsection which relates to the discharge of
23 such employer's liability and to present testimony at such
24 hearing. The carrier shall provide reasonable notice to the
25 employer of the time and date of any such hearing and inform
26 the employer of her or his rights to appear and testify. The
27 probability of the death of the injured employee or other
28 person entitled to compensation before the expiration of the
29 period during which such person is entitled to compensation
30 shall, in the absence of special circumstances making such
31 course improper, be determined in accordance with the most
99
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 recent United States Life Tables published by the National
2 Office of Vital Statistics of the United States Department of
3 Health and Human Services. The probability of the happening of
4 any other contingency affecting the amount or duration of the
5 compensation, except the possibility of the remarriage of a
6 surviving spouse, shall be disregarded. As a condition of
7 approving a lump-sum payment to a surviving spouse, the judge
8 of compensation claims, in the judge of compensation claims'
9 discretion, may require security which will ensure that, in
10 the event of the remarriage of such surviving spouse, any
11 unaccrued future payments so paid may be recovered or recouped
12 by the employer or carrier. Such applications shall be
13 considered and determined in accordance with s. 440.25.
14 (c) Notwithstanding s. 440.21(2), when a claimant is
15 represented by counsel, the claimant may waive all rights to
16 any and all benefits under this chapter by entering into a
17 settlement agreement releasing the employer and the carrier
18 from liability for workers' compensation benefits in exchange
19 for a lump-sum payment to the claimant. The settlement
20 agreement requires approval by the judge of compensation
21 claims only as to the attorney's fees paid to the claimant's
22 attorney by the claimant. The parties need not submit any
23 information or documentation in support of the settlement,
24 except as needed to justify the amount of the attorney's fees.
25 Neither the employer nor the carrier is responsible for any
26 attorney's fees relating to the settlement and release of
27 claims under this section. Payment of the lump-sum settlement
28 amount must be made within 14 days after the date the judge of
29 compensation claims mails the order approving the attorney's
30 fees. Any order entered by a judge of compensation claims
31 approving the attorney's fees as set out in the settlement
100
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 under this subsection is not considered to be an award and is
2 not subject to modification or review. The judge of
3 compensation claims shall report these settlements to the
4 Deputy Chief Judge in accordance with the requirements set
5 forth in paragraphs (a) and (b). Settlements entered into
6 under this subsection are valid and apply to all dates of
7 accident.
8 (d)1. With respect to any lump-sum settlement under
9 this subsection, a judge of compensation claims must consider
10 at the time of the settlement, whether the settlement
11 allocation provides for the appropriate recovery of child
12 support arrearages.
13 2. When reviewing any settlement of lump-sum payment
14 pursuant to this subsection, judges of compensation claims
15 shall consider the interests of the worker and the worker's
16 family when approving the settlement, which must consider and
17 provide for appropriate recovery of past due support.
18 (e) This section applies to all claims that the
19 parties have not previously settled, regardless of the date of
20 accident.
21 (12)(a) Liability of an employer for future payments
22 of compensation may not be discharged by advance payment
23 unless prior approval of a judge of compensation claims or the
24 department division has been obtained as hereinafter provided.
25 The approval shall not constitute an adjudication of the
26 claimant's percentage of disability.
27 (b) When the claimant has reached maximum recovery and
28 returned to her or his former or equivalent employment with no
29 substantial reduction in wages, such approval of a reasonable
30 advance payment of a part of the compensation payable to the
31 claimant may be given informally by letter by a judge of
101
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 compensation claims or, by the department division director,
2 or by the administrator of claims of the division.
3 (c) In the event the claimant has not returned to the
4 same or equivalent employment with no substantial reduction in
5 wages or has suffered a substantial loss of earning capacity
6 or a physical impairment, actual or apparent:
7 1. An advance payment of compensation not in excess of
8 $2,000 may be approved informally by letter, without hearing,
9 by any judge of compensation claims or the Chief Judge.
10 2. An advance payment of compensation not in excess of
11 $2,000 may be ordered by any judge of compensation claims
12 after giving the interested parties an opportunity for a
13 hearing thereon pursuant to not less than 10 days' notice by
14 mail, unless such notice is waived, and after giving due
15 consideration to the interests of the person entitled thereto.
16 When the parties have stipulated to an advance payment of
17 compensation not in excess of $2,000, such advance may be
18 approved by an order of a judge of compensation claims, with
19 or without hearing, or informally by letter by any such judge
20 of compensation claims, or by the department division
21 director, if such advance is found to be for the best
22 interests of the person entitled thereto.
23 3. When the parties have stipulated to an advance
24 payment in excess of $2,000, subject to the approval of the
25 department division, such payment may be approved by a judge
26 of compensation claims by order if the judge finds that such
27 advance payment is for the best interests of the person
28 entitled thereto and is reasonable under the circumstances of
29 the particular case. The judge of compensation claims shall
30 make or cause to be made such investigations as she or he
31 considers necessary concerning the stipulation and, in her or
102
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 his discretion, may have an investigation of the matter made
2 by the Rehabilitation Section of the division. The stipulation
3 and the report of any investigation shall be deemed a part of
4 the record of the proceedings.
5 (d) When an application for an advance payment in
6 excess of $2,000 is opposed by the employer or carrier, it
7 shall be heard by a judge of compensation claims after giving
8 the interested parties not less than 10 days' notice of such
9 hearing by mail, unless such notice is waived. In her or his
10 discretion, the judge of compensation claims may have an
11 investigation of the matter made by the Rehabilitation Section
12 of the division, in which event the report and recommendation
13 of that section will be deemed a part of the record of the
14 proceedings. If the judge of compensation claims finds that
15 such advance payment is for the best interests of the person
16 entitled to compensation, will not materially prejudice the
17 rights of the employer and carrier, and is reasonable under
18 the circumstances of the case, she or he may order the same
19 paid. However, in no event may any such advance payment under
20 this paragraph be granted in excess of $7,500 or 26 weeks of
21 benefits in any 48-month period, whichever is greater, from
22 the date of the last advance payment.
23 (15)(a) The department division shall examine on an
24 ongoing basis claims files in accordance with s. 624.3161 and
25 may impose fines pursuant to s. 624.310(5) and this chapter in
26 order to identify questionable claims-handling techniques,
27 questionable patterns or practices of claims, or a pattern of
28 repeated unreasonably controverted claims by employers,
29 carriers, as defined in s. 440.02, self-insurers, health care
30 providers, health care facilities, training and education
31 providers, or any others providing services to employees
103
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 pursuant to this chapter and may certify its findings to the
2 Department of Insurance. If the department finds such
3 questionable techniques, patterns, or repeated unreasonably
4 controverted claims as constitute a general business practice
5 of a carrier, as defined in s. 440.02 in the judgment of the
6 division shall be certified in its findings by the division to
7 the Department of Insurance or such other appropriate
8 licensing agency. Such certification by the division is exempt
9 from the provisions of chapter 120. Upon receipt of any such
10 certification, the department of Insurance shall take
11 appropriate action so as to bring such general business
12 practices to a halt pursuant to s. 440.38(3)(a) or may impose
13 penalties pursuant to s. 624.4211. The department division may
14 initiate investigations of questionable techniques, patterns,
15 practices, or repeated unreasonably controverted claims. The
16 department division may by rule establish forms and procedures
17 for corrective action plans and for auditing carriers.
18 (b) As to any examination, investigation, or hearing
19 being conducted under this chapter, the Insurance Commissioner
20 or his or her Secretary of Labor and Employment Security or
21 the secretary's designee:
22 1. May administer oaths, examine and cross-examine
23 witnesses, receive oral and documentary evidence; and
24 2. Shall have the power to subpoena witnesses, compel
25 their attendance and testimony, and require by subpoena the
26 production of books, papers, records, files, correspondence,
27 documents, or other evidence which is relevant to the inquiry.
28 (c) If any person refuses to comply with any such
29 subpoena or to testify as to any matter concerning which she
30 or he may be lawfully interrogated, the Circuit Court of Leon
31 County or of the county wherein such examination,
104
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 investigation, or hearing is being conducted, or of the county
2 wherein such person resides, may, on the application of the
3 department, issue an order requiring such person to comply
4 with the subpoena and to testify.
5 (d) Subpoenas shall be served, and proof of such
6 service made, in the same manner as if issued by a circuit
7 court. Witness fees, costs, and reasonable travel expenses, if
8 claimed, shall be allowed the same as for testimony in a
9 circuit court.
10 (e) The department division shall publish annually a
11 report which indicates the promptness of first payment of
12 compensation records of each carrier or self-insurer so as to
13 focus attention on those carriers or self-insurers with poor
14 payment records for the preceding year. A copy of such report
15 shall be certified to The department of Insurance which shall
16 take appropriate steps so as to cause such poor carrier
17 payment practices to halt pursuant to s. 440.38(3)(a). In
18 addition, the department division shall take appropriate
19 action so as to halt such poor payment practices of
20 self-insurers. "Poor payment practice" means a practice of
21 late payment sufficient to constitute a general business
22 practice.
23 (f) The department division shall promulgate rules
24 providing guidelines to carriers, as defined in s. 440.02,
25 self-insurers, and employers to indicate behavior that may be
26 construed as questionable claims-handling techniques,
27 questionable patterns of claims, repeated unreasonably
28 controverted claims, or poor payment practices.
29 (16) No penalty assessed under this section may be
30 recouped by any carrier or self-insurer in the rate base, the
31 premium, or any rate filing. In the case of carriers, The
105
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 Department of Insurance shall enforce this subsection; and in
2 the case of self-insurers, the division shall enforce this
3 subsection.
4 (17) The department division may by rule establish
5 audit procedures and set standards for the Automated Carrier
6 Performance System.
7 Section 34. Subsections (1) and (2) of section
8 440.207, Florida Statutes, are amended to read:
9 440.207 Workers' compensation system guide.--
10 (1) The department Division of Workers' Compensation
11 of the Department of Labor and Employment Security shall
12 educate all persons providing or receiving benefits pursuant
13 to this chapter as to their rights and responsibilities under
14 this chapter.
15 (2) The department division shall publish an
16 understandable guide to the workers' compensation system which
17 shall contain an explanation of benefits provided; services
18 provided by the Employee Assistance and Ombudsman Office;
19 procedures regarding mediation, the hearing process, and civil
20 and criminal penalties; relevant rules of the department
21 division; and such other information as the department
22 division believes will inform employees, employers, carriers,
23 and those providing services pursuant to this chapter of their
24 rights and responsibilities under this chapter and the rules
25 of the department division. For the purposes of this
26 subsection, a guide is understandable if the text of the guide
27 is written at a level of readability not exceeding the eighth
28 grade level, as determined by a recognized readability test.
29 Section 35. Subsection (1) of section 440.211, Florida
30 Statutes, is amended to read:
31
106
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 440.211 Authorization of collective bargaining
2 agreement.--
3 (1) Subject to the limitation stated in subsection
4 (2), a provision that is mutually agreed upon in any
5 collective bargaining agreement filed with the department
6 division between an individually self-insured employer or
7 other employer upon consent of the employer's carrier and a
8 recognized or certified exclusive bargaining representative
9 establishing any of the following shall be valid and binding:
10 (a) An alternative dispute resolution system to
11 supplement, modify, or replace the provisions of this chapter
12 which may include, but is not limited to, conciliation,
13 mediation, and arbitration. Arbitration held pursuant to this
14 section shall be binding on the parties.
15 (b) The use of an agreed-upon list of certified health
16 care providers of medical treatment which may be the exclusive
17 source of all medical treatment under this chapter.
18 (c) The use of a limited list of physicians to conduct
19 independent medical examinations which the parties may agree
20 shall be the exclusive source of independent medical examiners
21 pursuant to this chapter.
22 (d) A light-duty, modified-job, or return-to-work
23 program.
24 (e) A vocational rehabilitation or retraining program.
25 Section 36. Subsections (1), (2), and (3) of section
26 440.24, Florida Statutes, are amended to read:
27 440.24 Enforcement of compensation orders;
28 penalties.--
29 (1) In case of default by the employer or carrier in
30 the payment of compensation due under any compensation order
31 of a judge of compensation claims or other failure by the
107
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 employer or carrier to comply with such order within 10 days
2 after the order becomes final, any circuit court of this state
3 within the jurisdiction of which the employer or carrier
4 resides or transacts business shall, upon application by the
5 department division or any beneficiary under such order, have
6 jurisdiction to issue a rule nisi directing such employer or
7 carrier to show cause why a writ of execution, or such other
8 process as may be necessary to enforce the terms of such
9 order, shall not be issued, and, unless such cause is shown,
10 the court shall have jurisdiction to issue a writ of execution
11 or such other process or final order as may be necessary to
12 enforce the terms of such order of the judge of compensation
13 claims.
