Senate Bill sb0398c1

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    Florida Senate - 2002                            CS for SB 398

    By the Committee on Banking and Insurance; and Senator Latvala





    311-1898-02

  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 Insurance;

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 Insurance and revising such powers and

25         duties; providing additional powers and duties

26         of the Department of Insurance; providing for

27         oversight of the association by the department;

28         deleting certain provisions relating to

29         detection and prevention of employer

30         insolvencies; amending s. 440.386, F.S.;

31         providing parity for the association with the

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  1         Department of Insurance relating to proceedings

  2         for delinquency, liquidation, and conservation

  3         of assets; amending s. 440.24, F.S.; providing

  4         for the sale of securities on deposit to

  5         satisfy a compensation order; amending s.

  6         440.51, F.S.; eliminating provisions

  7         authorizing the Department of Insurance to

  8         require that self-insurers make certain

  9         reports; eliminating provisions authorizing

10         certain audits; transferring the powers,

11         duties, functions, rules, records, and property

12         relating to the regulation of individual,

13         self-insured employers by the Department of

14         Labor and Employment Security to the Department

15         of Insurance; providing an appropriation;

16         eliminating specified positions; providing an

17         effective date.

18

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

20

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

22  440.38, Florida Statutes, are amended to read:

23         440.38  Security for compensation; insurance carriers

24  and self-insurers.--

25         (1)  Every employer shall secure the payment of

26  compensation under this chapter:

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

28  such compensation with any stock company or mutual company or

29  association or exchange, authorized to do business in the

30  state;

31

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    Florida Senate - 2002                            CS for SB 398
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  1         (b)  By furnishing satisfactory proof to the Florida

  2  Self-Insurers Guaranty Association, Incorporated, created in

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

  4  assure timely payment of all current and future claims

  5  division of its financial ability to pay such compensation

  6  individually and on behalf of its subsidiary and affiliated

  7  companies with employees in this state and receiving an

  8  authorization from the Department of Insurance division to pay

  9  such compensation directly. The association shall review the

10  financial strength of applicants for membership, current

11  members, and former members and make recommendations to the

12  Department of Insurance regarding their qualifications to

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

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

15  recommendations unless it finds by clear and convincing

16  evidence that the recommendations are erroneous. the following

17  provisions:

18         1.  As a condition of authorization under paragraph

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

20  Department of Insurance require an employer to deposit with

21  the association division a qualifying security deposit. The

22  association division shall recommend determine the type and

23  amount of the qualifying security deposit and shall prescribe

24  conditions for the qualifying security deposit, which shall

25  include authorization for the association division to call the

26  qualifying security deposit in the case of default to pay

27  compensation awards and related expenses of the association.

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

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

30  that the employer has provided for competent personnel with

31  whom to deliver benefits and to provide a safe working

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  1  environment. Further, The employer division shall also provide

  2  evidence of require such employer to carry reinsurance at

  3  levels that will ensure the financial strength and actuarial

  4  soundness of such employer in accordance with rules adopted

  5  promulgated by the Department of Insurance division. The

  6  Department of Insurance division may by rule require that, in

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

  8  qualifying security deposits and reinsurance policies are

  9  payable to the association Florida Self-Insurers Guaranty

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

11  employer securing compensation in accordance with the

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

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

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

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

16  Actuaries providing an opinion of the appropriate present

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

18  current and future compensation claims. If any member or

19  former member of the association refuses to timely provide

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

21  circuit court requiring the member to produce such a report

22  and ordering any other relief that the court determines is

23  appropriate. The association may recover all reasonable costs

24  and attorney's fees in such proceedings.

