Senate Bill sb1946

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    Florida Senate - 2003                                  SB 1946

    By Senators Clary, Bennett, Miller, Peaden and Jones





    4-34A-03

  1                      A bill to be entitled

  2         An act relating to workers' compensation

  3         insurance; providing for startup funding for

  4         the Florida Employers Mutual Insurance Company,

  5         as created by the act; requiring workers'

  6         compensation insurers to report cost data to

  7         the Department of Financial Services; requiring

  8         insurance carriers to report medical claims

  9         data to the Department of Health; providing for

10         the data to be used to determine trends and

11         changes in health care costs associated with

12         workers' compensation claims; requiring the

13         Chief Financial Officer to approve a plan for

14         operating a residual market to guarantee

15         insurance coverage for employers; providing for

16         rates; providing for any deficit to be

17         distributed through an assessment on insurance

18         carriers that write workers' compensation

19         insurance; requiring the Chief Financial

20         Officer to adopt rules; creating the Florida

21         Employers Mutual Insurance Company Act;

22         providing definitions; creating the Florida

23         Employers Mutual Insurance Company to provide

24         workers' compensation insurance and employer's

25         liability coverage; providing for organization

26         of the company as a not-for-profit corporation;

27         providing for a board of directors of the

28         company; providing for appointment of members

29         and terms of office; providing membership

30         qualifications; requiring the board to hire an

31         administrator; providing powers and duties;

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 1         requiring the administrator to give a bond;

 2         providing immunity from liability for official

 3         acts taken by a board member, officer, or

 4         employee; authorizing the board to establish

 5         insurance rates; requiring the board to adopt

 6         an investment policy and supervise the

 7         investments of the company; authorizing

 8         insurance agents or brokers licensed in this

 9         state to sell workers' compensation insurance

10         policies for the company; requiring a workplace

11         safety program for policyholders; prohibiting

12         the appropriation of state funds to the

13         company; requiring an annual audit of the books

14         of the company; requiring a report to the

15         Governor and the Legislature; requiring the

16         administrator to submit a budget to the board;

17         requiring the Department of Financial Services

18         to examine the company; providing definitions;

19         prohibiting discrimination in the payment of

20         dividends; providing that it is an unfair trade

21         practice to condition payment of a dividend

22         upon renewal of a policy; prohibiting certain

23         agreements restraining trade; requiring uniform

24         rating plans; requiring the Chief Financial

25         Officer to conduct certain examinations of

26         insurers; providing penalties; providing for a

27         determination of a competitive market in the

28         workers' compensation and employer's liability

29         lines of business; requiring the Chief

30         Financial Officer to monitor the degree of

31         competition; amending s. 440.02, F.S.;

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 1         revising, providing, and deleting definitions;

 2         amending s. 440.05, F.S.; revising requirements

 3         relating to submitting notice of election of

 4         exemption and maintenance of records; amending

 5         s. 440.06, F.S.; revising provisions relating

 6         to failure to secure compensation; amending s.

 7         440.077, F.S.; providing that a corporate

 8         officer electing to be exempt may not receive

 9         benefits under ch. 440, F.S.; amending s.

10         440.09, F.S.; providing for an increase in

11         compensation if the employer knowingly refused

12         or failed to provide a safety appliance or

13         observe a safety rule; amending s. 440.11,

14         F.S.; providing that certain limitations with

15         respect to an employer's liability do not apply

16         if the employer fails to secure coverage as

17         required; amending s. 440.13, F.S.; revising

18         the number of and period for certain medical

19         services; revising the requirements for

20         contesting a disallowance of payment;

21         establishing certain maximum reimbursement

22         allowances; amending s. 440.15, F.S.; providing

23         that certain time limitations for temporary

24         benefits are presumed sufficient; revising

25         certain benefits for impairment; amending s.

26         440.16, F.S.; increasing the amount of

27         compensation for funeral expenses and for

28         death; amending s. 440.185, F.S.; revising

29         certain requirements for notice of injury or

30         death; amending s. 440.19, F.S.; revising a

31         limitation on the period for filing a petition

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 1         for benefits; amending s. 440.381, F.S.;

 2         requiring an application for coverage to

 3         include job descriptions for the employment for

 4         which the employer seeks coverage; requiring

 5         that a sworn statement be included with certain

 6         audit documents; providing a penalty; amending

 7         s. 440.591, F.S.; requiring the Division of

 8         Workers' Compensation to adopt rules for a

 9         model settlement agreement; amending s.

10         627.062, F.S.; deleting an exemption for the

11         application of certain rate standards to

12         workers' compensation or employer's liability

13         insurance; amending s. 627.072, F.S.; deleting

14         certain requirements with respect to setting

15         rates for workers' compensation and employer's

16         liability insurance; amending s. 627.0645,

17         F.S.; deleting certain requirements for annual

18         filings; amending s. 627.096, F.S.; providing

19         that certain data and other information

20         submitted to the Workers' Compensation Rating

21         Bureau is a public record; amending s. 627.291,

22         F.S.; deleting requirements for rating

23         organizations to provide certain information;

24         repealing ss. 627.091, 627.101, 627.151,

25         627.211, and 627.281, F.S., relating to rate

26         filings for workers' compensation and

27         employer's liability insurance; providing an

28         effective date.

29  

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

31  

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 1         Section 1.  After January 1, 2004, the director of the

 2  Division of Workers' Compensation shall make one or more loans

 3  to the Florida Employers Mutual Insurance Company in an amount

 4  not to exceed an aggregate amount of 5 million dollars from

 5  the fund maintained to administer sections 1 through 22 of

 6  this act for start-up funding and initial capitalization of

 7  the company. The board of the company shall make application

 8  to the director for the loans, stating the amount to be loaned

 9  to the company. The loans shall be for a term of 5 years and,

10  at the time the application for such loans is approved by the

11  director, shall bear interest at the annual rate based on the

12  rate for linked deposit loans as calculated by the Chief

13  Financial Officer.

14         Section 2.  Workers' compensation insurers to report

15  cost data to the Department of Financial Services.--All

16  workers' compensation insurers or their designated agents,

17  self-insurers, and state agencies responsible for the

18  collection or maintenance of workers' compensation related

19  data shall report claims information necessary to determine

20  and analyze costs of the workers' compensation system to the

21  Chief Financial Officer or to such agents as the Chief

22  Financial Officer designates. The Chief Financial Officer may

23  adopt rules to administer this section. All data, statistics,

24  schedules, or other information submitted to, or considered

25  by, the Department of Financial Services shall be a public

26  record.

27         Section 3.  Insurers to report medical claims data to

28  the Department of Health; contents; consolidated health plan;

29  duties; purpose; costs.--

30         (1)  Each commercial insurance carrier licensed to sell

31  workers' compensation insurance in this state shall provide to

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 1  the Department of Health at least every 6 months workers'

 2  compensation medical claims history data as required by the

 3  department. Such data shall be on electronic media and shall

 4  include the current procedural and medical terminology codes

 5  relating to the medical treatment, dates of treatment,

 6  demographic characteristics of the worker, type of health care

 7  provider rendering care, and charges for treatment. The

 8  department may require a statistically valid sample of claims.

 9  The department may, for purposes of verification, collect data

10  from health care providers relating to the treatment of

11  workers' compensation injuries.

12         (2)  The data required in subsection (1) shall be used

13  by the department to determine historical and statistical

14  trends, variations, and changes in health care costs

15  associated with workers' compensation patients compared with

16  nonworkers' compensation patients with similar injuries and

17  conditions. Such data shall be readily available for review by

18  users of the workers' compensation system, members of the

19  Legislature, the Division of Workers' Compensation, and the

20  Department of Financial Services. Data released by the

21  department may not identify a patient or health care provider.

22         (3)  Any additional personnel or equipment needed by

23  the Department of Health to meet the requirements of this

24  section shall be paid for by the workers' compensation fund.

25         Section 4.  Residual market; Department of Financial

26  Services to develop plan; insurers to participate; rates;

27  procedures; duties of Chief Financial Officer.--

28         (1)  Within 45 days after August 28, 2003, the Chief

29  Financial Officer shall approve a plan of operation for a new

30  residual market that will guarantee insurance coverage and

31  quality loss prevention and control services for employers

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 1  seeking coverage through the plan. The new residual market

 2  shall begin operation January 1, 2004.

 3         (2)  Each insurer authorized to write workers'

 4  compensation and employers' liability insurance shall

 5  participate in the plan, providing for the equitable

 6  apportionment among insurers of insurance that may be afforded

 7  applicants who are in good faith entitled to but who are

 8  unable to procure such insurance through ordinary methods,

 9  except that all employers that have expiring annual premiums

10  greater than $250,000 must negotiate a retrospective rating

11  plan with their insurer which is acceptable to the Chief

12  Financial Officer. The rates, supplementary rate information,

13  and policy forms to be used in such a plan and any future

14  modification thereof must be submitted to the Chief Financial

15  Officer for approval at least 75 days prior to the effective

16  date of the rate. Such rates shall be set by the Chief

17  Financial Officer after hearing so that the amount required in

18  premiums, together with reasonable investment income earned on

19  those premiums, is not excessive, inadequate, or unfairly

20  discriminatory and is actuarially sufficient to apply claims

21  and losses and reasonable operating expenses of the insurers.

22  This section does not prevent the Chief Financial Officer from

23  including a merit rating plan for nonexperienced rated

24  employers within the residual market plan. The Chief Financial

25  Officer shall adopt within the plan a system to distribute any

26  residual market deficit through an assessment on insurance

27  carriers authorized to write workers' compensation insurance

28  in proportion to the respective share of voluntary market

29  premium written by such carrier.

30         (3)  The Chief Financial Officer shall disapprove any

31  filing that does not meet the requirements of this section. A

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 1  filing shall be deemed to meet such requirements unless

 2  approved, disapproved, or modified by the Chief Financial

 3  Officer within 75 days after the filing is made. In

 4  disapproving a filing made pursuant to this section, the Chief

 5  Financial Officer shall have the same authority and follow the

 6  same procedures as in disapproving a rate filing pursuant to

 7  the requirements for filings in the voluntary market. The

 8  designated advisory organization may make and file the plan of

 9  operation, rates, rating plans, rules, and policy forms under

10  this section.

11         (4)  The Chief Financial Officer shall establish by

12  rule standards to assure that any employer insured through the

13  plan shall receive the same quality of service in the areas of

14  employee classification, safety engineering, loss control,

15  claims handling, and claim reserving practices as do employers

16  that are voluntarily insured. The standards established by the

17  Chief Financial Officer pursuant to this subsection shall also

18  specify the procedures and grounds according to which an

19  employer insured through the plan shall be assigned an

20  insurer, and the method by which such employers shall be

21  informed of such procedures and grounds. All insurers of the

22  residual market shall process applications, conduct safety

23  engineering or other loss control services, and provide claims

24  handling within the state or adjoining states.

25         Section 5.  Florida Employers Mutual Insurance Company

26  Act; definitions.--

27         (1)  Sections 5 through 15 of this act may be cited as

28  the "Florida Employers Mutual Insurance Company Act".

29         (2)  As used in sections 5 through 15 of this act, the

30  term:

31  

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 1         (a)  "Administrator" means the chief executive officer

 2  of the Florida Employers Mutual Insurance Company.

