1 | A bill to be entitled |
2 | An act relating to the Florida Workers' Compensation Joint |
3 | Underwriting Association, Inc.; amending s. 627.311, F.S.; |
4 | designating the Florida Workers' Compensation Joint |
5 | Underwriting Association, Inc., as a plan of insurers |
6 | operating as a corporation not for profit; revising the |
7 | membership of the board of governors of the association; |
8 | requiring that the corporation's market-assistance plan be |
9 | periodically reviewed and updated; revising requirements |
10 | for goods and services provided by the plan; postponing an |
11 | expiration date for the authority to levy certain deficit |
12 | assessments; increasing the period for meeting certain |
13 | projected cash needs for meeting certain deficits; |
14 | revising rates and rate planning requirements; providing |
15 | circumstances under which policyholders of former subplan |
16 | C are exempt from certain assessments; providing for |
17 | return of certain funds in excess of amounts necessary to |
18 | fund deficits in subplan D or any tier; providing for |
19 | application of certain provisions of law relating to |
20 | ethics, public disclosure, and financial interest |
21 | reporting to senior managers and officers of the plan and |
22 | members of the board of governors of the association; |
23 | providing conflict of interest statement requirements for |
24 | plan employees; providing restrictions on certain persons |
25 | representing persons or entities before the plan; |
26 | prohibiting plan income from inuring to any person; |
27 | prohibiting plan employees or board members from accepting |
28 | gifts or expenditures; providing penalties; authorizing |
29 | the plan to provide insurance coverage to certain |
30 | employers or to employ or reemploy former employees under |
31 | certain conditions; requiring the Office of Insurance |
32 | Regulation to perform a periodic market conduct |
33 | examination of the plan for certain purposes; providing |
34 | for priority of application of plan assets upon |
35 | dissolution; providing a restriction on plan dissolution; |
36 | requiring the plan to request a federal determination of |
37 | its tax-exempt status; providing an effective date. |
38 |
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39 | Be It Enacted by the Legislature of the State of Florida: |
40 |
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41 | Section 1. Subsection (5) of section 627.311, Florida |
42 | Statutes, is amended, and subsections (8) and (9) are added to |
43 | that section, to read: |
44 | 627.311 Joint underwriters and joint reinsurers; public |
45 | records and public meetings exemptions.-- |
46 | (5)(a) The office shall, after consultation with insurers, |
47 | approve a joint underwriting plan of insurers which shall |
48 | operate as the Florida Workers' Compensation Joint Underwriting |
49 | Association, Inc., a nonprofit entity. For the purposes of this |
50 | subsection, the term "insurer" includes group self-insurance |
51 | funds authorized by s. 624.4621, commercial self-insurance funds |
52 | authorized by s. 624.462, assessable mutual insurers authorized |
53 | under s. 628.6011, and insurers licensed to write workers' |
54 | compensation and employer's liability insurance in this state. |
55 | The purpose of the plan is to provide workers' compensation and |
56 | employer's liability insurance to applicants who are required by |
57 | law to maintain workers' compensation and employer's liability |
58 | insurance and who are in good faith entitled to but who are |
59 | unable to procure such insurance through the voluntary market. |
60 | Except as provided herein, the plan must have actuarially sound |
61 | rates that ensure that the plan is self-supporting. |
62 | (b) The operation of the plan is subject to the |
63 | supervision of a 9-member board of governors. Each member |
64 | described in subparagraph 1., subparagraph 2., subparagraph 3., |
65 | or subparagraph 5. shall be appointed by the Financial Services |
66 | Commission and shall serve at the pleasure of the commission. |
67 | The board of governors shall be comprised of: |
68 | 1. Three members appointed by the Financial Services |
69 | Commission. Each member appointed by the commission shall serve |
70 | at the pleasure of the commission; |
71 | 1.2. Two representatives of the 20 domestic insurers, as |
72 | defined in s. 624.06(1), having the largest voluntary direct |
73 | premiums written in this state for workers' compensation and |
74 | employer's liability insurance, who which shall be appointed by |
75 | the commission from a list of three nominees for each vacancy |
76 | submitted elected by those 20 domestic insurers. The commission |
77 | may reject all of the nominees recommended for a position and |
78 | request that the insurers submit a new list of five different |
79 | recommended nominees for the position who have not previously |
80 | been recommended by the insurers; |
81 | 2.3. Two representatives of the 20 foreign insurers as |
82 | defined in s. 624.06(2) having the largest voluntary direct |
83 | premiums written in this state for workers' compensation and |
84 | employer's liability insurance, who which shall be appointed by |
85 | the commission from a list of five nominees for each vacancy |
86 | submitted elected by those 20 foreign insurers. The commission |
87 | may reject all of the nominees recommended for a position and |
88 | request that the insurers submit a new list of five different |
89 | recommended nominees for the position who have not previously |
90 | been recommended by the insurers; |
91 | 3.4. One representative of person appointed by the largest |
92 | property and casualty insurance agents' association in this |
93 | state, who shall be appointed by the commission from a list of |
94 | five nominees submitted by such association. The commission may |
