Participation, Special Risk Class; Legislative Intent and Procedures, Criteria for Special Risk Membership - Correctional Officers, Special Risk Administrative Support Class, Senior Management Service Class, Admission of Cities and Special Districts ...

DEPARTMENT OF MANAGEMENT SERVICES
Division of Retirement

RULE NO.: RULE TITLE:
60S-1.004: Participation
60S-1.005: Special Risk Class; Legislative Intent and Procedures
60S-1.0053: Criteria for Special Risk Membership - Correctional Officers
60S-1.0054: Special Risk Administrative Support Class
60S-1.0057: Senior Management Service Class
60S-1.007: Admission of Cities and Special Districts to the Florida Retirement System

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 37 No. 47, November 23, 2011 issue of the Florida Administrative Weekly.

60S-1.004 Participation.

(1) Compulsory Membership – Participation in the Florida Retirement System (FRS) shall be compulsory as a condition of employment for all officers and employees enumerated in the following paragraphs who are filling a regularly established position as described in subsection 60S-1.004(4), F.A.C., and defined in Rule 60S-6.001, F.A.C., (exceptions are provided in subsection 60S-1.004(2) or (3), F.A.C.). Such officers and employees shall participate in one of the five Florida Retirement System classes of membership. Members shall be assigned to the Regular Class unless eligible or required by virtue of the position held to be in the Special Risk Class as provided in Rule 60S-1.005, F.A.C., the Special Risk Administrative Support Class as provided in Rule 60S-1.0054, F.A.C., the Elected Officers’ Class as provided in Rule 60S-1.0055, F.A.C., or the Senior Management Service Class as provided in Rule 60S-1.0057, F.A.C. All such officers or employees initially enrolled into the FRS or initially enrolled as renewed members of the FRS as provided in Section 121.122 and 121.053, F.S., shall be enrolled, by default, into the defined benefit plan of the FRS more commonly referred to as the FRS Pension Plan as provided in Part I of Chapter 121, F.S., and may, by the last business day of the fifth month following his or her month of hire as provided in Section 121.4501, F.S., choose to elect enrollment into the defined contribution plan of the FRS more commonly referred to as the FRS Investment Plan as provided in Part II of Chapter 121, Florida Statutes. Such election may be filed with the Plan Choice Administrator as defined in subsection 60S-6.001(50), F.A.C., using one of the following State Board of Administration forms applicable to his or her membership class in the Florida Retirement System. The forms are: Form ELE-1-EZ (Rev. 07-11), an EZ Retirement Plan Enrollment form which is only for Regular Class, Special Risk Class, and Special Risk Administrative Support Class members; Form ELE-1 (Rev. 10-11), a General Retirement Plan Enrollment form for Regular Class, Special Risk Class, and Special Risk Class Administrative Support Class members; Form EOC-1 (Rev. 10-11), a form for Elected Officers’ Class members; Form OCC-1 (Rev. 10-11), a form for members eligible for participation in the State Community College Optional Retirement Program; Form ORP-16 (Rev. 10-11), a form for members eligible for participation in the State University System Optional Retirement Plan; Form SMS-1 (Rev. 10-11), a form for members eligible for participation in the Senior Management Service Optional Annuity Plan; and Form SMS-3 (Rev. 10-11), a form for members eligible for participation in a local retirement plan in lieu of the Senior Management Service Class all of which are herein incorporated by reference. The form appropriate to the employee’s membership class is available in the enrollment package which is sent to the employee’s address of record after the employee’s first reported payroll or by accessing the Division’s Web site (http://FRS.MyFlorida.com); or by calling toll free 1(866)446-9377, or for the hearing impaired 1(888)429-2160, or alternatively the employee may choose to submit a separate document in lieu of the form to file their election with the Plan Choice Administrator which at minimum shall provide the employee’s name, social security number and his or her plan election. After the period of initial FRS plan choice has expired, or the month following the receipt of the eligible employee’s plan election, if sooner, the employee’s plan choice is irrevocable except that the employee shall have one opportunity, at the employee’s discretion, to change plans as provided in Section 121.4501, F.S. Such election to change FRS plans may be made using one of the following State Board of Administration forms for ease of use for employees in the several membership classes of the Florida Retirement System. These forms are: Form ELE-2 (Rev. 10-11), 2nd Election Retirement Plan Enrollment Form; and Form ELE-2-EZ (Rev. 07-11), 2nd Election Retirement Plan Enrollment Form both of which are herein here in incorporated by reference. These forms can be obtained by accessing the Division’s Web site (http://FRS.MyFlorida.com); or by calling toll free 1(866)446-9377, or for the hearing impaired 1(888)429-2160, or alternatively the employee may choose to submit a separate document in lieu of the form to file their election with the Plan Choice Administrator which at minimum shall provide the employee’s name, social security number and his or her plan election.