25         2.  If the employer fails to maintain the foregoing

26  requirements, the association division shall recommend to the

27  Department of Insurance that it revoke the employer's

28  authority to self-insure, unless the employer provides to the

29  association division the certified opinion of an independent

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

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

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  1  determined and estimated future compensation payments based on

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

  3  qualifying security deposit equal to 1.5 times the value so

  4  certified. The employer shall thereafter annually provide such

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

  6  requirements of subparagraph 1. The qualifying security

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

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

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

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

11  opinion, the association shall provide that information to the

12  Department of Insurance along with a recommendation, and the

13  Department of Insurance division shall then revoke such

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

15  comply with this subparagraph constitutes shall be deemed to

16  constitute an immediate serious danger to the public health,

17  safety, or welfare sufficient to justify the summary

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

19  pursuant to s. 120.68.

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

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

22  the association division and to the Florida Self-Insurers

23  Guaranty Association, Incorporated, created pursuant to s.

24  440.385 the certified opinion of an independent actuary who is

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

26  actuarial present value of the determined and estimated future

27  compensation payments of the employer for claims incurred

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

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

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

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

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

  2  association division a qualifying security deposit in an

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

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

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

  6  provide such opinion or who fails to timely maintain the

  7  required security deposit with the association division. The

  8  association shall recover a judgment in the amount of the

  9  actuarial present value of the determined and estimated future

10  compensation payments of the employer for claims incurred

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

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

13  the successor of an employer means any person, business

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

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

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

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

18  option of the employer, of:

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

20  as prescribed by the association division, issued by a

21  corporation surety authorized to transact surety business by

22  the Department of Insurance, and whose policyholders' and

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

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

25  respectively.

26         b.  Irrevocable letters of credit in favor of the

27  association division issued by financial institutions located

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

29  the Federal Deposit Insurance Corporation.

30         5.  The qualifying security deposit shall be held by

31  the association division exclusively for the benefit of

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  1  workers' compensation claimants. The security shall not be

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

  3  process whatsoever, except as necessary to guarantee the

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

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

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

  7  association division and the deposit by the self-insuring

  8  employer of some other qualifying security deposit of equal

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

10  provide such written notice or failure to timely provide

11  qualifying replacement security after such notice shall

12  constitute grounds for the association division to call or sue

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

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

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

16  maturity of existing security deposits, whichever occurs

17  later. The Department of Insurance division may specify by

18  rule the amount of the qualifying security deposit required

19  prior to authorizing an employer to self-insure and the amount

20  of net worth required for an employer to qualify for

21  authorization to self-insure;

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

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

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

25  division shall adopt rules to implement this paragraph;

26         (d)  By entering into an interlocal agreement with

27  other local governmental entities to create a local government

28  pool pursuant to s. 624.4622;

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

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

31  Workers' Compensation Law and retain the benefit of the

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  1  exclusiveness of liability provided in s. 440.11 by obtaining

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

  3  and casualty insurance carrier or an authorized life and

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

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

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

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

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

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

10  at least occupational injuries and illnesses, medical benefits

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

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

13  440.135, may participate in the 24-hour health insurance

14  coverage plan referenced in this paragraph. Disputes and

15  remedies arising under policies issued under this section are

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

17  the applicable provisions of the Florida Insurance Code and

18  rules adopted under the insurance code and other applicable

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

20  provide for health care by a health maintenance organization

21  or a preferred provider organization. The premium for such

22  24-hour health insurance policy shall be paid entirely by the

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

24  deductibles and coinsurance provisions that require the

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

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

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

28  compensation as to medical benefits, the employer must also

29  obtain an insurance policy or policies that provide indemnity

30  benefits as follows:

31

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  1         1.  If indemnity benefits are provided only for

  2  occupational-related disability, such benefits must be

  3  comparable to those required by this chapter.

  4         2.  If indemnity benefits are provided for both

  5  occupational-related and nonoccupational-related disability,

  6  such benefits must be comparable to those required by this

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

  8  average weekly wages.

