Senate Bill sb0050A

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    Florida Senate - 2003                                  SB 50-A

    By Senators Clary, Alexander and Atwater





    4-2575B-03                             See HB 25A, Engrossed 1

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.02, F.S.; providing, revising,

  4         and deleting definitions; amending s. 440.05,

  5         F.S.; revising authorization to claim

  6         exemptions and requirements relating to

  7         submitting notice of election of exemption;

  8         specifying effect of exemption; providing a

  9         definition; amending s. 440.06, F.S.; revising

10         provisions relating to failure to secure

11         compensation; amending s. 440.077, F.S.;

12         providing that a corporate officer electing to

13         be exempt may not receive benefits; amending s.

14         440.09, F.S.; revising provisions relating to

15         compensation for subsequent injuries; providing

16         definitions; revising provisions relating to

17         drug testing; specifying effect of criminal

18         acts; creating s. 440.093, F.S.; providing for

19         compensability of mental and nervous injuries;

20         amending s. 440.10, F.S.; revising provisions

21         relating to contractors and subcontractors with

22         regard to liability for compensation; requiring

23         subcontractors to provide evidence of workers'

24         compensation coverage or proof of exemption to

25         a contractor; deleting provisions relating to

26         independent contractors; amending s. 440.1025,

27         F.S.; revising requirements relating to

28         workplace safety programs; amending s. 440.103,

29         F.S.; providing conditions for applying for

30         building permits; amending s. 440.105, F.S.;

31         increasing criminal penalties for certain

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         violations; providing sanctions for violation

 2         of stop-work orders and presentation of certain

 3         false or misleading statements as evidence;

 4         amending s. 440.1051, F.S.; increasing criminal

 5         penalty for false reports; amending s. 440.107,

 6         F.S.; providing additional powers to the

 7         Department of Financial Services relating to

 8         compliance and enforcement; providing a

 9         definition; providing penalties; amending s.

10         440.11, F.S.; providing exclusiveness of

11         liability; revising provisions relating to

12         employer and safety consultant immunity from

13         liability; amending s. 440.13, F.S.; providing

14         for practice parameters and treatment

15         protocols; revising provisions relating to

16         provider reimbursement; requiring revision of

17         specified reimbursement schedules; providing

18         for release of information; providing

19         additional criteria for independent medical

20         examinations; providing a definition; providing

21         standards for medical care under ch. 440, F.S.;

22         providing penalties; amending s. 440.134, F.S.;

23         revising provisions relating to managed care

24         arrangements; revising definitions; providing

25         for assignment of a medical care coordinator;

26         amending s. 440.14, F.S.; revising provisions

27         relating to calculation of average weekly wage

28         for injured employees; conforming

29         cross-references; amending s. 440.15, F.S.;

30         providing additional limitations on

31         compensation for permanent total disability;

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         providing a definition; specifying impairment

 2         benefits and providing for partial reduction

 3         under certain circumstances; deleting

 4         provisions relating to supplemental benefits;

 5         amending s. 440.151, F.S.; specifying

 6         compensability of occupational disease;

 7         providing a definition; amending s. 440.16,

 8         F.S.; increasing the limits on the amount of

 9         certain benefits paid as compensation for

10         death; amending s. 440.185, F.S.; specifying

11         duty of employer upon receipt of notice of

12         injury or death; increasing penalties for

13         noncompliance; amending s. 440.192, F.S.;

14         revising procedure for resolving benefit

15         disputes; requiring a petition for benefits to

16         include all claims which are ripe, due, and

17         owing; providing that the Chief Judge, rather

18         than the Deputy Chief Judge, shall refer

19         petitions for benefits; creating s. 440.1926,

20         F.S.; providing for alternative dispute

21         resolution and arbitration of claims; amending

22         s. 440.20, F.S.; revising provisions relating

23         to timely payment of compensation and medical

24         bills and penalties for late payment;

25         prohibiting the clerk of the circuit court from

26         assessing certain fees or costs; amending s.

27         440.25, F.S.; revising procedures for mediation

28         and hearings; amending s. 440.34, F.S.;

29         revising provisions relating to the award of

30         attorney's fees; amending s. 440.38, F.S.;

31         providing requirement for employers with

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         coverage provided by insurers from outside the

 2         state; amending s. 440.381, F.S.; providing

 3         criminal penalty for unlawful applications;

 4         requiring on-site audits of employers under

 5         certain circumstances; amending s. 440.42,

 6         F.S.; revising provision relating to notice of

 7         cancellation of coverage; amending s. 440.49,

 8         F.S., to conform cross-references; amending s.

 9         440.491, F.S.; providing training and education

10         requirements and benefits relating to

11         reemployment of injured workers; providing for

12         rules; amending s. 440.525, F.S.; providing for

13         the Office of Insurance Regulation of the

14         Financial Services Commission to conduct

15         examinations and investigations of

16         claims-handling entities; providing penalties;

17         providing for rules; amending s. 627.162, F.S.;

18         revising delinquency and collection fee for

19         late payment of premium installments; creating

20         s. 627.285, F.S.; providing for annual

21         actuarial peer review of rating organization

22         processes; requiring a report; amending s.

23         627.311, F.S.; revising membership of the board

24         of governors of the workers' compensation joint

25         underwriting plan; requiring participation in

26         safety programs; providing for an additional

27         subplan within the joint underwriting plan for

28         workers' compensation insurance; providing for

29         rates, surcharges, and assessments; limiting

30         assessment powers; amending s. 921.0022, F.S.;

31         revising the offense severity ranking chart to

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         reflect changes in penalties under the act;

 2         requiring a report to the Legislature from the

 3         Department of Financial Services regarding

 4         provisions of law relating to enforcement;

 5         amending ss. 946.523 and 985.315, F.S., to

 6         conform cross-references; establishing a Joint

 7         Select Committee on Workers' Compensation

 8         Rating Reform and specifying duties thereof;

 9         providing for termination of the committee;

10         requiring the board of governors of the

11         workers' compensation joint underwriting plan

12         to submit a report to the Legislature; amending

13         s. 443.1715, F.S.; revising provisions relating

14         to records and reports; providing for

15         disclosure of specified information; amending

16         s. 625.989, F.S.; providing that the Department

17         of Financial Services shall prepare an annual

18         report relating to workers' compensation fraud

19         and compliance; amending s. 626.9891, F.S.;

20         amending reporting requirements for insurers;

21         providing penalties for noncompliance;

22         providing for rules; repealing s. 440.1925,

23         F.S., relating to procedure for resolving

24         maximum medical improvement or permanent

25         impairment disputes; providing that amendments

26         to ss. 440.02 and 440.15, F.S., do not affect

27         certain disability, determination, and

28         benefits; providing for construction of the act

29         in pari materia with laws enacted during the

30         Regular Session of the Legislature; providing

31         effective dates.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

 2  

 3         Section 1.  Effective upon this act becoming a law,

 4  subsections (1), (15), (29), (38), (40), (41), and (42) of

 5  section 440.02, Florida Statutes, are amended to read:

 6         440.02  Definitions.--When used in this chapter, unless

 7  the context clearly requires otherwise, the following terms

 8  shall have the following meanings:

 9         (1)  "Accident" means only an unexpected or unusual

10  event or result that happens suddenly. A mental or nervous

11  injury due to stress, fright, or excitement only, or

12  Disability or death due to the accidental acceleration or

13  aggravation of a venereal disease or of a disease due to the

14  habitual use of alcohol or controlled substances or narcotic

15  drugs, or a disease that manifests itself in the fear of or

16  dislike for an individual because of the individual's race,

17  color, religion, sex, national origin, age, or handicap is not

18  an injury by accident arising out of the employment. Subject

19  to s. 440.15(5), if a preexisting disease or anomaly is

20  accelerated or aggravated by an accident arising out of and in

21  the course of employment, only acceleration of death or

22  acceleration or aggravation of the preexisting condition

23  reasonably attributable to the accident is compensable, with

24  respect to any compensation otherwise payable under this

25  chapter death or permanent impairment. An injury or disease

26  caused by exposure to a toxic substance, including, but not

27  limited to, fungus or mold, is not an injury by accident

28  arising out of the employment unless there is clear and

29  convincing evidence establishing that exposure to the specific

30  substance involved, at the levels to which the employee was

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  exposed, can cause the injury or disease sustained by the

 2  employee.

 3         (15)(a)  "Employee" means any person engaged in any

 4  employment under any appointment or contract of hire or

 5  apprenticeship, express or implied, oral or written, whether

 6  lawfully or unlawfully employed, and includes, but is not

 7  limited to, aliens and minors.

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

 9  of a corporation and who performs services for remuneration

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

11  services are continuous.

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

13  from this chapter by filing written notice of the election

14  with the department as provided in s. 440.05.

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

16  engaged in the construction industry, no more than three

17  officers may elect to be exempt from this chapter by filing

18  written notice of the election with the department as provided

19  in s. 440.05. However, any exemption obtained by a corporate

20  officer of a corporation actively engaged in the construction

21  industry is not applicable with respect to any commercial

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

23  greater.

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

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

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

27  employee.

28  

29  Services are presumed to have been rendered to the corporation

30  if the officer is compensated by other than dividends upon

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

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (c)1.  "Employee" includes a sole proprietor or a

 2  partner who devotes full time to the proprietorship or

 3  partnership and, except as provided in this paragraph, elects

 4  to be included in the definition of employee by filing notice

 5  thereof as provided in s. 440.05. Partners or sole proprietors

 6  actively engaged in the construction industry are considered

 7  employees unless they elect to be excluded from the definition

 8  of employee by filing written notice of the election with the

 9  department as provided in s. 440.05. However, no more than

10  three partners in a partnership that is actively engaged in

11  the construction industry may elect to be excluded. A sole

12  proprietor or partner who is actively engaged in the

13  construction industry and who elects to be exempt from this

14  chapter by filing a written notice of the election with the

15  department as provided in s. 440.05 is not an employee. For

16  purposes of this chapter, an independent contractor is an

17  employee unless he or she meets all of the conditions set

18  forth in subparagraph (d)1.

19         2.  Notwithstanding the provisions of subparagraph 1.,

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

21  actively engaged in the construction industry with respect to

22  any commercial building project estimated to be valued at

23  $250,000 or greater. Any exemption obtained is not applicable,

24  with respect to work performed at such a commercial building

25  project.

26         (d)  "Employee" does not include:

27         1.  An independent contractor, if:

28         a.  The independent contractor maintains a separate

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

30  materials, or similar accommodations;

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         b.  The independent contractor holds or has applied for

 2  a federal employer identification number, unless the

 3  independent contractor is a sole proprietor who is not

 4  required to obtain a federal employer identification number

 5  under state or federal requirements;

 6         c.  The independent contractor performs or agrees to

 7  perform specific services or work for specific amounts of

 8  money and controls the means of performing the services or

 9  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,

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 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  Notwithstanding the provisions of this paragraph or any other

 6  provision of this chapter, with respect to any commercial

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

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

 9  industry is not an independent contractor and is either an

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

11  coverage requirements of this chapter.

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

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

14  of commission.

15         3.  Bands, orchestras, and musical and theatrical

16  performers, including disk jockeys, performing in licensed

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

18  evidencing an independent contractor relationship is entered

19  into before the commencement of such entertainment.

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

21  property under a written contract with a motor carrier which

22  evidences a relationship by which the owner-operator assumes

23  the responsibility of an employer for the performance of the

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

25  necessary motor vehicle equipment and all costs incidental to

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

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

28  owner-operator is paid a commission for transportation service

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

30  basis.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

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

 3  of the employer.

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

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

 6  A person who does not receive monetary remuneration for

 7  services is presumed to be a volunteer unless there is

 8  substantial evidence that a valuable consideration was

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

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

11         a.  Persons who serve in private nonprofit agencies and

12  who receive no compensation other than expenses in an amount

13  less than or equivalent to the standard mileage and per-diem

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

15  if such agency does not have salaried employees who receive

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

17  compensation other than expenses in an amount less than or

18  equivalent to the customary mileage and per diem paid to

19  salaried workers in the community as determined by the

20  department; and

21         b.  Volunteers participating in federal programs

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

23         7.  Any officer of a corporation who elects to be

24  exempt from this chapter.

25         8.  A sole proprietor or officer of a corporation who

26  actively engages in the construction industry, and a partner

27  in a partnership that is actively engaged in the construction

28  industry, who elects to be exempt from the provisions of this

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

30  employee for any reason until the notice of revocation of

31  election filed pursuant to s. 440.05 is effective.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

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

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

 4  into prior to the commencement of such activity which

 5  evidences that an employee/employer relationship does not

 6  exist.

 7         10.  A taxicab, limousine, or other passenger

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

 9  a written agreement with a company which provides any

10  dispatch, marketing, insurance, communications, or other

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

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

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

14  revenues.

15         11.  A person who performs services as a sports

16  official for an entity sponsoring an interscholastic sports

17  event or for a public entity or private, nonprofit

18  organization that sponsors an amateur sports event. For

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

20  contractor. For purposes of this subparagraph, the term

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

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

23  umpires, referees, judges, linespersons, scorekeepers, or

24  timekeepers. This subparagraph does not apply to any person

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

26  official as required by the employing school board or who

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

28  responsibilities during normal school hours.

29         (29)  "Weekly compensation rate" means and refers to

30  the amount of compensation payable for a period of 7

31  consecutive calendar days, including any Saturdays, Sundays,

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  holidays, and other nonworking days which fall within such

 2  period of 7 consecutive calendar days. When Saturdays,

 3  Sundays, holidays, or other nonworking days immediately follow

 4  the first 7 calendar days of disability or occur at the end of

 5  a period of disability as the last day or days of such period,

 6  such nonworking days constitute a part of the period of

 7  disability with respect to which compensation is payable.

 8         (38)  "Catastrophic injury" means a permanent

 9  impairment constituted by the loss of both hands, both arms,

10  both feet, both legs, or both eyes, or any two thereof, or

11  paraplegia or quadriplegia.:

12         (a)  Spinal cord injury involving severe paralysis of

13  an arm, a leg, or the trunk;

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

15  involving the effective loss of use of that appendage;

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

17  by:

18         1.  Severe sensory or motor disturbances;

19         2.  Severe communication disturbances;

20         3.  Severe complex integrated disturbances of cerebral

21  function;

22         4.  Severe episodic neurological disorders; or

23         5.  Other severe brain and closed-head injury

24  conditions at least as severe in nature as any condition

25  provided in subparagraphs 1.-4.;

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

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

28  percent or more to the face and hands;

29         (e) Total or industrial blindness; or

30         (f) Any other injury that would otherwise qualify under

31  this chapter of a nature and severity that would qualify an

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  employee to receive disability income benefits under Title II

 2  or supplemental security income benefits under Title XVI of

 3  the federal Social Security Act as the Social Security Act

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

 5  limitations provided under that act.

 6         (40)  "Statement," for the purposes of ss. 440.105 and

 7  440.106, shall include the exact fraud statement language in

 8  s. 440.105(7). This requirement includes, but is not limited

 9  to, any notice, representation, statement, proof of injury,

10  bill for services, diagnosis, prescription, hospital or doctor

11  record, X ray, test result, or other evidence of loss, injury,

12  or expense.

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

14  for benefits sufficient to put the employer or carrier on

15  notice of the exact statutory classification and outstanding

16  time period of benefits being requested and includes a

17  detailed explanation of any benefits received that should be

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

19  petition is for medical benefits, the information shall

20  include specific details as to why such benefits are being

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

22  current treatment, if any, is not sufficient. Any petition

23  requesting alternate or other medical care, including, but not

24  limited to, petitions requesting psychiatric or psychological

25  treatment, must specifically identify the physician, as

26  defined in s. 440.13(1), that is recommending such treatment.

27  A copy of a report from such physician making the

28  recommendation for alternate or other medical care shall also

29  be attached to the petition. A judge of compensation claims

30  shall not order such treatment if a physician is not

31  recommending such treatment. "Commercial building" means any

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  building or structure intended for commercial or industrial

 2  use, or any building or structure intended for multifamily use

 3  of more than four dwelling units, as well as any accessory use

 4  structures constructed in conjunction with the principal

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

 6  the conversion of any existing residential building to a

 7  commercial building.

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

 9  structure intended for residential use containing four or

10  fewer dwelling units and any structures intended as an

11  accessory use to the residential structure.

12         Section 2.  Effective January 1, 2004, subsections (8),

13  (15), and (16) of section 440.02, Florida Statutes, as amended

14  by this act, are amended to read:

15         440.02  Definitions.--When used in this chapter, unless

16  the context clearly requires otherwise, the following terms

17  shall have the following meanings:

18         (8)  "Construction industry" means for-profit

19  activities involving the carrying out of any building,

20  clearing, filling, excavation, or substantial improvement in

21  the size or use of any structure or the appearance of any

22  land. When appropriate to the context, "construction" refers

23  to the act of construction or the result of construction.

24  However, "construction" does shall not mean a homeowner's

25  landowner's act of construction or the result of a

26  construction upon his or her own premises, provided such

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

28  the owner within 1 year after the commencement of

29  construction. The division may, by rule, establish standard

30  industrial classification codes and definitions thereof which

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  meet the criteria of the term "construction industry" as set

 2  forth in this section.

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

 4  remuneration from an employer for the performance of any work

 5  or service while engaged in any employment under any

 6  appointment or contract for of hire or apprenticeship, express

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

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

 9  minors.

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

11  of a corporation and who performs services for remuneration

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

13  services are continuous.

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

15  from this chapter by filing written notice of the election

16  with the department as provided in s. 440.05.

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

18  engaged in the construction industry, no more than three

19  officers of a corporation or of any group of affiliated

20  corporations may elect to be exempt from this chapter by

21  filing written notice of the election with the department as

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

23  owning at least 10 percent of the stock of such corporation

24  and listed as an officer of such corporation with the Division

25  of Corporations of the Department of State, in order to elect

26  exemptions under this chapter. For purposes of this

27  subparagraph, the term "affiliated" means and includes one or

28  more corporations or entities, any one of which is a

29  corporation engaged in the construction industry, under the

30  same or substantially the same control of a group of business

31  entities which are connected or associated so that one entity

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  controls or has the power to control each of the other

 2  business entities. The term "affiliated" includes, but is not

 3  limited to, the officers, directors, executives, shareholders

 4  active in management, employees, and agents of the affiliated

 5  corporation. The ownership by one business entity of a

 6  controlling interest in another business entity or a pooling

 7  of equipment or income among business entities shall be prima

 8  facie evidence that one business is affiliated with the other.

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

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

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

12  employee.

13  

14  Services are presumed to have been rendered to the corporation

15  if the officer is compensated by other than dividends upon

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

17         (c)  "Employee" includes:

18         1.  A sole proprietor or a partner who is not engaged

19  in the construction industry, devotes full time to the

20  proprietorship or partnership, and, except as provided in this

21  paragraph, elects to be included in the definition of employee

22  by filing notice thereof as provided in s. 440.05. Partners or

23  sole proprietors actively engaged in the construction industry

24  are considered employees unless they elect to be excluded from

25  the definition of employee by filing written notice of the

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

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

28  actively engaged in the construction industry may elect to be

29  excluded. A sole proprietor or partner who is actively engaged

30  in the construction industry and who elects to be exempt from

31  this chapter by filing a written notice of the election with

                                  17

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  the department as provided in s. 440.05 is not an employee.

 2  For purposes of this chapter, an independent contractor is an

 3  employee unless he or she meets all of the conditions set

 4  forth in subparagraph (d)1.

 5         2.  All persons who are being paid by a construction

 6  contractor as a subcontractor, unless the subcontractor has

 7  validly elected an exemption as permitted by this chapter, or

 8  has otherwise secured the payment of compensation coverage as

 9  a subcontractor, consistent with s. 440.10, for work performed

10  by or as a subcontractor.

11         3.  An independent contractor working or performing

12  services in the construction industry.

13         4.  A sole proprietor who engages in the construction

14  industry and a partner or partnership that is engaged in the

15  construction industry.

16         (d)  "Employee" does not include:

17         1.  An independent contractor who is not engaged in the

18  construction industry., if:

19         a.  In order to meet the definition of independent

20  contractor, at least four of the following criteria must be

21  met:

22         (I)  The independent contractor maintains a separate

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

24  materials, or similar accommodations;

25         (II)  The independent contractor holds or has applied

26  for a federal employer identification number, unless the

27  independent contractor is a sole proprietor who is not

28  required to obtain a federal employer identification number

29  under state or federal regulations;

30  

31  

                                  18

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (III)  The independent contractor receives compensation

 2  for services rendered or work performed and such compensation

 3  is paid to a business rather than to an individual;

 4         (IV)  The independent contractor holds one or more bank

 5  accounts in the name of the business entity for purposes of

 6  paying business expenses or other expenses related to services

 7  rendered or work performed for compensation;

 8         (V)  The independent contractor performs work or is

 9  able to perform work for any entity in addition to or besides

10  the employer at his or her own election without the necessity

11  of completing an employment application or process; or

12         (VI)  The independent contractor receives compensation

13  for work or services rendered on a competitive-bid basis or

14  completion of a task or a set of tasks as defined by a

15  contractual agreement, unless such contractual agreement

16  expressly states that an employment relationship exists. The

17  independent contractor maintains a separate business with his

18  or her own work facility, truck, equipment, materials, or

19  similar accommodations;

20         b.  If four of the criteria listed in sub-subparagraph

21  a. do not exist, an individual may still be presumed to be an

22  independent contractor and not an employee based on full

23  consideration of the nature of the individual situation with

24  regard to satisfying any of the following conditions:

25         (I)  The independent contractor performs or agrees to

26  perform specific services or work for a specific amount of

27  money and controls the means of performing the services or

28  work.

29         (II)  The independent contractor incurs the principal

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

31  performs or agrees to perform.

                                  19

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (III)  The independent contractor is responsible for

 2  the satisfactory completion of the work or services that he or

 3  she performs or agrees to perform.

 4         (IV)  The independent contractor receives compensation

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

 6  per-job basis and not on any other basis.

 7         (V)  The independent contractor may realize a profit or

 8  suffer a loss in connection with performing work or services.

 9         (VI)  The independent contractor has continuing or

10  recurring business liabilities or obligations.

11         (VII)  The success or failure of the independent

12  contractor's business depends on the relationship of business

13  receipts to expenditures. The independent contractor holds or

14  has applied for a federal employer identification number,

15  unless the independent contractor is a sole proprietor who is

16  not required to obtain a federal employer identification

17  number under state or federal requirements;

18         c.  Notwithstanding anything to the contrary in this

19  subparagraph, an individual claiming to be an independent

20  contractor has the burden of proving that he or she is an

21  independent contractor for purposes of this chapter. The

22  independent contractor performs or agrees to perform specific

23  services or work for specific amounts of money and controls

24  the means of performing the services or work;

25         d.  The independent contractor incurs the principal

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

27  performs or agrees to perform;

28         e.  The independent contractor is responsible for the

29  satisfactory completion of work or services that he or she

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

31  for a failure to complete the work or services;

                                  20

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         f.  The independent contractor receives compensation

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

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

 4         g.  The independent contractor may realize a profit or

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

 6         h.  The independent contractor has continuing or

 7  recurring business liabilities or obligations; and

 8         i.  The success or failure of the independent

 9  contractor's business depends on the relationship of business

10  receipts to expenditures.

11  

12  However, the determination as to whether an individual

13  included in the Standard Industrial Classification Manual of

14  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

15  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

16  2448, or 2449, or a newspaper delivery person, is an

17  independent contractor is governed not by the criteria in this

18  paragraph but by common-law principles, giving due

19  consideration to the business activity of the individual.

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

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

22  of commission.

23         3.  Bands, orchestras, and musical and theatrical

24  performers, including disk jockeys, performing in licensed

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

26  evidencing an independent contractor relationship is entered

27  into before the commencement of such entertainment.

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

29  property under a written contract with a motor carrier which

30  evidences a relationship by which the owner-operator assumes

31  the responsibility of an employer for the performance of the

                                  21

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

 2  necessary motor vehicle equipment and all costs incidental to

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

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

 5  owner-operator is paid a commission for transportation service

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

 7  basis.

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

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

10  of the employer.

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

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

13  A person who does not receive monetary remuneration for

14  services is presumed to be a volunteer unless there is

15  substantial evidence that a valuable consideration was

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

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

18         a.  Persons who serve in private nonprofit agencies and

19  who receive no compensation other than expenses in an amount

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

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

22  if such agency does not have salaried employees who receive

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

24  compensation other than expenses in an amount less than or

25  equivalent to the customary mileage and per diem paid to

26  salaried workers in the community as determined by the

27  department; and

28         b.  Volunteers participating in federal programs

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

30         7.  Unless otherwise prohibited by this chapter, any

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

                                  22

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  chapter. Such officer is not an employee for any reason under

 2  this chapter until the notice of revocation of election filed

 3  pursuant to s. 440.05 is effective.

 4         8.  An a sole proprietor or officer of a corporation

 5  who actively engages in the construction industry, and a

 6  partner in a partnership that is actively engaged in the

 7  construction industry, who elects to be exempt from the

 8  provisions of this chapter, as otherwise permitted by this

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

10  employee for any reason until the notice of revocation of

11  election filed pursuant to s. 440.05 is effective.

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

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

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

15  into prior to the commencement of such activity which

16  evidences that an employee/employer relationship does not

17  exist.

18         10.  A taxicab, limousine, or other passenger

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

20  a written agreement with a company which provides any

21  dispatch, marketing, insurance, communications, or other

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

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

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

25  revenues.

26         11.  A person who performs services as a sports

27  official for an entity sponsoring an interscholastic sports

28  event or for a public entity or private, nonprofit

29  organization that sponsors an amateur sports event. For

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

31  contractor. For purposes of this subparagraph, the term

                                  23

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

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

 3  umpires, referees, judges, linespersons, scorekeepers, or

 4  timekeepers. This subparagraph does not apply to any person

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

 6  official as required by the employing school board or who

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

 8  responsibilities during normal school hours.

 9         12.  Medicaid-enrolled clients under chapter 393 who

10  are excluded from the definition of employment under s.

11  443.036(21)(d)5. and served by Adult Day Training Services

12  under the Home and Community-Based Medicaid Waiver program in

13  a sheltered workshop setting licensed by the United States

14  Department of Labor for the purpose of training and earning

15  less than the federal hourly minimum wage.

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

17  subdivisions thereof, all public and quasi-public corporations

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

19  legal representative of a deceased person or the receiver or

20  trustees of any person. "Employer" also includes employment

21  agencies, employee leasing companies, and similar agents who

22  provide employees to other persons. If the employer is a

23  corporation, parties in actual control of the corporation,

24  including, but not limited to, the president, officers who

25  exercise broad corporate powers, directors, and all

26  shareholders who directly or indirectly own a controlling

27  interest in the corporation, are considered the employer for

28  the purposes of ss. 440.105, and 440.106, and 440.107.

29         (b)  A homeowner shall not be considered the employer

30  of persons hired by the homeowner to carry out construction on

31  

                                  24

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  the homeowner's own premises if those premises are not

 2  intended for immediate lease, sale, or resale.

 3         (c)  Facilities serving individuals under subparagraph

 4  (15)(d)12. shall be considered agents of the Agency for Health

 5  Care Administration as it relates to providing Adult Day

 6  Training Services under the Home and Community-Based Medicaid

 7  Waiver program and not employers or third parties for the

 8  purpose of limiting or denying Medicaid benefits.

 9         Section 3.  Effective January 1, 2004, subsections (3),

10  (4), (6), (10), (11), and (12) of section 440.05, Florida

11  Statutes, are amended, present subsection (13) is renumbered

12  as subsection (11) and amended, and new subsections (12),

13  (13), (14), and (15) are added to that section, to read:

14         440.05  Election of exemption; revocation of election;

15  notice; certification.--

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

17  corporation who is actively engaged in the construction

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

19  after electing such exemption, revokes that exemption, must

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

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

22  be exempt from the provisions of this chapter must be

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

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

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

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

27  federal tax identification number, social security number, all

28  certified or registered licenses issued pursuant to chapter

29  489 held by the person seeking the exemption, a copy of

30  relevant documentation as to employment status filed with the

31  Internal Revenue Service as specified by the department, a

                                  25

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  copy of the relevant occupational license in the primary

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

 3  partners, the registration number of the corporation or

 4  partnership filed with the Division of Corporations of the

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

 6  evidencing the required ownership under this chapter. The

 7  notice of election to be exempt must identify each sole

 8  proprietorship, partnership, or corporation that employs the

 9  person electing the exemption and must list the social

10  security number or federal tax identification number of each

11  such employer and the additional documentation required by

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

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

14  electing an exemption is not entitled to benefits under this

15  chapter, must provide that the election does not exceed

16  exemption limits for officers and partnerships provided in s.

17  440.02, and must certify that any employees of the corporation

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

19  exemption are covered by workers' compensation insurance. Upon

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

21  all application fees, and a determination by the department

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

23  department shall issue a certification of the election to the

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

25  determines that the information contained in the notice is

26  invalid. The department shall revoke a certificate of election

27  to be exempt from coverage upon a determination by the

28  department that the person does not meet the requirements for

29  exemption or that the information contained in the notice of

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

31  must list the name names of the sole proprietorship,

                                  26

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  partnership, or corporation listed in the request for

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

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

 4  partnership, or different corporation that is not listed on

 5  the certificate of election. A copy of the certificate of

 6  election must be sent to each workers' compensation carrier

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

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

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

10  subcontractor must notify her or his contractor. Upon

11  revocation of a certificate of election of exemption by the

12  department, the department shall notify the workers'

13  compensation carriers identified in the request for exemption.

14         (4)  The notice of election to be exempt from the

15  provisions of this chapter must contain a notice that clearly

16  states in substance the following: "Any person who, knowingly

17  and with intent to injure, defraud, or deceive the department

18  or any employer or employee, insurance company, or any other

19  person purposes program, files a notice of election to be

20  exempt containing any false or misleading information is

21  guilty of a felony of the third degree." Each person filing a

22  notice of election to be exempt shall personally sign the

23  notice and attest that he or she has reviewed, understands,

24  and acknowledges the foregoing notice.

25         (6)  A construction industry certificate of election to

26  be exempt which is issued in accordance with this section

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

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

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

30  The construction industry certificate must expire at midnight,

31  2 years from its issue date, as noted on the face of the

                                  27

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  exemption certificate. Any person who has received from the

 2  division a construction industry certificate of election to be

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

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

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

 6  industry certificate of election to be exempt may be revoked

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

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

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

10  expiration date of a construction industry certificate of

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

12  send notice of the expiration date and an application for

13  renewal to the certificateholder at the address on the

14  certificate.

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

16  corporation who is actively engaged in the construction

17  industry and who elects an exemption from this chapter shall

18  maintain business records as specified by the division by

19  rule, which rules must include the provision that any

20  corporation with exempt officers and any partnership actively

21  engaged in the construction industry with exempt partners must

22  maintain written statements of those exempted persons

23  affirmatively acknowledging each such individual's exempt

24  status.

25         (11)  Any sole proprietor or partner actively engaged

26  in the construction industry claiming an exemption under this

27  section shall maintain a copy of his or her federal income tax

28  records for each of the immediately previous 3 years in which

29  he or she claims an exemption. Such federal income tax records

30  must include a complete copy of the following for each year in

31  which an exemption is claimed:

                                  28

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (a)  For sole proprietors, a copy of Federal Income Tax

 2  Form 1040 and its accompanying Schedule C;

 3         (b)  For partners, a copy of the partner's Federal

 4  Income Tax Schedule K-1 (Form 1065) and Federal Income Tax

 5  Form 1040 and its accompanying Schedule E.

 6  

 7  A sole proprietor or partner shall produce, upon request by

 8  the division, a copy of those documents together with a

 9  statement by the sole proprietor or partner that the tax

10  records provided are true and accurate copies of what the sole

11  proprietor or partner has filed with the federal Internal

12  Revenue Service. The statement must be signed under oath by

13  the sole proprietor or partner and must be notarized. The

14  division shall issue a stop-work order under s. 440.107(5) to

15  any sole proprietor or partner who fails or refuses to produce

16  a copy of the tax records and affidavit required under this

17  paragraph to the division within 3 business days after the

18  request is made.

19         (12)  For those sole proprietors or partners that have

20  not been in business long enough to provide the information

21  required of an established business, the division shall

22  require such sole proprietor or partner to provide copies of

23  the most recently filed Federal Income Tax Form 1040. The

24  division shall establish by rule such other criteria to show

25  that the sole proprietor or partner intends to engage in a

26  legitimate enterprise within the construction industry and is

27  not otherwise attempting to evade the requirements of this

28  section. The division shall establish by rule the form and

29  format of financial information required to be submitted by

30  such employers.

31  

                                  29

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (11)(13)  Any corporate officer permitted by this

 2  chapter to claim claiming an exemption under this section must

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

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

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

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

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

 8  division, a notarized affidavit stating that the individual is

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

10  his or her appointment or election as a corporate officer

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

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

13  operating officer of the corporation and must be notarized.

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

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

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

17  produce the documents required under this subsection to the

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

19         (12)  Certificates of election to be exempt issued

20  under subsection (3) shall apply only to the corporate officer

21  named on the notice of election to be exempt and apply only

22  within the scope of the business or trade listed on the notice

23  of election to be exempt.

24         (13)  Notices of election to be exempt and certificates

25  of election to be exempt shall be subject to revocation if, at

26  any time after the filing of the notice or the issuance of the

27  certificate, the person named on the notice or certificate no

28  longer meets the requirements of this section for issuance of

29  a certificate.  The department shall revoke a certificate at

30  any time for failure of the person named on the certificate to

31  meet the requirements of this section.

