Wis. Admin. Code ETF — Department of Employee Trust Funds

Chapter ETF 10 ADMINISTRATION

Wis. Admin. Code § ETF 10.01 Definitions {#sec-etf-10.01 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.01}

Words, phrases, and terms used in all ETF chapters which are not defined in this section shall have the meaning set forth in s. 40.02, Stats.:

(1g) “Active military service” and “active service,” as that term is used with reference to military service, including in s. 40.02 (15) (a) (intro.) and 1., (c) (intro.), 1. and 4., and (48m) (f), Stats., mean active duty military service in the armed forces of the United States, excluding:

(a) Service reported by the military as active duty for training purposes.

(b) Service as a cadet or student at a U.S. military service academy.

Note: This definition does not apply to the term “active service” used in reference to active performance of the duties of employment with a participating employer, as for example in s. 40.63 (1) (c) and (2), Stats.

Insofar as possible, the department relies on U.S. armed forces documents, such as the DD 214, the AGO53-55 series, NAVPERS 553, and GSA 6851, to identify periods of “active duty” and “active duty for training.”

(1h) “Administrative error” means a clerical mistake in copying or writing. The term also includes the unintentional omission of a number or factor in making a calculation or a mathematical miscalculation by a department employee or board staff. The term does not include an actual or alleged erroneous interpretation of applicable law, the giving of erroneous advice, or negligence on the part of an employee or agent of the department or member or agent of the board.

(1k) “Benefit approval date” is the date on which an application for a separation benefit, lump sum retirement benefit, or the payment of additional contributions, death benefit, or remaining guaranteed annuity payments in a lump sum, is confirmed by payment voucher by the department.

Note: See “benefit approval date” in s. ETF 20.19 (2) (a), “date the application for a separation benefit is approved” in s. 40.25 (2), Stats., and reference to the month in which the payment of a benefit is approved in ss. 40.04 (4) (b) and (bm) and 40.73 (1) (a) and (2) (a), Stats.

(1L) In this section, “child” includes a natural child, stepchild, adopted child, child in an adoptive placement under s. 48.837 (1), Stats., and legal ward who became a permanent legal ward of the employee or the employee’s spouse or domestic partner prior to age 19.

(1m) “Current basic pay rate” means:

(a) Unless otherwise provided by ch. 230, Stats., contractual agreements authorized under subch. V of ch. 111, Stats., or par. (b) or (c), the hourly rate, or its equivalent, excluding any overtime or supplementary compensation, at which the employee is paid at the time of termination of employment or at the time of death. For an active employee or employee on an approved leave of absence the “current basic pay rate” means the hourly rate, or its equivalent, the employee is paid during the pay period or was paid prior to the commencement of the leave of absence. The equivalent of the hourly rate of pay shall be obtained by dividing the employee’s total earnings in a typical pay period, excluding any overtime, on-call, extracurricular or supplementary compensation, by the number of hours, excluding hours, such as overtime, on-call and extracurricular hours which are incidental to the primary employment, for which the employee is paid in that pay period. If the employee has received a pay adjustment during the 12 months preceding termination, death or leave of absence, other than a permanent change that is broadly applicable to the employees of that employer, or unless that change is the result of a significant change in the nature and duties and activities of that employee, then the equivalent of the hourly rate shall be the greater of the previous current basic pay rate prior to the pay adjustment or the final average earnings divided by 174.

(b) For an annuitant who becomes a participating employee subject to s. 40.22, Stats., within 3 years of the original date of termination, the greater of the current basic pay rate as established under par. (a) on the effective date of the original annuity or the current basic pay rate at the time of subsequent termination.

(c) For annuitants who become participating employees subject to s. 40.22, Stats., after more than 3 years from the original date of termination the current basic pay rate determined in accordance with par. (a) at the time of subsequent termination for sick leave accumulated after reemployment only. The conversion of sick leave accumulation in effect prior to reemployment shall be calculated by application of the current basic pay rate in effect prior to reemployment as determined under par. (a).

(1r) “Decree date” as defined in s. 40.02 (18f), Stats., includes the first day of the month in which a participant’s domestic partnership is terminated by a court under a final judgment, decree or order.

(2) “Dependent” means:

(a) For life insurance purposes, an eligible employee’s spouse and an employee’s child, including natural child, stepchild, adopted child, and a child in an adoptive placement under s. 48.837 (1), Stats., who is under the age of 26 or who is age 19 or older and incapable of self-support because of a physical or mental disability which is expected to be of long-continued or indefinite duration.

(b) For health insurance purposes, an eligible employee’s spouse and an eligible employee’s unmarried child who is dependent upon the employee or the other parent for at least 50% of support and maintenance. This support and maintenance requirement does not apply to eligible adult children as described in s. 632.885, Stats. A dependent includes an eligible employee’s grandchild as provided in s. 632.895 (5m), Stats. It also includes the eligible employee’s unmarried dependent child, regardless of age, when he or she is:

1. Under the age of 19,

2. Age 19 or older but less than age 26 as provided in s. 632.885, Stats.

3. Age 26 or older and incapable of self-support because of a physical or mental disability which is expected to be of indefinite duration or for at least one year or a full-time student as provided in s. 632.885, Stats.

(2g) “Domestic relations order” or “DRO” means a court order to divide a participant’s Wisconsin retirement system account or annuity which has not been determined by the department to satisfy all the criteria of s. 40.02 (48m), Stats., and s. ETF 20.35.

(2m) “Earnings” under s. 40.02 (22), Stats., except as otherwise provided by federal regulations for OASDHI purposes, does not include payments made in lieu of welfare, payments made to reimburse welfare costs, or payments made as part of a work relief, general relief or public assistance program under ch. 49, Stats., unless employment is part of a training program to improve skills or increase employability and the employment satisfies the requirements under s. 40.22 (1), Stats.

(3) “Full calendar year” as used in s. 40.08 (8) (d) and (10), Stats., means the time period beginning on a given date and ending on the same date in the next year.

(3d) “Guardian” has the meaning given in s. 54.01 (10), Stats., and includes conservators appointed pursuant to s. 54.76, Stats. For minor children, “guardian” also has the meaning given in s. 48.02 (8), Stats., and includes the authority provided in s. 48.023, Stats.

(3e) “Highest basic pay rate” means, for purposes of s. 40.05, Stats., unless otherwise provided in a collective bargaining agreement under subch. V of ch. 111, Stats., the highest hourly rate, excluding any overtime or supplementary compensation, at which an employee accrued accumulated sick leave that is eligible for conversion under s. 13.121 (4), 36.30, 230.35 (2), 233.10, 238.04 (8), or 757.02 (5), Stats. Any supplemental compensation that is paid to a state employee who is classified under the state classified civil service as a teacher, teacher supervisor, or education director for the employee’s completion of educational courses is considered as part of the employee’s basic pay for purposes of this paragraph and s. 40.05, Stats.

(3h) “Inactive participant” means, for purposes of the teachers retirement board election under s. ETF 10.10, a participant who is neither a participating employee, as defined in s. 40.02 (46), Stats., nor an annuitant as defined in s. 40.02 (4), Stats.

(3i) “Maximum voluntary contribution” means the total amount eligible under section 415 (c) of the internal revenue code, as adjusted pursuant to section 415 (d) of the internal revenue code and the regulations promulgated pursuant to that section, to be contributed to the Wisconsin retirement system in a calendar year by or on behalf of a participating employee, less all required and employer-paid additional contributions which are includable in the limits of section 415 (c) of the internal revenue code, as determined by the department.

Note: A worksheet to assist the employee to estimate his or her maximum voluntary contribution is available from the department of employee trust funds at no charge.

(3m) “Medical record” includes medical evaluation, diagnosis, prognosis, rehabilitation potential, medication, treatment, diet, limitations on activities, symptoms, general physical or mental condition, x-rays, lab tests or results, or any communication or information related to the health, medical, surgical, dental, optometric, chiropractic, podiatric or hospital care or condition of a participant or the spouse or dependent of the participant.

(3o) “Minimum retirement age” means the earliest age at which a person may qualify to receive a regular, non-disability annuity or a lump sum payment in lieu of an annuity from the Wisconsin retirement system.

Note: The term “minimum retirement age” currently is not used in ch. 40, Stats. or ETF administrative rules. The term is defined in this rule (CR 09-057) to be consistent with s. 40.23 (1) (a) (intro.), Stats., which describes the earliest age at which a retirement annuity may be taken.

(3p) “Monthly compensation” means, for purposes of s. 40.19 (4) (g), Stats.:

(a) Where the compensation is paid on a weekly basis, the amount computed by multiplying the employee’s basic weekly pay rate by 4.3333.

(b) Where the compensation is paid on a biweekly basis, the amount computed by multiplying the employee’s basic biweekly pay rate by 2.1666.

(3r) “Public school” means, for purposes of s. 15.165 (3) (a) 1., Stats., a cooperative educational service agency established under ch. 116, Stats., a county children with disabilities education board established under s. 115.817, Stats., and any school supported wholly or in part by public funds which is under the control and management of the state of Wisconsin or any subdivision of the state of Wisconsin and which is empowered by law to employ teachers; but does not mean the University of Wisconsin System, any school in the city of Milwaukee, a state agency or a vocational, technical and adult education district.

(3s) “Qualified domestic relations order” or “QDRO” means a court order to divide a participant’s Wisconsin retirement system account or annuity which is determined by the department to satisfy all the criteria of s. 40.02 (48m), Stats., and s. ETF 20.35.

(3t) “Reinstate,” for purposes of s. 40.25 (5) (a), Stats., means to restore a discharged employee to the previously held position, or a like position, with the participating employer, at the same pay and benefit level to which the employee would have been entitled if the employment had not been interrupted by the discharge. The court order, arbitration award or compromise settlement must direct that the disputed termination be expunged and the employee made whole with respect to all wages and benefits that the employee would have received if continuously employed by the participating employer under the conditions in effect prior to the disputed termination, except that the court order, arbitration award or compromise settlement may direct that back wages paid for the period of discharge be reduced by amounts earned from other sources and may identify a period of disciplinary suspension for which wages and benefits are not paid.

(3w) “Salary index” means, for purposes of s. 40.26, Stats., for years prior to 1982, 5%.

(4) “School system” includes, for life insurance purposes, any public entity whose primary purpose is education.

(4m) “School year” means, for purposes of s. 40.02 (3), Stats., the period beginning July 1 and ending the following June 30.

(5) “Student” means, for insurance purposes, a person, who is enrolled in an institution which provides a schedule of courses or classes and, whose principal activity is the procurement of an education. Full-time student status shall be defined by the institution in which the student is enrolled and shall include any usual vacation period if the child was a full-time student at the end of the previous term.

(6) “Summer vacation” means the time between the end of the regular school term of the school system in which the employee was last employed and the beginning of the next regular school term of that system.

(6m) “Surviving Spouse” means the spouse to whom the deceased was married at the time of death. For purposes of determining a beneficiary under s. 40.02 (8) (a) 2., Stats., a judgment, order or decree of divorce, legal separation or annulment of the marriage terminates the marital relationship.

Note: 2007 Wis. Act 131 deleted the terms “widow or widower” from s. 40.08 (8) (a) 2., Stats., and replaced them with the term “surviving spouse.” This rule (CR 09-057) provides a definition for “surviving spouse.” The Wisconsin Retirement System (WRS) has allowed courts to order the division of WRS benefits in the property division associated with a legal separation because a legal separation is a termination of the marriage, at least for property division purposes. This treatment of the beneficiary definition is in conformity with that interpretation.

(7) “Three continuous years of creditable service” for purposes of s. 40.285, Stats., and s. ETF 20.17 means an uninterrupted period of at least 3 complete, non-overlapping annual earnings periods during each of which the participant earned some creditable current service. A period of continuous creditable service is considered interrupted if the participating employee is terminated from employment covered by the Wisconsin retirement system for a period of more than 90 calendar days. Service associated with contributions which have been debited to fund a benefit may not be applied toward continuous creditable service.

History

• Cr. Register, February, 1983, No. 326, eff. 3-1-83.; r. and recr. (intro.), am. (2) (intro.), cr. (3m), Register, June, 1983, No. 330, eff. 7-1-83; cr. (3w), Register, December, 1983, No. 336, eff. 1-1-84; cr. (3h) and (3s), Register, March, 1984, No. 339, eff. 4-1-84; am. (1), Register, April, 1984, No. 340, eff. 5-1-84; emerg. cr. (4m), eff. 1-1-85; cr. (4m), Register, March, 1985, No. 351, eff. 4-1-85; cr. (2m), Register, October, 1985, No. 358, eff. 11-1-85; cr. (1m), Register, May, 1986, No. 365, eff. 6-1-86; am. (1m) (a), Register, August, 1986, No. 368, eff. 9-1-86; r. (1) and (3), Register, September, 1986, No. 369, eff. 10-1-86; r. and recr. (2), Register, January, 1987, No. 373, eff. 2-1-87; cr. (3p), Register, March, 1987, No. 375, eff. 4-1-87; cr. (3), Register, June, 1992, No. 438, eff. 7-1-92; cr. (1g), Register, September, 1992, No. 441, eff. 10-1-92; cr. (3d), Register, October, 1992, No. 442, eff. 11-1-92; cr. (7), Register, June, 1995, No. 474, eff. 7-1-95; cr. (3i), Register, December, 1996, No. 492, eff. 1-1-97; cr. (3t), Register, July, 1997, No. 499, eff. 8-1-97; cr. (8) and (9), (1h) renum. from ETF 11.02 (1), Register, July, 1999, No. 523, eff. 8-1-99; corrections in (3s) made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, July, 1999, No. 523; CR 00-022: cr. (1k), Register July 2001, No. 547 eff. 8-1-01; correction in (7) made under s. 13.93 (2m) (b) 7., Stats., Register July 2005 No. 595; corrections in (3d) made under s. 13.93 (2m) (b) 7., Stats., Register September 2006 No. 609; CR 07-062: am. (7) Register June 2008 No. 630, eff. 7-1-08; CR 09-057: cr. (3o) and (6m) Register May 2010 No. 653, eff. 6-1-10; EmR0938: emerg. cr. (1r), r. and recr. (2), am. (3m), r. (9), eff. 1-1-10; CR 10-004: cr. (1L) and (1r), r. and recr. (2), am. (3m), r. (9) Register July 2010 No. 655, eff. 8-1-10; CR 11-040: am. (2) (b) 2., 3. Register July 2012 No. 679, eff. 8-1-12; CR 13-004: am. (3i) Register August 2013 No. 692, eff. 9-1-13; CR 12-054: am. (3i) Register October 2013 No. 694, eff. 11-1-13; correction in (7) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694; CR 14-055: cr. (3e), am. (3i) Register May 2015 No. 713, eff. 6-1-15; CR 16-034: am. (2) (a) (intro.), r. (2) (a) 1., 2. Register April 2017 No. 736, eff. 5-1-17; cons. (a) (intro.) and 3. and renum. to (a) under ss. 13.92 (4) (b) 1. and 35.17, Stats., Register April 2017 No. 736; CR 19-126: am. (1k), (1L), (2) (a), (b) (intro.), cr. (2g), am. (3m), renum. (3s), (8) to (3r), (3s) and, as renumbered, am. (3s) Register May 2021 No. 785, eff. 6-1-21; CR 23-023: am. (3d) Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 10.03 Creditable service {#sec-etf-10.03 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.03}

(1) For annual earnings periods beginning on or after January 1, 1985, each participating employer shall determine and report service in hours for each participating employee in the manner prescribed in this section. Earnings which are paid to a teacher, as defined in s. 40.02 (55), Stats., an educational support personnel employee, as defined in s. 40.02 (22m), Stats., or a technical college educational support personnel employee, as defined in s. 40.02 (55g), Stats., who has contracted to receive such payments on either a 9 or 10 month contract basis, and which are paid after the beginning of a school year, as defined in s. ETF 10.01 (4m), for services rendered in the preceding school year, are deemed to be received by the employee on June 30 of the preceding school year for purposes of reporting service to the department.

(2) The full-time equivalent of one day of service is 8 hours. If an employer has established workdays of other than 8 hours as full-time employment for some or all of its employees, the number of hours to be reported within a reporting period is determined by the participating employer by dividing the number of hours for which earnings are paid to the employee in the reporting period by the number of hours which would have been worked in that reporting period by a regular full-time employee of that employer in the same kind of employment and multiplying the result by 40 times the number of weeks and fractions of a week in the reporting period.

(3) For purposes of s. 40.02 (17), Stats., the full-time equivalent of one year of creditable service for a teacher, as defined in s. 40.02 (55), Stats., who is not an executive participating employee, as defined in s. 40.02 (30), Stats., is 1,320 hours and for all other participating employees the full-time equivalent of one year of creditable service is 1,904 hours.

(4) When a participating employee receives earnings from the same participating employer for employment in more than one of the categories under s. 40.23 (2) (b), Stats., then the following tests shall be applied by the participating employer when service and earnings are reported:

(a) If employment in each of the categories meets the requirements of s. 40.22, Stats., by itself then the earnings and service shall be reported separately for each category.

(b) If employment in any one category meets the requirements of s. 40.22, Stats., and all other employment does not, then earnings and service shall be added to and reported under the one category which meets the eligibility requirements of s. 40.22, Stats.

(c) If employment in more than one category meets the qualifying requirements of s. 40.22, Stats., and all other employment does not, then earnings and service for employment in those categories which do not meet the qualifying requirements of s. 40.22, Stats., shall be added to and reported under:

1. That qualifying category in which the greatest number of hours is worked, or

2. The lowest numbered subdivision under sub. (5) (b) if the greatest number of hours worked is equal in 2 or more qualifying categories.

(d) If employment in none of the categories meets the requirements of s. 40.22, Stats., separately, but those requirements are met when the employment is added together then earnings and service shall be added to and reported under:

1. That category in which the greatest number of hours is worked, or

2. The lowest numbered subd. under sub. (5) (b) if the greatest number of hours worked is equal in 2 or more categories.

(5)

(a) Fractions of an hour shall be rounded to the nearest hour prior to crediting and if the fraction is one-half hour then the hours credited shall be rounded up to the next whole number.

(b) If the total number of hours reported for an employee within an annual earnings period exceeds the applicable number specified in sub. (3) service shall be allocated and credited in the following sequence:

1. Service as a protective occupation participant not subject to Titles II and XVIII of the federal social security act whose formula rate is determined under s. 40.23 (2m) (e) 4., Stats.

2. Service as a protective occupation participant subject to Titles II and XVIII of the federal social security act whose formula rate is determined under s. 40.23 (2m) (e) 3., Stats.

3. Service as an executive participating employee whose formula rate is determined under s. 40.23 (2m) (e) 2., Stats.

4. Service as an elected official whose formula rate is determined under s. 40.23 (2m) (e) 2., Stats.

5. Service as a teacher whose formula rate is determined under s. 40.23 (2m) (e) 1., Stats.

6. Service of a type not covered under subds. 1. to 5.

(c) The earnings shall be reported and credited in full without regard to any allocation of creditable service under par. (b).

(6)

(a) For local elected officials who are participating employees, but serving in positions not considered full-time by the local unit of government, the amount of service shall be determined and reported by the employer as follows:

1. For employment which is essentially ministerial in nature, the number of hours reported shall be the actual number of hours for which the employee is paid if a regular work schedule has been established. If there is no regular work schedule, the number of hours reported may not be greater than the quotient derived from dividing the compensation paid during the reporting period by 2 times the minimum hourly wage rate established by the federal fair labor standards act for non-agricultural employment.

2. For members of governing bodies or other policy-making groups, the number of hours reported shall be the number of hours in actual attendance at meetings of the governing body, the policy-making group or any sub-group thereof and a reasonable amount of time spent in preparation for such meetings, but in no event shall the number of hours determined to have been spent in preparation time exceed twice the number of hours actually spent at the meetings.

(b) In applying the standards set forth in par. (a), it is the responsibility of the local unit of government to maintain the necessary documentation to justify the reasonableness of the basis used in reporting service for local elected officials.

(c) The department may consider other factors in granting creditable service to local elected officials where circumstances warrant and when satisfactory supporting information is provided.

(7)

(a) If a participating employee receives earnings for on-call, standby, extracurricular or other service which is incidental to the primary employment, earnings shall be reported and contributions paid on those earnings pursuant to s. 40.05, Stats. The number of hours determined by the employer and reported pursuant to this subsection shall be the quotient derived from dividing the compensation paid for such service during the annual earnings period by the participating employee’s current basic pay rate.

(b) The employer shall maintain the necessary documentation to justify the basis upon which service is reported in applying the standards set forth in par. (a).

(c) In no event shall the number of hours under par. (a), combined with the hours under the primary employment, exceed creditable service of one year during the entire calendar year.

Note: This rule requires a form which is available at no charge to reporting officials required to use them. The form can be obtained by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020.

History

• Emerg. cr. eff. 1-1-85; cr. Register, March, 1985, No. 351, eff. 4-1-85; cr. (7), Register, August, 1986, No. 368, eff. 9-1-86; CR 14-055: am. (1) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 10.05 Creditable service for Milwaukee teachers {#sec-etf-10.05 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.05}

Creditable service for Milwaukee teachers shall be granted for teaching services performed for governmental agencies other than the city of Milwaukee pursuant to ss. 42.70 (2) (s), 42.78 (1) (a), 42.81 and 42.91, 1979 Stats., only if the requirements in subs. (1) to (6) are satisfied:

(1) The teacher was a member, as defined in s. 42.70 (2) (k), 1979 Stats., of the former Milwaukee teachers retirement fund on August 31, 1958, has not received a separation benefit since that date and the teaching service for which creditable service is requested was prior to September 1, 1958.

(2) The participant has 10 or more years of teaching service in the city of Milwaukee and the outside teaching credit granted, when added to the participant’s separate, combined and formula teaching service in the city of Milwaukee, does not exceed 35 years for benefit computation purposes. If at the time of a benefit computation the total service exceeds 35 years, any payment made previously for outside teaching service including interest which cannot be used shall be transferred to the additional contributions of that participant.

(3) The participant applies in writing for the outside teaching credit giving pertinent details on when, where and for whom the outside teaching service was performed.

(4) The outside teaching service is verified by the school district, successor school district or public retirement plan.

(5) The applicable public retirement plan certifies to the department that the participant is not entitled to any benefit, absolute, contingent or otherwise, from that retirement plan as a result of the teaching service.

(6) The participant makes the contributions which would have been required if the service to be credited had been subject to s. 42.80, 1979 Stats., at the time the teacher became a member, as defined in s. 42.70 (2) (k), 1979 Stats., of the former Milwaukee teachers retirement fund, or if later, at the time the teacher returned to covered Milwaukee teaching after the period of outside teaching. The amount due shall be increased with interest at the effective rate, as defined in s. 40.02 (23), Stats., as though the contributions were in the fund on September 1, 1959.

History

• Cr. Register, June, 1983, No. 330, eff. 7-1-83; am. (2), Register, September, 1983, No. 333, eff. 10-1-83; correction in (1) and (6) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1994, No. 463.

Wis. Admin. Code § ETF 10.07 Leave of absence {#sec-etf-10.07 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.07}

(1) A person on a paid leave of absence from a position in which the person was a participating employee shall continue to qualify as a participating employee.

(2) Service shall be determined and reported by the employer in the following manner:

(a) If the compensation paid during the leave of absence is less than the earnings paid during the participant’s immediately preceding service with that employer in a time period of the same length as the leave, then the service shall be computed by dividing the compensation paid during the leave by the earnings paid in that preceding period and multiplying the result by the service reported for that preceding period.

(b) If the compensation paid during the leave of absence is equal to or greater than the earnings paid during the participant’s immediately preceding service with that employer in a time period of the same length as the leave, then the service reported shall be the same as in that preceding period.

(3) Compensation paid during a paid leave of absence shall be treated the same as earnings for purposes of ch. 40, Stats.

Note: This rule requires a form which is available at no charge to reporting officials required to use them. The form can be obtained by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020.

History

• Cr. Register, March, 1985, No. 351, eff. 4-1-85.

Wis. Admin. Code § ETF 10.08 Separation from employment {#sec-etf-10.08 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.08}

(1) Scope.

(a) This section defines separation of employment under s. 40.23 (1) (a) 1., Stats., for purposes of establishing eligibility to receive benefits from the Wisconsin retirement system, including separation benefits, lump sum benefits and retirement annuity benefits as provided by ss. 40.23, 40.24 and 40.25, Stats. For purposes of the Wisconsin retirement system, the terms “separation from employment” and “termination” are used interchangeably. An otherwise valid termination may become void and without effect as the result of reinstatement of the employee under s. 40.25 (5), Stats., and s. ETF 10.01 (3t), or because the employee received remedial payments deemed to be earnings under s. ETF 20.12 for a period in question, or if the employee failed to meet the minimum break in service requirements as a rehired annuitant under s. ETF 20.02 and s. 40.26 (5), Stats., and shall thereby be treated as employed during that period.

(b) The effective date of disability annuity benefits shall be determined as provided by ss. 40.23 (1) (b) and (bm) and 40.63 (8) (intro.) and (f), Stats.

(2) Termination of employment.

(a) Intent to terminate. No person may receive any retirement annuity, separation benefit or lump-sum payment from the Wisconsin retirement system without first terminating from his or her current participating employment with all participating employers. Whether the termination is a voluntary termination by the employee or an involuntary termination by the employer, the employer and employee shall act with the good-faith intent of ending the employee-employer relationship.

(b) Required conditions. Termination from participating employment occurs when all of the following conditions are met:

1. The employee ceases to render compensable personal services to or on behalf of the employer, and the employer has no further rights to any future services from the employee for which the employee [has received or] will receive compensation. This paragraph does not apply to services rendered as a part-time elected official after the effective date of a participant’s waiver of [WRS coverage for] part-time elected service under s. 40.23 (1) (am), Stats.

Note: Missing language is shown in brackets.

2. If the employee’s termination is voluntary, the employee and employer comply with the employer’s policies for voluntary termination, including the filing of a letter of resignation.

3. As of the end of the day that participating employment terminates, the employee has no rights to any future compensable employment that meets the qualifications for inclusion under the Wisconsin retirement system provided under s. 40.22, Stats. A right to future compensable employment includes, but is not limited to, a contract for future employment with any participating employer, or having already been elected as of the termination date to a term of public office meeting the qualifications for participating employment, which term commences on or after the date of termination of employment, other than a term of public office as a part-time elected official for which the participant has waived WRS coverage under the provisions of s. 40.23 (1) (am), Stats.

4. Except as provided in s. ETF 50.30 (4), upon termination of employment the participant is treated consistently with the status of a former employee. This includes, but is not limited to the terminated employee no longer being eligible for benefits available only to active employees. Examples of such benefits may include health insurance, life insurance, income continuation insurance coverage, making deferred compensation or tax sheltered annuity contributions, worker’s compensation coverage, internal grievance, promotion or transfer rights, or rights available to active employees under a collective bargaining agreement. This subdivision shall not apply to benefits that may be available to the employer’s retired employees, such as severance pay, post-retirement insurance coverage and/or employer payment of premiums, or post-retirement benefits or other rights provided through collective bargaining or other retirement agreements. However, agreements made after the termination date for future compensable services to be rendered by the employee would not be precluded under subd. 3.

5. Immediately upon termination of employment, the participant has no authority to act as a representative of the employer in any capacity or to exercise any authority or control over other employees of the employer, and the employer has no responsibility or liability for any actions of the terminated employee. This subdivision shall not apply to employees of any WRS participating employer who provide services for which they have not and will not receive compensation of any kind, including but not limited to payment at some other time or compensatory paid leave.

Example: Emeritus professors could render services for the university after termination on the condition that they do not receive any form of compensation, including employer contributions to IRC s. 403 (b) accounts.

6. As of the termination of employment the employer has paid to the employee any accumulated benefits that similarly situated employees of that employer customarily receive upon termination of employment, including but not limited to accumulated vacation, compensatory time and sick leave, and the employee has no entitlement to any such remaining benefits.

(c) Rehired annuitants. In order to receive a benefit under s. 40.23 or 40.25, Stats., a person terminated from participating employment shall remain terminated from all employment meeting the qualifications for inclusion under s. 40.22, Stats., throughout a period beginning with the date of termination from all participating employment and ending on the latest of the following dates:

1. The day after the date which would be the effective date of the annuity as determined in accordance with s. 40.23 (1) (b) and (bm), Stats., as applicable to the annuity in question.

2. The seventy-sixth day after termination of employment in accordance with this section.

(d) Terminated annuities. For purposes of determining whether employment meets the qualifications under s. 40.22, Stats., the exclusion of s. 40.22 (2) (L), Stats., does not apply unless the person has met all qualifications for entitlement to an annuity, including termination from participating employment for the period specified in par. (c) 1. and 3. Payment of an annuity or other benefits in error does not qualify a person as an annuitant for purposes of s. 40.22 (2) (L), Stats.

Note: Refer to s. ETF 20.02 (2) on rehired annuitants.

(3) Determining the date of termination.

(a) The employer shall make the initial determination that an employee has terminated from employment under this section. Except as provided under par. (b), (c) or (d) the date of termination shall be the earliest of the dates determined under all the following applicable subdivisions:

1. The date an unpaid leave of absence expires, if the employer-employee relationship is terminated because the employee fails to return to work following an unpaid leave of absence granted by the employer.

2. The date 3 years after an unpaid leave of absence began, in accordance with s. 40.02 (40), Stats. This subdivision does not apply to a military leave or union service leave.

3. The effective date that the employer discharges the employee, other than as provided in subd. 1.

4. The effective date that the employer determines that the employer-employee relationship terminates, except that the effective date of the termination cannot be earlier than the date on which the employer notifies the employee of the termination.

5. The last date for which the employee receives earnings for personal services rendered to or on behalf of the employer. If the employer has granted an unpaid leave of absence for a period of time after this date, this subdivision does not apply.

6. The date on which the employee’s voluntary resignation is effective as accepted by the employer or, if later, the date on which the employer receives the employee’s notice of resignation.

7. The date of the employee’s death.

(b) Any report of a termination is subject to review by the department. Notwithstanding par. (a), the department is not bound by an employer’s report and may determine a different termination date in accordance with this section and s. 40.02 (26), Stats., upon evidence satisfactory to the department.

(c) Except as expressly provided by law, no termination may be effective retroactive to a date earlier than the date on which the employee or employer notifies the other of the decision to terminate the participant’s employment.

Note: See ss. ER 18.14 (4) and 21.03 (2) concerning termination retroactive to the date the leave of absence expired.

(d) No termination date may predate the last date for which the employee receives earnings for personal services rendered to or on behalf of the employer, except as provided in sub. (2) (b) 1., and except that operation of s. 40.29, Stats., does not preclude termination of an employee prior to the expiration of a period for which the employee receives temporary disability compensation under s. 102.43, Stats.

History

• Cr. Register, June, 1998, No. 510, eff. 7-1-98; CR 08-026: am. (2) (b) 4. Register September 2009 No. 645, eff. 10-1-09; CR 11-042: am. (1) (a), (2) (a), cr. (2) (b) (title), am. (2) (b) 2., cr. (2) (c) (title), (d) (title) Register July 2012 No. 679, eff. 8-1-12; CR 14-055: am. (2) (a), (c) 2., 3. Register May 2015 No. 713, eff. 6-1-15; CR 19-126: am. (2) (c) (intro.), r. (2) (c) 2., am. (2) (d) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 10.10 Employee trust funds board and teachers retirement board elections {#sec-etf-10.10 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.10}

(1) Purpose. This section establishes procedures for all elections of persons to the employee trust funds board or the teachers retirement board, pursuant to ss. 15.16 (1) (d) and (f), 15.165 (1) and (3) (a) 1., 2., 6., and 7., and 40.03 (2) (p), Stats. Except where noted otherwise, these procedures shall apply for elections to either the employee trust funds board or the teachers retirement board.

(1m) Definitions. In this section:

(a) “Annuitant” has the meaning given in s. 40.02 (4), Stats.

(b) “Election category” means the class of participating employees or annuitants who are eligible under s. 15.16 (1) (d) or (f), or 15.165 (3) (a) 1., 2., 6., or 7., Stats., to vote to elect a member to the employee trust funds board or the teachers retirement board.

(c) “Participating employee” has the meaning given in s. 40.02 (46), Stats.

(d) “Teacher” has the meaning given in s. 40.02 (55), Stats.

(2) Scheduling of elections.

(ag) Situations requiring an election. The secretary shall schedule an election when the term for an elective board position is due to expire or the position is vacated for any reason.

(ar) Regular elections. When a term is due to expire, the secretary shall schedule the election to ensure that the election is completed and the new board member announced prior to the date the new term commences.

(b) Vacancies. If an elective board position is vacant for any reason other than the term expiring, the secretary shall schedule an election at a time determined by the secretary. The annuitant or participating employee elected in an election to fill a position vacated prior to the end of a term shall serve the remainder of the unexpired term.

(3) Call for nominations. The department shall publish, in a manner determined by the secretary, the notice of the election, the nomination timetable, and instructions explaining the nomination process for a prospective candidate.

(4) Nomination Procedures. A candidate shall be nominated by petition on forms provided by the department. Petitions shall be received by the department no later than the petition filing date in the nomination time schedule published under sub. (3). A nominating petition received after this date is invalid. A candidate shall do all of the following:

(a) Submit a nominating petition. Submit to the department a nominating petition containing at least 25 but no more than 50 printed names and valid signatures of participating employees or annuitants eligible to vote in that election. The nominating petition shall contain the name and address of each signer’s employer and the date signed. For an annuitant, the name and address of the signer’s employer shall be that of the signer’s last participating employer in the Wisconsin retirement system. The department will verify the entries on the petition based on records in the department. Entries that cannot be verified shall not be counted. If more than 50 signatures are submitted, the department shall review for validity only the first 50 signatures, based on the earliest date signed, and disregard the balance.

(b) Certify the nominating petition. Sign the nomination petition to certify that all signers are eligible to vote in the election category for which the candidate is running.

(c) Submit a candidate statement. Submit a candidate information form to the department containing no more than 150 words. The department shall print no more than the first 150 words of the candidate’s information and make it available to eligible voters with the ballots. The candidate must sign the candidate information form verifying the accuracy and truthfulness of the information provided.

Note: A Board Election Packet containing the Nominating Petition form and Candidate Information form can be obtained from the department by contacting the department’s board liaison at 877-533-5020.

(5) Nominations for the employee trust funds board. Any person who meets the eligibility requirements of s. 15.16 (1) (d) or (f), Stats., on the date the person files nomination papers with the department and who plans to continue meeting the eligibility requirements upon election, may be nominated for election to the employee trust funds board by satisfying the requirements of pars. (4) (a) to (c) within the calendar dates established by the department.

(6) Nominations for the teachers retirement board. Any person who meets the eligibility requirements of s. 15.165 (3) (a) 1., 2., 6., or 7., Stats., on the date the person files nomination papers with the department and who plans to continue meeting the eligibility requirements upon election, may be nominated for election to the teachers retirement board by satisfying the requirements of par. (4) (a) to (c) within the calendar dates established by the department.

(7) Eligibility to vote.

(a) General requirements. A person shall be eligible to vote if the person is an annuitant or participating employee in the election category for which the election is being held and meets the other voting eligibility requirements in this section at the time ballot materials are printed for distribution and the department has a record of his or her eligibility.

(b) Teachers retirement board elections. A participating employee of the state department of public instruction, state department of health services, state technical college system, and the state educational communications board, who is classified as a teacher under the Wisconsin retirement system, is not employed by a public school or a technical college system district and may not vote in any election to elect a teacher to serve on the teachers retirement board.

(c) Teacher in public school and a technical college system district. For a teacher concurrently employed by both a public school and a technical college system district, the teacher shall be eligible to vote in both categories specified under s. 15.165 (3) (a) 1. and 2., Stats.

(8) Distribution procedures for paper ballots.

(ag) Scope. This subsection shall only apply to elections that are conducted using paper ballots. If an election is conducted using a combination of electronic and paper ballots, this subsection shall apply only to the paper ballots used in that election.

(ar) Ballot format. The department shall print ballots with the candidates’ names in alphabetical order and shall include, when the ballots are distributed, instructions for marking the ballot and the deadline for its return.

(b) Distribution of ballots to participating employees. At the direction of the secretary, ballots may be distributed either through an employer or directly to a participating employee. If distributed through an employer, the department shall send each employer one ballot individually labeled with the participating employee’s name for each participating employee in the election category for which the election is being held who is employed by the employer and whose position is known to the department. A distribution list, prepared by the department and containing the names of participating employees for whom ballots are included, shall accompany the ballots. The department shall require an employer to verify, by signing the distribution list, that the employer distributed the ballots within 30 days of the date they were mailed by the department. The employer shall indicate on the distribution list which ballots could not be distributed and shall return the undistributed ballots.

(c) Distribution of ballots to annuitants. The department shall send a ballot directly to each annuitant who is eligible to vote in that election at the last home address the department has on file.

(d) Distribution of ballots to teachers with multiple employment locations. If a teacher is employed in more than one employment location within an election category specified under s. 15.165 (3) (a) 1. or 2., Stats., the department shall provide a paper ballot to only one location as determined by the department.

(e) Distribution of ballots to teachers employed in a public school and a technical college system district. For a teacher concurrently employed by both a public school and a technical college system district, the department shall provide a ballot to both locations.

(9) Voting.

(ag) Voting methods. The secretary may conduct the election by paper ballots, electronic ballots, or a combination of such methods.

(ar) Voting procedure. The secretary shall approve a secure voting procedure that ensures that only a person eligible to vote is permitted to cast a vote, and that only one vote is recorded for each person who casts a vote in an election. A person eligible to vote shall cast his or her vote by indicating his or her choice of candidates in accordance with voting instructions approved by the secretary.

(b) Voting when there are multiple teachers retirement board positions to be filled. If there is more than one teachers retirement board position to be filled in an election category and an election is held, voters may vote for as many candidates, in the appropriate election category, as there are positions to be filled.

(10) Certification of election results. The board for which an election is being held shall appoint an election committee that shall consist of the secretary of the department or the secretary’s designee and 2 board members who are not running for reelection. A majority of the election committee appointed by the respective boards shall determine the validity of ballots set aside by the department and certify the election results.

(11) Verification of election results. The department shall set aside a vote that it believes may be invalid under pars. (a) to (h) for review by the election committee. The election committee shall deem a vote invalid if any of the following apply:

(a) The signature is not the same as the name on the ballot.

(b) The ballot is not signed.

(c) Too many candidates have been voted for on the ballot.

(d) A ballot is so defective that the committee cannot determine with reasonable certainty for whom the ballot was cast.

(e) The ballot contains the name of a write-in candidate.

(f) The ballot was submitted by an ineligible voter.

(g) The ballot was not received within the period prescribed by the election notice.

(h) The vote was not cast in the manner prescribed by the secretary under sub. (9) (ar).

(12) Special situations.

(a) Insufficient number of candidates for holding an election. If the number of candidates whose nomination petitions are approved by the department is equal to or less than the number of positions to be filled within an election category, all of the following shall apply:

1. The department shall not schedule an election.

2. The election committee shall not be appointed or convened.

3. The department shall declare all candidates as elected.

(b) Multiple positions to be filled in an election category that do not have an equivalent amount of time remaining in a term. If there are multiple positions to be filled within an election category and the vacant positions have different amounts of time remaining, the following shall apply:

1. If an election has been held, the candidate with the most votes shall receive the position with the most time remaining. The candidate with the second most votes shall receive the position with the second most time remaining, and so forth for any remaining candidates and positions.

2. If an election is not held because the number of candidates is equal to or less than the number of positions to be filled, but there are multiple candidates for the available positions, positions will be selected by the drawing of lots. If there is only one candidate and multiple vacant positions, the candidate will receive the position with most time remaining, unless the candidate requests otherwise from the secretary.

(13) Tabulation of votes. The candidate who receives the largest number of votes shall be elected. The election committee shall break a tie by the drawing of lots. The counting of votes shall be conducted under the direction of the secretary or the secretary’s designee.

(14) Notification of election results. For elections scheduled because a term is due to expire, the department shall notify all candidates of the results by certified mail before May 1 following the close of the election. If the department calls an election for any reason other than the expiration of a term, the department shall notify all candidates by certified mail of the results of the election within 15 days of the close of the election.