95 | reject all of the nominees recommended for a position and |
96 | request that the association submit a new list of five different |
97 | recommended nominees for the position who have not previously |
98 | been recommended by the association; and |
99 | 4.5. The consumer advocate appointed under s. 627.0613 or |
100 | the consumer advocate's designee; and |
101 | 5. Three other persons appointed by the commission. |
102 |
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103 | Each board member shall be appointed to serve a 4-year term and |
104 | may be appointed to serve consecutive terms. A vacancy on the |
105 | board shall be filled in the same manner as the original |
106 | appointment for the unexpired portion of the term. The Financial |
107 | Services Commission shall designate a member of the board to |
108 | serve as chair. No board member shall be an insurer which |
109 | provides services to the plan or which has an affiliate which |
110 | provides services to the plan or which is serviced by a service |
111 | company or third-party administrator which provides services to |
112 | the plan or which has an affiliate which provides services to |
113 | the plan. The meetings and records minutes, audits, and |
114 | procedures of the board of governors and plan are subject to |
115 | chapters chapter 119 and 286, unless otherwise exempted by law. |
116 | (c) The operation of the plan shall be governed by a plan |
117 | of operation that is prepared at the direction of the board of |
118 | governors and approved by order of the office. The plan is |
119 | subject to continuous review by the office. The office may, by |
120 | order, withdraw approval of all or part of a plan if the office |
121 | determines that conditions have changed since approval was |
122 | granted and the purposes of the plan require changes to the plan |
123 | of operation may be changed at any time by the board of |
124 | governors or upon request of the office. The plan of operation |
125 | and all changes thereto are subject to the approval of the |
126 | office. The plan of operation shall: |
127 | 1. Authorize the board to engage in the activities |
128 | necessary to implement this subsection, including, but not |
129 | limited to, borrowing money. |
130 | 2. Develop criteria for eligibility for coverage by the |
131 | plan, including, but not limited to, documented rejection by at |
132 | least two insurers which reasonably assures that insureds |
133 | covered under the plan are unable to acquire coverage in the |
134 | voluntary market. |
135 | 3. Require notice from the agent to the insured at the |
136 | time of the application for coverage that the application is for |
137 | coverage with the plan and that coverage may be available |
138 | through an insurer, group self-insurers' fund, commercial self- |
139 | insurance fund, or assessable mutual insurer through another |
140 | agent at a lower cost. |
141 | 4. Establish programs to encourage insurers to provide |
142 | coverage to applicants of the plan in the voluntary market and |
143 | to insureds of the plan, including, but not limited to: |
144 | a. Establishing procedures for an insurer to use in |
145 | notifying the plan of the insurer's desire to provide coverage |
146 | to applicants to the plan or existing insureds of the plan and |
147 | in describing the types of risks in which the insurer is |
148 | interested. The description of the desired risks must be on a |
149 | form developed by the plan. |
150 | b. Developing forms and procedures that provide an insurer |
151 | with the information necessary to determine whether the insurer |
152 | wants to write particular applicants to the plan or insureds of |
153 | the plan. |
154 | c. Developing procedures for notice to the plan and the |
155 | applicant to the plan or insured of the plan that an insurer |
156 | will insure the applicant or the insured of the plan, and notice |
157 | of the cost of the coverage offered; and developing procedures |
158 | for the selection of an insuring entity by the applicant or |
159 | insured of the plan. |
160 | d. Provide for a market-assistance plan to assist in the |
161 | placement of employers. All applications for coverage in the |
162 | plan received 45 days before the effective date for coverage |
163 | shall be processed through the market-assistance plan. A market- |
164 | assistance plan specifically designed to serve the needs of |
165 | small, good policyholders as defined by the board must be |
166 | reviewed and updated periodically finalized by January 1, 1994. |
167 | 5. Provide for policy and claims services to the insureds |
168 | of the plan of the nature and quality provided for insureds in |
169 | the voluntary market. |
170 | 6. Provide for the review of applications for coverage |
171 | with the plan for reasonableness and accuracy, using any |
172 | available historic information regarding the insured. |
173 | 7. Provide for procedures for auditing insureds of the |
174 | plan which are based on reasonable business judgment and are |
175 | designed to maximize the likelihood that the plan will collect |
176 | the appropriate premiums. |
177 | 8. Authorize the plan to terminate the coverage of and |
178 | refuse future coverage for any insured that submits a fraudulent |
179 | application to the plan or provides fraudulent or grossly |
180 | erroneous records to the plan or to any service provider of the |
181 | plan in conjunction with the activities of the plan. |
182 | 9. Establish service standards for agents who submit |
183 | business to the plan. |
184 | 10. Establish criteria and procedures to prohibit any |
185 | agent who does not adhere to the established service standards |
186 | from placing business with the plan or receiving, directly or |
187 | indirectly, any commissions for business placed with the plan. |
