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TITLE 19EDUCATION
PART 1TEXAS HIGHER EDUCATION COORDINATING BOARD
CHAPTER 25OPTIONAL RETIREMENT PROGRAM
SUBCHAPTER AOPTIONAL RETIREMENT PROGRAM
RULE §25.4Eligibility to Elect ORP

(a) Eligibility Criteria. An employee shall be eligible to make a once-per-lifetime irrevocable election of ORP in lieu of the applicable retirement system if all of the following criteria are met:

  (1) ORP-eligible Position: Employment in an ORP-eligible position as defined in subsection (k) of this section;

  (2) 100 Percent Effort: Employment in an ORP-eligible position that is expected to be full-time (i.e., 100 percent effort) for a period of at least one full semester or four and one-half months.

    (A) Initial Eligibility Period. This eligibility requirement is an employee's initial ORP eligibility period, as defined in §25.3 of this title (relating to Definitions).

    (B) Combining of Percent Effort at Different Institutions Not Permitted. The 100 percent effort requirement shall be satisfied by employment with only one institution, unless an individual is simultaneously employed in ORP-eligible positions with more than one component institution under the same governing board that operates its ORP either as a single plan for all components or includes the applicable components in the same plan, in which case, the employee's percent effort at each component may be combined to meet the minimum 100 percent effort requirement;

  (3) First Election Opportunity: No previous opportunity to elect ORP in lieu of the applicable retirement system during the current or a prior period of employment at the same or another Texas public institution of higher education or the Board; and

  (4) Active Membership in Retirement System: Current membership or eligibility for active membership in the applicable retirement system as provided in subsection (h) of this section.

(b) ORP Participation after Election. Once an employee makes an election of ORP, the employee's eligibility to continue participating in ORP shall be determined in accordance with §25.5 of this title (relating to ORP Vesting and Participation).

(c) Non-Texas ORP Plans. Prior enrollment, participation or vested status in any plan other than the ORP plan authorized under Texas Government Code, Chapter 830, shall have no bearing on an employee's eligibility to elect ORP, except that the employee must be eligible for active membership in the applicable retirement system as provided in subsection (h) of this section.

(d) Separate Elections. An election of ORP in lieu of TRS at a Texas public institution of higher education shall be considered separate and distinct from an election of ORP in lieu of ERS at the Board.

  (1) An employee's prior election of ORP in lieu of ERS at the Board on or after September 1, 1994, shall have no bearing on that person's eligibility to elect ORP in lieu of TRS at a Texas public institution of higher education.

  (2) An election of ORP by a Board employee prior to September 1, 1994, was made in lieu of TRS; therefore, an institution shall treat an employee's election of ORP in lieu of TRS at the Board prior to September 1, 1994, in the same manner as if the election had been made at an institution.

  (3) An employee's prior election of ORP in lieu of TRS at an institution, or an employee's election of ORP in lieu of TRS at the Board prior to September 1, 1994, shall have no bearing on that person's eligibility to elect ORP in lieu of ERS at the Board.

(e) Opportunity to Elect.

  (1) The governing board of each Texas public institution of higher education shall provide an opportunity to all eligible employees in the component institutions governed by the board to elect ORP in lieu of TRS in accordance with these rules. The Board shall provide an opportunity to all eligible employees to elect ORP in lieu of ERS in accordance with these rules.

  (2) Documentation.

    (A) ORP employers shall maintain documentation in each ORP-eligible employee's employment record that an opportunity to elect ORP was provided. Such documentation shall indicate the beginning and ending dates of the employee's ORP election period.

    (B) The documentation required by this paragraph may be maintained in an electronic format in accordance with applicable provisions for such records.

    (C) This paragraph applies to employees who become eligible to elect ORP on or after September 1, 2006, including employees who are hired for the Fall 2006 semester whose first active duty date is in the month of August 2006.

(f) 90-Day ORP Election Period. An employee who meets the eligibility criteria in subsection (a) of this section shall be provided an ORP election period, as defined in §25.3 of this title (relating to Definitions), during which an election to participate in ORP may be made by signing the TRS 28 ORP election form (or its successor) or, for employees of the Board, the ORP election form provided by the Board, and submitting the ORP election form to the ORP employer for certification.

  (1) Beginning and Ending Dates. The 90-day ORP election period shall begin on the employee's initial ORP eligibility date, as defined in §25.3 of this title (relating to Definitions), and shall end on the earlier of:

    (A) the date the employee makes an ORP election by signing the TRS 28 ORP election form (or its successor) or, for employees of the Board, the ORP election form provided by the Board, and submitting the ORP election form to the ORP employer for certification; or

    (B) the 90th calendar day after the employee's initial ORP eligibility date, not including the initial ORP eligibility date and including the 90th calendar day. If the 90th calendar day after the initial ORP eligibility date falls on a weekend or holiday, the deadline shall be extended until the first business day after the 90th calendar day.

  (2) Written Notification. In accordance with §25.6(h)(2) of this title (relating to ORP Election Period Dates), each ORP employer shall, within 15 business days of an ORP-eligible employee's initial ORP eligibility date, provide written notification to the ORP-eligible employee that indicates the beginning and ending dates of his or her ORP election period and the local procedures for submitting the election form and additional required paperwork.

  (3) Once-per-Lifetime Irrevocable Election. An employee who is eligible to elect ORP shall have only one opportunity during his or her lifetime, including any future periods of employment in Texas public higher education, to elect ORP in lieu of the applicable retirement system, and the election may never be revoked.

    (A) Default Election. Failure to elect ORP during the 90-day ORP election period shall be a default election to continue membership in the applicable retirement system.

