72-6-107.5 - Construction of improvements of highway -- Contracts -- Health insurance coverage.
72-6-107.5. Construction of improvements of highway -- Contracts -- Healthinsurance coverage.
(1) For purposes of this section:
(a) "Employee" means an "employee," "worker," or "operative" as defined in Section34A-2-104 who:
(i) works at least 30 hours per calendar week; and
(ii) meets employer eligibility waiting requirements for health care insurance which maynot exceed the first day of the calendar month following 90 days from the date of hire.
(b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
(c) "Qualified health insurance coverage" means at the time the contract is entered into orrenewed:
(i) a health benefit plan and employer contribution level with a combined actuarial valueat least actuarially equivalent to the combined actuarial value of the benchmark plan determinedby the Children's Health Insurance Program under Subsection 26-40-106(2)(a), and acontribution level of 50% of the premium for the employee and the dependents of the employeewho reside or work in the state, in which:
(A) the employer pays at least 50% of the premium for the employee and the dependentsof the employee who reside or work in the state; and
(B) for purposes of calculating actuarial equivalency under this Subsection (1)(c)(i):
(I) rather that the benchmark plan's deductible, and the benchmark plan's out-of-pocketmaximum based on income levels:
(Aa) the deductible is $750 per individual and $2,250 per family; and
(Bb) the out-of-pocket maximum is $3,000 per individual and $9,000 per family;
(II) dental coverage is not required; and
(III) other than Subsection 26-40-106(2)(a), the provisions of Section 26-40-106 do notapply; or
(ii) (A) is a federally qualified high deductible health plan that, at a minimum, has adeductible that is either:
(I) the lowest deductible permitted for a federally qualified high deductible health plan;or
(II) a deductible that is higher than the lowest deductible permitted for a federallyqualified high deductible health plan, but includes an employer contribution to a health savingsaccount in a dollar amount at least equal to the dollar amount difference between the lowestdeductible permitted for a federally qualified high deductible plan and the deductible for theemployer offered federally qualified high deductible plan;
(B) an out-of-pocket maximum that does not exceed three times the amount of the annualdeductible; and
(C) under which the employer pays 75% of the premium for the employee and thedependents of the employee who work or reside in the state.
(d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
(2) (a) Except as provided in Subsection (3), this section applies to contracts entered intoby the department on or after July 1, 2009, for construction or design of highways and to a primecontractor or to a subcontractor in accordance with Subsection (2)(b).
(b) (i) A prime contractor is subject to this section if the prime contract is in the amountof $1,500,000 or greater.
(ii) A subcontractor is subject to this section if a subcontract is in the amount of$750,000 or greater.
(3) This section does not apply if:
(a) the application of this section jeopardizes the receipt of federal funds;
(b) the contract is a sole source contract; or
(c) the contract is an emergency procurement.
(4) (a) This section does not apply to a change order as defined in Section 63G-6-102, ora modification to a contract, when the contract does not meet the initial threshold required bySubsection (2).
(b) A person who intentionally uses change orders or contract modifications tocircumvent the requirements of Subsection (2) is guilty of an infraction.
(5) (a) A contractor subject to Subsection (2) shall demonstrate to the department that thecontractor has and will maintain an offer of qualified health insurance coverage for thecontractor's employees and the employees' dependents during the duration of the contract.
(b) If a subcontractor of the contractor is subject to Subsection (2), the contractor shalldemonstrate to the department that the subcontractor has and will maintain an offer of qualifiedhealth insurance coverage for the subcontractor's employees and the employees' dependentsduring the duration of the contract.
(c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) duringthe duration of the contract is subject to penalties in accordance with administrative rules adoptedby the department under Subsection (6).
(B) A contractor is not subject to penalties for the failure of a subcontractor to meet therequirements of Subsection (5)(b).
(ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) duringthe duration of the contract is subject to penalties in accordance with administrative rules adoptedby the department under Subsection (6).
(B) A subcontractor is not subject to penalties for the failure of a contractor to meet therequirements of Subsection (5)(a).
(6) The department shall adopt administrative rules:
(a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
(b) in coordination with:
(i) the Department of Environmental Quality in accordance with Section 19-1-206;
(ii) the Department of Natural Resources in accordance with Section 79-2-404;
(iii) the State Building Board in accordance with Section 63A-5-205;
(iv) the State Capitol Preservation Board in accordance with Section 63C-9-403;
(v) a public transit district in accordance with Section 17B-2a-818.5; and
(vi) the Legislature's Administrative Rules Review Committee; and
(c) which establish:
(i) the requirements and procedures a contractor must follow to demonstrate to thedepartment compliance with this section which shall include:
(A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or(b) more than twice in any 12-month period; and
(B) that the actuarially equivalent determination required in Subsection (1) is met by thecontractor if the contractor provides the department or division with a written statement ofactuarial equivalency from either:
(I) the Utah Insurance Department;
(II) an actuary selected by the contractor or the contractor's insurer; or
(III) an underwriter who is responsible for developing the employer group's premiumrates;
(ii) the penalties that may be imposed if a contractor or subcontractor intentionallyviolates the provisions of this section, which may include:
(A) a three-month suspension of the contractor or subcontractor from entering into futurecontracts with the state upon the first violation;
(B) a six-month suspension of the contractor or subcontractor from entering into futurecontracts with the state upon the second violation;
(C) an action for debarment of the contractor or subcontractor in accordance with Section63G-6-804 upon the third or subsequent violation; and
(D) monetary penalties which may not exceed 50% of the amount necessary to purchasequalified health insurance coverage for an employee and a dependent of the employee of thecontractor or subcontractor who was not offered qualified health insurance coverage during theduration of the contract; and
(iii) a website on which the department shall post the benchmark for the qualified healthinsurance coverage identified in Subsection (1)(c)(i).
(7) (a) (i) In addition to the penalties imposed under Subsection (6), a contractor orsubcontractor who intentionally violates the provisions of this section shall be liable to theemployee for health care costs that would have been covered by qualified health insurancecoverage.
(ii) An employer has an affirmative defense to a cause of action under Subsection(7)(a)(i) if:
(A) the employer relied in good faith on a written statement of actuarial equivalencyprovided by:
(I) an actuary; or
(II) an underwriter who is responsible for developing the employer group's premiumrates; or
(B) the department determines that compliance with this section is not required under theprovisions of Subsection (3) or (4).
(b) An employee has a private right of action only against the employee's employer toenforce the provisions of this Subsection (7).
(8) Any penalties imposed and collected under this section shall be deposited into theMedicaid Restricted Account created in Section 26-18-402.
(9) The failure of a contractor or subcontractor to provide qualified health insurancecoverage as required by this section:
(a) may not be the basis for a protest or other action from a prospective bidder, offeror, orcontractor under Section 63G-6-801 or any other provision in Title 63G, Chapter 6, Part 8, Legaland Contractual Remedies; and
(b) may not be used by the procurement entity or a prospective bidder, offeror, orcontractor as a basis for any action or suit that would suspend, disrupt, or terminate the design orconstruction.
Amended by Chapter 229, 2010 General Session