                                  30

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (14)  An officer of a corporation who elects exemption

 2  from this chapter by filing a certificate of election under

 3  this section may not recover benefits or compensation under

 4  this chapter. For purposes of determining the appropriate

 5  premium for workers' compensation coverage, carriers may not

 6  consider any officer of a corporation who validly meets the

 7  requirements of this section to be an employee.

 8         (15)  Any corporate officer who is an affiliated person

 9  of a person who is delinquent in paying a stop-work order and

10  penalty assessment order issued pursuant to s. 440.107, or

11  owed pursuant to a court order, is ineligible for an election

12  of exemption. The stop-work order and penalty assessment shall

13  be in effect against any such affiliated person. As used in

14  this subsection, the term "affiliated person" means:

15         (a)  The spouse of such other person;

16         (b)  Any person who directly or indirectly owns or

17  controls, or holds with the power to vote, 10 percent or more

18  of the outstanding voting securities of such other person;

19         (c)  Any person who directly or indirectly owns 10

20  percent or more of the outstanding voting securities that are

21  directly or indirectly owned, controlled, or held with the

22  power to vote by such other person;

23         (d)  Any person or group of persons who directly or

24  indirectly control, are controlled by, or are under common

25  control with such other person;

26         (e)  Any person who directly or indirectly acquires all

27  or substantially all of the other assets of such other person;

28         (f)  Any officer, director, trustee, partner, owner,

29  manager, joint venturer, or employee of such other person or a

30  person performing duties similar to persons in such positions;

31  or

                                  31

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (g)  Any person who has an officer, director, trustee,

 2  partner, or joint venturer in common with such person.

 3         Section 4.  Section 440.06, Florida Statutes, is

 4  amended to read:

 5         440.06  Failure to secure compensation; effect.--Every

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

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

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

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

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

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

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

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

14  the comparative negligence of the employee.

15         Section 5.  Effective January 1, 2004, section 440.077,

16  Florida Statutes, is amended to read:

17         440.077  When a corporate sole proprietor, partner, or

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

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

20  an exemption under this chapter actively engaged in the

21  construction industry and who elects to be exempt from the

22  provisions of this chapter may not recover benefits under this

23  chapter.

24         Section 6.  Subsections (1) and (4) of section 440.09,

25  Florida Statutes, are amended and paragraph (e) is added to

26  subsection (7) of that section, to read:

27         440.09  Coverage.--

28         (1)  The employer must shall pay compensation or

29  furnish benefits required by this chapter if the employee

30  suffers an accidental compensable injury or death arising out

31  of work performed in the course and the scope of employment.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  The injury, its occupational cause, and any resulting

 2  manifestations or disability must shall be established to a

 3  reasonable degree of medical certainty, based on and by

 4  objective relevant medical findings, and the accidental

 5  compensable injury must be the major contributing cause of any

 6  resulting injuries. For purposes of this section, "major

 7  contributing cause" means the cause which is more than 50

 8  percent responsible for the injury as compared to all other

 9  causes combined for which treatment or benefits are sought. In

10  cases involving occupational disease or repetitive exposure,

11  both causation and sufficient exposure to support causation

12  must be proven by clear and convincing evidence. Pain or other

13  subjective complaints alone, in the absence of objective

14  relevant medical findings, are not compensable. For purposes

15  of this section, "objective relevant medical findings" are

16  those objective findings that correlate to the subjective

17  complaints of the injured employee and are confirmed by

18  physical examination findings or diagnostic testing.

19  Establishment of the causal relationship between a compensable

20  accident and injuries for conditions that are not readily

21  observable must be by medical evidence only, as demonstrated

22  by physical examination findings or diagnostic testing. Major

23  contributing cause must be demonstrated by medical evidence

24  only. Mental or nervous injuries occurring as a manifestation

25  of an injury compensable under this section shall be

26  demonstrated by clear and convincing evidence.

27         (a)  This chapter does not require any compensation or

28  benefits for any subsequent injury the employee suffers as a

29  result of an original injury arising out of and in the course

30  of employment unless the original injury is the major

31  contributing cause of the subsequent injury. Major

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  contributing cause must be demonstrated by medical evidence

 2  only.

 3         (b)  If an injury arising out of and in the course of

 4  employment combines with a preexisting disease or condition to

 5  cause or prolong disability or need for treatment, the

 6  employer must pay compensation or benefits required by this

 7  chapter only to the extent that the injury arising out of and

 8  in the course of employment is and remains more than 50

 9  percent responsible for the injury as compared to all other

10  causes combined and thereafter remains the major contributing

11  cause of the disability or need for treatment. Major

12  contributing cause must be demonstrated by medical evidence

13  only.

14         (c)  Death resulting from an operation by a surgeon

15  furnished by the employer for the cure of hernia as required

16  in s. 440.15(6)[F.S. 1981] shall for the purpose of this

17  chapter be considered to be a death resulting from the

18  accident causing the hernia.

19         (d)  If an accident happens while the employee is

20  employed elsewhere than in this state, which would entitle the

21  employee or his or her dependents to compensation if it had

22  happened in this state, the employee or his or her dependents

23  are entitled to compensation if the contract of employment was

24  made in this state, or the employment was principally

25  localized in this state. However, if an employee receives

26  compensation or damages under the laws of any other state, the

27  total compensation for the injury may not be greater than is

28  provided in this chapter.

29         (4)(a)  An employee shall not be entitled to

30  compensation or benefits under this chapter if any judge of

31  compensation claims, administrative law judge, court, or jury

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  convened in this state determines that the employee has

 2  knowingly or intentionally engaged in any of the acts

 3  described in s. 440.105 or any criminal act for the purpose of

 4  securing workers' compensation benefits. For purposes of this

 5  section, the term "intentional" shall include, but is not

 6  limited to, pleas of guilty or nolo contendere in criminal

 7  matters. This section shall apply to accidents, regardless of

 8  the date of the accident. For injuries occurring prior to

 9  January 1, 1994, this section shall pertain to the acts of the

10  employee described in s. 440.105 or criminal activities

11  occurring subsequent to January 1, 1994.

12         (b)  A judge of compensation claims, administrative law

13  judge, or court of this state shall take judicial notice of a

14  finding of insurance fraud by a court of competent

15  jurisdiction and terminate or otherwise disallow benefits.

16         (c)  Upon the denial of benefits in accordance with

17  this section, a judge of compensation claims shall have the

18  jurisdiction to order any benefits payable to the employee to

19  be paid into the court registry or an escrow account during

20  the pendency of an appeal or until such time as the time in

21  which to file an appeal has expired.

22         (7)

23         (e)  As a part of rebutting any presumptions under

24  paragraph (b), the injured worker must prove the actual

25  quantitative amounts of the drug or its metabolites as

26  measured on the initial and confirmation post-accident drug

27  tests of the injured worker's urine sample and provide

28  additional evidence regarding the absence of drug influence

29  other than the worker's denial of being under the influence of

30  a drug. No drug test conducted on a urine sample shall be

31  rejected as to its results or the presumption imposed under

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  paragraph (b) on the basis of the urine being bodily fluid

 2  tested.

 3         Section 7.  Section 440.093, Florida Statutes, is

 4  created to read:

 5         440.093  Mental and nervous injuries.--

 6         (1)  A mental or nervous injury due to stress, fright,

 7  or excitement only is not an injury by accident arising out of

 8  the employment. Nothing in this section shall be construed to

 9  allow for the payment of benefits under this chapter for

10  mental or nervous injuries without an accompanying physical

11  injury requiring medical treatment. A physical injury

12  resulting from mental or nervous injuries unaccompanied by

13  physical trauma requiring medical treatment shall not be

14  compensable under this chapter.

15         (2)  Mental or nervous injuries occurring as a

16  manifestation of an injury compensable under this chapter

17  shall be demonstrated by clear and convincing medical evidence

18  by a licensed psychiatrist meeting criteria established in the

19  most recent edition of the diagnostic and statistical manual

20  of mental disorders published by the American Psychiatric

21  Association. The compensable physical injury must be and

22  remain the major contributing cause of the mental or nervous

23  condition and the compensable physical injury as determined by

24  reasonable medical certainty must be at least 50 percent

25  responsible for the mental or nervous condition as compared to

26  all other contributing causes combined. Compensation is not

27  payable for the mental, psychological, or emotional injury

28  arising out of depression from being out of work or losing

29  employment opportunities, resulting from a preexisting mental,

30  psychological, or emotional condition or due to pain or other

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  subjective complaints that cannot be substantiated by

 2  objective, relevant medical findings.

 3         (3)  Subject to the payment of permanent benefits under

 4  s. 440.15, in no event shall benefits for a compensable mental

 5  or nervous injury be paid for more than 3 months after the

 6  date of maximum medical improvement for the injured employee's

 7  physical injury or injuries, which shall be included in the

 8  period of 104 weeks as provided in s. 440.15(2) and (4).

 9  Mental or nervous injuries are compensable only in accordance

10  with the terms of this section.

11         Section 8.  Effective January 1, 2004, subsection (1)

12  of section 440.10, Florida Statutes, is amended to read:

13         440.10  Liability for compensation.--

14         (1)(a)  Every employer coming within the provisions of

15  this chapter, including any brought within the chapter by

16  waiver of exclusion or of exemption, shall be liable for, and

17  shall secure, the payment to his or her employees, or any

18  physician, surgeon, or pharmacist providing services under the

19  provisions of s. 440.13, of the compensation payable under ss.

20  440.13, 440.15, and 440.16. Any contractor or subcontractor

21  who engages in any public or private construction in the state

22  shall secure and maintain compensation for his or her

23  employees under this chapter as provided in s. 440.38.

24         (b)  In case a contractor sublets any part or parts of

25  his or her contract work to a subcontractor or subcontractors,

26  all of the employees of such contractor and subcontractor or

27  subcontractors engaged on such contract work shall be deemed

28  to be employed in one and the same business or establishment,;

29  and the contractor shall be liable for, and shall secure, the

30  payment of compensation to all such employees, except to

31  employees of a subcontractor who has secured such payment.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (c)  A contractor shall may require a subcontractor to

 2  provide evidence of workers' compensation insurance or a copy

 3  of his or her certificate of election. A subcontractor who is

 4  a corporation and has an officer who elects electing to be

 5  exempt as permitted under this chapter a sole proprietor,

 6  partner, or officer of a corporation shall provide a copy of

 7  his or her certificate of exemption election to the

 8  contractor.

 9         (d)1.  If a contractor becomes liable for the payment

10  of compensation to the employees of a subcontractor who has

11  failed to secure such payment in violation of s. 440.38, the

12  contractor or other third-party payor shall be entitled to

13  recover from the subcontractor all benefits paid or payable

14  plus interest unless the contractor and subcontractor have

15  agreed in writing that the contractor will provide coverage.

16         2.  If a contractor or third-party payor becomes liable

17  for the payment of compensation to the corporate officer

18  employee of a subcontractor who is actively engaged in the

19  construction industry and has elected to be exempt from the

20  provisions of this chapter, but whose election is invalid, the

21  contractor or third-party payor may recover from the claimant,

22  partnership, or corporation all benefits paid or payable plus

23  interest, unless the contractor and the subcontractor have

24  agreed in writing that the contractor will provide coverage.

25         (e)  A subcontractor providing services in conjunction

26  with a contractor on the same project or contract work is not

27  liable for the payment of compensation to the employees of

28  another subcontractor or the contractor on such contract work

29  and is not protected by the exclusiveness-of-liability

30  provisions of s. 440.11 from any action at law or in admiralty

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  on account of injury to an of such employee of another

 2  subcontractor, or of the contractor, provided that:

 3         1.  The subcontractor has secured workers' compensation

 4  insurance for its employees or the contractor has secured such

 5  insurance on behalf of the subcontractor and its employees in

 6  accordance with paragraph (b); and

 7         2.  The subcontractor's own gross negligence was not

 8  the major contributing cause of the injury.

 9         (f)  If an employer fails to secure compensation as

10  required by this chapter, the department shall may assess

11  against the employer a penalty not to exceed $5,000 for each

12  employee of that employer who is classified by the employer as

13  an independent contractor but who is found by the department

14  to not meet the criteria for an independent contractor that

15  are set forth in s. 440.02. The division shall adopt rules to

16  administer the provisions of this paragraph.

17         (g)  Subject to s. 440.38, any employer who has

18  employees engaged in work in this state shall obtain a Florida

19  policy or endorsement for such employees which utilizes

20  Florida class codes, rates, rules, and manuals that are in

21  compliance with and approved under the provisions of this

22  chapter and the Florida Insurance Code. Failure to comply with

23  this paragraph is a felony of the second degree, punishable as

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

25  department shall adopt rules for construction industry and

26  nonconstruction-industry employers with regard to the

27  activities that define what constitutes being "engaged in

28  work" in this state, using the following standards:

29         1.  For employees of nonconstruction-industry employers

30  who have their headquarters outside of Florida and also

31  operate in Florida and who are routinely crossing state lines,

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  but usually return to their homes each night, the employee

 2  shall be assigned to the headquarters' state. However, the

 3  construction industry employees performing new construction or

 4  alterations in Florida shall be assigned to Florida even if

 5  the employees return to their home state each night.

 6         2.  The payroll of executive supervisors who may visit

 7  a Florida location but who are not in direct charge of a

 8  Florida location shall be assigned to the state in which the

 9  headquarters is located.

10         3.  For construction contractors who maintain a

11  permanent staff of employees and superintendents, if any of

12  these employees or superintendents are assigned to a job that

13  is located in Florida, either for the duration of the job or

14  any portion thereof, their payroll shall be assigned to

15  Florida rather than headquarters' state.

16         4.  Employees who are hired for a specific project in

17  Florida shall be assigned to Florida. For purposes of this

18  section, a person is conclusively presumed to be an

19  independent contractor if:

20         1.  The independent contractor provides the general

21  contractor with an affidavit stating that he or she meets all

22  the requirements of s. 440.02; and

23         2.  The independent contractor provides the general

24  contractor with a valid certificate of workers' compensation

25  insurance or a valid certificate of exemption issued by the

26  department.

27  

28  A sole proprietor, partner, or officer of a corporation who

29  elects exemption from this chapter by filing a certificate of

30  election under s. 440.05 may not recover benefits or

31  compensation under this chapter. An independent contractor who

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  provides the general contractor with both an affidavit stating

 2  that he or she meets the requirements of s. 440.02 and a

 3  certificate of exemption is not an employee under s. 440.02

 4  and may not recover benefits under this chapter. For purposes

 5  of determining the appropriate premium for workers'

 6  compensation coverage, carriers may not consider any person

 7  who meets the requirements of this paragraph to be an

 8  employee.

 9         Section 9.  Section 440.1025, Florida Statutes, is

10  amended to read:

11         440.1025  Consideration of public Employer workplace

12  safety program in rate-setting; program requirements;

13  rulemaking.--

14         (1)  For a public or private employer to be eligible

15  for receipt of specific identifiable consideration under s.

16  627.0915 for a workplace safety program in the setting of

17  rates, the public employer must have a workplace safety

18  program. At a minimum, the program must include a written

19  safety policy and safety rules, and make provision for safety

20  inspections, preventative maintenance, safety training,

21  first-aid, accident investigation, and necessary

22  recordkeeping. For purposes of this section, "public employer"

23  means any agency within state, county, or municipal government

24  employing individuals for salary, wages, or other

25  remuneration. The division may adopt promulgate rules for

26  insurers to utilize in determining public employer compliance

27  with the requirements of this section.

28         (2)  The division shall publicize on the Internet, and

29  shall encourage insurers to publicize, the availability of

30  free safety consultation services and safety program

31  resources.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         Section 10.  Section 440.103, Florida Statutes, is

 2  amended to read:

 3         440.103  Building permits; identification of minimum

 4  premium policy.--Except as otherwise provided in this chapter,

 5  Every employer shall, as a condition to applying for and

 6  receiving a building permit, show proof and certify to the

 7  permit issuer that it has secured compensation for its

 8  employees under this chapter as provided in ss. 440.10 and

 9  440.38. Such proof of compensation must be evidenced by a

10  certificate of coverage issued by the carrier, a valid

11  exemption certificate approved by the department or the former

12  Division of Workers' Compensation of the Department of Labor

13  and Employment Security, or a copy of the employer's authority

14  to self-insure and shall be presented each time the employer

15  applies for a building permit. As provided in s. 627.413(5),

16  each certificate of coverage must show, on its face, whether

17  or not coverage is secured under the minimum premium

18  provisions of rules adopted by rating organizations licensed

19  by the department. The words "minimum premium policy" or

20  equivalent language shall be typed, printed, stamped, or

21  legibly handwritten.

22         Section 11.  Section 440.105, Florida Statutes, is

23  amended to read:

24         440.105  Prohibited activities; reports; penalties;

25  limitations.--

26         (1)(a)  Any insurance carrier, any individual

27  self-insured, any commercial or group self-insurance fund, any

28  professional practitioner licensed or regulated by the

29  Department of Health Business and Professional Regulation,

30  except as otherwise provided by law, any medical review

31  committee as defined in s. 766.101, any private medical review

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  committee, and any insurer, agent, or other person licensed

 2  under the insurance code, or any employee thereof, having

 3  knowledge or who believes that a fraudulent act or any other

 4  act or practice which, upon conviction, constitutes a felony

 5  or misdemeanor under this chapter is being or has been

 6  committed shall send to the Division of Insurance Fraud,

 7  Bureau of Workers' Compensation Fraud, a report or information

 8  pertinent to such knowledge or belief and such additional

 9  information relative thereto as the bureau may require. The

10  bureau shall review such information or reports and select

11  such information or reports as, in its judgment, may require

12  further investigation. It shall then cause an independent

13  examination of the facts surrounding such information or

14  report to be made to determine the extent, if any, to which a

15  fraudulent act or any other act or practice which, upon

16  conviction, constitutes a felony or a misdemeanor under this

17  chapter is being committed. The bureau shall report any

18  alleged violations of law which its investigations disclose to

19  the appropriate licensing agency and state attorney or other

20  prosecuting agency having jurisdiction with respect to any

21  such violations of this chapter. If prosecution by the state

22  attorney or other prosecuting agency having jurisdiction with

23  respect to such violation is not begun within 60 days of the

24  bureau's report, the state attorney or other prosecuting

25  agency having jurisdiction with respect to such violation

26  shall inform the bureau of the reasons for the lack of

27  prosecution.

28         (b)  In the absence of fraud or bad faith, a person is

29  not subject to civil liability for libel, slander, or any

30  other relevant tort by virtue of filing reports, without

31  malice, or furnishing other information, without malice,

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  required by this section or required by the bureau, and no

 2  civil cause of action of any nature shall arise against such

 3  person:

 4         1.  For any information relating to suspected

 5  fraudulent acts furnished to or received from law enforcement

 6  officials, their agents, or employees;

 7         2.  For any information relating to suspected

 8  fraudulent acts furnished to or received from other persons

 9  subject to the provisions of this chapter; or

10         3.  For any such information relating to suspected

11  fraudulent acts furnished in reports to the bureau, or the

12  National Association of Insurance Commissioners.

13         (2)  Whoever violates any provision of this subsection

14  commits a misdemeanor of the first second degree, punishable

15  as provided in s. 775.082 or s. 775.083.

16         (a)  It shall be unlawful for any employer to

17  knowingly:

18         1.  Coerce or attempt to coerce, as a precondition to

19  employment or otherwise, an employee to obtain a certificate

20  of election of exemption pursuant to s. 440.05.

21         2.  Discharge or refuse to hire an employee or job

22  applicant because the employee or applicant has filed a claim

23  for benefits under this chapter.

24         3.  Discharge, discipline, or take any other adverse

25  personnel action against any employee for disclosing

26  information to the department or any law enforcement agency

27  relating to any violation or suspected violation of any of the

28  provisions of this chapter or rules promulgated hereunder.

29         4.  Violate a stop-work order issued by the department

30  pursuant to s. 440.107.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (b)  It shall be unlawful for any insurance entity to

 2  revoke or cancel a workers' compensation insurance policy or

 3  membership because an employer has returned an employee to

 4  work or hired an employee who has filed a workers'

 5  compensation claim.

 6         (3)  Whoever violates any provision of this subsection

 7  commits a misdemeanor of the first degree, punishable as

 8  provided in s. 775.082 or s. 775.083.

 9         (a)  It shall be unlawful for any employer to knowingly

10  fail to update applications for coverage as required by s.

11  440.381(1) and department of Insurance rules within 7 days

12  after the reporting date for any change in the required

13  information, or to post notice of coverage pursuant to s.

14  440.40.

15         (b)  It is unlawful for any attorney or other person,

16  in his or her individual capacity or in his or her capacity as

17  a public or private employee, or for any firm, corporation,

18  partnership, or association to receive any fee or other

19  consideration or any gratuity from a person on account of

20  services rendered for a person in connection with any

21  proceedings arising under this chapter, unless such fee,

22  consideration, or gratuity is approved by a judge of

23  compensation claims or by the Deputy Chief Judge of

24  Compensation Claims.

25         (4)  Whoever violates any provision of this subsection

26  commits insurance fraud, punishable as provided in paragraph

27  (f).

28         (a)  It shall be unlawful for any employer to

29  knowingly:

30  

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         1.  Present or cause to be presented any false,

 2  fraudulent, or misleading oral or written statement to any

 3  person as evidence of compliance with s. 440.38.

 4         2.  Make a deduction from the pay of any employee

 5  entitled to the benefits of this chapter for the purpose of

 6  requiring the employee to pay any portion of premium paid by

 7  the employer to a carrier or to contribute to a benefit fund

 8  or department maintained by such employer for the purpose of

 9  providing compensation or medical services and supplies as

10  required by this chapter.

11         3.  Fail to secure payment of compensation if required

12  to do so by this chapter.

13         (b)  It shall be unlawful for any person:

14         1.  To knowingly make, or cause to be made, any false,

15  fraudulent, or misleading oral or written statement for the

16  purpose of obtaining or denying any benefit or payment under

17  this chapter.

18         2.  To present or cause to be presented any written or

19  oral statement as part of, or in support of, a claim for

20  payment or other benefit pursuant to any provision of this

21  chapter, knowing that such statement contains any false,

22  incomplete, or misleading information concerning any fact or

23  thing material to such claim.

24         3.  To prepare or cause to be prepared any written or

25  oral statement that is intended to be presented to any

26  employer, insurance company, or self-insured program in

27  connection with, or in support of, any claim for payment or

28  other benefit pursuant to any provision of this chapter,

29  knowing that such statement contains any false, incomplete, or

30  misleading information concerning any fact or thing material

31  to such claim.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         4.  To knowingly assist, conspire with, or urge any

 2  person to engage in activity prohibited by this section.

 3         5.  To knowingly make any false, fraudulent, or

 4  misleading oral or written statement, or to knowingly omit or

 5  conceal material information, required by s. 440.185 or s.

 6  440.381, for the purpose of obtaining workers' compensation

 7  coverage or for the purpose of avoiding, delaying, or

 8  diminishing the amount of payment of any workers' compensation

 9  premiums.

10         6.  To knowingly misrepresent or conceal payroll,

11  classification of workers, or information regarding an

12  employer's loss history which would be material to the

13  computation and application of an experience rating

14  modification factor for the purpose of avoiding or diminishing

15  the amount of payment of any workers' compensation premiums.

16         7.  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 compliance with s. 440.38, as

19  evidence of eligibility for a certificate of exemption under

20  s. 440.05.

21         8.  To knowingly violate a stop-work order issued by

22  the department pursuant to s. 440.107.

23         9.  To knowingly present or cause to be presented any

24  false, fraudulent, or misleading oral or written statement to

25  any person as evidence of identity for the purpose of

26  obtaining employment or filing or supporting a claim for

27  workers' compensation benefits.

28         (c)  It shall be unlawful for any physician licensed

29  under chapter 458, osteopathic physician licensed under

30  chapter 459, chiropractic physician licensed under chapter

31  460, podiatric physician licensed under chapter 461,

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  optometric physician licensed under chapter 463, or any other

 2  practitioner licensed under the laws of this state to

 3  knowingly and willfully assist, conspire with, or urge any

 4  person to fraudulently violate any of the provisions of this

 5  chapter.

 6         (d)  It shall be unlawful for any person or

 7  governmental entity licensed under chapter 395 to maintain or

 8  operate a hospital in such a manner so that such person or

 9  governmental entity knowingly and willfully allows the use of

10  the facilities of such hospital by any person, in a scheme or

11  conspiracy to fraudulently violate any of the provisions of

12  this chapter.

13         (e)  It shall be unlawful for any attorney or other

14  person, in his or her individual capacity or in his or her

15  capacity as a public or private employee, or any firm,

16  corporation, partnership, or association, to knowingly assist,

17  conspire with, or urge any person to fraudulently violate any

18  of the provisions of this chapter.

19         (f)  If the monetary value amount of any claim or

20  workers' compensation insurance premium involved in any

21  violation of this subsection:

22         1.  Is less than $20,000, the offender commits a felony

23  of the third degree, punishable as provided in s. 775.082, s.

24  775.083, or s. 775.084.

25         2.  Is $20,000 or more, but less than $100,000, the

26  offender commits a felony of the second degree, punishable as

27  provided in s. 775.082,. 775.083, or s. 775.084.

28         3.  Is $100,000 or more, the offender commits a felony

29  of the first degree, punishable as provided in s. 775.082, s.

30  775.083, or s. 775.084.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (5)  It shall be unlawful for any attorney or other

 2  person, in his or her individual capacity or in his or her

 3  capacity as a public or private employee or for any firm,

 4  corporation, partnership, or association, to unlawfully

 5  solicit any business in and about city or county hospitals,

 6  courts, or any public institution or public place; in and

 7  about private hospitals or sanitariums; in and about any

 8  private institution; or upon private property of any character

 9  whatsoever for the purpose of making workers' compensation

10  claims. Whoever violates any provision of this subsection

11  commits a felony of the second third degree, punishable as

12  provided in s. 775.082, s. 775.083, or s. 775.085.

13         (6)  This section shall not be construed to preclude

14  the applicability of any other provision of criminal law that

15  applies or may apply to any transaction.

16         (7)  For the purpose of the section, the term

17  "statement" includes, but is not limited to, any notice,

18  representation, statement, proof of injury, bill for services,

19  diagnosis, prescription, hospital or doctor records, X ray,

20  test result, or other evidence of loss, injury, or expense.

21         (7)(8)  An injured employee or any other party making a

22  claim under this chapter shall provide his or her personal

23  signature attesting that he or she has reviewed, understands,

24  and acknowledges All claim forms as provided for in this

25  chapter shall contain a notice that clearly states in

26  substance the following statement: "Any person who, knowingly

27  and with intent to injure, defraud, or deceive any employer or

28  employee, insurance company, or self-insured program, files a

29  statement of claim containing any false or misleading

30  information commits insurance fraud, punishable as provided in

31  s. 817.234." If the injured employee or other party refuses to

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  sign the document attesting Each claimant shall personally

 2  sign the claim form and attest that he or she has reviewed,

 3  understands, and acknowledges the statement, benefits or

 4  payments under this chapter shall be suspended until such

 5  signature is obtained foregoing notice.

 6         Section 12.  Subsection (3) of section 440.1051,

 7  Florida Statutes, is amended to read:

 8         440.1051  Fraud reports; civil immunity; criminal

 9  penalties.--

10         (2)  Any person who reports workers' compensation fraud

11  to the division under subsection (1) is immune from civil

12  liability for doing so, and the person or entity alleged to

13  have committed the fraud may not retaliate against him or her

14  for providing such report, unless the person making the report

15  knows it to be false.

16         (3)  A person who calls and, knowingly and falsely,

17  reports workers' compensation fraud or who, in violation of

18  subsection (2) retaliates against a person for making such

19  report, commits is guilty of a felony misdemeanor of the third

20  first degree, punishable as provided in s. 775.082, or s.

21  775.083, or s. 775.084 both.

22         Section 13.  Section 440.107, Florida Statutes, is

23  amended to read:

24         440.107  Department powers to enforce employer

25  compliance with coverage requirements.--

26         (1)  The Legislature finds that the failure of an

27  employer to comply with the workers' compensation coverage

28  requirements under this chapter poses an immediate danger to

29  public health, safety, and welfare. The Legislature authorizes

30  the department to secure employer compliance with the workers'

31  compensation coverage requirements and authorizes the

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  department to conduct investigations for the purpose of

 2  ensuring employer compliance.

 3         (2)  For the purposes of this section, "securing the

 4  payment of workers' compensation" means obtaining coverage

 5  that meets the requirements of this chapter and the Florida

 6  Insurance Code. However, if at any time an employer materially

 7  understates or conceals payroll, materially misrepresents or

 8  conceals employee duties so as to avoid proper classification

 9  for premium calculations, or materially misrepresents or

10  conceals information pertinent to the computation and

11  application of an experience rating modification factor, such

12  employer shall be deemed to have failed to secure payment of

13  workers' compensation and shall be subject to the sanctions

14  set forth in this section. A stop-work order issued because an

15  employer is deemed to have failed to secure the payment of

16  workers' compensation required under this chapter because the

17  employer has materially understated or concealed payroll,

18  materially misrepresented or concealed employee duties so as

19  to avoid proper classification for premium calculations, or

20  materially misrepresented or concealed information pertinent

21  to the computation and application of an experience rating

22  modification factor shall have no effect upon an employer's or

23  carrier's duty to provide benefits under this chapter or upon

24  any of the employer's or carrier's rights and defenses under

25  this chapter, including exclusive remedy. The department and

26  its authorized representatives may enter and inspect any place

27  of business at any reasonable time for the limited purpose of

28  investigating compliance with workers' compensation coverage

29  requirements under this chapter. Each employer shall keep true

30  and accurate business records that contain such information as

31  the department prescribes by rule. The business records must

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  contain information necessary for the department to determine

 2  compliance with workers' compensation coverage requirements

 3  and must be maintained within this state by the business, in

 4  such a manner as to be accessible within a reasonable time

 5  upon request by the department. The business records must be

 6  open to inspection and be available for copying by the

 7  department at any reasonable time and place and as often as

 8  necessary. The department may require from any employer any

 9  sworn or unsworn reports, pertaining to persons employed by

10  that employer, deemed necessary for the effective

11  administration of the workers' compensation coverage

12  requirements.

13         (3)  The department shall enforce workers' compensation

14  coverage requirements, including the requirement that the

15  employer secure the payment of workers' compensation, and the

16  requirement that the employer provide the carrier with

17  information to accurately determine payroll and correctly

18  assign classification codes. In addition to any other powers

19  under this chapter, the department shall have the power to:

20         (a)  Conduct investigations for the purpose of ensuring

21  employer compliance.

22         (b)  Enter and inspect any place of business at any

23  reasonable time for the purpose of investigating employer

24  compliance.

25         (c)  Examine and copy business records.

26         (d)  Administer oaths and affirmations.

27         (e)  Certify to official acts.

28         (f)  Issue and serve subpoenas for attendance of

29  witnesses or production of business records, books, papers,

30  correspondence, memoranda, and other records.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (g)  Issue stop-work orders, penalty assessment orders,

 2  and any other orders necessary for the administration of this

 3  section.

 4         (h)  Enforce the terms of a stop-work order.

 5         (i)  Levy and pursue actions to recover penalties.

 6         (j)  Seek injunctions and other appropriate relief. In

 7  discharging its duties, the department may administer oaths

 8  and affirmations, certify to official acts, issue subpoenas to

 9  compel the attendance of witnesses and the production of

10  books, papers, correspondence, memoranda, and other records

11  deemed necessary by the department as evidence in order to

12  ensure proper compliance with the coverage provisions of this

13  chapter.

14         (4)  The department shall designate representatives who

15  may serve subpoenas and other process of the department issued

16  under this section.

17         (5)  The department shall specify by rule the business

18  records that employers must maintain and produce to comply

19  with this section.

20         (6)(4)  If a person has refused to obey a subpoena to

21  appear before the department or its authorized representative

22  or and produce evidence requested by the department or to give

23  testimony about the matter that is under investigation, a

24  court has jurisdiction to issue an order requiring compliance

25  with the subpoena if the court has jurisdiction in the

26  geographical area where the inquiry is being carried on or in

27  the area where the person who has refused the subpoena is

28  found, resides, or transacts business. Failure to obey such a

29  court order may be punished by the court as contempt, either

30  civilly or criminally. Costs, including reasonable attorney's

31  fees, incurred by the department to obtain an order granting,

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  in whole or in part, a petition to enforce a subpoena or a

 2  subpoena duces tecum shall be taxed against the subpoenaed

 3  party.

 4         (7)(a)(5)  Whenever the department determines that an

 5  employer who is required to secure the payment to his or her

 6  employees of the compensation provided for by this chapter has

 7  failed to secure the payment of workers' compensation required

 8  by this chapter or to produce the required business records

 9  under subsection (5) within 5 business days after receipt of

10  the written request of the department do so, such failure

11  shall be deemed an immediate serious danger to public health,

12  safety, or welfare sufficient to justify service by the

13  department of a stop-work order on the employer, requiring the

14  cessation of all business operations at the place of

15  employment or job site. If the department division makes such

16  a determination, the department division shall issue a

17  stop-work order within 72 hours. The order shall take effect

18  when served upon the date of service upon the employer or, for

19  a particular employer work site, when served at that work

20  site, unless the employer provides evidence satisfactory to

21  the department of having secured any necessary insurance or

22  self-insurance and pays a civil penalty to the department, to

23  be deposited by the department into the Workers' Compensation

24  Administration Trust Fund, in the amount of $100 per day for

25  each day the employer was not in compliance with this chapter.