(a) through (l) No change.

(2)(a) through (c) No change.

(d) Employees filling a position classified as eligible for participation in the Senior Management Service Optional Annuity Program as provided in Section 121.055, F.S., and Chapter 60V, F.A.C., shall within the 90-day period of the commencement of such employment have the option of prospectively participating in the Senior Management Service Optional Annuity Program (SMSOAP) in lieu of participating in the FRS as provided in Sections 121.055 and 121.4501, F.S.

1. An election to participate in the SMSOAP, must be made in writing to the Plan Choice Administrator as defined in subsection 60S-6.001(50), F.S., no later than the 90th day after the date of hire which requires the selection to be made not later than 4:00 p.m. Eastern Time on the 90th day from the employee’s date of hire in accordance with Sections 121.055 and 121.4501, F.S., and Rule 19-11.006 19-11006, F.A.C.

(f) Any member of an existing system or any member retired under the disability provisions of the Teachers’ Retirement System who recovers and terminates his or her benefit, and

2. Who has terminated all employment relationships as provided in subsection 60S-6.001(69), F.A.C., remains terminated from all covered employment for at least 12 months and returns to covered reemployment on or after July 1, 1988. Such member shall have the option of transferring to the Florida Retirement System or remaining in the existing system. To remain in the existing system the member shall, within 6 months of reemployment, make written notification to the Division of his or her intention to remain in the existing system. Such written notification may be made using Division of Retirement designed form for ease of use, Form BLE-1 (Rev 08/99), herein adopted by reference and may be obtained by calling the Division’s Bureau of Enrollment Toll Free at 1(877)377-3675, if calling outside the Tallahassee calling area or locally at [phone], or if hearing or speech impaired by calling the Division via T.D.D. at the Florida Relay System by dialing 711 or 1(800)955-8771, or alternatively the employee may choose to submit a separate document in lieu of Form, BLE-1, to file their written notification with the Division which at minimum shall provide the employee’s name, social security number and his or her plan election. Failure to submit notification shall result in compulsory membership in the Florida Retirement System as provided in paragraph 60S-1.004(1)(d), F.A.C. (See also paragraphs 60S-1.004(1)(g), (3)(b) and (3)(f), F.A.C.)

(j) Any employee Employees filling a position classified as eligible for participation in the State Community College System Optional Retirement Program (CCORP) as provided in Section 121.051, and 1012.875, F.S.

1.a. Prior to July 1, 2003, an employee filling a CCORP eligible position, within 60 days of the date of qualifying employment, had the option of prospectively participating in the CCORP. If such option was not exercised within 60 days of qualifying employment, the employee filling the CCORP eligible position forfeits eligibility to participate in the CCORP.

2. On or after July 1, 2003, an employee filling a CCORP eligible position, within 90 days of qualifying employment, shall have the option of electing to participate in the CCORP.

d. An employee who fills a CCORP-eligible position who does not make an election to participate in the CCORP within his or her election window, forfeits eligibility to participate in the CCORP and defaults to FRS membership.

3. No change.

4. An employee who fills a CCORP-eligible position who does not make an election to participate in the CCORP within his or her election window, forfeits eligibility to participate in the CCORP and defaults to FRS membership.

(3)(a) through (b) No change.

(c) Officers and employees of any nonprofit association or corporation; however, all officers and employees of the University Athletic Association, Inc. participating in a state-supported retirement system prior to July 1, 1979, shall continue membership in such system, except those who chose in writing between July 1, 1979 and March 3130, 1980 to terminate participation in the Florida Retirement System in accordance with Section 121.051(2)(a)1., F.S.

