SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
CHAMBER ACTION
Senate House
.
.
1 1/F/2R .
05/21/2003 01:56 PM .
2 .
.
3 .
.
4 ______________________________________________________________
5
6
7
8
9
10 ______________________________________________________________
11 Senator Campbell moved the following amendment:
12
13 Senate Amendment (with title amendment)
14 Delete everything after the enacting clause
15
16 and insert:
17 Section 1. Effective upon this act becoming a law,
18 subsections (15), (38), (40), (41), and (42) of section
19 440.02, Florida Statutes, are amended to read:
20 440.02 Definitions.--When used in this chapter, unless
21 the context clearly requires otherwise, the following terms
22 shall have the following meanings:
23 (15)(a) "Employee" means any person engaged in any
24 employment under any appointment or contract of hire or
25 apprenticeship, express or implied, oral or written, whether
26 lawfully or unlawfully employed, and includes, but is not
27 limited to, aliens and minors.
28 (b) "Employee" includes any person who is an officer
29 of a corporation and who performs services for remuneration
30 for such corporation within this state, whether or not such
31 services are continuous.
1
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 1. Any officer of a corporation may elect to be exempt
2 from this chapter by filing written notice of the election
3 with the department as provided in s. 440.05.
4 2. As to officers of a corporation who are actively
5 engaged in the construction industry, no more than three
6 officers may elect to be exempt from this chapter by filing
7 written notice of the election with the department as provided
8 in s. 440.05. However, any exemption obtained by a corporate
9 officer of a corporation actively engaged in the construction
10 industry is not applicable with respect to any commercial
11 building project estimated to be valued at $250,000 or
12 greater.
13 3. An officer of a corporation who elects to be exempt
14 from this chapter by filing a written notice of the election
15 with the department as provided in s. 440.05 is not an
16 employee.
17
18 Services are presumed to have been rendered to the corporation
19 if the officer is compensated by other than dividends upon
20 shares of stock of the corporation which the officer owns.
21 (c)1. "Employee" includes a sole proprietor or a
22 partner who devotes full time to the proprietorship or
23 partnership and, except as provided in this paragraph, elects
24 to be included in the definition of employee by filing notice
25 thereof as provided in s. 440.05. Partners or sole proprietors
26 actively engaged in the construction industry are considered
27 employees unless they elect to be excluded from the definition
28 of employee by filing written notice of the election with the
29 department as provided in s. 440.05. However, no more than
30 three partners in a partnership that is actively engaged in
31 the construction industry may elect to be excluded. A sole
2
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 proprietor or partner who is actively engaged in the
2 construction industry and who elects to be exempt from this
3 chapter by filing a written notice of the election with the
4 department as provided in s. 440.05 is not an employee. For
5 purposes of this chapter, an independent contractor is an
6 employee unless he or she meets all of the conditions set
7 forth in subparagraph (d)1.
8 2. Notwithstanding the provisions of subparagraph 1.,
9 the term "employee" includes a sole proprietor or partner
10 actively engaged in the construction industry with respect to
11 any commercial building project estimated to be valued at
12 $250,000 or greater. Any exemption obtained is not applicable,
13 with respect to work performed at such a commercial building
14 project.
15 (d) "Employee" does not include:
16 1. An independent contractor, if:
17 a. The independent contractor maintains a separate
18 business with his or her own work facility, truck, equipment,
19 materials, or similar accommodations;
20 b. The independent contractor holds or has applied for
21 a federal employer identification number, unless the
22 independent contractor is a sole proprietor who is not
23 required to obtain a federal employer identification number
24 under state or federal requirements;
25 c. The independent contractor performs or agrees to
26 perform specific services or work for specific amounts of
27 money and controls the means of performing the services or
28 work;
29 d. The independent contractor incurs the principal
30 expenses related to the service or work that he or she
31 performs or agrees to perform;
3
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 e. The independent contractor is responsible for the
2 satisfactory completion of work or services that he or she
3 performs or agrees to perform and is or could be held liable
4 for a failure to complete the work or services;
5 f. The independent contractor receives compensation
6 for work or services performed for a commission or on a
7 per-job or competitive-bid basis and not on any other basis;
8 g. The independent contractor may realize a profit or
9 suffer a loss in connection with performing work or services;
10 h. The independent contractor has continuing or
11 recurring business liabilities or obligations; and
12 i. The success or failure of the independent
13 contractor's business depends on the relationship of business
14 receipts to expenditures.
15
16 However, the determination as to whether an individual
17 included in the Standard Industrial Classification Manual of
18 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,
19 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,
20 2448, or 2449, or a newspaper delivery person, is an
21 independent contractor is governed not by the criteria in this
22 paragraph but by common-law principles, giving due
23 consideration to the business activity of the individual.
24 Notwithstanding the provisions of this paragraph or any other
25 provision of this chapter, with respect to any commercial
26 building project estimated to be valued at $250,000 or
27 greater, a person who is actively engaged in the construction
28 industry is not an independent contractor and is either an
29 employer or an employee who may not be exempt from the
30 coverage requirements of this chapter.
31 2. A real estate salesperson or agent, if that person
4
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 agrees, in writing, to perform for remuneration solely by way
2 of commission.
3 3. Bands, orchestras, and musical and theatrical
4 performers, including disk jockeys, performing in licensed
5 premises as defined in chapter 562, if a written contract
6 evidencing an independent contractor relationship is entered
7 into before the commencement of such entertainment.
8 4. An owner-operator of a motor vehicle who transports
9 property under a written contract with a motor carrier which
10 evidences a relationship by which the owner-operator assumes
11 the responsibility of an employer for the performance of the
12 contract, if the owner-operator is required to furnish the
13 necessary motor vehicle equipment and all costs incidental to
14 the performance of the contract, including, but not limited
15 to, fuel, taxes, licenses, repairs, and hired help; and the
16 owner-operator is paid a commission for transportation service
17 and is not paid by the hour or on some other time-measured
18 basis.
19 5. A person whose employment is both casual and not in
20 the course of the trade, business, profession, or occupation
21 of the employer.
22 6. A volunteer, except a volunteer worker for the
23 state or a county, municipality, or other governmental entity.
24 A person who does not receive monetary remuneration for
25 services is presumed to be a volunteer unless there is
26 substantial evidence that a valuable consideration was
27 intended by both employer and employee. For purposes of this
28 chapter, the term "volunteer" includes, but is not limited to:
29 a. Persons who serve in private nonprofit agencies and
30 who receive no compensation other than expenses in an amount
31 less than or equivalent to the standard mileage and per-diem
5
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 expenses provided to salaried employees in the same agency or,
2 if such agency does not have salaried employees who receive
3 mileage and per diem, then such volunteers who receive no
4 compensation other than expenses in an amount less than or
5 equivalent to the customary mileage and per diem paid to
6 salaried workers in the community as determined by the
7 department; and
8 b. Volunteers participating in federal programs
9 established under Pub. L. No. 93-113.
10 7. Any officer of a corporation who elects to be
11 exempt from this chapter.
12 8. A sole proprietor or officer of a corporation who
13 actively engages in the construction industry, and a partner
14 in a partnership that is actively engaged in the construction
15 industry, who elects to be exempt from the provisions of this
16 chapter. Such sole proprietor, officer, or partner is not an
17 employee for any reason until the notice of revocation of
18 election filed pursuant to s. 440.05 is effective.
19 9. An exercise rider who does not work for a single
20 horse farm or breeder, and who is compensated for riding on a
21 case-by-case basis, provided a written contract is entered
22 into prior to the commencement of such activity which
23 evidences that an employee/employer relationship does not
24 exist.
25 10. A taxicab, limousine, or other passenger
26 vehicle-for-hire driver who operates said vehicles pursuant to
27 a written agreement with a company which provides any
28 dispatch, marketing, insurance, communications, or other
29 services under which the driver and any fees or charges paid
30 by the driver to the company for such services are not
31 conditioned upon, or expressed as a proportion of, fare
6
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 revenues.
2 11. A person who performs services as a sports
3 official for an entity sponsoring an interscholastic sports
4 event or for a public entity or private, nonprofit
5 organization that sponsors an amateur sports event. For
6 purposes of this subparagraph, such a person is an independent
7 contractor. For purposes of this subparagraph, the term
8 "sports official" means any person who is a neutral
9 participant in a sports event, including, but not limited to,
10 umpires, referees, judges, linespersons, scorekeepers, or
11 timekeepers. This subparagraph does not apply to any person
12 employed by a district school board who serves as a sports
13 official as required by the employing school board or who
14 serves as a sports official as part of his or her
15 responsibilities during normal school hours.
16 (38) "Catastrophic injury" means a permanent
17 impairment constituted by:
18 (a) Spinal cord injury involving severe paralysis of
19 an arm, a leg, or the trunk;
20 (b) Amputation of an arm, a hand, a foot, or a leg
21 involving the effective loss of use of that appendage;
22 (c) Severe brain or closed-head injury as evidenced
23 by:
24 1. Severe sensory or motor disturbances;
25 2. Severe communication disturbances;
26 3. Severe complex integrated disturbances of cerebral
27 function;
28 4. Severe episodic neurological disorders; or
29 5. Other severe brain and closed-head injury
30 conditions at least as severe in nature as any condition
31 provided in subparagraphs 1.-4.;
7
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 (d) Second-degree or third-degree burns of 25 percent
2 or more of the total body surface or third-degree burns of 5
3 percent or more to the face and hands; or
4 (e) Total or industrial blindness; or
5 (f) Any other injury that would otherwise qualify
6 under this chapter of a nature and severity that would qualify
7 an employee to receive disability income benefits under Title
8 II or supplemental security income benefits under Title XVI of
9 the federal Social Security Act as the Social Security Act
10 existed on July 1, 1992, without regard to any time
11 limitations provided under that act.
12 (40) "Statement," for the purposes of ss. 440.105 and
13 440.106, shall include the exact fraud statement language in
14 s. 440.105(7). This requirement includes, but is not limited
15 to, any notice, representation, statement, proof of injury,
16 bill for services, diagnosis, prescription, hospital or doctor
17 record, X ray, test result, or other evidence of loss, injury,
18 or expense.
19 (41) "Commercial building" means any building or
20 structure intended for commercial or industrial use, or any
21 building or structure intended for multifamily use of more
22 than four dwelling units, as well as any accessory use
23 structures constructed in conjunction with the principal
24 structure. The term, "commercial building," does not include
25 the conversion of any existing residential building to a
26 commercial building.
27 (42) "Residential building" means any building or
28 structure intended for residential use containing four or
29 fewer dwelling units and any structures intended as an
30 accessory use to the residential structure.
31 Section 2. Effective January 1, 2004, subsections (8),
8
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 (15), and (16) of section 440.02, Florida Statutes, as amended
2 by this act, are amended to read:
3 440.02 Definitions.--When used in this chapter, unless
4 the context clearly requires otherwise, the following terms
5 shall have the following meanings:
6 (8) "Construction industry" means for-profit
7 activities involving the carrying out of any building,
8 clearing, filling, excavation, or substantial improvement in
9 the size or use of any structure or the appearance of any
10 land. When appropriate to the context, "construction" refers
11 to the act of construction or the result of construction.
12 However, "construction" does shall not mean a homeowner's
13 landowner's act of construction or the result of a
14 construction upon his or her own premises, provided such
15 premises are not intended to be sold, or resold, or leased by
16 the owner within 1 year after the commencement of
17 construction. The division may, by rule, establish standard
18 industrial classification codes and definitions thereof which
19 meet the criteria of the term "construction industry" as set
20 forth in this section.
21 (15)(a) "Employee" means any person who receives
22 remuneration from an employer for the performance of any work
23 or service while engaged in any employment under any
24 appointment or contract for of hire or apprenticeship, express
25 or implied, oral or written, whether lawfully or unlawfully
26 employed, and includes, but is not limited to, aliens and
27 minors.
28 (b) "Employee" includes any person who is an officer
29 of a corporation and who performs services for remuneration
30 for such corporation within this state, whether or not such
31 services are continuous.
9
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 1. Any officer of a corporation may elect to be exempt
2 from this chapter by filing written notice of the election
3 with the department as provided in s. 440.05.
4 2. As to officers of a corporation who are actively
5 engaged in the construction industry, no more than three
6 officers of a corporation or of any group of affiliated
7 corporations may elect to be exempt from this chapter by
8 filing written notice of the election with the department as
9 provided in s. 440.05. Officers must be shareholders, each
10 owning at least 10 percent of the stock of such corporation
11 and listed as an officer of such corporation with the Division
12 of Corporations of the Department of State, in order to elect
13 exemptions under this chapter. For purposes of this
14 subparagraph, the term "affiliated" means and includes one or
15 more corporations or entities, any one of which is a
16 corporation engaged in the construction industry, under the
17 same or substantially the same control of a group of business
18 entities which are connected or associated so that one entity
19 controls or has the power to control each of the other
20 business entities. The term "affiliated" includes, but is not
21 limited to, the officers, directors, executives, shareholders
22 active in management, employees, and agents of the affiliated
23 corporation. The ownership by one business entity of a
24 controlling interest in another business entity or a pooling
25 of equipment or income among business entities shall be prima
26 facie evidence that one business is affiliated with the other.
27 3. An officer of a corporation who elects to be exempt
28 from this chapter by filing a written notice of the election
29 with the department as provided in s. 440.05 is not an
30 employee.
31
10
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 Services are presumed to have been rendered to the corporation
2 if the officer is compensated by other than dividends upon
3 shares of stock of the corporation which the officer owns.
4 (c) "Employee" includes:
5 1. A sole proprietor or a partner who is not engaged
6 in the construction industry, devotes full time to the
7 proprietorship or partnership, and, except as provided in this
8 paragraph, elects to be included in the definition of employee
9 by filing notice thereof as provided in s. 440.05. Partners or
10 sole proprietors actively engaged in the construction industry
11 are considered employees unless they elect to be excluded from
12 the definition of employee by filing written notice of the
13 election with the department as provided in s. 440.05.
14 However, no more than three partners in a partnership that is
15 actively engaged in the construction industry may elect to be
16 excluded. A sole proprietor or partner who is actively engaged
17 in the construction industry and who elects to be exempt from
18 this chapter by filing a written notice of the election with
19 the department as provided in s. 440.05 is not an employee.
20 For purposes of this chapter, an independent contractor is an
21 employee unless he or she meets all of the conditions set
22 forth in subparagraph (d)1.
23 2. All persons who are being paid by a construction
24 contractor as a subcontractor, unless the subcontractor has
25 validly elected an exemption as permitted by this chapter, or
26 has otherwise secured the payment of compensation coverage as
27 a subcontractor, consistent with s. 440.10, for work performed
28 by or as a subcontractor.
29 3. An independent contractor working or performing
30 services in the construction industry.
31 4. A sole proprietor who engages in the construction
11
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 industry and a partner or partnership that is engaged in the
2 construction industry.
3 (d) "Employee" does not include:
4 1. An independent contractor who is not engaged in the
5 construction industry., if:
6 a. In order to meet the definition of independent
7 contractor, at least four of the following criteria must be
8 met:
9 (I) The independent contractor maintains a separate
10 business with his or her own work facility, truck, equipment,
11 materials, or similar accommodations;
12 (II) The independent contractor holds or has applied
13 for a federal employer identification number, unless the
14 independent contractor is a sole proprietor who is not
15 required to obtain a federal employer identification number
16 under state or federal regulations;
17 (III) The independent contractor receives compensation
18 for services rendered or work performed and such compensation
19 is paid to a business rather than to an individual;
20 (IV) The independent contractor holds one or more bank
21 accounts in the name of the business entity for purposes of
22 paying business expenses or other expenses related to services
23 rendered or work performed for compensation;
24 (V) The independent contractor performs work or is
25 able to perform work for any entity in addition to or besides
26 the employer at his or her own election without the necessity
27 of completing an employment application or process; or
28 (VI) The independent contractor receives compensation
29 for work or services rendered on a competitive-bid basis or
30 completion of a task or a set of tasks as defined by a
31 contractual agreement, unless such contractual agreement
12
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 expressly states that an employment relationship exists. The
2 independent contractor maintains a separate business with his
3 or her own work facility, truck, equipment, materials, or
4 similar accommodations;
5 b. If four of the criteria listed in sub-subparagraph
6 a. do not exist, an individual may still be presumed to be an
7 independent contractor and not an employee based on full
8 consideration of the nature of the individual situation with
9 regard to satisfying any of the following conditions:
10 (I) The independent contractor performs or agrees to
11 perform specific services or work for a specific amount of
12 money and controls the means of performing the services or
13 work.
14 (II) The independent contractor incurs the principal
15 expenses related to the service or work that he or she
16 performs or agrees to perform.