26  In addition to serving a stop-work order at a particular work

27  site which shall be effective immediately, the department

28  shall immediately proceed with service upon the employer which

29  shall be effective upon all employer work sites in the state

30  for which the employer is not in compliance. A stop-work order

31  may be served with regard to an employer's work site by

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  posting a copy of the stop-work order in a conspicuous

 2  location at the work site. The order shall remain in effect

 3  until the department issues an order releasing the stop-work

 4  order upon a finding that the employer has come into

 5  compliance with the coverage requirements of this chapter and

 6  has paid any penalty assessed under this section. The

 7  department may require an employer who is found to have failed

 8  to comply with the coverage requirements of s. 440.38 to file

 9  with the department, as a condition of release from a

10  stop-work order, periodic reports for a probationary period

11  that shall not exceed 2 years that demonstrate the employer's

12  continued compliance with this chapter. The department shall

13  by rule specify the reports required and the time for filing

14  under this subsection.

15         (b)  Stop-work orders and penalty assessment orders

16  issued under this section against a corporation, partnership,

17  or sole proprietorship shall be in effect against any

18  successor corporation or business entity that has one or more

19  of the same principals or officers as the corporation or

20  partnership against which the stop-work order was issued and

21  are engaged in the same or equivalent trade or activity.

22         (c)  The department shall assess a penalty of $1,000

23  per day against an employer for each day that the employer

24  conducts business operations that are in violation of a

25  stop-work order.

26         (d)1.  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 equal to 1.5 times the

30  amount the employer would have paid in premium when applying

31  approved manual rates to the employer's payroll during periods

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  for which it failed to secure the payment of workers'

 2  compensation required by this chapter within the preceding

 3  3-year period or $1,000, whichever is greater.

 4         2.  Any subsequent violation within 5 years after the

 5  most recent violation shall, in addition to the penalties set

 6  forth in this subsection, be deemed a knowing act within the

 7  meaning of s. 440.105.

 8         (e)  When an employer fails to provide business records

 9  sufficient to enable the department to determine the

10  employer's payroll for the period requested for the

11  calculation of the penalty provided in paragraph (d), for

12  penalty calculation purposes, the imputed weekly payroll for

13  each employee, corporate officer, sole proprietor, or partner

14  shall be the statewide average weekly wage as defined in s.

15  440.12(2) multiplied by 1.5.

16         (f)  In addition to any other penalties provided for in

17  this chapter, the department may assess against the employer a

18  penalty of $5,000 for each employee of that employer who the

19  employer represents to the department or carrier as an

20  independent contractor but who is determined by the department

21  not to be an independent contractor as defined in s. 440.02.

22         (8)(6)  In addition to the issuance of a stop-work

23  order under subsection (7), the department may file a

24  complaint in the circuit court in and for Leon County to

25  enjoin any employer, who has failed to secure the payment of

26  workers' compensation as required by this chapter, from

27  employing individuals and from conducting business until the

28  employer presents evidence satisfactory to the department of

29  having secured the payment of workers' for compensation

30  required by this chapter and pays a civil penalty assessed by

31  to the department under this section, to be deposited by the

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  department into the Workers' Compensation Administration Trust

 2  Fund, in the amount of $100 per day for each day the employer

 3  was not in compliance with this chapter.

 4         (9)(7)  In addition to any penalty, stop-work order, or

 5  injunction, the department shall assess against any employer,

 6  who has failed to secure the payment of compensation as

 7  required by this chapter, a penalty in the following amount:

 8         (a)  An amount equal to at least the amount that the

 9  employer would have paid or up to twice the amount the

10  employer would have paid during periods it illegally failed to

11  secure payment of compensation in the preceding 3-year period

12  based on the employer's payroll during the preceding 3-year

13  period; or

14         (b)  One thousand dollars, whichever is greater. Any

15  penalty assessed under this subsection is due within 30 days

16  after the date on which the employer is notified, except that,

17  if the department has posted a stop-work order or obtained

18  injunctive relief against the employer, payment is due, in

19  addition to those conditions set forth in this section, as a

20  condition to relief from a stop-work order or an injunction.

21  Interest shall accrue on amounts not paid when due at the rate

22  of 1 percent per month. The department division shall adopt

23  rules to administer this section.

24         (10)(8)  The department may bring an action in circuit

25  court to recover penalties assessed under this section,

26  including any interest owed to the department pursuant to this

27  section. In any action brought by the department pursuant to

28  this section in which it prevails, the circuit court shall

29  award costs, including the reasonable costs of investigation

30  and a reasonable attorney's fee.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (11)(9)  Any judgment obtained by the department and

 2  any penalty due pursuant to the service of a stop-work order

 3  or otherwise due under this section shall, until collected,

 4  constitute a lien upon the entire interest of the employer,

 5  legal or equitable, in any property, real or personal,

 6  tangible or intangible; however, such lien is subordinate to

 7  claims for unpaid wages and any prior recorded liens, and a

 8  lien created by this section is not valid against any person

 9  who, subsequent to such lien and in good faith and for value,

10  purchases real or personal property from such employer or

11  becomes the mortgagee on real or personal property of such

12  employer, or against a subsequent attaching creditor, unless,

13  with respect to real estate of the employer, a notice of the

14  lien is recorded in the public records of the county where the

15  real estate is located, and with respect to personal property

16  of the employer, the notice is recorded with the Secretary of

17  State.

18         (12)(10)  Any law enforcement agency in the state may,

19  at the request of the department, render any assistance

20  necessary to carry out the provisions of this section,

21  including, but not limited to, preventing any employee or

22  other person from remaining at a place of employment or job

23  site after a stop-work order or injunction has taken effect.

24         (13)(11)  Agency action Actions by the department under

25  this section, if contested, must be contested as provided in

26  chapter 120. All civil penalties assessed by the department

27  must be paid into the Workers' Compensation Administration

28  Trust Fund. The department shall return any sums previously

29  paid, upon conclusion of an action, if the department fails to

30  prevail and if so directed by an order of court or an

31  administrative hearing officer. The requirements of this

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  subsection may be met by posting a bond in an amount equal to

 2  twice the penalty and in a form approved by the department.

 3         (14)(12)  If the department division finds that an

 4  employer who is certified or registered under part I or part

 5  II of chapter 489 and who is required to secure the payment of

 6  workers' the compensation under provided for by this chapter

 7  to his or her employees has failed to do so, the department

 8  division shall immediately notify the Department of Business

 9  and Professional Regulation.

10         Section 14.  Subsections (1) and (3) of section 440.11,

11  Florida Statutes, are amended to read:

12         440.11  Exclusiveness of liability.--

13         (1)  The liability of an employer prescribed in s.

14  440.10 shall be exclusive and in place of all other liability,

15  including vicarious liability, of such employer to any

16  third-party tortfeasor and to the employee, the legal

17  representative thereof, husband or wife, parents, dependents,

18  next of kin, and anyone otherwise entitled to recover damages

19  from such employer at law or in admiralty on account of such

20  injury or death, except as follows: that

21         (a)  If an employer fails to secure payment of

22  compensation as required by this chapter, an injured employee,

23  or the legal representative thereof in case death results from

24  the injury, may elect to claim compensation under this chapter

25  or to maintain an action at law or in admiralty for damages on

26  account of such injury or death. In such action the defendant

27  may not plead as a defense that the injury was caused by

28  negligence of a fellow employee, that the employee assumed the

29  risk of the employment, or that the injury was due to the

30  comparative negligence of the employee.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (b)  When an employer commits an intentional tort that

 2  causes the injury or death of the employee. For purposes of

 3  this paragraph, an employer's actions shall be deemed to

 4  constitute an intentional tort and not an accident only when

 5  the employee proves, by clear and convincing evidence, that:

 6         1.  The employer deliberately intended to injure the

 7  employee; or

 8         2.  The employer engaged in conduct that the employer

 9  knew, based on prior similar accidents or on explicit warnings

10  specifically identifying a known danger, was certain to result

11  in injury or death to the employee, and the employee was not

12  aware of the risk because the danger was not apparent and the

13  employer deliberately concealed or misrepresented the danger

14  so as to prevent the employee from exercising informed

15  judgment about whether to perform the work.

16  

17  The same immunities from liability enjoyed by an employer

18  shall extend as well to each employee of the employer when

19  such employee is acting in furtherance of the employer's

20  business and the injured employee is entitled to receive

21  benefits under this chapter. Such fellow-employee immunities

22  shall not be applicable to an employee who acts, with respect

23  to a fellow employee, with willful and wanton disregard or

24  unprovoked physical aggression or with gross negligence when

25  such acts result in injury or death or such acts proximately

26  cause such injury or death, nor shall such immunities be

27  applicable to employees of the same employer when each is

28  operating in the furtherance of the employer's business but

29  they are assigned primarily to unrelated works within private

30  or public employment. The same immunity provisions enjoyed by

31  an employer shall also apply to any sole proprietor, partner,

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  corporate officer or director, supervisor, or other person who

 2  in the course and scope of his or her duties acts in a

 3  managerial or policymaking capacity and the conduct which

 4  caused the alleged injury arose within the course and scope of

 5  said managerial or policymaking duties and was not a violation

 6  of a law, whether or not a violation was charged, for which

 7  the maximum penalty which may be imposed does not exceed 60

 8  days' imprisonment as set forth in s. 775.082. The immunity

 9  from liability provided in this subsection extends to county

10  governments with respect to employees of county constitutional

11  officers whose offices are funded by the board of county

12  commissioners.

13         (3)  An employer's workers' compensation carrier,

14  service agent, or safety consultant shall not be liable as a

15  third-party tortfeasor to employees of the employer or

16  employees of its subcontractors for assisting the employer and

17  its subcontractors, if any, in carrying out the employer's

18  rights and responsibilities under this chapter by furnishing

19  any safety inspection, safety consultative service, or other

20  safety service incidental to the workers' compensation or

21  employers' liability coverage or to the workers' compensation

22  or employer's liability servicing contract. Without

23  limitation, a safety consultant may include an owner, as

24  defined in chapter 713, or an owner's related, affiliated, or

25  subsidiary companies and the employees of each. The exclusion

26  from liability under this subsection shall not apply in any

27  case in which injury or death is proximately caused by the

28  willful and unprovoked physical aggression, or by the

29  negligent operation of a motor vehicle, by employees,

30  officers, or directors of the employer's workers' compensation

31  carrier, service agent, or safety consultant.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         Section 15.  Section 440.13, Florida Statutes, is

 2  amended to read:

 3         440.13  Medical services and supplies; penalty for

 4  violations; limitations.--

 5         (1)  DEFINITIONS.--As used in this section, the term:

 6         (a)  "Alternate medical care" means a change in

 7  treatment or health care provider.

 8         (b)  "Attendant care" means care rendered by trained

 9  professional attendants which is beyond the scope of household

10  duties. Family members may provide nonprofessional attendant

11  care, but may not be compensated under this chapter for care

12  that falls within the scope of household duties and other

13  services normally and gratuitously provided by family members.

14  "Family member" means a spouse, father, mother, brother,

15  sister, child, grandchild, father-in-law, mother-in-law, aunt,

16  or uncle.

17         (c)  "Carrier" means, for purposes of this section,

18  insurance carrier, self-insurance fund or individually

19  self-insured employer, or assessable mutual insurer.

20         (d)  "Catastrophic injury" means an injury as defined

21  in s. 440.02.

22         (e)  "Certified health care provider" means a health

23  care provider who has been certified by the agency or who has

24  entered an agreement with a licensed managed care organization

25  to provide treatment to injured workers under this section.

26  Certification of such health care provider must include

27  documentation that the health care provider has read and is

28  familiar with the portions of the statute, impairment guides,

29  practice parameters, protocols of treatment, and rules which

30  govern the provision of remedial treatment, care, and

31  attendance.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (f)  "Compensable" means a determination by a carrier

 2  or judge of compensation claims that a condition suffered by

 3  an employee results from an injury arising out of and in the

 4  course of employment.

 5         (g)  "Emergency services and care" means emergency

 6  services and care as defined in s. 395.002.

 7         (h)  "Health care facility" means any hospital licensed

 8  under chapter 395 and any health care institution licensed

 9  under chapter 400.

10         (i)  "Health care provider" means a physician or any

11  recognized practitioner who provides skilled services pursuant

12  to a prescription or under the supervision or direction of a

13  physician and who has been certified by the agency as a health

14  care provider. The term "health care provider" includes a

15  health care facility.

16         (j)  "Independent medical examiner" means a physician

17  selected by either an employee or a carrier to render one or

18  more independent medical examinations in connection with a

19  dispute arising under this chapter.

20         (k)  "Independent medical examination" means an

21  objective evaluation of the injured employee's medical

22  condition, including, but not limited to, impairment or work

23  status, performed by a physician or an expert medical advisor

24  at the request of a party, a judge of compensation claims, or

25  the agency to assist in the resolution of a dispute arising

26  under this chapter.

27         (l)  "Instance of overutilization" means a specific

28  inappropriate service or level of service provided to an

29  injured employee that includes the provision of treatment in

30  excess of established practice parameters and protocols of

31  treatment established in accordance with this chapter.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (m)  "Medically necessary" or "medical necessity" means

 2  any medical service or medical supply which is used to

 3  identify or treat an illness or injury, is appropriate to the

 4  patient's diagnosis and status of recovery, and is consistent

 5  with the location of service, the level of care provided, and

 6  applicable practice parameters. The service should be widely

 7  accepted among practicing health care providers, based on

 8  scientific criteria, and determined to be reasonably safe. The

 9  service must not be of an experimental, investigative, or

10  research nature, except in those instances in which prior

11  approval of the Agency for Health Care Administration has been

12  obtained. The Agency for Health Care Administration shall

13  adopt rules providing for such approval on a case-by-case

14  basis when the service or supply is shown to have significant

15  benefits to the recovery and well-being of the patient.

16         (n)  "Medicine" means a drug prescribed by an

17  authorized health care provider and includes only generic

18  drugs or single-source patented drugs for which there is no

19  generic equivalent, unless the authorized health care provider

20  writes or states that the brand-name drug as defined in s.

21  465.025 is medically necessary, or is a drug appearing on the

22  schedule of drugs created pursuant to s. 465.025(6), or is

23  available at a cost lower than its generic equivalent.

24         (o)  "Palliative care" means noncurative medical

25  services that mitigate the conditions, effects, or pain of an

26  injury.

27         (p)  "Pattern or practice of overutilization" means

28  repetition of instances of overutilization within a specific

29  medical case or multiple cases by a single health care

30  provider.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (q)  "Peer review" means an evaluation by two or more

 2  physicians licensed under the same authority and with the same

 3  or similar specialty as the physician under review, of the

 4  appropriateness, quality, and cost of health care and health

 5  services provided to a patient, based on medically accepted

 6  standards.

 7         (r)  "Physician" or "doctor" means a physician licensed

 8  under chapter 458, an osteopathic physician licensed under

 9  chapter 459, a chiropractic physician licensed under chapter

10  460, a podiatric physician licensed under chapter 461, an

11  optometrist licensed under chapter 463, or a dentist licensed

12  under chapter 466, each of whom must be certified by the

13  agency as a health care provider.

14         (s)  "Reimbursement dispute" means any disagreement

15  between a health care provider or health care facility and

16  carrier concerning payment for medical treatment.

17         (t)  "Utilization control" means a systematic process

18  of implementing measures that assure overall management and

19  cost containment of services delivered, including compliance

20  with practice parameters and protocols of treatment as

21  provided for in this chapter.

22         (u)  "Utilization review" means the evaluation of the

23  appropriateness of both the level and the quality of health

24  care and health services provided to a patient, including, but

25  not limited to, evaluation of the appropriateness of

26  treatment, hospitalization, or office visits based on

27  medically accepted standards. Such evaluation must be

28  accomplished by means of a system that identifies the

29  utilization of medical services based on practice parameters

30  and protocols of treatment as provided for in this chapter

31  medically accepted standards as established by medical

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  consultants with qualifications similar to those providing the

 2  care under review, and that refers patterns and practices of

 3  overutilization to the agency.

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

 5         (a)  Subject to the limitations specified elsewhere in

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

 7  medically necessary remedial treatment, care, and attendance

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

 9  recovery may require, which is in accordance with established

10  practice parameters and protocols of treatment as provided for

11  in this chapter, including medicines, medical supplies,

12  durable medical equipment, orthoses, prostheses, and other

13  medically necessary apparatus. Remedial treatment, care, and

14  attendance, including work-hardening programs or

15  pain-management programs accredited by the Commission on

16  Accreditation of Rehabilitation Facilities or Joint Commission

17  on the Accreditation of Health Organizations or

18  pain-management programs affiliated with medical schools,

19  shall be considered as covered treatment only when such care

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

21  chapter. Each facility shall maintain outcome data, including

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

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

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

25  Speaker of the House of Representatives regarding the efficacy

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

27  1, 1994. Medically necessary treatment, care, and attendance

28  does not include chiropractic services in excess of 24 18

29  treatments or rendered 12 8 weeks beyond the date of the

30  initial chiropractic treatment, whichever comes first, unless

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  the carrier authorizes additional treatment or the employee is

 2  catastrophically injured.

 3         (b)  The employer shall provide appropriate

 4  professional or nonprofessional attendant care performed only

 5  at the direction and control of a physician when such care is

 6  medically necessary. The physician shall prescribe such care

 7  in writing. The employer or carrier shall not be responsible

 8  for such care until the prescription for attendant care is

 9  received by the employer and carrier, which shall specify the

10  time periods for such care, the level of care required, and

11  the type of assistance required. A prescription for attendant

12  care shall not prescribe such care retroactively. The value of

13  nonprofessional attendant care provided by a family member

14  must be determined as follows:

15         1.  If the family member is not employed or if the

16  family member is employed and is providing attendant care

17  services during hours that he or she is not engaged in

18  employment, the per-hour value equals the federal minimum

19  hourly wage.

20         2.  If the family member is employed and elects to

21  leave that employment to provide attendant or custodial care,

22  the per-hour value of that care equals the per-hour value of

23  the family member's former employment, not to exceed the

24  per-hour value of such care available in the community at

25  large. A family member or a combination of family members

26  providing nonprofessional attendant care under this paragraph

27  may not be compensated for more than a total of 12 hours per

28  day.

29         3.  If the family member remains employed while

30  providing attendant or custodial care, the per-hour value of

31  that care equals the per-hour value of the family member's

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  employment, not to exceed the per-hour value of such care

 2  available in the community at large.

 3         (c)  If the employer fails to provide initial treatment

 4  or care required by this section after request by the injured

 5  employee, the employee may obtain such initial treatment at

 6  the expense of the employer, if the initial treatment or care

 7  is compensable and medically necessary and is in accordance

 8  with established practice parameters and protocols of

 9  treatment as provided for in this chapter. There must be a

10  specific request for the initial treatment or care, and the

11  employer or carrier must be given a reasonable time period

12  within which to provide the initial treatment or care.

13  However, the employee is not entitled to recover any amount

14  personally expended for the initial treatment or care service

15  unless he or she has requested the employer to furnish that

16  initial treatment or service and the employer has failed,

17  refused, or neglected to do so within a reasonable time or

18  unless the nature of the injury requires such initial

19  treatment, nursing, and services and the employer or his or

20  her superintendent or foreman, having knowledge of the injury,

21  has neglected to provide the initial treatment or care

22  service.

23         (d)  The carrier has the right to transfer the care of

24  an injured employee from the attending health care provider if

25  an independent medical examination determines that the

26  employee is not making appropriate progress in recuperation.

27         (e)  Except in emergency situations and for treatment

28  rendered by a managed care arrangement, after any initial

29  examination and diagnosis by a physician providing remedial

30  treatment, care, and attendance, and before a proposed course

31  of medical treatment begins, each insurer shall review, in

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  accordance with the requirements of this chapter, the proposed

 2  course of treatment, to determine whether such treatment would

 3  be recognized as reasonably prudent. The review must be in

 4  accordance with all applicable workers' compensation practice

 5  parameters and protocols of treatment established in

 6  accordance with this chapter. The insurer must accept any such

 7  proposed course of treatment unless the insurer notifies the

 8  physician of its specific objections to the proposed course of

 9  treatment by the close of the tenth business day after

10  notification by the physician, or a supervised designee of the

11  physician, of the proposed course of treatment.

12         (f)  Upon the written request of the employee, the

13  carrier shall give the employee the opportunity for one change

14  of physician during the course of treatment for any one

15  accident. Upon the granting of a change of physician, the

16  originally authorized physician in the same specialty as the

17  changed physician shall become deauthorized upon written

18  notification by the employer or carrier. The carrier shall

19  authorize an alternative physician who shall not be

20  professionally affiliated with the previous physician within 5

21  days after receipt of the request. If the carrier fails to

22  provide a change of physician as requested by the employee,

23  the employee may select the physician and such physician shall

24  be considered authorized if the treatment being provided is

25  compensable and medically necessary.

26  

27  Failure of the carrier to timely comply with this subsection

28  shall be a violation of this chapter and the carrier shall be

29  subject to penalties as provided for in s. 440.525. The

30  employee shall be entitled to select another physician from

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  among not fewer than three carrier-authorized physicians who

 2  are not professionally affiliated.

 3         (3)  PROVIDER ELIGIBILITY; AUTHORIZATION.--

 4         (a)  As a condition to eligibility for payment under

 5  this chapter, a health care provider who renders services must

 6  be a certified health care provider and must receive

 7  authorization from the carrier before providing treatment.

 8  This paragraph does not apply to emergency care. The agency

 9  shall adopt rules to implement the certification of health

10  care providers.

11         (b)  A health care provider who renders emergency care

12  must notify the carrier by the close of the third business day

13  after it has rendered such care. If the emergency care results

14  in admission of the employee to a health care facility, the

15  health care provider must notify the carrier by telephone

16  within 24 hours after initial treatment. Emergency care is not

17  compensable under this chapter unless the injury requiring

18  emergency care arose as a result of a work-related accident.

19  Pursuant to chapter 395, all licensed physicians and health

20  care providers in this state shall be required to make their

21  services available for emergency treatment of any employee

22  eligible for workers' compensation benefits. To refuse to make

23  such treatment available is cause for revocation of a license.

24         (c)  A health care provider may not refer the employee

25  to another health care provider, diagnostic facility, therapy

26  center, or other facility without prior authorization from the

27  carrier, except when emergency care is rendered. Any referral

28  must be to a health care provider that has been certified by

29  the agency, unless the referral is for emergency treatment,

30  and the referral must be made in accordance with practice

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  parameters and protocols of treatment as provided for in this

 2  chapter.

 3         (d)  A carrier must respond, by telephone or in

 4  writing, to a request for authorization from an authorized

 5  health care provider by the close of the third business day

 6  after receipt of the request. A carrier who fails to respond

 7  to a written request for authorization for referral for

 8  medical treatment by the close of the third business day after

 9  receipt of the request consents to the medical necessity for

10  such treatment. All such requests must be made to the carrier.

11  Notice to the carrier does not include notice to the employer.

12         (e)  Carriers shall adopt procedures for receiving,

13  reviewing, documenting, and responding to requests for

14  authorization. Such procedures shall be for a health care

15  provider certified under this section.

16         (f)  By accepting payment under this chapter for

17  treatment rendered to an injured employee, a health care

18  provider consents to the jurisdiction of the agency as set

19  forth in subsection (11) and to the submission of all records

20  and other information concerning such treatment to the agency

21  in connection with a reimbursement dispute, audit, or review

22  as provided by this section. The health care provider must

23  further agree to comply with any decision of the agency

24  rendered under this section.

25         (g)  The employee is not liable for payment for medical

26  treatment or services provided pursuant to this section except

27  as otherwise provided in this section.

28         (h)  The provisions of s. 456.053 are applicable to

29  referrals among health care providers, as defined in

30  subsection (1), treating injured workers.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (i)  Notwithstanding paragraph (d), a claim for

 2  specialist consultations, surgical operations,

 3  physiotherapeutic or occupational therapy procedures, X-ray

 4  examinations, or special diagnostic laboratory tests that cost

 5  more than $1,000 and other specialty services that the agency

 6  identifies by rule is not valid and reimbursable unless the

 7  services have been expressly authorized by the carrier, or

 8  unless the carrier has failed to respond within 10 days to a

 9  written request for authorization, or unless emergency care is

10  required. The insurer shall not refuse to authorize such

11  consultation or procedure unless the health care provider or

12  facility is not authorized or certified, unless such treatment

13  is not in accordance with practice parameters and protocols of

14  treatment established in this chapter, or unless a judge of

15  compensation claims an expert medical advisor has determined

16  that the consultation or procedure is not medically necessary,

17  not in accordance with the practice parameters and protocols

18  of treatment established in this chapter, or otherwise not

19  compensable under this chapter. Authorization of a treatment

20  plan does not constitute express authorization for purposes of

21  this section, except to the extent the carrier provides

22  otherwise in its authorization procedures. This paragraph does

23  not limit the carrier's obligation to identify and disallow

24  overutilization or billing errors.

25         (j)  Notwithstanding anything in this chapter to the

26  contrary, a sick or injured employee shall be entitled, at all

27  times, to free, full, and absolute choice in the selection of

28  the pharmacy or pharmacist dispensing and filling

29  prescriptions for medicines required under this chapter. It is

30  expressly forbidden for the agency, an employer, or a carrier,

31  or any agent or representative of the agency, an employer, or

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  a carrier to select the pharmacy or pharmacist which the sick

 2  or injured employee must use; condition coverage or payment on

 3  the basis of the pharmacy or pharmacist utilized; or to

 4  otherwise interfere in the selection by the sick or injured

 5  employee of a pharmacy or pharmacist.

 6         (4)  NOTICE OF TREATMENT TO CARRIER; FILING WITH

 7  DEPARTMENT.--

 8         (a)  Any health care provider providing necessary

 9  remedial treatment, care, or attendance to any injured worker

10  shall submit treatment reports to the carrier in a format

11  prescribed by the department in consultation with the agency.

12  A claim for medical or surgical treatment is not valid or

13  enforceable against such employer or employee, unless, by the

14  close of the third business day following the first treatment,

15  the physician providing the treatment furnishes to the

16  employer or carrier a preliminary notice of the injury and

17  treatment in a format on forms prescribed by the department in

18  consultation with the agency and, within 15 days thereafter,

19  furnishes to the employer or carrier a complete report, and

20  subsequent thereto furnishes progress reports, if requested by

21  the employer or insurance carrier, at intervals of not less

22  than 3 weeks apart or at less frequent intervals if requested

23  in a format on forms prescribed by the department in

24  consultation with the agency.

25         (b)  Upon the request of the department or agency, each

26  medical report or bill obtained or received by the employer,

27  the carrier, or the injured employee, or the attorney for the

28  employer, carrier, or injured employee, with respect to the

29  remedial treatment, care, and attendance of the injured

30  employee, including any report of an examination, diagnosis,

31  or disability evaluation, must be produced by the health care

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  provider to filed with the department or agency pursuant to

 2  rules adopted by the department in consultation with the

 3  agency.  The health care provider shall also furnish to the

 4  injured employee or to his or her attorney and the employer or

 5  carrier or its attorney, on demand, a copy of his or her

 6  office chart, records, and reports, and may charge the injured

 7  employee no more than 50 cents per page for copying the

 8  records and the actual direct cost to the health care provider

 9  or health care facility for X rays, microfilm, or other

10  nonpaper records an amount authorized by the department for

11  the copies. Each such health care provider shall provide to

12  the agency or department information about the remedial

13  treatment, care, and attendance which the agency or department

14  reasonably requests.

15         (c)  It is the policy for the administration of the

16  workers' compensation system that there shall be reasonable

17  access to medical information by all parties to facilitate the

18  self-executing features of the law. An employee who reports an

19  injury or illness alleged to be work-related waives any

20  physician-patient privilege with respect to any condition or

21  complaint reasonably related to the condition for which the

22  employee claims compensation. Notwithstanding the limitations

23  in s. 456.057 and subject to the limitations in s. 381.004,

24  upon the request of the employer, the carrier, an authorized

25  qualified rehabilitation provider, or the attorney for the

26  employer or carrier, the medical records, reports, and

27  information of an injured employee relevant to the particular

28  injury or illness for which compensation is sought must be

29  furnished to those persons and the medical condition of the

30  injured employee must be discussed with those persons, if the

31  records and the discussions are restricted to conditions

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  relating to the workplace injury. Release of medical

 2  information by the health care provider or other physician

 3  does not require the authorization of the injured employee. If

 4  medical records, reports, and information of an injured

 5  employee are sought from health care providers who are not

 6  subject to the jurisdiction of the state, the injured employee

 7  shall sign an authorization allowing for the employer or

 8  carrier to obtain the medical records, reports, or

 9  information. Any such discussions or release of information

10  may be held before or after the filing of a claim or petition

11  for benefits without the knowledge, consent, or presence of

12  any other party or his or her agent or representative. A

13  health care provider who willfully refuses to provide medical

14  records or to discuss the medical condition of the injured

15  employee, after a reasonable request is made for such

16  information pursuant to this subsection, shall be subject by

17  the department agency to one or more of the penalties set

18  forth in paragraph (8)(b). The department may adopt rules to

19  carry out this subsection.

20         (5)  INDEPENDENT MEDICAL EXAMINATIONS.--

21         (a)  In any dispute concerning overutilization, medical

22  benefits, compensability, or disability under this chapter,

23  the carrier or the employee may select an independent medical

24  examiner. If the parties agree, the examiner may be a health

25  care provider treating or providing other care to the

26  employee. An independent medical examiner may not render an

27  opinion outside his or her area of expertise, as demonstrated

28  by licensure and applicable practice parameters. The employer

29  and employee shall be entitled to only one independent medical

30  examination per accident and not one independent medical

31  examination per medical specialty. The party requesting and

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  selecting the independent medical examination shall be

 2  responsible for all expenses associated with said examination,

 3  including, but not limited to, medically necessary diagnostic

 4  testing performed and physician or medical care provider fees

 5  for the evaluation. The party selecting the independent

 6  medical examination shall identify the choice of the

 7  independent medical examiner to all other parties within 15

 8  days after the date the independent medical examination is to

 9  take place. Failure to timely provide such notification shall

10  preclude the requesting party from submitting the findings of

11  such independent medical examiner in a proceeding before a

12  judge of compensation claims. The independent medical examiner

13  may not provide followup care if such recommendation for care

14  is found to be medically necessary. If the employee prevails

15  in a medical dispute as determined in an order by a judge of

16  compensation claims or if benefits are paid or treatment

17  provided after the employee has obtained an independent

18  medical examination based upon the examiner's findings, the

19  costs of such examination shall be paid by the employer or

20  carrier.

21         (b)  Each party is bound by his or her selection of an

22  independent medical examiner, including the selection of the

23  independent medical examiner in accordance with s. 440.134 and

24  the opinions of such independent medical examiner. Each party

25  and is entitled to an alternate examiner only if:

26         1.  The examiner is not qualified to render an opinion

27  upon an aspect of the employee's illness or injury which is

28  material to the claim or petition for benefits;

29         2.  The examiner ceases to practice in the specialty

30  relevant to the employee's condition;

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         3.  The examiner is unavailable due to injury, death,

 2  or relocation outside a reasonably accessible geographic area;

 3  or

 4         4.  The parties agree to an alternate examiner.

 5  

 6  Any party may request, or a judge of compensation claims may

 7  require, designation of an agency medical advisor as an

 8  independent medical examiner. The opinion of the advisors

 9  acting as examiners shall not be afforded the presumption set

10  forth in paragraph (9)(c).

11         (c)  The carrier may, at its election, contact the

12  claimant directly to schedule a reasonable time for an

13  independent medical examination. The carrier must confirm the

14  scheduling agreement in writing with the claimant and the

15  within 5 days and notify claimant's counsel, if any, at least

16  7 days before the date upon which the independent medical

17  examination is scheduled to occur. An attorney representing a

18  claimant is not authorized to schedule the self-insured

19  employer's or carrier's independent medical evaluations under

20  this subsection. Neither the self-insured employer nor the

21  carrier shall be responsible for scheduling any independent

22  medical examination other than an employer or carrier

23  independent medical examination.

24         (d)  If the employee fails to appear for the

25  independent medical examination scheduled by the employer or

26  carrier without good cause and fails to advise the physician

27  at least 24 hours before the scheduled date for the

28  examination that he or she cannot appear, the employee is

29  barred from recovering compensation for any period during

30  which he or she has refused to submit to such examination.

31  Further, the employee shall reimburse the employer or carrier

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  50 percent of the physician's cancellation or no-show fee

 2  unless the employer or carrier that schedules the examination

 3  fails to timely provide to the employee a written confirmation

 4  of the date of the examination pursuant to paragraph (c) which

 5  includes an explanation of why he or she failed to appear. The

 6  employee may appeal to a judge of compensation claims for

 7  reimbursement when the employer or carrier withholds payment

 8  in excess of the authority granted by this section.

 9         (e)  No medical opinion other than the opinion of a

10  medical advisor appointed by the judge of compensation claims

11  or the department agency, an independent medical examiner, or

12  an authorized treating provider is admissible in proceedings

13  before the judges of compensation claims.

14         (f)  Attorney's fees incurred by an injured employee in

15  connection with delay of or opposition to an independent

16  medical examination, including, but not limited to, motions

17  for protective orders, are not recoverable under this chapter.

