Florida Senate - 2006                      COMMITTEE AMENDMENT
    Bill No. SB 2118
                        Barcode 091992
                            CHAMBER ACTION
              Senate                               House
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 1           Comm: WD              .                    
       03/27/2006 01:45 PM         .                    
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11  The Committee on Banking and Insurance (Garcia) recommended
12  the following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Subsections (5), (6), and (7) of section
19  627.311, Florida Statutes, are amended to read:
20         627.311  Joint underwriters and joint reinsurers;
21  public records and public meetings exemptions.--
22         (5)(a)  The office shall, after consultation with
23  insurers, approve a joint underwriting plan of insurers which
24  shall operate as the Florida Workers' Compensation Joint
25  Underwriting Association, a nonprofit entity. For the purposes
26  of this subsection, the term "insurer" includes group
27  self-insurance funds authorized by s. 624.4621, commercial
28  self-insurance funds authorized by s. 624.462, assessable
29  mutual insurers authorized under s. 628.6011, and insurers
30  licensed to write workers' compensation and employer's
31  liability insurance in this state. The purpose of the plan is
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Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 to provide workers' compensation and employer's liability 2 insurance to applicants who are required by law to maintain 3 workers' compensation and employer's liability insurance and 4 who are in good faith entitled to but who are unable to 5 procure such insurance through the voluntary market. Except as 6 provided herein, the plan must have actuarially sound rates 7 that ensure that the plan is self-supporting. 8 (b) The operation of the plan is subject to the 9 supervision of a 9-member board of governors. Each member 10 described in subparagraph 1., subparagraph 2., subparagraph 11 3., or subparagraph 5. shall be appointed by the Financial 12 Services Commission and shall serve at the pleasure of the 13 commission. The board of governors shall be comprised of: 14 1. Three members appointed by the Financial Services 15 Commission. Each member appointed by the commission shall 16 serve at the pleasure of the commission; 17 1.2. Two representatives of the 20 domestic insurers, 18 as defined in s. 624.06(1), having the largest voluntary 19 direct premiums written in this state for workers' 20 compensation and employer's liability insurance, which shall 21 be elected by those 20 domestic insurers; 22 2.3. Two representatives of the 20 foreign insurers as 23 defined in s. 624.06(2) having the largest voluntary direct 24 premiums written in this state for workers' compensation and 25 employer's liability insurance, which shall be elected by 26 those 20 foreign insurers; 27 3.4. One representative of person appointed by the 28 largest property and casualty insurance agents' association in 29 this state; and 30 4.5. The consumer advocate appointed under s. 627.0613 31 or the consumer advocate's designee; and. 2 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 5. Three other persons appointed by the commission. 2 3 Each board member shall be appointed to serve a 4-year term 4 and may be appointed to serve consecutive terms. A vacancy on 5 the board shall be filled in the same manner as the original 6 appointment for the unexpired portion of the term. The 7 Financial Services Commission shall designate a member of the 8 board to serve as chair. No board member shall be an insurer 9 which provides services to the plan or which has an affiliate 10 which provides services to the plan or which is serviced by a 11 service company or third-party administrator which provides 12 services to the plan or which has an affiliate which provides 13 services to the plan. The meetings and records minutes, 14 audits, and procedures of the board of governors and plan are 15 subject to chapters chapter 119 and 286, unless otherwise 16 exempted by law. 17 (c) The operation of the plan shall be governed by a 18 plan of operation that is prepared at the direction of the 19 board of governors and approved by order of the office. The 20 plan is subject to continuous review by the office. The office 21 may, by order, withdraw approval of all or part of a plan if 22 the office determines that conditions have changed since 23 approval was granted and that the purposes of the plan require 24 changes in the plan. The plan of operation may be changed at 25 any time by the board of governors or upon request of the 26 office. The plan of operation and all changes thereto are 27 subject to the approval of the office. The plan of operation 28 shall: 29 1. Authorize the board to engage in the activities 30 necessary to implement this subsection, including, but not 31 limited to, borrowing money. 3 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 2. Develop criteria for eligibility for coverage by 2 the plan, including, but not limited to, documented rejection 3 by at least two insurers which reasonably assures that 4 insureds covered under the plan are unable to acquire coverage 5 in the voluntary market. 6 3. Require notice from the agent to the insured at the 7 time of the application for coverage that the application is 8 for coverage with the plan and that coverage may be available 9 through an insurer, group self-insurers' fund, commercial 10 self-insurance fund, or assessable mutual insurer through 11 another agent at a lower cost. 12 4. Establish programs to encourage insurers to provide 13 coverage to applicants of the plan in the voluntary market and 14 to insureds of the plan, including, but not limited to: 15 a. Establishing procedures for an insurer to use in 16 notifying the plan of the insurer's desire to provide coverage 17 to applicants to the plan or existing insureds of the plan and 18 in describing the types of risks in which the insurer is 19 interested. The description of the desired risks must be on a 20 form developed by the plan. 21 b. Developing forms and procedures that provide an 22 insurer with the information necessary to determine whether 23 the insurer wants to write particular applicants to the plan 24 or insureds of the plan. 25 c. Developing procedures for notice to the plan and 26 the applicant to the plan or insured of the plan that an 27 insurer will insure the applicant or the insured of the plan, 28 and notice of the cost of the coverage offered; and developing 29 procedures for the selection of an insuring entity by the 30 applicant or insured of the plan. 31 d. Provide for a market-assistance plan to assist in 4 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 the placement of employers. All applications for coverage in 2 the plan received 45 days before the effective date for 3 coverage shall be processed through the market-assistance 4 plan. A market-assistance plan specifically designed to serve 5 the needs of small, good policyholders as defined by the board 6 must be reviewed and updated periodically finalized by January 7 1, 1994. 