  9         3.  The employer shall provide for each of its

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

11         4.  Policies providing coverage under this subsection

12  must use prescribed and acceptable underwriting standards,

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

14  If any insurance policy that provides coverage under this

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

16  the cancellation, termination, or nonrenewal is ineffective

17  until the self-insured employer or insurance carrier or

18  carriers notify the division and the Department of Insurance

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

20  division has actually received the notification. The division

21  must be notified of replacement coverage under a workers'

22  compensation and employer's liability insurance policy or plan

23  by the employer prior to the effective date of the

24  cancellation, termination, or nonrenewal; or

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

26  self-insurer under an approved individual

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

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

29  subsection.

30         (2)(a)  The Department of Insurance division shall

31  adopt rules by which businesses may become qualified to

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  1  provide underwriting claims-adjusting, loss control, and

  2  safety engineering services to self-insurers.

  3         (b)  The Department of Insurance division shall adopt

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

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

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

  7  the Department of Insurance division shall be subject to a

  8  civil penalty not to exceed $100 for each such failure.

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

10  company or association or exchange authorized to do insurance

11  business in the state shall for good cause, upon

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

13  Department of Insurance.  No suspension or revocation shall

14  affect the liability of any carrier already incurred.

15         (b)  The Department of Insurance division shall suspend

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

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

18  of the department division. No suspension or revocation shall

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

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

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

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

23  audits by correcting errors in employee classification or

24  accepted applications for coverage where it knew employee

25  classifications were incorrect. Such fines shall be levied by

26  the division and deposited into the Workers' Compensation

27  Administration Trust Fund.

28         Section 2.  Section 440.385, Florida Statutes, is

29  amended to read:

30         440.385  Florida Self-Insurers Guaranty Association,

31  Incorporated.--

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  1         (1)  CREATION OF ASSOCIATION.--

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

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

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

  5  Upon incorporation of the association, all individual

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

  7  440.38(1)(b), other than individual self-insurers which are

  8  public utilities or governmental entities, shall be members of

  9  the association as a condition of their authority to

10  individually self-insure in this state.  The association

11  corporation shall perform its functions under a plan of

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

13  shall exercise its powers and duties through a board of

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

15  corporation shall have those powers granted or permitted

16  associations corporations not for profit, as provided in

17  chapter 617. The activities of the association shall be

18  subject to review by the Department of Insurance. The

19  Department of Insurance shall have oversight responsibility as

20  set forth in this section. The association is specifically

21  authorized to enter into agreements with the State of Florida

22  to perform specified services.

23         (b)  A member may voluntarily withdraw from the

24  association when the member voluntarily terminates the

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

26  date of such termination.  However, the withdrawing member

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

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

29  charged pursuant thereto.  The withdrawing member who is a

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

31  provide to the association division upon withdrawal, and at

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  1  12-month intervals thereafter, satisfactory proof, including,

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

  3  potential claims certified by a member of the American Academy

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

  5  440.38(1)(b)1. in relation to claims incurred while the

  6  withdrawing member exercised the privilege of self-insurance.

  7  Such reporting shall continue until the withdrawing member

  8  demonstrates to satisfies the association division that there

  9  is no remaining value to claims incurred while the withdrawing

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

11  refuses to timely provide an actuarial report to the

12  association, 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

15  appropriate. The association is entitled to recover all

16  reasonable costs and attorney's fees expended in such

17  proceedings. If during this reporting period the withdrawing

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

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

20  1991, shall thereupon, and at 6-month intervals thereafter,

21  provide to the division and the association the certified

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

23  American Academy Society of Actuaries of the actuarial present

24  value of the determined and estimated future compensation

25  payments of the member for claims incurred while the member

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

27  each such opinion, the withdrawing member shall deposit with

28  the association division security in an amount equal to the

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

30  acceptable for qualifying security deposits under s.

31  440.38(1)(b).  The withdrawing member shall continue to

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  1  provide such opinions and to provide such security until such

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

  3  The association has a cause of action against a withdrawing

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

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

  6  maintain the required deposit with the association division.