(15) Retention of board election materials. The department shall retain election reports, nominating petitions, and ballots for at least 1 year after the election is completed.

(16) Recount of results. A candidate may request no more than one recount per election. To request a recount, the candidate shall submit a written request to the secretary within 10 business days of the date that the candidates were notified of the certified election results under sub. (14). A recount shall be conducted under the direction of the secretary or designee. If the recount results change the ranking of the candidates, the recount results shall be certified by the election committee under sub. (10) and shall stand as the final election results.

History

• Cr. Register, March, 1984, No. 339, eff. 4-1-84; r. (5) and am. (7) (intro.), Register, January, 1985, No. 349, eff. 2-1-85; am. (10), Register, September, 1992, No. 441, eff. 10-1-92; am. (1) to (7) (a), (7) (c) to (11) (b), (d), (12), (13) and (15) to (17), cr. (1m) and (11) (e), r. (14), Register, April, 1993, No. 448, eff. 5-1-93; corrections made under s. 13.93 (2m) (b) 6., Stats., Register, July, 1997, No. 499; am. (1), (1m) (b) and (7) (intro.), Register, December, 2000, No. 540, eff. 1-1-01; correction in (6) made under s. 13.92 (4) (b) 6., Stats., Register September 2009 No. 645; CR 12-020: am. (1), cr. (1m) (title), am. (2), r. and recr. (3), (4), cr. (5), r. and recr. (6), (7), (8), (9), am. (11) (intro), cr. (11) (f) to (h), renum. (12) to be (12) (a) (intro), 1., 2., 3., cr. (12) (b), r. (13), renum. (15), (16), (17) to be (13), (14), (15) and am., cr. (16) Register May 2013 No. 689, eff. 6-1-13; renum. (2) (intro), (a), (8) (intro), (a), (9) (intro), (a) to be (2) (ag), (ar), (8) (ag), (ar), (9) (ag), (ar) under s. 13.92 (4) (b) 1., Stats., cr. (2) (ag) (title), (8) (ag) (title), (9) (ag) (title) under s. 13.92 (4) (b) 2., Stats., Register May 2013 No. 689.

Wis. Admin. Code § ETF 10.12 Separate retirement system participation in the retirement trust fund {#sec-etf-10.12 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.12}

(1g) Procedure. The governing body of a separate retirement system qualifying under sub. (5) may request participation in the retirement trust fund by the adoption of a resolution accepting the provisions of this section in a form approved by the department. A certified copy of the resolution shall be forwarded to the department and participation shall be effective on the first day of the month following board approval of the resolution under s. 40.03 (1) (n), Stats. Funds may be delivered or sent to the department subject to this section.

(1r) Deposits.

(a) Deposits shall be made in accordance with instructions issued by the department.

(b) The separate retirement system may designate any portion of its deposit for investment in the variable retirement investment trust. Deposits shall be invested in the core retirement trust unless otherwise designated.

(c) The separate retirement system shall provide the department 30 days advance notice of any deposit in excess of $10 million. This requirement may be waived by the secretary.

(d) Deposits in the core and variable retirement investment trusts shall be accepted on the last working day of the month only, even if actually received earlier. Each investment shall be effective the last day of the month for purposes of investment valuation.

(2) Investment valuation. Investments by a separate retirement system shall be valued as follows:

(a) The current market values of the core and variable retirement investment trusts shall be determined as of the close of the last calendar day of the month.

(b) The market gain or loss of the core and variable retirement investment trusts shall each be determined for the month, net of administrative and investment costs.

(c) Each separate retirement system’s share of the respective retirement investment trust’s market gain or loss shall be determined and credited effective the close of the last calendar day of the month.

(d) Each separate retirement system’s share of the retirement investment trust’s market gain or loss shall be calculated as the total retirement investment trust’s gain or loss multiplied by that separate retirement system’s proportionate share of the average daily net assets available for investment during the month.

(e) The core or variable retirement investment trust’s average daily net assets available for investment during the month shall be calculated as the sum of its daily beginning asset balances divided by the number of calendar days in the month.

Note: This rule (CR 09-057) replaces the term “fixed”, when referring to the retirement investment trust, with the term “core” when referring to that retirement investment trust. 2005 Wis. Act 153 changed the name of the Fixed Fund to the Core Fund. This rule replaces the term “fixed” with the term “core” wherever it appears in the ETF administrative rules, specifically in ss. ETF 10.12 (1r) (b) and (d) and (2) (a) (b) and (e); 10.25 (intro.), (1) (a) and (b), (2), (3) (intro.), (b), (c) and (d) and (4); 10.30 (4) (a) and (b), (5) (a) 1., 2., 3. b., and (f); 11.16 (2) (a); 20.23 (2); and 20.25 (intro.), (1) (a) and (2).

(f) Each separate retirement system’s average daily net assets available for investment during the month shall be calculated as the sum of its daily beginning asset balances divided by the number of calendar days in the month.

(3) Reports. The department shall provide, at least quarterly, each separate retirement system a report showing all transactions in its account during the preceding quarter and the current value of the system’s investment.

(4) Withdrawals.

(a) Requests for withdrawal of funds shall be on a form prescribed by and in accordance with instructions issued by the department.

(b) The separate retirement system shall provide the secretary no less than 21 days advance notice of any withdrawal.

(c) Withdrawals by a separate retirement system shall be limited in any calendar month to one withdrawal paid on the last working day of the month of the greater of:

1. 5% of the system’s balance on deposit or as was last calculated by the department,

2. $2 million, or

3. Such other amount as the secretary, after consulting with respect to each withdrawal with the executive director of the state of Wisconsin investment board, determines may be withdrawn without necessitating the premature liquidation of any investment or imprudently reducing cash holdings of the trust fund or otherwise causing actual harm to the participants of the Wisconsin retirement system who have a beneficial interest in the trust fund and its earnings.

(d) For investment valuation purposes, withdrawals shall be treated as if effective at the close of the last calendar day of the month.

(e) If a separate retirement system’s balance on deposit drops below $2 million, that system’s investment shall be refunded and the account closed.

(5) Participating employers eligible.

(a) “Separate retirement system” for purpose of this section and s. 40.03 (1) (n) and (2) (q), Stats., means a pension benefit plan which is all of the following:

1. Established by the state or a political subdivision of the state which is also a participating employer subject to the provisions of the Wisconsin retirement system under s. 40.21, Stats.

2. A governmental plan as defined by 26 USC 414 (d) and 29 USC 1003 (32).

3. Qualified for federal tax purposes under the applicable provisions of the internal revenue code.

4. Maintained and administered for the exclusive benefit of the employees of that employer and their beneficiaries.

(b) Any separate retirement system that fails to certify upon the department’s request, and at least annually, that it continues to meet the criteria of par. (a), and any separate retirement system that the department determines does not meet the criteria of par. (a), shall be compelled to withdraw its entire investment as rapidly as permitted under sub. (4).

(6) Termination of program. The employee trust funds board or the secretary of the department may close the investment option under s. 40.03 (1) (n), Stats., to any or all separate retirement systems and compel withdrawal of investments under sub. (4) if the board or the secretary determines that the separate retirement system investment interferes with the duty to manage, administer, invest and otherwise deal with the public employee trust fund solely for the benefit of the participants in the benefits plans under ch. 40, Stats., and their beneficiaries as provided in that chapter.

Note: This rule requires a form which is available at no charge. The form can be obtained by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020.

History

• Cr. Register, October, 1985, No. 358, eff. 11-1-85; am. (2) (e) and (f), Register, December, 1990, No. 420, eff. 1-1-91; am. (4) (b) and (c) and r. (4) (d), Register, June, 1998, No. 510, eff. 7-1-98; CR 05-114: renum. (intro.) to be (1g) and am., renum. (1) (a), (b) and (c) to be (1r) (a), (b) and (c), r. (1) (d), cr. (1r) (d), (4) (d), (5) and (6), r. and recr. (2), am. (4) (c) (intro.) Register September 2006 No. 609, eff. 10-1-06; CR 09-057: am. (1r) (b), (d), (2) (a), (b) and (e) Register May 2010 No. 653, eff. 6-1-10.

Wis. Admin. Code § ETF 10.15 Annuity reserves {#sec-etf-10.15 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.15}

The amounts credited to and the liabilities of the reserves for annuities granted shall be determined by the actuary on the basis of separate male-female experience with adjustments as necessary to reflect actual and projected experience of participants under the retirement system and not on the basis of the combined male-female experience used in individual benefit computations.

History

• Renum. from ETF 7.07 and am. Register, December, 1983, No. 336, eff. 1-1-84.

Wis. Admin. Code § ETF 10.20 Approval of group insurance plans for state employees {#sec-etf-10.20 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.20}

(1) In addition to group insurance plans specifically provided in ch. 40, Stats., and pursuant to s. 20.921 (1) (a) 3., Stats., the group insurance board shall approve or disapprove group insurance plans for which payment of premiums is made through payroll deductions.

(a) The group insurance board shall determine, after notice and hearing, whether the group insurance plan fulfills an important coverage need through consideration of, but not limited to, the following factors:

1. Number of employees affected.

2. Amount and variation in premiums.

3. Adequacy of other approved coverage providing the same or similar protection.

4. Duration of contract.

5. History, performance and acceptance of the plan by the employees.

6. New or additional coverage provided.

(b) The group insurance board shall determine whether the plan is adequately supervised through consideration of, but not limited to, the following factors:

1. Continuing representation of employee participants with professional insurance guidance.

2. Maintenance of adequate statistical records relating to retentions, experience, premiums, participants and other data necessary for actuarial computations.

3. Procedures for negotiating coverage.

(2) Notwithstanding approval granted to any plan under sub. (1), the group insurance board may subsequently withdraw its approval, after notice and hearing, upon finding that the plan does not meet the criteria established by sub. (1) (a). Withdrawal of approval shall be effective, at the discretion of the group insurance board, on the first day of the month subsequent to issuance of a finding that the plan does not meet the criteria pursuant to sub. (1) (a) or on the anniversary date of the contract under which the plan is provided.

History

• Renum. from ch. Grp 26 and am. Register, December, 1983, No. 336, eff. 1-1-84.

Wis. Admin. Code § ETF 10.25 Core retirement investment trust participation in the variable retirement investment trust {#sec-etf-10.25 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.25}

The core retirement investment trust may invest in the variable retirement investment trust subject to the following:

(1) Combined stock fund. A combined stock fund shall be established and shall operate as a separate account within the variable retirement investment trust as follows:

(a) All investments in common and preferred stock by the core retirement investment trust and the variable retirement investment trust shall be made through the combined stock fund account.

(b) The trusts shall transfer funds to be invested in common and preferred stocks to the combined stock fund account. In exchange, the core retirement investment trust and variable retirement investment trust shall receive shares in the combined stock fund.

(c) Shares in the combined stock fund may be purchased only as of the first day of each month.

(d) All shares purchased in the combined stock fund shall, at the time of purchase, have a book value of one dollar per share.

(2) Investment of combined stocks. All funds received in the combined stock fund from the core retirement investment trust and the variable retirement investment trust shall be used to invest in common or preferred stocks or the state investment fund.

(3) Earnings distributions. Earnings shall be distributed from the combined stock fund to the core retirement investment trust and the variable retirement investment trust according to the following:

(a) The book value of all investments in the combined stock fund shall be adjusted to current market value as of the last day of each month. The appraisal gain or loss shall be recognized in the month incurred.

(b) As of the last day of each month the combined stock fund shall distribute to the core retirement investment trust and the variable retirement investment trust all income recorded for that month including interest received, dividends received, gain or loss realized on the sale of investments and the unrealized gain or loss recognized on the adjustment of investment book value to market value. Following these distributions the unit value of shares in the combined stock fund shall be one dollar.

(c) For any month, the distribution of income between the core retirement investment trust and the variable retirement investment trust shall be based on the ratio of the relative number of combined stock fund shares held by each trust as of the first day of that month to the total number of combined stock fund shares outstanding.

(d) Monthly distributions from the combined stock fund to the core retirement investment trust resulting from gains or losses realized on the sale of investments or unrealized appraisal gains or losses shall be transferred to the transaction amortization account. Distributions resulting from all other sources shall be recognized as current income to the core retirement investment trust in the month of distribution.

(e) All distribution to the variable retirement investment trust shall be treated as current income in the month of distribution.

(4) Withdrawals. The core retirement investment trust or the variable retirement investment trust may withdraw funds from the combined stock fund as of the first day of any month. The withdrawal shall be accomplished by selling combined stock fund shares to the combined stock fund. Withdrawals made after the first day of any month shall be deemed to have been made on the first day of that month for purposes of distributing income at the end of that month.

History

• Cr. Register, October, 1985, No. 358, eff. 11-1-85; r. and recr. (1), r. (2) and (4) (a), renum. (3), (4) (intro.), (b) to (f) and (5) to be (2) to (4), Register, December, 1990, No. 420, eff. 1-1-91; CR 09-057: am. (intro.), (1) (a), (b), (2), (3) (intro.), (b), (c), (d) and (4) Register May 2010 No. 653, eff. 6-1-10.

Wis. Admin. Code § ETF 10.30 Variable division participation {#sec-etf-10.30 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.30}

(1) Purpose. The purpose of this section is to interpret s. 40.04 (7), Stats. This section establishes the procedures for electing to participate, participating and electing to terminate participation in the variable division of the trust fund.

(1m) Definitions. In this section, “new participant” means any of the following:

(a) A person initially qualifying as a participant as defined by s. 40.02 (45), Stats., who has never previously been a participant in the Wisconsin retirement system or Wisconsin retirement fund or a member of the state teachers retirement system or Milwaukee teacher retirement fund.

(b) A person who was previously a participant but whose Wisconsin retirement system account was closed because of payment of a lump sum benefit under s. 40.25, Stats., and who returns to covered employment for the first time since the account closure. The term “new participant” does not include a person whose closed account is reestablished under s. 40.25 (5), Stats.

(2) Eligibility for and effective dates of participation in the variable division.

(a) An election to participate, or terminate participation, in the variable division shall be made on a form provided by the department. Except as provided in sub. (3), an election to participate in the variable division shall become effective for future contributions on the January 1 following receipt of the form by the department.

(b) Participants who elected to terminate participation in the variable division effective before December 31, 1999 may elect to participate in the variable division as provided in this section.

(c) Except as provided in par. (d), pursuant to s. 40.04 (7) (b), Stats., participants who elected to terminate participation in the variable division effective on or after December 31, 1999 may not re-elect to participate in the variable division.

(d) A participant who elects to terminate participation in the variable division effective on or after December 31, 1999 may re-elect to participate in the variable division only if the participant ceases to be a participant by closing the participant’s account through taking a benefit under s. 40.25, Stats., and subsequently becoming a new participating employee.

(e) An election to participate in the variable division received by the department from a participant who is not a participating employee, and who ceased to be a participating employee before January 1, 2001, shall become effective on the January 1 on or after the date on which the participant again becomes a participating employee.

(f) An election to participate in the variable division received by the department after the participant’s date of death is invalid.

Note: The form for electing to participate in the variable division, “Election to Participate in the Variable Trust Fund,” ET-2356, can be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020. The form is also available on the department’s website: etf.wi.gov.

(3) Variable division participation for new participants.

(a) An election to participate in the variable division filed by a person who becomes a new participant on or after January 1, 2001 shall become effective as follows:

1. Retroactive to the date on which the person becomes a participant, providing that the department receives the form no later than 30 calendar days after the date on which the person became a participant.

2. Elections to participate in the variable division that are received by the department more than 30 calendar days after the date on which the person becomes a participant shall become effective on the January 1 following receipt of the form by the department.

(b) The department shall accept elections to participate in the variable division up to 90 calendar days before the date on which a participant becomes a participating employee. Elections received by the department within this 90-day period or within the next 30 days after the person becomes a participating employee shall become effective on the date on which the person becomes a participating employee. Elections to participate in the variable division received by the department more than 90 calendar days before the date on which a person becomes a participant are invalid.

(4) Retroactive contributions.

(a) Retroactive interest credited to contributions for late-paid earnings shall be credited at the core effective rates as provided in s. 40.06 (5), Stats.

(b) Late-paid and other retroactive contributions shall be deposited in the core and variable trust accounts according to the participant’s variable participation status at the time the contributions are deposited, regardless of the participant’s variable participation status in the annual earnings period to which the contributions may be attributed for other purposes.

(5) Terminating participation in the variable division.

(a) A participant may elect to terminate participation in the variable division and transfer the participant’s variable division contributions to the core division on one of the following bases:

1. For future contributions only: Effective as of the December 31 after the date on which the department receives an election to terminate participation in the variable division, all future contributions shall be deposited in the core division.

2. An unconditional basis: Effective as of the December 31 after the date on which the department receives an election to terminate participation in the variable division, all future contributions shall be deposited in the core division and all variable contributions and accrued gain or loss shall be transferred to the core division.

3. A conditional basis:

a. For annuities, effective on the first January 1 after the department receives the election when the condition under s. 40.04 (7) (a) 1., Stats., is satisfied.

b. For all accounts from which an annuity is not being paid, effective on the first January 1 after the department receives the election when the condition under s. 40.04 (7) (a) 2., Stats., is satisfied. As of the first January 1 after the Department receives the election, all future contributions shall be deposited in the core division. As of the first January 1 when the condition under s. 40.04 (7) (a) 2., Stats., is satisfied, all variable contributions and accrued gain or loss shall be transferred to the core division.

Example 1: A participant, alternate payee, named survivor or beneficiary who is receiving an annuity from the Wisconsin retirement system, and who also has an account from voluntary additional contributions from which no annuity is being paid, is not an annuitant under s. 40.04 (7) (a) with respect to the additional contributions.

Example 2: An alternate payee who was also a participating employee in the Wisconsin retirement system and who is receiving an annuity only from the alternate payee account is not an annuitant with respect to the separate account established as a participating employee.

Note: The form for electing to terminate participation in the variable division, “Election to Cancel Variable Participation,” ET-2313, can be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931 or by calling: (608) 266-3285 or toll free at (877) 533-5020. The form also is available on the department’s website: etf.wi.gov.

(b) Except as provided in par. (c), an election to terminate participation in the variable division may be rescinded if the department receives a written request to rescind the election from an alternate payee, beneficiary, named survivor, or participant as defined in s. 40.02 (2m), (8), (41r) and (45), Stats., before the December 31 following the date on which the election to terminate participation in the variable division was received.

Note: No specific form exists for rescinding an election to terminate participation in the variable division. The written request must be dated and must make clear your intent and by including words to the effect of “I want to rescind my election to terminate participation in the variable division.” Participants may send a letter or fax with this request to the following address: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931 or fax (608) 267-4549.

(c) An election to terminate participation in the variable division received within 30 days after the date on which the person became a participant may be rescinded if the department receives the participant’s written request to rescind the election no later than 30 days after the date on which the person became a new variable division participant as provided in sub. (3).

(d) A rescinded election to terminate participation in the variable division shall be treated as if the election never existed.

(e) When the department receives an election to terminate participation in the variable division more than 30 calendar days after the date on which a person became a new variable division participant as defined in sub. (3), the participant shall not be eligible to re-elect to participate in the variable division without meeting the requirements of sub. (2) (d).

(f) For an account or annuity that includes additional contribution, when an election to terminate participation in the variable division pursuant to s. 40.04 (7) (a) 1. or 2., Stats., is made by an alternate payee, beneficiary, named survivor, or participant as defined in s. 40.02 (2m), (8), (41r) and (45), Stats., the determination of whether the variable contributions and accrued gain or loss shall be transferred to the core division shall be based on an evaluation of the combined total of the required and additional contributions and shall be effective as prescribed in this section.

(g) An election to terminate participation in the variable division filed pursuant to s. 40.04 (7), Stats., shall be effective for all retirement contributions and benefits accrued as a participant except that for an annuitant who has variable accumulations from which no annuity is being paid, the effective date of an election shall be separately determined for the current annuity or annuities and for the variable division accumulations from which no annuity is being paid.

(h) When multiple elections to terminate participation in the variable division for an account are received by the department, the last election received by the department shall supersede previous elections and shall be applied to the account if it is received before the December 31 on which the previous election to terminate variable division participation would become effective.

(i) Any gains or losses at the effective date of a transfer pursuant to s. 40.04 (7), Stats., including subsequent interest credits, shall be reflected as an adjustment to the benefit at the time it is payable.

(j) Participants may rescind elections to participate in the variable division under the following conditions:

1. If an election to participate in the variable division would become effective on a January 1 after it is received, as provided in sub. (2), the election shall be rescinded if the department receives an election to terminate participation in the variable division before the date on which the election would otherwise become effective.

2. If an election to participate in the variable division would become effective on the date on which the participant became a participating employee as provided in sub. (3), the election to participate shall be rescinded if the department receives an election to terminate participation in the variable division within 30 calendar days after the date on which the participant becomes a participating employee.

(k) An election to terminate participation in the variable division received by the department after the date of death of the person making the election is invalid.

(L) A person may be a participant, alternate payee, named survivor, beneficiary or combination thereof under the Wisconsin retirement system, and may have different accounts or annuities in each capacity. Except as otherwise provided in this paragraph, an election to terminate participation in the variable division applies to all of a person’s accounts and annuities. A person may specify that an election to terminate participation in the variable division applies only to one or more of the following:

1. All accounts and annuities held in the capacity of a participant.

2. All accounts and annuities held in the capacity of an alternate payee of a specified participant.

3. All accounts and annuities held in the capacity of a named survivor of a specified participant.

4. All accounts and annuities held in the capacity of a beneficiary of a specified participant.

(m) The December 31 effective date for an election to terminate participation in the variable division means on December 31 after interest crediting under s. 40.04 (4) (a), Stats., has occurred.

(6) Rights of beneficiaries, alternate payees, and named survivors.

(a) An election to participate in the variable division received by the department from an alternate payee, beneficiary, or named survivor as defined in s. 40.02 (2m), (8), and (41r), Stats., is invalid.

(b) A person receiving or eligible to receive benefits as the alternate payee, sole beneficiary, or named survivor of a participant as defined in s. 40.02 (2m), (8), and (41r), Stats., may elect to terminate participation in the variable division pursuant to s. 40.04 (7), Stats.

(c) Except as provided in pars. (d) and (e), terminating participation or rescinding an election to participate in the variable division shall be determined pursuant to sub. (5).

(d) If there is more than one beneficiary of an account from which no annuity is being paid, the multiple beneficiaries may jointly elect to terminate participation in the variable division pursuant to s. 40.04 (7), Stats. Participation in the variable division will be terminated effective on the December 31 following receipt of an election to terminate participation in the variable division from each of the multiple beneficiaries. Any one of the multiple beneficiaries may rescind his or her election to terminate participation in the variable division prior to the date it would otherwise have gone into effect, in which case the rescinded election to terminate participation in the variable division shall be treated as if the election never existed.

(e) If there is more than one beneficiary of an account from which no annuity is being paid, and the beneficiaries do not all elect to terminate participation in the variable division pursuant to s. 40.04 (7), Stats., as provided in par. (d), an individual beneficiary’s election to terminate participation in the variable division received by the department shall become effective on the December 31 on or after the effective date of the beneficiary’s annuity from that beneficiary’s portion of the participant’s account, unless previously withdrawn.

(f) A participant’s election to terminate participation in the variable division received by the department before the participant’s date of death shall become effective as provided in sub. (2), and shall apply to any accounts or annuities that are payable to the participant’s beneficiaries unless the election is rescinded as provided in sub. (5).

(7) Incomplete elections.

(a) An election to participate in the variable division or an election to terminate participation in the variable division that does not contain the name, social security number and signature of the person making the election shall be deemed incomplete.

(b) An election to terminate participation in the variable division received by the department from a beneficiary or named survivor as defined in s. 40.02 (8) and (41r), Stats., that does not include the participant’s name and social security number in addition to the name, social security number and signature of the person making the election shall be deemed incomplete. For terminations, the election must include a cancellation type as specified in sub. (5) (a).

(c) When the department receives an incomplete election, the election shall be returned by mail to the elector for completion. If a correctly completed election is received by the department within a grace period of 30 calendar days after the incomplete election was returned by mail to the elector, the original receipt date of the election shall be preserved for the purpose of determining the effective date of the election. The effective date for corrected elections that are not returned during the 30-day grace period shall be determined without regard to the original submission and based on the date a correctly completed election is received by the department.

(8) Electronic receipt.

(a) Subject to s. ETF 10.82 (2), the department may accept correctly completed elections to participate in the variable division, elections to terminate participation in the variable division and notifications to rescind elections to terminate participation in the variable division that are received by the department’s facsimile machine or by electronic mail in a complete and legible form. The facsimile or electronic mail may be accepted as the original.

(b) The deadline for submitting an election to terminate participation in the variable division that is effective December 31 is December 31 of that year.

(c) The deadline for submitting an election to participate in the variable division that is effective January 1 is December 31 of the prior year.

(d) For the purposes of determining deadlines under this section, see s. 990.001 (4), Stats.

Note: Under s. 230.35 (4) (a), Stats., December 31 and January 1 are always legal holidays on which state offices are closed, as is the day following January 1 when January 1 falls on a Sunday. The department does not have duly established office hours on Saturday. Therefore, under s. 990.001 (4) (b), Stats., a December 31 deadline would be extended until the next date which is not a holiday, Saturday or Sunday. For example, the deadline of December 31, 2002, will be extended to Thursday, January 2, 2003. The deadline of December 31, 2004, will be extended to Monday, January 3, 2005. The deadline of December 31, 2005, will be extended to Tuesday, January 3, 2006.

History

• Cr. Register, December, 1980, No. 300, eff. 1-1-81; renum. from ETF 8.02 and am., Register, December, 1982, No. 324, eff. 1-1-83; CR 02-126: r. and recr. Register April 2003 No. 568, eff. 5-1-03; CR 04-104: am. (8) (a) Register July 2005 No. 595, eff. 8-1-05; CR 09-057: am. (4) (a), (b), (5) (a) 1., 2., 3. b. and (f) Register May 2010 No. 653, eff. 6-1-10.

Wis. Admin. Code § ETF 10.50 Sick leave conversion credits {#sec-etf-10.50 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.50}

(1) The amount of accumulated unused sick leave under s. 36.30, Stats., for all faculty and academic staff other than such faculty and staff appointed to work for either 52 or 39 weeks per year in the University of Wisconsin System convertible to credits to pay for health insurance premiums shall equal the number of days resulting from multiplying 0.0040708 times the number of hours per year appointed to work, as reported to the department, rounded off to the nearest tenth of a day. The maximum amount of such unused sick leave shall be limited to 8.5 days per year. The secretary of administration may waive this limitation under s. 40.05 (4) (bp) 2. and 3., Stats.

(2) Only participating employment and sick leave earned during participating employment can be used in the calculation of credits under ss. 40.05 (4) and 40.95, Stats.

History

• Cr. Register, September, 1988, No. 393, eff. 10-1-88; CR 23-023: renum. to (1), cr. (2) Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 10.55 Joint instrumentalities; reporting participating employees, service and earnings {#sec-etf-10.55 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.55}

(1) Scope. This section applies to reporting and contributions with respect to employment by joint instrumentalities created by 2 or more units of government, when all of the following apply:

(a) At least one of the units of government creating the joint instrumentality is, or subsequently becomes, a participating employer in the Wisconsin retirement system.

(b) The joint instrumentality is not a separate and independent employer within the meaning of s. 40.02 (28), Stats., as determined by the department. A joint instrumentality which has not established itself as a separate unit of government for OASDHI purposes is not a separate and independent employer under this paragraph.

Example: A joint library district is not a separate and independent employer.

(c) There are persons employed by the joint instrumentality. This section does not apply with respect to employees of a unit of government loaned or assigned to perform services for a joint instrumentality. Those individuals remain the employees of their employing unit of government which is subject to the usual reporting and contribution requirements.

Example: If a joint library district’s library board hired a librarian but the library was located on the premises of one of the units of government establishing the joint library district, which assigned one of its janitors to the library, then this section would apply with respect to the librarian but not the janitor.

(2) Purpose. With respect to the employees of joint instrumentalities subject to this section:

(a) Each participating employer forming a joint instrumentality covered by this section shall be responsible for its share of the retirement benefits of the instrumentality’s employees who meet the qualifications for participating employees as both the share and qualifications are determined under this section.

(b) Nothing in this section prevents the units of government forming a joint instrumentality subject to this section from providing for their share of responsibility for the retirement benefits of the employees of the joint instrumentality in the agreement establishing the joint instrumentality. If they fail to expressly address the issue then the share of each participating employer shall be determined as provided in this section.

(c) Whether an employee of a joint instrumentality covered by this section is a participating employee under s. 40.22, Stats., is not affected by the number of units of government which form the joint instrumentality.

(3) Participating employees.

(a) An employee of a joint instrumentality subject to this section is a participating employee for Wisconsin retirement system purposes if any of the units of government forming the joint instrumentality is a participating employer under s. 40.21, Stats., unless the employee is excluded under s. 40.22 (2), Stats.

(b) In making determinations concerning the work expected of or services rendered by an employee of a joint instrumentality, including determining whether an employee is expected to work at least one-third of what is considered full time employment by s. ETF 20.015, the employee’s work for the joint instrumentality shall be considered as a whole, without regard for the number of separate units of government which created the joint instrumentality or any agreement among them apportioning responsibility for expenses or for retirement contributions.

Example: A librarian working 900 hours per year for a joint library district created by six towns and villages, at least one of which is a participating employer, would not be barred from being a participating employee under the WRS by s. 40.22 (2) (a), Stats.

(4) Reporting requirements.

(a) Report participating employee. Among the units of government which formed the joint instrumentality, each unit which is a participating employer under s. 40.21, Stats., shall report each employee of the joint instrumentality who qualifies as a participating employee under sub. (3) to the department as its own participating employee.

(b) Reported earnings. Earnings shall be reported by each participating employer, in the same manner and subject to the same requirements as for its other participating employees, with respect to each employee of the joint instrumentality required to be reported as a participating employee under sub. (3). The amount of earnings to be reported shall be determined by prorating the gross amount paid to the employee for services rendered to the joint instrumentality which would qualify as “earnings” under s. 40.02 (22), Stats., if the joint instrumentality were itself the employer among the units of government which created the joint instrumentality. If the proration is not specified by the agreement that establishes the joint instrumentality, proration shall be made as are expenses for the joint instrumentality. If no proration of expenses is provided in the agreement, each participating employer shall report the total amount of earnings divided by the number of units of government forming the joint instrumentality during that annual earnings period. If a unit of government joins or leaves a joint instrumentality during an annual earnings period, reported shares of earnings shall be adjusted as of the date of that event.

(c) Contributions. Each participating employer shall transmit as required contributions to the department the same percentages of the employee’s reportable earnings determined under par. (a) as is required, and in the same manner as, contributions on earnings for its other participating employees in the same employment category.

(d) Service. The employee’s hours of service for creditable service purposes shall be prorated in the same manner as earnings under par. (a) and reported to the department by each participating employer in the same manner as is required for its other employees.

Example: If a librarian qualifying as a participating employee worked 1,800 hours annually and was paid $20,000 per year by a joint library district created by a town and a village, both of which are participating employers, and they had agreed to split the expenses, with the town paying 80% and the village 20%, and the agreement was silent on allocating responsibility for the employees, then the town would report 1,440 hours of service and $16,000 in earnings, while the village reported 360 hours of service and $4,000 in earnings, with each making the associated contributions. If the village in this example was not a participating employer, it would have no obligation whatsoever while the town’s responsibilities would remain exactly as stated.

(5) Non-participating employers. Nothing in this section shall be construed to require any employer which does not participate in the Wisconsin retirement system to make any report to the department or to pay any contributions to the public employee trust fund.

History

• Cr. Register, June, 2000, No. 534, eff. 7-1-00.

Wis. Admin. Code § ETF 10.60 Reports and payments {#sec-etf-10.60 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.60}

(1) Every employer, which has one or more employees as a participant under ch. 40, Stats., shall:

(a) Prepare and transmit a coverage report or reports to the department for each calendar month. Such reports shall be in the form prescribed by and in accordance with instructions from the department.

(b) Remit to the department, with the respective coverage reports required under par. (a), the employee and employer contributions or deposits, premiums, payments on the accrued liability or other amounts payable to the department for the calendar month covered by the report.

(2) Every employer shall submit the detailed annual earnings report required in the administration of subch. II of ch. 40, Stats., in an electronic format designated by the department.

(3) The secretary may, for specified employers or types of coverage, provide for summary reporting on a monthly basis to accompany the monthly remittance required in sub. (1) (b), and detailed reporting on a quarterly, semi-annual, or annual basis.

(4) The department may designate an agent or depository to receive on its behalf, payments or remittances as provided in sub. (1) (b) and any report or remittance will be considered received in the department’s offices as of the date it is received by such a designated agent or depository.

History

• Cr. Register, December, 1976, No. 252, eff. 1-1-77; emerg. am. (1) (a) and (b), eff. 8-1-80; am. (1) (a) and (b), Register, November, 1980, No. 299, eff. 12-1-80; renum. from ETF 4.01 and am. (1) (intro.), Register, December, 1982, No. 324, eff. 1-1-83; renum. (2) and (3) to be (3) and (4), cr. (2), Register, September, 2000, No. 537, eff. 10-1-00; CR 14-055: am. (2) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 10.63 Due dates {#sec-etf-10.63 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.63}

(1) Reports and remittances required under this chapter shall be submitted to the department as follows:

(a) Contribution reports and remittances from state departments, excluding university and other state department reports which pertain to teachers only, required in the administration of subch. II of ch. 40, Stats., are due on a day determined by the secretary and communicated to employers by the department through email updates, employer bulletins, or other means of communication.

(b) Contribution reports and remittances other than those specified in par. (a) required in the administration of subch. II of ch. 40, Stats., are due on a day determined by the secretary and communicated to employers by the department through email updates, employer bulletins, or other means of communication.

(c) Detailed annual earnings reports required in the administration of subch. II of ch. 40, Stats., are due on a day determined by the secretary and communicated to employers by the department through email updates, employer bulletins, or other means of communication.

(d) Premium and coverage reports and remittances required in the administration of subchs. IV and VI of ch. 40, Stats., are due on a day determined by the secretary and communicated to employers by the department through email updates, employer bulletins, or other means of communication.

(e) Premium and coverage reports and remittances required in the administration of subch. V of ch. 40, Stats., are due on a day determined by the secretary and communicated to employers by the department through email updates, employer bulletins, or other means of communication.

(f) Reduction reports and remittances required in the administration of subch. VIII of ch. 40, Stats., are due on a day determined by the secretary and communicated to employers by the department through email updates, employer bulletins, or other means of communication.

(2) Whenever the due date determined by the secretary referred to in sub. (1) falls on a Saturday, Sunday, or holiday on which state offices are closed, a report or a remittance received on the first working day after the due date determined by the secretary referred to in sub. (1) shall be deemed to have been received on a timely basis.

(3) The secretary may waive charges and interest calculated under s. 40.06 (3), Stats., on any employer’s reports and remittances, which are received within one day of the due date specified under subs. (1) and (2) and announced to employers by the department or on a day determined by the secretary referred to in sub. (1) and (2) if he or she determines that the waiver will not impair the objective of encouraging timely receipt of contributions and remittances.

History

• Cr. Register, December, 1976, No. 252, eff. 1-1-77; emerg. cr. (1) (e), eff. 8-1-80; r. and recr. (1), am. (2) and (3), r. (4), renum. (5) and (6) to be (4) and (5) and am. (4), Register, November, 1980, No. 299, eff. 12-1-80; renum. from ETF 4.02, am. (1), renum. (2) to be ETF 10.64, renum. (3) to be (2), r. (4), renum. (5) to be (3) and am., Register, December, 1982, No. 324, eff. 1-1-83; am. (1) (f) and (2), Register, December, 1983, No. 336, eff. 1-1-84; r. and recr. (3), Register, April, 1986, No. 364, eff. 5-1-86; emerg. r. (1) (c), eff. 6-1-86; r. (1) (b) to (d), Register, September, 1986, No. 369, eff. 10-1-86; r. (1) (a), Register, January, 1987, No. 373, eff. 2-1-87; correction in (1) (g) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; r. and recr. (1) and am. (2), Register, July, 2000, No. 535, eff. 8-1-00; CR 12-054: am. (1) (a) to (d), (e) 1., 2., (f), (2), (3) Register October 2013 No. 694, eff. 11-1-13; corrections in (1) (a) to (d), (e) 1., 2., (f), (3) made under s. 13.92 (4) (b) 6., Stats., Register October 2013 No. 694; CR 16-033: cr. (1) (intro.), am. (1) (a) to (d), cons. (1) (e) (intro.) and 1., renum. to (1) (e) and am., r. (1) (e) 2., am. (1) (f), (2) Register April 2017 No. 736, eff. 5-1-17.

Wis. Admin. Code § ETF 10.633 Debiting participant account to fund benefit {#sec-etf-10.633 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.633}

(1) Except as provided in sub. (2), the date on which a participant’s account in the employee accumulation reserve shall be debited to fund the benefit, as provided in s. 40.04 (4) (a) 3., Stats., shall be as follows:

(a) For a retirement annuity under s. 40.23 or 40.24, Stats., or s. ETF 20.04, and for a beneficiary annuity under s. 40.73 (3), Stats., the debit date shall be the twenty-first day of the same month as the date of the first payment.

(b) For a disability annuity under s. 40.63, Stats., the debit date shall be the twenty-first day of the same month as the date of the first payment.

(c) For a lump sum payment of any kind, including a separation benefit under s. 40.25 (2), Stats., or lump sum payments under s. 40.25 (1) or (4) or 40.73 (1) or (2), Stats., the debit date shall be the date of the payment.

(2) If the date specified under sub. (1) falls on a Saturday, Sunday or a holiday under s. 230.35 (4) (a), Stats., then the debit shall be made on the next working day.

(3) The department may correct its accounting of the participant’s former account in the employee reserve after debiting the account. No corrections to the amount of the debit may affect the date of the debit provided in sub. (1) or (2) for other purposes, including those of ss. ETF 20.20 (2), (3) and (4), 50.31, and 60.51.

History

• Cr. Register, January, 1996, No. 481, eff. 2-1-96; correction in (1) (c) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1999, No. 523; CR 14-055: am. (1), (a), (b), (c) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 10.635 Late paid earnings {#sec-etf-10.635 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.635}

Except for purposes of s. 40.05 (3), Stats., contributions and premiums due on late-paid earnings, including payments for retroactive changes in earning rates and those considered covered earnings under s. 40.02 (22) (b) 9., Stats., shall be determined at the employee and employer rates which would have been in effect if the subsequent changes and decisions had been known at the time the earnings would normally have been payable and shall be subject to s. 40.06 (5), Stats.

History

• Cr. Register, July, 1986, No. 367, eff. 8-1-86.

Wis. Admin. Code § ETF 10.64 Late reporting charges and interest {#sec-etf-10.64 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.64}

(1) Except as provided in s. ETF 10.63 (2) and (3) and this subsection, any report or remittance not received within the period specified in this chapter, ch. 40, Stats., or an insurance contract between the group insurance board and an insurance carrier shall be subject to the charges and interest calculated in accordance with the provisions of s. 40.06, Stats. Reports and remittances required under s. ETF 10.63 (1) (f) are not subject to the interest charges under s. 40.06 (5), Stats.

(2) The employer shall be responsible for and transmit to the department any assessment made against the state by the federal government for late payment of contributions due on any OASDHI adjustment report.

(3) When interest is due under s. 40.06 (5), Stats., and the effective rate for the current year is unavailable, the effective rate for the previous calendar year shall be used. The due date specified on the billing notice shall be the next regularly scheduled due date for regular payments specified under s. ETF 10.63, ch. 40, Stats., or contracts between the group insurance board and any insurance carrier, but in no case less than 30 days from the date of the billing notice. When interest is due under s. 40.06 (3), Stats., it shall be assessed on a daily basis from the billing notice due date to the date payment is actually received.

History

• Renum. from ETF 4.02 (2) and am., Register, December, 1982, No. 324, eff. 1-1-83; am. (1) and cr. (2), Register, August, 1984, No. 344, eff. 9-1-84; am. (1) and cr. (3), Register, October, 1986, No. 370, eff. 11-1-86; CR 23-023: am. (1) Register May 2024 No.821, eff. 6-1-24; correction in (1) made under s. 35.17, Stats., Register May 2024 No. 821.

