is there really a way to control contract cost? mark fitzgerald and tim shrom

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Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

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Page 1: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Is There Really a Way to Control Contract Cost?

Mark FitzgeraldAnd

Tim Shrom

Page 2: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

http://www.ifo.state.pa.us/Independent Fiscal Office – January 2012

NationalState

Page 3: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

• Real growth remains modest for the US (2.0 percent) and the Commonwealth (1.6 percent) for 2012. • Unemployment remains elevated for the US (8.8 percent) and the Commonwealth (7.9 percent) for 2012.

IFO - Economic Trends

Page 4: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

From 2010 to 2020, the Penn State Data Center projects that: • Total population will increase 2.3 percent (0.2 percent per annum) • Elderly residents over age 65 will increase 25.0 percent (2.3 percent per annum) • Working age residents will decline by -1.8 percent (-0.2 percent per annum).

IFO - Demographic Trends

Page 5: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

IFO - General Fund Revenue Trends

Based on demographic and economic forecasts:

• For FY 2010-11 to FY 2013-14, revenues will increase by 1.6 percent per annum. • For FY 2014-15 to FY 2016-17, revenues will increase by 4.0 percent per annum.

• The Pennsylvania tax base will continue its long-term contraction due to demographic factors.

Page 6: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

IFO - General Fund Expenditure Trends Based on demographic and economic forecasts:

• General Fund expenditures will outpace revenues, assuming no further policy actions to bring the two series into balance. • Demographic trends will cause significant growth in the number of residents eligible for Medical Assistance, creating budgetary pressures. • Pension contributions will comprise a rapidly increasing share of General Fund expenditures: 4.2 percent for FY 2011-12 growing to 11.6 percent for FY 2016-17.

Page 7: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Locally - Know Your Data• Trending

• Where have you been?• Projecting

• Where are you going?• Steering

• Where do you need to go?• Correcting

• Where are you not on course?

Page 8: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom
Page 9: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

8.76% - 1997-98 4.78% - 2009-10

Page 10: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Combined 4.88% share increase of the Budget over 8 years

63.43% 68.31%

Page 11: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Downward pressure on all shares of other objects

Equipment and Supplies = 5.1%

3.24% reduction in share for Debt service liability

Page 12: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

So, where to start??The big Stuff....

• RX• Salary

– Multi-yr promise– Matrix– Step differentials– Column differentials– ERI’s– Difference from Average

..life time earnings...compaction...range reduction..

• Movement on scale / across columns

• Tuition reimbursement• Productivity and Leave

data• Health Care

– PPACA– Cadillac Tax– Cost and medical trend

• Total compensation

Page 13: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

...the 80 / 20 rule...

Page 14: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Average Benefit Expense Per Script

Single E 2 Fam Total

Brand $ 170.00 622

1,222

1,250

3,094

Generic $ 11.29 971

2,181

2,883

6,035

Page 15: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Number of claims

Percent of Total Claims Benefits Expense

Percent of Total

Benefits

Prescription Options:

Brand 3,094 33.89% $ 525,979 88.53%

Generic 6,035 66.11% $ 68,164 11.47%

Total 9,129 100.00% $ 594,143 100.00%

Formulary Utilization:Formulary 7,820 85.66% $ 388,816 65.44%Non-Formulary 1,309 14.34% $ 205,327 34.56%Total 9,129 100.00% $ 594,143 100.00%

Delivery System:Retail 8,598 94.18% $ 513,586 86.44%Mail Order 531 5.82% $ 80,557 13.56%Total 9,129 100.00% $ 594,143 100.00%

