WSR 09-01-149

PROPOSED RULES

DEPARTMENT OF

RETIREMENT SYSTEMS

[ Filed December 22, 2008, 12:50 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-13-048 and 07-13-041.

Title of Rule and Other Identifying Information: WAC 415-104-225 Am I a LEOFF member? and 415-104-475 How does a fire fighter who provides emergency medical services transfer PERS service credit to LEOFF Plan 2?

Hearing Location(s): Department of Retirement Systems, 6835 Capitol Boulevard, Conference Room 115, Tumwater, WA, on February 3, 2009, at 2:00 p.m.

Date of Intended Adoption: February 4, 2009.

Submit Written Comments to: Sarah Monaly, Rules Coordinator, Department of Retirement Systems, P.O. Box 48380, Olympia, WA 98504-8380, e-mail rules@drs.wa.gov, fax (360) 753-3166, by 5:00 p.m. on February 3, 2009.

Assistance for Persons with Disabilities: Contact Sarah Monaly, rules coordinator, by January 28, 2009, TDD (360) 664-7291, TTY (360) 586-5450, phone (360) 664-7291.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to implement SHB 1936 (2005), which added emergency medical technicians (EMT) to the definition of "fire fighter" for the law enforcement officers' and firefighters' retirement system (LEOFF). This proposal will also implement HB 1680 (2007), which related to the transfer of service credit of EMTs who are currently LEOFF Plan 2 members but have previous service as EMTs in the public employees' retirement system (PERS). HB 1680 allows for the automatic transfer of service credit for LEOFF Plan 2 EMTs who die or retire for disability prior to completing the transfer requirements.

Reasons Supporting Proposal: Both legislative measures are in effect and department rules need updating to reflect these changes. Department of retirement systems (DRS) rules assist plan members, retirees, employers, and department staff.

Statutory Authority for Adoption: RCW 41.50.050(5).

Statute Being Implemented: RCW 41.26.030 and 41.26.547.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of retirement systems, governmental.

Name of Agency Personnel Responsible for Drafting: Sarah Monaly, P.O. Box 48380, Olympia, WA 98504-8380, (360) 664-7291; Implementation and Enforcement: Michelle Hardesty, P.O. Box 48380, Olympia, WA 98504-8380, (360) 664-7193.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules have no effect on businesses.

A cost-benefit analysis is not required under RCW 34.05.328. DRS is not one of the named departments in this section (RCW 34.05.328).

December 22, 2008

Sarah Monaly

Rules Coordinator

OTS-2091.2


AMENDATORY SECTION(Amending WSR 02-18-046, filed 8/28/02, effective 9/30/02)

WAC 415-104-225   Am I a LEOFF member?   If you are employed by an employer as a full-time, fully compensated law enforcement officer or fire fighter, you are required to be a LEOFF member.

(1) Law enforcement officers.

(a) You are a law enforcement officer only if you are commissioned and employed on a full-time, fully compensated basis as a:

(i) City police officer;

(ii) Town marshal or deputy marshal;

(iii) County sheriff;

(iv) Deputy sheriff, if you passed a civil service exam for deputy sheriff and you possess all of the powers, and may perform any of the duties, prescribed by law to be performed by the sheriff;

(b) Effective January 1, 1994, "law enforcement officer" also includes commissioned persons employed on a full-time, fully compensated basis as a:

(i) General authority Washington peace officer under RCW 10.93.020(3);

(ii) Port district general authority law enforcement officer and you are commissioned and employed by a port district general authority law enforcement agency;

(iii) State university or college general authority law enforcement officer; or

(c) Effective January 1, 1993, "law enforcement officer" also includes commissioned persons employed on a full-time, fully compensated basis as a public safety officer or director of public safety of a city or town if, at the time you first became employed in this position, the population of the city or town did not exceed ten thousand. See RCW 41.26.030(3).