188 | 11. Provide for the establishment of reasonable safety |
189 | programs for all insureds in the plan. All insureds of the plan |
190 | must participate in the safety program. |
191 | 12. Authorize the plan to terminate the coverage of and |
192 | refuse future coverage to any insured who fails to pay premiums |
193 | or surcharges when due; who, at the time of application, is |
194 | delinquent in payments of workers' compensation or employer's |
195 | liability insurance premiums or surcharges owed to an insurer, |
196 | group self-insurers' fund, commercial self-insurance fund, or |
197 | assessable mutual insurer licensed to write such coverage in |
198 | this state; or who refuses to substantially comply with any |
199 | safety programs recommended by the plan. |
200 | 13. Authorize the board of governors to provide the goods |
201 | and services required by the plan through staff employed by the |
202 | plan, through reasonably compensated service providers who |
203 | contract with the plan to provide services as specified by the |
204 | board of governors, or through a combination of employees and |
205 | service providers. |
206 | a. Purchases that equal or exceed $2,500, but are less |
207 | than or equal to $25,000, shall be made by receipt of written |
208 | quotes, telephone quotes, or informal bids, whenever practical. |
209 | The procurement of goods or services valued over $25,000 are |
210 | subject to competitive solicitation, except in situations in |
211 | which the goods or services are provided by a sole source or are |
212 | deemed an emergency purchase or the services are exempted from |
213 | competitive-solicitation requirements under s. 287.057(5)(f). |
214 | Justification for the sole-sourcing or emergency procurement |
215 | must be documented. Contracts for goods or services valued at or |
216 | over $100,000 are subject to board approval. |
217 | b. The board shall determine whether it is more cost- |
218 | effective and in the best interests of the plan to use legal |
219 | services provided by in-house attorneys employed by the plan |
220 | rather than contracting with outside counsel. In making such |
221 | determination, the board shall document its findings and shall |
222 | consider the expertise needed; whether time commitments exceed |
223 | in-house staff resources; whether local representation is |
224 | needed; the travel, lodging, and other costs associated with in- |
225 | house representation; and such other factors that the board |
226 | determines are relevant. |
227 | 14. Provide for service standards for service providers, |
228 | methods of determining adherence to those service standards, |
229 | incentives and disincentives for service, and procedures for |
230 | terminating contracts for service providers that fail to adhere |
231 | to service standards. |
232 | 15. Provide procedures for selecting service providers and |
233 | standards for qualification as a service provider that |
234 | reasonably assure that any service provider selected will |
235 | continue to operate as an ongoing concern and is capable of |
236 | providing the specified services in the manner required. |
237 | 16. Provide for reasonable accounting and data-reporting |
238 | practices. |
239 | 17. Provide for annual review of costs associated with the |
240 | administration and servicing of the policies issued by the plan |
241 | to determine alternatives by which costs can be reduced. |
242 | 18. Authorize the acquisition of such excess insurance or |
243 | reinsurance as is consistent with the purposes of the plan. |
244 | 19. Provide for an annual report to the office on a date |
245 | specified by the office and containing such information as the |
246 | office reasonably requires. |
247 | 20. Establish multiple rating plans for various |
248 | classifications of risk which reflect risk of loss, hazard |
249 | grade, actual losses, size of premium, and compliance with loss |
250 | control. At least one of such plans must be a preferred-rating |
251 | plan to accommodate small-premium policyholders with good |
252 | experience as defined in sub-subparagraph 22.a. |
253 | 21. Establish agent commission schedules. |
254 | 22. For employers otherwise eligible for coverage under |
255 | the plan, establish three tiers of employers meeting the |
256 | criteria and subject to the rate limitations specified in this |
257 | subparagraph. |
258 | a. Tier One.-- |
259 | (I) Criteria; rated employers.--An employer that has an |
260 | experience modification rating shall be included in Tier One if |
261 | the employer meets all of the following: |
262 | (A) The experience modification is below 1.00. |
263 | (B) The employer had no lost-time claims subsequent to the |
264 | applicable experience modification rating period. |
265 | (C) The total of the employer's medical-only claims |
266 | subsequent to the applicable experience modification rating |
267 | period did not exceed 20 percent of premium. |
268 | (II) Criteria; non-rated employers.--An employer that does |
269 | not have an experience modification rating shall be included in |
270 | Tier One if the employer meets all of the following: |
271 | (A) The employer had no lost-time claims for the 3-year |
272 | period immediately preceding the inception date or renewal date |
273 | of the employer's coverage under the plan. |
274 | (B) The total of the employer's medical-only claims for |
275 | the 3-year period immediately preceding the inception date or |
276 | renewal date of the employer's coverage under the plan did not |
277 | exceed 20 percent of premium. |
278 | (C) The employer has secured workers' compensation |
279 | coverage for the entire 3-year period immediately preceding the |
280 | inception date or renewal date of the employer's coverage under |
281 | the plan. |
282 | (D) The employer is able to provide the plan with a loss |