17 (III) The independent contractor is responsible for
18 the satisfactory completion of the work or services that he or
19 she performs or agrees to perform.
20 (IV) The independent contractor receives compensation
21 for work or services performed for a commission or on a
22 per-job basis and not on any other basis.
23 (V) The independent contractor may realize a profit or
24 suffer a loss in connection with performing work or services.
25 (VI) The independent contractor has continuing or
26 recurring business liabilities or obligations.
27 (VII) The success or failure of the independent
28 contractor's business depends on the relationship of business
29 receipts to expenditures. The independent contractor holds or
30 has applied for a federal employer identification number,
31 unless the independent contractor is a sole proprietor who is
13
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 not required to obtain a federal employer identification
2 number under state or federal requirements;
3 c. Notwithstanding anything to the contrary in this
4 subparagraph, an individual claiming to be an independent
5 contractor has the burden of proving that he or she is an
6 independent contractor for purposes of this chapter. The
7 independent contractor performs or agrees to perform specific
8 services or work for specific amounts of money and controls
9 the means of performing the services or work;
10 d. The independent contractor incurs the principal
11 expenses related to the service or work that he or she
12 performs or agrees to perform;
13 e. The independent contractor is responsible for the
14 satisfactory completion of work or services that he or she
15 performs or agrees to perform and is or could be held liable
16 for a failure to complete the work or services;
17 f. The independent contractor receives compensation
18 for work or services performed for a commission or on a
19 per-job or competitive-bid basis and not on any other basis;
20 g. The independent contractor may realize a profit or
21 suffer a loss in connection with performing work or services;
22 h. The independent contractor has continuing or
23 recurring business liabilities or obligations; and
24 i. The success or failure of the independent
25 contractor's business depends on the relationship of business
26 receipts to expenditures.
27
28 However, the determination as to whether an individual
29 included in the Standard Industrial Classification Manual of
30 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,
31 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,
14
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 2448, or 2449, or a newspaper delivery person, is an
2 independent contractor is governed not by the criteria in this
3 paragraph but by common-law principles, giving due
4 consideration to the business activity of the individual.
5 2. A real estate salesperson or agent, if that person
6 agrees, in writing, to perform for remuneration solely by way
7 of commission.
8 3. Bands, orchestras, and musical and theatrical
9 performers, including disk jockeys, performing in licensed
10 premises as defined in chapter 562, if a written contract
11 evidencing an independent contractor relationship is entered
12 into before the commencement of such entertainment.
13 4. An owner-operator of a motor vehicle who transports
14 property under a written contract with a motor carrier which
15 evidences a relationship by which the owner-operator assumes
16 the responsibility of an employer for the performance of the
17 contract, if the owner-operator is required to furnish the
18 necessary motor vehicle equipment and all costs incidental to
19 the performance of the contract, including, but not limited
20 to, fuel, taxes, licenses, repairs, and hired help; and the
21 owner-operator is paid a commission for transportation service
22 and is not paid by the hour or on some other time-measured
23 basis.
24 5. A person whose employment is both casual and not in
25 the course of the trade, business, profession, or occupation
26 of the employer.
27 6. A volunteer, except a volunteer worker for the
28 state or a county, municipality, or other governmental entity.
29 A person who does not receive monetary remuneration for
30 services is presumed to be a volunteer unless there is
31 substantial evidence that a valuable consideration was
15
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 intended by both employer and employee. For purposes of this
2 chapter, the term "volunteer" includes, but is not limited to:
3 a. Persons who serve in private nonprofit agencies and
4 who receive no compensation other than expenses in an amount
5 less than or equivalent to the standard mileage and per diem
6 expenses provided to salaried employees in the same agency or,
7 if such agency does not have salaried employees who receive
8 mileage and per diem, then such volunteers who receive no
9 compensation other than expenses in an amount less than or
10 equivalent to the customary mileage and per diem paid to
11 salaried workers in the community as determined by the
12 department; and
13 b. Volunteers participating in federal programs
14 established under Pub. L. No. 93-113.
15 7. Unless otherwise prohibited by this chapter, any
16 officer of a corporation who elects to be exempt from this
17 chapter. Such officer is not an employee for any reason under
18 this chapter until the notice of revocation of election filed
19 pursuant to s. 440.05 is effective.
20 8. An a sole proprietor or officer of a corporation
21 who actively engages in the construction industry, and a
22 partner in a partnership that is actively engaged in the
23 construction industry, who elects to be exempt from the
24 provisions of this chapter, as otherwise permitted by this
25 chapter. Such sole proprietor, officer, or partner is not an
26 employee for any reason until the notice of revocation of
27 election filed pursuant to s. 440.05 is effective.
28 9. An exercise rider who does not work for a single
29 horse farm or breeder, and who is compensated for riding on a
30 case-by-case basis, provided a written contract is entered
31 into prior to the commencement of such activity which
16
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 evidences that an employee/employer relationship does not
2 exist.
3 10. A taxicab, limousine, or other passenger
4 vehicle-for-hire driver who operates said vehicles pursuant to
5 a written agreement with a company which provides any
6 dispatch, marketing, insurance, communications, or other
7 services under which the driver and any fees or charges paid
8 by the driver to the company for such services are not
9 conditioned upon, or expressed as a proportion of, fare
10 revenues.
11 11. A person who performs services as a sports
12 official for an entity sponsoring an interscholastic sports
13 event or for a public entity or private, nonprofit
14 organization that sponsors an amateur sports event. For
15 purposes of this subparagraph, such a person is an independent
16 contractor. For purposes of this subparagraph, the term
17 "sports official" means any person who is a neutral
18 participant in a sports event, including, but not limited to,
19 umpires, referees, judges, linespersons, scorekeepers, or
20 timekeepers. This subparagraph does not apply to any person
21 employed by a district school board who serves as a sports
22 official as required by the employing school board or who
23 serves as a sports official as part of his or her
24 responsibilities during normal school hours.
25 12. Medicaid-enrolled clients under chapter 393 who
26 are excluded from the definition of employment under s.
27 443.036(21)(d)5. and served by Adult Day Training Services
28 under the Home and Community-Based Medicaid Waiver program in
29 a sheltered workshop setting licensed by the United States
30 Department of Labor for the purpose of training and earning
31 less than the federal hourly minimum wage.
17
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 (16)(a) "Employer" means the state and all political
2 subdivisions thereof, all public and quasi-public corporations
3 therein, every person carrying on any employment, and the
4 legal representative of a deceased person or the receiver or
5 trustees of any person. "Employer" also includes employment
6 agencies, employee leasing companies, and similar agents who
7 provide employees to other persons. If the employer is a
8 corporation, parties in actual control of the corporation,
9 including, but not limited to, the president, officers who
10 exercise broad corporate powers, directors, and all
11 shareholders who directly or indirectly own a controlling
12 interest in the corporation, are considered the employer for
13 the purposes of ss. 440.105, and 440.106, and 440.107.
14 (b) A homeowner shall not be considered the employer
15 of persons hired by the homeowner to carry out construction on
16 the homeowner's own premises if those premises are not
17 intended for immediate lease, sale, or resale.
18 (c) Facilities serving individuals under subparagraph
19 (15)(d)12. shall be considered agents of the Agency for Health
20 Care Administration as it relates to providing Adult Day
21 Training Services under the Home and Community-Based Medicaid
22 Waiver program and not employers or third parties for the
23 purpose of limiting or denying Medicaid benefits.
24 Section 3. Effective January 1, 2004, subsections (3),
25 (4), (6), (10), (11), and (12) of section 440.05, Florida
26 Statutes, are amended, present subsection (13) is renumbered
27 as subsection (11) and amended, and new subsections (12),
28 (13), (14), and (15) are added to that section, to read:
29 440.05 Election of exemption; revocation of election;
30 notice; certification.--
31 (3) Each sole proprietor, partner, or officer of a
18
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 corporation who is actively engaged in the construction
2 industry and who elects an exemption from this chapter or who,
3 after electing such exemption, revokes that exemption, must
4 mail a written notice to such effect to the department on a
5 form prescribed by the department. The notice of election to
6 be exempt from the provisions of this chapter must be
7 notarized and under oath. The notice of election to be exempt
8 which is submitted to the department by the sole proprietor,
9 partner, or officer of a corporation who is allowed to claim
10 an exemption as provided by this chapter must list the name,
11 federal tax identification number, social security number, all
12 certified or registered licenses issued pursuant to chapter
13 489 held by the person seeking the exemption, a copy of
14 relevant documentation as to employment status filed with the
15 Internal Revenue Service as specified by the department, a
16 copy of the relevant occupational license in the primary
17 jurisdiction of the business, and, for corporate officers and
18 partners, the registration number of the corporation or
19 partnership filed with the Division of Corporations of the
20 Department of State along with a copy of the stock certificate
21 evidencing the required ownership under this chapter. The
22 notice of election to be exempt must identify each sole
23 proprietorship, partnership, or corporation that employs the
24 person electing the exemption and must list the social
25 security number or federal tax identification number of each
26 such employer and the additional documentation required by
27 this section. In addition, the notice of election to be exempt
28 must provide that the sole proprietor, partner, or officer
29 electing an exemption is not entitled to benefits under this
30 chapter, must provide that the election does not exceed
31 exemption limits for officers and partnerships provided in s.
19
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 440.02, and must certify that any employees of the corporation
2 whose sole proprietor, partner, or officer elects electing an
3 exemption are covered by workers' compensation insurance. Upon
4 receipt of the notice of the election to be exempt, receipt of
5 all application fees, and a determination by the department
6 that the notice meets the requirements of this subsection, the
7 department shall issue a certification of the election to the
8 sole proprietor, partner, or officer, unless the department
9 determines that the information contained in the notice is
10 invalid. The department shall revoke a certificate of election
11 to be exempt from coverage upon a determination by the
12 department that the person does not meet the requirements for
13 exemption or that the information contained in the notice of
14 election to be exempt is invalid. The certificate of election
15 must list the name names of the sole proprietorship,
16 partnership, or corporation listed in the request for
17 exemption. A new certificate of election must be obtained each
18 time the person is employed by a new sole proprietorship,
19 partnership, or different corporation that is not listed on
20 the certificate of election. A copy of the certificate of
21 election must be sent to each workers' compensation carrier
22 identified in the request for exemption. Upon filing a notice
23 of revocation of election, an a sole proprietor, partner, or
24 officer who is a subcontractor or an officer of a corporate
25 subcontractor must notify her or his contractor. Upon
26 revocation of a certificate of election of exemption by the
27 department, the department shall notify the workers'
28 compensation carriers identified in the request for exemption.
29 (4) The notice of election to be exempt from the
30 provisions of this chapter must contain a notice that clearly
31 states in substance the following: "Any person who, knowingly
20
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 and with intent to injure, defraud, or deceive the department
2 or any employer or employee, insurance company, or any other
3 person purposes program, files a notice of election to be
4 exempt containing any false or misleading information is
5 guilty of a felony of the third degree." Each person filing a
6 notice of election to be exempt shall personally sign the
7 notice and attest that he or she has reviewed, understands,
8 and acknowledges the foregoing notice.
9 (6) A construction industry certificate of election to
10 be exempt which is issued in accordance with this section
11 shall be valid for 2 years after the effective date stated
12 thereon. Both the effective date and the expiration date must
13 be listed on the face of the certificate by the department.
14 The construction industry certificate must expire at midnight,
15 2 years from its issue date, as noted on the face of the
16 exemption certificate. Any person who has received from the
17 division a construction industry certificate of election to be
18 exempt which is in effect on December 31, 1998, shall file a
19 new notice of election to be exempt by the last day in his or
20 her birth month following December 1, 1998. A construction
21 industry certificate of election to be exempt may be revoked
22 before its expiration by the sole proprietor, partner, or
23 officer for whom it was issued or by the department for the
24 reasons stated in this section. At least 60 days prior to the
25 expiration date of a construction industry certificate of
26 exemption issued after December 1, 1998, the department shall
27 send notice of the expiration date and an application for
28 renewal to the certificateholder at the address on the
29 certificate.
30 (10) Each sole proprietor, partner, or officer of a
31 corporation who is actively engaged in the construction
21
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 industry and who elects an exemption from this chapter shall
2 maintain business records as specified by the division by
3 rule, which rules must include the provision that any
4 corporation with exempt officers and any partnership actively
5 engaged in the construction industry with exempt partners must
6 maintain written statements of those exempted persons
7 affirmatively acknowledging each such individual's exempt
8 status.
9 (11) Any sole proprietor or partner actively engaged
10 in the construction industry claiming an exemption under this
11 section shall maintain a copy of his or her federal income tax
12 records for each of the immediately previous 3 years in which
13 he or she claims an exemption. Such federal income tax records
14 must include a complete copy of the following for each year in
15 which an exemption is claimed:
16 (a) For sole proprietors, a copy of Federal Income Tax
17 Form 1040 and its accompanying Schedule C;
18 (b) For partners, a copy of the partner's Federal
19 Income Tax Schedule K-1 (Form 1065) and Federal Income Tax
20 Form 1040 and its accompanying Schedule E.
21
22 A sole proprietor or partner shall produce, upon request by
23 the division, a copy of those documents together with a
24 statement by the sole proprietor or partner that the tax
25 records provided are true and accurate copies of what the sole
26 proprietor or partner has filed with the federal Internal
27 Revenue Service. The statement must be signed under oath by
28 the sole proprietor or partner and must be notarized. The
29 division shall issue a stop-work order under s. 440.107(5) to
30 any sole proprietor or partner who fails or refuses to produce
31 a copy of the tax records and affidavit required under this
22
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 paragraph to the division within 3 business days after the
2 request is made.
3 (12) For those sole proprietors or partners that have
4 not been in business long enough to provide the information
5 required of an established business, the division shall
6 require such sole proprietor or partner to provide copies of
7 the most recently filed Federal Income Tax Form 1040. The
8 division shall establish by rule such other criteria to show
9 that the sole proprietor or partner intends to engage in a
10 legitimate enterprise within the construction industry and is
11 not otherwise attempting to evade the requirements of this
12 section. The division shall establish by rule the form and
13 format of financial information required to be submitted by
14 such employers.
15 (11)(13) Any corporate officer permitted by this
16 chapter to claim claiming an exemption under this section must
17 be listed on the records of this state's Secretary of State,
18 Division of Corporations, as a corporate officer. If the
19 person who claims an exemption as a corporate officer is not
20 so listed on the records of the Secretary of State, the
21 individual must provide to the division, upon request by the
22 division, a notarized affidavit stating that the individual is
23 a bona fide officer of the corporation and stating the date
24 his or her appointment or election as a corporate officer
25 became or will become effective. The statement must be signed
26 under oath by both the officer and the president or chief
27 operating officer of the corporation and must be notarized.
28 The division shall issue a stop-work order under s. 440.107(1)
29 to any corporation who employs a person who claims to be
30 exempt as a corporate officer but who fails or refuses to
31 produce the documents required under this subsection to the
23
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 division within 3 business days after the request is made.
2 (12) Certificates of election to be exempt issued
3 under subsection (3) shall apply only to the corporate officer
4 named on the notice of election to be exempt and apply only
5 within the scope of the business or trade listed on the notice
6 of election to be exempt.
7 (13) Notices of election to be exempt and certificates
8 of election to be exempt shall be subject to revocation if, at
9 any time after the filing of the notice or the issuance of the
10 certificate, the person named on the notice or certificate no
11 longer meets the requirements of this section for issuance of
12 a certificate. The department shall revoke a certificate at
13 any time for failure of the person named on the certificate to
14 meet the requirements of this section.
15 (14) An officer of a corporation who elects exemption
16 from this chapter by filing a certificate of election under
17 this section may not recover benefits or compensation under
18 this chapter. For purposes of determining the appropriate
19 premium for workers' compensation coverage, carriers may not
20 consider any officer of a corporation who validly meets the
21 requirements of this section to be an employee.
22 (15) Any corporate officer who is an affiliated person
23 of a person who is delinquent in paying a stop-work order and
24 penalty assessment order issued pursuant to s. 440.107, or
25 owed pursuant to a court order, is ineligible for an election
26 of exemption. The stop-work order and penalty assessment shall
27 be in effect against any such affiliated person. As used in
28 this subsection, the term "affiliated person" means:
29 (a) The spouse of such other person;
30 (b) Any person who directly or indirectly owns or
31 controls, or holds with the power to vote, 10 percent or more
24
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 of the outstanding voting securities of such other person;
2 (c) Any person who directly or indirectly owns 10
3 percent or more of the outstanding voting securities that are
4 directly or indirectly owned, controlled, or held with the
5 power to vote by such other person;
6 (d) Any person or group of persons who directly or
7 indirectly control, are controlled by, or are under common
8 control with such other person;
9 (e) Any person who directly or indirectly acquires all
10 or substantially all of the other assets of such other person;
11 (f) Any officer, director, trustee, partner, owner,
12 manager, joint venturer, or employee of such other person or a
13 person performing duties similar to persons in such positions;
14 or
15 (g) Any person who has an officer, director, trustee,
16 partner, or joint venturer in common with such person.
