Senate Bill sb0398

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    Florida Senate - 2002                                   SB 398

    By Senator Latvala





    19-249C-02

  1                      A bill to be entitled

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

  3         440.38, F.S.; transferring operation of

  4         provisions requiring the securing of payment of

  5         compensation by employers from the Division of

  6         Workers' Compensation of the Department of

  7         Labor and Employment Security to the Florida

  8         Self-Insurer's Guaranty Association,

  9         Incorporated, and the Department of Revenue;

10         revising and clarifying requirements and

11         procedures; providing powers and duties of the

12         association and the departments; providing for

13         allocation or payment of state funds to the

14         association for certain purposes; providing

15         rulemaking authority; amending s. 440.385,

16         F.S.; revising and clarifying provisions

17         relating to the association's creation, board

18         of directors, powers and duties, insolvency

19         fund, and plan of operation; providing

20         additional powers of the association;

21         transferring the powers and duties of the

22         Department of Labor and Employment Security

23         relating to the association to the Department

24         of Revenue and revising such powers and duties;

25         providing additional powers and duties of the

26         Department of Revenue; providing for oversight

27         of the association by the department; deleting

28         certain provisions relating to detection and

29         prevention of employer insolvencies; amending

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

31         association with the Department of Revenue

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  1         relating to proceedings for delinquency,

  2         liquidation, and conservation of assets;

  3         amending s. 440.24, F.S.; providing for the

  4         sale of securities on deposit to satisfy a

  5         compensation order; amending s. 440.51, F.S.;

  6         eliminating provisions authorizing the

  7         Department of Insurance to require that

  8         self-insurers make certain reports; eliminating

  9         provisions authorizing certain audits;

10         providing an effective date.

11

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

13

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

15  440.38, Florida Statutes, are amended to read:

16         440.38  Security for compensation; insurance carriers

17  and self-insurers.--

18         (1)  Every employer shall secure the payment of

19  compensation under this chapter:

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

21  such compensation with any stock company or mutual company or

22  association or exchange, authorized to do business in the

23  state;

24         (b)  By furnishing satisfactory proof to the Florida

25  Self-Insurers Guaranty Association, Incorporated, created in

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

27  assure timely payment of all current and future claims

28  division of its financial ability to pay such compensation

29  individually and on behalf of its subsidiary and affiliated

30  companies with employees in this state and receiving an

31  authorization from the Department of Revenue division to pay

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  1  such compensation directly. The association shall review the

  2  financial strength of applicants for membership, current

  3  members, and former members and make recommendations to the

  4  Department of Revenue regarding their qualifications to

  5  self-insure in accordance with this section and ss. 440.385

  6  and 440.386. The department shall act in accordance with the

  7  recommendations unless it finds by clear and convincing

  8  evidence that the recommendations are erroneous. the following

  9  provisions:

10         1.  As a condition of authorization under paragraph

11  (a), the association division may recommend that the

12  Department of Revenue require an employer to deposit with the

13  association division a qualifying security deposit. The

14  association division shall recommend determine the type and

15  amount of the qualifying security deposit and shall prescribe

16  conditions for the qualifying security deposit, which shall

17  include authorization for the association division to call the

18  qualifying security deposit in the case of default to pay

19  compensation awards and related expenses of the association.

20  In addition, the division shall require, As a condition to

21  authorization to self-insure, the employer shall provide proof

22  that the employer has provided for competent personnel with

23  whom to deliver benefits and to provide a safe working

24  environment. Further, The employer division shall also provide

25  evidence of require such employer to carry reinsurance at

26  levels that will ensure the financial strength and actuarial

27  soundness of such employer in accordance with rules adopted

28  promulgated by the Department of Revenue division. The

29  Department of Revenue division may by rule require that, in

30  the event of an individual self-insurer's insolvency, such

31  qualifying security deposits and reinsurance policies are

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  1  payable to the association Florida Self-Insurers Guaranty

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

  3  employer securing compensation in accordance with the

  4  provisions of this paragraph shall be known as a self-insurer

  5  and shall be classed as a carrier of her or his own insurance.