Wis. Admin. Code § ETF 10.65 Refund of excess contributions {#sec-etf-10.65 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.65}

The department shall refund contributions to be allocated to a participant’s account that exceed the limits specified in s. 40.32, Stats., in accordance with s. 40.08 (6), Stats., according to the correction methods allowed under the Employee Plans Compliance Resolution System developed by the internal revenue service or similar correction program developed by the internal revenue service. Nothing in this section shall be interpreted as a basis for a determination of whether any payments credited to an employer are required to be paid by the employer to an employee under contractual agreements or other negotiated agreements or provisions of law.

Note: Revenue Procedure 2013-12 sets forth the Employee Plans Compliance Resolution System. The Procedure is updated periodically. A copy of the ruling may be obtained by writing: Superintendent of Documents, P.O. Box 979050, St. Louis, MO 63197-9000 or on the Internet at http://www.irs.gov/Retirement-Plans/Correcting-Plan-Errors.

History

• Cr. Register, June, 1998, No. 510, eff. 7-1-98; correction in (2) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1998, No. 510; CR 13-004: renum. (1) (intro.) to 10.65 and am., r. (1) (a) to (f), (2), (3) Register August 2013 No. 692, eff. 9-1-13.

Wis. Admin. Code § ETF 10.70 Individual personal information {#sec-etf-10.70 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.70}

(1) “Individual personal information” means all information in any individual record of the department, including the date of birth, earnings, contributions, interest credits, beneficiary designations, creditable service, marital or domestic partnership status, address, and social security number, but does not include information in any statistical report, other report or summary in which individual identification is not possible.

(2) Individual personal information may be disclosed as required for the proper administration of benefit programs under ch. 40, Stats., including discussion of this information in any meeting of any board created under s. 15.16 or 15.165, Stats., or disclosure in any written record of the board proceedings.

(3)

(a) Pursuant to s. 40.07 (1m) (a), Stats., an individual’s personal information may be disclosed, except as otherwise prohibited, upon proper identification, to that individual or the duly authorized personal representative of that individual in person, by telephone, or in writing.

(b) Except as provided in par. (d), an individual’s authorization to release information to a personal representative shall be in writing, signed, and dated and shall refer specifically to the records in this department.

(c) A written authorization under par. (b) which does not contain an expiration date shall be deemed to have expired 6 months following the date the authorization was signed.

(d) The secretary of the department, or specific departmental employees designated by the secretary, may authorize disclosure of information without written authorization when urgent circumstances exist which warrant an exception to normal procedures and when the person to whom the information is to be given is otherwise authorized to receive it.

(4) In case of death, disabling injury, or disabling disease, the department may disclose individual personal information only to any of the following, as identified by the department:

(a) The legal representative of the individual whose record is the subject of the inquiry.

(b) A beneficiary of the deceased under s. 40.02 (8), Stats.

(c) The named survivor of the deceased under s. 40.02 (41r), Stats.

(d) The duly authorized representative of the beneficiary or the named survivor.

(e) The legal representative of the deceased individual’s estate.

Note: The definition of “beneficiary” was affected by 2007 Wis. Act 131. The existing administrative rules using that term were reviewed in order to ensure that the use of the term remained logical, correct and consistent with the new definition. While conducting that review, the department located three provisions that needed to be amended: ss. ETF 10.70 (4), 10.70 (5) (b) 1. and 20.04 (2). This rule (CR 09-057) amends the current rule allowing disclosure of confidential personal information in case of death, disabling injury or disease, to clarify that disclosure to a beneficiary may be made only after the participant has died, since only then can the actual beneficiary be determined. The amendment will also help safeguard the confidential information of living participants.

(5) Notwithstanding sub. (3), disclosure of an individual’s beneficiary designation shall only be made under any of the following circumstances:

(a) While the individual is living, to the individual or to his or her duly authorized representative, upon request.

(b) After the death of the individual:

1. Upon request, to the personal representative of the individual’s estate, to the beneficiary of the individual under s. 40.02 (8), Stats., as identified by the department, or to the duly authorized representative of the personal representative or that beneficiary;

Note: The definition of “beneficiary” was affected by 2007 Wis. Act 131. The existing administrative rules using that term were reviewed in order to ensure that the use of the term remained logical, correct and consistent with the new definition. While conducting that review, the department located three provisions that needed to be amended: ss. ETF 10.70 (4), 10.70 (5) (b) 1. and 20.04 (2).

This rule (CR 09-057) amends the current rule allowing disclosure of a deceased individual’s confidential personal information to clarify that the persons who may request that information are the personal representative of the estate, the decedent’s beneficiary or a duly authorized representative of either of them.

2. To an insurance carrier or administrator of benefits under ch. 40, Stats., or predecessor as necessary for proper payment of benefits.

(c) To parties determined by the department to have an interest in the designation, when the information is relevant to a pending court action or to a pending appeal under s. 40.03 (1) (j), (6) (i), (7) (f), (8) (f), or 40.80 (2g), Stats.

(d) Nothing in this subsection shall be construed to prohibit the department from communicating with the individual or the individual’s guardian about the individual’s beneficiary designation at the department’s initiative as necessary for the proper administration of the department.

(6) Nothing in this section shall require the department to disclose individual personal information if in the judgement of the department the requestor has not provided adequate evidence of identity or proper authorization to receive the information.

History

• Cr. Register, June, 1983, No. 330, eff. 7-1-83; r. and recr. (5), Register, October, 1992, No. 442, eff. 11-1-92; am. (5) (a) and (b) 1., cr. (5) (d) and (6), Register, January, 1996, No. 481, eff. 2-1-96; correction in (3) (a) made under s. 13.93 (2m) (b) 7., Stats., Register September 2006 No. 609; CR 09-057: am. (4) and (5) (b), 1. Register May 2010 No. 653, eff. 6-1-10; EmR0938: emerg. am. (1), eff. 1-1-10; CR 10-004: am. (1) Register July 2010 No. 655, eff. 8-1-10; CR 16-033: renum. (4) to (4) (intro.), (a), (b), (d), (e) and am., cr. (4) (c) Register April 2017 No. 736, eff. 5-1-17; correction in (4) (intro.) made under s. 35.17, Stats., Register April 2017 No. 736.

Wis. Admin. Code § ETF 10.71 Transcript fees {#sec-etf-10.71 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.71}

(1) The department shall provide a party to an appeal under ch. ETF 11, or a party to department proceedings under s. 227.42, Stats., with a copy of the transcript of any proceedings upon request and payment of a fee. The party shall make the request for the transcript in writing and pay a fee as follows:

(a) For an existing written transcript, a $5.00 flat charge plus $1.00 for each page of the transcript for single copies.

(b) For other electronic record, the reasonable cost of the medium and copying.

(2) One free copy of the transcript shall be provided to any party who establishes to the satisfaction of the department, that the payment of a transcript fee would prove to be an unreasonable financial burden due to the party’s lack of financial resources.

History

• Cr. Register, July, 1977, No. 259, eff. 8-1-77; renum. from ETF 3.02 and am. (1) (intro.) and (2), Register, June, 1983, No. 330, eff. 7-1-83; r. and recr. (1) (intro.), am. (1) (a), cr. (1) (c) to (e), Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (1) (a), r. (1) (b), (c), (d), renum. (1) (e) to be (1) (b) Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 10.72 Fee for search of historical records {#sec-etf-10.72 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.72}

Individuals and employers may be charged an administrative fee of $5.00 for information concerning an account or record which is not readily available and which requires a search of historical records, either within the department or at the state records center. This charge shall not apply for searches required by s. 40.285 (2) (d), Stats.

History

• Cr. Register, April, 1978, No. 268, eff. 5-1-78; renum. from ETF 3.03 am., Register, June, 1983, No. 330, eff. 7-1-83; correction made under s. 13.93 (2m) (b) 7., Stats., Register July 2005 No. 595.

Wis. Admin. Code § ETF 10.75 Power of attorney {#sec-etf-10.75 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.75}

(1) As used in this section, “power of attorney” includes all of the following:

(a) A uniform statutory power of attorney as set forth in s. 244.61, Stats.

(b) A uniform statutory power of attorney as defined under and containing the language required in a uniform statutory power of attorney act enacted by a jurisdiction other than the state of Wisconsin, provided the power of attorney meets the requirements of and does not conflict with s. 244.61, Stats.

(c) A durable power of attorney as defined in s. 244.02 (3), Stats.

(d) A durable power of attorney as defined under and containing the language required in a uniform durable power of attorney act enacted by a jurisdiction other than the state of Wisconsin, provided the power of attorney meets the requirements of and does not conflict with s. 244.02 (3), Stats.

(e) A person’s common law authorization, whether durable or non-durable, to act as the person’s agent under a power of attorney.

(1m)

(a) A power of attorney document signed before September 1, 2010, is presumed to be non-durable unless the power of attorney document specifies that it is durable.

(b) A power of attorney document signed on or after September 1, 2010, is presumed to be durable unless the power of attorney document specifies that it is non-durable.

(2) The department or the Wisconsin deferred compensation program administrator, as applicable, shall accept the agent’s signature in lieu of the principal’s signature for all transactions for which the department or the Wisconsin deferred compensation program administrator requires the principal’s signature, provided that all of the following conditions are met:

(a) The department or the Wisconsin deferred compensation program administrator, as applicable, received either the original of the power of attorney which is dated and signed by the person granting the power of attorney, or a legible facsimile copy or e-mail attachment, subject to s. ETF 10.82. The department or the Wisconsin deferred compensation program administrator, as applicable, may require additional documentation deemed necessary to verify that the power of attorney remains in effect.

(b) The appointment under power of attorney has not terminated or expired.

(c) The powers delegated under the power of attorney include authority to make the transaction authorized by the agent.

(d) If requested by the department or the Wisconsin deferred compensation program administrator, the agent certifies that he or she does not have knowledge of the termination of the appointment, the principal’s death, or if applicable, the principal’s incapacitation. If the department or the Wisconsin deferred compensation program administrator requests such certification, and the agent does not provide the certification as requested, the department or the Wisconsin deferred compensation program administrator may decline to act upon the request.

(e) If the power of attorney is conditioned on the incapacitation of the principal, upon request of the department or the Wisconsin deferred compensation program administrator the agent provides evidence satisfactory to the department or the Wisconsin deferred compensation program administrator that the principal has become incapacitated. In this paragraph, “incapacity” has the meaning given in s. 244.02 (7), Stats.

(f) Subject to par. (c), the department and the Wisconsin deferred compensation program administrator, as applicable, shall treat as valid any beneficiary designation received prior to the principal’s death that is signed by the agent, without regard to the date on which the power of attorney was executed by the principal or the date on which the department or the Wisconsin deferred compensation program administrator receives the beneficiary designation form, provided that the agent signed the beneficiary designation on or after the date on which the principal executed the power of attorney granting that authority to the agent.

(3)

(a) The department or the Wisconsin deferred compensation program administrator, as applicable, shall review acknowledged power of attorney documents for technical completeness, and will reject any that are technically deficient within 10 days after receipt by the department.

(b) The department and the Wisconsin deferred compensation program administrator, as applicable, shall not honor transaction requests by the agent for which the power of attorney document does not grant authority to the agent, regardless of whether the agent’s request is rejected within 10 days after the department received the agent’s request.

(c) The effective dates of certain transactions are based on the receipt date of either the transaction request or certain documents, such as a benefit application. If the department receives such a transaction request from the agent, but either has not received the power of attorney or the department requests certification under sub. (2) (d), the department must receive the requested certification or the power of attorney within 30 days after the department’s notification to the agent that the power of attorney or certification is required. If the department receives the certification or power of attorney within 30 days, the effective date of the transaction requested will be based on the original date on which the department received the transaction request.

(d) Paragraph (c) shall not apply if the principal executed the power of attorney after the date on which the department received the transaction request.

(e) A document signed by the agent prior to the date on which the power of attorney becomes effective shall have no force or effect.

(4)

(a) If the principal has granted joint power of attorney to co-agents, the department or the Wisconsin deferred compensation program administrator, as applicable, shall require the signature of each agent on any transaction that requires the principal’s signature.

(b) If the principal has granted separate power of attorney to more than one agent, each with independent authority, the department and the Wisconsin deferred compensation program administrator, as applicable, shall honor transaction requests signed by any single agent, subject to sub. (2) (c).

(c) If agents under par. (b) request to execute conflicting transactions, the department or the Wisconsin deferred compensation program administrator, as applicable, may decline to act upon the requests of one or more of the agents if it is determined to be in the best interests of the principal.

(5) The department or the Wisconsin deferred compensation program administrator, as applicable, may decline to act upon the request of an agent acting under an alleged power of attorney if there is reason to believe that the purported agent is not the appointed person, the appointment is not in effect, the authority of the power of attorney does not extend to the particular transaction, or the power of attorney is otherwise defective.

(6)

(a) Unless otherwise specified in the power of attorney, if the agent is the principal’s spouse or domestic partner as defined in s. 770.01 (1), Stats., the power of attorney terminates if an action is filed for the dissolution of the agent’s marriage to the principal or the domestic partnership of the principal and agent is terminated.

(b) Unless otherwise specified in the power of attorney, if the agent is the principal’s domestic partner as defined in s. 40.02 (21c), Stats., the power of attorney does not automatically terminate if only the domestic partnership as defined in s. 40.02 (21d), Stats., terminates.

History

• Cr. Register, September, 1986, No. 369, eff. 10-1-86; r. and recr. Register, December, 1996, No. 492, eff. 1-1-97; CR 04-104: am. (2) (a) Register July 2005 No. 595, eff. 8-1-05; CR 10-138: r. and recr. Register August 2011 No. 668, eff. 9-1-11; CR 23-023: am. (2) (e) Register May 2024 No. 821, eff. 6-1-24; correction in (2) (e) made under s. 35.17, Stats., Register May 2024 No. 821.

Wis. Admin. Code § ETF 10.78 Guardianship requirements {#sec-etf-10.78 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.78}

(1) When the amount of a single sum benefit payment to a minor, as defined under s. 54.01 (20), Stats., or incompetent, as described in s. 54.10 (3), Stats., exceeds $5,000, or when an annuity or disability annuity is payable, payment shall be made by the department to the court appointed guardian, for the benefit of the minor or incompetent, upon receipt of a certified copy of the letters of appointment. Letters of appointment shall be certified within the past 6 months. If the minor is married and has not been adjudged to be incompetent, the department shall make the payment to the minor.

(2) If a guardianship is identified prior to payment, payment shall be made to the guardian, for the benefit of the minor or incompetent, upon receipt of a certified copy of the letters of appointment.

(3) If there is a guardian of the estate and another guardian of the person, payment shall be made to the guardian of the estate.

History

• Cr. Register, September, 1986, No. 369, eff. 10-1-86; corrections in (1) made under s. 13.93 (2m) (b) 7., Stats., Register September 2006 No. 609; EmR0938: emerg. r. (2), eff. 1-1-10; CR 10-004: r. (2) Register July 2010 No. 655, eff. 8-1-10; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register July 2010 No. 655; CR 11-040: am. (1), renum. (3), (4) to be (2), (3) Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 10.79 Reasonable efforts to locate benefit payees {#sec-etf-10.79 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.79}

(1) The department shall make reasonable efforts to maintain current addresses on file for participants, other than for participating employees under s. 40.02 (46), Stats., alternate payees, beneficiaries or other potential benefit recipients. These efforts shall include, but shall not be limited to, the following:

(a) Require participating employers to report a current address for all terminating participants.

(b) Request social security numbers and addresses for all named beneficiaries on the departmental beneficiary designation form.

(c) Initiate a minimum of one written contact per year to alternate payees and participants, other than participating employees and annuitants, which may be accomplished by sending those persons an annual statement of account or benefit statement.

(d) Publish an article annually in the departmental participant newsletter communicating the importance of notifying the department of address changes.

(2) Before considering a benefit abandoned under s. 40.08 (8), Stats., the department shall make reasonable efforts to locate participants, alternate payees and beneficiaries except those persons whose accounts meet the conditions specified in s. 40.08 (8) (f), Stats. Reasonable efforts to locate potential benefit payees may include, but are not limited to:

(a) Seek current address information for potential benefit payees through locator services available from the social security administration, internal revenue service or other federal or state agencies.

(b) Seek current address information for potential benefit payees through private company data bases or locator services.

(c) Publish the names of potential benefit payees in the official state newspaper with instructions for contacting the department for application information. This paragraph shall not apply to accounts that meet the conditions specified in s. 40.08 (8) (f), Stats.

History

• Cr. Register, June, 1998, No. 510, eff. 7-1-98.

Wis. Admin. Code § ETF 10.82 Receipt by the department {#sec-etf-10.82 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.82}

(1) Date of receipt or filing; nonbusiness hours and holidays excluded.

(a) Except as otherwise specifically provided in par. (am) for a facsimile or electronic mail, the date a document is received by, or filed with, the department is the date the original document is physically received at the department at its offices during regular business hours as provided under s. 230.35 (4) (f), Stats., regardless of the date the document was mailed or otherwise intended to be transmitted to the department and regardless of any mishandling or misdirection by the U.S. postal service or any other agency or person. A document which arrives at the department’s offices after 4:30 p.m. Monday through Friday or on a Saturday, Sunday or holiday as defined by s. 230.35 (4) (a), Stats., is deemed received by the department at 7:45 a.m. on the next day on which the department’s offices are regularly open for business as provided under s. 230.35 (4) (f), Stats.

(am) Unless otherwise provided in sub. (2), a fax or e-mail to which sub. (2) applies is received by the department, regardless of whether any individual is aware of its receipt, when it enters the information processing system designated or used by the department for the purpose of receiving facsimiles or electronic mail, respectively, provided the following are true:

1. The fax or e-mail transmission is in a form capable of being processed by department’s information processing system.

2. The department is able to retrieve the fax or e-mail from the information processing system.

(b) No department employee may affix a date stamp to a document received by the department which indicates a date received in conflict with par. (a).

Note: This paragraph does not prohibit a department employee from making a note attached to or on the document, separate from the official receipt stamp, concerning the circumstances under which the document arrived at the department, including dates or times.

(c) A document bearing the department’s date stamp indicating receipt is conclusively presumed for all purposes associated with benefits under ch. 40, Stats., to have been received by the department on the date indicated by the stamp. This presumption may be rebutted only by clear and convincing evidence that the document was received by or filed with the department, as provided in par. (a), on a different date than shown by the official date stamp. The department may correct a date stamp the secretary determines was affixed in violation of par. (b).

(2) Receipt of electronic correspondence; facsimiles and electronic mail.

(a) Electronic correspondence may be accepted. The department may accept correspondence transmitted to the department by fax or by e-mail, including letters, messages, and documents associated with payment or administration of, or eligibility for, benefits under ch. 40, Stats., and including authorizations to disclose confidential personal information, applications for benefits, beneficiary designations and elections to participate or terminate participation in the variable retirement investment trust.

Note 1: The purpose of this subsection is to allow persons corresponding with the department to utilize the speed, convenience and other legitimate advantages of electronic communications in transactions with the department. It is the purpose of this subsection to permit persons with access to fax or e-mail to carry out transactions only to the same extent and with the same results as for transactions by non-electronic means, except for the expanded time of receipt provided by sub. (1) (am).

Note 2: It is recognized that under this subsection and because of the inherent nature of electronic communications that the department may at times accept and act upon fax or e-mail correspondence without ever receiving a holographic document or signature. The department may reasonably rely on representations made in correspondence to the department in any form. The department is not required to use different or extraordinary care before accepting or acting upon correspondence received by fax or e-mail.

Note 3: Under s. 943.395 (1) (c), Stats., it is prohibited to present or cause to be presented a false or fraudulent claim or benefit application, or any false or fraudulent proof in support of such a claim or benefit application, or false or fraudulent information which would affect a future claim or benefit application, to be paid under any employee benefit program created by ch. 40, Stats. Criminal penalties are provided for violation of this prohibition.

(b) Rejection and non-receipt.

1. The department may, at its sole discretion and in whole or in part, treat as never received or formally reject any fax or e-mail unless the department is satisfied that the transmission is complete, duly authorized by the proper person, authentic and is not likely to result in any payment of benefits through fraud, misrepresentation or error. To the extent that the correspondence consists of a purported copy of a document, the department may reject a fax or e-mail or treat it as never received unless satisfied that the transmission is an accurate copy.

2. Examples of circumstances under which a transmission may be rejected or treated as if never received include the following:

a. The transmission as received is illegible, in whole or part.

b. The transmission is, or appears to be, incomplete or interrupted.

c. The transmission was not received on a fax machine or e-mail server, for fax and e-mail correspondence respectively, used by the department.

d. There is no separate fax cover sheet or similar information accompanying the transmission which provides the sender’s name, mailing address, and telephone number, as well as the fax number or e-mail address from which the transmission was sent.

e. The department is unable to determine to its satisfaction the identity of the sender from the information transmitted.

f. The department is unable to determine from the transmitted information to whom or to what transaction the transmission pertains.

Note: Records in the department pertaining to participants, alternate payees and insured persons are filed by Social Security Number, member identification number and name. Records pertaining to beneficiaries of deceased participants are filed with the deceased participant’s records, identified by the decedent’s name, Social Security Number and member identification number, as well as the name and Social Security Number of the beneficiary.

g. A reasonable doubt exists that a fax or e-mail or e-mail attachment is a true copy of the document of which it purports to represent, as determined by the department.

h. The authenticity of an underlying document is not established to the satisfaction of the department.

i. With respect to a benefit application form, waiver of benefits, beneficiary designation, election concerning the variable retirement investment trust or other document affecting entitlement to or payment of benefits, it is not established to the satisfaction of the department that the sender of the transmission was the living person whose benefits are affected, a person duly authorized to act on that person’s behalf, such as a guardian of the estate or attorney-in-fact, or the trustee of a trust or personal representative of an estate entitled to receive death benefits.

j. The document is received after the deadline for receipt by, or filing with, the department.

Example: Annuity applications or beneficiary designations received after the death of the participant are never accepted.

(c) Department may request additional information. Before agreeing to acknowledge, accept, file, formally receive or act upon correspondence transmitted by fax or e-mail, the department may request additional information, including but not limited to the original document or other supporting representations and documentation, as necessary to establish to the department’s satisfaction that the transmitted correspondence is authentic, offered by the proper person and, if the correspondence includes or consists of a copy of a document, that the transmission is a true and authentic copy.

(d) No presumptions as to receipt. Any attempt to file documents with the department by facsimile or electronic mail is entirely at the risk of the person transmitting the facsimile or electronic mail to the department. Transmission does not create a presumption of actual receipt by the department. Dates and times inserted into a fax or e-mail by a sending machine do not establish when, or if, correspondence was received by the department. Mere acknowledgement that a transmission was received does not establish that the transmission was complete, was accepted or that the content sent corresponds to the content received.

Note: Silence by the department does not indicate receipt or acceptance. If verification of receipt is important to the sender, the sender should seek and obtain verification from the department division, bureau or staff actually responsible for processing the transaction in question.

(e) Agents and third-party administrators not affected. This subsection does not require a third party administrator or agent under contract to any board to administer a benefit program supervised by that board to accept correspondence or documents by fax or e-mail. Neither does this rule prohibit such an agent or third party administrator from doing so, provided security, privacy, authenticity and accuracy concerns are adequately addressed.

(f) Specific documents excluded. The department may not accept or rely on electronic copies of certain documents, as follows:

1. The text includes words to the effect that a copy may not be relied upon to the same extent as the original.

2. The document is a record, or is offered to the department as necessary evidence, of the execution of a will or the creation of a testamentary trust.

(g) Requirement to be in writing. If a provision of ch. 40, Stats. or a rule adopted under ch. 40, Stats., requires a document offered to the department to be in writing, then the department may deem an e-mail or fax to satisfy that requirement.

(h) Signature requirement. If a provision of ch. 40, Stats., or a rule adopted under ch. 40, Stats., requires a signature, then the department may deem a signature transmitted by fax or incorporated in an e-mail, including any electronic sound, symbol or process attached to or logically associated with the e-mail and executed, adopted, or affixed by a person with the intent to sign the e-mail, to satisfy that requirement.

History

• Cr. Register, December, 1994, No. 468, eff. 1-1-95; am. (2) (b) 27., 28. and 29., Register, January, 1996, No. 481, eff. 2-1-96; CR 02-126: am. (2) (b) 5. Register April 2003 No. 568, eff. 5-1-03; CR 04-104: am. (1) (a), cr. (1) (am), r. and recr. (2) Register July 2005 No. 595, eff. 8-1-05; correction in (2) (f) 2. a. made under s. 13.93 (2m) (b) 7., Stats., Register September 2006 No. 609; CR 19-126: am. (2) (f) 1. b., r. (2) (f) 1. c., 2. Register May 2021 No. 785, eff. 6-1-21; CR 23-023: renum. (2) (f) 1. to (2) (f), r. (2) (f) 3. Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 10.84 Response to requests {#sec-etf-10.84 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.84}

(1) The department shall generally attempt to respond to requests to provide documents such as informational brochures, blank forms and annuity or disability estimates in the order in which such requests are received by the department.

(2) When the department responds to a request for information, forms, estimates or similar documents, if the requestor is not actually available in the department’s offices for delivery by hand, the method of transmission of requested documents to the requestor shall be through the U.S. mail, by e-mail, by facsimile, or through the requestor’s participating employer, if any, at the discretion of the department.

History

• Cr. Register, December, 1994, No. 468, eff. 1-1-95; CR 11-040: am. (2), r. (3) Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 10.85 Prohibited transactions {#sec-etf-10.85 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.85}

Effective January 1, 1989, the department may not engage in a prohibited transaction as defined in section 503 (b) of the internal revenue code.

History

• CR 13-004: cr. Register August 2013 No. 692, eff. 9-1-13.

Wis. Admin. Code § ETF 10.86 Electronic deposits {#sec-etf-10.86 omnilex-key=us-wi-regs-official--agency-etf--ETF 10.86}

Any member, beneficiary, or distributee of any estate receiving benefits payable under any of the benefit plans administered by the department may have the benefits paid via electronic deposit into a financial institution account owned by a representative payee, nursing home, religious order, or other entity designated by the member, beneficiary, or distributee of any estate and approved by the department.

History

• CR 12-054: cr. Register October 2013 No. 694, eff. 11-1-13.

Chapter ETF 11 APPEALS

Wis. Admin. Code § ETF 11.01 Purpose and scope {#sec-etf-11.01 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.01}

(1) The purpose of this chapter is to establish a regular and uniform system of procedures and rules governing the review of appealable department determinations by the board responsible for the subject matter. This chapter interprets the provisions of ss. 227.44 to 227.48, 227.485, 227.49 and 227.50, Stats., concerning the conduct of proceedings, as those provisions apply to the deferred compensation board, group insurance board, teachers retirement board and Wisconsin retirement board and establishes rules for appeals to the employee trust funds board and its designees. Any appeal to a board of a determination made by the department shall be conducted in accordance with this chapter.

(2) The deferred compensation board shall hear the timely appeal of a determination made by the department with respect to a right or benefit under the deferred compensation plan provided by ss. 40.80 to 40.82, Stats. This authority is delegated from the employee trust funds board under s. 40.03 (1) (L), Stats.

(3) The group insurance board shall hear the timely appeal of a determination made by the department affecting any right or benefit under any group insurance plan provided under ch. 40, Stats.

(4) The teachers retirement board shall hear the timely appeal of a determination made by the department regarding a disability annuity for a teachers participant, pursuant to s. 40.63 (5) and (9) (d), Stats.

(5) The Wisconsin retirement board shall hear the timely appeal of a determination made by the department regarding a disability annuity for a participant other than a teacher, in accordance with s. 40.63 (5) and (9) (d), Stats. In addition, the department shall make the initial determination of the amount of a duty disability benefit and whether to terminate or reduce a benefit under s. 40.65 (3) or (5), Stats., and the Wisconsin retirement board shall hear the timely appeal of these determinations.

(6) The employee trust funds board shall hear the timely appeal of any other determination made by the department.

(7) Nothing in this section shall prevent the board responsible for hearing the subject matter of an appeal from delegating that responsibility to a hearing examiner.

Note: See ss. 40.03 (1) (j), (6) (i), (7) (f) and (8) (f), and 40.65 (3) and (5), Stats.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92.

Wis. Admin. Code § ETF 11.02 Definitions {#sec-etf-11.02 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.02}

Words, phrases and terms used in this chapter have the same meanings as set forth in s. 40.02, Stats., and s. ETF 10.01, except as defined in this chapter or where the context clearly indicates a different meaning. In this chapter:

(2) “Administrative agent” means a person who has entered a contract with a board or the department to provide administrative services to a program administered by that board or the department under ch. 40, Stats. The term includes the administrative agent of the group insurance board or department who assists in the administration of a group insurance plan under ch. 40, Stats., for which the public employee trust fund is the insurer.

(3) “Appeal” means the review of a written finding, notification or decision specifically set forth in a determination made by the department conducted by a board under s. 40.03 (1) (j), (6) (i), (7) (f), or (8) (f), Stats.

(3m) “Appeals coordinator” means the department staff responsible for receiving appeals, forwarding appeals to the hearing examiner, and working directly with the hearing examiner and board on administrative matters regarding an appeal.

(4) “Appellant” means the person, including a participant, annuitant, beneficiary, employer, insured, insurer or deferrer who initiates an appeal to the board. “Appellant” also includes a person appealing an adverse determination of participating employee status.

(5) “Board” means the employee trust funds board, deferred compensation board, group insurance board, teachers retirement board or Wisconsin retirement board according to the context of its application.

(6) “Board staff” means the department employees assigned by the secretary to perform tasks in support of the board.

(7) “Deferrer” means an employee who participates in the deferred compensation program under ch. 40, Stats.

(8) “Determination made by the department” means a written finding, notification or decision of the department, which includes a notice of appeal rights and applies law or contract terms to actual facts to determine a benefit, right, obligation or interest under ch. 40, Stats., including contracts authorized by ch. 40, Stats., of a person who is, or claims the status of, a participant, annuitant, beneficiary, employer, insured, insurer or deferrer.

(9) “E-mail” means to send via electronic mail over a computer network.

(10) “Hearing examiner” means the person who presides over each appeal of a determination made by the department of employee trust funds including an administrative law judge employed by the division of hearings and appeals.

(11) “Insured” means a person covered under a group insurance plan provided under ch. 40, Stats.

(12) “Insurer” means the person bearing the financial risk and liability for payment of claims under a group insurance plan provided under ch. 40, Stats., including where applicable the public employee trust fund.

(13) “Mail” means to send via the U.S. mails as at least first class mail, and includes sending by express mail, special or overnight delivery, certified or registered mail.

(14) “Respondent” with respect to an appeal means the department of employee trust funds. In addition:

(a) The employer is a respondent in the appeal of a department determination which was based on the employer’s determination that a person is not a participating employee or protective occupation participant or based on the employer’s certification, or failure to certify, under s. 40.63 (1) (c), Stats.

(b) The insurer and administrative agent are respondents in the appeal of a department determination affecting any right or benefit under any group insurance plan provided under ch. 40, Stats., except that the department shall represent the interests of the public employee trust fund as insurer.

(15) “Substantial interest” means, with respect to an appeal under this chapter, a direct and material interest in the particular determination made by the department, which interest is specially and adversely affected, either by the particular determination itself or by the result sought by the appellant of that determination, beyond the effect common to other similarly situated persons. The term does not include a derivative, indirect or mere nominal interest.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; renum. (1) to be ETF 10.01 (1h), Register, July, 1999, No. 523, eff. 8-1-99; CR 11-040: renum. (9), (10), (11), (12), (13) to be (11), (12), (13), (14), (15), cr. (9), (10) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (3), cr. (3m), am. (8) Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 11.03 Process and proceedings {#sec-etf-11.03 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.03}

(1) Limitations on appeals. In addition to the requirements under sub. (3), the following time limitations apply to appeals:

(a) An appeal seeking correction of an alleged error with respect to service credits or contribution, premium or benefit payments is barred unless commenced within 7 years after the date of the alleged error, except as some other limitation is specifically provided by statute or this chapter. Where an alleged error has been incorporated in department records and relied upon in subsequent administration of ch. 40, Stats., benefits, the date of the alleged error for the purposes of this section and s. 40.08 (10), Stats., is the earliest date on which the aggrieved person discovered, or should reasonably have discovered, the alleged error.

(b) Notwithstanding par. (a), an appeal seeking correction of an alleged error with respect to service credits or contribution, premium or benefit payments, based on a claim of fraud, is barred unless commenced within 3 years from the date of the discovery by the aggrieved person of the facts constituting the fraud.

Note: See ss. 40.08 (10) and 893.93 (1m) (b), Stats.

(c) All other appeals are barred unless commenced within the appropriate statutory limitation period, including but not limited to those provided by ss. 893.43 and 893.93 (1m) (a), Stats.

(d) An appeal barred by operation of s. 41.04 (2) (c), 1979 Stats., or similar predecessor statute, is barred regardless of longer time limits set by s. 40.08 (10), Stats., or this section.

(1m) Limitation on requesting department determination. An employee’s appeal to the department under s. 40.06 (1) (e) 1., Stats., of an employer’s classification, or denial of classification, as a teacher, protective occupation participant, or other classification specified by the department must be made within 90 days after the employer notifies the employee of the classification action, the right to appeal and this time limit. An appeal of a protective occupation participant classification reviewed by the office of state employment relations under s. 40.06 (1) (dm), Stats., must be made to the department within 90 days after the employee is notified by the office of state employment relations of its determination, the right to appeal and this time limit.

(2) Limitations on board remedies. Limitations on the boards’ powers include the following:

(a) The deferred compensation board, group insurance board, teachers retirement board and Wisconsin retirement board have no equity powers. The employee trust funds board has no equity powers, except as provided under s. 40.03 (1) (a), Stats., to correct inequity in the computation of the amount of an annuity or death benefit resulting from a participant’s combination of full-time and part-time service, a change in annual earnings period during the high years of earnings or the previous receipt and termination of an annuity.

(b) In accordance with the limitations on board remedies established by ch. 40, Stats., a right or benefit may not be granted by the board as the result of an appeal unless under the facts proven and the provisions of ch. 40, Stats., and other applicable law, the appellant is eligible for the right or benefit, and meets all qualifications established by statute, administrative rule and any applicable contract authorized by ch. 40, Stats., as of the commencement of the appeal. Erroneous or mistaken advice or negligence in performance of a duty may not be the basis for granting a right or benefit to an appellant under ch. 40, Stats.

(bm) There is no remedy in an appeal before a board based on a theory of undue influence. Regardless of proof offered by an appellant, the board may not change or void any choice, designation, application or other action of a participant, annuitant, beneficiary, insured, or deferrer on the grounds that person was acting under the undue influence of another. Nothing in this paragraph shall be construed to prevent an aggrieved party from bringing an action against the beneficiary of the alleged undue influence in a court of competent jurisdiction and seeking any remedy available under the law.

(c) In an appeal involving a right or benefit under a group insurance plan provided under ch. 40, Stats., the group insurance board may grant the right or benefit claimed, including payment of a claim at issue, only if the public employee trust fund is the insurer. With respect to other insurers, the group insurance board may treat a continued failure of the insurer to grant a right or benefit awarded in the board’s final decision as a breach of the insurer’s contract with the board.

(d) The group insurance board may not hear an appeal of a group health insurance issue involving a group health plan other than the standard plan unless the appeal involves a provision of the contract between the group insurance board and the insurer or a provision of the board’s guidelines for comprehensive medical plans seeking group insurance board approval to participate under the state of Wisconsin group health benefit program. Otherwise, the dispute is directly between the insured and the insurer and does not involve the department or the board.

(e) When the group insurance board has contracted with an insurer other than the public employee trust fund, the board may not hear the appeal of a group insurance issue which the contract reserves to the insurer for determination.

(3) Determination; timely appeal. An appeal is not timely unless the request is received within 90 days of the date a written determination was mailed to the person aggrieved by the department determination. A request which fails to meet this requirement is untimely. An appeal may not be commenced on an untimely request. The department shall notify a person making an untimely appeal request.

(3m) New determination; new time limits. The department may internally review a previous determination made by the department. If the department then issues a new determination that revises the original determination, reaches a different result from the original determination, or relies upon different material facts or law from those stated in the original determination, any person aggrieved by the new determination shall have 90 days from its issuance to request an appeal.

(4) Commencement of appeal. An appeal is commenced upon receipt of a request for review of the department determination provided the request meets the following requirements:

(a) The request is in writing. No appeal may be commenced based upon an oral request. The requestor may, but is not required to, file the request for an appeal by using form ET-4938, “Appeal Form.”

Note: The Appeal Form can be obtained at no charge by writing to: department of employee trust funds, P. O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020. The form also is available on the department’s website: etf.wi.gov.

(b) The request identifies the particular department determination being challenged and the factual and legal basis for the appeal, including specifically identifying the particular material facts and legal interpretations underlying the department determination which the appellant believes are erroneous. Any question about the sufficiency of the pleading under this paragraph shall be resolved by the hearing examiner at the pre-hearing conference.

(c) The request for an appeal is mailed, sent by e-mail, sent by facsimile, or delivered to the appropriate board in care of the appeals coordinator at the department of employee trust funds by the person requesting the appeal. Appeal requests received which erroneously name a board with respect to a subject matter reviewed by another board shall be redirected to the appropriate board by the appeals coordinator.

(d) The request for an appeal is a timely appeal.

(e) The person requesting the appeal has a substantial interest in the determination made by the department. Any question about the appellant’s interest shall be resolved by the hearing examiner at the earliest opportunity.

(5) Case file. Upon commencement of an appeal, the department shall open a case file for the hearing examiner, consisting of copies of the determination made by the department and the appeal request by the appellant, including any attachments and referenced documents.

(6) Contested case. An appeal to the board shall be treated as a class 3 contested case.

(7) Parties. Only a person with a substantial interest in the particular issue to be decided, as it affects the specific participant, annuitant, beneficiary, employer, insured, insurer or deferrer may be an appellant or a party to the appeal. No person without a substantial interest may be admitted as a party. When an appeal is filed, the department shall notify any respondent or other person known to have a substantial interest directly affected by an issue raised in the appeal, including the following persons:

(a) The department shall be a party to each appeal of a determination made by the department.

(b) In an appeal concerning a participant’s or annuitant’s death benefits, the interested parties include any beneficiary with a direct interest in the death benefits not yet paid by the department or insurer as they may be calculated or distributed as a result of either the department determination or the board’s final decision on the issues raised by the appeal.

(c) In an appeal concerning disability benefits under s. 40.63, Stats., or the determination of participating employee or protective occupation participant status, the interested parties include the participant, or the appellant claiming the status of participating employee, and the employer. The office of state employment relations is deemed to be the employer if the appeal involves a state employee claiming the status of a protective occupation participant.

Note: See s. 40.06 (1) (dm), Stats.

(d) In an appeal concerning a program in which an administrative agent is involved, the administrative agent may participate as a party.

(e) In an appeal of a group health insurance determination, the insurer is an interested party.

(8) Burden of proof. The appellant shall have the burden of proceeding and the burden of proving each element necessary to establish that the appellant is entitled to, and has fully qualified for, the claimed right or benefit provided by ch. 40, Stats.

(9) Agent for a party. Any party may appear in person or by an attorney or agent provided the following requirements are met:

(a) Any person who appears as an agent for a party, other than the registered agent of a participating employer or an attorney, shall obtain and file with the department an original power-of-attorney signed by the party authorizing the agent, as attorney-in-fact, to act in all matters involving the appeal with the same authority and effect as the party personally. The person officially designated by a participating employer as its registered agent to represent the employer to the Wisconsin retirement system is deemed to have full authority to act for the participating employer regarding the appeal.

(b) Any party represented by an attorney or agent, other than the department or the participating employer, shall file a written authorization in the form prescribed by the department for the disclosure of confidential personal information to the agent or attorney, to the same extent as is authorized to the party under s. 40.07, Stats., and s. ETF 10.70. The authorization shall be part of the appropriate participant file.

