House Bill hb0319

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    Florida House of Representatives - 2002                 HB 319

        By Representative Clarke






  1                      A bill to be entitled

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

  3         440.24, F.S.; providing for sales of securities

  4         on deposit to satisfy a compensation order;

  5         amending s. 440.38, F.S.; transferring

  6         operation of provisions requiring the securing

  7         of payment of compensation by employers from

  8         the Division of Workers' Compensation of the

  9         Department of Labor and Employment Security to

10         the Florida Self-Insurers Guaranty Association,

11         Incorporated, and the Department of Revenue;

12         revising and clarifying requirements and

13         procedures; providing powers and duties of the

14         association and the departments; providing for

15         allocation or payment of state funds to the

16         association for certain purposes; providing

17         rulemaking authority; amending s. 440.385,

18         F.S.; revising and clarifying provisions

19         relating to the association's creation, board

20         of directors, powers and duties, insolvency

21         fund, and plan of operation; providing

22         additional powers of the association;

23         transferring powers and duties of the

24         Department of Labor and Employment Security

25         relating to the association to the Department

26         of Revenue; revising such powers and duties;

27         providing additional powers and duties of the

28         Department of Revenue; providing for oversight

29         of the association by the department; deleting

30         certain provisions relating to detection and

31         prevention of employer insolvencies; amending

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

  2         association with the Department of Revenue

  3         relating to proceedings for delinquency,

  4         liquidation, and conservation of assets;

  5         repealing s. 440.51(6)(b), F.S., relating to

  6         certain reports required by the Department of

  7         Insurance; amending s. 440.515, F.S.;

  8         correcting a cross reference, to conform;

  9         providing an effective date.

10

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

12

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

14  Statutes, is amended to read:

15         440.24  Enforcement of compensation orders;

16  penalties.--

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

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

19  compensation claims or court within 10 days after such order

20  becomes final, the Department of Revenue division may suspend

21  or revoke any authorization previously given to the employer

22  to be become a self-insurer, and the Florida Self-Insurers

23  Guaranty Association division may call or sue upon the surety

24  bond or exercise its rights under a letter of credit sell such

25  of the securities deposited by the such self-insurer with the

26  Florida Self-Insurers Guaranty Association as a qualifying

27  security deposit division as may be necessary to satisfy the

28  such order.

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

30  440.38, Florida Statutes, are amended to read:

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  1         440.38  Security for compensation; insurance carriers

  2  and self-insurers.--

  3         (1)  Every employer shall secure the payment of

  4  compensation under this chapter:

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

  6  such compensation with any stock company or mutual company or

  7  association or exchange, authorized to do business in the

  8  state;

  9         (b)  By furnishing satisfactory proof to the Florida

10  Self-Insurers Guaranty Association, Incorporated, created in

11  s. 440.385, that the employer has the financial strength

12  necessary to ensure timely payment of all current and future

13  claims division of its financial ability to pay such

14  compensation individually and on behalf of its subsidiary and

15  affiliated companies with employees in this state and

16  receiving an authorization from the Department of Revenue

17  division to pay such compensation directly. The association

18  shall review the financial strength of applicants for

19  membership, current members, and former members and make

20  recommendations to the Department of Revenue regarding their

21  qualifications to self-insure in accordance with this section

22  and ss. 440.385 and 440.386. The Department of Revenue shall

23  act in accordance with such recommendation unless the

24  department determines by clear and convincing evidence that

25  the recommendation is erroneous. the following provisions:

26         1.  The association division may recommend that the

27  Department of Revenue, as a condition to such authorization,

28  require an employer to deposit with the association division a

29  qualifying security deposit. The association division shall

30  recommend determine the type and amount of the qualifying

31  security deposit and shall prescribe conditions for the

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  1  qualifying security deposit, which shall include authorization