  6  The employer shall, if requested, provide the association an

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

  8  Actuaries providing an opinion of the appropriate present

  9  value of the reserves, using a 4-percent discount rate, for

10  current and future compensation claims. If any member or

11  former member of the association refuses to timely provide

12  such a report, the association may obtain an order from a

13  circuit court requiring the member to produce such a report

14  and ordering any other relief that the court determines is

15  appropriate. The association may recover all reasonable costs

16  and attorney's fees in such proceedings.

17         2.  If the employer fails to maintain the foregoing

18  requirements, the association division shall recommend to the

19  Department of Revenue that it revoke the employer's authority

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

21  association division the certified opinion of an independent

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

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

24  determined and estimated future compensation payments based on

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

26  qualifying security deposit equal to 1.5 times the value so

27  certified. The employer shall thereafter annually provide such

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

29  requirements of subparagraph 1. The qualifying security

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

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

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  1  such opinion or to timely provide a security deposit in an

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

  3  opinion, the association shall provide that information to the

  4  Department of Revenue along with a recommendation, and the

  5  Department of Revenue division shall then revoke such

  6  employer's authorization to self-insure., and such Failure to

  7  comply with this subparagraph constitutes shall be deemed to

  8  constitute an immediate serious danger to the public health,

  9  safety, or welfare sufficient to justify the summary

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

11  pursuant to s. 120.68.

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

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

14  the association division and to the Florida Self-Insurers

15  Guaranty Association, Incorporated, created pursuant to s.

16  440.385 the certified opinion of an independent actuary who is

17  a member of the American Academy Society of Actuaries of the

18  actuarial present value of the determined and estimated future

19  compensation payments of the employer for claims incurred

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

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

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

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

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

25  association division a qualifying security deposit in an

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

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

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

29  provide such opinion or who fails to timely maintain the

30  required security deposit with the association division. The

31  association shall recover a judgment in the amount of the

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  1  actuarial present value of the determined and estimated future

  2  compensation payments of the employer for claims incurred

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

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

  5  the successor of an employer means any person, business

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

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

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

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

10  option of the employer, of:

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

12  as prescribed by the association division, issued by a

13  corporation surety authorized to transact surety business by

14  the Department of Revenue Insurance, and whose policyholders'

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

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

17  respectively.

18         b.  Irrevocable letters of credit in favor of the

19  association division issued by financial institutions located

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

21  the Federal Deposit Insurance Corporation.

22         5.  The qualifying security deposit shall be held by

23  the association division exclusively for the benefit of

24  workers' compensation claimants. The security shall not be

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

26  process whatsoever, except as necessary to guarantee the

27  payment of compensation under this chapter. No surety bond may

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

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

30  association division and the deposit by the self-insuring

31  employer of some other qualifying security deposit of equal

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

  2  provide such written notice or failure to timely provide

  3  qualifying replacement security after such notice shall

  4  constitute grounds for the association division to call or sue

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

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

  7  this section on or before December 31, 2001, or upon the

  8  maturity of existing security deposits, whichever occurs

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

10  the amount of the qualifying security deposit required prior

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

12  net worth required for an employer to qualify for

13  authorization to self-insure;

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

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

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

17  division shall adopt rules to implement this paragraph;

18         (d)  By entering into an interlocal agreement with

19  other local governmental entities to create a local government

20  pool pursuant to s. 624.4622;

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

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

23  Workers' Compensation Law and retain the benefit of the

24  exclusiveness of liability provided in s. 440.11 by obtaining

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

26  and casualty insurance carrier or an authorized life and

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

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

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

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

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

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

  2  at least occupational injuries and illnesses, medical benefits

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

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

  5  440.135, may participate in the 24-hour health insurance

  6  coverage plan referenced in this paragraph. Disputes and

  7  remedies arising under policies issued under this section are

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

  9  the applicable provisions of the Florida Insurance Code and

10  rules adopted under the insurance code and other applicable

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

12  provide for health care by a health maintenance organization

13  or a preferred provider organization. The premium for such

14  24-hour health insurance policy shall be paid entirely by the

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

16  deductibles and coinsurance provisions that require the

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

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

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

20  compensation as to medical benefits, the employer must also

21  obtain an insurance policy or policies that provide indemnity

22  benefits as follows:

23         1.  If indemnity benefits are provided only for

24  occupational-related disability, such benefits must be

25  comparable to those required by this chapter.