Note: The “Limited Power-Of-Attorney For Appeal” form, ET-4944, “Authorization To Disclose Non-Medical Individual Personal Information” form, ET-7406, and “Authorization To Disclose Medical Information” form, ET-7414, required by ch. ETF 11 may be obtained at no charge by writing to: department of employee trust funds, P. O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020. The forms also are available on the department’s website: etf.wi.gov.

(10) Notice. Notice of any hearing or pre-hearing conference shall be mailed to each party, or the party’s attorney of record, at least 10 days prior to the hearing or conference, respectively. The notice shall include:

(a) The time, place and nature of the hearing or conference, including a statement that the case is class 3 contested case proceeding.

(b) A statement of the legal authority and jurisdiction for the hearing.

(c) A short and plain statement of the matters asserted. If specificity is not possible when notice is served, the notice may state issues involved.

(11) Pre-hearing conference. The hearing examiner shall hold a pre-hearing conference for the purpose of determining the proper parties, defining the issues to be resolved, identifying the material factual and legal disputes between the parties, setting a deadline for the parties to reach agreement on a stipulation of facts or advising the examiner that they are unable to do so, and setting the date for the evidentiary hearing. The pre-hearing conference may be held by telephone with the call initiated by the hearing examiner. Following the pre-hearing conference, the hearing examiner shall prepare a memorandum to the parties summarizing the actions taken, amendments allowed to the pleading, recording agreements of the parties, specifying the issues to which the hearing is limited and making appropriate orders to the parties. This memorandum shall control the subsequent course of the appeal, unless modified at the hearing to prevent manifest injustice.

(12) Witness attendance; subpoena. Upon receipt of the notice of hearing, it is the responsibility of each party to contact any witnesses necessary for that party’s case and to make arrangements to have them attend the hearing. The hearing examiner or a party’s attorney of record may issue a subpoena to compel attendance of witness or production of evidence at hearing or at a deposition authorized under this chapter. Where a party is represented by an agent, rather than an attorney at law, the party shall request the hearing examiner to issue the subpoena. Witness fees shall be paid in advance as provided under s. 885.06, Stats., except witnesses for a state agency shall be paid in the manner provided by s. 885.07, Stats.

(13) Extension of time and postponement. Requests for postponements and continuances shall be considered by the hearing examiner only if received within a reasonable time before the date of the hearing. Postponements and continuances may be granted by the hearing examiner due to extraordinary circumstances and a postponement, continuance or extension of time may be granted upon the mutual agreement of all the parties.

(14) Hearing location. The evidentiary hearing shall be held at the offices of the hearing examiner except as may otherwise be necessary for the convenience of all parties to the appeal.

(15) Expedited appeal process. Requests for an expedited appeal process shall be considered by the hearing examiner upon receipt of a written request from a party to the appeal. The hearing examiner shall allow for written objections to be filed within ten days of the date that notice is sent to the parties that such a request has been received. Upon receipt of such a request, the hearing examiner shall schedule a pre-hearing conference for the specific purpose of discussing with the parties the reasons for the request, any objections, and a possible procedure for expediting the time period for issuing a final decision in the appeal. The hearing examiner may grant a request for an expedited appeal process based on financial hardship or other extraordinary circumstances demonstrated by a party. Following the pre-hearing conference, the hearing examiner shall prepare a memorandum to the parties summarizing the expedited process to which the parties have agreed and the hearing examiner has approved. If the parties did not reach an agreement during the pre-hearing conference, the hearing examiner may issue an order either approving or denying the request for an expedited appeal.

(16) Decision without holding a hearing. The parties may agree to have the appeal decided without holding an evidentiary hearing and on the basis of filing legal briefs with the hearing examiner. If there is such an agreement, the parties shall inform the hearing examiner in writing. Upon submission of the legal briefs by the parties, the hearing examiner shall prepare a proposed decision in the manner set forth in s. ETF 11.09.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (4) (a), (b), (c) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2) (b), (3m), (4) (b), (8), (11), cr. (14) to (16) Register July 2012 No. 679, eff. 8-1-12; correction in (1) (c) made under s. 13.92 (4) (b) 7., Stats., Register November 2018 No. 755; CR 19-126: am. (1) (b) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 11.04 Hearing examiner {#sec-etf-11.04 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.04}

(1) Examiner to hear appeal. A hearing examiner shall preside over each appeal to the board.

(2) Qualifications. The department shall contract with a person to serve as a hearing examiner. The person shall be an attorney or administrative law judge knowledgeable in administrative law practice and ch. 40, Stats., or similar statutory benefit programs, or a person deemed otherwise qualified by the board. No person who directly participated in making the determination appealed from may be designated or serve as hearing examiner.

(3) Impartiality. The hearing examiner shall perform all functions in an impartial manner. An examiner shall disqualify himself or herself with respect to a particular appeal if by reason of personal interest in, or knowledge of the determination appealed from, he or she is unable to act fairly or impartially. If bias of the hearing examiner is raised as an issue, the hearing examiner shall determine that issue as part of the appeal. The board shall appoint or contract with another hearing examiner if the original hearing examiner is disqualified.

(4) Powers. In addition to other powers expressly granted or delegated to the hearing examiner by this chapter, the hearing examiner may:

(a) Administer oaths.

(b) Issue, quash and enforce subpoenas.

(c) Rule on offers of proof and receive relevant evidence at hearing.

(d) Take a deposition authorized by this chapter.

(e) Dispose of procedural requests or similar matters.

(f) Limit testimony to only those matters which are disputed.

(g) Rule on all objections and motions made prior to issuance of the proposed decision.

(h) Require briefs.

(5) Duties. The hearing examiner shall have the following duties:

(a) The hearing examiner shall conduct the hearing, and any pre-hearing conference.

(b) For purposes of proceeding to a hearing, the hearing examiner shall determine the parties having a substantial interest in the appeal. The hearing examiner shall exclude as a party any person not having a substantial interest in the issues raised.

(c) When authorized by this chapter or by motion of the board, the hearing examiner shall prepare the final decision in the form required by this chapter.

(d) Except when authorized to make the final decision of an appeal, the hearing examiner shall prepare a proposed decision for the consideration of the board.

(e) A hearing examiner who receives an ex parte communication, other than a communication described in s. 227.50 (1) (a) 1m. and (1) (am) 1. through 3., Stats., shall make a record of the violation, and notify all parties.

(6) Mailing address.

(a) The hearing examiner’s mailing address, unless otherwise specified by the hearing examiner is:

(b) A party sending any communication or document to the hearing examiner by mail, e-mail, or facsimile shall also provide a copy to each party, including the department. This requirement does not pertain to the appeals coordinator when submitting documents for the hearing examiner’s signature for subsequent mailing to all parties.

(7) Final decision-making authority. The hearing examiner shall make the final decision of the board only if authority to make the final decision is expressly delegated to the examiner in this chapter or if final decision making authority in a particular appeal is granted in a motion adopted by the board.

(8) Examiner’s file. In the course of presiding over the appeal, the hearing examiner shall maintain the official record of the appeal, as well as filing correspondence to the examiner relating directly to the appeal but not part of the record. The hearing examiner may delegate some or all of this responsibility to the appeals coordinator. After preparing the final or proposed decision, the hearing examiner shall forward the record and hearing examiner’s file to the appeals coordinator for the department. The examiner’s personal notes shall not be forwarded to the department and are not part of the official record. Disposition of the examiner’s personal notes is at his or her discretion.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (6) (b) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2), (8) Register July 2012 No. 679, eff. 8-1-12; CR 14-055: am. (5) (e) Register May 2015 No. 713, eff. 6-1-15; CR 19-126: am. (6) (b), (8) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 11.05 Discovery {#sec-etf-11.05 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.05}

There is no right to take and preserve evidence prior to the hearing, except as provided in this section.

(1) No party to an appeal shall have access to individual personal information in the records of the department except as expressly authorized under s. 40.07, Stats., and this section.

(2) In an appeal of the denial of an application for a disability annuity or duty disability benefits under s. 40.63 (5) or (9) (d) or 40.65 (2) (b) 3., Stats., the department may provide the hearing examiner, employer, participant and any other party to the appeal with copies of any physician certifications under s. 40.63 (1) (d) or 40.65 (2) (b) 2., Stats., received in connection with the application.

(3) The department may disclose to the board’s hearing examiner individual personal information it deems both relevant to the appeal and required to be disclosed for the proper administration of a benefit program under ch. 40, Stats. Any information disclosed by the department under this subsection shall also be provided to the parties to the appeal. A person receiving information under this subsection shall maintain the confidentiality of the information.

(4) A party to the appeal may request that the hearing examiner review individual personal information in the records of the department in camera. If the hearing examiner determines that the information is relevant to the appeal and disclosure is required to assure proper administration of a benefit program under ch. 40, Stats., the examiner may order the department to disclose the information as provided in sub. (3).

(5) Testimony may be taken and preserved of a witness:

(a) Who is beyond the reach of the subpoena of the agency, any other party, or the hearing examiner;

(b) Who is about to go out of the state, not intending to return in time for the hearing;

(c) Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing; or,

(d) Who is a member of the legislature, if any committee of the legislature or the house of which the witness is a member is in session, provided the witness waives his or her privilege.

Note: See s. 227.45 (7), Stats.

(6) A party may make a request for admissions as provided in s. 804.11, Stats.

(7) By advance written agreement between all parties, the oral or written deposition of a witness, as described by ss. 804.05 and 804.06, Stats., may be taken and used at the hearing in its entirety, so far as it is admissible under this chapter, as if the witness were then present and testifying.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (2), (5) (a) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (4), (7) Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 11.06 Evidence at hearing {#sec-etf-11.06 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.06}

(1) Privileges; rules of evidence. Rules of privilege recognized by law shall be given effect. However, common law or statutory rules of evidence do not apply except as provided in s. ETF 11.12 (2) (b) concerning hearsay. The hearing examiner shall admit all testimony having a reasonable probative value. The hearing examiner shall exclude from the record irrelevant, immaterial, or unduly repetitious testimony.

(2) Objections. Failure of a party to object on the record to admission of any evidence shall be deemed a waiver of that objection.

(4) Presumptions. In addition to any other presumptions under applicable law:

(a) A signature purporting to be that of a participant, annuitant, named survivor, or beneficiary on a document previously accepted and filed by the department is presumed to be that of the participant, annuitant, named survivor, or beneficiary absent clear and convincing proof to the contrary.

(b) A participant, annuitant, named survivor, beneficiary, insured or deferrer is presumed mentally competent at the time of making any application, election, designation or taking any other action affecting rights or benefits under ch. 40, Stats., accepted and acted upon by the department, whether affecting only the person or others. This presumption may be rebutted only by proof in the form of a certified copy of the judgment showing that, at the time of the event at issue, the person was adjudged incompetent with respect to management of his or her property.

(c) For the purpose of determining timeliness of an appeal request, notice of the department determination is conclusively presumed to have been given to the addressee and all listed recipients of copies on the date the determination was sent by mail or e-mail. Absent clear and convincing proof to the contrary, the day the determination is dated is presumed to be the date the determination was sent by mail or e-mail. Absent clear and convincing proof to the contrary, a request for an appeal is presumed received on the day stated by the date stamp affixed to incoming department correspondence. If the request for an appeal is made by e-mail, the request is presumed to be received by the department on the date the e-mail enters the information processing system designated or used by the department for the purpose of receiving electronic mail provided the following are true:

1. The e-mail transmission is in a form capable of being processed by the department’s information processing system.

2. The department is able to retrieve the e-mail from the information processing system.

(5) Official notice. The hearing examiner shall take notice of all rules published in the Wisconsin administrative code or register and the written opinions of the attorney general. The hearing examiner may take official notice of any generally recognized fact or established technical or scientific fact, provided the parties are notified of the facts to be noticed and given opportunity to contest their validity.

(6) Department records. No additional identification or evidence of authenticity, beyond a statement or certification from a custodian or deputy custodian, is required as a pre-requisite for admitting into evidence documents or photocopies of documents from the department record of a particular participating employer, participant or annuitant, including beneficiary claim documents. When a photocopy of a departmental record is offered under this subsection, any party shall be permitted, upon request, to compare the photocopy and the original.

(7) Close of hearing and evidence. Evidence in any appeal shall be closed when due opportunity to furnish relevant evidence, including proper examination of witnesses and rebuttal, has been afforded to all parties. If by stipulation of the parties or direction of the examiner, documentary evidence is introduced after close of testimony, the evidence is closed when the document is received or when the specified time for furnishing it has expired without it being submitted. The examiner may extend the original time limit for filing documentary evidence. Before the examiner makes a proposed or final decision, the examiner may reopen the hearing for the taking of further evidence.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-066: am. (1), Register March 2008 No. 627, eff. 4-1-08; CR 11-040: am. (4) (c) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: r. (3), am. (4) (a), (b) Register May 2021 No. 785, eff. 6-1-21; correction in (4) (a) made under s. 35.17, Stats., Register May 2021 No. 785.

Wis. Admin. Code § ETF 11.07 Informal disposition {#sec-etf-11.07 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.07}

(1) Disposition of an appeal under this section requires no further action by the hearing examiner or board. After the parties have informed the hearing examiner in writing that the appeal has been disposed of informally pursuant to this section, the hearing examiner shall forward the record to the appeals coordinator.

(2) An appeal may be resolved informally by an agreement between all parties to dismiss the appeal with or without prejudice. The department shall then make an order dismissing the appeal as agreed, attach it to the agreement and file it with the record.

(3) If the appellant withdraws the appeal, in writing, the appeal shall be immediately dismissed by the department. This dismissal shall be with prejudice if more than 90 days have elapsed from notice of the determination appealed from, or if an applicable time limit or statute of limitations expired while the dismissed appeal was pending.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-044: am. (1) Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 11.08 Final disposition by hearing examiner {#sec-etf-11.08 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.08}

(1) The hearing examiner’s findings, conclusions and order dismissing an appeal as provided in this section shall be the final decision of the board.

(2) The hearing examiner shall prepare and issue a dismissal, in the form and manner required by this chapter for a final decision, under the following circumstances:

(a) If the examiner determines that a party has defaulted, resolving the issues on appeal, or that the appellant has failed to appear or pursue the appeal.

(b) If the examiner determines that the appeal is wholly or partially time-barred for one or more of the following reasons:

1. The appeal was not filed within 90 days after the department determination appealed from was sent by mail or e-mail to the person aggrieved by the determination. The entire appeal shall be dismissed.

2. The issue is the classification of an employee as a protective occupation participant or participating employee and with respect to service rendered more than 7 years prior to the date the appeal is received by the department. Any portion of the appeal not time-barred may proceed. In s. 40.06 (1) (e) 1., Stats., and this subdivision only, “appeal ... received by the department” means the request by the employee to review the employer’s determination, not the challenge to the department’s resulting determination.

3. The appeal concerns a request to correct an alleged error with respect to service credits or contribution, premium or benefit payments and the request was made more than 7 full calendar years after the date of the alleged error or beyond another applicable limitation specifically provided by statute. If the alleged error is the result of fraud the applicable limitation is instead 3 years from the date the aggrieved person discovered the facts constituting the fraud. Any portion of the appeal not time-barred may proceed.

4. The appeal involves a claim barred by s. 41.04 (2) (c), 1979 Stats., or an applicable statute of limitation, including but not limited to ss. 893.43 and 893.93 (1m) (a), Stats. Any portion of the appeal not time-barred may proceed.

(c) The appeal is moot. When an appeal seeks correction of an administrative error, and the department has acknowledged and corrected the error, the appeal, or the appropriate portion of the appeal, is moot. Any portion of the appeal not moot may proceed.

(d) The appellant does not have a substantial interest affected by the determination made by the department.

(e) There is no material issue of fact or law and under the undisputed material facts and law, the appellant is ineligible for the claimed right or benefit or fails to meet all the qualifications for the claimed right or benefit established by statute, administrative rule and applicable contract.

(f) No issue has been identified which can be resolved by the hearing examiner or board under this chapter or ch. 40, Stats.

(g) There is no remaining issue to be decided from the issues that are set forth in the department determination letter.

(3) In addition to final decision-making authority granted by sub. (2), the hearing examiner shall also make the final decision of the board if the issues on appeal are limited to one or more of the following:

(a) The numeric result of a mathematical calculation by the department, not involving any challenge to the application of law in choosing the appropriate values or formulas used to make the calculation.

(b) The amount of a reduction in duty disability benefits under s. 40.65, Stats., resulting from receipt of other benefits.

(c) The appeal of denial of a disability annuity under s. 40.63, Stats., where the sole reason for the department’s denial was that the employer did not certify as provided in s. 40.63 (1) (c), Stats., that the employee’s leave of absence or termination was the result of the disability.

(4) The hearing examiner shall issue the final decision of an appeal if the board has adopted a motion delegating final decision making authority to the hearing examiner for that specific appeal.

(5) The hearing examiner shall not exercise final decision-making authority under sub. (2) (c), (d) or (e), (3) or (4), if the decision necessarily involves the interpretation of a statute, rule or clause of a contract authorized under ch. 40, Stats., which the examiner finds to be ambiguous. The hearing examiner shall prepare a proposed decision and allow the board to make the necessary interpretation.

(5m) The hearing examiner shall issue the final decision of an appeal if each of the parties informs the hearing examiner in writing that they agree to have the appeal decided pursuant to a motion for summary judgment. The motion must be filed with the hearing examiner and include the signatures of the parties.

(6) The hearing examiner may issue a proposed decision if the grant of final authority under this section is not, in the examiner’s opinion, clearly applicable to the particular appeal before the examiner.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (2) (b) 1. Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2) (b) 1., cr. (2) (f), (g), (5m) Register July 2012 No. 679, eff. 8-1-12; correction in (2) (b) 4. made under s. 13.92 (4) (b) 7., Stats., Register November 2018 No. 755; CR 19-126: am. (2) (b) 3. Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 11.09 Proposed decision {#sec-etf-11.09 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.09}

(1) Contents. The proposed decision shall be in the same form and comply with the same standards as is required for a final decision. If the hearing examiner concludes that the decision may depend upon the interpretation of an ambiguous statute, the proposed decision shall include the hearing examiner’s basis for concluding that the statute is ambiguous as a matter of law and a recommended interpretation giving the same weight to the interpretations of the department, attorney general and administrative rules as is required for a final decision. If the proposed decision does not dispose of an issue raised by a party, the hearing examiner shall state in the proposed decision why ch. 40, Stats., or this chapter does not permit such a disposition.

(2) Copy to each party. A copy of the proposed decision shall be mailed to each party or the party’s attorney of record, with notice of the opportunity to file an objection and the manner and time limit for doing so.

(3) Objections. Any party may file a written objection to the proposed decision with the hearing examiner within 20 days of the date of the notice of the proposed decision. The party shall specify, in detail, the following:

(a) Each provision of the proposed decision to which the party objects and the basis for each objection.

(b) Each change the party requests the board to make in the proposed decision and the legal grounds for the change. If minor, the requested change may be described as a specific edit to the proposed decision. If extensive or major changes are requested, the party may attach a draft proposed decision, clearly marked as that party’s draft, to that party’s objections.

(c) Any written objections to the proposed decision shall be included in the record of the appeal that is forwarded to the board.

Note: The written objection shall be filed with the division of hearings and appeals at the following address: 5005 University Avenue Suite 201, P.O. Box 7875, Madison, WI 53707-7875.

(4) Argument. A party filing objections to a proposed decision shall attach to the objections a written copy of any argument by the party in support of the objections. The board shall consider only written arguments, timely filed with the objection. The board shall not entertain oral argument.

(5) Agenda. Board staff shall place the appeal on the agenda for the regular board meeting next following the expiration of the time limit for filing objections. The appeals coordinator shall provide each board member with a copy of the record, including the proposed decision and the timely filed objections to the proposed decision. If board members would have less than 7 calendar days to review the record, proposed decision and timely objections, or the board’s agenda is already full, the appeal may instead be added to the agenda of the subsequent regular board meeting. Nothing in this subsection shall prevent the board from electing to hear an appeal case at a special meeting of the board.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (3) (intro.) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (1), (3) (intro.), cr. (3) (c) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (5) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 11.10 Ex parte communications {#sec-etf-11.10 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.10}

(1) The secretary and department employees may respond to any request made by the board or a board member for information required in the ordinary course of exercising the board’s regulatory and supervisory functions, even if the information requested may pertain to the subject matter of an appeal currently pending before the board or a hearing examiner.

(2) Except as provided in sub. (1), no person involved in an appeal proceeding or factually related matter as a party, an advocate for any party or as a witness may make any ex parte communication relative to the merits of the appeal to the hearing examiner or a board member prior to the final decision of the case.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92.

Wis. Admin. Code § ETF 11.105 Board member conflict of interest {#sec-etf-11.105 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.105}

(1) No board member or employee of the department may participate in any appeal directly related to a specific benefit, credit, claim or application of the person.

(2) No board member may participate in deciding an appeal to which the board member is a party. No board member who is the director of the office of state employment relations, or the director’s designee, may participate in deciding an appeal to which the office of state employment relations is a party. No board member who is the chief executive, chairperson or member of the governing body of a participating employer may participate in deciding an appeal in which that particular participating employer is a party. A board member barred under this subsection from participating in the board’s decision of an appeal shall not make any ex parte communications to the board or another board member concerning that appeal and shall not participate in any way in the board’s quasi-judicial deliberations.

Note: See s. 40.01 (3), Stats.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92.

Wis. Admin. Code § ETF 11.11 Counsel for the board {#sec-etf-11.11 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.11}

(1) In accordance with s. 40.03 (3), Stats., board staff shall arrange for legal counsel to advise the board during its consideration of a final decision.

(2) Any legal counsel asked to represent the board under sub. (1) shall fully disclose any real or apparent conflict of interest to the board chair and state whether counsel is able to render objective advice to the board. The board chair may waive the conflict on behalf of the board.

(3) Counsel appointed under sub. (1) shall provide legal representation to the board including all of the following:

(a) Advising the board during its deliberations and making specific recommendations for action by the board.

(b) Drafting findings of fact and conclusions of law.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 09-047: am. (1) and (2), r. and recr. (3) Register May 2010 No. 653, eff. 6-1-10.

Wis. Admin. Code § ETF 11.12 Final decision {#sec-etf-11.12 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.12}

(1) Form. Final decisions, and proposed decisions to be considered by the board, shall be in writing and include:

(a) Findings of fact, consisting of a concise and separate statement of the ultimate conclusion upon each material issue of fact, without recital of evidence. If the findings of fact do not include an ultimate conclusion on an issue raised by a party, a statement shall be made indicating why ch. 40, Stats., or this chapter do not authorize the hearing examiner to make such a ruling.

(b) Conclusions of law based on the factual findings.

(c) A list of names and addresses of all persons who are considered parties for purposes of judicial review.

(d) An order stating either that the department determination is affirmed or, where the department determination is not affirmed, remanding the matter to the department with instructions to take necessary action on the matter, consistent with the final decision. In the following cases, the decision shall include the specified additional orders and findings:

1. ‘Disability; employer certification.’ Where the appeal is of a determination denying a disability annuity under s. 40.63, Stats., and the sole basis of the denial was the absence of an employer certification that the employee’s leave of absence or termination is the result of the disability, the decision shall include a finding whether the employer’s negative certification or failure to certify was reasonable and correct. If the employer’s action was unreasonable or incorrect, the decision shall include an order to the employer to make the certification and an order to the department to process the disability application when the certification is received.

2. ‘Participating employee; protective occupation.’ Where the issue of the appeal is whether a person is a participating employee or protective occupation participant, an affirmative decision shall include an order to the participating employer to make the necessary report on that person as required by s. 40.06 (1) (e), Stats.

3. ‘Overpayment refund.’ If the final decision concludes that the appellant has overpaid the Wisconsin retirement system and a refund is due, the final decision shall include an order to the appeals coordinator to compute the amount of the refund, as provided in this chapter. That computation shall be incorporated by reference into the final decision and order to the department to pay the refund.

4. ‘Group insurance.’ If the appeal involves a right or benefit under a group insurance plan provided under ch. 40, Stats., and the insurer is not the public employee trust fund, a final decision favorable to the insured shall include the group insurance board decision of whether the insurer’s continued failure to grant the right or benefit to the insured shall be regarded as a breach of the contract between the insurer and the board.

(e) The final decision shall be signed by the board chair or designee.

(2) Standards. Final decisions of the board shall be drafted to meet the following standards:

(a) Findings. Each finding of the final decision shall be based on evidence in the record which proves the findings to a reasonable certainty by the greater weight of the credible evidence, or to a higher standard of proof expressly required by this chapter or other law.

(b) Factual basis. The factual basis of the final decision shall be solely the evidence and matters officially noticed. Hearsay evidence may be relied upon as the basis for factual findings to the same extent permitted in a Wisconsin court of law.

(c) Specific statutory authorization. The final decision may not order or authorize any action solely to further a purpose of the public employee trust fund unless the action is specifically authorized by a provision of ch. 40, Stats., other than s. 40.01 (2), Stats.

(d) Consistent with law. The final decision may not be contrary to law. Where the final decision concerns a benefit program qualifying for tax exempt or tax deferred treatment under federal law, the final decision shall be consistent with the applicable federal code and regulations to the extent necessary to preserve the qualified status of the program.

(3) Interpretation of ambiguous statute. If the final decision necessarily depends on the interpretation of a statute which is ambiguous as a matter of law, the board shall interpret the statute. As soon as possible after a statute is found ambiguous under this subsection, the department shall propose an administrative rule interpreting the ambiguous statute.

(4) Due deference to rule, attorney general opinion. In interpreting a provision of ch. 40, Stats., the board shall give great weight to a written opinion of the attorney general and to the interpretation of the department. The board shall give controlling weight to an administrative rule of the department interpreting the statute.

(5) Closed session deliberations. The board shall meet in closed session, in its quasi-judicial capacity to review the proposed decision of an appeal and take action on the appeal, as follows:

(a) Parties to the appeal and their attorneys of record may not be present during the closed session, except that board staff and advisory staff of the department who were not involved in the proceedings or in making the underlying department determination may be present at the discretion of the board.

(b) Following the closed session on the appeal, the board shall reconvene in open session to briefly summarize the board’s action on the appeal for the minutes. The summary shall, so far as possible, respect the confidentiality of individual personal information.

(c) As an alternative to agreeing upon a final decision to be reduced to writing, the board may order an appeal to be returned to a hearing examiner for additional fact finding.

(6) Variance from proposed decision. The board’s final decision may vary from the proposed decision but, if so, the board’s final decision shall include an explanation of the basis for each variance.

(7) Notice. The appeals coordinator shall mail a copy of the final decision to each party or that party’s attorney of record by first class mail. Each party, or that party’s attorney of record shall also be mailed notice of the right to petition the board for a rehearing, the right to judicial review of an adverse decision, the time limits for filing a petition for rehearing or judicial review and the name of the board to be named as respondent.

(8) Board contact with parties. Unless the board specifically requests information from the parties, no party to an appeal of a determination made by the department may contact any member of the board about that appeal prior to the issuance of a final decision by the board.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-066: am. (2) (b), Register March 2008 No. 627, eff. 4-1-08; CR 11-040: am. (5) (a) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (1) (a), cr. (8) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (1) (d) 3., (7) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 11.13 Record {#sec-etf-11.13 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.13}

(1) The hearing examiner and appeals coordinator shall create a record of each appeal, which shall include all of the following:

(a) All applications, pleading, motions, intermediate rulings and exhibits and appendices.

(b) Evidence received or considered, stipulations and admissions.

(c) Statement of matters officially noticed.

(d) Questions and offers of proof, objections and rulings thereon.

(e) Any proposed findings or decisions and exceptions.

(f) Any decision, opinion or report by the board or hearing examiner.

(g) A record of oral proceedings, whether a stenographic, electronic or other record.

(h) Letters and e-mails sent to the hearing examiner or the board by a party.

(2) The written record shall be maintained as an adjunct to the appropriate participant file, as determined by the department, until a final decision has been rendered and the time limit for all further judicial review has expired without an appeal being filed. Thereafter, only the portions of the record as deemed necessary for the administration of the department shall be retained.

(3) The appeals coordinator shall arrange for a stenographic, electronic or other record of the hearing proceedings to be made. A written transcript of the hearing shall be prepared upon request of a party, the hearing examiner, the board or the department. If a written transcript is prepared, the stenographic, electronic or other record need not be retained.

(4) When no written transcript is prepared, any party to the appeal and, subject to s. 40.07, Stats., any other person may request a copy of the stenographic, electronic or other record of oral proceedings. The department shall provide a copy to authorized recipients and may charge fees as provided in s. ETF 10.71.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-044: cr. (1) (h), am. (3) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (1) (intro.), (3) Register May 2021 No. 785, eff. 6-1-21; correction in (1) (intro.) made under s. 35.17, Stats., Register May 2021 No. 785.

Wis. Admin. Code § ETF 11.14 Petition for rehearing {#sec-etf-11.14 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.14}

(1) Time limits; address. A party aggrieved by the final decision may file a petition for rehearing within 20 days after notice of the final decision is mailed. The petition for rehearing is subject to the following requirements:

(a) The petition shall be mailed to the appropriate board in care of the appeals coordinator, department of employee trust funds. Alternatively, the petition may be personally served on a person designated by the board as its agent to accept personal service.

(b) The petition is deemed filed on the date it is received.

(c) The petition shall be disposed of within 30 days of its filing. The petition is deemed denied if not otherwise disposed of within 30 days of its filing.

(2) Grounds. The board or, when delegated under sub. (4), the hearing examiner may grant a rehearing but only on the basis of one or more of the following:

(a) A material error of law.

(b) A material error of fact.

(c) The discovery of new evidence no later than 20 days after notice of the final decision is mailed that is sufficiently strong to reverse or modify the original decision, which could not have been previously discovered by due diligence.

(3) Contents. The petition for rehearing shall specify, in detail, the grounds for the relief requested, including the specific, material error of fact or law or the newly discovered evidence and cite supporting legal authorities for granting the petition.

Note: The board requests that, whenever possible, a party limit the petition for rehearing to no more than 6 pages. Another party responding for or against the petition is requested, whenever possible, to limit the response to no more than 4 pages.

(4) Decision on petition. The board chair shall determine whether the petition shall be added to the agenda of the next board meeting or whether to delegate final authority to decide the petition to the hearing examiner who presided over the appeal. The parties to the appeal shall immediately be notified of the decision to grant or deny the petition. If the board itself considers and grants the petition, the appeal will be referred to a hearing examiner and proceedings conducted under sub. (6). If the decision is delegated to the hearing examiner:

(a) The appeals coordinator shall immediately forward the petition for rehearing and the record to the hearing examiner, who shall consider and grant or deny the petition within 20 days.

(b) No hearing on the petition is required.

(c) If the hearing examiner grants the rehearing, the examiner shall proceed to rehear the case under sub. (6).

(d) The examiner’s decision to deny the petition is the final decision of the board.

(5) Board motion. The board may order a rehearing on its own motion within 20 days of service of the final order.

(6) Conduct of rehearing. A rehearing, if granted, shall be conducted as soon as practicable.

(a) The proceedings shall conform to those for the original hearing, except as the board or hearing examiner may otherwise direct.

(b) If, after the rehearing, the original decision appears unreasonable or unlawful, the hearing examiner shall prepare for the consideration of the board a proposed decision reversing, changing or modifying the original final decision. The board shall consider the examiner’s proposed decision at a subsequent board meeting and issue a final decision as provided in s. ETF 11.12.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-044: am. (2) (c), (4) (intro.) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (4) (a) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 11.15 Judicial review {#sec-etf-11.15 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.15}

(1) Interested parties. Each person included as a party by the hearing examiner who appeared before the hearing examiner in the proceedings, including the department, may seek judicial review of the final board decision. If, in the opinion of the secretary, the final decision of an appeal results in violation of a fiduciary duty owed to the public employee trust fund, the secretary shall seek judicial review of the board decision.

(2) Respondent for review of Wisconsin retirement board, teachers retirement board, group insurance board or deferred compensation board decision. Unless otherwise expressly provided by statute, final decisions of the Wisconsin retirement board, teachers retirement board, group insurance board and deferred compensation board are subject to judicial review as provided in s. 227.53, Stats., and as follows:

(a) Board is respondent. The petition for review shall name the board as the sole respondent and shall be mailed by certified mail to the respective board or personally served on a person designated by the board to serve as its agent to accept personal service. The petitioner shall also serve copies of the petition for review upon each party to the appeal before the board, or that party’s attorney of record.

(b) Deadlines. The following time limits shall be observed:

1. The petition for review is timely only if filed with the court and served upon the board within 30 days. The 30 day period commences on the day after the earlier of personal service upon the party or mailing of the board’s final decision to all parties. However, if the party has requested a rehearing, the deadline for filing and serving the petition for review is 30 days after the application for rehearing is finally disposed of whether by action of the hearing examiner, board action or operation of law.

2. Within 30 days of instituting review proceedings, the petitioner shall serve a copy of the petition for review upon each party to the appeal before the board, or that party’s attorney of record. The court may dismiss the petition for failure to serve each party listed as a party for purposes of review in the board’s final decision. Service shall be by certified mail or, when service is admitted in writing, by first class mail.

3. Parties to the appeal before the board may participate in the review as provided in s. 227.53, Stats. Within 20 days of being served with the petition for review, a party may serve upon the petitioner, the board and the attorney general a notice of appearance. This notice shall clearly state the person’s position with reference to each material allegation in the petition for review and to the affirmance, vacation or modification of the board decision under review. Proof of service of the notice shall be filed with the clerk of the reviewing court within 10 days after the service.

Note: See s. 227.53, Stats., for details of judicial review proceedings and pleading.

(3) Respondent for review of etf board decision. Final decisions of the employee trust fund board are subject to judicial review only by certiorari. The certiorari petition or complaint shall name the employee trust funds board as the respondent and shall be filed in Dane county, where the board is deemed to reside.

Note: In the absence of a statutory deadline for filing the certiorari petition, see State ex rel Casper v. Board of Trustees, 30 Wis. 2d 170, 140 N.W. 2d 301 (1966) which sets a 6 month deadline.

(4) Agent for service upon board. Except as provided in this subsection, no person or employee of the department is authorized to accept service for the board. From time to time the board may by motion designate a person, either by name or position, as agent to accept personal service for the board. Persons holding the following positions, whose names shall be disclosed by the department upon request, are designated as agents to accept personal service on behalf of the board:

(a) The general counsel of the department.

(b) The division administrator or program director administering the particular program which is the subject matter of the underlying appeal to the board.

(c) The deputy secretary of the department.

(d) The secretary of the department or his or her designees.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 09-048: am. (4) (a), cr. (4) (c), (d) Register May 2010 No. 653.

Wis. Admin. Code § ETF 11.16 Miscellaneous provisions {#sec-etf-11.16 omnilex-key=us-wi-regs-official--agency-etf--ETF 11.16}

(1) Computing time. For the purposes of this chapter, unless otherwise specified, the time in which an action shall be taken when expressed in days shall be computed by excluding the first day and including the last, except that if the last day falls on a day the department offices are closed to the public, the action may be taken on the next day the offices are open.

(2) Computing refund of overpayment. If the final decision of an appeal determines that a participant overpaid the department and is entitled to a refund, the board shall direct the appeals coordinator to calculate the refund due under s. 40.08 (6), Stats. No interest shall be paid upon a refund except as expressly authorized in ch. 40, Stats. A refund from a Wisconsin retirement system account shall not include interest but shall include investment earnings as provided in s. 40.08 (6), Stats. The appeals coordinator’s calculation shall be appended to and become part of the board’s final decision. The appeals coordinator shall do all of the following:

(a) Treat the overpayment as a separate account, participating in the variable and core rate trusts to the same extent as the participant, unless another treatment is expressly provided by ch. 40, Stats.

(b) Make all calculations consistent with the board’s final decision and based on the actual amounts and dates of payments made to the department.

(3) Costs to certain prevailing parties; special circumstances. If the hearing examiner entertains a motion for costs, as provided in s. 227.485, Stats., the examiner shall find that special circumstances exist that make the award of costs against the department unjust in the following cases:

(a) An appeal of the denial of a disability annuity application when the department determination was based on the employer’s negative certification, or failure to certify, under s. 40.63 (1) (c), Stats. This paragraph does not prohibit the award of costs against an employer which is a state agency.

(b) An appeal of a determination that a person was not a participating employee or protective occupation participant if the department determination was in accord with the employer’s determination and the factual information furnished to the department by the employer. This paragraph does not prohibit the award of costs against an employer which is a state agency, or against the office of state employment relations in an appeal of its determination under s. 40.06 (1) (dm), Stats.

(c) An appeal of a determination involving a group health insurance plan other than the standard plan when the department determination was in accord with the insurer’s determination and the information furnished to the department by the insurer.

(4) Department and board mailing address. Mail to a board shall be addressed to the board, in care of the appeals coordinator and mailed or delivered to the department.

Note: The mailing address of the department is: department of employee trust funds, Post Office Box 7931, Madison, Wisconsin 53707-7931.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-062: r. (2) (c) Register June 2008 No. 630, eff. 7-1-08; CR 09-057: am. (2) (a) Register May 2010 No. 653, eff. 6-1-10; CR 11-044: am. (4) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (2) (intro.) Register May 2021 No. 785, eff. 6-1-21.

Chapter ETF 20 WISCONSIN RETIREMENT SYSTEM

Wis. Admin. Code § ETF 20.015 Participating employees {#sec-etf-20.015 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.015}

(1) Participating employees: one-third of full-time employment.

(a) Non-teachers. Except as provided in par. (b) and (c), for purposes of s. 40.22, Stats., 600 hours of employment with an employer in one year is considered one-third of full-time employment.

(b) Teachers. For an employee classified as a teacher under s. 40.02 (55), Stats., for purposes of s. 40.22, Stats., 440 hours of employment with an employer in one year is considered one-third of full-time employment.

(c) Educational support personnel employee. Except as provided in par. (a), for purposes of s. 40.22, Stats., 440 hours of employment with an employer in one year is considered one-third of full-time employment.

(2) Participating employees: two-thirds of full-time employment.

(a) Non-teachers. Except as provided in par. (b) and (c), for purposes of s. 40.22, Stats., 1200 hours of employment with an employer in one year is considered two-thirds of full-time employment.

(b) Teachers. For an employee classified as a teacher under s. 40.02 (55), Stats., for purposes of s. 40.22, Stats., 880 hours of employment with an employer in one year is considered two-thirds of full-time employment.

(c) Educational support personnel employee. Except as provided in par. (a), for purposes of s. 40.22, Stats., 880 hours of employment with an employer in one year is considered two-thirds of full-time employment.

(3) Year. For purposes of this section “year” means 365 consecutive calendar days, or 366 consecutive calendar days if the period measured includes February 29.

History

• Cr. Register, January, 1985, No. 349, eff. 2-1-85; r. and recr. Register, September, 1992, No. 441, eff. 10-1-92; CR 12-054: r. and recr. (title), (1), (2) Register October 2013 No. 694, eff. 11-1-13.

Wis. Admin. Code § ETF 20.016 Student employees {#sec-etf-20.016 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.016}

(1) As provided in s. 40.22 (2) (gm), Stats., a participating employer may not include under the provisions of the Wisconsin retirement system an employee first hired on or after April 23, 1992, if the employee is under the age of 20 and is regularly enrolled or expected to be enrolled as a full-time student in a public, private, or parochial elementary or high school as defined in s. 118.257 (1) (d), Stats.

(2) For purposes of this section, an employee who is not enrolled in school is expected to be regularly enrolled as a full-time student in a school included under s. 118.257 (1) (d), Stats., if all of the following apply:

(a) The employee is under age 20 and has not received a high school diploma or a general equivalency diploma;

(b) The employee was enrolled in a school included under s. 118.257 (1) (d), Stats., during the immediately prior regular semester;

(c) The employee has not notified the employer, as provided in sub. (3) (c), that he or she does not intend to enroll as a full-time student in a school included under s. 118.257 (1) (d), Stats., during the next regular semester.

