Part 3.
TEACHER RETIREMENT SYSTEM OF TEXAS
Chapter 25.
MEMBERSHIP CREDIT
Subchapter B. COMPENSATION
34 TAC §25.30
The Teacher Retirement System of Texas (TRS) proposes new §25.30
concerning the conversion of amounts of noncreditable compensation to creditable
compensation used as the basis for calculating a member's retirement benefits.
The proposed new section implements the requirement that TRS adopt rules excluding
compensation in the member's final years of employment that represents amounts
converted from noncreditable compensation to creditable compensation. The
proposal has been adopted on an emergency basis and is published in this issue
of the
Texas Register
.
In accordance with Senate Bill 1691, 79th Legislature, Regular Session,
the new section implements the requirement that the TRS Board of Trustees
("Board") adopt rules regarding the exclusion of amounts converted to creditable
compensation during the last years of employment. The proposed section applies
to the three years prior to retirement and establishes a base year of the
fourth year or the fifth year if there is no compensation in the fourth year.
The characterization of the compensation in the base year is used to determine
whether conversion occurred. The new section describes converted compensation.
Payment for unused accrued leave or for accrued compensatory time for overtime
worked is expressly excluded as creditable compensation. The new section relies
on the certification of the reporting entity to notify TRS if conversion has
occurred in the final years. It also clarifies that a member may provide supporting
documentation if compensation is excluded but the member believes it should
be creditable, but provides that TRS makes the final decision regarding whether
compensation is creditable. This approach ensures a more consistent application
of the rule and encourages members who experience an increase in compensation
due to the conversion of noncreditable compensation to remain employed longer
to receive any correlating compensation increase in their retirement benefit
calculation.
The proposed new section will implement the requirement under Senate Bill
1691, 79th Legislature, Regular Session requiring the TRS Board to adopt rules
excluding certain compensation amounts from the calculation of retirement
benefits.
Tony C. Galaviz, TRS Chief Financial Officer, has determined that, for
each year of the first five years the proposed section will be in effect to
implement Senate Bill 1691, enforcing or administering the rule will not have
foreseeable implications relating to cost or revenues of state or local governments.
For each year of the first five years that the rule will be in effect,
Mr. Galaviz has determined that the public benefit will be to provide notice,
clarification, and guidance to employers and members of the requirements and
procedures relating to the exclusion of converted compensation during the
last years of employment from TRS-creditable compensation. Further, he states
that the proposed rule will benefit the public by enhancing the long-term
solvency of the retirement system. For each year of the first five years the
section will be in effect, there may be an anticipated economic cost to members
who are required to comply with the section as proposed because it affects
the calculation of retirement benefits; however, such costs are difficult
to project as they are largely dependent upon the amounts and types of compensation
received. In any case, the benefits accruing from implementation of the proposed
section are expected to outweigh these costs. Mr. Galaviz has also determined
that, for each year of the first five years the proposed section is in effect,
there will be no effect on a local economy, and therefore no local employment
impact statement is required under §2001.022, Government Code. Moreover,
there will be no adverse economic effect on small businesses or micro-businesses
as a result of enforcing this section.
Comments may be submitted in writing to Ronnie Jung, Executive Director,
1000 Red River, Austin, Texas 78701. To be considered, written comments must
be received by TRS no later than August 26, 2005.
The new section is proposed under and implements §22 of
Senate Bill 1691, 79th Legislature, Regular Session, which amends §825.110,
Government Code, and requires the Board to adopt rules to exclude from annual
compensation all or part of salary and wages in the final years of a member's
employment that reasonably can be presumed to have been derived from a conversion
of fringe benefits, maintenance, or other payments not includable in annual
compensation to salary and wages. The new section is also proposed under §825.102,
Government Code, which authorizes the Board to adopt rules for the administration
of the funds of the retirement system.
No other codes are directly affected by the proposed new section.
§25.30.Conversion of Noncreditable Compensation to Salary.
(a)
TRS excludes from creditable compensation any amount of
otherwise eligible compensation that represents amounts converted into salary
and wages from noncreditable compensation in the last three years prior to
retirement.
(b)
For purposes of this section, conversion occurs when an
employer agrees to pay a member with creditable compensation for services
performed in the future that in the past were paid with noncreditable compensation.
Compensation in the form of accrued paid leave or accrued compensatory time
for overtime worked cannot be converted to eligible compensation and are expressly
excluded from creditable compensation at any time.
(c)
The employer certifies whether compensation was converted
in the last three years prior to retirement and the amount of the converted
salary. In certifying whether conversion occurred in the last three years
prior to retirement, the fourth year prior to retirement is the base year.
If there is no credited amount of compensation in the fourth year, the fifth
year prior to retirement is the base year. The characterization of the compensation
in the base year as creditable or noncreditable is used in determining whether
conversion occurred and the converted amounts are excluded as provided in
subsection (a) of this section.
(d)
If compensation is excluded under subsection (a) of this
section, the member may provide additional information in the form of written
documentation to demonstrate that the compensation should not be excluded.
TRS makes the final determination regarding the characterization of compensation
as creditable or noncreditable.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503046
Ronnie Jung
Executive Director
Teacher Retirement System of Texas
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 542-6438
34 TAC §25.35
The Teacher Retirement System of Texas (TRS) proposes new §25.35,
concerning the administration of employer payments to the pension trust fund
for new members. The proposed new section implements the requirement that
employers shall pay the equivalent of the state contribution to the pension
trust fund for new members in their first 90 days of employment. The proposal
has been adopted on an emergency basis and is published in this issue of the
In accordance with Senate Bill 1691, 79th Legislature, Regular Session,
the new section implements the new employer payment requirement. It provides
guidance to employers regarding the start and end of the 90-day payment period
as well as guidance on how to coordinate the end of a person's membership
waiting period with the new payment requirement.
The proposed new section would administer the requirement under Senate
Bill 1691, 79th Legislature, Regular Session that an employer pay an amount
equivalent to the state contribution for retirement for new employees who
are also new TRS members for the first 90-days of employment.
Tony C. Galaviz, TRS Chief Financial Officer, estimates that, for each
year of the first five years the proposed rule will be in effect, there will
be no foreseeable implications relating to cost or revenues of the state or
local governments as a result of enforcing or administering the rule. Rather,
any measurable impact on the cost or revenues of the state or local governments
is the result of the legislative enactment. The Legislative Budget Board (LBB)
has determined that requiring local employers to make a contribution for the
first 90 days of employment for new members does not result in direct savings
to the state relating to the retirement contributions for these members because
the state has not had to make the contribution for new employees pursuant
to the provision under current law that delays eligibility for TRS membership
for new employees for 90 days, with such provision expiring August 31, 2005.
The LBB has estimated that, under Senate Bill 1691, the cost to public school
employers will be about $20 million annually statewide, and the cost to public
higher-education employers will be about $4 million annually statewide.
For each year of the first five years that the rule will be in effect,
Mr. Galaviz has determined that the public benefit will be to provide notice,
clarification, and guidance to employers of the requirements and procedures
relating to payments for new members. Further, he states that the public will
benefit by having new employees of public schools and public institutions
of higher education become members of TRS three months earlier and contribute
to the long-term solvency of the retirement system. Any probable economic
costs to persons required to comply with the proposed section is the result
of the legislative enactment. The LBB has estimated that the probable economic
costs to persons required to comply with Senate Bill 1691 are about $20 million
annually statewide for public school employers and about $4 million annually
statewide for higher education employers. There will be no effect on a local
economy because of the proposal, and therefore no local employment impact
statement is required under §2001.022, Government Code. Any measurable
impact on a local economy or local employment is the result of the legislative
enactment. Moreover, there will be no adverse economic effect on small businesses
or micro-businesses as a result of enforcing this section.