(g) Any person performing services as a consultant or an independent contractor as defined in subsection 60S-6.001(33), F.A.C. The determination of the employment classification of a person as an employee or an independent contractor is solely within the jurisdiction of the Division. To establish whether a person is an independent contractor or an employee, a determination may be requested from the Division, Bureau of Enrollment and Contributions. The determination will be based in substantial part on information furnished on Form ERQ-1 (Rev. 09/08), Florida Retirement System Pension Plan Employment Relationship Questionnaire for Retirees Within the 2nd – 12th Months, herein adopted by reference, which the employing agency and the person performing the services must each complete and submit to the Division for a determination. Form ERQ-1 may be obtained by calling the Division’s Bureau of Enrollment Toll Free at 1(877)377-3675, if calling outside the Tallahassee calling area or locally at [phone]. Individuals with a hearing or speech impairment may call the Division via T.D.D. at the Florida Relay System by dialing 711 or 1(800)955-8771. Retroactive adjustments of retirement contributions will be required by any agency that improperly excludes or enrolls a person.

(h) Any person appointed on or after July 1, 1989, to a faculty position in a college at the J. Hillis Miller Health Center at the University of Florida or the Medical Center at the University of South Florida which has a faculty practice plan provided by rule adopted by the Board of Governors or its predecessors. Effective July 1, 2008 2007, any person appointed to a faculty position, including clinical faculty, in a college at a state university that has a faculty practice plan authorized by the Board of Governors. Such person must participate in the State University System Optional Retirement Program based on such service as provided in subsection 60U-1.004(4), F.A.C. and in accordance with Section 121.051(1), F.S.

60S-1.005 Special Risk Class; Legislative Intent and Procedures.

(1) Legislative Intent. – The Legislative intent and purpose in establishing the Special Risk Class of membership in the Florida Retirement System is provided in Section 121.0505(1), F.S. In creating the Special Risk Class of membership within the Florida Retirement System, it is the intent and purpose of the Legislature to recognize that persons employed in certain categories of law enforcement, firefighting, and criminal detention, and emergency medical care positions are required as one of the essential functions of their positions to perform work that is physically demanding or arduous, or work that requires extraordinary agility and mental acuity, and that such persons, because of diminishing physical and mental faculties may find that they are not able, without risk to the health and safety of themselves, the public, or their co-workers, to continue performing such duties and thus enjoy the full career and retirement benefits enjoyed by persons employed in other positions, and that, if such persons find it necessary, due to the physical and mental limitations of their age, to retire at an earlier age and usually with less service, they will suffer an economic deprivation therefrom. Therefore, as a means of recognizing the peculiar and special problems of this class of employees, it is the intent and purpose of the Legislature to establish a class of retirement membership that awards more retirement credit per year of service than that awarded to other employees; nothing contained herein shall require ineligibility for Special Risk Class membership upon reaching age 55.

(3) Application. – The following procedures shall govern applications for Special Risk Class membership:

(b) No change.

1. Any Regular Class member who feels that his or her position he or she meets the requirements for Special Risk Class membership set forth in subsection (2) may request that his or her employer submit an application to the Division requesting that the Division designate him or her as a Special Risk Class member. Such member shall complete the employee portions of the appropriate Special Risk Class application. The employer shall promptly certify and submit to the Division the following documents:

a. The appropriate Florida Retirement System Application for Special Risk Class Membership.

(I) Florida Retirement System Application for Special Risk Class Membership for Law Enforcement/Correctional Officers, Form FRS-400 (Rev.04/00), herein adopted by reference, which may be obtained from the Forms page of the Division’s website, http://frs.MyFlorida.com, or by calling the Division’s Bureau of Enrollment Toll Free at 1(877)377-3675, if calling outside the Tallahassee calling area or locally at [phone], or if hearing or speech impaired by calling the Division via T.D.D. at the Florida Relay System by dialing 711 or 1(800)955-8771; or

(II) Florida Retirement System Application for Special Risk Class Membership Firefighters/Paramedics/EMTs, Form FRS-405 (Rev.10/03), herein adopted by reference, which may be obtained from the Forms page of the Division’s website, http://frs.MyFlorida.com, or by calling the Division’s Bureau of Enrollment Toll Free at 1(877)377-3675, if calling outside the Tallahassee calling area or locally at [phone], or if hearing or speech impaired by calling the Division via T.D.D. at the Florida Relay System by dialing 711 or 1(800)955-8771; or

