Meeting Packet — Commerce Committee, The Florida House of Representatives (January 23, 2020)
Summary
Meeting packet for the Commerce Committee of the Florida House of Representatives, Thursday, January 23, 2020, 9:30 AM to 11:30 AM in Webster Hall, with Mike La Rosa as Chair. The agenda lists consideration of CS/HB 307, CS/HB 437, HB 1189 and HB 6055, followed by a workshop on Intercollegiate Athlete Compensation and Rights Legislation. The packet includes a staff analysis of CS/HB 307, Law Enforcement Vehicles, which states that the bill prohibits condominium associations, homeowners' associations and cooperatives from preventing a law enforcement officer who is an owner from parking an assigned law enforcement vehicle. The analysis states the bill does not have a fiscal impact on state and local governments. The packet closes with a Draft on Athlete Compensation and Rights.
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Commerce Committee
Thursday, January 23, 2020
9:30 AM -11 :30 AM
Webster Hall (212 Knott)
Meeting Packet
Jose Oliva Mike La Rosa
Speaker Chair
The Florida House of Representatives
Commerce Committee
Jose Oliva Mike La Rosa
Speaker Chair
Meeting Agenda
Thursday, January 23, 2020
9:30 am -11:30 am
Webster Hall (212 Knott)
I. Call to Order
II. Roll Call
Ill. Welcome and Opening Remarks
IV. Consideration of the following bill(s):
CS/HB 307 Law Enforcement Vehicles by Business & Professions
Subcommittee, LaMarca
CS/HB 437 Nurse Registries by Insurance & Banking Subcommittee, Stone
HB 1189 Genetic Information for Insurance Purposes by Sprowls, Williamson
HB 6055 Telegraph Companies by Gregory
V. Workshop on the following:
Intercollegiate Athlete Compensation and Rights Legislation
VI. Closing Remarks
VII. Adjournment
303 House Office Building, 402 South Monroe Street, Tallahassee, FL 32399-1300
(850) 717-4870
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 307 Law Enforcement Vehicles
SPONSOR(S): Business & Professions Subcommittee, LaMarca and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 476
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Business & Professions Subcommittee 12 Y, 0 N, As Brackett Anstead
cs
2) Civil Justice Subcommittee 14 Y, 0 N Mawn Luczynski
3) Commerce Committee Brackett O/l Hamon ~-/I
SUMMARY ANALYSIS
Condominium associations, homeowners' associations, and cooperatives are allowed to create and enforce
restrictive covenants that limit the use of association property. Owners, tenants, and guests must comply with
these restrictions or they could be subject to monetary fines or suspension of their right to use the association's
common elements.
A common restrictive covenant created by such associations includes a restriction or prohibition on parking
certain vehicles, such as commercial vehicles, in certain location within the association's property.
The bill prohibits condominium associations, homeowners' associations, and cooperatives from preventing a
law enforcement officer who is an owner, or an owner's tenant, guest, or invitee, from parking his or her
assigned law enforcement vehicle in an area where the owner, or the owner's tenant, guest, or invitee, has a
right to park.
The bill does not have a fiscal impact on state and local governments.
The bill takes effect upon becoming law.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 1/21/2020
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Community Associations
The Florida Division of Condominiums, Timeshares and Mobile Homes (Division), within the
Department of Business and Professional Regulation (DBPR), provides consumer protection for Florida
residents living in regulated communities through education, complaint resolution, mediation and
arbitration, and developer disclosure. The Division has regulatory authority over the following business
entities and individuals:
• Condominium Associations;
• Cooperative Associations;
• Florida Mobile Home Parks and related associations;
• Vacation Units and Timeshares;
• Yacht and Ship Brokers and related business entities; and
• Homeowners' Associations (limited to arbitration of election and recall disputes).
Condominiums
A condominium is a form of real property ownership created pursuant to ch. 718, F.S., the
Condominium Act, comprised of units which may be owned by one or more persons along with an
undivided right of access to common elements. 1 A condominium is created by recording a declaration
of condominium in the public records of the county where the condominium is located. 2 A declaration
governs the relationships among condominium unit owners and the condominium association.
Specifically, a declaration of condominium may include covenants and restrictions concerning the use,
occupancy, and transfer of the units permitted by law with reference to real property. All unit owners are
members of the condominium association, an entity responsible for the operation and maintenance of
the common elements owned by the unit owners. The condominium association is overseen by an
elected board of directors, commonly referred to as a "board of administration." The board enacts
bylaws which govern the association's administration.
Cooperatives
A cooperative is a form of property ownership created pursuant to ch. 719, F.S., the Cooperative Act.
The real property is owned by the cooperative association, and individual units are leased to the
residents who own shares in the cooperative association. 3 The lease payment amount is the pro-rata
share of the operational expenses of the cooperative. Cooperatives operate similarly to condominiums
and the laws regulating cooperatives are in many instances nearly identical to those regulating
condominiums.
Homeowners' Associations
A homeowners' association (HOA) is an association of residential property owners in which voting
membership is made up of parcel owners and membership is a mandatory condition of parcel
ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the
parcel. 4 Only HOAs whose covenants and restrictions include mandatory assessments are regulated by
1 S. 718.103(11), F.S.
2 S. 718.104(2), F.S.
3 S. 719.103(2) and (26), F.S.
4 S. 720.301(9), F.S.
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ch. 720, F.S., the Homeowners' Association Act. Like a condominium or cooperative, an HOA is
administered by an elected board of directors. The powers and duties of an HOA include the powers
and duties provided in the Homeowners' Association Act, and in the association's governing
documents, which include the recorded covenants and restrictions, together with the bylaws, articles of
incorporation, and duly adopted amendments to those documents. No state agency has direct oversight
of HOAs. However, Florida law provides HOA procedures, minimum operating requirements, and for a
mandatory binding arbitration program, administered by the Division, for certain election and recall
disputes.
Community Association Fines and Suspensions
Owners, tenants, and guests must comply with a condominium, cooperative, or HOA's declaration,
bylaws, and rules. Condominium associations, cooperatives, and HOAs (community associations) may
levy fines against or suspend the right of an owner, occupant, or a guest of an owner or occupant, to
use the common elements or any other association property for failing to comply with any provision in
the association's governing documents. A suspension for failing to comply with the community
association's declaration, bylaws, or rules may not be for an unreasonable amount of time. 5
No fine may exceed $100 per violation, although a fine may be levied on the basis of each day of a
continuing violation provided that fine does not exceed $1,000. However, a fine levied by an HOA may
exceed $1,000 if the governing documents authorize it. Fines levied by condominium associations and
cooperatives may not become a lien on the property, and fines levied by an HOA that do not exceed
$1,000 may not become a lien on the property. 6
A community association may suspend an owner, tenant, or guest's ability to use the association's
common elements or any other association property if the owner is more than 90 days delinquent in
paying a monetary obligation, including a fine. The suspension may remain in effect until the fine is
paid. 7 A community association may also suspend an owner's voting rights for any monetary obligation
that exceeds $1,000 and is more than 90 days delinquent. 8
Restrictive Covenants
A community association may enact and enforce covenants as a condition for living in the association.
A covenant is an agreement or contract, which grants a right or imposes a liability. Covenants can
range from requiring owners to pay a portion of the common expenses to restrictions on the age of
permanent residents. 9
A restrictive covenant limits the use of community association property. Restrictive covenants imposed
by a community association's declaration are valid unless they are clearly ambiguous, wholly arbitrary,
or violate a public policy or a constitutional right. Restrictions imposed by a community association's
board of directors must also be reasonable. 10
5
Ss. 718.303, 719.303, & 720.305, F.S.
6 Id.
7 Id.
B Id.
9
Ss. 718.104(5), 718.112(3), 719.1035, 719.106(2), 720.301 (4), & 720.304(1), F.S.; Peter Dunbar, The Condominium Concept, 10-11
(15th ed. 2017-18).
10 Beachwood Villas Condominium v. Poor, 448 So. 2d 1143, 1144 (Fla. 4th DCA 1984); Hidden Harbour Estates, Inc. v. Basso, 393
So. 2d 637, 639-40 (Fla. 3rd DCA 1981).