Comments may be submitted in writing to Ronnie Jung, Executive Director,
1000 Red River Street, Austin, Texas 78701. To be considered, written comments
must be received by TRS no later than August 26, 2005.
The new section is proposed under §825.102, Government Code,
which authorizes the Board of Trustees of the Teacher Retirement System to
adopt rules for the administration of the funds of the retirement system.
The new section is also proposed under §29 of Senate Bill 1691, 79th
Legislature, Regular Session, which establishes new §825.4041, Government
Code, and otherwise addresses implementation of the employer payment for new
members.
Other code provisions affected by the proposed new section are §§821.001(7),
825.408, and 830.102, Government Code.
§25.35.Employer Payments for New Members.
(a)
Effective September 1, 2005, the employer of a new member
as defined by §825.4041, Government Code, shall pay the retirement system
the required amount during the first 90 days of employment of the new member.
When used in this section, "employer" has the meaning given it in §821.001(7),
Government Code.
(b)
A person hired before September 1, 2005, whose 90-day waiting
period for membership in the retirement system did not end before September
1, 2005, is eligible to participate in the retirement system as a new member
starting September 1, 2005.
(c)
In determining the period of employment subject to employer
payments, the following provisions apply:
(1)
An employer shall count the date of employment of a new
member as the first day of the 90-day payment period.
(2)
An employer shall count calendar days of an employment
period on or after September 1, 2005, towards the payment period, regardless
of whether the days are in different school years.
(3)
An employer shall count calendar days on or after September
1, 2005, during which an individual previously served as an employee with
another TRS reporting entity towards the payment period.
(4)
An employer shall not count any calendar days between periods
of employment towards the payment period.
(5)
Service provided by an employee on one calendar day to
more than one employer that is a TRS reporting entity shall count as only
one calendar day in the payment period. Each employer shall include such an
employee's compensation in the aggregate compensation on which employer payment
is required.
(6)
A person who was hired before September 1, 2005, and who
did not complete the 90-day waiting period before that date becomes eligible
to participate in the retirement system starting September 1, 2005. The employer
shall treat the member as a new member for the purpose of employer payments
during the remainder of the 90-day period.
(d)
For the purpose of administering this section, the date
of employment means the date on which an employee begins to perform service
for an employer that is a TRS reporting entity and the service is of a type
that would otherwise qualify the employee for membership in the TRS pension
plan, as provided under Subchapter A of this chapter (relating to Service
Eligible for Membership). If the date of employment is a holiday or another
type of day on which the employer does not normally require actual service
to be performed by an employee, the employer may nevertheless count the day
as the date of employment if the employer considers the individual to be an
employee on that day.
(e)
During September 2005, an employer shall submit employer
payments to TRS on compensation paid to an employee for the first full pay
period starting on or after September 1, 2005. In subsequent months, an employer
shall submit employer payments and member and other required contributions
to TRS on compensation paid to an employee for the entire pay period that
contains the first date of the employee's eligibility for membership. An employer
also shall submit such payments to TRS on compensation paid to an employee
for the entire pay period that contains the 90th day of employment. For the
purpose of this section, a pay period is the normal, established period of
employment for which the employer regularly pays compensation to the employee,
regardless of the date on which the employer actually pays the compensation.
(f)
An employer required by law to pay the state contribution
from certain funds for its employees who are TRS members is not required to
make additional payment to TRS under this section during the first 90 days
of employment of a new member. A person employed by such an employer before
September 1, 2005, shall be eligible for TRS membership in the manner described
in subsection (b) of this section.
(g)
An employer shall submit reports in a form required by
TRS. Upon request by TRS, an employer or an employee shall provide copies
of, or otherwise make available, any records that TRS determines are necessary
to administer this section.
(h)
An employer shall notify TRS immediately if it has failed
to report an employee who was eligible for TRS membership and shall begin
to report the employee as a member no later than the month immediately following
the month in which the employer discovered the error. The employer shall correct
any previous reports filed with TRS and make payments as required by this
title.
(i)
Because participation in the Optional Retirement Program
("ORP") under Chapter 830, Government Code, is in lieu of participation in
TRS, a person employed on or after September 1, 2005, or whose 90-day waiting
period expires on or after September 1, 2005, and who is otherwise eligible
to elect to participate in ORP may elect to participate in ORP effective September
1, 2005. An election to participate in ORP must be made before the 91st day
after becoming eligible to make the election, as required by §830.102,
Government Code, but may not be made before the date on which an employee
is eligible for TRS membership.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503048
Ronnie Jung
Executive Director
Teacher Retirement System of Texas
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 542-6438
Subchapter A. RETIREMENT
34 TAC §29.4, §29.12
The Teacher Retirement System of Texas (TRS) proposes amendments
to §29.4, concerning changes to the computation of compensation for the
purpose of calculating a standard annuity at retirement and new §29.12,
concerning repeal of the subsidized early age retirement benefit. The proposed
amendments and new section have also been adopted on an emergency basis and
are published in this issue of the
Texas Register
.
The proposed amendments to §29.4 will allow TRS to implement Senate
Bill 1691, 79th Legislature, Regular Session, which changes the basis for
computing compensation from a three-year to a five-year salary average for
the purpose of calculating a standard annuity at retirement. The statutory
amendment is effective September 1, 2005. Senate Bill 1691, however, also
contains a grandfathering provision to preserve the current computation of
compensation based on a three-year salary average for members who meet one
or more of the grandfathering requirements on or before August 31, 2005. Adopted
on an emergency basis and proposed for permanent adoption elsewhere in this
issue of the
Texas Register
, new 34 TAC §51.12,
concerning the applicability of certain laws in effect before September 1,
2005, sets out the details for applying the grandfathering requirements to
proposed §29.4. As proposed, the amendments to §29.4 set out the
new five-year salary average for those who are not grandfathered and, to administer
the grandfathering provision, preserve the current three-year salary average
as part of the rule for reference by TRS staff and the membership when the
repealed statute no longer will appear in official statutory texts.
Proposed new §29.12 will allow TRS to implement the section of Senate
Bill 1691 that affects what is commonly referred to as the "subsidized early
age retirement benefit," which has been available to members who are at least
age 55 and have at least 20 years of service credit but do not meet the requirements
for normal age retirement, such as rule of 80. Under Senate Bill 1691, the
subsidized early age retirement benefit is repealed effective September 1,
2005. Senate Bill 1691, however, also contains a grandfathering provision
to preserve current law on the subsidized early age retirement benefit for
members who meet one or more of the grandfathering requirements on or before
August 31, 2005. New 34 TAC §51.12, concerning the applicability of certain
laws in effect before September 1, 2005, which is adopted on an emergency
basis and proposed for permanent adoption elsewhere in this issue, likewise
sets out the details for applying the grandfathering requirements to proposed
new §29.12. To administer the grandfathering provision, proposed new §29.12
preserves the subsidized early age retirement benefit requirements as part
of the rule for reference by TRS staff and the membership when the repealed
statute no longer will appear in official statutory texts.
