SECTION 65. Special Fund; Trust Fund; assessment base; assessment rates; payments; reports; audits

(1) There is hereby established a special revenue fund in the state treasury, known as the Workers' Compensation Special Fund, the proceeds of which may be expended by the department, subject to appropriation, for the operating expenses of the department.

(2) There is hereby established a trust fund in the state treasury, known as the Workers' Compensation Trust Fund, the proceeds of which shall be used to pay or reimburse the following compensation: (a) reimbursement of adjustments to weekly compensation pursuant to section thirty-four B; (b) reimbursement of adjustments to weekly compensation pursuant to section thirty-five C; (c) reimbursement of certain apportioned benefits pursuant to section thirty-seven; (d) payment of vocational rehabilitation benefits pursuant to section thirty H; (e) payment of benefits resulting from approved claims against employers subject to the personal jurisdiction of the commonwealth who are uninsured in violation of this chapter; provided, however, that (i) the claimant is not entitled to workers' compensation benefits in any other jurisdiction; (ii) no benefits pursuant to section twenty-eight and no interest pursuant to section fifty shall be payable out of the trust fund; (f) reimbursement of benefits pursuant to section twenty-six; and (g) reimbursement of certain apportioned benefits pursuant to section thirty-seven A. No reimbursements from the Workers' Compensation Trust Fund shall be made under clauses (a) to (g), inclusive, to any non-insuring public employer, self-insurer or self-insurance group which has chosen not to participate in the fund as hereinafter provided.

The reasonable and necessary costs of administering and representing the Workers' Compensation Trust Fund may be paid out, without appropriation, of said trust fund. Such costs shall include, but not be limited to: the taking of depositions, the hiring of private investigators, the filing and service of summonses and subpoenas and other associated court costs, the retention of outside legal counsel and medical providers, and the provision of services relating to the management of the fund. Revenues for the special fund and the trust fund established herein shall be raised by an assessment on all employers subject to this chapter.

No private employer with a license to self-insure and no private self-insurance group shall be required to pay assessments levied to pay for disbursements under clauses (a) to (g), inclusive, and neither the commonwealth, nor any city, town, or other political subdivision of the commonwealth or public employer self-insurance group shall be required to pay assessments levied to pay for disbursements under clause (a), (b), (c), (d), (e), (f) or (g) if such employer or group has given up an entitlement to reimbursement under said clauses by filing a notice of non-participation with the department. Such notice shall be made to the commissioner on or before March first of any year in order to be effective as of July first of that year. Notice of non-participation shall be irrevocable and shall be signed by the chief executive officer or board of trustees of the employer or group. Non-participation shall not be allowed any employer or group that has not paid all assessments due at the time of the department's receipt of notice of non-participation. No private employer or group shall be relieved of the requirement to pay assessments levied to fund disbursements under clause (d) or (e).

A public employer which has a policy with a workers' compensation insurer shall have the ability to file a notice of non-participation as specified above; provided, however, that its insurer shall not be entitled to reimbursement from the Workers' Compensation Trust Fund, and the insured public employer shall be required to reimburse its insurer for any payments the insurer makes on its behalf that would otherwise be subject to reimbursement under clauses (a) to (g), inclusive.

(3) Each insurer authorized to write workers' compensation in the commonwealth, each self-insurer, each self-insurance group, and the commonwealth shall report to the department annually on or before May first, the assessment base amount for employers subject to this chapter. The Massachusetts workers' compensation rating bureau shall report aggregate base amount data for employers insured by its members. The assessment base amount for all employers shall be the losses paid under this chapter for the preceding twelve month period beginning January first and ending on the last day of December.

If an insurer, self-insurer, or self-insurance group fails to report such base amounts to the department on or before May first, the department may assess a one thousand dollar fine for each month or part thereof that its report is late and may estimate a base amount, until the actual base amount is determined, by taking into consideration the actual base amount last reported for the assessment payor; provided, however, that no estimated base amount shall be greater than one hundred and twenty per cent of the actual base amount reported.

(4) The department shall determine the special fund and trust fund assessment rates pursuant to the following procedures:

(a) The sum of the following two amounts shall be known as the special fund budget: (i) the total amount of funds appropriated each year to pay the operating expenses of the department pursuant to subsection (1); and, (ii) the total amount of funds estimated to be expended from the General Fund in the fiscal year for indirect and fringe benefit costs attributable to compensation of state personnel of the department, as determined by the commissioner of administration, who shall reduce, or increase, his estimate by the actual amount of such indirect and fringe benefit costs over-assessed, or under-assessed, by the department in the prior fiscal year.