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Commercial Vehicles
A common community association restrictive covenant is restricting or prohibiting the parking of certain
vehicles, such as commercial vehicles, on association property. However, many times the community
association's governing documents do not define the term "commercial vehicle," which can lead to
confusion about what constitutes a commercial vehicle. 11
Florida Courts have upheld HOA provisions restricting the parking of commercial vehicles even where
the HOA has failed to define "commercial vehicle." 12
In June of 2005, the Town of Davie (Davie) requested an advisory opinion from the Florida Office of the
Attorney General on the definition of commercial vehicle. 13 Specifically, Davie inquired as to whether a
marked law enforcement vehicle is a commercial vehicle for the purposes of parking in a community
association. 14 This followed after an HOA in Davie prohibited commercial vehicles from parking in the
driveways within the HOA and informed a property owner that the owner's law enforcement vehicle was
a commercial vehicle and could not be parked in the driveway. 15
The Attorney General determined that a law enforcement vehicle is not a commercial vehicle because a
commercial vehicle is used by a business for the purpose of economic gain, and law enforcement
services are an integral part of government and are not provided for economic gain. 16 The Attorney
General also noted that assigning a police vehicle to an officer to drive during off-duty hours to provide
a quicker response when called to an emergency would directly benefit the public, and the presence of
a police vehicle in a neighborhood may serve as a crime deterrent. 17
Recently, the media reported that a Clearwater police officer may be subject to hundreds of dollars in
HOA fines if the officer continued to park a marked police cruiser in her driveway instead of her
garage, 18 as the HOA's declaration prohibits owners from parking commercial vehicles and marked law
enforcement vehicles in driveways. 19 According to the media reports, the HOA has changed its position
and now lets the police officer park a marked cruiser in her driveway. 20 However, media reports indicate
that the exception only applies to that specific police officer, and all future owners with law enforcement
vehicles may not park them in their driveways. 21
11 Mike Antich, Discrimination Against Vocational Vehicles, Automotive Fleet (Dec. 22, 2017), https://www.automotive-
fleet.com/160128/discrimination-against-vocational-vehicles (last visited Jan. 6, 2020); Clinton Morrell, Are law enforcement vehicles
subject to Community Association "commercial vehicle" bans?, The Condo & HOA Law Bulletin (Feb. 8, 2016),
https://thecondoandhoalawbulletin.com/2016/02/08/are-law-enforcement-vehicles-subject-to-community-association-commercial-
vehicle-bans/ (last visited Jan. 6, 2020).
12 Cottrell v. Miskove, 605 So. 2d 572, 573 (Fla. 2nd DCA 1992) (The terms "commercial" and "vehicle" are well defined terms and
when combined the term is not vague, ambiguous, or unclear.).
13 05-36 Fla. Op. Att'y Gen.
14 Id.
15 Id.
16 Id.
11 Id.
18 Heather Leigh, HOA Tells Clearwater Officer to Move Her Police Cruiser into Her Garage or Face Legal Action, ABC Action News
Tampa Bay, (Aug. 27, 2019), https://www.abcactionnews.com/news/region-pinellas/hoa-tells-clearwater-officer-to-move-her-police-
cruiser-into-her-garage-or-face-legal-action (last visited Jan. 6, 2020); WFTS Staff, HOA Tells Florida Officer to Move Her Police
Cruiser off Her Driveway or Face Legal Action, News Channel 5 Nashville (Sep. 1, 2019),
https://www.newschannel5.com/news/national/hoa-tells-florida-officer-to-move-her-police-cruiser-into-off-her-driveway-or-face-legal-
action (last visited Jan. 6, 2020).
19 Amended and Restated Master Declaration of Covenants and Restrictions for Cross Pointe, http://crosspointehoa.com/wp-
contenUuploads/2013/06/Cross-Pointe-DecJaration-Final-031813.pdf (last visited Jan. 6, 2020).
20 Heather Leigh, HOA Now Allowing Clearwater Police Officer to Park Cruiser in Driveway, ABC Action News Tampa Bay, (Sep. 11,
2019), https ://www.abcactionnews.com/news/region-pinellas/hoa-now-allowing-clearwater-police-officer-to-park-cruiser-in-driveway
(last visited Jan. 6, 2020).
21 Id.
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Law Enforcement Officer
Chapter 943, F.S., is the Department of Law Enforcement Act. 22 Section 943.10(1), F.S, defines "law
enforcement officer'' as any person who is elected, appointed, or employed full time by any municipality
or the state or any political subdivision thereof; who is vested with authority to bear arms and make
arrests; and whose primary responsibility is crime prevention and detection or the enforcement of the
state's penal, criminal, traffic, or highway laws. The definition includes all certified supervisory and
command personnel whose duties include, in whole or in part, the supervision, training, guidance, and
management responsibilities of full-time, part-time, and auxiliary law enforcement officers but does not
include support personnel employed by the employing agency. 23
Effect of the Bill
The bill prohibits HOAs, condominium associations, and cooperatives from preventing a law
enforcement officer, as defined in s. 943.10(1 ), F.S., who is an owner, or an owner's tenant, guest, or
invitee, from parking his or her assigned law enforcement vehicle in an area where the owner, or the
owner's tenant, guest, or invitee, has a right to park.
The bill takes effect upon becoming law.
B. SECTION DIRECTORY:
Section 1: Creates s. 718.129, F.S., relating to law enforcement vehicles.
Section 2: Creates s. 719.131, F.S., relating to law enforcement vehicles.
Section 3. Creates s. 720.318, F.S., relating to law enforcement vehicles.
Section 4: Provides an effective date of upon becoming law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
22
S. 943.01, F.S.
23 S. 943.10(1 ), F .S.
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C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may save a law enforcement officer who is an owner, or an owner's tenant, guest, or invitee, in
a community association from being assessed and subsequently paying fines for parking his or her
assigned law enforcement vehicle in an area where the owner, or the owner's tenant, guest, or invitee,
has a right to park. Other private sector economic impacts are unknown.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to effect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On November 6, 2019, the Business & Professions Subcommittee adopted a strike-all amendment and
reported the bill favorably as a committee substitute. The committee substitute:
• Defines "law enforcement officer" by adopting the definition of "law enforcement officer" under the
Department of Law Enforcement Act; and
• Clarifies that a law enforcement officer may only park his or her "assigned" law enforcement vehicle in
an area the officer has a right to park as an owner, tenant, guest, or invitee.
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FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 307 2020
1 A bill to be entitled
2 An act relating to law enforcement vehicles; creating
3 ss. 718.129, 719.131, and 720.318, F.S.; providing
4 that community associations may not prohibit a law
5 enforcement officer from parking his or her assigned
6 law enforcement vehicle in certain areas; providing an
7 effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Section 718.129, Florida Statutes, is created
12 to read:
13 718.129 Law enforcement vehicles.-An association may not
14 prohibit a law enforcement officer, as defined ins. 943.10(1),
15 who is a unit owner, or a tenant, guest, or invitee of a unit
16 owner, from parking his or her assigned law enforcement vehicle
17 in an area where the unit owner, or tenant, guest, or invitee of
18 the unit owner, otherwise has a right to park.
19 Section 2. Section 719.131, Florida Statutes, is created
20 to read:
21 719.131 Law enforcement vehicles.-An association may not
22 prohibit a law enforcement officer, as defined ins. 943.10(1),
23 who is a unit owner, or a tenant, guest, or invitee of a unit
24 owner, from parking his or her assigned law enforcement vehicle
25 in an area where the unit owner, or tenant, guest, or invitee of
Page 1 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0307-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 307 2020
26 the unit owner, otherwise has a right to park.
27 Section 3. Section 720.318, Florida Statutes, is created
28 to read:
29 720.318 Law enforcement vehicles.-An association may not
30 prohibit a law enforcement officer, as defined ins. 943.10(1),
31 who is a parcel owner, or a tenant, guest, or invitee of a
32 parcel owner, from parking his or her assigned law enforcement
33 vehicle in an area where the parcel owner, or tenant, guest, or
34 invitee of the parcel owner, otherwise has a right to park.
35 Section 4. This act shall take effect upon becoming a law.
Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 437 Nurse Registries
SPONSOR(S): Insurance & Banking Subcommittee; Stone
TIED BILLS: IDEN./SIM. BILLS: SB 880
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 10 Y, 0 N, As CS Lloyd Cooper
2) Health Market Reform Subcommittee 13 Y, 0 N Guzzo Calamas
3) Commerce Committee Lloyd ,•• Hamon
SUMMARY ANALYSIS
Under the workers' compensation law, injured workers are entitled to receive all medically necessary
remedial treatment, care, and attendance, including medications, medical supplies, durable medical
equipment, and prosthetics, for as long as the nature of the injury and process of recovery requires. Among
other services, workers' compensation covers attendant care. Attendant care is care rendered by trained
professional attendants that is beyond the scope of household duties. Attendant care includes a wide variety
of services from skilled nursing care to unskilled tasks, such as bathing, dressing, personal hygiene, and
administration of medications. Most attendant care is provided by licensed medical providers; however,
family members may provide and receive carrier payment for non-professional attendant care services,
excluding normal household duties.