8 5. Provide for policy and claims services to the 9 insureds of the plan of the nature and quality provided for 10 insureds in the voluntary market. 11 6. Provide for the review of applications for coverage 12 with the plan for reasonableness and accuracy, using any 13 available historic information regarding the insured. 14 7. Provide for procedures for auditing insureds of the 15 plan which are based on reasonable business judgment and are 16 designed to maximize the likelihood that the plan will collect 17 the appropriate premiums. 18 8. Authorize the plan to terminate the coverage of and 19 refuse future coverage for any insured that submits a 20 fraudulent application to the plan or provides fraudulent or 21 grossly erroneous records to the plan or to any service 22 provider of the plan in conjunction with the activities of the 23 plan. 24 9. Establish service standards for agents who submit 25 business to the plan. 26 10. Establish criteria and procedures to prohibit any 27 agent who does not adhere to the established service standards 28 from placing business with the plan or receiving, directly or 29 indirectly, any commissions for business placed with the plan. 30 11. Provide for the establishment of reasonable safety 31 programs for all insureds in the plan. All insureds of the 5 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 plan must participate in the safety program. 2 12. Authorize the plan to terminate the coverage of 3 and refuse future coverage to any insured who fails to pay 4 premiums or surcharges when due; who, at the time of 5 application, is delinquent in payments of workers' 6 compensation or employer's liability insurance premiums or 7 surcharges owed to an insurer, group self-insurers' fund, 8 commercial self-insurance fund, or assessable mutual insurer 9 licensed to write such coverage in this state; or who refuses 10 to substantially comply with any safety programs recommended 11 by the plan. 12 13. Authorize the board of governors to provide the 13 goods and services required by the plan through staff employed 14 by the plan, through reasonably compensated service providers 15 who contract with the plan to provide services as specified by 16 the board of governors, or through a combination of employees 17 and service providers. 18 9. The procurement of goods with a value of less than 19 $2,500 shall be carried out using good purchasing practices, 20 such as the receipt of written quotes or written records of 21 telephone quotes. Purchases that equal or exceed $2,500 but 22 are less than or equal to $25,000, may be made by using best 23 purchasing practices, such as receipt of written quotes, 24 written record of telephone quotes, or informal bids, whenever 25 practical. The procurement of goods or services valued over 26 $25,000 are subject to competitive solicitation, except in 27 situations in which the goods or services are provided by a 28 sole source or are deemed an emergency purchase, or the 29 services are exempted from competitive solicitation 30 requirements under s. 287.057(5)(f). Justification for the 31 sole-sourcing or emergency procurement must be documented. 6 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 Contracts for goods or services valued at or over $100,000 are 2 subject to board approval. 3 b. In determining whether legal services should be 4 provided by staff attorneys or outsourced to private 5 attorneys, the plan shall consider the following factors: 6 (I) The nature of the attorney services to be provided 7 and the issues involved. 8 (II) The need for use of private attorneys, rather 9 than staff attorneys, using the criteria provided in 10 sub-subparagraph c. 11 (III) The criteria by which the plan selected the 12 private attorney or law firm it proposes to employ, using the 13 criteria provided in sub-subparagraph c. 14 (IV) Competitive fees for similar attorney services. 15 (V) The plan's analysis estimating the number of hours 16 for attorney services, the costs, the total contract amount, 17 and, when appropriate, a risk or cost-benefit analysis. 18 (VI) Which partners, associates, paralegals, research 19 associates, or other personnel will be used and how their time 20 will be billed to the plan. 21 (VII) Any other information that the plan deems 22 appropriate for the proper evaluation of the need for such 23 private attorney services. 24 c. The plan shall use the following criteria when 25 selecting outside firms for attorney services: 26 (I) The magnitude or complexity of the case. 27 (II) The firm's rating and certifications. 28 (III) The firm's minority status. 29 (IV) The firm's physical proximity to the case and the 30 plan. 31 (V) The firm's prior experience with the plan. 7 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 (VI) The firm's prior experience with similar cases or 2 issues. 3 (VII) The firm's billing methodology and proposed 4 rate. 5 (VIII) The firm's current or past adversarial 6 position, or conflict of interest, with the plan. 7 (IX) The firm's willingness to use resources of the 8 plan to minimize costs. 9 d. The plan may not retain a lobbyist to represent it 10 before the legislative or executive branch. However, full-time 11 employees of the plan may register as lobbyists and represent 12 that employer before the legislative or executive branch. 13 14. Provide for service standards for service 14 providers, methods of determining adherence to those service 15 standards, incentives and disincentives for service, and 16 procedures for terminating contracts for service providers 17 that fail to adhere to service standards. 