283 | history generated by the employer's prior workers' compensation |
284 | insurer, except if the employer is not able to produce a loss |
285 | history due to the insolvency of an insurer, the receiver shall |
286 | provide to the plan, upon the request of the employer or the |
287 | employer's agent, a copy of the employer's loss history from the |
288 | records of the insolvent insurer if the loss history is |
289 | contained in records of the insurer which are in the possession |
290 | of the receiver. If the receiver is unable to produce the loss |
291 | history, the employer may, in lieu of the loss history, submit |
292 | an affidavit from the employer and the employer's insurance |
293 | agent setting forth the loss history. |
294 | (E) The employer is not a new business. |
295 | (III) Premiums.--The premiums for Tier One insureds shall |
296 | be set at a premium level 25 percent above the comparable |
297 | voluntary market premiums until the plan has sufficient |
298 | experience as determined by the board to establish an |
299 | actuarially sound rate for Tier One, at which point the board |
300 | shall, subject to paragraph (e), adjust the rates, if necessary, |
301 | to produce actuarially sound rates, provided such rate |
302 | adjustment shall not take effect prior to January 1, 2007. |
303 | b. Tier Two.-- |
304 | (I) Criteria; rated employers.--An employer that has an |
305 | experience modification rating shall be included in Tier Two if |
306 | the employer meets all of the following: |
307 | (A) The experience modification is equal to or greater |
308 | than 1.00 but not greater than 1.10. |
309 | (B) The employer had no lost-time claims subsequent to the |
310 | applicable experience modification rating period. |
311 | (C) The total of the employer's medical-only claims |
312 | subsequent to the applicable experience modification rating |
313 | period did not exceed 20 percent of premium. |
314 | (II) Criteria; non-rated employers.--An employer that does |
315 | not have any experience modification rating shall be included in |
316 | Tier Two if the employer is a new business. An employer shall be |
317 | included in Tier Two if the employer has less than 3 years of |
318 | loss experience in the 3-year period immediately preceding the |
319 | inception date or renewal date of the employer's coverage under |
320 | the plan and the employer meets all of the following: |
321 | (A) The employer had no lost-time claims for the 3-year |
322 | period immediately preceding the inception date or renewal date |
323 | of the employer's coverage under the plan. |
324 | (B) The total of the employer's medical-only claims for |
325 | the 3-year period immediately preceding the inception date or |
326 | renewal date of the employer's coverage under the plan did not |
327 | exceed 20 percent of premium. |
328 | (C) The employer is able to provide the plan with a loss |
329 | history generated by the workers' compensation insurer that |
330 | provided coverage for the portion or portions of such period |
331 | during which the employer had secured workers' compensation |
332 | coverage, except if the employer is not able to produce a loss |
333 | history due to the insolvency of an insurer, the receiver shall |
334 | provide to the plan, upon the request of the employer or the |
335 | employer's agent, a copy of the employer's loss history from the |
336 | records of the insolvent insurer if the loss history is |
337 | contained in records of the insurer which are in the possession |
338 | of the receiver. If the receiver is unable to produce the loss |
339 | history, the employer may, in lieu of the loss history, submit |
340 | an affidavit from the employer and the employer's insurance |
341 | agent setting forth the loss history. |
342 | (III) Premiums.--The premiums for Tier Two insureds shall |
343 | be set at a rate level 50 percent above the comparable voluntary |
344 | market premiums until the plan has sufficient experience as |
345 | determined by the board to establish an actuarially sound rate |
346 | for Tier Two, at which point the board shall, subject to |
347 | paragraph (e), adjust the rates, if necessary, to produce |
348 | actuarially sound rates, provided such rate adjustment shall not |
349 | take effect prior to January 1, 2007. |
350 | c. Tier Three.-- |
351 | (I) Eligibility.--An employer shall be included in Tier |
352 | Three if the employer does not meet the criteria for Tier One or |
353 | Tier Two. |
354 | (II) Rates.--The board shall establish, subject to |
355 | paragraph (e), and the plan shall charge, actuarially sound |
356 | rates for Tier Three insureds. |
357 | 23. For Tier One or Tier Two employers which employ no |
358 | nonexempt employees or which report payroll which is less than |
359 | the minimum wage hourly rate for one full-time employee for 1 |
360 | year at 40 hours per week, the plan shall establish actuarially |
361 | sound premiums, provided, however, that the premiums may not |
362 | exceed $2,500. These premiums shall be in addition to the fee |
363 | specified in subparagraph 26. When the plan establishes |
364 | actuarially sound rates for all employers in Tier One and Tier |
365 | Two, the premiums for employers referred to in this paragraph |
366 | are no longer subject to the $2,500 cap. |
367 | 24. Provide for a depopulation program to reduce the |
368 | number of insureds in the plan. If an employer insured through |
369 | the plan is offered coverage from a voluntary market carrier: |
370 | a. During the first 30 days of coverage under the plan; |
371 | b. Before a policy is issued under the plan; |
372 | c. By issuance of a policy upon expiration or cancellation |
373 | of the policy under the plan; or |
374 | d. By assumption of the plan's obligation with respect to |
375 | an in-force policy, |
376 |