A nurse registry is an agency licensed to secure temporary employment for registered nurses, licensed
practical nurses, certified nursing assistants, home health aides, certified nursing assistants, homemakers,
and companions in a patient's home or with health care facilities or other entities. The providers referred by
the nurse registry are hired as independent contractors by the patient, health care facility, or another
business entity. A workers' compensation carrier may use a nurse registry to place attendant care services to
be rendered to an injured worker, but nurse registries are not expressly mentioned in the workers'
compensation statute.
The bill specifically authorizes a workers' compensation insurer to use a licensed nurse registry to place
authorized compensable attendant care services for the benefit of an injured worker.
The bill has no fiscal impact on state or local government or the private sector.
The bill has an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 1/21/2020
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Workers' Compensation Attendant Care Benefits
Workers' compensation provides medical benefits and, in cases where the injured worker is unable to
work or earn as much as he or she did before the injury, compensation for lost income (also referred to
as "wage replacement" or "indemnity" benefits) for compensable workplace injuries arising out of work
performed by an employee in the course and scope of employment. 1 Injured workers are entitled to
receive all medically necessary remedial treatment, care, and attendance, including medications,
medical supplies, durable medical equipment, and prosthetics, for as long as the nature of the injury
and process of recovery requires. 2 Medical services must be provided by a health care provider
authorized by the workers' compensation insurance company prior to being provided (except for
emergency care). 3
There are serval types of medical care provided to injured workers both inside and outside of medical
facilities, including emergency, interventional, palliative, rehabilitative, and attendant. "Attendant care"
means care rendered by trained professional attendants that is beyond the scope of household duties. 4
Attendant care includes a wide variety of services from skilled nursing care to unskilled tasks, such as
bathing, dressing, personal hygiene, and administration of medications. Most attendant care is provided
by licensed medical providers; however, family members may provide and receive carrier payment for
non-professional attendant care services, excluding normal household duties. 5
Providing in-home attendant care has significant advantages for both the injured worker and the carrier.
The injured worker can be more comfortable than in an institution and realize better outcomes, both
physically and mentally. The carrier can achieve significant cost savings. Current law does not
expressly authorize carriers to use any particular provider type or provider business model.
Placement of Attendant Care Services
Nurse Registries
A nurse registry is an agency licensed to secure temporary employment for registered nurses, licensed
practical nurses, certified nursing assistants, home health aides, certified nursing assistants,
homemakers, and companions in a patient's home or with health care facilities or other entities. 6 Nurse
registries are governed by part II of chapter 408, F.S., 7 associated rules in Chapter 59A-35, F.A.C., and
the nurse registry rules in Chapter 59A-18, F.A.C. A nurse registry must be licensed by the Agency for
Health Care Administration (AHCA) to offer contracts in Florida. 8
The providers referred by the nurse registry are hired as independent contractors by the patient, health
care facility, or another business entity (e.g., a workers' compensation carrier). 9 This is a key defining
1 S. 440.09(1), F.S.
2 S. 440.13(2)(a), F .S.
3
S. 440.13(3)(a), F.S.
4 S. 440.13(1)(b), F.S. Attendant care must be medically necessary and performed at the direction and control of an authorized treating
physician pursuant to a written prescription. S. 440.13(2)(b), F.S.
5 The valuation of family-member provided attendant care is limited in both duration and cost. S. 440.13(2)(b), F.S.
s S. 400.462(21), F.S.
7 S. 400.506(2), F.S. A nurse registry is also governed by the provisions ins. 400.506, F.S.
8 S. 400.506(1), F.S.
9
S. 400.506(6)(d), F.S.
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feature of a nurse registry; it cannot have any employees except for the administrator, alternate
administrator, and office staff - all individuals who enter the home of patients to provide direct care
must be independent contractors. 10
Home Health Agencies
Home health agencies (HHAs) are organizations that provide health and medical services and medical
supplies to an individual in the individual's home or place of residence. 11 HHAs are governed by part II
of chapter 408, F.S., 12 associated rules in Chapter 59A-35, F.A.C., and Chapter 59A-8, F.A.C. Like a
nurse registry, a HHA must be licensed by AHCA, pursuant to Part Ill of ch. 400, F.S., to offer contracts
in Florida. 13
The key difference between HHAs and nurse registries is the nature of the employment relationship
with the health care professionals with whom they contract. Health care providers who contract with a
HHA are employees of that agency. In contrast, health care providers who contract with nurse registries
are independent contractors. Additionally, while a nurse registry and a HHA may provide services that
are privately paid for by insurance or other means to patients in their home or place of residence and
provide staff to health care facilities, schools, or other business entities, a nurse registry does not
qualify for Medicare reimbursements; a HHA qualifies for such reimbursement.
The workers' compensation law is silent regarding how attendant care providers are selected to provide
authorized compensable care for injured workers. A workers' compensation carrier has the discretion to
choose attendant care providers directly or to use a nurse registry or HHA to place attendant care
providers for the benefit of an injured worker.
Effect of the Bill
The bill specifically authorizes a workers' compensation insurer to use a licensed nurse registry to
place authorized compensable attendant care services for the benefit of an injured worker.
B. SECTION DIRECTORY:
Section 1. Amends s. 440.13, F.S., relating to medical services and supplies; penalty for violations;
limitations.
Section 2. Provides an effective date of July 1, 2020.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
10 S. 400.506(6)(e), F.S.
11 S. 400.462(12), (14), F.S.
12 S. 400.464(1), F.S. An HHA is also governed by the provisions ins. 400.464, F.S.
13 /d.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None provided by the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On December 11, 2019, the Insurance & Banking Subcommittee considered the bill, adopted one
amendment, and reported the bill favorably as a committee substitute. The amendment authorizes a
workers' compensation insurer to use a licensed nurse registry to place authorized compensable attendant
care services for the benefit of an injured worker, rather than defining nurse registry services as "attendant
care."
The staff analysis has been updated to reflect the committee substitute.
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DATE: 1/21/2020
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 437 2020
1 A bill to be entitled
2 An act relating to nurse registries; amending s.
3 440.13, F.S.; authorizing the use of licensed nurse
4 registries for the placement of attendant care
5 provided for workers' compensation purposes; providing
6 an effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Paragraph (b) of subsection (2) of section
11 440.13, Florida Statutes, is amended to read:
12 440.13 Medical services and supplies; penalty for
13 violations; limitations.-
14 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.-
15 (b)l..:_ The employer shall provide appropriate professional
16 or nonprofessional attendant care performed only at the
17 direction and control of a physician when such care is medically
18 necessary. The physician shall prescribe such care in writing.
19 The employer or carrier shall not be responsible for such care
20 until the prescription for attendant care is received by the
21 employer and carrier, which shall specify the time periods for
22 such care, the level of care required, and the type of
23 assistance required. A prescription for attendant care shall not
24 prescribe such care retroactively. The value of nonprofessional
25 attendant care provided by a family member must be determined as
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CS/HB 437 2020
26 follows:
27 a.±.- If the family member is not employed or if the family
28 member is employed and is providing attendant care services
29 during hours that he or she is not engaged in employment, the
30 per-hour value equals the federal minimum hourly wage.
31 b.-2--.- If the family member is employed and elects to leave
32 that employment to provide attendant or custodial care, the per-
33 hour value of that care equals the per-hour value of the family
34 member's former employment, not to exceed the per-hour value of
35 such care available in the community at large. A family member
36 or a combination of family members providing nonprofessional
37 attendant care under this paragraph may not be compensated for
38 more than a total of 12 hours per day.
39 c.-3--:- If the family member remains employed while providing
40 attendant or custodial care, the per-hour value of that care
41 equals the per-hour value of the family member's employment, not
42 to exceed the per-hour value of such care available in the
43 community at large.
44 2. The employer or carrier may use a nurse registry
45 licensed pursuant to s. 400.506 for the placement of authorized
46 compensable attendant care services.
47
48 Failure of the carrier to timely comply with this subsection
49 shall be a violation of this chapter and the carrier shall be
50 subject to penalties as provided for ins. 440.525.
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CS/HB 437 2020
51 Section 2. This act shall take effect July 1, 2020.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 1189 Genetic Information for Insurance Purposes
SPONSOR(S): Sprowls
TIED BILLS: IDEN./SIM. BILLS: SB 1564
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Health & Human Services Committee 17 Y, 0 N Grabowski Calamas
2) Commerce Committee 1 Hamon
SUMMARY ANALYSIS
The availability and use of genetic tests has increased dramatically in recent years. The resulting genetic
information is generally used by individuals or their physicians to determine whether any action should be
taken to improve long-term wellbeing.