 3         (b)  "Board" means the board of directors of the

 4  Florida Employers Mutual Insurance Company.

 5         (c)  "Company" means the Florida Employers Mutual

 6  Insurance Company.

 7         Section 6.  Florida Employers Mutual Insurance Company

 8  created; powers; purpose.--The Florida Employers Mutual

 9  Insurance Company is created as an independent public

10  corporation for the purpose of insuring employers in this

11  state against liability for workers' compensation,

12  occupational disease, and employers' liability coverage. The

13  company shall be organized and operated as a domestic mutual

14  insurance company and it shall not be a state agency. The

15  company shall have the powers granted a not-for-profit

16  corporation under chapter 617, Florida Statutes, to the extent

17  that such provisions do not conflict with sections 5 through

18  15 of this act. The company shall be a member of the Florida

19  Insurance Guaranty Association and shall be subject to

20  assessments therefrom, and the members of such association

21  shall bear responsibility in the event of the insolvency of

22  the company. The company shall be established pursuant to

23  sections 5 through 15 of this act. Preference shall be given

24  to employers that develop an annual premium of not greater

25  than $10,000. The company shall use flexibility and

26  experimentation in developing types of policies and coverages

27  offered to employers, subject to the approval of the Chief

28  Financial Officer.

29         Section 7.  Board created; members, appointment,

30  qualifications, and terms.--

31  

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 1         (1)  There is created a board of directors for the

 2  company. The board shall be appointed by January 1, 2004, and

 3  shall consist of five members appointed or selected as

 4  provided in this section. The Governor shall appoint the

 5  initial five members of the board, who shall be subject to

 6  confirmation by the Senate. Each director shall be appointed

 7  to a 4-year term. Terms shall be staggered so that no more

 8  than two director's terms expire in any year on the first day

 9  of July. The five directors initially appointed by the

10  Governor shall determine their initial terms by lot. At the

11  expiration of the term of any member of the board, the

12  company's policyholders shall elect a new director in

13  accordance with provisions determined by the board.

14         (2)  Any person may be a director who:

15         (a)  Does not have any interest as a stockholder,

16  employee, attorney, agent, broker, or contractor of an

17  insurance entity who writes workers' compensation insurance or

18  whose affiliates write workers' compensation insurance; and

19         (b)  Is of good moral character and who has never

20  pleaded guilty to, or been found guilty of, a felony.

21         (3)  The board shall annually elect a chair and any

22  other officers it deems necessary for the performance of its

23  duties. Board committees and subcommittees may also be formed.

24         Section 8.  Administrator; qualifications and

25  compensation; powers of board.--

26         (1)  By March 1, 2004, the board shall hire an

27  administrator who shall serve at the pleasure of the board and

28  the company shall be fully prepared to be operational by March

29  1, 2005, and assume its responsibilities pursuant to sections

30  5 through 15 of this act. The administrator shall receive

31  compensation as established by the board and must have proven

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 1  successful experience as an executive at the general

 2  management level in the insurance business.

 3         (2)  The board is vested with full power, authority,

 4  and jurisdiction over the company. The board may perform all

 5  acts necessary or convenient in the administration of the

 6  company or in connection with the insurance business to be

 7  carried on by the company. In this regard, the board is

 8  empowered to function in all aspects as a governing body of a

 9  private insurance carrier.

10         Section 9.  Duties of administrator; bond required;

11  immunity from liability for board and employees.--

12         (1)  The administrator of the company shall act as the

13  company's chief executive officer. The administrator shall be

14  in charge of the day-to-day operations and management of the

15  company.

16         (2)  Before entering the duties of office, the

17  administrator shall give an official bond in an amount and

18  with sureties approved by the board. The premium for the bond

19  shall be paid by the company.

20         (3)  The administrator or his or her designee shall be

21  the custodian of the moneys of the company, and all premiums,

22  deposits, or other moneys paid to the company shall be

23  deposited with a financial institution as designated by the

24  administrator.

25         (4)  A board member, officer, or employee of the

26  company may not be held liable in a private capacity for any

27  act performed or obligation entered into when done in good

28  faith, without intent to defraud, and in an official capacity

29  in connection with the administration, management, or conduct

30  of the company or affairs relating to it.

31  

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 1         Section 10.  Rates; board to determine.--The board

 2  shall have full power and authority to establish rates to be

 3  charged by the company for insurance. The board shall contract

 4  for the services of or hire an independent actuary, a member

 5  in good standing with the American Academy of Actuaries, to

 6  develop and recommend actuarially sound rates. Rates shall be

 7  set at amounts sufficient, when invested, to carry all claims

 8  to maturity, meet the reasonable expenses of conducting the

 9  business of the company, and maintain a reasonable surplus.

10  The company shall conduct a workers' compensation program that

11  shall be neither more nor less than self-supporting.

12         Section 11.  Investment policy; board to determine;

13  administrator to make investments.--The board shall formulate

14  and adopt an investment policy and supervise the investment

15  activities of the company. The administrator may invest and

16  reinvest the surplus or reserves of the company subject to the

17  limitations imposed on domestic insurance companies by state

18  law. The company may retain an independent investment counsel.

19  The board shall periodically review and appraise the

20  investment strategy being followed and the effectiveness of

21  such services. Any investment counsel retained or hired shall

22  periodically report to the board on investment results and

23  related matters.

24         Section 12.  Agents authorized to sell policies;

25  commissions.--Any insurance agent or broker licensed to sell

26  workers' compensation insurance in this state shall be

27  authorized to sell insurance policies for the company in

28  compliance with the bylaws adopted by the company. The board

29  shall establish a schedule of commissions to pay for the

30  services of the agent.

31  

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 1         Section 13.  Workplace safety program; reduction in

 2  rates.--

 3         (1)  The administrator shall formulate, implement, and

 4  monitor a workplace safety program for all policyholders.

 5         (2)  The company shall have representatives whose sole

 6  purpose is to develop, with policyholders, a written workplace

 7  accident and injury reduction plan that promotes safe working

 8  conditions and that is based upon clearly stated goals and

 9  objectives. Company representatives shall have reasonable

10  access to the premises of any policyholder or applicant during

11  regular working hours. The company shall communicate the

12  importance of a well-defined safety plan and assist in any way

13  to obtain this objective.

14         (3)  The administrator or board may refuse to insure,

15  or may terminate the insurance of, any subscriber who refuses

16  to permit on-site examinations or disregards the workplace

17  accident and injury reduction plan.

18         (4)  Upon the completion of a detailed inspection and

19  recognition of a high regard for employee work safety, a

20  deviation may be applied to the rate structure of that insured

21  in recognition of those efforts.

22         Section 14.  Company not to receive state

23  appropriation.--The Florida Employers Mutual Insurance Company

24  may not receive any state appropriation, directly or

25  indirectly, except as otherwise expressly provided by law.

26         Section 15.  Audit required; procedure; report to

27  Governor and Legislature; administrator to formulate budget;

28  subscribers to be provided policy.--

29         (1)  The board shall cause an annual audit of the books

30  of accounts, funds, and securities of the company to be made

31  by a competent and independent firm of certified public

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 1  accountants and the cost of the audit shall be charged against

 2  the company. A copy of the audit report shall be filed with

 3  the Chief Financial Officer and the administrator.

 4         (2)  The board shall submit an annual independently

 5  audited report in accordance with procedures governing annual

 6  reports adopted by the National Association of Insurance

 7  Commissioners by March 1 of each year and the report shall be

 8  delivered to the Governor and the Legislature and shall

 9  indicate the business done by the company during the previous

10  year and contain a statement of the resources and liabilities

11  of the company.

12         (3)  The administrator shall annually submit to the

13  board for its approval an estimated budget of the entire

14  expense of administering the company for the succeeding

15  calendar year, having due regard to the business interests and

16  contract obligations of the company.

17         (4)  The incurred loss experience and expense of the

18  company shall be ascertained each year to include, but not be

19  limited to, estimates of outstanding liabilities for claims

20  reported to the company but not yet paid and liabilities for

21  claims arising from injuries that have occurred but have not

22  yet been reported to the company. If there is an excess of

23  assets over liabilities, necessary reserves, and a reasonable

24  surplus for the catastrophe hazard, a cash dividend may be

25  declared or a credit allowed to an employer who has been

26  insured with the company in accordance with criteria approved

27  by the board, which may account for the employer's safety

28  record and performance.

29         (5)  The Department of Financial Services shall conduct

30  an examination of the company in the manner and under the

31  conditions provided by the Florida Insurance Code for the

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 1  examination of insurance carriers. The board shall pay the

 2  cost of the examination as an expense of the company. The

 3  company is subject to all provisions of law relating to

 4  private insurance carriers and to the jurisdiction of the

 5  Department of Financial Services in the same manner as private

 6  insurance carriers, except as provided by the Chief Financial

 7  Officer.

 8         (6)  For the purpose of ascertaining the correctness of

 9  the amount of payroll reported, the number of employees on the

10  employer's payroll, and other information required by the

11  administrator in the proper administration of the company, the

12  records and payrolls of each employer insured by the company

13  shall always be open to inspection by the administrator or his

14  or her authorized agent or representative.

15         (7)  Each employer provided insurance coverage by the

16  company, upon complying with the underwriting standards

17  adopted by the company and completing the application form

18  prescribed by the company, shall be furnished with a policy

19  showing the date on which the insurance becomes effective.

20         Section 16.  Definitions.--As used in sections 16

21  through 22 of this act, the term:

22         (1)  "Accepted actuarial standards" means the standards

23  adopted by the Casualty Actuarial Society in its Statement of

24  Principles Regarding Property and Casualty Insurance

25  Ratemaking, and the Standards of Practice adopted by the

26  Actuarial Standards Board.

27         (2)  "Advisory organization" means any entity that has

28  two or more member insurers or is controlled either directly

29  or indirectly by two or more insurers and that assists

30  insurers in ratemaking-related activities. Two or more

31  insurers that have a common ownership or operate in this state

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 1  under common management or control constitute a single insurer

 2  for the purpose of this definition. The term does not include

 3  a joint underwriting association, any actuarial or legal

 4  consultant, any employee of an insurer, or insurers under

 5  common control or management or their employees or manager.

 6         (3)  "Classification system" or "classification" means

 7  the plan, system, or arrangement for recognizing differences

 8  in exposure to hazards among industries, occupations, or

 9  operations of insurance policyholders.

10         (4)  "Competitive market" means a market that has not

11  been found to be noncompetitive pursuant to section 21 of this

12  act.

13         (5)  "Director" means the Chief Financial Officer.

14         (6)  "Expenses" means that portion of any rate

15  attributable to acquisition and field supervision; collection

16  expenses and general expenses; and taxes, licenses, and fees.

17         (7)  "Experience rating" means a rating procedure using

18  past insurance experience of the individual policyholder to

19  forecast future losses by measuring the policyholder's loss

20  experience against the loss experience of policyholders in the

21  same classification to produce a prospective premium credit,

22  debit, or unity modification.

23         (8)  "Loss trending" means any procedure for projecting

24  developed losses to the average date of loss for the period

25  during which the policies are to be effective.

26         (9)  "Market" means the interaction between buyers and

27  sellers of workers' compensation insurance within this state

28  pursuant to the provisions of sections 16 through 22 of this

29  act.

30  

31  

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 1         (10)  "Noncompetitive market" means a market for which

 2  there is a ruling in effect pursuant to section 21 of this act

 3  that a reasonable degree of competition does not exist.

 4         (11)  "Prospective loss costs" means that portion of a

 5  rate which does not include provisions for expenses, other

 6  than loss adjustment expenses, or profit. Prospective loss

 7  costs are developed losses projected through loss trending to

 8  a future point in time, including any assessments that are

 9  loss-based and ascertained by accepted actuarial standards.

10         (12)  "Pure premium rate" means that portion of the

11  rate which represents the loss cost per unit of exposure,

12  including loss adjustments expense.