18         (g)  When a medical dispute arises, the parties may

19  mutually agree to refer the employee to a licensed physician

20  specializing in the diagnosis and treatment of the medical

21  condition at issue for an independent medical examination and

22  report. Such medical examination shall be referred to as a

23  "consensus independent medical examination." The findings and

24  conclusions of such mutually agreed upon consensus independent

25  medical examination shall be binding on the parties and shall

26  constitute resolution of the medical dispute addressed in the

27  independent consensus medical examination and in any

28  proceeding. Agreement by the parties to a consensus

29  independent medical examination shall not affect the

30  employer's, carrier's, or employee's entitlement to one

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  independent medical examination per accident as provided for

 2  in this subsection.

 3         (6)  UTILIZATION REVIEW.--Carriers shall review all

 4  bills, invoices, and other claims for payment submitted by

 5  health care providers in order to identify overutilization and

 6  billing errors, including compliance with practice parameters

 7  and protocols of treatment established in accordance with this

 8  chapter, and may hire peer review consultants or conduct

 9  independent medical evaluations. Such consultants, including

10  peer review organizations, are immune from liability in the

11  execution of their functions under this subsection to the

12  extent provided in s. 766.101. If a carrier finds that

13  overutilization of medical services or a billing error has

14  occurred, or there is a violation of the practice parameters

15  and protocols of treatment established in accordance with this

16  chapter, it must disallow or adjust payment for such services

17  or error without order of a judge of compensation claims or

18  the agency, if the carrier, in making its determination, has

19  complied with this section and rules adopted by the agency.

20         (7)  UTILIZATION AND REIMBURSEMENT DISPUTES.--

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

22  elects to contest the disallowance or adjustment of payment by

23  a carrier under subsection (6) must, within 30 days after

24  receipt of notice of disallowance or adjustment of payment,

25  petition the agency to resolve the dispute. The petitioner

26  must serve a copy of the petition on the carrier and on all

27  affected parties by certified mail. The petition must be

28  accompanied by all documents and records that support the

29  allegations contained in the petition. Failure of a petitioner

30  to submit such documentation to the agency results in

31  dismissal of the petition.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

 2  days after receipt of the petition all documentation

 3  substantiating the carrier's disallowance or adjustment.

 4  Failure of the carrier to timely submit the requested

 5  documentation to the agency within 10 days constitutes a

 6  waiver of all objections to the petition.

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

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

 9  the affected parties a written determination of whether the

10  carrier properly adjusted or disallowed payment. The agency

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

12  chapter, including all applicable reimbursement schedules,

13  practice parameters, and protocols of treatment, in rendering

14  its determination.

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

16  improper adjustment of payment by an insurer, the insurer

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

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

19  in this subsection.

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

21  subsection. The rules may include provisions for consolidating

22  petitions filed by a petitioner and expanding the timetable

23  for rendering a determination upon a consolidated petition.

24         (f)  Any carrier that engages in a pattern or practice

25  of arbitrarily or unreasonably disallowing or reducing

26  payments to health care providers may be subject to one or

27  more of the following penalties imposed by the agency:

28         1.  Repayment of the appropriate amount to the health

29  care provider.

30  

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

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

 3  disallowing or reducing payments.

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

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

 6  petition.

 7         (8)  PATTERN OR PRACTICE OF OVERUTILIZATION.--

 8         (a)  Carriers must report to the agency all instances

 9  of overutilization including, but not limited to, all

10  instances in which the carrier disallows or adjusts payment or

11  a determination has been made that the provided or recommended

12  treatment is in excess of the practice parameters and

13  protocols of treatment established in this chapter. The agency

14  shall determine whether a pattern or practice of

15  overutilization exists.

16         (b)  If the agency determines that a health care

17  provider has engaged in a pattern or practice of

18  overutilization or a violation of this chapter or rules

19  adopted by the agency, including a pattern or practice of

20  providing treatment in excess of the practice parameters or

21  protocols of treatment, it may impose one or more of the

22  following penalties:

23         1.  An order of the agency barring the provider from

24  payment under this chapter;

25         2.  Deauthorization of care under review;

26         3.  Denial of payment for care rendered in the future;

27         4.  Decertification of a health care provider certified

28  as an expert medical advisor under subsection (9) or of a

29  rehabilitation provider certified under s. 440.49;

30  

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

 2  amount not to exceed $5,000 per instance of overutilization or

 3  violation; and

 4         6.  Notification of and review by the appropriate

 5  licensing authority pursuant to s. 440.106(3).

 6         (9)  EXPERT MEDICAL ADVISORS.--

 7         (a)  The  agency  shall certify expert medical advisors

 8  in each specialty to assist the  agency and the judges of

 9  compensation claims within the advisor's area of expertise as

10  provided in this section. The  agency shall, in a manner

11  prescribed by rule, in certifying, recertifying, or

12  decertifying an expert medical advisor, consider the

13  qualifications, training, impartiality, and commitment of the

14  health care provider to the provision of quality medical care

15  at a reasonable cost. As a prerequisite for certification or

16  recertification, the  agency shall require, at a minimum, that

17  an expert medical advisor have specialized workers'

18  compensation training or experience under the workers'

19  compensation system of this state and board certification or

20  board eligibility.

21         (b)  The agency shall contract with one or more

22  entities that employ, contract with, or otherwise secure or

23  employ expert medical advisors to provide peer review or

24  expert medical consultation, opinions, and testimony to the

25  agency or to a judge of compensation claims in connection with

26  resolving disputes relating to reimbursement, differing

27  opinions of health care providers, and health care and

28  physician services rendered under this chapter, including

29  utilization issues. The agency shall by rule establish the

30  qualifications of expert medical advisors, including training

31  and experience in the workers' compensation system in the

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  state and the expert medical advisor's knowledge of and

 2  commitment to the standards of care, practice parameters, and

 3  protocols established pursuant to this chapter. Expert medical

 4  advisors contracting with the agency shall, as a term of such

 5  contract, agree to provide consultation or services in

 6  accordance with the timetables set forth in this chapter and

 7  to abide by rules adopted by the agency, including, but not

 8  limited to, rules pertaining to procedures for review of the

 9  services rendered by health care providers and preparation of

10  reports and testimony or recommendations for submission to the

11  agency or the judge of compensation claims.

12         (c)  If there is disagreement in the opinions of the

13  health care providers, if two health care providers disagree

14  on medical evidence supporting the employee's complaints or

15  the need for additional medical treatment, or if two health

16  care providers disagree that the employee is able to return to

17  work, the agency may, and the judge of compensation claims

18  shall, upon his or her own motion or within 15 days after

19  receipt of a written request by either the injured employee,

20  the employer, or the carrier, order the injured employee to be

21  evaluated by an expert medical advisor. The opinion of the

22  expert medical advisor is presumed to be correct unless there

23  is clear and convincing evidence to the contrary as determined

24  by the judge of compensation claims. The expert medical

25  advisor appointed to conduct the evaluation shall have free

26  and complete access to the medical records of the employee. An

27  employee who fails to report to and cooperate with such

28  evaluation forfeits entitlement to compensation during the

29  period of failure to report or cooperate.

30         (d)  The expert medical advisor must complete his or

31  her evaluation and issue his or her report to the agency or to

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  the judge of compensation claims within 15 45 days after

 2  receipt of all medical records. The expert medical advisor

 3  must furnish a copy of the report to the carrier and to the

 4  employee.

 5         (e)  An expert medical advisor is not liable under any

 6  theory of recovery for evaluations performed under this

 7  section without a showing of fraud or malice. The protections

 8  of s. 766.101 apply to any officer, employee, or agent of the

 9  agency and to any officer, employee, or agent of any entity

10  with which the agency has contracted under this subsection.

11         (f)  If the agency or a judge of compensation claims

12  orders determines that the services of a certified expert

13  medical advisor are required to resolve a dispute under this

14  section, the party requesting such examination carrier must

15  compensate the advisor for his or her time in accordance with

16  a schedule adopted by the agency. If the employee prevails in

17  a dispute as determined in an order by a judge of compensation

18  claims based upon the expert medical advisor's findings, the

19  employer or carrier shall pay for the costs of such expert

20  medical advisor. If a judge of compensation claims, upon his

21  or her motion, finds that an expert medical advisor is needed

22  to resolve the dispute, the carrier must compensate the

23  advisor for his or her time in accordance with a schedule

24  adopted by the agency. The agency may assess a penalty not to

25  exceed $500 against any carrier that fails to timely

26  compensate an advisor in accordance with this section.

27         (10)  WITNESS FEES.--Any health care provider who gives

28  a deposition shall be allowed a witness fee. The amount

29  charged by the witness may not exceed $200 per hour. An expert

30  witness who has never provided direct professional services to

31  a party but has merely reviewed medical records and provided

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  an expert opinion or has provided only direct professional

 2  services that were unrelated to the workers' compensation case

 3  may not be allowed a witness fee in excess of $200 per day.

 4         (11)  AUDITS BY AGENCY FOR HEALTH CARE ADMINISTRATION

 5  AND THE DEPARTMENT OF INSURANCE; JURISDICTION.--

 6         (a)  The Agency for Health Care Administration may

 7  investigate health care providers to determine whether

 8  providers are complying with this chapter and with rules

 9  adopted by the agency, whether the providers are engaging in

10  overutilization, and whether providers are engaging in

11  improper billing practices, and whether providers are adhering

12  to practice parameters and protocols established in accordance

13  with this chapter. If the agency finds that a health care

14  provider has improperly billed, overutilized, or failed to

15  comply with agency rules or the requirements of this chapter,

16  including, but not limited to, practice parameters and

17  protocols established in accordance with this chapter, it must

18  notify the provider of its findings and may determine that the

19  health care provider may not receive payment from the carrier

20  or may impose penalties as set forth in subsection (8) or

21  other sections of this chapter. If the health care provider

22  has received payment from a carrier for services that were

23  improperly billed, that constitute overutilization, or that

24  were outside practice parameters or protocols established in

25  accordance with this chapter or for overutilization, it must

26  return those payments to the carrier. The agency may assess a

27  penalty not to exceed $500 for each overpayment that is not

28  refunded within 30 days after notification of overpayment by

29  the agency or carrier.

30         (b)  The department shall monitor and audit carriers as

31  provided in s. 624.3161, to determine if medical bills are

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  paid in accordance with this section and department rules. Any

 2  employer, if self-insured, or carrier found by the division

 3  not to be within 90 percent compliance as to the payment of

 4  medical bills after July 1, 1994, must be assessed a fine not

 5  to exceed 1 percent of the prior year's assessment levied

 6  against such entity under s. 440.51 for every quarter in which

 7  the entity fails to attain 90-percent compliance. The

 8  department shall fine or otherwise discipline an employer or

 9  carrier, pursuant to this chapter, the insurance code, or

10  rules adopted by the department, for each late payment of

11  compensation that is below the minimum 95-percent 90-percent

12  performance standard. Any carrier that is found to be not in

13  compliance in subsequent consecutive quarters must implement a

14  medical-bill review program approved by the division, and the

15  carrier is subject to disciplinary action by the Department of

16  Insurance.

17         (c)  The agency has exclusive jurisdiction to decide

18  any matters concerning reimbursement, to resolve any

19  overutilization dispute under subsection (7), and to decide

20  any question concerning overutilization under subsection (8),

21  which question or dispute arises after January 1, 1994.

22         (d)  The following agency actions do not constitute

23  agency action subject to review under ss. 120.569 and 120.57

24  and do not constitute actions subject to s. 120.56: referral

25  by the entity responsible for utilization review; a decision

26  by the agency to refer a matter to a peer review committee;

27  establishment by a health care provider or entity of

28  procedures by which a peer review committee reviews the

29  rendering of health care services; and the review proceedings,

30  report, and recommendation of the peer review committee.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

 2  REIMBURSEMENT ALLOWANCES.--

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

 4  Insurance Commissioner, or the Insurance Commissioner's

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

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

 7  account of present or previous vocation, employment, or

 8  affiliation, shall be classified as a representative of

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

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

11  representative of employees. The panel shall determine

12  statewide schedules of maximum reimbursement allowances for

13  medically necessary treatment, care, and attendance provided

14  by physicians, hospitals, ambulatory surgical centers,

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

16  equipment. The maximum reimbursement allowances for inpatient

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

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

19  1, 1994, to be used in conjunction with a precertification

20  manual as determined by the department, including maximum

21  hours in which an outpatient may remain in observation status,

22  which shall not exceed 23 hours agency. All compensable

23  charges for hospital outpatient care shall be reimbursed at 75

24  percent of usual and customary charges, except as otherwise

25  provided by this subsection. Until the three-member panel

26  approves a schedule of per diem rates for inpatient hospital

27  care and it becomes effective, all compensable charges for

28  hospital inpatient care must be reimbursed at 75 percent of

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

30  panel shall adopt schedules of maximum reimbursement

31  allowances for physicians, hospital inpatient care, hospital

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  outpatient care, ambulatory surgical centers, work-hardening

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

 3  of increase in the individual reimbursement allowance may not

 4  exceed the percentage of increase in the Consumer Price Index

 5  for the previous year. An individual physician, hospital,

 6  ambulatory surgical center, pain program, or work-hardening

 7  program shall be reimbursed either the usual and customary

 8  charge for treatment, care, and attendance, the agreed-upon

 9  contract price, or the maximum reimbursement allowance in the

10  appropriate schedule, whichever is less.

11         (b)  It is the intent of the Legislature to increase

12  the schedule of maximum reimbursement allowances for selected

13  physicians effective January 1, 2004, and to pay for the

14  increases through reductions in payments to hospitals.

15  Revisions developed pursuant to this subsection are limited to

16  the following:

17         1.  Payments for outpatient physical, occupational, and

18  speech therapy provided by hospitals shall be reduced to the

19  schedule of maximum reimbursement allowances for these

20  services which applies to nonhospital providers.

21         2.  Payments for scheduled outpatient nonemergency

22  radiological and clinical laboratory services that are not

23  provided in conjunction with a surgical procedure shall be

24  reduced to the schedule of maximum reimbursement allowances

25  for these services which applies to nonhospital providers.

26         3.  Outpatient reimbursement for scheduled surgeries

27  shall be reduced from 75 percent of charges to 60 percent of

28  charges.

29         4.  Maximum reimbursement for a physician licensed

30  under chapter 458 or chapter 459 shall be increased to 110

31  percent of the reimbursement allowed by Medicare, using

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  appropriate codes and modifiers or the medical reimbursement

 2  level adopted by the three-member panel as of January 1, 2003,

 3  whichever is greater.

 4         5.  Maximum reimbursement for surgical procedures shall

 5  be increased to 140 percent of the reimbursement allowed by

 6  Medicare or the medical reimbursement level adopted by the

 7  three-member panel as of January 1, 2003, whichever is

 8  greater.

 9         (c)(b)  As to reimbursement for a prescription

10  medication, the reimbursement amount for a prescription shall

11  be the average wholesale price times 1.2 plus $4.18 for the

12  dispensing fee, except where the carrier has contracted for a

13  lower amount. Fees for pharmaceuticals and pharmaceutical

14  services shall be reimbursable at the applicable fee schedule

15  amount. Where the employer or carrier has contracted for such

16  services and the employee elects to obtain them through a

17  provider not a party to the contract, the carrier shall

18  reimburse at the schedule, negotiated, or contract price,

19  whichever is lower. No such contract shall rely on a provider

20  that is not reasonably accessible to the employee.

21         (d)(c)  Reimbursement for all fees and other charges

22  for such treatment, care, and attendance, including treatment,

23  care, and attendance provided by any hospital or other health

24  care provider, ambulatory surgical center, work-hardening

25  program, or pain program, must not exceed the amounts provided

26  by the uniform schedule of maximum reimbursement allowances as

27  determined by the panel or as otherwise provided in this

28  section. This subsection also applies to independent medical

29  examinations performed by health care providers under this

30  chapter. Until the three-member panel approves a uniform

31  schedule of maximum reimbursement allowances and it becomes

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  effective, all compensable charges for treatment, care, and

 2  attendance provided by physicians, ambulatory surgical

 3  centers, work-hardening programs, or pain programs shall be

 4  reimbursed at the lowest maximum reimbursement allowance

 5  across all 1992 schedules of maximum reimbursement allowances

 6  for the services provided regardless of the place of service.

 7  In determining the uniform schedule, the panel shall first

 8  approve the data which it finds representative of prevailing

 9  charges in the state for similar treatment, care, and

10  attendance of injured persons. Each health care provider,

11  health care facility, ambulatory surgical center,

12  work-hardening program, or pain program receiving workers'

13  compensation payments shall maintain records verifying their

14  usual charges. In establishing the uniform schedule of maximum

15  reimbursement allowances, the panel must consider:

16         1.  The levels of reimbursement for similar treatment,

17  care, and attendance made by other health care programs or

18  third-party providers;

19         2.  The impact upon cost to employers for providing a

20  level of reimbursement for treatment, care, and attendance

21  which will ensure the availability of treatment, care, and

22  attendance required by injured workers;

23         3.  The financial impact of the reimbursement

24  allowances upon health care providers and health care

25  facilities, including trauma centers as defined in s.

26  395.4001, and its effect upon their ability to make available

27  to injured workers such medically necessary remedial

28  treatment, care, and attendance. The uniform schedule of

29  maximum reimbursement allowances must be reasonable, must

30  promote health care cost containment and efficiency with

31  respect to the workers' compensation health care delivery

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  system, and must be sufficient to ensure availability of such

 2  medically necessary remedial treatment, care, and attendance

 3  to injured workers; and

 4         4.  The most recent average maximum allowable rate of

 5  increase for hospitals determined by the Health Care Board

 6  under chapter 408.

 7         (e)(d)  In addition to establishing the uniform

 8  schedule of maximum reimbursement allowances, the panel shall:

 9         1.  Take testimony, receive records, and collect data

10  to evaluate the adequacy of the workers' compensation fee

11  schedule, nationally recognized fee schedules and alternative

12  methods of reimbursement to certified health care providers

13  and health care facilities for inpatient and outpatient

14  treatment and care.

15         2.  Survey certified health care providers and health

16  care facilities to determine the availability and

17  accessibility of workers' compensation health care delivery

18  systems for injured workers.

19         3.  Survey carriers to determine the estimated impact

20  on carrier costs and workers' compensation premium rates by

21  implementing changes to the carrier reimbursement schedule or

22  implementing alternative reimbursement methods.

23         4.  Submit recommendations on or before January 1,

24  2003, and biennially thereafter, to the President of the

25  Senate and the Speaker of the House of Representatives on

26  methods to improve the workers' compensation health care

27  delivery system.

28  

29  The division shall provide data to the panel, including but

30  not limited to, utilization trends in the workers'

31  compensation health care delivery system. The division shall

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  provide the panel with an annual report regarding the

 2  resolution of medical reimbursement disputes and any actions

 3  pursuant to s. 440.13(8). The division shall provide

 4  administrative support and service to the panel to the extent

 5  requested by the panel.

 6         (13)  REMOVAL OF PHYSICIANS FROM LISTS OF THOSE

 7  AUTHORIZED TO RENDER MEDICAL CARE.--The agency shall remove

 8  from the list of physicians or facilities authorized to

 9  provide remedial treatment, care, and attendance under this

10  chapter the name of any physician or facility found after

11  reasonable investigation to have:

12         (a)  Engaged in professional or other misconduct or

13  incompetency in connection with medical services rendered

14  under this chapter;

15         (b)  Exceeded the limits of his or her or its

16  professional competence in rendering medical care under this

17  chapter, or to have made materially false statements regarding

18  his or her or its qualifications in his or her application;

19         (c)  Failed to transmit copies of medical reports to

20  the employer or carrier, or failed to submit full and truthful

21  medical reports of all his or her or its findings to the

22  employer or carrier as required under this chapter;

23         (d)  Solicited, or employed another to solicit for

24  himself or herself or itself or for another, professional

25  treatment, examination, or care of an injured employee in

26  connection with any claim under this chapter;

27         (e)  Refused to appear before, or to answer upon

28  request of, the agency or any duly authorized officer of the

29  state, any legal question, or to produce any relevant book or

30  paper concerning his or her conduct under any authorization

31  granted to him or her under this chapter;

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (f)  Self-referred in violation of this chapter or

 2  other laws of this state; or

 3         (g)  Engaged in a pattern of practice of

 4  overutilization or a violation of this chapter or rules

 5  adopted by the agency, including failure to adhere to practice

 6  parameters and protocols established in accordance with this

 7  chapter.

 8         (14)  PAYMENT OF MEDICAL FEES.--

 9         (a)  Except for emergency care treatment, fees for

10  medical services are payable only to a health care provider

11  certified and authorized to render remedial treatment, care,

12  or attendance under this chapter. Carriers shall pay,

13  disallow, or deny payment to health care providers in the

14  manner and at times set forth in this chapter. A health care

15  provider may not collect or receive a fee from an injured

16  employee within this state, except as otherwise provided by

17  this chapter. Such providers have recourse against the

18  employer or carrier for payment for services rendered in

19  accordance with this chapter. Payment to health care providers

20  or physicians shall be subject to the medical fee schedule and

21  applicable practice parameters and protocols, regardless of

22  whether the health care provider or claimant is asserting that

23  the payment should be made.

24         (b)  Fees charged for remedial treatment, care, and

25  attendance, except for independent medical examinations and

26  consensus independent medical examinations, may not exceed the

27  applicable fee schedules adopted under this chapter and

28  department rule. Notwithstanding any other provision in this

29  chapter, if a physician or health care provider specifically

30  agrees in writing to follow identified procedures aimed at

31  providing quality medical care to injured workers at

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  reasonable costs, deviations from established fee schedules

 2  shall be permitted. Written agreements warranting deviations

 3  may include, but are not limited to, the timely scheduling of

 4  appointments for injured workers, participating in

 5  return-to-work programs with injured workers' employers,

 6  expediting the reporting of treatments provided to injured

 7  workers, and agreeing to continuing education, utilization

 8  review, quality assurance, precertification, and case

 9  management systems that are designed to provide needed

10  treatment for injured workers.

11         (c)  Notwithstanding any other provision of this

12  chapter, following overall maximum medical improvement from an

13  injury compensable under this chapter, the employee is

14  obligated to pay a copayment of $10 per visit for medical

15  services. The copayment shall not apply to emergency care

16  provided to the employee.

17         (15)  PRACTICE PARAMETERS.--The practice parameters and

18  protocols mandated under this chapter shall be the practice

19  parameters and protocols adopted by the United States Agency

20  for Healthcare Research and Quality in effect on January 1,

21  2003.

22         (a)  The Agency for Health Care Administration, in

23  conjunction with the department and appropriate health

24  professional associations and health-related organizations

25  shall develop and may adopt by rule scientifically sound

26  practice parameters for medical procedures relevant to

27  workers' compensation claimants. Practice parameters developed

28  under this section must focus on identifying effective

29  remedial treatments and promoting the appropriate utilization

30  of health care resources. Priority must be given to those

31  procedures that involve the greatest utilization of resources

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  either because they are the most costly or because they are

 2  the most frequently performed. Practice parameters for

 3  treatment of the 10 top procedures associated with workers'

 4  compensation injuries including the remedial treatment of

 5  lower-back injuries must be developed by December 31, 1994.

 6         (b)  The guidelines may be initially based on

 7  guidelines prepared by nationally recognized health care

 8  institutions and professional organizations but should be

 9  tailored to meet the workers' compensation goal of returning

10  employees to full employment as quickly as medically possible,

11  taking into consideration outcomes data collected from managed

12  care providers and any other inpatient and outpatient

13  facilities serving workers' compensation claimants.

14         (c)  Procedures must be instituted which provide for

15  the periodic review and revision of practice parameters based

16  on the latest outcomes data, research findings, technological

17  advancements, and clinical experiences, at least once every 3

18  years.

19         (d)  Practice parameters developed under this section

20  must be used by carriers and the agency in evaluating the

21  appropriateness and overutilization of medical services

22  provided to injured employees.

23         (16)  STANDARDS OF CARE.--The following standards of

24  care shall be followed in providing medical care under this

25  chapter:

26         (a)  Abnormal anatomical findings alone, in the absence

27  of objective relevant medical findings, shall not be an

28  indicator of injury or illness, a justification for the

29  provision of remedial medical care or the assignment of

30  restrictions, or a foundation for limitations.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (b)  At all times during evaluation and treatment, the

 2  provider shall act on the premise that returning to work is an

 3  integral part of the treatment plan. The goal of removing all

 4  restrictions and limitations as early as appropriate shall be

 5  part of the treatment plan on a continuous basis. The

 6  assignment of restrictions and limitations shall be reviewed

 7  with each patient exam and upon receipt of new information,

 8  such as progress reports from physical therapists and other

 9  providers. Consideration shall be given to upgrading or

10  removing the restrictions and limitations with each patient

11  exam, based upon the presence or absence of objective relevant

12  medical findings.

13         (c)  Reasonable necessary medical care of injured

14  employees shall in all situations:

15         1.  Utilize a high intensity, short duration treatment

16  approach that focuses on early activation and restoration of

17  function whenever possible.

18         2.  Include reassessment of the treatment plans,

19  regimes, therapies, prescriptions, and functional limitations

20  or restrictions prescribed by the provider every 30 days.

21         3.  Be focused on treatment of the individual

22  employee's specific clinical dysfunction or status and shall

23  not be based upon nondescript diagnostic labels.

24  

25  All treatment shall be inherently scientifically logical and

26  the evaluation or treatment procedure must match the

27  documented physiologic and clinical problem. Treatment shall

28  match the type, intensity, and duration of service required by

29  the problem identified.

30  

31  

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    4-2575B-03                             See HB 25A, Engrossed 1




 1         (17)  Failure to comply with this section shall be

 2  considered a violation of this chapter and is subject to

 3  penalties as provided for in s. 440.525.

 4         Section 16.  Paragraphs (d) and (i) of subsection (1)

 5  and subsections (2), (6), (7), (8), (9), (10), (11), (17), and

 6  (25) of section 440.134, Florida Statutes, are amended to

 7  read:

 8         440.134  Workers' compensation managed care

 9  arrangement.--

10         (1)  As used in this section, the term:

11         (d)  "Grievance" means a written complaint, other than

12  a petition for benefits, filed by the injured worker pursuant

13  to the requirements of the managed care arrangement,

14  expressing dissatisfaction with the medical care provided by

15  an insurer's workers' compensation managed care arrangement's

16  refusal to provide medical care or the medical care provided

17  arrangement health care providers, expressed in writing by an

18  injured worker.

19         (i)  "Medical care coordinator" means a primary care

20  provider within a provider network who is responsible for

21  managing the medical care of an injured worker including

22  determining other health care providers and health care

23  facilities to which the injured employee will be referred for

24  evaluation or treatment. A medical care coordinator shall be a

25  physician licensed under chapter 458, or an osteopathic

26  physician licensed under chapter 459, a chiropractic physician

27  licensed under chapter 460, or a podiatric physician licensed

28  under chapter 461.

29         (2)(a)  The self-insured employer or carrier may,

30  subject to the terms and limitations specified elsewhere in

31  this section and chapter, furnish to the employee solely

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  through managed care arrangements such medically necessary

 2  remedial treatment, care, and attendance for such period as

 3  the nature of the injury or the process of recovery requires

 4  and which shall be in accordance with practice parameters and

 5  protocols established pursuant to this chapter. For any

 6  self-insured employer or carrier who elects to deliver the

 7  medical benefits required by this chapter through a method

 8  other than a workers' compensation managed care arrangement,

 9  the discontinuance of the use of the workers' compensation

10  managed care arrangement shall be without regard to the date

11  of the accident, notwithstanding any other provision of law or

12  rule.

13         (b)  The agency shall authorize an insurer to offer or

14  utilize a workers' compensation managed care arrangement after

15  the insurer files a completed application along with the

16  payment of a $1,000 application fee, and upon the agency's

17  being satisfied that the applicant has the ability to provide

18  quality of care consistent with the prevailing professional

19  standards of care and the insurer and its workers'

20  compensation managed care arrangement otherwise meets the

21  requirements of this section. No insurer may offer or utilize

22  a managed care arrangement without such authorization. The

23  authorization, unless sooner suspended or revoked, shall

24  automatically expire 2 years after the date of issuance unless

25  renewed by the insurer. The authorization shall be renewed

26  upon application for renewal and payment of a renewal fee of

27  $1,000, provided that the insurer is in compliance with the

28  requirements of this section and any rules adopted hereunder.

29  An application for renewal of the authorization shall be made

30  90 days prior to expiration of the authorization, on forms

31  provided by the agency.  The renewal application shall not

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  require the resubmission of any documents previously filed

 2  with the agency if such documents have remained valid and

 3  unchanged since their original filing.

 4         (6)  The proposed managed care plan of operation must

 5  include:

 6         (a)  A statement or map providing a clear description

 7  of the service area.

 8         (b)  A description of the grievance procedure to be

 9  used.

10         (c)  A description of the quality assurance program

11  which assures that the health care services provided to

12  workers shall be rendered under reasonable standards of

13  quality of care consistent with the prevailing standards of

14  medical practice in the medical community. The program shall

15  include, but not be limited to:

16         1.  A written statement of goals and objectives that

17  stresses health and return-to-work outcomes as the principal

18  criteria for the evaluation of the quality of care rendered to

19  injured workers.

20         2.  A written statement describing how methodology has

21  been incorporated into an ongoing system for monitoring of

22  care that is individual case oriented and, when implemented,

23  can provide interpretation and analysis of patterns of care

24  rendered to individual patients by individual providers.

25         3.  Written procedures for taking appropriate remedial

26  action whenever, as determined under the quality assurance

27  program, inappropriate or substandard services have been

28  provided or services that should have been furnished have not

29  been provided.

30  

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         4.  A written plan, which includes ongoing review, for

 2  providing review of physicians and other licensed medical

 3  providers.

 4         5.  Appropriate financial incentives to reduce service

 5  costs and utilization without sacrificing the quality of

 6  service.

 7         6.  Adequate methods of peer review and utilization

 8  review. The utilization review process shall include a health

 9  care facility's facilities precertification mechanism,

10  including, but not limited to, all elective admissions and

11  nonemergency surgeries and adherence to practice parameters

12  and protocols established in accordance with this chapter.

13         7.  Provisions for resolution of disputes arising

14  between a health care provider and an insurer regarding

15  reimbursements and utilization review.

16         8.  Availability of a process for aggressive medical

17  care coordination, as well as a program involving cooperative

18  efforts by the workers, the employer, and the workers'

19  compensation managed care arrangement to promote early return

20  to work for injured workers.

21         9.  A written plan allowing for the independent medical

22  examination provided for in s. 440.13(5). Notwithstanding any

23  provision to the contrary, the costs for the independent

24  medical examination shall be paid by the carrier if such

25  examination is performed by a physician in the provider

26  network. Otherwise, such costs shall be paid in accordance

27  with s. 440.13(5). An independent medical examination

28  requested by a claimant and paid for by the carrier shall

29  constitute the claimant's one independent medical examination

30  per accident under s. 440.13(5). A process allowing employees

31  to obtain one second medical opinion in the same specialty and

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  within the provider network during the course of treatment for

 2  a work-related injury.

 3         10.  A provision for the selection of a primary care

 4  provider by the employee from among primary providers in the

 5  provider network.

 6         11.  The written information proposed to be used by the

 7  insurer to comply with subparagraph 8.

 8         (7)  Written procedures to provide the insurer with

 9  timely medical records and information including, but not

10  limited to, work status, work restrictions, date of maximum

11  medical improvement, permanent impairment ratings, and other

12  information as required, including information demonstrating

13  compliance with the practice parameters and protocols of

14  treatment established pursuant to this chapter.

15         (8)  Evidence that appropriate health care providers

16  and administrative staff of the insurer's workers'

17  compensation managed care arrangement have received training

18  and education on the provisions of this chapter; and the

19  administrative rules that govern the provision of remedial

20  treatment, care, and attendance of injured workers; and the

21  practice parameters and protocols of treatment established

22  pursuant to this chapter.

23         (9)  Written procedures and methods to prevent

24  inappropriate or excessive treatment that are in accordance

25  with the practice parameters and protocols of treatment

26  established pursuant to this chapter.

27         (10)  Written procedures and methods for the management

28  of an injured worker's medical care by a medical care

29  coordinator including:

30         (a)  The mechanism for assuring that covered employees

31  receive all initial covered services from a primary care

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  provider participating in the provider network, except for

 2  emergency care.

 3         (b)  The mechanism for assuring that all continuing

 4  covered services be received from the same primary care

 5  provider participating in the provider network that provided

 6  the initial covered services, except when services from

 7  another provider are authorized by the medical care

 8  coordinator pursuant to paragraph (d).

 9         (c)  The policies and procedures for allowing an

10  employee one change to another provider within the same

11  specialty and provider network as the authorized treating

12  physician during the course of treatment for a work-related

13  injury, in accordance with the procedures provided in s.

14  440.13(2)(f), if a request is made to the medical care

15  coordinator by the employee; and requiring that special

16  provision be made for more than one such referral through the

17  arrangement's grievance procedures.

18         (d)  The process for assuring that all referrals

19  authorized by a medical care coordinator, in accordance with

20  the practice parameters and protocols of treatment established

21  pursuant to this chapter, are made to the participating

22  network providers, unless medically necessary treatment, care,

23  and attendance are not available and accessible to the injured

24  worker in the provider network.

25         (e)  Assignment of a medical care coordinator licensed

26  under chapter 458 or chapter 459 to manage care by physicians

27  licensed under chapter 458 or chapter 459, a medical care

28  coordinator licensed under chapter 460 to manage care by

29  physicians licensed under chapter 460, and a medical care

30  coordinator licensed under chapter 461 to manage care by

31  physicians licensed under chapter 461 upon request by an

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  injured employee for care by a physician licensed under

 2  chapter 458, chapter 459, chapter 460, or chapter 461.