18 15. Provide procedures for selecting service providers 19 and standards for qualification as a service provider that 20 reasonably assure that any service provider selected will 21 continue to operate as an ongoing concern and is capable of 22 providing the specified services in the manner required. 23 16. Provide for reasonable accounting and 24 data-reporting practices. 25 17. Provide for annual review of costs associated with 26 the administration and servicing of the policies issued by the 27 plan to determine alternatives by which costs can be reduced. 28 18. Authorize the acquisition of such excess insurance 29 or reinsurance as is consistent with the purposes of the plan. 30 19. Provide for an annual report to the office on a 31 date specified by the office and containing such information 8 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 as the office reasonably requires. 2 20. Establish multiple rating plans for various 3 classifications of risk which reflect risk of loss, hazard 4 grade, actual losses, size of premium, and compliance with 5 loss control. At least one of such plans must be a 6 preferred-rating plan to accommodate small-premium 7 policyholders with good experience as defined in 8 sub-subparagraph 22.a. 9 21. Establish agent commission schedules. 10 22. For employers otherwise eligible for coverage 11 under the plan, establish three tiers of employers meeting the 12 criteria and subject to the rate limitations specified in this 13 subparagraph. 14 a. Tier One.-- 15 (I) Criteria; rated employers.--An employer that has 16 an experience modification rating shall be included in Tier 17 One if the employer meets all of the following: 18 (A) The experience modification is below 1.00. 19 (B) The employer had no lost-time claims subsequent to 20 the applicable experience modification rating period. 21 (C) The total of the employer's medical-only claims 22 subsequent to the applicable experience modification rating 23 period did not exceed 20 percent of premium. 24 (II) Criteria; non-rated employers.--An employer that 25 does not have an experience modification rating shall be 26 included in Tier One if the employer meets all of the 27 following: 28 (A) The employer had no lost-time claims for the 29 3-year period immediately preceding the inception date or 30 renewal date of the employer's coverage under the plan. 31 (B) The total of the employer's medical-only claims 9 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 for the 3-year period immediately preceding the inception date 2 or renewal date of the employer's coverage under the plan did 3 not exceed 20 percent of premium. 4 (C) The employer has secured workers' compensation 5 coverage for the entire 3-year period immediately preceding 6 the inception date or renewal date of the employer's coverage 7 under the plan. 8 (D) The employer is able to provide the plan with a 9 loss history generated by the employer's prior workers' 10 compensation insurer, except if the employer is not able to 11 produce a loss history due to the insolvency of an insurer, 12 the receiver shall provide to the plan, upon the request of 13 the employer or the employer's agent, a copy of the employer's 14 loss history from the records of the insolvent insurer if the 15 loss history is contained in records of the insurer which are 16 in the possession of the receiver. If the receiver is unable 17 to produce the loss history, the employer may, in lieu of the 18 loss history, submit an affidavit from the employer and the 19 employer's insurance agent setting forth the loss history. 20 (E) The employer is not a new business. 21 (III) Premiums.--The premiums for Tier One insureds 22 shall be set at a premium level 25 percent above the 23 comparable voluntary market premiums until the plan has 24 sufficient experience as determined by the board to establish 25 an actuarially sound rate for Tier One, at which point the 26 board shall, subject to paragraph (e), adjust the rates, if 27 necessary, to produce actuarially sound rates, provided such 28 rate adjustment shall not take effect prior to January 1, 29 2007. 30 b. Tier Two.-- 31 (I) Criteria; rated employers.--An employer that has 10 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 an experience modification rating shall be included in Tier 2 Two if the employer meets all of the following: 3 (A) The experience modification is equal to or greater 4 than 1.00 but not greater than 1.10. 5 (B) The employer had no lost-time claims subsequent to 6 the applicable experience modification rating period. 7 (C) The total of the employer's medical-only claims 8 subsequent to the applicable experience modification rating 9 period did not exceed 20 percent of premium. 10 (II) Criteria; non-rated employers.--An employer that 11 does not have any experience modification rating shall be 12 included in Tier Two if the employer is a new business. An 13 employer shall be included in Tier Two if the employer has 14 less than 3 years of loss experience in the 3-year period 15 immediately preceding the inception date or renewal date of 16 the employer's coverage under the plan and the employer meets 17 all of the following: 18 (A) The employer had no lost-time claims for the 19 3-year period immediately preceding the inception date or 20 renewal date of the employer's coverage under the plan. 21 (B) The total of the employer's medical-only claims 22 for the 3-year period immediately preceding the inception date 23 or renewal date of the employer's coverage under the plan did 24 not exceed 20 percent of premium. 25 (C) The employer is able to provide the plan with a 26 loss history generated by the workers' compensation insurer 27 that provided coverage for the portion or portions of such 28 period during which the employer had secured workers' 29 compensation coverage, except if the employer is not able to 30 produce a loss history due to the insolvency of an insurer, 31 the receiver shall provide to the plan, upon the request of 11 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 the employer or the employer's agent, a copy of the employer's 2 loss history from the records of the insolvent insurer if the 3 loss history is contained in records of the insurer which are 4 in the possession of the receiver. If the receiver is unable 5 to produce the loss history, the employer may, in lieu of the 6 loss history, submit an affidavit from the employer and the 7 employer's insurance agent setting forth the loss history. 