Page 16: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

a b c d e f g h i j Avg43,314 52,955 46,250 45,218 45,163 47,300 43,831 43,367 45,361 46,454 45,48944,916 53,755 46,750 45,525 45,617 47,900 44,959 43,704 45,868 46,454 46,05744,916 54,555 47,000 45,832 45,981 48,500 45,703 43,879 45,868 46,886 46,50646,518 55,355 48,107 46,139 46,832 49,300 46,633 44,361 46,375 47,287 47,31046,518 56,155 49,832 47,866 47,642 50,300 47,780 45,828 46,882 47,647 48,20346,518 58,117 51,594 47,866 48,528 51,500 48,536 47,400 47,389 48,871 49,30948,120 58,117 53,155 49,782 50,105 52,800 49,614 48,968 48,926 50,305 50,64248,120 60,080 54,963 51,750 51,677 54,400 49,614 50,517 48,926 51,741 51,89149,722 60,080 56,836 54,069 53,253 56,200 50,687 52,052 48,926 53,358 53,14151,324 62,042 56,836 56,370 54,859 56,200 51,763 53,649 50,483 54,799 54,40452,926 64,004 58,507 58,916 54,859 58,200 51,763 53,649 51,780 56,887 55,66454,529 64,004 58,507 61,405 56,507 58,200 53,918 55,220 51,780 58,398 56,86956,131 65,929 60,526 64,034 56,507 60,400 56,059 56,790 53,592 59,941 58,46557,733 67,891 62,023 68,922 56,507 62,800 58,218 58,360 55,144 61,744 60,36259,335 69,853 63,596 68,922 58,272 65,500 60,372 59,932 56,685 63,506 62,04760,937 71,816 65,397 71,737 60,061 68,200 62,526 59,932 58,259 65,435 63,72762,539 73,778 68,510 71,737 62,062 71,400 64,675 61,502 59,811 68,324 65,39964,142 73,778 69,820 71,737 63,808 71,400 66,829 61,502 61,266 71,039 66,77965,744 73,778 69,820 71,737 66,362 71,400 69,336 63,072 61,266 71,039 67,90365,744 73,778 69,820 71,737 68,295 71,400 72,444 63,072 63,695 71,039 68,76865,744 73,778 69,820 71,737 70,651 71,400 72,444 64,643 63,695 71,039 69,21965,744 73,778 69,820 71,737 70,651 71,400 72,444 64,643 63,695 71,039 69,35667,346 73,778 69,820 71,737 70,651 71,400 72,444 66,210 63,695 71,039 69,60067,346 73,778 69,820 71,737 70,651 71,400 72,444 66,210 65,807 71,039 69,76268,948 73,778 69,820 71,737 70,651 71,400 72,444 68,295 65,807 71,039 70,04668,948 73,778 69,820 71,737 70,651 71,400 72,444 68,295 65,807 71,039 70,18670,550 73,778 69,820 71,737 70,651 71,400 72,444 68,295 67,708 71,039 70,62670,550 73,778 69,820 71,737 70,651 71,400 72,444 68,295 67,708 71,039 70,62670,550 73,778 69,820 71,737 70,651 71,400 72,444 68,295 70,620 71,039 70,85070,550 73,778 69,820 71,737 70,651 71,400 72,444 68,295 70,620 71,039 70,850

Page 17: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom
Page 18: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

School District H

Page 19: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Correlation to # of staff?

Matrix structure will impact staffing levels...

Page 20: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

3 R’s – Realistic Range Reduction

Page 21: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom
Page 22: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Teacher Tuition History

School Year Actual Amount Paid Increase $ Increase %

1995-96 79,532$ 1996-97 88,506$ 8,974$ 11.28%1997-98 73,983$ (14,523)$ -16.41%1998-99 62,593$ (11,390)$ -15.40%1999-00 68,810$ 6,217$ 9.93%2000-01 86,003$ 17,193$ 24.99%2001-02 113,739$ 27,736$ 32.25%2002-03 146,584$ 32,845$ 28.88%2003-04 153,611$ 7,027$ 4.79%2004-05 145,689$ (7,922)$ -5.16%2005-06 229,830$ 84,141$ 57.75%2006-07 171,493$ (58,337)$ -25.38%2007-08 204,225$ 32,732$ 19.09%2008-09 175,084$ (29,141)$ -14.27%2009-10 210,373$ 35,289$ 20.16%

2010-11 241,471$ 31,098$ 14.78%

2011-12 135,210$ (106,261)$ -44.01%

2012-13

2013-14

$761,175 .............06-07 to 09-10 ---Note Front load CBA expiring year

Page 23: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

2006-07 - 2009-10 Contract

FY #Dollars to Bach + 12 #

Dollars to Bach + 24 #

Dollars to Masters #

Dollars to Mast + 15 #

Dollars to Mast + 30 #

Dollars to Mast + 45

Total Dollar Inc. FY Total

Cumulative Gross Salary

Inc.