26         2.  If indemnity benefits are provided for both

27  occupational-related and nonoccupational-related disability,

28  such benefits must be comparable to those required by this

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

30  average weekly wages.

31

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  1         3.  The employer shall provide for each of its

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

  3         4.  Policies providing coverage under this subsection

  4  must use prescribed and acceptable underwriting standards,

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

  6  If any insurance policy that provides coverage under this

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

  8  the cancellation, termination, or nonrenewal is ineffective

  9  until the self-insured employer or insurance carrier or

10  carriers notify the division and the Department of Insurance

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

12  division has actually received the notification. The division

13  must be notified of replacement coverage under a workers'

14  compensation and employer's liability insurance policy or plan

15  by the employer prior to the effective date of the

16  cancellation, termination, or nonrenewal; or

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

18  self-insurer under an approved individual

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

20  s. 624.46225. The division may adopt rules to administer this

21  subsection.

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

23  rules by which businesses may become qualified to provide

24  underwriting claims-adjusting, loss control, and safety

25  engineering services to self-insurers.

26         (b)  The Department of Revenue division shall adopt

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

28  fulfill the requirements of this chapter. Any self-insurer who

29  fails to file any report as prescribed by the rules adopted by

30  the Department of Revenue division shall be subject to a civil

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

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

  2  company or association or exchange authorized to do insurance

  3  business in the state shall for good cause, upon

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

  5  Department of Insurance.  No suspension or revocation shall

  6  affect the liability of any carrier already incurred.

  7         (b)  The Department of Revenue division shall suspend

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

  9  comply with this section or for good cause, as defined by rule

10  of the department division. No suspension or revocation shall

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

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

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

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

15  audits by correcting errors in employee classification or

16  accepted applications for coverage where it knew employee

17  classifications were incorrect. Such fines shall be levied by

18  the division and deposited into the Workers' Compensation

19  Administration Trust Fund.

20         Section 2.  Section 440.385, Florida Statutes, is

21  amended to read:

22         440.385  Florida Self-Insurers Guaranty Association,

23  Incorporated.--

24         (1)  CREATION OF ASSOCIATION.--

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

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

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

28  Upon incorporation of the association, all individual

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

30  440.38(1)(b), other than individual self-insurers which are

31  public utilities or governmental entities, shall be members of

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  1  the association as a condition of their authority to

  2  individually self-insure in this state.  The association

  3  corporation shall perform its functions under a plan of

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

  5  shall exercise its powers and duties through a board of

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

  7  corporation shall have those powers granted or permitted

  8  associations corporations not for profit, as provided in

  9  chapter 617. The activities of the association shall be

10  subject to review by the Department of Revenue. The Department

11  of Revenue shall have oversight responsibility as set forth in

12  this section. The association is specifically authorized to

13  enter into agreements with the State of Florida to perform

14  specified services.

15         (b)  A member may voluntarily withdraw from the

16  association when the member voluntarily terminates the

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

18  date of such termination.  However, the withdrawing member

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

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

21  charged pursuant thereto.  The withdrawing member who is a

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

23  provide to the association division upon withdrawal, and at

24  12-month intervals thereafter, satisfactory proof, including,

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

26  potential claims certified by a member of the American Academy

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

28  440.38(1)(b)1. in relation to claims incurred while the

29  withdrawing member exercised the privilege of self-insurance.

30  Such reporting shall continue until the withdrawing member

31  demonstrates to satisfies the association division that there

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  1  is no remaining value to claims incurred while the withdrawing

  2  member was self-insured. If a withdrawing member fails or

  3  refuses to timely provide an actuarial report to the

  4  association, the association may obtain an order from a

  5  circuit court requiring the member to produce such a report

  6  and ordering any other relief that the court determines

  7  appropriate. The association is entitled to recover all

  8  reasonable costs and attorney's fees expended in such

  9  proceedings. If during this reporting period the withdrawing

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

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

12  1991, shall thereupon, and at 6-month intervals thereafter,

13  provide to the division and the association the certified

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

15  American Academy Society of Actuaries of the actuarial present

16  value of the determined and estimated future compensation

17  payments of the member for claims incurred while the member

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

19  each such opinion, the withdrawing member shall deposit with

20  the association division security in an amount equal to the

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

22  acceptable for qualifying security deposits under s.