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

  8  amount of the actuarial present value of the determined and

  9  estimated future compensation payments of the withdrawing

10  member for claims incurred during the time that the

11  withdrawing member exercised the privilege of self-insurance,

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

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

14  action to compel production of any actuarial report required

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

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

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

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

19  majority of the shares of the withdrawing member.

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

21  association shall consist of nine persons and shall be

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

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

24  With respect to initial appointments, the Secretary of Labor

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

26  appoint to the board persons who are experienced with

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

28  individual self-insurers in this state required to become

29  members of the association pursuant to the provisions of

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

31  person so recommended does not have the necessary

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

  2  board has been appointed, the secretary shall request the

  3  directors thus far approved and appointed to recommend another

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

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

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

  7  by the Department of Insurance Secretary of Labor and

  8  Employment Security upon recommendation of members of the

  9  association.  Any vacancy on the board shall be filled for the

10  remaining period of the term in the same manner as

11  appointments other than initial appointments are made. Each

12  director shall be reimbursed for expenses incurred in carrying

13  out the duties of the board on behalf of the association.

14         (3)  POWERS AND DUTIES.--

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

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

17  for payment of compensation under this chapter to insolvent

18  members' employees resulting from incidents and injuries

19  existing prior to the member becoming an insolvent member and

20  from incidents and injuries occurring within 30 days after the

21  member has become an insolvent member, provided the incidents

22  giving rise to claims for compensation under this chapter

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

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

25  plan of operation, and provided the employee makes timely

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

27  court of competent jurisdiction over the delinquency or

28  bankruptcy proceedings of the insolvent member. Such

29  obligation includes only that amount due the injured worker or

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

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

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

  2  association shall be deemed the insolvent employer for

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

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

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

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

  7  the association be liable for any penalties or interest.

  8         (b)  The association may:

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

10  handle claims and perform other duties of the association.

11         2.  Borrow funds necessary to effect the purposes of

12  this section in accord with the plan of operation.

13         3.  Sue or be sued.

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

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

16         5.  Purchase such reinsurance as is determined

17  necessary pursuant to the plan of operation.

18         6.  Review all applicants for membership in the

19  association to determine whether the applicant is qualified

20  for membership under the law.  The association shall recommend

21  to the Department of Insurance that the application be

22  accepted or rejected based on the criteria set forth in s.

23  440.38(1)(b).  The Department of Insurance shall approve or

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

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

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

27  membership in the association, the association may issue

28  opinions to the division concerning any applicant, which

29  opinions shall be considered by the division prior to any

30  final determination.

31

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  1         7.  Collect and review financial information from

  2  employers and make recommendations to the Department of

  3  Insurance regarding the appropriate security deposit and

  4  reinsurance amounts necessary for an employer to demonstrate

  5  that it has the financial strength necessary to assure the

  6  timely payment of all current and future claims. The

  7  association may audit and examine an employer to verify the

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

  9  association determines that a current or former self-insured

10  employer does not have the financial strength necessary to

11  assure the timely payment of all current and estimated future

12  claims, the association may recommend to the Department of

13  Insurance that the department:

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

15         b.  Require the employer to provide a certified opinion

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

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

18  employer's estimated current and future compensation payments,

19  using a 4-percent discount rate.

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

21  deposit in an amount determined by the association to be

22  necessary to assure payment of compensation claims.  The

23  Department of Insurance shall act on such recommendations as

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

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

26  employer, who fails to provide an additional security deposit

27  required by the Department of Insurance.  The association

28  shall recover a judgment in the amount of the requested

29  additional security deposit together with reasonable

30  attorney's fees.  For the purposes of this section, the

31  successor of an employer is any person, business entity, or

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  1  group of persons or business entities which holds or acquires

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

  3  majority of the shares of the employer.

  4         8.7.  Charge fees to any member of the association to

  5  cover the actual costs of examining the financial and safety

  6  conditions of that member.

  7         9.8.  Charge an applicant for membership in the

  8  association a fee sufficient to cover the actual costs of

  9  examining the financial condition of the applicant.