(b) On or before July first of each year the department shall estimate the total amount of funds required to make payments during the following twelve months for the compensation payable pursuant to subsection (2) of this section. The total amount of this estimate, subject to the approval of the secretary of labor and workforce development, shall be known as the trust fund budget. The trust fund budget shall be reviewed by the advisory council. Upon the affirmative vote of at least seven voting members, the advisory council may submit its own estimate of the trust fund budget to the secretary of labor and workforce development. The department's estimate shall separately state that portion of projected disbursements pursuant to subsection (2) that is attributable to expected claims against (i) private employers and (ii) the commonwealth and its political subdivisions subject to this chapter. The separately stated estimate for private employers shall be known as the private employer trust fund budget. The separately stated estimate for the commonwealth and its political subdivisions shall be known as the public employer trust fund budget.

(c) If the balance of the special fund at the end of the fiscal year exceeds thirty-five per cent of the previous year's disbursements from that fund, the budget for that fund, for the purpose of calculating the fund assessment rate, shall be reduced by that part of the balance in excess of thirty-five per cent of the previous year's disbursements. If the balance of either the private employer portion or the public employer portion of the trust fund at the end of the fiscal year, exceeds thirty-five per cent of the previous year's disbursements from that portion of the fund, as reported pursuant to subsection (9), the budget for that portion of the fund, for the purpose of calculating the fund assessment rate shall be reduced by that part of the balance for that portion of the fund in excess of thirty-five per cent of the previous year's disbursements, reported pursuant to subsection (9). Additional assessments may be levied by the commissioner, subject to the approval of the secretary of labor and workforce development, if he finds such assessments necessary in order to make disbursements for any expenses or compensation payments in the fiscal year which exceed the revenue generated by the assessments for the fiscal year levied pursuant to subsection (5). Any additional assessment proposed by the commissioner shall be reviewed by the advisory council. Upon the affirmative vote of at least seven voting members, the advisory council may submit its estimate of the necessary additional assessment to the director of labor and workforce development.

(d) For each assessment payor, except for the commonwealth and any of its political subdivisions subject to this chapter, the assessment rate shall be determined by dividing the sum of the special fund and the total of those portions of the private employer trust fund and the total of those portions of the private employer trust budget from which such payor is entitled to seek reimbursement pursuant to subsection (2) by the sum of the base amounts reported by such assessment payors pursuant to subsection (3). For the commonwealth and any of its political subdivisions subject to this chapter, the assessment rate shall be determined by dividing the total of those portions of the public employer trust fund budget from which such payor is entitled to seek reimbursement pursuant to subsection (2) by the sum of the base amounts reported by such assessment payors pursuant to subsection (3).

(5) Each self-insurance group shall pay to the treasurer of the commonwealth a sum assessed by the department equal to the product of its standard premium and the assessment rates determined pursuant to subsection (4), multiplied by the total base amount for all self-insured groups divided by the estimated total standard premiums for all self-insured groups for the next twelve-month period beginning January first and ending on the last day of December. For each insured employer, the assessment shall be equal to the product of its standard workers' compensation premium and the assessment rate determined pursuant to subsection (4), multiplied by the ratio of the aggregate base amount for all insured employers as reported pursuant to subsection (3), to the aggregate written estimated premium for these said employers for the next twelve-month period beginning January first and ending on the last day of December. Such aggregate written estimated premiums shall be based on currently applicable rates as approved by the commissioner of insurance. The Rating Bureau shall compute said ratio and submit it to the division of industrial accidents by May first of each year for review and approval. Insurers shall bill and collect assessments on insured employers. Such assessments shall be separately stated amounts on all premium notices, and shall not be reported as premiums for any tax or regulatory purposes under chapter sixty-three, one hundred and seventy-five, or any other law. Assessment rates for insured employers shall apply to standard premiums for policy years beginning on or after July first following the determination of such rates. The assessment for each self-insurer shall be equal to the product of the assessment rate and the self-insurer's imputed premium multiplied by the total base amount for all self-insurers, divided by the total imputed premium for all self-insurers as determined by the department. Insurers shall transmit assessments collected during each quarter, and self-insurers and self-insurance groups shall pay assessments due each quarter, to the state treasurer no later than one month after the end of the quarter.