13         (13)  "Rate" means the cost of insurance per exposure

14  base unit, prior to any application of individual risk

15  variations based on loss or expense considerations, and does

16  not include minimum premiums.

17         (14)  "Residual market" means the plan, either

18  voluntary or mandated by law, involving participation by

19  insurers in the equitable apportionment among them of

20  insurance that may be afforded applicants who are unable to

21  obtain insurance through ordinary methods.

22         (15)  "Statistical plan" means the plan, system, or

23  arrangement used in collecting data.

24         (16)  "Supplementary rate information" means any manual

25  or plan of rates, classifications system, rating schedule,

26  minimum premium, policy fee, rating rule, rating plan, and any

27  other similar information needed to determine the applicable

28  premium for an insured.

29         (17)  "Supporting information" means the experience and

30  judgment of the filer and the experience or data of other

31  insurers or organizations relied on by the filer, the

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 1  interpretation of any statistical data relied on by the filer,

 2  descriptions of methods used in making the rates, and any

 3  other similar information required to be filed by the

 4  director.

 5         Section 17.  Discrimination prohibited; unfair trade

 6  practices.--

 7         (1)  Nothing in sections 16 through 22 of this act

 8  prohibits or regulates the payment of dividends, savings, or

 9  unabsorbed premium deposits allowed or returned by insurers to

10  their policyholders, members, or subscribers, but in the

11  payment of such dividends there may not be unfair

12  discrimination between policyholders.

13         (2)  A plan for the payment of dividends, savings, or

14  unabsorbed premium deposits allowed or returned by insurers to

15  their policyholders, members, or subscribers is not a rating

16  plan or system.

17         (3)  It is an unfair trade practice under the Florida

18  Deceptive and Unfair Trade Practices Act to make the payment

19  of a dividend or any portion thereof conditioned upon renewal

20  of the policy or contract.

21         Section 18.  Insurer and advisory organization not to

22  make agreement restraining trade; insurer must use uniform

23  experience rating plan; exceptions.--

24         (1)  An insurer or advisory organization may not make

25  any arrangement with any other insurer, advisory organization,

26  or other person which has the purpose or effect or restraining

27  trade unreasonably or of substantially lessening competition

28  in the business of insurance.

29         (2)  An insurer may not agree with any other insurer or

30  with the advisory organization to adhere to or use any rate,

31  

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 1  rating plan, other than the uniform experience rating plan, or

 2  rating rule except as otherwise expressly provided by law.

 3         (3)  The fact that two or more insurers, whether or not

 4  members or subscribers of the advisory organization, use

 5  consistently or intermittently the same rates, rating plans,

 6  rating schedules, rating rules, policy forms, rate

 7  classifications, underwriting rules, surveys or inspections,

 8  or similar materials is not sufficient in itself to support a

 9  finding that an agreement exists.

10         (4)  Two or more insurers that have a common ownership

11  or operate in this state under common management or control

12  may act in concert between or among themselves with respect to

13  any matters pertaining to those activities authorized in

14  sections 16 through 22 of this act as if they constituted a

15  single insurer.

16         Section 19.  Director may conduct examinations; insurer

17  and advisory organizations to maintain records; cost of

18  examination; outstate examination may be accepted.--

19         (1)  The director may examine any insurer and the

20  advisory organization as deemed necessary to ascertain

21  compliance with sections 16 through 22 of this act.

22         (2)  Each insurer and the advisory organization shall

23  maintain reasonable records of the type and kind reasonably

24  adapted to its method of operation containing its experiences

25  or the experience of its members including the data,

26  statistics, or information collected or used by it in its

27  activities. These records shall be available at all reasonable

28  times to enable the director to determine whether the

29  activities of the advisory organization, insurer, or

30  association comply with the provisions of sections 16 through

31  22 of this act. Such records shall be maintained in an office

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 1  within this state or shall be made available to the director

 2  for examination or inspection at any time upon reasonable

 3  notice.

 4         (3)  The reasonable cost of an examination made

 5  pursuant to this section shall be paid by the examined party

 6  upon presentation of a detailed account of such costs.

 7         (4)  In lieu of any such examination, the director may

 8  accept the report of an examination by the insurance

 9  supervisory official of another state which is made pursuant

10  to the laws of such state.

11         Section 20.  Penalties for violations; each day a

12  separate violation; license may be suspended or revoked.--

13         (1)  The director may, upon a finding that any person

14  or organization has violated any provision of sections 16

15  through 22 of this act, impose a penalty of not more than

16  $1,000 for each such violation, but if the director finds such

17  violation to be willful, a penalty of not more than $10,000

18  for each such violation may be imposed. Such penalties may be

19  in addition to any other penalty provided by law.

20         (2)  For purposes of this section, any insurer using a

21  rate for which the insurer has failed to file the rate,

22  supplementary rate information, or supporting information, as

23  required by sections 16 through 22 of this act, commits a

24  separate violation for each day such failure continues.

25         (3)  The director may suspend or revoke the license of

26  any advisory organization or insurer that fails to comply with

27  an order of the director within the time limit specified by

28  such order, or any extension thereof which the director may

29  grant.

30         (4)  The director may determine when a suspension of

31  license shall become effective and such suspension shall

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 1  remain in effect for the period fixed by the director unless

 2  the director modifies or rescinds such suspension or until the

 3  order upon which such suspension is based is modified,

 4  rescinded, or reversed.

 5         (5)  A penalty may not be imposed and a license may not

 6  be suspended or revoked except upon a written order of the

 7  director, stating the findings made after hearing.

 8         Section 21.  Competitive market presumed to exist;

 9  reasonable degree of competition.--

10         (1)  A competitive market is presumed to exist unless

11  the director, after hearing, determines that a reasonable

12  degree of competition does not exist in the market and the

13  director issues an order to that effect. Such an order shall

14  expire no later than 1 year after issue. In determining

15  whether a reasonable degree of competition exists, the

16  director may consider relevant tests of workable competition

17  pertaining to market structure, market performance, and market

18  conduct. For the purposes of this section, the term "market"

19  means the statewide workers' compensation and employer's

20  liability lines of business.

21         (2)  In determining whether a reasonable degree of

22  competition exists, the following factors shall be considered:

23         (a)  Generally accepted and relevant tests of

24  competition pertaining to market structure, market

25  performance, and market conduct;

26         (b)  Market concentration as measured by the

27  Herfindahl-Herschman Index;

28         (c)  The number of insurers transacting workers'

29  compensation insurance in the market;

30         (d)  Insurer market shares and changes in market

31  shares;

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 1         (e)  Ease of entry into the market;

 2         (f)  Whether long-term profitability for insurers in

 3  the market is unreasonably high in relation to the risks being

 4  insured; and

 5         (g)  Whether long-term profitability for insurers in

 6  the market is reasonable in relation to industries of

 7  comparable business risk.

 8         Section 22.  Director to monitor degree of competition;

 9  purpose.--In determining whether or not a competitive market

10  exists pursuant to section 21 of this act, the director shall

11  monitor the degree of competition in this state. In doing so,

12  the director shall use existing relevant information,

13  analytical systems, and other sources; cause or participate in

14  the development of new relevant information, analytical

15  systems, and other sources; or rely on some combination

16  thereof. Such activities may be conducted internally within

17  the Department of Financial Services, in cooperation with

18  other state insurance agencies, through outside contractors,

19  or in any other appropriate manner.

20         Section 23.  Subsections (8), (15), and (16), paragraph

21  (c) of subsection (17), and subsections (38), (41), and (42)

22  of section 440.02, Florida Statutes, are amended to read:

23         440.02  Definitions.--When used in this chapter, unless

24  the context clearly requires otherwise, the following terms

25  shall have the following meanings:

26         (8)  "Construction industry" means any business that

27  carries out for-profit activities involving the carrying out

28  of any building, clearing, filling, excavation, or substantial

29  improvement in the size or use of any structure or the

30  appearance of any land. When appropriate to the context,

31  "construction" refers to the act of construction or the result

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 1  of construction. However, "construction" does shall not mean a

 2  homeowner's landowner's act of construction or the result of a

 3  construction upon his or her own premises, provided such

 4  premises are not intended to be sold, or resold, or leased by

 5  the owner within 1 year after the commencement of the

 6  construction.  The division may, by rule, establish those

 7  standard industrial classification codes and their definitions

 8  which meet the criteria of the term "construction industry" as

 9  set forth in this section.

10         (15)(a)  "Employee" means any person who receives

11  remuneration from an employer for the performance of any work

12  or service, whether by engaged in any employment under any

13  appointment or contract for of hire or apprenticeship, express

14  or implied, oral or written, whether lawfully or unlawfully

15  employed, and includes, but is not limited to, aliens and

16  minors.

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

18  of a corporation and who performs services for remuneration

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

20  services are continuous.

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

22  from this chapter by filing written notice of the election

23  with the department as provided in s. 440.05.

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

25  engaged in the construction industry, no more than three

26  officers of a corporation or of any group of affiliated

27  corporations may elect to be exempt from this chapter by

28  filing written notice of the election with the department as

29  provided in s. 440.05. Officers must be shareholders, each

30  owning at least 10 percent of the stock of such corporation,

31  in order to elect exemptions under this chapter. However, any

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 1  exemption obtained by a corporate officer of a corporation

 2  actively engaged in the construction industry is not

 3  applicable with respect to any commercial building project

 4  estimated to be valued at $250,000 or greater.

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

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

 7  with the department as provided in s. 440.05 is not an

 8  employee.

 9  

10  Services are presumed to have been rendered to the corporation

11  if the officer is compensated by other than dividends upon

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

13         (c)1.  "Employee" includes:

14         1.  A sole proprietor or a partner who devotes full

15  time to the proprietorship or partnership and, except as

16  provided in this paragraph, elects to be included in the

17  definition of employee by filing notice thereof as provided in

18  s. 440.05.

19         2.  Any person who is being paid by a construction

20  contractor, except as otherwise permitted by this chapter, for

21  work performed by or as a subcontractor or employee of a

22  subcontractor.

23         3.  An independent contractor working or performing

24  services in the construction industry. Partners or sole

25  proprietors actively engaged in the construction industry are

26  considered employees unless they elect to be excluded from the

27  definition of employee by filing written notice of the

28  election with the department as provided in s. 440.05.

29  However, no more than three partners in a partnership that is

30  actively engaged in the construction industry may elect to be

31  excluded.

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 1         4.  A sole proprietor or partner who is actively

 2  engaged in the construction industry and a partner or

 3  partnership that is engaged in the construction industry. who

 4  elects to be exempt from this chapter by filing a written

 5  notice of the election with the department as provided in s.

 6  440.05 is not an employee. For purposes of this chapter, an

 7  independent contractor is an employee unless he or she meets

 8  all of the conditions set forth in subparagraph (d)1.

 9         2.  Notwithstanding the provisions of subparagraph 1.,

10  the term "employee" includes a sole proprietor or partner

11  actively engaged in the construction industry with respect to

12  any commercial building project estimated to be valued at

13  $250,000 or greater. Any exemption obtained is not applicable,

14  with respect to work performed at such a commercial building

15  project.