10         10.  Implement any procedures necessary to ensure

11  compliance with regulatory actions taken by the Department of

12  Insurance.

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

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

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

16  the Department of Insurance Labor and Employment Security,

17  upon certification of the board of directors, shall levy

18  assessments based on the annual written normal premium each

19  employer would have paid had the employer not been

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

21  percentage of the figure applicable to all individual

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

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

24  annual written normal premium during the calendar year

25  preceding the date of the assessment. Assessments shall be

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

27  manner specified by the approved plan.  Each employer so

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

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

30  levy assessments against any newly admitted member of the

31  association so that the basis of contribution of any newly

                                  17

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  1  admitted member is the same as previously admitted members,

  2  provision for which shall be contained in the plan of

  3  operation.

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

  5  assessments, together with funds previously raised, are not

  6  sufficient to make all the payments or reimbursements then

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

  8  portion shall be paid as soon thereafter as sufficient

  9  additional funds become available.

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

11  Compensation Administration Trust Fund to contract with the

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

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

14  association or any of its accounts for payment of covered

15  claims or related expenses except those state funds accruing

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

17  an insolvent employer. The Department of Insurance may not

18  levy any assessment on the Florida Self-Insurance Guaranty

19  Association.

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

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

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

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

24  association.

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

26  meeting the obligations of insolvent members incurred while

27  members of the association and after the exhaustion of any

28  security deposit bond, as required under this chapter.

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

30  policy is payable to the Florida Self-Insurers Guaranty

31  Association, the association shall commence to provide

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

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

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

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

  5         (b)  The Department of Insurance shall have the

  6  authority to audit the financial soundness of the Insolvency

  7  Fund annually.

  8         (c)  The Department of Insurance may offer certain

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

10  of the association for purposes of assuring the ongoing

11  financial soundness of the Insolvency Fund and its ability to

12  meet the obligations of this section.

13         (d)  The department actuary may make certain

14  recommendations to improve the orderly payment of claims.

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

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

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

18  2002, and approved by the Department of Labor and Employment

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

20  the plan shall not become effective until approved by the

21  Department of Insurance. By September 15, 1982, the board of

22  directors shall submit to the Department of Labor and

23  Employment Security a proposed plan of operation for the

24  administration of the association and the Insolvency Fund.

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

26  provide the association and the board of directors with the

27  authority and responsibility to establish the necessary

28  programs and to take the necessary actions to protect against

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

30  the plan shall provide that the members of the association

31  shall be responsible for maintaining an adequate Insolvency

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  1  Fund to meet the obligations of insolvent members provided for

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

  3  contract and employ those persons with the necessary expertise

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

  5  board of directors shall submit to the Department of Insurance

  6  a proposed plan of operation for the administration of the

  7  association. The Department of Insurance shall approve the

  8  plan by order, consistent with this section. The Department of

  9  Insurance shall approve any amendments to the plan, consistent

10  with this section, which are determined appropriate to carry

11  out the duties and responsibilities of the association.

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

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

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

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

16  within 30 days thereafter, the department shall promulgate

17  such rules as are necessary to effectuate the provisions of

18  this subsection.  Such rules shall continue in force until

19  modified by the department or superseded by a plan submitted

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

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

22  of operation.

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

24         1.  Establish the procedures whereby all the powers and

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

26  performed.

27         2.  Establish procedures for handling assets of the

28  association.

29         3.  Establish the amount and method of reimbursing

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

31

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  1         4.  Establish procedures by which claims may be filed

  2  with the association and establish acceptable forms of proof

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

  4  liquidator of the insolvent employer shall be deemed notice to

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

  6  be submitted periodically to the association or similar

  7  organization in another state by the receiver or liquidator.

  8         5.  Establish regular places and times for meetings of

  9  the board of directors.

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

11  financial transactions of the association and its agents and

12  the board of directors.

13         7.  Provide that any member employer aggrieved by any

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

15  Department of Insurance within 30 days after the action or

16  decision.

