This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1351a.LFS
DATE: 2/7/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1351 Compensation for Advising or Assisting in Veterans' Benefits
SPONSOR(S): Local Administration, Federal Affairs & Special Districts Subcommittee, Eskamani and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1452
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration, Federal Affairs & Special
Districts Subcommittee
15 Y, 0 N, As CS Mwakyanjala Darden
2) Civil Justice Subcommittee
3) State Affairs Committee
SUMMARY ANALYSIS
Florida is home to 21 military installations and more than 69,000 military personnel. Florida also has the
nation’s third-largest veteran population with almost 1.5 million veterans. The United States Department of
Veterans Affairs (VA) and the Florida Department of Veterans’ Affairs (FDVA) provide various benefits and
services to veterans and their dependents.
FDVA employs veterans’ claim examiners in order to assist veterans in securing earned services, benefits, and
support. Counties and municipalities also may employ veterans service officers who may also assist in such
matters. Subject to limitations, an accredited attorney or an agent may receive fees for securing federal
veterans’ benefits on a claimant’s behalf.
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) is a consumer and business protection
measure that prohibits unfair methods of competition, unconscionable acts or practices, and unfair or deceptive
acts or practices in trade or commerce and is based on federal law.
The bill creates the “Governing Unaccredited Representatives Defrauding (GUARD) VA Benefits Act,”
providing a cause of action in order to prevent unethical conduct and improper collection of fees by individuals
advising or assisting those filing claims for disability benefits before the VA or FDVA. The bill provides
definitions to be used in the GUARD Act.
The bill prohibits any person from receiving compensation for preparing, presenting, or prosecuting a claim or
advising, consulting, or assisting an individual regarding a veterans’ benefits matter before the VA or FDVA, or
for referring an individual to a person who would provide such services and assistance. The bill provides
exceptions for permitted practices authorized by federal law and federal regulations and for attorneys.
The bill provides that those who receive compensation for preparing, presenting, or prosecuting a claim or
advising, consulting, or assisting an individual regarding a veterans’ benefits matter before the VA or FDVA
must be held to the same ethical standard to which attorneys are held by in rules regulating a number of
practices.
The bill provides that violating the GUARD Act is a deceptive and unfair trade practice and constitutes a
violation of FDUTPA.
The bill does not appear to have a fiscal impact on local governments, but may have an indeterminate impact
on state government. STORAGE NAME: h1351a.LFS PAGE: 2
DATE: 2/7/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Florida Department of Veterans’ Affairs
The Florida Department of Veterans’ Affairs (FDVA) is a nearly 1,500-member constitutionally
chartered
1
department with a budget of $201 million for FY 2023-24.
2
FDVA operates a network of nine
state veterans’ homes and provides statewide outreach to connect veterans and their spouses with
services, benefits and support.
3
FDVA is currently required to provide benefits and services in the fields
of health care, mental health and substance abuse, claims support, education, employment, housing,
burial benefits, and legal assistance to veterans and their spouses.
4
Current law does not require FDVA
to provide these benefits and services to the spouses of veterans.
Each year, about 250,000 servicemembers end military service as veterans and either reenter the
civilian workforce or enroll in higher education.
5
Florida is home to 21 military installations
6
and 69,290
military personnel.
7
Florida also has the nation’s third-largest veteran
8
population with almost 1.4 million
veterans.
9
Many of these veterans are recently transitioned servicemembers.
Veterans Claims Examiners
FDVA oversees and operates the Bureau of Veteran Claim Services (Bureau) within the Division of
Veterans’ Benefits and Assistance.
10
Through the Bureau, veterans’ claims examiners assist veterans
in securing earned services, benefits, and support.
The FDVA houses claims examiner offices throughout the state, including at the U.S. Department of
Veterans Affairs (VA) Regional Office in Bay Pine, each VA Medical Center, and many VA Outpatient
Clinics.
11
Claims assistance is provided at no cost and covers all state and federal veterans’ programs.
City and County Veteran Service Officers
Boards of county commissioners and governing bodies of municipalities may employ veteran service
officers and prescribe their duties, compensation, and terms of employment.
12
Any veteran as defined
by state law,
13
or a surviving spouse of such veteran, may serve as a veteran service officer. The
1
Art. IV, s. 11, Fla. Const.