16         (d)  "Employee" does not include:

17         1.  An independent contractor that is not engaged in

18  the construction industry., if:

19         a.  The independent contractor maintains a separate

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

21  materials, or similar accommodations;

22         b.  The independent contractor holds or has applied for

23  a federal employer identification number, unless the

24  independent contractor is a sole proprietor who is not

25  required to obtain a federal employer identification number

26  under state or federal requirements;

27         c.  The independent contractor performs or agrees to

28  perform specific services or work for specific amounts of

29  money and controls the means of performing the services or

30  work;

31  

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 1         d.  The independent contractor incurs the principal

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

 3  performs or agrees to perform;

 4         e.  The independent contractor is responsible for the

 5  satisfactory completion of work or services that he or she

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

 7  for a failure to complete the work or services;

 8         f.  The independent contractor receives compensation

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

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

11         g.  The independent contractor may realize a profit or

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

13         h.  The independent contractor has continuing or

14  recurring business liabilities or obligations; and

15         i.  The success or failure of the independent

16  contractor's business depends on the relationship of business

17  receipts to expenditures.

18         However, the determination as to whether an individual

19  included in the Standard Industrial Classification Manual of

20  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

21  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

22  2448, or 2449, or a newspaper delivery person, is an

23  independent contractor is governed not by the criteria in this

24  paragraph but by common-law principles, giving due

25  consideration to the business activity of the individual.

26  Notwithstanding the provisions of this paragraph or any other

27  provision of this chapter, with respect to any commercial

28  building project estimated to be valued at $250,000 or

29  greater, a person who is actively engaged in the construction

30  industry is not an independent contractor and is either an

31  

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 1  employer or an employee who may not be exempt from the

 2  coverage requirements of this chapter.

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

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

 5  of commission.

 6         3.  Bands, orchestras, and musical and theatrical

 7  performers, including disk jockeys, performing in licensed

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

 9  evidencing an independent contractor relationship is entered

10  into before the commencement of such entertainment.

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

12  property under a written contract with a motor carrier which

13  evidences a relationship by which the owner-operator assumes

14  the responsibility of an employer for the performance of the

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

16  necessary motor vehicle equipment and all costs incidental to

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

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

19  owner-operator is paid a commission for transportation service

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

21  basis.

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

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

24  of the employer.

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

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

27  A person who does not receive monetary remuneration for

28  services is presumed to be a volunteer unless there is

29  substantial evidence that a valuable consideration was

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

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

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 1         a.  Persons who serve in private nonprofit agencies and

 2  who receive no compensation other than expenses in an amount

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

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

 5  if such agency does not have salaried employees who receive

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

 7  compensation other than expenses in an amount less than or

 8  equivalent to the customary mileage and per diem paid to

 9  salaried workers in the community as determined by the

10  department; and

11         b.  Volunteers participating in federal programs

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

13         7.  Unless otherwise prohibited by this chapter, any

14  officer of a corporation who elects to be exempt from this

15  chapter.

16         8.  An A sole proprietor or officer of a corporation

17  who actively engages in the construction industry, and a

18  partner in a partnership that is actively engaged in the

19  construction industry, who elects to be exempt from the

20  provisions of this chapter, as otherwise permitted in this

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

22  employee for any reason until the notice of revocation of

23  election filed pursuant to s. 440.05 is effective.

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

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

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

27  into prior to the commencement of such activity which

28  evidences that an employee/employer relationship does not

29  exist.

30         10.  A taxicab, limousine, or other passenger

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

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 1  a written agreement with a company which provides any

 2  dispatch, marketing, insurance, communications, or other

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

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

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

 6  revenues.

 7         11.  A person who performs services as a sports

 8  official for an entity sponsoring an interscholastic sports

 9  event or for a public entity or private, nonprofit

10  organization that sponsors an amateur sports event. For

11  purposes of this subparagraph, such a person is an independent

12  contractor. For purposes of this subparagraph, the term

13  "sports official" means any person who is a neutral

14  participant in a sports event, including, but not limited to,

15  umpires, referees, judges, linespersons, scorekeepers, or

16  timekeepers. This subparagraph does not apply to any person

17  employed by a district school board who serves as a sports

18  official as required by the employing school board or who

19  serves as a sports official as part of his or her

20  responsibilities during normal school hours.

21         (16)(a)  "Employer" means the state and all political

22  subdivisions thereof, all public and quasi-public corporations

23  therein, every person carrying on any employment, and the

24  legal representative of a deceased person or the receiver or

25  trustees of any person. If the employer is a corporation,

26  parties in actual control of the corporation, including, but

27  not limited to, the president, officers who exercise broad

28  corporate powers, directors, and all shareholders who directly

29  or indirectly own a controlling interest in the corporation,

30  are considered the employer for the purposes of ss. 440.105

31  and 440.106.

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 1         (b)  However, a landowner shall not be considered the

 2  employer of a person hired by the landowner to carry out

 3  construction on the landowner's own premises if those premises

 4  are not intended for immediate sale or resale.

 5         (17)

 6         (c)  "Employment" does not include service performed by

 7  or as:

 8         1.  Domestic servants in private homes.

 9         2.  Agricultural labor performed on a farm in the

10  employ of a bona fide farmer, or association of farmers, that

11  employs 5 or fewer regular employees and that employs fewer

12  than 12 other employees at one time for seasonal agricultural

13  labor that is completed in less than 30 days, provided such

14  seasonal employment does not exceed 45 days in the same

15  calendar year. The term "farm" includes stock, dairy, poultry,

16  fruit, fur-bearing animals, fish, and truck farms, ranches,

17  nurseries, and orchards. The term "agricultural labor"

18  includes field foremen, timekeepers, checkers, and other farm

19  labor supervisory personnel.

20         3.  Professional athletes, such as professional boxers,

21  wrestlers, baseball, football, basketball, hockey, polo,

22  tennis, jai alai, and similar players, and motorsports teams

23  competing in a motor racing event as defined in s. 549.08.

24         4.  Persons performing labor under a sentence of a

25  court to perform community services as provided in s. 316.193.

26         5.  State prisoners or county inmates, except those

27  performing services for private employers or those enumerated

28  in s. 948.03(8)(a).

29         (38)  "Catastrophic injury" means a permanent

30  impairment constituted by:

31  

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 1         (a)  Spinal cord injury involving severe paralysis of

 2  an arm, a leg, or the trunk;

 3         (b)  Amputation of an arm, a hand, a foot, or a leg

 4  involving the effective loss of use of that appendage;

 5         (c)  Severe brain or closed-head injury as evidenced

 6  by:

 7         1.  Severe sensory or motor disturbances;

 8         2.  Severe communication disturbances;

 9         3.  Severe complex integrated disturbances of cerebral

10  function;

11         4.  Severe episodic neurological disorders; or

12         5.  Other severe brain and closed-head injury

13  conditions at least as severe in nature as any condition

14  provided in subparagraphs 1.-4.;

15         (d)  Second-degree or third-degree burns of 25 percent

16  or more of the total body surface or third-degree burns of 5

17  percent or more to the face and hands; or

18         (e)  Total or industrial blindness.; or

19         (f)  Any other injury that would otherwise qualify

20  under this chapter of a nature and severity that would qualify

21  an employee to receive disability income benefits under Title

22  II or supplemental security income benefits under Title XVI of

23  the federal Social Security Act as the Social Security Act

24  existed on July 1, 1992, without regard to any time

25  limitations provided under that act.

26         (41)  "Specificity" means information on the petition

27  for benefits sufficient to put the employer or carrier on

28  notice of the exact statutory classification and outstanding

29  time period of benefits being requested and includes a

30  detailed explanation of any benefits received that should be

31  increased, decreased, changed, or otherwise modified. If the

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 1  petition is for medical benefits, the information shall

 2  include specific details as to why such benefits are being

 3  requested, why such benefits are medically necessary, and why

 4  current treatment, if any, is not sufficient.

 5         (41)  "Commercial building" means any building or

 6  structure intended for commercial or industrial use, or any

 7  building or structure intended for multifamily use of more

 8  than four dwelling units, as well as any accessory use

 9  structures constructed in conjunction with the principal

10  structure. The term, "commercial building," does not include

11  the conversion of any existing residential building to a

12  commercial building.

13         (42)  "Residential building" means any building or

14  structure intended for residential use containing four or

15  fewer dwelling units and any structures intended as an

16  accessory use to the residential structure.

17         Section 24.  Subsections (3), (6), (10), and (13) of

18  section 440.05, Florida Statutes, are amended to read:

19         440.05  Election of exemption; revocation of election;

20  notice; certification.--

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

22  corporation who is actively engaged in the construction

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

24  after electing such exemption, revokes that exemption, must

25  mail a written notice to such effect to the department on a

26  form prescribed by the department. The notice of election to

27  be exempt from the provisions of this chapter must be

28  notarized and under oath. The notice of election to be exempt

29  which is submitted to the department by the sole proprietor,

30  partner, or officer of a corporation who is allowed to claim

31  an exemption as provided by this chapter must list the name,

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 1  federal tax identification number, social security number, all

 2  certified or registered licenses issued pursuant to chapter

 3  489 held by the person seeking the exemption, a copy of

 4  relevant documentation as to employment status filed with the

 5  Internal Revenue Service as specified by the department, a

 6  copy of the relevant occupational license in the primary

 7  jurisdiction of the business, and, for corporate officers and

 8  partners, the registration number of the corporation or

 9  partnership filed with the Division of Corporations of the

10  Department of State along with a copy of the stock certificate

11  evidencing the required ownership under this chapter. The

12  notice of election to be exempt must identify each sole

13  proprietorship, partnership, or corporation that employs the

14  person electing the exemption and must list the social

15  security number or federal tax identification number of each

16  such employer and the additional documentation required by

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

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

19  electing an exemption is not entitled to benefits under this

20  chapter, must provide that the election does not exceed

21  exemption limits for officers and partnerships provided in s.

22  440.02, and must certify that any employees of the corporation

23  whose sole proprietor, partner, or officer elects electing an

24  exemption are covered by workers' compensation insurance. Upon

25  receipt of the notice of the election to be exempt, receipt of

26  all application fees, and a determination by the department

27  that the notice meets the requirements of this subsection, the

28  department shall issue a certification of the election to the

29  sole proprietor, partner, or officer, unless the department

30  determines that the information contained in the notice is

31  invalid. The department shall revoke a certificate of election

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 1  to be exempt from coverage upon a determination by the

 2  department that the person does not meet the requirements for

 3  exemption or that the information contained in the notice of

 4  election to be exempt is invalid. The certificate of election

 5  must list the name names of the sole proprietorship,

 6  partnership, or corporation listed in the request for

 7  exemption. A new certificate of election must be obtained each

 8  time the person is employed by a new sole proprietorship,

 9  partnership, or different corporation that is not listed on

10  the certificate of election. A copy of the certificate of

11  election must be sent to each workers' compensation carrier

12  identified in the request for exemption. Upon filing a notice

13  of revocation of election, an a sole proprietor, partner, or

14  officer who is a subcontractor or an officer of a corporate

15  subcontractor must notify her or his contractor. Upon

16  revocation of a certificate of election of exemption by the

17  department, the department shall notify the workers'

18  compensation carriers identified in the request for exemption.

19         (6)  A construction industry certificate of election to

20  be exempt which is issued in accordance with this section

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

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

23  be listed on the face of the certificate by the department.

24  The construction industry certificate must expire at midnight,

25  2 years from its issue date, as noted on the face of the

26  exemption certificate. Any person who has received from the

27  division a construction industry certificate of election to be

28  exempt which is in effect on December 31, 1998, shall file a

29  new notice of election to be exempt by the last day in his or

30  her birth month following December 1, 1998. A construction

31  industry certificate of election to be exempt may be revoked

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 1  before its expiration by the sole proprietor, partner, or

 2  officer for whom it was issued or by the department for the

 3  reasons stated in this section. At least 60 days prior to the

 4  expiration date of a construction industry certificate of

 5  exemption issued after December 1, 1998, the department shall

 6  send notice of the expiration date and an application for

 7  renewal to the certificateholder at the address on the

 8  certificate.