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377 | that employer is no longer eligible for coverage through the |
378 | plan. The premium for risks assumed by the voluntary market |
379 | carrier must be no greater than the premium the insured would |
380 | have paid under the plan, and shall be adjusted upon renewal to |
381 | reflect changes in the plan rates and the tier for which the |
382 | insured would qualify as of the time of renewal. The insured may |
383 | be charged such premiums only for the first 3 years of coverage |
384 | in the voluntary market. A premium under this subparagraph is |
385 | deemed approved and is not an excess premium for purposes of s. |
386 | 627.171. |
387 | 25. Require that policies issued and applications must |
388 | include a notice that the policy could be replaced by a policy |
389 | issued from a voluntary market carrier and that, if an offer of |
390 | coverage is obtained from a voluntary market carrier, the |
391 | policyholder is no longer eligible for coverage through the |
392 | plan. The notice must also specify that acceptance of coverage |
393 | under the plan creates a conclusive presumption that the |
394 | applicant or policyholder is aware of this potential. |
395 | 26. Require that each application for coverage and each |
396 | renewal premium be accompanied by a nonrefundable fee of $475 to |
397 | cover costs of administration and fraud prevention. The board |
398 | may, with the prior approval of the office, increase the amount |
399 | of the fee pursuant to a rate filing to reflect increased costs |
400 | of administration and fraud prevention. The fee is not subject |
401 | to commission and is fully earned upon commencement of coverage. |
402 | (d)1. The funding of the plan shall include premiums as |
403 | provided in subparagraph (c)22. and assessments as provided in |
404 | this paragraph. |
405 | 2.a. If the board determines that a deficit exists in Tier |
406 | One or Tier Two or that there is any deficit remaining |
407 | attributable to any of the plan's former subplans and that the |
408 | deficit cannot be fully funded by using policyholder surplus |
409 | attributable to former subplan C or, if the surplus in the |
410 | former subplan C does not fully fund the without the use of |
411 | deficit assessments, the board shall request the office to levy, |
412 | by order, a deficit assessment against premiums charged to |
413 | insureds for workers' compensation insurance by insurers as |
414 | defined in s. 631.904(5). The office shall issue the order after |
415 | verifying the amount of the deficit. The assessment shall be |
416 | specified as a percentage of future premium collections, as |
417 | recommended by the board and approved by the office. The same |
418 | percentage shall apply to premiums on all workers' compensation |
419 | policies issued or renewed during the 12-month period beginning |
420 | on the effective date of the assessment, as specified in the |
421 | order. |
422 | b. With respect to each insurer collecting premiums that |
423 | are subject to the assessment, the insurer shall collect the |
424 | assessment at the same time as the insurer collects the premium |
425 | payment for each policy and shall remit the assessments |
426 | collected to the plan as provided in the order issued by the |
427 | office. The office shall verify the accurate and timely |
428 | collection and remittance of deficit assessments and shall |
429 | report such information to the board. Each insurer collecting |
430 | assessments shall provide such information with respect to |
431 | premiums and collections as may be required by the office to |
432 | enable the office to monitor and audit compliance with this |
433 | paragraph. |
434 | c. Deficit assessments are not considered part of an |
435 | insurer's rate, are not premium, and are not subject to the |
436 | premium tax, to the assessments under ss. 440.49 and 440.51, to |
437 | the surplus lines tax, to any fees, or to any commissions. The |
438 | deficit assessment imposed shall become plan funds at the moment |
439 | of collection and shall not constitute income to the insurer for |
440 | any purpose, including financial reporting on the insurer's |
441 | income statement. An insurer is liable for all assessments that |
442 | the insurer collects and must treat the failure of an insured to |
443 | pay an assessment as a failure to pay premium. An insurer is not |
444 | liable for uncollectible assessments. |
445 | d. When an insurer is required to return unearned premium, |
446 | the insurer shall also return any collected assessments |
447 | attributable to the unearned premium. |
448 | e. Deficit assessments as described in this subparagraph |
449 | shall not be levied after July 1, 2012 2007. |
450 | 3.a. All policies issued to Tier Three insureds shall be |
451 | assessable. All Tier Three assessable policies must be clearly |
452 | identified as assessable by containing, in contrasting color and |
453 | in not less than 10-point type, the following statement: |
454 |
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455 | "This is an assessable policy. If the plan is unable to pay its |
456 | obligations, policyholders will be required to contribute on a |
457 | pro rata earned premium basis the money necessary to meet any |
458 | assessment levied." |
459 |
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460 | b. The board may from time to time assess Tier Three |
461 | insureds to whom the plan has issued assessable policies for the |
462 | purpose of funding plan deficits. Any such assessment shall be |
463 | based upon a reasonable actuarial estimate of the amount of the |
464 | deficit, taking into account the amount needed to fund medical |
465 | and indemnity reserves and reserves for incurred but not |
466 | reported claims, and allowing for general administrative |
467 | expenses, the cost of levying and collecting the assessment, a |