  2  for the association division to call the qualifying security

  3  deposit in the case of default to pay compensation awards and

  4  related expenses of the association. In addition, the division

  5  shall require, As a condition to authorization to self-insure,

  6  the employer shall provide proof that the employer has

  7  provided for competent personnel with whom to deliver benefits

  8  and to provide a safe working environment.  Further, The

  9  employer division shall also provide evidence of require such

10  employer to carry reinsurance at levels that will ensure the

11  financial strength and actuarial soundness of such employer in

12  accordance with rules adopted promulgated by the Department of

13  Revenue division.  The Department of Revenue division may by

14  rule require that, in the event of an individual

15  self-insurer's insolvency, such qualifying security deposits

16  and reinsurance policies are payable to the Florida

17  Self-Insurers Guaranty association, Incorporated, created

18  pursuant to s. 440.385.  Any employer securing compensation in

19  accordance with the provisions of this paragraph shall be

20  known as a self-insurer and shall be classed as a carrier of

21  her or his own insurance. All such employers shall, if

22  requested, provide to the association an actuarial report

23  signed by a member of the American Academy of Actuaries

24  providing an opinion of the appropriate present value of the

25  reserves, using a 4-percent discount rate, for current and

26  future compensation claims. If any member or former member of

27  the association refuses to timely provide such report, the

28  association may obtain an order from a circuit court requiring

29  the member to produce such report and ordering such other

30  relief as the court determines appropriate. The association

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  1  shall be entitled to recover all reasonable costs and

  2  attorney's fees in such proceedings.

  3         2.  If the employer fails to maintain the foregoing

  4  requirements, the association division shall recommend to the

  5  Department of Revenue that the department revoke the

  6  employer's authority to self-insure, unless the employer

  7  provides to the association division the certified opinion of

  8  an independent actuary who is a member of the American Academy

  9  Society of Actuaries as to the actuarial present value of the

10  employer's determined and estimated future compensation

11  payments based on cash reserves, using a 4-percent discount

12  rate, and a qualifying security deposit equal to 1.5 times the

13  value so certified. The employer shall thereafter annually

14  provide such a certified opinion until such time as the

15  employer meets the requirements of subparagraph 1.  The

16  qualifying security deposit shall be adjusted at the time of

17  each such annual report.  Upon the failure of the employer to

18  timely provide such opinion or to timely provide a security

19  deposit in an amount equal to 1.5 times the value certified in

20  the latest opinion, the association shall provide such

21  information to the Department of Revenue, together with a

22  recommendation, and the department division shall then revoke

23  the such employer's authorization to self-insure., and such

24  Failure to comply with this provision shall be deemed to

25  constitute an immediate serious danger to the public health,

26  safety, or welfare sufficient to justify the summary

27  suspension of the employer's authorization to self-insure

28  pursuant to s. 120.68.

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

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

31  the division and to the Florida Self-Insurers Guaranty

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

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

  3  the American Academy Society of Actuaries of the actuarial

  4  present value of the determined and estimated future

  5  compensation payments of the employer for claims incurred

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

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

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

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

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

11  association division a qualifying security deposit in an

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

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

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

15  provide such opinion or who fails to timely maintain the

16  required security deposit with the association division. The

17  association shall recover a judgment in the amount of the

18  actuarial present value of the determined and estimated future

19  compensation payments of the employer for claims incurred

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

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

22  the successor of an employer means any person, business

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

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

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

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

27  option of the employer, of:

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

29  as prescribed by the association division, issued by a

30  corporation surety authorized to transact surety business by

31  the Department of Insurance, and whose policyholders' and

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

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

  3  respectively.

  4         b.  Irrevocable letters of credit in favor of the

  5  association division issued by financial institutions located

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

  7  the Federal Deposit Insurance Corporation.

