Transportation, Operations, Construction

Rule R916-5

Health Reform -- Health Insurance Coverage in State Contracts -- Implementation

Notice of Proposed Rule

(Amendment)

DAR File No.: 33649
Filed: 05/13/2010 06:09:27 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to comply with the new provisions of Section 72-6-107.5 enacted by H.B. 20 in the 2010 general legislative session. (DAR NOTE: H.B. 20 (2010) is found at Chapter 229, Laws of Utah 2010, and was effective 05/11/2010.)

Summary of the rule or change:

The proposed changes clarify the applicability of the rule, add that an underwriter may determine actuarial equivalency, and include various grammatical and stylistic changes.

State statutory or constitutional authorization for this rule:

• Section 72-6-107.5

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings to the state budget because compliance is already required and the changes only clarify the obligations of contractors, subcontractors, consultants, and subconsultants.

local governments:

There is no anticipated cost or savings to local government because compliance is only required in state construction contracts and the changes only clarify the obligations of contractors, subcontractors, consultants, and subconsultants.

small businesses:

There is no anticipated cost or savings to small businesses because compliance is already required and the changes only clarify the obligations of contractors, subcontractors, consultants, and subconsultants.

persons other than small businesses, businesses, or local governmental entities:

There is no anticipated cost or savings to persons other than small businesses, businesses, or local government entities because compliance is already required and the changes only clarify the obligations of contractors, subcontractors, consultants, and subconsultants.

Compliance costs for affected persons:

There is no anticipated cost or savings to affected persons because compliance is already required and the changes only clarify the obligations of contractors, subcontractors, consultants, and subconsultants and make it easier to obtain a determination of actuarial equivalency.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no anticipated fiscal impact on businesses because the compliance is already required and the changes only clarify the obligations of contractors, subcontractors, consultants, and subconsultants.

John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Operations, Construction
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• Linda Barrow at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at lindabarrow@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/01/2010

This rule may become effective on:

07/08/2010

Authorized by:

John Njord, Executive Director

R916. Transportation, Operations, Construction.

R916-5. Health Reform -- Health Insurance Coverage in State Contracts -- Implementation.

R916-5-1. Purpose.

The purpose of this [R]rule is to comply with [Utah Code Annotated ]Section 72-6-107.5 and establish the requirements and procedures a contractor, subcontractor, consultant and subconsultant must follow to demonstrate they will maintain an offer of health insurance as required by Section 72-6-107.5. This[e] [R]rule also establishes penalties for intentional violations[anyone covered by this Rule if they intentionally violate the provisions] of Section 72-6-107.5.

 

R916-5-2. Authority.

This [R]rule is authorized under Section 72-6-107.5 which requires the Utah Department of Transportation to make rules related to health insurance in certain design and construction contracts.

 

R916-5-3. Definitions.

(1) Except as otherwise stated in this rule, terms used in this rule are defined in Section 72-6-107.5

(2) In addition:

(a) "Executive Director" means the Executive Director of the Department of Transportation, including, unless otherwise stated, the Executive Director's duly authorized designee.

(b) "Department" means the Department of Transportation established pursuant to Section 72-1-201.

(c) "Employee(s)" is as defined in 72-6-107.5 and includes only those employees that live and/or work in the State of Utah along with their dependents. "Employee" for purposes of this rule, shall not be construed as to be broader than that the use of the term employee for purposes of State of Utah Workers' Compensation laws.

(d) "State" means the State of Utah.[ The definitions found in Section 72-6-107.5 shall apply to Rule 916-5.]

 

R916-5-4. Applicability of Rule.

(1) Except as provided in [Rule R916-5-4]Subsection (2) below, this [R]rule [R916-5 ]applies to all contracts entered into by the Department on or after July1, 2009, and is applicable to a prime contractor if its contract is in the amount of $1,500,000 or greater, and to a subcontractor if its subcontract is in the amount of $750,000 or greater.[if:

(a) the contract is for design and/or construction; and

(b)(i) the prime contract is in the amount of $1,500,000 or greater; or

(ii) a subcontract, at any tier, is in the amount of $750,000 or greater.]