 3         (11)  A description of the use of workers' compensation

 4  practice parameters and protocols of treatment for health care

 5  services when adopted by the agency.

 6         (17)  Notwithstanding any other provisions of this

 7  chapter, when a carrier provides medical care through a

 8  workers' compensation managed care arrangement, pursuant to

 9  this section, those workers who are subject to the arrangement

10  must receive medical services for work-related injuries and

11  diseases as prescribed in the contract, provided the employer

12  and carrier have provided notice to the employees of the

13  arrangement in a manner approved by the agency and the medical

14  services are in accordance with the practice parameters and

15  protocols established pursuant to this chapter. Treatment

16  received outside the workers' compensation managed care

17  arrangement is not compensable, regardless of the purpose of

18  the treatment, including, but not limited to, evaluations,

19  examinations, or diagnostic studies to determine causation

20  between medical findings and a compensable accident, the

21  existence or extent of impairments or disabilities, and

22  whether the injured employee has reached maximum medical

23  improvement, unless authorized by the carrier prior to the

24  treatment date.

25         (25)  The agency shall adopt rules that specify:

26         (a)  Procedures for authorization and examination of

27  workers' compensation managed care arrangements by the agency.

28         (b)  Requirements and procedures for authorization of

29  workers' compensation arrangement provider networks and

30  procedures for the agency to grant exceptions from

31  accessibility of services.

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    4-2575B-03                             See HB 25A, Engrossed 1




 1         (c)  Requirements and procedures for case management,

 2  utilization management, and peer review.

 3         (d)  Requirements and procedures for quality assurance

 4  and medical records.

 5         (e)  Requirements and procedures for dispute resolution

 6  in conformance with this chapter.

 7         (f)  Requirements and procedures for employee and

 8  provider education.

 9         (g)  Requirements and procedures for reporting data

10  regarding grievances, return-to-work outcomes, and provider

11  networks.

12         Section 17.  Subsections (1) and (4) and paragraph (b)

13  of subsection (5) of section 440.14, Florida Statutes, are

14  amended to read:

15         440.14  Determination of pay.--

16         (1)  Except as otherwise provided in this chapter, the

17  average weekly wages of the injured employee on the date of

18  the accident at the time of the injury shall be taken as the

19  basis upon which to compute compensation and shall be

20  determined, subject to the limitations of s. 440.12(2), as

21  follows:

22         (a)  If the injured employee has worked in the

23  employment in which she or he was working on the date of the

24  accident at the time of the injury, whether for the same or

25  another employer, during substantially the whole of 13 weeks

26  immediately preceding the accident injury, her or his average

27  weekly wage shall be one-thirteenth of the total amount of

28  wages earned in such employment during the 13 weeks. As used

29  in this paragraph, the term "substantially the whole of 13

30  weeks" means the calendar shall be deemed to mean and refer to

31  a constructive period of 13 weeks as a whole, which shall be

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  defined as the 13 calendar weeks before the date of the

 2  accident, excluding the week during which the accident

 3  occurred. a consecutive period of 91 days, and The term

 4  "during substantially the whole of 13 weeks" shall be deemed

 5  to mean during not less than 75 90 percent of the total

 6  customary full-time hours of employment within such period

 7  considered as a whole.

 8         (b)  If the injured employee has not worked in such

 9  employment during substantially the whole of 13 weeks

10  immediately preceding the accident injury, the wages of a

11  similar employee in the same employment who has worked

12  substantially the whole of such 13 weeks shall be used in

13  making the determination under the preceding paragraph.

14         (c)  If an employee is a seasonal worker and the

15  foregoing method cannot be fairly applied in determining the

16  average weekly wage, then the employee may use, instead of the

17  13 weeks immediately preceding the accident injury, the

18  calendar year or the 52 weeks immediately preceding the

19  accident injury. The employee will have the burden of proving

20  that this method will be more reasonable and fairer than the

21  method set forth in paragraphs (a) and (b) and, further, must

22  document prior earnings with W-2 forms, written wage

23  statements, or income tax returns. The employer shall have 30

24  days following the receipt of this written proof to adjust the

25  compensation rate, including the making of any additional

26  payment due for prior weekly payments, based on the lower rate

27  compensation.

28         (d)  If any of the foregoing methods cannot reasonably

29  and fairly be applied, the full-time weekly wages of the

30  injured employee shall be used, except as otherwise provided

31  in paragraph (e) or paragraph (f).

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    4-2575B-03                             See HB 25A, Engrossed 1




 1         (e)  If it is established that the injured employee was

 2  under 22 years of age when the accident occurred injured and

 3  that under normal conditions her or his wages should be

 4  expected to increase during the period of disability, the fact

 5  may be considered in arriving at her or his average weekly

 6  wages.

 7         (f)  If it is established that the injured employee was

 8  a part-time worker on the date of the accident at the time of

 9  the injury, that she or he had adopted part-time employment as

10  a customary practice, and that under normal working conditions

11  she or he probably would have remained a part-time worker

12  during the period of disability, these factors shall be

13  considered in arriving at her or his average weekly wages. For

14  the purpose of this paragraph, the term "part-time worker"

15  means an individual who customarily works less than the

16  full-time hours or full-time workweek of a similar employee in

17  the same employment.

18         (g)  If compensation is due for a fractional part of

19  the week, the compensation for such fractional part shall be

20  determined by dividing the weekly compensation rate by the

21  number of days employed per week to compute the amount due for

22  each day.

23         (4)  Upon termination of the employee or upon

24  termination of the payment of fringe benefits of any employee

25  who is collecting indemnity benefits pursuant to s. 440.15(2)

26  or (3)(b), the employer shall within 7 days of such

27  termination file a corrected 13-week wage statement reflecting

28  the wages paid and the fringe benefits that had been paid to

29  the injured employee, as provided in s. 440.02(27).

30         (5)

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (b)  The employee waives any entitlement to interest,

 2  penalties, and attorney's fees during the period in which the

 3  employee has not provided information concerning the loss of

 4  earnings from concurrent employment. Carriers are not subject

 5  to penalties by the division under s. 440.20(8)(b) and (c) for

 6  unpaid compensation related to concurrent employment during

 7  the period in which the employee has not provided information

 8  concerning the loss of earnings from concurrent employment.

 9         Section 18.  Section 440.15, Florida Statutes, is

10  amended to read:

11         440.15  Compensation for disability.--Compensation for

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

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

14         (1)  PERMANENT TOTAL DISABILITY.--

15         (a)  In case of total disability adjudged to be

16  permanent, 66 2/3 percent of the average weekly wages shall be

17  paid to the employee during the continuance of such total

18  disability.

19         (b)  Only A catastrophic injury as defined in s.

20  440.02(38) shall, in the absence of conclusive proof of a

21  substantial earning capacity, constitute permanent total

22  disability. In all other cases, no compensation shall be

23  payable under paragraph (a) if the employee is engaged in, or

24  is physically capable of engaging in at least sedentary

25  employment. In order to obtain permanent total disability

26  benefits, the employee must establish that he or she is not

27  able uninterruptedly to engage in at least sedentary

28  employment, within a 50-mile radius of the employee's

29  residence, due to his or her physical limitation. Such

30  benefits shall be payable until the employee reaches age 75,

31  notwithstanding any age limits. If the accident occurred on or

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  after the employee reaches age 70, benefits shall be payable

 2  during the continuance of permanent total disability, not to

 3  exceed 5 years following the determination of permanent total

 4  disability. Only claimants with catastrophic injuries or

 5  claimants who are incapable of engaging in employment, as

 6  described in this paragraph, are eligible for permanent total

 7  benefits. In no other case may permanent total disability be

 8  awarded.

 9         (c)  In cases of permanent total disability resulting

10  from injuries that occurred prior to July 1, 1955, such

11  payments shall not be made in excess of 700 weeks.

12         (d)  If an employee who is being paid compensation for

13  permanent total disability becomes rehabilitated to the extent

14  that she or he establishes an earning capacity, the employee

15  shall be paid, instead of the compensation provided in

16  paragraph (a), benefits pursuant to subsection (3). The

17  department shall adopt rules to enable a permanently and

18  totally disabled employee who may have reestablished an

19  earning capacity to undertake a trial period of reemployment

20  without prejudicing her or his return to permanent total

21  status in the case that such employee is unable to sustain an

22  earning capacity.

23         (e)1.  The employer's or carrier's right to conduct

24  vocational evaluations or testing by the employer's or

25  carrier's chosen rehabilitation advisor or provider pursuant

26  to s. 440.491 continues even after the employee has been

27  accepted or adjudicated as entitled to compensation under this

28  chapter and costs for such evaluations and testing shall be

29  borne by the employer or carrier, respectively. This right

30  includes, but is not limited to, instances in which such

31  evaluations or tests are recommended by a treating physician

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  or independent medical-examination physician, instances

 2  warranted by a change in the employee's medical condition, or

 3  instances in which the employee appears to be making

 4  appropriate progress in recuperation. This right may not be

 5  exercised more than once every calendar year.

 6         2.  The carrier must confirm the scheduling of the

 7  vocational evaluation or testing in writing, and must notify

 8  the employee and the employee's counsel, if any, at least 7

 9  days before the date on which vocational evaluation or testing

10  is scheduled to occur.

11         3.  Pursuant to an order of the judge of compensation

12  claims, The employer or carrier may withhold payment of

13  benefits for permanent total disability or supplements for any

14  period during which the employee willfully fails or refuses to

15  appear without good cause for the scheduled vocational

16  evaluation or testing.

17         (f)1.  If permanent total disability results from

18  injuries that occurred subsequent to June 30, 1955, and for

19  which the liability of the employer for compensation has not

20  been discharged under s. 440.20(11), the injured employee

21  shall receive additional weekly compensation benefits equal to

22  3 5 percent of her or his weekly compensation rate, as

23  established pursuant to the law in effect on the date of her

24  or his injury, multiplied by the number of calendar years

25  since the date of injury. The weekly compensation payable and

26  the additional benefits payable under this paragraph, when

27  combined, may not exceed the maximum weekly compensation rate

28  in effect at the time of payment as determined pursuant to s.

29  440.12(2). Entitlement to These supplemental payments shall

30  not be paid or payable after the employee attains cease at age

31  62, regardless of whether if the employee has applied for or

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  is eligible to apply is eligible for social security benefits

 2  under 42 U.S.C. ss. 402 and 423, whether or not the employee

 3  has applied for such benefits. These supplemental benefits

 4  shall be paid by the department out of the Workers'

 5  Compensation Administration Trust Fund when the injury

 6  occurred subsequent to June 30, 1955, and before July 1, 1984.

 7  These supplemental benefits shall be paid by the employer when

 8  the injury occurred on or after July 1, 1984. Supplemental

 9  benefits are not payable for any period prior to October 1,

10  1974.

11         2.a.  The department shall provide by rule for the

12  periodic reporting to the department of all earnings of any

13  nature and social security income by the injured employee

14  entitled to or claiming additional compensation under

15  subparagraph 1. Neither the department nor the employer or

16  carrier shall make any payment of those additional benefits

17  provided by subparagraph 1. for any period during which the

18  employee willfully fails or refuses to report upon request by

19  the department in the manner prescribed by such rules.

20         b.  The department shall provide by rule for the

21  periodic reporting to the employer or carrier of all earnings

22  of any nature and social security income by the injured

23  employee entitled to or claiming benefits for permanent total

24  disability. The employer or carrier is not required to make

25  any payment of benefits for permanent total disability for any

26  period during which the employee willfully fails or refuses to

27  report upon request by the employer or carrier in the manner

28  prescribed by such rules or if any employee who is receiving

29  permanent total disability benefits refuses to apply for or

30  cooperate with the employer or carrier in applying for social

31  security benefits.

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    4-2575B-03                             See HB 25A, Engrossed 1




 1         3.  When an injured employee receives a full or partial

 2  lump-sum advance of the employee's permanent total disability

 3  compensation benefits, the employee's benefits under this

 4  paragraph shall be computed on the employee's weekly

 5  compensation rate as reduced by the lump-sum advance.

 6         (2)  TEMPORARY TOTAL DISABILITY.--

 7         (a)  Subject to subsection (7), in case of disability

 8  total in character but temporary in quality, 66 2/3 percent of

 9  the average weekly wages shall be paid to the employee during

10  the continuance thereof, not to exceed 104 weeks except as

11  provided in this subsection, s. 440.12(1), and s. 440.14(3).

12  Once the employee reaches the maximum number of weeks allowed,

13  or the employee reaches the date of maximum medical

14  improvement, whichever occurs earlier, temporary disability

15  benefits shall cease and the injured worker's permanent

16  impairment shall be determined.

17         (b)  Notwithstanding the provisions of paragraph (a),

18  an employee who has sustained the loss of an arm, leg, hand,

19  or foot, has been rendered a paraplegic, paraparetic,

20  quadriplegic, or quadriparetic, or has lost the sight of both

21  eyes shall be paid temporary total disability of 80 percent of

22  her or his average weekly wage. The increased temporary total

23  disability compensation provided for in this paragraph must

24  not extend beyond 6 months from the date of the accident;

25  however, such benefits shall not be due or payable if the

26  employee is eligible for, entitled to, or collecting permanent

27  total disability benefits. The compensation provided by this

28  paragraph is not subject to the limits provided in s.

29  440.12(2), but instead is subject to a maximum weekly

30  compensation rate of $700. If, at the conclusion of this

31  period of increased temporary total disability compensation,

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  the employee is still temporarily totally disabled, the

 2  employee shall continue to receive temporary total disability

 3  compensation as set forth in paragraphs (a) and (c). The

 4  period of time the employee has received this increased

 5  compensation will be counted as part of, and not in addition

 6  to, the maximum periods of time for which the employee is

 7  entitled to compensation under paragraph (a) but not paragraph

 8  (c).

 9         (c)  Temporary total disability benefits paid pursuant

10  to this subsection shall include such period as may be

11  reasonably necessary for training in the use of artificial

12  members and appliances, and shall include such period as the

13  employee may be receiving training and education under a

14  program pursuant to s. 440.491. Notwithstanding s. 440.02, the

15  date of maximum medical improvement for purposes of paragraph

16  (3)(b) shall be no earlier than the last day for which such

17  temporary disability benefits are paid.

18         (d)  The department shall, by rule, provide for the

19  periodic reporting to the department, employer, or carrier of

20  all earned income, including income from social security, by

21  the injured employee who is entitled to or claiming benefits

22  for temporary total disability. The employer or carrier is not

23  required to make any payment of benefits for temporary total

24  disability for any period during which the employee willfully

25  fails or refuses to report upon request by the employer or

26  carrier in the manner prescribed by the rules. The rule must

27  require the claimant to personally sign the claim form and

28  attest that she or he has reviewed, understands, and

29  acknowledges the foregoing.

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

31         (a)  Impairment benefits.--

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    4-2575B-03                             See HB 25A, Engrossed 1




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

 2  medical improvement, impairment benefits are due and payable

 3  within 14 20 days after the carrier has knowledge of the

 4  impairment.

 5         (b)2.  The three-member panel, in cooperation with the

 6  department, shall establish and use a uniform permanent

 7  impairment rating schedule. This schedule must be based on

 8  medically or scientifically demonstrable findings as well as

 9  the systems and criteria set forth in the American Medical

10  Association's Guides to the Evaluation of Permanent

11  Impairment; the Snellen Charts, published by American Medical

12  Association Committee for Eye Injuries; and the Minnesota

13  Department of Labor and Industry Disability Schedules. The

14  schedule must should be based upon objective findings. The

15  schedule shall be more comprehensive than the AMA Guides to

16  the Evaluation of Permanent Impairment and shall expand the

17  areas already addressed and address additional areas not

18  currently contained in the guides. On August 1, 1979, and

19  pending the adoption, by rule, of a permanent schedule, Guides

20  to the Evaluation of Permanent Impairment, copyright 1977,

21  1971, 1988, by the American Medical Association, shall be the

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

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

24  of a uniform disability rating agency schedule, the Minnesota

25  Department of Labor and Industry Disability Schedule shall be

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

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

28  the American Medical Association shall be used. Determination

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

30  physician licensed under chapter 458, a doctor of osteopathic

31  medicine licensed under chapters 458 and 459, a chiropractic

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  physician licensed under chapter 460, a podiatric physician

 2  licensed under chapter 461, an optometrist licensed under

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

 4  appropriate considering the nature of the injury. No other

 5  persons are authorized to render opinions regarding the

 6  existence of or the extent of permanent impairment.

 7         (c)3.  All impairment income benefits shall be based on

 8  an impairment rating using the impairment schedule referred to

 9  in paragraph (b) subparagraph 2. Impairment income benefits

10  are paid biweekly weekly at the rate of 75 50 percent of the

11  employee's average weekly temporary total disability benefit

12  not to exceed the maximum weekly benefit under s. 440.12;

13  provided, however, that such benefits shall be reduced by 50

14  percent for each week in which the employee has earned income

15  equal to or in excess of the employee's average weekly wage.

16  An employee's entitlement to impairment income benefits begins

17  the day after the employee reaches maximum medical improvement

18  or the expiration of temporary benefits, whichever occurs

19  earlier, and continues until the earlier of:

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

21  of 3 weeks for each percentage point of impairment; or

22         2.b.  The death of the employee.

23  

24  Impairment income benefits as defined by this subsection are

25  payable only for impairment ratings for physical impairments.

26  If objective medical findings can substantiate a permanent

27  psychiatric impairment resulting from the accident, permanent

28  impairment benefits are limited for the permanent psychiatric

29  impairment to 1-percent permanent impairment.

30         (d)4.  After the employee has been certified by a

31  doctor as having reached maximum medical improvement or 6

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  weeks before the expiration of temporary benefits, whichever

 2  occurs earlier, the certifying doctor shall evaluate the

 3  condition of the employee and assign an impairment rating,

 4  using the impairment schedule referred to in paragraph (b)

 5  subparagraph 2. Compensation is not payable for the mental,

 6  psychological, or emotional injury arising out of depression

 7  from being out of work. If the certification and evaluation

 8  are performed by a doctor other than the employee's treating

 9  doctor, the certification and evaluation must be submitted to

10  the treating doctor, the employee, and the carrier within 10

11  days after the evaluation. and The treating doctor must

12  indicate to the carrier agreement or disagreement with the

13  other doctor's certification and evaluation.

14         1.  The certifying doctor shall issue a written report

15  to the department, the employee, and the carrier certifying

16  that maximum medical improvement has been reached, stating the

17  impairment rating to the body as a whole, and providing any

18  other information required by the department by rule. The

19  carrier shall establish an overall maximum medical improvement

20  date and permanent impairment rating, based upon all such

21  reports.

22         2.  Within 14 days after the carrier's knowledge of

23  each maximum medical improvement date and impairment rating to

24  the body as a whole upon which the carrier is paying benefits,

25  the carrier shall report such maximum medical improvement date

26  and, when determined, the overall maximum medical improvement

27  date and associated impairment rating to the department in a

28  format as set forth in department rule. If the employee has

29  not been certified as having reached maximum medical

30  improvement before the expiration of 98 102 weeks after the

31  date temporary total disability benefits begin to accrue, the

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  carrier shall notify the treating doctor of the requirements

 2  of this section.

 3         (e)5.  The carrier shall pay the employee impairment

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

 5         (f)6.  The department may by rule specify forms and

 6  procedures governing the method of payment of wage loss and

 7  impairment benefits under this section for dates of accidents

 8  before January 1, 1994, and for dates of accidents on or after

 9  January 1, 1994.

10         (b)  Supplemental benefits.--

11         1.  All supplemental benefits must be paid in

12  accordance with this subsection. An employee is entitled to

13  supplemental benefits as provided in this paragraph as of the

14  expiration of the impairment period, if:

15         a.  The employee has an impairment rating from the

16  compensable injury of 20 percent or more as determined

17  pursuant to this chapter;

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

19  returned to work earning less than 80 percent of the

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

21  employee's impairment; and

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

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

24         2.  If an employee is not entitled to supplemental

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

26  income benefit because the employee is earning at least 80

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

28  may become entitled to supplemental benefits at any time

29  within 1 year after the impairment income benefit period ends

30  if:

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

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

 3  at least 90 days;

 4         b.  The employee meets the other requirements of

 5  subparagraph 1.; and

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

 7  result of the employee's impairment from the compensable

 8  injury.

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

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

11  at least 90 days during which the employee is receiving

12  supplemental benefits, the employee ceases to be entitled to

13  supplemental benefits for the filing period. Supplemental

14  benefits that have been terminated shall be reinstated when

15  the employee satisfies the conditions enumerated in

16  subparagraph 2. and files the statement required under

17  subparagraph 4. Notwithstanding any other provision, if an

18  employee is not entitled to supplemental benefits for 12

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

20  additional income benefits for the compensable injury. If the

21  employee is discharged within 12 months after losing

22  entitlement under this subsection, benefits may be reinstated

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

24  deprive the employee of supplemental benefits.

25         4.  After the initial determination of supplemental

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

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

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

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

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

31  employee has in good faith sought employment commensurate with

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

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

 3  department. The department may modify the filing period as

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

 5  relieves the carrier of liability for supplemental benefits

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

 7         5.  The carrier shall begin payment of supplemental

 8  benefits not later than the seventh day after the expiration

 9  date of the impairment income benefit period and shall

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

11  a mediation conference for the purpose of contesting the

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

13  benefits.

14         6.  Supplemental benefits are calculated quarterly and

15  paid monthly. For purposes of calculating supplemental

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

17  the average wages the employee has earned per week are

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

19  employee is offered a bona fide position of employment that

20  the employee is capable of performing, given the physical

21  condition of the employee and the geographic accessibility of

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

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

24  employee.

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

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

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

28  weekly wages the employee has earned during the reporting

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

30  s. 440.12.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

 2  necessary for the administration of this section and forms and

 3  procedures governing the method of payment of supplemental

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

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

 6         (c)  Duration of temporary impairment and supplemental

 7  income benefits.--The employee's eligibility for temporary

 8  benefits, impairment income benefits, and supplemental

 9  benefits terminates on the expiration of 401 weeks after the

10  date of injury.

11         (g)  Notwithstanding paragraph (c), for accidents

12  occurring on or after October 1, 2003, an employee's

13  entitlement to impairment income benefits begins the day after

14  the employee reaches maximum medical improvement or the

15  expiration of temporary benefits, whichever occurs earlier,

16  and continues for the following periods:

17         1.  Two weeks of benefits are to be paid to the

18  employee for each percentage point of impairment from 1

19  percent up to and including 10 percent.

20         2.  For each percentage point of impairment from 11

21  percent up to and including 15 percent, 3 weeks of benefits

22  are to be paid.

23         3.  For each percentage point of impairment from 16

24  percent up to and including 20 percent, 4 weeks of benefits

25  are to be paid.

26         4.  For each percentage point of impairment from 21

27  percent and higher, 6 weeks of benefits are to be paid.

28         (4)  TEMPORARY PARTIAL DISABILITY.--

29         (a)  Subject to subsection (7), in case of temporary

30  partial disability, compensation shall be equal to 80 percent

31  of the difference between 80 percent of the employee's average

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  weekly wage and the salary, wages, and other remuneration the

 2  employee is able to earn post injury, as compared weekly;

 3  however, the weekly temporary partial disability benefits may

 4  not exceed an amount equal to 66 2/3 percent of the employee's

 5  average weekly wage at the time of accident injury. In order

 6  to simplify the comparison of the preinjury average weekly

 7  wage with the salary, wages, and other remuneration the

 8  employee is able to earn post injury, the department may by

 9  rule provide for payment of the initial installment of

10  temporary partial disability benefits to be paid as a partial

11  week so that payment for remaining weeks of temporary partial

12  disability can the modification of the weekly comparison so as

13  to coincide as closely as possible with the post injury

14  employer's work week injured worker's pay periods. The amount

15  determined to be the salary, wages, and other remuneration the

16  employee is able to earn shall in no case be less than the sum

17  actually being earned by the employee, including earnings from

18  sheltered employment. Benefits shall be payable under this

19  subsection only if overall maximum medical improvement has not

20  been reached and the medical conditions resulting from the

21  accident create restrictions on the injured employee's ability

22  to return to work.

23         (b)  Within 5 business days after the carrier's

24  knowledge of the employee's release to restricted work, the

25  carrier shall mail to the employee and employer an

26  informational letter, adopted by department rule, explaining

27  the employee's possible eligibility and responsibilities for

28  temporary partial disability benefits.

29         (c)  When an employee returns to work with the

30  restrictions resulting from the accident and is earning wages

31  less than 80 percent of the preinjury average weekly wage, the

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  first installment of temporary partial disability benefits is

 2  due 7 days after the last date of the post injury employer's

 3  first biweekly work week. Thereafter, payment for temporary

 4  partial benefits shall be paid biweekly no later than the 7th

 5  day following the last day of each biweekly work week.

 6         (d)  If the employee is unable to return to work with

 7  the restrictions resulting from the accident and is not

 8  earning wages, salary, or other remuneration, temporary

 9  partial disability benefits shall be paid no later than the

10  last day of each biweekly period. The employee shall notify

11  the carrier within 5 business days after returning to work.

12  Failure to notify the carrier of the establishment of an

13  earning capacity in the required time shall result in a

14  suspension or nonpayment of temporary partial disability

15  benefits until the proper notification is provided.

16         (e)(b)  Such benefits shall be paid during the

17  continuance of such disability, not to exceed a period of 104

18  weeks, as provided by this subsection and subsection (2). Once

19  the injured employee reaches the maximum number of weeks,

20  temporary disability benefits cease and the injured worker's

21  permanent impairment must be determined. If the employee is

22  terminated from post injury employment based on the employee's

23  misconduct, temporary partial disability benefits are not

24  payable as provided for in this section. The department shall

25  may by rule specify forms and procedures governing the method

26  and time for of payment of temporary disability benefits for

27  dates of accidents before January 1, 1994, and for dates of

28  accidents on or after January 1, 1994.

29         (5)  SUBSEQUENT INJURY.--

30         (a)  The fact that an employee has suffered previous

31  disability, impairment, anomaly, or disease, or received

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  compensation therefor, shall not preclude her or him from

 2  benefits, as specified in paragraph (b), for a subsequent

 3  aggravation or acceleration of the preexisting condition or

 4  nor preclude benefits for death resulting therefrom, except

 5  that no benefits shall be payable if the employee, at the time

 6  of entering into the employment of the employer by whom the

 7  benefits would otherwise be payable, falsely represents

 8  herself or himself in writing as not having previously been

 9  disabled or compensated because of such previous disability,

10  impairment, anomaly, or disease and the employer detrimentally

11  relies on the misrepresentation. Compensation for temporary

12  disability, medical benefits, and wage-loss benefits shall not

13  be subject to apportionment.

14         (b)  If a compensable injury, disability, or need for

15  medical care permanent impairment, or any portion thereof, is

16  a result of aggravation or acceleration of a preexisting

17  condition, or is the result of merger with a preexisting

18  condition, only the disabilities and medical treatment

19  associated with such compensable injury shall be payable under

20  this chapter, excluding the degree of disability or medical

21  conditions existing at the time of the impairment rating or at

22  the time of the accident, regardless of whether the

23  preexisting condition was disabling at the time of the

24  accident or at the time of the impairment rating and without

25  considering whether the preexisting condition would be

26  disabling without the compensable accident impairment, an

27  employee eligible to receive impairment benefits under

28  paragraph (3)(a) shall receive such benefits for the total

29  impairment found to result, excluding the degree of impairment

30  existing at the time of the subject accident or injury or

31  which would have existed by the time of the impairment rating

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  without the intervention of the compensable accident or

 2  injury. The degree of permanent impairment or disability

 3  attributable to the accident or injury shall be compensated in

 4  accordance with this section, apportioning out the preexisting

 5  condition based on the anatomical impairment rating

 6  attributable to the preexisting condition. Medical benefits

 7  shall be paid apportioning out the percentage of the need for

 8  such care attributable to the preexisting condition paragraph

 9  (3)(a). As used in this paragraph, "merger" means the

10  combining of a preexisting permanent impairment or disability

11  with a subsequent compensable permanent impairment or

12  disability which, when the effects of both are considered

13  together, result in a permanent impairment or disability

14  rating which is greater than the sum of the two permanent

15  impairment or disability ratings when each impairment or

16  disability is considered individually.

17         (6)  OBLIGATION TO REHIRE.--If the employer has not in

18  good faith made available to the employee, within a 100-mile

19  radius of the employee's residence, work appropriate to the

20  employee's physical limitations within 30 days after the

21  carrier notifies the employer of maximum medical improvement

22  and the employee's physical limitations, the employer shall

23  pay to the department for deposit into the Workers'

24  Compensation Administration Trust Fund a fine of $250 for

25  every $5,000 of the employer's workers' compensation premium

26  or payroll, not to exceed $2,000 per violation, as the

27  department requires by rule. The employer is not subject to

28  this subsection if the employee is receiving permanent total

29  disability benefits or if the employer has 50 or fewer

30  employees.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (6)(7)  EMPLOYEE REFUSES EMPLOYMENT.--If an injured

 2  employee refuses employment suitable to the capacity thereof,

 3  offered to or procured therefor, such employee shall not be

 4  entitled to any compensation at any time during the

 5  continuance of such refusal unless at any time in the opinion

 6  of the judge of compensation claims such refusal is

 7  justifiable. Time periods for the payment of benefits in

 8  accordance with this section shall be counted in determining

 9  the limitation of benefits as provided for in paragraphs

10  (2)(a), (3)(c), and (4)(b).

11         (7)(8)  EMPLOYEE LEAVES EMPLOYMENT.--If an injured

12  employee, when receiving compensation for temporary partial

13  disability, leaves the employment of the employer by whom she

14  or he was employed at the time of the accident for which such

15  compensation is being paid, the employee shall, upon securing

16  employment elsewhere, give to such former employer an

17  affidavit in writing containing the name of her or his new

18  employer, the place of employment, and the amount of wages

19  being received at such new employment; and, until she or he

20  gives such affidavit, the compensation for temporary partial

21  disability will cease. The employer by whom such employee was

22  employed at the time of the accident for which such

23  compensation is being paid may also at any time demand of such

24  employee an additional affidavit in writing containing the

25  name of her or his employer, the place of her or his

26  employment, and the amount of wages she or he is receiving;

27  and if the employee, upon such demand, fails or refuses to

28  make and furnish such affidavit, her or his right to

29  compensation for temporary partial disability shall cease

30  until such affidavit is made and furnished. If the employee

31  leaves her or his employment while receiving temporary partial

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  benefits without just cause as determined by the judge of

 2  compensation claims, temporary partial benefits shall be

 3  payable based on the deemed earnings of the employee as if she

 4  or he had remained employed.

 5         (8)(9)  EMPLOYEE BECOMES INMATE OF INSTITUTION.--In

 6  case an employee becomes an inmate of a public institution,

 7  then no compensation shall be payable unless she or he has

 8  dependent upon her or him for support a person or persons

 9  defined as dependents elsewhere in this chapter, whose

10  dependency shall be determined as if the employee were

11  deceased and to whom compensation would be paid in case of

12  death; and such compensation as is due such employee shall be

13  paid such dependents during the time she or he remains such

14  inmate.

15         (9)(10)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS

16  CHAPTER AND FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY

17  INSURANCE ACT.--

18         (a)  Weekly compensation benefits payable under this

19  chapter for disability resulting from injuries to an employee

20  who becomes eligible for benefits under 42 U.S.C. s. 423 shall

21  be reduced to an amount whereby the sum of such compensation

22  benefits payable under this chapter and such total benefits

23  otherwise payable for such period to the employee and her or

24  his dependents, had such employee not been entitled to

25  benefits under this chapter, under 42 U.S.C. ss. 402 and 423,

26  does not exceed 80 percent of the employee's average weekly

27  wage. However, this provision shall not operate to reduce an

28  injured worker's benefits under this chapter to a greater

29  extent than such benefits would have otherwise been reduced

30  under 42 U.S.C. s. 424(a). This reduction of compensation

31  benefits is not applicable to any compensation benefits

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  payable for any week subsequent to the week in which the

 2  injured worker reaches the age of 62 years.

 3         (b)  If the provisions of 42 U.S.C. s. 424(a) are

 4  amended to provide for a reduction or increase of the

 5  percentage of average current earnings that the sum of

 6  compensation benefits payable under this chapter and the

 7  benefits payable under 42 U.S.C. ss. 402 and 423 can equal,

 8  the amount of the reduction of benefits provided in this

 9  subsection shall be reduced or increased accordingly. The

10  department may by rule specify forms and procedures governing

11  the method for calculating and administering the offset of

12  benefits payable under this chapter and benefits payable under

13  42 U.S.C. ss. 402 and 423. The department shall have first

14  priority in taking any available social security offsets on

15  dates of accidents occurring before July 1, 1984.

16         (c)  No disability compensation benefits payable for

17  any week, including those benefits provided by paragraph

18  (1)(f), shall be reduced pursuant to this subsection until the

19  Social Security Administration determines the amount otherwise

20  payable to the employee under 42 U.S.C. ss. 402 and 423 and

21  the employee has begun receiving such social security benefit

22  payments. The employee shall, upon demand by the department,

23  the employer, or the carrier, authorize the Social Security

24  Administration to release disability information relating to

25  her or him and authorize the Division of Unemployment

26  Compensation to release unemployment compensation information

27  relating to her or him, in accordance with rules to be adopted

28  by the department prescribing the procedure and manner for

29  requesting the authorization and for compliance by the

30  employee. Neither the department nor the employer or carrier

31  shall make any payment of benefits for total disability or

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  those additional benefits provided by paragraph (1)(f) for any

 2  period during which the employee willfully fails or refuses to

 3  authorize the release of information in the manner and within

 4  the time prescribed by such rules. The authority for release

 5  of disability information granted by an employee under this

 6  paragraph shall be effective for a period not to exceed 12

 7  months, such authority to be renewable as the department may

 8  prescribe by rule.