  8         5.  The qualifying security deposit shall be held by

  9  the association division exclusively for the benefit of

10  workers' compensation claimants. The security shall not be

11  subject to assignment, execution, attachment, or any legal

12  process whatsoever, except as necessary to guarantee the

13  payment of compensation under this chapter.  No surety bond

14  may be terminated, and no letter of credit may be allowed to

15  expire, without 90 days' prior written notice to the

16  association division and the deposit by the self-insuring

17  employer of some other qualifying security deposit of equal

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

19  provide such written notice or failure to timely provide

20  qualifying replacement security after such notice shall

21  constitute grounds for the association division to call or sue

22  upon the surety bond or to exercise its rights under a letter

23  of credit. Current self-insured employers must comply with

24  this section on or before December 31, 2002 2001, or upon the

25  maturity of existing security deposits, whichever occurs

26  later. The Department of Revenue division may specify by rule

27  the amount of the qualifying security deposit required prior

28  to authorizing an employer to self-insure and the amount of

29  net worth required for an employer to qualify for

30  authorization to self-insure;

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

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

  3  set forth in s. 624.46225 in effect as of July 1, 1983.  The

  4  Department of Revenue division shall adopt rules to implement

  5  this paragraph;

  6         (d)  By entering into an interlocal agreement with

  7  other local governmental entities to create a local government

  8  pool pursuant to s. 624.4622;

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

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

11  Workers' Compensation Law and retain the benefit of the

12  exclusiveness of liability provided in s. 440.11 by obtaining

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

14  and casualty insurance carrier or an authorized life and

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

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

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

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

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

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

21  at least occupational injuries and illnesses, medical benefits

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

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

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

25  coverage plan referenced in this paragraph. Disputes and

26  remedies arising under policies issued under this section are

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

28  the applicable provisions of the Florida Insurance Code and

29  rules adopted under the insurance code and other applicable

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

31  provide for health care by a health maintenance organization

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  1  or a preferred provider organization. The premium for such

  2  24-hour health insurance policy shall be paid entirely by the

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

  4  deductibles and coinsurance provisions that require the

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

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

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

  8  compensation as to medical benefits, the employer must also

  9  obtain an insurance policy or policies that provide indemnity

10  benefits as follows:

11         1.  If indemnity benefits are provided only for

12  occupational-related disability, such benefits must be

13  comparable to those required by this chapter.

14         2.  If indemnity benefits are provided for both

15  occupational-related and nonoccupational-related disability,

16  such benefits must be comparable to those required by this

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

18  average weekly wages.

19         3.  The employer shall provide for each of its

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

21         4.  Policies providing coverage under this subsection

22  must use prescribed and acceptable underwriting standards,

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

24  If any insurance policy that provides coverage under this

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

26  the cancellation, termination, or nonrenewal is ineffective

27  until the self-insured employer or insurance carrier or

28  carriers notify the division and the Department of Revenue

29  Insurance of the cancellation, termination, or nonrenewal, and

30  until the Department of Revenue division has actually received

31  the notification. The Department of Revenue division must be

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  1  notified of replacement coverage under a workers' compensation

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

  3  employer prior to the effective date of the cancellation,

  4  termination, or nonrenewal; or

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

  6  self-insurer under an approved individual

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

  8  s. 624.46225.  The Department of Revenue division may adopt

  9  rules to administer this subsection.

10         (2)(a)  The Department of Revenue division shall adopt

11  rules by which businesses may become qualified to provide

12  underwriting claims-adjusting, loss control, and safety

13  engineering services to self-insurers.

14         (b)  The Department of Revenue division shall adopt

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

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

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

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

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

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

21  company or association or exchange authorized to do insurance

22  business in the state shall for good cause, upon

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

24  Department of Insurance.  No suspension or revocation shall

25  affect the liability of any carrier already incurred.

26         (b)  The Department of Revenue division shall suspend

27  or revoke any authorization to a self-insurer for failure to

28  comply with this act or for good cause, as defined by rule of

29  the department division. No suspension or revocation shall

30  affect the liability of any self-insurer already incurred.