Since the advent of genetic testing, there have been concerns about the use of personal genetic information by
third parties. In particular, there is a concern that insurers may discriminate against individuals who have
genetic markers indicating a heightened risk of developing certain diseases or health conditions.
The federal Health Insurance Portability and Accountability Act of 1996 prohibits health insurers from making
coverage decisions solely based on personal genetic information. The federal Genetic Information
Nondiscrimination Act of 2008 extended this concept by prohibiting health insurers from using genetic
information in the underwriting process, and in the setting of premiums.
Florida law also prohibits health insurers from considering genetic information, both when issuing insurance
policies and when setting applicable premium rates. This prohibition, however, does not extend to issuers of
life insurance, disability income insurance, and long-term care insurance policies.
The bill expands existing prohibitions on the use of genetic information by insurers to include entities that issue
policies for life insurance and long-term care insurance. Specifically, the bill prohibits issuers of life insurance
and long-term care insurance from canceling, limiting, or denying coverage, and from setting different premium
rates, based on personal genetic information without a specific diagnosis related to the genetic information.
The bill also prohibits life insurers and long-term care insurers from requiring or soliciting genetic information,
using genetic test results, or considering a person's decisions or actions relating to genetic testing for any
insurance purpose.
The bill has no fiscal impact on state or local government.
The bill has an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1189b.COM.DOCX
DATE: 1/22/2020
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Regulation of Insurance in Florida
The Office of Insurance Regulation (OIR) regulates insurers, including life, health, and long-term care
insurers, under the Florida Insurance Code. 1 Parts Ill and V of ch. 627, F.S., specifically address life
insurers. Part VI of ch. 627, F.S. specifically addresses health insurers. The Agency for Healthcare
Administration (AHCA) regulates the quality of care provided by health maintenance organizations
(HMOs) under part Ill of ch. 641, F.S., and part I of ch. 641, F.S., focuses on OIR's regulatory role of
HMOs. Before receiving a certificate of authority from OIR, an HMO must receive a health care provider
certificate from AHCA. 2 Part XVIII of ch. 627, F.S., specifically addresses long-term care insurance,
which is coverage for medical and personal care services provided in a setting other than an acute care
unit of a hospital. 3
Genetic Testing
The availability and use of genetic tests has increased dramatically in recent years. As of March 2017,
there were nearly 70,000 genetic testing products on the market, with an average of 10.6 new testing
products entering the market a day since 2015. 4 A 2016 survey indicated that 5.5 percent of adults in
the U.S. had undergone genetic testing. Over half of those tested did so based on a concern about
future health problems for them or their children, while 18 percent were tested to learn more about
family heritage. 5 The U.S. Centers for Disease Control and Prevention (CDC) recognizes the
development of genomic tests for thousands of diseases and health conditions, while also
acknowledging that such tests are not necessarily a conclusive indication that an individual will develop
a particular disease or condition. 6
A wide range of health-related DNA screenings are available. The National Institutes for Health (NIH)
categorizes these tests as follows.
• Diagnostic testing - identifies a genetic condition or disease that is making or in the future will
make a person ill. The results of diagnostic testing can help in treating and managing the
disorder.
• Predictive and pre-symptomatic genetic testing - identifies genetic variations that increase a
person's chance of developing specific diseases. This type of genetic testing may help provide
information about a person's risk of developing a disease, and can help in decisions about
lifestyle and health care.
1
Chapters 624-632, 634-636, 641, 642, 648, and 651, F .S. constitute the Florida Insurance Code.
2 Ss. 641.21(1) and 641.48, F.S.
3 S. 627.9404, F.S. Long-term care services may encompass a wide array of medical, social, and personal care services required by
an individual with a chronic disability. American Academy of Actuaries, The Use of Genetic lnfonnation in Disability Income and Long-
Tenn Care Insurance, Issue Brief, Spring 2002, available at https://www.actuary.org/files/publications/qenetic 25apr02.pdf (last
accessed January 10, 2020).
4
The Cunent Landscape of Genetic Testing, Concert Genetics, March 2017, available at https://www.concertqenetics.com/wp-
content/uploads/2017/05/10 ConcertGenetics CurrentLandscapeofGeneticTesting 2017Update.pdf (last accessed January 10, 2020).
5 Harvard University T.H. Chan School of Public Health, The Public and Genetic Editing, Testing, and Therapy, Jan. 2016, available at
https://cdn 1.sph. harvard.edu/wp-content/uploads/sites/94/2016/01 /STAT-Harvard-Poll-Jan-2016-Genetic-Technoloqy. pdf (last
accessed January 10, 2020). Genetic testing has also given rise to a novel industry aimed at providing individuals with customized data
related to family ancestry, including companies like 23andMe, Ancestry.com, FamilyTree DNA, and Living DNA.
6 U.S. Centers for Disease Control and Prevention, Genomic Testing, last updated July 19, 2017, available at
https://www.cdc.gov/genomics/gtesting/ (last accessed January 10, 2020).
STORAGE NAME: h1189b.COM.D0CX PAGE: 2
DATE: 1/22/2020
• Carrier testing - identifies whether a person "carries" a genetic change that can cause a
disease. Carriers usually show no signs of the disorder; however, they can pass on the genetic
variation to their children, who may develop the disorder or become carriers themselves.
• Prenatal testing - identifies fetuses that have certain diseases.
• Pre-implantation genetic testing - identifies whether embryos for implantation carry genes
that could cause disease. This is often done in conjunction with in vitro fertilization.
• Newborn screening - is used to test babies one or two days after birth to determine if those
newborns have certain diseases known to cause problems with health and development.
• Pharmacogenetic testing - provides information about how certain medicines are processed in
a person's body. This type of testing can help a healthcare provider choose the medicines that
work best with a person's genetic makeup. For example, genetic testing is now available to
guide treatments for certain cancers.
• Research genetic testing - helps scientists learn more about how genes contribute to health
and disease, as well as develop gene-based treatments. Sometimes the results do not directly
help the research participant, but they may benefit others in the future by helping researchers
expand their understanding of the human body. 7
One often-cited use of genetic testing involves screening of female patients for a gene mutation that
can be an early predictor of breast cancer. BRCA 1 and BRCA 2 gene mutations are relatively rare, but
women having these mutations develop breast cancer at much higher rates than those without. 8 BRCA
testing has become increasingly prevalent among women in families with histories of breast cancer. 9
Use of Personal Genetic Information in Insurance Markets
The now-widespread availability of genetic tests has given rise to questions and concerns over the
appropriate use of genetic information. While an individual may voluntarily submit to genetic testing in
an effort to gain insights into his or her own genetic history, third parties may seek to obtain this same
information for other purposes, such as for use in insurance markets.
For example, insurers might use genetic information to exclude high-risk individuals from established
risk pools. Insurers might also charge higher premium rates to an individual whose genetic information
indicates that the individual is at an increased risk of developing a degenerative health condition. 10
Conversely, exclusion of higher-risk insureds could reduce premium inflation for those left in the risk
pool.
Similarly, consumers could use personal genetic information to the detriment of insurers. For example,
an individual may discover through genetic testing that he or she is likely to develop a serious health
condition, and only then purchase life insurance. An insurer is at a disadvantage and cannot accurately
gauge the risk posed by covering an individual in this situation. 11 Adverse selection 12 of this nature
could destabilize insurance markets if access to personal genetic information leads to widespread
changes in consumer behavior. 13 Specifically, the risk-spreading ability of insurance could be
compromised if only those who are likely to become ill purchase insurance. 14
7
U.S. Department of Health and Human Services, National Institutes for Health, Genetic Testing: How it is Used for Healthcare,
available at https://report.nih.gov/nihfactsheetsNiewFactSheet.aspx?csid=43 (last accessed January 10, 2020).
8
McCarthy, Anne Marie and Armstrong, Katrina, "The Role ofTesting for BRCA1 and BRCA2 Mutations in Cancer Prevention." JAMA
Intern Med. 2014; 174(7): 1023-1024. doi: 10.1001 /jamaintemmed.2014.1322, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4169670/ (last accessed January 10, 2020).
9
Id.
°
1
Klitzman, Robert, Appelbaum, Paul S., Chung, Wendy K, "Should Life Insurers Have Access to Genetic Test
Results?". JAMA. 2014;312(18):1855-1856. doi:10.1001~ama.2014.13301, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4259574/ (last accessed January 10, 2020).