8 (III) Premiums.--The premiums for Tier Two insureds 9 shall be set at a rate level 50 percent above the comparable 10 voluntary market premiums until the plan has sufficient 11 experience as determined by the board to establish an 12 actuarially sound rate for Tier Two, at which point the board 13 shall, subject to paragraph (e), adjust the rates, if 14 necessary, to produce actuarially sound rates, provided such 15 rate adjustment shall not take effect prior to January 1, 16 2007. 17 c. Tier Three.-- 18 (I) Eligibility.--An employer shall be included in 19 Tier Three if the employer does not meet the criteria for Tier 20 One or Tier Two. 21 (II) Rates.--The board shall establish, subject to 22 paragraph (e), and the plan shall charge, actuarially sound 23 rates for Tier Three insureds. 24 23. For Tier One or Tier Two employers which employ no 25 nonexempt employees or which report payroll which is less than 26 the minimum wage hourly rate for one full-time employee for 1 27 year at 40 hours per week, the plan shall establish 28 actuarially sound premiums, provided, however, that the 29 premiums may not exceed $2,500. These premiums shall be in 30 addition to the fee specified in subparagraph 26. When the 31 plan establishes actuarially sound rates for all employers in 12 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 Tier One and Tier Two, the premiums for employers referred to 2 in this paragraph are no longer subject to the $2,500 cap. 3 24. Provide for a depopulation program to reduce the 4 number of insureds in the plan. If an employer insured through 5 the plan is offered coverage from a voluntary market carrier: 6 a. During the first 30 days of coverage under the 7 plan; 8 b. Before a policy is issued under the plan; 9 c. By issuance of a policy upon expiration or 10 cancellation of the policy under the plan; or 11 d. By assumption of the plan's obligation with respect 12 to an in-force policy, 13 14 that employer is no longer eligible for coverage through the 15 plan. The premium for risks assumed by the voluntary market 16 carrier must be no greater than the premium the insured would 17 have paid under the plan, and shall be adjusted upon renewal 18 to reflect changes in the plan rates and the tier for which 19 the insured would qualify as of the time of renewal. The 20 insured may be charged such premiums only for the first 3 21 years of coverage in the voluntary market. A premium under 22 this subparagraph is deemed approved and is not an excess 23 premium for purposes of s. 627.171. 24 25. Require that policies issued and applications must 25 include a notice that the policy could be replaced by a policy 26 issued from a voluntary market carrier and that, if an offer 27 of coverage is obtained from a voluntary market carrier, the 28 policyholder is no longer eligible for coverage through the 29 plan. The notice must also specify that acceptance of coverage 30 under the plan creates a conclusive presumption that the 31 applicant or policyholder is aware of this potential. 13 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 26. Require that each application for coverage and 2 each renewal premium be accompanied by a nonrefundable fee of 3 $475 to cover costs of administration and fraud prevention. 4 The board may, with the prior approval of the office, increase 5 the amount of the fee pursuant to a rate filing to reflect 6 increased costs of administration and fraud prevention. The 7 fee is not subject to commission and is fully earned upon 8 commencement of coverage. 9 (d)1. The funding of the plan shall include premiums 10 as provided in subparagraph (c)22. and assessments as provided 11 in this paragraph. 12 2.a. If the board determines that a deficit exists in 13 Tier One or Tier Two or that there is any deficit remaining 14 attributable to any of the plan's former subplans and that the 15 deficit cannot be fully funded by using policyholder surplus 16 attributable to former subplan C or, if the surplus in the 17 former subplan C does not fully fund the deficit and the 18 deficit cannot be fully funded by using any remaining funds in 19 the contingency reserve without the use of deficit 20 assessments, the board shall request the office to levy, by 21 order, a deficit assessment against premiums charged to 22 insureds for workers' compensation insurance by insurers as 23 defined in s. 631.904(5). The office shall issue the order 24 after verifying the amount of the deficit. The assessment 25 shall be specified as a percentage of future premium 26 collections, as recommended by the board and approved by the 27 office. The same percentage shall apply to premiums on all 28 workers' compensation policies issued or renewed during the 29 12-month period beginning on the effective date of the 30 assessment, as specified in the order. 31 b. With respect to each insurer collecting premiums 14 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 that are subject to the assessment, the insurer shall collect 2 the assessment at the same time as the insurer collects the 3 premium payment for each policy and shall remit the 4 assessments collected to the plan as provided in the order 5 issued by the office. The office shall verify the accurate and 6 timely collection and remittance of deficit assessments and 7 shall report such information to the board. Each insurer 8 collecting assessments shall provide such information with 9 respect to premiums and collections as may be required by the 10 office to enable the office to monitor and audit compliance 11 with this paragraph. 12 c. Deficit assessments are not considered part of an 13 insurer's rate, are not premium, and are not subject to the 14 premium tax, to the assessments under ss. 440.49 and 440.51, 15 to the surplus lines tax, to any fees, or to any commissions. 16 The deficit assessment imposed shall become plan funds at the 17 moment of collection and shall not constitute income to the 18 insurer for any purpose, including financial reporting on the 19 insurer's income statement. An insurer is liable for all 20 assessments that the insurer collects and must treat the 21 failure of an insured to pay an assessment as a failure to pay 22 premium. An insurer is not liable for uncollectible 23 assessments. 