17         8.  Establish the procedures whereby recommendations of

18  candidates for the board of directors shall be submitted to

19  the Department of Insurance.

20         9.  Contain additional provisions necessary or proper

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

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

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

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

25  a corporation, association, or other organization which

26  performs or will perform functions similar to those of this

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

28  corporation, association, or organization shall be reimbursed

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

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

31  A delegation of powers or duties under this subsection shall

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

  2  directors and the Department of Insurance and may be made only

  3  to a corporation, association, or organization which extends

  4  protection which is not substantially less favorable and

  5  effective than the protection provided by this section.

  6         (6)  POWERS AND DUTIES OF DEPARTMENT OF INSURANCE LABOR

  7  AND EMPLOYMENT SECURITY.--

  8         (a)  The Department of Insurance shall:

  9         (a)  Review recommendations of the association

10  concerning whether current or former self-insured employers or

11  members of the association have the financial strength

12  necessary to ensure the timely payment of all current and

13  estimated future claims.  If the association determines an

14  employer does not have the financial strength necessary to

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

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

17  of Insurance shall take such action as necessary to order the

18  employer to comply with the recommendation, unless the

19  department finds by clear and convincing evidence that the

20  recommendation is erroneous.

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

22  may include, but are not limited to:

23         1.  Processing applications for self-insurance.

24         2.  Collecting and reviewing financial statements and

25  loss reserve information from individual self-insurers.

26         3.  Collecting and maintaining files for original

27  security deposit documents and reinsurance policies from

28  individual self-insurers and, if necessary, perfecting

29  security interests in security deposits.

30         4.  Processing compliance documentation for individual

31  self-insurers and providing the same to the department.

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  1         5.  Collecting all data necessary to calculate annual

  2  premium for all individual self-insurers, including individual

  3  self-insurers that are public utilities or governmental

  4  entities, and providing such calculated annual premium to the

  5  division for assessment purposes.

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

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

  8  including individual self-insurers that are public utilities

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

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

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

12  compensation made by such individual self-insurer during each

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

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

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

16  inspection and audit by the association and the Department of

17  Insurance, or their authorized representatives, during regular

18  business hours.

19         7.  Processing applications and making recommendations

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

21  to provide, or to continue to provide, services to individual

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

23  loss control, and safety engineering.

24         8.  Providing legal representation to implement the

25  administration and audit of individual self-insurers and

26  making recommendations regarding prosecution of any

27  administrative or legal proceedings necessitated by the

28  regulation of the individual self-insurers by the Department

29  of Insurance.

30         (c)  Contract with an attorney or attorneys recommended

31  by the association for representation of the Department of

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  1  Insurance in any administrative or legal proceedings

  2  necessitated by the recommended regulation of the individual

  3  self-insurers.

  4         1.  Notify the association of the existence of an

  5  insolvent employer not later than 3 days after it receives

  6  notice of the determination of insolvency.

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

  8  association with a statement of the annual normal premiums of

  9  each member employer.

10         (b)  The department may:

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

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

13  such regulations as the Department of Insurance prescribes,

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

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

16  payments of compensation made by such individual self-insurer

17  during each prior period and determine the amounts paid by

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

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

20  of this section, the payroll records of each individual

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

22  the association and the Department of Insurance, or their

23  authorized representative, during regular business hours, and

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

25  discloses a deficiency in the amount reported to the

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

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

28  Compensation Administration Trust Fund, the Department of

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

30  against the individual self-insurer.

31

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  1         (e)  Require that the association notify the member

  2  employers and any other interested parties of the

  3  determination of insolvency and of their rights under this

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

  5  address thereof when available; but, if sufficient information

  6  for notification by mail is not available, notice by

  7  publication in a newspaper of general circulation shall be

  8  sufficient.

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

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

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

12  state. As an alternative, the Department of Insurance may levy

13  a fine on any member employer failing to pay an assessment

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

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

16  $100 per month.