(3) An employee who is excluded from participation in the Wisconsin retirement system by s. 40.22 (2) (gm), Stats., shall become eligible for participation, subject to s. 40.22 (2) and (2m), Stats., as if he or she had been initially hired on the earliest of the following dates:

(a) The date the employee attains age 20;

(b) The employee’s first working day following the date the employee completes all requirements for a high school diploma;

(c) The employee’s first working day following the date the employee notifies the employer that he or she has ceased to be enrolled, and does not expect to be enrolled during the next regular semester, as a full-time student in a school included under s. 118.257 (1) (d), Stats. The written statement of the employee or, if the employee is under age 18, of the employee’s parent or guardian shall be sufficient to establish that the employee has left school and does not intend to return in the next semester. If the employee intends to continue as a part-time student only, he or she may establish this fact by submitting to the employer a written certification from the principal of the school in which the student is enrolled. The definition of full-time student shall be that of the school in which the student is enrolled.

History

• Cr. Register, October, 1992, No. 442, eff. 11-1-92.

Wis. Admin. Code § ETF 20.017 Employer resolutions to participate {#sec-etf-20.017 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.017}

If the official notice of election to be included has been received by the department on or before November 15, the effective date of participation of the employer shall be the ensuing January 1. If the department receives the notice of election after November 15, the effective date shall be the January 1 after the ensuing January 1. The employer may withdraw a notice of election to be included if the employer’s written notice to withdraw is received by the department before the November 15 deadline of the year before the January effective date.

History

• CR 11-040: cr. Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 20.02 Rehired annuitants {#sec-etf-20.02 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.02}

(1) Scope. In this section, “rehired annuitant” means a participant on or after July 1, 1996, who has applied for and is eligible to receive a monthly annuity under s. 40.23, Stats., including satisfying the requirement to remain separated from participating employment for the period specified under s. 40.23 (1) (a) 1., Stats., and who subsequently is employed by a participating employer in employment which would meet the eligibility criteria for inclusion under the provisions of the Wisconsin retirement system specified in s. 40.22, Stats., but for the exclusion of s. 40.22 (2) (L), Stats., and whose termination of previous employment by a participating employer meets all criteria under s. ETF 10.08 (2) (b).

(2) Break in service. The minimum break in service period required under s. 40.23 (1) (a), Stats., is satisfied when the rehired annuitant returns to work no earlier than the latest of the following dates:

(a) The day after the annuity effective date.

(b) The seventy-sixth day after the date participating employment terminated.

(3) Required contributions.

(a) The department shall include a rehired annuitant under the provisions of the Wisconsin retirement system as a participating employee if any of the following conditions apply:

1. A rehired annuitant who terminated participating employment prior to July 2, 2013, is employed in a position which meets the requirement for participation specified in s. 40.22, Stats., and files with the department a written election to be included under the provisions of the Wisconsin retirement system as a participating employee. The election shall be on a form provided by the department.

2. A rehired annuitant who terminated participating employment after July 1, 2013, is employed in a position which meets the requirement for participation specified in s. 40.22, Stats., and files with the department a written election to be included under the provisions of the Wisconsin retirement system as a participating employee. The election shall be on a form provided by the department. This subsection does not apply to a rehired annuitant who meets the requirements of s. 40.26 (1m) (a), Stats.

3. The rehired annuitant meets the requirements for suspension of the annuity under s. 40.26 (1m) (a), Stats.

(c) An election filed pursuant to par. (a) 1. or 2. shall take effect on the first day of the month following its receipt by the department. The department shall suspend the annuity on the day prior to the effective date of the election, unless the department receives the rehired annuitant’s written notice revoking the election prior to the effective date of the election.

(d) A suspension of an annuity pursuant to par. (a) 3. shall take effect on the first day of the month following the date the annuitant is rehired.

(4) Employer reporting. Employers shall report to the department all rehired employees receiving an annuity from the Wisconsin retirement system, regardless of whether the employee qualifies as a rehired annuitant under this section and whether the employee’s position meets the qualifications for inclusion under s. 40.22, Stats. Employers shall report rehired annuitants in the manner, form, and at the time requested by the department.

Note: A rehired annuitant or employer may obtain a copy of the “Rehired Annuitant Election” form, ET-2319, required by s. ETF 20.02 at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020. The form also is available on the department’s website: etf.wi.gov.

History

• Emerg. cr. eff. 7-1-83; cr. Register, October, 1983, No. 334, eff. 11-1-83; r. and recr. Register, October, 1992, No. 442, eff. 11-1-92; correction in (3) (a) 2. made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1999, No. 523; am. (1) and (3) (a) 3., r. and recr. (2) and r. (3) (a) 2., (b), (4) and (5), Register, August, 2000, No. 536, eff. 9-1-00; CR 11-042: am. (1), cr. (2) (title), (3) (title), (4) Register July 2012 No. 679, eff. 8-1-12; CR 14-055: am. (2) (b), (c), r. and recr. (3) (a), am. (3) (c), cr. (3) (d) Register May 2015 No. 713, eff. 6-1-15; CR 19-126: r. (2) (c) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 20.025 Minimum retirement age {#sec-etf-20.025 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.025}

(1) Regular retirement annuities and lump sums in lieu of an annuity. The earliest age at which a person may qualify to receive an annuity under s. 40.23 or 40.24, Stats., or a lump sum in lieu of an annuity under s. 40.25 (1), Stats., is the minimum retirement age.

(2) Separation benefits. An application for a lump sum benefit under s. 40.25 (2), Stats., must be received by the department before the applicant has reached minimum retirement age unless the applicant is eligible for a lump sum benefit under s. 40.23 (2m) (er) or 40.23 (3) (b), Stats.

Note: The term “minimum retirement age” currently is not used in ch. 40, Stats. or ETF administrative rules., except for ss. ETF 10.01 (3o) and 20.025 as proposed in this rule (CR 09-057). The term is defined in this rule to be consistent with s. 40.23 (1) (a) (intro.), Stats., which is implicitly referenced by s. 40.25 (1) (a), Stats., and with s. 40.25 (2), Stats.

History

• CR 09-057: cr. Register May 2010 No. 653, eff. 6-1-10; CR 14-055: am. (2) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 20.0251 Exclusive benefit {#sec-etf-20.0251 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.0251}

(1) The Wisconsin retirement system is maintained for the exclusive benefit of participants and their beneficiaries.

(2) No contributions or earnings on contributions may revert, and no contributions may be permitted to be returned to a participating employer, except as permitted by Revenue Ruling 91-4.

Note: Revenue Ruling 91-4 provides for circumstances under which money contributed by a participating employer may be returned to the employer. A copy of the ruling may be obtained by writing: Superintendent of Documents, P.O. Box 979050, St. Louis, MO 63197-9000.

History

• CR 13-004: cr. Register August 2013 No. 692, eff. 9-1-13.

Wis. Admin. Code § ETF 20.03 Annuity computations {#sec-etf-20.03 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.03}

(1) For purposes of annuity computations, an applicant’s age shall be determined to the nearest month.

(2) For purposes of determining maximum benefits under s. 40.23 (2), Stats., and accelerated benefits under s. 40.24 (4), Stats., except as provided to the contrary in s. ETF 20.35 (4) (c), the estimated OASDHI benefit shall be based on the following:

Note: 2007 Wis. Act 131 revised s. 40.24 (1) (e), Stats., for annuities effective after July 1, 2008 to remove the alternative provision terminating the temporary annuity portion of the benefit at death and thereby made the temporary annuity an annuity certain payable until the annuitant would have reached age 62. Once called “Social Security Integrated” or “integrated” annuities, these two-part annuity options are now known as accelerated annuity options. This rule (CR 09-057) updates the last remaining reference in the administrative rules to an “integrated” annuity benefit.

(a) It shall be assumed that the employee has been in a position covered under OASDHI from the year in which age 30 was attained to the year of retirement or death, except that years in which earnings are reported under s. 40.05 (1) (a) 4., Stats., shall not be counted.

(b) It shall be assumed that covered earnings increased from the year in which age 30 was attained to the year of retirement or death at a rate determined by the actuary to reflect changes in the OASDHI wage base and approximate average changes in earnings during that time.

(bm) With respect to accelerated annuity options under s. 40.24 (1) (e), Stats., or s. ETF 20.04 (3), that become effective on or after July 1, 2008, the temporary annuity portion is payable in all cases until the annuitant reaches, or would have reached, age 62, without regard for an earlier date of death. The actuary shall make all tables, other assumptions and calculations relevant to the accelerated annuity benefit accordingly.

Note: 2007 Wis. Act 131 revised s. 40.24 (1) (e), Stats., for annuities effective after July 1, 2008 to remove the alternative provision terminating the temporary annuity portion of the benefit at death and thereby made the temporary annuity an annuity certain payable until the annuitant would have reached age 62. This rule (CR 09-057) requires the actuary’s assumptions, tables and calculations to take into account that the temporary portion of future accelerated annuity benefits will be an annuity certain.

(c) The delayed retirement credit under federal social security regulations shall be applied to each year after age 65 and up to age 72.

(d) Based upon the assumptions in pars. (a) to (c) and in accordance with the provisions of the federal social security act, the actuary shall prepare a table correlating the employee’s age and final average earnings with a primary OASDHI benefit, adjusting the table as necessary to prevent, in most cases, assumed OASDHI benefits from exceeding actual OASDHI benefits.

(e) Notwithstanding pars. (a) to (d), if the applicant furnishes the official social security award certificate or a letter from the social security administration which shows that the retirement or disability benefit that is first payable from the participant’s OASDHI account at the time of application for Wisconsin retirement system benefits is or will be in a different amount, the amount certified by the social security administration shall be used in the benefit computation.

(3) The actuarial factors used in computing annuities for beneficiaries shall be the same as the factors used in computing retirement annuities. For purposes of computing a beneficiary accelerated payment annuity the beneficiary’s estimated OASDHI benefit shall be the primary OASDHI benefit amount determined for the deceased participant pursuant to sub. (2).

(4)

(a) When the earnings of a state elected official whose final average earnings are subject to s. 40.02 (33) (b) 1. or 2., Stats., are paid on a payroll schedule other than monthly, the final average earnings used to calculate benefits under ss. 40.23, 40.63 and 40.73 (1) (c), Stats., shall be calculated by multiplying the participant’s hourly rate of pay at the time of termination of employment from state elected official service by 2,080, then dividing the result by 12.

(b) The final average earnings calculated under par. (a) shall not be used to calculate benefits based on creditable service granted in any category of employment other than that as a state elected official.

Note: This rule (CR 09-057) codifies the department’s long-standing practice for calculating the final average earnings for state elected officials and ensures the practice is consistent for calculating retirement annuities, disability annuities, and death benefits.

History

• Renum. from ETF 7.01 (2), 7.03 and 7.06 and am. Register, December, 1983, No. 336, eff. 1-1-84; r. and recr. (2) (a) and (b), Register, December, 1990, No. 420, eff. 1-1-91; CR 01-096: am. (3), Register December 2001 No. 552, eff. 1-1-02; CR 09-057: am. (2) (intro.), cr. (2) (bm) and (4) Register May 2010 No. 653, eff. 6-1-10; correction in (2) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register May 2021 No. 785; CR 23-023: am. (1) Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 20.04 Optional forms of annuity {#sec-etf-20.04 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.04}

Pursuant to s. 40.24, Stats., a participant may elect one of the optional annuity forms prescribed in this section in lieu of an option prescribed under s. 40.24, Stats.:

(1) A joint and survivor annuity with payments reduced 25% effective either with the payment for the month in which the participant dies, or effective with the payment for the month after the month in which the named survivor who was designated by the participant in the original application for an annuity dies.

(2)

(a) A joint and survivor annuity payable for the life of the annuitant, with a guarantee period of at least 180 monthly payments, and after the death of the annuitant continued at 100% for the life of the named survivor who was designated by the participant as the named survivor in the original application for the annuity.

(b) The participant may designate a beneficiary or beneficiaries as provided in s. 40.02 (8) (a) 1., Stats., to receive the balance of payments due in the event of the death of both the participant and named survivor before 180 monthly payments have been made. The participant may change the designation of the beneficiary.

(c) A named survivor or beneficiary receiving a deceased participant’s annuity payments under this subsection, may designate a beneficiary or beneficiaries as provided in s. 40.02 (8) (a) 1., Stats., and thereafter change his or her designation of the beneficiary of any remaining guaranteed monthly payments.

(d) In the event of the death of the named survivor who is receiving continued benefits after the death of the participant, but prior to payment of 180 monthly benefits, the remainder of the 180 monthly payments shall continue to the named survivor’s designated beneficiary, or in the absence of a designated beneficiary or the death of all the named survivor’s designated beneficiaries prior to the death of the named survivor, payment shall be made under the named survivor’s standard sequence as set forth in s. 40.02 (8) (a) 2., Stats.

(e) In the event of the death of the named survivor prior to the death of the participant, the remainder of the 180 monthly payments shall continue to the participant’s designated beneficiary, or in the absence of a beneficiary designation or the death of all the designated beneficiaries prior to the death of the participant, payment shall be made under the participant’s standard sequence as set forth in s. 40.02 (8) (a) 2., Stats.

(f) In the event of the death of the beneficiary after becoming entitled to receive monthly payments but before receipt of the remainder of the guaranteed 180 monthly payments, the then present value of the annuity shall be paid, in lieu of the continuation of monthly payments, pursuant to s. 40.73 (2) (b) 3., Stats., as a death benefit to the beneficiary’s designated beneficiary, or in the absence of a beneficiary designation or the death of all the beneficiary’s designated beneficiaries prior to the death of the beneficiary, the then present value of the annuity shall be paid under the beneficiary’s standard sequence as set forth in s. 40.02 (8) (a) 2., Stats.

(g) In the event of the death of both the named survivor and all the participant’s designated beneficiaries prior to being entitled to receive benefits, the remaining monthly payments shall continue pursuant to the participant’s standard sequence as set forth under s. 40.02 (8) (a) 2., Stats., if the participant’s death occurs before 180 monthly payments have been made.

Note: The definition of “beneficiary” was affected by 2007 Wis. Act 131. The term “named survivor” was first used and defined by 1997 Act 110, and replaced the term “beneficiary” in some cases. In reviewing the existing administrative rules using the term, to make sure the usage remained logical, correct and consistent with the new definition, the department found three provisions that needed amendment, ss. ETF 10.70 (4), 10.70 (5) (b) 1. and 20.04 (2). This rule (CR 09-057) amends the current rule describing the joint-and-surviving annuity option with 180-payment guarantee to use the term “beneficiary” correctly.

(3) An annuity payable under sub. (1) or (2) plus an accelerated payment annuity as determined under s. 40.24 (1) (e), Stats.

(4) A life annuity with a number of guaranteed payments equal to the number of full calendar months in the life expectancy of the annuitant as determined under the tables at 26 CFR 1.401 (a) (9) - 9 as in effect on the date when the annuity begins.

Note: This rule (CR 09-057) concerns the optional forms of an annuity and updates the existing rule to better reflect ongoing changes in federal regulations and to more clearly state that the number of guaranteed payments is to equal the number of full calendar months in the annuitant’s life expectancy.

History

• Cr. Register, November, 1982, No. 323, eff. 12-1-82; am. (intro.), renum. (2) to be (3) and am., cr. (2), Register, May, 1987, No. 377, eff. 11-1-87; cr. (4), Register, December, 1996, No. 492, eff. 1-1-97; CR 01-096: am. (1), (2) (a) to (e) and (g) and (3), Register December 2001 No. 552, eff. 1-1-02; CR 09-057: am. (2) (b) to (g) and (4) Register May 2010 No. 653, eff. 6-1-10; correction in (2) (c) made under s. 13.92 (4) (b) 7., Stats., Register May 2010 No. 653; CR 19-126: am. (4) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 20.045 Changes to optional form of payment {#sec-etf-20.045 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.045}

(1) Changing the form of payment from a lump sum payment under s. 40.25 (1) or (4), or 40.73 (1) (a), Stats., to an annuity under s. 40.24 (1) or 40.73 (3), Stats., or from an annuity to a lump sum payment, is subject to the option change deadline specified in s. 40.24 (4), Stats.

(2)

(a) If a participant, alternate payee or beneficiary has made a timely request under sub. (1) to change from a lump sum payment to a monthly annuity, the effective date of the annuity shall be determined based on the original date on which the department received the original application for benefits.

(b) If the department receives a timely payment option change request after the lump sum payment has already been issued, or receives it too late to prevent the payment from being issued, the applicant must return the payment in full within 30 calendar days after the date on which the department received the option change request. If the lump sum payment is not returned within the 30-day period, the option change request is null and void.

(c) The department shall not commence making annuity payments before the department has received the returned lump sum payment.

(3) If a participant, alternate payee or beneficiary has made a timely request under sub. (1) to change from a monthly annuity to a lump sum payment after one or more monthly payments have been issued, or if the department receives the option change request too late to prevent a monthly payment from being issued, the amount of the annuity payments that would have been paid under the terminated annuity if the annuity had been a straight life annuity shall be deducted from the lump sum payment that would otherwise have been payable.

Note: This rule (CR 09-057) codifies the department interpretation that the deadline for making a change to an optional form of payment is 60 days after the date on which the first annuity check is issued or funds are otherwise transferred. If the request for a payment option change is received by the department too late to prevent the lump sum payment, the applicant has 30 calendar days from the date of the request to return the payment in full.

If the request is received too late to prevent issuance of one or more monthly payments, the value of the payments issued shall be deducted from the lump sum payment.

(4) Subject to the restrictions in s. 40.24 (7) (a), Stats., a participant’s request to change the designation of a named survivor to a different named survivor shall be subject to the deadline specified in s. 40.24 (4), Stats., for changing the optional form of payment selected.

History

• CR 09-057: cr. Register May 2010 No. 653, eff. 6-1-10; CR 11-040: cr. (4) Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 20.05 Accelerated payment annuity options {#sec-etf-20.05 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.05}

(1) A participant, alternate payee or beneficiary shall not be eligible for the accelerated payment annuity if the reduced annuity payable for life in the normal form under s. 40.24 (1) (e), Stats., would be equal to or less than $129 per month for a benefit with an effective date in calendar year 2001 or, for a benefit with an effective date in a subsequent calendar year, the monthly amount applied under this section for the previous calendar year increased by the salary index, as defined in s. 40.02 (52), Stats., ignoring fractions of the dollar.

(2) Pursuant to s. 40.03 (2) (k), Stats., the department will assume that the primary OASDHI benefit, as defined in s. 40.02 (44), Stats., for a person eligible to receive a beneficiary annuity and selecting an option payable under s. 40.24 (1) (e), Stats., will be based on the work record of the participant from whose account the benefit is being paid.

History

• Cr. Register, June, 1979, No. 282, eff. 1-1-80; cr. (2), (1) renum. from ETF 7.02 (1) and am., Register, November, 1982, No. 323, eff. 12-1-82; am. (1), Register, December, 1987, No. 384, eff. 1-1-88; CR 01-096: am. (1) and (2), Register December 2001 No. 552, eff. 1-1-02.

Wis. Admin. Code § ETF 20.055 Spouse’s or domestic partner’s signature on a benefit application {#sec-etf-20.055 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.055}

Documentation of inability to obtain a spouse’s or domestic partner’s signature on an annuity application as required under s. 40.24 (7) (a) or s. 40.25 (3m), Stats., or on a separation benefit application as provided in s. 40.25 (3m), Stats., shall be accepted for any of the following reasons:

(1)

(a) The spouse or domestic partner is incompetent as defined under s. 54.10 (3), Stats., and a copy of the court order appointing the spouse’s or domestic partner’s guardian is submitted to the department.

(b) The guardian’s signature shall be required on the annuity application in lieu of the spouse’s or domestic partner’s signature if the participant chooses an annuity option other than an option specified under s. 40.24 (7) (a) or 40.25 (1) (a), Stats.

(c) The spouse’s, domestic partner’s or guardian’s signature is not required when the participant is only eligible for a single sum benefit payable under s. 40.25 (1) (a), Stats.

(2) The participant certifies, on a form provided by the department, that the participant does not now know and has not known the whereabouts of the spouse or domestic partner for at least the 90 days immediately prior to the date the application is signed, or the participant provides evidence to the department’s satisfaction that the spouse’s or domestic partner’s signature is otherwise not obtainable.

Note: Section ETF 20.055 (2) requires a form which can be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020.

(3) The requirements in s. 40.24 (7) (a) (intro.) and (b), Stats., and in s. 40.25 (3m), Stats., as it applies to s. 40.25 (1) (b), Stats., related to the requirement for the domestic partner’s signature on benefit applications, shall not apply if the participant is prohibited under the internal revenue code from selecting a joint and survivor annuity with the domestic partner as the named survivor, based on the participant’s and domestic partner’s respective ages.

History

• Cr. Register, September, 1986, No. 369, eff. 10-1-86; EmR0938: emerg. am. eff. 1-1-10; CR 10-004: am. Register July 2010 No. 655, eff. 8-1-10; CR 10-137: am. Register August 2011 No. 668, eff. 9-1-11.

Wis. Admin. Code § ETF 20.06 Early retirement reduction factors {#sec-etf-20.06 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.06}

Pursuant to s. 40.23 (2), Stats., this section applies only to participants who are not participating employees after March 9, 1984. In computing a formula annuity in the normal form beginning prior to the normal retirement date of a participant, there shall be a .5% reduction for each month the participant’s age is under 65 but at least 60 and a .4% reduction for each month the participant’s age is under 60.

History

• Cr. Register, June, 1979, No. 282, eff. 1-1-80; renum. from ETF 7.02 (2), Register, November, 1982, No. 323, eff. 12-1-82; am. Register, March, 1986, No. 363, eff. 4-1-86.

Wis. Admin. Code § ETF 20.07 Annuity options — automatic distributions {#sec-etf-20.07 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.07}

(1) When the department begins to distribute an account under the provisions of s. 40.23 (4) (c), Stats., the benefit shall include the amount, if any, which can be provided by accumulated employer and employee required and additional contributions credited to the account. The department may not distribute a participating employee’s account under this section.

(2) The benefit shall be paid in the first of the following forms that applies:

(a) For benefits payable solely from the participant’s additional contribution accumulations under s. 40.05 (1) (a) 5., Stats., or if the amount of the annuity in the normal form based on all undistributed balances in the account is less than the amount determined under s. 40.25 (1) (a), Stats., a lump sum payment.

(b) If the participant’s or alternate payee’s age on the birthday which occurs during the year that the distribution begins is less than 72, the option specified in s. 40.24 (1) (c), Stats.

(c) If the participant’s or alternate payee’s age on the birthday which occurs during the year that the distribution begins is 72 or more, except as provided in par. (d), the option specified in s. ETF 20.04 (4).

(d) If the number of guaranteed payments determined under s. ETF 20.04 (4) is less than 60, a lump sum payment equal to the present value of the annuity.

(3) The effective date of the automatic distribution paid under sub. (2) shall be January 1 of the year in which the participant attains or would have attained the age provided in section 401 (a) (9) of the Internal Revenue Code, or January 1 of the year following the year in which the participant retires, if later. Standard sequence under s. 40.02 (8) (a) 2., Stats., shall become effective with regard to beneficiaries of death benefits under ss. 40.71 and 40.73, Stats., on the effective date of the automatic distribution.

(4) The participant or alternate payee may not cancel distributions under this section, except as provided in sub. (5). Subject to the requirements of the internal revenue code, the participant or alternate payee may change the optional form of payment as provided under s. 40.24 (4), Stats.

(5) The department shall distribute the account as specified in this section unless the department receives the participant’s or alternate payee’s application for the benefit on a form provided by the department. The application may specify a deferred effective date which may not be later than March 1 of the calendar year after the year in which participant attains the age provided in section 401 (a) (9) of the Internal Revenue Code, or March 1 of the calendar year following the year in which the participant retires, if later. For alternate payees of deceased participants, the deferred effective date may not be later than March 1 of the calendar year after the participant would have attained the age provided in section 401 (a) (9) of the Internal Revenue Code. The department must receive the application specifying a deferred benefit effective date on or after January 1 of the year before the year in which the participant attains (or, for alternate payees of deceased participants, would have attained) the age provided in section 401 (a) (9) of the Internal Revenue Code, but no later than the deadline to request cancellation provided under s. ETF 20.20 (3) or (4) with respect to the benefit which is being automatically distributed.

Note: Federal regulations require that a distribution from a qualified retirement plan begin no later than April 1 of the year following the year in which the participant would have attained the age provided in section 401 (a) (9) of the Internal Revenue Code or retires, whichever is later. A form specifying a requested annuity effective date, form ET-4934, is available from the department of employee trust funds at no charge.

(6) If the participant or alternate payee submits a waiver of a lump sum benefit under s. 40.08 (3), Stats., and the department receives it on or before the deadline specified in s. ETF 20.20 (3) or (4), the department shall defer the automatic distribution during the waiting period before the waiver effective date. The department shall not defer automatic distribution of monthly annuity benefits if a waiver is filed, but shall continue to make monthly payments until the waiver takes effect.

Note: This rule (CR 09-057) amends ss. ETF 20.07 (6) and 60.53 (1) (c) to conform to the new effective date for waivers in s. 40.08 (3), Stats., as affected by 2007 Wis. Act 131.

History

• Cr. Register, December, 1996, No. 492, eff. 1-1-97; correction in (2) (a) made under s. 13.93 (2m) (b) 4. and 7., Stats., Register, July, 1999, No. 523; CR 09-057: am. (6) Register May 2010 No. 653, eff. 6-1-10; CR 23-023: am. (3), (5) Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 20.08 Termination of marriage or domestic partnership for determination of beneficiary {#sec-etf-20.08 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.08}

For purposes of determining a beneficiary under s. 40.02 (8) (a) 2., Stats., a judgment, order or decree of divorce, legal separation or an annulment of the marriage terminates the marital relationship. A domestic partnership terminates as specified in s. ETF 20.10 (3) for the purposes of determining a beneficiary under s. 40.02 (8) (a) 2., Stats.

History

• EmR0938: emerg. cr. eff. 1-1-10; CR 10-004: cr. Register July 2010 No. 655, eff. 8-1-10; title created under s. 13.92 (4) (b) 2., Stats., Register July 2010 No. 655.

Wis. Admin. Code § ETF 20.10 Domestic partner benefits {#sec-etf-20.10 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.10}

(1) For the purposes of this section, “member” means any of the following persons:

(a) Participant.

(b) Annuitant.

(c) Eligible employee.

(d) Beneficiary.

(e) Alternate payee.

(f) Recipient of duty disability benefits under s. 40.65, Stats.

(2)

(a) For the purposes of the benefits authorized under ch. 40, Stats., a domestic partnership as defined in s. 40.02 (21d), Stats., becomes effective on the date that the department receives a completed and notarized Affidavit of Domestic Partnership form (ET-2371), except that a domestic partnership cannot become effective before January 1, 2010.

(c) Registering as domestic partners under the provisions of ch. 770, Stats., does not establish a domestic partnership for the purposes of the benefits authorized in ch. 40, Stats.

(d) Establishing a domestic partnership in another state does not establish a domestic partnership for the purposes of the benefits authorized in ch. 40, Stats.

(3) Once a domestic partnership becomes effective it remains in force until the earlier of the following dates:

(a) The date on which the department receives a notarized Affidavit of Termination of Domestic Partnership form (ET-2372) signed by either the member or the domestic partner.

(b) Based on evidence provided to the department, the date established to the department’s satisfaction that the domestic partnership no longer met all of the conditions in s. 40.02 (21d), Stats. Examples of no longer meeting the conditions include one of the domestic partners marrying another person or establishing a new domestic partnership with a different partner under sub. (2), or no longer sharing a common residence.

(c) The date on which neither domestic partner is a member as defined in sub. (1).

(d) The date determined by the court that a domestic partnership terminated.

(e) The department may reject any Affidavit of Termination of Domestic Partnership (ET-2372) that is illegible or missing information necessary for benefit administration purposes. Any affidavit terminating a domestic partnership that is missing the name of either domestic partner, the signature of the domestic partner who is terminating the domestic partnership, or is not notarized shall be rejected, and shall have no force or effect. Except as provided in pars. (b), (c), and (d), for the purposes of the benefits authorized in ch. 40, Stats., the effective date of the termination of the domestic partnership shall be based on the date the department receives a completed, signed and notarized Affidavit of Termination of Domestic Partnership form (ET- 2372).

(f) Terminating a domestic partnership created under the provisions of ch. 770, Stats., does not terminate a domestic partnership established under sub. (2) for the purposes the benefits authorized in ch. 40, Stats.

(4) Affidavits certifying or terminating a domestic partnership that are received after the date of death of either domestic partner are invalid, and shall have no force or effect.

(5) The domestic partner provisions in ss. 40.08 (8) (a) 4. and 40.23 (4) (e) 1. and (f), Stats., shall not apply if such provisions are inconsistent with any internal revenue code provisions that authorize and regulate the benefit plan.

Note: The Affidavit of Termination of Domestic Partnership form, ET-2372, can be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020. The forms also are available on the department’s website: etf.wi.gov.

History

• EmR0938: emerg. cr. eff. 1-1-10; CR 10-004: cr. Register July 2010 No. 655, eff. 8-1-10; correction in (3) (e) made under s. 13.92 (4) (b) 7., Stats., Register July 2010 No. 655; CR 19-126: r. (2) (b), am. (2) (d) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 20.12 Payments considered Wisconsin retirement system earnings {#sec-etf-20.12 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.12}

(1)

(a) The purpose of this section is to establish the circumstances under which some or all payments made as a remedy for an employment dispute may be treated as earnings for Wisconsin retirement system purposes and to state the elements required for such treatment.

(b) This section applies to court orders and compromise settlements having an effective date which is on or after May 16, 1996.

(c) This section does not apply to retroactive or other wage payments made to all eligible employees in a bargaining unit under a collective bargaining contract.

(2) Definitions.

(a) “Compromise settlement,” for purposes of this section, means a written, binding agreement between a participating employer and a current or former participating employee of that employer, to settle a wage claim or a dispute involving an involuntary suspension or termination of participating employment. For purposes of this section only, the department shall treat a final order issued by the Wisconsin employment relations commission or an arbitration award under a collective bargaining agreement, for which all appeal opportunities have expired without an appeal being filed, as a compromise settlement.

(b) “Effective date” of the court order or compromise settlement, for purposes of this section, means the date an order of the court, the Wisconsin employment relations commission, or an arbitrator is issued or, when the matter is resolved by a compromise settlement signed by the parties rather than a final order, the date on which the compromise settlement in its final form is first signed by all of the parties.

(3) Except as provided in this section, no payment resulting from a court order or compromise settlement may be considered as earnings for Wisconsin retirement system purposes. The department may decline to act on a court order or compromise settlement which does not contain all of the information required under this section or is otherwise defective.

(4) Subject to all provisions of this section, the department shall treat as earnings for Wisconsin retirement system purposes a payment made under a court order or compromise settlement by a participating employer to an employee or former employee provided all of the following conditions are met:

(a) The payment is one of the following:

1. Retroactive wages paid to a participant for a period following an involuntary termination of the employee’s participating employment by that participating employer, which are paid under court order or the terms of a compromise settlement which also expunges the previously reported termination.

2. Retroactive wages paid to a participant for a period during which the participating employee was involuntarily placed on unpaid leave or suspension by that participating employer.

3. Additional wages properly due to a continuously participating employee from that participating employer for hours of service actually rendered and previously reported to the department.

4. Additional wages properly due to a continuously participating employee from that participating employer for hours of service actually rendered but not previously reported to the department.

(b) The employee or former employee is living on the effective date of the court order or compromise settlement.

(c) The court order or compromise settlement is in writing and is signed and dated by the issuing authority or by the parties to the agreement.

(d) The court order or compromise settlement specifies the wages to be paid to the employee for each annual earnings period and the associated hours of service actually rendered by the employee or that would have been rendered but for the disputed suspension or termination.

Note: “Annual earnings period” is defined by s. 40.02 (3), Stats.

(e) The employer reports the wages and hours of service to the department under a transaction code designated by the department for actions resulting from court orders and compromise settlements. At the department’s request, the employer shall report wages and hours of service in sufficient detail to enable the department readily to calculate the wages and hours for each payroll period during the period under dispute and shall distinguish between additional wages, if any, paid for hours of service previously reported to the department, and wages and hours of service not previously reported.

Note: Employer reporting is described in detail in ET-1127, WRS Administration Manual, which is available from the Department at no charge.

(f) If the dispute concerns a termination of participating employment or if the amount of wages reported under par. (e) exceeds the employee’s current basic rate of pay multiplied by 80, the employer submits with the transaction report the original court order or compromise settlement or a complete copy thereof. The department may require submittal of the court order or compromise settlement associated with a smaller wage payment. If the employer fails to submit the transaction report and the court order or compromise settlement, if required, within 90 days after the effective date, the employee, the collective bargaining agent, or the issuing court or agency may submit a complete copy of the court order or compromise settlement to the department for purposes of requesting employer reporting.

(g) The employer remits required contributions on the wages, or that portion of the wages which the department treats as earnings, including interest computed under s. 40.06 (5), Stats., and s. ETF 10.635.

(h) If the remedy includes payment of wages for a period following a disputed termination of participating employment, the court order or compromise settlement does all of the following:

1. Directs the employer to rescind the termination date previously reported to the department and, if the employee is not to be reinstated, specifies the date on which the employee-employer relationship terminated, which date shall be treated as the termination date for Wisconsin retirement system purposes. This date may not be later than the effective date of the court order or compromise settlement.

2. Directs the employer to pay the employee all wages from the rescinded termination date to the date the employee returns to work or the new termination date reported under subd. 1. as if the employee had been continuously employed throughout the period under the conditions of employment prevailing prior to the termination, except that the court order or compromise settlement may direct that wages be reduced by amounts earned from other sources and may identify a period of suspension for which wages are not paid.

(5) The department may not consider any of the following payments as earnings:

(a) A payment that results from resolution of a dispute over the employer’s failure to hire a person. Any payment in such cases shall be considered by the department as a damage award. This paragraph does not exclude retroactive wages related to a participating employer’s failure to hire a participating employee of that employer for another position, provided the court order or compromise settlement also directs that the employee’s basic pay rate be permanently increased.

(b) A payment directed by a court order or compromise settlement if either the specified hours of service or associated wages exceed the creditable service and earnings which would have been properly reported for the employee if the employee had been continuously employed through the period at issue under the conditions of employment prevailing prior to the dispute.

(c) A payment directed by a court order or compromise settlement which purports to pay earnings in one annual earnings period which actually result from employment during another annual earnings period or a combination of annual earnings periods.

(d) A payment for actual or constructive services rendered, or deemed to have been rendered, after termination of employment.

(e) A payment directed by a court order or compromise settlement which is excluded from earnings under s. 40.02 (22) (b), Stats., including all of the following:

1. A payment which is other than wages or salary for personal services actually rendered to that participating employer by the participating employee, or which would have been rendered but for the disputed termination or suspension;

2. A payment, including a wage payment, made in return for, or in order to secure, the employee’s resignation or termination from participating employment, whether immediately or at some specified time in the future, or to secure release from an unexpired contract of employment, including the employee’s voluntary waiver of grievance rights under a collective bargaining contract. This subdivision does not prevent a remedy from including both a wage payment and a payment to secure the employee’s agreement to other conditions, provided the court order or compromise settlement specifies the portion of the total payment that represents wages.

3. A lump sum payment for accumulated vacation, sick leave, or compensatory time, unless the payment is broadly applicable to the employees of the employer regardless of age, length of service or likelihood of employment termination.

4. A payment for damages, attorney fees, interest or penalties included in the court order or compromise settlement, regardless of whether the amount of the payment reflects previous salary levels.

5. A payment based on a change in the method of computing the base compensation of the employee during the last 5 years of employment, unless resulting from application of a broader change permitted under s. 40.02 (22) (b) 10., Stats.

6. A payment made in lieu of fringe benefits normally paid for or provided by the employer.

(6) The department may not consider as earnings a payment for wages for a period during which the employee was an annuitant, or a payment made to a person whose Wisconsin retirement system account was closed by receipt of a benefit under s. 40.25 (1), or (2), Stats., on or before the effective date of the court order or compromise settlement. This subsection shall not be construed to affect a reinstatement as provided under s. 40.25 (5), Stats.

(7)

(a) Except as provided in par. (b), if the court order or compromise settlement directs that the retroactive earnings to be paid first be reduced by amounts earned from other sources, the department shall determine the earnings to be credited in each annual earnings period based on the unreduced amount, subject to the limitations of section 415 of the internal revenue code and to sub. (5) (b). The department may determine the hours of service to be credited in each annual earnings period from data available to the department or by dividing the unreduced amount otherwise treatable as earnings in accord with this section for each affected annual earnings period by the rate of pay the department determines applied during the period under dispute.

(b) If the employee has other participating employment during the disputed period, the department shall reduce the amount of earnings and service it credits under the court order or compromise settlement by the earnings and service resulting from the other participating employment.

Example: An employee who normally earns $12.00 per hour in a full-time position works half-time in another participating position for $10.00 per hour during the disputed termination. In each week, the employee earns $200.00 and 20 hours of service. If the employee is made whole for wages and benefits under the compromise settlement and receives back wages of $480.00 per week for the period of termination, the department will credit only an additional $280 in earnings and an additional 20 hours of service for each week.

(c) In cases of part-time participating employment, the department may increase the service and earnings credited under par. (b) if the employee submits satisfactory evidence showing that the total earnings and service credited during the disputed period, if properly reported, would have been greater than those prevailing before the dispute.

(8) Regardless of when payment to the employee actually occurs and regardless of whether payment is reported as taxable income in the year payment was made or by revising reports of taxable income for previous years, any payments considered as earnings under this section shall be treated for the purposes of the Wisconsin retirement system as earnings in the annual earnings period in which the earnings should normally have been paid.

(9)

(a) Except as limited by sub. (10), resolution of any employment dispute between a participating employer and participating employee may include making additional contributions to the participant’s account.

(b) The department shall respond to reasonable requests by a participant or a participating employer to estimate the amount of additional contribution necessary to fund a benefit equivalent to a hypothetical Wisconsin retirement system benefit.

(10)

(a) Regardless of the terms of a court order or compromise settlement, if the department finds that a contribution exceeds the limits on contributions to qualified pension plans established by the internal revenue code and regulations promulgated thereunder, as determined by the department, the department shall refuse to accept the contribution. If any excess contribution is accepted in error, the department shall refund or credit it as provided in s. 40.08 (6), Stats.

(b) In order to establish the amount of an employee’s reportable income for a specified year, as necessary to compute contribution limits, and in order to verify that payments requested to be considered as earnings under this section were reported as taxable income, the employee shall furnish to the department upon request proof of all taxable compensation received and all retirement contributions made to all retirement plans during each year at issue.

History

• Cr., Register, July, 1997, No. 499, eff. 8-1-97; correction in (6) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1999, No. 523.

Wis. Admin. Code § ETF 20.17 Service purchases {#sec-etf-20.17 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.17}

(1) General provisions.

(a) Scope. This section applies to service purchases under s. 40.285, Stats.

(b) Preparation of estimates; deadline for application.

1. Upon request, the department shall prepare a written estimate of the cost of purchasing service under s. 40.285 (2), Stats., on an application form to be used for the purpose and send the application form to the participating employee. Anytime after the department receives a completed application and at least the minimum payment or authorization to transfer additional contributions required to accompany that application, the department may update and correct the calculation of the amount due as necessary, before finalizing the purchase of service credit.

2. Except as provided in subd. 3. the application to purchase creditable service, on the form approved by the department, must be actually received at the department on or before the date the applicant terminates all participating employment covered by the Wisconsin retirement system.

3. The deadline for a part-time elected official whose date of separation from the last participating employer is determined under s. 40.23 (1) (am) 2., Stats., is the date the applicant terminated participating employment other than as a part-time elected official, or the date on which the applicant elected to waive further Wisconsin retirement system participation under s. 40.23 (1) (am) 2., Stats., whichever date is later.

Note: The “Waiver of Part-Time Elected Service,” form ET-4303, becomes effective on the day after its receipt by the department or, if more than one ET-4303 is being submitted, on the first day after the first waiver is received by the department.

(c) Rejection of application.

1. An application received after the deadline in par. (b) shall be rejected.

2. If the department determines that the participant is ineligible to purchase service for which the participant has applied, the application shall be rejected and any payment previously received by the department shall be refunded as provided in par. (f).