 9         (d)  If compensation benefits are reduced pursuant to

10  this subsection, the minimum compensation provisions of s.

11  440.12(2) do not apply.

12         (10)(11)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS

13  CHAPTER WHO HAS RECEIVED OR IS ENTITLED TO RECEIVE

14  UNEMPLOYMENT COMPENSATION.--

15         (a)  No compensation benefits shall be payable for

16  temporary total disability or permanent total disability under

17  this chapter for any week in which the injured employee has

18  received, or is receiving, unemployment compensation benefits.

19         (b)  If an employee is entitled to temporary partial

20  benefits pursuant to subsection (4) and unemployment

21  compensation benefits, such unemployment compensation benefits

22  shall be primary and the temporary partial benefits shall be

23  supplemental only, the sum of the two benefits not to exceed

24  the amount of temporary partial benefits which would otherwise

25  be payable.

26         (11)(12)  FULL-PAY STATUS FOR CERTAIN LAW ENFORCEMENT

27  OFFICERS.--Any law enforcement officer as defined in s.

28  943.10(1), (2), or (3) who, while acting within the course of

29  employment as provided by s. 440.091, is maliciously or

30  intentionally injured and who thereby sustains a job-connected

31  disability compensable under this chapter shall be carried in

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  full-pay status rather than being required to use sick,

 2  annual, or other leave. Full-pay status shall be granted only

 3  after submission to the employing agency's head of a medical

 4  report which gives a current diagnosis of the employee's

 5  recovery and ability to return to work. In no case shall the

 6  employee's salary and workers' compensation benefits exceed

 7  the amount of the employee's regular salary requirements.

 8         (12)(13)  REPAYMENT.--If an employee has received a sum

 9  as an indemnity benefit under any classification or category

10  of benefit under this chapter to which she or he is not

11  entitled, the employee is liable to repay that sum to the

12  employer or the carrier or to have that sum deducted from

13  future benefits, regardless of the classification of benefits,

14  payable to the employee under this chapter; however, a partial

15  payment of the total repayment may not exceed 20 percent of

16  the amount of the biweekly payment.

17         Section 19.  Subsections (1), (2), and (3) of section

18  440.151, Florida Statutes, are amended to read:

19         440.151  Occupational diseases.--

20         (1)(a)  Where the employer and employee are subject to

21  the provisions of the Workers' Compensation Law, the

22  disablement or death of an employee resulting from an

23  occupational disease as hereinafter defined shall be treated

24  as the happening of an injury by accident, notwithstanding any

25  other provisions of this chapter, and the employee or, in case

26  of death, the employee's dependents shall be entitled to

27  compensation as provided by this chapter, except as

28  hereinafter otherwise provided; and the practice and procedure

29  prescribed by this chapter shall apply to all proceedings

30  under this section, except as hereinafter otherwise provided.

31  Provided, however, that in no case shall an employer be liable

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  for compensation under the provisions of this section unless

 2  such disease has resulted from the nature of the employment in

 3  which the employee was engaged under such employer, and was

 4  actually contracted while so engaged, and the nature of the

 5  employment was the major contributing cause of the disease.

 6  Major contributing cause must be shown by medical evidence

 7  only, as demonstrated by physical examination findings and

 8  diagnostic testing. meaning by "Nature of the employment"

 9  means that in to the occupation in which the employee was so

10  engaged there is attached a particular hazard of such disease

11  that distinguishes it from the usual run of occupations, or

12  the incidence of such disease is substantially higher in the

13  occupation in which the employee was so engaged than in the

14  usual run of occupations. In claims for death under s. 440.16,

15  death must occur or, in case of death, unless death follows

16  continuous disability from such disease, commencing within the

17  period above limited, for which compensation has been paid or

18  awarded, or timely claim made as provided in this section, and

19  results within 350 weeks after such last exposure. Both

20  causation and sufficient exposure to a specific harmful

21  substance shown to be present in the workplace to support

22  causation shall be proven by clear and convincing evidence.

23         (b)  No compensation shall be payable for an

24  occupational disease if the employee, at the time of entering

25  into the employment of the employer by whom the compensation

26  would otherwise be payable, falsely represents herself or

27  himself in writing as not having previously been disabled,

28  laid off or compensated in damages or otherwise, because of

29  such disease.

30         (c)  Where an occupational disease is aggravated by any

31  other disease or infirmity, not itself compensable, or where

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  disability or death from any other cause, not itself

 2  compensable, is aggravated, prolonged, accelerated or in

 3  anywise contributed to by an occupational disease, the

 4  compensation shall be payable only if the occupational disease

 5  is the major contributing cause of the injury. Any

 6  compensation shall be reduced and limited to such proportion

 7  only of the compensation that would be payable if the

 8  occupational disease were the sole cause of the disability or

 9  death as such occupational disease, as a causative factor,

10  bears to all the causes of such disability or death, such

11  reduction in compensation to be effected by reducing the

12  number of weekly or monthly payments or the amounts of such

13  payments, as under the circumstances of the particular case

14  may be for the best interest of the claimant or claimants.

15  Major contributing cause must be demonstrated by medical

16  evidence based on physical examination findings and diagnostic

17  testing.

18         (d)  No compensation for death from an occupational

19  disease shall be payable to any person whose relationship to

20  the deceased, which under the provisions of this Workers'

21  Compensation Law would give right to compensation, arose

22  subsequent to the beginning of the first compensable

23  disability, save only to afterborn children of a marriage

24  existing at the beginning of such disability.

25         (e)  No compensation shall be payable for disability or

26  death resulting from tuberculosis arising out of and in the

27  course of employment by the Department of Health at a state

28  tuberculosis hospital, or aggravated by such employment, when

29  the employee had suffered from said disease at any time prior

30  to the commencement of such employment.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (2)  Whenever used in this section the term

 2  "occupational disease" shall be construed to mean only a

 3  disease which is due to causes and conditions which are

 4  characteristic of and peculiar to a particular trade,

 5  occupation, process, or employment, and to exclude all

 6  ordinary diseases of life to which the general public is

 7  exposed, unless the incidence of the disease is substantially

 8  higher in the particular trade, occupation, process, or

 9  employment than for the general public. "Occupational disease"

10  means only a disease for which there are epidemiological

11  studies showing that exposure to the specific substance

12  involved, at the levels to which the employee was exposed, may

13  cause the precise disease sustained by the employee.

14         (3)  Except as hereinafter otherwise provided in this

15  section, "disablement" means disability as described in s.

16  440.02(13) the event of an employee's becoming actually

17  incapacitated, partially or totally, because of an

18  occupational disease, from performing her or his work in the

19  last occupation in which injuriously exposed to the hazards of

20  such disease; and "disability" means the state of being so

21  incapacitated .

22         Section 20.  Subsections (1) and (7) of section 440.16,

23  Florida Statutes, are amended to read:

24         440.16  Compensation for death.--

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

26  thereafter or follows continuous disability and results from

27  the accident within 5 years thereafter, the employer shall

28  pay:

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

30  funeral expenses not to exceed $7,500 $5,000.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




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

 2  following percentages of the average weekly wages to the

 3  following persons entitled thereto on account of dependency

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

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

 6  such compensation shall be subject to the limits provided in

 7  s. 440.12(2), shall not exceed $150,000 $100,000, and may be

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

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

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

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

12  spouse's death.

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

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

15  16 2/3 percent on account of the child or children. However,

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

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

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

19  marriage or marriages, the judge of compensation claims may

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

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

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

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

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

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

26  upon the surviving spouse's remarriage, the spouse shall be

27  entitled to a lump-sum payment equal to 26 weeks of

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

29  wage as provided in s. 440.12(2), unless the $150,000 $100,000

30  limit provided in this paragraph is exceeded, in which case

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

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  the remaining available benefits in lieu of any further

 2  indemnity benefits. In no case shall a surviving spouse's

 3  acceptance of a lump-sum payment affect payment of death

 4  benefits to other dependents.

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

 6  1/3 percent for each child.

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

 8  compensation to be paid during the continuance of dependency.

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

10  percent for each brother, sister, or grandchild.

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

12  student fees for instruction at any area technical center

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

14  or payment of student fees at any community college

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

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

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

18  1009.22 and 1009.23 in lieu of the payment of such fees. The

19  benefits provided for in this paragraph shall be in addition

20  to other benefits provided for in this section and shall

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

22  when the total payment in eligible compensation under

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

24  educational benefit under this paragraph, the spouse shall be

25  required to meet and maintain the regular admission

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

27  center or community college, and make satisfactory academic

28  progress as defined by the educational institution in which

29  the student is enrolled.

30         (7)  Compensation under this chapter to aliens not

31  residents (or about to become nonresidents) of the United

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  States or Canada shall be the same in amount as provided for

 2  residents, except that dependents in any foreign country shall

 3  be limited to surviving spouse and child or children, or if

 4  there be no surviving spouse or child or children, to

 5  surviving father or mother whom the employee has supported,

 6  either wholly or in part, for the period of 1 year prior to

 7  the date of the injury, and except that the judge of

 8  compensation claims may, at the option of the judge of

 9  compensation claims, or upon the application of the insurance

10  carrier, commute all future installments of compensation to be

11  paid to such aliens by paying or causing to be paid to them

12  one-half of the commuted amount of such future installments of

13  compensation as determined by the judge of compensation

14  claims, and provided further that compensation to dependents

15  referred to in this subsection shall in no case exceed $75,000

16  $50,000.

17         Section 21.  Subsection (9) of section 440.185, Florida

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

19  section, to read:

20         440.185  Notice of injury or death; reports; penalties

21  for violations.--

22         (9)  Any employer or carrier who fails or refuses to

23  timely send any form, report, or notice required by this

24  section shall be subject to an administrative fine by the

25  department a civil penalty not to exceed $1,000 $500 for each

26  such failure or refusal. If, within 1 calendar year, an

27  employer fails to timely submit to the carrier more than 10

28  percent of its notices of injury or death, the employer shall

29  be subject to an administrative fine by the department not to

30  exceed $2,000 for each such failure or refusal. However, any

31  employer who fails to notify the carrier of the injury on the

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  prescribed form or by letter within the 7 days required in

 2  subsection (2) shall be liable for the administrative fine

 3  civil penalty, which shall be paid by the employer and not the

 4  carrier. Failure by the employer to meet its obligations under

 5  subsection (2) shall not relieve the carrier from liability

 6  for the administrative fine civil penalty if it fails to

 7  comply with subsections (4) and (5).

 8         (12)  Upon receiving notice of an injury from an

 9  employee under subsection (1), the employer or carrier shall

10  provide the employee with a written notice, in the form and

11  manner determined by the department by rule, of the

12  availability of services from the Employee Assistance and

13  Ombudsman Office. The substance of the notice to the employee

14  shall include:

15         (a)  A description of the scope of services provided by

16  the office.

17         (b)  A listing of the toll-free telephone number of,

18  the email address, and the postal address of the office.

19         (c)  A statement that the informational brochure

20  referred to in subsection (4) will be mailed to the employee

21  within 3 days after the carrier receives notice of the injury.

22         (d)  Any other information regarding access to

23  assistance that the department finds is immediately necessary

24  for an injured employee.

25         Section 22.  Subsections (1) and (2) of section

26  440.192, Florida Statutes, are amended, and subsection (9) is

27  added to that section, to read:

28         440.192  Procedure for resolving benefit disputes.--

29         (1)  Subject to s. 440.191, Any employee may, for any

30  benefit that is ripe, due, and owing, who has not received a

31  benefit to which the employee believes she or he is entitled

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  under this chapter shall file by certified mail, or by

 2  electronic means approved by the Deputy Chief Judge, with the

 3  Office of the Judges of Compensation Claims a petition for

 4  benefits which meets the requirements of this section and the

 5  definition of specificity in s. 440.02. The department shall

 6  inform employees of the location of the Office of the Judges

 7  of Compensation Claims for purposes of filing a petition for

 8  benefits. The employee shall also serve copies of the petition

 9  for benefits by certified mail, or by electronic means

10  approved by the Deputy Chief Judge, upon the employer and the

11  employer's carrier. The Deputy Chief Judge shall refer the

12  petitions to the judges of compensation claims.

13         (2)  Upon receipt, the Office of the Judges of

14  Compensation Claims shall review each petition and shall

15  dismiss each petition or any portion of such a petition, upon

16  the judge's own motion or upon the motion of any party, that

17  does not on its face specifically identify or itemize the

18  following:

19         (a)  Name, address, telephone number, and social

20  security number of the employee.

21         (b)  Name, address, and telephone number of the

22  employer.

23         (c)  A detailed description of the injury and cause of

24  the injury, including the location of the occurrence and the

25  date or dates of the accident.

26         (d)  A detailed description of the employee's job, work

27  responsibilities, and work the employee was performing when

28  the injury occurred.

29         (e)  The time period for which compensation and the

30  specific classification of compensation were not timely

31  provided.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (f)  Date of maximum medical improvement, character of

 2  disability, and specific statement of all benefits or

 3  compensation that the employee is seeking.

 4         (g)  All specific travel costs to which the employee

 5  believes she or he is entitled, including dates of travel and

 6  purpose of travel, means of transportation, and mileage and

 7  including the date the request for mileage was filed with the

 8  carrier and a copy of the request filed with the carrier.

 9         (h)  Specific listing of all medical charges alleged

10  unpaid, including the name and address of the medical

11  provider, the amounts due, and the specific dates of

12  treatment.

13         (i)  The type or nature of treatment care or attendance

14  sought and the justification for such treatment. If the

15  employee is under the care of a physician for an injury

16  identified under paragraph (c), a copy of the physician's

17  request, authorization, or recommendation for treatment, care,

18  or attendance must accompany the petition.

19         (j)  Specific explanation of any other disputed issue

20  that a judge of compensation claims will be called to rule

21  upon.

22  

23  The dismissal of any petition or portion of such a petition

24  under this section is without prejudice and does not require a

25  hearing.

26         (9)  A petition for benefits must contain claims for

27  all benefits that are ripe, due, and owing on the date the

28  petition is filed. Unless stipulated in writing by the

29  parties, only claims which have been properly raised in a

30  petition for benefits and have undergone mediation may be

31  considered for adjudication by a judge of compensation claims.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         Section 23.  Section 440.1926, Florida Statutes, is

 2  created to read:

 3         440.1926  Alternate dispute resolution; claim

 4  arbitration.--Notwithstanding any other provision of this

 5  chapter, the employer, carrier, and employee may mutually

 6  agree to seek consent from a judge of compensation claims to

 7  enter into binding claim arbitration in lieu of any other

 8  remedy provided for in this chapter to resolve all issues in

 9  dispute regarding an injury. Arbitrations agreed to pursuant

10  to this section shall be governed by chapter 682, the Florida

11  Arbitration Code, except that, notwithstanding any provision

12  in chapter 682, the term "court" shall mean a judge of

13  compensation claims. An arbitration award in accordance with

14  this section shall be enforceable in the same manner and with

15  the same powers as any final compensation order.

16         Section 24.  Subsections (2), (3), (4), (6), and (8)

17  and paragraph (d) of subsection (11) of section 440.20,

18  Florida Statutes, are amended to read:

19         440.20  Time for payment of compensation and medical

20  bills; penalties for late payment.--

21         (2)(a)  The carrier must pay the first installment of

22  compensation for total disability or death benefits or deny

23  compensability no later than the 14th calendar day after the

24  employer receives notification notice of the injury or death,

25  when disability is immediate and continuous for 8 calendar

26  days or more after the injury. If the first 7 days after

27  disability are nonconsecutive or delayed, the first

28  installment of compensation is due on the 6th day after the

29  first 8 calendar days of disability. The carrier shall

30  thereafter pay compensation in biweekly installments or as

31  otherwise provided in s. 440.15, unless the judge of

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  compensation claims determines or the parties agree that an

 2  alternate installment schedule is in the best interests of the

 3  employee.

 4         (b)  The carrier must pay, disallow, or deny all

 5  medical, dental, pharmacy, and hospital bills submitted to the

 6  carrier in accordance with department rule no later than 45

 7  calendar days after the carrier's receipt of the bill.

 8         (3)  Upon making initial payment of indemnity benefits,

 9  or upon suspension or cessation of payment for any reason, the

10  carrier shall immediately notify the injured employee, the

11  employer, and the department that it has commenced, suspended,

12  or ceased payment of compensation. The department may require

13  such notification to the injured employee, employer, and the

14  department in a any format and manner it deems necessary to

15  obtain accurate and timely notification reporting.

16         (4)  If the carrier is uncertain of its obligation to

17  provide all benefits or compensation, it may initiate payment

18  without prejudice and without admitting liability. the carrier

19  shall immediately and in good faith commence investigation of

20  the employee's entitlement to benefits under this chapter and

21  shall admit or deny compensability within 120 days after the

22  initial provision of compensation or benefits as required

23  under subsection (2) or s. 440.192(8). Additionally, the

24  carrier shall initiate payment and continue the provision of

25  all benefits and compensation as if the claim had been

26  accepted as compensable, without prejudice and without

27  admitting liability. Upon commencement of payment as required

28  under subsection (2) or s. 440.192 (8), the carrier shall

29  provide written notice to the employee that it has elected to

30  pay all or part of the claim pending further investigation,

31  and that it will advise the employee of claim acceptance or

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  denial within 120 days.  A carrier that fails to deny

 2  compensability within 120 days after the initial provision of

 3  benefits or payment of compensation as required under

 4  subsection (2) or s. 440.192(8) waives the right to deny

 5  compensability, unless the carrier can establish material

 6  facts relevant to the issue of compensability that it could

 7  not have discovered through reasonable investigation within

 8  the 120-day period. The initial provision of compensation or

 9  benefits, for purposes of this subsection, means the first

10  installment of compensation or benefits to be paid by the

11  carrier under subsection (2) or pursuant to a petition for

12  benefits under s. 440.192(8).

13         (6)(a)  If any installment of compensation for death or

14  dependency benefits, or compensation for disability benefits,

15  permanent impairment, or wage loss payable without an award is

16  not paid within 7 days after it becomes due, as provided in

17  subsection (2), subsection (3), or subsection (4), there shall

18  be added to such unpaid installment a punitive penalty of an

19  amount equal to 20 percent of the unpaid installment or $5,

20  which shall be paid at the same time as, but in addition to,

21  such installment of compensation. This penalty shall not apply

22  for late payments resulting, unless notice is filed under

23  subsection (4) or unless such nonpayment results from

24  conditions over which the employer or carrier had no control.

25  When any installment of compensation payable without an award

26  has not been paid within 7 days after it became due and the

27  claimant concludes the prosecution of the claim before a judge

28  of compensation claims without having specifically claimed

29  additional compensation in the nature of a penalty under this

30  section, the claimant will be deemed to have acknowledged

31  that, owing to conditions over which the employer or carrier

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  had no control, such installment could not be paid within the

 2  period prescribed for payment and to have waived the right to

 3  claim such penalty. However, during the course of a hearing,

 4  the judge of compensation claims shall on her or his own

 5  motion raise the question of whether such penalty should be

 6  awarded or excused. The department may assess without a

 7  hearing the punitive penalty against either the employer or

 8  the insurance carrier, depending upon who was at fault in

 9  causing the delay. The insurance policy cannot provide that

10  this sum will be paid by the carrier if the department or the

11  judge of compensation claims determines that the punitive

12  penalty should be paid made by the employer rather than the

13  carrier. Any additional installment of compensation paid by

14  the carrier pursuant to this section shall be paid directly to

15  the employee by check or, if authorized by the employee, by

16  direct deposit into the employee's account at a financial

17  institution. As used in this subsection, the term "financial

18  institution" means a financial institution as defined in s.

19  655.005(1)(h).

20         (b)  For medical services provided on or after January

21  1, 2004, the department shall require that all medical,

22  hospital, pharmacy, or dental bills properly submitted by the

23  provider, except for bills that are disallowed or denied by

24  the carrier or its authorized vendor in accordance with

25  department rule, are timely paid within 45 calendar days after

26  the carrier's receipt of the bill. The department shall impose

27  penalties for late payments or disallowances or denials of

28  medical, hospital, pharmacy, or dental bills that are below a

29  minimum 95 percent timely performance standard. The carrier

30  shall pay to the Workers' Compensation Administration Trust

31  Fund a penalty of:

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         1.  Twenty-five dollars for each bill below the 95

 2  percent timely performance standard, but meeting a 90 percent

 3  timely standard.

 4         2.  Fifty dollars for each bill below a 90 percent

 5  timely performance standard.

 6         (8)(a)  In addition to any other penalties provided by

 7  this chapter for late payment, if any installment of

 8  compensation is not paid when it becomes due, the employer,

 9  carrier, or servicing agent shall pay interest thereon at the

10  rate of 12 percent per year from the date the installment

11  becomes due until it is paid, whether such installment is

12  payable without an order or under the terms of an order. The

13  interest payment shall be the greater of the amount of

14  interest due or $5.

15         (a)  Within 30 days after final payment of compensation

16  has been made, the employer, carrier, or servicing agent shall

17  send to the department a notice, in accordance with a format

18  and manner prescribed by the department, stating that such

19  final payment has been made and stating the total amount of

20  compensation paid, the name of the employee and of any other

21  person to whom compensation has been paid, the date of the

22  injury or death, and the date to which compensation has been

23  paid.

24         (b)  If the employer, carrier, or servicing agent fails

25  to so notify the department within such time, the department

26  shall assess against such employer, carrier, or servicing

27  agent a civil penalty in an amount not over $100.

28         (b)(c)  In order to ensure carrier compliance under

29  this chapter and provisions of the Florida Insurance Code, the

30  office department shall monitor, audit, and investigate the

31  performance of carriers by conducting market conduct

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  examinations, as provided in s. 624.3161, and conducting

 2  investigations, as provided in s. 624.317. The office

 3  department shall require establish by rule minimum performance

 4  standards for carriers to ensure that a minimum of 90 percent

 5  of all compensation benefits are timely paid in accordance

 6  with this section. The office department shall impose

 7  penalties fine a carrier as provided in s. 440.13(11)(b) up to

 8  $50 for each late payments payment of compensation that are is

 9  below a the minimum 95 90 percent timely payment performance

10  standard. The carrier shall pay to the Workers' Compensation

11  Administration Trust Fund a penalty of:

12         1.  Fifty dollars per number of installments of

13  compensation below the 95 percent timely payment performance

14  standard and equal to or greater than a 90 percent timely

15  payment performance standard.

16         2.  One hundred dollars per number of installments of

17  compensation below a 90 percent timely payment performance

18  standard.

19  

20  This section does not affect the imposition of any penalties

21  or interest due to the claimant. If a carrier contracts with a

22  servicing agent to fulfill its administrative responsibilities

23  under this chapter, the payment practices of the servicing

24  agent are deemed the payment practices of the carrier for the

25  purpose of assessing penalties against the carrier.

26         (11)

27         (d)1.  With respect to any lump-sum settlement under

28  this subsection, a judge of compensation claims must consider

29  at the time of the settlement, whether the settlement

30  allocation provides for the appropriate recovery of child

31  support arrearages. An employer or carrier does not have a

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  duty to investigate or collect information regarding child

 2  support arrearages.

 3         2.  When reviewing any settlement of lump-sum payment

 4  pursuant to this subsection, judges of compensation claims

 5  shall consider the interests of the worker and the worker's

 6  family when approving the settlement, which must consider and

 7  provide for appropriate recovery of past due support.

 8         3.  With respect to any lump-sum settlement under this

 9  subsection, any correspondence to a clerk of the circuit court

10  of this state regarding child support documentation shall be

11  exempt from any fees or costs ordinarily assessed by the

12  clerk's office.

13         Section 25.  Section 440.25, Florida Statutes, is

14  amended to read:

15         440.25  Procedures for mediation and hearings.--

16         (1)  Forty days Within 90 days after a petition for

17  benefits is filed under s. 440.192, a mediation conference

18  concerning such petition shall be held. Within 40 days after

19  such petition is filed, the judge of compensation claims shall

20  notify the interested parties by order that a mediation

21  conference concerning such petition has been scheduled will be

22  held unless the parties have notified the judge Office of the

23  Judges of compensation claims that a private mediation has

24  been held or is scheduled to be held. A mediation, whether

25  private or public, shall be held within 130 days after the

26  filing of the petition. Such order must give the date by which

27  the mediation conference is to must be held. Such order may be

28  served personally upon the interested parties or may be sent

29  to the interested parties by mail. If multiple petitions are

30  pending, or if additional petitions are filed after the

31  scheduling of a mediation, the judge of compensation claims

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  shall consolidate all petitions into one mediation. The

 2  claimant or the adjuster of the employer or carrier may, at

 3  the mediator's discretion, attend the mediation conference by

 4  telephone or, if agreed to by the parties, other electronic

 5  means. A continuance may be granted upon the agreement of the

 6  parties or if the requesting party demonstrates to the judge

 7  of compensation claims that the reason for requesting the

 8  continuance arises from circumstances beyond the party's

 9  control. Any order granting a continuance must set forth the

10  date of the rescheduled mediation conference. A mediation

11  conference may not be used solely for the purpose of mediating

12  attorney's fees.

13         (2)  Any party who participates in a mediation

14  conference shall not be precluded from requesting a hearing

15  following the mediation conference should both parties not

16  agree to be bound by the results of the mediation conference.

17  A mediation conference is required to be held unless this

18  requirement is waived by the Deputy Chief Judge. No later than

19  3 days prior to the mediation conference, all parties must

20  submit any applicable motions, including, but not limited to,

21  a motion to waive the mediation conference, to the judge of

22  compensation claims.

23         (3)(a)  Such mediation conference shall be conducted

24  informally and does not require the use of formal rules of

25  evidence or procedure. Any information from the files,

26  reports, case summaries, mediator's notes, or other

27  communications or materials, oral or written, relating to a

28  mediation conference under this section obtained by any person

29  performing mediation duties is privileged and confidential and

30  may not be disclosed without the written consent of all

31  parties to the conference. Any research or evaluation effort

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  directed at assessing the mediation program activities or

 2  performance must protect the confidentiality of such

 3  information. Each party to a mediation conference has a

 4  privilege during and after the conference to refuse to

 5  disclose and to prevent another from disclosing communications

 6  made during the conference whether or not the contested issues

 7  are successfully resolved. This subsection and paragraphs

 8  (4)(a) and (b) shall not be construed to prevent or inhibit

 9  the discovery or admissibility of any information that is

10  otherwise subject to discovery or that is admissible under

11  applicable law or rule of procedure, except that any conduct

12  or statements made during a mediation conference or in

13  negotiations concerning the conference are inadmissible in any

14  proceeding under this chapter.

15         (a)1.  Unless the parties conduct a private mediation

16  under paragraph (b) subparagraph 2., mediation shall be

17  conducted by a mediator selected by the Director of the

18  Division of Administrative Hearings from among mediators

19  employed on a full-time basis by the Office of the Judges of

20  Compensation Claims. A mediator must be a member of The

21  Florida Bar for at least 5 years and must complete a mediation

22  training program approved by the Deputy Chief Judge Director

23  of the Division of Administrative Hearings. Adjunct mediators

24  may be employed by the Office of the Judges of Compensation

25  Claims on an as-needed basis and shall be selected from a list

26  prepared by the Director of the Division of Administrative

27  Hearings. An adjunct mediator must be independent of all

28  parties participating in the mediation conference. An adjunct

29  mediator must be a member of The Florida Bar for at least 5

30  years and must complete a mediation training program approved

31  by the Office of the Judges of Compensation Claims Director of

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  the Division of Administrative Hearings. An adjunct mediator

 2  shall have access to the office, equipment, and supplies of

 3  the judge of compensation claims in each district.

 4         (b)2.  With respect to any private mediation occurring

 5  on or after January 1, 2003, if the parties agree or if

 6  mediators are not available under paragraph (a), pursuant to

 7  notice from the judge of compensation claims, subparagraph 1.

 8  to conduct the required mediation within the period specified

 9  in this section, the parties shall hold a mediation conference

10  at the carrier's expense within the 130-day 90-day period set

11  for mediation. The mediation conference shall be conducted by

12  a mediator certified under s. 44.106. If the parties do not

13  agree upon a mediator within 10 days after the date of the

14  order, the claimant shall notify the judge in writing and the

15  judge shall appoint a mediator under this subparagraph within

16  7 days. In the event both parties agree, the results of the

17  mediation conference shall be binding and neither party shall

18  have a right to appeal the results. In the event either party

19  refuses to agree to the results of the mediation conference,

20  the results of the mediation conference as well as the

21  testimony, witnesses, and evidence presented at the conference

22  shall not be admissible at any subsequent proceeding on the

23  claim. The mediator shall not be called in to testify or give

24  deposition to resolve any claim for any hearing before the

25  judge of compensation claims. The employer may be represented

26  by an attorney at the mediation conference if the employee is

27  also represented by an attorney at the mediation conference.

28         (b)  The parties shall complete the pretrial

29  stipulations before the conclusion of the mediation conference

30  if the claims, except for attorney's fees and costs, have not

31  been settled and if any claims in any filed petition remain

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  unresolved. The judge of compensation claims may impose

 2  sanctions against a party or both parties for failing to

 3  complete the pretrial stipulations before the conclusion of

 4  the mediation conference.

 5         (4)(a)  If the parties fail to agree to upon written

 6  submission of pretrial stipulations at the mediation

 7  conference, the judge of compensation claims shall conduct a

 8  live order a pretrial hearing to occur within 14 days after

 9  the date of mediation ordered by the judge of compensation

10  claims. The judge of compensation claims shall give the

11  interested parties at least 14 7 days' advance notice of the

12  pretrial hearing by mail. At the pretrial hearing, the judge

13  of compensation claims shall, subject to paragraph (b), set a

14  date for the final hearing that allows the parties at least 60

15  days to conduct discovery unless the parties consent to an

16  earlier hearing date.

17         (b)  The final hearing must be held and concluded

18  within 90 days after the mediation conference is held,

19  allowing the parties sufficient time to complete discovery.

20  Except as set forth in this section, continuances may be

21  granted only if the requesting party demonstrates to the judge

22  of compensation claims that the reason for requesting the

23  continuance arises from circumstances beyond the party's

24  control. The written consent of the claimant must be obtained

25  before any request from a claimant's attorney is granted for

26  an additional continuance after the initial continuance has

27  been granted. Any order granting a continuance must set forth

28  the date and time of the rescheduled hearing. A continuance

29  may be granted only if the requesting party demonstrates to

30  the judge of compensation claims that the reason for

31  requesting the continuance arises from circumstances beyond

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  the control of the parties. The judge of compensation claims

 2  shall report any grant of two or more continuances to the

 3  Deputy Chief Judge.

 4         (c)  The judge of compensation claims shall give the

 5  interested parties at least 14 7 days' advance notice of the

 6  final hearing, served upon the interested parties by mail.

 7         (d)  The final hearing shall be held within 210 days

 8  after receipt of the petition for benefits in the county where

 9  the injury occurred, if the injury occurred in this state,

10  unless otherwise agreed to between the parties and authorized

11  by the judge of compensation claims in the county where the

12  injury occurred. However, the claimant may waive the

13  timeframes within this section for good cause shown. If the

14  injury occurred outside the state and is one for which

15  compensation is payable under this chapter, then the final

16  hearing may be held in the county of the employer's residence

17  or place of business, or in any other county of the state that

18  will, in the discretion of the Deputy Chief Judge, be the most

19  convenient for a hearing. The final hearing shall be conducted

20  by a judge of compensation claims, who shall, within 30 days

21  after final hearing or closure of the hearing record, unless

22  otherwise agreed by the parties, enter a final order on the

23  merits of the disputed issues. The judge of compensation

24  claims may enter an abbreviated final order in cases in which

25  compensability is not disputed. Either party may request

26  separate findings of fact and conclusions of law. At the final

27  hearing, the claimant and employer may each present evidence

28  with respect to the claims presented by the petition for

29  benefits and may be represented by any attorney authorized in

30  writing for such purpose. When there is a conflict in the

31  medical evidence submitted at the hearing, the provisions of

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  s. 440.13 shall apply. The report or testimony of the expert

 2  medical advisor shall be admitted into evidence in a made a

 3  part of the record of the proceeding and shall be given the

 4  same consideration by the judge of compensation claims as is

 5  accorded other medical evidence submitted in the proceeding;

 6  and all costs incurred in connection with such examination and

 7  testimony may be assessed as costs in the proceeding, subject

 8  to the provisions of s. 440.13. No judge of compensation

 9  claims may make a finding of a degree of permanent impairment

10  that is greater than the greatest permanent impairment rating

11  given the claimant by any examining or treating physician,

12  except upon stipulation of the parties. Any benefit due but

13  not raised at the final hearing which was ripe, due, or owing

14  at the time of the final hearing is waived.

15         (e)  The order making an award or rejecting the claim,

16  referred to in this chapter as a "compensation order," shall

17  set forth the findings of ultimate facts and the mandate; and

18  the order need not include any other reason or justification

19  for such mandate. The compensation order shall be filed in the

20  Office of the Judges of Compensation Claims at Tallahassee. A

21  copy of such compensation order shall be sent by mail to the

22  parties and attorneys of record at the last known address of

23  each, with the date of mailing noted thereon.