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

18  if the Department of Insurance finds that claims are being

19  handled unsatisfactorily.

20         (7)  EFFECT OF PAID CLAIMS.--

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

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

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

24  Every claimant seeking the protection of this section shall

25  cooperate with the association to the same extent as such

26  person would have been required to cooperate with the

27  insolvent member.  The association shall have no cause of

28  action against the employee of the insolvent member for any

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

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

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

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  1  insolvent member operating on a plan with assessment

  2  liability, payments of claims by the association shall not

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

  4  receiver, liquidator, or statutory successor for unpaid

  5  assessments.

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

  7  of an insolvent member shall be bound by settlements of

  8  covered claims by the association or a similar organization in

  9  another state.  The court having jurisdiction shall grant such

10  claims priority against the assets of the insolvent member

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

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

13  or similar organization in handling claims shall be accorded

14  the same priority as the expenses of the liquidator.

15         (c)  The association shall file periodically with the

16  receiver or liquidator of the insolvent member statements of

17  the covered claims paid by the association and estimates of

18  anticipated claims on the association, which shall preserve

19  the rights of the association against the assets of the

20  insolvent member.

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

22  in the detection and prevention of employer insolvencies:

23         (a)  upon determination by majority vote that any

24  member employer may be insolvent or in a financial condition

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

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

27  of Insurance Labor and Employment Security of any information

28  indicating such condition.

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

30  request that the department determine the condition of any

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

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

  2  30 days of the receipt of such request or, for good cause

  3  shown, within a reasonable time thereafter, the department

  4  shall make such determination and shall forthwith advise the

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

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

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

  8  determination to the public.

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

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

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

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

13  association.

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

15  make reports and recommendations to the department upon any

16  matter which is germane to the solvency, liquidation,

17  rehabilitation, or conservation of any member employer. Such

18  reports and recommendations shall not be considered public

19  documents.

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

21  make recommendations to the department for the detection and

22  prevention of employer insolvencies.

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

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

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

26  cause of such insolvency, based on the information available

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

28  department.

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

30  shall be subject to examination and regulation by the

31  Department of Insurance Labor and Employment Security.  No

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  1  later than March 30 of each year, the board of directors shall

  2  submit an audited a financial statement report for the

  3  preceding calendar year in a form approved by the Department

  4  of Insurance.

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

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

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

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

  9  Insurance Labor and Employment Security or its representatives

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

11  powers and duties under this section.

12         (11)  STAY OF PROCEEDINGS; REOPENING OF DEFAULT

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

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

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

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

17  additional period from the date the employer becomes an

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

19  competent jurisdiction to permit proper defense by the

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

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

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

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

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

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

26  administrator that made such judgment, order, decision,

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

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

29  the stay of proceedings may be shortened or waived.

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

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

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  1  defined herein, with respect to which settlement is not

  2  effected and pursuant to which suit is not instituted against

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

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

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

  6  thenceforth be barred as a claim against the association.

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

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

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

10  Department of Insurance Insurance for deposit with the

11  Treasurer to the credit of the General Insurance Fund.  All

12  provisions of chapter 220 relating to penalties and interest

13  on delinquent corporate income tax payments apply to payments

14  due under this subsection.

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

16  440.386, Florida Statutes, are amended to read:

17         440.386  Individual self-insurers' insolvency;

18  conservation; liquidation.--

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

20  Department of Insurance or the Florida Self-Insurers Guaranty

21  Association, Incorporated, may commence a delinquency any such

22  proceeding by application to the court for an order directing

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

24  of Insurance or association should not have the relief sought

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

26  Incorporated, may petition the department to commence such

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

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

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

30  either deny the application or grant the application, together

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

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

  2  subscribers, or public may require.  The Department of

  3  Insurance and the association shall give Florida Self-Insurers

  4  Guaranty Association, Incorporated, shall be given reasonable

  5  written notice to each other by the department of all hearings

  6  which pertain to an adjudication of insolvency of a member

  7  individual self-insurer.