Fall 2006 8 6,335.00 12 9,289.00 7 6,865.00 8 8,151.00 5 4,804.00 9 9,000.00 44,444.00

Spring 2007 2 1,510.00 3 2,337.00 1 978.00 1 1,077.00 1 948.00 6,850.00 51,294.00

51,294.00

Fall 2007 9 6,480.00 8 6,537.00 3 3,021.00 3 3,250.00 3 2,893.00 3 3,028.00 25,209.00

Spring 2008 2 1,527.00 2 1,998.00 1 1,008.00 4,533.00 29,742.00

81,036.00

Fall 2008 2 1,534.00 11 9,187.00 6 7,058.00 1 1,294.00 4 3,974.00 3 3,054.00 26,101.00

Spring 2009 1 772.00 2 2,073.00 2,845.00 28,946.00

109,982.00

Fall 2009 9 6,957.00 4 3,468.00 4 4,208.00 2 2,144.00 2 2,012.00 1 1,027.00 19,816.00

Spring 2010 1 773.00 1 773.00 4 4,212.00 0 - 0 - 0 - 5,758.00 25,574.00

135,556.00

Totals 34 25,888 39 31,591 29 30,413 16 16,924 15 14,631 16 16,109 135,556 $ 909.77 Avg $ per

move

Total # of "moves" across columns 149.00 $ 2,536.03

Avg $'s per move

cumulative over K

*Fall of 2008 one teacher moved from B+12 to Masters

Bach + M+ TotalSalary Advancements Cumulative over 4 yr k

--- 377,868.00

102 47 149 Tuition Payments over 4 year Contract 761,174.75

            1,139,042.75

             

Page 24: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom
Page 25: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

54,000.00$

Aggregate Staff Days

(190 day base)

Perecent Days Used (Sick days adjusted)

Full Day Equivalent (190 Base) Value at Avg

Salary

Est. Substitute

cost at 95% coverage at

$137 per 45,980 4.00% 7.59 239,086$ 46,360 4.77% 9.07 288,022$ 48,260 4.85% 9.22 304,681$ 49,780 5.63% 10.71 365,071$ 49,970 5.68% 10.79 369,301$ 49,115 5.37% 10.21 343,336$ 49,305 5.75% 10.92 368,975$ 49,305 6.32% 12.02 886,168$ 405,808$

Leave Equivalencies: %-Days-imputed value-sub costs

Page 26: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Benefit Option Comparison

BenefitCurrent POS

Program Implementation of Proposal

Estimate % of Savings on Premium

Estimate First Year Premium Savings

Calendar Year Deductibles$0 deductible in-network

A)     $200 individual/$600 family in-network$400 individual/$1200 family out-of-network

-3.86% $178,136.67

(Annual deductible applies to all services except those with an office visit copay and preventive care  

B)      $100 Ind/$300 Family In-Network; $1000 Ind/$3000 Family out of network

-3.44% $158,965.01

 

$1000 individual/$2000 family out-of-network

C)      $200 Ind/$600 Family; $2000 Ind/$6,000 Family out-of-network

-5.31% $245,237.48

   D)      $300 Ind/$900 Family; $3000 Ind/$9,000 Family

-8.04% $371,450.91

In-Network Specialist Office Visit Copayment$25 copayment per visit

A)     $15 copayment per visit 0.90% ($41,538.60)B)      $30 copayment per visit -0.38% $17,574.02C)      $35 copayment per visit -0.71% $32,751.59

D)      $40 copayment per visit -0.98% $45,133.28

In-network Physician Office Visit Copayments (Non-specialist care)

$15 copayment per visit

A)     $20 copayment per visit -0.38% $17,574.02

B)      $25 copayment per visit -0.71% $32,751.59

C)      $30 copayment per visit -0.98% $45,133.28

In-network Diagnostic Services Copayment $0 copayment

A)     $25 copayment per date of service-0.15% $6,989.67

B)      $35 copayment per date of service-0.21% $9,785.53

C)      $50 copayment per date of service-0.30% $13,979.34

Emergency Room Copayment $25 copayment

A)     $50 copayment per visit -0.77% $35,547.45

B)      $75 copayment per visit -1.27% $58,713.21

C)      $100 copayment per visit -1.65% $76,287.23

Page 27: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Benefit Implementation of ProposalEstimate % of Savings on

Premium

Indicate Options (Up To 1 Per

Segment)

DEDUCTIBLEA)      $100 Ind/$300 Family In-Network; $200 Ind/$600 Family out of network

-4.64% NO

(Annual deductible applies to all services except those with an office visit copay and preventive care

B)      $200 Ind/$600 Family In-Network; $400 Ind/$1,200 Family out of network

-6.71% ELECTED

OUT OF POCKET MAXIMUM

$0/$0 ($500/$1,500) -0.07% ELECTED(Excludes deductibles,copays and amounts over R&C)Individual (Family)