11 Id.
12 Adverse selection is defined as an imbalance in an exposure group created when persons who perceive a high probability of loss for
themselves seek to buy insurance to a much greater degree than those who perceive a low probability of loss. IRMI,
https://www.irmi.com/term/insurance-definitions/adverse-selection (last accessed January 10, 2020).
13 American Academy of Actuaries, The Use of Genetic Information in Disability Income and Long-Term Care Insurance, Issue Brief,
Spring 2002, available at https://www.actuary.org/files/publications/genetic 25apr02.pdf (last accessed January 10, 2020).
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While the specific information provided by the genetic testing industry regarding medical conditions and
their associated risks is limited at present, it is rapidly evolving. In 2013, the United States Food and
Drug Administration (FDA) instructed 23andMe to stop giving health information to consumers. 15
However, by 2018, 23andMe received approval from the FDA to provide reports regarding certain
health conditions or risks, including the genetic variants in the BRCA 1 and BRCA 2 genes. 16 Other
vendors also provide lists of genetic variants, available to consumers, with information regarding the
scientific significance of each variant. 17 In the future, consumers may be able to take the ever-evolving
information provided by genetic testing, compare it to the information provided by these vendors, and
determine they have a genetic condition or disease, or are likely to develop a health condition. Based
upon this determination, they may decide to purchase insurance they otherwise would not, without
disclosing the results of their genetic testing, and thereby receive the insurance at a rate that is
actuarially unsound for their true risk class.
Federal Laws
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) includes the first federal
regulations on the use of personal genetic information. 18 HIPAA prohibits health insurers from using
"preexisting condition" exclusions based solely on an individual's genetic information. Under HIPAA,
insurers can make coverage decisions using information reflecting diagnosed health conditions, but not
based on genetic indicators alone. 19
The Genetic Information Nondiscrimination Act of 2008 (GINA) extended federal patient protections by
preventing health insurers from using genetic information in the underwriting of health insurance
products. 20 Health insurers may not charge higher premiums or make coverage decisions based solely
on an individual's genetic information. However, the prohibitions outlined in GINA do not extend to
other types of insurance, such as life insurance and long-term care insurance. There are currently no
federal limitations on the use of genetic information by these insurers.
The federal Patient Protection and Affordable Care Act21 (PPACA) prohibits most individual and group
health insurers from excluding coverage to or otherwise discriminating against persons with pre-
existing or complex health conditions. Moreover, the law prohibits plans from using most forms of
medical underwriting, which had previously been used to link personal health status to the cost and
availability of health insurance. 22
State Laws
States have adopted various regulations related to the use of genetic information by insurers. In
general, states address patient privacy for personal genetic information by: 23
1. Requiring informed consent before performing genetic testing;
14 Id.
15 Tina Hesman Saey, What consumer DNA data can and can't tell you about your risk for certain diseases, ScienceNews (Jun. 3,
2018), https://www.sciencenews.org/article/health-dna-genetic-testing-disease (last accessed January 10, 2020).
16 Id.
17 Id.
18 Hall, Mark A. and Rich, Stephen S., "Laws Restricting Health Insurers' Use of Genetic Information: Impact on Genetic Discrimination."
AJHG 2000: 66(1): 293-307, available at https://doi.org/10.1086/302714 (last accessed January 10, 2020).
19 Id.
20 U.S. Equal Employment Opportunity Commission, The Genetic Information Nondiscrimination Act of 2008, available at
https://www.eeoc.gov/laws/statutes/gina.cfm (last accessed January 10, 2020).
21
Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148. On March 30, 2010, PPACA was amended by the Health
Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152.
22 42 U.S.C. 300gg. The law allows insurers to consider an individual's age and tobacco use in the development of applicable rates.
However, virtually all other underwriting is prohibited.
23
Miller, Amalia R. and Tucker, Catherine E., "Privacy Protection, Personalized Medicine and Genetic Testing" (July 31, 2014),
available at https://ssrn.com/abstract=2411230 (last accessed January 10, 2020).
STORAGE NAME: h1189b.COM.DOCX PAGE: 4
DATE: 1/22/2020
2. Restricting the use of genetic data by health insurance, employers or providers of long-term life
care or insurance; and,
3. Limiting disclosure of the personal genetic information without the consent of the individual or
defining genetic data as the 'property' of the individual.
Most states have enacted laws that prohibit genetic discrimination by health insurers. 24 A number of
states have taken actions to limit or prohibit the use of genetic information in other lines of insurance as
well. 25 For example, Arizona, California, Massachusetts and New Jersey restrict use of genetic
information by life insurers, and Kansas, Maryland and Massachusetts restrict use by long-term care
insurers. Similarly, Arizona, California, Idaho, Kansas, Massachusetts and New Jersey restrict use by
disability26 insurers. 27
Florida Law
Section 760.40, F.S., makes the results of genetic testing the exclusive personal property of the person
tested, and makes it a first degree misdemeanor to sharing test results without the informed consent of
the person tested.
Section 627.4301, F.S., prohibits health insurers from considering genetic information, both when
issuing insurance policies and when setting applicable premium rates. 28 Insurers cannot require or
solicit genetic information, or employ underwriting based on the results of any genetic testing that an
individual may choose to complete, and cannot use such results for any purpose. This prohibition is
currently limited to self-insured health plans, fully-insured health plans, HMOs, prepaid limited health
service organizations, prepaid health clinics, fraternal benefit societies, or any other health care
arrangement where risk is assumed. This section of law expressly exempts several forms of insurance
from the prohibition: life insurance, disability income, long-term care, accident-only, hospital indemnity
or fixed indemnity, dental, and vision.
Effect of Proposed Changes
The bill amends s. 627.4301, F.S., existing prohibitions on the use of genetic information by insurers to
include entities that issue policies for life insurance and long-term care insurance. Specifically, the bill
prohibits issuers of life insurance and long-term care insurance from canceling, limiting, or denying
coverage, and from setting different premium rates, based on personal genetic information without a
specific diagnosis29 related to the genetic information. The bill also prohibits life insurers and long-term
care insurers from requiring or soliciting genetic information, using genetic test results, or considering a
person's decisions or actions relating to genetic testing for any insurance purpose.
The bill has an effective date of July 1, 2020, and applies to insurance policies entered into or renewed
on or after January 1, 2021.
24 Rothstein, Mark A., "Putting the Genetic Nondiscrimination Act in context." Genetics in Medicine 2008: 10: 655-656, available at
https://www.nature.com/articles/gim200899 (last accessed January 10, 2020).
25 The National Human Genome Human Research Institute maintains a searchable database of legislation related to genetic
information that has either been enacted or considered by state legislatures. U.S. Department of Health and Human Services, National
Institutes of Health - National Human Genome Human Research Institute, Genome Statute and Legislation Database, available at
https://www.genome.gov/policyethics/legdatabase/pubsearch.cfm?CFID=22285441&CFTOKEN=7fc536f1b99bbd21-2342A48B-03C6-
03BE-03FEEF39A8695COF (last accessed January 10, 2020).
26
Disability income insurance protects earned income against potential loss due to disabling injury or illness. American Academy of
Actuaries, The Use of Genetic Information in Disability Income and Long-Term Care Insurance, Issue Brief, Spring 2002, available at
https://www.actuary.org/files/publications/genetic 25apr02.pdf (last accessed January 10, 2020).
27 Supra note 19.
28
See also s. 626.9706, F.S., which prohibits insurers from refusing coverage or charging higher premiums to individuals determined to
carry the sickle-cell trait.
29 Florida law does not define "diagnosis." However, "diagnosis" is generally defined as the "art or act of identifying a disease from its
signs and symptoms." Merriam-Webster, https://www.merriam-webster.com/dictionary/diagnosis (last accessed January 10, 2020).
STORAGE NAME: h1189b.COM.D0CX PAGE: 5
DATE: 1/22/2020
B. SECTION DIRECTORY:
Section 1: Amends s. 627.4301, F.S., relating to genetic information for insurance purposes.
Section 2: Establishes that the bill's requirements are applicable to insurance policies entered into
or renewed on or after January 1, 2021.
Section 3: Provides an effective date of July 1, 2020.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
It is unclear whether or how, issuers of life insurance and long-term care insurance are currently using
personal genetic information, so the economic impact of the bill's prohibition on its use is unknown. As
genetic testing evolves, it may provide additional information that indicates an increased risk of
developing certain health conditions, and the availability of this information may have an impact on the
life and long-term care insurance markets.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of. Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
STORAGE NAME: h1189b.COM.DOCX PAGE: 6
DATE: 1/22/2020
The bill neither authorizes nor requires administrative rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
STORAGE NAME: h1189b.COM.D0CX PAGE: 7
DATE: 1/22/2020
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 1189 2020
1 A bill to be entitled
2 An act relating to genetic information for insurance
3 purposes; amending s. 627.4301, F.S.; providing
4 definitions; prohibiting life insurers and long-term
5 care insurers from canceling, limiting, or denying
6 coverage, or establishing differentials in premium
7 rates based on genetic information under certain
8 circumstances; prohibiting such insurers from taking
9 certain actions relating to genetic information for
10 any insurance purpose; providing applicability;
11 providing an effective date.