3. The department shall reject an application which is not accompanied by a payment in one of the following forms:

a. Payment in full of the department’s estimated cost of the service credit if the purchase is for a qualifying period, teacher improvement leave or previously uncredited service as a junior teacher or executive official under s. 40.285 (2) (c) to (f), Stats. Such payment may include authority to transfer 403(b) funds or additional contributions under s. 40.05 (1) (a) 5., Stats., already held by the department in order to make the purchase. A transfer of 403(b) funds must be authorized by the school district or other educational institution employer operating the plan under section 403(b) of the internal revenue code.

b. In lieu of payment in full, the applicant may include at least 10% of the department’s estimated cost of the creditable service with the application and arrange for the balance to be paid by a plan-to-plan transfer under s. 40.285 (5), Stats. Such transfer funds must be received within 90 days after receipt of the application or the application or the purchase will be treated under the payment shortfall provisions of s. 40.285 (5) (c), Stats., and par. (h).

c. Partial payment of the department’s estimated cost of the service credit, but only if the purchase is for forfeited service or other governmental service, under s. 40.285 (2) (a) or (b), Stats.

4. The department may reject any application which 90 days after the date of application remains incomplete in any respect other than receipt of payment. If an application is rejected under this subdivision then the department shall refund any associated payment as provided by par. (f).

5. An application to purchase creditable service for forfeited service or other governmental service under s. 40.285 (2) (a) or (b), Stats., shall be rejected if the applicant does not have at least three continuous years of creditable service immediately preceding the date the completed application form is received by the department, with no break in service between the three continuous years and the application date.

(d) Effect of purchasing service. Buying creditable service under this section adds the amount of service purchased to the person’s total creditable service for the purpose of calculating a formula annuity benefit under s. 40.23 (2) (b) or (2m) (e), Stats., or making a formula annuity calculation in the same manner, including under s. 40.25 (1), 40.63 (8) or 40.73 (1) (c), Stats. Buying creditable service has no retroactive effect, including but not limited to the following:

1. Buying creditable service does not undo any effects of the requirement that a person who takes a separation benefit must thereafter be treated as a new employee upon subsequent employment by a participating employer.

Note: See s. 40.25 (3), Stats.

2. Buying creditable service does not establish an earlier date of participation nor restore an account as though it had never been closed.

3. Buying creditable service does not restore or entitle the purchaser to any benefits or rights associated with being a participant in the Wisconsin retirement system, or a member of any predecessor retirement system, at the time the services for which credit is being purchased were actually performed.

4. Buying creditable service does not establish creditable service in or for any particular annual earnings period or calendar year, or prior to any past date, or for purposes of measuring continuous years of creditable service.

Note 1: As a consequence of purchased service credits not establishing creditable service in or for any particular annual earnings period or calendar year, purchased service does not affect the denominator for the calculation of final average earnings in s. 40.02 (33) (a) 2., Stats., nor the amount of a person’s creditable service in a particular annual earnings period for purposes of s. 40.23 (2m) (fm) or 40.63 (1) (a), Stats., for example.

Note 2: Purchased service credit is included in the “creditable service” used to determine the normal retirement age and the maximum formula benefit for a protective occupation participant under ss. 40.02 (42) (a) and 40.23 (2m) (b), Stats., respectively, as well as months of creditable service for reducing the actuarial adjustment under s. 40.23 (2m) (f) 2., Stats., and the reduction of duty disability benefits for service over 25 years under s. 40.65 (5) (a), Stats. Credit purchased under s. 40.285, Stats., except under s. 40.285 (2) (b), Stats., also applies to the “creditable service” used to determine eligibility for creditable military service, group health, and post-retirement life insurance, under ss. 40.02 (15) (c), 40.02 (25) (b) 6. a., 6e., 6m. b. and 6r. and 40.72 (4) (b), Stats. Limitations on the use of purchased credit for other governmental service in particular are listed in sub. (4) (e) 5.

Note 3: Service purchased under s. 40.285, Stats., shall be included with all other creditable service in the participant’s account divided by a qualified domestic relations order pursuant to s. 40.08 (1m) (b), Stats., provided the application for the purchase was actually received by the department prior to the decree date, as that term is defined by s. 40.02 (18f), Stats. See s. ETF 20.35 (3) (c).

Example 1. A person became a participating employee covered by the Wisconsin retirement system in 1995. The participant terminated employment in 1999 and took a separation benefit in 2000 thereby closing her Wisconsin retirement system account. She again became a participating employee on January 1, 2002, and later purchased all the service forfeited by taking the separation benefit in 2000. The years of service purchased are added to the participant’s current service balance and are included in the creditable service used to calculate a formula annuity benefit under s. 40.23 (2) (e), Stats. However, for all Wisconsin retirement system purposes she is treated as a new participant as of January 1, 2002. Her account and benefit rights are not restored as though her account had never been closed.

Example 2. A former member of the state teacher retirement system took a separation benefit in 1971. Subsequently buying creditable service for teaching services rendered in 1970 does not confer any present right to the minimum retirement age of 50 for teachers that was in effect in 1970.

Example 3. A former member of either the state or Milwaukee teacher retirement system before 1964 whose account was later closed by withdrawing member contributions as a member of either the combined or formula group, or by withdrawing both member and state deposits as a member of the separate group, does not reestablish that account by subsequently purchasing credit for the forfeited service. The former teacher is treated for all WRS purposes as a new employee upon returning to participating employment. Consequently, any benefits now paid to the participant are not being paid on the account of a December 31, 1963, member. However, nothing in this section shall be construed to prevent the Wisconsin department of revenue from interpreting s. 71.05 (1) (a), Stats., as it sees fit for its purposes.

5. Buying credit for service does not affect or restore earnings for any annual earnings period or for purposes of calculating a benefit or final average earnings.

(e) Limitation on creditable service purchases.

1. A maximum of two purchases per calendar year may be made under each of subs. (3) through (8).

Note: The purchase of the service for the qualifying period, teacher improvement leave, and previously uncredited service as a junior teacher or executive participating employee are all intended to be one-time purchases of the entire available credit with payment-in-full accompanying the application. Applications without full payment would generally be rejected. However, because a plan-to-plan transfer under s. 40.285 (5), Stats., is now an available payment option for all forms of creditable service purchase, the possibility exists that there will be a payment shortfall resulting in proration of the service purchased as provided by s. 40.285 (5) (c), Stats. This paragraph permits an additional creditable service purchase of the same type during the same calendar year, provided the participating employee remains otherwise eligible.

2. A person may not purchase credit for service to the extent that the effect would be to exceed the 1.0 year limit on creditable service for any annual earnings period. For purposes of this subdivision, notwithstanding par. (d) 4., the service for which the person wishes to purchase credit and all the person’s other purchased service credits shall be treated as if credited under the Wisconsin retirement system or a predecessor retirement system in the annual earnings periods when the services were actually rendered. The person’s current creditable service for an annual earnings period together with all previously granted service credits associated with that annual earnings period, including but not limited to purchased service credits as provided in this subdivision, shall first be subtracted from 1.0 year to determine the balance remaining, if any, for each annual earnings period that may be purchased under this section and s. 40.285, Stats.

Example 1. A participant earned 0.40 years of creditable service working for a participating employer during the 2004 annual earnings period. During the same annual earnings period, the participant worked 1,905 hours, the equivalent of one full year of creditable service, for another governmental employer not covered by the Wisconsin retirement system. Even if the participant is otherwise eligible to purchase credit for the other governmental service, no more than 0.60 years of service for the 2004 annual earnings period may be purchased.

Example 2. A participant whose annual earnings periods are calendar years, earned 0.60 years of creditable service between January and May 2005 by working overtime. The participant then terminated and took a separation benefit, forfeiting the service. The participant then returned to participating employment in July and earned 0.58 years of creditable service for the remainder of 2005. Some years later, the participant meets the qualifications to purchase the forfeited service. The participant may not purchase credit for more than 0.42 years of the forfeited service.

(f) Refunds. Refunds may not be made for amounts under the threshold established by s. 40.285 (7), Stats. Refunds shall be made in the manner provided by s. 40.285 (6), Stats. Interest on refunds is subject to the provisions of s. 40.08 (6), Stats. No excess funds transferred to the department by a plan-to-plan transfer may be refunded directly to the participant. If the department refunds any payment taken from additional contributions under subd. 2. or 3., it shall restore the refunded amount to the additional account as if the transfer had not occurred. The following order of priority shall determine the sources of any refund due:

1. The participant’s lump sum payment to the department. The refunded amount shall be paid directly to the participant.

2. Additional contributions transferred from the participant’s after-tax additional contribution account. The amount refunded shall be transferred back to the participant’s after-tax additional account.

3. Additional contributions transferred from the participant’s tax sheltered additional contribution account. The amount refunded shall be transferred back to the participant’s tax-sheltered additional account.

4. Funds transferred from another qualified retirement plan under s. 40.285 (5), Stats. When more than one qualified retirement plan was the source of transferred funds, the department shall determine the refunded amount to be returned to each qualified retirement plan.

(g) Treatment of payments.

1. Payments retained by the department shall be deposited in the participant’s required contribution account under s. 40.04 (4) (a) 1., Stats. Except as otherwise provided in subd. 3., if the participant participates in the variable trust the payment shall be divided between the core and variable accounts in the same proportion as the participant’s current contributions are so divided at the time that payment is received.

2. For interest crediting purposes, except as otherwise provided in subd. 3., all payments received to purchase creditable service including plan-to-plan transfer funds shall be treated as amounts received during the year in which the department actually receives the payment or transferred funds.

3. Notwithstanding subd. 2., for interest crediting purposes, funds transferred from the participant’s voluntary employee additional contributions that were in the prior year’s closing balance of the additional contribution account, including interest credited, when the transfer occurs shall retain that status so that the participant will not forfeit interest to be credited on the prior year’s closing balance. Notwithstanding subd. 1., amounts transferred from a participant’s additional contributions in the core investment fund to buy service shall remain in the core investment fund, and additional contributions transferred from the participant’s variable additional contributions to buy service shall remain in the variable fund. Nothing in this subdivision shall be construed to affect an individual’s variable cancellation rights under s. ETF 10.30 (5).

(h) Payment shortfalls.

1. For any type of creditable service purchased under s. 40.285 (2), Stats., if the purchase includes a plan-to-plan transfer and the total amount received by the department is less that amount required for the purchase of the service, and the difference exceeds the threshold for corrections under s. 40.285 (7), Stats., then the department shall proceed under s. 40.285 (5) (c), Stats., and allow the participant 30 days to pay the difference. If the difference is not received within 30 days after notice is sent to the participant, the department shall complete the purchase, reducing the amount of service credit purchased to the credit that can be purchased by the payment actually received.

Note: See s. ETF 20.17 (3) (d) for the required rules concerning how a forfeited service purchase is prorated when the participant forfeited service under more than one category of employment.

2. If the department determines that the actual cost of purchasing service under s. 40.285 (2), Stats., is greater than the amount estimated by the department for the participant, and the participant paid the estimated amount in full, then the participant shall be notified and allowed 30 days to either pay the balance due or withdraw the application, without prejudice. If the balance due or is not received prior to the deadline, then the department shall proceed under subd. 2. a., b., c. or d., as appropriate.

a. When a plan-to-plan transfer made up part of the payment, the department shall proceed under the payment shortfall provisions of s. 40.285 (5) (c), Stats., except as otherwise provided by subd. 2. c. or d.

b. When no plan-to-plan transfer is involved and subd. 2. c. or d. do not apply, or the participant made a timely request to withdraw the application, the department shall refund all amounts received as provided in par. (f).

c. If a Wisconsin retirement system annuity or lump sum in lieu of an annuity under s. 40.25 (1), Stats., is to be paid to the applicant, and the applicant so requests, the balance due shall be deducted from the lump sum or a subsequent monthly annuity payment payable. This subdivision paragraph does not apply if the balance due exceeds the amount of the benefit under s. 40.25 (1), Stats., or if the Department determines that the amount of the monthly annuity available for this deduction is insufficient.

d. If the application was for the purchase of credit for forfeited service or other governmental service, and subdivision paragraph c. does not apply, the department may complete a partial purchase as provided in sub. (3) (d) or (4) (g), respectively.

(i) No participant withdrawal or cancellation of application; exception. The participant may not cancel or withdraw an application to purchase service credits once any payment has been received by the department, except under the circumstances specified in par. (h) 2. b.

(j) Treatment of purchased service credit as pre-2000 or post-1999 service. For purposes of computing formula annuity benefits under s. 40.23 (2m) (e), Stats., and the differing multipliers applicable to creditable service that was performed before January 1, 2000, and on and after that date, purchased service credits will be treated as provided in s. ETF 20.19 (2).

(2) Definitions. Words, phrases and terms used in this section shall have the same meanings as set forth in s. 40.02, Stats., and s. ETF 10.01. In addition, in this section:

(b) “Current earnings” means the participant’s earnings in the most recent complete annual earnings period, provided the participant was a participating employee for the full annual earnings period. If the participant was not a participating employee throughout the most recently ended annual earnings period, “current earnings” means the product of the participant’s hourly pay rate on the date of application, multiplied by the number of hours the participant would reasonably be expected to be employed as a participating employee during the current annual earnings period, assuming that the participant would continue to be employed for the remainder of the current annual earnings period.

(c) “Date of application” means the date the signed application on the form approved by the department for the purchase of the type of service in question is received by the department, as determined under s. ETF 10.82 (1).

Note: The forms approved by the department for the purchase of service credits are “Application to Purchase Other Governmental Service,” form ET-2205, “Qualifying Service Purchase Estimate/Application,” form ET-4314, “Forfeited Service Purchase Estimate/Application” form ET-4315, “Uncredited Teaching Service Purchase Estimate/Application,” form ET-4323. These are individually customized forms that reflect the department’s estimate of the amount required from the participant for that particular purchase. In addition, where no standard form exists for the type of service purchase, customized estimates will be prepared by the department upon request. All forms and estimates can be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling (608) 266-3285 or toll free at (877) 533-5020. Forms should be requested at least four (4) weeks before the date the participating employee intends to apply, and well in advance of any anticipated termination of employment, to allow sufficient time for the department to calculate the personalized estimates of the cost.

(e) “Money purchase balance” means the sum of the participant’s employee required contributions and accrued interest, including accumulations resulting from purchases under this section, plus an amount from the employer reserve equal to the employee required accumulation less any amount resulting from purchases under s. 40.285 (2) (b), Stats., and interest accumulated on those amounts.

(f) “Other governmental service” means one of the following:

1. Service performed as an employee of any of the following:

a. The federal government.

b. The government of a U.S. state other than Wisconsin or a political subdivision, department or agency of such state.

c. An employer as defined by s. 40.02 (28), Stats., that does not participate in the Wisconsin retirement system with respect to the employee’s employment category.

2. Service as an employee for a participating employer in the Wisconsin retirement system that was performed before the employer began to participate with respect to the employee’s employment category, and that has not been recognized by the employer as creditable prior service.

Note: Under s. 40.21 (6), Stats., an employer may choose to recognize none, 25%, 50%, 75% or 100% of the previous service of existing employees when the employer first joins the Wisconsin retirement system, and may subsequently increase the recognized percentage for those who are still participating employees at the time. Any percentage of an employee’s previous service remaining unrecognized is “other governmental service” within the meaning of subd. 2.

(3) Purchasing creditable service forfeited by a separation benefit or withdrawal of employee or member contributions.

(a) Scope. This subsection applies to purchases of service under s. 40.285 (2) (a), Stats.

(am) Eligibility criteria.

1. An applicant is eligible to purchase service under this subsection if, on the date of application, the applicant is a participating employee with at least 3 continuous years of creditable service, as defined by s. ETF 10.01 (7) and no break in service between the three continuous years and the application date.

2. For purposes of s. 40.285 (2) (a) 2. b., Stats., unless barred because of receipt of a benefit as provided in subd. 3. or as otherwise provided in this section or s. 40.285, Stats., a person may purchase credit for rendering services that were then covered by the state teacher retirement system, Milwaukee teacher retirement fund or Wisconsin retirement fund, if the person subsequently received a lump sum payment under one of the separation or withdrawal laws in effect before January 1, 1982, including ss. 41.16, 1969-79 stats., 42.242 (5), 42.243 (7) (e), 1957-79 stats., 42.245 (4), 1965-79 stats., 42.49 (1) (a), 1945-79 stats., 42.49 (14), 1955-79 stats., 42.49 (16), 1965-79 stats., 42.75 (1), 42.76 (10), 42.78 (6), 1971-75 stats., 42.86 (1) and (2) and 42.91, 1969-79 stats., 66.90 (15), 1945 stats., 66.91, 1947-67 stats.

3. Conversely, a person who received an annuity, or a lump sum payment in lieu of an annuity under s. 40.25 (1), Stats., is not eligible to purchase credit under s. 40.285 (2) (a), Stats., for any services rendered to a participating employer as a participating employee prior to payment of the benefit. Correspondingly, no person may purchase credit under s. 40.285 (2) (a), Stats., for services rendered prior to receiving a lump sum benefit under the similar laws in effect for the Wisconsin retirement fund, state teacher retirement system or Milwaukee teacher retirement fund prior to January 1, 1982, including ss. 41.11, (11), 1969 stats., 41.11 (8) or (10), 1971-79 stats., 42.242 (7), 1957-79 stats., 42.245 (6), 1965-79 stats., 42.49 (15), 1955-79 stats., 42.73 (1) and 42.76 (12) (c), 1971-79 stats., 42.78 (2) (k) 1. or 2., 1975-79 stats., and 66.906 (3d), 1967 stats. Those are not separation or withdrawal benefit laws within the meaning of s. 40.285 (2) (a) 2. b., Stats.

(b) Service in different categories of employment; Calculation of cost. In cases where the service to be reestablished was earned in more than one employment category, separate calculations shall be done for each period of service using the applicable statutory contribution rate under s. 40.05 (1) (a), Stats., as affected by s. 40.05 (1) (b), Stats., for each employment category. The department’s estimate to purchase service shall be calculated based on all the years and fractions of a year of forfeited service that are then available for purchase under s. 40.285 (2) (a), Stats., and this subsection, including the limits of s. 40.285 (2) (a) 1. a. and b., Stats., unless the applicant specifies a lesser amount. If the applicant so requests on the application received by the department, the final calculation of cost made after the application is received may include all years and fractions of a year of forfeited service eligible for purchase under s. 40.285 (2) (a), Stats., as of the date of application.

(d) Proration of multiple category service for payment shortfall. If the participant’s payment to purchase service forfeited by a separation benefit or withdrawal of employee or member contributions is less than the amount needed to purchase all of the forfeited service that the participant is eligible to buy, the department shall complete the purchase by reducing the service credit purchased to the prorated credit that can be purchased by the payment actually received. Within each category of employment, the payment received shall be applied first to purchase service credit eligible to be treated as pre-2000 service, as provided in s. ETF 20.19 (2) (d). If the participant has forfeited service based on employment in more than one category under s. 40.23 (2) (b), Stats., and the participant does not specify the service category or categories to which the payment is to be applied, the department shall use the following order of priority in determining to which category of service to apply the payment, until the amount paid is exhausted:

1. Service as a protective occupation participant not subject to the federal Social Security Act, as described in s. 40.23 (2m) (e) 4., Stats.

2. Service as a protective occupation participant subject to the federal Social Security Act as described in s. 40.23 (2m) (e) 3., Stats.

3. Service as an elected official, as described in s. 40.23 (2m) (e) 2., Stats.

4. Service as an executive participating employee, as described in s. 40.23 (2m) (e) 2., Stats.

5. Service described in s. 40.23 (2m) (e) 1., Stats., as a teacher, as that term is as defined in s. 40.02 (55), Stats.

6. Service as a general category employee as described in s. 40.23 (2m) (e) 1., Stats., excluding service as a teacher.

(4) Purchase and crediting of other governmental service.

(a) Scope. This subsection applies to creditable service purchases under s. 40.285 (2) (b), Stats.

(b) Eligibility criteria. The department shall grant creditable service for other governmental service to participants who meet all of the following requirements:

1. On the date of application, the applicant is a participating employee with at least 3 continuous years of creditable service, as defined by s. ETF 10.01 (7), with no break in service between the three continuous years and the application date.

2. With respect to the other governmental service for which credit is to be purchased, the participant was the employee of a federal, state or local governmental entity. In this paragraph, notwithstanding s. 40.02 (26) and (28), Stats., the terms “employee” and “employer” have their common meanings. The term “employee” does not include an unpaid volunteer, an independent contractor, a person contracted to furnish more than his or her personal services, a patient or inmate of a hospital, home or institution who performs services therein, or anyone who did not receive salary, wages or other compensation for his or her services. Employment by a private or non–profit entity which received government moneys or which was under contract to provide services to or on behalf of a governmental entity does not constitute employment with a governmental entity.

3. The participant submits an application to the department with payment, on a form approved by the department. The applicant shall then have 90 days to complete the application process by submitting all of the following:

a. Evidence that the service was other governmental service and which meets the requirements of par. (c). The department’s determination as to the sufficiency of the documentation shall be subject to timely appeal to the employee trust funds board under ch. ETF 11.

b. A written certification by the employer for which the service was rendered that the service will not be used to establish entitlement to, or the amount of, any other pension or retirement benefit from a plan for federal, state or local government employees which is subject to sections 401 or 403 of the internal revenue code, except for a disability or OASDHI benefit or a benefit paid for service in the national guard and the reserves. If the participant is unable to obtain the employer’s certification through reasonable efforts, the department may accept the employee’s written statement in lieu of the employer’s certification, or contact the employer directly. If the employer does not have the information necessary to make this certification, the department may accept the employee’s written statement in lieu of the employer’s certification.

Note: If the federal, state or local governmental retirement or pension plan, like the Wisconsin retirement system, provides a benefit defined in part by service but also includes an alternative money-purchase benefit, then service under that plan is used to establish entitlement even if the particular individual received a benefit calculated without reference to years of service. The same is true for any plan with a vesting requirement.

(c) Required evidence of service. A participant who proposes to purchase other governmental service shall provide to the department all of the following:

1. The correct name and current or latest address, and telephone number, if any, of the employer for which the service was rendered.

2. The dates of service for the other governmental employer, including the beginning and ending dates of each period of employment.

3. Evidence of whether the employment was considered full-time or part-time, and of the number of hours worked in each calendar year, sufficient to establish the amount of service which the participant is eligible to purchase. Full-time employment will be assumed to be 8 hours per day and 40 hours per week, absent a showing that the employer established a different standard. Years of service shall be calculated from hours of service rendered in the manner provided in s. ETF 10.03 (3).

4. Evidence that the employer was a federal, state, or local governmental entity in the United States. The department may rely on the determination of the social security administration as to whether an employer is a governmental entity.

5. Evidence that the participant was an employee of the governmental entity.

6. Evidence that:

a. For service that was performed before July 1, 2011, the service met the participation standard under s. ETF 20.015 (1).

b. For service that was performed on or after July 1, 2011, the service met the participation standard under s. ETF 20.015 (2).

7. Evidence that all of the following are true:

a. The service was not performed as an independent contractor or subject to a contract under which the employee furnished more than his or her personal services.

b. That the services were not performed as a student assistant, or as an employee-in-training or for a school or other educational institution where the employee was a student attending classes and performing services incidental to the course of study.

c. The services were not performed on or after April 23, 1992, while the person was a full-time student who had not attained age 20.

d. The services were not performed after the person had already become an annuitant, excluding annuities received in the capacity of another person’s beneficiary, named survivor or alternate payee.

e. The services were not performed for a hospital, home or institution while the person was a patient or inmate.

f. The employer was not a private or non-profit entity under a contract to provide services to or on behalf of a governmental entity.

8. If the participating employee is applying to receive creditable service for service in the U.S. armed forces or national guard, evidence that the employee was discharged from the U.S. armed forces or national guard under honorable or general conditions.

(d) Cost to purchase other governmental service.

1. The cost to purchase other governmental service is intended to fully fund the anticipated benefit increase provided by the purchased service credit, based on the laws then in effect.

2. The actuary shall devise the method for calculating the cost to purchase other governmental service. The actuary’s calculation shall use the same economic and actuarial assumptions used in the actuary’s valuations of the Wisconsin retirement system. The actuary shall establish the factors necessary to determine the actuarial value to each applicant of the purchased service credit. Those factors may include, without limitation:

a. The participant’s current employment category as determined under s. 40.23 (2m) (e), Stats. If the participant is employed in 2 or more categories on the date of application, the computation shall be based on the current employment category in which the participant has accrued the most creditable service.

b. The participant’s earnings for the last completed annual earnings period, as of January 1 preceding the date of application.

c. The number of years, in hundredths of a year, of service credit the participant requests to purchase.

d. The participant’s date of birth.

e. The participant’s accumulated employee required contributions, including interest, as of the January 1 preceding the date of application.

f. Twelve times the participant’s final average earnings determined as of January 1 preceding the date of application.

g. The participant’s years of creditable service, including all previously purchased service credit, by employment category and by pre-2000 and post-1999 service.

Note: This amendment (CR 09-057) to the existing rule provides clarification that the actuary may include the eight factors specified in the rule when determining the actuarial value of the purchased service credit along with other relevant factors. In addition, the rule corrects a typo by adding the word “service” to the applicable section.

h. The participant’s variable excess or deficiency balance under s. 40.23 (2m) (c), Stats., as of January 1 preceding the date of application.

3. The actuary may, at any time, change the method of calculating the cost of other governmental service credits if warranted by changes in the benefit laws or valuation assumptions of the Wisconsin retirement system or by other factors the actuary determines to be actuarially significant. The actuary’s new method of calculation shall be applied as soon as possible unless a delayed effective date is recommended by the actuary. The department may complete pending transactions and honor cost estimates produced before the new method of calculation went into effect.

(e) Creditable service based on purchase of other governmental service; limitations.

1. The amount of other governmental service purchased through all purchases made under this section may not exceed the amount of the participant’s creditable service earned under the Wisconsin retirement system and credited as of the date of the last application to purchase other governmental service, excluding any service previously purchased by the participant.

2. Other governmental service shall be credited in the general employment category regardless of the employee’s current employment category or the nature of the service, and benefits based on the purchased service shall be calculated under s. 40.23 (2m) (e) 1., Stats.

3. Service, including teaching service, shall be granted in hundredths of a year, at the rate of one year for 1,904 hours or more worked in one calendar year. If the participant worked less than 1,904 hours in a calendar year, the partial year of other governmental service shall be calculated by dividing the number of hours worked by 1,904.

4. A participant’s total creditable service in any annual earnings period from all sources may not exceed one year.

5. Creditable service purchased under this section shall be used solely to calculate a formula annuity benefit amount based upon years of creditable service, as under ss. 40.23 (2) (b) or (2m) (e), 40.25 (1), 40.63 (8), and 40.73 (1) (c), Stats. The department may not consider purchased other governmental service for any other purpose, including but not limited to determining:

b. Whether the participant has met the service requirements for disability benefits under s. 40.63 (1) (a) or (4), Stats.

c. Whether the participant has met the service requirements to continue insurance after termination of employment under s. 40.02 (25) (b) 6. a., 6e., 6m. b., 6r., or 40.72 (4) (b), Stats.

d. The amount of creditable service which the participant is eligible to reestablish under s. 40.285 (2) (a), Stats., or to purchase under this subsection.

e. The amount of creditable military service for which the participant is eligible under s. 40.02 (15) (c), Stats.

f. Notwithstanding sub. (1) (g) 1., if any service for a Wisconsin employer which has been credited under this section is subsequently recognized as creditable prior service under s. 40.21 (6), Stats., the participant’s creditable service for other governmental service shall be reduced accordingly and the associated contributions plus the interest credited to those contributions shall be transferred to the employee’s additional account and shall be available to the employee in the same manner as other contributions under s. 40.05 (1) (a) 5., Stats. No other refund to the employee may be made.

(f) Payments received to purchase other governmental service; limitations on benefits. The department shall account for amounts received to purchase other governmental service, and the interest credited to such in a manner that permits identifying and subtracting such funds from amounts to be increased by a matching amount from the employer reserve when computing a money purchase annuity or a death benefit, as provided by ss. 40.23 (3) and 40.73 (1) (am), Stats., and for purposes of calculating the hypothetical annuity under s. 40.73 (1) (c), Stats.

(g) Payment shortfall. If the participant does not withdraw the application or pay the balance due on a payment shortfall within 30 days after notice is sent to the participant, the department shall complete the purchase, either by deducting the amount due from the participant’s annuity, if any, as provided in sub. (1) (h) or by reducing the amount of service credit purchased to the credit that can be purchased by the payment actually received.

(5) Credit for service during qualifying period.

(a) Scope. This subsection applies to purchases of service under s. 40.285 (2) (d), Stats.

(b) Calculation of amount due. The department’s estimate to purchase service shall be calculated based on the fraction of a year of qualifying service that is available for purchase under s. 40.285 (2) (d), Stats., and this subsection. The payment to purchase qualifying service as provided in s. 40.285 (2) (d), Stats., shall be based on the applicant’s highest earnings in a single annual earnings period as of the date of application. The earnings shall be annualized prior to calculating the amount due from an applicant who earned less than a full year of service in the highest annual earnings period as defined in s. 40.02 (3), Stats.

Example 1. Calendar year 2005 was the applicant’s highest annual earnings period on the date her application to purchase service is received. During 2005, the applicant had 0.75 years of creditable service and $27,000 in earnings. The earnings will be “annualized” to $36,000 (i.e., $27,000 divided by 0.75) and that amount will be used for purposes of calculating the payment due.

Example 2. An applicant whose annual earnings periods are calendar years had $34,000 in earnings and 1.0 years of creditable service in 2004, the highest earnings reported for any calendar year as of the date of application. The applicant also had $27,000 in earnings but only 0.75 years of creditable service in 2005. For purposes of calculating the payment due, the actual earnings for 2004 will be used because that is the highest earnings year, and the department will not annualize the lower 2005 earnings to $36,000.

(c) Requirement to first purchase forfeited service. If a participating employee has previously received a separation benefit or withdrawal of member contributions after serving a qualifying period, the participant may purchase credit for a qualifying period only if the participant has first reestablished the maximum possible years of forfeited creditable service under s. 40.285 (2), Stats., that the participant is eligible to buy as of the date that the department receives the application to buy qualifying service.

(d) Employment category to be credited. The qualifying period of service shall be credited to the employment category in which the service would be credited if the qualifying service had been creditable at the time it was performed.

(6) Purchase of service for teacher improvement leave.

(a) Scope. This subsection applies to purchase of creditable service under s. 40.285 (2) (e), Stats.

(b) Eligibility; Board of Regents certification. In addition to the other requirements of sub. (1) for applying, the applicant is responsible for first applying to the Board of Regents as required by s. 40.285 (2) (e) 1., Stats., and obtaining the certification of the period of compensated teacher improvement leave occurring between January 1, 1964, and August 31, 1967. The Board of Regents certification must be submitted to the department in order to obtain the application form to apply to purchase credit for the service.

Note: The form “Uncredited Teaching Service Purchase Estimate/Application,” form ET-4323 can be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling (608) 266-3285 or toll free at (877) 533-5020.

(c) Calculation of amount due. The department’s estimate to purchase service shall be calculated based on all the years and fractions of a year of teacher improvement leave that are identified in the Board of Regents’ certification and are available for purchase under s. 40.285 (2) (e), Stats., and this subsection.

(7) Purchase of previously uncredited service as a junior teacher.

(a) Scope. This subsection applies to purchase of creditable service under s. 40.285 (2) (f), Stats.

(b) Eligibility. Purchase of service under this subsection is available only to participating employees who were both:

1. Engaged as a principal occupation in teaching in the public schools, state colleges or university of the state or any political subdivision of the state, excluding the city of Milwaukee.

2. So employed during any part of a school year prior to the 1957-58 school year, when the teacher’s 25th birthday had not occurred by the July 1 immediately preceding the beginning of the school year.

(c) Calculation of amount due. The department’s estimate to purchase service shall be calculated based on all the years and fractions of a year of junior teaching service that are available for purchase under s. 40.285 (2) (f), Stats., and this subsection.

(8) Purchase of previously uncredited service as an executive official.

(a) Scope. This subsection applies to purchases of previously uncredited service as an executive official under s. 40.285 (2) (c), Stats.

(b) Eligibility. Except as provided in par. (c), any current participating employee who, on or after May 3, 1988, was an executive participating employee as defined by s. 40.02 (30), Stats., may purchase credit under s. 40.285 (2) (c), Stats., for service previously uncredited due to any statutory age restriction for persons over age 62, provided the participating employee also meets the criteria of subd. 1. or 2. or both.

1. Was born before January 1, 1920, and who at any time from July 1, 1974 through September 30, 1981, held a position listed in s. 20.923 (4), (8) or (9), Stats., during the time of employment.

Note: Section 20.926 (1) (a), Stats., as in effect from July 1, 1974, through December 31, 1981, excluded credit for service in such position rendered after the end of the calendar quarter in which the person attained age 62.

2. Was born before February 1, 1926, and who at any time from October 1, 1981, through January 31, 1988, held a position listed in s. 20.923 (4), (8) or (9), Stats., during the time of employment.

Note 1: Section 40.02 (17) (c), Stats., as in effect from January 1, 1982, until May 3, 1988, barred creditable service for persons in such positions after the first day of the fourth month commencing after attaining the age of 62.

Note 2: The referenced positions listed in s. 20.923 (4), (8) and (9), Stats., include the president of the university of Wisconsin system, which was so listed in s. 20.923 (4) (j) 1., Stats., effective from August 4, 1973, and at all times material to s. 40.285 (2) (c), Stats.

(c) Exclusion from eligibility. No person who purchased creditable service under s. 40.02 (17) (e), Stats., as in effect from May 3, 1988, until July 26, 2003, is eligible to purchase creditable service under s. 40.285 (2) (c), Stats.

(d) Calculation of amount due. The department’s estimate shall be calculated based on all the years and fractions of a year of previously uncredited service that are available for purchase under s. 40.285 (2) (c), Stats., and this subsection. All participating employees purchasing service under s. 40.285 (2) (c), Stats., shall pay the same rate for such service, as prescribed by that statute, regardless of whether the participating employee is a present or former elected official or an appointee of such an official.

(e) No retroactive effect on prior payment. No present or former elected official, or an appointee of such an official, who purchased service under former s. 40.02 (17) (e), Stats., as in effect from May 3, 1988 through August 14, 1991, shall be entitled to any refund or additional benefit based upon the amendment of s. 40.02 (17) (e), 1989 stats., by 1991 Wisconsin act 39 or the renumbering and subsequent amendment of s. 40.02 (17) (e), Stats., by 2003 Wisconsin act 33.

History

• CR 07-062: cr. Register June 2008 No. 630, eff. 7-1-08; CR 09-057: am. (4) (d) 2. (intro.) and g. Register May 2010 No. 653, eff. 6-1-10; correction in (1) (c) 3. a. made under s. 13.92 (4) (b) 7., Stats., Register August 2013 No. 692, eff. 9-1-13; correction in (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694, eff. 11-1-13; CR 14-055: r. (2) (d), am. (2) (f) 1. (intro.), (4) (b) 3. b., r. and recr. (4) (c) 6., am. (4) (c) 7. (intro.), a., e., cr. (4) (c) 8. Register May 2015 No. 713, eff. 6-1-15; 2015 Wis. Act 330 s. 20: am. (6) (b), (c) Register April 2016 No. 724, eff. 5-1-16; CR 19-126: am. (1) (b) 2., (d) 4., (4) (b) 3. b., (e) 5. b. Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 20.19 Treatment of purchased and other creditable service for percentage rates used to calculate retirement, disability and certain death benefits {#sec-etf-20.19 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.19}

(1) Purpose. 1999 Wisconsin Act 11 provides a higher percentage rate under s. 40.23 (2m) (e), Stats., for creditable service performed before January 1, 2000. The purpose of this section is to further clarify what percentage rate will apply to creditable service added to a participant’s account through service purchases, creditable military service, creditable prior service, and any other service added to the participant’s account as a result of a court decision, legislation, or any other means, and assumed creditable service used to calculate a disability benefit as provided in s. 40.63 (8), Stats.

(2) Purchased and other creditable service. For purposes of s. 40.23 (2m) (e), Stats., all of the following shall apply:

(a) For purposes of s. 40.23 (2m) (em) 1. a., Stats., creditable service is forfeited on the date the participant’s benefit approval date for a benefit paid under s. 40.25 (2), Stats.

Note: See s. ETF 10.01 (1k).

(b) Purchased service credit under s. 40.285 (2) (a), Stats., for service forfeited after January 1, 2000 shall be treated as post-1999 service, regardless of when the services were actually rendered. This same treatment applies to purchased service credit for service that was originally forfeited before January 1, 2000, then purchased under s. 40.285 (2) (a), Stats., or s. 40.25 (6), 1981-2001 stats., was subsequently forfeited after January 1, 2000, through a separation benefit paid under s. 40.25 (2), Stats., then later purchased under s. 40.285 (2) (a), Stats., or s. 40.25 (6), 1999-2001 stats.

Note: Section 40.25 (6), Stats., was repealed by 2003 Wis. Act 33.

(c) Purchased service credit under s. 40.285 (2) (a), Stats., for creditable service forfeited before January 1, 2000, will be treated as pre-2000 service if the creditable service in question was forfeited before January 1, 2000, regardless of when the service credit is purchased.

(d) If for any reason a participant who is eligible to purchase service credit for both service that was forfeited before January 1, 2000 and service that was forfeited after January 1, 2000, purchases less than all of the available service credit, then the payment received shall first be applied to purchase credit for service treated as pre-2000 service.

(dm) Purchased service credits under s. 40.285 (2) (b), Stats., for other governmental service will be treated as pre-2000 or post-1999 service depending on when the actual services for which credit is purchased were rendered to the governmental entity described in s. ETF 20.17 (1) (f).

(e) A qualifying period of service purchased under s. 40.285 (2) (d), Stats., shall be considered to be performed before January 1, 2000.

(f) Executive service purchased under s. 40.285 (2) (c), Stats., shall be considered to be performed before January 1, 2000.

(g) Creditable service granted under s. 40.02 (17) (gm), Stats., for services performed as an assistant district attorney shall be considered to be performed before January 1, 2000.

(h) Teacher improvement leave purchased under s. 40.285 (2) (e), Stats., shall be considered to be performed before January 1, 2000.

(i) Junior teacher service purchased under s. 40.285 (2) (f), Stats., shall be considered to be performed before January 1, 2000.

(j) Service performed as a member or employee of the legislature or employee of a legislative service agency that is purchased under 1999 Wis. Act 11, section 27 (2), shall be considered to be performed before January 1, 2000.

(k) Creditable prior service credited under s. 40.02 (16), Stats., that was actually performed before January 1, 2000 shall be considered to be performed before January 1, 2000. Creditable prior service that was actually performed after December 31, 1999 shall be considered to be performed after that date.

(L) Any other service actually performed before January 1, 2000 that is credited to the participant’s account as a result of a court decision, legislation, or any other means shall be considered to be performed before January 1, 2000 for the purpose of determining the applicable percentage rate under s. 40.23 (2m) (e), Stats.

(3) Creditable military service. For purposes of s. 40.23 (2m) (em) 1. c., Stats.,the amount of creditable military service that is considered to be performed before January 1, 2000, is granted in proportion to the final amount of the participant’s total creditable service, other than creditable military service, credited to the participant’s account.

(4) Assumed service for disability benefits.

(a) The assumed creditable service under s. 40.63 (8), Stats., that is calculated through December 31, 1999 shall be considered to be performed before January 1, 2000, and the assumed creditable service calculated for any period after December 31, 1999 shall be considered to be performed after that date.

(b) Any assumed creditable military service for which a participant is eligible based on actual and assumed creditable service that is calculated through December 31, 1999 shall be considered to be performed before January 1, 2000. Any assumed creditable military service for which a participant is eligible based on actual and assumed creditable service that is calculated for any period after December 31, 1999 shall be considered to be performed after that date.

(5) Creditable service for periods of temporary disability. Creditable service granted for any period of temporary disability through December 31, 1999 under s. 40.29, Stats., shall be considered to be performed before January 1, 2000. The creditable service granted for any period of temporary disability after December 31, 1999 shall be considered to be performed after that date.