(2) This [R]rule [R916-5 ]does not apply if:

(a) the application of this [R]rule [916-5 ]jeopardizes the receipt of federal funds;

(b) the contract is a sole source contract; or

(c) the contract is an emergency procurement; or

(d) the [R]ule is in conflict with federal law.

(3) This [R]rule [R916-5 ]does not apply to a change order as defined in Section 63G-6-103, or a modification to a contract, when the contract does not meet the initial threshold required by [Rule R]Subsection R916-5-4(1).

(4) A person who intentionally uses change orders or contract modifications to circumvent the requirements of subsection (1) is guilty of an infraction.

 

R916-5-5. Contractors or Consultants to Comply with Section 72-6-107.5.

All contractors, subcontractors, consultants or subconsultants that are subject to the requirements of Section 72-6-107.5 shall comply with all the requirements, and be subject to the penalties and liabilities of Section 72-6-107.5.

 

R916-5-6. Not Basis for Protest, Suspension, Disruption, or Termination Design or Construction.

(1) The failure of contractors, subcontractors, consultants, or subconsultants to comply with Section 72-6-107.5:

(a) may not be the basis for a protest or other action from a prospective bidder, offeror, or contractor or consultant under Section 63G-6-801 or any other provision in Title 63G, Chapter 6, Part 8, Legal and Contractual Remedies; and

(b) may not be used by the procurement entity or a prospective bidder, offeror, or contractor or consultant as a basis for any action or suit that would suspend, disrupt or terminate the design or construction.

(2) A contractor who is unable to demonstrate compliance within 14 calendar days of bid opening or when proposals are due may be declared non-responsive and the Department may award the contract to the lowest responsive bidder.

(3) A consultant who is unable to demonstrate compliance within 14 calendar days of being ranked first during the consultant selection process, may be declared non-responsive and the Department may enter negotiations with the new first-ranked responsive consultant.

 

R916-5-7. Requirements and Procedures a Contractor or Consultant Must Follow.

(1) A contractor, or consultant, subcontractors or subconsultants must comply with the following requirements and procedures, and[ in order to] demonstrate, no later than the time of execution of the contract, compliance with Section 72-6-107.5:[.]

([1]a) [Demonstrating Compliance with Health Insurance Requirements. The following requirements must be met by a contractor, consultants, subcontractors, and subconsultants that are subject to the requirements of this Rule no later than the time of execution of the contract:

(a) demonstrate compliance] by providing a written certification to the Executive Director that the contractor, consultants, subcontractors, and subconsultants ha[s]ve and will maintain for the duration of the contract an offer of qualified health insurance coverage for the employees[, as such employees are defined in Section 34A-2-104 for employees' ]who live and/or work within the State, along with their dependents[. Employee, for purposes of this Rule, shall be no broader than the use of the term employee for purposes of the State's Worker's Compensation requirements]; and

(b) [T]the contractor or consultant shall also provide such written certification prior to the execution of the contract, in regard to all subcontractors or subconsultants at any tier that are subject to the requirements of this [R]rule.

(2) Recertification. The Executive Director shall have the right to request a recertification by the contractor or consultant by submitting a written request to the contractor or consultant, and the contractor or consultant shall so comply with the written request within ten (10) working days of receipt of the written request; however, in no case may the contractor or consultant be required to demonstrate such compliance more than twice in any 12-month period.

(3) Demonstrating Compliance with Actuarially Equivalent Determination. The actuarially equivalent determination required by Subsection (1) of 72-6-107.5 is met by the contractor or consultant if the contractor or consultant provides the Executive Director with a written statement of actuarial equivalency from either the Utah Insurance Department[ or], an actuary selected by the contractor or the contractor's insurer[ or], an actuary selected by the consultant or the consultant's insurer , or an underwriter who is responsible for developing the employer groups premium rates.