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  1         (c)  Violation of s. 440.381 by a self-insurance fund

  2  shall result in the imposition of a fine not to exceed $1,000

  3  per audit if the self-insurance fund fails to act on said

  4  audits by correcting errors in employee classification or

  5  accepted applications for coverage where it knew employee

  6  classifications were incorrect.  Such fines shall be levied by

  7  the Department of Revenue division and deposited into the

  8  Workers' Compensation Administration Trust Fund.

  9         Section 3.  Section 440.385, Florida Statutes, is

10  amended to read:

11         440.385  Florida Self-Insurers Guaranty Association,

12  Incorporated.--

13         (1)  CREATION OF ASSOCIATION.--

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

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

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

17  Upon incorporation of the association, all individual

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

19  440.38(1)(b), other than individual self-insurers which are

20  public utilities or governmental entities, shall be members of

21  the association as a condition of their authority to

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

23  perform its functions under a plan of operation as established

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

25  powers and duties through a board of directors as established

26  under subsection (2). The association corporation shall have

27  those powers granted or permitted associations corporations

28  not for profit, as provided in chapter 617. The activities of

29  the association shall be subject to review by the Department

30  of Revenue. The department shall have oversight responsibility

31  as set forth in this act. The association is specifically

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  1  authorized to enter into agreements with this state to perform

  2  specified services.

  3         (b)  A member may voluntarily withdraw from the

  4  association when the member voluntarily terminates the

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

  6  date of such termination.  However, the withdrawing member

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

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

  9  charged pursuant thereto.  The withdrawing member who is a

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

11  provide to the association division upon withdrawal, and at

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

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

14  potential claims certified by a member of the American Academy

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

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

17  withdrawing member exercised the privilege of self-insurance.

18  Such reporting shall continue until the withdrawing member

19  demonstrates to the association satisfies the division that

20  there is no remaining value to claims incurred while the

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

22  fails or refuses to timely provide an actuarial report to the

23  association, the association may obtain an order from a

24  circuit court requiring the member to produce such report and

25  ordering such other relief as the court determines

26  appropriate.  The association shall be entitled to recover all

27  reasonable costs and attorney's fees expended in such

28  proceedings. If during this reporting period the withdrawing

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

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

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

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  1  provide to the division and the association the certified

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

  3  American Academy Society of Actuaries of the actuarial present

  4  value of the determined and estimated future compensation

  5  payments of the member for claims incurred while the member

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

  7  each such opinion, the withdrawing member shall deposit with

  8  the association division security in an amount equal to the

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

10  acceptable for qualifying security deposits under s.

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

12  provide such opinions and to provide such security until such

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

14  The association has a cause of action against a withdrawing

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

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

17  maintain the required deposit with the association division.

18  The association shall be entitled to recover a judgment in the

19  amount of the actuarial present value of the determined and

20  estimated future compensation payments of the withdrawing

21  member for claims incurred during the time that the

22  withdrawing member exercised the privilege of self-insurance,

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

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

25  action to compel production of any actuarial report required

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

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

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

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

30  majority of the shares of the withdrawing member.

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

  2  association shall consist of nine persons and shall be

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

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

  5  With respect to initial appointments, the Secretary of Labor

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

  7  appoint to the board persons who are experienced with

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

  9  individual self-insurers in this state required to become

10  members of the association pursuant to the provisions of

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

12  person so recommended does not have the necessary

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

14  board has been appointed, the secretary shall request the

15  directors thus far approved and appointed to recommend another

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

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

18  January 1, 2002, other than initial appointments shall be made

19  by the Department of Revenue Secretary of Labor and Employment

20  Security upon recommendation of members of the association.

21  Any vacancy on the board shall be filled for the remaining

22  period of the term in the same manner as appointments other

23  than initial appointments are made. Each director shall be

24  reimbursed for expenses incurred in carrying out the duties of

25  the board on behalf of the association.

26         (3)  POWERS AND DUTIES.--

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

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

29  for payment of compensation under this chapter to insolvent

30  members' employees resulting from incidents and injuries

31  existing prior to the member becoming an insolvent member and

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  1  from incidents and injuries occurring within 30 days after the

  2  member has become an insolvent member, provided the incidents

  3  giving rise to claims for compensation under this chapter

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

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

  6  plan of operation, and provided the employee makes timely

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

  8  court of competent jurisdiction over the delinquency or

  9  bankruptcy proceedings of the insolvent member. Such

10  obligation includes only that amount due the injured worker or

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

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

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

14  association shall be deemed the insolvent employer for

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

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

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

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

19  the association be liable for any penalties or interest.