2
Ch. 2023-239, Laws of Fla., pg. 143.
3
Florida Department of Veterans’ Affairs, Florida Department of Veterans’ Affairs – Our Vision and Mission,
https://www.floridavets.org/leadership/ (last visited Feb. 3, 2024).
4
Florida Department of Veterans Affairs, Benefits & Services, https://www.floridavets.org/benefits-services/ (last visited Feb. 3, 2024).
5
U.S. Department of Veterans Affairs, Your VA Transition Assistance Program (TAP), https://www.benefits.va.gov/transition/tap.asp
(last visited Feb. 3, 2024).
6
Select Florida, Defense & Homeland Security, 2, https://selectflorida.org/wp-content/uploads/defense-and-homeland-security-industry-
profile.pdf (last visited Feb. 3, 2024).
7
Data from September 2021. Florida Military & Defense, Economic Impact Summary (2022), 2, https://selectflorida.org/wp-
content/uploads/Florida-2022-EIS-Summary-Book-Final.pdf (last visited Feb. 3, 2024).
8
S. 1.01(14), F.S., defines a “veteran” as a person who served in the active military, naval, or air service and who was discharged or
released under honorable conditions, or who later received an upgraded discharge under honorable conditions. The definition in s.
1.01(14), F.S., is cited in numerous statutes, including ss. 117.02, 265.003, 292.055, 295.02, 295.07, 295.187, 295.188, 296.02,
296.08, 296.33, 296.36, 409.1664, 548.06, 943.17, and 1009.26, F.S.
9
U.S. Department of Veterans Affairs (VA), National Center for Veterans Analysis and Statistics, VetPop2020 by State, Age Group,
Gender, 2020-2050, available at https://www.va.gov/vetdata/veteran_population.asp (last visited Feb. 3, 2024). The Veteran Population
Projection Model 2020 (VetPop2020) provides an official veteran population projection from the U.S. Department of Veterans Affairs.
10
S. 20.37(2)(b), F.S.
11
Florida Department of Veterans’ Affairs, Claims, https://www.floridavets.org/benefits-services/claims/ (last visited Feb. 3, 2024).
12
S. 292.11, F.S.
13
See s. 1.01(14), F.S., providing that a veteran is a person who served in the active military, naval, or air service and who was
discharged or released under honorable conditions or who later received an upgraded discharge under honorable conditions. STORAGE NAME: h1351a.LFS PAGE: 3
DATE: 2/7/2024
applicant must additionally have a minimum of a 2-year degree from an accredited institute of higher
education or a high school degree or its equivalent and 4 years of administrative experience.
FDVA provides required training for county and city veteran service officers to assist veterans.
14
Every
county or city veteran service officer must pass a test administered by FDVA prior to assuming any
responsibilities as a veteran service officer. FDVA establishes periodic training refresher courses with
completion a condition of continuing employment.
Federal Law on Paid Services for Benefit Assistance of Veterans
Federal law governs the payment of fees by a claimant to an accredited agent or attorney for
representation in securing federal veterans’ benefits.
15
An accredited attorney or an agent may receive
fees for representation before an agency of original jurisdiction or the Board of Veterans’ Appeals,
subject to limitation.
16
Fee Agreement
Federal law requires that a fee agreement include:
The name of the veteran;
The name of the claimant or appellant if other than the veteran;
The name of any disinterested third-party payer and their relationship with the veteran, claimant,
or appellant;
The VA file number;
Specific terms under which the amount to be paid for services is determined; and
If the VA is to pay the agent or attorney directly out of past due benefits.
17
A fee agreement must also include the following statement, signed by the provider:
I certify that no agreement, oral or otherwise, exists under which the claimant or
appellant will provide anything of value to the third-party payer in this case in
return for payment of my fee or salary, including, but not limited to,
reimbursement of any fees paid.
18
Amount of Fees
A fee charged for services must be reasonable, based on:
The extent and type of services performed;
The complexity of the case;
The level of skill and competence required in giving the services;
The amount of time spent on the case;
The results achieved, including the amount of benefits recovered;
The level of review to which the claim was taken and the representative retained;
Rates charged by other representatives for similar services;
Whether, and to what extent, the payment of fees is contingent upon the results achieved; and
If applicable, why an agent or attorney was discharged or withdrew from representation before
the date of the decision awarding benefits.