 9         (10)  Each sole proprietor, partner, or officer of a

10  corporation who is actively engaged in the construction

11  industry and who elects an exemption from this chapter shall

12  maintain business records as specified by the division by

13  rule, which rules must include the provision that any

14  corporation with exempt officers and any partnership actively

15  engaged in the construction industry with exempt partners must

16  maintain written statements of those exempted persons

17  affirmatively acknowledging each such individual' s exempt

18  status.

19         (13)  Any corporate officer permitted by this chapter

20  to claim claiming an exemption under this section must be

21  listed on the records of this state's Secretary of State,

22  Division of Corporations, as a corporate officer. If the

23  person who claims an exemption as a corporate officer is not

24  so listed on the records of the Secretary of State, the

25  individual must provide to the division, upon request by the

26  division, a notarized affidavit stating that the individual is

27  a bona fide officer of the corporation and stating the date

28  his or her appointment or election as a corporate officer

29  became or will become effective. The statement must be signed

30  under oath by both the officer and the president or chief

31  operating officer of the corporation and must be notarized.

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 1  The division shall issue a stop-work order under s. 440.107(1)

 2  to any corporation who employs a person who claims to be

 3  exempt as a corporate officer but who fails or refuses to

 4  produce the documents required under this subsection to the

 5  division within 3 business days after the request is made.

 6         Section 25.  Section 440.06, Florida Statutes, is

 7  amended to read:

 8         440.06  Failure to secure compensation; effect.--Every

 9  employer who fails to secure the payment of compensation, as

10  provided in s. 440.10, by failing to meet the requirements of

11  under this chapter as provided in s. 440.38 may not, in any

12  suit brought against him or her by an employee subject to this

13  chapter to recover damages for injury or death, defend such a

14  suit on the grounds that the injury was caused by the

15  negligence of a fellow servant, that the employee assumed the

16  risk of his or her employment, or that the injury was due to

17  the comparative negligence of the employee.

18         Section 26.  Section 440.077, Florida Statutes, is

19  amended to read:

20         440.077  When a corporate sole proprietor, partner, or

21  officer rejects chapter, effect.--An A sole proprietor,

22  partner, or officer of a corporation who is permitted to elect

23  an exemption under this chapter actively engaged in the

24  construction industry and who elects to be exempt from the

25  provisions of this chapter may not recover benefits under this

26  chapter.

27         Section 27.  Subsection (5) of section 440.09, Florida

28  Statutes, is amended to read:

29         440.09  Coverage.--

30         (5)  If injury is caused by the knowing refusal of the

31  employee to use a safety appliance or observe a safety rule

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 1  required by statute or lawfully adopted by the division, and

 2  brought prior to the accident to the employee's knowledge, or

 3  if injury is caused by the knowing refusal of the employee to

 4  use a safety appliance provided by the employer, the

 5  compensation as provided in this chapter shall be reduced 25

 6  percent. If injury occurs while the employer has knowingly

 7  refused or failed to provide a safety appliance or observe a

 8  safety rule required by statute or lawfully adopted by the

 9  department, the compensation provided in this chapter shall be

10  increased 25 percent.

11         Section 28.  Subsection (4) of section 440.11, Florida

12  Statutes, is amended, and subsection (5) is added to that

13  section, to read:

14         440.11  Exclusiveness of liability.--

15         (4)  Notwithstanding the provisions of s. 624.155, the

16  liability of a carrier to an employee or to anyone entitled to

17  bring suit in the name of the employee shall be as provided in

18  this chapter, which shall be exclusive and in place of all

19  other liability, except as provided in s. 624.155.

20         (5)  The limits placed on the employer's liability

21  under this section do not apply if the employer fails to have

22  secured coverage mandated under this chapter at the time of a

23  work-related accident.

24         Section 29.  Paragraph (a) of subsection (2),

25  subsection (7), paragraph (a) of subsection (12) of section

26  440.13, Florida Statutes, are amended to read:

27         440.13  Medical services and supplies; penalty for

28  violations; limitations.--

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

30         (a)  Subject to the limitations specified elsewhere in

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

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 1  medically necessary remedial treatment, care, and attendance

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

 3  recovery may require, including medicines, medical supplies,

 4  durable medical equipment, orthoses, prostheses, and other

 5  medically necessary apparatus. Remedial treatment, care, and

 6  attendance, including work-hardening programs or

 7  pain-management programs accredited by the Commission on

 8  Accreditation of Rehabilitation Facilities or Joint Commission

 9  on the Accreditation of Health Organizations or

10  pain-management programs affiliated with medical schools,

11  shall be considered as covered treatment only when such care

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

13  chapter. Each facility shall maintain outcome data, including

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

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

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

17  Speaker of the House of Representatives regarding the efficacy

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

19  1, 1994. Medically necessary treatment, care, and attendance

20  does not include chiropractic services in excess of 36 18

21  treatments or rendered 16 8 weeks beyond the date of the

22  initial chiropractic treatment, whichever comes first, unless

23  the carrier authorizes additional treatment or the employee is

24  catastrophically injured.

25         (7)  UTILIZATION AND REIMBURSEMENT DISPUTES.--

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

27  elects to contest the disallowance or adjustment of payment by

28  a carrier under subsection (6) may file a must, within 30 days

29  after receipt of notice of disallowance or adjustment of

30  payment, petition under s. 440.192 and proceed in the same

31  manner as a claimant, including the application of s. 440.34

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 1  the agency to resolve the dispute. The petitioner must serve a

 2  copy of the petition on the carrier and on all affected

 3  parties by certified mail. The petition must be accompanied by

 4  all documents and records that support the allegations

 5  contained in the petition. Failure of a petitioner to submit

 6  such documentation to the agency results in dismissal of the

 7  petition.

 8         (b)  The carrier must submit to the agency within 10

 9  days after receipt of the petition all documentation

10  substantiating the carrier's disallowance or adjustment.

11  Failure of the carrier to submit the requested documentation

12  to the agency within 10 days constitutes a waiver of all

13  objections to the petition.

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

15  the agency must provide to the petitioner, the carrier, and

16  the affected parties a written determination of whether the

17  carrier properly adjusted or disallowed payment. The agency

18  must be guided by standards and policies set forth in this

19  chapter, including all applicable reimbursement schedules, in

20  rendering its determination.

21         (d)  If the agency finds an improper disallowance or

22  improper adjustment of payment by an insurer, the insurer

23  shall reimburse the health care provider, facility, insurer,

24  or employer within 30 days, subject to the penalties provided

25  in this subsection.

26         (e)  The agency shall adopt rules to carry out this

27  subsection. The rules may include provisions for consolidating

28  petitions filed by a petitioner and expanding the timetable

29  for rendering a determination upon a consolidated petition.

30         (b)(f)  Any carrier that engages in a pattern or

31  practice of arbitrarily or unreasonably disallowing or

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 1  reducing payments to health care providers may be subject to

 2  one or more of the following penalties imposed by the agency:

 3         1.  Repayment of the appropriate amount to the health

 4  care provider.

 5         2.  An administrative fine assessed by the agency in an

 6  amount not to exceed $5,000 per instance of improperly

 7  disallowing or reducing payments.

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

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

10  petition.

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

12  REIMBURSEMENT ALLOWANCES.--

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

14  Insurance Commissioner, or the Insurance Commissioner's

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

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

17  account of present or previous vocation, employment, or

18  affiliation, shall be classified as a representative of

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

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

21  representative of employees. The panel shall determine

22  statewide schedules of maximum reimbursement allowances for

23  medically necessary treatment, care, and attendance provided

24  by physicians, hospitals, ambulatory surgical centers,

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

26  equipment. The maximum reimbursement allowances for inpatient

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

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

29  1, 1994, to be used in conjunction with a precertification

30  manual as determined by the agency. All compensable charges

31  for hospital outpatient care shall be reimbursed at 75 percent

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 1  of usual and customary charges. Until the three-member panel

 2  approves a schedule of per diem rates for inpatient hospital

 3  care and it becomes effective, all compensable charges for

 4  hospital inpatient care must be reimbursed at 75 percent of

 5  their usual and customary charges. Annually, the three-member

 6  panel shall adopt schedules of maximum reimbursement

 7  allowances for physicians, hospital inpatient care, hospital

 8  outpatient care, ambulatory surgical centers, work-hardening

 9  programs, and pain programs. However, the maximum percentage

10  of increase in the individual reimbursement allowance may not

11  exceed the percentage of increase in the Consumer Price Index

12  for the previous year. The maximum reimbursement allowance may

13  not be less than 150 percent of the amount of reimbursement

14  provided by Medicare for nonsurgical medical care and

15  procedures, and may not be less than 200 percent of the amount

16  of reimbursement provided by Medicare for surgical procedures.

17  An individual physician, hospital, ambulatory surgical center,

18  pain program, or work-hardening program shall be reimbursed

19  either the usual and customary charge for treatment, care, and

20  attendance, the agreed-upon contract price, or the maximum

21  reimbursement allowance in the appropriate schedule, whichever

22  is less.

23         Section 30.  Paragraph (a) of subsection (2),

24  paragraphs (a) and (b) of subsection (3), and paragraph (b) of

25  subsection (4) of section 440.15, Florida Statutes, are

26  amended to read:

27         440.15  Compensation for disability.--Compensation for

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

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

30         (2)  TEMPORARY TOTAL DISABILITY.--

31  

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 1         (a)  In case of disability total in character but

 2  temporary in quality, 66 2/3  percent of the average weekly

 3  wages shall be paid to the employee during the continuance

 4  thereof, not to exceed 104 weeks except as provided in this

 5  subsection, s. 440.12(1), and s. 440.14(3). This time

 6  limitation for temporary benefits shall be presumed sufficient

 7  unless there is clear and convincing evidence to the contrary

 8  as determined by the judge of compensation claims. Temporary

 9  benefits may not exceed 260 weeks. Once the employee reaches

10  the maximum number of weeks allowed, or the employee reaches

11  the date of maximum medical improvement, whichever occurs

12  earlier, temporary disability benefits shall cease and the

13  injured worker's permanent impairment shall be determined.

14         (3)  PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--

15         (a)  Impairment benefits.--

16         1.  Once the employee has reached the date of maximum

17  medical improvement, impairment benefits are due and payable

18  within 20 days after the carrier has knowledge of the

19  impairment.

20         2.  The three-member panel, in cooperation with the

21  department, shall establish and use a uniform permanent

22  impairment rating schedule. This schedule must be based on

23  medically or scientifically demonstrable findings as well as

24  the systems and criteria set forth in the American Medical

25  Association's Guides to the Evaluation of Permanent

26  Impairment; the Snellen Charts, published by American Medical

27  Association Committee for Eye Injuries; and the Minnesota

28  Department of Labor and Industry Disability Schedules. The

29  schedule should be based upon objective findings. The schedule

30  shall be more comprehensive than the AMA Guides to the

31  Evaluation of Permanent Impairment and shall expand the areas

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 1  already addressed and address additional areas not currently

 2  contained in the guides. On August 1, 1979, and pending the

 3  adoption, by rule, of a permanent schedule, Guides to the

 4  Evaluation of Permanent Impairment, copyright 1977, 1971,

 5  1988, by the American Medical Association, shall be the

 6  temporary schedule and shall be used for the purposes hereof.