14 (2) In any case where the employer is insured and the
15 carrier fails to comply with any compensation order of a judge
16 of compensation claims or court within 10 days after such
17 order becomes final, the division shall notify the department
18 of Insurance of such failure, and the Department of Insurance
19 shall thereupon suspend the license of such carrier to do an
20 insurance business in this state, until such carrier has
21 complied with such order.
22 (3) In any case where the employer is a self-insurer
23 and fails to comply with any compensation order of a judge of
24 compensation claims or court within 10 days after such order
25 becomes final, the department division may suspend or revoke
26 any authorization previously given to the employer to become a
27 self-insurer, and the department division may sell such of the
28 securities deposited by such self-insurer with the department
29 division as may be necessary to satisfy such order.
30 Section 37. Subsections (5) and (7) of section 440.25,
31 Florida Statutes, are amended to read:
108
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 440.25 Procedures for mediation and hearings.--
2 (5)(a) Procedures with respect to appeals from orders
3 of judges of compensation claims shall be governed by rules
4 adopted by the Supreme Court. Such an order shall become final
5 30 days after mailing of copies of such order to the parties,
6 unless appealed pursuant to such rules.
7 (b) An appellant may be relieved of any necessary
8 filing fee by filing a verified petition of indigency for
9 approval as provided in s. 57.081(1) and may be relieved in
10 whole or in part from the costs for preparation of the record
11 on appeal if, within 15 days after the date notice of the
12 estimated costs for the preparation is served, the appellant
13 files with the judge of compensation claims a copy of the
14 designation of the record on appeal, and a verified petition
15 to be relieved of costs. A verified petition filed prior to
16 the date of service of the notice of the estimated costs shall
17 be deemed not timely filed. The verified petition relating to
18 record costs shall contain a sworn statement that the
19 appellant is insolvent and a complete, detailed, and sworn
20 financial affidavit showing all the appellant's assets,
21 liabilities, and income. Failure to state in the affidavit all
22 assets and income, including marital assets and income, shall
23 be grounds for denying the petition with prejudice. The Office
24 of the Judges of Compensation Claims shall adopt rules as may
25 be required pursuant to this subsection, including forms for
26 use in all petitions brought under this subsection. The
27 appellant's attorney, or the appellant if she or he is not
28 represented by an attorney, shall include as a part of the
29 verified petition relating to record costs an affidavit or
30 affirmation that, in her or his opinion, the notice of appeal
31 was filed in good faith and that there is a probable basis for
109
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 the District Court of Appeal, First District, to find
2 reversible error, and shall state with particularity the
3 specific legal and factual grounds for the opinion. Failure to
4 so affirm shall be grounds for denying the petition. A copy of
5 the verified petition relating to record costs shall be served
6 upon all interested parties. The judge of compensation claims
7 shall promptly conduct a hearing on the verified petition
8 relating to record costs, giving at least 15 days' notice to
9 the appellant, the department division, and all other
10 interested parties, all of whom shall be parties to the
11 proceedings. The judge of compensation claims may enter an
12 order without such hearing if no objection is filed by an
13 interested party within 20 days from the service date of the
14 verified petition relating to record costs. Such proceedings
15 shall be conducted in accordance with the provisions of this
16 section and with the workers' compensation rules of procedure,
17 to the extent applicable. In the event an insolvency petition
18 is granted, the judge of compensation claims shall direct the
19 department division to pay record costs and filing fees from
20 the Workers' Compensation Administration Trust Fund pending
21 final disposition of the costs of appeal. The department
22 division may transcribe or arrange for the transcription of
23 the record in any proceeding for which it is ordered to pay
24 the cost of the record.
25 (c) As a condition of filing a notice of appeal to the
26 District Court of Appeal, First District, an employer who has
27 not secured the payment of compensation under this chapter in
28 compliance with s. 440.38 shall file with the notice of appeal
29 a good and sufficient bond, as provided in s. 59.13,
30 conditioned to pay the amount of the demand and any interest
31 and costs payable under the terms of the order if the appeal
110
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 is dismissed, or if the District Court of Appeal, First
2 District, affirms the award in any amount. Upon the failure of
3 such employer to file such bond with the judge of compensation
4 claims or the District Court of Appeal, First District, along
5 with the notice of appeal, the District Court of Appeal, First
6 District, shall dismiss the notice of appeal.
7 (7) An injured employee claiming or entitled to
8 compensation shall submit to such physical examination by a
9 certified expert medical advisor approved by the agency
10 division or the judge of compensation claims as the agency
11 division or the judge of compensation claims may require. The
12 place or places shall be reasonably convenient for the
13 employee. Such physician or physicians as the employee,
14 employer, or carrier may select and pay for may participate in
15 an examination if the employee, employer, or carrier so
16 requests. Proceedings shall be suspended and no compensation
17 shall be payable for any period during which the employee may
18 refuse to submit to examination. Any interested party shall
19 have the right in any case of death to require an autopsy, the
20 cost thereof to be borne by the party requesting it; and the
21 judge of compensation claims shall have authority to order and
22 require an autopsy and may, in her or his discretion, withhold
23 her or his findings and award until an autopsy is held.
24 Section 38. Section 440.271, Florida Statutes, is
25 amended to read:
26 440.271 Appeal of order of judge of compensation
27 claims.--Review of any order of a judge of compensation claims
28 entered pursuant to this chapter shall be by appeal to the
29 District Court of Appeal, First District. Appeals shall be
30 filed in accordance with rules of procedure prescribed by the
31 Supreme Court for review of such orders. The department
111
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 division shall be given notice of any proceedings pertaining
2 to s. 440.25, regarding indigency, or s. 440.49, regarding the
3 Special Disability Trust Fund, and shall have the right to
4 intervene in any proceedings.
5 Section 39. Section 440.345, Florida Statutes, is
6 amended to read:
7 440.345 Reporting of attorney's fees.--All fees paid
8 to attorneys for services rendered under this chapter shall be
9 reported to the Office of the Judges of Compensation Claims as
10 the Division of Administrative Hearings Office of the Judges
11 of Compensation Claims requires by rule. The Office of the
12 Judges of Compensation Claims shall annually summarize such
13 data in a report to the Workers' Compensation Oversight Board.
14 Section 40. Section 440.35, Florida Statutes, is
15 amended to read:
16 440.35 Record of injury or death.--Every employer
17 shall keep a record in respect of any injury to an employee.
18 Such record shall contain such information of disability or
19 death in respect of such injury as the department division may
20 by regulation require, and shall be available to inspection by
21 the department division or by any state authority at such time
22 and under such conditions as the department division may by
23 regulation prescribe.
24 Section 41. Subsections (1), (2), and (3) of section
25 440.38, Florida Statutes, are amended to read:
26 440.38 Security for compensation; insurance carriers
27 and self-insurers.--
28 (1) Every employer shall secure the payment of
29 compensation under this chapter:
30 (a) By insuring and keeping insured the payment of
31 such compensation with any stock company or mutual company or
112
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 association or exchange, authorized to do business in the
2 state;
3 (b) By furnishing satisfactory proof to the department
4 division of its financial ability to pay such compensation
5 individually and on behalf of its subsidiary and affiliated
6 companies with employees in this state and receiving an
7 authorization from the department division to pay such
8 compensation directly in accordance with the following
9 provisions:
10 1. The department division may require an employer to
11 deposit with the department division a qualifying security
12 deposit. The department division shall determine the type and
13 amount of the qualifying security deposit and shall prescribe
14 conditions for the qualifying security deposit, which shall
15 include authorization for the department division to call the
16 qualifying security deposit in the case of default. In
17 addition, the department division shall require, as a
18 condition to authorization to self-insure, proof that the
19 employer has provided for competent personnel with whom to
20 deliver benefits and to provide a safe working environment.
21 Further, the department division shall require such employer
22 to carry reinsurance at levels that will ensure the actuarial
23 soundness of such employer in accordance with rules adopted
24 promulgated by the department division. The department
25 division may by rule require that, in the event of an
26 individual self-insurer's insolvency, such qualifying security
27 deposits and reinsurance policies are payable to the Florida
28 Self-Insurers Guaranty Association, Incorporated, created
29 pursuant to s. 440.385. Any employer securing compensation in
30 accordance with the provisions of this paragraph shall be
31
113
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 known as a self-insurer and shall be classed as a carrier of
2 her or his own insurance.
3 2. If the employer fails to maintain the foregoing
4 requirements, the department division shall revoke the
5 employer's authority to self-insure, unless the employer
6 provides to the department division the certified opinion of
7 an independent actuary who is a member of the American Academy
8 Society of Actuaries as to the actuarial present value of the
9 employer's determined and estimated future compensation
10 payments based on cash reserves, using a 4-percent discount
11 rate, and a qualifying security deposit equal to 1.5 times the
12 value so certified. The employer shall thereafter annually
13 provide such a certified opinion until such time as the
14 employer meets the requirements of subparagraph 1. The
15 qualifying security deposit shall be adjusted at the time of
16 each such annual report. Upon the failure of the employer to
17 timely provide such opinion or to timely provide a security
18 deposit in an amount equal to 1.5 times the value certified in
19 the latest opinion, the department division shall then revoke
20 such employer's authorization to self-insure, and such failure
21 shall be deemed to constitute an immediate serious danger to
22 the public health, safety, or welfare sufficient to justify
23 the summary suspension of the employer's authorization to
24 self-insure pursuant to s. 120.68.
25 3. Upon the suspension or revocation of the employer's
26 authorization to self-insure, the employer shall provide to
27 the department division and to the Florida Self-Insurers
28 Guaranty Association, Incorporated, created pursuant to s.
29 440.385 the certified opinion of an independent actuary who is
30 a member of the American Academy Society of Actuaries of the
31 actuarial present value of the determined and estimated future
114
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 compensation payments of the employer for claims incurred
2 while the member exercised the privilege of self-insurance,
3 using a discount rate of 4 percent. The employer shall provide
4 such an opinion at 6-month intervals thereafter until such
5 time as the latest opinion shows no remaining value of claims.
6 With each such opinion, the employer shall deposit with the
7 department division a qualifying security deposit in an amount
8 equal to the value certified by the actuary. The association
9 has a cause of action against an employer, and against any
10 successor of the employer, who fails to timely provide such
11 opinion or who fails to timely maintain the required security
12 deposit with the department division. The association shall
13 recover a judgment in the amount of the actuarial present
14 value of the determined and estimated future compensation
15 payments of the employer for claims incurred while the
16 employer exercised the privilege of self-insurance, together
17 with attorney's fees. For purposes of this section, the
18 successor of an employer means any person, business entity, or
19 group of persons or business entities, which holds or acquires
20 legal or beneficial title to the majority of the assets or the
21 majority of the shares of the employer.
22 4. A qualifying security deposit shall consist, at the
23 option of the employer, of:
24 a. Surety bonds, in a form and containing such terms
25 as prescribed by the department division, issued by a
26 corporation surety authorized to transact surety business by
27 the Department of Insurance, and whose policyholders' and
28 financial ratings, as reported in A.M. Best's Insurance
29 Reports, Property-Liability, are not less than "A" and "V",
30 respectively.
31
115
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 b. Irrevocable letters of credit in favor of the
2 department division issued by financial institutions located
3 within this state, the deposits of which are insured through
4 the Federal Deposit Insurance Corporation.
5 5. The qualifying security deposit shall be held by
6 the department division exclusively for the benefit of
7 workers' compensation claimants. The security shall not be
8 subject to assignment, execution, attachment, or any legal
9 process whatsoever, except as necessary to guarantee the
10 payment of compensation under this chapter. No surety bond
11 may be terminated, and no letter of credit may be allowed to
12 expire, without 90 days' prior notice to the department
13 division and deposit by the self-insuring employer of some
14 other qualifying security deposit of equal value within 10
15 business days after such notice. Failure to provide such
16 notice or failure to timely provide qualifying replacement
17 security after such notice shall constitute grounds for the
18 department division to call or sue upon the surety bond or to
19 exercise its rights under a letter of credit. Current
20 self-insured employers must comply with this section on or
21 before December 31, 2001, or upon the maturity of existing
22 security deposits, whichever occurs later. The department
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 in effect as of July 1, 1983. The
30 department division shall adopt rules to implement this
31 paragraph;
116
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
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
117
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
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 division has actually received the notification.