19
A presumption of reasonableness applies if a fee does not exceed 20 percent of a past-due benefit if
the representative provided continuous service through the date of the decision awarding benefits. If a
fee exceeds 33 and 1/3 percent of a past-due benefit, it is considered unreasonable. Each presumption
14
S. 291.11(4), F.S.
15
38 CFR s. 14.636
16
See 38 CFR ss. 14.636(c)(1)(i) and (ii), 38 CFR ss. 14.636(c)(2)(i) and (ii).
17
38 CFR s. 14.636(g)
18
38 CFR s. 14.636(d)(2)(iii)
19
38 CFR s. 14.636(e) STORAGE NAME: h1351a.LFS PAGE: 4
DATE: 2/7/2024
is rebuttable upon a showing of clear and convincing evidence.
20
For contingent fees, a reasonable fee
for an agent or attorney discharged by the claimant or who withdraws from representation before the
date of the decision awarding benefits is one that fairly and accurately reflects the agent’s or attorney’s
contribution to and responsibility for the benefits awarded.
21
Filing of a Notice of Disagreement
A Notice of Disagreement is a filing by a claimant who disagrees with the decision made by the VA on a
disability compensation claim. Although the claim decision by the VA becomes certified after 30 days, it
isn’t final until one year after the date of the decision. Therefore, the claimant can file a Notice of
Disagreement at any time up to one year from the date of decision
22
The Florida Deceptive and Unfair Trade Practices Act
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) is a consumer and business
protection measure that prohibits unfair methods of competition, unconscionable acts or practices, and
unfair or deceptive acts or practices in trade or commerce.
23
The FDUTPA is based on federal law.
24
For example, Florida has determined that the following acts or practices are unfair or deceptive:
Imposing unconscionable prices for the rental or lease of any dwelling unit or self-storage
facility during a period of declared state of emergency;
25
Failing to abide by storage requirements for personal information and notice requirements for
data breaches of such information;
26
and
Failing to abide by requirements for weight-loss programs.
27
The state attorney or the Department of Legal Affairs (DLA) may bring FDUTPA actions, if it serves the
public interest, on behalf of consumers or governmental entities.
28
The Office of the State Attorney
(SAO) may enforce FDUTPA violations occurring in its jurisdiction. DLA has enforcement authority if
the violation is multi-jurisdictional, the state attorney defers in writing, or the state attorney fails to act
within 90 days after a written complaint is filed.
29
Consumers may also file suit through private
actions.
30
DLA and the SAO have powers to investigate FDUTPA claims, which include:
Administering oaths and affirmations;
Subpoenaing witnesses or matter; and
Collecting evidence.
31
DLA and the SAO, as enforcing authorities, may seek the following remedies:
Declaratory judgments;
20
38 CFR 14.636(f)(1).
21
38 CFR 14.636(f)(2).
22
Veterans Administration, VA News, How to File a Notice of Disagreement on your VA Compensation Claim, available at
https://news.va.gov/33909/ (last visited Jan. 22, 2024).
23
Ch. 73-124, Laws of Fla., and s. 501.202, F.S.
24
D. Matthew Allen, et. al., The Federal Character of Florida’s Deceptive and Unfair Trade Practices Act, 65 U. MIAMI L. REV. 1083
(Summer 2011), https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1127&context=umlr (last visited Feb. 3, 2024).
25
S. 501.160, F.S.
26
S. 501.171, F.S.
27
S. 501.0579, F.S.
28
Ss. 501.207(1)(c) and (2), F.S.; see s. 501.203(2), F.S. (defining “enforcing authority” and referring to the office of the state attorney if
a violation occurs in or affects the judicial circuit under the office’s jurisdiction; or the Department of Legal Affairs if the violation occurs
in more than one circuit; or if the office of the state attorney defers to the department in writing; or fails to act within a specified period.);
see also David J. Federbush, FDUTPA for Civil Antitrust: Additional Conduct, Party, and Geographic Coverage; State Actions for
Consumer Restitution, 76 FLORIDA BAR JOURNAL 52, Dec. 2002 (analyzing the merits of FDUPTA and the potential for deterrence of
anticompetitive conduct in Florida),
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/c0d731e03de9828d852574580042ae7a/99aa165b7d8ac8a485256c8300791ec1!Op
enDocument&Highlight=0,business,Division* (last visited Feb. 2, 2024).
