Senate Bill sb1976c1

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    Florida Senate - 2006                           CS for SB 1976

    By the Committee on Banking and Insurance; and Senator Garcia





    597-2358-06

  1                      A bill to be entitled

  2         An act relating to public records and meetings;

  3         creating s. 627.3121, F.S.; providing an

  4         exemption from public-records requirements for

  5         certain records of the Florida Workers'

  6         Compensation Joint Underwriting Association,

  7         Inc.; authorizing the release of records that

  8         are confidential and exempt from disclosure to

  9         another agency in the performance of that

10         agency's official duties; requiring the

11         receiving agency to maintain the

12         confidentiality of the records; providing an

13         exemption from public-meetings requirements for

14         portions of a meeting of the association's

15         board of governors or a subcommittee during

16         which confidential records are discussed;

17         requiring that exempt portions of meetings be

18         recorded, transcribed, and maintained for a

19         specified period; providing for future

20         legislative review and repeal of the exemptions

21         under the Open Government Sunset Review Act;

22         providing a statement of public necessity;

23         providing a contingent effective date.

24  

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

26  

27         Section 1.  Section 627.3121, Florida Statutes, is

28  created to read:

29         627.3121  Public-records and public-meetings

30  exemptions.--

31  

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    Florida Senate - 2006                           CS for SB 1976
    597-2358-06




 1         (1)  The following records of the Florida Workers'

 2  Compensation Joint Underwriting Association, Inc., are

 3  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I

 4  of the State Constitution:

 5         (a)  Underwriting files, except that a policyholder or

 6  an applicant shall be provided access to his or her own

 7  underwriting files.

 8         (b)  Claims files until termination of all litigation

 9  and the settlement of all claims arising out of the same

10  accident, except that portions of the claims files may remain

11  exempt from disclosure if otherwise provided by law.

12         (c)  Medical records that are part of a claims file and

13  other information relating to the medical condition or medical

14  status of a claimant.

15         (d)  Records obtained or generated by an auditor

16  pursuant to a routine audit until the audit is completed or,

17  if the audit is conducted as part of an investigation, until

18  the investigation is closed or ceases to be active. An

19  investigation is considered "active" while the investigation

20  is being conducted with a reasonable, good-faith belief that

21  it could lead to the filing of administrative, civil, or

22  criminal proceedings.

23         (e)  Matters reasonably encompassed in privileged

24  attorney-client communications.

25         (f)  Proprietary information licensed to the

26  association under contract if the contract requires the

27  association to maintain the confidentiality of such

28  proprietary information.

29         (g)  All information relating to the medical condition

30  or medical status of an association employee which is not

31  relevant to the employee's capacity to perform his or her

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    Florida Senate - 2006                           CS for SB 1976
    597-2358-06




 1  duties, except as otherwise provided in this paragraph, and

 2  all information relating to the medical status of the

 3  employee's dependents. Information that is exempt under this

 4  paragraph includes, but is not limited to, information

 5  relating to a workers' compensation claims files, insurance

 6  benefits, and retirement or disability benefits.

 7         (h)  All records relative to an employee's

 8  participation in an employee assistance program upon the

 9  entrance of the employee into the program, except as otherwise

10  provided in s. 112.0455(11).

11         (i)  Information relating to negotiations for

12  financing, reinsurance, reinsurance commutation agreements,

13  depopulation, or contractual services until the conclusion of

14  the negotiations.

15         (j)  Minutes of exempt portions of meetings, as

16  provided in subsection (3), until termination of all

17  litigation with regard to that claim.

18         (k)  Reports provided to or submitted by the

19  association regarding suspected fraud or other criminal

20  activity and producer appeals and related reporting regarding

21  suspected misconduct until such investigation is closed or

22  ceases to be active.

23         (l)  Information secured from the Department of Revenue

24  regarding payroll information and client lists of employee

25  leasing companies obtained pursuant to ss. 440.381 and

26  468.529.

27  

28  Underwriting files and confidential claims files shall be

29  released to a carrier that is considering underwriting a risk

30  insured by the association, a producer seeking to place such a

31  risk with such a carrier, or another entity seeking to arrange

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    Florida Senate - 2006                           CS for SB 1976
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 1  voluntary market coverage for association risks if the

 2  carrier, producer, or other entity agrees in writing,

 3  notarized and under oath, to maintain the confidentiality of

 4  such files. When a file is transferred to a carrier, producer,

 5  or other entity, that file is no longer a public record

 6  because it is not held by an agency that is subject to the

 7  public-records law.

 8         (2)  Records or portions of records made confidential

 9  and exempt by this section may be released, upon written

10  request, to another agency in the performance of that agency's

11  official duties and responsibilities. The receiving agency

12  shall maintain the confidential and exempt status of such

13  record or portion of a record.

14         (3)  That portion of a meeting of the association's

15  board of governors, or any subcommittee of the association's

16  board, at which records made confidential and exempt by this

17  section are discussed is exempt from s. 286.011 and s. 24(b),

18  Art. I of the State Constitution. All exempt portions of

19  meetings shall be recorded and transcribed. The board shall

20  record the times of commencement and termination of the

21  meeting, all discussion and proceedings, the names of all

22  persons present at any time, and the names of all persons

23  speaking. An exempt portion of any meeting may not be off the

24  record. Subject to this section and s. 119.021(2), the court

25  reporter's notes of any exempt portion of a meeting shall be

26  retained by the association for a minimum of 5 years. A copy

27  of the transcript of any exempt portion of a meeting in which

28  claims files are discussed becomes a public record as to

29  individual claims after settlement of the claim, and any

30  confidential and exempt information shall be redacted.