The proposed amendments to §29.4 incorporate the change Senate Bill
1691 makes to the computation of compensation and proposed new §29.12
reflects the method of calculating the subsidized early age retirement benefits
for grandfathered members under the legislative enactment. The proposed amendments
and new section also preserve these benefit-related provisions as they exist
under current law before September 1, 2005 for purposes of administering the
grandfathering provision in Senate Bill 1691.
Tony C. Galaviz, TRS Chief Financial Officer, estimates that, for each
year of the first five years the proposed amendments and new section will
be in effect, there will be no foreseeable implications relating to cost or
revenues of the state or local governments as a result of enforcing or administering
the rules. Rather, any measurable impact on the cost or revenues of the state
or local governments is the result of the legislative enactment.
For each year of the first five years that the proposed amendments and
new section will be in effect, Mr. Galaviz has determined that the public
benefit will be to provide notice, clarification, and guidance to TRS members
regarding the statutory change affecting the computation of compensation,
the statutory repeal of subsidized early age retirement benefit, and the preservation
of current law for purposes of applying the statutory grandfathering requirements
for these two benefit provisions. Any probable economic costs to persons required
to comply with the proposed amendments and new section is the result of the
legislative enactment. There will be no effect on a local economy because
of the proposals, and therefore no local employment impact statement is required
under §2001.022, Government Code. Any measurable impact on a local economy
or local employment is the result of the legislative enactment.
Comments may be submitted in writing to Ronnie Jung, Executive Director,
1000 Red River Street, Austin, Texas 78701. To be considered, written comments
must be received by TRS no later than August 26, 2005.
Amended §29.4 is proposed for permanent adoption under §825.102,
Government Code, which authorizes the Board of Trustees of TRS to adopt rules
for the administration of the funds of the retirement system.
Other codes affected by the proposed amendments are §12 of Senate
Bill 1691, 79th Legislature, Regular Session, which amends §824.203,
Government Code, and §58 of Senate Bill 1691, which contains the grandfathering
requirements related to the legislative amendment of §824.203, Government
Code.
New §29.12 is proposed for permanent adoption under §825.102,
Government Code, which authorizes the Board of Trustees of TRS to adopt rules
for the administration of the funds of the retirement system.
Other codes affected by proposed new §29.12 include §11 of Senate
Bill 1691, 79th Legislature, Regular Session, which amends §824.202,
Government Code, and §58 of Senate Bill 1691, which contains the grandfathering
requirements related to the legislative amendment of §824.202, Government
Code.
§29.4.Actual Compensation.
(a)
Actual compensation paid to a member is used
in computing the
highest five
[
(b)
A member eligible under §51.12
of this title (relating to Applicability of Certain Laws in Effect Before
September 1, 2005) is eligible for computation of average compensation using
a three-year salary average instead of a five-year salary average, as provided
by §824.203(a), Government Code, prior to its amendment effective September
1, 2005, by Senate Bill 1691, 79th Legislature, Regular Session (2005).
§29.12.Early Age Retirement Benefit Calculated on Law in Effect Before September 1, 2005.
If a member eligible under §51.12 of this title (relating to Applicability
of Certain Laws in Effect Before September 1, 2005) is at least 55 years old
and has at least 20 years of service credit in the retirement system, the
member is eligible to retire and receive a service retirement annuity reduced
from the standard service retirement annuity available under §824.202(a)(2),
Government Code, to a percentage derived from the following table, as provided
by §824.202(c), Government Code, prior to its repeal effective September
1, 2005, by Senate Bill 1691, 79th Legislature, Regular Session (2005):
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503049
Ronnie Jung
Executive Director
Teacher Retirement System of Texas
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 542-6438
34 TAC §29.72
The Teacher Retirement System of Texas (TRS) proposes new §29.72,
concerning eligibility to select a partial-lump sum option (PLSO). The new
rule has also been adopted on an emergency basis and is published in this
issue of the
Texas Register
.
New §29.72 will allow TRS to implement the section of Senate Bill
1691 that changes the eligibility requirement for a PLSO to require that the
member meet the rule of 90 (age and service credit equal at least 90). Senate
Bill 1691 also reduces the amount of a PLSO for early age retirement, as applicable.
The statutory amendment is effective September 1, 2005. Senate Bill 1691,
however, also contains a grandfathering provision to preserve the current
PLSO eligibility requirements for members who meet one or more of the grandfathering
requirements on or before August 31, 2005. New 34 TAC §51.12, concerning
the applicability of certain laws in effect before September 1, 2005 and which
is adopted on an emergency basis and proposed for permanent adoption elsewhere
in this issue of the
Texas Register
, sets
out the details for applying the grandfathering provision to new §29.72.
To administer the grandfathering provision, new §29.72 preserves the
current PLSO eligibility requirements as part of the rule for reference by
TRS staff and the membership when the current text of the statute is replaced
by the law as amended under Senate Bill 1691 in official statutory texts.
Proposed new §29.72 reflects the change Senate Bill 1691 makes in
the eligibility requirements for a PLSO. The new rule also preserves the PLSO
eligibility requirements as they exist under current law before September
1, 2005 for purposes of administering the grandfathering provision in Senate
Bill 1691.
Tony C. Galaviz, TRS Chief Financial Officer, estimates that, for each
year of the first five years the proposed rule will be in effect, there will
be no foreseeable implications relating to cost or revenues of the state or
local governments as a result of enforcing or administering the rule. Rather,
any measurable impact on the cost or revenues of the state or local governments
is the result of the legislative enactment.
For each year of the first five years that the rule will be in effect,
Mr. Galaviz has determined that the public benefit will be to provide notice,
clarification, and guidance to TRS members regarding the statutory change
affecting the PLSO and the preservation of current law for purposes of applying
the statutory grandfathering requirements for this benefit provision. Any
probable economic costs to local employers required to comply with the rule
is the result of the legislative enactment. There will be no effect on a local
economy because of the proposal, and therefore no local employment impact
statement is required under §2001.022, Government Code. Any measurable
impact on a local economy or local employment is the result of the legislative
enactment.
Comments may be submitted in writing to Ronnie Jung, Executive Director,
1000 Red River Street, Austin, Texas 78701. To be considered, written comments
must be received by TRS no later than August 26, 2005.
The new section is proposed for permanent adoption under §825.102,
Government Code, which authorizes the Board of Trustees of TRS to adopt rules
for the administration of the funds of the retirement system. The rule is
also proposed under §824.2045, Government Code, which authorizes the
Board to adopt rules for the implementation of §824.2045, relating to
the partial lump-sum option. The new rule is also proposed under §2001.006
and §2001.034, Government Code.
Other codes affected by the proposed new section include §13 of Senate
Bill 1691, 79th Legislature, Regular Session, which amends §824.2045,
Government Code, and §58 of Senate Bill 1691, which contains the grandfathering
requirements related to the legislative amendment of §824.2045, Government
Code.
§29.72.Eligibility to Select PLSO.
(a)
Except as provided in subsection (b) of this section, effective
September 1, 2005, a member is eligible to select a partial lump-sum distribution
only if the member’s age and years of service credit total at least
90 at the time of retirement and the member meets the other requirements of §824.2045,
Government Code, as amended by Senate Bill 1691, 79th Legislature, Regular
Session (2005).