20         (b)  The association may:

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

22  handle claims and perform other duties of the association.

23         2.  Borrow funds necessary to effect the purposes of

24  this section in accord with the plan of operation.

25         3.  Sue or be sued.

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

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

28         5.  Purchase such reinsurance as is determined

29  necessary pursuant to the plan of operation.

30         6.  Review all applicants for membership in the

31  association to determine whether the applicant is qualified

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  1  for membership under the law.  The association shall recommend

  2  to the Department of Revenue that the application be accepted

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

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

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

  6  determination by the Division of Workers' Compensation as to

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

  8  association, the association may issue opinions to the

  9  division concerning any applicant, which opinions shall be

10  considered by the division prior to any final determination.

11         7.  Collect and review financial information from

12  employers and make recommendations to the Department of

13  Revenue regarding the appropriate security deposit and

14  reinsurance amounts necessary for an employer to demonstrate

15  that the employer has the financial strength necessary to

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

17  The association may audit and examine an employer to verify

18  the financial strength of the employer's current and former

19  members. If the association determines that a current or

20  former self-insured employer does not have the financial

21  strength necessary to assure the timely payment of all current

22  and estimated future claims, the association may recommend to

23  the department that the department:

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

25         b.  Require the employer to provide a certified opinion

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

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

28  employer's estimated current and future compensation payments,

29  using a 4-percent discount rate.

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

31  deposit in an amount determined by the association to be

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  1  necessary to ensure payment of compensation claims.  The

  2  Department of Revenue shall act on such recommendations as

  3  provided in paragraph (6)(a).  The association has a cause of

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

  5  employer, who fails to provide an additional security deposit

  6  required by the department.  The association shall recover a

  7  judgment in the amount of the requested additional security

  8  deposit together with reasonable attorney's fees.  For the

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

10  person or business entity or group of persons or business

11  entities that holds or acquires legal or beneficial title to

12  the majority of the assets or the majority of the shares of

13  the employer.

14         8.7.  Charge fees to any member of the association to

15  cover the actual costs of examining the financial and safety

16  conditions of that member.

17         9.8.  Charge an applicant for membership in the

18  association a fee sufficient to cover the actual costs of

19  examining the financial condition of the applicant.

20         10.  Implement any and all procedures necessary to

21  ensure compliance with regulatory actions taken by the

22  Department of Revenue.

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

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

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

26  the Department of Revenue Labor and Employment Security, upon

27  certification of the board of directors, shall levy

28  assessments based on the annual written normal premium each

29  employer would have paid had the employer not been

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

31  percentage of the figure applicable to all individual

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

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

  3  annual written normal premium during the calendar year

  4  preceding the date of the assessment. Assessments shall be

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

  6  manner specified by the approved plan.  Each employer so

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

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

  9  levy assessments against any newly admitted member of the

10  association so that the basis of contribution of any newly

11  admitted member is the same as previously admitted members,

12  provision for which shall be contained in the plan of

13  operation.

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

15  assessments, together with funds previously raised, are not

16  sufficient to make all the payments or reimbursements then

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

18  portion shall be paid as soon thereafter as sufficient

19  additional funds become available.

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

21  Compensation Administration Trust Fund to contract with the

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

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

24  association or any of its accounts for payment of covered

25  claims or related expenses except those state funds accruing

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

27  an insolvent employer. The Department of Revenue shall not

28  levy any assessment on the Florida Self-Insurance Guaranty

29  Association.

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

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

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

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

  3  association.

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

  5  meeting the obligations of insolvent members incurred while

  6  members of the association and after the exhaustion of any

  7  security deposit bond, as required under this chapter.

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

  9  policy is payable to the Florida Self-Insurers Guaranty

10  Association, the association shall commence to provide

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

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

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

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

15         (b)  The Department of Revenue shall have the authority

16  to audit the financial soundness of the Insolvency Fund

17  annually.