(d) If you meet the requirements of (a), (b) or (c) of this subsection, you qualify as a law enforcement officer regardless of your rank or status as a probationary or permanent employee.

(e) You are not a law enforcement officer if you are employed in either:

(i) A position that is clerical or secretarial in nature and you are not commissioned; or

(ii) A corrections officer position and the only training required by the Washington criminal justice training commission for your position is basic corrections training under WAC 139-10-210.

(2) Fire fighters.

(a) You are a fire fighter if you are employed in a uniformed fire fighter position by an employer on a full-time, fully compensated basis, and as a consequence of your employment, you have the legal authority and responsibility to direct or perform fire protection activities that are required for and directly concerned with preventing, controlling and extinguishing fires.

(((a))) (i) "Fire protection activities" may include incidental functions such as housekeeping, equipment maintenance, grounds maintenance, fire safety inspections, lecturing, performing community fire drills and inspecting homes and schools for fire hazards. These activities qualify as fire protection activities only if the primary duty of your position is preventing, controlling and extinguishing fires.

(((b))) (ii) You are a fire fighter if you qualify as supervisory fire fighter personnel.

(((c))) (iii) If your employer requires fire fighters to pass a civil service examination, you must be actively employed in a position that requires passing such an examination in order to qualify as a fire fighter unless you qualify as supervisory fire fighter personnel.

(((d))) (iv) You are a fire fighter if you meet the requirements of this section regardless of your rank or status as a probationary or permanent employee or your particular specialty or job title.

(((e))) (v) You do not qualify for membership as a fire fighter if you are a volunteer fire fighter or resident volunteer fire fighter.

(b) You are a fire fighter if you are employed on a full-time, fully compensated basis by an employer as an emergency medical technician (EMT). To be an "emergency medical technician" you must:

(i) Be certified by the department of health to perform emergency medical services at the level of care of an EMT; and

(ii) Complete the requirements of your employer, if any, to perform the job duties of an EMT.

(3) Defined terms used. Definitions for the following terms used in this section may be found in the sections listed.

(a) "Commissioned" - WAC 415-104-011.

(b) "Director of public safety" - WAC 415-104-011.

(c) "Employer" - RCW 41.26.030.

(d) "Fire fighter" - RCW 41.26.030.

(e) "Full time" - WAC 415-104-011.

(f) "Fully compensated" - WAC 415-104-011.

(g) "Law enforcement officer" - RCW 41.26.030.

(h) "Member" - RCW 41.26.030.

(i) "Public safety officer" - WAC 415-104-011.

(j) "Uniformed fire fighter position" - WAC 415-104-011.

[Statutory Authority: RCW 41.50.050(5) and chapter 41.26 RCW. 02-18-046, 415-104-225, filed 8/28/02, effective 9/30/02. Statutory Authority: RCW 41.50.050. 96-01-045, 415-104-225, filed 12/14/95, effective 1/14/96; 95-16-053, 415-104-225, filed 7/25/95, effective 8/25/95.]


AMENDATORY SECTION(Amending WSR 04-04-039, filed 1/29/04, effective 3/1/04)

WAC 415-104-475   How does a fire fighter who provides emergency medical services transfer PERS service credit to LEOFF Plan 2?   (1) Who may use this section? You may use this section if you are:

(a) ((Are currently employed in a law enforcement officers' and fire fighters' (LEOFF) Plan 2 covered position working for a fire department;

(b) Were formerly employed in a position providing emergency medical services and the position was covered under PERS Plan 1 or 2; and

(c) Worked for an employer that relocated your position to a fire department.)) A member of PERS Plan 1 or Plan 2 eligible for membership in LEOFF Plan 2 as an EMT under RCW 41.26.030;

(b) Currently a LEOFF Plan 2 member who chose LEOFF membership after separating from service as an EMT in a PERS Plan 1 or Plan 2 eligible position; or

(c) Currently a LEOFF Plan 2 member and were formerly employed providing emergency medical services in a PERS Plan 1 or Plan 2 eligible position which was relocated by your employer to a fire department.