17 Section 4. Section 440.06, Florida Statutes, is
18 amended to read:
19 440.06 Failure to secure compensation; effect.--Every
20 employer who fails to secure the payment of compensation, as
21 provided in s. 440.10, by failing to meet the requirements of
22 under this chapter as provided in s. 440.38 may not, in any
23 suit brought against him or her by an employee subject to this
24 chapter to recover damages for injury or death, defend such a
25 suit on the grounds that the injury was caused by the
26 negligence of a fellow servant, that the employee assumed the
27 risk of his or her employment, or that the injury was due to
28 the comparative negligence of the employee.
29 Section 5. Effective January 1, 2004, section 440.077,
30 Florida Statutes, is amended to read:
31 440.077 When a corporate sole proprietor, partner, or
25
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 officer rejects chapter, effect.--An A sole proprietor,
2 partner, or officer of a corporation who is permitted to elect
3 an exemption under this chapter actively engaged in the
4 construction industry and who elects to be exempt from the
5 provisions of this chapter may not recover benefits under this
6 chapter.
7 Section 6. Subsection (4) of section 440.09, Florida
8 Statutes, is amended and paragraph (e) is added to subsection
9 (7) of that section, to read:
10 440.09 Coverage.--
11 (4)(a) An employee shall not be entitled to
12 compensation or benefits under this chapter if any judge of
13 compensation claims, administrative law judge, court, or jury
14 convened in this state determines that the employee has
15 knowingly or intentionally engaged in any of the acts
16 described in s. 440.105 or any criminal act for the purpose of
17 securing workers' compensation benefits. For purposes of this
18 section, the term "intentional" shall include, but is not
19 limited to, pleas of guilty or nolo contendere in criminal
20 matters. This section shall apply to accidents, regardless of
21 the date of the accident. For injuries occurring prior to
22 January 1, 1994, this section shall pertain to the acts of the
23 employee described in s. 440.105 or criminal activities
24 occurring subsequent to January 1, 1994.
25 (b) A judge of compensation claims, administrative law
26 judge, or court of this state shall take judicial notice of a
27 finding of insurance fraud by a court of competent
28 jurisdiction and terminate or otherwise disallow benefits.
29 (c) Upon the denial of benefits in accordance with
30 this section, a judge of compensation claims shall have the
31 jurisdiction to order any benefits payable to the employee to
26
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 be paid into the court registry or an escrow account during
2 the pendency of an appeal or until such time as the time in
3 which to file an appeal has expired.
4 (7)
5 (e) As a part of rebutting any presumptions under
6 paragraph (b), the injured worker must prove the actual
7 quantitative amounts of the drug or its metabolites as
8 measured on the initial and confirmation post-accident drug
9 tests of the injured worker's urine sample and provide
10 additional evidence regarding the absence of drug influence
11 other than the worker's denial of being under the influence of
12 a drug. No drug test conducted on a urine sample shall be
13 rejected as to its results or the presumption imposed under
14 paragraph (b) on the basis of the urine being bodily fluid
15 tested.
16 Section 7. Effective January 1, 2004, subsection (1)
17 of section 440.10, Florida Statutes, is amended to read:
18 440.10 Liability for compensation.--
19 (1)(a) Every employer coming within the provisions of
20 this chapter, including any brought within the chapter by
21 waiver of exclusion or of exemption, shall be liable for, and
22 shall secure, the payment to his or her employees, or any
23 physician, surgeon, or pharmacist providing services under the
24 provisions of s. 440.13, of the compensation payable under ss.
25 440.13, 440.15, and 440.16. Any contractor or subcontractor
26 who engages in any public or private construction in the state
27 shall secure and maintain compensation for his or her
28 employees under this chapter as provided in s. 440.38.
29 (b) In case a contractor sublets any part or parts of
30 his or her contract work to a subcontractor or subcontractors,
31 all of the employees of such contractor and subcontractor or
27
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 subcontractors engaged on such contract work shall be deemed
2 to be employed in one and the same business or establishment,;
3 and the contractor shall be liable for, and shall secure, the
4 payment of compensation to all such employees, except to
5 employees of a subcontractor who has secured such payment.
6 (c) A contractor shall may require a subcontractor to
7 provide evidence of workers' compensation insurance or a copy
8 of his or her certificate of election. A subcontractor who is
9 a corporation and has an officer who elects electing to be
10 exempt as permitted under this chapter a sole proprietor,
11 partner, or officer of a corporation shall provide a copy of
12 his or her certificate of exemption election to the
13 contractor.
14 (d)1. If a contractor becomes liable for the payment
15 of compensation to the employees of a subcontractor who has
16 failed to secure such payment in violation of s. 440.38, the
17 contractor or other third-party payor shall be entitled to
18 recover from the subcontractor all benefits paid or payable
19 plus interest unless the contractor and subcontractor have
20 agreed in writing that the contractor will provide coverage.
21 2. If a contractor or third-party payor becomes liable
22 for the payment of compensation to the corporate officer
23 employee of a subcontractor who is actively engaged in the
24 construction industry and has elected to be exempt from the
25 provisions of this chapter, but whose election is invalid, the
26 contractor or third-party payor may recover from the claimant,
27 partnership, or corporation all benefits paid or payable plus
28 interest, unless the contractor and the subcontractor have
29 agreed in writing that the contractor will provide coverage.
30 (e) A subcontractor is not liable for the payment of
31 compensation to the employees of another subcontractor on such
28
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 contract work and is not protected by the
2 exclusiveness-of-liability provisions of s. 440.11 from action
3 at law or in admiralty on account of injury of such employee
4 of another subcontractor.
5 (f) If an employer fails to secure compensation as
6 required by this chapter, the department shall may assess
7 against the employer a penalty not to exceed $5,000 for each
8 employee of that employer who is classified by the employer as
9 an independent contractor but who is found by the department
10 to not meet the criteria for an independent contractor that
11 are set forth in s. 440.02. The division shall adopt rules to
12 administer the provisions of this paragraph.
13 (g) Subject to s. 440.38, any employer who has
14 employees engaged in work in this state shall obtain a Florida
15 policy or endorsement for such employees which utilizes
16 Florida class codes, rates, rules, and manuals that are in
17 compliance with and approved under the provisions of this
18 chapter and the Florida Insurance Code. Failure to comply with
19 this paragraph is a felony of the second degree, punishable as
20 provided in s. 775.082, s. 775.083, or s. 775.084. The
21 department shall adopt rules for construction industry and
22 nonconstruction-industry employers with regard to the
23 activities that define what constitutes being "engaged in
24 work" in this state, using the following standards:
25 1. For employees of nonconstruction-industry employers
26 who have their headquarters outside of Florida and also
27 operate in Florida and who are routinely crossing state lines,
28 but usually return to their homes each night, the employee
29 shall be assigned to the headquarters' state. However, the
30 construction industry employees performing new construction or
31 alterations in Florida shall be assigned to Florida even if
29
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 the employees return to their home state each night.
2 2. The payroll of executive supervisors who may visit
3 a Florida location but who are not in direct charge of a
4 Florida location shall be assigned to the state in which the
5 headquarters is located.
6 3. For construction contractors who maintain a
7 permanent staff of employees and superintendents, if any of
8 these employees or superintendents are assigned to a job that
9 is located in Florida, either for the duration of the job or
10 any portion thereof, their payroll shall be assigned to
11 Florida rather than headquarters' state.
12 4. Employees who are hired for a specific project in
13 Florida shall be assigned to Florida. For purposes of this
14 section, a person is conclusively presumed to be an
15 independent contractor if:
16 1. The independent contractor provides the general
17 contractor with an affidavit stating that he or she meets all
18 the requirements of s. 440.02; and
19 2. The independent contractor provides the general
20 contractor with a valid certificate of workers' compensation
21 insurance or a valid certificate of exemption issued by the
22 department.
23
24 A sole proprietor, partner, or officer of a corporation who
25 elects exemption from this chapter by filing a certificate of
26 election under s. 440.05 may not recover benefits or
27 compensation under this chapter. An independent contractor who
28 provides the general contractor with both an affidavit stating
29 that he or she meets the requirements of s. 440.02 and a
30 certificate of exemption is not an employee under s. 440.02
31 and may not recover benefits under this chapter. For purposes
30
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 of determining the appropriate premium for workers'
2 compensation coverage, carriers may not consider any person
3 who meets the requirements of this paragraph to be an
4 employee.
5 Section 8. Section 440.1025, Florida Statutes, is
6 amended to read:
7 440.1025 Consideration of public Employer workplace
8 safety program in rate-setting; program requirements;
9 rulemaking.--
10 (1) For a public or private employer to be eligible
11 for receipt of specific identifiable consideration under s.
12 627.0915 for a workplace safety program in the setting of
13 rates, the public employer must have a workplace safety
14 program. At a minimum, the program must include a written
15 safety policy and safety rules, and make provision for safety
16 inspections, preventative maintenance, safety training,
17 first-aid, accident investigation, and necessary
18 recordkeeping. For purposes of this section, "public employer"
19 means any agency within state, county, or municipal government
20 employing individuals for salary, wages, or other
21 remuneration. The division may adopt promulgate rules for
22 insurers to utilize in determining public employer compliance
23 with the requirements of this section.
24 (2) The division shall publicize on the Internet, and
25 shall encourage insurers to publicize, the availability of
26 free safety consultation services and safety program
27 resources.
28 Section 9. Section 440.103, Florida Statutes, is
29 amended to read:
30 440.103 Building permits; identification of minimum
31 premium policy.--Except as otherwise provided in this chapter,
31
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 Every employer shall, as a condition to applying for and
2 receiving a building permit, show proof and certify to the
3 permit issuer that it has secured compensation for its
4 employees under this chapter as provided in ss. 440.10 and
5 440.38. Such proof of compensation must be evidenced by a
6 certificate of coverage issued by the carrier, a valid
7 exemption certificate approved by the department or the former
8 Division of Workers' Compensation of the Department of Labor
9 and Employment Security, or a copy of the employer's authority
10 to self-insure and shall be presented each time the employer
11 applies for a building permit. As provided in s. 627.413(5),
12 each certificate of coverage must show, on its face, whether
13 or not coverage is secured under the minimum premium
14 provisions of rules adopted by rating organizations licensed
15 by the department. The words "minimum premium policy" or
16 equivalent language shall be typed, printed, stamped, or
17 legibly handwritten.
18 Section 10. Section 440.105, Florida Statutes, is
19 amended to read:
20 440.105 Prohibited activities; reports; penalties;
21 limitations.--
22 (1)(a) Any insurance carrier, any individual
23 self-insured, any commercial or group self-insurance fund, any
24 professional practitioner licensed or regulated by the
25 Department of Health Business and Professional Regulation,
26 except as otherwise provided by law, any medical review
27 committee as defined in s. 766.101, any private medical review
28 committee, and any insurer, agent, or other person licensed
29 under the insurance code, or any employee thereof, having
30 knowledge or who believes that a fraudulent act or any other
31 act or practice which, upon conviction, constitutes a felony
32
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 or misdemeanor under this chapter is being or has been
2 committed shall send to the Division of Insurance Fraud,
3 Bureau of Workers' Compensation Fraud, a report or information
4 pertinent to such knowledge or belief and such additional
5 information relative thereto as the bureau may require. The
6 bureau shall review such information or reports and select
7 such information or reports as, in its judgment, may require
8 further investigation. It shall then cause an independent
9 examination of the facts surrounding such information or
10 report to be made to determine the extent, if any, to which a
11 fraudulent act or any other act or practice which, upon
12 conviction, constitutes a felony or a misdemeanor under this
13 chapter is being committed. The bureau shall report any
14 alleged violations of law which its investigations disclose to
15 the appropriate licensing agency and state attorney or other
16 prosecuting agency having jurisdiction with respect to any
17 such violations of this chapter. If prosecution by the state
18 attorney or other prosecuting agency having jurisdiction with
19 respect to such violation is not begun within 60 days of the
20 bureau's report, the state attorney or other prosecuting
21 agency having jurisdiction with respect to such violation
22 shall inform the bureau of the reasons for the lack of
23 prosecution.
24 (b) In the absence of fraud or bad faith, a person is
25 not subject to civil liability for libel, slander, or any
26 other relevant tort by virtue of filing reports, without
27 malice, or furnishing other information, without malice,
28 required by this section or required by the bureau, and no
29 civil cause of action of any nature shall arise against such
30 person:
31 1. For any information relating to suspected
33
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 fraudulent acts furnished to or received from law enforcement
2 officials, their agents, or employees;
3 2. For any information relating to suspected
4 fraudulent acts furnished to or received from other persons
5 subject to the provisions of this chapter; or
6 3. For any such information relating to suspected
7 fraudulent acts furnished in reports to the bureau, or the
8 National Association of Insurance Commissioners.
9 (2) Whoever violates any provision of this subsection
10 commits a misdemeanor of the first second degree, punishable
11 as provided in s. 775.082 or s. 775.083.
12 (a) It shall be unlawful for any employer to
13 knowingly:
14 1. Coerce or attempt to coerce, as a precondition to
15 employment or otherwise, an employee to obtain a certificate
16 of election of exemption pursuant to s. 440.05.
17 2. Discharge or refuse to hire an employee or job
18 applicant because the employee or applicant has filed a claim
19 for benefits under this chapter.
20 3. Discharge, discipline, or take any other adverse
21 personnel action against any employee for disclosing
22 information to the department or any law enforcement agency
23 relating to any violation or suspected violation of any of the
24 provisions of this chapter or rules promulgated hereunder.
25 4. Violate a stop-work order issued by the department
26 pursuant to s. 440.107.
27 (b) It shall be unlawful for any insurance entity to
28 revoke or cancel a workers' compensation insurance policy or
29 membership because an employer has returned an employee to
30 work or hired an employee who has filed a workers'
31 compensation claim.
34
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 (3) Whoever violates any provision of this subsection
2 commits a misdemeanor of the first degree, punishable as
3 provided in s. 775.082 or s. 775.083.
4 (a) It shall be unlawful for any employer to knowingly
5 fail to update applications for coverage as required by s.
6 440.381(1) and department of Insurance rules within 7 days
7 after the reporting date for any change in the required
8 information, or to post notice of coverage pursuant to s.
9 440.40.
10 (b) It is unlawful for any attorney or other person,
11 in his or her individual capacity or in his or her capacity as
12 a public or private employee, or for any firm, corporation,
13 partnership, or association to receive any fee or other
14 consideration or any gratuity from a person on account of
15 services rendered for a person in connection with any
16 proceedings arising under this chapter, unless such fee,
17 consideration, or gratuity is approved by a judge of
18 compensation claims or by the Deputy Chief Judge of
19 Compensation Claims.
20 (4) Whoever violates any provision of this subsection
21 commits insurance fraud, punishable as provided in paragraph
22 (f).
23 (a) It shall be unlawful for any employer to
24 knowingly:
25 1. Present or cause to be presented any false,
26 fraudulent, or misleading oral or written statement to any
27 person as evidence of compliance with s. 440.38.
28 2. Make a deduction from the pay of any employee
29 entitled to the benefits of this chapter for the purpose of
30 requiring the employee to pay any portion of premium paid by
31 the employer to a carrier or to contribute to a benefit fund
35
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 or department maintained by such employer for the purpose of
2 providing compensation or medical services and supplies as
3 required by this chapter.
4 3. Fail to secure payment of compensation if required
5 to do so by this chapter.
6 (b) It shall be unlawful for any person:
7 1. To knowingly make, or cause to be made, any false,
8 fraudulent, or misleading oral or written statement for the
9 purpose of obtaining or denying any benefit or payment under
10 this chapter.
11 2. To present or cause to be presented any written or
12 oral statement as part of, or in support of, a claim for
13 payment or other benefit pursuant to any provision of this
14 chapter, knowing that such statement contains any false,
15 incomplete, or misleading information concerning any fact or
16 thing material to such claim.
17 3. To prepare or cause to be prepared any written or
18 oral statement that is intended to be presented to any
19 employer, insurance company, or self-insured program in
20 connection with, or in support of, any claim for payment or
21 other benefit pursuant to any provision of this chapter,
22 knowing that such statement contains any false, incomplete, or
23 misleading information concerning any fact or thing material
24 to such claim.
25 4. To knowingly assist, conspire with, or urge any
26 person to engage in activity prohibited by this section.
27 5. To knowingly make any false, fraudulent, or
28 misleading oral or written statement, or to knowingly omit or
29 conceal material information, required by s. 440.185 or s.
