(1)
Purpose. The purpose of 430 CMR
21.11 is to establish
procedures and interpret the standards for granting of a hardship waiver in
accordance with St. 2017, c. 63, § 14A.
(2)
Scope and
Applicability. Any
employer liable for the
EMAC Supplement under
M.G.L. c.149, § 189A, may submit an application for a hardship waiver. The
Director may give special consideration to the following classes of employers:
(a) employers with variable or limited
revenue;
(b) employers with fewer
than 50 employees;
(c) employers
who report 65% or more of their annual gross wages in two consecutive
quarters;
(d) employers whose
employess are mostly temporary;
(d)
employers that serve the public interest by providing human services or
long-term care services and that receive a significant share of revenues from
governmental programs.
(3)
Definitions.
Application. An application for a
hardship waiver of the EMAC supplement in the form published by the Director.
The application for a hardship waiver applies only to the quarter in which it
is filed with the Department. A separate application must be filed for each
quarter.
Applicant. An employer applying for a
hardship waiver under the provisions of 430 CMR 21.11.
Application Period. The period, as
determined by the Director, during which applications for a hardship waiver may
be submitted for consideration for a particular quarter.
EMAC Supplement
. The contribution
provided for in M.G.L. c. 149, § 189A.
Employer Shared Responsibility
Payment. A payment made by an employer under 4980H of the Internal
Revenue Code.
Hardship Waiver. A discretionary grant
of a waiver of liability for an employer's EMAC Supplement for the quarter for
which a waiver application is granted.
(4)
Burden of Proof.
At all times, the applicant shall have the burden of demonstrating financial
hardship and eligibility for the hardship waiver.
(5)
Procedure. If
the Director determines that hardship waivers will be considered for a
particular quarter, the Director shall:
(a)
make an announcement via the Department's website at
www.mass.gov/service-details/learn-about-the-emac-supplement-hardship-waiver;
(b) post the application; and
(c) specify the application period during
which applications for the hardship waiver will be reviewed.
(6)
Consideration of
Applications. The department will consider applications for the
hardship waiver if:
(a) the employer submits,
in the manner prescribed by the Director, a complete application;
(b) the application is timely; and
(c) the application relates to the quarter
during which it is submitted.
(7)
Determination of Hardship
Waivers. The Director may grant a full or partial waiver of
liability for the
EMAC Supplement where the Applicant:
(a) provides evidence that it has acted in
good faith in all its relations with the Department, and certifies that it is
current on state taxes and assessments, including, where applicable, the
nursing facility user fee assessment; and
(b) provides evidence of one or more of the
following:
1.the Applicant is unable to pay
the EMAC Supplement because of financial hardship and failure to obtain a
hardship waiver is likely to result in a substantial reduction in services or,
termination of the employer's business or in substantial loss of
employment;
2.the Applicant has
paid an Employer Shared Responsibility Payment and been assessed an EMAC
Supplement in the same calendar year; or
3.the Applicant experienced a turnover rate
of at least 250% over the four quarters immediately preceding the application.
The Director shall give priority to the classes of employers
listed in 430 CMR 21.11(2). Applicants shall be notified by electronic mail of
the Director's decision prior to the date upon which payment of the EMAC
Supplement is due.
(8)
Effect of Granting of a
Hardship Waiver. The hardship waiver relieves the employer from
some or all of its EMAC Supplement liability only for the quarter in which it
is granted.
(9)
Effect
of Denial of a Hardship Waiver. Denial of a hardship waiver shall
not extend the time for paying the EMAC Supplement.
(10)
Finality of
Decision. The decision of the Director shall be final, and the
employer shall not have the right to appeal the decision.
(11)
Revocation of a Hardship
Waiver. The Director may revoke a hardship waiver if he or she
finds that an employer or an officer or an agent of the employer submitted
false information on the application. The waiver shall be revoked upon notice
to the employer, and the employer shall be liable for the amount waived
pursuant to the hardship waiver, plus applicable penalties and
interest.