24 d. When an insurer is required to return unearned 25 premium, the insurer shall also return any collected 26 assessments attributable to the unearned premium. 27 e. Deficit assessments as described in this 28 subparagraph shall not be levied after July 1, 2011 2007. 29 3.a. All policies issued to Tier Three insureds shall 30 be assessable. All Tier Three assessable policies must be 31 clearly identified as assessable by containing, in contrasting 15 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 color and in not less than 10-point type, the following 2 statement: 3 4 "This is an assessable policy. If the plan is 5 unable to pay its obligations, policyholders 6 will be required to contribute on a pro rata 7 earned premium basis the money necessary to 8 meet any assessment levied." 9 10 b. The board may from time to time assess Tier Three 11 insureds to whom the plan has issued assessable policies for 12 the purpose of funding plan deficits. Any such assessment 13 shall be based upon a reasonable actuarial estimate of the 14 amount of the deficit, taking into account the amount needed 15 to fund medical and indemnity reserves and reserves for 16 incurred but not reported claims, and allowing for general 17 administrative expenses, the cost of levying and collecting 18 the assessment, a reasonable allowance for estimated 19 uncollectible assessments, and allocated and unallocated loss 20 adjustment expenses. 21 c. Each Tier Three insured's share of a deficit shall 22 be computed by applying to the premium earned on the insured's 23 policy or policies during the period to be covered by the 24 assessment the ratio of the total deficit to the total 25 premiums earned during such period upon all policies subject 26 to the assessment. If one or more Tier Three insureds fail to 27 pay an assessment, the other Tier Three insureds shall be 28 liable on a proportionate basis for additional assessments to 29 fund the deficit. The plan may compromise and settle 30 individual assessment claims without affecting the validity of 31 or amounts due on assessments levied against other insureds. 16 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 The plan may offer and accept discounted payments for 2 assessments which are promptly paid. The plan may offset the 3 amount of any unpaid assessment against unearned premiums 4 which may otherwise be due to an insured. The plan shall 5 institute legal action when necessary and appropriate to 6 collect the assessment from any insured who fails to pay an 7 assessment when due. 8 d. The venue of a proceeding to enforce or collect an 9 assessment or to contest the validity or amount of an 10 assessment shall be in the Circuit Court of Leon County. 11 e. If the board finds that a deficit in Tier Three 12 exists for any period and that an assessment is necessary, the 13 board shall certify to the office the need for an assessment. 14 No sooner than 30 days after the date of such certification, 15 the board shall notify in writing each insured who is to be 16 assessed that an assessment is being levied against the 17 insured, and informing the insured of the amount of the 18 assessment, the period for which the assessment is being 19 levied, and the date by which payment of the assessment is 20 due. The board shall establish a date by which payment of the 21 assessment is due, which shall be no sooner than 30 days nor 22 later than 120 days after the date on which notice of the 23 assessment is mailed to the insured. 24 f. Whenever the board makes a determination that the 25 plan does not have a sufficient cash basis to meet 6 3 months 26 of projected cash needs due to a deficit in Tier Three, the 27 board may request the department to transfer funds from the 28 Workers' Compensation Administration Trust Fund to the plan in 29 an amount sufficient to fund the difference between the amount 30 available and the amount needed to meet a 6-month 3-month 31 projected cash need as determined by the board and verified by 17 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 the office, subject to the approval of the Legislative Budget 2 Commission. If the Legislative Budget Commission approves a 3 transfer of funds under this sub-subparagraph, the plan shall 4 report to the Legislature the transfer of funds and the 5 Legislature shall review the plan during the next legislative 6 session or the current legislative session, if the transfer 7 occurs during a legislative session. This sub-subparagraph 8 shall not apply until the plan determines and the office 9 verifies that assessments collected by the plan pursuant to 10 sub-subparagraph b. are insufficient to fund the deficit in 11 Tier Three and to meet 6 3 months of projected cash needs. 12 4. The plan may offer rating, dividend plans, and 13 other plans to encourage loss prevention programs. 14 (e) For rates and rating plans effective on or after 15 January 1, 2007, the plan shall be subject to the same 16 requirements of this part for the filing and approval of its 17 rates and rating plans as apply to workers' compensation 18 insurers, except as otherwise provided. establish and use its 19 rates and rating plans, and the plan may establish and use 20 changes in rating plans at any time, but no more frequently 21 than two times per any rating class for any calendar year. By 22 December 1, 1993, and December 1 of each year thereafter, 23 except as provided in subparagraph (c)22., the board shall 24 establish and use actuarially sound rates for use by the plan 25 to assure that the plan is self-funding while those rates are 26 in effect. Such rates and rating plans must be filed with the 27 office within 30 calendar days after their effective dates, 28 and shall be considered a "use and file" filing. Any 29 disapproval by the office must have an effective date that is 30 at least 60 days from the date of disapproval of the rates and 31 rating plan and must have prospective effect only. The plan 18 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 may not be subject to any order by the office to return to 2 policyholders any portion of the rates disapproved by the 3 office. The office may not disapprove any rates or rating 4 plans unless it demonstrates that such rates and rating plans 5 are excessive, inadequate, or unfairly discriminatory. 