 7  For injuries after July 1, 1990, pending the adoption by rule

 8  of a uniform disability rating agency schedule, the Minnesota

 9  Department of Labor and Industry Disability Schedule shall be

10  used unless that schedule does not address an injury. In such

11  case, the Guides to the Evaluation of Permanent Impairment by

12  the American Medical Association shall be used. Determination

13  of permanent impairment under this schedule must be made by a

14  physician licensed under chapter 458, a doctor of osteopathic

15  medicine licensed under chapters 458 and 459, a chiropractic

16  physician licensed under chapter 460, a podiatric physician

17  licensed under chapter 461, an optometrist licensed under

18  chapter 463, or a dentist licensed under chapter 466, as

19  appropriate considering the nature of the injury. No other

20  persons are authorized to render opinions regarding the

21  existence of or the extent of permanent impairment.

22         3.  All impairment income benefits shall be based on an

23  impairment rating using the impairment schedule referred to in

24  subparagraph 2. Impairment income benefits are paid weekly at

25  the rate of 66 2/3  50 percent of the employee's average

26  weekly wages temporary total disability benefit not to exceed

27  the maximum weekly benefit under s. 440.12. An employee's

28  entitlement to impairment income benefits begins the day after

29  the employee reaches maximum medical improvement or the

30  expiration of temporary benefits, whichever occurs earlier,

31  and continues until the earlier of:

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 1         a.  The expiration of a period computed at the rate of

 2  3 weeks for each percentage point of impairment; or

 3         b.  The death of the employee.

 4         4.  After the employee has been certified by a doctor

 5  as having reached maximum medical improvement or 6 weeks

 6  before the expiration of temporary benefits, whichever occurs

 7  earlier, the certifying doctor shall evaluate the condition of

 8  the employee and assign an impairment rating, using the

 9  impairment schedule referred to in subparagraph 2.

10  Compensation is not payable for the mental, psychological, or

11  emotional injury arising out of depression from being out of

12  work. If the certification and evaluation are performed by a

13  doctor other than the employee's treating doctor, the

14  certification and evaluation must be submitted to the treating

15  doctor, and the treating doctor must indicate agreement or

16  disagreement with the certification and evaluation. The

17  certifying doctor shall issue a written report to the

18  department, the employee, and the carrier certifying that

19  maximum medical improvement has been reached, stating the

20  impairment rating, and providing any other information

21  required by the department by rule. If the employee has not

22  been certified as having reached maximum medical improvement

23  before the expiration of 102 weeks after the date temporary

24  total disability benefits begin to accrue, the carrier shall

25  notify the treating doctor of the requirements of this

26  section.

27         5.  The carrier shall pay the employee impairment

28  income benefits for a period based on the impairment rating.

29         6.  The department may by rule specify forms and

30  procedures governing the method of payment of wage loss and

31  

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 1  impairment benefits for dates of accidents before January 1,

 2  1994, and for dates of accidents on or after January 1, 1994.

 3         (b)  Supplemental benefits.--

 4         1.  All supplemental benefits must be paid in

 5  accordance with this subsection. An employee is entitled to

 6  supplemental benefits as provided in this paragraph as of the

 7  expiration of the impairment period, if:

 8         a.  The employee has an impairment rating from the

 9  compensable injury of 10 20 percent or more as determined

10  pursuant to this chapter;

11         b.  The employee has not returned to work or has

12  returned to work earning less than 80 percent of the

13  employee's average weekly wage as a direct result of the

14  employee's impairment; and

15         c.  The employee has in good faith attempted to obtain

16  employment commensurate with the employee's ability to work.

17         2.  If an employee is not entitled to supplemental

18  benefits at the time of payment of the final weekly impairment

19  income benefit because the employee is earning at least 80

20  percent of the employee's average weekly wage, the employee

21  may become entitled to supplemental benefits at any time

22  within 1 year after the impairment income benefit period ends

23  if:

24         a.  The employee earns wages that are less than 80

25  percent of the employee's average weekly wage for a period of

26  at least 90 days;

27         b.  The employee meets the other requirements of

28  subparagraph 1.; and

29         c.  The employee's decrease in earnings is a direct

30  result of the employee's impairment from the compensable

31  injury.

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 1         3.  If an employee earns wages that are at least 80

 2  percent of the employee's average weekly wage for a period of

 3  at least 90 days during which the employee is receiving

 4  supplemental benefits, the employee ceases to be entitled to

 5  supplemental benefits for the filing period. Supplemental

 6  benefits that have been terminated shall be reinstated when

 7  the employee satisfies the conditions enumerated in

 8  subparagraph 2. and files the statement required under

 9  subparagraph 4. Notwithstanding any other provision, if an

10  employee is not entitled to supplemental benefits for 12

11  consecutive months, the employee ceases to be entitled to any

12  additional income benefits for the compensable injury. If the

13  employee is discharged within 12 months after losing

14  entitlement under this subsection, benefits may be reinstated

15  if the employee was discharged at that time with the intent to

16  deprive the employee of supplemental benefits.

17         4.  After the initial determination of supplemental

18  benefits, the employee must file a statement with the carrier

19  stating that the employee has earned less than 80 percent of

20  the employee's average weekly wage as a direct result of the

21  employee's impairment, stating the amount of wages the

22  employee earned in the filing period, and stating that the

23  employee has in good faith sought employment commensurate with

24  the employee's ability to work. The statement must be filed

25  quarterly on a form and in the manner prescribed by the

26  department. The department may modify the filing period as

27  appropriate to an individual case. Failure to file a statement

28  relieves the carrier of liability for supplemental benefits

29  for the period during which a statement is not filed.

30         5.  The carrier shall begin payment of supplemental

31  benefits not later than the seventh day after the expiration

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 1  date of the impairment income benefit period and shall

 2  continue to timely pay those benefits. The carrier may request

 3  a mediation conference for the purpose of contesting the

 4  employee's entitlement to or the amount of supplemental income

 5  benefits.

 6         6.  Supplemental benefits are calculated quarterly and

 7  paid monthly. For purposes of calculating supplemental

 8  benefits, 80 percent of the employee's average weekly wage and

 9  the average wages the employee has earned per week are

10  compared quarterly. For purposes of this paragraph, if the

11  employee is offered a bona fide position of employment that

12  the employee is capable of performing, given the physical

13  condition of the employee and the geographic accessibility of

14  the position, the employee's weekly wages are considered

15  equivalent to the weekly wages for the position offered to the

16  employee.

17         7.  Supplemental benefits are payable at the rate of 80

18  percent of the difference between 80 percent of the employee's

19  average weekly wage determined pursuant to s. 440.14 and the

20  weekly wages the employee has earned during the reporting

21  period, not to exceed the maximum weekly income benefit under

22  s. 440.12.

23         8.  The department may by rule define terms that are

24  necessary for the administration of this section and forms and

25  procedures governing the method of payment of supplemental

26  benefits for dates of accidents before January 1, 1994, and

27  for dates of accidents on or after January 1, 1994.

28         (4)  TEMPORARY PARTIAL DISABILITY.--

29         (b)  Such benefits shall be paid during the continuance

30  of such disability, not to exceed a period of 104 weeks, as

31  provided by this subsection and subsection (2). This time

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 1  limitation for temporary benefits shall be presumed sufficient

 2  unless there is clear and convincing evidence to the contrary

 3  as determined by the judge of compensation claims. Temporary

 4  benefits may not exceed 260 weeks. Once the injured employee

 5  reaches the maximum number of weeks, temporary disability

 6  benefits cease and the injured worker's permanent impairment

 7  must be determined. The department may by rule specify forms

 8  and procedures governing the method of payment of temporary

 9  disability benefits for dates of accidents before January 1,

10  1994, and for dates of accidents on or after January 1, 1994.

11         Section 31.  Subsection (1) of section 440.16, Florida

12  Statutes, is amended to read:

13         440.16  Compensation for death.--

14         (1)  If death results from the accident within 1 year

15  thereafter or follows continuous disability and results from

16  the accident within 5 years thereafter, the employer shall

17  pay:

18         (a)  Within 14 days after receiving the bill, actual

19  funeral expenses not to exceed $10,000 $5,000.

20         (b)  Compensation, in addition to the above, in the

21  following percentages of the average weekly wages to the

22  following persons entitled thereto on account of dependency

23  upon the deceased, and in the following order of preference,

24  subject to the limitation provided in subparagraph 2., but

25  such compensation shall be subject to the limits provided in

26  s. 440.12(2), shall not exceed $250,000 $100,000, and may be

27  less than, but shall not exceed, for all dependents or persons

28  entitled to compensation, 66 2/3  percent of the average wage:

29         1.  To the spouse, if there is no child, 50 percent of

30  the average weekly wage, such compensation to cease upon the

31  spouse's death.

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 1         2.  To the spouse, if there is a child or children, the

 2  compensation payable under subparagraph 1. and, in addition,

 3  16 2/3  percent on account of the child or children. However,

 4  when the deceased is survived by a spouse and also a child or

 5  children, whether such child or children are the product of

 6  the union existing at the time of death or of a former

 7  marriage or marriages, the judge of compensation claims may

 8  provide for the payment of compensation in such manner as may

 9  appear to the judge of compensation claims just and proper and

10  for the best interests of the respective parties and, in so

11  doing, may provide for the entire compensation to be paid

12  exclusively to the child or children; and, in the case of

13  death of such spouse, 33 1/3  percent for each child.

14  However, upon the surviving spouse's remarriage, the spouse

15  shall be entitled to a lump-sum payment equal to 26 weeks of

16  compensation at the rate of 50 percent of the average weekly

17  wage as provided in s. 440.12(2), unless the $100,000 limit

18  provided in this paragraph is exceeded, in which case the

19  surviving spouse shall receive a lump-sum payment equal to the

20  remaining available benefits in lieu of any further indemnity

21  benefits.  In no case shall a surviving spouse's acceptance of

22  a lump-sum payment affect payment of death benefits to other

23  dependents.

24         3.  To the child or children, if there is no spouse, 33

25  1/3  percent for each child.

26         4.  To the parents, 25 percent to each, such

27  compensation to be paid during the continuance of dependency.

28         5.  To the brothers, sisters, and grandchildren, 15

29  percent for each brother, sister, or grandchild.

30         (c)  To the surviving spouse, payment of postsecondary

31  student fees for instruction at any area technical center

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 1  established under s. 1001.44 for up to 1,800 classroom hours

 2  or payment of student fees at any community college

 3  established under part III of chapter 1004 for up to 80

 4  semester hours. The spouse of a deceased state employee shall

 5  be entitled to a full waiver of such fees as provided in ss.

 6  1009.22 and 1009.23 in lieu of the payment of such fees. The

 7  benefits provided for in this paragraph shall be in addition

 8  to other benefits provided for in this section and shall

 9  terminate 7 years after the death of the deceased employee, or

10  when the total payment in eligible compensation under

11  paragraph (b) has been received.  To qualify for the

12  educational benefit under this paragraph, the spouse shall be

13  required to meet and maintain the regular admission

14  requirements of, and be registered at, such area technical

15  center or community college, and make satisfactory academic

16  progress as defined by the educational institution in which

17  the student is enrolled.

18         Section 32.  Subsection (1) of section 440.185, Florida

19  Statutes, is amended to read:

20         440.185  Notice of injury or death; reports; penalties

21  for violations.--

22         (1)  An employee who suffers an injury arising out of

23  and in the course of employment shall advise his or her

24  employer of the injury within 30 days after the date of or

25  initial manifestation of the injury. Failure to so advise the

26  employer shall bar a petition under this chapter unless:

27         (a)  The employer or the employer's agent had actual

28  knowledge of the injury;

29         (b)  The cause of the injury could not be identified

30  without a medical opinion and the employee advised the

31  employer within 30 days after obtaining a medical opinion

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 1  indicating that the injury arose out of and in the course of

 2  employment;

 3         (c)  The employer did not put its employees on notice

 4  of the requirements of this section by posting notice pursuant

 5  to s. 440.055; or

 6         (d)  The judge of compensation claims excuses such

 7  failure on the ground that for some satisfactory reason such

 8  notice could not be given. Exceptional circumstances, outside

 9  the scope of paragraph (a) or paragraph (b) justify such

10  failure.