30 440.381, for the purpose of obtaining workers' compensation
31 coverage or for the purpose of avoiding, delaying, or
36
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 diminishing the amount of payment of any workers' compensation
2 premiums.
3 6. To knowingly misrepresent or conceal payroll,
4 classification of workers, or information regarding an
5 employer's loss history which would be material to the
6 computation and application of an experience rating
7 modification factor for the purpose of avoiding or diminishing
8 the amount of payment of any workers' compensation premiums.
9 7. To knowingly present or cause to be presented any
10 false, fraudulent, or misleading oral or written statement to
11 any person as evidence of compliance with s. 440.38, as
12 evidence of eligibility for a certificate of exemption under
13 s. 440.05.
14 8. To knowingly violate a stop-work order issued by
15 the department pursuant to s. 440.107.
16 9. To knowingly present or cause to be presented any
17 false, fraudulent, or misleading oral or written statement to
18 any person as evidence of identity for the purpose of
19 obtaining employment or filing or supporting a claim for
20 workers' compensation benefits.
21 (c) It shall be unlawful for any physician licensed
22 under chapter 458, osteopathic physician licensed under
23 chapter 459, chiropractic physician licensed under chapter
24 460, podiatric physician licensed under chapter 461,
25 optometric physician licensed under chapter 463, or any other
26 practitioner licensed under the laws of this state to
27 knowingly and willfully assist, conspire with, or urge any
28 person to fraudulently violate any of the provisions of this
29 chapter.
30 (d) It shall be unlawful for any person or
31 governmental entity licensed under chapter 395 to maintain or
37
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 operate a hospital in such a manner so that such person or
2 governmental entity knowingly and willfully allows the use of
3 the facilities of such hospital by any person, in a scheme or
4 conspiracy to fraudulently violate any of the provisions of
5 this chapter.
6 (e) It shall be unlawful for any attorney or other
7 person, in his or her individual capacity or in his or her
8 capacity as a public or private employee, or any firm,
9 corporation, partnership, or association, to knowingly assist,
10 conspire with, or urge any person to fraudulently violate any
11 of the provisions of this chapter.
12 (f) If the monetary value amount of any claim or
13 workers' compensation insurance premium involved in any
14 violation of this subsection:
15 1. Is less than $20,000, the offender commits a felony
16 of the third degree, punishable as provided in s. 775.082, s.
17 775.083, or s. 775.084.
18 2. Is $20,000 or more, but less than $100,000, the
19 offender commits a felony of the second degree, punishable as
20 provided in s. 775.082,. 775.083, or s. 775.084.
21 3. Is $100,000 or more, the offender commits a felony
22 of the first degree, punishable as provided in s. 775.082, s.
23 775.083, or s. 775.084.
24 (5) It shall be unlawful for any attorney or other
25 person, in his or her individual capacity or in his or her
26 capacity as a public or private employee or for any firm,
27 corporation, partnership, or association, to unlawfully
28 solicit any business in and about city or county hospitals,
29 courts, or any public institution or public place; in and
30 about private hospitals or sanitariums; in and about any
31 private institution; or upon private property of any character
38
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 whatsoever for the purpose of making workers' compensation
2 claims. Whoever violates any provision of this subsection
3 commits a felony of the second third degree, punishable as
4 provided in s. 775.082, s. 775.083, or s. 775.085.
5 (6) This section shall not be construed to preclude
6 the applicability of any other provision of criminal law that
7 applies or may apply to any transaction.
8 (7) For the purpose of the section, the term
9 "statement" includes, but is not limited to, any notice,
10 representation, statement, proof of injury, bill for services,
11 diagnosis, prescription, hospital or doctor records, X ray,
12 test result, or other evidence of loss, injury, or expense.
13 (7)(8) An injured employee or any other party making a
14 claim under this chapter shall provide his or her personal
15 signature attesting that he or she has reviewed, understands,
16 and acknowledges All claim forms as provided for in this
17 chapter shall contain a notice that clearly states in
18 substance the following statement: "Any person who, knowingly
19 and with intent to injure, defraud, or deceive any employer or
20 employee, insurance company, or self-insured program, files a
21 statement of claim containing any false or misleading
22 information commits insurance fraud, punishable as provided in
23 s. 817.234." If the injured employee or other party refuses to
24 sign the document attesting Each claimant shall personally
25 sign the claim form and attest that he or she has reviewed,
26 understands, and acknowledges the statement, benefits or
27 payments under this chapter shall be suspended until such
28 signature is obtained foregoing notice.
29 Section 11. Subsection (3) of section 440.1051,
30 Florida Statutes, is amended to read:
31 440.1051 Fraud reports; civil immunity; criminal
39
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 penalties.--
2 (2) Any person who reports workers' compensation fraud
3 to the division under subsection (1) is immune from civil
4 liability for doing so, and the person or entity alleged to
5 have committed the fraud may not retaliate against him or her
6 for providing such report, unless the person making the report
7 knows it to be false.
8 (3) A person who calls and, knowingly and falsely,
9 reports workers' compensation fraud or who, in violation of
10 subsection (2) retaliates against a person for making such
11 report, commits is guilty of a felony misdemeanor of the third
12 first degree, punishable as provided in s. 775.082, or s.
13 775.083, or s. 775.084 both.
14 Section 12. Section 440.107, Florida Statutes, is
15 amended to read:
16 440.107 Department powers to enforce employer
17 compliance with coverage requirements.--
18 (1) The Legislature finds that the failure of an
19 employer to comply with the workers' compensation coverage
20 requirements under this chapter poses an immediate danger to
21 public health, safety, and welfare. The Legislature authorizes
22 the department to secure employer compliance with the workers'
23 compensation coverage requirements and authorizes the
24 department to conduct investigations for the purpose of
25 ensuring employer compliance.
26 (2) For the purposes of this section, "securing the
27 payment of workers' compensation" means obtaining coverage
28 that meets the requirements of this chapter and the Florida
29 Insurance Code. However, if at any time an employer materially
30 understates or conceals payroll, materially misrepresents or
31 conceals employee duties so as to avoid proper classification
40
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 for premium calculations, or materially misrepresents or
2 conceals information pertinent to the computation and
3 application of an experience rating modification factor, such
4 employer shall be deemed to have failed to secure payment of
5 workers' compensation and shall be subject to the sanctions
6 set forth in this section. A stop-work order issued because an
7 employer is deemed to have failed to secure the payment of
8 workers' compensation required under this chapter because the
9 employer has materially understated or concealed payroll,
10 materially misrepresented or concealed employee duties so as
11 to avoid proper classification for premium calculations, or
12 materially misrepresented or concealed information pertinent
13 to the computation and application of an experience rating
14 modification factor shall have no effect upon an employer's or
15 carrier's duty to provide benefits under this chapter or upon
16 any of the employer's or carrier's rights and defenses under
17 this chapter, including exclusive remedy. The department and
18 its authorized representatives may enter and inspect any place
19 of business at any reasonable time for the limited purpose of
20 investigating compliance with workers' compensation coverage
21 requirements under this chapter. Each employer shall keep true
22 and accurate business records that contain such information as
23 the department prescribes by rule. The business records must
24 contain information necessary for the department to determine
25 compliance with workers' compensation coverage requirements
26 and must be maintained within this state by the business, in
27 such a manner as to be accessible within a reasonable time
28 upon request by the department. The business records must be
29 open to inspection and be available for copying by the
30 department at any reasonable time and place and as often as
31 necessary. The department may require from any employer any
41
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 sworn or unsworn reports, pertaining to persons employed by
2 that employer, deemed necessary for the effective
3 administration of the workers' compensation coverage
4 requirements.
5 (3) The department shall enforce workers' compensation
6 coverage requirements, including the requirement that the
7 employer secure the payment of workers' compensation, and the
8 requirement that the employer provide the carrier with
9 information to accurately determine payroll and correctly
10 assign classification codes. In addition to any other powers
11 under this chapter, the department shall have the power to:
12 (a) Conduct investigations for the purpose of ensuring
13 employer compliance.
14 (b) Enter and inspect any place of business at any
15 reasonable time for the purpose of investigating employer
16 compliance.
17 (c) Examine and copy business records.
18 (d) Administer oaths and affirmations.
19 (e) Certify to official acts.
20 (f) Issue and serve subpoenas for attendance of
21 witnesses or production of business records, books, papers,
22 correspondence, memoranda, and other records.
23 (g) Issue stop-work orders, penalty assessment orders,
24 and any other orders necessary for the administration of this
25 section.
26 (h) Enforce the terms of a stop-work order.
27 (i) Levy and pursue actions to recover penalties.
28 (j) Seek injunctions and other appropriate relief. In
29 discharging its duties, the department may administer oaths
30 and affirmations, certify to official acts, issue subpoenas to
31 compel the attendance of witnesses and the production of
42
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 books, papers, correspondence, memoranda, and other records
2 deemed necessary by the department as evidence in order to
3 ensure proper compliance with the coverage provisions of this
4 chapter.
5 (4) The department shall designate representatives who
6 may serve subpoenas and other process of the department issued
7 under this section.
8 (5) The department shall specify by rule the business
9 records that employers must maintain and produce to comply
10 with this section.
11 (6)(4) If a person has refused to obey a subpoena to
12 appear before the department or its authorized representative
13 or and produce evidence requested by the department or to give
14 testimony about the matter that is under investigation, a
15 court has jurisdiction to issue an order requiring compliance
16 with the subpoena if the court has jurisdiction in the
17 geographical area where the inquiry is being carried on or in
18 the area where the person who has refused the subpoena is
19 found, resides, or transacts business. Failure to obey such a
20 court order may be punished by the court as contempt, either
21 civilly or criminally. Costs, including reasonable attorney's
22 fees, incurred by the department to obtain an order granting,
23 in whole or in part, a petition to enforce a subpoena or a
24 subpoena duces tecum shall be taxed against the subpoenaed
25 party.
26 (7)(a)(5) Whenever the department determines that an
27 employer who is required to secure the payment to his or her
28 employees of the compensation provided for by this chapter has
29 failed to secure the payment of workers' compensation required
30 by this chapter or to produce the required business records
31 under subsection (5) within 5 business days after receipt of
43
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 the written request of the department do so, such failure
2 shall be deemed an immediate serious danger to public health,
3 safety, or welfare sufficient to justify service by the
4 department of a stop-work order on the employer, requiring the
5 cessation of all business operations at the place of
6 employment or job site. If the department division makes such
7 a determination, the department division shall issue a
8 stop-work order within 72 hours. The order shall take effect
9 when served upon the date of service upon the employer or, for
10 a particular employer work site, when served at that work
11 site, unless the employer provides evidence satisfactory to
12 the department of having secured any necessary insurance or
13 self-insurance and pays a civil penalty to the department, to
14 be deposited by the department into the Workers' Compensation
15 Administration Trust Fund, in the amount of $100 per day for
16 each day the employer was not in compliance with this chapter.
17 In addition to serving a stop-work order at a particular work
18 site which shall be effective immediately, the department
19 shall immediately proceed with service upon the employer which
20 shall be effective upon all employer work sites in the state
21 for which the employer is not in compliance. A stop-work order
22 may be served with regard to an employer's work site by
23 posting a copy of the stop-work order in a conspicuous
24 location at the work site. The order shall remain in effect
25 until the department issues an order releasing the stop-work
26 order upon a finding that the employer has come into
27 compliance with the coverage requirements of this chapter and
28 has paid any penalty assessed under this section. The
29 department may require an employer who is found to have failed
30 to comply with the coverage requirements of s. 440.38 to file
31 with the department, as a condition of release from a
44
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 stop-work order, periodic reports for a probationary period
2 that shall not exceed 2 years that demonstrate the employer's
3 continued compliance with this chapter. The department shall
4 by rule specify the reports required and the time for filing
5 under this subsection.
6 (b) Stop-work orders and penalty assessment orders
7 issued under this section against a corporation, partnership,
8 or sole proprietorship shall be in effect against any
9 successor corporation or business entity that has one or more
10 of the same principals or officers as the corporation or
11 partnership against which the stop-work order was issued and
12 are engaged in the same or equivalent trade or activity.
13 (c) The department shall assess a penalty of $1,000
14 per day against an employer for each day that the employer
15 conducts business operations that are in violation of a
16 stop-work order.
17 (d)1. In addition to any penalty, stop-work order, or
18 injunction, the department shall assess against any employer
19 who has failed to secure the payment of compensation as
20 required by this chapter a penalty equal to 1.5 times the
21 amount the employer would have paid in premium when applying
22 approved manual rates to the employer's payroll during periods
23 for which it failed to secure the payment of workers'
24 compensation required by this chapter within the preceding
25 3-year period or $1,000, whichever is greater.
26 2. Any subsequent violation within 5 years after the
27 most recent violation shall, in addition to the penalties set
28 forth in this subsection, be deemed a knowing act within the
29 meaning of s. 440.105.
30 (e) When an employer fails to provide business records
31 sufficient to enable the department to determine the
45
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 employer's payroll for the period requested for the
2 calculation of the penalty provided in paragraph (d), for
3 penalty calculation purposes, the imputed weekly payroll for
4 each employee, corporate officer, sole proprietor, or partner
5 shall be the statewide average weekly wage as defined in s.
6 440.12(2) multiplied by 1.5.
7 (f) In addition to any other penalties provided for in
8 this chapter, the department may assess against the employer a
9 penalty of $5,000 for each employee of that employer who the
10 employer represents to the department or carrier as an
11 independent contractor but who is determined by the department
12 not to be an independent contractor as defined in s. 440.02.
13 (8)(6) In addition to the issuance of a stop-work
14 order under subsection (7), the department may file a
15 complaint in the circuit court in and for Leon County to
16 enjoin any employer, who has failed to secure the payment of
17 workers' compensation as required by this chapter, from
18 employing individuals and from conducting business until the
19 employer presents evidence satisfactory to the department of
20 having secured the payment of workers' for compensation
21 required by this chapter and pays a civil penalty assessed by
22 to the department under this section, to be deposited by the
23 department into the Workers' Compensation Administration Trust
24 Fund, in the amount of $100 per day for each day the employer
25 was not in compliance with this chapter.
26 (9)(7) In addition to any penalty, stop-work order, or
27 injunction, the department shall assess against any employer,
28 who has failed to secure the payment of compensation as
29 required by this chapter, a penalty in the following amount:
30 (a) An amount equal to at least the amount that the
31 employer would have paid or up to twice the amount the
46
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 employer would have paid during periods it illegally failed to
2 secure payment of compensation in the preceding 3-year period
3 based on the employer's payroll during the preceding 3-year
4 period; or
5 (b) One thousand dollars, whichever is greater. Any
6 penalty assessed under this subsection is due within 30 days
7 after the date on which the employer is notified, except that,
8 if the department has posted a stop-work order or obtained
9 injunctive relief against the employer, payment is due, in
10 addition to those conditions set forth in this section, as a
11 condition to relief from a stop-work order or an injunction.
12 Interest shall accrue on amounts not paid when due at the rate
13 of 1 percent per month. The department division shall adopt
14 rules to administer this section.
15 (10)(8) The department may bring an action in circuit
16 court to recover penalties assessed under this section,
17 including any interest owed to the department pursuant to this
18 section. In any action brought by the department pursuant to
19 this section in which it prevails, the circuit court shall
20 award costs, including the reasonable costs of investigation
21 and a reasonable attorney's fee.
22 (11)(9) Any judgment obtained by the department and
23 any penalty due pursuant to the service of a stop-work order
24 or otherwise due under this section shall, until collected,
25 constitute a lien upon the entire interest of the employer,
26 legal or equitable, in any property, real or personal,
27 tangible or intangible; however, such lien is subordinate to
28 claims for unpaid wages and any prior recorded liens, and a
29 lien created by this section is not valid against any person
30 who, subsequent to such lien and in good faith and for value,
31 purchases real or personal property from such employer or
47
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 becomes the mortgagee on real or personal property of such
2 employer, or against a subsequent attaching creditor, unless,
3 with respect to real estate of the employer, a notice of the
4 lien is recorded in the public records of the county where the
5 real estate is located, and with respect to personal property
6 of the employer, the notice is recorded with the Secretary of
7 State.
8 (12)(10) Any law enforcement agency in the state may,
9 at the request of the department, render any assistance
10 necessary to carry out the provisions of this section,
11 including, but not limited to, preventing any employee or
12 other person from remaining at a place of employment or job
13 site after a stop-work order or injunction has taken effect.
14 (13)(11) Agency action Actions by the department under
15 this section, if contested, must be contested as provided in
16 chapter 120. All civil penalties assessed by the department
17 must be paid into the Workers' Compensation Administration
18 Trust Fund. The department shall return any sums previously
19 paid, upon conclusion of an action, if the department fails to
20 prevail and if so directed by an order of court or an
21 administrative hearing officer. The requirements of this
22 subsection may be met by posting a bond in an amount equal to
23 twice the penalty and in a form approved by the department.