(III) Florida Retirement System Application for Special Risk Class Membership for Forensic Discipline from October 1, 2005 through June 30, 2008, Form FRS-410 (Rev. 05/08), herein adopted by reference, which may be obtained by calling the Division’s Bureau of Enrollment Toll Free at 1(877)377-3675, if calling outside the Tallahassee calling area or locally at [phone], or if hearing or speech impaired by calling the Division via T.D.D. at the Florida Relay System by dialing 711 or 1(800)955-8771; or

(IV) Florida Retirement System Application for Special Risk Class Membership for Forensic Discipline effective July 1, 2008, Form FRS-415 (05/08), herein adopted by reference, which may be obtained from the Forms page of the Division’s website, http://frs.MyFlorida.com, or by calling the Division’s Bureau of Enrollment Toll Free at 1(877)377-3675, if calling outside the Tallahassee calling area or locally at [phone], or if hearing or speech impaired by calling the Division via T.D.D. at the Florida Relay System by dialing 711 or 1(800)955-8771.

2. If the employer refuses to submit the member’s application to the Division, the employer shall notify the member of the refusal, together with the employer’s reasons for refusal. The member may then appeal this refusal to the State Retirement Commission pursuant to Section 121.0515(4)(a) 121.0515(3)(a), F.S.

3. Upon receipt of the completed application, which shall include all of the items designated in subparagraph 1. above, the Division shall within 90 days determine if the member and the member’s position meets the requirements for Special Risk Class membership set forth in subsection (2). If the requirements for Special Risk Class membership are met, the Division shall approve the member for Special Risk Class membership which shall commence as follows:

a. When a newly employed member’s complete application is received by the Division of Retirement, the effective date of membership in the Special Risk Class shall be the date of employment in the approved position and Special Risk Class contributions shall be payable from that time.

c. If a Special Risk Class member changes to another position within the same agency that is not an approved a preapproved Special Risk Class position listed with Class Codes in Chapter 1 of the FRS Employer Handbook, or is employed with a new agency, the member must submit a complete application as provided in sub-subparagraph (3)(b)1.a. to the Division of Retirement.

d. If a Special Risk Class member changes to an approved a preapproved Special Risk Class position listed with Class Codes in Chapter 1 of the FRS Employer Handbook under the same set of criteria (e.g., a corrections officer I changing to a corrections officer II position), the employer shall submit the appropriate position class code for the new position on the Monthly Retirement Report.

e. If a Special Risk Class member changes to a Special Risk Class position under a different set of membership criteria (e.g., a transfer from law enforcement to a firefighter or correctional officer position), the member must submit a complete application for Special Risk Class membership, except that the employer of such officer who changes to an approved a preapproved Special Risk Class position listed with Class Codes in Chapter 1 of the FRS Employer Handbook must submit only the appropriate position class code for the new position on the Monthly Retirement Report for such member.

4. Within 90 days of receipt of the application, the Division shall determine whether or not the member and the member’s position meet meets the requirements for Special Risk Class membership. If it is determined that the member or the member’s position does not meet the requirements, the Division shall notify the member by certified mail, with a copy to his or her employer, of the Administrator’s intended decision to disapprove the member’s application for Special Risk Class membership. This notice shall include a summary of the factual, legal and policy grounds for the intended decision.

c. If the member does not accept the Administrator’s final decision on the merits, the member may request in writing, pursuant to Section 121.23, F.S., Chapter 60R-1, F.A.C., and the Uniform Rules in Rule Chapter 28-106, F.A.C., a hearing on the denial of his or her application for Special Risk Class membership before the State Retirement Commission pursuant to Sections 120.569 and 120.57(1) Section 120.57(1), F.S. Such request shall be filed with the Commission within 21 calendar days from the date the member receives notice of the Administrator’s final decision.

60S-1.0053 Criteria for Special Risk Class Membership – Correctional Officers.

(2) No change.