24         (f)  Each judge of compensation claims is required to

25  submit a special report to the Deputy Chief Judge in each

26  contested workers' compensation case in which the case is not

27  determined within 30 days of final hearing or closure of the

28  hearing record. Said form shall be provided by the director of

29  the Division of Administrative Hearings and shall contain the

30  names of the judge of compensation claims and of the attorneys

31  involved and a brief explanation by the judge of compensation

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  claims as to the reason for such a delay in issuing a final

 2  order.

 3         (f)(g)  Notwithstanding any other provision of this

 4  section, the judge of compensation claims may require the

 5  appearance of the parties and counsel before her or him

 6  without written notice for an emergency conference where there

 7  is a bona fide emergency involving the health, safety, or

 8  welfare of an employee. An emergency conference under this

 9  section may result in the entry of an order or the rendering

10  of an adjudication by the judge of compensation claims.

11         (g)(h)  To expedite dispute resolution and to enhance

12  the self-executing features of the Workers' Compensation Law,

13  the Deputy Chief Judge shall make provision by rule or order

14  for the resolution of appropriate motions by judges of

15  compensation claims without oral hearing upon submission of

16  brief written statements in support and opposition, and for

17  expedited discovery and docketing. Unless the judge of

18  compensation claims, for good cause, orders a hearing under

19  paragraph (h)(i), each claim in a petition relating to the

20  determination of the average weekly wage pay under s. 440.14

21  shall be resolved under this paragraph without oral hearing.

22         (h)(i)  To further expedite dispute resolution and to

23  enhance the self-executing features of the system, those

24  petitions filed in accordance with s. 440.192 that involve a

25  claim for benefits of $5,000 or less shall, in the absence of

26  compelling evidence to the contrary, be presumed to be

27  appropriate for expedited resolution under this paragraph; and

28  any other claim filed in accordance with s. 440.192, upon the

29  written agreement of both parties and  application by either

30  party, may similarly be resolved under this paragraph. A claim

31  in a petition or $5,000 or less for medical benefits only or a

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  petition for reimbursement for mileage for medical purposes

 2  shall, in the absence of compelling evidence to the contrary,

 3  be resolved through the expedited dispute resolution process

 4  provided in this paragraph. For purposes of expedited

 5  resolution pursuant to this paragraph, the Deputy Chief Judge

 6  shall make provision by rule or order for expedited and

 7  limited discovery and expedited docketing in such cases. At

 8  least 15 days prior to hearing, the parties shall exchange and

 9  file with the judge of compensation claims a pretrial outline

10  of all issues, defenses, and witnesses on a form adopted by

11  the Deputy Chief Judge; provided, in no event shall such

12  hearing be held without 15 days' written notice to all

13  parties. No pretrial hearing shall be held and no mediation

14  scheduled unless requested by a party. The judge of

15  compensation claims shall limit all argument and presentation

16  of evidence at the hearing to a maximum of 30 minutes, and

17  such hearings shall not exceed 30 minutes in length. Neither

18  party shall be required to be represented by counsel. The

19  employer or carrier may be represented by an adjuster or other

20  qualified representative. The employer or carrier and any

21  witness may appear at such hearing by telephone. The rules of

22  evidence shall be liberally construed in favor of allowing

23  introduction of evidence.

24         (i)(j)  A judge of compensation claims may, upon the

25  motion of a party or the judge's own motion, dismiss a

26  petition for lack of prosecution if a petition, response,

27  motion, order, request for hearing, or notice of deposition

28  has not been filed during the previous 12 months unless good

29  cause is shown. A dismissal for lack of prosecution is without

30  prejudice and does not require a hearing.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (j)(k)  A judge of compensation claims may not award

 2  interest on unpaid medical bills and the amount of such bills

 3  may not be used to calculate the amount of interest awarded.

 4  Regardless of the date benefits were initially requested,

 5  attorney's fees do not attach under this subsection until 30

 6  days after the date the carrier or self-insured employer

 7  receives the petition.

 8         (5)(a)  Procedures with respect to appeals from orders

 9  of judges of compensation claims shall be governed by rules

10  adopted by the Supreme Court. Such an order shall become final

11  30 days after mailing of copies of such order to the parties,

12  unless appealed pursuant to such rules.

13         (b)  An appellant may be relieved of any necessary

14  filing fee by filing a verified petition of indigency for

15  approval as provided in s. 57.081(1) and may be relieved in

16  whole or in part from the costs for preparation of the record

17  on appeal if, within 15 days after the date notice of the

18  estimated costs for the preparation is served, the appellant

19  files with the judge of compensation claims a copy of the

20  designation of the record on appeal, and a verified petition

21  to be relieved of costs. A verified petition filed prior to

22  the date of service of the notice of the estimated costs shall

23  be deemed not timely filed. The verified petition relating to

24  record costs shall contain a sworn statement that the

25  appellant is insolvent and a complete, detailed, and sworn

26  financial affidavit showing all the appellant's assets,

27  liabilities, and income. Failure to state in the affidavit all

28  assets and income, including marital assets and income, shall

29  be grounds for denying the petition with prejudice. The Office

30  of the Judges of Compensation Claims shall adopt rules as may

31  be required pursuant to this subsection, including forms for

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  use in all petitions brought under this subsection. The

 2  appellant's attorney, or the appellant if she or he is not

 3  represented by an attorney, shall include as a part of the

 4  verified petition relating to record costs an affidavit or

 5  affirmation that, in her or his opinion, the notice of appeal

 6  was filed in good faith and that there is a probable basis for

 7  the District Court of Appeal, First District, to find

 8  reversible error, and shall state with particularity the

 9  specific legal and factual grounds for the opinion. Failure to

10  so affirm shall be grounds for denying the petition. A copy of

11  the verified petition relating to record costs shall be served

12  upon all interested parties. The judge of compensation claims

13  shall promptly conduct a hearing on the verified petition

14  relating to record costs, giving at least 15 days' notice to

15  the appellant, the department, and all other interested

16  parties, all of whom shall be parties to the proceedings. The

17  judge of compensation claims may enter an order without such

18  hearing if no objection is filed by an interested party within

19  20 days from the service date of the verified petition

20  relating to record costs. Such proceedings shall be conducted

21  in accordance with the provisions of this section and with the

22  workers' compensation rules of procedure, to the extent

23  applicable. In the event an insolvency petition is granted,

24  the judge of compensation claims shall direct the department

25  to pay record costs and filing fees from the Workers'

26  Compensation Administration Trust Fund pending final

27  disposition of the costs of appeal. The department may

28  transcribe or arrange for the transcription of the record in

29  any proceeding for which it is ordered to pay the cost of the

30  record.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (c)  As a condition of filing a notice of appeal to the

 2  District Court of Appeal, First District, an employer who has

 3  not secured the payment of compensation under this chapter in

 4  compliance with s. 440.38 shall file with the notice of appeal

 5  a good and sufficient bond, as provided in s. 59.13,

 6  conditioned to pay the amount of the demand and any interest

 7  and costs payable under the terms of the order if the appeal

 8  is dismissed, or if the District Court of Appeal, First

 9  District, affirms the award in any amount. Upon the failure of

10  such employer to file such bond with the judge of compensation

11  claims or the District Court of Appeal, First District, along

12  with the notice of appeal, the District Court of Appeal, First

13  District, shall dismiss the notice of appeal.

14         (6)  An award of compensation for disability may be

15  made after the death of an injured employee.

16         (7)  An injured employee claiming or entitled to

17  compensation shall submit to such physical examination by a

18  certified expert medical advisor approved by the agency or the

19  judge of compensation claims as the agency or the judge of

20  compensation claims may require. The place or places shall be

21  reasonably convenient for the employee.  Such physician or

22  physicians as the employee, employer, or carrier may select

23  and pay for may participate in an examination if the employee,

24  employer, or carrier so requests. Proceedings shall be

25  suspended and no compensation shall be payable for any period

26  during which the employee may refuse to submit to examination.

27  Any interested party shall have the right in any case of death

28  to require an autopsy, the cost thereof to be borne by the

29  party requesting it; and the judge of compensation claims

30  shall have authority to order and require an autopsy and may,

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  in her or his discretion, withhold her or his findings and

 2  award until an autopsy is held.

 3         Section 26.  Subsections (1), (2), and (3) of section

 4  440.34, Florida Statutes, are amended, and subsection (7) is

 5  added to that section, to read:

 6         440.34  Attorney's fees; costs.--

 7         (1)  A fee, gratuity, or other consideration may not be

 8  paid for services rendered for a claimant in connection with

 9  any proceedings arising under this chapter, unless approved as

10  reasonable by the judge of compensation claims or court having

11  jurisdiction over such proceedings. Except as provided by this

12  subsection, Any attorney's fee approved by a judge of

13  compensation claims for benefits secured on behalf of services

14  rendered to a claimant must equal to 20 percent of the first

15  $5,000 of the amount of the benefits secured, 15 percent of

16  the next $5,000 of the amount of the benefits secured, 10

17  percent of the remaining amount of the benefits secured to be

18  provided during the first 10 years after the date the claim is

19  filed, and 5 percent of the benefits secured after 10 years.

20  The judge of compensation claims shall not approve a

21  compensation order, a joint stipulation for lump-sum

22  settlement, a stipulation or agreement between a claimant and

23  his or her attorney, or any other agreement related to

24  benefits under this chapter that provides for an attorney's

25  fee in excess of the amount permitted by this section. The

26  judge of compensation claims is not required to approve any

27  retainer agreement between the claimant and his or her

28  attorney. The retainer agreement as to fees and costs may not

29  be for compensation in excess of the amount allowed under this

30  section. However, the judge of compensation claims shall

31  consider the following factors in each case and may increase

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  or decrease the attorney's fee if, in her or his judgment, the

 2  circumstances of the particular case warrant such action:

 3         (a)  The time and labor required, the novelty and

 4  difficulty of the questions involved, and the skill requisite

 5  to perform the legal service properly.

 6         (b)  The fee customarily charged in the locality for

 7  similar legal services.

 8         (c)  The amount involved in the controversy and the

 9  benefits resulting to the claimant.

10         (d)  The time limitation imposed by the claimant or the

11  circumstances.

12         (e)  The experience, reputation, and ability of the

13  lawyer or lawyers performing services.

14         (f)  The contingency or certainty of a fee.

15         (2)  In awarding a reasonable claimant's attorney's

16  fee, the judge of compensation claims shall consider only

17  those benefits secured by to the claimant that the attorney is

18  responsible for securing. An attorney is not entitled to

19  attorney's fees for representation in any issue that was ripe,

20  due, and owing and that reasonably could have been addressed,

21  but was not addressed, during the pendency of other issues for

22  the same injury. The amount, statutory basis, and type of

23  benefits obtained through legal representation shall be listed

24  on all attorney's fees awarded by the judge of compensation

25  claims. For purposes of this section, the term "benefits

26  secured" means benefits obtained as a result of the claimant's

27  attorney's legal services rendered in connection with the

28  claim for benefits.  However, such term does not include

29  future medical benefits to be provided on any date more than 5

30  years after the date the claim is filed. In the event an offer

31  to settle an issue pending before a judge of compensation

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  claims, including attorney's fees as provided for in this

 2  section, is communicated in writing to the claimant or the

 3  claimant's attorney at least 30 days prior to the trial date

 4  on such issue, for purposes of calculating the amount of

 5  attorney's fees to be taxed against the employer or carrier,

 6  the term "benefits secured" shall be deemed to include only

 7  that amount awarded to the claimant above the amount specified

 8  in the offer to settle. If multiple issues are pending before

 9  the judge of compensation claims, said offer of settlement

10  shall address each issue pending and shall state explicitly

11  whether or not the offer on each issue is severable. The

12  written offer shall also unequivocally state whether or not it

13  includes medical witness fees and expenses and all other costs

14  associated with the claim.

15         (3)  If any party the claimant should prevail in any

16  proceedings before a judge of compensation claims or court,

17  there shall be taxed against the nonprevailing party employer

18  the reasonable costs of such proceedings, not to include the

19  attorney's fees of the claimant.  A claimant shall be

20  responsible for the payment of her or his own attorney's fees,

21  except that a claimant shall be entitled to recover a

22  reasonable attorney's fee from a carrier or employer:

23         (a)  Against whom she or he successfully asserts a

24  petition for medical benefits only, if the claimant has not

25  filed or is not entitled to file at such time a claim for

26  disability, permanent impairment, wage-loss, or death

27  benefits, arising out of the same accident;

28         (b)  In any case in which the employer or carrier files

29  a response to petition denying benefits with the Office of the

30  Judges of Compensation Claims and the injured person has

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  employed an attorney in the successful prosecution of the

 2  petition;

 3         (c)  In a proceeding in which a carrier or employer

 4  denies that an accident occurred for which compensation

 5  benefits are payable, and the claimant prevails on the issue

 6  of compensability; or

 7         (d)  In cases where the claimant successfully prevails

 8  in proceedings filed under s. 440.24 or s. 440.28.

 9  

10  Regardless of the date benefits were initially requested,

11  attorney's fees shall not attach under this subsection until

12  30 days after the date the carrier or employer, if

13  self-insured, receives the petition. In applying the factors

14  set forth in subsection (1) to cases arising under paragraphs

15  (a), (b), (c), and (d), the judge of compensation claims must

16  only consider only such benefits and the time reasonably spent

17  in obtaining them as were secured for the claimant within the

18  scope of paragraphs (a), (b), (c), and (d).

19         (7)  If an attorney's fee is owed under paragraph

20  (3)(a), the judge of compensation claims may approve an

21  alternative attorney's fee not to exceed $1,500 only once per

22  accident, based on a maximum hourly rate of $150 per hour, if

23  the judge of compensation claims expressly finds that the

24  attorney's fee amount provided for in subsection (1), based on

25  benefits secured, fails to fairly compensate the attorney for

26  disputed medical-only claims as provided in paragraph (3)(a)

27  and the circumstances of the particular case warrant such

28  action.

29         Section 27.  Subsection (7) is added to section 440.38,

30  Florida Statutes, to read:

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         440.38  Security for compensation; insurance carriers

 2  and self-insurers.--

 3         (7)  Any employer who meets the requirements of

 4  subsection (1) through a policy of insurance issued outside of

 5  this state must at all times, with respect to all employees

 6  working in this state, maintain the required coverage under a

 7  Florida endorsement using Florida rates and rules pursuant to

 8  payroll reporting that accurately reflects the work performed

 9  in this state by such employees.

10         Section 28.  Subsections (2) and (6) of section

11  440.381, Florida Statutes, are amended to read:

12         440.381  Application for coverage; reporting payroll;

13  payroll audit procedures; penalties.--

14         (2)  Submission of an application that contains false,

15  misleading, or incomplete information provided with the

16  purpose of avoiding or reducing the amount of premiums for

17  workers' compensation coverage is a felony of the second

18  degree, punishable as provided in s. 775.082, s. 775.083, or

19  s. 775.084. The application must contain a statement that the

20  filing of an application containing false, misleading, or

21  incomplete information provided with the purpose of avoiding

22  or reducing the amount of premiums for workers' compensation

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

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

25  application must contain a sworn statement by the employer

26  attesting to the accuracy of the information submitted and

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

28  application must contain a sworn statement by the agent

29  attesting that the agent explained to the employer or officer

30  the classification codes that are used for premium

31  calculations.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (6)(a)  If an employer understates or conceals payroll,

 2  or misrepresents or conceals employee duties so as to avoid

 3  proper classification for premium calculations, or

 4  misrepresents or conceals information pertinent to the

 5  computation and application of an experience rating

 6  modification factor, the employer, or the employer's agent or

 7  attorney, shall pay to the insurance carrier a penalty of 10

 8  times the amount of the difference in premium paid and the

 9  amount the employer should have paid and reasonable attorney's

10  fees. The penalty may be enforced in the circuit courts of

11  this state.

12         (b)  If the department determines that an employer has

13  materially understated or concealed payroll, has materially

14  misrepresented or concealed employee duties so as to avoid

15  proper classification for premium calculations, or has

16  materially misrepresented or concealed information pertinent

17  to the computation and application of an experience rating

18  modification factor, the department shall immediately notify

19  the employer's carrier of such determination. The carrier

20  shall commence a physical onsite audit of the employer within

21  30 days after receiving notification from the department. If

22  the carrier fails to commence the audit as required by this

23  section, the department shall contract with auditing

24  professionals to conduct the audit at the carrier's expense. A

25  copy of the carrier's audit of the employer shall be provided

26  to the department upon completion. The carrier is not required

27  to conduct the physical onsite audit of the employer as set

28  forth in this paragraph if the carrier gives written notice of

29  cancellation to the employer within 30 days after receiving

30  notification from the department of the material

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  misrepresentation, understatement, or concealment and an audit

 2  is conducted in conjunction with the cancellation.

 3         Section 29.  Subsection (3) of section 440.42, Florida

 4  Statutes, is amended to read:

 5         440.42  Insurance policies; liability.--

 6         (3)  No contract or policy of insurance issued by a

 7  carrier under this chapter shall expire or be canceled until

 8  at least 30 days have elapsed after a notice of cancellation

 9  has been sent to the department and to the employer in

10  accordance with the provisions of s. 440.185(7). For

11  cancellation due to nonpayment of premium, the insurer shall

12  mail notification to the employer at least 10 days prior to

13  the effective date of the cancellation. However, when

14  duplicate or dual coverage exists by reason of two different

15  carriers having issued policies of insurance to the same

16  employer securing the same liability, it shall be presumed

17  that only that policy with the later effective date shall be

18  in force and that the earlier policy terminated upon the

19  effective date of the latter. In the event that both policies

20  carry the same effective date, one of the policies may be

21  canceled instanter upon filing a notice of cancellation with

22  the department and serving a copy thereof upon the employer in

23  such manner as the department prescribes by rule. The

24  department may by rule prescribe the content of the notice of

25  retroactive cancellation and specify the time, place, and

26  manner in which the notice of cancellation is to be served.

27         Section 30.  Paragraph (a) of subsection (4) of section

28  440.49, Florida Statutes, is amended to read:

29         440.49  Limitation of liability for subsequent injury

30  through Special Disability Trust Fund.--

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (4)  PERMANENT IMPAIRMENT OR PERMANENT TOTAL

 2  DISABILITY, TEMPORARY BENEFITS, MEDICAL BENEFITS, OR ATTENDANT

 3  CARE AFTER OTHER PHYSICAL IMPAIRMENT.--

 4         (a)  Permanent impairment.--If an employee who has a

 5  preexisting permanent physical impairment incurs a subsequent

 6  permanent impairment from injury or occupational disease

 7  arising out of, and in the course of, her or his employment

 8  which merges with the preexisting permanent physical

 9  impairment to cause a permanent impairment, the employer

10  shall, in the first instance, pay all benefits provided by

11  this chapter; but, subject to the limitations specified in

12  subsection (6), such employer shall be reimbursed from the

13  Special Disability Trust Fund created by subsection (9) for 50

14  percent of all impairment benefits which the employer has been

15  required to provide pursuant to s. 440.15(3)(a) as a result of

16  the subsequent accident or occupational disease.

17         Section 31.  Subsection (6) of section 440.491, Florida

18  Statutes, is amended to read:

19         440.491  Reemployment of injured workers;

20  rehabilitation.--

21         (6)  TRAINING AND EDUCATION.--

22         (a)  Upon referral of an injured employee by the

23  carrier, or upon the request of an injured employee, the

24  department shall conduct a training and education screening to

25  determine whether it should refer the employee for a

26  vocational evaluation and, if appropriate, approve training

27  and education or other vocational services for the employee.

28  The department may not approve formal training and education

29  programs unless it determines, after consideration of the

30  reemployment assessment, pertinent reemployment status reviews

31  or reports, and such other relevant factors as it prescribes

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  by rule, that the reemployment plan is likely to result in

 2  return to suitable gainful employment. The department is

 3  authorized to expend moneys from the Workers' Compensation

 4  Administration Trust Fund, established by s. 440.50, to secure

 5  appropriate training and education at a community college

 6  established under part III of chapter 240 or at a

 7  vocational-technical school established under s. 230.63, or to

 8  secure other vocational services when necessary to satisfy the

 9  recommendation of a vocational evaluator. As used in this

10  paragraph, "appropriate training and education" includes

11  securing a general education diploma (GED), if necessary. The

12  department shall establish training and education standards

13  pertaining to employee eligibility, course curricula and

14  duration, and associated costs.

15         (b)  When it appears that an employee who has attained

16  maximum medical improvement is unable to earn at least 80

17  percent of the compensation rate and requires training and

18  education to obtain suitable gainful employment, the employer

19  or carrier shall pay the employee additional training and

20  education temporary total compensation benefits while the

21  employee receives such training and education for a period not

22  to exceed 26 weeks, which period may be extended for an

23  additional 26 weeks or less, if such extended period is

24  determined to be necessary and proper by a judge of

25  compensation claims. The benefits provided under this

26  paragraph shall not be in addition to the 104 weeks as

27  specified in s. 440.15(2). However, a carrier or employer is

28  not precluded from voluntarily paying additional temporary

29  total disability compensation beyond that period. If an

30  employee requires temporary residence at or near a facility or

31  an institution providing training and education which is

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  located more than 50 miles away from the employee's customary

 2  residence, the reasonable cost of board, lodging, or travel

 3  must be borne by the department from the Workers' Compensation

 4  Administration Trust Fund established by s. 440.50. An

 5  employee who refuses to accept training and education that is

 6  recommended by the vocational evaluator and considered

 7  necessary by the department will forfeit any additional

 8  training and education benefits and any additional payment for

 9  lost wages under this chapter. The department shall adopt

10  rules to implement this section, which shall include

11  requirements placed upon the carrier to notify the injured

12  employee of the availability of training and education

13  benefits as specified in this chapter. The department shall

14  also include information regarding the eligibility for

15  training and education benefits in informational materials

16  specified in ss. 440.207 and 440.40 is subject to a 50-percent

17  reduction in weekly compensation benefits, including wage-loss

18  benefits, as determined under s. 440.15(3)(b).

19         Section 32.  Section 440.525, Florida Statutes, is

20  amended to read:

21         440.525  Examination and investigation of carriers and

22  claims-handling entities.--

23         (1)  The department may examine, or investigate any

24  each carrier, third-party administrator, servicing agent, or

25  other claims-handling entity as often as is warranted to

26  ensure that it is carriers are fulfilling its their

27  obligations under this chapter the law. The examination may

28  cover any period of the carrier's operations since the last

29  previous examination.

30         (2)  An examination may cover any period of the

31  carrier's, third-party administrator's, servicing agent's, or

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  other claims-handling entity's operations since the last

 2  previous examination. An investigation based upon a reasonable

 3  belief by the department that a material violation of this

 4  chapter has occurred may cover any time period, but may not

 5  predate the last examination by more than 5 years. The

 6  department may by rule establish procedures, standards, and

 7  protocols for examinations and investigations. If the

 8  department finds any violation of this chapter, it may impose

 9  administrative penalties pursuant to this chapter. If the

10  department finds any self-insurer in violation of this

11  chapter, it may take action pursuant s. 440.38(3).

12  Examinations or investigations by the department may address,

13  but are not limited to addressing, patterns or practices of

14  unreasonable delay in claims handling; timeliness and accuracy

15  of payments and reports under ss. 440.13, 440.16, and 440.185;

16  or patterns or practices of harassment, coercion, or

17  intimidation of claimants. The department may also specify by

18  rule the documentation to be maintained for each claim file.

19         (3)  As to any examination or investigation conducted

20  under this chapter, the department shall have the power to

21  conduct onsite inspections of claims records and documentation

22  of a carrier, third-party administrator, servicing agent, or

23  other claims-handling entity, and conduct interviews, both

24  sworn and unsworn, of claims-handling personnel. Carriers,

25  third-party administrators, servicing agents, and other

26  claims-handling entities shall make all claims records,

27  documentation, communication, and correspondence available to

28  department personnel during regular business hours. If any

29  person fails to comply with a request for production of

30  records or documents or fails to produce an employee for

31  interview, the department may compel production or attendance

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  by subpoena. The results of an examination or investigation

 2  shall be provided to the carrier, third-party administrator,

 3  servicing agent, or other claims-handling entity in a written

 4  report setting forth the basis for any violations that are

 5  asserted. Such report is agency action for purposes of chapter

 6  120, and the aggrieved party may request a proceeding under s.

 7  120.57 with regard to the findings and conclusion of the

 8  report.

 9         (4)  If the department finds that violations of this

10  chapter have occurred, the department may impose an

11  administrative penalty upon the offending entity or entities.

12  For each offending entity, such penalties shall not exceed

13  $2,500 for each pattern or practice constituting nonwillful

14  violation and shall not exceed an aggregate amount of $10,000

15  for all nonwillful violations arising out of the same action.

16  If the department finds a pattern of practice that constitutes

17  a willful violation, the department may impose an

18  administrative penalty upon each offending entity not to

19  exceed $20,000 for each willful pattern or practice. Such

20  fines shall not exceed $100,000 for all willful violations

21  arising out of the same action. No penalty assessed under this

22  section may be recouped by any carrier in the rate base, the

23  premium, or any rate filing. Any administrative penalty

24  imposed under this section for a nonwillful violation shall

25  not duplicate an administrative penalty imposed under another

26  provision of this chapter or the Insurance Code. The

27  department may adopt rules to implement this section. The

28  department shall adopt penalty guidelines by rule to set

29  penalties under this chapter.

30         Section 33.  Subsection (2) of section 627.162, Florida

31  Statutes, is amended to read:

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         627.162  Requirements for premium installments;

 2  delinquency, collection, and check return charges; attorney's

 3  fees.--

 4         (2)  Insurers providing workers' compensation coverage

 5  under chapter 440 may charge the insured a delinquency and

 6  collection fee on each installment in default for a period of

 7  not less than 5 days in an amount not to exceed $25 $10 or 5

 8  percent of the delinquent installment, whichever is greater.

 9  Only one such delinquency and collection fee may be collected

10  on any such installment regardless of the period during which

11  it remains in default.

12         Section 34.  Section 627.285, Florida Statutes, is

13  created to read:

14         627.285  Independent actuarial peer review of workers'

15  compensation rating organization.--The Financial Services

16  Commission shall at least once every other year contract for

17  an independent actuarial peer review and analysis of the

18  ratemaking processes of any licensed rating organization that

19  makes rate filings for workers' compensation insurance and the

20  rating organization shall fully cooperate in the peer review.

21  The contract shall require submission of a final report to the

22  commission, the President of the Senate, and the Speaker of

23  the House of Representatives by February 1. The first report

24  shall be submitted by February 1, 2004. The costs of the

25  independent actuarial peer review shall be paid from the

26  Workers' Compensation Administration Trust Fund.

27         Section 35.  Effective July, 1, 2003, paragraphs (b),

28  (c), and (d) of subsection (4) of section 627.311, Florida

29  Statutes, are amended to read

30         627.311  Joint underwriters and joint reinsurers.--

31         (4)

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (b)  The operation of the plan is subject to the

 2  supervision of a 9-member 13-member board of governors. The

 3  board of governors shall be comprised of:

 4         1.  Three members appointed by the Financial Services

 5  Commission. Each member appointed by the commission shall

 6  serve at the pleasure of the commission;

 7         2.1.  Two Five of the 20 domestic insurers, as defined

 8  in s. 624.06(1), having the largest voluntary direct premiums

 9  written in this state for workers' compensation and employer's

10  liability insurance, which shall be elected by those 20

11  domestic insurers;

12         3.2.  Two Five of the 20 foreign insurers as defined in

13  s. 624.06(2) having the largest voluntary direct premiums

14  written in this state for workers' compensation and employer's

15  liability insurance, which shall be elected by those 20

16  foreign insurers;

17         3.  One person, who shall serve as the chair, appointed

18  by the Insurance Commissioner;

19         4.  One person appointed by the largest property and

20  casualty insurance agents' association in this state; and

21         5.  The consumer advocate appointed under s. 627.0613

22  or the consumer advocate's designee.

23  

24  Each board member shall serve a 4-year term and may serve

25  consecutive terms. A vacancy on the board shall be filled in

26  the same manner as the original appointment for the unexpired

27  portion of the term. The Financial Services Commission shall

28  designate a member of the board to serve as chair. No board

29  member shall be an insurer which provides service to the plan

30  or which has an affiliate which provides services to the plan

31  or which is serviced by a service company or third-party

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  administrator which provides services to the plan or which has

 2  an affiliate which provides services to the plan. The minutes,

 3  audits, and procedures of the board of governors are subject

 4  to chapter 119.

 5         (c)  The operation of the plan shall be governed by a

 6  plan of operation that is prepared at the direction of the

 7  board of governors. The plan of operation may be changed at

 8  any time by the board of governors or upon request of the

 9  department. The plan of operation and all changes thereto are

10  subject to the approval of the department. The plan of

11  operation shall:

12         1.  Authorize the board to engage in the activities

13  necessary to implement this subsection, including, but not

14  limited to, borrowing money.

15         2.  Develop criteria for eligibility for coverage by

16  the plan, including, but not limited to, documented rejection

17  by at least two insurers which reasonably assures that

18  insureds covered under the plan are unable to acquire coverage

19  in the voluntary market. Any insured may voluntarily elect to

20  accept coverage from an insurer for a premium equal to or

21  greater than the plan premium if the insurer writing the

22  coverage adheres to the provisions of s. 627.171.

23         3.  Require notice from the agent to the insured at the

24  time of the application for coverage that the application is

25  for coverage with the plan and that coverage may be available

26  through an insurer, group self-insurers' fund, commercial

27  self-insurance fund, or assessable mutual insurer through

28  another agent at a lower cost.

29         4.  Establish programs to encourage insurers to provide

30  coverage to applicants of the plan in the voluntary market and

31  to insureds of the plan, including, but not limited to:

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    4-2575B-03                             See HB 25A, Engrossed 1




 1         a.  Establishing procedures for an insurer to use in

 2  notifying the plan of the insurer's desire to provide coverage

 3  to applicants to the plan or existing insureds of the plan and

 4  in describing the types of risks in which the insurer is

 5  interested. The description of the desired risks must be on a

 6  form developed by the plan.

 7         b.  Developing forms and procedures that provide an

 8  insurer with the information necessary to determine whether

 9  the insurer wants to write particular applicants to the plan

10  or insureds of the plan.

11         c.  Developing procedures for notice to the plan and

12  the applicant to the plan or insured of the plan that an

13  insurer will insure the applicant or the insured of the plan,

14  and notice of the cost of the coverage offered; and developing

15  procedures for the selection of an insuring entity by the

16  applicant or insured of the plan.

17         d.  Provide for a market-assistance plan to assist in

18  the placement of employers. All applications for coverage in

19  the plan received 45 days before the effective date for

20  coverage shall be processed through the market-assistance

21  plan. A market-assistance plan specifically designed to serve

22  the needs of small good policyholders as defined by the board

23  must be finalized by January 1, 1994.

24         5.  Provide for policy and claims services to the

25  insureds of the plan of the nature and quality provided for

26  insureds in the voluntary market.

27         6.  Provide for the review of applications for coverage

28  with the plan for reasonableness and accuracy, using any

29  available historic information regarding the insured.

30         7.  Provide for procedures for auditing insureds of the

31  plan which are based on reasonable business judgment and are

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  designed to maximize the likelihood that the plan will collect

 2  the appropriate premiums.

 3         8.  Authorize the plan to terminate the coverage of and

 4  refuse future coverage for any insured that submits a

 5  fraudulent application to the plan or provides fraudulent or

 6  grossly erroneous records to the plan or to any service

 7  provider of the plan in conjunction with the activities of the

 8  plan.

 9         9.  Establish service standards for agents who submit

10  business to the plan.

11         10.  Establish criteria and procedures to prohibit any

12  agent who does not adhere to the established service standards

13  from placing business with the plan or receiving, directly or

14  indirectly, any commissions for business placed with the plan.

15         11.  Provide for the establishment of reasonable safety

16  programs for all insureds in the plan. All insureds of the

17  plan must participate in the safety program.

18         12.  Authorize the plan to terminate the coverage of

19  and refuse future coverage to any insured who fails to pay

20  premiums or surcharges when due; who, at the time of

21  application, is delinquent in payments of workers'

22  compensation or employer's liability insurance premiums or

23  surcharges owed to an insurer, group self-insurers' fund,

24  commercial self-insurance fund, or assessable mutual insurer

25  licensed to write such coverage in this state; or who refuses

26  to substantially comply with any safety programs recommended

27  by the plan.

28         13.  Authorize the board of governors to provide the

29  services required by the plan through staff employed by the

30  plan, through reasonably compensated service providers who

31  contract with the plan to provide services as specified by the

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  board of governors, or through a combination of employees and

 2  service providers.

 3         14.  Provide for service standards for service

 4  providers, methods of determining adherence to those service

 5  standards, incentives and disincentives for service, and

 6  procedures for terminating contracts for service providers

 7  that fail to adhere to service standards.

 8         15.  Provide procedures for selecting service providers

 9  and standards for qualification as a service provider that

10  reasonably assure that any service provider selected will

11  continue to operate as an ongoing concern and is capable of

12  providing the specified services in the manner required.

13         16.  Provide for reasonable accounting and

14  data-reporting practices.

15         17.  Provide for annual review of costs associated with

16  the administration and servicing of the policies issued by the

17  plan to determine alternatives by which costs can be reduced.

18         18.  Authorize the acquisition of such excess insurance

19  or reinsurance as is consistent with the purposes of the plan.

20         19.  Provide for an annual report to the department on

21  a date specified by the department and containing such

22  information as the department reasonably requires.