468 | reasonable allowance for estimated uncollectible assessments, |
469 | and allocated and unallocated loss adjustment expenses. |
470 | c. Each Tier Three insured's share of a deficit shall be |
471 | computed by applying to the premium earned on the insured's |
472 | policy or policies during the period to be covered by the |
473 | assessment the ratio of the total deficit to the total premiums |
474 | earned during such period upon all policies subject to the |
475 | assessment. If one or more Tier Three insureds fail to pay an |
476 | assessment, the other Tier Three insureds shall be liable on a |
477 | proportionate basis for additional assessments to fund the |
478 | deficit. The plan may compromise and settle individual |
479 | assessment claims without affecting the validity of or amounts |
480 | due on assessments levied against other insureds. The plan may |
481 | offer and accept discounted payments for assessments which are |
482 | promptly paid. The plan may offset the amount of any unpaid |
483 | assessment against unearned premiums which may otherwise be due |
484 | to an insured. The plan shall institute legal action when |
485 | necessary and appropriate to collect the assessment from any |
486 | insured who fails to pay an assessment when due. |
487 | d. The venue of a proceeding to enforce or collect an |
488 | assessment or to contest the validity or amount of an assessment |
489 | shall be in the Circuit Court of Leon County. |
490 | e. If the board finds that a deficit in Tier Three exists |
491 | for any period and that an assessment is necessary, the board |
492 | shall certify to the office the need for an assessment. No |
493 | sooner than 30 days after the date of such certification, the |
494 | board shall notify in writing each insured who is to be assessed |
495 | that an assessment is being levied against the insured, and |
496 | informing the insured of the amount of the assessment, the |
497 | period for which the assessment is being levied, and the date by |
498 | which payment of the assessment is due. The board shall |
499 | establish a date by which payment of the assessment is due, |
500 | which shall be no sooner than 30 days nor later than 120 days |
501 | after the date on which notice of the assessment is mailed to |
502 | the insured. |
503 | f. Whenever the board makes a determination that the plan |
504 | does not have a sufficient cash basis to meet 6 3 months of |
505 | projected cash needs due to a deficit in Tier Three, the board |
506 | may request the department to transfer funds from the Workers' |
507 | Compensation Administration Trust Fund to the plan in an amount |
508 | sufficient to fund the difference between the amount available |
509 | and the amount needed to meet a 6-month 3-month projected cash |
510 | need as determined by the board and verified by the office, |
511 | subject to the approval of the Legislative Budget Commission. If |
512 | the Legislative Budget Commission approves a transfer of funds |
513 | under this sub-subparagraph, the plan shall report to the |
514 | Legislature the transfer of funds and the Legislature shall |
515 | review the plan during the next legislative session or the |
516 | current legislative session, if the transfer occurs during a |
517 | legislative session. This sub-subparagraph shall not apply until |
518 | the plan determines and the office verifies that assessments |
519 | collected by the plan pursuant to sub-subparagraph b. are |
520 | insufficient to fund the deficit in Tier Three and to meet 6 3 |
521 | months of projected cash needs. |
522 | 4. The plan may offer rating, dividend plans, and other |
523 | plans to encourage loss prevention programs. |
524 | (e) For rates and rating plans effective on or after |
525 | January 1, 2008, the plan shall establish and use its rates and |
526 | rating plans, and the plan may establish and use changes in |
527 | rating plans at any time, but no more frequently than two times |
528 | per any rating class for any calendar year. By December 1, 1993, |
529 | and December 1 of each year thereafter, except as provided in |
530 | subparagraph (c)22., the board shall establish and use |
531 | actuarially sound rates for use by the plan to assure that the |
532 | plan is self-funding while those rates are in effect. Such rates |
533 | and rating plans must be filed with the office within 30 |
534 | calendar days after their effective dates, and shall be |
535 | considered a "use and file" filing. Any disapproval by the |
536 | office must have an effective date that is at least 60 days from |
537 | the date of disapproval of the rates and rating plan and must |
538 | have prospective effect only. The plan shall may not be subject |
539 | to any order by the office to return to policyholders any |
540 | portion of the rates disapproved by the office. The office may |
541 | not disapprove any rates or rating plans unless it demonstrates |
542 | that such rates and rating plans are excessive, inadequate, or |
543 | unfairly discriminatory. |
544 | (f) No later than June 1 of each year, the plan shall |
545 | obtain an independent actuarial certification of the results of |
546 | the operations of the plan for prior years, and shall furnish a |
547 | copy of the certification to the office. If, after the effective |
548 | date of the plan, the projected ultimate incurred losses and |
549 | expenses and dividends for prior years exceed collected |
550 | premiums, accrued net investment income, and prior assessments |
551 | for prior years, the certification is subject to review and |
552 | approval by the office before it becomes final. |
553 | (g) Whenever a deficit exists, the plan shall, within 90 |
554 | days, provide the office with a program to eliminate the deficit |
555 | within a reasonable time. The deficit may be funded through |