6 (f) No later than June 1 of each year, the plan shall 7 obtain an independent actuarial certification of the results 8 of the operations of the plan for prior years, and shall 9 furnish a copy of the certification to the office. If, after 10 the effective date of the plan, the projected ultimate 11 incurred losses and expenses and dividends for prior years 12 exceed collected premiums, accrued net investment income, and 13 prior assessments for prior years, the certification is 14 subject to review and approval by the office before it becomes 15 final. 16 (g) Whenever a deficit exists, the plan shall, within 17 90 days, provide the office with a program to eliminate the 18 deficit within a reasonable time. The deficit may be funded 19 through increased premiums charged to insureds of the plan for 20 subsequent years, through the use of policyholder surplus 21 attributable to any year, including policyholder surplus in 22 former subplan C as authorized in subparagraph (d)2., through 23 the use of assessments as provided in subparagraph (d)2., and 24 through assessments on assessable policies as provided in 25 subparagraph (d)3. Policyholders in former subplan C shall not 26 be subject to any assessments. 27 (h) Any premium or assessments collected by the plan 28 in excess of the amount necessary to fund projected ultimate 29 incurred losses and expenses of the plan and not paid to 30 insureds of the plan in conjunction with loss prevention or 31 dividend programs shall be retained by the plan for future 19 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 use. Any state funds received by the plan in excess of the 2 amount necessary to fund deficits in subplan D or any tier 3 shall be returned to the state. 4 (i) The decisions of the board of governors do not 5 constitute final agency action and are not subject to chapter 6 120. 7 (j) Policies for insureds shall be issued by the plan. 8 (k) The plan created under this subsection is liable 9 only for payment for losses arising under policies issued by 10 the plan with dates of accidents occurring on or after January 11 1, 1994. 12 (l) Plan losses are the sole and exclusive 13 responsibility of the plan, and payment for such losses must 14 be funded in accordance with this subsection and must not 15 come, directly or indirectly, from insurers or any guaranty 16 association for such insurers. 17 (m) Senior managers and officers, as defined in the 18 plan of operation, and members of the board of governors shall 19 be subject to part III of ch. 112, including, but not limited 20 to, the code of ethics and public disclosure and reporting of 21 financial interests, pursuant to s. 112.3145. Senior managers, 22 officers, and board members are also required to file such 23 disclosures with the Office of Insurance Regulation. The 24 executive director of the plan or his or her designee shall 25 notify each newly appointed and existing appointed member of 26 the board of governors, senior manager and officer of their 27 duty to comply with the reporting requirements of part III of 28 ch. 112. At least quarterly, the executive director of the 29 plan or his or her designee shall submit to the Commission on 30 Ethics a list of names of the senior managers, officers, 31 members of the board of governors that are subject to the 20 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 public disclosure requirements under s. 112.3145. Each joint 2 underwriting plan or association created under this section is 3 not a state agency, board, or commission. However, for the 4 purposes of s. 199.183(1) only, the joint underwriting plan is 5 a political subdivision of the state and is exempt from the 6 corporate income tax. 7 (n) On or before July 1 of each year, employees of the 8 plan are required to sign and submit a statement to the plan 9 attesting that they do not have a conflict of interest, as 10 defined in part III of ch. 112. As a condition of employment, 11 all prospective employees are required to sign and submit a 12 conflict-of-interest statement to the plan. Each joint 13 underwriting plan or association may elect to pay premium 14 taxes on the premiums received on its behalf or may elect to 15 have the member insurers to whom the premiums are allocated 16 pay the premium taxes if the member insurer had written the 17 policy. The joint underwriting plan or association shall 18 notify the member insurers and the Department of Revenue by 19 January 15 of each year of its election for the same year. As 20 used in this paragraph, the term "premiums received" means the 21 consideration for insurance, by whatever name called, but does 22 not include any policy assessment or surcharge received by the 23 joint underwriting association as a result of apportioning 24 losses or deficits of the association pursuant to this 25 section. 26 (o) Any senior manager or officer of the plan who is 27 employed by the plan as of January 1, 2007, regardless of the 28 date of hire, and who subsequently retires or terminates 29 employment is prohibited from representing another person or 30 entity before the plan for 2 years after retirement or 31 termination of employment from the plan. 21 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 (p) No part of the income of the plan may inure to the 2 benefit of any private person. 3 (q) Notwithstanding ss. 112.3148 and 112.3149 or other 4 provision of law, an employee or board member may not 5 knowingly accept, directly or indirectly, any expenditure from 6 a lobbyist or his or her principal. An employee or board 7 member that fails to comply with this paragraph is subject to 8 penalties provided under ss. 112.317 and 112.3173. 9 (r) Nothing contained in this section shall be 10 construed as barring the plan from providing insurance 11 coverage to any employer with whom a former employee of the 12 plan is affiliated or employing or reemploying any former 13 employee of the plan in a part-time, full-time, temporary, or 14 permanent capacity, so long as such employment does not 15 violate any provision of part III of ch. 112. 