(a) [f]For purposes of this, [R]rule, [R916-5, ]actuar[y]ial equivalency, or greater is achieved by meeting or exceeding the requirements of qualified health insurance coverage as defined in Subsection 72-6-107.5(1)(c).[a federally qualified health care plan.] The benchmark plan referred to in Subsection 72-6-107.5(1)(c),[is the Children's Health Insurance Program. The insurance program] may be found at: http://dfcm.utah.gov/downloads/Health%20Insurance%20Benchmark.pdf.[ The plan may be used for evaluating the offered health plan to determine if it is actuarial equivalent or superior.]

(4) [Time Frame Availability for Health Insurance. ]The health insurance must be available upon the first day of the calendar month following the initial [ninety (]90[)] days from the [beginning of employment]date of hire.

(5) Consultant Compliance Process. Consultants who are subject to this [R]rule must demonstrate compliance with this [R]rule in their initial Financial Screening Application. The consultant's will then be required to demonstrate the offer of health insurance that meets the requirements outlined in Section 72-6-107.5. During the procurement process and no later than the execution of the contract with the consultant, the consultant will confirm the prime is still in compliance with this [R]rule and the subconsultants of the consultant will certify through their prime consultant they meet the requirements of this [R]rule. The written contract will contain a provision where the consultant confirms compliance with this [R]rule by both the consultant and applicable subconsultants.

(6) Contractor[s] Compliance Process. Contractors who are subject to this [R]rule must demonstrate compliance with this [R]rule. The contractor will indicate in the Pre-qualification Application that the contractor will offer health insurance which meets the requirements outline[s]d in Section 72-6-107.5. When a contract is written, contractors [may]will confirm the prime contractor is still in compliance with this [R]rule and their subcontractors will certify through their contractor that they meet the requirements of this [R]rule. The written contract shall contain a provision where the contractor confirms compliance with this [R]rule by both the contractor and applicable subcontractors.

(7) Must be in Compliance at the Time the Contract is executed. Notwithstanding any prequalification of a contractor, subcontractor, consultant or subconsultant that is subject to this [R]rule, the contractor subcontractor, consultant or subconsultant must agree to the language in the executed contract that requires the contractor to be in compliance with this [R]rule at the time of the execution of the contract and throughout the duration of the contract.

 

R916-5-8. Department Hearing and Penalties.

(1) Hearing. Any hearing regarding the failure to comply with this [R]rule shall be held in accordance with the Utah Administrative Procedures Act and Rule 907-1 unless specifically stated otherwise in a governing statute.

(2) Penalties. The penalties that may be imposed if a contractor, consultant, subcontractor or subconsultant, at any tier intentionally violates [the provisions of ]this [R]rule[. May] include:

(a) a three-month suspension of the contractor or subcontractor from entering into future contracts with the state upon the first violation, regardless of which tier the contractor or subcontractor is involved[ with the future design and/or construction contract];

(b) a six-month suspension of the contractor, subcontractor, consultant or subconsultant from entering into future contracts with the state upon the second violation, regardless of which tier the contractor or subcontractor is involved[ with the future design and/or construction contract];

(c) an action for debarment of the contractor, subcontractor , consultant or subconsultant in accordance with Section 63G-6-804 upon the third or subsequent violation; and

(d) monetary penalties which may not exceed 50% of the amount necessary to purchase qualified health insurance coverage for an employee and the dependents of an employee of the contractor, subcontractor, consultant or subconsultant who was not offered qualified health insurance coverage during the duration of the contract.

(e) [a]A prime contractor or consultant will not be subject to penalties for the failure of a subcontractor or subconsultant to meet the requirement of maintaining their offer of qualified health care coverage.

 

R916-5-9. Does Not Create Any Contractual Relationship With Any Subcontractor or Subconsultant.

Nothing in this [R]rule shall be construed as to create any contractual relationship whatsoever between the Department or the State with any subcontractor or subconsultant at any tier.

 

KEY: contracts, health insurance, health insurance in state contracts, health reform

Date of Enactment or Last Substantive Amendment: [September 21, 2009]2010

Authorizing, and Implemented or Interpreted Law: 72-6-107.5