PHYSICIAN OFFICE SERVICES - PCP (OV Only) COPAY

A)     $20 (80%) copayment per visit -0.37% NO

B)      $25 (80%) copayment per visit -0.70% NO

C)      $30 (80%) copayment per visit -0.96% ELECTED

D)      $35 (80%) copayment per visit -1.23% NO

PHYSICIAN OFFICE SERVICES - SCP (OV Only) COPAY

A)     $30 (80%) copayment per visit -0.22% No

B)      $35 (80%) copayment per visit -0.45% NO

C)      $40 (80%) copayment per visit -0.67% ELECTED

D)      $45 (80%) copayment per visit -0.89% NO

PHYSICIAN OFFICE SERVICES - CHIROPRACTIC COPAY

A)     $5 (80%) copayment per visit -0.03% NO

B)     $10 (80%) copayment per visit -0.04% NO

C)     $15 (80%) copayment per visit -0.05% NO

D)     $20 (80%) copayment per visit -0.06% ELECTED

E)     $25 (80%) copayment per visit -0.07% NO

F)     $30 (80%) copayment per visit -0.08% NO

G)      $35 (80%) copayment per visit -0.09% NO

EMERGENCY ROOM COPAYMENTA)     $50 copayment per visit -0.75% ELECTED

B)      $75 copayment per visit -1.24% NO

C)      $100 copayment per visit -1.61% NO

Page 28: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

EE's within Tiers:

122 135 130Medical Trend

Trend at : EE EE+1 Fam8.00%

2011-12 8,853.60$ 14,313.26$ 20,658.81$

2012-13 9,561.89$ 15,458.32$ 22,311.52$

2013-14 10,326.84$ 16,694.99$ 24,096.44$

2014-15 11,152.99$ 18,030.59$ 26,024.15$

2015-16 12,045.23$ 19,473.03$ 28,106.09$

2016-17 13,008.84$ 21,030.88$ 30,354.57$

2017-18 14,049.55$ 22,713.35$ 32,782.94$

2018-19 15,173.51$ 24,530.41$ 35,405.58$

2019-20 16,387.40$ 26,492.85$ 38,238.02$

2020-21 17,698.39$ 28,612.27$ 41,297.06$

2021-22 19,114.26$ 30,901.26$ 44,600.83$

The Health Care Reform Act - Effective for Taxable Year beginning on January 1, 2018: If the value of employer-sponsored coverage exceeds the threshold

amount ($10,200 for single coverage and $27,500 for family coverage), a 40% excise tax will apply to the amount of coverage which exceeds the threshold.

The tax applies to coverage providers, including insurers of insured plans, administrators of self-insured plans or FSA's, and employers contributing to

an HSA or Archer MSA.

Medical Trend

Salary

8.00% 3.00%

EE rate as % of Salary

EE+1 as % of Salary

Fam Rate as % of Salary

55,000 16.10% 26.02% 37.56%

56,650 16.88% 27.29% 39.38%

58,350 17.70% 28.61% 41.30%

60,100 18.56% 30.00% 43.30%

61,903 19.46% 31.46% 45.40%

63,760 20.40% 32.98% 47.61%

65,673 21.39% 34.59% 49.92%

67,643 22.43% 36.26% 52.34%

69,672 23.52% 38.02% 54.88%

71,763 24.66% 39.87% 57.55%

73,915 25.86% 41.81% 60.34%

Page 29: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Excise Tax Total by year EE E+1 Fam Total:

2013-14 $ 6,189.75 $ - $ 6,189.75

2014-15 $ 46,505.72 $ - $ 46,505.72

2015-16 $ 90,046.98 $ 31,516.54 $ 121,563.52

2016-17 $137,071.54 $ 148,437.86 $ 285,509.40

2017-18 $187,858.06 $ 274,712.89 $ 462,570.95

2018-19 $242,707.51 $ 411,089.92 $ 653,797.43

   

Total Federal Excise Tax 2018 only At 8% Trend $ 1,116,368

Model above uses 2011-12 rates and trends them annually at the selected rate noted. Tax for EE+1 is not yet clarified In the regulations.

Multi-Year CBA....A Required discussion...book the Liability???