12
13 Be It Enacted by the Legislature of the State of Florida:
14
15 Section 1. Section 627.4301, Florida Statutes, is amended
16 to read:
17 627.4301 Genetic information for insurance purposes.-
18 (1) DEFINITIONS.-As used in this section, the term:
19 (a) "Genetic information" means information derived from
20 genetic testing to determine the presence or absence of
21 variations or mutations, including carrier status, in an
22 individual's genetic material or genes that are scientifically
23 or medically believed to cause a disease, disorder, or syndrome,
24 or are associated with a statistically increased risk of
25 developing a disease, disorder, or syndrome, which is
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26 asymptomatic at the time of testing. Such testing does not
27 include routine physical examinations or chemical, blood, or
28 urine analysis, unless conducted purposefully to obtain genetic
29 information, or questions regarding family history.
30 (b) "Health insurer" means an authorized insurer offering
31 health insurance as defined ins. 624.603, a self-insured plan
32 as defined ins. 624.031, a multiple-employer welfare
33 arrangement as defined ins. 624.437, a prepaid limited health
34 service organization as defined ins. 636.003, a health
35 maintenance organization as defined ins. 641.19, a prepaid
36 health clinic as defined ins. 641.402, a fraternal benefit
37 society as defined ins. 632.601, or any health care arrangement
38 whereby risk is assumed.
39 (c) "Life insurer" has the same meaning as ins. 624.602
40 and includes an insurer issuing life insurance contracts that
41 grant additional benefits in the event of the insured's
42 disability.
43 (d) "Long-term care insurer" means an insurer that issues
44 long-term care insurance policies as described ins. 627.9404.
45 (2) USE OF GENETIC INFORMATION.-
46 (a) In the absence of a diagnosis of a condition related
47 to genetic information, fie health insurers, life insurers, and
48 long-term care insurers insurer authorized to transact insurance
49 in this state may not cancel, limit, or deny coverage, or
50 establish differentials in premium rates, based on such
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51 information.
52 (b) Health insurers, life insurers, and long-term care
53 insurers may not require or solicit genetic information, use
54 genetic test results, or consider a person's decisions or
55 actions relating to genetic testing in any manner for any
56 insurance purpose.
57 (c) This section does not apply to the underwriting or
58 issuance of an a life insurance policy, disability income
59 policy, long term care policy, accident-only policy, hospital
60 indemnity or fixed indemnity policy, dental policy, or vision
61 policy or any other actions of an insurer directly related to an
62 a life insurance policy, disability income policy, long term
63 care policy, accident-only policy, hospital indemnity or fixed
64 indemnity policy, dental policy, or vision policy.
65 Section 2. This act applies to policies entered into or
66 renewed on or after January 1, 2021.
67 Section 3. This act shall take effect July 1, 2020.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 6055 Telegraph Companies
SPONSOR(S): Gregory
TIED BILLS: IDEN./SIM. BILLS: SB 1256
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy & Utilities Subcommittee 15 Y, 0 N Keating Keating
2) Commerce Committee Keating
SUMMARY ANALYSIS
The bill repeals the entirety of chapter 363, F.S., which establishes penalties and liability provisions related to
the intrastate transmission of messages by telegraph. The provisions of chapter 363, F.S., appear to be
outdated and no longer applicable.
The bill has no fiscal impact on state or local government.
The effective date of the bill is July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h6055b.COM.D0CX
DATE: 1/21/2020
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
On May 26, 1844, Samuel Morse, inventor of the Morse code, sent the first message by telegraph in
the United States, ushering in the telegraph era that displaced the Pony Express. It read "WHAT HATH
GOD WROUGHT?" 1 We now have a more modern answer to that question, as transmitting and
receiving messages by telegraph has been replaced almost entirely by the speed and widespread
availability of e-mail, faxes, inexpensive long-distance telephone service, instant messaging, and social
media, such as Facebook and Twitter. 2
Still, Florida law includes an entire chapter related to the provision of telegraph service. Chapter 363,
F.S., establishes penalties and liability provisions related to the transmission and delivery of telegrams.
Sections 363.02 through 363.05, F.S., establish penalties and liability provisions for a telegraph
company 3 that owns or operates a telegraph line4 wholly or partly in the state and negligently fails to
promptly transmit and deliver messages 5 or refuses to receive for transmission any legible messages
provided to the company for transmission. Further, section 363.06, F.S., provides that persons
engaged in the business of sending telegrams 6 are liable for damages for mental anguish and physical
suffering resulting from negligent failure to promptly and correctly transmit or deliver a telegram.
Section 363.08, F.S., establishes liability for persons engaged in the business of sending telegrams in
cipher for negligent failure to promptly transmit and deliver a telegram in cipher. Section 363.10, F.S.,
provides that contractual provisions intended to limit the liability imposed in this chapter are illegal and
void. The provisions of this chapter apply only to intrastate transmission of telegraph messages. 7
The current provisions of ch. 363, F.S., have remained substantively unchanged since at least 1913. 8
Sections 363.02, 363.03, and 363.05, F.S., were adopted in 1907 and have remained in law since then
without amendment. Section 363.04, F.S., was adopted in 1907 and was changed once, in 1945, with
a one word technical amendment. Sections 363.06-.10, F.S., were adopted in 1913 and have
remained in law since then without amendment. No court opinions related to this chapter have been
published since 1945. 9
Western Union Telegraph Company, perhaps the most well-known telegram service provider, sent its
last telegram on January 27, 2006. 10 Based on an Internet search by staff, a handful of businesses still
advertise telegram service, some claiming to utilize, at least in part, the telegraph system operated by
1
See, e.g., Telegram Passes into History, Wired (Feb. 2, 2006), https://www.wired.com/2006/02/telegram-passes-into-history/ (last
visited Jan. 9, 2020).
2
In a twist of historical irony, some commenters, at the time of the telegraph's invention, found the service to be "superficial, sudden,
unsifted, too fast for the truth." See Adrienne Lafrance,/ Tried to Send a Telegram in 2016, The Atlantic (Jan. 22, 2016),
https://www.theatlantic.com/technology/archive/2016/0 I /rip-stop-telegrams/425136/ (last visited Jan. 9, 2020).
3
The term "telegraph company" is not defined for purposes of chapter 363, F.S.
4
The term "telegraph line" is not defined for purposes of chapter 363, F.S.
5
The provisions concerning delivery of messages apply only to deliveries in incorporated cities and towns. S. 363.02, F.S.
6
The term "telegram" is not defined for purposes of chapter 363, F.S.
7
Price v. Western Union Tel. Co., 23 So.2d 491 (Fla. 1945) ("sending ofa telegraph message from one state into another is a
transaction in interstate commerce").
8
Formers. 363.01, F.S., adopted in 1885, established a per-word rate cap for telegraph messages. This provision was repealed in
2000.
9
See supra, note 7.
10
Robert Seigel, Western Union Sends Its last Telegram, NPR (Feb. 2, 2006),
https://www.npr.org/templates/story/story.php?storyld=5 l 86 l l 3?storyld=5186113 (last visited Jan. 9, 2020).
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DATE: 1/21/2020
Western Union. 11 The terms of service for these companies do not specify exactly how the customer's
message will be transmitted, and some specifically state that transmission may occur through means
other than telegraph. In each case, the ultimate service provided is the delivery of a message to the
recipient on paper, with proof of delivery established by some service providers.
In a 2017 Order removing "outmoded regulations," the Federal Communications Commission indicated
that it was not aware of any interstate telegraph service providers and that "[t]elegraph service is
obsolete." 12 Further, none of the businesses identified in staff's search are registered to do business in
Florida. As a result, it appears that the provisions of chapter 363, F.S., are outdated and no longer
applicable.
Effect of Proposed Changes
The bill repeals the entirety of chapter 363, F.S.
B. SECTION DIRECTORY:
Section 1. Repeals ss. 363.02, 363.03, 363.04, 363.05, 363.06, 363.07, 363.08, 363.09, and 363.10,
F.S., relating to liability and damages for failure to transmit or deliver telegraph messages.