26 The division must be notified of replacement coverage under a
27 workers' compensation and employer's liability insurance
28 policy or plan by the employer prior to the effective date of
29 the cancellation, termination, or nonrenewal; or
30 (f) By entering into a contract with an individual
31 self-insurer under an approved individual
118
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 self-insurer-provided self-insurance program as set forth in
2 s. 624.46225. The department division may adopt rules to
3 administer this subsection.
4 (2)(a) The department division shall adopt rules by
5 which businesses may become qualified to provide underwriting
6 claims-adjusting, loss control, and safety engineering
7 services to self-insurers.
8 (b) The department division shall adopt rules
9 requiring self-insurers to file any reports necessary to
10 fulfill the requirements of this chapter. Any self-insurer
11 who fails to file any report as prescribed by the rules
12 adopted by the department division shall be subject to a civil
13 penalty not to exceed $100 for each such failure.
14 (3)(a) The license of any stock company or mutual
15 company or association or exchange authorized to do insurance
16 business in the state shall for good cause, upon
17 recommendation of the division, be suspended or revoked by the
18 Department of Insurance. No suspension or revocation shall
19 affect the liability of any carrier already incurred.
20 (b) The department division shall suspend or revoke
21 any authorization to a self-insurer for good cause, as defined
22 by rule of the department division. No suspension or
23 revocation shall affect the liability of any self-insurer
24 already incurred.
25 (c) Violation of s. 440.381 by a self-insurance fund
26 shall result in the imposition of a fine not to exceed $1,000
27 per audit if the self-insurance fund fails to act on said
28 audits by correcting errors in employee classification or
29 accepted applications for coverage where it knew employee
30 classifications were incorrect. Such fines shall be levied by
31
119
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 the department division and deposited into the Workers'
2 Compensation Administration Trust Fund.
3 Section 42. Subsections (3) and (7) of section
4 440.381, Florida Statutes, are amended to read:
5 440.381 Application for coverage; reporting payroll;
6 payroll audit procedures; penalties.--
7 (3) The department of Insurance and the Department of
8 Labor and Employment Security shall establish by rule minimum
9 requirements for audits of payroll and classifications in
10 order to ensure that the appropriate premium is charged for
11 workers' compensation coverage. The rules shall ensure that
12 audits performed by both carriers and employers are adequate
13 to provide that all sources of payments to employees,
14 subcontractors, and independent contractors have been reviewed
15 and that the accuracy of classification of employees has been
16 verified. The rules shall provide that employers in all
17 classes other than the construction class be audited not less
18 frequently than biennially and may provide for more frequent
19 audits of employers in specified classifications based on
20 factors such as amount of premium, type of business, loss
21 ratios, or other relevant factors. In no event shall employers
22 in the construction class, generating more than the amount of
23 premium required to be experience rated, be audited less than
24 annually. The annual audits required for construction classes
25 shall consist of physical onsite audits. Payroll verification
26 audit rules must include, but need not be limited to, the use
27 of state and federal reports of employee income, payroll and
28 other accounting records, certificates of insurance maintained
29 by subcontractors, and duties of employees.
30 (7) If an employee suffering a compensable injury was
31 not reported as earning wages on the last quarterly earnings
120
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 report filed with the Division of Unemployment Compensation
2 before the accident, the employer shall indemnify the carrier
3 for all workers' compensation benefits paid to or on behalf of
4 the employee unless the employer establishes that the employee
5 was hired after the filing of the quarterly report, in which
6 case the employer and employee shall attest to the fact that
7 the employee was employed by the employer at the time of the
8 injury. It shall be the responsibility of the Division of
9 Workers' Compensation to collect all necessary data so as to
10 enable it to notify the carrier of the name of an injured
11 worker who was not reported as earning wages on the last
12 quarterly earnings report. The division is hereby authorized
13 to release such records to the carrier which will enable the
14 carrier to seek reimbursement as provided under this
15 subsection. Failure of the employer to indemnify the insurer
16 within 21 days after demand by the insurer shall constitute
17 grounds for the insurer to immediately cancel coverage. Any
18 action for indemnification brought by the carrier shall be
19 cognizable in the circuit court having jurisdiction where the
20 employer or carrier resides or transacts business. The
21 insurer shall be entitled to a reasonable attorney's fee if it
22 recovers any portion of the benefits paid in such action.
23 Section 43. Subsections (1), (2), (3), (4), (5), (6),
24 (8), (9), and (10) of section 440.385, Florida Statutes, are
25 amended to read:
26 440.385 Florida Self-Insurers Guaranty Association,
27 Incorporated.--
28 (1) CREATION OF ASSOCIATION.--
29 (a) There is created a nonprofit corporation to be
30 known as the "Florida Self-Insurers Guaranty Association,
31 Incorporated," hereinafter referred to as "the association."
121
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 Upon incorporation of the association, all individual
2 self-insurers as defined in ss. 440.02(23)(a) and
3 440.38(1)(b), other than individual self-insurers which are
4 public utilities or governmental entities, shall be members of
5 the association as a condition of their authority to
6 individually self-insure in this state. The association shall
7 perform its functions under a plan of operation as established
8 and approved under subsection (5) and shall exercise its
9 powers and duties through a board of directors as established
10 under subsection (2). The corporation shall have those powers
11 granted or permitted corporations not for profit, as provided
12 in chapter 617.
13 (b) A member may voluntarily withdraw from the
14 association when the member voluntarily terminates the
15 self-insurance privilege and pays all assessments due to the
16 date of such termination. However, the withdrawing member
17 shall continue to be bound by the provisions of this section
18 relating to the period of his or her membership and any claims
19 charged pursuant thereto. The withdrawing member who is a
20 member on or after January 1, 1991, shall also be required to
21 provide to the department division upon withdrawal, and at
22 12-month intervals thereafter, satisfactory proof that it
23 continues to meet the standards of s. 440.38(1)(b)1. in
24 relation to claims incurred while the withdrawing member
25 exercised the privilege of self-insurance. Such reporting
26 shall continue until the withdrawing member satisfies the
27 department division that there is no remaining value to claims
28 incurred while the withdrawing member was self-insured. If
29 during this reporting period the withdrawing member fails to
30 meet the standards of s. 440.38(1)(b)1., the withdrawing
31 member who is a member on or after January 1, 1991, shall
122
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 thereupon, and at 6-month intervals thereafter, provide to the
2 department division and the association the certified opinion
3 of an independent actuary who is a member of the American
4 Academy Society of Actuaries of the actuarial present value of
5 the determined and estimated future compensation payments of
6 the member for claims incurred while the member was a
7 self-insurer, using a discount rate of 4 percent. With each
8 such opinion, the withdrawing member shall deposit with the
9 department division security in an amount equal to the value
10 certified by the actuary and of a type that is acceptable for
11 qualifying security deposits under s. 440.38(1)(b). The
12 withdrawing member shall continue to provide such opinions and
13 to provide such security until such time as the latest opinion
14 shows no remaining value of claims. The association has a
15 cause of action against a withdrawing member, and against any
16 successor of a withdrawing member, who fails to timely provide
17 the required opinion or who fails to maintain the required
18 deposit with the department division. The association shall
19 be entitled to recover a judgment in the amount of the
20 actuarial present value of the determined and estimated future
21 compensation payments of the withdrawing member for claims
22 incurred during the time that the withdrawing member exercised
23 the privilege of self-insurance, together with reasonable
24 attorney's fees. For purposes of this section, the successor
25 of a withdrawing member means any person, business entity, or
26 group of persons or business entities, which holds or acquires
27 legal or beneficial title to the majority of the assets or the
28 majority of the shares of the withdrawing member.
29 (2) BOARD OF DIRECTORS.--The board of directors of the
30 association shall consist of nine persons and shall be
31 organized as established in the plan of operation. With
123
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 respect to initial appointments, the Secretary of Labor and
2 Employment Security shall, by July 15, 1982, approve and
3 appoint to the board persons who are experienced with
4 self-insurance in this state and who are recommended by the
5 individual self-insurers in this state required to become
6 members of the association pursuant to the provisions of
7 paragraph (1)(a). In the event the secretary finds that any
8 person so recommended does not have the necessary
9 qualifications for service on the board and a majority of the
10 board has been appointed, the secretary shall request the
11 directors thus far approved and appointed to recommend another
12 person for appointment to the board. Each director shall
13 serve for a 4-year term and may be reappointed. Appointments
14 made on or after July 1, 2002, other than initial appointments
15 shall be made by the Insurance Commissioner Secretary of Labor
16 and Employment Security upon recommendation of members of the
17 association. Any vacancy on the board shall be filled for the
18 remaining period of the term in the same manner as
19 appointments other than initial appointments are made. Each
20 director shall be reimbursed for expenses incurred in carrying
21 out the duties of the board on behalf of the association.
22 (3) POWERS AND DUTIES.--
23 (a) Upon creation of the Insolvency Fund pursuant to
24 the provisions of subsection (4), the association is obligated
25 for payment of compensation under this chapter to insolvent
26 members' employees resulting from incidents and injuries
27 existing prior to the member becoming an insolvent member and
28 from incidents and injuries occurring within 30 days after the
29 member has become an insolvent member, provided the incidents
30 giving rise to claims for compensation under this chapter
31 occur during the year in which such insolvent member is a
124
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 member of the guaranty fund and was assessable pursuant to the
2 plan of operation, and provided the employee makes timely
3 claim for such payments according to procedures set forth by a
4 court of competent jurisdiction over the delinquency or
5 bankruptcy proceedings of the insolvent member. Such
6 obligation includes only that amount due the injured worker or
7 workers of the insolvent member under this chapter. In no
8 event is the association obligated to a claimant in an amount
9 in excess of the obligation of the insolvent member. The
10 association shall be deemed the insolvent employer for
11 purposes of this chapter to the extent of its obligation on
12 the covered claims and, to such extent, shall have all rights,
13 duties, and obligations of the insolvent employer as if the
14 employer had not become insolvent. However, in no event shall
15 the association be liable for any penalties or interest.
16 (b) The association may:
17 1. Employ or retain such persons as are necessary to
18 handle claims and perform other duties of the association.
19 2. Borrow funds necessary to effect the purposes of
20 this section in accord with the plan of operation.
21 3. Sue or be sued.
22 4. Negotiate and become a party to such contracts as
23 are necessary to carry out the purposes of this section.
24 5. Purchase such reinsurance as is determined
25 necessary pursuant to the plan of operation.
26 6. Review all applicants for membership in the
27 association. Prior to a final determination by the department
28 Division of Workers' Compensation as to whether or not to
29 approve any applicant for membership in the association, the
30 association may issue opinions to the department division
31
125
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 concerning any applicant, which opinions shall be considered
2 by the department division prior to any final determination.
3 7. Charge fees to any member of the association to
4 cover the actual costs of examining the financial and safety
5 conditions of that member.
6 8. Charge an applicant for membership in the
7 association a fee sufficient to cover the actual costs of
8 examining the financial condition of the applicant.
9 (c)1. To the extent necessary to secure funds for the
10 payment of covered claims and also to pay the reasonable costs
11 to administer them, the department of Labor and Employment
12 Security, upon certification of the board of directors, shall
13 levy assessments based on the annual normal premium each
14 employer would have paid had the employer not been
15 self-insured. Every assessment shall be made as a uniform
16 percentage of the figure applicable to all individual
17 self-insurers, provided that the assessment levied against any
18 self-insurer in any one year shall not exceed 1 percent of the
19 annual normal premium during the calendar year preceding the
20 date of the assessment. Assessments shall be remitted to and
21 administered by the board of directors in the manner specified
22 by the approved plan. Each employer so assessed shall have at
23 least 30 days' written notice as to the date the assessment is
24 due and payable. The association shall levy assessments
25 against any newly admitted member of the association so that
26 the basis of contribution of any newly admitted member is the
27 same as previously admitted members, provision for which shall
28 be contained in the plan of operation.
29 2. If, in any one year, funds available from such
30 assessments, together with funds previously raised, are not
31 sufficient to make all the payments or reimbursements then
126
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 owing, the funds available shall be prorated, and the unpaid
2 portion shall be paid as soon thereafter as sufficient
3 additional funds become available.