Page 30: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom
Page 31: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

ERI’s [according to TJS]• Generalization; Cost avoidance too often only exists if there is

no replacement, and sometimes not even then• Math must include all dollars to be expended, all revenues to

be lost, from all funds used, for all school years impacted• Math cannot include “avoidance” or savings in ‘out’ years for

when normal attrition would have occurred anyhow.• Free or significantly reduced Health Care; Guarantees

Enrollment...added legacy cost...• Legal and IRS regulatory issues: dot all i’s and cross all t’s • In the past....pace of revenues...covered bad assumptions...

Page 32: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Legal Implications of attempting to control costs outside of a CBA

Not so fast my friend

Page 33: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Challenging Economic Times

• School Districts and Intermediate Units will look to contract out services in order to reduce costs in the areas of pension obligations, healthcare, and overtime.

• Such contracted services may come in the area of custodial support, transportation, related services under the Individuals with Disabilities Education Act, and food services.

• What to know as you go forward…..

Page 34: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Contracting Out Services: Getting Started

• Is Contracting out a simple process that only includes approval of the school board?

• Are there legal implications in using contracted workers versus regular employees?

• What Labor Law limitations exist to subcontract?• And, to the extent you are contracting out services,

are these “contractors” really school district employees hiding as contractors?

Page 35: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Contracts 101

• As with any contract – think of how to shift the risk.• A good contract will help you confront problems and

concerns before they rise to an adversarial situation or even litigation.

• Unfortunately, too many schools neglect this significant risk management tool.

• Often, many school entities do not properly police their contracts and let bad practices develop

Page 36: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Outsourcing unionized work

• Sure enough as professional and support contract are set to expire, and School Boards are looking for cost certainty (at least in the short term) and to alleviate the burdens of healthcare premiums, PSERs contributions, workers compensation, etc., the push to contract out work is in full force.

Page 37: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Outsourcing-Bargaining

• In determining whether the employer fulfilled that obligation, the Board will look at a totality of the circumstances.

• The “key factor” is whether the employer made counterproposals. Lower Dauphin School District, 19 PPER ¶ 19195 (Final Order, 1989).

Page 38: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Outsourcing and Bargaining

• The Board will find that an employer has engaged in an unfair labor practice if it refuses to bargain with the union over the subcontracting of bargaining unit work. Elizabeth Forward Sch. Dist. v PLRB, 624 A.2d 215 (1992).

Page 39: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

PLRB/Subcontracting Bargaining Unit Work

If an employer is contemplating subcontracting bargaining unit work, it has an affirmative duty to seek out the representatives of its employees, announce its intentions to subcontract and provide all relevant information for them to fulfill their bargaining obligation. Lancaster County, 24 PPER 24054 (Final Order, 1993), aff’d sub. nom. County of Lancaster v. PLRB, 25 PPER ¶ 25098 (Court of Common Pleas, Lancaster Co., 1994).

Page 40: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Online/Cyber Schooling and Bargaining Unit Work

• In the Tredyffrin/Easttown School District decision, the Pennsylvania Labor Relations Board has held that the offering of online courses without teacher involvement is a subcontracting of Bargaining Unit services that needs to be bargained to impasse.

• The Labor Board would have authority to issue a cease and desist order on the online courses and under certain circumstances, award lost pay to the Bargaining Unit Members who were allegedly deprived of the opportunity to participate in teaching those courses.

Page 41: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Online/Cyber Schooling and Bargaining Unit Work

• The only exception that has evolved under the law is under the Rochester Area School District decision. The Pennsylvania Labor Relations Board did not find unlawful subcontracting when the District offered online courses having teachers involved in the monitoring of the course, grading of the course, or presentation of the online programming, even if it meant that the teachers' duties were either reduced or substantially modified as the result of the programming. In other words, technology that utilizes equipment to eliminate most or all of the duties of a position does not constitute the removal of work.

Page 42: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Make sure your independent contracts are truly independent

• In determining whether a worker is an independent contractor or employee, we look to a series of tests on the issue:– The IRS Test– The US Department of Labor Test– Pennsylvania Labor and Industry– Pennsylvania Case Law

Page 43: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Staying Independent

• The status of the employee could have profound implications in the areas of overtime requirements, unemployment compensation, tax issues, pension qualifications, workers compensation, and various other benefits typically provided to employees and not independent contractors.

Page 44: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Independent Contractor versus Employee

Federal Law/IRS test

State Law/U.C Test State Law/WC Test State Reg/PSERS

Page 45: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Contractor for Unemployment Compensation Purposes

• The Unemployment Compensation Law "presumes that an individual is an employee, as opposed to an independent contractor." Beacon Flag Car Co. v. Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). However, this presumption may be overcome if the putative employer shows that the claimant: (1) "was free from control and direction in the performance of his service"; and (2) "as to such service, was customarily engaged in an independent trade[, occupation, profession] or business." Id. "Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee." Id.