23  440.38(1)(b).  The withdrawing member shall continue to

24  provide such opinions and to provide such security until such

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

26  The association has a cause of action against a withdrawing

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

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

29  maintain the required deposit with the association division.

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

31  amount of the actuarial present value of the determined and

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  1  estimated future compensation payments of the withdrawing

  2  member for claims incurred during the time that the

  3  withdrawing member exercised the privilege of self-insurance,

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

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

  6  action to compel production of any actuarial report required

  7  by this statute. For purposes of this section, the successor

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

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

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

11  majority of the shares of the withdrawing member.

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

13  association shall consist of nine persons and shall be

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

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

16  With respect to initial appointments, the Secretary of Labor

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

18  appoint to the board persons who are experienced with

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

20  individual self-insurers in this state required to become

21  members of the association pursuant to the provisions of

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

23  person so recommended does not have the necessary

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

25  board has been appointed, the secretary shall request the

26  directors thus far approved and appointed to recommend another

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

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

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

30  by the Department of Revenue Secretary of Labor and Employment

31  Security upon recommendation of members of the association.

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

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

  3  than initial appointments are made. Each director shall be

  4  reimbursed for expenses incurred in carrying out the duties of

  5  the board on behalf of the association.

  6         (3)  POWERS AND DUTIES.--

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

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

  9  for payment of compensation under this chapter to insolvent

10  members' employees resulting from incidents and injuries

11  existing prior to the member becoming an insolvent member and

12  from incidents and injuries occurring within 30 days after the

13  member has become an insolvent member, provided the incidents

14  giving rise to claims for compensation under this chapter

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

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

17  plan of operation, and provided the employee makes timely

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

19  court of competent jurisdiction over the delinquency or

20  bankruptcy proceedings of the insolvent member. Such

21  obligation includes only that amount due the injured worker or

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

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

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

25  association shall be deemed the insolvent employer for

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

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

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

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

30  the association be liable for any penalties or interest.

31         (b)  The association may:

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

  2  handle claims and perform other duties of the association.

  3         2.  Borrow funds necessary to effect the purposes of

  4  this section in accord with the plan of operation.

  5         3.  Sue or be sued.

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

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

  8         5.  Purchase such reinsurance as is determined

  9  necessary pursuant to the plan of operation.

10         6.  Review all applicants for membership in the

11  association to determine whether the applicant is qualified

12  for membership under the law.  The association shall recommend

13  to the Department of Revenue that the application be accepted

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

15  440.38(1)(b).  The Department of Revenue shall approve or

16  disapprove the application as provided in paragraph (6)(a).

17  Prior to a final determination by the Division of Workers'

18  Compensation as to whether or not to approve any applicant for

19  membership in the association, the association may issue

20  opinions to the division concerning any applicant, which

21  opinions shall be considered by the division prior to any

22  final determination.

23         7.  Collect and review financial information from

24  employers and make recommendations to the Department of

25  Revenue regarding the appropriate security deposit and

26  reinsurance amounts necessary for an employer to demonstrate

27  that it has the financial strength necessary to assure the

28  timely payment of all current and future claims. The

29  association may audit and examine an employer to verify the

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

31  association determines that a current or former self-insured

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  1  employer does not have the financial strength necessary to

  2  assure the timely payment of all current and estimated future

  3  claims, the association may recommend to the Department of

  4  Revenue that the department:

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

  6         b.  Require the employer to provide a certified opinion

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

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

  9  employer's estimated current and future compensation payments,

10  using a 4-percent discount rate.

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

12  deposit in an amount determined by the association to be

13  necessary to assure payment of compensation claims.  The

14  Department of Revenue shall act on such recommendations as

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

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

17  employer, who fails to provide an additional security deposit

18  required by the Department of Revenue.  The association shall

19  recover a judgment in the amount of the requested additional

20  security deposit together with reasonable attorney's fees.