29
S. 501.203(2), F.S.
30
S. 501.211, F.S.
31
S. 501.206(1), F.S. STORAGE NAME: h1351a.LFS PAGE: 5
DATE: 2/7/2024
Injunctive relief;
Actual damages on behalf of consumers and businesses;
Cease and desist orders; and
Civil penalties of up to $10,000 per willful violation.
32
FDUTPA may not be applied to certain entities in certain circumstances, including:
Any person or activity regulated under laws administered by the Office of Insurance Regulation
or the Department of Financial Services; or
Banks, credit unions, and savings and loan associations regulated by the Office of Financial
Regulation or federal agencies.
33
Effect of Proposed Changes
The bill creates the “Governing Unaccredited Representatives Defrauding (GUARD) VA Benefits Act,”
providing a cause of action in order to prevent unethical conduct and improper collection of fees by
individuals advising or assisting those filing claims for disability benefits before the VA or FDVA.
For purposes of the GUARD Act, the bill defines:
“Compensation” means payment of any money, thing of value, or financial benefit.
“Person” means an individual, corporation, business trust, estate, trust, partnership, limited
liability company, , joint venture, public corporation, or any other legal or commercial entity.
“Veterans’ benefits matter” means the preparation, presentation, or prosecution of any claim
affecting any person who has filed or expressed an intent to file a claim for any benefit,
program, service, commodity, function, or status the entitlement to which is determined under
the laws and regulations administered by FDVA or the VA pertaining to veterans, their
dependents, their survivors, and any other individual eligible for such benefits.
The bill prohibits any person from receiving compensation for preparing, presenting, or prosecuting a
claim or advising, consulting, or assisting an individual regarding a veterans’ benefits matter before the
VA or FDVA. The bill provides exceptions for permitted practices authorized by federal law and federal
regulations.
The bill prohibits a person from receiving compensation for referring an individual to another person
who prepares, presents, or prosecutes a claim or who advises, consults, or assists an individual with a
veterans’ benefits matter before the VA or FDVA, excluding attorneys dividing fees as otherwise proper
pursuant to American Bar Association's Model Rules of Professional Conduct.
The bill requires individuals receiving compensation for preparing, presenting, or prosecuting a claim or
advising, consulting, or assisting an individual regarding a veterans’ benefits matter before the VA or
FDVA to be held to the same ethical standard to which an attorney is held in the rules regulating The
Florida Bar regarding:
Advertising;
Solicitation of new clients;
Confidentiality;
Duty of care;
Duty of honesty; and
Duty to zealously pursue what is in the best interest of his or her client.
The bill provides that violating the GUARD Act is a deceptive and unfair trade practice and constitutes a
violation of FDUTPA.
B. SECTION DIRECTORY:
32
Ss. 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into the General Revenue fund. Enforcing authorities may
also request attorney fees and costs of investigation or litigation. S. 501.2105, F.S.
33
S. 501.212(4), F.S. STORAGE NAME: h1351a.LFS PAGE: 6
DATE: 2/7/2024
Section 1: Creates s. 294.225, F.S., relating to advising or assisting in veterans’ benefits matters.
Section 2: Provides severability.
Section 3: Provides an effective date of upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill may have an indeterminate impact due to the expenses necessary to prosecute any
FDUTPA claim that may arise in order to enforce the GUARD Act.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill will prohibit certain individuals from being compensated for preparing, presenting, or
prosecuting a claim or advising, consulting, or assisting an individual regarding a veterans’ benefits
matter before the VA or FDVA.
D. FISCAL COMMENTS:
None.
III. 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:
The bill neither authorizes nor requires rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
STORAGE NAME: h1351a.LFS PAGE: 7
DATE: 2/7/2024
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On February 7, 2024, the Local Administration, Federal Affairs & Special Districts Subcommittee adopted
an amendment and reported the bill favorably as a committee substitute. The amendment removed
associations and governmental entities from the list of persons prohibited from receiving compensation for
assisting an individual regarding a veterans’ benefits matter.
This analysis is drafted to the committee substitute as passed by the Local Administration, Federal Affairs
& Special Districts Subcommittee.