Page 46: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Contractors: Unemployement• As to the second prong of the independent contractor test--

whether the claimant was engaged in an independently established trade, occupation, profession or business--the courts have generally considered: (1) whether the individual was "'capable of performing [his services] to anyone who wished to avail themselves of the services' and [was] not 'compelled . . . to look to only a single employer for the continuation of such services'"; (2) whether the individual was "dependent on [the presumed employer] for employment"; and (3) whether the individual was "hired on a job-to-job basis and could refuse any assignment." Viktor LTD v. Department of Labor and Industry, Bureau of Employer Tax Operations, 586 Pa. 196, 214-15, 892 A.2d 781, 792-93 (2006)

Page 47: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Workers Compensation• An independent contractor is not entitled to Workers Compensation

benefits because of the absence of a master/servant relationship. 77 P.S. § 21; 77 P.S. § 22; Cox v. Caeti, 444 Pa. 143, 279 A.2d 756, 757 (Pa. 1971). Thus, employee or independent contractor status is a crucial threshold determination that must be made before granting workers' compensation benefits. It is a claimant's burden to establish an employer/employee relationship in order to receive benefits. Johnson v. WCAB (DuBois Courier Express), 158 Pa. Commw. 76, 631 A.2d 693, 695 (Pa. Cmwlth. 1993). Moreover, a determination regarding the existence of an employer/employee relationship is a question of law that is determined on the unique facts of each case. JFC Temps, Inc. v. WCAB (Lindsay and G&B Packing), 545 Pa. 149, 680 A.2d 862, 864 (Pa. 1996)

Page 48: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Workers Compensation• The Commonwealth Court in Universal Am-Can v.

Workers' Comp. Appeal Bd. (minteer), 563 Pa. 480 considered certain common-law factors traditionally used in considering employee status. Consistent with the Board's analysis, the Commonwealth Court noted that while all factors are important, the most persuasive indicator of a claimant's employee or independent contractor status lies in the right to control either the work to be done or the manner in which the work is to be accomplished, citing Lynch v. WCAB (Connellsville Area School District), 123 Pa. Commw. 299, 554 A.2d 159 (Pa. Cmwlth. 1989)

Page 49: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Contractor or Employee for purposes of PSERS?

• PSERS limits its memberships to “ school employees”. 24 PS § 8301. A school employee is defined as follows- “ Any person engaged in work relating to a public school for any governmental entity and for which work he is receiving regular remuneration as an officer, administrator or employee excluding, however, an independent contractor or a person compensated of a fee basis.”

Page 50: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Contractor-PSERS

• The Supreme Court in Zimmerman set out a ten part test to determine who is an employee and who is a contractor, thus who is eligible for PSERs membership.

– The test consists of the following factors…

Page 51: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Contractor-PSERS• 1. Control of manner of work being done• 2. Responsibility for result only• 3. terms of agreement between the parties• 4. the nature of work or occupation• 5. skill required for performance• 6. whether one is engage in a distinct occupation or business• 7. which party supplied the tools• 8. payment is by the time or job• 9. whether the work is part of the regular business of

employer• 10. right to terminate employment at any time

Page 52: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Independent Provider contracts for the delivery of Special Education

• All intermediate units and many school district are increasing the number of independent providers of special education services.

• This can and will be very tricky as the performance of the independent provider reflects directly on whether the School Entity could be exposed to possible legal liability under the law.

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Special Education 101

• The LEA cannot not provide services.• The special education laws set up a “cooperative”

process.• As between the LEA and parents, all risk and liability

is on the LEA.• But the courts permit contracts with third-parties

that shift the risk.• In this day and age of subcontracting, proper

contracts that shift risk to the provider and protect the entity is advisable

Page 54: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Great by Choice

• “Victory awaits him who has everything in order-----luck people call it. Defeat is certain for him who has neglected to take the necessary precautions in time-----this is called bad luck.”

---Roald Amundsen, the South Pole( Book: The Last place on Earth)Robert Scott...

Page 55: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

Not all time in life is equal...life serves up

moments that count much more than other

moments....

.........these next few years, Count Heavily

Page 56: Is There Really a Way to Control Contract Cost? Mark Fitzgerald And Tim Shrom

So.......Is there really a way to control

contract costs?

Questions?