24 (14)(12) If the department division finds that an
25 employer who is certified or registered under part I or part
26 II of chapter 489 and who is required to secure the payment of
27 workers' the compensation under provided for by this chapter
28 to his or her employees has failed to do so, the department
29 division shall immediately notify the Department of Business
30 and Professional Regulation.
31 Section 13. Subsection (1) of section 440.15, Florida
48
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 Statutes, is amended to read:
2 440.15 Compensation for disability.--Compensation for
3 disability shall be paid to the employee, subject to the
4 limits provided in s. 440.12(2), as follows:
5 (1) PERMANENT TOTAL DISABILITY.--
6 (a) In case of total disability adjudged to be
7 permanent, 66 2/3 percent of the average weekly wages shall be
8 paid to the employee during the continuance of such total
9 disability.
10 (b) Only A catastrophic injury as defined in s.
11 440.02(38) shall, in the absence of conclusive proof of a
12 substantial earning capacity, constitute permanent total
13 disability. In all other cases, no compensation shall be
14 payable under paragraph (a) if the employee is engaged in, or
15 is physically capable of engaging in at least sedentary
16 employment. In order to obtain permanent total disability
17 benefits, the employee must establish that he or she is not
18 able uninterruptedly to engage in at least sedentary
19 employment, within a 50-mile radius of the employee's
20 residence, due to his or her physical limitation. Only
21 claimants with catastrophic injuries or claimants who are
22 incapable of engaging in employment, as described in this
23 paragraph, are eligible for permanent total benefits. In no
24 other case may permanent total disability be awarded.
25 (c) In cases of permanent total disability resulting
26 from injuries that occurred prior to July 1, 1955, such
27 payments shall not be made in excess of 700 weeks.
28 (d) If an employee who is being paid compensation for
29 permanent total disability becomes rehabilitated to the extent
30 that she or he establishes an earning capacity, the employee
31 shall be paid, instead of the compensation provided in
49
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 paragraph (a), benefits pursuant to subsection (3). The
2 department shall adopt rules to enable a permanently and
3 totally disabled employee who may have reestablished an
4 earning capacity to undertake a trial period of reemployment
5 without prejudicing her or his return to permanent total
6 status in the case that such employee is unable to sustain an
7 earning capacity.
8 (e)1. The employer's or carrier's right to conduct
9 vocational evaluations or testing by the employer's or
10 carrier's chosen rehabilitation advisor or provider pursuant
11 to s. 440.491 continues even after the employee has been
12 accepted or adjudicated as entitled to compensation under this
13 chapter and costs for such evaluations and testing shall be
14 borne by the employer or carrier, respectively. This right
15 includes, but is not limited to, instances in which such
16 evaluations or tests are recommended by a treating physician
17 or independent medical-examination physician, instances
18 warranted by a change in the employee's medical condition, or
19 instances in which the employee appears to be making
20 appropriate progress in recuperation. This right may not be
21 exercised more than once every calendar year.
22 2. The carrier must confirm the scheduling of the
23 vocational evaluation or testing in writing, and must notify
24 the employee and the employee's counsel, if any, at least 7
25 days before the date on which vocational evaluation or testing
26 is scheduled to occur.
27 3. Pursuant to an order of the judge of compensation
28 claims, The employer or carrier may withhold payment of
29 benefits for permanent total disability or supplements for any
30 period during which the employee willfully fails or refuses to
31 appear without good cause for the scheduled vocational
50
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 evaluation or testing.
2 (f)1. If permanent total disability results from
3 injuries that occurred subsequent to June 30, 1955, and for
4 which the liability of the employer for compensation has not
5 been discharged under s. 440.20(11), the injured employee
6 shall receive additional weekly compensation benefits equal to
7 5 percent of her or his weekly compensation rate, as
8 established pursuant to the law in effect on the date of her
9 or his injury, multiplied by the number of calendar years
10 since the date of injury. The weekly compensation payable and
11 the additional benefits payable under this paragraph, when
12 combined, may not exceed the maximum weekly compensation rate
13 in effect at the time of payment as determined pursuant to s.
14 440.12(2). Entitlement to these supplemental payments shall
15 cease at age 62if the employee is eligible for social security
16 benefits under 42 U.S.C. ss. 402 and 423, whether or not the
17 employee has applied for such benefits. These supplemental
18 benefits shall be paid by the department out of the Workers'
19 Compensation Administration Trust Fund when the injury
20 occurred subsequent to June 30, 1955, and before July 1, 1984.
21 These supplemental benefits shall be paid by the employer when
22 the injury occurred on or after July 1, 1984. Supplemental
23 benefits are not payable for any period prior to October 1,
24 1974.
25 2.a. The department shall provide by rule for the
26 periodic reporting to the department of all earnings of any
27 nature and social security income by the injured employee
28 entitled to or claiming additional compensation under
29 subparagraph 1. Neither the department nor the employer or
30 carrier shall make any payment of those additional benefits
31 provided by subparagraph 1. for any period during which the
51
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 employee willfully fails or refuses to report upon request by
2 the department in the manner prescribed by such rules.
3 b. The department shall provide by rule for the
4 periodic reporting to the employer or carrier of all earnings
5 of any nature and social security income by the injured
6 employee entitled to or claiming benefits for permanent total
7 disability. The employer or carrier is not required to make
8 any payment of benefits for permanent total disability for any
9 period during which the employee willfully fails or refuses to
10 report upon request by the employer or carrier in the manner
11 prescribed by such rules or if any employee who is receiving
12 permanent total disability benefits refuses to apply for or
13 cooperate with the employer or carrier in applying for social
14 security benefits.
15 3. When an injured employee receives a full or partial
16 lump-sum advance of the employee's permanent total disability
17 compensation benefits, the employee's benefits under this
18 paragraph shall be computed on the employee's weekly
19 compensation rate as reduced by the lump-sum advance.
20 Section 14. Subsection (9) of section 440.185, Florida
21 Statutes, is amended, and subsection (12) is added to that
22 section, to read:
23 440.185 Notice of injury or death; reports; penalties
24 for violations.--
25 (9) Any employer or carrier who fails or refuses to
26 timely send any form, report, or notice required by this
27 section shall be subject to an administrative fine by the
28 department a civil penalty not to exceed $1,000 $500 for each
29 such failure or refusal. If, within 1 calendar year, an
30 employer fails to timely submit to the carrier more than 10
31 percent of its notices of injury or death, the employer shall
52
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 be subject to an administrative fine by the department not to
2 exceed $2,000 for each such failure or refusal. However, any
3 employer who fails to notify the carrier of the injury on the
4 prescribed form or by letter within the 7 days required in
5 subsection (2) shall be liable for the administrative fine
6 civil penalty, which shall be paid by the employer and not the
7 carrier. Failure by the employer to meet its obligations under
8 subsection (2) shall not relieve the carrier from liability
9 for the administrative fine civil penalty if it fails to
10 comply with subsections (4) and (5).
11 (12) Upon receiving notice of an injury from an
12 employee under subsection (1), the employer or carrier shall
13 provide the employee with a written notice, in the form and
14 manner determined by the department by rule, of the
15 availability of services from the Employee Assistance and
16 Ombudsman Office. The substance of the notice to the employee
17 shall include:
18 (a) A description of the scope of services provided by
19 the office.
20 (b) A listing of the toll-free telephone number of,
21 the email address, and the postal address of the office.
22 (c) A statement that the informational brochure
23 referred to in subsection (4) will be mailed to the employee
24 within 3 days after the carrier receives notice of the injury.
25 (d) Any other information regarding access to
26 assistance that the department finds is immediately necessary
27 for an injured employee.
28 Section 15. Subsections (2), (3), (4), (6), and (8) of
29 section 440.20, Florida Statutes, are amended to read:
30 440.20 Time for payment of compensation and medical
31 bills; penalties for late payment.--
53
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 (2)(a) The carrier must pay the first installment of
2 compensation for total disability or death benefits or deny
3 compensability no later than the 14th calendar day after the
4 employer receives notification notice of the injury or death,
5 when disability is immediate and continuous for 8 calendar
6 days or more after the injury. If the first 7 days after
7 disability are nonconsecutive or delayed, the first
8 installment of compensation is due on the 6th day after the
9 first 8 calendar days of disability. The carrier shall
10 thereafter pay compensation in biweekly installments or as
11 otherwise provided in s. 440.15, unless the judge of
12 compensation claims determines or the parties agree that an
13 alternate installment schedule is in the best interests of the
14 employee.
15 (b) The carrier must pay, disallow, or deny all
16 medical, dental, pharmacy, and hospital bills submitted to the
17 carrier in accordance with department rule no later than 45
18 calendar days after the carrier's receipt of the bill.
19 (3) Upon making initial payment of indemnity benefits,
20 or upon suspension or cessation of payment for any reason, the
21 carrier shall immediately notify the injured employee, the
22 employer, and the department that it has commenced, suspended,
23 or ceased payment of compensation. The department may require
24 such notification to the injured employee, employer, and the
25 department in a any format and manner it deems necessary to
26 obtain accurate and timely notification reporting.
27 (4) If the carrier is uncertain of its obligation to
28 provide all benefits or compensation, it may initiate payment
29 without prejudice and without admitting liability. the carrier
30 shall immediately and in good faith commence investigation of
31 the employee's entitlement to benefits under this chapter and
54
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 shall admit or deny compensability within 120 days after the
2 initial provision of compensation or benefits as required
3 under subsection (2) or s. 440.192(8). Additionally, the
4 carrier shall initiate payment and continue the provision of
5 all benefits and compensation as if the claim had been
6 accepted as compensable, without prejudice and without
7 admitting liability. Upon commencement of payment as required
8 under subsection (2) or s. 440.192 (8), the carrier shall
9 provide written notice to the employee that it has elected to
10 pay all or part of the claim pending further investigation,
11 and that it will advise the employee of claim acceptance or
12 denial within 120 days. A carrier that fails to deny
13 compensability within 120 days after the initial provision of
14 benefits or payment of compensation as required under
15 subsection (2) or s. 440.192(8) waives the right to deny
16 compensability, unless the carrier can establish material
17 facts relevant to the issue of compensability that it could
18 not have discovered through reasonable investigation within
19 the 120-day period. The initial provision of compensation or
20 benefits, for purposes of this subsection, means the first
21 installment of compensation or benefits to be paid by the
22 carrier under subsection (2) or pursuant to a petition for
23 benefits under s. 440.192(8).
24 (6)(a) If any installment of compensation for death or
25 dependency benefits, or compensation for disability benefits,
26 permanent impairment, or wage loss payable without an award is
27 not paid within 7 days after it becomes due, as provided in
28 subsection (2), subsection (3), or subsection (4), there shall
29 be added to such unpaid installment a punitive penalty of an
30 amount equal to 20 percent of the unpaid installment or $5,
31 which shall be paid at the same time as, but in addition to,
55
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 such installment of compensation. This penalty shall not apply
2 for late payments resulting, unless notice is filed under
3 subsection (4) or unless such nonpayment results from
4 conditions over which the employer or carrier had no control.
5 When any installment of compensation payable without an award
6 has not been paid within 7 days after it became due and the
7 claimant concludes the prosecution of the claim before a judge
8 of compensation claims without having specifically claimed
9 additional compensation in the nature of a penalty under this
10 section, the claimant will be deemed to have acknowledged
11 that, owing to conditions over which the employer or carrier
12 had no control, such installment could not be paid within the
13 period prescribed for payment and to have waived the right to
14 claim such penalty. However, during the course of a hearing,
15 the judge of compensation claims shall on her or his own
16 motion raise the question of whether such penalty should be
17 awarded or excused. The department may assess without a
18 hearing the punitive penalty against either the employer or
19 the insurance carrier, depending upon who was at fault in
20 causing the delay. The insurance policy cannot provide that
21 this sum will be paid by the carrier if the department or the
22 judge of compensation claims determines that the punitive
23 penalty should be paid made by the employer rather than the
24 carrier. Any additional installment of compensation paid by
25 the carrier pursuant to this section shall be paid directly to
26 the employee by check or, if authorized by the employee, by
27 direct deposit into the employee's account at a financial
28 institution. As used in this subsection, the term "financial
29 institution" means a financial institution as defined in s.
30 655.005(1)(h).
31 (b) For medical services provided on or after January
56
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 1, 2004, the department shall require that all medical,
2 hospital, pharmacy, or dental bills properly submitted by the
3 provider, except for bills that are disallowed or denied by
4 the carrier or its authorized vendor in accordance with
5 department rule, are timely paid within 45 calendar days after
6 the carrier's receipt of the bill. The department shall impose
7 penalties for late payments or disallowances or denials of
8 medical, hospital, pharmacy, or dental bills that are below a
9 minimum 95 percent timely performance standard. The carrier
10 shall pay to the Workers' Compensation Administration Trust
11 Fund a penalty of:
12 1. Twenty-five dollars for each bill below the 95
13 percent timely performance standard, but meeting a 90 percent
14 timely standard.
15 2. Fifty dollars for each bill below a 90 percent
16 timely performance standard.
17 (8)(a) In addition to any other penalties provided by
18 this chapter for late payment, if any installment of
19 compensation is not paid when it becomes due, the employer,
20 carrier, or servicing agent shall pay interest thereon at the
21 rate of 12 percent per year from the date the installment
22 becomes due until it is paid, whether such installment is
23 payable without an order or under the terms of an order. The
24 interest payment shall be the greater of the amount of
25 interest due or $5.
26 (a) Within 30 days after final payment of compensation
27 has been made, the employer, carrier, or servicing agent shall
28 send to the department a notice, in accordance with a format
29 and manner prescribed by the department, stating that such
30 final payment has been made and stating the total amount of
31 compensation paid, the name of the employee and of any other
57
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 person to whom compensation has been paid, the date of the
2 injury or death, and the date to which compensation has been
3 paid.
4 (b) If the employer, carrier, or servicing agent fails
5 to so notify the department within such time, the department
6 shall assess against such employer, carrier, or servicing
7 agent a civil penalty in an amount not over $100.
8 (b)(c) In order to ensure carrier compliance under
9 this chapter and provisions of the Florida Insurance Code, the
10 office department shall monitor, audit, and investigate the
11 performance of carriers by conducting market conduct
12 examinations, as provided in s. 624.3161, and conducting
13 investigations, as provided in s. 624.317. The office
14 department shall require establish by rule minimum performance
15 standards for carriers to ensure that a minimum of 90 percent
16 of all compensation benefits are timely paid in accordance
17 with this section. The office department shall impose
18 penalties fine a carrier as provided in s. 440.13(11)(b) up to
19 $50 for each late payments payment of compensation that are is
20 below a the minimum 95 90 percent timely payment performance
21 standard. The carrier shall pay to the Workers' Compensation
22 Administration Trust Fund a penalty of:
23 1. Fifty dollars per number of installments of
24 compensation below the 95 percent timely payment performance
25 standard and equal to or greater than a 90 percent timely
26 payment performance standard.
27 2. One hundred dollars per number of installments of
28 compensation below a 90 percent timely payment performance
29 standard.
30
31 This section does not affect the imposition of any penalties
58
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 or interest due to the claimant. If a carrier contracts with a
2 servicing agent to fulfill its administrative responsibilities
3 under this chapter, the payment practices of the servicing
4 agent are deemed the payment practices of the carrier for the
5 purpose of assessing penalties against the carrier.
6 Section 16. Subsection (7) is added to section 440.38,
7 Florida Statutes, to read:
8 440.38 Security for compensation; insurance carriers
9 and self-insurers.--
10 (7) Any employer who meets the requirements of
11 subsection (1) through a policy of insurance issued outside of
12 this state must at all times, with respect to all employees
13 working in this state, maintain the required coverage under a
14 Florida endorsement using Florida rates and rules pursuant to
15 payroll reporting that accurately reflects the work performed
16 in this state by such employees.
17 Section 17. Subsections (2) and (6) of section
18 440.381, Florida Statutes, are amended to read:
19 440.381 Application for coverage; reporting payroll;
20 payroll audit procedures; penalties.--
21 (2) Submission of an application that contains false,
22 misleading, or incomplete information provided with the
23 purpose of avoiding or reducing the amount of premiums for
24 workers' compensation coverage is a felony of the second
25 degree, punishable as provided in s. 775.082, s. 775.083, or
26 s. 775.084. The application must contain a statement that the
27 filing of an application containing false, misleading, or
28 incomplete information provided with the purpose of avoiding
29 or reducing the amount of premiums for workers' compensation
30 coverage is a felony of the third degree, punishable as
31 provided in s. 775.082, s. 775.083, or s. 775.084. The
59
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 application must contain a sworn statement by the employer
2 attesting to the accuracy of the information submitted and
3 acknowledging the provisions of former s. 440.37(4). The
4 application must contain a sworn statement by the agent
5 attesting that the agent explained to the employer or officer
6 the classification codes that are used for premium
7 calculations.