(2) How do I know if my job providing emergency medical services was "relocated" to a fire department? To be considered "relocated":

(a) The duties of the position must have required providing emergency medical services and the position must have been covered under PERS Plan 1 or Plan 2;

(b) The employer must have been a city, town, county, or district that transferred the position to a fire department; and

(c) The fire department must have ((covered)) determined the transferred position ((under)) was eligible for LEOFF Plan 2.

(3) ((I worked as an emergency medical technician/paramedic (EMT) and I am now enrolled in LEOFF Plan 2. Can I transfer my EMT service into LEOFF Plan 2? Yes. You may transfer your EMT service into LEOFF Plan 2 if:

(a) You provided emergency medical services as an EMT; and

(b) You are in a LEOFF Plan 2 position with the fire department as a result of your employer relocating your position as described in subsection (2) of this section.

(4))) Who determines whether or not my job providing emergency medical services was "relocated" to a fire department? ((The department of retirement systems ())DRS(())) will determine whether or not your job was relocated based on the criteria described in subsection (2) of this section. To do so, DRS will contact your former employer ((that covered your job providing emergency medical services under)) where you provided emergency medical services in a PERS eligible position and verify:

(a) That your position was relocated to a fire department; and

(b) The number of months you worked in that position.

(((5))) (4) I formerly worked as an EMT for a PERS employer that relocated ((my)) the job to a fire department. I was not working in the job at the time it was relocated((, but am now working for the fire department in the same job)). I am now in a LEOFF Plan 2 eligible position. Can I transfer my PERS Plan 1 or Plan 2 EMT service to LEOFF Plan 2? Yes((. Even though)), whether or not you were ((not)) working in the job at the time it was relocated, you can transfer your PERS Plan 1 or Plan 2 EMT service as long as you are employed ((with the fire department covered under)) as a fire fighter in a LEOFF Plan 2 eligible position at the time you request the transfer.

(((6) Can I transfer PERS EMT service into LEOFF Plan 2 if I worked for an employer that did not "relocate" the position to a fire department? No. To transfer PERS EMT service to LEOFF Plan 2, you must have worked in a position that was relocated as described in subsections (1) and (2) of this section.

(7))) (5) What do I need to do if I have PERS Plan 1 or Plan 2 EMT service that can be transferred to LEOFF Plan 2? If you have PERS Plan 1 or Plan 2 EMT service that you want to transfer to LEOFF Plan 2, then you must do the following:

(a) Contact the LEOFF unit at DRS. Once DRS verifies you meet the criteria to transfer as described in subsection((s)) (1) ((and (2))) of this section, DRS will provide you an EMT Transfer Packet that includes an "EMT transfer cost estimate ((and benefit comparison." DRS will also provide you))" and an "EMT Request for Transfer" form.((")) You may also request a benefit comparison. You must complete, sign, and return the form to the LEOFF unit to choose to transfer the service credit.

(b) You must pay the difference in the member contribution rates between the PERS rate and the LEOFF rate, plus interest, for each month of EMT service that you transfer. This bill must be paid in full within five years of your election to transfer your EMT service.

(((8) How is the interest calculated? Interest is calculated at eight percent annually, compounded monthly, and is based on the difference between the required PERS contribution amount and the required LEOFF Plan 2 contribution amount for each month you transfer. DRS calculates the interest for the rate difference for each month being transferred, beginning with the oldest month, then totals each month's interest calculation for the "interest" portion of the bill.