4 3. No state funds of any kind shall be allocated or
5 paid to the association or any of its accounts except those
6 state funds accruing to the association by and through the
7 assignment of rights of an insolvent employer.
8 (4) INSOLVENCY FUND.--Upon the adoption of a plan of
9 operation or the adoption of rules by the department of Labor
10 and Employment Security pursuant to subsection (5), there
11 shall be created an Insolvency Fund to be managed by the
12 association.
13 (a) The Insolvency Fund is created for purposes of
14 meeting the obligations of insolvent members incurred while
15 members of the association and after the exhaustion of any
16 bond, as required under this chapter. However, if such bond,
17 surety, or reinsurance policy is payable to the Florida
18 Self-Insurers Guaranty Association, the association shall
19 commence to provide benefits out of the Insolvency Fund and be
20 reimbursed from the bond, surety, or reinsurance policy. The
21 method of operation of the Insolvency Fund shall be defined in
22 the plan of operation as provided in subsection (5).
23 (b) The department shall have the authority to audit
24 the financial soundness of the Insolvency Fund annually.
25 (c) The department may offer certain amendments to the
26 plan of operation to the board of directors of the association
27 for purposes of assuring the ongoing financial soundness of
28 the Insolvency Fund and its ability to meet the obligations of
29 this section.
30 (d) The department actuary may make certain
31 recommendations to improve the orderly payment of claims.
127
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (5) PLAN OF OPERATION.--The association shall operate
2 pursuant to a plan of operation approved by the board of
3 directors. The plan of operation in effect on June 30, 2002,
4 and approved by the Department of Labor and Employment
5 Security shall remain in effect until it is subsequently
6 revised by amendments approved by the Department of Insurance.
7 By September 15, 1982, the board of directors shall submit to
8 the Department of Labor and Employment Security a proposed
9 plan of operation for the administration of the association
10 and the Insolvency Fund.
11 (a) The purpose of the plan of operation shall be to
12 provide the association and the board of directors with the
13 authority and responsibility to establish the necessary
14 programs and to take the necessary actions to protect against
15 the insolvency of a member of the association. In addition,
16 the plan shall provide that the members of the association
17 shall be responsible for maintaining an adequate Insolvency
18 Fund to meet the obligations of insolvent members provided for
19 under this act and shall authorize the board of directors to
20 contract and employ those persons with the necessary expertise
21 to carry out this stated purpose.
22 (b) The plan of operation, and any amendments thereto,
23 shall take effect upon approval in writing by the department.
24 If the board of directors fails to submit a plan by September
25 15, 1982, or fails to make required amendments to the plan
26 within 30 days thereafter, the department shall promulgate
27 such rules as are necessary to effectuate the provisions of
28 this subsection. Such rules shall continue in force until
29 modified by the department or superseded by a plan submitted
30 by the board of directors and approved by the department.
31
128
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (b)(c) All member employers shall comply with the plan
2 of operation.
3 (c)(d) The plan of operation shall:
4 1. Establish the procedures whereby all the powers and
5 duties of the association under subsection (3) will be
6 performed.
7 2. Establish procedures for handling assets of the
8 association.
9 3. Establish the amount and method of reimbursing
10 members of the board of directors under subsection (2).
11 4. Establish procedures by which claims may be filed
12 with the association and establish acceptable forms of proof
13 of covered claims. Notice of claims to the receiver or
14 liquidator of the insolvent employer shall be deemed notice to
15 the association or its agent, and a list of such claims shall
16 be submitted periodically to the association or similar
17 organization in another state by the receiver or liquidator.
18 5. Establish regular places and times for meetings of
19 the board of directors.
20 6. Establish procedures for records to be kept of all
21 financial transactions of the association and its agents and
22 the board of directors.
23 7. Provide that any member employer aggrieved by any
24 final action or decision of the association may appeal to the
25 department within 30 days after the action or decision.
26 8. Establish the procedures whereby recommendations of
27 candidates for the board of directors shall be submitted to
28 the department.
29 9. Contain additional provisions necessary or proper
30 for the execution of the powers and duties of the association.
31
129
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (d)(e) The plan of operation may provide that any or
2 all of the powers and duties of the association, except those
3 specified under subparagraphs (d)1. and 2., be delegated to a
4 corporation, association, or other organization which performs
5 or will perform functions similar to those of this association
6 or its equivalent in two or more states. Such a corporation,
7 association, or organization shall be reimbursed as a
8 servicing facility would be reimbursed and shall be paid for
9 its performance of any other functions of the association. A
10 delegation of powers or duties under this subsection shall
11 take effect only with the approval of both the board of
12 directors and the department and may be made only to a
13 corporation, association, or organization which extends
14 protection which is not substantially less favorable and
15 effective than the protection provided by this section.
16 (6) POWERS AND DUTIES OF DEPARTMENT OF INSURANCE LABOR
17 AND EMPLOYMENT SECURITY.--
18 (a) The department shall:
19 1. Notify the association of the existence of an
20 insolvent employer not later than 3 days after it receives
21 notice of the determination of insolvency.
22 2. Upon request of the board of directors, provide the
23 association with a statement of the annual normal premiums of
24 each member employer.
25 (b) The department may:
26 1. Require that the association notify the member
27 employers and any other interested parties of the
28 determination of insolvency and of their rights under this
29 section. Such notification shall be by mail at the last known
30 address thereof when available; but, if sufficient information
31 for notification by mail is not available, notice by
130
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 publication in a newspaper of general circulation shall be
2 sufficient.
3 2. Suspend or revoke the authority of any member
4 employer failing to pay an assessment when due or failing to
5 comply with the plan of operation to self-insure in this
6 state. As an alternative, the department may levy a fine on
7 any member employer failing to pay an assessment when due.
8 Such fine shall not exceed 5 percent of the unpaid assessment
9 per month, except that no fine shall be less than $100 per
10 month.
11 3. Revoke the designation of any servicing facility if
12 the department finds that claims are being handled
13 unsatisfactorily.
14 (8) PREVENTION OF INSOLVENCIES.--To aid in the
15 detection and prevention of employer insolvencies:
16 (a) Upon determination by majority vote that any
17 member employer may be insolvent or in a financial condition
18 hazardous to the employees thereof or to the public, it shall
19 be the duty of the board of directors to notify the department
20 of Labor and Employment Security of any information indicating
21 such condition.
22 (b) The board of directors may, upon majority vote,
23 request that the department determine the condition of any
24 member employer which the board in good faith believes may no
25 longer be qualified to be a member of the association. Within
26 30 days of the receipt of such request or, for good cause
27 shown, within a reasonable time thereafter, the department
28 shall make such determination and shall forthwith advise the
29 board of its findings. Each request for a determination shall
30 be kept on file by the department, but the request shall not
31
131
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 be open to public inspection prior to the release of the
2 determination to the public.
3 (c) It shall also be the duty of the department to
4 report to the board of directors when it has reasonable cause
5 to believe that a member employer may be in such a financial
6 condition as to be no longer qualified to be a member of the
7 association.
8 (d) The board of directors may, upon majority vote,
9 make reports and recommendations to the department upon any
10 matter which is germane to the solvency, liquidation,
11 rehabilitation, or conservation of any member employer. Such
12 reports and recommendations shall not be considered public
13 documents.
14 (e) The board of directors may, upon majority vote,
15 make recommendations to the department for the detection and
16 prevention of employer insolvencies.
17 (f) The board of directors shall, at the conclusion of
18 any member's insolvency in which the association was obligated
19 to pay covered claims, prepare a report on the history and
20 cause of such insolvency, based on the information available
21 to the association, and shall submit such report to the
22 department.
23 (9) EXAMINATION OF THE ASSOCIATION.--The association
24 shall be subject to examination and regulation by the
25 department of Labor and Employment Security. No later than
26 March 30 of each year, the board of directors shall submit a
27 financial report for the preceding calendar year in a form
28 approved by the department.
29 (10) IMMUNITY.--There shall be no liability on the
30 part of, and no cause of action of any nature shall arise
31 against, any member employer, the association or its agents or
132
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 employees, the board of directors, or the department of Labor
2 and Employment Security or its representatives for any action
3 taken by them in the performance of their powers and duties
4 under this section.
5 Section 44. Section 440.40, Florida Statutes, is
6 amended to read:
7 440.40 Compensation notice.--Every employer who has
8 secured compensation under the provisions of this chapter
9 shall keep posted in a conspicuous place or places in and
10 about her or his place or places of business typewritten or
11 printed notices, in accordance with a form prescribed by the
12 department division, stating that such employer has secured
13 the payment of compensation in accordance with the provisions
14 of this chapter. Such notices shall contain the name and
15 address of the carrier, if any, with whom the employer has
16 secured payment of compensation and the date of the expiration
17 of the policy. The department division may by rule prescribe
18 the form of the notices and require carriers to provide the
19 notices to policyholders.
20 Section 45. Section 440.41, Florida Statutes, is
21 amended to read:
22 440.41 Substitution of carrier for employer.--In any
23 case where the employer is not a self-insurer, in order that
24 the liability for compensation imposed by this chapter may be
25 most effectively discharged by the employer, and in order that
26 the administration of this chapter in respect of such
27 liability may be facilitated, the department division shall by
28 regulation provide for the discharge, by the carrier for such
29 employer, of such obligations and duties of the employer in
30 respect of such liability, imposed by this chapter upon the
31
133
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 employer, as it considers proper in order to effectuate the
2 provisions of this chapter. For such purposes:
3 (1) Notice to or knowledge of an employer of the
4 occurrence of the injury shall be notice to or knowledge of
5 the carrier.
6 (2) Jurisdiction of the employer by the judges of
7 compensation claims, the department division, or any court
8 under this chapter shall be jurisdiction of the carrier.
9 (3) Any requirement by the judges of compensation
10 claims, the department division, or any court under any
11 compensation order, finding, or decision shall be binding upon
12 the carrier in the same manner and to the same extent as upon
13 the employer.
14 Section 46. Subsection (3) of section 440.42, Florida
15 Statutes, is amended to read:
16 440.42 Insurance policies; liability.--
17 (3) No contract or policy of insurance issued by a
18 carrier under this chapter shall expire or be canceled until
19 at least 30 days have elapsed after a notice of cancellation
20 has been sent to the department division and to the employer
21 in accordance with the provisions of s. 440.185(7). However,
22 when duplicate or dual coverage exists by reason of two
23 different carriers having issued policies of insurance to the
24 same employer securing the same liability, it shall be
25 presumed that only that policy with the later effective date
26 shall be in force and that the earlier policy terminated upon
27 the effective date of the latter. In the event that both
28 policies carry the same effective date, one of the policies
29 may be canceled instanter upon filing a notice of cancellation
30 with the department division and serving a copy thereof upon
31 the employer in such manner as the department division
134
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 prescribes by rule. The department division may by rule
2 prescribe the content of the notice of retroactive
3 cancellation and specify the time, place, and manner in which
4 the notice of cancellation is to be served.
5 Section 47. Section 440.44, Florida Statutes, is
6 amended to read:
7 440.44 Workers' compensation; staff organization.--
8 (1) INTERPRETATION OF LAW.--As a guide to the
9 interpretation of this chapter, the Legislature takes due
10 notice of federal social and labor acts and hereby creates an
11 agency to administer such acts passed for the benefit of
12 employees and employers in Florida industry, and desires to
13 meet the requirements of such federal acts wherever not
14 inconsistent with the Constitution and laws of Florida.
15 (2) INTENT.--It is the intent of the Legislature that
16 the department, the agency, the Department of Education, and
17 the Division of Administrative Hearings assume an active and
18 forceful role in its administration of this act, so as to
19 ensure that the system operates efficiently and with maximum
20 benefit to both employers and employees.
21 (3) EXPENDITURES.--The department, the agency, the
22 Department of Education, division and the director of the
23 Division of Administrative Hearings shall make such
24 expenditures, including expenditures for personal services and
25 rent at the seat of government and elsewhere, for law books;
26 for telephone services and WATS lines; for books of reference,
27 periodicals, equipment, and supplies; and for printing and
28 binding as may be necessary in the administration of this
29 chapter. All expenditures in the administration of this
30 chapter shall be allowed and paid as provided in s. 440.50
31 upon the presentation of itemized vouchers therefor approved
135
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 by the department, the agency, the Department of Education,
2 division or the director of the Division of Administrative
3 Hearings.
4 (4) MERIT SYSTEM PRINCIPLE OF PERSONNEL
5 ADMINISTRATION.--Subject to the other provisions of this
6 chapter, the department, the agency, the Department of
7 Education, and the Division of Administrative Hearings may
8 division is authorized to appoint, and prescribe the duties
9 and powers of, bureau chiefs, attorneys, accountants, medical
10 advisers, technical assistants, inspectors, claims examiners,
11 and such other employees as may be necessary in the
12 performance of their its duties under this chapter.