31  

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    Florida Senate - 2006                           CS for SB 1976
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 1         (4)  This section is subject to the Open Government

 2  Sunset Review Act in accordance with s. 119.15, and shall

 3  stand repealed on October 2, 2011, unless reviewed and saved

 4  from repeal through reenactment by the Legislature.

 5         Section 2.  (1)  The Legislature finds that it is a

 6  public necessity to make certain records and meetings

 7  delineated in s. 627.3121, Florida Statutes, confidential and

 8  exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Art.

 9  I of the State Constitution. The Legislature finds that the

10  Florida Workers' Compensation Joint Underwriting Association,

11  Inc., was created to provide workers' compensation and

12  employer's liability insurance to applicants who are required

13  by law to maintain workers' compensation and employer's

14  liability insurance and who are in good faith entitled to but

15  are unable to procure such insurance through the voluntary

16  market. The Legislature finds that the exemption from

17  public-records requirements for open claims files of the

18  association is necessary for the effective and efficient

19  administration of an entity created to provide workers'

20  compensation and employer's liability insurance as described

21  in this section and in s. 627.311(5), Florida Statutes. Claims

22  files contain detailed information concerning the claim,

23  medical information, and other personal information concerning

24  the claimant, and also contain information detailing the

25  evaluation of the legitimacy of the claim, the extent of

26  incapacity, and a valuation of the award, if any, which should

27  be made. Information in a claims file that is held by the

28  association includes the medical records and other information

29  related to the medical condition or medical status of a

30  claimant. The Legislature finds that the claimants' medical

31  records and other medical-related information are personal and

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    Florida Senate - 2006                           CS for SB 1976
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 1  sensitive. Therefore, the Legislature finds that an exemption

 2  from public-records requirements for medical records and other

 3  information related to the medical condition or medical status

 4  of a claimant is a public necessity in order to protect a

 5  claimant's health-related information. Matters of personal

 6  health are traditionally a private and confidential concern.

 7  The release of the medical records of a claimant or personal

 8  identifying information concerning a claimant would violate

 9  the privacy of the individual or could cause unwarranted

10  damage to the name or reputation of the individual. When a

11  claim is contested, the work product of legal counsel may also

12  be included in the claims file in the form of direction to

13  claims professionals. Allowing the claimant or claimant's

14  lawyers access to the file, which could be used for purposes

15  of negotiation, claim evaluation, and settlement

16  considerations, would weaken the legal position of the

17  association and could result in higher awards and settlements

18  paid out by the association and ultimately contribute to the

19  creation of deficits to be funded by assessments against

20  certain association policyholders or all workers' compensation

21  policyholders. The Legislature finds that the internal-audit

22  process, and therefore accountability to the public, will be

23  damaged if records relating to an incomplete internal audit or

24  investigation are made public. The Legislature finds that

25  information relating to the medical, mental, or behavioral

26  condition of an employee of the association or the employee's

27  dependents is private and that matters of personal health are

28  traditionally a private and confidential concern. The

29  Legislature finds that if information regarding ongoing

30  negotiations for financing, reinsurance, contractual services,

31  or related matters were made public prior to the conclusion of

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    Florida Senate - 2006                           CS for SB 1976
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 1  the negotiations, the association's bargaining position would

 2  be severely damaged, resulting in additional cost to the

 3  association and the public. The Legislature finds that if

 4  reports of suspected fraudulent activity were made public,

 5  criminal investigations of insurance fraud would be harmed.

 6  The Legislature finds that payroll and client lists of

 7  businesses are traditionally private matters.

 8         (2)  The Legislature further finds that closing access

 9  to meetings of the board of directors of the association, or

10  of a subcommittee of the board, wherein matters made exempt

11  and confidential under s. 627.3121, Florida Statutes, are

12  discussed is essential to preserving the confidentiality of

13  such matters and enabling the association to carry out its

14  statutory duty of providing workers' compensation coverage.

15  The members of the board of governors act in a trustee

16  capacity and must take care that the assets of the association

17  are managed wisely. Their efforts to meet as a collegial body

18  in an open and frank setting that includes staff are thwarted

19  by the current requirement that such meetings be open.

20  Furthermore, discussion of confidential matters in an open and

21  public setting might reveal private, sensitive medical

22  information that is otherwise confidential.

23         Section 3.  This act shall take effect upon becoming a

24  law if SB 2118 or similar legislation is enacted during the

25  2006 Regular Session, or an extension thereof, and becomes

26  law.

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    Florida Senate - 2006                           CS for SB 1976
    597-2358-06




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1976

 3                                 

 4  1.   The committee substitute makes confidential and exempts
         the certain records and portions of meetings held by the
 5       Florida Workers' Compensation Joint Underwriting
         Association, Inc. (JUA), the insurer of last resort for
 6       employees who are unable to secure workers' compensation
         insurance coverage in the voluntary market.
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    2.   The bill provides statements of public necessity and
 8       provides for future review and repeal of the exemptions.

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