Section 2. Provides an effective date of July 1, 2020.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
11
For example, USCOMM LLC operates a service at sendtelegram.com. The website for the service indicates that "[a]fter closure of
retail operations by Western Union, we effectively replaced them in the.domestic market." Further, International Telegram operates a
service at iTelegram.com, whose website states that the company "operate[s] the former Western Union telex/cablegram network
covering most of the globe."
12
32 FCC Red 7132 (8) (2017).
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DATE: 1/21/2020
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
None.
STORAGE NAME: h6055b.COM.DOCX PAGE: 4
DATE: 1/21/2020
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 6055 2020
1 A bill to be entitled
2 An act relating to telegraph companies; repealing
3 chapter 363, F.S., relating to the regulation of
4 telegraph companies and telegrams; providing an
5 effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Chapter 363, Florida Statutes, consisting of
10 sections 363.02, 363.03, 363.04, 363.05, 363.06, 363.07, 363.08,
11 363.09, and 363.10, is repealed.
12 Section 2. This act shall take effect July 1, 2020.
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hb6055-00
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The bill authorizes intercollegiate athletes to earn compensation for their name, image, likeness, or persona
(NILP). The bill seeks to preserve the integrity, quality, character, and amateur nature of intercollegiate
athletics while maintaining a clear distinction between amateur intercollegiate athletics and professional
sports by:
• Providing that compensation for athletic performance or attendance at a particular institution
remains prohibited.
• Allowing NILP compensation only if it is provided by a third party unaffiliated with the athlete's
postsecondary educational institution.
The bill prohibits postsecondary educational institutions receiving state aid (Florida College System
institutions, State University System institutions, and private colleges and universities) from:
• Preventing or unduly restricting an intercollegiate athlete from earning NILP compensation.
• Preventing or unduly restricting an intercollegiate athlete from obtaining professional
representation for purposes of seeking NILP compensation.
• Revoking or reducing grant-in-aid awards for an intercollegiate athlete who earns compensation for
his or her NILP.
The terms of a contract for NILP compensation may not conflict with the terms of the intercollegiate
athlete's team contract or extend beyond the time of the athlete's participation in an athletic program at a
postsecondary educational institution. Athletes under 18 years of age must have any such contract
reviewed by a court.
In addition, the bill requires each postsecondary educational institution receiving state aid to:
• Provide intercollegiate athletes with health and disability insurance for the duration of the time it
takes the athlete to recover from the sports-related injury and a death benefit of $25,000. Injuries
must be timely reported and the right to benefits ends if no benefits are necessary for 2 years.
• Maintain grant-in-aid for intercollegiate athletes for:
o Up to one academic year or until the athlete graduates, whichever is shorter, when the
athlete has exhausted athletic eligibility.
o Up to five academic years or until the student-athlete graduates, whichever is shorter,
when the athlete is determined to be medically ineligible to participate in athletics due to
an injury that occurred while participating in an athletic program.
• Conduct a financial and life skills workshop at the beginning of the intercollegiate athlete's first and
third academic years.
FLORIDA H O U S E 0 F REPRESENTATIVES
Draft BILL 2020
1 A bill to be entitled
2 An act relating to intercollegiate athlete
3 compensation and rights; creating s. 1006.72, F.S.;
4 providing legislative findings; providing definitions;
5 authorizing certain intercollegiate athletes to earn
6 compensation for their names, images, likenesses, and
7 personas; providing requirements for such
8 compensation; prohibiting postsecondary educational
9 institutions from adopting or maintaining rules,
10 regulations, standards, or other requirements that
11 prevents or unduly restricts intercollegiate athletes
12 from earning specified compensation; providing that
13 certain compensation does not affect certain
14 intercollegiate athlete eligibility; prohibiting a
15 postsecondary educational institution from
16 compensating intercollegiate athletes or prospective
17 intercollegiate athletes for their names, images,
18 likenesses, or personas; prohibiting a postsecondary
19 educational institution from preventing or unduly
20 restricting intercollegiate athletes from obtaining
21 specified representation; requiring athlete agents and
22 attorneys to meet specified requirements; providing
23 that specified aid for intercollegiate athletes is not
24 considered compensation; prohibiting the revocation of
25 certain aid as a result of intercollegiate athletes
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26 earning certain compensation; providing approval
27 requirements for certain contracts for compensation
28 for intercollegiate athletes who are minors; providing
29 contract requirements; prohibiting intercollegiate
30 athletes from entering into contracts for specified
31 compensation that conflict with terms of her or his
32 team contract; providing intercollegiate athlete
33 contract disclosure requirements; requiring
34 postsecondary educational institutions to maintain
35 certain insurance for intercollegiate athletes;
36 providing requirements for such insurance; requiring
37 postsecondary educational institutions to provide
38 specified grant-in-aid to intercollegiate athletes
39 under certain circumstances and provide a specified
40 workshop; providing requirements for such grant-in-aid
41 and workshop; providing applicability; prohibiting the
42 use of state funds for specified purposes; providing
43 requirements for reporting certain injuries and claims
44 for benefits related to certain injuries; providing
45 requirements for certain disability compensation
46 benefits; prohibiting a postsecondary educational
47 institution from membership in specified associations,
48 conferences, or organizations; requiring the Board of
49 Governors and the State Board of Education to adopt
50 regulations and rules, respectively; amending s.
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FLORIDA H O U S E 0 F REPRESENTATIVES
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51 468.453, F.S.; providing requirements for certain
52 athlete agents; providing an effective date.
53
54 Be It Enacted by the Legislature of the State of Florida:
55
56 Section 1. Section 1006.72, Florida Statutes, is created
57 to read:
58 1006.72 Intercollegiate athlete compensation and rights.-
59 The Legislature finds that intercollegiate athletics provide
60 intercollegiate athletes with significant educational
61 opportunities. However, participation in intercollegiate
62 athletics should not infringe upon an intercollegiate athlete's
63 ability to earn compensation for her or his name, image,
64 likeness, or persona. An intercollegiate athlete must have an
65 equal opportunity to control and profit from the commercial use
66 of her or his name, image, likeness, and persona and be
67 protected from unauthorized appropriation and commercial
68 exploitation of her or his right to publicity, including her or
69 his name, image, likeness, and persona. Moreover, an
70 intercollegiate athlete's inability to participate in
71 intercollegiate athletics due to an injury should not impair her
72 or his future health or academic success.
73 ( 1) DEFINITIONS.-As used in this section, the term:
74 (a) "Athletic program" means an intercollegiate athletic
75 program at a postsecondary educational institution.
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76 (b) "Disability insurance" means insurance covering
77 disability compensation benefits for an intercollegiate athlete
78 participating in an athletic program.
79 (c) "Health insurance" means primary health insurance
80 covering injuries resulting from the intercollegiate athlete's
81 participation in an athletic program that provides for all
82 medically necessary treatment and care until the intercollegiate
83 athlete is restored to her or his condition before the injury.
84 ( d) "Injury" means an injury sustained by an
85 intercollegiate athlete while participating in an athletic
86 program's activities.
87 (e) "Insurance" means health insurance and disability
88 insurance.
89 (f) "Intercollegiate athlete" means a student who
90 participates in an athletic program. The term includes a former
91 intercollegiate athlete who suffered an injury.
92 (g) "Partial disability" means the intercollegiate
93 athlete's incapacity because of the injury to earn full-time
94 wages.
95 (h) "Physician" means a physician licensed under chapter
96 458, an osteopathic physician licensed under chapter 459, a
97 podiatric physician licensed under chapter 461, or an
98 optometrist licensed under chapter 463.
99 ( i) "Postsecondary educational ins ti tut ion" means a state
100 university, a Florida College System institution, or a private
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101 college or university receiving grant-in-aid or other aid under
102 chapter 1009.
103 ( j) "Total disability" means an intercollegiate athlete's
104 inability to earn wages because of an injury.
105 (2) INTERCOLLEGIATE ATHLETES' COMPENSATION AND RIGHTS AND
106 POSTSECONDARY EDUCATIONAL INSTITUTIONS RESPONSIBILITIES.-
107 (a) An intercollegiate athlete at a postsecondary
108 educational institution may earn compensation for her or his
109 name, image, likeness, or persona. To preserve the integrity,
110 quality, character, and amateur nature of intercollegiate
111 athletics and to maintain a clear separation between amateur
112 intercollegiate athletics and professional sports, such
113 compensation must not be based upon athletic performance or
114 attendance at a particular institution and may only be provided
115 by a third party unaffiliated with the intercollegiate athlete's
116 postsecondary educational institution.
117 (b) A postsecondary educational institution may not adopt
118 or maintain a contract, rule, regulation, standard, or other
119 requirement that prevents or unduly restricts an intercollegiate
120 athlete from earning compensation for the use of her or his
121 name, image, likeness, or persona. Earning such compensation may
122 not affect the intercollegiate athlete's grant-in-aid
123 eligibility.