13 (5) OFFICE.--The department, the agency, the
14 Department of Education, division and the Deputy Chief Judge
15 shall maintain and keep open during reasonable business hours
16 an office, which shall be provided in the Capitol or some
17 other suitable building in the City of Tallahassee, for the
18 transaction of business under this chapter, at which office
19 the official records and papers shall be kept. The office
20 shall be furnished and equipped. The department, the agency
21 division, any judge of compensation claims, or the Deputy
22 Chief Judge may hold sessions and conduct hearings at any
23 place within the state. The Office of the Judges of
24 Compensation Claims shall maintain the 17 district offices, 31
25 judges of compensation claims, and 31 mediators as they exist
26 on June 30, 2001.
27 (6) SEAL.--The department division and the judges of
28 compensation claims shall have a seal upon which shall be
29 inscribed the words "State of Florida Department of
30 Insurance--Seal" and "Division of Administrative
31 Hearings--Seal," respectively.
136
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (7) DESTRUCTION OF OBSOLETE RECORDS.--The department
2 division is expressly authorized to provide by regulation for
3 and to destroy obsolete records of the department division.
4 The Division of Administrative Hearings is expressly
5 authorized to provide by regulation for and to destroy
6 obsolete records of the Office of the Judges of Compensation
7 Claims.
8 (8) PROCEDURE.--In the exercise of their its duties
9 and functions requiring administrative hearings, the
10 department and the agency division shall proceed in accordance
11 with the Administrative Procedure Act. The authority of the
12 department and the agency division to issue orders resulting
13 from administrative hearings as provided for in this chapter
14 shall not infringe upon the jurisdiction of the judges of
15 compensation claims.
16 Section 48. Subsection (1) of section 440.45, Florida
17 Statutes, is amended to read:
18 440.45 Office of the Judges of Compensation Claims.--
19 (1)(a) There is created the Office of the Judges of
20 Compensation Claims within the Department of Management
21 Services. The Office of the Judges of Compensation Claims
22 shall be headed by the Deputy Chief Judge of Compensation
23 Claims. The Deputy Chief Judge shall report to the director of
24 the Division of Administrative Hearings. The Deputy Chief
25 Judge shall be appointed by the Governor for a term of 4 years
26 from a list of three names submitted by the statewide
27 nominating commission created under subsection (2). The Deputy
28 Chief Judge must demonstrate prior administrative experience
29 and possess the same qualifications for appointment as a judge
30 of compensation claims, and the procedure for reappointment of
31 the Deputy Chief Judge will be the same as for reappointment
137
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 of a judge of compensation claims. The office shall be a
2 separate budget entity and the director of the Division of
3 Administrative Hearings shall be its agency head for all
4 purposes, including, but not limited to, rulemaking pursuant
5 to subsection (4) and establishing agency policies and
6 procedures. The Department of Management Services shall
7 provide administrative support and service to the office to
8 the extent requested by the director of the Division of
9 Administrative Hearings but shall not direct, supervise, or
10 control the Office of the Judges of Compensation Claims in any
11 manner, including, but not limited to, personnel, purchasing,
12 budgetary matters, or property transactions. The operating
13 budget of the Office of the Judges of Compensation Claims
14 shall be paid out of the Workers' Compensation Administration
15 Trust Fund established in s. 440.50.
16 (b) The current term of the Chief Judge of
17 Compensation Claims shall expire October 1, 2001. Effective
18 October 1, 2001, the position of Deputy Chief Judge of
19 Compensation Claims is created.
20 Section 49. Subsections (1), (2), (7), (8), (9), (10),
21 and (11) of section 440.49, Florida Statutes, are amended to
22 read:
23 440.49 Limitation of liability for subsequent injury
24 through Special Disability Trust Fund.--
25 (1) LEGISLATIVE INTENT.--Whereas it is often difficult
26 for workers with disabilities to achieve employment or to
27 become reemployed following an injury, and it is the desire of
28 the Legislature to facilitate the return of these workers to
29 the workplace, it is the purpose of this section to encourage
30 the employment, reemployment, and accommodation of the
31 physically disabled by reducing an employer's insurance
138
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 premium for reemploying an injured worker, to decrease
2 litigation between carriers on apportionment issues, and to
3 protect employers from excess liability for compensation and
4 medical expense when an injury to a physically disabled worker
5 merges with, aggravates, or accelerates her or his preexisting
6 permanent physical impairment to cause either a greater
7 disability or permanent impairment, or an increase in
8 expenditures for temporary compensation or medical benefits
9 than would have resulted from the injury alone. The department
10 division or the administrator shall inform all employers of
11 the existence and function of the fund and shall interpret
12 eligibility requirements liberally. However, this subsection
13 shall not be construed to create or provide any benefits for
14 injured employees or their dependents not otherwise provided
15 by this chapter. The entitlement of an injured employee or her
16 or his dependents to compensation under this chapter shall be
17 determined without regard to this subsection, the provisions
18 of which shall be considered only in determining whether an
19 employer or carrier who has paid compensation under this
20 chapter is entitled to reimbursement from the Special
21 Disability Trust Fund.
22 (2) DEFINITIONS.--As used in this section, the term:
23 (a) "Permanent physical impairment" means and is
24 limited to the conditions listed in paragraph (6)(a).
25 (b) "Preferred worker" means a worker who, because of
26 a permanent impairment resulting from a compensable injury or
27 occupational disease, is unable to return to the worker's
28 regular employment.
29 (c) "Merger" describes or means that:
30
31
139
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 1. If the permanent physical impairment had not
2 existed, the subsequent accident or occupational disease would
3 not have occurred;
4 2. The permanent disability or permanent impairment
5 resulting from the subsequent accident or occupational disease
6 is materially and substantially greater than that which would
7 have resulted had the permanent physical impairment not
8 existed, and the employer has been required to pay, and has
9 paid, permanent total disability or permanent impairment
10 benefits for that materially and substantially greater
11 disability;
12 3. The preexisting permanent physical impairment is
13 aggravated or accelerated as a result of the subsequent injury
14 or occupational disease, or the preexisting impairment has
15 contributed, medically and circumstantially, to the need for
16 temporary compensation, medical, or attendant care and the
17 employer has been required to pay, and has paid, temporary
18 compensation, medical, or attendant care benefits for the
19 aggravated preexisting permanent impairment; or
20 4. Death would not have been accelerated if the
21 permanent physical impairment had not existed.
22 (d) "Excess permanent compensation" means that
23 compensation for permanent impairment, or permanent total
24 disability or death benefits, for which the employer or
25 carrier is otherwise entitled to reimbursement from the
26 Special Disability Trust Fund.
27 (e) "Administrator" means the entity selected by the
28 department division to review, allow, deny, compromise,
29 controvert, and litigate claims of the Special Disability
30 Trust Fund.
31
140
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 In addition to the definitions contained in this subsection,
2 the department division may by rule prescribe definitions that
3 are necessary for the effective administration of this
4 section.
5 (7) REIMBURSEMENT OF EMPLOYER.--
6 (a) The right to reimbursement as provided in this
7 section is barred unless written notice of claim of the right
8 to such reimbursement is filed by the employer or carrier
9 entitled to such reimbursement with the department division or
10 administrator at Tallahassee within 2 years after the date the
11 employee last reached maximum medical improvement, or within 2
12 years after the date of the first payment of compensation for
13 permanent total disability, wage loss, or death, whichever is
14 later. The notice of claim must contain such information as
15 the department division by rule requires or as established by
16 the administrator; and the employer or carrier claiming
17 reimbursement shall furnish such evidence in support of the
18 claim as the department division or administrator reasonably
19 may require.
20 (b) For notice of claims on the Special Disability
21 Trust Fund filed on or after July 1, 1978, the Special
22 Disability Trust Fund shall, within 120 days after receipt of
23 notice that a carrier has paid, been required to pay, or
24 accepted liability for excess compensation, serve notice of
25 the acceptance of the claim for reimbursement.
26 (c) A proof of claim must be filed on each notice of
27 claim on file as of June 30, 1997, within 1 year after July 1,
28 1997, or the right to reimbursement of the claim shall be
29 barred. A notice of claim on file on or before June 30, 1997,
30 may be withdrawn and refiled if, at the time refiled, the
31 notice of claim remains within the limitation period specified
141
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 in paragraph (a). Such refiling shall not toll, extend, or
2 otherwise alter in any way the limitation period applicable to
3 the withdrawn and subsequently refiled notice of claim. Each
4 proof of claim filed shall be accompanied by a proof-of-claim
5 fee as provided in paragraph (9)(d). The Special Disability
6 Trust Fund shall, within 120 days after receipt of the proof
7 of claim, serve notice of the acceptance of the claim for
8 reimbursement. This paragraph shall apply to all claims
9 notwithstanding the provisions of subsection (12).
10 (d) Each notice of claim filed or refiled on or after
11 July 1, 1997, must be accompanied by a notification fee as
12 provided in paragraph (9)(d). A proof of claim must be filed
13 within 1 year after the date the notice of claim is filed or
14 refiled, accompanied by a proof-of-claim fee as provided in
15 paragraph (9)(d), or the claim shall be barred. The
16 notification fee shall be waived if both the notice of claim
17 and proof of claim are submitted together as a single filing.
18 The Special Disability Trust Fund shall, within 180 days after
19 receipt of the proof of claim, serve notice of the acceptance
20 of the claim for reimbursement. This paragraph shall apply to
21 all claims notwithstanding the provisions of subsection (12).
22 (e) For dates of accident on or after January 1, 1994,
23 the Special Disability Trust Fund shall, within 120 days of
24 receipt of notice that a carrier has been required to pay, and
25 has paid over $10,000 in benefits, serve notice of the
26 acceptance of the claim for reimbursement. Failure of the
27 Special Disability Trust Fund to serve notice of acceptance
28 shall give rise to the right to request a hearing on the claim
29 for reimbursement. If the Special Disability Trust Fund
30 through its representative denies or controverts the claim,
31 the right to such reimbursement shall be barred unless an
142
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 application for a hearing thereon is filed with the department
2 division or administrator at Tallahassee within 60 days after
3 notice to the employer or carrier of such denial or
4 controversion. When such application for a hearing is timely
5 filed, the claim shall be heard and determined in accordance
6 with the procedure prescribed in s. 440.25, to the extent that
7 such procedure is applicable, and in accordance with the
8 workers' compensation rules of procedure. In such proceeding
9 on a claim for reimbursement, the Special Disability Trust
10 Fund shall be made the party respondent, and no findings of
11 fact made with respect to the claim of the injured employee or
12 the dependents for compensation, including any finding made or
13 order entered pursuant to s. 440.20(11), shall be res
14 judicata. The Special Disability Trust Fund may not be joined
15 or made a party to any controversy or dispute between an
16 employee and the dependents and the employer or between two or
17 more employers or carriers without the written consent of the
18 fund.
19 (f) When it has been determined that an employer or
20 carrier is entitled to reimbursement in any amount, the
21 employer or carrier shall be reimbursed annually from the
22 Special Disability Trust Fund for the compensation and medical
23 benefits paid by the employer or carrier for which the
24 employer or carrier is entitled to reimbursement, upon filing
25 request therefor and submitting evidence of such payment in
26 accordance with rules prescribed by the department division,
27 which rules may include parameters for annual audits. The
28 Special Disability Trust Fund shall pay the approved
29 reimbursement requests on a first-in, first-out basis
30 reflecting the order in which the reimbursement requests were
31 received.
143
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (g) The department division may by rule require
2 specific forms and procedures for the administration and
3 processing of claims made through the Special Disability Trust
4 Fund.
5 (8) PREFERRED WORKER PROGRAM.--The Department of
6 Education division or administrator shall issue identity cards
7 to preferred workers upon request by qualified employees and
8 the Department of Insurance shall reimburse an employer, from
9 the Special Disability Trust Fund, for the cost of workers'
10 compensation premium related to the preferred workers payroll
11 for up to 3 years of continuous employment upon satisfactory
12 evidence of placement and issuance of payroll and
13 classification records and upon the employee's certification
14 of employment. The department and the Department of Education
15 division may by rule prescribe definitions, forms, and
16 procedures for the administration of the preferred worker
17 program. The Department of Education division may by rule
18 prescribe the schedule for submission of forms for
19 participation in the program.