21  For the purposes of this section, the successor of an employer

22  is any person, business entity, or group of persons or

23  business entities which holds or acquires legal or beneficial

24  title to the majority of the assets or the majority of the

25  shares of the employer.

26         8.7.  Charge fees to any member of the association to

27  cover the actual costs of examining the financial and safety

28  conditions of that member.

29         9.8.  Charge an applicant for membership in the

30  association a fee sufficient to cover the actual costs of

31  examining the financial condition of the applicant.

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  1         10.  Implement any procedures necessary to ensure

  2  compliance with regulatory actions taken by the Department of

  3  Revenue.

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

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

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

  7  the Department of Revenue Labor and Employment Security, upon

  8  certification of the board of directors, shall levy

  9  assessments based on the annual written normal premium each

10  employer would have paid had the employer not been

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

12  percentage of the figure applicable to all individual

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

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

15  annual written normal premium during the calendar year

16  preceding the date of the assessment. Assessments shall be

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

18  manner specified by the approved plan.  Each employer so

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

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

21  levy assessments against any newly admitted member of the

22  association so that the basis of contribution of any newly

23  admitted member is the same as previously admitted members,

24  provision for which shall be contained in the plan of

25  operation.

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

27  assessments, together with funds previously raised, are not

28  sufficient to make all the payments or reimbursements then

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

30  portion shall be paid as soon thereafter as sufficient

31  additional funds become available.

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

  2  Compensation Administration Trust Fund to contract with the

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

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

  5  association or any of its accounts for payment of covered

  6  claims or related expenses except those state funds accruing

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

  8  an insolvent employer. The Department of Revenue may not levy

  9  any assessment on the Florida Self-Insurance Guaranty

10  Association.

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

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

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

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

15  association.

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

17  meeting the obligations of insolvent members incurred while

18  members of the association and after the exhaustion of any

19  security deposit bond, as required under this chapter.

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

21  policy is payable to the Florida Self-Insurers Guaranty

22  Association, the association shall commence to provide

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

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

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

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

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

28  to audit the financial soundness of the Insolvency Fund

29  annually.

30         (c)  The Department of Revenue may offer certain

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

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  1  of the association for purposes of assuring the ongoing

  2  financial soundness of the Insolvency Fund and its ability to

  3  meet the obligations of this section.

  4         (d)  The department actuary may make certain

  5  recommendations to improve the orderly payment of claims.

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

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

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

  9  2002, and approved by the Department of Labor and Employment

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

11  the plan shall not become effective until approved by the

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

13  directors shall submit to the Department of Labor and

14  Employment Security a proposed plan of operation for the

15  administration of the association and the Insolvency Fund.

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

17  provide the association and the board of directors with the

18  authority and responsibility to establish the necessary

19  programs and to take the necessary actions to protect against

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

21  the plan shall provide that the members of the association

22  shall be responsible for maintaining an adequate Insolvency

23  Fund to meet the obligations of insolvent members provided for

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

25  contract and employ those persons with the necessary expertise

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

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

28  proposed plan of operation for the administration of the

29  association. The Department of Revenue shall approve the plan

30  by order, consistent with this section. The Department of

31  Revenue shall approve any amendments to the plan, consistent

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  1  with this section, which are determined appropriate to carry

  2  out the duties and responsibilities of the association.

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

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

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

  6  15, 1982, or fails to make required amendments to the plan

  7  within 30 days thereafter, the department shall promulgate

  8  such rules as are necessary to effectuate the provisions of

  9  this subsection.  Such rules shall continue in force until

10  modified by the department or superseded by a plan submitted

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

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

13  of operation.

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

15         1.  Establish the procedures whereby all the powers and

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

17  performed.

18         2.  Establish procedures for handling assets of the

19  association.

20         3.  Establish the amount and method of reimbursing

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

22         4.  Establish procedures by which claims may be filed

23  with the association and establish acceptable forms of proof

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

25  liquidator of the insolvent employer shall be deemed notice to

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

27  be submitted periodically to the association or similar

28  organization in another state by the receiver or liquidator.

29         5.  Establish regular places and times for meetings of

30  the board of directors.

31

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

  2  financial transactions of the association and its agents and

  3  the board of directors.