11  

12  In the event of death arising out of and in the course of

13  employment, the requirements of this subsection shall be

14  satisfied by the employee's agent or estate. Documents

15  prepared by counsel in connection with litigation, including

16  but not limited to notices of appearance, petitions, motions,

17  or complaints, shall not constitute notice for purposes of

18  this section.

19         Section 33.  Subsection (2) of section 440.19, Florida

20  Statutes, is amended to read:

21         440.19  Time bars to filing petitions for benefits.--

22         (2)  Payment of any indemnity benefit or the furnishing

23  of remedial treatment, care, or attendance pursuant to either

24  a notice of injury or a petition for benefits shall toll the

25  limitations period set forth above for 2 years following 1

26  year from the date of such payment. This tolling period does

27  not apply to the issues of compensability, date of maximum

28  medical improvement, or permanent impairment.

29         Section 34.  Subsections (2) and (3) of section

30  440.381, Florida Statutes, are amended to read:

31  

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 1         440.381  Application for coverage; reporting payroll;

 2  payroll audit procedures; penalties.--

 3         (2)  The application must contain a statement that the

 4  filing of an application containing false, misleading, or

 5  incomplete information with the purpose of avoiding or

 6  reducing the amount of premiums for workers' compensation

 7  coverage is a felony of the third degree, punishable as

 8  provided in s. 775.082, s. 775.083, or s. 775.084. The

 9  application must contain a sworn statement by the employer

10  attesting to the accuracy of the information submitted and

11  acknowledging the provisions of former s. 440.37(4). The

12  application must contain written job descriptions completed by

13  the employer describing the job responsibilities of all forms

14  of employment for which the employer seeks coverage as

15  required by s. 440.38. The application must contain a sworn

16  statement by the agent attesting that the agent explained to

17  the employer or officer the classification codes that are used

18  for premium calculations and for the accuracy of the

19  classification codes used in accordance with the written job

20  descriptions provided by the employer.

21         (3)  The department shall establish by rule minimum

22  requirements for audits of payroll and classifications in

23  order to ensure that the appropriate premium is charged for

24  workers' compensation coverage. The rules shall ensure that

25  audits performed by both carriers and employers are adequate

26  to provide that all sources of payments to employees,

27  subcontractors, and independent contractors have been reviewed

28  and that the accuracy of classification of employees has been

29  verified. The rules shall provide that employers in all

30  classes other than the construction class be audited not less

31  frequently than biennially and may provide for more frequent

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 1  audits of employers in specified classifications based on

 2  factors such as amount of premium, type of business, loss

 3  ratios, or other relevant factors. In no event shall employers

 4  in the construction class, generating more than the amount of

 5  premium required to be experience rated, be audited less than

 6  annually. The annual audits required for construction classes

 7  shall consist of physical onsite audits.  Payroll verification

 8  audit rules must include, but need not be limited to, the use

 9  of state and federal reports of employee income, payroll and

10  other accounting records, certificates of insurance maintained

11  by subcontractors, and duties of employees. At the completion

12  of an audit, the employer or officer of the corporation and

13  the auditor must print and sign their names on the audit

14  document and attach proof of identification to the audit

15  document. Each audit document must contain a sworn statement

16  to be signed by the auditor which shall attest that the

17  requirements for audits of payroll and classifications as

18  established by the rules adopted by the Department of

19  Financial Services have been strictly complied with in the

20  performance of the audit. An auditor who fails to strictly

21  comply with the rules adopted by the department setting forth

22  the minimum requirements for audits of payroll and

23  classifications commits a felony of the third degree,

24  punishable as provided in s. 775.082, s. 775.083, or s.

25  775.084.

26         Section 35.  Section 440.591, Florida Statutes, is

27  amended to read:

28         440.591  Administrative procedure; rulemaking

29  authority; washouts.--

30         (1)  The division department, the agency, and the

31  Department of Education may adopt rules pursuant to ss.

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 1  120.536(1) and 120.54 to implement the provisions of this

 2  chapter conferring duties upon it.

 3         (2)  The division shall adopt rules to provide for a

 4  model settlement agreement that may be used in any washout

 5  agreement where the employee is represented by an attorney and

 6  that includes:

 7         (a)  The amount of the settlement;

 8         (b)  The amount allocated to past and future medical

 9  care which is potentially covered by Medicare;

10         (c)  The amount allocated to past and future medical

11  care which is not potentially covered by Medicare;

12         (d)  The amount of past indemnity benefits;

13         (e)  The amount of future indemnity benefits; and

14         (f)  The amount of child support owed by the employee,

15  if any, which will be deducted from the washout proceeds.

16         (3)  The washout of any workers' compensation case may

17  not be made contingent on the execution of a release of other

18  existing, or potential, employment rights.

19         (4)  Settlement agreements under this section shall be

20  reviewed by the judge of compensation claims to determine if

21  the settlement agreement complies with this section and the

22  rules adopted under this section, in which case the judge of

23  compensation claims shall approve the settlement.

24         Section 36.  Subsection (2) of section 627.062, Florida

25  Statutes, is amended to read:

26         627.062  Rate standards.--

27         (2)  As to all such classes of insurance:

28         (a)  Insurers or rating organizations shall establish

29  and use rates, rating schedules, or rating manuals to allow

30  the insurer a reasonable rate of return on such classes of

31  insurance written in this state.  A copy of rates, rating

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 1  schedules, rating manuals, premium credits or discount

 2  schedules, and surcharge schedules, and changes thereto, shall

 3  be filed with the department under one of the following

 4  procedures:

 5         1.  If the filing is made at least 90 days before the

 6  proposed effective date and the filing is not implemented

 7  during the department's review of the filing and any

 8  proceeding and judicial review, then such filing shall be

 9  considered a "file and use" filing.  In such case, the

10  department shall finalize its review by issuance of a notice

11  of intent to approve or a notice of intent to disapprove

12  within 90 days after receipt of the filing. The notice of

13  intent to approve and the notice of intent to disapprove

14  constitute agency action for purposes of the Administrative

15  Procedure Act. Requests for supporting information, requests

16  for mathematical or mechanical corrections, or notification to

17  the insurer by the department of its preliminary findings

18  shall not toll the 90-day period during any such proceedings

19  and subsequent judicial review. The rate shall be deemed

20  approved if the department does not issue a notice of intent

21  to approve or a notice of intent to disapprove within 90 days

22  after receipt of the filing.

23         2.  If the filing is not made in accordance with the

24  provisions of subparagraph 1., such filing shall be made as

25  soon as practicable, but no later than 30 days after the

26  effective date, and shall be considered a "use and file"

27  filing.  An insurer making a "use and file" filing is

28  potentially subject to an order by the department to return to

29  policyholders portions of rates found to be excessive, as

30  provided in paragraph (h).

31  

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 1         (b)  Upon receiving a rate filing, the department shall

 2  review the rate filing to determine if a rate is excessive,

 3  inadequate, or unfairly discriminatory.  In making that

 4  determination, the department shall, in accordance with

 5  generally accepted and reasonable actuarial techniques,

 6  consider the following factors:

 7         1.  Past and prospective loss experience within and

 8  without this state.

 9         2.  Past and prospective expenses.

10         3.  The degree of competition among insurers for the

11  risk insured.

12         4.  Investment income reasonably expected by the

13  insurer, consistent with the insurer's investment practices,

14  from investable premiums anticipated in the filing, plus any

15  other expected income from currently invested assets

16  representing the amount expected on unearned premium reserves

17  and loss reserves.  The department may promulgate rules

18  utilizing reasonable techniques of actuarial science and

19  economics to specify the manner in which insurers shall

20  calculate investment income attributable to such classes of

21  insurance written in this state and the manner in which such

22  investment income shall be used in the calculation of

23  insurance rates.  Such manner shall contemplate allowances for

24  an underwriting profit factor and full consideration of

25  investment income which produce a reasonable rate of return;

26  however, investment income from invested surplus shall not be

27  considered. The profit and contingency factor as specified in

28  the filing shall be utilized in computing excess profits in

29  conjunction with s. 627.0625.

30         5.  The reasonableness of the judgment reflected in the

31  filing.

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 1         6.  Dividends, savings, or unabsorbed premium deposits

 2  allowed or returned to Florida policyholders, members, or

 3  subscribers.

 4         7.  The adequacy of loss reserves.

 5         8.  The cost of reinsurance.

 6         9.  Trend factors, including trends in actual losses

 7  per insured unit for the insurer making the filing.

 8         10.  Conflagration and catastrophe hazards, if

 9  applicable.

10         11.  A reasonable margin for underwriting profit and

11  contingencies.

12         12.  The cost of medical services, if applicable.

13         13.  Other relevant factors which impact upon the

14  frequency or severity of claims or upon expenses.

15         (c)  In the case of fire insurance rates, consideration

16  shall be given to the availability of water supplies and the

17  experience of the fire insurance business during a period of

18  not less than the most recent 5-year period for which such

19  experience is available.

20         (d)  If conflagration or catastrophe hazards are given

21  consideration by an insurer in its rates or rating plan,

22  including surcharges and discounts, the insurer shall

23  establish a reserve for that portion of the premium allocated

24  to such hazard and shall maintain the premium in a catastrophe

25  reserve.  Any removal of such premiums from the reserve for

26  purposes other than paying claims associated with a

27  catastrophe or purchasing reinsurance for catastrophes shall

28  be subject to approval of the department.  Any ceding

29  commission received by an insurer purchasing reinsurance for

30  catastrophes shall be placed in the catastrophe reserve.

31  

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 1         (e)  After consideration of the rate factors provided

 2  in paragraphs (b), (c), and (d), a rate may be found by the

 3  department to be excessive, inadequate, or unfairly

 4  discriminatory based upon the following standards:

 5         1.  Rates shall be deemed excessive if they are likely

 6  to produce a profit from Florida business that is unreasonably

 7  high in relation to the risk involved in the class of business

 8  or if expenses are unreasonably high in relation to services

 9  rendered.

10         2.  Rates shall be deemed excessive if, among other

11  things, the rate structure established by a stock insurance

12  company provides for replenishment of surpluses from premiums,

13  when the replenishment is attributable to investment losses.

14         3.  Rates shall be deemed inadequate if they are

15  clearly insufficient, together with the investment income

16  attributable to them, to sustain projected losses and expenses

17  in the class of business to which they apply.

18         4.  A rating plan, including discounts, credits, or

19  surcharges, shall be deemed unfairly discriminatory if it

20  fails to clearly and equitably reflect consideration of the

21  policyholder's participation in a risk management program

22  adopted pursuant to s. 627.0625.

23         5.  A rate shall be deemed inadequate as to the premium

24  charged to a risk or group of risks if discounts or credits

25  are allowed which exceed a reasonable reflection of expense

26  savings and reasonably expected loss experience from the risk

27  or group of risks.

28         6.  A rate shall be deemed unfairly discriminatory as

29  to a risk or group of risks if the application of premium

30  discounts, credits, or surcharges among such risks does not

31  

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 1  bear a reasonable relationship to the expected loss and

 2  expense experience among the various risks.

