The amendment to Rule 69L-6.027 revises a penalty calculation worksheet to provide the premium credit for the initial payment of premium made to secure coverage against an assessed penalty and to adjust the penalty look back period and the penalty ...

 

DEPARTMENT OF FINANCIAL SERVICES

Division of Worker's Compensation

RULE NOS.:RULE TITLES:

69L-6.027Penalty Calculation Worksheet

69L-6.028Procedures for Imputing Payroll and Penalty Calculations

69L-6.035Definition of Payroll for Calculating Penalty

PURPOSE AND EFFECT: The amendment to Rule 69L-6.027, F.A.C. revises a penalty calculation worksheet to provide the premium credit for the initial payment of premium made to secure coverage against an assessed penalty and to adjust the penalty look back period and the penalty multiplier to conform to statutory changes. The amendment to Rule 69L-6.028, F.A.C. changes the timeframe to impute the employer’s payroll in the absence of business records from 20 to 28 days after receipt of the department’s request to produce records, and changes the factor to calculate employee payroll from 1.5 to 2 times state average weekly wage, to conform to Section 440.107, F.S., as it now reads. Also, the timeframe for the employer to provide additional records is revised to twenty business days after the service of the first amended order of penalty assessment. The amendment to Rule 69L-6.035, F.A.C. also changes the factor to calculate employee payroll from 1.5 to 2 times state average weekly wage, to conform to Section 440.107, F.S., as it now reads. Additionally the amendments change citations in Rules 69L-6.028 and 69L-6.035, F.A.C. to reflect the current convention of naming to the specific subdivision cited.

SUMMARY: The worksheet used to calculate penalties for failure to maintain required workers’ compensation coverage provides a credit against the assessed penalty for the initial premium payment made to secure coverage. The time for an employer to produce records after a request from the department is 28 days. If records are not produced in that time employee payroll is imputed to be two times the Florida average weekly wage. The time period to produce additional records after service of the first amended order of penalty assessment is 20 days.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Statutory changes are inconsistent with the rule as it was adopted prior to those changes. The statutory changes were self-implementing. They are already in effect, and the rules are being amended to conform to the existing statutes. Therefore, the rule has no impact.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 440.107(9), 40.591 FS.

LAW IMPLEMENTED: 440.107(7)(d)1., (e) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: March 4, 2015, 9:00 a.m.

PLACE: Rm 102, Hartman Bldg., 2012 Capital Circle SE, Tallahassee, FL 32399-4225

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Robin Delaney, Chief, Bureau of Compliance, Division of Workers’ Compensation, Department of Financial Services, 200 E. Gaines Street, Tallahassee, Florida 32399-4228, [phone] or [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Robin Delaney, Chief, Bureau of Compliance, Division of Workers’ Compensation, Department of Financial Services, 200 E. Gaines Street, Tallahassee, Florida 32399-4228, [phone] or [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

69L-6.027  Penalty Calculation Worksheet.

(1) For purposes of calculating penalties to be assessed against employers pursuant to Section 440.107, F.S., the Division shall use Form form # DFS-F4-1595, Penalty Calculation Worksheet, revised 7/14 (eff. 10-18-07) which is incorporated herein by reference.

(2) Copies of Form this form DFS-F4-1595, Penalty Calculation Worksheet, revised 7/14,(eff. 10-18-07) are available from the Division of Workers’ Compensation, Department of Financial Services, Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-4226.

Rulemaking Specific Authority 440.107(9), 440.591 FS. Law Implemented 440.107(7) FS. History–New 12-29-04, Amended 10-18-07, ____________.

 

69L-6.028  Procedures for Imputing Payroll and Penalty Calculations.

(1) In the event an employer fails to provide business records sufficient for the department to determine the employer’s payroll for the time period requested in the business records request for the calculation of the penalty pursuant to paragraph Section 440.107(7)(e), F.S., the department shall impute the employer’s payroll at any time after ten, but before the expiration of twenty-eight business days after receipt by the employer of a written request to produce such business records.