Example: DRS creates a bill in October 2003 to transfer the months of June and July 2002. The member contribution rate difference for each month is $35.00. The interest for June would be $4.18, and for July $3.92. The total interest charge for these two months is $8.10; the total bill is $78.10 ($35.00 x 2 + $8.10). The interest calculated for June 2002 is more because it includes one more month of interest than the month of July 2002. The chart below shows how the interest is calculated:


((Month/Year of Interest Calculation Interest for June 2002 @ .006671 Interest for July 2002 @ .00667
June 2002 $35.00 .23
July 2002 $35.23 .23 $35.00 .23
August 2002 $35.46 .24 $35.23 .23
September 2002 $35.70 .24 $35.46 .24
October 2002 $35.94 .24 $35.70 .24
November 2002 $36.18 .24 $35.94 .24
December 2002 $36.42 .24 $36.18 .24
January 2003 $36.66 .24 $36.42 .24
February 2003 $36.90 .25 $36.66 .24
March 2003 $37.15 .25 $36.90 .25
April 2003 $37.40 .25 $37.15 .25
May 2003 $37.65 .25 $37.40 .25
June 2003 $37.90 .25 $37.65 .25
July 2003 $38.15 .25 $37.90 .25
August 2003 $38.40 .26 $38.15 .25
September 2003 $38.66 .26 $38.40 .26
October 2003 $38.92 .26 $38.66 .26
Total
October 2003 $4.18 $3.92))

(9) Do I have to pay the bill in a lump sum? No. You may make installment payments. Interest will be recalculated each month against the unpaid balance.

(10) What is the time frame for transferring? You must make the decision to transfer no later than June 30, 2008. You must complete the transfer by June 30, 2013.

(11))) (6) Do I have to pay the bill in a lump sum? No, you do not have to pay the bill in a lump sum, you may make installment payments. Interest on the unpaid balance will accrue monthly, at a rate of eight percent annually.

(7) Is there a deadline for requesting to transfer? Yes, you must submit a completed "EMT Request to Transfer" form to the department no later than June 30, 2013.

(8) When will the EMT service be transferred into my LEOFF Plan 2 account? The EMT service will be transferred after:

(a) The bill is paid in full((;)) and

(((b))) five years have passed after DRS receives your request to transfer; or

(b) You meet one of the conditions described in subsection (15) of this section.

(((12))) (9) What if I ((decide)) choose not to transfer my PERS EMT service into LEOFF Plan 2? ((Your EMT service will remain in PERS and)) If you do not choose to transfer your PERS Plan 1 or Plan 2 EMT service, it will remain in PERS. You may either withdraw it or begin receiving a PERS retirement benefit when you are eligible. If you do not withdraw or retire from PERS, you will be a dual member of PERS and LEOFF Plan 2 under the provisions of chapter 41.54 RCW.

(((13))) (10) Can I retire before the transfer of my PERS EMT service is completed? Yes((.

(a))), you may retire from LEOFF Plan 2 once you are eligible, but your retirement benefit will be calculated using only your LEOFF Plan 2 service.

(((b) After)) Once the conditions described in subsection (((11))) (8) of this section have been met, the PERS Plan 1 or Plan 2 EMT service will be transferred into your LEOFF Plan 2 account and your retirement benefit will be recalculated and increased to include the transferred service. The increase will be prospective only from the day following the five-year waiting period.

For example, if you requested the transfer on September 15, ((2003)) 2006, made the required payment, and you retired on August 1, 2007, your retirement benefit would be increased on September 16, ((2008)) 2011.

(((14))) (11) What if I request to transfer my PERS Plan 1 or Plan 2 EMT service but change my mind before the transfer is completed? If you decide ((to)) not to transfer your PERS Plan 1 or Plan 2 EMT service into LEOFF Plan 2, you must notify the LEOFF unit at DRS within five years from the date you requested the transfer. LEOFF staff will cancel your request and refund any money you have paid on the transfer bill.

(((15))) (12) Can I transfer non-EMT PERS service into LEOFF Plan 2? No, you may not transfer non-EMT PERS service into LEOFF Plan 2. Only the PERS Plan 1 or Plan 2 service credit you earned working as an EMT ((for an employer that relocated your EMT position to a fire department)) can be transferred into LEOFF Plan 2.