18         (c)  The Department of Revenue may offer certain

19  amendments to the plan of operation to the board of directors

20  of the association for purposes of assuring the ongoing

21  financial soundness of the Insolvency Fund and its ability to

22  meet the obligations of this section.

23         (d)  The department actuary may make certain

24  recommendations to improve the orderly payment of claims.

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

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

27  directors.  The plan of operation in effect on January 1,

28  2002, and approved by the Department of Labor and Employment

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

30  the plan shall not become effective until approved by the

31  Department of Revenue. By September 15, 1982, the board of

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  1  directors shall submit to the Department of Labor and

  2  Employment Security a proposed plan of operation for the

  3  administration of the association and the Insolvency Fund.

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

  5  provide the association and the board of directors with the

  6  authority and responsibility to establish the necessary

  7  programs and to take the necessary actions to protect against

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

  9  the plan shall provide that the members of the association

10  shall be responsible for maintaining an adequate Insolvency

11  Fund to meet the obligations of insolvent members provided for

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

13  contract and employ those persons with the necessary expertise

14  to carry out this stated purpose. By January 1, 2003, the

15  board of directors shall submit to the Department of Revenue a

16  proposed plan of operation for the administration of the

17  association. The department shall approve the plan by order,

18  consistent with this act. The department shall approve any

19  amendments to the plan, by order consistent with this act,

20  determined appropriate to carry out the duties and

21  responsibilities of the association.

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

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  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 of Revenue within 30 days after the action or

26  decision.

27         8.  Establish the procedures whereby recommendations of

28  candidates for the board of directors shall be submitted to

29  the Department of Revenue.

30         9.  Contain additional provisions necessary or proper

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

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

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

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

  4  a corporation, association, or other organization which

  5  performs or will perform functions similar to those of this

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

  7  corporation, association, or organization shall be reimbursed

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

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

10  A delegation of powers or duties under this subsection shall

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

12  directors and the Department of Revenue and may be made only

13  to a 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 REVENUE LABOR

17  AND EMPLOYMENT SECURITY.--

18         (a)  The Department of Revenue shall:

19         (a)  Review recommendations of the association

20  concerning whether current or former self-insured employers or

21  members of the association have the financial strength

22  necessary to ensure the timely payment of all current and

23  estimated future claims.  If the association determines an

24  employer does not have the financial strength necessary to

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

26  recommends action pursuant to paragraph (3)(b), the department

27  may take such action as necessary to order the employer to

28  comply with the recommendation unless the department

29  determines by clear and convincing evidence that the

30  recommendation is erroneous.

31

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  1         1.  Notify the association of the existence of an

  2  insolvent employer not later than 3 days after it receives

  3  notice of the determination of insolvency.

  4         2.  Upon request of the board of directors, provide the

  5  association with a statement of the annual normal premiums of

  6  each member employer.

  7         (b)  Contract with the association for services, which

  8  may include, but need not be limited to, the following:

  9         1.  Process applications for self-insurance.

10         2.  Collect and review financial statements and loss

11  reserve information from individual self-insurers.

12         3.  Collect and maintain files for original security

13  deposit documents and reinsurance policies from individual

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

15  security deposits.

16         4.  Process compliance documentation for individual

17  self-insurers and provide such documentation to the Division

18  of Workers' Compensation.

19         5.  Collect all data necessary to calculate annual

20  premium for all individual self-insurers, including individual

21  self-insurers that are public utilities or governmental

22  entities, and provide such calculated annual premium to the

23  Division of Workers' Compensation for assessment purposes.

24         6.  Inspect and audit annually, if necessary, the

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

26  including individual self-insurers that are public utilities

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

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

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

30  compensation made by such individual self-insurer during each

31  prior period, and provide the results of such audit to the

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  1  Division of Workers' Compensation.  For the purposes of this

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

  3  shall be open to inspection and audit by the association, an

  4  authorized representative of the association, or the

  5  Department of Revenue during regular business hours.

  6         7.  Process applications and make recommendations

  7  regarding the qualifications of businesses to be approved to

  8  provide or continue to provide underwriting, claims adjusting,

  9  loss control, and safety engineering services to individual

10  self-insurers.