23         20.  Establish multiple rating plans for various

24  classifications of risk which reflect risk of loss, hazard

25  grade, actual losses, size of premium, and compliance with

26  loss control. At least one of such plans must be a

27  preferred-rating plan to accommodate small-premium

28  policyholders with good experience as defined in

29  sub-subparagraph 22.a.

30         21.  Establish agent commission schedules.

31         22.  Establish four three subplans as follows:

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    4-2575B-03                             See HB 25A, Engrossed 1




 1         a.  Subplan "A" must include those insureds whose

 2  annual premium does not exceed $2,500 and who have neither

 3  incurred any lost-time claims nor incurred medical-only claims

 4  exceeding 50 percent of their premium for the immediate 2

 5  years.

 6         b.  Subplan "B" must include insureds that are

 7  employers identified by the board of governors as high-risk

 8  employers due solely to the nature of the operations being

 9  performed by those insureds and for whom no market exists in

10  the voluntary market, and whose experience modifications are

11  less than 1.00.

12         c.  Subplan "C" must include all other insureds within

13  the plan that are not eligible for subplan "A," subplan "B,"

14  or subplan "D."

15         d.  Subplan "D" must include any employer, regardless

16  of the length of time for which it has conducted business

17  operations, which has an experience modification factor of

18  1.10 or less and either employs 15 or fewer employees or is an

19  organization that is exempt from federal income tax pursuant

20  to s. 501(c)(3) of the Internal Revenue Code and receives more

21  than 50 percent of its funding from gifts, grants, endowments,

22  or federal or state contracts. The rate plan for subplan "D"

23  shall be the same rate plan as the plan approved under ss.

24  627.091-627.151 and each participant in subplan "D" shall pay

25  the premium determined under such rate plan, plus a surcharge

26  determined by the board to be sufficient to ensure that the

27  plan does not compete with the voluntary market rate for any

28  participant, but not to exceed 25 percent. However, the

29  surcharge shall not exceed 10 percent for an organization that

30  is exempt from federal income tax pursuant to s. 501(c)(3) of

31  the Internal Revenue Code.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         23.  Provide for a depopulation program to reduce the

 2  number of insureds in subplan "D." If an employer insured

 3  through subplan "D" is offered coverage from a voluntary

 4  market carrier:

 5         a.  During the first 30 days of coverage under the

 6  subplan;

 7         b.  Before a policy is issued under the subplan;

 8         c.  By issuance of a policy upon expiration or

 9  cancellation of the policy under the subplan; or

10         d.  By assumption of the subplan's obligation with

11  respect to an in-force policy,

12  

13  that employer is no longer eligible for coverage through the

14  plan. The premium for risks assumed by the voluntary market

15  carrier must be the same premium plus, for the first 2 years,

16  the surcharge as determined in sub-subparagraph 22.d. A

17  premium under this subparagraph, including surcharge, is

18  deemed approved and is not an excess premium for purposes of

19  s. 627.171.

20         24.  Require that policies issued under subplan "D" and

21  applications for such policies must include a notice that the

22  policy issued under subplan "D" could be replaced by a policy

23  issued from a voluntary market carrier and that, if an offer

24  of coverage is obtained from a voluntary market carrier, the

25  policyholder is no longer eligible for coverage through

26  subplan "D." The notice must also specify that acceptance of

27  coverage under subplan "D" creates a conclusive presumption

28  that the applicant or policyholder is aware of this potential.

29         (d)1.  The plan must be funded through actuarially

30  sound premiums charged to insureds of the plan.

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         2.  The plan may issue assessable policies only to

 2  those insureds in subplan "C." and subplan "D." Subject to

 3  verification by the department, the board may levy assessments

 4  against insureds in subplan "C" or subplan "D," on a pro rata

 5  earned premium basis, to fund any deficits that exist in those

 6  subplans. Assessments levied against subplan "C" participants

 7  shall cover only the deficits attributable to subplan "C," and

 8  assessments levied against subplan "D" participants shall

 9  cover only the deficits attributable to subplan "D." In no

10  event may the plan levy assessments against any person or

11  entity, except as authorized by this paragraph. Those

12  assessable policies must be clearly identified as assessable

13  by containing, in contrasting color and in not less than

14  10-point type, the following statements: "This is an

15  assessable policy. If the plan is unable to pay its

16  obligations, policyholders will be required to contribute on a

17  pro rata earned premium basis the money necessary to meet any

18  assessment levied."

19         3.  The plan may issue assessable policies with

20  differing terms and conditions to different groups within

21  subplans "C" and "D" the plan when a reasonable basis exists

22  for the differentiation.

23         4.  The plan may offer rating, dividend plans, and

24  other plans to encourage loss prevention programs.

25         Section 36.  Paragraphs (c) and (e) of subsection (3)

26  of section 921.0022, Florida Statutes, are amended to read:

27         921.0022  Criminal Punishment Code; offense severity

28  ranking chart.--

29  Florida           Felony

30  Statute           Degree             Description

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1                              (c)  LEVEL 3

 2  316.193(2)(b)      3rd      Felony DUI, 3rd conviction.

 3  316.1935(2)        3rd      Fleeing or attempting to elude

 4                              law enforcement officer in marked

 5                              patrol vehicle with siren and

 6                              lights activated.

 7  319.30(4)          3rd      Possession by junkyard of motor

 8                              vehicle with identification

 9                              number plate removed.

10  319.33(1)(a)       3rd      Alter or forge any certificate of

11                              title to a motor vehicle or

12                              mobile home.

13  319.33(1)(c)       3rd      Procure or pass title on stolen

14                              vehicle.

15  319.33(4)          3rd      With intent to defraud, possess,

16                              sell, etc., a blank, forged, or

17                              unlawfully obtained title or

18                              registration.

19  327.35(2)(b)       3rd      Felony BUI.

20  328.05(2)          3rd      Possess, sell, or counterfeit

21                              fictitious, stolen, or fraudulent

22                              titles or bills of sale of

23                              vessels.

24  328.07(4)          3rd      Manufacture, exchange, or possess

25                              vessel with counterfeit or wrong

26                              ID number.

27  376.302(5)         3rd      Fraud related to reimbursement

28                              for cleanup expenses under the

29                              Inland Protection Trust Fund.

30  

31  

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  440.105(3)b.       3rd      Receipt of fee or consideration

 2                              without approval by judge of

 3                              compensation claims.

 4  440.1051(3)        3rd      False report of workers'

 5                              compensation fraud or retaliation

 6                              for making such a report.

 7  501.001(2)(b)      2nd      Tampers with a consumer product

 8                              or the container using materially

 9                              false/misleading information.

10  697.08             3rd      Equity skimming.

11  790.15(3)          3rd      Person directs another to

12                              discharge firearm from a vehicle.

13  796.05(1)          3rd      Live on earnings of a prostitute.

14  806.10(1)          3rd      Maliciously injure, destroy, or

15                              interfere with vehicles or

16                              equipment used in firefighting.

17  806.10(2)          3rd      Interferes with or assaults

18                              firefighter in performance of

19                              duty.

20  810.09(2)(c)       3rd      Trespass on property other than

21                              structure or conveyance armed

22                              with firearm or dangerous weapon.

23  812.014(2)(c)2.    3rd      Grand theft; $5,000 or more but

24                              less than $10,000.

25  812.0145(2)(c)     3rd      Theft from person 65 years of age

26                              or older; $300 or more but less

27                              than $10,000.

28  815.04(4)(b)       2nd      Computer offense devised to

29                              defraud or obtain property.

30  

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  817.034(4)(a)3.    3rd      Engages in scheme to defraud

 2                              (Florida Communications Fraud

 3                              Act), property valued at less

 4                              than $20,000.

 5  817.233            3rd      Burning to defraud insurer.

 6  817.234(8)&(9)     3rd      Unlawful solicitation of persons

 7                              involved in motor vehicle

 8                              accidents.

 9  817.234(11)(a)     3rd      Insurance fraud; property value

10                              less than $20,000.

11  817.505(4)         3rd      Patient brokering.

12  828.12(2)          3rd      Tortures any animal with intent

13                              to inflict intense pain, serious

14                              physical injury, or death.

15  831.28(2)(a)       3rd      Counterfeiting a payment

16                              instrument with intent to defraud

17                              or possessing a counterfeit

18                              payment instrument.

19  831.29             2nd      Possession of instruments for

20                              counterfeiting drivers' licenses

21                              or identification cards.

22  838.021(3)(b)      3rd      Threatens unlawful harm to public

23                              servant.

24  843.19             3rd      Injure, disable, or kill police

25                              dog or horse.

26  870.01(2)          3rd      Riot; inciting or encouraging.

27  

28  

29  

30  

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  893.13(1)(a)2.     3rd      Sell, manufacture, or deliver

 2                              cannabis (or other s.

 3                              893.03(1)(c), (2)(c)1., (2)(c)2.,

 4                              (2)(c)3., (2)(c)5., (2)(c)6.,

 5                              (2)(c)7., (2)(c)8., (2)(c)9.,

 6                              (3), or (4) drugs).

 7  893.13(1)(d)2.     2nd      Sell, manufacture, or deliver 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 within 200 feet

12                              of university or public park.

13  893.13(1)(f)2.     2nd      Sell, manufacture, or deliver s.

14                              893.03(1)(c), (2)(c)1., (2)(c)2.,

15                              (2)(c)3., (2)(c)5., (2)(c)6.,

16                              (2)(c)7., (2)(c)8., (2)(c)9.,

17                              (3), or (4) drugs within 200 feet

18                              of public housing facility.

19  893.13(6)(a)       3rd      Possession of any controlled

20                              substance other than felony

21                              possession of cannabis.

22  893.13(7)(a)8.     3rd      Withhold information from

23                              practitioner regarding previous

24                              receipt of or prescription for a

25                              controlled substance.

26  893.13(7)(a)9.     3rd      Obtain or attempt to obtain

27                              controlled substance by fraud,

28                              forgery, misrepresentation, etc.

29  893.13(7)(a)10.    3rd      Affix false or forged label to

30                              package of controlled substance.

31  

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  893.13(7)(a)11.    3rd      Furnish false or fraudulent

 2                              material information on any

 3                              document or record required by

 4                              chapter 893.

 5  893.13(8)(a)1.     3rd      Knowingly assist a patient, other

 6                              person, or owner of an animal in

 7                              obtaining a controlled substance

 8                              through deceptive, untrue, or

 9                              fraudulent representations in or

10                              related to the practitioner's

11                              practice.

12  893.13(8)(a)2.     3rd      Employ a trick or scheme in the

13                              practitioner's practice to assist

14                              a patient, other person, or owner

15                              of an animal in obtaining a

16                              controlled substance.

17  893.13(8)(a)3.     3rd      Knowingly write a prescription

18                              for a controlled substance for a

19                              fictitious person.

20  893.13(8)(a)4.     3rd      Write a prescription for a

21                              controlled substance for a

22                              patient, other person, or an

23                              animal if the sole purpose of

24                              writing the prescription is a

25                              monetary benefit for the

26                              practitioner.

27  918.13(1)(a)       3rd      Alter, destroy, or conceal

28                              investigation evidence.

29  944.47

30   (1)(a)1.-2.       3rd      Introduce contraband to

31                              correctional facility.

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  944.47(1)(c)       2nd      Possess contraband while upon the

 2                              grounds of a correctional

 3                              institution.

 4  985.3141           3rd      Escapes from a juvenile facility

 5                              (secure detention or residential

 6                              commitment facility).

 7                              (e)  LEVEL 5

 8  316.027(1)(a)      3rd      Accidents involving personal

 9                              injuries, failure to stop;

10                              leaving scene.

11  316.1935(4)        2nd      Aggravated fleeing or eluding.

12  322.34(6)          3rd      Careless operation of motor

13                              vehicle with suspended license,

14                              resulting in death or serious

15                              bodily injury.

16  327.30(5)          3rd      Vessel accidents involving

17                              personal injury; leaving scene.

18  381.0041

19   (11)(b)           3rd      Donate blood, plasma, or organs

20                              knowing HIV positive.

21  440.10(1)(g)       2nd      Failure to obtain workers'

22                              compensation coverage.

23  440.105(5)         2nd      Unlawful solicitation for the

24                              purpose of making workers'

25                              compensation claims.

26  440.381(2)         2nd      Submission of false, misleading,

27                              or incomplete information with

28                              the purpose of avoiding or

29                              reducing workers' compensation

30                              premiums.

31  790.01(2)          3rd      Carrying a concealed firearm.

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  790.162            2nd      Threat to throw or discharge

 2                              destructive device.

 3  790.163(1)         2nd      False report of deadly explosive

 4                              or weapon of mass destruction.

 5  790.221(1)         2nd      Possession of short-barreled

 6                              shotgun or machine gun.

 7  790.23             2nd      Felons in possession of firearms

 8                              or electronic weapons or devices.

 9  800.04(6)(c)       3rd      Lewd or lascivious conduct;

10                              offender less than 18 years.

11  800.04(7)(c)       2nd      Lewd or lascivious exhibition;

12                              offender 18 years or older.

13  806.111(1)         3rd      Possess, manufacture, or dispense

14                              fire bomb with intent to damage

15                              any structure or property.

16  812.0145(2)(b)     2nd      Theft from person 65 years of age

17                              or older; $10,000 or more but

18                              less than $50,000.

19  812.015(8)         3rd      Retail theft; property stolen is

20                              valued at $300 or more and one or

21                              more specified acts.

22  812.019(1)         2nd      Stolen property; dealing in or

23                              trafficking in.

24  812.131(2)(b)      3rd      Robbery by sudden snatching.

25  812.16(2)          3rd      Owning, operating, or conducting

26                              a chop shop.

27  817.034(4)(a)2.    2nd      Communications fraud, value

28                              $20,000 to $50,000.

29  817.234(11)(b)     2nd      Insurance fraud; property value

30                              $20,000 or more but less than

31                              $100,000.

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  817.568(2)(b)      2nd      Fraudulent use of personal

 2                              identification information; value

 3                              of benefit, services received,

 4                              payment avoided, or amount of

 5                              injury or fraud, $75,000 or more.

 6  817.625(2)(b)      2nd      Second or subsequent fraudulent

 7                              use of scanning device or

 8                              reencoder.

 9  825.1025(4)        3rd      Lewd or lascivious exhibition in

10                              the presence of an elderly person

11                              or disabled adult.

12  827.071(4)         2nd      Possess with intent to promote

13                              any photographic material, motion

14                              picture, etc., which includes

15                              sexual conduct by a child.

16  839.13(2)(b)       2nd      Falsifying records of an

17                              individual in the care and

18                              custody of a state agency

19                              involving great bodily harm or

20                              death.

21  843.01             3rd      Resist officer with violence to

22                              person; resist arrest with

23                              violence.

24  874.05(2)          2nd      Encouraging or recruiting another

25                              to join a criminal street gang;

26                              second or subsequent offense.

27  893.13(1)(a)1.     2nd      Sell, manufacture, or deliver

28                              cocaine (or other s.

29                              893.03(1)(a), (1)(b), (1)(d),

30                              (2)(a), (2)(b), or (2)(c)4.

31                              drugs).

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  893.13(1)(c)2.     2nd      Sell, manufacture, or deliver

 2                              cannabis (or other s.

 3                              893.03(1)(c), (2)(c)1., (2)(c)2.,

 4                              (2)(c)3., (2)(c)5., (2)(c)6.,

 5                              (2)(c)7., (2)(c)8., (2)(c)9.,

 6                              (3), or (4) drugs) within 1,000

 7                              feet of a child care facility or

 8                              school.

 9  893.13(1)(d)1.     1st      Sell, manufacture, or deliver

10                              cocaine (or other s.

11                              893.03(1)(a), (1)(b), (1)(d),

12                              (2)(a), (2)(b), or (2)(c)4.

13                              drugs) within 200 feet of

14                              university or public park.

15  893.13(1)(e)2.     2nd      Sell, manufacture, or deliver

16                              cannabis or other drug prohibited

17                              under s. 893.03(1)(c), (2)(c)1.,

18                              (2)(c)2., (2)(c)3., (2)(c)5.,

19                              (2)(c)6., (2)(c)7., (2)(c)8.,

20                              (2)(c)9., (3), or (4) within

21                              1,000 feet of property used for

22                              religious services or a specified

23                              business site.

24  893.13(1)(f)1.     1st      Sell, manufacture, or deliver

25                              cocaine (or other s.

26                              893.03(1)(a), (1)(b), (1)(d), or

27                              (2)(a), (2)(b), or (2)(c)4.

28                              drugs) within 200 feet of public

29                              housing facility.

30  

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  893.13(4)(b)       2nd      Deliver to minor cannabis (or

 2                              other s. 893.03(1)(c), (2)(c)1.,

 3                              (2)(c)2., (2)(c)3., (2)(c)5.,

 4                              (2)(c)6., (2)(c)7., (2)(c)8.,

 5                              (2)(c)9., (3), or (4) drugs).

 6         Section 37.  Report to the Legislature regarding

 7  outstanding enforcement issues.--The Department of Financial

 8  Services shall, no later than January 1, 2004, provide a

 9  report to the President of the Senate, the Speaker of the

10  House of Representatives, the minority leaders of the Senate

11  and the House of Representatives, and the chairs of the

12  standing committees of the Senate and the House of

13  Representatives having jurisdiction over insurance issues,

14  containing the following information:

15         (1)  Any provision of chapter 440, Florida Statutes,

16  relating to workers' compensation carrier compliance and

17  enforcement, that the department finds it is unable to

18  enforce.

19         (2)  Any administrative rule relating to workers'

20  compensation carrier compliance and enforcement that the

21  department finds it is unable to enforce.

22         (3)  Any other impediment to enforcement of chapter

23  440, Florida Statutes, resulting from the transfer of

24  activities from the former Department of Labor and Employment

25  Security to the department or the reorganization of the former

26  Department of Insurance into the department.

27         Section 38.  Subsection (2) of section 946.523, Florida

28  Statutes, is amended to read:

29         946.523  Prison industry enhancement (PIE) programs.--

30         (2)  Notwithstanding any other law to the contrary,

31  including s. 440.15(8)(9), private sector employers shall

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  provide workers' compensation coverage to inmates who

 2  participate in prison industry enhancement (PIE) programs

 3  under subsection (1). However, inmates are not entitled to

 4  unemployment compensation.

 5         Section 39.  Paragraph (c) of subsection (5) of section

 6  985.315, Florida Statutes, is amended to read:

 7         985.315  Educational/technical and vocational

 8  work-related programs.--

 9         (5)

10         (c)  Notwithstanding any other law to the contrary,

11  including s. 440.15(8)(9), private sector employers shall

12  provide juveniles participating in juvenile work programs

13  under paragraph (b) with workers' compensation coverage, and

14  juveniles shall be entitled to the benefits of such coverage.

15  Nothing in this subsection shall be construed to allow

16  juveniles to participate in unemployment compensation

17  benefits.

18         Section 40.  (1)  There is established a Joint Select

19  Committee on Workers Compensation Rating Reform. The committee

20  shall study the merits of requiring each workers' compensation

21  insurer to individually file its expense and profit portion of

22  a rate filing, while permitting each insurer to use a lost

23  cost filing made by a licensed rating organization. The

24  committee shall also study options for the current prior

25  approval system for workers compensation rate filings,

26  including, but not limited to, rate filing procedures that

27  would promote greater competition and would encourage insurers

28  to write workers' compensation coverage in the state while

29  protecting employers from rates that are excessive,

30  inadequate, or unfairly discriminatory.

31  

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    4-2575B-03                             See HB 25A, Engrossed 1




 1         (2)  The committee shall be composed of three Senators

 2  appointed by the President of the Senate and three

 3  Representatives appointed by the Speaker of the House of

 4  Representatives. The appointed members of the committee shall

 5  elect a chair and vice chair. The Department of Financial

 6  Services shall provide information and assistance as requested

 7  by the committee.

 8         (3)  The committee shall issue its final report and

 9  recommendations to the President of the Senate and the Speaker

10  of the House of Representatives by December 1, 2003. The

11  committee shall terminate on December 1, 2003.

12         Section 41.  The board of governors of the joint

13  underwriting plan for workers' compensation insurance created

14  by section 627.311(4), Florida Statutes, shall, by January 1,

15  2005, submit a report to the President of the Senate, the

16  Speaker of the House of Representatives, the minority party

17  leaders of the Senate and the House of Representatives, and

18  the chairs of the standing committees of the Senate and the

19  House of Representatives having jurisdiction over matters

20  relating to workers' compensation. The report shall include

21  the board's findings and recommendations on the following

22  issues:

23         (1)  The number of policies and the aggregate premium

24  of the workers' compensation joint underwriting plan, before

25  and after enactment of this act, and projections for future

26  policy and premium growth.

27         (2)  Increases or decreases in availability of workers'

28  compensation coverage in the voluntary market and the

29  effectiveness of this act in improving the availability of

30  workers' compensation coverage in the state.

31  

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    4-2575B-03                             See HB 25A, Engrossed 1




 1         (3)  The board's efforts to depopulate the plan and the

 2  willingness of insurers in the voluntary market to avail

 3  themselves of depopulation incentives.

 4         (4)  Further actions that could be taken by the

 5  Legislature to improve availability of workers' compensation

 6  coverage in the voluntary and residual markets.

 7         (5)  Actions that the board has taken to restructure

 8  the joint underwriting plan and recommendations for

 9  legislative action to restructure the plan.

10         (6)  Projected surpluses or deficits and possible means

11  of providing funding to ensure the continued solvency of the

12  plan.

13         (7)  An independent actuarial review of all rates under

14  the plan. The costs of the independent actuarial review shall

15  be paid from the Workers' Compensation Administration Trust

16  Fund, pursuant to a budget amendment approved by the

17  Legislative Budget Commission. The board shall submit a plan

18  for such review to the Legislative Budget Commission by

19  October 1, 2003.

20         (8)  Such other issues as the board determines are

21  worthy of the Legislature's consideration.

22         Section 42.  Subsections (1) and (2) of section

23  443.1715, Florida Statutes, are amended to read:

24         443.1715  Disclosure of information; confidentiality.--

25         (1)  RECORDS AND REPORTS.--Information revealing the

26  employing unit's or individual's identity obtained from the

27  employing unit or from any individual pursuant to the

28  administration of this chapter, and any determination

29  revealing such information, except to the extent necessary for

30  the proper presentation of a claim or upon written

31  authorization of the claimant who has a workers' compensation

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  claim pending or is receiving compensation benefits, must be

 2  held confidential and exempt from the provisions of s.

 3  119.07(1) and s. 24(a), Art. I of the State Constitution. Such

 4  information may be made available only to public employees in

 5  the performance of their public duties, including employees of

 6  the Department of Education in obtaining information for the

 7  Florida Education and Training Placement Information Program

 8  and the Office of Tourism, Trade, and Economic Development in

 9  its administration of the qualified defense contractor tax

10  refund program authorized by s. 288.1045 and the qualified

11  target industry tax refund program authorized by s. 288.106.

12  Except as otherwise provided by law, public employees

13  receiving such information must retain the confidentiality of

14  such information. Any claimant, or the claimant's legal

15  representative, at a hearing before an appeals referee or the

16  commission shall be supplied with information from such

17  records to the extent necessary for the proper presentation of

18  her or his claim. Any employee or member of the commission or

19  any employee of the division, or any other person receiving

20  confidential information, who violates any provision of this

21  subsection commits a misdemeanor of the second degree,

22  punishable as provided in s. 775.082 or s. 775.083. However,

23  the division may furnish to any employer copies of any report

24  previously submitted by such employer, upon the request of

25  such employer, and may furnish to any claimant copies of any

26  report previously submitted by such claimant, upon the request

27  of such claimant, and the division is authorized to charge

28  therefor such reasonable fee as the division may by rule

29  prescribe not to exceed the actual reasonable cost of the

30  preparation of such copies. Fees received by the division for

31  

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  copies as provided in this subsection must be deposited to the

 2  credit of the Employment Security Administration Trust Fund.

 3         (2)  DISCLOSURE OF INFORMATION.--

 4         (a)  Subject to such restrictions as the division

 5  prescribes by rule, information declared confidential under

 6  this section may be made available to any agency of this or

 7  any other state, or any federal agency, charged with the

 8  administration of any unemployment compensation law or the

 9  maintenance of a system of public employment offices, or the

10  Bureau of Internal Revenue of the United States Department of

11  the Treasury, or the Florida Department of Revenue and

12  information obtained in connection with the administration of

13  the employment service may be made available to persons or

14  agencies for purposes appropriate to the operation of a public

15  employment service or a job-preparatory or career education or

16  training program. The division shall on a quarterly basis,

17  furnish the National Directory of New Hires with information

18  concerning the wages and unemployment compensation paid to

19  individuals, by such dates, in such format and containing such

20  information as the Secretary of Health and Human Services

21  shall specify in regulations. Upon request therefor, the

22  division shall furnish any agency of the United States charged

23  with the administration of public works or assistance through

24  public employment, and may furnish to any state agency

25  similarly charged, the name, address, ordinary occupation, and

26  employment status of each recipient of benefits and such

27  recipient's rights to further benefits under this chapter.

28  Except as otherwise provided by law, the receiving agency must

29  retain the confidentiality of such information as provided in

30  this section. The division may request the Comptroller of the

31  Currency of the United States to cause an examination of the

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    4-2575B-03                             See HB 25A, Engrossed 1




 1  correctness of any return or report of any national banking

 2  association rendered pursuant to the provisions of this

 3  chapter and may in connection with such request transmit any

 4  such report or return to the Comptroller of the Currency of

 5  the United States as provided in s. 3305(c) of the federal

 6  Internal Revenue Code.

 7         (b)1.  The employer or the employer's workers'

 8  compensation carrier against whom a claim for benefits under

 9  chapter 440 has been made, or a representative of either, may

10  request from the division records of wages of the employee

11  reported to the division by any employer for the quarter that

12  includes the date of the accident that is the subject of such

13  claim and for subsequent quarters. The request must be made

14  with the authorization or consent of the employee or any

15  employer who paid wages to the employee subsequent to the date

16  of the accident.

17         2.  The employer or carrier shall make the request on a

18  form prescribed by rule for such purpose by the division. Such

19  form shall contain a certification by the requesting party

20  that it is a party entitled to the information requested as

21  authorized by this paragraph.

22         3.  The division shall provide the most current

23  information readily available within 15 days after receiving

24  the request.

25         Section 43.  Subsection (9) of section 626.989, Florida

26  Statutes, is amended to read:

27         626.989  Investigation by department or Division of

28  Insurance Fraud; compliance; immunity; confidential

29  information; reports to division; division investigator's

30  power of arrest.--

31  

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (9)  In recognition of the complementary roles of

 2  investigating instances of workers' compensation fraud and

 3  enforcing compliance with the workers' compensation coverage

 4  requirements under chapter 440, the Department of Financial

 5  Services shall Insurance is directed to prepare and submit a

 6  joint performance report to the President of the Senate and

 7  the Speaker of the House of Representatives by November 1,

 8  2003, and then by January 1 of each year November 1 every 3

 9  years thereafter, describing the results obtained in achieving

10  compliance with the workers' compensation coverage

11  requirements and reducing the incidence of workers'

12  compensation fraud. The annual report must include, but need

13  not be limited to:

14         (a)  The total number of initial referrals received,

15  cases opened, cases presented for prosecution, cases closed,

16  and convictions resulting from cases presented for prosecution

17  by the Bureau of Workers' Compensation Insurance Fraud by type

18  of workers' compensation fraud and circuit.

19         (b)  The number of referrals received from insurers and

20  the Division of Workers' Compensation and the outcome of those

21  referrals.

22         (c)  The number of investigations undertaken by the

23  office which were not the result of a referral from an insurer

24  or the Division of Workers' Compensation.

25         (d)  The number of investigations that resulted in a

26  referral to a regulatory agency and the disposition of those

27  referrals.

28         (e)  The number and reasons provided by local

29  prosecutors or the statewide prosecutor for declining

30  prosecution of a case presented by the office by circuit.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (f)  The total number of employees assigned to the

 2  office and the Division of Workers' Compliance unit delineated

 3  by location of staff assigned and the number and location of

 4  employees assigned to the office who were assigned to work

 5  other types of fraud cases.

 6         (g)  The average caseload and turnaround time by type

 7  of case for each investigator and division compliance

 8  employee.

 9         (h)  The training provided during the year to workers'

10  compensation fraud investigators and the division's compliance

11  employees.

12         Section 44.  Section 626.9891, Florida Statutes, is

13  amended to read:

14         626.9891  Insurer anti-fraud investigative units;

15  reporting requirements; penalties for noncompliance.--

16         (1)  Every insurer admitted to do business in this

17  state who in the previous calendar year, at any time during

18  that year, had $10 million or more in direct premiums written

19  shall:

20         (a)  Establish and maintain a unit or division within

21  the company to investigate possible fraudulent claims by

22  insureds or by persons making claims for services or repairs

23  against policies held by insureds; or

24         (b)  Contract with others to investigate possible

25  fraudulent claims for services or repairs against policies

26  held by insureds.

27  

28  An insurer subject to this subsection shall file with the

29  Division of Insurance Fraud of the department on or before

30  July 1, 1996, a detailed description of the unit or division

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  established pursuant to paragraph (a) or a copy of the

 2  contract and related documents required by paragraph (b).

 3         (2)  Every insurer admitted to do business in this

 4  state, which in the previous calendar year had less than $10

 5  million in direct premiums written, must adopt an anti-fraud

 6  plan and file it with the Division of Insurance Fraud of the

 7  department on or before July 1, 1996. An insurer may, in lieu

 8  of adopting and filing an anti-fraud plan, comply with the

 9  provisions of subsection (1).

10         (3)  Each insurers anti-fraud plans shall include:

11         (a)  A description of the insurer's procedures for

12  detecting and investigating possible fraudulent insurance

13  acts;

14         (b)  A description of the insurer's procedures for the

15  mandatory reporting of possible fraudulent insurance acts to

16  the Division of Insurance Fraud of the department;

17         (c)  A description of the insurer's plan for anti-fraud

18  education and training of its claims adjusters or other

19  personnel; and

20         (d)  A written description or chart outlining the

21  organizational arrangement of the insurer's anti-fraud

22  personnel who are responsible for the investigation and

23  reporting of possible fraudulent insurance acts.

24         (4)  Any insurer who obtains a certificate of authority

25  after July 1, 1995, shall have 18 months in which to comply

26  with the requirements of this section.

27         (5)  For purposes of this section, the term "unit or

28  division" includes the assignment of fraud investigation to

29  employees whose principal responsibilities are the

30  investigation and disposition of claims. If an insurer creates

31  a distinct unit or division, hires additional employees, or

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1  contracts with another entity to fulfill the requirements of

 2  this section, the additional cost incurred must be included as

 3  an administrative expense for ratemaking purposes.

 4         (6)  Each insurer writing workers' compensation

 5  insurance shall report to the department, on or before August

 6  1 of each year, on its experience in implementing and

 7  maintaining an anti-fraud investigative unit or an anti-fraud

 8  plan. The report must include, at a minimum:

 9         (a)  The dollar amount of recoveries and losses

10  attributable to workers' compensation fraud delineated by the

11  type of fraud: claimant, employer, provider, agent, or other.

12         (b)  The number of referrals to the Bureau of Workers'

13  Compensation Fraud for the prior year.

14         (c)  A description of the organization of the

15  anti-fraud investigative unit, if applicable, including the

16  position titles and descriptions of staffing.

17         (d)  The rationale for the level of staffing and

18  resources being provided for the anti-fraud investigative

19  unit, which may include objective criteria such as number of

20  policies written, number of claims received on an annual

21  basis, volume of suspected fraudulent claims currently being

22  detected, other factors, and an assessment of optimal caseload

23  that can be handled by an investigator on an annual basis.

24         (e)  The in-service education and training provided to

25  underwriting and claims personnel to assist in identifying and

26  evaluating instances of suspected fraudulent activity in

27  underwriting or claims activities.

28         (f)  A description of a public awareness program

29  focused on the costs and frequency of insurance fraud and

30  methods by which the public can prevent it.

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    Florida Senate - 2003                                  SB 50-A
    4-2575B-03                             See HB 25A, Engrossed 1




 1         (7)  If an insurer fails to submit a final anti-fraud

 2  plan or otherwise fails to submit a plan, fails to implement

 3  the provisions of a plan or an anti-fraud investigative unit,

 4  or otherwise refuses to comply with the provisions of this

 5  section, the department may:

 6         (a)  Impose an administrative fine of not more than

 7  $2,000 per day for such failure by an insurer, until the

 8  department deems the insurer to be in compliance;

 9         (b)  Impose upon the insurer a fraud detection and

10  prevention plan that is deemed to be appropriate by the

11  department and that must be implemented by the insurer; or

12         (c)  Impose the provisions of both paragraphs (a) and

13  (b).

14         (8)  The department may adopt rules to administer this

15  section.

16         Section 45.  Section 440.1925, Florida Statutes, is

17  repealed.

18         Section 46.  The amendments to sections 440.02 and

19  440.15, Florida Statutes, which are made by this act shall not

20  be construed to affect any determination of disability under

21  section 112.18, section 112.181, or section 112.19, Florida

22  Statutes.

23         Section 47.  If any law amended by this act was also

24  amended by a law enacted at the 2003 Regular Session of the

25  Legislature, such laws shall be construed as if they had been

26  enacted at the same session of the Legislature, and full

27  effect shall be given to each if possible.

28         Section 48.  Except as otherwise provided herein, this

29  act shall take effect October 1, 2003.

30  

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