16 (s)(o) Neither the plan nor any member of the board of 17 governors is liable for monetary damages to any person for any 18 statement, vote, decision, or failure to act, regarding the 19 management or policies of the plan, unless: 20 1. The member breached or failed to perform her or his 21 duties as a member; and 22 2. The member's breach of, or failure to perform, 23 duties constitutes: 24 a. A violation of the criminal law, unless the member 25 had reasonable cause to believe her or his conduct was not 26 unlawful. A judgment or other final adjudication against a 27 member in any criminal proceeding for violation of the 28 criminal law estops that member from contesting the fact that 29 her or his breach, or failure to perform, constitutes a 30 violation of the criminal law; but does not estop the member 31 from establishing that she or he had reasonable cause to 22 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 believe that her or his conduct was lawful or had no 2 reasonable cause to believe that her or his conduct was 3 unlawful; 4 b. A transaction from which the member derived an 5 improper personal benefit, either directly or indirectly; or 6 c. Recklessness or any act or omission that was 7 committed in bad faith or with malicious purpose or in a 8 manner exhibiting wanton and willful disregard of human 9 rights, safety, or property. For purposes of this 10 sub-subparagraph, the term "recklessness" means the acting, or 11 omission to act, in conscious disregard of a risk: 12 (I) Known, or so obvious that it should have been 13 known, to the member; and 14 (II) Known to the member, or so obvious that it should 15 have been known, to be so great as to make it highly probable 16 that harm would follow from such act or omission. 17 (t)(p) No insurer shall provide workers' compensation 18 and employer's liability insurance to any person who is 19 delinquent in the payment of premiums, assessments, penalties, 20 or surcharges owed to the plan or to any person who is an 21 affiliated person of a person who is delinquent in the payment 22 of premiums, assessments, penalties, or surcharges owed to the 23 plan. For purposes of this paragraph, the term "affiliated 24 person" of another person means: 25 1. The spouse of such other natural person; 26 2. Any person who directly or indirectly owns or 27 controls, or holds with the power to vote, 5 percent or more 28 of the outstanding voting securities of such other person; 29 3. Any person who directly or indirectly owns 5 30 percent or more of the outstanding voting securities that are 31 directly or indirectly owned or controlled, or held with the 23 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 power to vote, by such other person; 2 4. Any person or group of persons who directly or 3 indirectly control, are controlled by, or are under common 4 control with such other person; 5 5. Any officer, director, trustee, partner, owner, 6 manager, joint venturer, or employee, or other person 7 performing duties similar to persons in those positions, of 8 such other persons; or 9 6. Any person who has an officer, director, trustee, 10 partner, or joint venturer in common with such other person. 11 (u)(q) Effective July 1, 2004, the plan is exempt from 12 the premium tax under s. 624.509 and any assessments under ss. 13 440.49 and 440.51. 14 (v) The Office of Insurance Regulation shall perform a 15 comprehensive market conduct examination of the plan 16 periodically to determine compliance with its plan of 17 operation and internal operating policies and procedures. 18 (w) Upon dissolution, the assets of the plan shall be 19 applied first to pay all debts, liabilities, and obligations 20 of the plan, including the establishment of reasonable 21 reserves for any contingent liabilities or obligations, and 22 all remaining assets of the plan shall become property of the 23 state and shall be deposited in the Workers' Compensation 24 Administration Trust Fund. However, dissolution shall not take 25 effect as long as the plan has financial obligations 26 outstanding unless adequate provision has been made for the 27 payment of financial obligations pursuant to the documents 28 authorizing the financial obligations. 29 (6) Each joint underwriting plan or association 30 created under this section is not a state agency, board, or 31 commission. However, for the purposes of s. 199.183(1) only, 24 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 the joint underwriting plan created under subsection (5) is a 2 political subdivision of the state and is exempt from the 3 corporate income tax. 4 (7) Each joint underwriting plan or association may 5 elect to pay premium taxes on the premiums received on its 6 behalf or may elect to have the member insurers to whom the 7 premiums are allocated pay the premium taxes if the member 8 insurer had written the policy. The joint underwriting plan or 9 association shall notify the member insurers and the 10 Department of Revenue by January 15 of each year of its 11 election for the same year. As used in this paragraph, the 12 term "premiums received" means the consideration for 13 insurance, by whatever name called, but does not include any 14 policy assessment or surcharge received by the joint 15 underwriting association as a result of apportioning losses or 16 deficits of the association pursuant to this section. 17 (8)(6) As used in this section and ss. 215.555 and 18 627.351, the term "collateral protection insurance" means 19 commercial property insurance of which a creditor is the 20 primary beneficiary and policyholder and which protects or 21 covers an interest of the creditor arising out of a credit 22 transaction secured by real or personal property. Initiation 23 of such coverage is triggered by the mortgagor's failure to 24 maintain insurance coverage as required by the mortgage or 25 other lending document. Collateral protection insurance is not 26 residential coverage. 27 (9)(7)(a) The Florida Automobile Joint Underwriting 28 Association created under this section shall be deemed to have 29 appointed its general manager as its agent to receive service 30 of all legal process issued against the association in any 31 civil action or proceeding in this state. Process so served 25 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 shall be valid and binding upon the insurer. 2 (b) Service of process upon the association's general 3 manager as the association's agent pursuant to such an 4 appointment shall be the sole method of service of process 5 upon the association. 