556 | increased premiums charged to insureds of the plan for |
557 | subsequent years;, through the use of policyholder surplus |
558 | attributable to any year, including the use of surplus |
559 | attributable to former subplan C as authorized in subparagraph |
560 | (d)2.; through the use of assessments as provided in |
561 | subparagraph (d)2.;, and through assessments on assessable |
562 | policies as provided in subparagraph (d)3. Any entity that was a |
563 | policyholder of former subplan C is not subject to any |
564 | assessments that are attributable to deficits in former subplan |
565 | C. |
566 | (h) Any premium or assessments collected by the plan in |
567 | excess of the amount necessary to fund projected ultimate |
568 | incurred losses and expenses of the plan and not paid to |
569 | insureds of the plan in conjunction with loss prevention or |
570 | dividend programs shall be retained by the plan for future use. |
571 | Any state funds received by the plan in excess of the amount |
572 | necessary to fund deficits in subplan D or any tier shall be |
573 | returned to the state. |
574 | (i) The decisions of the board of governors do not |
575 | constitute final agency action and are not subject to chapter |
576 | 120. |
577 | (j) Policies for insureds shall be issued by the plan. |
578 | (k) The plan created under this subsection is liable only |
579 | for payment for losses arising under policies issued by the plan |
580 | with dates of accidents occurring on or after January 1, 1994. |
581 | (l) Plan losses are the sole and exclusive responsibility |
582 | of the plan, and payment for such losses must be funded in |
583 | accordance with this subsection and must not come, directly or |
584 | indirectly, from insurers or any guaranty association for such |
585 | insurers. |
586 | (m) Senior managers and officers, as defined in the plan |
587 | of operation, and members of the board of governors are subject |
588 | to part III of chapter 112, including, but not limited to, the |
589 | code of ethics and public disclosure and reporting of financial |
590 | interests pursuant to s. 112.3145. Senior managers, officers, |
591 | and board members are also required to file such disclosures |
592 | with the Office of Insurance Regulation. The executive director |
593 | of the plan or his or her designee shall notify each newly |
594 | appointed and existing appointed member of the board of |
595 | governors, senior manager, and officer of their duty to comply |
596 | with the reporting requirements of part III of chapter 112. At |
597 | least quarterly, the executive director of the plan or his or |
598 | her designee shall submit to the Commission on Ethics a list of |
599 | names of the senior managers, officers, and members of the board |
600 | of governors who are subject to the public disclosure |
601 | requirements under s. 112.3145. Each joint underwriting plan or |
602 | association created under this section is not a state agency, |
603 | board, or commission. However, for the purposes of s. 199.183(1) |
604 | only, the joint underwriting plan is a political subdivision of |
605 | the state and is exempt from the corporate income tax. |
606 | (n) On or before July 1 of each year, employees of the |
607 | plan shall sign and submit a statement to the plan attesting |
608 | that they do not have a conflict of interest as defined in part |
609 | III of chapter 112. As a condition of employment, all |
610 | prospective employees shall sign and submit a conflict-of- |
611 | interest statement to the plan. Each joint underwriting plan or |
612 | association may elect to pay premium taxes on the premiums |
613 | received on its behalf or may elect to have the member insurers |
614 | to whom the premiums are allocated pay the premium taxes if the |
615 | member insurer had written the policy. The joint underwriting |
616 | plan or association shall notify the member insurers and the |
617 | Department of Revenue by January 15 of each year of its election |
618 | for the same year. As used in this paragraph, the term "premiums |
619 | received" means the consideration for insurance, by whatever |
620 | name called, but does not include any policy assessment or |
621 | surcharge received by the joint underwriting association as a |
622 | result of apportioning losses or deficits of the association |
623 | pursuant to this section. |
624 | (o) Any senior manager or officer of the plan who is |
625 | employed by the plan as of January 1, 2008, regardless of the |
626 | date of hire, and who subsequently retires or terminates |
627 | employment may not represent another person or entity before the |
628 | plan for 2 years after retirement or termination of employment |
629 | from the plan. |
630 | (p) No part of the income of the plan may inure to the |
631 | benefit of any private person. |
632 | (q) Notwithstanding ss. 112.3148 and 112.3149 or other |
633 | provision of law, an employee or board member may not knowingly |
634 | accept, directly or indirectly, any expenditure or gift from a |
635 | person or entity, or an employee or representative of such |
636 | person or entity, which has a contractual relationship with the |
637 | plan or is under consideration for a contract. An employee or |
638 | board member who fails to comply with this paragraph is subject |
639 | to penalties provided under s. 112.317. |
640 | (r) This section does not prohibit the plan from providing |
641 | insurance coverage to any employer with whom a former employee |
642 | of the plan is affiliated or employing or reemploying any former |
643 | employee of the plan in a part-time, full-time, temporary, or |
644 | permanent capacity so long as such employment does not violate |
645 | any provision of part III of chapter 112. |
646 | (s)(o) Neither the plan nor any member of the board of |
647 | governors is liable for monetary damages to any person for any |