      (i) ORP in Lieu of TRS. An employee of a Texas public institution of higher education who does not elect ORP in lieu of TRS during the 90-day ORP election period shall never again be eligible to elect ORP in lieu of TRS, even if subsequently employed in an ORP-eligible position at the same or another Texas public institution of higher education.

      (ii) ORP in Lieu of ERS. An employee of the Board who does not elect ORP in lieu of ERS during the 90-day ORP election period shall never again be eligible to elect ORP in lieu of ERS, even if subsequently employed in an ORP-eligible position at the Board.

    (B) Irrevocable. An election of ORP shall be irrevocable. An employee who elects ORP shall remain in ORP, except as provided by §25.5(f) and (h) of this title (relating to ORP Vesting and Participation). A default election of the applicable retirement system, as described in subparagraph (A) of this paragraph shall be irrevocable. An employee who fails to elect ORP during the ORP election period shall remain in the applicable retirement system in accordance with the laws and rules governing eligibility for the retirement system.

    (C) Separate Elections. As provided in subsection (d) of this section, an election of ORP in lieu of TRS at a Texas public institution of higher education shall be considered separate and distinct from an election of ORP in lieu of ERS at the Board; therefore, an election of ORP in lieu of one retirement system shall not preclude an eligible employee's election of ORP in lieu of the other retirement system if subsequently employed in a position that is eligible to elect ORP in lieu of the other retirement system.

  (4) Company Selection Required at Election. An employee who elects to participate in ORP shall select an ORP company from the ORP employer's list of authorized companies in conjunction with the election of ORP. An ORP employer shall establish a policy that failure to select an authorized company may result in disciplinary action up to and including termination of employment because retirement contributions are required by law as a condition of employment.

  (5) Waiver of Retirement System Benefits. An election of ORP shall be a waiver of the employee's rights to any benefits that may have accrued from prior membership in the applicable retirement system, other than benefits resulting from transfers of service credit between the applicable retirement systems and reinstatement of withdrawn service credit under the ERS/TRS service transfer law, even if the participant has met the applicable system's vesting requirement. Except as provided by §25.5(f) and (h) of this title (relating to ORP Vesting and Participation) and the ERS/TRS service transfer law, an ORP participant shall not be eligible to become an active member of the applicable retirement system or receive any benefits from the system other than a return of employee contributions that may have been deposited with the system (and accrued interest, if any).

(g) Participation Start Date. The first day that ORP contributions are made shall be determined as follows:

  (1) Election on Initial ORP Eligibility Date.

    (A) Employees of Institutions of Higher Education.

      (i) New Employees. For new employees who sign the TRS 28 ORP election form (or its successor) on or before their initial ORP eligibility date, the participation start date shall be the initial ORP eligibility date (i.e., first day of ORP-eligible employment).

      (ii) Transfers within Same Institution. For employees who transfer from a non-ORP-eligible position to an ORP-eligible position within the same institution and who sign the TRS 28 ORP election form (or its successor) on or before their initial ORP eligibility date, the participation start date shall be the initial ORP eligibility date (i.e., first day of ORP-eligible employment), unless the initial ORP eligibility date is not the first day of the month, in which case, to avoid dual contributions to both TRS and ORP during the same month, as provided in §25.6(a)(4) of this title (relating to No Dual Contributions), the participation start date shall be the first day of the month following the month in which the initial ORP eligibility date falls.

    (B) Employees of the Board.

      (i) New Employees. For new Board employees who sign the ORP election form provided by the Board on or before their initial ORP eligibility date, the participation start date shall be the initial ORP eligibility date (i.e., first day of ORP-eligible employment).

      (ii) Transfers within the Board. For Board employees who transfer from a non-ORP-eligible position at the Board to an ORP-eligible position at the Board, and who sign the ORP election form provided by the Board on or before their initial ORP eligibility date, the participation start date shall be the initial ORP eligibility date (i.e., first day of ORP-eligible employment), unless the initial ORP eligibility date is not the first day of the month, in which case, to avoid dual contributions to both ERS and ORP during the same month, as provided in §25.6(a)(4) of this title, the participation start date shall be the first day of the month following the month in which the initial ORP eligibility date falls.

  (2) Election After Initial ORP Eligibility Date. The participation start date for ORP-eligible employees who sign the TRS 28 ORP election form (or its successor) or, for employees of the Board, the ORP election form provided by the Board, after their initial ORP eligibility date, shall be the first day of the month following the date that the form is signed, with the following exceptions:

    (A) During Month of Initial ORP Eligibility Date. ORP employers may establish a policy that employees who elect ORP by signing the TRS 28 ORP election form (or its successor) or, for employees of the Board, the ORP election form provided by the Board, after their initial ORP eligibility date but before the end of the month in which the initial ORP eligibility date falls may be treated as if they had signed the form on or before their initial ORP eligibility date as provided by paragraph (1) of this subsection, provided the employee earns enough compensation between the date of the election and the end of the month in which the initial ORP eligibility date falls to cover the employee's ORP contribution for the entire month.

    (B) After Month of Initial ORP Eligibility Date: ORP employers may establish a policy that employees who elect ORP by signing the TRS 28 ORP election form (or its successor) or, for employees of the Board, the ORP election form provided by the Board, after the month in which their initial ORP eligibility date falls, but before the end of the month in which the form is signed, may start participating in the month in which the form is signed rather than the first of the following month, provided the employee earns enough compensation between the date of the election and the end of the month in which the form is signed to cover the employee's ORP contribution for the entire month. To avoid partial month payments, contributions for these Cont'd...

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