430 CMR 15.00: FAIR SHARE EMPLOYER CONTRIBUTION

15.01: Purpose

The purpose of 430 CMR 15.01 through 15.11 is to interpret the standards for determining when an employer is liable for payment of the fair share employer contribution under M.G.L. c. 149, §188; to establish procedures for filing of required reports, payment of the fair share employer contributions and implementing of penalties against employers who fail to file the required reports or make the required payments; and to otherwise define how the Division of Unemployment Assistance will administer M.G.L. c. 149, §188 with regard to the fair share employer contributions.

15.02: General Provisions

(1) Scope and Applicability. 430 CMR 15.01 through 15.11 applies to all employers as defined in M.G.L. c. 149, §188(a). 430 CMR 15.00 governs the collection and payment of the fair share employer contributions. The provisions of 114.5 CMR 16.00 govern the determination of whether an employer makes a fair and reasonable premium contribution to the health insurance cost of its employees.

(2) Effective Date. 430 CMR 15.00 is effective on October 1, 2008. For the Base Period ending September 30, 2007, the provisions of 430 CMR 15.00 as then in effect shall apply. For the Base Period ending September 30, 2008, the provisions of 430 CMR 15.00 as then in effect shall apply, except that, the August 15, 2009 quarterly payment specified in 430 CMR 15.07(3) is due June 23, 2009.

15.03 Definitions

As used in 430 CMR 15.00, the following words and phrases shall have the following meanings unless the context otherwise requires:

Client Company, an individual, association, partnership, corporation or other business entity that agrees to lease or is leasing its employees through an employee leasing company on a long term basis.

Contributing Employer, an employer that offers a group health plan during the entire quarterly period or such portion of the quarter that the employer was subject to M.G.L. c. 151A or M.G.L. c. 152 to which the employer makes a fair and reasonable premium contribution as defined in 114.5 CMR 16.03 .

Director, the Director of the Department of Unemployment Assistance or his designee.

Division, the Department of Unemployment Assistance.

Employee, an individual, whether or not a resident of Massachusetts, who is employed for at least 150 payroll hours during the twelve month period ending with the last day of the applicable quarterly period by an employer at a Massachusetts location subject to M.G.L. c. 149, § 188.

Employee Leasing Company, an employing unit that contracts with a client company to supply workers to perform services for the client company; provided, that the term "employee leasing company" does not include private employment agencies that provide workers to employers on a temporary basis or entities such as driver-leasing companies which lease employees to an employing unit to perform a specific service. Notwithstanding any arrangement between a Client Company and an Employee Leasing Company, the Client Company is the employer for purposes of M.G.L. c. 149, § 188 and 430 CMR 15.00.

Employer, an employing unit as defined in M.G.L. c. 151A, §1 or M.G. L. c. 152.

Fair Share Employer Contribution, the contribution required by M.G.L. c. 149, §188(b).

Independent Contractor, an individual who provides services not deemed to be employment under M.G.L. c. 151A, §2 or M.G. L. c. 152.

Payroll Hours, includes all hours for which an employer paid wages as defined in M.G.L. c. 151A, §1(s) to an employee.

Quarter, any one of the following periods in any year; - January first to March thirty-first, inclusive; April first to June thirtieth, inclusive; July first to September thirtieth, inclusive; October first to December thirty-first, inclusive.

15.04: Subjectivity

Any employer subject to the provisions of M.G.L. c. 151A or M.G. L. c. 152 is subject to the provisions of 430 CMR 15.00 whether or not the employer is required to pay the fair share employer contribution.

15.05: Liability for Fair Share Employer Contributions Under M.G.L. c. 149, §188

(1) Any employer that:

  • employs 11 or more full-time equivalent employees in the commonwealth; and

  • is not a contributing employer

shall pay a per-employee contribution at a time and in a manner prescribed by the Director.

(2) An employer has 11 or more full-time equivalent employees if the sum of total payroll hours for all employees employed for such employer during the applicable quarter divided by 500 is greater than or equal to eleven. In calculating total payroll hours, the employer shall include no more than 500 payroll hours for any employee.

(3) Applicable Base Period

(a) Except as provided in subsections (b) and (c), the applicable base period shall be the 12 consecutive month period beginning each October 1 st and ending September 30 th of the following year.

(b) Where the employer becomes subject to the provisions of M.G.L. c. 151A or M.G.L. c. 152 during the base period, the applicable base period shall be the period beginning with the date of subjectivity and ending the last day of the applicable quarterly period. The provisions of this paragraph shall not apply to an employer who has been determined to be a successor under M.G.L. c. 151A or M.G. L. c. 152.

(c) Beginning October 1, 2008, the applicable base period shall be the three consecutive month period beginning with the first day of the calendar quarter and ending with the last day of such calendar quarter.