(b)
A member eligible under §51.12 of this title (relating
to Applicability of Certain Laws in Effect Before September 1, 2005) is eligible
to select a partial lump-sum distribution as provided by §824.2045, Government
Code, prior to its amendment effective September 1, 2005, by Senate Bill 1691,
79th Legislature, Regular Session (2005). Under §824.2045 prior to amendment,
to be eligible to select a partial lump-sum distribution, a member must be
eligible for an unreduced service retirement annuity under §824.202(a),
Government Code, as it existed prior to amendment effective September 1, 2005,
and must not be participating in the deferred retirement option plan under
Subchapter E of this chapter.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503051
Ronnie Jung
Executive Director
Teacher Retirement System of Texas
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 542-6438
Subchapter D. EMPLOYER PENSION SURCHARGE
34 TAC §31.41
The Teacher Retirement System of Texas (TRS) proposes new §31.41,
concerning the administration of an employer pension surcharge related to
employment after retirement. The proposed new section implements the requirement
that employers shall make monthly payments to the pension trust fund for each
TRS-retired employee reported to TRS on the return to work report of retirees,
unless exempted by law. The proposal has been adopted on an emergency basis
and is published in this issue of the
Texas Register
.
In accordance with Senate Bill 1691, 79th Legislature, Regular Session,
the new section implements the new employer pension surcharge. It provides
guidance to employers regarding the reported retirees for whom the surcharge
is owed under Senate Bill 1691 and sets out procedures related to payments.
In accordance with the legislative enactment, the TRS Board of Trustees separately
adopted by resolution the pension surcharge amount, which is an amount equal
to the sum of the combined member and state contributions (currently 12.4%
of salary).
The proposed new rule would administer the requirement under Senate Bill
1691, 79th Legislature, Regular Session that a public-school employer pay
12.4% of the salary of a reported retiree for whom the surcharge is owed.
Tony C. Galaviz, TRS Chief Financial Officer, estimates that for each year
of the first five years the proposed rule will be in effect, there will be
no foreseeable implications relating to cost or revenues of the state or local
governments as a result of enforcing or administering the rule. Rather, any
measurable impact on the cost or revenues of the state or local governments
is the result of the legislative enactment. The Legislative Budget Board (LBB)
has determined that, under Senate Bill 1691, the cost to public school employers
will be an average of about $5,100 annually per reported retiree for whom
the surcharge is owed, based on the rate of 12.4% and an average teacher salary
of about $41,000 per year. Under Senate Bill 1691, there would be no direct
increase in general revenue to the state resulting from the employer pension
surcharge. Any increased revenue to the TRS pension trust fund is difficult
to project because it depends upon the number of retirees who will be reported
for purposes of the surcharge and the amounts of salary that will be paid
to them, as well as other factors.
Mr. Galaviz states that the public benefit will be to provide notice, clarification,
and guidance to employers of the requirements and procedures relating to the
pension surcharge. Further, he states that the public will benefit by having
employers contribute to the long-term solvency of the retirement system when
they hire retirees in lieu of new members. Any probable economic costs to
local employers required to comply with the rule is the result of the enactment
of Senate Bill 1691. The LBB has estimated that the probable economic costs
to public school employers required to comply with Senate Bill 1691 and pay
the pension surcharge will be an average of about $5,100 annually per reported
retiree for whom the surcharge is owed. There will be no measurable impact
on a local economy or local employment because of the rule proposal, and therefore
no local employment impact statement is required under §2001.022, Government
Code. Any measurable impact on a local economy or local employment is the
result of legislative enactment.
Comments may be submitted in writing to Ronnie Jung, Executive Director,
1000 Red River Street, Austin, Texas 78701. To be considered, written comments
must be received by TRS no later than August 26, 2005.
The new section is proposed under §825.102, Government Code,
which authorizes the Board of Trustees of the Teacher Retirement System to
adopt rules for the administration of the funds of the retirement system.
The new section implements §30 of Senate Bill 1691, 79th Legislature,
Regular Session, which establishes new §825.4092, Government Code.
Other code provisions affected by the proposed new rule are §§824.602,
824.6022, and 825.408, Government Code.
§31.41.Return to Work Employer Pension Surcharge.
(a)
For each report month a retiree is reported on the Employment
of Retired Member Report, the employer that reports the retiree shall pay
to the Teacher Retirement System of Texas (TRS) a surcharge based on each
retiree's salary. For purposes of this section the employer is the reporting
entity that reports the employment of the retiree.
(b)
The surcharge amount that must be paid by the employer
for each retiree reported is an amount that is derived by applying a percentage
to the retiree's salary. The percentage applied to the retiree's salary is
an amount set by the Board of Trustees and is based on the member contribution
rate and the state pension contribution rate.
(c)
The surcharge is due from each employer that reports a
retiree as working on or after September 1, 2005, beginning with the report
month for September 2005.
(d)
The surcharge is not owed by the employer for any retiree
reported by that employer for the report month of January 2005.
(e)
The surcharge is not owed by the employer for a retiree
that is reported by a second employer for the report month of January 2005
if both employers are school districts that consolidate into a consolidated
school district on or before September 1, 2005.
(f)
The surcharge is not owed by the employer for a retiree
that is reported as working under the exception for Substitute Service as
provided in §31.13 of this title unless that retiree combines Substitute
Service under §31.13 with One-half Time Employment under §31.14
of this title in the same calendar month. For each calendar month that the
retiree combines employment under these two sections, the surcharge is owed
by the employer that reports the retiree.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503056
Ronnie Jung
Executive Director
Teacher Retirement System of Texas
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 542-6438
Subchapter A. RETIREE HEALTH CARE BENEFITS (TRS-CARE)
34 TAC §41.4
The Teacher Retirement System of Texas (TRS) proposes new §41.4,
concerning the administration of an employer health benefit surcharge related
to employment after retirement. The new section implements the requirement
that employers shall make monthly payments to the fund for the health benefits
program ("TRS-Care") provided pursuant to the Texas Public School Retired
Employees Group Benefits Act for each TRS-retired employee who is both (i)
reported to TRS on the return to work report of retirees, taking into consideration
any exceptions allowed by law, and (ii) enrolled in the TRS-Care health benefits
program. The proposal has been adopted on an emergency basis and is published
in this issue of the
Texas Register
.
In accordance with Senate Bill 1691, 79th Legislature, Regular Session,
the new section implements the new employer health benefit surcharge. It provides
guidance to employers regarding the reported retirees for whom the surcharge
is owed and procedures related to payments. In accordance with the legislative
enactment, the TRS Board of Trustees separately adopted by resolution a table
setting forth the monthly dollar amounts for the surcharge, as shown in the
attached graphic titled "TRS-Care Employer Surcharge Amounts--Return to Work
Effective September 1, 2005":
Figure: 34 TAC Chapter 41--Preamble (.pdf)
The proposed new rule would administer the requirement under Senate Bill
1691, 79th Legislature, Regular Session, that a public school employer pay
an amount that is equal to the difference, if any, between (i) the amount
that is required to be paid in premiums for the participation of the retiree
and any other individuals enrolled in TRS-Care under the same account identification
number and (ii) the full cost of the participation of the retiree and any
other individuals enrolled in TRS-Care under the same account identification
number.
