34 TAC §25.34
The Teacher Retirement System of Texas (TRS) adopts on an
emergency basis new §25.34, concerning the administration of membership
waiting period for public education employees. The proposed new section implements
a waiting period before an individual is eligible to become a member of TRS.
The new section is adopted on an emergency basis pursuant to §2001.034
of the Government Code, which allows a state agency to adopt an emergency
rule if a requirement of state or federal law requires adoption of the rule
on less than 30 days notice. The section is also adopted in accordance with §2001.006
of the Government Code, which allows the agency to adopt rules and take other
administrative action in preparation for the implementation of legislation
that has become law but has not taken effect. The new section is simultaneously
being proposed for permanent adoption in this issue of the
Texas Register
.
In accordance with House Bill 3459, 78th Legislature, Regular Session,
the new section sets forth the requirement of a 90-day waiting period for
an individual who is not a member of TRS, including through withdrawal of
contributions, if the individual is employed on or after September 1, 2003,
by an entity otherwise required to report its employees to TRS as members.
The new section sets forth the eligibility for TRS membership for individuals
who are subject to the waiting period; describes the date of employment for
the purpose of administering the section; establishes how the waiting period
is calculated, and addresses the effect of the waiting period on eligibility
to elect participation in the Optional Retirement Program ("ORP") as an alternative
to membership in TRS.
This emergency adoption is necessary because TRS and affected employers
are required to comply with the relevant provisions of House Bill 3459, 78th
Legislature, Regular Session, effective September 1, 2003, including preparation
of communication for affected employees, modification of procedures, and programming
of payroll systems to implement the new waiting period requirement. TRS finds
that these requirements of state law require the adoption of the new section
on fewer than 30 days notice. The agency has determined that this section
is necessary and appropriate in accordance with Government Code §2001.006,
which allows the agency to adopt rules and take other administrative action
in preparation for the implementation of legislation that has become law but
has not taken effect. However, the new section shall not become effective
until the date the new law becomes effective: September 1, 2003.
The new section is adopted on an emergency basis under the Government
Code, Chapter 825, §825.102, which authorizes the Board of Trustees of
the Teacher Retirement System to adopt rules for eligibility for membership.
The new section is adopted under House Bill 3459, 78th Legislature, Regular
Session, sections 43-44 and 73-74, which require a waiting period and otherwise
address implementation of the waiting period. As described above, the section
is also adopted under Government Code §2001.006 and Government Code §2001.034.
The other code provisions affected are Government Code, Chapter 822, §822.001
and Government Code, Chapter 823, §823.002.
§25.34.Administration of Membership Waiting Period.
(a)
For an individual who begins employment on or after September
1, 2003, with an employer that is a TRS reporting entity and who is not a
member of TRS as of the date of employment, eligibility for TRS pension plan
membership begins on the first calendar day after the end of a 90 calendar
day waiting period.
(b)
For purposes of this section, an individual who is not
considered to be a TRS member includes an individual who previously terminated
membership in the retirement system through withdrawal of contributions and
did not resume membership prior to a date of employment that is on or after
September 1, 2003.
(c)
In determining the date of eligibility for TRS pension
plan membership for an employee who is subject to the waiting period, the
following provisions apply:
(1)
An employer shall count the date of employment as the first
day of the 90-day waiting period.
(2)
An employer shall count calendar days of an employment
period on or after September 1, 2003, towards the waiting period, regardless
of whether the days are in different school years.
(3)
An employer shall count calendar days on or after September
1, 2003, during which the individual previously served as an employee with
another TRS reporting entity towards the waiting period.
(4)
An employer shall not count any calendar days between periods
of employment towards the waiting 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 waiting period.
(6)
Service of a type that would not otherwise qualify the
employee for TRS membership may not fulfill any part of the waiting period
requirement.
(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 person were not subject to the waiting period
described in this section.
(e)
An employer shall submit member and other required contributions
to TRS on compensation paid to an employee after the first date of the employee's
eligibility for membership. For an employee subject to the waiting period,
an employer's first report to TRS for the employee shall include the date
of employment and the date on which the employee became eligible for TRS membership
after the waiting period.
(f)
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 contributions and deposits as
required by this title.
(g)
Because participation in the Optional Retirement Program
("ORP") under Government Code, Chapter 830, is in lieu of participation in
TRS, a person employed on or after September 1, 2003, and otherwise eligible
to elect to participate in ORP must meet the TRS membership eligibility requirements,
including the waiting period as applicable under this section, before the
person may elect to participate in ORP. An election to participate in ORP
must be made before the 91st day after becoming eligible to make the election,
as required by Government Code, Chapter 830, §830.102, but may not be
made before the date on which an employee is eligible for TRS membership.
(h)
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.
(i)
An employee who is subject to the waiting period specified
in this section may be eligible to receive a year of TRS service credit if
the employee is employed in a TRS-covered position and participates as a contributing
member of TRS for the amount of time in a school year required by this title,
including §25.1 of this title (relating to Full-Time Service) and §25.131
of this title (relating to Required Service). Employment service prior to
the date on which a person is eligible for TRS membership under this section
may not be used to meet the minimum requirements for service creditable in
a school year unless a member purchases it in accordance with applicable requirements.
(j)
This section is effective on September 1, 2003, and expires
September 1, 2005, unless legislation is enacted extending the provisions
of Government Code, Chapter 822, §822.001 and Government Code, Chapter
823, §823.002, as amended by House Bill 3459, 78th Legislature.
This agency hereby certifies that the emergency adoption
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 8, 2003.
TRD-200304892
Charles L. Dunlap
Executive Director
Teacher Retirement System of Texas
Effective Date: September 1, 2003
Expiration Date: December 30, 2003
For further information, please call: (512) 542-6115