8 (6)(a) If an employer understates or conceals payroll,
9 or misrepresents or conceals employee duties so as to avoid
10 proper classification for premium calculations, or
11 misrepresents or conceals information pertinent to the
12 computation and application of an experience rating
13 modification factor, the employer, or the employer's agent or
14 attorney, shall pay to the insurance carrier a penalty of 10
15 times the amount of the difference in premium paid and the
16 amount the employer should have paid and reasonable attorney's
17 fees. The penalty may be enforced in the circuit courts of
18 this state.
19 (b) If the department determines that an employer has
20 materially understated or concealed payroll, has materially
21 misrepresented or concealed employee duties so as to avoid
22 proper classification for premium calculations, or has
23 materially misrepresented or concealed information pertinent
24 to the computation and application of an experience rating
25 modification factor, the department shall immediately notify
26 the employer's carrier of such determination. The carrier
27 shall commence a physical onsite audit of the employer within
28 30 days after receiving notification from the department. If
29 the carrier fails to commence the audit as required by this
30 section, the department shall contract with auditing
31 professionals to conduct the audit at the carrier's expense. A
60
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 copy of the carrier's audit of the employer shall be provided
2 to the department upon completion. The carrier is not required
3 to conduct the physical onsite audit of the employer as set
4 forth in this paragraph if the carrier gives written notice of
5 cancellation to the employer within 30 days after receiving
6 notification from the department of the material
7 misrepresentation, understatement, or concealment and an audit
8 is conducted in conjunction with the cancellation.
9 Section 18. Subsection (3) of section 440.42, Florida
10 Statutes, is amended to read:
11 440.42 Insurance policies; liability.--
12 (3) No contract or policy of insurance issued by a
13 carrier under this chapter shall expire or be canceled until
14 at least 30 days have elapsed after a notice of cancellation
15 has been sent to the department and to the employer in
16 accordance with the provisions of s. 440.185(7). For
17 cancellation due to nonpayment of premium, the insurer shall
18 mail notification to the employer at least 10 days prior to
19 the effective date of the cancellation. However, when
20 duplicate or dual coverage exists by reason of two different
21 carriers having issued policies of insurance to the same
22 employer securing the same liability, it shall be presumed
23 that only that policy with the later effective date shall be
24 in force and that the earlier policy terminated upon the
25 effective date of the latter. In the event that both policies
26 carry the same effective date, one of the policies may be
27 canceled instanter upon filing a notice of cancellation with
28 the department and serving a copy thereof upon the employer in
29 such manner as the department prescribes by rule. The
30 department may by rule prescribe the content of the notice of
31 retroactive cancellation and specify the time, place, and
61
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 manner in which the notice of cancellation is to be served.
2 Section 19. Section 440.525, Florida Statutes, is
3 amended to read:
4 440.525 Examination and investigation of carriers and
5 claims-handling entities.--
6 (1) The department may examine, or investigate any
7 each carrier, third-party administrator, servicing agent, or
8 other claims-handling entity as often as is warranted to
9 ensure that it is carriers are fulfilling its their
10 obligations under this chapter the law. The examination may
11 cover any period of the carrier's operations since the last
12 previous examination.
13 (2) An examination may cover any period of the
14 carrier's, third-party administrator's, servicing agent's, or
15 other claims-handling entity's operations since the last
16 previous examination. An investigation based upon a reasonable
17 belief by the department that a material violation of this
18 chapter has occurred may cover any time period, but may not
19 predate the last examination by more than 5 years. The
20 department may by rule establish procedures, standards, and
21 protocols for examinations and investigations. If the
22 department finds any violation of this chapter, it may impose
23 administrative penalties pursuant to this chapter. If the
24 department finds any self-insurer in violation of this
25 chapter, it may take action pursuant s. 440.38(3).
26 Examinations or investigations by the department may address,
27 but are not limited to addressing, patterns or practices of
28 unreasonable delay in claims handling; timeliness and accuracy
29 of payments and reports under ss. 440.13, 440.16, and 440.185;
30 or patterns or practices of harassment, coercion, or
31 intimidation of claimants. The department may also specify by
62
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 rule the documentation to be maintained for each claim file.
2 (3) As to any examination or investigation conducted
3 under this chapter, the department shall have the power to
4 conduct onsite inspections of claims records and documentation
5 of a carrier, third-party administrator, servicing agent, or
6 other claims-handling entity, and conduct interviews, both
7 sworn and unsworn, of claims-handling personnel. Carriers,
8 third-party administrators, servicing agents, and other
9 claims-handling entities shall make all claims records,
10 documentation, communication, and correspondence available to
11 department personnel during regular business hours. If any
12 person fails to comply with a request for production of
13 records or documents or fails to produce an employee for
14 interview, the department may compel production or attendance
15 by subpoena. The results of an examination or investigation
16 shall be provided to the carrier, third-party administrator,
17 servicing agent, or other claims-handling entity in a written
18 report setting forth the basis for any violations that are
19 asserted. Such report is agency action for purposes of chapter
20 120, and the aggrieved party may request a proceeding under s.
21 120.57 with regard to the findings and conclusion of the
22 report.
23 (4) If the department finds that violations of this
24 chapter have occurred, the department may impose an
25 administrative penalty upon the offending entity or entities.
26 For each offending entity, such penalties shall not exceed
27 $2,500 for each pattern or practice constituting nonwillful
28 violation and shall not exceed an aggregate amount of $10,000
29 for all nonwillful violations arising out of the same action.
30 If the department finds a pattern of practice that constitutes
31 a willful violation, the department may impose an
63
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 administrative penalty upon each offending entity not to
2 exceed $20,000 for each willful pattern or practice. Such
3 fines shall not exceed $100,000 for all willful violations
4 arising out of the same action. No penalty assessed under this
5 section may be recouped by any carrier in the rate base, the
6 premium, or any rate filing. Any administrative penalty
7 imposed under this section for a nonwillful violation shall
8 not duplicate an administrative penalty imposed under another
9 provision of this chapter or the Insurance Code. The
10 department may adopt rules to implement this section. The
11 department shall adopt penalty guidelines by rule to set
12 penalties under this chapter.
13 Section 20. Subsection (2) of section 627.162, Florida
14 Statutes, is amended to read:
15 627.162 Requirements for premium installments;
16 delinquency, collection, and check return charges; attorney's
17 fees.--
18 (2) Insurers providing workers' compensation coverage
19 under chapter 440 may charge the insured a delinquency and
20 collection fee on each installment in default for a period of
21 not less than 5 days in an amount not to exceed $25 $10 or 5
22 percent of the delinquent installment, whichever is greater.
23 Only one such delinquency and collection fee may be collected
24 on any such installment regardless of the period during which
25 it remains in default.
26 Section 21. Section 627.285, Florida Statutes, is
27 created to read:
28 627.285 Independent actuarial peer review of workers'
29 compensation rating organization.--The Financial Services
30 Commission shall at least once every other year contract for
31 an independent actuarial peer review and analysis of the
64
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 ratemaking processes of any licensed rating organization that
2 makes rate filings for workers' compensation insurance and the
3 rating organization shall fully cooperate in the peer review.
4 The contract shall require submission of a final report to the
5 commission, the President of the Senate, and the Speaker of
6 the House of Representatives by February 1. The first report
7 shall be submitted by February 1, 2004. The costs of the
8 independent actuarial peer review shall be paid from the
9 Workers' Compensation Administration Trust Fund.
10 Section 22. Effective July, 1, 2003, paragraphs (b),
11 (c), and (d) of subsection (4) of section 627.311, Florida
12 Statutes, are amended to read
13 627.311 Joint underwriters and joint reinsurers.--
14 (4)
15 (b) The operation of the plan is subject to the
16 supervision of a 9-member 13-member board of governors. The
17 board of governors shall be comprised of:
18 1. Three members appointed by the Financial Services
19 Commission. Each member appointed by the commission shall
20 serve at the pleasure of the commission;
21 2.1. Two Five of the 20 domestic insurers, as defined
22 in s. 624.06(1), having the largest voluntary direct premiums
23 written in this state for workers' compensation and employer's
24 liability insurance, which shall be elected by those 20
25 domestic insurers;
26 3.2. Two Five of the 20 foreign insurers as defined in
27 s. 624.06(2) having the largest voluntary direct premiums
28 written in this state for workers' compensation and employer's
29 liability insurance, which shall be elected by those 20
30 foreign insurers;
31 3. One person, who shall serve as the chair, appointed
65
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 by the Insurance Commissioner;
2 4. One person appointed by the largest property and
3 casualty insurance agents' association in this state; and
4 5. The consumer advocate appointed under s. 627.0613
5 or the consumer advocate's designee.
6
7 Each board member shall serve a 4-year term and may serve
8 consecutive terms. A vacancy on the board shall be filled in
9 the same manner as the original appointment for the unexpired
10 portion of the term. The Financial Services Commission shall
11 designate a member of the board to serve as chair. No board
12 member shall be an insurer which provides service to the plan
13 or which has an affiliate which provides services to the plan
14 or which is serviced by a service company or third-party
15 administrator which provides services to the plan or which has
16 an affiliate which provides services to the plan. The minutes,
17 audits, and procedures of the board of governors are subject
18 to chapter 119.
19 (c) The operation of the plan shall be governed by a
20 plan of operation that is prepared at the direction of the
21 board of governors. The plan of operation may be changed at
22 any time by the board of governors or upon request of the
23 department. The plan of operation and all changes thereto are
24 subject to the approval of the department. The plan of
25 operation shall:
26 1. Authorize the board to engage in the activities
27 necessary to implement this subsection, including, but not
28 limited to, borrowing money.
29 2. Develop criteria for eligibility for coverage by
30 the plan, including, but not limited to, documented rejection
31 by at least two insurers which reasonably assures that
66
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 insureds covered under the plan are unable to acquire coverage
2 in the voluntary market. Any insured may voluntarily elect to
3 accept coverage from an insurer for a premium equal to or
4 greater than the plan premium if the insurer writing the
5 coverage adheres to the provisions of s. 627.171.
6 3. Require notice from the agent to the insured at the
7 time of the application for coverage that the application is
8 for coverage with the plan and that coverage may be available
9 through an insurer, group self-insurers' fund, commercial
10 self-insurance fund, or assessable mutual insurer through
11 another agent at a lower cost.
12 4. Establish programs to encourage insurers to provide
13 coverage to applicants of the plan in the voluntary market and
14 to insureds of the plan, including, but not limited to:
15 a. Establishing procedures for an insurer to use in
16 notifying the plan of the insurer's desire to provide coverage
17 to applicants to the plan or existing insureds of the plan and
18 in describing the types of risks in which the insurer is
19 interested. The description of the desired risks must be on a
20 form developed by the plan.
21 b. Developing forms and procedures that provide an
22 insurer with the information necessary to determine whether
23 the insurer wants to write particular applicants to the plan
24 or insureds of the plan.
25 c. Developing procedures for notice to the plan and
26 the applicant to the plan or insured of the plan that an
27 insurer will insure the applicant or the insured of the plan,
28 and notice of the cost of the coverage offered; and developing
29 procedures for the selection of an insuring entity by the
30 applicant or insured of the plan.
31 d. Provide for a market-assistance plan to assist in
67
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 the placement of employers. All applications for coverage in
2 the plan received 45 days before the effective date for
3 coverage shall be processed through the market-assistance
4 plan. A market-assistance plan specifically designed to serve
5 the needs of small good policyholders as defined by the board
6 must be finalized by January 1, 1994.
7 5. Provide for policy and claims services to the
8 insureds of the plan of the nature and quality provided for
9 insureds in the voluntary market.
10 6. Provide for the review of applications for coverage
11 with the plan for reasonableness and accuracy, using any
12 available historic information regarding the insured.
13 7. Provide for procedures for auditing insureds of the
14 plan which are based on reasonable business judgment and are
15 designed to maximize the likelihood that the plan will collect
16 the appropriate premiums.
17 8. Authorize the plan to terminate the coverage of and
18 refuse future coverage for any insured that submits a
19 fraudulent application to the plan or provides fraudulent or
20 grossly erroneous records to the plan or to any service
21 provider of the plan in conjunction with the activities of the
22 plan.
23 9. Establish service standards for agents who submit
24 business to the plan.
25 10. Establish criteria and procedures to prohibit any
26 agent who does not adhere to the established service standards
27 from placing business with the plan or receiving, directly or
28 indirectly, any commissions for business placed with the plan.
29 11. Provide for the establishment of reasonable safety
30 programs for all insureds in the plan. All insureds of the
31 plan must participate in the safety program.
68
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 12. Authorize the plan to terminate the coverage of
2 and refuse future coverage to any insured who fails to pay
3 premiums or surcharges when due; who, at the time of
4 application, is delinquent in payments of workers'
5 compensation or employer's liability insurance premiums or
6 surcharges owed to an insurer, group self-insurers' fund,
7 commercial self-insurance fund, or assessable mutual insurer
8 licensed to write such coverage in this state; or who refuses
9 to substantially comply with any safety programs recommended
10 by the plan.
11 13. Authorize the board of governors to provide the
12 services required by the plan through staff employed by the
13 plan, through reasonably compensated service providers who
14 contract with the plan to provide services as specified by the
15 board of governors, or through a combination of employees and
16 service providers.
17 14. Provide for service standards for service
18 providers, methods of determining adherence to those service
19 standards, incentives and disincentives for service, and
20 procedures for terminating contracts for service providers
21 that fail to adhere to service standards.
22 15. Provide procedures for selecting service providers
23 and standards for qualification as a service provider that
24 reasonably assure that any service provider selected will
25 continue to operate as an ongoing concern and is capable of
26 providing the specified services in the manner required.
27 16. Provide for reasonable accounting and
28 data-reporting practices.
29 17. Provide for annual review of costs associated with
30 the administration and servicing of the policies issued by the
31 plan to determine alternatives by which costs can be reduced.
69
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 18. Authorize the acquisition of such excess insurance
2 or reinsurance as is consistent with the purposes of the plan.
3 19. Provide for an annual report to the department on
4 a date specified by the department and containing such
5 information as the department reasonably requires.
6 20. Establish multiple rating plans for various
7 classifications of risk which reflect risk of loss, hazard
8 grade, actual losses, size of premium, and compliance with
9 loss control. At least one of such plans must be a
10 preferred-rating plan to accommodate small-premium
11 policyholders with good experience as defined in
12 sub-subparagraph 22.a.
13 21. Establish agent commission schedules.
14 22. Establish four three subplans as follows:
15 a. Subplan "A" must include those insureds whose
16 annual premium does not exceed $2,500 and who have neither
17 incurred any lost-time claims nor incurred medical-only claims
18 exceeding 50 percent of their premium for the immediate 2
19 years.
20 b. Subplan "B" must include insureds that are
21 employers identified by the board of governors as high-risk
22 employers due solely to the nature of the operations being
23 performed by those insureds and for whom no market exists in
24 the voluntary market, and whose experience modifications are
25 less than 1.00.
26 c. Subplan "C" must include all other insureds within
27 the plan that are not eligible for subplan "A," subplan "B,"
28 or subplan "D."
29 d. Subplan "D" must include any employer, regardless
30 of the length of time for which it has conducted business
31 operations, which has an experience modification factor of
70
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 1.10 or less and either employs 15 or fewer employees or is an
2 organization that is exempt from federal income tax pursuant
3 to s. 501(c)(3) of the Internal Revenue Code and receives more
4 than 50 percent of its funding from gifts, grants, endowments,
5 or federal or state contracts. The rate plan for subplan "D"
6 shall be the same rate plan as the plan approved under ss.
7 627.091-627.151 and each participant in subplan "D" shall pay
8 the premium determined under such rate plan, plus a surcharge
9 determined by the board to be sufficient to ensure that the
10 plan does not compete with the voluntary market rate for any
11 participant, but not to exceed 25 percent. However, the
12 surcharge shall not exceed 10 percent for an organization that
13 is exempt from federal income tax pursuant to s. 501(c)(3) of
14 the Internal Revenue Code.