 3         (f)  In reviewing a rate filing, the department may

 4  require the insurer to provide at the insurer's expense all

 5  information necessary to evaluate the condition of the company

 6  and the reasonableness of the filing according to the criteria

 7  enumerated in this section.

 8         (g)  The department may at any time review a rate,

 9  rating schedule, rating manual, or rate change; the pertinent

10  records of the insurer; and market conditions.  If the

11  department finds on a preliminary basis that a rate may be

12  excessive, inadequate, or unfairly discriminatory, the

13  department shall initiate proceedings to disapprove the rate

14  and shall so notify the insurer. However, the department may

15  not disapprove as excessive any rate for which it has given

16  final approval or which has been deemed approved for a period

17  of 1 year after the effective date of the filing unless the

18  department finds that a material misrepresentation or material

19  error was made by the insurer or was contained in the filing.

20  Upon being so notified, the insurer or rating organization

21  shall, within 60 days, file with the department all

22  information which, in the belief of the insurer or

23  organization, proves the reasonableness, adequacy, and

24  fairness of the rate or rate change.  The department shall

25  issue a notice of intent to approve or a notice of intent to

26  disapprove pursuant to the procedures of paragraph (a) within

27  90 days after receipt of the insurer's initial response.  In

28  such instances and in any administrative proceeding relating

29  to the legality of the rate, the insurer or rating

30  organization shall carry the burden of proof by a

31  preponderance of the evidence to show that the rate is not

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 1  excessive, inadequate, or unfairly discriminatory.  After the

 2  department notifies an insurer that a rate may be excessive,

 3  inadequate, or unfairly discriminatory, unless the department

 4  withdraws the notification, the insurer shall not alter the

 5  rate except to conform with the department's notice until the

 6  earlier of 120 days after the date the notification was

 7  provided or 180 days after the date of the implementation of

 8  the rate.  The department may, subject to chapter 120,

 9  disapprove without the 60-day notification any rate increase

10  filed by an insurer within the prohibited time period or

11  during the time that the legality of the increased rate is

12  being contested.

13         (h)  In the event the department finds that a rate or

14  rate change is excessive, inadequate, or unfairly

15  discriminatory, the department shall issue an order of

16  disapproval specifying that a new rate or rate schedule which

17  responds to the findings of the department be filed by the

18  insurer.  The department shall further order, for any "use and

19  file" filing made in accordance with subparagraph (a)2., that

20  premiums charged each policyholder constituting the portion of

21  the rate above that which was actuarially justified be

22  returned to such policyholder in the form of a credit or

23  refund. If the department finds that an insurer's rate or rate

24  change is inadequate, the new rate or rate schedule filed with

25  the department in response to such a finding shall be

26  applicable only to new or renewal business of the insurer

27  written on or after the effective date of the responsive

28  filing.

29         (i)  Except as otherwise specifically provided in this

30  chapter, the department shall not prohibit any insurer,

31  including any residual market plan or joint underwriting

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 1  association, from paying acquisition costs based on the full

 2  amount of premium, as defined in s. 627.403, applicable to any

 3  policy, or prohibit any such insurer from including the full

 4  amount of acquisition costs in a rate filing.

 5  

 6  The provisions of this subsection shall not apply to workers'

 7  compensation and employer's liability insurance and to motor

 8  vehicle insurance.

 9         Section 37.  Section 627.072, Florida Statutes, is

10  amended to read:

11         627.072  Making and use of rates.--

12         (1)  As to workers' compensation and employer's

13  liability insurance, the following factors shall be used in

14  the determination and fixing of rates:

15         (a)  The past loss experience and prospective loss

16  experience within and outside this state;

17         (b)  The conflagration and catastrophe hazards;

18         (c)  A reasonable margin for underwriting profit and

19  contingencies;

20         (d)  Dividends, savings, or unabsorbed premium deposits

21  allowed or returned by insurers to their policyholders,

22  members, or subscribers;

23         (e)  Investment income on unearned premium reserves and

24  loss reserves;

25         (f)  Past expenses and prospective expenses, both those

26  countrywide and those specifically applicable to this state;

27  and

28         (g)  All other relevant factors, including judgment

29  factors, within and outside this state.

30         (1)(2)  As to all rates which are subject to this part,

31  the systems of expense provisions included in the rates for

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 1  use by an insurer or group of insurers may differ from those

 2  of other insurers or groups of insurers to reflect the

 3  requirements of the operating methods of any such insurer or

 4  group with respect to any kind of insurance or with respect to

 5  any subdivision or combination thereof for which subdivision

 6  or combination separate expense provisions are applicable.

 7         (2)(3)  As to all rates which are subject to this part,

 8  risks may be grouped by classifications for the establishment

 9  of rates and minimum premiums.  Classification rates may be

10  modified to produce rates for individual risks in accordance

11  with rating plans which establish standards for measuring

12  variations in hazards or expense provisions, or both. Such

13  standards may measure any difference among risks that can be

14  demonstrated to have a probable effect upon losses or

15  expenses. Such classifications and modifications shall apply

16  to all risks under the same or substantially the same

17  circumstances or conditions.

18         (4)(a)  In the case of workers' compensation and

19  employer's liability insurance, the department shall consider

20  utilizing the following methodology in rate determinations:

21  Premiums, expenses, and expected claim costs would be

22  discounted to a common point of time, such as the initial

23  point of a policy year, in the determination of rates; the

24  cash-flow pattern of premiums, expenses, and claim costs would

25  be determined initially by using data from 8 to 10 of the

26  largest insurers writing workers' compensation insurance in

27  the state; such insurers may be selected for their statistical

28  ability to report the data on an accident-year basis and in

29  accordance with subparagraphs (b)1., 2., and 3., for at least

30  2 1/2  years; such a cash-flow pattern would be modified when

31  necessary in accordance with the data and whenever a radical

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 1  change in the payout pattern is expected in the policy year

 2  under consideration.

 3         (b)  If the methodology set forth in paragraph (a) is

 4  utilized, to facilitate the determination of such a cash-flow

 5  pattern methodology:

 6         1.  Each insurer shall include in its statistical

 7  reporting to the rating bureau and the department the accident

 8  year by calendar quarter data for paid-claim costs;

 9         2.  Each insurer shall submit financial reports to the

10  rating bureau and the department which shall include total

11  incurred claim amounts and paid-claim amounts by policy year

12  and by injury types as of December 31 of each calendar year;

13  and

14         3.  Each insurer shall submit to the rating bureau and

15  the department paid-premium data on an individual risk basis

16  in which risks are to be subdivided by premium size as

17  follows:

18  

19  Number of Risks in

20    Premium Range                          Standard Premium Size

21  

22  ...(to be filled in by carrier)...                   $300--999

23  ...(to be filled in by carrier)...                1,000--4,999

24  ...(to be filled in by carrier)...               5,000--49,999

25  ...(to be filled in by carrier)...              50,000--99,999

26  ...(to be filled in by carrier)...             100,000 or more

27  Total:

28         Section 38.  Subsections (1) and (4) of section

29  627.0645, Florida Statutes, are amended to read:

30         627.0645  Annual filings.--

31  

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 1         (1)  Each rating organization filing rates for, and

 2  each insurer writing, any line of property or casualty

 3  insurance to which this part applies, except:

 4         (a)  Workers' compensation and employer's liability

 5  insurance; or

 6         (b)  commercial property and casualty insurance as

 7  defined in s. 627.0625(1) other than commercial multiple line

 8  and commercial motor vehicle, shall make an annual base rate

 9  filing for each such line with the department no later than 12

10  months after its previous base rate filing, demonstrating that

11  its rates are not inadequate.

12         (4)  An insurer may satisfy the annual filing

13  requirements of this section by being a member or subscriber

14  of a licensed rating organization which complies with the

15  requirements of this section, except workers' compensation and

16  employer's liability insurance.

17         Section 39.  Subsection (1) of section 627.096, Florida

18  Statutes, is amended to read:

19         627.096  Workers' Compensation Rating Bureau.--

20         (1)  There is created within the department a Workers'

21  Compensation Rating Bureau, which shall make an investigation

22  and study of all insurers authorized to issue workers'

23  compensation and employer's liability coverage in this state.

24  Such bureau shall study the data, statistics, schedules, or

25  other information as it may deem necessary to assist and

26  advise the department in its review of filings made by or on

27  behalf of workers' compensation and employer's liability

28  insurers.  The department shall have the authority to

29  promulgate rules requiring all workers' compensation and

30  employer's liability insurers to submit to the rating bureau

31  any data, statistics, schedules, and other information deemed

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 1  necessary to the rating bureau's study and advisement. All

 2  data, statistics, schedules, or other information submitted

 3  to, or considered by, the Workers' Compensation Rating Bureau

 4  shall be a public record.

 5         Section 40.  Section 627.291, Florida Statutes, is

 6  amended to read:

 7         627.291  Information to be furnished insureds; appeal

 8  by insureds; workers' compensation and employer's liability

 9  insurances.--

10         (1)  As to workers' compensation and employer's

11  liability insurances, every rating organization and every

12  insurer that which makes its own rates shall, within a

13  reasonable time after receiving written request therefor and

14  upon payment of such reasonable charge as it may make, furnish

15  to any insured affected by a rate made by it, or to the

16  authorized representative of such insured, all pertinent

17  information as to such rate.

18         (2)  As to workers' compensation and employer's

19  liability insurances, every rating organization and every

20  insurer that which makes its own rates shall provide within

21  this state reasonable means whereby any person aggrieved by

22  the application of its rating system may be heard, in person

23  or by his or her authorized representative, on his or her

24  written request to review the manner in which such rating

25  system has been applied in connection with the insurance

26  afforded him or her.  If the rating organization or insurer

27  fails to grant or rejects such request within 30 days after it

28  is made, the applicant may proceed in the same manner as if

29  his or her application had been rejected.  Any party affected

30  by the action of such rating organization or insurer on such

31  request may, within 30 days after written notice of such

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 1  action, appeal to the department, which may affirm or reverse

 2  such action.

 3         Section 41.  Sections 627.091, 627.101, 627.151,

 4  627.211, and 627.281, Florida Statutes, are repealed.

 5         Section 42.  This act shall take effect July 1, 2003.

 6  

 7            *****************************************

 8                          SENATE SUMMARY

 9    Revises laws governing workers' compensation insurance.
      Imposes as assessment on the deposits, premiums, and
10    assessments of insurance carriers and self-insurers who
      provide workers' compensation insurance to fund the
11    Florida Employers Mutual Insurance Company. Creates the
      Florida Employers Mutual Insurance Company as a
12    not-for-profit company to provide workers' compensation
      insurance and employer's liability coverage. Provides for
13    a board of directors of the company. Provides for the
      board to establish insurance rates. Authorizes insurance
14    agents or brokers licensed in this state to sell workers'
      compensation insurance policies for the company.
15    Authorizes the board to issue bonds.

16  
      Prohibits discrimination in the payment of dividends by
17    insurance companies. Provides that it is an unfair trade
      practice to condition payment of a dividend upon renewal
18    of a policy. Requires uniform rating plans. Requires that
      the Chief Financial Officer monitor the degree of
19    competition in the workers' compensation market.

20  
      Revises requirements for electing certain exemptions.
21    Provides for an increase in compensation if the employer
      knowingly refused or failed to provide a safety appliance
22    or observe a safety rule. Revises requirements for
      contesting a disallowance of payment. Revises
23    reimbursement allowances. Increases the amount of
      compensation for funeral expenses and death. Increases
24    the period for filing a petition for benefits. Requires
      the Division of Workers' Compensation to adopt rules for
25    a model settlement agreement. (See bill for details.)

26  

27  

28  

29  

30  

31  

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