20 (9) SPECIAL DISABILITY TRUST FUND.--
21 (a) There is established in the State Treasury a
22 special fund to be known as the "Special Disability Trust
23 Fund," which shall be available only for the purposes stated
24 in this section; and the assets thereof may not at any time be
25 appropriated or diverted to any other use or purpose. The
26 Treasurer shall be the custodian of such fund, and all moneys
27 and securities in such fund shall be held in trust by such
28 Treasurer and shall not be the money or property of the state.
29 The Treasurer is authorized to disburse moneys from such fund
30 only when approved by the department division or corporation
31 and upon the order of the Comptroller. The Treasurer shall
144
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 deposit any moneys paid into such fund into such depository
2 banks as the department division may designate and is
3 authorized to invest any portion of the fund which, in the
4 opinion of the department division, is not needed for current
5 requirements, in the same manner and subject to all the
6 provisions of the law with respect to the deposits of state
7 funds by such Treasurer. All interest earned by such portion
8 of the fund as may be invested by the Treasurer shall be
9 collected by her or him and placed to the credit of such fund.
10 (b)1. The Special Disability Trust Fund shall be
11 maintained by annual assessments upon the insurance companies
12 writing compensation insurance in the state, the commercial
13 self-insurers under ss. 624.462 and 624.4621, the assessable
14 mutuals under s. 628.601, and the self-insurers under this
15 chapter, which assessments shall become due and be paid
16 quarterly at the same time and in addition to the assessments
17 provided in s. 440.51. The department division shall estimate
18 annually in advance the amount necessary for the
19 administration of this subsection and the maintenance of this
20 fund and shall make such assessment in the manner hereinafter
21 provided.
22 2. The annual assessment shall be calculated to
23 produce during the ensuing fiscal year an amount which, when
24 combined with that part of the balance in the fund on June 30
25 of the current fiscal year which is in excess of $100,000, is
26 equal to the average of:
27 a. The sum of disbursements from the fund during the
28 immediate past 3 calendar years, and
29 b. Two times the disbursements of the most recent
30 calendar year.
31
145
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 Such amount shall be prorated among the insurance companies
2 writing compensation insurance in the state and the
3 self-insurers. Provided however, for those carriers that have
4 excluded ceded reinsurance premiums from their assessments on
5 or before January 1, 2000, no assessments on ceded reinsurance
6 premiums shall be paid by those carriers until such time as
7 the former Division of Workers' Compensation of the Department
8 of Labor and Employment Security or the department advises
9 each of those carriers of the impact that the inclusion of
10 ceded reinsurance premiums has on their assessment. The
11 department division may not recover any past underpayments of
12 assessments levied against any carrier that on or before
13 January 1, 2000, excluded ceded reinsurance premiums from
14 their assessment prior to the point that the former Division
15 of Workers' Compensation of the Department of Labor and
16 Employment Security or the department advises of the
17 appropriate assessment that should have been paid.
18 3. The net premiums written by the companies for
19 workers' compensation in this state and the net premium
20 written applicable to the self-insurers in this state are the
21 basis for computing the amount to be assessed as a percentage
22 of net premiums. Such payments shall be made by each carrier
23 and self-insurer to the department division for the Special
24 Disability Trust Fund in accordance with such regulations as
25 the department division prescribes.
26 4. The Treasurer is authorized to receive and credit
27 to such Special Disability Trust Fund any sum or sums that may
28 at any time be contributed to the state by the United States
29 under any Act of Congress, or otherwise, to which the state
30 may be or become entitled by reason of any payments made out
31 of such fund.
146
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (c) Notwithstanding the Special Disability Trust Fund
2 assessment rate calculated pursuant to this section, the rate
3 assessed shall not exceed 4.52 percent.
4 (d) The Special Disability Trust Fund shall be
5 supplemented by a $250 notification fee on each notice of
6 claim filed or refiled after July 1, 1997, and a $500 fee on
7 each proof of claim filed in accordance with subsection (7).
8 Revenues from the fee shall be deposited into the Special
9 Disability Trust Fund and are exempt from the deduction
10 required by s. 215.20. The fees provided in this paragraph
11 shall not be imposed upon any insurer which is in receivership
12 with the Department of Insurance.
13 (e) The department of Labor and Employment Security or
14 administrator shall report annually on the status of the
15 Special Disability Trust Fund. The report shall update the
16 estimated undiscounted and discounted fund liability, as
17 determined by an independent actuary, change in the total
18 number of notices of claim on file with the fund in addition
19 to the number of newly filed notices of claim, change in the
20 number of proofs of claim processed by the fund, the fee
21 revenues refunded and revenues applied to pay down the
22 liability of the fund, the average time required to reimburse
23 accepted claims, and the average administrative costs per
24 claim. The department or administrator shall submit its
25 report to the Governor, the President of the Senate, and the
26 Speaker of the House of Representatives by December 1 of each
27 year.
28 (10) DEPARTMENT DIVISION ADMINISTRATION OF FUND;
29 CLAIMS; EXPENSES.--The department division or administrator
30 shall administer the Special Disability Trust Fund with
31 authority to allow, deny, compromise, controvert, and litigate
147
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 claims made against it and to designate an attorney to
2 represent it in proceedings involving claims against the fund,
3 including negotiation and consummation of settlements,
4 hearings before judges of compensation claims, and judicial
5 review. The department division or administrator or the
6 attorney designated by it shall be given notice of all
7 hearings and proceedings involving the rights or obligations
8 of such fund and shall have authority to make expenditures for
9 such medical examinations, expert witness fees, depositions,
10 transcripts of testimony, and the like as may be necessary to
11 the proper defense of any claim. All expenditures made in
12 connection with conservation of the fund, including the salary
13 of the attorney designated to represent it and necessary
14 travel expenses, shall be allowed and paid from the Special
15 Disability Trust Fund as provided in this section upon the
16 presentation of itemized vouchers therefor approved by the
17 department division.
18 (11) EFFECTIVE DATES.--This section does not apply to
19 any case in which the accident causing the subsequent injury
20 or death or the disablement or death from a subsequent
21 occupational disease occurred prior to July 1, 1955, or on or
22 after January 1, 1998. In no event shall the Special
23 Disability Trust Fund be liable for, or reimburse employers or
24 carriers for, any case in which the accident causing the
25 subsequent injury or death or the disablement or death from a
26 subsequent occupational disease occurred on or after January
27 1, 1998. The Special Disability Trust Fund shall continue to
28 reimburse employers or carriers for subsequent injuries
29 occurring prior to January 1, 1998, and the department
30 division shall continue to assess for and the department
31
148
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 division or administrator shall fund reimbursements as
2 provided in subsection (9) for this purpose.
3 Section 50. Paragraphs (b) through (h) of subsection
4 (1) of section 440.491, Florida Statutes, are redesignated as
5 paragraphs (c) through (i), respectively, a new paragraph (b)
6 is added to said subsection, and paragraph (c) of subsection
7 (1), paragraph (a) of subsection (3), paragraph (b) of
8 subsection (4), paragraphs (b) and (c) of subsection (5), and
9 subsections (6), (7), and (8) of said section are amended, to
10 read:
11 440.491 Reemployment of injured workers;
12 rehabilitation.--
13 (1) DEFINITIONS.--As used in this section, the term:
14 (b) "Department" means the Department of Education.
15 (d)(c) "Qualified rehabilitation provider" means a
16 rehabilitation nurse, rehabilitation counselor, vocational
17 evaluator, rehabilitation facility, or agency approved by the
18 Department of Education division as qualified to provide
19 reemployment assessments, medical care coordination,
20 reemployment services, or vocational evaluations under this
21 chapter.
22 (3) REEMPLOYMENT STATUS REVIEWS AND REPORTS.--
23 (a) When an employee who has suffered an injury
24 compensable under this chapter is unemployed 60 days after the
25 date of injury and is receiving benefits for temporary total
26 disability, temporary partial disability, or wage loss, and
27 has not yet been provided medical care coordination and
28 reemployment services voluntarily by the carrier, the carrier
29 must determine whether the employee is likely to return to
30 work and must report its determination to the department
31 division. The carrier must thereafter determine the
149
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 reemployment status of the employee at 90-day intervals as
2 long as the employee remains unemployed, is not receiving
3 medical care coordination or reemployment services, and is
4 receiving the benefits specified in this subsection.
5 (4) REEMPLOYMENT ASSESSMENTS.--
6 (b) The carrier shall authorize only a qualified
7 rehabilitation provider to provide the reemployment
8 assessment. The rehabilitation provider shall conduct its
9 assessment and issue a report to the carrier, the employee,
10 and the department division within 30 days after the time such
11 assessment is complete.
12 (5) MEDICAL CARE COORDINATION AND REEMPLOYMENT
13 SERVICES.--
14 (b) If the rehabilitation provider concludes that
15 training and education are necessary to return the employee to
16 suitable gainful employment, or if the employee has not
17 returned to suitable gainful employment within 180 days after
18 referral for reemployment services or receives $2,500 in
19 reemployment services, whichever comes first, the carrier must
20 discontinue reemployment services and refer the employee to
21 the department division for a vocational evaluation.
22 Notwithstanding any provision of chapter 289 or chapter 627,
23 the cost of a reemployment assessment and the first $2,500 in
24 reemployment services to an injured employee must not be
25 treated as loss adjustment expense for workers' compensation
26 ratemaking purposes.
27 (c) A carrier may voluntarily provide medical care
28 coordination or reemployment services to the employee at
29 intervals more frequent than those required in this section.
30 For the purpose of monitoring reemployment, the carrier or the
31 rehabilitation provider shall report to the department
150
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 division, in the manner prescribed by the department division,
2 the date of reemployment and wages of the employee. The
3 carrier shall report its voluntary service activity to the
4 department division as required by rule. Voluntary services
5 offered by the carrier for any of the following injuries must
6 be considered benefits for purposes of ratemaking: traumatic
7 brain injury; spinal cord injury; amputation, including loss
8 of an eye or eyes; burns of 5 percent or greater of the total
9 body surface.
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 division shall conduct a training and education
14 screening to determine whether it should refer the employee
15 for a vocational evaluation and, if appropriate, approve
16 training and education or other vocational services for the
17 employee. The department division may not approve formal
18 training and education programs unless it determines, after
19 consideration of the reemployment assessment, pertinent
20 reemployment status reviews or reports, and such other
21 relevant factors as it prescribes by rule, that the
22 reemployment plan is likely to result in return to suitable
23 gainful employment. The department division is authorized to
24 expend moneys from the Workers' Compensation Administration
25 Trust Fund, established by s. 440.50, to secure appropriate
26 training and education or other vocational services when
27 necessary to satisfy the recommendation of a vocational
28 evaluator. The department division shall establish training
29 and education standards pertaining to employee eligibility,
30 course curricula and duration, and associated costs.
31
151
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
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 division from the Workers'
17 Compensation Administration Trust Fund established by s.
18 440.50. An employee who refuses to accept training and
19 education that is recommended by the vocational evaluator and
20 considered necessary by the department division is subject to
21 a 50-percent reduction in weekly compensation benefits,
22 including wage-loss benefits, as determined under s.
23 440.15(3)(b).
24 (7) PROVIDER QUALIFICATIONS.--
25 (a) The department division shall investigate and
26 maintain a directory of each qualified public and private
27 rehabilitation provider, facility, and agency, and shall
28 establish by rule the minimum qualifications, credentials, and
29 requirements that each rehabilitation service provider,
30 facility, and agency must satisfy to be eligible for listing
31 in the directory. These minimum qualifications and credentials
152
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 must be based on those generally accepted within the service
2 specialty for which the provider, facility, or agency is
3 approved.
4 (b) The department division shall impose a biennial
5 application fee of $25 for each listing in the directory, and
6 all such fees must be deposited in the Workers' Compensation
7 Administration Trust Fund.
8 (c) The department division shall monitor and evaluate
9 each rehabilitation service provider, facility, and agency
10 qualified under this subsection to ensure its compliance with
11 the minimum qualifications and credentials established by the
12 department division. The failure of a qualified rehabilitation
13 service provider, facility, or agency to provide the
14 department division with information requested or access
15 necessary for the department division to satisfy its
16 responsibilities under this subsection is grounds for
17 disqualifying the provider, facility, or agency from further
18 referrals.