11         8.  Provide legal representation to implement the

12  administration and audit of individual self-insurers and make

13  recommendations regarding prosecution of any administrative or

14  legal proceedings necessitated by the department's regulation

15  of the individual self-insurers.

16         (c)  Contract with an attorney or attorneys recommended

17  by the association for representation of the department in any

18  administrative or legal proceedings necessitated by the

19  recommended regulation of the individual self-insurers.

20         (d)  Direct the association to require from each

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

22  such regulations as the department prescribes, reports with

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

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

25  compensation made by such individual self-insurer during each

26  prior period and determine the amounts paid by each individual

27  self-insurer and the amounts paid by all individual

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

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

30  shall be open to annual inspection and audit by the

31  association or the department, or an authorized representative

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  1  of the association or department, during regular business

  2  hours and, if any audit of such records of an individual

  3  self-insurer discloses a deficiency in the amount reported to

  4  the association or in the amounts paid to the Division of

  5  Workers' Compensation by an individual self-insurer for its

  6  assessment for the Workers' Compensation Administration Trust

  7  Fund, the Department of Revenue or the association may assess

  8  the cost of such audit against the individual self-insurer.

  9  The department may:

10         (e)1.  Require that the association notify the member

11  employers and any other interested parties of the

12  determination of insolvency and of their rights under this

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

14  address thereof when available; but, if sufficient information

15  for notification by mail is not available, notice by

16  publication in a newspaper of general circulation shall be

17  sufficient.

18         (f)2.  Suspend or revoke the authority of any member

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

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

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

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

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

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

25  month.

26         (g)3.  Revoke the designation of any servicing facility

27  if the department finds that claims are being handled

28  unsatisfactorily.

29         (7)  EFFECT OF PAID CLAIMS.--

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

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

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

  2  Every claimant seeking the protection of this section shall

  3  cooperate with the association to the same extent as such

  4  person would have been required to cooperate with the

  5  insolvent member.  The association shall have no cause of

  6  action against the employee of the insolvent member for any

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

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

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

10  insolvent member operating on a plan with assessment

11  liability, payments of claims by the association shall not

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

13  receiver, liquidator, or statutory successor for unpaid

14  assessments.

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

16  of an insolvent member shall be bound by settlements of

17  covered claims by the association or a similar organization in

18  another state.  The court having jurisdiction shall grant such

19  claims priority against the assets of the insolvent member

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

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

22  or similar organization in handling claims shall be accorded

23  the same priority as the expenses of the liquidator.

24         (c)  The association shall file periodically with the

25  receiver or liquidator of the insolvent member statements of

26  the covered claims paid by the association and estimates of

27  anticipated claims on the association, which shall preserve

28  the rights of the association against the assets of the

29  insolvent member.

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

31  in the detection and prevention of employer insolvencies,:

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  1         (a)  upon determination by majority vote that any

  2  member employer may be insolvent or in a financial condition

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

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

  5  of Revenue Labor and Employment Security of any information

  6  indicating such condition.

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

  8  request that the department determine the condition of any

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

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

11  30 days of the receipt of such request or, for good cause

12  shown, within a reasonable time thereafter, the department

13  shall make such determination and shall forthwith advise the

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

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

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

17  determination to the public.

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

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

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

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

22  association.

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

24  make reports and recommendations to the department upon any

25  matter which is germane to the solvency, liquidation,

26  rehabilitation, or conservation of any member employer. Such

27  reports and recommendations shall not be considered public

28  documents.

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

30  make recommendations to the department for the detection and

31  prevention of employer insolvencies.

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

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

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

  4  cause of such insolvency, based on the information available

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

  6  department.

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

  8  shall be subject to examination and regulation by the

  9  Department of Revenue Labor and Employment Security.  No later

10  than March 30 of each year, the board of directors shall

11  submit an audited a financial statement report for the

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

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

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

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

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

17  Revenue Labor and Employment Security or its representatives

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

19  powers and duties under this section.