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

  9  Insurance or the association Insurance may apply to the court

10  for an order appointing a receiver and directing the receiver

11  to liquidate the business of a domestic individual

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

13  Florida Self-Insurers Guaranty Association, Incorporated, may

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

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

16  the court for such order.

17         (4)  GROUNDS FOR CONSERVATION; FOREIGN INDIVIDUAL

18  SELF-INSURERS.--

19         (a)  The Department of Insurance or the association may

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

21  ancillary receiver, and directing the receiver to conserve the

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

23  if such individual self-insurer is insolvent.  Florida

24  Self-Insurers Guaranty Association, Incorporated, may petition

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

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

27  such order.

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

29  self-insurer shall require the receiver forthwith to take

30  possession of the property of the receiver within the state

31

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

  2  court.

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

  4  Statutes, is amended to read:

  5         440.24  Enforcement of compensation orders;

  6  penalties.--

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

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

  9  compensation claims or court within 10 days after such order

10  becomes final, the Department of Insurance division may

11  suspend or revoke any authorization previously given to the

12  employer to be become a self-insurer, and the Florida

13  Self-Insurer's Guaranty Association division may call or sue

14  upon the surety bond or exercise its rights under the letter

15  of credit sell such of the securities deposited by the such

16  self-insurer with the Florida Self-Insurer's Guaranty

17  Association as a qualifying security deposit division as may

18  be necessary to satisfy the such order.

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

20  Statutes, is amended to read:

21         440.51  Expenses of administration.--

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

23  such time and in accordance with such regulations as the

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

25  premiums and of all payments of compensation made by such

26  carrier during each prior period, and may determine the

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

28  carriers during such period.

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

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

31  regulations as the Department of Insurance prescribes, reports

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

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

  3  compensation made by such self-insurer during each prior

  4  period, and may determine the amounts paid by each

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

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

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

  8  inspection and audit by the Department of Insurance or its

  9  authorized representative, during regular business hours; and

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

11  deficiency in the amounts reported to the Department of

12  Insurance or in the amounts paid to the Department of

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

14  Department of Insurance may assess the cost of such audit

15  against the self-insurer.

16         Section 6.  All powers, duties, functions, rules,

17  records, and property of the Division of Workers' Compensation

18  of the Department of Labor and Employment Security related to

19  the regulation of individual, self-insured employers under

20  chapter 440, Florida Statutes, are transferred to the

21  Department of Insurance.

22         Section 7.  The sum of $183,750 is appropriated from

23  the Workers' Compensation Administration Trust Fund of the

24  Department of Labor and Employment Security to the Department

25  of Insurance for the purpose of contracting with the Florida

26  Self-Insured Guaranty Association to carry out the provisions

27  of this act during the 2002-2003 fiscal year.

28         Section 8.  Six full-time equivalent positions within

29  the Division of Workers' Compensation of the Department of

30  Labor and Employment Security responsible for the regulation

31  and oversight of self-insured employers are eliminated.

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    Florida Senate - 2002                            CS for SB 398
    311-1898-02




  1         Section 9.  This act shall take effect October 1, 2002.

  2

  3          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  4                         Senate Bill 398

  5

  6  The Committee Substitute provides the following changes:

  7  1.    Transfers powers, functions, duties, rules, records and
          property relating to the regulation of self-insured
  8        employers from the Department of Labor and Employment
          Security to the Department of Insurance, rather than the
  9        Department of Revenue;

10  2.    Eliminates six positions within the Division of Workers'
          Compensation responsible for the regulation and
11        oversight of the individual self-insured employers; and

12  3.    Appropriates the sum of $183,750 from the Workers'
          Compensation Administration Trust Fund to the Department
13        of Insurance for the purpose of contracting with the
          association for fiscal year 2002-2003.
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CODING: Words stricken are deletions; words underlined are additions.