124 (c) A postsecondary educational institution may not
125 compensate a current intercollegiate athlete or prospective
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126 intercollegiate athlete who may participate in intercollegiate
127 athletics for her or his name, image, likeness, or persona.
128 (d) A postsecondary educational institution may not
129 prevent or unduly restrict an intercollegiate athlete from
130 obtaining professional representation by an athlete agent or
131 attorney engaged for the purpose of securing compensation for
132 her or his name, image, likeness, or persona. Pursuant to s.
133 468.453(8), an athlete agent representing an intercollegiate
134 athlete for purposes of securing compensation for her or his
135 name, image, likeness, or persona must be licensed under part IX
136 of chapter 468. An attorney representing an intercollegiate
137 athlete for purposes of securing compensation for her or his
138 name, image, likeness, or persona must be a member in good
139 standing of The Florida Bar.
140 (e) Grant-in-aid awarded to an intercollegiate athlete by
141 a postsecondary educational institution is not compensation for
142 the purposes of this subsection, and grant-in-aid may not be
143 revoked or reduced as a result of an intercollegiate athlete
144 earning compensation or obtaining professional representation
145 under this subsection.
146 (f) An intercollegiate athlete under the age of 18 years
147 must have any contract for compensation for her or his name,
148 image, likeness, or persona approved under ss. 743.08 and
149 743.09.
150 (g) An intercollegiate athlete's contract for compensation
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151 for her or his name, image, likeness, or persona may not violate
152 this subsection.
153 (h) An intercollegiate athlete may not enter into a
154 contract for compensation for her or his name, image, likeness,
155 or persona if a term of the contract conflicts with a term of
156 the intercollegiate athlete's team contract. A postsecondary
157 educational institution asserting a conflict under this
158 paragraph must disclose each relevant contract term that
159 conflicts with the team contract to the intercollegiate athlete
160 or her or his representative.
161 (i) An intercollegiate athlete who enters into a contract
162 for compensation for her or his name, image, likeness, or
163 persona shall disclose the contract to the postsecondary
164 educational institution at which she or he is enrolled, in a
165 manner designated by the institution.
166 (j) The duration of a contract for representation of an
167 intercollegiate athlete or compensation of an intercollegiate
168 athlete's name, image, likeness, or persona may not extend
169 beyond her or his participation in an athletic program at a
170 postsecondary educational institution.
171 (k) Each postsecondary educational institution shall:
172 1.a. Maintain for each intercollegiate athlete health
173 insurance and disability insurance that meets the requirements
174 of sub-subparagraphs c. and d., respectively, by:
175 I. Verifying that the intercollegiate athlete is provided
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176 the benefits required by this section by her or his own
177 insurance or insurance provided by an immediate family member;
178 II. Providing insurance covering the intercollegiate
179 athlete;
180 III. Participating in an insurance program, which provides
181 at least the benefits required by this section, offered by an
182 intercollegiate athletics sanctioning body or intercollegiate
183 athletics association of which the postsecondary educational
184 institution is a member; or
185 IV. Any combination of sub-sub-subparagraphs I.-III.
186 b. If the intercollegiate athlete's insurance under sub-
187 sub-subparagraph I. lapses or does not provide the required
188 medical benefits, the postsecondary educational institution must
189 provide coverage under sub~sub-subparagraph II. or sub-sub-
190 subparagraph III., or a combination thereof, beginning with the
191 first dollar of a claim. If coverage is secured under sub-sub-
192 subparagraph I., any deductible amounts must be paid by the
193 postsecondary educational institution. If coverage is secured
194 under sub-sub-subparagraph II. or sub-sub-subparagraph III., or
195 a combination thereof, the entire premium and any deductible
196 amounts must be paid by the postsecondary educational
197 institution.
198 c. Health insurance under sub-subparagraph a. must include
199 dental benefits for dental conditions related to the injury,
200 medically necessary emergency and nonemergency medical
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201 transportation, professional and nonprofessional attendant care,
202 prosthetics, orthotics, durable medical equipment, and medically
203 necessary physical rehabilitation and vocational rehabilitation
204 benefits.
205 d. Disability insurance under sub-subparagraphs a. must
206 provide at least $400 per month for the first 12 months of total
207 disability and $2,700 per month for each month of total
208 disability beyond the first 12 months of total disability; at
209 least $270 per month for the first 12 months of partial
210 disability and $1,800 per month for each month of partial
211 disability beyond the first 12 months of partial disability; and
212 a death benefit of at least $25,000.
213 2. Provide an intercollegiate athlete who was receiving
214 athletic related grant-in-aid and is in good standing, an
215 equivalent grant-in-aid for:
216 a. Up to one academic year or until the intercollegiate
217 athlete completes her or his primary undergraduate degree,
218 whichever is shorter, if the intercollegiate athlete has
219 exhausted athletic eligibility.
220 b. Up to five academic years or until the intercollegiate
221 athlete completes her or his primary undergraduate degree,
222 whichever is shorter, if the intercollegiate athlete suffered an
223 injury, and an independent physician with a specialty
224 appropriate to each applicable injury determines that she or he
225 is medically ineligible to participate in intercollegiate
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226 athletics.
227 3. Conduct a financial literacy and life skills workshop
228 for a minimum of 5 hours at the beginning of the intercollegiate
229 athlete's first and third academic years. The workshop shall, at
230 a minimum, include information concerning financial aid, debt
231 management, and a recommended budget for full and partial grant-
232 in-aid intercollegiate athletes based on the current academic
233 year's cost of attendance. The workshop shall also include
234 information on time management skills necessary for success as
235 an intercollegiate athlete and available academic resources.
236 (3) LIMITATIONS.-
237 (a) This section does not require the medical treatment of
238 a preexisting medical condition except to the extent that the
239 preexisting medical condition is aggravated by the injury or
240 treatment of the preexisting medical condition is medically
241 necessary to the treatment of the injury.
242 (b) State funds may not be used to comply with the
243 requirements of this section.
244 (c) An injury must be reported by the earlier of the 30th
245 day after occurrence of the injury, the 30th day after the
246 intercollegiate athlete knew or should have known that an injury
247 existed, or 2 years after the intercollegiate athlete separates
248 from the postsecondary educational institution.
249 (d) An intercollegiate athlete's claim for benefits
250 related to an injury is barred after 2 years after the report of
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251 injury or 2 years after provision of compensable medical
252 treatment, whichever is later.
253 (e) For a former intercollegiate athlete receiving
254 disability compensation benefits under this section who is
255 earning wages while receiving such benefits or is determined by
256 a functional capacity expert to be capable of earning wages,
257 beginning 12 months after the date of the injury, the benefit
258 shall be reduced by an amount equal to one half of the former
259 intercollegiate athlete's after tax earnings in excess of the
260 base amount. The base amount shall be $1,000 for the first 12
261 months the reduction provided by this paragraph is applied and
262 shall increase by 2.5 percent annually thereafter. If the former
263 intercollegiate athlete is determined by a functional capacity
264 expert to have a wage earning capacity, but is not earning
265 wages, the disability compensation benefit shall be reduced by
266 one-half for any period more than 12 months after the date of
267 the injury that the former intercollegiate athlete is not
268 earning wages, unless the former intercollegiate athlete
269 documents her or his employment search, which must include at
270 least four employment applications submitted monthly.
271 (4) PROHIBITION OF MEMBERSHIP.-A postsecondary educational
272 institution may not be a member of any association, conference,
273 or organization that requires its members to comply with bylaws,
274 regulations, or policies that are inconsistent with this
275 section.
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276 (5) REGULATIONS AND RULES.-The Board of Governors and the
277 State Board of Education shall adopt regulations and rules,
278 respectively, to implement this section.
279 Section 2. Subsections (8) and (9) are added to section
280 468.453, Florida Statutes, to read:
281 468.453 Licensure required; qualifications; license
282 nontransferable; service of process; temporary license; license
283 or application from another state.-
284 (8) Notwithstanding subsection (3), a person must hold a
285 valid license as an athlete agent to act as an athlete agent
286 representing an intercollegiate athlete for purposes of
287 contracts authorized under s. 1006.72.
288 (9) Notwithstanding athletic conference or collegiate
289 athletic association rules, bylaws, regulations, and policies to
290 the contrary, an athlete agent may represent an intercollegiate
291 athlete in securing compensation for use of her or his name,
292 image, likeness, and persona under s. 1006.72.
293 Section 3. This act shall take effect July 1, 2020.
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