15 23. Provide for a depopulation program to reduce the
16 number of insureds in subplan "D." If an employer insured
17 through subplan "D" is offered coverage from a voluntary
18 market carrier:
19 a. During the first 30 days of coverage under the
20 subplan;
21 b. Before a policy is issued under the subplan;
22 c. By issuance of a policy upon expiration or
23 cancellation of the policy under the subplan; or
24 d. By assumption of the subplan's obligation with
25 respect to an in-force policy,
26
27 that employer is no longer eligible for coverage through the
28 plan. The premium for risks assumed by the voluntary market
29 carrier must be the same premium plus, for the first 2 years,
30 the surcharge as determined in sub-subparagraph 22.d. A
31 premium under this subparagraph, including surcharge, is
71
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 deemed approved and is not an excess premium for purposes of
2 s. 627.171.
3 24. Require that policies issued under subplan "D" and
4 applications for such policies must include a notice that the
5 policy issued under subplan "D" could be replaced by a policy
6 issued from a voluntary market carrier and that, if an offer
7 of coverage is obtained from a voluntary market carrier, the
8 policyholder is no longer eligible for coverage through
9 subplan "D." The notice must also specify that acceptance of
10 coverage under subplan "D" creates a conclusive presumption
11 that the applicant or policyholder is aware of this potential.
12 (d)1. The plan must be funded through actuarially
13 sound premiums charged to insureds of the plan.
14 2. The plan may issue assessable policies only to
15 those insureds in subplan "C." and subplan "D." Subject to
16 verification by the department, the board may levy assessments
17 against insureds in subplan "C" or subplan "D," on a pro rata
18 earned premium basis, to fund any deficits that exist in those
19 subplans. Assessments levied against subplan "C" participants
20 shall cover only the deficits attributable to subplan "C," and
21 assessments levied against subplan "D" participants shall
22 cover only the deficits attributable to subplan "D." In no
23 event may the plan levy assessments against any person or
24 entity, except as authorized by this paragraph. Those
25 assessable policies must be clearly identified as assessable
26 by containing, in contrasting color and in not less than
27 10-point type, the following statements: "This is an
28 assessable policy. If the plan is unable to pay its
29 obligations, policyholders will be required to contribute on a
30 pro rata earned premium basis the money necessary to meet any
31 assessment levied."
72
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 3. The plan may issue assessable policies with
2 differing terms and conditions to different groups within
3 subplans "C" and "D" the plan when a reasonable basis exists
4 for the differentiation.
5 4. The plan may offer rating, dividend plans, and
6 other plans to encourage loss prevention programs.
7 Section 23. Paragraphs (c) and (e) of subsection (3)
8 of section 921.0022, Florida Statutes, are amended to read:
9 921.0022 Criminal Punishment Code; offense severity
10 ranking chart.--
11 Florida Felony
12 Statute Degree Description
13
14 (c) LEVEL 3
15 316.193(2)(b) 3rd Felony DUI, 3rd conviction.
16 316.1935(2) 3rd Fleeing or attempting to elude
17 law enforcement officer in marked
18 patrol vehicle with siren and
19 lights activated.
20 319.30(4) 3rd Possession by junkyard of motor
21 vehicle with identification
22 number plate removed.
23 319.33(1)(a) 3rd Alter or forge any certificate of
24 title to a motor vehicle or
25 mobile home.
26 319.33(1)(c) 3rd Procure or pass title on stolen
27 vehicle.
28 319.33(4) 3rd With intent to defraud, possess,
29 sell, etc., a blank, forged, or
30 unlawfully obtained title or
31 registration.
73
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 327.35(2)(b) 3rd Felony BUI.
2 328.05(2) 3rd Possess, sell, or counterfeit
3 fictitious, stolen, or fraudulent
4 titles or bills of sale of
5 vessels.
6 328.07(4) 3rd Manufacture, exchange, or possess
7 vessel with counterfeit or wrong
8 ID number.
9 376.302(5) 3rd Fraud related to reimbursement
10 for cleanup expenses under the
11 Inland Protection Trust Fund.
12 440.105(3)b. 3rd Receipt of fee or consideration
13 without approval by judge of
14 compensation claims.
15 440.1051(3) 3rd False report of workers'
16 compensation fraud or retaliation
17 for making such a report.
18 501.001(2)(b) 2nd Tampers with a consumer product
19 or the container using materially
20 false/misleading information.
21 697.08 3rd Equity skimming.
22 790.15(3) 3rd Person directs another to
23 discharge firearm from a vehicle.
24 796.05(1) 3rd Live on earnings of a prostitute.
25 806.10(1) 3rd Maliciously injure, destroy, or
26 interfere with vehicles or
27 equipment used in firefighting.
28 806.10(2) 3rd Interferes with or assaults
29 firefighter in performance of
30 duty.
31
74
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 810.09(2)(c) 3rd Trespass on property other than
2 structure or conveyance armed
3 with firearm or dangerous weapon.
4 812.014(2)(c)2. 3rd Grand theft; $5,000 or more but
5 less than $10,000.
6 812.0145(2)(c) 3rd Theft from person 65 years of age
7 or older; $300 or more but less
8 than $10,000.
9 815.04(4)(b) 2nd Computer offense devised to
10 defraud or obtain property.
11 817.034(4)(a)3. 3rd Engages in scheme to defraud
12 (Florida Communications Fraud
13 Act), property valued at less
14 than $20,000.
15 817.233 3rd Burning to defraud insurer.
16 817.234(8)&(9) 3rd Unlawful solicitation of persons
17 involved in motor vehicle
18 accidents.
19 817.234(11)(a) 3rd Insurance fraud; property value
20 less than $20,000.
21 817.505(4) 3rd Patient brokering.
22 828.12(2) 3rd Tortures any animal with intent
23 to inflict intense pain, serious
24 physical injury, or death.
25 831.28(2)(a) 3rd Counterfeiting a payment
26 instrument with intent to defraud
27 or possessing a counterfeit
28 payment instrument.
29 831.29 2nd Possession of instruments for
30 counterfeiting drivers' licenses
31 or identification cards.
75
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 838.021(3)(b) 3rd Threatens unlawful harm to public
2 servant.
3 843.19 3rd Injure, disable, or kill police
4 dog or horse.
5 870.01(2) 3rd Riot; inciting or encouraging.
6 893.13(1)(a)2. 3rd Sell, manufacture, or deliver
7 cannabis (or other s.
8 893.03(1)(c), (2)(c)1., (2)(c)2.,
9 (2)(c)3., (2)(c)5., (2)(c)6.,
10 (2)(c)7., (2)(c)8., (2)(c)9.,
11 (3), or (4) drugs).
12 893.13(1)(d)2. 2nd Sell, manufacture, or deliver s.
13 893.03(1)(c), (2)(c)1., (2)(c)2.,
14 (2)(c)3., (2)(c)5., (2)(c)6.,
15 (2)(c)7., (2)(c)8., (2)(c)9.,
16 (3), or (4) drugs within 200 feet
17 of university or public park.
18 893.13(1)(f)2. 2nd Sell, manufacture, or deliver s.
19 893.03(1)(c), (2)(c)1., (2)(c)2.,
20 (2)(c)3., (2)(c)5., (2)(c)6.,
21 (2)(c)7., (2)(c)8., (2)(c)9.,
22 (3), or (4) drugs within 200 feet
23 of public housing facility.
24 893.13(6)(a) 3rd Possession of any controlled
25 substance other than felony
26 possession of cannabis.
27 893.13(7)(a)8. 3rd Withhold information from
28 practitioner regarding previous
29 receipt of or prescription for a
30 controlled substance.
31
76
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 893.13(7)(a)9. 3rd Obtain or attempt to obtain
2 controlled substance by fraud,
3 forgery, misrepresentation, etc.
4 893.13(7)(a)10. 3rd Affix false or forged label to
5 package of controlled substance.
6 893.13(7)(a)11. 3rd Furnish false or fraudulent
7 material information on any
8 document or record required by
9 chapter 893.
10 893.13(8)(a)1. 3rd Knowingly assist a patient, other
11 person, or owner of an animal in
12 obtaining a controlled substance
13 through deceptive, untrue, or
14 fraudulent representations in or
15 related to the practitioner's
16 practice.
17 893.13(8)(a)2. 3rd Employ a trick or scheme in the
18 practitioner's practice to assist
19 a patient, other person, or owner
20 of an animal in obtaining a
21 controlled substance.
22 893.13(8)(a)3. 3rd Knowingly write a prescription
23 for a controlled substance for a
24 fictitious person.
25 893.13(8)(a)4. 3rd Write a prescription for a
26 controlled substance for a
27 patient, other person, or an
28 animal if the sole purpose of
29 writing the prescription is a
30 monetary benefit for the
31 practitioner.
77
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 918.13(1)(a) 3rd Alter, destroy, or conceal
2 investigation evidence.
3 944.47
4 (1)(a)1.-2. 3rd Introduce contraband to
5 correctional facility.
6 944.47(1)(c) 2nd Possess contraband while upon the
7 grounds of a correctional
8 institution.
9 985.3141 3rd Escapes from a juvenile facility
10 (secure detention or residential
11 commitment facility).
12 (e) LEVEL 5
13 316.027(1)(a) 3rd Accidents involving personal
14 injuries, failure to stop;
15 leaving scene.
16 316.1935(4) 2nd Aggravated fleeing or eluding.
17 322.34(6) 3rd Careless operation of motor
18 vehicle with suspended license,
19 resulting in death or serious
20 bodily injury.
21 327.30(5) 3rd Vessel accidents involving
22 personal injury; leaving scene.
23 381.0041
24 (11)(b) 3rd Donate blood, plasma, or organs
25 knowing HIV positive.
26 440.10(1)(g) 2nd Failure to obtain workers'
27 compensation coverage.
28 440.105(5) 2nd Unlawful solicitation for the
29 purpose of making workers'
30 compensation claims.
31
78
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 440.381(2) 2nd Submission of false, misleading,
2 or incomplete information with
3 the purpose of avoiding or
4 reducing workers' compensation
5 premiums.
6 790.01(2) 3rd Carrying a concealed firearm.
7 790.162 2nd Threat to throw or discharge
8 destructive device.
9 790.163(1) 2nd False report of deadly explosive
10 or weapon of mass destruction.
11 790.221(1) 2nd Possession of short-barreled
12 shotgun or machine gun.
13 790.23 2nd Felons in possession of firearms
14 or electronic weapons or devices.
15 800.04(6)(c) 3rd Lewd or lascivious conduct;
16 offender less than 18 years.
17 800.04(7)(c) 2nd Lewd or lascivious exhibition;
18 offender 18 years or older.
19 806.111(1) 3rd Possess, manufacture, or dispense
20 fire bomb with intent to damage
21 any structure or property.
22 812.0145(2)(b) 2nd Theft from person 65 years of age
23 or older; $10,000 or more but
24 less than $50,000.
25 812.015(8) 3rd Retail theft; property stolen is
26 valued at $300 or more and one or
27 more specified acts.
28 812.019(1) 2nd Stolen property; dealing in or
29 trafficking in.
30 812.131(2)(b) 3rd Robbery by sudden snatching.
31
79
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 812.16(2) 3rd Owning, operating, or conducting
2 a chop shop.
3 817.034(4)(a)2. 2nd Communications fraud, value
4 $20,000 to $50,000.
5 817.234(11)(b) 2nd Insurance fraud; property value
6 $20,000 or more but less than
7 $100,000.
8 817.568(2)(b) 2nd Fraudulent use of personal
9 identification information; value
10 of benefit, services received,
11 payment avoided, or amount of
12 injury or fraud, $75,000 or more.
13 817.625(2)(b) 2nd Second or subsequent fraudulent
14 use of scanning device or
15 reencoder.
16 825.1025(4) 3rd Lewd or lascivious exhibition in
17 the presence of an elderly person
18 or disabled adult.
19 827.071(4) 2nd Possess with intent to promote
20 any photographic material, motion
21 picture, etc., which includes
22 sexual conduct by a child.
23 839.13(2)(b) 2nd Falsifying records of an
24 individual in the care and
25 custody of a state agency
26 involving great bodily harm or
27 death.
28 843.01 3rd Resist officer with violence to
29 person; resist arrest with
30 violence.
31
80
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 874.05(2) 2nd Encouraging or recruiting another
2 to join a criminal street gang;
3 second or subsequent offense.
4 893.13(1)(a)1. 2nd Sell, manufacture, or deliver
5 cocaine (or other s.
6 893.03(1)(a), (1)(b), (1)(d),
7 (2)(a), (2)(b), or (2)(c)4.
8 drugs).
9 893.13(1)(c)2. 2nd Sell, manufacture, or deliver
10 cannabis (or other s.
11 893.03(1)(c), (2)(c)1., (2)(c)2.,
12 (2)(c)3., (2)(c)5., (2)(c)6.,
13 (2)(c)7., (2)(c)8., (2)(c)9.,
14 (3), or (4) drugs) within 1,000
15 feet of a child care facility or
16 school.
17 893.13(1)(d)1. 1st Sell, manufacture, or deliver
18 cocaine (or other s.
19 893.03(1)(a), (1)(b), (1)(d),
20 (2)(a), (2)(b), or (2)(c)4.
21 drugs) within 200 feet of
22 university or public park.
23 893.13(1)(e)2. 2nd Sell, manufacture, or deliver
24 cannabis or other drug prohibited
25 under s. 893.03(1)(c), (2)(c)1.,
26 (2)(c)2., (2)(c)3., (2)(c)5.,
27 (2)(c)6., (2)(c)7., (2)(c)8.,
28 (2)(c)9., (3), or (4) within
29 1,000 feet of property used for
30 religious services or a specified
31 business site.
81
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 893.13(1)(f)1. 1st Sell, manufacture, or deliver
2 cocaine (or other s.
3 893.03(1)(a), (1)(b), (1)(d), or
4 (2)(a), (2)(b), or (2)(c)4.
5 drugs) within 200 feet of public
6 housing facility.
7 893.13(4)(b) 2nd Deliver to minor cannabis (or
8 other s. 893.03(1)(c), (2)(c)1.,
9 (2)(c)2., (2)(c)3., (2)(c)5.,
10 (2)(c)6., (2)(c)7., (2)(c)8.,
11 (2)(c)9., (3), or (4) drugs).
12 Section 24. Report to the Legislature regarding
13 outstanding enforcement issues.--The Department of Financial
14 Services shall, no later than January 1, 2004, provide a
15 report to the President of the Senate, the Speaker of the
16 House of Representatives, the minority leaders of the Senate
17 and the House of Representatives, and the chairs of the
18 standing committees of the Senate and the House of
19 Representatives having jurisdiction over insurance issues,
20 containing the following information:
21 (1) Any provision of chapter 440, Florida Statutes,
22 relating to workers' compensation carrier compliance and
23 enforcement, that the department finds it is unable to
24 enforce.
25 (2) Any administrative rule relating to workers'
26 compensation carrier compliance and enforcement that the
27 department finds it is unable to enforce.
28 (3) Any other impediment to enforcement of chapter
29 440, Florida Statutes, resulting from the transfer of
30 activities from the former Department of Labor and Employment
31 Security to the department or the reorganization of the former
82
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 Department of Insurance into the department.
2 Section 25. (1) There is established a Joint Select
3 Committee on Workers Compensation Rating Reform. The committee
4 shall study the merits of requiring each workers' compensation
5 insurer to individually file its expense and profit portion of
6 a rate filing, while permitting each insurer to use a lost
7 cost filing made by a licensed rating organization. The
8 committee shall also study options for the current prior
9 approval system for workers compensation rate filings,
10 including, but not limited to, rate filing procedures that
11 would promote greater competition and would encourage insurers
12 to write workers' compensation coverage in the state while
13 protecting employers from rates that are excessive,
14 inadequate, or unfairly discriminatory.
15 (2) The committee shall be composed of three Senators
16 appointed by the President of the Senate and three
17 Representatives appointed by the Speaker of the House of
18 Representatives. The appointed members of the committee shall
19 elect a chair and vice chair. The Department of Financial
20 Services shall provide information and assistance as requested
21 by the committee.
22 (3) The committee shall issue its final report and
23 recommendations to the President of the Senate and the Speaker
24 of the House of Representatives by December 1, 2003. The
25 committee shall terminate on December 1, 2003.
26 Section 26. The board of governors of the joint
27 underwriting plan for workers' compensation insurance created
28 by section 627.311(4), Florida Statutes, shall, by January 1,
29 2005, submit a report to the President of the Senate, the
30 Speaker of the House of Representatives, the minority party
31 leaders of the Senate and the House of Representatives, and
83
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 the chairs of the standing committees of the Senate and the
2 House of Representatives having jurisdiction over matters
3 relating to workers' compensation. The report shall include
4 the board's findings and recommendations on the following
5 issues:
6 (1) The number of policies and the aggregate premium
7 of the workers' compensation joint underwriting plan, before
8 and after enactment of this act, and projections for future
9 policy and premium growth.
10 (2) Increases or decreases in availability of workers'
11 compensation coverage in the voluntary market and the
12 effectiveness of this act in improving the availability of
13 workers' compensation coverage in the state.