(2) No Change.

(3) When an employer fails to provide business records sufficient to enable the department to determine the employer’s payroll for the time period requested in the business records request for purposes of calculating the penalty provided for in paragraph Section 440.107(7)(d), F.S., the imputed weekly payroll for each employee, corporate officer, sole proprietor or partner shall be calculated as follows:

(a) For each employee, other than corporate officers, identified by the department as an employee of such employer at any time during the period of the employer’s non-compliance, the imputed weekly payroll for each week of the employer’s non-compliance for each such employee shall be the statewide average weekly wage as defined in subsection Section 440.12(2), F.S., that is in effect at the time the stop-work order was issued to the employer, multiplied by 2 1.5. Employees include sole proprietors and partners in a partnership.

(b) If the employer is a corporation, for each corporate officer of such employer identified as such on the records of the Division of Corporations at the time of issuance of the stop-work order, the imputed weekly payroll for each week of the employer’s non-compliance for each such corporate officer shall be the statewide average weekly wage as defined in subsection Section 440.12(2), F.S., that is in effect at the time the stop-work order was issued to the employer, multiplied by 2 1.5.

(c) through (d) No Change.

(4) If the department imputes the employer’s payroll, the employer shall have twenty business days after service of the first amended order of penalty assessment assessing the penalty to provide business records sufficient for the department to determine the employer’s payroll for the period requested in the business records request for the calculation of the penalty or for the alternative period of non-compliance. The employer’s penalty will be recalculated pursuant to paragraph 440.107(7)(d), F.S., only if If the employer provides all such business records within the twenty days after the service of the first amended order of penalty assessment. Otherwise, the first amended order of penalty assessment will remain in effect., the department shall recalculate the employer’s penalty pursuant to Section 440.107(7)(d), F.S. If business records sufficient for the department to determine the employer’s payroll for the period requested in the business records request for the calculation of the penalty or for the alternative period of non-compliance are not provided to the department within twenty business days after service of the order assessing the penalty, the penalty based upon the time period requested for the calculation of the penalty imputing the employer’s payroll for the time period in the business records request for the calculation of the penalty will remain in effect.

Rulemaking Authority 440.107(9), 440.591 FS. Law Implemented 440.107(7)(e) FS. History–New 7-12-05, Amended 8-31-06, 8-30-09, ___________.

 

69L-6.035  Definition of Payroll for Calculating Penalty.

(1) For purposes of determining payroll for calculating a penalty pursuant to subparagraph Section 440.107(7)(d)1., F.S., the Department shall when applicable include any one or more of the following as remuneration to employees based upon evidence received in its investigation:

(a) through (j) No Change.

(2) For the purposes of calculating a penalty pursuant to subparagraph Section 440.107(7)(d)1., F.S., payroll for an officer of a corporation as defined in subsection Section 440.02(9), F.S., shall be based on remuneration factors listed in paragraphs (1)(a) through (j) of this rule where applicable, or the state average weekly wage as defined in subsection Section 440.12(2), F.S., that is in effect at the time the stop-work order was issued to the employer, multiplied by 21.5, whichever is less.

(3) For purposes of calculating a penalty pursuant to subparagraph Section 440.107(7)(d)1., F.S., payroll for a sole proprietor or partner shall be based on remuneration factors listed in paragraphs (1)(a) through (j) of this rule where applicable, or the state average weekly wage as defined in subsection Section 440.12(2), F.S., that is in effect at the time the stop-work order was issued to the employer, multiplied by 21.5, whichever is less.

Rulemaking Specific Authority 440.107(9), 440.591 FS. Law Implemented 440.107(7)(d)1. FS. History–New 10-10-07, Amended__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Robin Delaney, Chief, Bureau of Compliance, Division of Workers’ Compensation, Department of Financial Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jeff Atwater, Chief Financial Officer, Department of Financial Services

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 2, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 21, 2014