19 (d) A qualified rehabilitation service provider,
20 facility, or agency may not be authorized by an employer, a
21 carrier, or the department division to provide any services,
22 including expert testimony, under this section in this state
23 unless the provider, facility, or agency is listed or has been
24 approved for listing in the directory. This restriction does
25 not apply to services provided outside this state under this
26 section.
27 (e) The department division, after consultation with
28 representatives of employees, employers, carriers,
29 rehabilitation providers, and qualified training and education
30 providers, shall adopt rules governing professional practices
31 and standards.
153
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (8) CARRIER PRACTICES.--The department division shall
2 monitor the selection of providers and the provision of
3 services by carriers under this section for consistency with
4 legislative intent set forth in subsection (2).
5 Section 51. Section 440.50, Florida Statutes, is
6 amended to read:
7 440.50 Workers' Compensation Administration Trust
8 Fund.--
9 (1)(a) There is established in the State Treasury a
10 special fund to be known as the "Workers' Compensation
11 Administration Trust Fund" for the purpose of providing for
12 the payment of all expenses in respect to the administration
13 of this chapter, including the vocational rehabilitation of
14 injured employees as provided in s. 440.49 and the payments
15 due under s. 440.15(1)(f), the funding of the fixed
16 administrative expenses of the plan, and the funding of the
17 Bureau of Workers' Compensation Fraud within the Department of
18 Insurance. Such fund shall be administered by the department
19 division.
20 (b) The department division is authorized to transfer
21 as a loan an amount not in excess of $250,000 from such
22 special fund to the Special Disability Trust Fund established
23 by s. 440.49(9), which amount shall be repaid to said special
24 fund in annual payments equal to not less than 10 percent of
25 moneys received for such Special Disability Trust Fund.
26 (2) The Treasurer is authorized to disburse moneys
27 from such fund only when approved by the department division
28 and upon the order of the Comptroller.
29 (3) The Treasurer shall deposit any moneys paid into
30 such fund into such depository banks as the department
31 division may designate and is authorized to invest any portion
154
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 of the fund which, in the opinion of the department division,
2 is not needed for current requirements, in the same manner and
3 subject to all the provisions of the law with respect to the
4 deposit of state funds by such Treasurer. All interest earned
5 by such portion of the fund as may be invested by the
6 Treasurer shall be collected by him or her and placed to the
7 credit of such fund.
8 (4) All civil penalties provided in this chapter, if
9 not voluntarily paid, may be collected by civil suit brought
10 by the department division and shall be paid into such fund.
11 Section 52. Section 440.51, Florida Statutes, is
12 amended to read:
13 440.51 Expenses of administration.--
14 (1) The department division shall estimate annually in
15 advance the amounts necessary for the administration of this
16 chapter, in the following manner.
17 (a) The department division shall, by July 1 of each
18 year, notify carriers and self-insurers of the assessment
19 rate, which shall be based on the anticipated expenses of the
20 administration of this chapter for the next calendar year.
21 Such assessment rate shall take effect January 1 of the next
22 calendar year and shall be included in workers' compensation
23 rate filings approved by the Department of Insurance which
24 become effective on or after January 1 of the next calendar
25 year. Assessments shall become due and be paid quarterly.
26 (b) The total expenses of administration shall be
27 prorated among the carriers writing compensation insurance in
28 the state and self-insurers. The net premiums collected by
29 carriers and the amount of premiums calculated by the
30 department division for self-insured employers are the basis
31 for computing the amount to be assessed. When reporting
155
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 deductible policy premium for purposes of computing
2 assessments levied after July 1, 2001, full policy premium
3 value must be reported prior to application of deductible
4 discounts or credits. This amount may be assessed as a
5 specific amount or as a percentage of net premiums payable as
6 the department division may direct, provided such amount so
7 assessed shall not exceed 2.75 percent, beginning January 1,
8 2001, except during the interim period from July 1, 2000,
9 through December 31, 2000, such assessments shall not exceed 4
10 percent of such net premiums. The carriers may elect to make
11 the payments required under s. 440.15(1)(f) rather than having
12 these payments made by the department division. In that
13 event, such payments will be credited to the carriers, and the
14 amount due by the carrier under this section will be reduced
15 accordingly.
16 (2) The department division shall provide by
17 regulation for the collection of the amounts assessed against
18 each carrier. Such amounts shall be paid within 30 days from
19 the date that notice is served upon such carrier. If such
20 amounts are not paid within such period, there may be assessed
21 for each 30 days the amount so assessed remains unpaid, a
22 civil penalty equal to 10 percent of the amount so unpaid,
23 which shall be collected at the same time and a part of the
24 amount assessed. For those carriers who excluded ceded
25 reinsurance premiums from their assessments prior to January
26 1, 2000, the department division shall not recover any past
27 underpayments of assessments related to ceded reinsurance
28 premiums prior to January 1, 2001, against such carriers.
29 (3) If any carrier fails to pay the amounts assessed
30 against him or her under the provisions of this section within
31 60 days from the time such notice is served upon him or her,
156
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 the department of Insurance upon being advised by the division
2 may suspend or revoke the authorization to insure compensation
3 in accordance with the procedure in s. 440.38(3)(a). The
4 department division may permit a carrier to remit any
5 underpayment of assessments for assessments levied after
6 January 1, 2001.
7 (4) All amounts collected under the provisions of this
8 section shall be paid into the fund established in s. 440.50.
9 (5) Any amount so assessed against and paid by an
10 insurance carrier, self-insurer authorized pursuant to s.
11 624.4621, or commercial self-insurance fund authorized under
12 ss. 624.460-624.488 shall be allowed as a deduction against
13 the amount of any other tax levied by the state upon the
14 premiums, assessments, or deposits for workers' compensation
15 insurance on contracts or policies of said insurance carrier,
16 self-insurer, or commercial self-insurance fund. Any insurance
17 carrier claiming such a deduction against the amount of any
18 such tax shall not be required to pay any additional
19 retaliatory tax levied pursuant to s. 624.5091 as a result of
20 claiming such deduction. Because deductions under this
21 subsection are available to insurance carriers, s. 624.5091
22 does not limit such deductions in any manner.
23 (6)(a) The department division may require from each
24 carrier, at such time and in accordance with such regulations
25 as the department division may prescribe, reports in respect
26 to all gross earned premiums and of all payments of
27 compensation made by such carrier during each prior period,
28 and may determine the amounts paid by each carrier and the
29 amounts paid by all carriers during such period.
30 (b) The Department of Insurance may require from each
31 self-insurer, at such time and in accordance with such
157
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 regulations as the Department of Insurance prescribes, reports
2 in respect to wages paid, the amount of premiums such
3 self-insurer would have to pay if insured, and all payments of
4 compensation made by such self-insurer during each prior
5 period, and may determine the amounts paid by each
6 self-insurer and the amounts paid by all self-insurers during
7 such period. For the purposes of this section, the payroll
8 records of each self-insurer shall be open to annual
9 inspection and audit by the Department of Insurance or its
10 authorized representative, during regular business hours; and
11 if any audit of such records of a self-insurer discloses a
12 deficiency in the amounts reported to the Department of
13 Insurance or in the amounts paid to the Department of
14 Insurance by a self-insurer pursuant to this section, the
15 Department of Insurance may assess the cost of such audit
16 against the self-insurer.
17 (7) The department division shall keep accumulated
18 cost records of all injuries occurring within the state coming
19 within the purview of this chapter on a policy and
20 calendar-year basis. For the purpose of this chapter, a
21 "calendar year" is defined as the year in which the injury is
22 reported to the department division; "policy year" is defined
23 as that calendar year in which the policy becomes effective,
24 and the losses under such policy shall be chargeable against
25 the policy year so defined.
26 (8) The department division shall assign an account
27 number to each employer under this chapter and an account
28 number to each insurance carrier authorized to write workers'
29 compensation insurance in the state; and it shall be the duty
30 of the department division under the account number so
31 assigned to keep the cost experience of each carrier and the
158
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 cost experience of each employer under the account number so
2 assigned by calendar and policy year, as above defined.
3 (9) In addition to the above, it shall be the duty of
4 the department division to keep the accident experience, as
5 classified by the department division, by industry as follows:
6 (a) Cause of the injury;
7 (b) Nature of the injury; and
8 (c) Type of disability.
9 (10) In every case where the duration of disability
10 exceeds 30 days, the carrier shall establish a sufficient
11 reserve to pay all benefits to which the injured employee, or
12 in case of death, his or her dependents, may be entitled to
13 under the law. In establishing the reserve, consideration
14 shall be given to the nature of the injury, the probable
15 period of disability, and the estimated cost of medical
16 benefits.
17 (11) The department division shall furnish to any
18 employer or carrier, upon request, its individual experience.
19 The division shall furnish to the Department of Insurance,
20 upon request, the Florida experience as developed under
21 accident year or calendar year.
22 (12) In addition to any other penalties provided by
23 this law, the failure to submit any report or other
24 information required by this law shall be just cause to
25 suspend the right of a self-insurer to operate as such, or,
26 upon certification by the division to the Department of
27 Insurance that a carrier has failed or refused to furnish such
28 reports, shall be just cause for the department of Insurance
29 to suspend or revoke the license of such carrier.
30 (13) As used in s. 440.50 and this section, the term:
31
159
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (a) "Plan" means the workers' compensation joint
2 underwriting plan provided for in s. 627.311(4).
3 (b) "Fixed administrative expenses" means the expenses
4 of the plan, not to exceed $750,000, which are directly
5 related to the plan's administration but which do not vary in
6 direct relationship to the amount of premium written by the
7 plan and which do not include loss adjustment premiums.
8 (14) Before July 1 in each year, the plan shall notify
9 the department division of the amount of the plan's gross
10 written premiums for the preceding calendar year. Whenever the
11 plan's gross written premiums reported to the department
12 division are less than $30 million, the department division
13 shall transfer to the plan, subject to appropriation by the
14 Legislature, an amount not to exceed the plan's fixed
15 administrative expenses for the preceding calendar year.
16 Section 53. Subsections (1) and (3) of section 440.52,
17 Florida Statutes, are amended to read:
18 440.52 Registration of insurance carriers; notice of
19 cancellation or expiration of policy; suspension or revocation
20 of authority.--
21 (1) Each insurance carrier who desires to write such
22 compensation insurance in compliance with this chapter shall
23 be required, before writing such insurance, to register with
24 the department division and pay a registration fee of $100.
25 This shall be deposited by the department division in the fund
26 created by s. 440.50.
27 (3) If the department division finds, after due notice
28 and a hearing at which the insurance carrier is entitled to be
29 heard in person or by counsel and present evidence, that the
30 insurance carrier has repeatedly failed to comply with its
31 obligations under this chapter, the department division may
160
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 request the Department of Insurance to suspend or revoke the
2 authorization of such insurance carrier to write workers'
3 compensation insurance under this chapter. Such suspension or
4 revocation shall not affect the liability of any such
5 insurance carrier under policies in force prior to the
6 suspension or revocation.
7 Section 54. Section 440.525, Florida Statutes, is
8 amended to read:
9 440.525 Examination of carriers.--Beginning July 1,
10 1994, The Division of Workers' Compensation of the department
11 of Labor and Employment Security may examine each carrier as
12 often as is warranted to ensure that carriers are fulfilling
13 their obligations under the law, and shall examine each
14 carrier not less frequently than once every 3 years. The
15 examination must cover the preceding 3 fiscal years of the
16 carrier's operations and must commence within 12 months after
17 the end of the most recent fiscal year being covered by the
18 examination. The examination may cover any period of the
19 carrier's operations since the last previous examination.
20 Section 55. Section 440.572, Florida Statutes, is
21 amended to read:
22 440.572 Authorization for individual self-insurer to
23 provide coverage.--An individual self-insurer having a net
24 worth of not less than $250 million as authorized by s.
25 440.38(1)(f) may assume by contract the liabilities under this
26 chapter of contractors and subcontractors, or each of them,
27 employed by or on behalf of such individual self-insurer when
28 performing work on or adjacent to property owned or used by
29 the individual self-insurer by the department division. The
30 net worth of the individual self-insurer shall include the
31 assets of the self-insurer's parent company and its
161
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 subsidiaries, sister companies, affiliated companies, and
2 other related entities, located within the geographic
3 boundaries of the state.