14 (3) The board's efforts to depopulate the plan and the
15 willingness of insurers in the voluntary market to avail
16 themselves of depopulation incentives.
17 (4) Further actions that could be taken by the
18 Legislature to improve availability of workers' compensation
19 coverage in the voluntary and residual markets.
20 (5) Actions that the board has taken to restructure
21 the joint underwriting plan and recommendations for
22 legislative action to restructure the plan.
23 (6) Projected surpluses or deficits and possible means
24 of providing funding to ensure the continued solvency of the
25 plan.
26 (7) An independent actuarial review of all rates under
27 the plan. The costs of the independent actuarial review shall
28 be paid from the Workers' Compensation Administration Trust
29 Fund, pursuant to a budget amendment approved by the
30 Legislative Budget Commission. The board shall submit a plan
31 for such review to the Legislative Budget Commission by
84
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 October 1, 2003.
2 (8) Such other issues as the board determines are
3 worthy of the Legislature's consideration.
4 Section 27. Subsections (1) and (2) of section
5 443.1715, Florida Statutes, are amended to read:
6 443.1715 Disclosure of information; confidentiality.--
7 (1) RECORDS AND REPORTS.--Information revealing the
8 employing unit's or individual's identity obtained from the
9 employing unit or from any individual pursuant to the
10 administration of this chapter, and any determination
11 revealing such information, except to the extent necessary for
12 the proper presentation of a claim or upon written
13 authorization of the claimant who has a workers' compensation
14 claim pending or is receiving compensation benefits, must be
15 held confidential and exempt from the provisions of s.
16 119.07(1) and s. 24(a), Art. I of the State Constitution. Such
17 information may be made available only to public employees in
18 the performance of their public duties, including employees of
19 the Department of Education in obtaining information for the
20 Florida Education and Training Placement Information Program
21 and the Office of Tourism, Trade, and Economic Development in
22 its administration of the qualified defense contractor tax
23 refund program authorized by s. 288.1045 and the qualified
24 target industry tax refund program authorized by s. 288.106.
25 Except as otherwise provided by law, public employees
26 receiving such information must retain the confidentiality of
27 such information. Any claimant, or the claimant's legal
28 representative, at a hearing before an appeals referee or the
29 commission shall be supplied with information from such
30 records to the extent necessary for the proper presentation of
31 her or his claim. Any employee or member of the commission or
85
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 any employee of the division, or any other person receiving
2 confidential information, who violates any provision of this
3 subsection commits a misdemeanor of the second degree,
4 punishable as provided in s. 775.082 or s. 775.083. However,
5 the division may furnish to any employer copies of any report
6 previously submitted by such employer, upon the request of
7 such employer, and may furnish to any claimant copies of any
8 report previously submitted by such claimant, upon the request
9 of such claimant, and the division is authorized to charge
10 therefor such reasonable fee as the division may by rule
11 prescribe not to exceed the actual reasonable cost of the
12 preparation of such copies. Fees received by the division for
13 copies as provided in this subsection must be deposited to the
14 credit of the Employment Security Administration Trust Fund.
15 (2) DISCLOSURE OF INFORMATION.--
16 (a) Subject to such restrictions as the division
17 prescribes by rule, information declared confidential under
18 this section may be made available to any agency of this or
19 any other state, or any federal agency, charged with the
20 administration of any unemployment compensation law or the
21 maintenance of a system of public employment offices, or the
22 Bureau of Internal Revenue of the United States Department of
23 the Treasury, or the Florida Department of Revenue and
24 information obtained in connection with the administration of
25 the employment service may be made available to persons or
26 agencies for purposes appropriate to the operation of a public
27 employment service or a job-preparatory or career education or
28 training program. The division shall on a quarterly basis,
29 furnish the National Directory of New Hires with information
30 concerning the wages and unemployment compensation paid to
31 individuals, by such dates, in such format and containing such
86
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 information as the Secretary of Health and Human Services
2 shall specify in regulations. Upon request therefor, the
3 division shall furnish any agency of the United States charged
4 with the administration of public works or assistance through
5 public employment, and may furnish to any state agency
6 similarly charged, the name, address, ordinary occupation, and
7 employment status of each recipient of benefits and such
8 recipient's rights to further benefits under this chapter.
9 Except as otherwise provided by law, the receiving agency must
10 retain the confidentiality of such information as provided in
11 this section. The division may request the Comptroller of the
12 Currency of the United States to cause an examination of the
13 correctness of any return or report of any national banking
14 association rendered pursuant to the provisions of this
15 chapter and may in connection with such request transmit any
16 such report or return to the Comptroller of the Currency of
17 the United States as provided in s. 3305(c) of the federal
18 Internal Revenue Code.
19 (b)1. The employer or the employer's workers'
20 compensation carrier against whom a claim for benefits under
21 chapter 440 has been made, or a representative of either, may
22 request from the division records of wages of the employee
23 reported to the division by any employer for the quarter that
24 includes the date of the accident that is the subject of such
25 claim and for subsequent quarters. The request must be made
26 with the authorization or consent of the employee or any
27 employer who paid wages to the employee subsequent to the date
28 of the accident.
29 2. The employer or carrier shall make the request on a
30 form prescribed by rule for such purpose by the division. Such
31 form shall contain a certification by the requesting party
87
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 that it is a party entitled to the information requested as
2 authorized by this paragraph.
3 3. The division shall provide the most current
4 information readily available within 15 days after receiving
5 the request.
6 Section 28. Subsection (9) of section 626.989, Florida
7 Statutes, is amended to read:
8 626.989 Investigation by department or Division of
9 Insurance Fraud; compliance; immunity; confidential
10 information; reports to division; division investigator's
11 power of arrest.--
12 (9) In recognition of the complementary roles of
13 investigating instances of workers' compensation fraud and
14 enforcing compliance with the workers' compensation coverage
15 requirements under chapter 440, the Department of Financial
16 Services shall Insurance is directed to prepare and submit a
17 joint performance report to the President of the Senate and
18 the Speaker of the House of Representatives by November 1,
19 2003, and then by January 1 of each year November 1 every 3
20 years thereafter, describing the results obtained in achieving
21 compliance with the workers' compensation coverage
22 requirements and reducing the incidence of workers'
23 compensation fraud. The annual report must include, but need
24 not be limited to:
25 (a) The total number of initial referrals received,
26 cases opened, cases presented for prosecution, cases closed,
27 and convictions resulting from cases presented for prosecution
28 by the Bureau of Workers' Compensation Insurance Fraud by type
29 of workers' compensation fraud and circuit.
30 (b) The number of referrals received from insurers and
31 the Division of Workers' Compensation and the outcome of those
88
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 referrals.
2 (c) The number of investigations undertaken by the
3 office which were not the result of a referral from an insurer
4 or the Division of Workers' Compensation.
5 (d) The number of investigations that resulted in a
6 referral to a regulatory agency and the disposition of those
7 referrals.
8 (e) The number and reasons provided by local
9 prosecutors or the statewide prosecutor for declining
10 prosecution of a case presented by the office by circuit.
11 (f) The total number of employees assigned to the
12 office and the Division of Workers' Compliance unit delineated
13 by location of staff assigned and the number and location of
14 employees assigned to the office who were assigned to work
15 other types of fraud cases.
16 (g) The average caseload and turnaround time by type
17 of case for each investigator and division compliance
18 employee.
19 (h) The training provided during the year to workers'
20 compensation fraud investigators and the division's compliance
21 employees.
22 Section 29. Section 626.9891, Florida Statutes, is
23 amended to read:
24 626.9891 Insurer anti-fraud investigative units;
25 reporting requirements; penalties for noncompliance.--
26 (1) Every insurer admitted to do business in this
27 state who in the previous calendar year, at any time during
28 that year, had $10 million or more in direct premiums written
29 shall:
30 (a) Establish and maintain a unit or division within
31 the company to investigate possible fraudulent claims by
89
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 insureds or by persons making claims for services or repairs
2 against policies held by insureds; or
3 (b) Contract with others to investigate possible
4 fraudulent claims for services or repairs against policies
5 held by insureds.
6
7 An insurer subject to this subsection shall file with the
8 Division of Insurance Fraud of the department on or before
9 July 1, 1996, a detailed description of the unit or division
10 established pursuant to paragraph (a) or a copy of the
11 contract and related documents required by paragraph (b).
12 (2) Every insurer admitted to do business in this
13 state, which in the previous calendar year had less than $10
14 million in direct premiums written, must adopt an anti-fraud
15 plan and file it with the Division of Insurance Fraud of the
16 department on or before July 1, 1996. An insurer may, in lieu
17 of adopting and filing an anti-fraud plan, comply with the
18 provisions of subsection (1).
19 (3) Each insurers anti-fraud plans shall include:
20 (a) A description of the insurer's procedures for
21 detecting and investigating possible fraudulent insurance
22 acts;
23 (b) A description of the insurer's procedures for the
24 mandatory reporting of possible fraudulent insurance acts to
25 the Division of Insurance Fraud of the department;
26 (c) A description of the insurer's plan for anti-fraud
27 education and training of its claims adjusters or other
28 personnel; and
29 (d) A written description or chart outlining the
30 organizational arrangement of the insurer's anti-fraud
31 personnel who are responsible for the investigation and
90
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 reporting of possible fraudulent insurance acts.
2 (4) Any insurer who obtains a certificate of authority
3 after July 1, 1995, shall have 18 months in which to comply
4 with the requirements of this section.
5 (5) For purposes of this section, the term "unit or
6 division" includes the assignment of fraud investigation to
7 employees whose principal responsibilities are the
8 investigation and disposition of claims. If an insurer creates
9 a distinct unit or division, hires additional employees, or
10 contracts with another entity to fulfill the requirements of
11 this section, the additional cost incurred must be included as
12 an administrative expense for ratemaking purposes.
13 (6) Each insurer writing workers' compensation
14 insurance shall report to the department, on or before August
15 1 of each year, on its experience in implementing and
16 maintaining an anti-fraud investigative unit or an anti-fraud
17 plan. The report must include, at a minimum:
18 (a) The dollar amount of recoveries and losses
19 attributable to workers' compensation fraud delineated by the
20 type of fraud: claimant, employer, provider, agent, or other.
21 (b) The number of referrals to the Bureau of Workers'
22 Compensation Fraud for the prior year.
23 (c) A description of the organization of the
24 anti-fraud investigative unit, if applicable, including the
25 position titles and descriptions of staffing.
26 (d) The rationale for the level of staffing and
27 resources being provided for the anti-fraud investigative
28 unit, which may include objective criteria such as number of
29 policies written, number of claims received on an annual
30 basis, volume of suspected fraudulent claims currently being
31 detected, other factors, and an assessment of optimal caseload
91
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 that can be handled by an investigator on an annual basis.
2 (e) The in-service education and training provided to
3 underwriting and claims personnel to assist in identifying and
4 evaluating instances of suspected fraudulent activity in
5 underwriting or claims activities.
6 (f) A description of a public awareness program
7 focused on the costs and frequency of insurance fraud and
8 methods by which the public can prevent it.
9 (7) If an insurer fails to submit a final anti-fraud
10 plan or otherwise fails to submit a plan, fails to implement
11 the provisions of a plan or an anti-fraud investigative unit,
12 or otherwise refuses to comply with the provisions of this
13 section, the department may:
14 (a) Impose an administrative fine of not more than
15 $2,000 per day for such failure by an insurer, until the
16 department deems the insurer to be in compliance;
17 (b) Impose upon the insurer a fraud detection and
18 prevention plan that is deemed to be appropriate by the
19 department and that must be implemented by the insurer; or
20 (c) Impose the provisions of both paragraphs (a) and
21 (b).
22 (8) The department may adopt rules to administer this
23 section.
24 Section 30. The amendments to sections 440.02 and
25 440.15, Florida Statutes, which are made by this act shall not
26 be construed to affect any determination of disability under
27 section 112.18, section 112.181, or section 112.19, Florida
28 Statutes.
29 Section 31. If any law amended by this act was also
30 amended by a law enacted at the 2003 Regular Session of the
31 Legislature, such laws shall be construed as if they had been
92
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 enacted at the same session of the Legislature, and full
2 effect shall be given to each if possible.
3 Section 32. Except as otherwise provided herein, this
4 act shall take effect October 1, 2003.
5
6
7 ================ T I T L E A M E N D M E N T ===============
8 And the title is amended as follows:
9 Delete everything before the enacting clause
10
11 and insert:
12 A bill to be entitled
13 An act relating to workers' compensation;
14 amending s. 440.02, F.S.; providing, revising
15 definitions; amending s. 440.05, F.S.; revising
16 authorization to claim exemptions and
17 requirements relating to submitting notice of
18 election of exemption; specifying effect of
19 exemption; providing a definition; amending s.
20 440.06, F.S.; revising provisions relating to
21 failure to secure compensation; amending s.
22 440.077, F.S.; providing that a corporate
23 officer electing to be exempt may not receive
24 benefits; amending s. 440.09, F.S.; providing
25 definitions; revising provisions relating to
26 drug testing; specifying effect of criminal
27 acts; amending s. 440.10, F.S.; requiring
28 subcontractors to provide evidence of workers'
29 compensation coverage or proof of exemption to
30 a contractor; deleting provisions relating to
31 independent contractors; amending s. 440.1025,
93
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 F.S.; revising requirements relating to
2 workplace safety programs; amending s. 440.103,
3 F.S.; providing conditions for applying for
4 building permits; amending s. 440.105, F.S.;
5 increasing criminal penalties for certain
6 violations; providing sanctions for violation
7 of stop-work orders and presentation of certain
8 false or misleading statements as evidence;
9 amending s. 440.1051, F.S.; increasing criminal
10 penalty for false reports; amending s. 440.107,
11 F.S.; providing additional powers to the
12 Department of Financial Services relating to
13 compliance and enforcement; providing a
14 definition; providing penalties; amending s.
15 440.15, F.S.; providing additional limitations
16 on compensation for permanent total disability;
17 providing a definition; amending s. 440.185,
18 F.S.; specifying duty of employer upon receipt
19 of notice of injury or death; increasing
20 penalties for noncompliance; amending s.
21 440.20, F.S.; revising provisions relating to
22 timely payment of compensation and medical
23 bills and penalties for late payment; amending
24 s. 440.38, F.S.; providing requirement for
25 employers with coverage provided by insurers
26 from outside the state; amending s. 440.381,
27 F.S.; providing criminal penalty for unlawful
28 applications; requiring on-site audits of
29 employers under certain circumstances; amending
30 s. 440.42, F.S.; revising provision relating to
31 notice of cancellation of coverage; amending s.
94
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 440.525, F.S.; providing for the Office of
2 Insurance Regulation of the Financial Services
3 Commission to conduct examinations and
4 investigations of claims-handling entities;
5 providing penalties; providing for rules;
6 amending s. 627.162, F.S.; revising delinquency
7 and collection fee for late payment of premium
8 installments; creating s. 627.285, F.S.;
9 providing for annual actuarial peer review of
10 rating organization processes; requiring a
11 report; amending s. 627.311, F.S.; revising
12 membership of the board of governors of the
13 workers' compensation joint underwriting plan;
14 requiring participation in safety programs;
15 providing for an additional subplan within the
16 joint underwriting plan for workers'
17 compensation insurance; providing for rates,
18 surcharges, and assessments; limiting
19 assessment powers; amending s. 921.0022, F.S.;
20 revising the offense severity ranking chart to
21 reflect changes in penalties under the act;
22 requiring a report to the Legislature from the
23 Department of Financial Services regarding
24 provisions of law relating to enforcement;
25 establishing a Joint Select Committee on
26 Workers' Compensation Rating Reform and
27 specifying duties thereof; providing for
28 termination of the committee; requiring the
29 board of governors of the workers' compensation
30 joint underwriting plan to submit a report to
31 the Legislature; amending s. 443.1715, F.S.;
95
8:23 PM 05/19/03 s0050Ac-32m0c
SENATE AMENDMENT
Bill No. SB 50-A
Amendment No. ___ Barcode 635010
1 revising provisions relating to records and
2 reports; providing for disclosure of specified
3 information; amending s. 625.989, F.S.;
4 providing that the Department of Financial
5 Services shall prepare an annual report
6 relating to workers' compensation fraud and
7 compliance; amending s. 626.9891, F.S.;
8 amending reporting requirements for insurers;
9 providing penalties for noncompliance;
10 providing for rules; providing that amendments
11 to ss. 440.02 and 440.15, F.S., do not affect
12 certain disability, determination, and
13 benefits; providing for construction of the act
14 in pari materia with laws enacted during the
15 Regular Session of the Legislature; providing
16 effective dates.
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
96
8:23 PM 05/19/03 s0050Ac-32m0c