  4         7.  Provide that any member employer aggrieved by any

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

  6  Department of Revenue within 30 days after the action or

  7  decision.

  8         8.  Establish the procedures whereby recommendations of

  9  candidates for the board of directors shall be submitted to

10  the Department of Revenue.

11         9.  Contain additional provisions necessary or proper

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

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

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

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

16  a corporation, association, or other organization which

17  performs or will perform functions similar to those of this

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

19  corporation, association, or organization shall be reimbursed

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

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

22  A delegation of powers or duties under this subsection shall

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

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

25  to a corporation, association, or organization which extends

26  protection which is not substantially less favorable and

27  effective than the protection provided by this section.

28         (6)  POWERS AND DUTIES OF DEPARTMENT OF REVENUE LABOR

29  AND EMPLOYMENT SECURITY.--

30         (a)  The Department of Revenue shall:

31

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  1         (a)  Review recommendations of the association

  2  concerning whether current or former self-insured employers or

  3  members of the association have the financial strength

  4  necessary to ensure the timely payment of all current and

  5  estimated future claims.  If the association determines an

  6  employer does not have the financial strength necessary to

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

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

  9  of Revenue shall take such action as necessary to order the

10  employer to comply with the recommendation, unless the

11  department finds by clear and convincing evidence that the

12  recommendation is erroneous.

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

14  may include, but are not limited to:

15         1.  Processing applications for self-insurance.

16         2.  Collecting and reviewing financial statements and

17  loss reserve information from individual self-insurers.

18         3.  Collecting and maintaining files for original

19  security deposit documents and reinsurance policies from

20  individual self-insurers and, if necessary, perfecting

21  security interests in security deposits.

22         4.  Processing compliance documentation for individual

23  self-insurers and providing the same to the division.

24         5.  Collecting all data necessary to calculate annual

25  premium for all individual self-insurers, including individual

26  self-insurers that are public utilities or governmental

27  entities, and providing such calculated annual premium to the

28  division for assessment purposes.

29         6.  Inspecting and auditing annually, if necessary, the

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

31  including individual self-insurers that are public utilities

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

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

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

  4  compensation made by such individual self-insurer during each

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

  6  division. For the purposes of this section, the payroll

  7  records of each individual self-insurer shall be open to

  8  inspection and audit by the association and the Department of

  9  Revenue, or their authorized representatives, during regular

10  business hours.

11         7.  Processing applications and making recommendations

12  with respect to the qualification of a business to be approved

13  to provide, or to continue to provide, services to individual

14  self-insurers in the areas of underwriting, claims adjusting,

15  loss control, and safety engineering.

16         8.  Providing legal representation to implement the

17  administration and audit of individual self-insurers and

18  making recommendations regarding prosecution of any

19  administrative or legal proceedings necessitated by the

20  regulation of the individual self-insurers by the Department

21  of Revenue.

22         (c)  Contract with an attorney or attorneys recommended

23  by the association for representation of the Department of

24  Revenue in any administrative or legal proceedings

25  necessitated by the recommended regulation of the individual

26  self-insurers.

27         1.  Notify the association of the existence of an

28  insolvent employer not later than 3 days after it receives

29  notice of the determination of insolvency.

30

31

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

  2  association with a statement of the annual normal premiums of

  3  each member employer.

  4         (b)  The department may:

  5         (d)1.  Direct the association to require from each

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

  7  such regulations as the Department of Revenue prescribes,

  8  reports in respect to wages paid, the amount of premiums such

  9  individual self-insurer would have to pay if insured, and all

10  payments of compensation made by such individual self-insurer

11  during each prior period and determine the amounts paid by

12  each individual self-insurer and the amounts paid by all

13  individual self-insurers during such period. For the purposes

14  of this section, the payroll records of each individual

15  self-insurer shall be open to annual inspection and audit by

16  the association and the Department of Revenue, or their

17  authorized representative, during regular business hours, and

18  if any audit of such records of an individual self-insurer

19  discloses a deficiency in the amount reported to the

20  association or in the amounts paid to the division by an

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

22  Compensation Administration Trust Fund, the Department of

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

24  against the individual self-insurer.