4 Section 56. Section 440.59, Florida Statutes, is
5 amended to read:
6 440.59 Reporting requirements.--
7 (1) The department shall annually prepare a report of
8 the administration of this chapter for the preceding calendar
9 year, including a detailed statement of the receipts of and
10 expenditures from the fund established in s. 440.50 and a
11 statement of the causes of the accidents leading to the
12 injuries for which the awards were made, together with such
13 recommendations as the department considers advisable. On or
14 before September 15 of each year, the department shall submit
15 a copy of the report to the Governor, the President of the
16 Senate, the Speaker of the House of Representatives, the
17 Democratic and Republican Leaders of the Senate and the House
18 of Representatives, and the chairs of the legislative
19 committees having jurisdiction over workers' compensation.
20 (2) The division shall annually prepare a closed claim
21 report for all claims for which the employee lost more than 7
22 days from work and shall submit a copy of the report to the
23 Governor, the President of the Senate, the Speaker of the
24 House of Representatives, the Democratic and Republican
25 Leaders of the Senate and the House of Representatives, and
26 the chairs of the legislative committees having jurisdiction
27 over workers' compensation on or before September 15 of each
28 year. The closed claim report shall include, but not be
29 limited to, an analysis of all claims closed during the
30 preceding year as to the date of accident, age of the injured
31 employee, occupation of the injured employee, type of injury,
162
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 body part affected, type and duration of indemnity benefits
2 paid, permanent impairment rating, medical benefits identified
3 by type of health care provider, and type and cost of any
4 rehabilitation benefits provided.
5 (3) The division shall prepare an annual report for
6 all claims for which the employee lost more than 7 days from
7 work and shall submit a copy of the report to the Governor,
8 the President of the Senate, the Speaker of the House of
9 Representatives, the Democratic and Republican Leaders of the
10 Senate and the House of Representatives, and the chairs of the
11 legislative committees having jurisdiction over workers'
12 compensation, on or before September 15 of each year. The
13 annual report shall include a status report on all cases
14 involving work-related injuries in the previous 10 years. The
15 annual report shall include, but not be limited to, the number
16 of open and closed cases, the number of cases receiving
17 various types of benefits, and the cash and medical benefits
18 paid between the date of injury and the evaluation date in
19 each case.
20 Section 57. Section 440.591, Florida Statutes, is
21 amended to read:
22 440.591 Administrative procedure; rulemaking
23 authority.--The department, the agency, and the Department of
24 Education may division has authority to adopt rules pursuant
25 to ss. 120.536(1) and 120.54 to implement the provisions of
26 this chapter conferring duties upon it.
27 Section 58. Section 440.593, Florida Statutes, is
28 amended to read:
29 440.593 Electronic reporting.--
30 (1) The department division may establish an
31 electronic reporting system requiring or authorizing an
163
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 employer or carrier to submit required forms, reports, or
2 other information electronically rather than by other means.
3 The department division may establish different deadlines for
4 submitting forms, reports, or information to the department
5 division, or to its authorized agent, via the electronic
6 reporting system than are otherwise required when reporting
7 information by other means.
8 (2) The department division may require any carrier to
9 submit data electronically, either directly or through a
10 third-party vendor, and may require any carrier or vendor
11 submitting data to the department division electronically to
12 be certified by the department division. The department
13 division may specify performance requirements for any carrier
14 or vendor submitting data electronically.
15 (3) The department division may revoke the
16 certification of any carrier or vendor determined by the
17 department division to be in noncompliance with performance
18 standards prescribed by rule for electronic submissions.
19 (4) The department division may assess a civil
20 penalty, not to exceed $500 for each violation, as prescribed
21 by rule.
22 (5) The department may division is authorized to adopt
23 rules to administer this section.
24 Section 59. Subsections (1), (4), and (5) of section
25 443.012, Florida Statutes, are amended to read:
26 443.012 Unemployment Appeals Commission.--
27 (1) There is created within the Agency for Workforce
28 Innovation Department of Labor and Employment Security an
29 Unemployment Appeals Commission, hereinafter referred to as
30 the "commission." The commission shall consist of a chair and
31 two other members to be appointed by the Governor, subject to
164
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 confirmation by the Senate. Not more than one appointee must
2 be a person who, on account of previous vocation, employment,
3 or affiliation, is classified as a representative of
4 employers; and not more than one such appointee must be a
5 person who, on account of previous vocation, employment, or
6 affiliation, is classified as a representative of employees.
7 (a) The chair shall devote his or her entire time to
8 commission duties and shall be responsible for the
9 administrative functions of the commission.
10 (b) The chair shall have the authority to appoint a
11 general counsel and such other personnel as may be necessary
12 to carry out the duties and responsibilities of the
13 commission.
14 (c) The chair shall have the qualifications required
15 by law for a judge of the circuit court and shall not engage
16 in any other business vocation or employment. Notwithstanding
17 any other provisions of existing law, the chair shall be paid
18 a salary equal to that paid under state law to a judge of the
19 circuit court.
20 (d) The remaining members shall be paid a stipend of
21 $100 for each day they are engaged in the work of the
22 commission. The chair and other members shall also be
23 reimbursed for travel expenses, as provided in s. 112.061.
24 (e) The total salary and travel expenses of each
25 member of the commission shall be paid from the Employment
26 Security Administration Trust Fund.
27 (4) The property, personnel, and appropriations
28 relating to the specified authority, powers, duties, and
29 responsibilities of the commission shall be provided to the
30 commission by the Agency for Workforce Innovation Department
31 of Labor and Employment Security.
165
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (5) The commission shall not be subject to control,
2 supervision, or direction by the Agency for Workforce
3 Innovation Department of Labor and Employment Security in the
4 performance of its powers and duties under this chapter.
5 Section 60. Subsection (12) of section 443.036,
6 Florida Statutes, is amended to read:
7 443.036 Definitions.--As used in this chapter, unless
8 the context clearly requires otherwise:
9 (12) COMMISSION.--"Commission" means the Unemployment
10 Appeals Commission of the Department of Labor and Employment
11 Security.
12 Section 61. Subsection (3) of section 447.02, Florida
13 Statutes, is amended to read:
14 447.02 Definitions.--The following terms, when used in
15 this chapter, shall have the meanings ascribed to them in this
16 section:
17 (3) The term "department" means the Department of
18 Business and Professional Regulation Labor and Employment
19 Security.
20 Section 62. Subsection (4) of section 447.305, Florida
21 Statutes, is amended to read:
22 447.305 Registration of employee organization.--
23 (4) Notification of registrations and renewals of
24 registration shall be furnished at regular intervals by the
25 commission to the Department of Business and Professional
26 Regulation Labor and Employment Security.
27 Section 63. Subsection (4) of section 450.012, Florida
28 Statutes, is amended to read:
29 450.012 Definitions.--For the purpose of this chapter,
30 the word, phrase, or term:
31
166
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (4) "Department" means the Department of Business and
2 Professional Regulation Labor and Employment Security.
3 Section 64. Paragraph (j) of subsection (1) of section
4 450.191, Florida Statutes, is amended to read:
5 450.191 Executive Office of the Governor; powers and
6 duties.--
7 (1) The Executive Office of the Governor is authorized
8 and directed to:
9 (j) Cooperate with the farm labor office of the
10 Department of Business and Professional Regulation Labor and
11 Employment Security in the recruitment and referral of migrant
12 laborers and other persons for the planting, cultivation, and
13 harvesting of agricultural crops in Florida.
14 Section 65. Subsection (2) of section 450.28, Florida
15 Statutes, is amended to read:
16 450.28 Definitions.--
17 (2) "Department" means the Department of Business and
18 Professional Regulation Labor and Employment Security.
19 Section 66. Subsections (1) and (5) of section
20 624.3161, Florida Statutes, are amended to read:
21 624.3161 Market conduct examinations.--
22 (1) As often as it deems necessary, the department
23 shall examine each licensed rating organization, each advisory
24 organization, each group, association, carrier, as defined in
25 s. 440.02, or other organization of insurers which engages in
26 joint underwriting or joint reinsurance, and each authorized
27 insurer transacting in this state any class of insurance to
28 which the provisions of chapter 627 are applicable. The
29 examination shall be for the purpose of ascertaining
30 compliance by the person examined with the applicable
31 provisions of chapters 440, 624, 626, 627, and 635.
167
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (5) Such examinations shall also be subject to the
2 applicable provisions of chapter 440 and ss. 624.318, 624.319,
3 624.321, and 624.322.
4 Section 67. Paragraph (m) of subsection (1) of section
5 626.88, Florida Statutes, is amended to read:
6 626.88 Definitions of "administrator" and "insurer".--
7 (1) For the purposes of this part, an "administrator"
8 is any person who directly or indirectly solicits or effects
9 coverage of, collects charges or premiums from, or adjusts or
10 settles claims on residents of this state in connection with
11 authorized commercial self-insurance funds or with insured or
12 self-insured programs which provide life or health insurance
13 coverage or coverage of any other expenses described in s.
14 624.33(1), other than any of the following persons:
15 (m) A person approved by the Division of Workers'
16 Compensation of the Department of Insurance Labor and
17 Employment Security who administers only self-insured workers'
18 compensation plans.
19 Section 68. Subsection (9) of section 626.989, Florida
20 Statutes, is amended to read:
21 626.989 Investigation by department or Division of
22 Insurance Fraud; compliance; immunity; confidential
23 information; reports to division; division investigator's
24 power of arrest.--
25 (9) In recognition of the complementary roles of
26 investigating instances of workers' compensation fraud and
27 enforcing compliance with the workers' compensation coverage
28 requirements under chapter 440, the Division of Insurance
29 Fraud of the Department of Insurance is and the Division of
30 Workers' Compensation of the Department of Labor and
31 Employment Security are directed to prepare and submit a joint
168
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 performance report to the President of the Senate and the
2 Speaker of the House of Representatives by November 1, 2003 of
3 each year for each of the next 2 years, and then by November 1
4 every 3 years thereafter, describing the results obtained in
5 achieving compliance with the workers' compensation coverage
6 requirements and reducing the incidence of workers'
7 compensation fraud.
8 Section 69. Section 627.0915, Florida Statutes, is
9 amended to read:
10 627.0915 Rate filings; workers' compensation,
11 drug-free workplace, and safe employers.--The Department of
12 Insurance shall approve rating plans for workers' compensation
13 insurance that give specific identifiable consideration in the
14 setting of rates to employers that either implement a
15 drug-free workplace program pursuant to rules adopted by the
16 Division of Workers' Compensation of the Department of
17 Insurance Labor and Employment Security or implement a safety
18 program pursuant to provisions of the rating plan or implement
19 both a drug-free workplace program and a safety program. The
20 plans must be actuarially sound and must state the savings
21 anticipated to result from such drug-testing and safety
22 programs.
23 Section 70. Subsection (3) of section 627.914, Florida
24 Statutes, is amended to read:
25 627.914 Reports of information by workers'
26 compensation insurers required.--
27 (3) Individual self-insurers as defined in s. 440.02
28 shall report only Florida data as prescribed in paragraphs
29 (2)(a)-(e) to the Division of Workers' Compensation of the
30 department of Labor and Employment Security.
31
169
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 CS for SB 2340
311-2147A-02
1 (a) The department Division of Workers' Compensation
2 shall publish the dates and forms necessary to enable
3 individual self-insurers to comply with this section.
4 (b) A statistical or rating organization may be used
5 by individual self-insurers for the purposes of reporting the
6 data required by this section and calculating experience
7 ratings.
8 Section 71. Sections 20.171 and 440.4416, Florida
9 Statutes, are repealed.
10 Section 72. If any provision of this act or its
11 application to any person or circumstance is held invalid, the
12 invalidity does not affect other provisions or applications of
13 the act which can be given effect without the invalid
14 provision or application, and to this end the provisions of
15 this act are severable.
16 Section 73. Except as otherwise provided in this act,
17 this act shall take effect July 1, 2002.
18
19 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
20 Senate Bill 2340
21
22 This committee substitute makes the following changes:
23 1. Eliminates the provision which would require the
Department of Banking and Finance, in conjunction with
24 the Attorney General, to settle all claims of the
Department of Labor and Employment Security;
25
2. Revises the compliance and penalty provisions for
26 carriers that do not pay medical bills in a timely
manner by eliminating the 90 percent compliance standard
27 and a fine based on the prior years' administrative
trust fund assessment, and instead, subjecting carriers
28 to the provisions of the Insurance Code.
29
30
31
170
CODING: Words stricken are deletions; words underlined are additions.