(((16))) (13) Can I transfer my PERS Plan 1 or Plan 2 EMT service into LEOFF Plan 2 and withdraw my non-EMT PERS service? Yes, you may transfer your PERS Plan 1 or Plan 2 EMT service into LEOFF Plan 2 and withdraw your non-EMT PERS service. You can withdraw your non-EMT PERS service as soon as the PERS EMT service is fully transferred to LEOFF Plan 2. To be fully transferred, the conditions described in subsection (((11))) (8) of this section must be met.

(((17))) (14) Can I transfer my PERS EMT service into LEOFF Plan 1? No, you may not transfer your PERS EMT service into LEOFF Plan 1. If you reentered LEOFF Plan 1 membership after your position was relocated to a fire department, you may choose to remain in PERS or return to LEOFF Plan 1 membership, but you may not transfer the PERS EMT service into LEOFF Plan 1.

(((18))) (15) What happens if I die or retire for disability before the PERS EMT service is transferred into my LEOFF Plan 2 account?

(((a) If your bill is not paid in full at the time of your death, the transfer will be canceled and any payments made will be refunded to your designated beneficiary.

(b) If the bill is paid in full at the time of your death, but the five-year waiting period has not expired, then the following rules will apply.

(i) If you die with less than ten years of service, or you have at least ten years of service but you don't have an eligible surviving spouse or minor children, the contributions in your LEOFF 2 account, including any payments made on the EMT optional service bill, will be refunded to your designated beneficiary.

(ii) If you die with at least ten years of service and have an eligible surviving spouse or minor children and if your spouse or children choose a monthly benefit payment instead of a lump sum payment, the monthly benefit will be increased the day following the end of the five-year waiting period.

(iii) If you die after retirement and chose a survivor option, your survivor's benefit will be increased the first day following the expiration of the five-year waiting period.

(19))) If you elect to transfer your PERS Plan 1 or Plan 2 EMT service to LEOFF Plan 2 but die or retire for disability before the transfer is complete, then one of the following will occur:

(a) If your EMT bill is paid in full but the five-year waiting period has not expired, and you are approved for disability or you die, then DRS will transfer your applicable service credit, accumulated contributions, and interest to your LEOFF Plan 2 account immediately. The transferred service credit, accumulated contributions, and interest will be used to calculate your benefit or, in the case of your death, the benefit your spouse or minor children will receive.

(b) If your EMT bill is not paid in full and you retire for disability, DRS will transfer your applicable service credit, accumulated contributions, and interest into your LEOFF Plan 2 account and use them to calculate your benefit. You will then have the following options:

(i) Pay the bill in full;

(ii) Choose to have your monthly benefit actuarially reduced to reflect the unpaid amount of the bill; or

(iii) Continue to make payments against the remaining amount of the bill. You must pay the bill in full no later than five years from your original election date.

(c) If the EMT bill is not paid in full and you die, DRS will transfer your applicable service credit, accumulated contributions, and interest into your LEOFF Plan 2 account and use them to calculate the benefit for your spouse or minor children. Your spouse or minor children will have the following options:

(i) Pay the bill in full;

(ii) Choose to have their monthly benefit actuarially reduced to reflect the unpaid amount of the bill; or

(iii) Continue to make payments against the remaining amount of the bill. Your spouse or minor children must pay the bill in full no later than five years from your original election date.

Note: If the EMT bill is not paid in full within the five-year period, the monthly benefit will be actuarially reduced to reflect the unpaid amount of the bill.

(16) Terms used:

(a) DRS - Department of retirement systems.

(b) EMT - Emergency medical technician or paramedic who provides emergency ((medial)) medical services ((and is covered under LEOFF Plan 2 working for a fire department)).

(c) LEOFF - Law enforcement officers' and fire fighters' retirement system.

(d) PERS - Public employees' retirement system.

[Statutory Authority: RCW 41.50.050(5), 41.26.547. 04-04-039, 415-104-475, filed 1/29/04, effective 3/1/04.]

Washington State Code Reviser's Office