Tony C. Galaviz, TRS Chief Financial Officer, estimates that for each year
of the first five years the proposed rule will be in effect, there will be
no foreseeable implications relating to cost or revenues of the state or local
governments as a result of enforcing or administering the rule. Rather, any
measurable impact on the cost or revenues of the state or local governments
is the result of the legislative enactment. The table of costs shown in the
attached graphic is based on the calculation required by Senate Bill 1691
and is derived using objective data. The cost to public school employers will
vary according to the plan chosen by the reported retiree for whom the health
benefit surcharge is owed, the number of individuals enrolled under the same
account identification number, the years of service credit of the retiree,
and the participants' Medicare eligibility, as set out in the attached graphic.
Under Senate Bill 1691, there would be no direct increase in general revenue
to the state resulting from the employer health benefit surcharge. Any increased
revenue to the TRS-Care fund is difficult to project because it depends upon
the number of retirees who will be reported for purposes of the surcharge
and the amounts owed for them based on the calculation described above, as
well as other factors.
Mr. Galaviz has also determined that the public benefit will be to provide
notice, clarification, and guidance to employers of the requirements and procedures
relating to the health benefit surcharge. Further, he states that the public
will benefit by having employers contribute to the long-term solvency of the
retirees' group health benefits plan. Any probable economic costs to local
employers required to comply with the rule is the result of the enactment
of Senate Bill 1691. The table of costs in the attached graphic sets out the
range of costs to public school employers, from $23 to $688, depending on
the plan chosen by the reported retiree for whom the health benefit surcharge
is owed, the number of individuals enrolled under the same account identification
number, the years of service credit of the retiree, and the participants'
Medicare eligibility. There will be no measurable impact on a local economy
or local employment because of the rule proposal, and therefore no local employment
impact statement is required under §2001.022, Government Code. Any measurable
impact on a local economy or local employment is the result of legislative
enactment. Moreover, there will be no adverse economic effect on small businesses
or micro-businesses as a result of enforcing this section.
Comments may be submitted in writing to Ronnie Jung, Executive Director,
1000 Red River Street, Austin, Texas 78701. To be considered, written comments
must be received by TRS no later than August 26, 2005.
The new section is proposed under §1575.052, Insurance Code,
which authorizes the TRS Board of Trustees ("Board") to adopt rules it considers
necessary to implement and administer the retirees' group health benefit plan
and associated fund. The new section implements §30 and §42 of Senate
Bill 1691, 79th Legislature, Regular Session, which respectively establish
new §825.4092, Government Code, and amend §1575.204, Insurance Code.
Other code provisions affected by the proposed new rule are §§821.001(7),
824.602, 824.6022, and 825.408, Government Code, and Chapter 1575, Insurance
Code.
§41.4.Employer Health Benefit Surcharge.
(a)
When used in this section, the term "employer" has the
meaning given in §821.001(7), Government Code.
(b)
A retiree who is enrolled in the health benefits program
("TRS-Care") provided pursuant to the Texas Public School Retired Employees
Group Benefits Act and is reported on the Employment of Retired Member Report
to the Teacher Retirement System of Texas ("TRS") shall submit the Employer
Health Benefit Surcharge form, promulgated by TRS, to the employer, providing
details of the retiree's TRS-Care coverage, the cost of the coverage for the
retiree and all other individuals enrolled under the same account identification
number, the premium paid for such coverage, and other employment of a retiree
or any other individual enrolled under the same account identification number,
as required by the form. It is the employer's and the retiree's responsibilities
to update the Employer Health Benefit Surcharge form, as necessary (
(c)
For each report month a retiree is enrolled in TRS-Care
and is reported on the Employment of Retired Member Report, the employer that
reports the retire shall, using the information provided by the retiree to
the employer on the Employer Health Benefit Surcharge form, pay to the Retired
School Employees Group Insurance Fund (the "Fund") a surcharge amount that
is derived by taking the difference, if any, between:
(1)
the monthly full cost, as set by the trustee, for all individuals
(including a spouse and children, if any) enrolled under the same account
identification number, and
(2)
the monthly total premium, as set by the trustee, for all
individuals (including a spouse and children, if any) enrolled under the same
account identification number.
(d)
The surcharge under subsection (c) of this section is due
from each employer that reports a retiree as working on or after September
1, 2005, beginning with the report month for September 2005.
(e)
The surcharge under subsection (c) of this section is not
owed:
(1)
by an employer for any retiree reported by that employer
for the report month of January 2005;
(2)
by an employer for any retiree reported by a second employer
for the report month of January 2005, if both employers are school districts
that consolidate into a consolidated school district on or before September
1, 2005; or
(3)
by an employer for a retiree reported as working under
the exception for Substitute Service as provided in §31.13 of this title
(relating to Substitute Service) unless that retiree combines Substitute Service
under §31.13 of this title with One-half Time Employment under §31.14
of this title (relating to One-half Time Employment) in the same calendar
month. For each calendar month that the retiree combines employment under
these two sections of this title, the employer that reports the retiree owes
the surcharge.
(f)
An employer who reports to TRS the employment of a retiree
who is enrolled in TRS-Care shall inform TRS as soon as possible in writing
of the name, address, and telephone number of any other employer that employs
the retiree or any other retiree who is also enrolled under the same account
identification number.
(g)
If more than one employer reports the employment of a retiree
to TRS during any part of a month, the surcharge under subsection (c) of this
section required to be paid into the Fund by each reporting employer for that
month is the total amount of the surcharge due that month divided by the number
of reporting employers. The pro rata share owed by each employer is not based
on the number of hours respectively worked each week by the retiree for each
employer, nor is it based on the number of days respectively worked during
the month by the retiree for each employer.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503043
Ronnie Jung
Executive Director
Teacher Retirement System of Texas
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 542-6438
34 TAC §51.12
The Teacher Retirement System of Texas (TRS) proposes new §51.12
concerning the applicability of certain benefits laws in effect before September
1, 2005. The proposed new section implements a grandfathering provision in
Senate Bill 1691, 79th Legislature, Regular Session, to preserve current law
on three benefit provisions for members who timely meet one or more of the
grandfathering requirements. The rule has also been adopted on an emergency
basis and is published in this issue of the
Texas
Register
.
Senate Bill 1691, 79th Legislature, Regular Session, makes changes to
the following benefit provisions: amends §824.202, Government Code, to
eliminate what is commonly referred to as "subsidized early age retirement";
amends §824.203, Government Code, to change the three-year salary average
to a five-year average for determining the standard annuity amount at retirement;
and §824.2045, Government Code, to change eligibility requirements for
the Partial Lump Sum Option (PLSO) to require a retiree to meet a rule of
90. These statutory changes are effective September 1, 2005. However, Senate
Bill 1691 also contains a grandfathering provision to preserve current law
on these three benefit provisions for members who timely meet one or more
of the grandfathering requirements. In accordance with the legislative enactment,
the new rule implements and sets out the grandfathering provision, which requires
that, on or before August 31, 2005, the member must attain the age of 50,
meet the "rule of 70" (the sum of age plus years of service credit must equal
70 or greater), or have at least 25 years of service credit. The proposed
new rule also provides guidance on the effect of termination of membership
after meeting one or more grandfathering requirements and on using service
credit in another Texas public retirement system for purposes of applying
either the rule of 70 or the provision requiring 25 years of service credit.
The proposed new rule would administer the grandfathering provision under
Senate Bill 1691, 79th Legislature, Regular Session that continues making
available to grandfathered members the three affected benefit provisions under
current law as it exists before September 1, 2005.