(b) Effective October 1, 1978, a Warden Superintendent or Assistant Warden Superintendent (regardless of title) of a correction or detention facility where duly committed inmates are confined, housed, or maintained and where correctional officers are employed. Warden Superintendent shall mean the person directly in charge of the day-to-day operations of a specific correction or detention facility. Assistant Warden Superintendent shall mean the one person whose responsibilities include direct line authority from the Warden Superintendent over all subordinate employees for the day-to-day operations at the facility. If no one employee in a corrections facility has such responsibility, then for retirement purposes there is no assistant warden superintendent at that facility, except that in large state institutions there may be more than one assistant warden superintendent if the institution is divided into units, each having an assistant warden superintendent with direct line authority from the warden superintendent over all subordinate employees for the day to day operations within the unit.

60S-1.0054 Special Risk Administrative Support Class.

(2)(a) through (c) No change.

(d) The member remains certified by the appropriate authority and completes an aggregate of the years of service as a designated special risk member before retirement which is equal to or greater than the years of service required to be vested; and

(3)(a) No change.

1. Florida Retirement System Application for Special Risk Administrative Support Class, Form FRS-404 (Rev. 11/02), herein incorporated by reference, which may be obtained from the Forms page of the Division’s website, http://frs.MyFlorida.com, or by calling the Division’s Bureau of Enrollment Toll Free at 1(877)377-3675, if calling outside the Tallahassee calling area or locally at [phone]. Individuals with a hearing or speech impairment may call the Division via T.D.D. at the Florida Relay System by dialing 711 or 1(800)955-8771. (FRS-404), adopted in Rule 60S-2.0041, F.A.C.

3. A copy of the appropriate certification or other evidence of certification as required by the Criminal Justice Standards and Training Commission in Section 943.1395, F.S., or the Firefighters Standards and Training Council in Section 633.35, F.S., or the Department of Health in Section 401.27, F.S. or maintain certification pursuant to Section 401.27, F.S.

(7) Retroactive Coverage – The provisions of this section shall apply retroactively for the period October 1, 1978, to on or before June 30, 1982 July 1, 1982, for eligible members as provided in paragraph 60S-2.0041(2)(d), F.A.C. In order to receive credit for retroactive service under this rule, the member must make application for his or her retroactive coverage and should consult paragraph 60S-2.0041(2)(d), F.A.C., of these rules for the procedure.

(8) (a) No change.

(b) If the member does not accept the decision of the Division, he or she may petition the Division for an administrative hearing, pursuant to Sections 120.569 and 120.57, Section 120.57, F.S. Such request shall be made within the time limitations of Rule 28-106.201, F.A.C.

(9)(a) through (b) No change.

(c) If the member does not accept the decision of the Division, the member may petition the Division for an administrative hearing on the denial of his or her application for Special Risk Administrative Support Class membership, pursuant to Sections 120.569 and 120.57 Section 120.57, F.S. Such request should be made within the time limitations of Rule 28-106.201, F.A.C.

60S-1.0057 Senior Management Service Class (SMSC).

(2)(c) No change.

2. Complete Form SMSD-1 (Rev 08/00), Florida Retirement System Senior Management Service Class Designated Position Form, herein adopted by reference, which may be obtained from the Employer page of the Division’s website, http://frs.MyFlorida.com, or by calling the Division’s Bureau of Enrollment Toll Free at 1(877)377-3675, if calling outside the Tallahassee calling area or locally at [phone], or if hearing or speech impaired by calling the Division via T.D.D. at the Florida Relay System by dialing 711 or 1(800)955-8771. The position number of the designated position, consisting of from 1 to 10 numeric digits, must be included on the Form SMSD-1.

60S-1.007 Admission of Cities and Special Districts to the Florida Retirement System.

(7) Referendum – The governing body of a city, independent special district, metropolitan planning organization, public charter school or public charter technical career center which has an existing retirement system covering the employees in the units that are to be brought under the Florida Retirement System shall, prior to the city, independent special district, metropolitan planning organization, public charter school or public charter technical career center being approved for participation in the Florida Retirement System may participate only after holding a referendum as provided in and in accordance with subparagraph 121.051(2)(b)2., F.S.

(8)(7) All required documents necessary for extending Florida Retirement System coverage shall be delivered to the Division of Retirement for consideration at least 15 days prior to the effective date of coverage. If this is not complied with, the Division of Retirement may require that the effective date of coverage be changed.

(9)(8) The governing body of a city or independent special district that participates in the Florida Retirement System may revoke its election to participate with an effective date of January 1, 1996, in accordance with the provisions of Section 121.0511 or 121.051(2)(b)5., F.A.C.