Current through Bulletin 2024-18, September 15, 2024
A contractor, including consultants and designers, must
comply with the following requirements and procedures to demonstrate compliance
with Section
79-2-404.
(1) Demonstrating Compliance with Health
Insurance Requirements. A contractor, including design professional, shall
demonstrate compliance with Subsection
79-2-404(5)(a) or (b) at the time of execution of each
initial contract described in Subsection
79-2-404(2).
(a) The compliance is subject to an audit by
the Department or the Office of Legislative Auditor General.
(b) A contractor, including design
professional subject to Subsection
79-2-404(2) shall demonstrate to the executive director that the contractor has and will
maintain an offer of qualified health insurance coverage for the contractor's
employees and employees' dependents.
(c) Such demonstration shall be a
certification on the form provided by the Department. The form shall also
require compliance with Subsection R634-4-5(2) regarding
subcontractors.
(d) The actuarially
equivalent determination required for the qualified health insurance coverage
is met by the contractor if the contractor provides the Department with a
written statement of actuarial equivalency attached to the certification, which
is not more than one year old, regarding the contractor's offer of qualified
health coverage from an actuary selected by the contractor or the contractor's
insurer, or an underwriter who is responsible for developing the employer
group's premium rates. The Contractor is responsible for collecting the
statements as required by law from any of the subcontractors at any tier that
must do so.
(2) For
purposes of Rule R634-4-7, actuarially equivalency is achieved by meeting or
exceeding the commercially equivalent benchmark for the qualified health
insurance coverage identified in Subsection
79-2-404(1)(c) that is provided by the Department of Health, in accordance with Subsection
26-40-115(2).
(3) The health insurance must be available
upon the first day of the calendar month following sixty days from the date of
hire.
(4) Any contract subject to
R634-4 shall contain a provision requiring compliance with Rule R634-4 from the
time of execution and throughout the duration of the contract.
(5) Hearing and Penalties.
(a) Hearing. Any hearing for any penalty
under Rule R634-4 conducted by the Department shall be conducted in the same
manner as any hearing required for a suspension or debarment.
(b) Penalties that may be imposed by
Department. The penalties that may be imposed by the Department if a
contractor, consultant, subcontractor or subconsultant, at any tier,
intentionally violates Section
79-2-404
or Rule R634-4 include:
(i) 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 or construction
contract;
(ii) a six-month
suspension of the contractor or subcontractor 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 or
construction contract;
(iii) an
action for debarment of the contractor or subcontractor in accordance with
Section
63G-6a-904
upon the third or subsequent violation; and
(iv) 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 or
subcontractor who was not offered qualified health insurance coverage during
the duration of the contract.
(c)
(i) In
addition to the penalties imposed in this section, a contractor, consultant,
subcontractor or subconsultant who intentionally violates the Section
79-2-404
shall be liable to the employee for health care costs that would have been
covered by qualified health insurance coverage.
(ii) An employer has an affirmative defense
to a cause of action under Subsection
R634-2-7(5)(c)(i)
as provided in Subsection
79-2-404(7)(a).
An employee has a private right of action only against the employee's employer
to enforce Subsection
79-2-404(7).