648 | statement, vote, decision, or failure to act, regarding the |
649 | management or policies of the plan, unless: |
650 | 1. The member breached or failed to perform her or his |
651 | duties as a member; and |
652 | 2. The member's breach of, or failure to perform, duties |
653 | constitutes: |
654 | a. A violation of the criminal law, unless the member had |
655 | reasonable cause to believe her or his conduct was not unlawful. |
656 | A judgment or other final adjudication against a member in any |
657 | criminal proceeding for violation of the criminal law estops |
658 | that member from contesting the fact that her or his breach, or |
659 | failure to perform, constitutes a violation of the criminal law; |
660 | but does not estop the member from establishing that she or he |
661 | had reasonable cause to believe that her or his conduct was |
662 | lawful or had no reasonable cause to believe that her or his |
663 | conduct was unlawful; |
664 | b. A transaction from which the member derived an improper |
665 | personal benefit, either directly or indirectly; or |
666 | c. Recklessness or any act or omission that was committed |
667 | in bad faith or with malicious purpose or in a manner exhibiting |
668 | wanton and willful disregard of human rights, safety, or |
669 | property. For purposes of this sub-subparagraph, the term |
670 | "recklessness" means the acting, or omission to act, in |
671 | conscious disregard of a risk: |
672 | (I) Known, or so obvious that it should have been known, |
673 | to the member; and |
674 | (II) Known to the member, or so obvious that it should |
675 | have been known, to be so great as to make it highly probable |
676 | that harm would follow from such act or omission. |
677 | (t)(p) No insurer shall provide workers' compensation and |
678 | employer's liability insurance to any person who is delinquent |
679 | in the payment of premiums, assessments, penalties, or |
680 | surcharges owed to the plan or to any person who is an |
681 | affiliated person of a person who is delinquent in the payment |
682 | of premiums, assessments, penalties, or surcharges owed to the |
683 | plan. For purposes of this paragraph, the term "affiliated |
684 | person" of another person means: |
685 | 1. The spouse of such other natural person; |
686 | 2. Any person who directly or indirectly owns or controls, |
687 | or holds with the power to vote, 5 percent or more of the |
688 | outstanding voting securities of such other person; |
689 | 3. Any person who directly or indirectly owns 5 percent or |
690 | more of the outstanding voting securities that are directly or |
691 | indirectly owned or controlled, or held with the power to vote, |
692 | by such other person; |
693 | 4. Any person or group of persons who directly or |
694 | indirectly control, are controlled by, or are under common |
695 | control with such other person; |
696 | 5. Any officer, director, trustee, partner, owner, |
697 | manager, joint venturer, or employee, or other person performing |
698 | duties similar to persons in those positions, of such other |
699 | persons; or |
700 | 6. Any person who has an officer, director, trustee, |
701 | partner, or joint venturer in common with such other person. |
702 | (u)(q) Effective July 1, 2004, the plan is exempt from the |
703 | premium tax under s. 624.509 and any assessments under ss. |
704 | 440.49 and 440.51. |
705 | (v) The office shall perform a comprehensive market |
706 | conduct examination of the plan periodically to determine |
707 | compliance with its plan of operation and internal operating |
708 | policies and procedures. |
709 | (w) Upon dissolution of the plan, the assets of the plan |
710 | shall be applied first to pay all debts, liabilities, and |
711 | obligations of the plan, including the establishment of |
712 | reasonable reserves for any contingent liabilities or |
713 | obligations, and all remaining assets of the plan shall become |
714 | property of the state and shall be deposited into the Workers' |
715 | Compensation Administration Trust Fund. However, dissolution of |
716 | the plan shall not take effect as long as the plan has financial |
717 | obligations outstanding unless adequate provision has been made |
718 | for the payment of financial obligations pursuant to the |
719 | documents authorizing the financial obligations. |
720 | (8) Each joint underwriting plan or association created |
721 | under this section is not a state agency, board, or commission. |
722 | However, solely for the purposes of s. 199.183(1), the joint |
723 | underwriting plan is a political subdivision of the state and is |
724 | exempt from the corporate income tax. |
725 | (9) Each joint underwriting plan or association may elect |
726 | to pay premium taxes on the premiums received on its behalf or |
727 | may elect to have the member insurers to whom the premiums are |
728 | allocated pay the premium taxes if the member insurer had |
729 | written the policy. The joint underwriting plan or association |
730 | shall notify the member insurers and the Department of Revenue |
731 | by January 15 of each year of its election for the same year. As |
732 | used in this subsection, the term "premiums received" means the |
733 | consideration for insurance, by whatever name called, but does |
734 | not include any policy assessment or surcharge received by the |
735 | joint underwriting association as a result of apportioning |
736 | losses or deficits of the association pursuant to this section. |
737 | Section 2. No later than January 1, 2008, the Florida |
738 | Workers' Compensation Joint Underwriting Association, Inc., |
739 | shall submit a request to the Internal Revenue Service for a |
740 | letter ruling or determination on the plan's eligibility as a |
741 | tax-exempt entity. |
742 | Section 3. This act shall take effect July 1, 2007. |