20         (11)  STAY OF PROCEEDINGS; REOPENING OF DEFAULT

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

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

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

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

25  additional period from the date the employer becomes an

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

27  competent jurisdiction to permit proper defense by the

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

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

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

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

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

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

  3  administrator that made such judgment, order, decision,

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

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

  6  the stay of proceedings may be shortened or waived.

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

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

  9  defined herein, with respect to which settlement is not

10  effected and pursuant to which suit is not instituted against

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

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

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

14  thenceforth be barred as a claim against the association.

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

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

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

18  Department of Revenue for deposit with the Treasurer to the

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

20  220 relating to penalties and interest on delinquent corporate

21  income tax payments apply to payments due under this

22  subsection.

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

24  440.386, Florida Statutes, are amended to read:

25         440.386  Individual self-insurers' insolvency;

26  conservation; liquidation.--

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

28  Department of Revenue or the Florida Self-Insurers Guaranty

29  Association, Incorporated, may commence a delinquency any such

30  proceeding by application to the court for an order directing

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

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

  2  Florida Self-Insurers Guaranty Association, Incorporated, may

  3  petition the department to commence such proceedings, and upon

  4  receipt of such petition, the department shall commence such

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

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

  7  application or grant the application, together with such other

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

  9  claimants, creditors, stockholders, members, subscribers, or

10  public may require.  The department and the Florida

11  Self-Insurers Guaranty association, Incorporated, shall give

12  be given reasonable written notice to each other by the

13  department of all hearings which pertain to an adjudication of

14  insolvency of a member individual self-insurer.

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

16  Revenue or the association may apply to the court for an order

17  appointing a receiver and directing the receiver to liquidate

18  the business of a domestic individual self-insurer if such

19  individual self-insurer is insolvent.  Florida Self-Insurers

20  Guaranty Association, Incorporated, may petition the

21  department to apply to the court for such order.  Upon receipt

22  of such petition, the department shall apply to the court for

23  such order.

24         (4)  GROUNDS FOR CONSERVATION; FOREIGN INDIVIDUAL

25  SELF-INSURERS.--

26         (a)  The Department of Revenue or the association may

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

28  ancillary receiver, and directing the receiver to conserve the

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

30  if such individual self-insurer is insolvent.  Florida

31  Self-Insurers Guaranty Association, Incorporated, may petition

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

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

  3  such order.

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

  5  self-insurer shall require the receiver forthwith to take

  6  possession of the property of the receiver within the state

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

  8  court.

  9         Section 5.  Paragraph (b) of subsection (6) of section

10  440.51, Florida Statutes, is repealed.

11         Section 6.  Section 440.515, Florida Statutes, is

12  amended to read:

13         440.515  Reports from self-insurers;

14  confidentiality.--The Department of Insurance shall maintain

15  the reports filed in accordance with s. 440.51(6)(b) as

16  confidential and exempt from the provisions of s. 119.07(1),

17  and such reports shall be released only for bona fide research

18  or educational purposes or after receipt of consent from the

19  employer.

20         Section 7.  This act shall take effect October 1, 2002.

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

  2                          HOUSE SUMMARY

  3
      Revises provisions governing self-insurers and the
  4    Florida Self-Insurers Guaranty Association, Incorporated.
      Transfers operation of workers' compensation provisions,
  5    requiring the securing of payment of compensation by
      employers, from the Division of Workers' Compensation of
  6    the Department of Labor and Employment Security to the
      association and the Department of Revenue. Revises
  7    provisions governing the association's creation, board of
      directors, powers and duties, insolvency fund, and plan
  8    of operation. Transfers the powers and duties of the
      Department of Labor and Employment Security relating to
  9    the association to the Department of Revenue. Requires
      the Department of Revenue to oversee certain operations
10    of the association. Authorizes the association or the
      Department of Revenue to institute proceedings against a
11    self-insurer for delinquency, liquidation, and
      conservation of assets. See bill for details.
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