(6) Treatment of creditable service after a retirement annuity is terminated and the account reestablished. When a participant’s account is reestablished under s. 40.26 (2), Stats., if the participant was not a participating employee after December 31, 1999 but before the effective date of the participant’s retirement annuity that was terminated under s. 40.26 (1), Stats., the percentage rates under s. 40.23 (2m) (e), Stats., shall not apply to the creditable service considered to be performed before January 1, 2000 that was performed before the annuity effective date.

(7) Treatment of creditable service after a disability annuity is terminated and the account reestablished.

(a) When a participant’s account is reestablished under s. 40.63 (10), Stats., if the participant is a participating employee after December 31, 1999, all creditable service that is considered to be performed before January 1, 2000 under this section and under s. 40.23 (2m) (em), Stats., shall be considered to be performed before January 1, 2000, for any subsequent benefit calculations.

(8) Creditable service divided per a qualified domestic relations order.

(a) The percentage of a participant’s account that is awarded to an alternate payee in qualified domestic relations order under s. 40.08 (1m), Stats., shall be applied equally to the creditable service considered to be performed both before January 1, 2000 and the service considered to be performed after December 31, 1999, which is credited or creditable to the participant’s account as of the decree date.

(b) The percentage of a participant’s account that is awarded to an alternate payee in a qualified domestic relations order under s. 40.08 (1m), Stats., shall be applied equally to the creditable military service considered to be performed both before January 1, 2000 and the creditable military service considered to be performed after December 31, 1999, date for which the participant would be eligible based on the years of service that are credited or creditable to the participant’s account as of the decree date. Creditable service performed after the decree date does not increase the amount of creditable military service that is awarded to the alternate payee.

History

• CR 00-022: cr. Register July 2001, No. 547 eff. 8-1-01; corrections in (2) (e), (f), (h) and (i) made under s. 13.93 (2m) (b) 7., Stats., Register January 2004 No. 577; CR 07-062: am. (2) (b), (d) and (3) (d) 2., r. and recr. (2) (c), cr. (2) (dm) Register June 2008 No. 630, eff. 7-1-08; CR 11-040: am. (3) (a), r. (3) (b) Register July 2012 No. 679, eff. 8-1-12; renum. (3) (a) to (3) under s. 13.92 (4) (b) 1., Stats., Register July 2012 No. 679; CR 19-126: renum. (6) (a) to (6) and am., r. (6) (b) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 20.20 Cancellation of application for retirement annuity, separation or lump sum benefit {#sec-etf-20.20 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.20}

(1) Any separation, retirement or lump sum benefit payment application canceled pursuant to this section shall have no force or effect, and any subsequent application shall be treated as a new application. Repayment in full of any sum paid under the application for which cancellation is sought shall be required. The employer may not make this payment on behalf of the recipient of the benefit.

(2) A request to cancel an application under this section shall be in writing. The request to cancel shall be rejected unless received by the department by the close of regular office hours on the last working day prior to the applicable deadline under sub. (3) or (4). If the deadline specified under sub. (3) or (4) falls on a Saturday, Sunday or holiday under s. 230.35 (4) (a), Stats., the request to cancel shall be timely only if received in the department by the close of regular office hours on the last working day preceding the Saturday, Sunday or holiday.

Example: If the date the account will be debited in response to the application falls on a Monday which is not a holiday, then the request to cancel must be received by the department no later than 4:30 p.m. on the preceding Friday, the last working day prior to the debiting date. If that Monday were a holiday, the debiting date would be Tuesday, the next working day as provided by s. ETF 10.633 (3), but the deadline for cancelling the application would remain Friday, the last working day preceding the debiting date.

(3) An application for a separation benefit under s. 40.25 (2), Stats., shall be canceled if:

(a) The applicant’s written request for cancellation is received by the department no later than the close of the department’s regular office hours on the last working day before the participant’s account in the employee accumulation reserve is debited for funding the benefit as provided by s. ETF 10.633 (1) (c).

(b) The applicant becomes a participating employee within 30 days after the application was received by the department.

(c) The applicant dies prior to the date of the separation benefit check.

(4) An application for a retirement annuity under s. 40.23 or 40.24, Stats., or s. ETF 20.04, or a lump sum payment under s. 40.25 (1) or (4), Stats., shall be canceled if the participant’s written request for cancellation is received by the department no later than the close of the department’s regular office hours on the last day before the participant’s account in the employee accumulation reserve is debited for funding the benefit as provided by s. ETF 10.633 (1) (a) or (c) for retirement annuities or lump sum payments, respectively.

History

• Cr. Register, April, 1983, No. 328, eff. 5-1-83; am. (3) (intro.), Register, October, 1992, No. 442, eff. 11-1-92; am. (1), (2), (3) (intro.) and (a) and (4), Register, January, 1996, No. 481, eff. 2-1-96; correction in (3) (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1999, No. 523.

Wis. Admin. Code § ETF 20.21 Changing annuity effective dates {#sec-etf-20.21 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.21}

An annuity effective date shall not be changed after the effective date of the annuity unless the applicant’s written request for the change is received by the department within 60 days after the date on which the first annuity check, share draft or other draft is issued or funds are otherwise transferred.

Note: This rule (CR 09-057) codifies the department’s use of a deadline pertaining to annuity effective date changes and makes that deadline consistent with the deadline for annuity option changes in s. 40.24 (4), Stats.

History

• CR 09-057: cr. Register May 2010 No. 653, eff. 6-1-10.

Wis. Admin. Code § ETF 20.23 Adjusting annuities for equity after reentry into service {#sec-etf-20.23 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.23}

(1) Pursuant to s. 40.03 (1) (a), Stats., in determining the monthly amount of a recomputed annuity in the normal form under s. 40.26 (3), Stats., the applicant’s estimated social security benefit shall not be greater than the amount determined by:

(a) Dividing the creditable service earned prior to the effective date of the prior annuity by the participant’s total creditable service.

(b) Dividing the final average earnings determined for the new annuity computation by the final average earnings determined in computing the prior annuity.

(c) Multiplying the result in par. (a) times the result in par. (b) times the social security benefit amount used in determining the amount of the prior annuity.

(d) Dividing the creditable service earned since the effective date of the prior annuity by the participant’s total creditable service.

(e) Multiplying the result in par. (d) times the social security benefit amount determined under s. ETF 20.03 (2) based on the participant’s total service and earnings.

(f) Adding the amounts determined in pars. (c) and (e).

(2) Pursuant to s. 40.03 (1) (a), Stats., the monthly amount of a recomputed annuity in the normal form under s. 40.26 (3), Stats., excluding any portion which on either the original or recomputed annuity was a variable annuity, shall not be less than the monthly amount of the original core annuity in the normal form increased by any dividends granted prior to termination of the original annuity.

(3) The board may review adjustments made under this section and may make other adjustments as necessary to prevent any inequity.

History

• Cr. Register, February, 1984, No. 338, eff. 3-1-84; CR 09-057: am. (2) Register May 2010 No. 653, eff. 6-1-10.

Wis. Admin. Code § ETF 20.25 Core and variable annuity changes {#sec-etf-20.25 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.25}

Annuity changes shall be made as follows:

(1)

(a) Except as otherwise provided in par. (b), a core annuity dividend, as recommended by the actuary and approved by the chair of the employee trust funds board and the department’s secretary, shall be distributed based on each December 31 valuation as specified in s. 40.27 (2), Stats. The dividend shall be effective on the April 1 following the valuation date and shall apply to core annuities effective on or prior to the date of the valuation. As authorized under s. 40.27 (2) (b), Stats., different percentages shall be determined for annuities effective for less than a full year on the valuation date. The percentages shall be determined by multiplying the number of full months the annuity was in force times the percentage change applicable to annuities effective for the full year, dividing the result by 12 and rounding the answer to the nearest tenth of a percent. No increase shall be applied to any annuity for which the resulting increase would be less than one tenth of a percent.

(b) The total amount distributed to the annuity reserve under 1999 Wis. Act 11, section 27 (1) (a) shall be distributed effective April 1, 2000, in the form of a percentage increase. The percentage shall be recommended by the actuary separate from the distribution of any surplus created by the annual distribution under s. 40.04 (3) (a), Stats., or otherwise. The percentage under this paragraph shall be the same for all affected annuities, including those with effective dates after December 31, 1998 and before January 1, 2000.

(2) Variable annuity changes, as recommended by the actuary and approved by the secretary, shall be made based on each December 31 valuation as specified in s. 40.28 (2), Stats. The changes shall be effective on the April 1 following the valuation and shall apply to variable annuities effective on or prior to the date of the valuation, regardless of whether the annuity becomes a core annuity in the following year.

History

• Cr. Register, November, 1957, No. 23, eff. 12-31-57; r. and recr. Register, December, 1976, No. 252, eff. 1-1-77; renum. from Ret 8.05 (2) and am., Register, January, 1983, No. 325, eff. 2-1-83; emerg. r. and recr. eff. 1-1-84; r. and recr. Register, April, 1984, No. 340, eff. 5-1-84; renum. (1) to (1) (a) and am., cr. (1) (b), Register, September, 2000, No. 537, eff. 10-1-00; CR 02-049: am. (1) (a) and (2) Register September 2002 No. 561, eff. 10-1-02; CR 03-062: am. (1) (a) and (2), Register January 2004 No. 577, eff. 2-1-04; CR 09-057: am. (intro.), (1) (a) and (2) Register May 2010 No. 653, eff. 6-1-10.

Wis. Admin. Code § ETF 20.30 Annuity underpayments {#sec-etf-20.30 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.30}

Pursuant to s. 40.08 (7) (c), Stats., if an annuity under s. 40.23, 40.24, 40.63, or 40.73, Stats., is underpaid by more than $2 in a month, and if that underpayment is uncorrected for 12 or more months, then the payment to the annuitant to correct the underpayment shall include interest at 0.4% per month for each full month between the date the underpayment occurred and the date the retroactive correction is paid. The interest due shall be calculated separately for each month’s underpaid amount. For purposes of this section, “full month” means the period from any date in a month to the corresponding date in the next month, or to the end of the month if there is no corresponding date.

Note: This rule (CR 09-057) changes the calculation of interest on underpayments to conform to s. 40.08 (7) (c), Stats., and pay monthly interest on a particular month’s underpayment until it is corrected.

History

• Cr. Register, October, 1992, No. 442, eff. 11-1-92; CR 09-057: am. Register May 2010 No. 653, eff. 6-1-10.

Wis. Admin. Code § ETF 20.35 Qualified domestic relations orders; division of WRS accounts and annuities {#sec-etf-20.35 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.35}

(1) Scope and purpose.

(a) This section applies to any order to divide any benefit of the Wisconsin retirement system which is received by the department.

Note: The department has approved the following forms for orders to divide benefits of the Wisconsin retirement system: ET-4926, Order to Divide Wisconsin Retirement System Benefits, for use if the termination of a marriage or domestic partnership occurred inside of Wisconsin; and ET-4935, Foreign Jurisdiction Order to Divide Wisconsin Retirement System Benefits, for use if the termination of a marriage or domestic partnership occurred outside of Wisconsin but within a state or territory of the United States. Either form is available from the department of employee trust funds at no charge or can be accessed on the department’s website by searching for the form number.

(b) The purpose of this section is to specify how the department shall apply a QDRO to the participant’s account or annuity or respond to an order which is not a QDRO.

(c) For purposes of ss. 40.02 (48m) and 40.08 (1m), Stats., and this section, a marriage is terminated upon entry of a judgment, decree or order of divorce, annulment or legal separation. A domestic partnership, as defined in s. 40.02 (21d), Stats., is terminated as provided in s. ETF 20.10 (3). A domestic partnership, as defined in s. 770.01 (2), Stats., is terminated as provided in s. 770.12, Stats.

(d) The department must receive the DRO from either the participant or the alternate payee within 20 years after the marriage was terminated by a final judgment or decree, or the otherwise valid DRO shall have no effect on the participant’s account or annuity.

Note: See s. ETF 10.82 concerning receipt by the department.

(2) All QDRO divisions. Upon receipt of a QDRO, the department shall divide WRS accounts and annuities in accordance with the percentage awarded to the alternate payee in the QDRO, based on the date on which the marriage was terminated by a court judgment, decree or order or the domestic relationship was terminated as provided in s. ETF 20.10 (3) or s. 770.12, Stats., as follows:

(a) Percentages. The percentage of the participant’s account or annuity that is awarded to the alternate payee by a QDRO is limited to a percentage between zero percent (0%) and fifty percent (50%) expressed to no more than 2 decimal places. A QDRO with a percentage awarded to the alternate payee expressed to more than 2 decimal places may not be rejected for that reason alone, but the department shall round the percentage to 2 decimal places.

(b) Debts of the participant. Any debt, memorandum account or account receivable balance reflecting amounts owed by the participant to the department, the fund or any benefit plan, accrued as of the decree date and still outstanding at the time the account or annuity is divided, shall be divided between the participant and alternate payee in the same proportion as the participant’s account or annuity.

(3) Dividing account when participant was not an annuitant on decree date. If the participant was not an annuitant on the decree date, the department shall divide the participant’s account as provided in s. 40.08 (1m) (b) 1., (c), (d) and (f) 1., Stats., and as follows:

(a) Creditable service. Creditable service which the participant has been granted as of the decree date is a part of the Wisconsin retirement system account of a participant and shall be divided in the same ratio as other account balances. The creditable service and amounts awarded to the alternate payee shall be in a separate account in the fund for the benefit of the alternate payee. After the division under this section, the alternate payee may apply for a separation benefit under s. 40.25 (2), Stats., provided the application is received by the department prior to the date on which the participant would have met the minimum age requirement for a retirement annuity under s. 40.23, Stats., or after the date on which the participant has met the minimum age requirement but is not vested, and payment of a separation benefit would comply with all provisions of the internal revenue code. After the date the participant reaches or would have reached the minimum retirement age, and is vested, the alternate payee may only apply for retirement benefits under s. 40.23, 40.24, or 40.25 (1), Stats.

(b) DRO received after participant had become an annuitant. The participant shall retain the remainder in his or her separate account under s. 40.04 (4) (a), Stats., unless the participant is an annuitant at the time of the division. If the participant is an annuitant when the division occurs, the participant’s creditable service and account as of the decree date shall be reduced by the percentage awarded to the alternate payee. The balances shall then be brought forward to the effective date of the current annuity, including any contributions and service for periods after the decree date, and the annuity option chosen by the participant shall be recalculated. The amount by which the monthly annuity payments previously made to the participant exceed the participant’s recalculated monthly entitlement for the same period shall be a balance due from the participant. This balance due shall be due from the participant and may be collected as provided in s. 40.08 (4), Stats., including by a reduction of the present value of the participant’s annuity as reduced by the division, resulting in a recalculation and reduction of the participant’s monthly annuity.

(c) Purchased service credits. Previously purchased service shall be divided in the same proportion as the other portions of the participant’s account and creditable service. If an application to purchase creditable service is received prior to the decree date, as defined by s. 40.02 (18f), Stats., then service for which payment is made shall be included in the division. The department shall pay any refund due only to the participant and shall bill only the participant for any supplemental payment due for such purchased service. No refund shall be due to the participant from the department for the portion of any excess payment withdrawn from the public employee trust fund by the alternate payee. Credit for service purchased by an application received after the decree date shall not be divided by the qualified domestic relations order regardless of the source of the funds for the purchase or when the services were actually rendered.

(d) Creditable military service. If the participant has active military service, the alternate payee shall be granted the percentage specified in the QDRO of the military service for which the participant would be eligible as of the decree date, based on the participant’s total creditable service as of the decree date, regardless of when the participant requests the crediting or provides satisfactory documentation. If a participant does not provide to the department proof of active military service and the certification of active military service on the form prescribed by the department, the department shall nevertheless divide the participant’s account without the military service provided the court order is otherwise a QDRO.

(e) Actuarial adjustment for early retirement.

1. The actuarial reduction applied to the participant’s and alternate payee’s annuities as provided in s. 40.23 (2m) (f) and (fm), Stats., shall be calculated based on the participant’s and alternate payee’s actual ages on his or her respective annuity effective dates, using the creditable service that would otherwise have been credited to the participant’s account on the respective annuity effective dates if the participant’s creditable service had not been reduced per a QDRO.

2. For the purposes of determining the amount of service used to calculate the alternate payee’s actuarial reduction for early retirement under the provisions of s. 40.23 (2m) (fm), Stats., if the participant has part-time service in at least five of the ten annual earnings periods immediately preceding the annual earnings period in which the alternate payee’s retirement benefit becomes effective or the date on which the participant terminated covered employment, whichever is earlier, the provisions of s. 40.23 (2m) (fm), Stats., shall apply. If the decree date is prior to July 1, 2009, the provisions of s. 40.23 (2m) (fm), Stats., in effect prior to that date shall apply.

(4) Dividing account when participant was an annuitant on decree date.

(a) Annuity division. Except as provided in par. (b), if the participant was an annuitant on the decree date, the department shall divide the present value of the annuity as provided in s. 40.08 (1m) (b) 2., (c), (d) and (f) 2., Stats., and sub. (3) (e), and as follows, and pay separate annuities to the participant and alternate payee, respectively. An annuity shall be divided so that the actuarial present value of the undivided annuity is equal to the aggregate actuarial present values of the 2 separate annuities resulting from the division as of the effective date of the division.

(b) Zero percent QDRO. If the participant’s annuity is a joint and survivor annuity with the alternate payee as the named survivor, and the percentage awarded to the alternate payee in the QDRO is zero percent (0%), then the alternate payee may not receive any Wisconsin retirement system annuity based on the QDRO and the participant’s annuity shall be recalculated as a straight life annuity payable to the participant, with no change in the remaining guarantee period, if any.

(c) Division of accelerated annuity option. If the participant selected an accelerated payment option as provided in s. 40.24 (1) (e), Stats., or s. ETF 20.04 (3), and the participant’s temporary annuity is still in force as of the effective date of the annuity division, then the department shall calculate the present value of both the temporary and life annuities using the actuarial tables in effect on the effective date of the annuity division. The department shall then divide the total present value based on the percentages specified in the QDRO and calculate separate annuities for the participant and alternate payee as specified in s. 40.08 (1m) (f) 2., Stats. If the participant or alternate payee provides a projection of his or her social security benefits at age 62 from the social security administration, the department shall use that projected social security amount to calculate the amount of the temporary annuity for that person. If no projection is supplied, then notwithstanding s. ETF 20.03 (2), the department shall assume that person’s projected social security benefits at age 62 equals that person’s prorated portion of the participant’s temporary annuity amount as of the effective date of the annuity division, calculated based on the respective percentages of the annuity being awarded to the participant and alternate payee. If the reduced annuity payable for life to the alternate payee or participant is below the threshold specified by s. ETF 20.05 (1), then that person shall receive an annuity in the same optional form originally selected by the participant, except that the temporary annuity option provided in s. 40.24 (1) (e), Stats., or s. ETF 20.04 (3) is not available.

(d) Disability annuities. Upon division of a disability annuity calculated under the provisions of s. 40.63 (1) or (4), Stats., the alternate payee’s annuity shall consist of a portion based on the participant’s actual service and a portion based on the assumed service used to calculate the participant’s disability annuity. The portion of the alternate payee’s annuity based on the participant’s assumed service and age shall cease upon the death of the alternate payee. Benefits payable upon the death of the alternate payee shall be based on the guaranteed portion of the alternate payee’s annuity only. Once the participant’s disability annuity has been divided, the termination or suspension of the participant’s disability annuity or the death of the participant has no effect on the alternate payee’s annuity. If the participant’s disability annuity is subsequently terminated and the participant’s account restored under the provisions of s. 40.63 (9) and (10), Stats., the contributions and service credited to the restored account shall be reduced by the same percentage awarded to the alternate payee by the QDRO.

(e) Rehired annuitant with suspended account. The suspended payments in the participant’s memorandum account are converted into a monthly annuity as of the decree date. This monthly amount consists of the increase that is attributable to the suspended payments from the participant’s original annuity. This increase is added to the monthly annuity as of the decree date, and the annuity division is based on this amount.

(5) Rejection of DRO.

(a) Rejection and notice. The department may not honor any order to divide Wisconsin retirement system benefits which it determines is not a QDRO as defined in s. 40.02 (48m), Stats. The department shall send written notice of its rejection of an order to the person submitting the order and to the participant and alternate payee if those persons’ current names and addresses are stated in the order or are readily determinable from department records.

(b) Participant’s account already closed. A QDRO or order to vacate received after the participant’s account was closed by payment of a lump sum benefit on or after the decree date has no effect, regardless of whether the participant returned to participating employment after the decree date. If the participant’s account to which the QDRO applies is subsequently restored under the provisions of s. 40.25 (5), Stats., because the benefit was paid in error, or under an agreement approved by the department where the full amount of the benefit paid plus monthly interest at the assumed rate has been paid to the department, the restored account shall be divided according to the QDRO.

(c) Alternate payee’s account already closed. An order to vacate or an amended DRO received after the alternate payee’s account was closed by payment of a lump sum benefit has no effect.

(d) Participant or alternate payee deceased. A QDRO received after the participant’s or alternate payee’s date of death has no effect on the participant’s account or annuity.

(6) Limited grace period to correct specified errors.

(a) If the department rejects an order for the division of a participant’s account and subsequently receives an otherwise acceptable application from the participant for a benefit which would close the participant’s account due to payment of a lump sum benefit, the department shall delay payment of the lump sum benefit until 30 days after the date the order for division was rejected. This paragraph applies only if the basis for the rejection was one or more of the following:

1. The order did not meet all of the requirements in s. 40.02 (48m), Stats.

2. The order received by the department was not a certified copy or was not signed by the judge or a duly authorized family court commissioner.

(b) If the department has not received a second QDRO within 30 days after the rejection, then the department shall complete processing the application for benefits and sub. (5) (b) shall apply.

(7) Effect of post-decree date corrections and adjustments.

(a) Service purchased after decree date. Credit for service purchased by the participant after the decree date in a QDRO may not be affected by that QDRO.

(b) Active military service. If the department divided a participant’s account per a QDRO without first receiving proof and certification of active military service, as provided in sub. (3) (d), and the participant subsequently provides documentation of active military service and the certification on the form prescribed by the department, the department shall divide the military service creditable based on services rendered prior to the decree date between the participant and alternate payee’s accounts pursuant to the QDRO. Any resulting adjustments to the alternate payee’s and participant’s benefits shall be made retroactive to the respective benefit effective dates. The participant may not receive creditable military service for any active military service that would have been granted to the alternate payee had the participant submitted timely to the department the certification of active military service as provided in s. 40.02 (48m) (f), Stats.

(c) Other corrections and adjustments directly affecting benefits. The effect of any other corrections and adjustments to service, contributions, or interest earnings affecting the benefits the participant accrued as of the decree date, including corrections of administrative errors and corrections or adjustments of any factor affecting the calculation of an annuity to be divided, shall be divided between the participant and the alternate pursuant to the QDRO. The participant and alternate payee accounts or annuities shall be adjusted accordingly. However, the department shall not adjust benefit amounts if the amount of the adjustment would be less than the thresholds specified in s. 40.08 (7) (a), Stats.

(d) Interest. When a participant’s annuity is divided as provided in sub. (4) and retroactive payments are due to an alternate payee, or when an alternate payee’s annuity must be increased retroactively for any reason, no interest as specified in s. 40.08 (7) (c), Stats., is payable to the alternate payee for any monthly payments payable prior to the month in which the department received the QDRO.

(8) compliance with section 415 (b) of the internal revenue code.

(a) The aggregate benefits paid to the participant and alternate payee shall not exceed the benefit limits under Section 415 (b) of the Internal Revenue Code. The department shall make any necessary adjustments to the participant’s and alternate payee’s benefits on an equitable pro rata basis to assure compliance with Section 415 (b) of the Internal Revenue Code. Benefits derived from employee contributions that are actually paid by the employee shall not be subject to the benefit limitations under this subsection.

(b) If the participant’s retirement annuity has been divided per a QDRO under s. 40.08 (1m) (b) 2., Stats., any subsequent adjustments necessary for compliance with Section 415 (b) of the Internal Revenue Code that result from either post-retirement annuity adjustments under s. 40.27 (2) or 40.28 (2), Stats., or from increases in the compensation limits specified in Section 415 (b) of the Internal Revenue Code, shall be prorated based on the percentage of the participant’s account that was awarded to the alternate payee in the QDRO.

(c) If the participant’s account is divided as provided in sub. (3), any benefit adjustments required under Section 415 (b) of the Internal Revenue Code shall be applied as follows:

1. If the alternate payee’s benefit becomes effective prior to the participant’s benefit effective date:

a. If the aggregate benefits that would be payable to both the alternate payee and the participant on the alternate payee’s benefit effective date do not exceed the maximum benefits that would be payable to the participant under Section 415 (b) of the Internal Revenue Code if the account had not been divided, the alternate payee’s benefit will not be reduced.

b. Any subsequent benefit adjustments necessary for compliance with Section 415 (b) of the Internal Revenue Code will be applied solely to the participant’s benefits and shall not affect the benefit amount payable to the alternate payee.

2. If the participant’s benefit becomes effective prior to the alternate payee’s benefit effective date, or the participant’s and alternate payee’s benefits become effective on the same date:

a. If the aggregate benefits that would be payable to both the participant and alternate payee on the participant’s benefit effective date exceed the maximum benefits that would be payable to the participant under Section 415 (b) of the Internal Revenue Code if the account had not been divided, the adjustment to participant’s annuity shall be prorated based on the percentage of the participant’s account that was not awarded to the alternate payee in the QDRO.

b. When a benefit is subsequently paid to the alternate payee, the portion of the total adjustment necessary for compliance with Section 415 (b) of the Internal Revenue Code that is applied to the alternate payee’s benefits shall be prorated based on the percentage of the participant’s account awarded to the alternate payee in the QDRO.

3. If the participant’s benefit effective date is on or after the alternate payee’s benefit effective date as specified in subd. 2., and as a result of either post-retirement annuity adjustments under s. 40.27 (2) or 40.28 (2), Stats., or of increases in the compensation limits specified in Section 415 (b) of the Internal Revenue Code, subsequent benefit adjustments are necessary for compliance with Section 415 (b) of the Internal Revenue Code, such adjustments shall be prorated based on the percentage of the participant’s account that was awarded to the alternate payee in the QDRO.

(d) For the purposes of determining the aggregate benefits payable to the participant and alternate payee under par. (b), the department shall:

1. First calculate the present value of what the participant’s benefit would be as of the benefit effective date of the participant’s or alternate payee’s benefit effective date, whichever is earlier, as though the participant’s account had never been divided by a QDRO.

2. If that total aggregate benefit amount is higher than the maximum benefits permitted under Section 415 (b) of the Internal Revenue Code, the department shall reduce the aggregate benefits to the maximum amount payable under Section 415 (b) of the Internal Revenue Code. The present value of that maximum benefit payable shall be divided between the participant and alternate payee in proportion to the percentage of the participant’s account that was awarded to the alternate payee. The benefits payable to the participant and alternate payee shall then be adjusted as follows:

a. If the alternate payee has received a lump sum benefit under s. 40.25 (1) or (2), Stats., the gross amount of the alternate payee’s lump sum payment shall be subtracted from the present value of the participant’s maximum benefit payable under Section 415 (b) of the Internal Revenue Code calculated under par. (d). The present value of the benefit paid to the participant shall not exceed the remainder of the present value of that maximum benefit payable under Section 415 (b) of the Internal Revenue Code.

b. If the alternate payee has previously taken a monthly retirement annuity, the present value of the alternate payee’s annuity as of the alternate payee’s annuity effective date shall be subtracted from the present value of the participant’s maximum benefit payable under Section 415 (b) of the Internal Revenue Code. The present value of the benefit paid to the participant shall not exceed the remainder of the present value of that maximum benefit payable under Section 415 (b) of the Internal Revenue Code.

c. If the participant’s benefit becomes effective prior to the alternate payee’s benefit effective date, the present value of the benefit paid to the participant shall not exceed the maximum aggregate benefit calculated under this paragraph minus the present value of the benefit payable to the alternate payee as of the participant’s annuity effective date.

History

• Cr. Register, July, 1999, No. 523, eff. 8-1-99; CR 07-062: am. (3) (d) 2. Register June 2008 No. 630, eff. 7-1-08; CR 11-040: am. (2) (b) Register July 2012 No. 679, eff. 8-1-12; CR 11-041: am. (1) (b), (c), (2), (3) (a), (b), (c) 1. to 3., cr. (c) 5., am. (4) (c) 3., (5), (6), (7) (a), (8) (b), (c), cr. (8) (d), (9), (10) Register July 2012 No. 679, eff. 8-1-12; CR 14-055: am. (3) (d) 4., r. (9) Register May 2015 No. 713, eff. 6-1-15; CR 19-126: r. and recr. Register May 2021 No. 785, eff. 6-1-21; correction in (1) (c) made under s. 35.17, Stats., and correction in (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register May 2021 No. 785.

Wis. Admin. Code § ETF 20.37 Death benefits {#sec-etf-20.37 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.37}

(1) Termination prior to death. If employment with a participating employer actually terminated prior to the death of the participant, then the participant may not be treated as a participating employee for purposes of s. 40.71, Stats., regardless of when notice of the termination is filed with the department.

Note: If the termination of employment occurs on the last day on which the employee actually performs services for the employer, and the death occurs on the same day, the participant will be treated as an employee through the end of that day, as provided by s. 40.02 (25), Stats.

(2) For purposes of applying s. 40.74 (6), Stats., when determining beneficiaries of a death benefit, reasonable efforts to locate a potential beneficiary of a participant shall consist of all of the following actions:

(a) Search on the department’s internal information technology systems for information regarding the participant and any potential beneficiary.

(b) Utilize an appropriate Internet program for locating people.

(c) Contact a person who may be a beneficiary, if the department learns the name of that person.

(d) Contact the employer of a person who may be a beneficiary, if the department learns the name of the employer.

Note: 2007 Wisconsin Act 131 created s. 40.74 (6), Stats. This provision allows the department, when determining beneficiaries of a death benefit, to presume that a beneficiary who cannot be located within 12 months actually died before the participant. The language in the statute is permissive. This rule (CR 09-057) establishes what will be considered to be reasonable efforts by the department to locate the potential beneficiary.

History

• CR 07-068: cr. Register March 2008 No. 627, eff. 4-1-08; CR 09-057: cr. (2) Register May 2010 No. 653, eff. 6-1-10; CR 14-055: r. (2) (e) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 20.39 Delinquent state tax obligations {#sec-etf-20.39 omnilex-key=us-wi-regs-official--agency-etf--ETF 20.39}

(1) Payments subject to attachment. As provided by s. 40.08 (1r), Stats., in order to satisfy delinquent tax obligation of a person, the Wisconsin department of revenue may attach any one of the following types of payment being made by the Wisconsin retirement system to that person:

(a) Monthly payments of a regular annuity under s. 40.23 or 40.24, Stats.

(b) Monthly payments of a disability annuity under s. 40.63, Stats.

(c) The continued monthly annuity payments of a joint-and-survivor annuity that are paid to a named survivor after the death of the annuitant, regardless of whether the annuity is a regular annuity under s. 40.23 or 40.24, Stats., or a disability annuity under s. 40.63, Stats.

(d) Monthly payments of an annuity from the annuitant’s additional contributions.

(e) A lump sum paid in lieu of an annuity under s. 40.25, Stats., regardless of whether the payment is required or is made at the request of the participant.

(f) A lump sum separation benefit paid under s. 40.25 (2), Stats.

(2) Limitations and WRS payments not subject to attachment.

(a) Attachment under s. 40.08 (1r), Stats., and this section applies only to benefits in pay status. The department of revenue may not compel the payment of benefits for which a person has not applied or apply for benefits on behalf of any person.

(b) Section 40.08 (1r), Stats., and sub. (1) do not apply to lump sum payments of additional contributions made under s. 40.25 (4), Stats., or to death benefits paid under s. 40.73, Stats., including but not limited to remaining guaranteed monthly annuity payments, regardless of whether the death benefits are paid in the form of an annuity.

(3) Notice and continued withholding from annuities.

(a) The department shall transmit amounts withheld under s. 40.08 (1r), Stats., to the department of revenue and notify the payee of the amount withheld.

(b) The withholding from annuity payments subject to sub. (1) shall continue until the earlier of the following:

1. The department has withheld the total amount the department of revenue identified as attached to satisfy a delinquent tax obligation.

2. The department is instructed otherwise by the department of revenue or a court of competent jurisdiction.

Note: 2007 Wis. Act 131 moved the authorization for the department of revenue to attach benefits for delinquent state tax obligations from s. 40.08 (1), Stats., into a new s. 40.08 (1r), Stats. The authorization was also amended to limit the authority of the department of revenue to attaching only lump sum payments and annuities paid under ss. 40.23, 40.24, 40.25 (1) or (2), or 40.63, Stats. This rule (CR 09-057) therefore states that a tax attachment does apply to joint-and-survivor annuities being paid to a named survivor but does not apply to certain lump sum benefits and death benefits payable under statutes not cited in the new s. 40.08 (1r), Stats. The rule would also state that the attachment of an annuity will result in continued monthly withholding until the entire delinquent tax amount has been withheld, or the department is instructed to stop withholding. The rule also provides that the statutory authority to attach a payment does not confer any right for the department of revenue to ask the department of employee trust funds to pay out a benefit for which the person has not applied.

History

• CR 09-057: cr. Register May 2010 No. 653, eff. 6-1-10; correction in numbering of (3) (b) made under s. 13.92 (1) (b) 1., Stats., Register May 2010 No. 653.

Chapter ETF 40 HEALTH CARE BENEFITS

Wis. Admin. Code § ETF 40.01 Coverage of an insured surviving dependent {#sec-etf-40.01 omnilex-key=us-wi-regs-official--agency-etf--ETF 40.01}

(1) Death of insured employee does not terminate coverage for surviving insured dependents.

(a) Scope. This section applies only when an insured employee had family health insurance coverage under s. 40.51, Stats., in effect at the time of his or her death and was survived by persons who were insured under that family coverage at the time of the death.

Note: The term “insured employee” is defined by s. 40.02 (39), Stats.

(b) Family coverage of all surviving insured dependents continues. The family coverage as in effect at the time of the death of the insured employee will continue in effect, covering the dependents who were duly insured under that coverage at the time of that death until all dependents lose eligibility or become insured under another health insurance policy and as approved by the department.

Note: The term “dependent” is defined for group health insurance purposes by s. ETF 10.01 (2) (b).

(c) Other continuation coverage rights preserved. Nothing in this section shall be construed to interfere with any person’s right to apply or eligibility for continued health insurance coverage under the terms and conditions of the group health insurance contract as expressly mandated by s. 40.51 (3), (4) or (5), Stats., referencing s. 632.897 (2) (b) 3., Stats., or under 42 USC 300bb-1 and federal regulations prescribed thereunder.

Note: Section 632.897 (2) (b) 3., Stats., is a statute enforced by the Office of the Commissioner of Insurance. It provides that the spouse or dependent of a group member, who died while covered by a group policy, may elect to continue coverage under the group policy or convert to individual coverage, provided the person had been continuously covered under the group policy for at least three months before the death. Under 42 USC 300bb-1, a provision of the federal Public Health Service Act, the Secretary of the U.S. Department of Health and Human Services may prescribe regulations concerning continuation coverage for individuals under group health plans maintained by certain states or political subdivisions thereof, or an agency or instrumentality of certain states or political subdivisions thereof.

(2) Coverage limited to surviving insured dependents; exception.

(a) Except as provided in par. (b), no new dependents may be added to the family coverage in effect under this section and single coverage under this section may not be changed to family coverage to cover anyone except surviving insured dependents of the deceased insured employee.

(b) Notwithstanding par. (a), the group insurance board may provide by contract that some or all of the following persons may also be covered by the family coverage under this section.

1. Persons previously insured under the group insurance board health insurance contract as dependents of the deceased insured employee, who would have been eligible to resume such coverage if the insured employee had lived.

2. A child of the deceased insured employee who first became eligible for coverage under the group insurance board health insurance contract after the death of the insured employee.

Note: A copy of the applicable group health insurance contract may be obtained at no charge by writing to: department of employee trust funds, division of insurance services, P.O. Box 7931, Madison, WI 53707-7931, or by calling (608) 266-3285 or toll free at (877) 533-5020.

(2m) Responsible person.

(a) Multiple surviving insured dependents, with surviving spouse or domestic partner. If the deceased insured employee is survived by a spouse or domestic partner and other dependents of the deceased insured employee, then the family coverage shall continue in effect and the surviving spouse or domestic partner shall be the responsible person and have the same control and responsibilities with respect to the insurance coverage of the insured surviving dependents as the insured employee had while living except that the responsible person may split any converted sick leave credits among surviving insured dependents as approved by the department.

(b) Multiple surviving insured dependents, without surviving spouse or surviving domestic partner. If the deceased insured employee is not survived by a spouse or domestic partner but by more than one insured dependents, then the family coverage will continue in effect. The oldest surviving insured dependent, or that person’s guardian, shall be the responsible person and have the same rights and responsibilities with respect to the insurance coverage of the insured surviving dependents as the insured employee had while living except that the responsible person may split any converted sick leave credits among surviving insured dependents as approved by the department. Upon reasonable request from any adult surviving insured dependent or the guardian of any minor surviving insured dependent, the department may designate another surviving insured dependent, or that person’s guardian, as the responsible person.

(3) Duration of continuing coverage.

(a) Surviving spouse or surviving domestic partner. A surviving spouse or surviving domestic partner entitled to insurance coverage under this section and s. 40.02 (25) (b) 3., Stats., is entitled to continuous coverage under this section for life, unless sooner cancelled voluntarily or for non-payment of premiums. A suspension of coverage because of the operation of s. 40.05 (4) (b) or (be), Stats., does not affect this entitlement. The surviving spouse or surviving domestic partner may not add new dependents to this coverage.

Note: Section 40.02 (25) (b) 3., Stats., defines the surviving spouse or domestic partner of an employee, or retired employee, as an “eligible employee” having, under rules to be promulgated by this department, the same right to health insurance coverage as the deceased employee or retired employee except without any state contribution. Section 40.05 (4) (b) and (be), Stats, concern the accumulated sick leave conversion credit benefit plan. It permits a surviving insured dependent to delay deductions from a deceased employee’s accumulated sick leave conversion credits to pay for group health insurance under ch. 40, Stats., because the surviving insured dependent is covered by a health insurance plan or policy comparable to the standard plan during the period deductions are delayed. Health insurance coverage under ch. 40, Stats., is, in effect, suspended unless and until the dependent elects to reinstate coverage and resume the deductions from accumulated sick leave conversion credits.

(b) Other surviving insured dependents. The duration of coverage for other surviving insured dependents shall be established by the terms of the group health insurance contract approved by the group insurance board.

(4) Premium payments, cancellation of coverage and refunds.

(a) Premium payments. The insurance coverage under this section may be cancelled if premiums are not paid when due. Premiums for insurance coverage under this section shall be paid from the following sources in the following order:

1. Advance premiums payments received from the insured employee by payroll deduction, annuity deduction or direct payment for periods after the end of the month in which the insured employee died, minus any such amounts refunded to the employer.

2. The remaining balance of any converted sick leave credits under s. 40.05 (4) (b) or 40.95, Stats.

3. Deductions under s. 40.08 (2), Stats., from any annuity being paid from the Wisconsin retirement system to the responsible person, unless the annuity is insufficient to pay the monthly premium due.

4. Direct and timely payments by the responsible party.

(b) Cancellation of coverage. A responsible person may cancel coverage for which the person is responsible. Such cancellations are effective after the end of the month in which received, unless a different effective date is expressly provided in the group health insurance contract approved by the group insurance board.

History

• Cr. Register, January, 1987, No. 373, eff. 2-1-87; CR 08-079: r. and recr. Register April 2009 No. 640, eff. 5-1-09; EmR0938: emerg. am. (2m) and (3), eff. 1-1-10; CR 10-004: am. (2m) and (3) Register July 2010 No. 655, eff. 8-1-10; CR 14-055: cr. (1) (b) (title), am. (1) (b), cr. (1) (c) (title), am. (1) (c), (2m), (a), (b) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 40.10 Public employers health insurance {#sec-etf-40.10 omnilex-key=us-wi-regs-official--agency-etf--ETF 40.10}

(1) An employee of an employer, other than the state, shall be eligible for health insurance under s. 40.51 (7), Stats., if requirements of ss. 40.02 (46) and 40.22, Stats., or of s. 40.19 (4) (a), Stats., are satisfied. An employee of an employer that is not a participating employer shall be eligible for health insurance under s. 40.51 (7), Stats., if the requirements set forth in s. 40.02 (28) are satisfied and the following requirements are met:

(a) The employee works at least two-thirds of what is considered full-time employment by the department.