Tony C. Galaviz, TRS Chief Financial Officer, estimates that, for each
year of the first five years the proposed rule will be in effect, there will
be no foreseeable implications relating to cost or revenues of the state or
local governments as a result of enforcing or administering the rule. Rather,
any measurable impact on the cost or revenues of the state or local governments
is the result of the legislative enactment.
For each year of the first five years that the rule will be in effect,
Mr. Galaviz has determined that the public benefit will be to provide notice,
clarification, and guidance to TRS members regarding the grandfathering requirements
for the three benefit provisions described above. Any probable economic costs
to local employers required to comply with the rule is the result of the legislative
enactment. There will be no effect on a local economy because of the proposal,
and therefore no local employment impact statement is required under §2001.022,
Government Code. Any measurable impact on a local economy or local employment
is the result of the legislative enactment.
Comments may be submitted in writing to Ronnie Jung, Executive Director,
1000 Red River Street, Austin, Texas 78701. To be considered, written comments
must be received by TRS no later than August 26, 2005.
The new section is proposed for permanent adoption under §825.102,
Government Code, which authorizes the Board of Trustees of TRS to adopt rules
for the administration of the funds of the retirement system. The new rule
is also proposed under §824.2045, Government Code, which authorizes the
Board to adopt rules for the implementation of §824.2045, relating to
the partial lump-sum option. The new section is also proposed under §§2001.006
and 2001.034, Government Code.
Other codes affected by the proposed new section include §§11,
12, 13, and 58 of Senate Bill 1691, 79th Legislature, Regular Session, which,
respectively, amend §§824.202, 824.203, and 824.2045, Government
Code.
§51.12.Applicability of Certain Laws in Effect Before September 1, 2005.
(a)
A person who retires under the Teacher Retirement System
of Texas on or after September 1, 2005, and who meets one or more of the following
requirements on or before August 31, 2005, is governed by provisions of state
law relating to early retirement with at least twenty years of service credit
under §824.202(c), Government Code, three year salary average under §824.203,
Government Code, and the partial lump sum option (PLSO) under §824.2045,
Government Code, as those provisions existed prior to September 1, 2005:
(1)
the person has attained age 50;
(2)
the sum of the person’s age and amount of service
credit in the retirement system equals 70 or greater; or
(3)
the person has at least 25 years of service credit in the
retirement system.
(b)
A member who meets at least one of the requirements of
subsection (a) of this section by August 31, 2005, before termination of membership
through withdrawal of member contributions or absence from service shall be
considered as continuing to be eligible under subsection (a) of this section
upon resumption of membership.
(c)
Service that is credited with another Texas public retirement
system and that meets all requirements to be used for retirement eligibility
under the proportionate retirement program or the ERS/TRS transfer program
may be considered to determine eligibility of a TRS member under paragraphs
(2) and (3) of subsection (a) of this section.
(d)
Purchased or reinstated service credit in the retirement
system may be considered to determine eligibility of a TRS member under paragraphs
(2) and (3) of subsection (a) of this section if credited in accordance with
uniform administrative requirements, including payment deadlines, established
by the retirement system in order to complete processing for members who request
purchase of service credit before August 31, 2005.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503053
Ronnie Jung
Executive Director
Teacher Retirement System of Texas
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 542-6438
Chapter 101.
PRACTICE AND PROCEDURE REGARDING CLAIMS
34 TAC §101.16
The Texas County and District Retirement System proposes
an amendment to §101.16, concerning the venue of hearings before the
State Office of Administrative Hearings (SOAH). The proposed amendment causes
the rule to conform to the statutory change made by §3, House Bill 633,
79th Legislature (2005), which set Travis County as the venue for a hearing
before the SOAH involving the retirement system.
Tom Harrison, Deputy Director and General Counsel of the Texas County and
District Retirement System, has determined that for the first five-year period
the rule is in effect there will be no fiscal implications for state or local
government as a result of enforcing or administering the rule.
Mr. Harrison has also determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of administering
the rule will be the savings to the system in administrative costs and resources
by holding all hearings in Travis County, the location of all system records
and personnel. There will be no costs to small businesses. Other than costs
directly resulting from the statutory change, there are no anticipated economic
costs to persons who are required to comply with the rule as proposed.
Comments on the proposed amendment may be submitted to Tom Harrison, Deputy
Director and General Counsel, Texas County and District Retirement System,
P.O. Box 2034, Austin, TX 78768-2034.
The rule is proposed under the Government Code, §845.102,
which provides the board of trustees of the Texas County and District Retirement
System with the authority to adopt rules necessary or desirable for efficient
administration of the system.
The Government Code, §841.0051 is the basis for the proposed rule.
§101.16.Conduct of Contested Case Hearings.
(a)
After the filing of a request for a contested case hearing
pursuant to these rules, or after the filing of a third-party answer under §101.12
of this title (relating to Contest of Application: Form and Content), the
director shall cause the contested case to be docketed in the State Office
of Administrative Hearings (SOAH), by filing with the SOAH a "Request for
Setting of Hearing" or a "Request for Assignment of Administrative Law Judge"
as the director deems appropriate, along with a certified copy of the pleadings,
orders, and other relevant documents in the System's files at that time concerning
the issues in dispute.
(b)
After the case has been docketed
with
[
(c)
At least 10 days prior to the hearing, the director shall
give notice to all parties as required by §2001.051 of the Administrative
Procedure Act (Chapter 2001, Government Code).
(d)
The hearing will be conducted by an administrative law
judge assigned by the SOAH, and shall be conducted in accordance with the
Administrative Procedure Act (Chapter 2001, Government Code), these rules,
and the rules adopted by the SOAH. Hearings will [
(e)
Parties to the hearing, including the system, may be represented
by counsel. All parties, including the system, may introduce testimony of
witnesses, records, documents, and other evidence relevant to the claim or
matter which is the subject of the hearing. The administrative law judge shall
have authority to administer oaths, examine witnesses, rule on the admissibility
of evidence, recess the hearing from day to day, or to a specified date, and
otherwise to regulate and conduct the hearing to the end that the issues may
be presented fairly and with order and decorum.
(f)
The provisions of the Administrative Procedure Act (Chapter
2001, Government Code) shall govern the admissibility of evidence, but the
system will take notice of any facts established by its records unless a party
to the proceedings files a written protest of its validity.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on August 1, 2005.
TRD-200503162
Tom Harrison
General Counsel and Deputy Director
Texas County and District Retirement System
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 328-8889
34 TAC §105.2
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas County and District Retirement System or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas County and District Retirement System
proposes the repeal of §105.2, concerning the exclusion of probationary
employees. The proposed repeal is in conformity with the statutory change
made by §9, House Bill 633, 79th Legislature (2005), which, by amendment,
repealed the statutory exclusion from membership of the probationary employees
of certain subdivisions.
Tom Harrison, Deputy Director and General Counsel of the Texas County and
District Retirement System, has determined that there will be no fiscal implications
for state or local government as a result of the repeal of the rule.
Mr. Harrison has also determined that there will be no costs to small businesses.
Other than costs directly resulting from the statutory change, there are no
anticipated economic costs to persons who are affected by the repeal.
Comments on the proposed repeal may be submitted to Tom Harrison, Deputy
Director and General Counsel, Texas County and District Retirement System,
P.O. Box 2034, Austin, TX 78768-2034.