Each failure to pay an assessment within thirty days of the payor's receipt of any bill from the department shall result in a separate fine in the amount of five percent of the balance of any such overdue assessment. The commissioner may establish a commonwealth lien on any employer to collect assessments and fines for which such employer is liable under this section. Similar fines and liens may be imposed on insurers for failure to transmit assessments collected under this section.

In the case of self-insurers or self-insurance groups that have been operating for less than twelve months, the department shall establish procedures under which the assessments to be paid by the self-insurer or self-insurance group shall be related to the prior status of such employers.

(6) The revenue received from assessments levied under this section shall be kept in the special fund or the trust fund separate and apart from all other monies received by the commonwealth; provided, however, that revenues received from assessments on account of indirect and fringe benefit costs determined pursuant to clause (ii) of paragraph (a) of subsection (4), and any interest thereon, shall be credited to the General Fund. The proceeds from any fine or fee imposed pursuant to this chapter shall be kept in the special fund. The treasurer of the commonwealth shall be the custodian of the special fund and trust fund, and revenues received shall be deposited in each fund proportional to that fund's share of the total budget. For the purposes of determining the proportional shares of amounts to be deposited in the special fund and trust fund, the special fund budget and the total budget shall be reduced by the amount of said indirect and fringe benefit costs. The monies in the special fund and trust fund shall be invested by the treasurer in accordance with law; provided, however, that the treasurer shall make no investments that prevent the treasurer from making timely payment of disbursements pursuant to subsections (1) and (2). Interest income and dividends from such investments shall be credited to the fund from which the interest or dividends accrue.

(7) The treasurer shall make payments from accounts of the trust fund on the submission of a warrant listing all payments to be made and the accounts to be debited, which has been approved in writing by the director of labor and workforce development or his designee.

(8) If the trust fund pays compensation to a claimant pursuant to clause (e) of subsection (2), it may seek recovery from the uninsured employer for an amount equal to the amount paid on behalf of the claimant under this chapter, plus any necessary and reasonable attorney fees. Any action by the trust fund to seek recovery from the uninsured employer shall be commenced within twenty years of the claimant's filing a claim for benefits under this chapter against the trust fund.

(9) The treasurer shall, on or before October first of each year, submit to the advisory council, the governor, the clerk of the senate, and the clerk of the house of representatives, an annual report for the previous fiscal year. The report shall include a statement of the revenues and disbursements of the special fund and trust fund for the fiscal year, the balance existing at the beginning and the end of the fiscal year for each fund, and any other information the treasurer deems appropriate. The report shall include a statement of revenues, disbursements, and the balance existing at the beginning and end of the fiscal year for private employers and a separate statement of these amounts for the commonwealth and its political subdivisions subject to this chapter.

(10) The books and records of the special fund and trust fund shall be subject to an audit by the state auditor, in accordance with generally accepted government auditing standards, as often as the state auditor determines is necessary.

(11) The intent of the separate financial reports and assessment calculations for public employers under this section is to prevent said employers from bearing inappropriate costs. Nothing in this section shall be construed to prohibit the rights of any political subdivision of the commonwealth to rescind acceptance of this chapter pursuant to section sixty-nine; provided, however, that any such rescinding political subdivision shall be deemed to be an uninsured person and shall be subject to the provisions of section sixty-six.

(12) The commissioner shall supervise, monitor and establish procedures for all aspects of the assessment of insured and self-insured employers and self-insurance groups including but not limited to the proper reporting of base amounts; the determination of proper assessment rates; the calculation, billing and collection of assessment payments; proper accounting; reporting and transmittal by insurers of assessment payments by insured employers; and all other matters necessary to assure proper compliance with this section; and may issue regulations and conduct hearings for this purpose. He also shall establish procedures for the review and adjudication of grievances by employers with respect to the propriety and accuracy of assessed payment.

(13) Claims against the Workers' Compensation Trust Fund for payment of compensation pursuant to clause (e) of subsection (2) shall be handled in accordance with section ten; provided, however, that no penalty pursuant to section seven shall be levied against the fund and no referral fee pursuant to section ten or filing fee pursuant to section eleven A or eleven C shall be required of the fund. No voluntary payment for any period of time shall alone be held to foreclose the fund from defending any issue involved in a claim for compensation. On a motion of a claimant or representative of the fund, an administrative judge may join the uninsured employer as a party.