6 Section 2. Section 2 of chapter 2004-266, Laws of 7 Florida, appearing as a footnote to section 627.311, Florida 8 Statutes, is amended to read: 9 Notwithstanding the provisions of ss. 440.50 and 10 440.51, Florida Statutes, subject to the following procedures 11 and approval, the Department of Financial Services may request 12 transfer funds from the Workers' Compensation Administration 13 Trust Fund within the Department of Financial Services to the 14 workers' compensation joint underwriting plan provided in s. 15 627.311(5), Florida Statutes. 16 (1) The department shall establish a contingency 17 reserve within the Workers' Compensation Administration Trust 18 Fund, from which the department is authorized to expend funds 19 as provided in the subsection, in an amount not to exceed $15 20 million to be released only upon the approval of a budget 21 amendment presented to the Legislative Budget Commission. For 22 actuarial deficits projected for policyholders, based on 23 actuarial best estimates, covered in subplan "D" prior to July 24 1, 2004, and upon verification by the Office of Insurance 25 Regulation, the plan is authorized to request and the 26 department is authorized to submit a budget amendment in an 27 amount not to exceed $15 million for the purpose of funding 28 deficits in subplan "D". 29 (2) After the contingency reserve is established, 30 whenever the board determines subplan "D" does not have a 31 sufficient cash basis to meet a 6-month period 3 months of 26 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 projected cash needs due to any deficit in subplan "D," 2 remaining after accessing any policyholder surplus 3 attributable to former subplan C, the board is authorized to 4 request the department to transfer funds from the contingency 5 reserve fund within the Workers' Compensation Administration 6 Trust Fund to the plan in an amount sufficient to fund the 7 difference between the amount available and the amount needed 8 to meet subplan "D"'s projected cash need for the subsequent 9 6-month 3-month period. The board and the office must first 10 certify to the Department of Financial Services that there is 11 not sufficient cash within subplan "D" to meet the projected 12 cash needs in subplan "D" within the subsequent 6-month period 13 3 months. The amount requested for transfer to subplan "D" may 14 not exceed the difference between the amount available within 15 subplan "D" and the amount needed to meet subplan "D"'s 16 projected cash need for the subsequent 6-month 3-month period, 17 as jointly certified by the board and the Office of Insurance 18 Regulation to the Department of Financial Services, 19 attributable to the former subplan "D" policyholders. The 20 Department of Financial Services may submit a budget amendment 21 to request release of funds from the Workers' Compensation 22 Administration Trust Fund, subject to the approval of the 23 Legislative Budget Commission. The board will provide, for 24 review of the Legislative Budget Commission, information on 25 the reasonableness of the plan's administration, including, 26 but not limited to, the plan of operations and costs, claims 27 costs, claims administration costs, overhead costs, claims 28 reserves, and the latest report submitted on administration 29 cost reduction alternatives as required in s. 30 627.311(5)(c)17., Florida Statutes. 31 (3) This section expires July 1, 2011 2007. 27 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 Section 3. No later than January 1, 2007, the plan 2 shall submit a request to the Internal Revenue Service for a 3 letter ruling or determination on the plan's eligibility as a 4 section 501(c)(3) tax-exempt organization. 5 Section 4. Except as otherwise expressly provided in 6 this act, this act shall take effect July 1, 2006. 7 8 9 ================ T I T L E A M E N D M E N T =============== 10 And the title is amended as follows: 11 Delete everything before the enacting clause 12 13 and insert: 14 A bill to be entitled 15 An act relating to the Florida Workers' 16 Compensation Joint Underwriting Association; 17 amending s. 627.311, F.S.; providing 18 requirements for the joint underwriting plan of 19 insurers which operates as the association; 20 revising the membership of the board of 21 governors that oversees operation of the joint 22 underwriting plan; providing for continuous 23 review of the plan; requiring that the 24 market-assistance plan be periodically reviewed 25 and updated; providing guidelines for 26 procurement of goods and services, including 27 legal services; prohibiting hiring an outside 28 lobbyist; authorizing the use of surplus funds 29 of former plan C; extending the deadline to 30 access contingency reserves; authorizing the 31 board of the association to request a transfer 28 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 of funds from the Workers' Compensation 2 Administration Trust Fund under certain 3 circumstances; providing that the plan is 4 subject to the same requirements for filing and 5 approval of rating plans as workers' 6 compensation insurers; deleting certain 7 provisions limiting the disapproval of rates by 8 the Office of Insurance Regulation; requiring 9 that excess funds received by the plan be 10 returned to the state; providing applicability 11 of specified statutes regulating ethical 12 standards; requiring annual statements by plan 13 employees that they do not have conflicts of 14 interest; prescribing limits on representing 15 persons or entities before the plan by former 16 senior managers or officers of the plan; 17 prohibiting any part of the plan's income from 18 inuring to the benefit of a private individual; 19 prohibiting employees and board members from 20 accepting expenditures from a lobbyist or a 21 lobbyist's principal; providing applicability; 22 requiring periodic comprehensive market 23 examinations; prescribing disposition of assets 24 of the plan upon dissolution; amending s. 2 of 25 ch. 2004-266, Laws of Florida; extending the 26 period for maintaining the contingency reserve 27 and the period for projecting current cash 28 needs; requiring the plan to submit a request 29 for an Internal Revenue Service letter 30 concerning the plan's eligibility as a 31 tax-exempt organization; providing an effective 29 1:59 PM 03/17/06 s2118d-bi40-b02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2118 Barcode 091992 1 date. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 30 1:59 PM 03/17/06 s2118d-bi40-b02