The repeal is proposed under the Government Code, §845.102,
which provides the board of trustees of the Texas County and District Retirement
System with the authority to adopt rules necessary or desirable for efficient
administration of the system.
The Government Code, §842.107 is the basis for the proposed repeal.
§105.2.Probationary Employment.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on August 1, 2005.
TRD-200503163
Tom Harrison
Deputy Director and General Counsel
Texas County and District Retirement System
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 328-8889
34 TAC §105.3
The Texas County and District Retirement System proposes
an amendment to §105.3, concerning the crediting in the retirement system
of qualified military service of eligible members. The proposed amendment
causes the rule to conform to the statutory changes made by §15, House
Bill 633, 79th Legislature (2005), which limited the crediting of qualified
military service not subject to the Uniform Services Employment and Reemployment
Rights Act (USERRA) to active-duty service; and which eliminated the exclusion
of 20-year military retirees from eligibility for qualified military service
not subject to USERRA. The proposed rule also implements the statutory change
made by §18, House Bill 1984, 78th Legislature (2003) which tied the
eligibility for qualified military service to the accumulation of sufficient
years of credited service to allow retirement from the authorizing subdivision
at age 60.
Tom Harrison, Deputy Director and General Counsel of the Texas County and
District Retirement System, has determined that for the first five-year period
the rule is in effect there will be no fiscal implications for state or local
government as a result of enforcing or administering the rule.
Mr. Harrison has also determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of administering
the rule will be the consistent treatment of the military service time of
all veterans of an authorizing subdivision, and the administrative convenience
of using vested status in the subdivision as the basis for eligibility for
credited service for qualified military service. There will be no costs to
small businesses. There are no anticipated economic costs to persons who are
required to comply with the rule as proposed.
Comments on the proposed amendment may be submitted to Tom Harrison, Deputy
Director and General Counsel, Texas County and District Retirement System,
P.O. Box 2034, Austin, TX 78768-2034.
The rule is proposed under the Government Code, §845.102,
which provides the board of trustees of the Texas County and District Retirement
System with the authority to adopt rules necessary or desirable for efficient
administration of the system.
The Government Code, §843.601 is the basis for the proposed rule.
§105.3.Credited Service for Qualified Military Service.
(a)
In this section:
(1)
The term "Act" means the Texas Government Code, Title 8,
Subtitle F as amended. Unless otherwise indicated, all section numbers refer
to sections of the Act.
(2)
The term "credited service" means
months of
membership
service for determining retirement eligibility only. Member contributions
and monetary credits are not required or permitted with respect to credited
service for qualified military service established after December 31, 1999.
(3)
The term "eligible member" means a member of an eligible
subdivision who has [
(4)
The term "eligible subdivision" means a subdivision whose
governing board has adopted the optional authorization for the establishment
of credited service in the retirement system for qualified military service
under §843.601(c).
(5)
The term "qualified military service" means service in
the uniformed services as defined in 38 U.S.C. §4303(13). It excludes
that service which was performed in a month for which the member has received
credited service in this retirement system under any other provision of the
Act, and that service which is credited by another retirement system or program
established or governed by state law. A member may not receive more than one
month of credited service for any
calendar
month.
(b)
An eligible member may receive one month of credited service
in the retirement system for each month of qualified military service performed
while on active duty. [
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on August 1, 2005.
TRD-200503164
Tom Harrison
Deputy Director and General Counsel
Texas County and District Retirement System
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 328-8889
34 TAC §105.5
The Texas County and District Retirement System proposes
an amendment to §105.5, concerning the responsibility and method to be
used by sponsoring employers for the correction of errors. The proposed amendment
causes the rule to conform to the statutory change made by §13, House
Bill 633, 79th Legislature (2005), which clarified that the employer is responsible
for the correction of an error caused by the act or omission of the employer.
Tom Harrison, Deputy Director and General Counsel of the Texas County and
District Retirement System, has determined that for the first five-year period
the rule is in effect there will be no fiscal implications for state or local
government as a result of enforcing or administering the rule.
Mr. Harrison has also determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of administering
the rule will be the savings associated with the establishment of a clear
procedure for use by sponsoring employers to correct an error outside of a
formal judicial proceeding. There will be no costs to small businesses. Other
than costs directly resulting from the statutory change, there are no anticipated
economic costs to persons who are required to comply with the rule as proposed.
Comments on the proposed amendment may be submitted to Tom Harrison, Deputy
Director and General Counsel, Texas County and District Retirement System,
P.O. Box 2034, Austin, TX 78768-2034.
The rule is proposed under the Government Code, §845.102,
which provides the board of trustees of the Texas County and District Retirement
System with the authority to adopt rules necessary or desirable for efficient
administration of the system.
The Government Code, §842.112 is the basis for the proposed rule.
§105.5.Correction of Errors by Employers: Record Adjustments.
(a)
The sponsoring employer is responsible for the correction
of an error arising from an act or omission of the employer that results in
a person contributing more or less than the correct amount to the system or
receiving more or less credited service, service credit or benefits than the
person is rightfully entitled to receive under the system.
(b)
The employer may initiate the correction process by filing
an application with the system for an adjustment to the person's record. The
application must adequately describe the error and set forth the terms of
the adjustment to be made to the person's record.
(c)
A person seeking an adjustment to a record based on an
act or omission of the subdivision must apply to the sponsoring employer for
a correction of the error. The system will not receive applications for record
adjustments from any person other than an employer. If the system receives
information relating to a possible error from a person other than an employer,
the system shall forward the information to the appropriate employer.
(d)
If the director is provided with satisfactory evidence
of the error, the director may at his discretion accept the application and
order an adjustment to the person's record in accordance with the terms set
forth in the application provided:
(1)
The terms of the adjustment on the face of the application
would not grant the person a right, status or benefit not otherwise available
under this subtitle;
(2)
The terms of the adjustment are reasonable and can be feasibly
implemented and administered by the system; and
(3)
The terms of the adjustment can be implemented without
causing financial instability with respect to the employer's participation
in the system or causing a reduction in the accrued benefit of any other member
or annuitant of the employer.
(e)
In this section the term "record" means all information
and amounts relating to the person and the person's beneficiary and includes
information and amounts relating to the person's individual account, contributions,
deposits, credited service, service credit and benefits.
(f)
In this section the term "individual account" means the
separate account maintained for a member consisting of the member's contributions,
deposits and accumulated interest credited to the account for the benefit
of the member.
(g)
In this section the term "credited service" means months
of service recognized for purposes of retirement eligibility.
(h)
In this section the term "service credit" means the monetary
credits granted to a member who performs service for a participating employer.
(i)
In this section the term "filed" means received by the
system.
(j)
In this section the term "accepted" means approved by the
system for making adjustments to a person's record in accordance with the
terms of the application.
(k)
The application of a sponsoring employer under this section
may be filed at any time.
(l)
All applications filed under this section with the system
must be certified by the sponsoring employer before the application may be
accepted.
(m)
If an adjustment pursuant to this section relates to a
period of service that is greater than 12 months or ended more than 12 months
prior to the application filing date, the application must be approved by
the governing board of the employer before it may be accepted by the system.
(n)
If the terms of the adjustment as set forth on the application
specify a change to the person's
months of
credited service, that
adjustment will be made upon acceptance of the application
and receipt
by the system of the amount that would have been contributed by the member
for those specified months. The system will not accept any payments due under
this section from any person other than an employer
.