25         (e)  Require that the association notify the member

26  employers and any other interested parties of the

27  determination of insolvency and of their rights under this

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

29  address thereof when available; but, if sufficient information

30  for notification by mail is not available, notice by

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  1  publication in a newspaper of general circulation shall be

  2  sufficient.

  3         (f)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 of Revenue may levy a

  7  fine on any member employer failing to pay an assessment when

  8  due.  Such fine shall not exceed 5 percent of the unpaid

  9  assessment per month, except that no fine shall be less than

10  $100 per month.

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

12  if the Department of Revenue finds that claims are being

13  handled unsatisfactorily.

14         (7)  EFFECT OF PAID CLAIMS.--

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

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

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

18  Every claimant seeking the protection of this section shall

19  cooperate with the association to the same extent as such

20  person would have been required to cooperate with the

21  insolvent member.  The association shall have no cause of

22  action against the employee of the insolvent member for any

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

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

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

26  insolvent member operating on a plan with assessment

27  liability, payments of claims by the association shall not

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

29  receiver, liquidator, or statutory successor for unpaid

30  assessments.

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

  2  of an insolvent member shall be bound by settlements of

  3  covered claims by the association or a similar organization in

  4  another state.  The court having jurisdiction shall grant such

  5  claims priority against the assets of the insolvent member

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

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

  8  or similar organization in handling claims shall be accorded

  9  the same priority as the expenses of the liquidator.

10         (c)  The association shall file periodically with the

11  receiver or liquidator of the insolvent member statements of

12  the covered claims paid by the association and estimates of

13  anticipated claims on the association, which shall preserve

14  the rights of the association against the assets of the

15  insolvent member.

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

17  in the detection and prevention of employer insolvencies:

18         (a)  upon determination by majority vote that any

19  member employer may be insolvent or in a financial condition

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

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

22  of Revenue Labor and Employment Security of any information

23  indicating such condition.

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

25  request that the department determine the condition of any

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

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

28  30 days of the receipt of such request or, for good cause

29  shown, within a reasonable time thereafter, the department

30  shall make such determination and shall forthwith advise the

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

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

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

  3  determination to the public.

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

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

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

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

  8  association.

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

10  make reports and recommendations to the department upon any

11  matter which is germane to the solvency, liquidation,

12  rehabilitation, or conservation of any member employer. Such

13  reports and recommendations shall not be considered public

14  documents.

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

16  make recommendations to the department for the detection and

17  prevention of employer insolvencies.

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

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

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

21  cause of such insolvency, based on the information available

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

23  department.

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

25  shall be subject to examination and regulation by the

26  Department of Revenue Labor and Employment Security.  No later

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

28  submit an audited a financial statement report for the

29  preceding calendar year in a form approved by the Department

30  of Revenue.

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

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

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

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

  5  Revenue Labor and Employment Security or its representatives

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

  7  powers and duties under this section.

  8         (11)  STAY OF PROCEEDINGS; REOPENING OF DEFAULT

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

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

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

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

13  additional period from the date the employer becomes an

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

15  competent jurisdiction to permit proper defense by the

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

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

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

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

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

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

22  administrator that made such judgment, order, decision,

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

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

25  the stay of proceedings may be shortened or waived.

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

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

28  defined herein, with respect to which settlement is not

29  effected and pursuant to which suit is not instituted against

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

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

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

  2  thenceforth be barred as a claim against the association.

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

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

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

  6  Department of Revenue Insurance for deposit with the Treasurer

  7  to the credit of the General Revenue Fund.  All provisions of

  8  chapter 220 relating to penalties and interest on delinquent

  9  corporate income tax payments apply to payments due under this

10  subsection.

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

12  440.386, Florida Statutes, are amended to read:

13         440.386  Individual self-insurers' insolvency;

14  conservation; liquidation.--

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

16  Department of Revenue or the Florida Self-Insurers Guaranty

17  Association, Incorporated, may commence a delinquency any such

18  proceeding by application to the court for an order directing

19  the individual self-insurer to show cause why the Department

20  of Revenue or association should not have the relief sought

21  prayed for. The Florida Self-Insurers Guaranty Association,

22  Incorporated, may petition the department to commence such

23  proceedings, and upon receipt of such petition, the department

24  shall commence such proceeding.  On the return of such order

25  to show cause, and after a full hearing, the court shall

26  either deny the application or grant the application, together

27  with such other relief as the nature of the case and the

28  interests of the claimants, creditors, stockholders, members,

29  subscribers, or public may require.  The Department of Revenue

30  and the association shall give Florida Self-Insurers Guaranty

31  Association, Incorporated, shall be given reasonable written

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

  2  pertain to an adjudication of insolvency of a member

  3  individual self-insurer.