(4) In making the calculation required by 430 CMR 15.05(2), an employer who is determined to be a successor under M.G.L. c. 151A or M.G. L. c. 152 shall include the payroll hours of the predecessor's employees during the applicable quarterly period.

15.06: Contributions Due Under M.G.L. c. 149, §188

(1) Employers' annual contribution rate as calculated under M.G.L. c. 149, §188 is the sum of the fair share employer contribution and the per employee cost of unreimbursed physician care as calculated in accordance with 114.5 CMR 16.04 or $295.00 per employee, whichever is the lesser amount.

(2) The Director shall assess each employer liable for a fair share employer contribution in a quarter, an amount based on 25 percent of the annual fair share employer contribution rate applicable to that quarterly period. The total quarterly fair share employer contribution liability is the product of the quarterly fair share employer contribution rate as determined by the first sentence of this subsection and the total number of employees employed by the employer during that quarter.

(3) Employers shall pro-rate the contribution rate specified in 430 CMR 15.06 (2) by a fraction which shall not exceed one, the numerator of which is the number of hours worked in a quarter by all of the employer's employees and the denominator of which is the product of the number of employees employed by an employer during the applicable quarter multiplied by 500 hours.

(4) The fair share employer contribution rate shall be determined annually by the Commissioner of the Division of Health Care Finance and Policy in consultation with the Director of the Department of Workforce Development based on the best available data.

(5) For base periods beginning on or after October 1, 2008, employers liable for the fair share employer contributions must make such payments in full in accordance with the schedule provided in 430 CMR 15.07(3).

15.07: Reporting and Payment Requirements

(1) Employers shall file with the Director in the form, manner, time and frequency as determined by said Director such reports necessary to determine their liability for the fair share employer contribution.

(2) Employers liable for the fair share employer contribution shall file the required reports using the form and means of electronic transmittal as prescribed by the Director and shall remit the required payment through an electronic funds transfer in a form prescribed by the Director.

(3) For base periods beginning on or after October 1, 2008, employers liable for the fair share employer contributions must make payments as specified below:

First Quarter Payment February 15 th

Second Quarter Payment May 15 th

Third Quarter Payment August 15 th

Fourth Quarter Payment November 15 th

(4) The failure of the Department of Unemployment Assistance to notify employers of their reporting and payment requirements under M.G.L. c. 149, §188 and 430 CMR 15.00 does not absolve employers from such requirements.

(5) Any payments associated with an employer's fair share employer contributions may not be combined with payments due under M.G.L. c. 151A.

15.08: Penalties

(1) If an employer fails to pay any portion of the fair share employer contribution due under M.G.L. c. 149, §188 and 430 CMR 15.00, the overdue amount shall be assessed a penalty charge at a rate of 12% per annum from the date due until the date paid.

(2) The Director may refer any matter to the Office of the Attorney General where there has been:

(a) attempts to evade or defeat any contribution or penalty due under M.G.L. c. 149, §188 or 430 CMR 15.00; or

(b) false statement or misrepresentation to avoid or reduce any financial liabilities under M.G.L. c. 149, §188 or 430 CMR 15.00.

15.09: Refunds

If an employer pays its fair share employer contribution in excess of the amount due, the employer shall be eligible for a refund from the Commonwealth Care Trust Fund established by M.G.L.c.29, § 2OOO or credit of the excess amount on its fair share employer contribution liability at the discretion of the Director. Applications for refunds or credit must be filed within three years of the date of payment of the contributions required by M.G.L. c. 149, §188.

15.10: Appeal

(1) An employer aggrieved by a determination of the Director with respect to its liability for the fair share employer contribution or with respect to the amount it must pay may appeal such determination in accordance with the provisions set forth in M.G.L. c. 151A, §39(b) and in the form and manner as specified by the Director.

(2) The provisions of M.G.L. c. 151A, §39(b) and the Standard Adjudicatory Rules of Practice and Procedure found in 801 CMR 1.02: Informal/Fair Hearing Rules and 1.03: Miscellaneous Provisions Applicable to All Adjudicatory Proceedings shall apply to hearings conducted with respect to appeals filed under 430 CMR 15.10(1)

(3) A party aggrieved by any decision issued pursuant to a hearing conducted under 430 CMR 15.10(2) may file a petition for judicial review in Superior Court pursuant to M.G.L. c. 30A, §14.

15.11: Other Provisions

(1) References in these regulations to M.G.L. c. 152 shall apply only to those employers not subject to M.G.L. c. 151A.

(2) General. Each employer shall file with or make available to the Director information which is required or which the Director deems necessary for calculating and collecting the fair share employer contributions.

(3) Administrative Notices. The Director may issue administrative notices to clarify policies, update administrative requirements and specify information and documentation necessary to implement these regulations.

(4) Severability. If any provision or the application of any provision is held to be invalid or unconstitutional, such invalidity shall not be construed to affect the validity or constitutionality or any remaining provision of 430 CMR 15.00.