(o)
If the terms of the adjustment as set forth on the application
specify a change to the person's individual account balance, service credit
or benefit, that adjustment may not be made until the system receives any
payment necessary to implement the terms of the adjustment. The system will
not accept any payments due under this section from any person other than
an employer.
(p)
With respect to certain errors that are the subject of
an adjustment under this section, the sponsoring employer may request the
system to provide a description of what the person's record would show if
no error had occurred. This description may include changes to amounts of
employee contributions, accumulated interest, prior service credit, current
service credit, multiple matching credit, retirement benefits, or retirement
eligibility dates. Evidence showing dates of service and the compensation
that was paid to the member by the employer for such service should be submitted
to the system in order that the system may accurately determine any changes.
(q)
The application may specify adjustments in any amounts
that do not exceed the changes to the person's record determined as if there
had been no error.
(r)
An application for an adjustment is not an application
for retirement; however, a retirement application may be filed simultaneously
with an application for adjustment. An adjustment to a person's prior service
credit may not be made if the application is filed more than five years after
the date the person became a member of the sponsoring employer.
(s)
Adjustments to service credits or benefits shall be considered
as part of, and funded in the same manner as, any other pension liabilities
of the employer.
(t)
The director may implement the terms of the proposed adjustment
to the extent that the funding of the pension liabilities attributable to
the adjustments proposed by the employer do not cause financial instability
with respect to the employer's participation in the system or cause a reduction
in accrued benefits of any other members or annuitants. This may include partial
implementation or implementation of the adjustments in stages.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on August 1, 2005.
TRD-200503165
Tom Harrison
Deputy Director and General Counsel
Texas County and District Retirement System
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 328-8889
34 TAC §107.10
The Texas County and District Retirement System proposes
an amendment to §107.10, concerning the adjustment to the employer's
account in the event an ineligible benefit payment caused by the error or
omission of the employer is not recoverable by the system. The proposed amendment
causes the rule to conform to the statutory change made by §13, House
Bill 633, 79th Legislature (2005), which clarified that the employer is responsible
for an overpayment of benefits caused by the act or omission of the employer;
and implements the authority granted to the system by §35, House Bill
1984, 78th Legislature (2003), to adjust amounts in a subdivision's account
to correct an error related to the account.
Tom Harrison, Deputy Director and General Counsel of the Texas County and
District Retirement System, has determined that for the first five-year period
the rule is in effect there will be no fiscal implications for state or local
government as a result of enforcing or administering the rule.
Mr. Harrison has also determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of administering
the rule will be the proper allocation and adjustment to the account of the
relevant employer of the costs of ineligible benefit payments made as a result
of the employer's error or omission. There will be no costs to small businesses.
Other than costs directly resulting from the statutory change, there are no
anticipated economic costs to persons who are required to comply with the
rule as proposed.
Comments on the proposed amendment may be submitted to Tom Harrison, Deputy
Director and General Counsel, Texas County and District Retirement System,
P.O. Box 2034, Austin, TX 78768-2034.
The rule is proposed under the Government Code, §845.102,
which provides the board of trustees of the Texas County and District Retirement
System with the authority to adopt rules necessary or desirable for efficient
administration of the system.
The Government Code, §842.112 and §845.503 are the basis for
the proposed rule.
§107.10.Treatment of Ineligible Benefit Payments.
(a)
In this section the term "ineligible benefit payment" means
that portion of a payment or distribution, other than a supplemental death
benefit payment, made by the retirement system to, or on behalf of, a living
or deceased person who was not legally entitled to the payment at the time
it was made. An ineligible benefit payment is a receivable of the system.
(b)
In this section the term "recipient" means the person or
persons who, directly or indirectly, received an ineligible benefit payment.
(c)
If a repayment of an ineligible benefit payment is not
received by the retirement system, the system may offset the amount of the
ineligible benefit payment against future benefit payments otherwise due the
recipient.
(d)
If the board determines that an ineligible benefit payment
is not recoverable, the receivable shall be charged against the general reserves
account of the endowment fund
provided the ineligible benefit payment
was not the result of an error or omission of a participating subdivision
.
(e)
If the board determines that
the ineligible benefit payment was the result of an error or omission of a
participating subdivision and determines that the payment is not recoverable,
the receivable shall be charged against the subdivision's account in the subdivision
accumulation fund.
(f)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on August 1, 2005.
TRD-200503166
Tom Harrison
Deputy Director and General Counsel
Texas County and District Retirement System
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 328-8889
Chapter 29.
BENEFITS
best three
]-years' average
compensation.
The computation of
[
Best three-years'
]
average compensation for members with credit transferred from the Employees
Retirement System of Texas
("ERS")
may not include compensation
for any month which was credited or should have been credited by the ERS if
the member received compensation for service [
during
] the same
month covered by the Teacher Retirement System of Texas.
Subchapter F. PARTIAL LUMP-SUM PAYMENT
Chapter 31.
EMPLOYMENT AFTER RETIREMENT
Chapter 41.
HEALTH CARE AND INSURANCE PROGRAMS
Chapter 51.
GENERAL ADMINISTRATION
Part 5.
TEXAS COUNTY AND DISTRICT RETIREMENT SYSTEM
a
] the SOAH and an administrative law judge has been assigned, the director
shall notify all parties to the proceeding of the actions taken. Thereafter,
any amended pleading or any motion filed in connection with the case, including,
but not limited to, motions for continuance, discovery, settings and other
relief, shall be filed with the SOAH at its office in Austin, Texas, until
such time as the proposal for a decision has been presented to the board of
trustees as hereinafter provided.
ordinarily
] be
conducted in
Travis County
[
Austin, unless on motion of a
party for good cause shown, the hearing, or a portion thereof, is conducted
elsewhere in the State of Texas; hearings will be conducted at the site designated
by the SOAH
].
Chapter 105.
CREDITABLE SERVICE
performed as an employee, at least 10 years of service
credited in the retirement system; who does not receive and is not eligible
to receive federal retirement payments based on 20 years or more of active
federal military duty or its equivalent;
]
credited service in the
retirement system for at least the minimum period required to receive a service
retirement annuity from the subdivision at age 60,
who has performed
qualified military service; and who has been released from military duty under
honorable conditions.
A member may receive one month of credited service
in the retirement system for each 12 months or fraction of months of qualified
military service performed while on inactive duty.
] An eligible member
may not accumulate more than a combined total of 60 months of credited service
in the retirement system for qualified military service under §843.601
and for membership credited service under
§
[
Section
] 842.109[
(b)
]
(c)
.
(c)
The governing body of an eligible
subdivision that has adopted the Optional Benefit Eligibility Plan Two described
by §844.210 may authorize a reduction in the minimum credited service
requirement for eligibility to establish credit under §843.601(c) from
10 to 8 years. The reduction may not take effect until January 1 of the year
following the year in which the authorization was adopted except that a reduction
authorized by an eligible subdivision that begins participation after December
31, 1999 may take effect on the date the subdivision begins participation.]
Chapter 107.
MISCELLANEOUS RULES
(e)
] In making its determination,
the board may consider the amount of the ineligible benefit payment, the likelihood
of repayment, the costs of recovery, and any other fact or circumstance which
the board considers to be relevant in finding that further efforts for the
recovery of the payment are not in the best interests of the retirement system,
its members and annuitants.