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

  5  Revenue or the association Insurance may apply to the court

  6  for an order appointing a receiver and directing the receiver

  7  to liquidate the business of a domestic individual

  8  self-insurer if such individual self-insurer is insolvent.

  9  Florida Self-Insurers Guaranty Association, Incorporated, may

10  petition the department to apply to the court for such order.

11  Upon receipt of such petition, the department shall apply to

12  the court for such order.

13         (4)  GROUNDS FOR CONSERVATION; FOREIGN INDIVIDUAL

14  SELF-INSURERS.--

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

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

17  ancillary receiver, and directing the receiver to conserve the

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

19  if such individual self-insurer is insolvent.  Florida

20  Self-Insurers Guaranty Association, Incorporated, may petition

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

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

23  such order.

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

25  self-insurer shall require the receiver forthwith to take

26  possession of the property of the receiver within the state

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

28  court.

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

30  Statutes, is amended to read:

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  1         440.24  Enforcement of compensation orders;

  2  penalties.--

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

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

  5  compensation claims or court within 10 days after such order

  6  becomes final, the Department of Revenue division may suspend

  7  or revoke any authorization previously given to the employer

  8  to be become a self-insurer, and the Florida Self-Insurer's

  9  Guaranty Association division may call or sue upon the surety

10  bond or exercise its rights under the letter of credit sell

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

12  the Florida Self-Insurer's Guaranty Association as a

13  qualifying security deposit division as may be necessary to

14  satisfy the such order.

15         Section 5.  Subsection (6) of section 440.51, Florida

16  Statutes, is amended to read:

17         440.51  Expenses of administration.--

18         (6)(a)  The division may require from each carrier, at

19  such time and in accordance with such regulations as the

20  division may prescribe, reports in respect to all gross earned

21  premiums and of all payments of compensation made by such

22  carrier during each prior period, and may determine the

23  amounts paid by each carrier and the amounts paid by all

24  carriers during such period.

25         (b)  The Department of Insurance may require from each

26  self-insurer, at such time and in accordance with such

27  regulations as the Department of Insurance prescribes, reports

28  in respect to wages paid, the amount of premiums such

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

30  compensation made by such self-insurer during each prior

31  period, and may determine the amounts paid by each

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  1  self-insurer and the amounts paid by all self-insurers during

  2  such period. For the purposes of this section, the payroll

  3  records of each self-insurer shall be open to annual

  4  inspection and audit by the Department of Insurance or its

  5  authorized representative, during regular business hours; and

  6  if any audit of such records of a self-insurer discloses a

  7  deficiency in the amounts reported to the Department of

  8  Insurance or in the amounts paid to the Department of

  9  Insurance by a self-insurer pursuant to this section, the

10  Department of Insurance may assess the cost of such audit

11  against the self-insurer.

12         Section 6.  This act shall take effect October 1, 2002.

13

14            *****************************************

15                          SENATE SUMMARY

16    Revises provisions governing self-insurers and the
      Florida Self-Insurers Guaranty Association, Incorporated.
17    Transfers operation of provisions requiring the securing
      of payment of compensation by employers from the Division
18    of Workers' Compensation of the Department of Labor and
      Employment Security to the association and the Department
19    of Revenue. Revises provisions governing the
      association's creation, board of directors, powers and
20    duties, insolvency fund, and plan of operation. Transfers
      the powers and duties of the Department of Labor and
21    Employment Security relating to the association to the
      Department of Revenue. Requires that the Department of
22    Revenue oversee certain operations of the association.
      Authorizes the association or the Department of Revenue
23    to institute proceedings against a self-insurer for
      delinquency, liquidation, and conservation of assets.
24    (See bill for details.)

25

26

27

28

29

30

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