(b) Employment in the employee’s position is expected to last at least one year.

(2) As provided in a collective bargaining agreement under subch. IV of ch. 111, the employer, including an employer that is not a participating employer, shall pay an employer contribution toward the gross health insurance premium based on the lowest cost qualified plan in the service area of the employer, as follows:

(a) For insured part-time employees who are appointed to work less than 1,044 hours per year, an amount not less than 25% of the lowest cost qualified plan.

(b) For eligible employees not specified in par. (a) or (c), an amount between 50% and, except as provided in par. (d), 105% of the lowest cost qualified plan.

(c) For a retiree, surviving dependent or an eligible employee on leave of absence or layoff, an employer contribution is optional.

(d) The 105%-of-cost limitation in par. (b) does not apply to an employer that establishes an arrangement for contributing towards the premiums for employee health insurance under s. 40.51 (7), Stats., under which all of the following apply:

1. The employer contributions towards employee health insurance premiums are based upon the tier into which each available health plan is placed by the group insurance board.

2. The employee required contribution to the health insurance premium for single coverage is the same dollar amount for all plans in the same tier, regardless of the total premium. The employee required contribution to the health insurance premium for family coverage is the same dollar amount for all plans in the same tier, regardless of the total premium.

3. The employee’s required contribution to the health insurance premium for a plan classified in a higher cost tier, as compared to a plan in the next lowest cost tier, increases by at least $20 per month for single coverage and $50 per month for family coverage.

4. The employer contribution towards the premium of each qualified plan in the service area of the employer shall be an amount at least equal to the applicable minimum contribution under par. (a), (b) or (c). The employer contribution is determined by subtracting the employee contribution amount for the plans in that tier from the total plan premium for the type of coverage.

(3) Except as provided under sub. (2), the employer shall pay an employer contribution toward the gross health insurance premium based on the average premium of qualified plans in the service area of the employer, as follows:

(a) For insured part-time employees who are appointed to work less than 1,044 hours per year, an amount not less than 25% of the lowest cost qualified plan.

(b) For eligible employees not specified in par. (a) or (c), an amount between 50% and 88% of the average premium cost of qualified plans.

(c) For a retiree, surviving dependent or an eligible employee on leave of absence or layoff, an employer contribution is optional.

(d) The employer can establish an arrangement for contributing towards the premiums for employee health insurance under s. 40.51 (7), Stats., pursuant to sub. (2) (d) 1. through 4.

(e) The group insurance board, with the advice of the actuary, may classify a health plan offered to local government employees, including local government employees of employers who are not participating employers, in a tier that is different than that of the health plan of the same name as offered to state employees.

History

• Cr. Register, December, 1987, No. 384, eff. 1-1-88; CR 04-075: am. (2) (b), cr. (2) (d) and (e) Register November 2004 No. 587, eff. 1-1-05; CR 11-040: am. (2) (intro.), r. (2) (e), cr. (3) (intro.), (a) to (e) Register July 2012 No. 679, eff. 8-1-12; CR 12-054: renum. (1) to (1) (intro.) and am., cr. (1) (a), (b), am. (2) (intro.), (3) (e) Register October 2013 No. 694, eff. 11-1-13.

Chapter ETF 50 DISABILITY BENEFITS

Subchapter I Income Continuation Insurance

Wis. Admin. Code § ETF 50.10 Public employer income continuation insurance {#sec-etf-50.10 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.10}

(1) An employee of an employer, other than the state, shall be eligible for income continuation insurance under s. 40.61 (3), Stats., if the requirements of ss. 40.02 (46) and 40.22, Stats., are satisfied.

(3) The employer shall pay an employer contribution toward the income continuation insurance premium which is not less than the corresponding gross premium for the 180-day waiting period plan.

History

• Cr. Register, December, 1987, No. 384, eff. 1-1-88; CR. 16-034: am. (1) (intro.), r. (1) (a), (b), (c), (2) Register April 2017 No. 736, eff. 5-1-17.

Subchapter II Disability Annuity

Wis. Admin. Code § ETF 50.30 Eligibility for a disability annuity {#sec-etf-50.30 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.30}

(1) A person may be eligible for a disability annuity under s. 40.63, Stats., provided the person is not receiving benefits under subch. III.

(1g) For purposes of eligibility under s. 40.63 (1), Stats., an election of coverage to receive benefits under subch. III previously filed with the department will not cause a person to be ineligible for a disability annuity if a claim is filed on or after January 1, 2018 and the person is not receiving benefits under subch. III.

(1m) For purposes of eligibility under s. 40.63 (2), Stats., employment which is substantial gainful activity has intervened if, during any 12 consecutive calendar months beginning with the first of the month following the date service for the participating employer terminated, the participant received aggregate earnings, wages, salary and other earned income exceeding the annual dollar amount determined under s. 40.63 (11), Stats., that is in effect at the end of the 12 consecutive calendar month period.

(2) If the department determines that an applicant does not meet the requirements of s. 40.63 (1) (a), Stats., or this subchapter, the department shall deny the application. The applicant may file a written request for an appeal to the appropriate board under ch. ETF 11 no later than 90 days after the date the department’s determination was mailed to the applicant.

(3) In measuring creditable service earned in a calendar year for purposes of s. 40.63 (1) (a), Stats., and in totaling accumulated creditable service for purposes of s. 40.63 (4), Stats., the creditable service shall be determined based upon the service that would have been credited if the participant’s account had not been divided by a qualified domestic relations order to which s. 40.08 (1m) (b) 1., Stats., applied.

(3m) For purposes of s. 40.63 (1) (a), Stats., only, if a participant was previously receiving a long-term disability insurance benefit under subch. III, which was terminated for reasons other than fraud, misrepresentation, error, mistake or failure to provide required information, the participant is deemed to have received full creditable service for any month for which the previous long-term disability insurance benefit was paid.

(4) For purposes of benefits administered under ch. 40, Stats., the participant shall be treated as terminated for all ch. 40, Stats., purposes effective on the date before the s. 40.63, Stats., annuity is effective or on the termination date reported to the department by the employer, whichever is earlier. The benefits include, but are not limited to, health insurance coverage, sick leave credit usage, life insurance coverage, income continuation insurance coverage, Wisconsin retirement system coverage and death benefits under s. 40.73 (1) (am) and (c), Stats., and deferred compensation contributions and benefits under s. 40.80, Stats. This rule does not preclude a participating employer from placing the participant on an administrative leave of absence for purposes of benefits not administered under ch. 40, Stats.

History

• Cr. Register, September, 1983, No. 333, eff. 10-1-83; emerg. renum. to be (2) and am., cr. (1), eff. 10-15-92; renum. to be (2) and am., cr. (1) and (1m), Register, May, 1993, No. 449, eff. 6-1-93; cr. (3), Register, July, 1999, No. 523, eff. 8-1-99; am. (1m), Register, September, 2000, No. 537, eff. 10-1-00; CR 08-026: cr. (4) Register September 2009 No. 645, eff. 10-1-09; CR 17-031: renum. (1) (intro.) to (1) and am., r. (1) (a) to (c), cr. (1g), (3m) Register December 2017 No. 744, eff. 1-1-18; CR 19-097: am. (1g) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 50.31 Cancellation of a disability annuity application {#sec-etf-50.31 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.31}

An application for a disability annuity under s. 40.63, Stats., shall be canceled upon request of the applicant if the applicant’s written request for cancellation is received by the department no later than the close of the department’s regular office hours on the day before the participant’s account in the employee accumulation reserve is debited for funding the benefit as provided by s. ETF 10.633 (1) (b). If the day before the debiting date falls on a Saturday, Sunday or holiday under s. 230.35 (4) (a), Stats., the request to cancel shall be considered timely only if received in the department by the close of regular office hours on the last working day preceding the Saturday, Sunday or holiday. Repayment in full of any sum paid under the application for which cancellation is sought shall be required. The employer may not make this payment on behalf of the recipient of the benefit.

History

• Cr. Register, September, 1983, No. 333, eff. 10-1-83; am. Register, January, 1996, No. 481, eff. 2-1-96.

Wis. Admin. Code § ETF 50.315 Termination for fraud, misrepresentation, error, or mistake {#sec-etf-50.315 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.315}

(1) Payment of disability annuity benefits under s. 40.63, Stats., may be terminated immediately and overpayment recovered upon a department determination of either of the following:

(a) Disability annuity benefits were granted as the result of fraud or misrepresentation in the application or in required evidence of eligibility.

(b) Disability annuity benefits were granted due to an error or mistake by the department or due to an error or mistake in the information supplied by the employer used for determining eligibility, effective date, or amount of disability annuity benefits.

(2) The amount of monthly disability annuity benefits may be altered upon a determination that the amount of disability annuity benefits was computed in error.

(3) Disability annuity benefits may be terminated effective upon a determination by the department that the recipient has made misrepresentations or submitted false or fraudulent information regarding continued disability, earnings, wages, salary, or other earned income.

(4) If the department alters the amount of monthly disability annuity benefits under sub. (2) or terminates payment of disability annuity benefits under sub. (3), the department shall send notice of the action to the recipient. The notice shall be in the form of a written determination stating the reasons for the alternation or termination. The recipient may file a timely appeal of the alteration or termination with the appropriate board as provided in ch. ETF 11. If no timely appeal is filed, the alteration or termination of disability annuity benefits is final.

History

• CR 23-023: cr. Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 50.32 Definitions {#sec-etf-50.32 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.32}

In this subchapter and s. 40.63, Stats.:

(1) “Last day paid” means the most recent date for which the employee was paid earnings, including accumulated sick leave, other paid leave, vacation, compensatory time or worker’s compensation temporary disability benefits which may result in the last day paid being subsequent to the date the employee last rendered services.

(2) “Last rendered services” means most recently performed actual work for which entitled to earnings, excluding any subsequent period on sick leave, other paid leave, vacation, compensatory time and worker’s compensation temporary disability benefits.

(3) “Substantial gainful activity” means any work of a nature generally performed for remuneration or profit, involving the performance of significant physical or mental duties, or a combination of both, for which annual compensation exceeds an amount equal to $6,573 for determinations made in the calendar year commencing on January 1, 1992. For determinations made in subsequent calendar years, this dollar amount shall be increased by the salary index for each subsequent year, ignoring fractions of the dollar. Work is considered substantial even if performed part-time and even if it is less demanding or less responsible than the individual’s previous employment. Work is considered gainful even if it pays less than the individual’s previous employment.

(4) The date on which service for the participating employer terminated, for purposes of s. 40.63 (2), Stats., is the date on which the person last rendered services as defined under sub. (2).

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; cr. (4), Register, September, 2000, No. 537, eff. 10-1-00.

Subchapter III Long-Term Disability Insurance

Wis. Admin. Code § ETF 50.40 Purpose {#sec-etf-50.40 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.40}

The purpose of this subchapter is to administer the long-term disability insurance program for participating employees who are receiving benefits under this subchapter. For a claim to be approved under this subchapter, it must have been filed with the department before January 1, 2018.

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 17-031: renum. (1) to ETF 50.40 and am., r. (2) Register December 2017 No. 744, eff. 1-1-18; CR 19-097: am. Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 50.42 Definitions {#sec-etf-50.42 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.42}

Words, phrases and terms used in this subchapter have the same meaning as set forth in s. 40.02, Stats., and s. ETF 10.01, except as defined in this subchapter or where the context clearly indicates a different meaning. In this subchapter:

(1) “Claimant” means a person who made a claim for long-term disability benefits under this subchapter before January 1, 2018.

(2) “Earnings limit” means an amount equal to $6,573 for determinations made in the calendar year commencing on January 1, 1992, and for determinations made in subsequent calendar years, this amount shall be increased by the salary index for each subsequent year, ignoring fractions of the dollar.

(3) “Final average salary” or “FAS” means:

(a) Except as provided in par. (b), a monthly rate of earnings, ignoring any fractions of a dollar, obtained by dividing 36 into the participant’s total earnings received and for which contributions are made under s. 40.05 (1) and (2), Stats., during the 3 annual earnings periods (excluding any period more than 3 years prior to the effective date for any participating employer) in which the earnings were the highest.

(b) If the claimant does not meet the minimum service requirements of s. ETF 50.50 (2) (b), as it existed prior to June 1, 2021, and the claimant’s medically determinable impairment is a result of employment as a participating employee for an employer, then the FAS is calculated as follows:

Note: See https://docs.legis.wisconsin.gov/code/register/2021/785b/remove/etf50.pdf for the text of 50.50 (2) (b) prior to June 1, 2021.

1. Divide the total earnings received by the employee in the portion of the annual earnings period in which the last day paid occurs and the 2 immediately preceding annual earnings periods by,

2. The number of months, with all fractions of a month rounded to the next higher whole number, between the last day paid and the commencement date of the earliest annual earnings period in subd. 1. or, if later, the date the claimant commenced participating employment.

(5) “Long-term disability insurance” or “LTDI” means long-term disability insurance as provided under this subchapter.

(6) “Medically determinable impairment” means an impairment which has medically demonstrable anatomical, physiological or psychological abnormalities. The described abnormalities are medically determinable if they manifest themselves as signs or laboratory findings apart from symptoms which are not medically determinable.

(7) “Recipient” means a person receiving LTDI benefits under this subchapter.

(8) “Substantial gainful activity” has the same meaning as stated in s. ETF 50.32 (3).

(9) “Totally and permanently disabled” means the inability to engage in any substantial gainful activity by reason of a medically determinable impairment, whether physical or mental, which can reasonably be expected to result in death or to be permanent, or of indefinite and long-continued duration.

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 19-097: am. (1), r. (3m), (4) Register May 2021 No. 785, eff. 6-1-21; correction in (3) (b) (intro.) made under s. 35.17, Stats., Register May 2021 No. 785.

Wis. Admin. Code § ETF 50.44 Scope and application {#sec-etf-50.44 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.44}

This subchapter applies to any person who is receiving benefits under this subchapter or has filed a claim for benefits with the department before January 1, 2018.

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 17-031: am. (1), (2) (a) Register December 2017 No. 744, eff. 1-1-18; CR 19-097: renum. (1) to ETF 50.44 and am., r. (2) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 50.52 LTDI benefits {#sec-etf-50.52 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.52}

(1) Basic benefit.

(a) Benefit amount. The basic LTDI benefit payable to recipients shall be a monthly payment of 40% of the recipient’s final average salary or 50% of FAS for a recipient not personally covered under OASDHI. The basic benefit amount, once determined, shall subsequently be adjusted at the same time and by the same percentages as applicable to post-retirement annuity adjustments under s. 40.27, Stats.

(b) Reductions and offsets.

1. The department shall reduce the amount of a recipient’s monthly LTDI benefits under par. (a) by the amounts in subds. 2. and 3. The amount by which any lump sum benefit or separation benefit under subd. 2. exceeds the basic monthly LTDI benefit otherwise payable shall be carried over to reduce basic LTDI benefits payable in future months until the amount of the lump sum or separation benefit has been completely offset.

2. LTDI benefits shall be offset by an amount equal to the portion of any retirement annuity or lump sum benefit or separation benefit under s. 40.23, 40.24 or 40.25, Stats., on which the recipient is subject to federal income tax. This subdivision applies to any retirement annuity or lump sum benefit or separation benefit which is paid to the recipient as a result of the recipient’s application for the annuity or benefit, excluding any benefit funded by employee additional contributions. This subdivision does not apply to an annuity or lump sum benefit for which the recipient is eligible solely as a beneficiary, alternate payee or joint survivor of another participant.

3. LTDI benefits shall be offset by the amount of any normal form retirement annuity or lump sum retirement benefit under s. 40.23 or 40.25, Stats., for which the recipient is eligible, including a separation benefit that the recipient is eligible to receive under s. 40.23 (2m) (er) or 40.23 (3) (b), Stats., excluding the portion of any annuity or lump sum benefit or separation benefit on which the recipient would not be subject to federal income tax, or a benefit funded by employee additional contributions. Except for a protective occupation recipient, this offset shall be computed as of the recipient’s normal retirement age. This subdivision applies only after a recipient’s normal retirement date as defined by s. 40.02 (42), Stats. For a protective occupation recipient, the offset shall be computed as of the recipient’s 62nd birthday. This subdivision does not apply to an annuity for which the recipient is eligible solely as a beneficiary, alternate payee or joint survivor of another participant.

(c) Proration. Initial monthly LTDI benefits beginning on other than the first day of a month and final LTDI benefits ending on other than the last day of a month are prorated based on effective date and termination date as provided in s. ETF 50.62.

(2) LTDI retirement supplemental benefit.

(a) In addition to the basic LTDI benefit payable to a recipient, the LTDI program shall pay a retirement supplemental benefit in the form of an employer additional contribution to the Wisconsin retirement system for recipients qualifying under this subsection.

(b) The LTDI retirement supplemental benefit due shall be 7% of the recipient’s FAS for each month a recipient qualifies under par. (d). Except as provided in sub. (1) (c), the LTDI retirement supplemental benefit is not prorated. If a recipient is not qualified for the LTDI supplemental benefit on any day during a month, no LTDI supplemental benefits are payable for that month. The supplemental LTDI benefit amount, once determined, shall subsequently be adjusted at the same time and by the same percentages as applicable to post-retirement annuity adjustments under s. 40.27, Stats.

(c) As of December 31 each year, the supplemental LTDI benefit due for each of the preceding 12 months during which the recipient qualified under par. (d) to receive the retirement supplemental LTDI benefit shall be credited to the recipient’s WRS employer additional contributions account.

(d) A recipient qualifies for retirement supplemental LTDI benefits if all of the following apply:

1. LTDI benefits have not been terminated or suspended under s. ETF 50.56.

2. The recipient does not earn any creditable service.

3. Payment of the LTDI retirement supplemental benefit would not exceed any limitation on additional contributions or cause the Wisconsin retirement system to fail to meet requirements for a qualified plan under the U.S. internal revenue code, applicable regulations adopted under the U.S. internal revenue code, including proposed regulations in force pending adoption, or rules of the department.

4. The recipient has not applied for any retirement annuity or lump sum retirement or separation benefit from the Wisconsin retirement system, other than a benefit funded by employee additional contributions or from a Wisconsin retirement system account held as an alternate payee. Qualification ceases on the effective date of a retirement annuity or other benefit or the approval date of a separation benefit. This subdivision shall not apply if the application is withdrawn, void, canceled or not granted.

5. The recipient is not qualified to receive duty disability benefits under s. 40.65, Stats., regardless of the amount of duty disability benefits actually received.

(e) Monthly LTDI retirement supplemental benefits due are prorated based on the effective beginning date and termination date as provided in s. ETF 50.62.

(3) Continuation of group health insurance coverage for state employees. Pursuant to s. 40.51 (3), Stats., a recipient of LTDI benefits under this subchapter who is an insured employee under any group health insurance plan for state employees insured directly by the public employee trust fund shall also be entitled to continuation of that group health insurance in the same manner and to the same extent as is a disability annuitant under s. 40.63, Stats. Effective no later than January 1, 1993, contracts between the group insurance board and other insurers of group health insurance plans covering state employees shall provide the same continuation rights for recipients insured under those plans.

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 11-040: am. (2) (a) Register July 2012 No. 679, eff. 8-1-12; CR 14-055: am. (1) (b) 3. Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 50.54 Administration {#sec-etf-50.54 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.54}

(1) Plan administrator. The department shall administer the plan established by this subchapter on behalf of the employee trust funds board unless otherwise expressly provided in an administrative services contract between the employee trust funds board and an outside administrator.

(3) Periodic medical review. The department may require that any recipient shall be examined by at least one licensed and practicing physician, designated or approved by the department, during any calendar year the recipient receives benefits under this subchapter. The examining physician shall file with the department a written report of the examination which shall be in a form approved by the department and indicate whether the recipient is still totally and permanently disabled or, for a recipient qualifying under s. ETF 50.58 only, whether the recipient recovered to the extent that the recipient can efficiently and safely perform the duties required by the recipient’s former position as a protective occupation participant and whether the recipient recovered to the extent that the impaired condition is not likely to be permanent.

Note: Form ET-5909, “Recertification Medical Report,” is sent to the claimant by the department as necessary.

(4) Requests for information. The department may request any information on earnings, salary, wages, earned income, compensation or OASDHI benefits or entitlements as it deems necessary to implement the provisions of s. ETF 50.52 (1), including but not limited to copies of state and federal income tax returns.

(5) Application of anti-fraud statute. This subchapter is an employee benefit program created under ch. 40, Stats., through rule-making authority expressly granted in that chapter, for purposes of enforcement of the prohibitions of s. 943.395 (1) (c), Stats. Prohibited acts include presenting or causing to be presented false or fraudulent information, including a claim or benefit application, proof in support of a claim or benefit application, or information which would affect a future claim or application.

(6) Overpayment. Section 40.08 (4), Stats., shall apply to obtain repayment of any overpayment of LTDI benefits.

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 17-031: am. (1) Register December 2017 No. 744, eff. 1-1-18; CR 19-097: r. (2), am. (3), (4) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 50.56 Termination or suspension of benefits {#sec-etf-50.56 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.56}

(1) Duration of benefits. Except as otherwise provided in this section:

(a) For a recipient whose LTDI benefit effective date is prior to the date the recipient attains age 61, all LTDI benefits terminate at the end of the month in which the recipient attains age 65.

(b) For a recipient whose LTDI benefit effective date is on or after the date the recipient attains age 61 and prior to the date the recipient attains age 63, all LTDI benefits terminate at the end of the month in which the recipient attains age 66.

(c) For a recipient whose LTDI benefit effective date is on or after the date the recipient attains age 63 and prior to the date the recipient attains age 65, all LTDI benefits terminate at the end of the month in which the recipient attains age 67.

(d) For a recipient whose LTDI benefit effective date is on or after the date the recipient attains age 65 and prior to the date the recipient attains age 67, all LTDI benefits terminate at the end of the month in which the recipient attains age 68.

(e) For a recipient whose LTDI benefit effective date is on or after the date the recipient attains age 67 and prior to the date the recipient attains age 68, all LTDI benefits terminate at the end of the month in which the recipient attains age 69.

(f) For a recipient whose LTDI benefit effective date is on or after the date the recipient attains age 68 and prior to the date the recipient attains age 69, all LTDI benefits terminate at the end of the month in which the recipient attains age 70.

(g) For a recipient whose LTDI benefit effective date is on or after the date the recipient attains age 69, all LTDI benefits terminate 12 months after the LTDI benefit effective date.

(h) Notwithstanding pars. (a) to (g), no LTDI benefits shall be payable for any date after the recipient’s death.

(i) The effective date used to determine the duration of LTDI benefits is the effective date of the benefits being paid, not the effective date of terminated LTDI benefits paid under a previous application.

(j) The duration of LTDI benefits for recipients whose LTDI benefit effective date is on or after the date the recipient attains age 61 shall be periodically reviewed and may be revised based on the actuary’s determinations, as approved by the employee trust funds board, so as to provide LTDI benefits meeting equal cost standards under federal age discrimination law. As part of the regular 3-year general investigation under s. 40.03 (5) (b), Stats., beginning with the investigation based on data through 1996, the actuary shall determine the appropriate duration for LTDI benefits beginning at and after age 61. The employee trust funds board shall be responsible for approving any change to the duration of LTDI benefits. If the duration of LTDI benefits is changed, the duration of LTDI benefits being paid as the result of an application received by the department prior to the effective date of the change shall not be affected. Any such revision shall be effective upon promulgation as an amendment to this rule by the employee trust funds board.

(2) Termination for fraud, misrepresentation, error or mistake.

(a) Payment of LTDI benefits may be terminated immediately and overpayment recovered upon a department determination of either of the following:

1. LTDI benefits were granted as the result of fraud or misrepresentation in the application or in required evidence of eligibility.

2. LTDI benefits were granted due to an error or mistake by the department or due to an error or mistake in the information supplied by the employer used for determining eligibility, effective date or amount of LTDI benefits.

(c) The amount of monthly LTDI benefits may be altered upon a determination that the amount of LTDI benefits was computed in error.

(d) LTDI benefits may be terminated effective upon a determination by the department that the recipient has made misrepresentations or submitted false or fraudulent information regarding continued disability, earnings, wages, salary or other earned income.

(e) If the department alters the amount of monthly LTDI benefits under par. (c) or terminates payment of LTDI benefits under par. (d), the department shall send notice of the action to the recipient. The notice shall be in the form of a written determination stating the reasons for the termination. The recipient may file a timely appeal of the alteration or termination with the employee trust funds board as provided in ch. ETF 11. If no timely appeal is filed, the alteration or termination of LTDI benefits is final.

(3) Termination upon recovery or for failure to furnish information.

(a) The payment of LTDI benefits shall be terminated based on a determination by the department of any of the following:

1. The written physician’s report required in s. ETF 50.54 (3) indicates that the recipient has recovered from the medically determinable impairment so that the recipient is no longer totally and permanently disabled, or, for a recipient who qualified under s. ETF 50.58, recovered to the extent that the recipient can efficiently and safely perform the duties required by the recipient’s former position as a protective occupation participant or that the recipient’s impaired condition is not likely to be permanent. LTDI benefits are payable up to the date of recovery.

2. The recipient refuses to submit to an examination under s. ETF 50.54 (3) or refuses to submit information regarding earnings, wages, salary or other earned income as requested by the department. LTDI benefits shall not be payable for any month following the deadline for the recipient’s compliance set by the department.

(b) If the department terminates payment of LTDI benefits under this subsection, the department shall send notice of the termination to the recipient. The notice shall be in the form of a written determination stating the reasons for the termination. The recipient may file a timely appeal of the termination with the employee trust funds board, as provided in ch. ETF 11. If no timely appeal is filed, the termination of LTDI benefits is final.

(4) Termination or suspension based on earnings.

(a) Except as provided in par. (b) and s. ETF 50.58 (2), the payment of LTDI benefits shall be terminated and no LTDI benefits shall be payable after the first of the month in which a determination is made by the department that the recipient has received during the calendar year earnings or other earned income exceeding the earnings limit.

(b) On the first occasion that the department determines that the recipient has exceeded the earnings limitation as described in par. (a), the payment of LTDI benefits shall be suspended rather than terminated. Payment of LTDI benefits suspended under this paragraph shall resume on the earlier of the first day of the next calendar year or the first day of the second month following the termination of personal services due to recurrence of the medically determinable impairment which was the basis for payment of LTDI benefits. A recipient’s LTDI benefits may only be suspended once and must be terminated if par. (a) subsequently applies.

(5) Termination upon certain reemployment. LTDI benefits for a recipient under s. ETF 50.58 (1) shall be terminated upon reemployment as provided in s. ETF 50.58 (3).

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 17-031: am. (1) (j), (2) (e), (3) (b) Register December 2017 No. 744, eff. 1-1-18; CR 19-097: am. (title), r. (2) (b), am. (3) (a) 1., (4) (a), (5) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 50.58 Special provisions applicable to protective occupation participants {#sec-etf-50.58 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.58}

(1) Not totally and permanently disabled. An LTDI recipient who is a protective occupation participant is not disqualified from receiving LTDI benefits although not totally and permanently disabled, provided the recipient’s LTDI benefit was approved based on all of the following:

(a) The recipient had accumulated 15 or more years of creditable service and earned at least 0.33 years of creditable current service or prior service, or both, in each of at least 5 calendar years not including any calendar year preceding by more than 7 calendar years the year in which the claim for LTDI benefits was received by the department.

Note: The accumulated creditable service need not be in the protective employment category and may include military service.

(b) The recipient would have attained age 55 in 60 months or less after the occurrence of disability.

(c) The medical evidence established a disability to the extent that the participant could no longer efficiently and safely perform the duties required by the participant’s position, and that the condition was likely to be permanent. In this paragraph, “medical evidence” means written certifications received by the department from at least 2 licensed and practicing physicians who have been approved or appointed by the department.

(2) Exceeding earnings limit. Notwithstanding s. ETF 50.56 (4) (a), LTDI benefits for a recipient under this section may not be terminated for exceeding the earnings limit. The payment of LTDI benefits shall be suspended and no LTDI benefits shall be payable after the first of the month in which the recipient has received during the calendar year earnings or other earned income exceeding the earnings limit. Payment of LTDI benefits suspended under this paragraph shall resume on the first day of the next calendar year.

(3) Reemployment in law enforcement or fire fighting. Payment of LTDI benefits shall be immediately terminated upon employment of a recipient in a law enforcement or fire fighting capacity.

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 11-040: am. (1) (b) Register July 2012 No. 679, eff. 8-1-12; CR 19-097: r. and recr. Register May 2021 No. 785, eff. 6-1-21; CR 23-023: am. (2) Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 50.60 Plan funding {#sec-etf-50.60 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.60}

The actuary shall determine liabilities for the LTDI program annually and include those liability determinations in the calculation of contribution rates as determined under s. 40.05, Stats., for the Wisconsin retirement system, based on the information available at the time the determination is made and on the assumptions the actuary recommends and the employee trust fund board approves.

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 17-031: am. (2) (b) Register December 2017 No. 744, eff. 1-1-18; CR 19-097: r. and recr. Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 50.62 Proration of adjustment percentages and monthly benefits {#sec-etf-50.62 omnilex-key=us-wi-regs-official--agency-etf--ETF 50.62}

(1) Annual adjustments to benefits. The percentage of the annual adjustment to a recipient’s LTDI basic benefits or retirement supplemental benefits under s. ETF 50.52 (1) (a) or (2) (b) shall be prorated in the first calendar year after the effective date of the benefits. The applicable adjustment percentage shall be determined by multiplying the percentages as applicable to post-retirement annuity adjustments under s. 40.27, Stats., by the proration factor from Table 1 according to the effective date the benefits began. If the resulting prorated adjustment percentage is less than 0.1%, no increase shall result.

(2) Proration of monthly benefits.

(a) The amount of the initial and final monthly LTDI basic benefits and LTDI retirement supplemental benefits paid shall be prorated based on the date in the month on which LTDI benefits begin or end.

(b) The first payment of LTDI benefits shall be prorated based on the first date in the month for which benefits are paid and based on the number of days in the month, according to Table 2.

(c) The last payment of LTDI benefits due to termination or suspension of benefits or ceasing to qualify for benefits shall be prorated based on the effective date of the action and based on the number of days in the month, according to table 3.

History

• Emerg. cr. eff. 10-15-92; cr. Register, May, 1993, No. 449, eff. 6-1-93; reprinted to restore dropped copy in Table 3, Register, December, 1999, No. 528; CR 19-097: am. (1), Example 1, Example 2 Register May 2021 No. 785, eff. 6-1-21.

Chapter ETF 52 DUTY DISABILITY BENEFITS

Wis. Admin. Code § ETF 52.01 Purpose and scope {#sec-etf-52.01 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.01}

(1) Scope. This chapter applies to the administration of the duty disability program under s. 40.65, Stats.

(2) Purpose. The purpose of this chapter is to codify the interpretations of s. 40.65, Stats., and general policies adopted by the department with respect to its administration of the duty disability benefit program under s. 40.65 (2) (a) and (b), Stats.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98.

Wis. Admin. Code § ETF 52.02 Definitions {#sec-etf-52.02 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.02}

Unless the context clearly requires otherwise, words, phrases and terms shall have the meanings set forth in s. 40.02, Stats., and s. ETF 10.01. In this chapter:

(1) “Effective date” means the date determined under s. ETF 52.10.

(1m) “Fire fighter” means an employee of the fire department of a participating employer who was classified for that employment as a protective occupation participant as defined in s. 40.02 (48) (b) (2), Stats.

(2) “Light duty” means the limiting of the participant’s job duties as determined by the employer or the participant’s physician because of medically imposed restrictions associated with an apparent disability, or the employer’s assignment of the participant to another position, the duties of which the participant is capable of performing notwithstanding the apparent disability, and which does not cause the participant to be reclassified to a category other than protective occupation participant.

(3) “Lump sum payment” means a payment, or that portion of a payment, which covers a period other than the current benefit payment period established for those benefits.

(4) “Medical report” means a written certification on the form prescribed by the department by a physician, as defined in s. 448.01 (5), Stats., who practices in this state, concerning the medical evaluation, diagnosis, prognosis and causal factors of the condition of an applicant for duty disability benefits.

Note: “Duty Disability Medical Report,” form ET-5312.

(5) “Protective occupation participant” as used in s. 40.65 (4) (intro.), Stats., means a person who was a protective occupation participant within the meaning of s. 40.02 (48), Stats., on the date the injury occurs, or the disease is contracted, which leads to the disability under s. 40.65 (4), Stats.

(6) “Qualifying date” means the date on which a participant became disabled under s. 40.65 (4), Stats., as determined under s. ETF 52.08.

(7) “Qualifying medical report” means a medical report, consistent with attached medical records, which certifies that an applicant for duty disability benefits is disabled as described by s. 40.65 (4), Stats.

(8) “Receiving duty disability benefits” as used in this chapter, or “receiving a benefit under this section” as used in s. 40.65 (6), Stats., refers to a person who has applied for and been found eligible to receive duty disability benefits under s. 40.65, Stats., regardless of the effect of any monthly reductions on the net duty disability benefit payable.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 13-029: renum. (4m) to (1m) and am., am. (2) Register November 2013 No. 695, eff. 12-1-13.

Wis. Admin. Code § ETF 52.04 Department authority and duties {#sec-etf-52.04 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.04}

(1) Administer. The department shall administer the duty disability benefit program on behalf of the Wisconsin retirement board under s. 40.65, Stats., and this chapter.

(2) Request information. The department may request any income or benefit information, or any information concerning a person’s marital status, which it considers to be necessary to determine the amount of each monthly benefit payable under s. 40.65, Stats., and its effective date. The department may require a participant receiving duty disability benefits to submit a copy of his or her state or federal income tax return.

Note: This rule (CR 09-057) amends s. ETF 52.04 (2) to conform to the treatment of s. 40.65 (3) by 2007 Wis. Act 131 by removing the mandate for the department to obtain a certified copy of each duty disability recipient’s tax return each year and treating a failure to provide a tax return, if requested, in the same manner as other refusals to provide requested information.

(3) Determine benefits. The department shall determine the amount of each monthly benefit payable under this chapter and its effective date. The department shall periodically review the dollar amount of each monthly benefit and adjust it to conform with the provisions of this chapter. The department shall notify the participant of a determination under this subsection.

(4) Pay benefits. The department shall pay the net duty disability benefits payable to a participant, spouse or domestic partner, or to an adjudicated guardian, as applicable. Payment shall be made on the first day of each month for the previous month.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 09-057: am. (2) Register May 2010 No. 653, eff. 6-1-10; CR 13-029: am. (4) Register November 2013 No. 695, eff. 12-1-13.

Wis. Admin. Code § ETF 52.06 Application for duty disability benefits {#sec-etf-52.06 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.06}

(2) Receipt date. An application for duty disability benefits is initiated on the date the completed form, currently prescribed by the department for that purpose, is received by the department in accord with s. ETF 10.82.

(3) Criteria to be specified. An applicant shall specify which of the following eligibility criteria under s. 40.65 (4) (c), Stats., are satisfied:

(a) Terminated employment due to disability.

(b) Assigned to light duty by employer or physician due to disability, on other than a temporary basis regardless of whether a light duty position is available.

(c) Pay reduced due to disability, on other than a temporary basis.

(d) Position reduced due to disability, on other than a temporary basis.

(e) Promotion specifically prohibited due to disability by employer rules, ordinances, policies or written agreements, on other than a temporary basis. The rule, ordinance, policy, or agreement shall be written and expressly identified or a copy attached to the application.

(4) Employment status. A person who was not both a participating employee and a protective occupation participant both at the time he or she became injured or contracted an occupational disease and when he or she became disabled as described by s. 40.65 (4), Stats., is not eligible for duty disability benefits. For purposes of this subsection only, aggravation of an existing injury or disease is deemed the same as being injured or contracting a disease.

(5) Application materials; medical reports.

(a) Upon request, the department shall provide a blank copy of the currently approved application form and a blank copy of the currently approved medical report form to a participant. The applicant shall provide 2 medical reports at the applicant’s expense. One report must be from a physician who specializes in the area of disability. If the first medical report received by the department is not a qualifying medical report, the department shall advise the applicant that the department will deny the application but that the applicant may nevertheless wish to obtain the second medical report from another physician to include in the applicant’s file as supporting evidence if the applicant chooses to file an appeal under s. ETF 52.28. The department may, by written notice to the applicant, establish a time limit of at least 60 days for submission of the second report.

(b) The department may request and consider any information from the physician who completed a medical report which the department deems necessary to supplement or clarify the physician’s opinion, evaluation, diagnosis and prognosis concerning the participant’s condition and qualification for duty disability benefits.

Note: The “Duty Disability Application,” form ET-5311, and “Duty Disability Medical Report,” form ET-5312, are available free upon request from the Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Outdated versions should not be used and may be rejected.

(6) Withdrawal of application.

(a) Voluntary withdrawal. Except as otherwise provided in this paragraph, a participant may withdraw his or her application and, upon withdrawal, the application is void. An applicant may not withdraw his or her application after it has been approved by the department, but may waive future benefits by requesting a waiver from the department.

(b) Failure to submit medical reports. If the applicant fails to submit two qualifying medical reports within one year after the date on which the application was filed, and the department has not already denied the application, the application shall be cancelled.

(7) Required employer certification.

(a) For each application for duty disability benefits, the department shall obtain from the employer one of the following:

1. A certification that the applicant is disabled as described in s. 40.65 (4), Stats., indicating the specific criterion under s. 40.65 (4) (c), Stats., which has been satisfied, and an admission that the injury or disease leading to the disability was duty-related.

2. A statement by the employer that the employer believes the applicant does not qualify for duty disability benefits and the general basis for that belief.

(b) In addition to the requirements of par. (a), for each application for duty disability benefits pursuant to s. 891.45 or 891.455, Stats., by a fire fighter, the department shall obtain from the employer a certification including the following:

1. Whether the participant had served a total of 5 years or more as a fire fighter within the meaning of s. ETF 52.02 (1m). The service need not have been continuous service. The current employer of a fire fighter may verify and certify past qualifying service as a firefighter for the purposes of this subsection.

2. Whether the participant had served at least 10 years as a fire fighter within the meaning of s. ETF 52.02 (1m). The service need not have been continuous service. The current employer of a fire fighter may verify and certify past qualifying service as a fire fighter for the purposes of this subsection.

3. An attached copy of the qualifying medical examination given prior to the time the participant became a fire fighter for that employer. If no qualifying medical examination is available, the employer must certify that there is no record of a medical examination but one would have been required prior to the participant’s hire date.

(bm) In addition to the requirements of par. (a), for each application for duty disability benefits pursuant to s. 891.453, Stats., the department shall obtain from the employer a copy of the qualifying medical examination given prior to the time the participant worked for that employer in a position listed in s. 891.453, Stats. If no qualifying medical examination is available, the employer must certify that there is no record of a medical examination, but that one would have been required prior to the participant’s hire date.

(c) The department shall determine whether s. 891.45, 891.453, or 891.455, Stats., applies. The presumptions under ss. 891.45, 891.453, and 891.455, Stats., are rebuttable. The department shall determine whether the applicant is eligible for benefits under s. 40.65, Stats., on the basis of evidence submitted pursuant to s. 40.65 (2) (b) 2., Stats.

Note: “Employer Certification – Duty Disability,” form ET-5326, will be sent to the employer by the department following receipt of the employee’s application for benefits. Outdated versions of the form should not be used and may be rejected.

(8) Denial and appeal option absent employer response. If the employer fails, upon request of the department, to provide either the certification or the statement required by sub. (7), the department shall deny the application. The department shall allow the employer at least 30 days to respond to its request and may grant reasonable extensions of time to the employer.

(9) False information. The department may deny the application of any person who submits false information regarding an application for duty disability benefits.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 11-040: am. (9) Register July 2012 No. 679, eff. 8-1-12; CR 13-029: am. (3) (b) to (e), (5) (a), (6) (a), (b), (7) (a) 2., (b), cr. (7) (bm), am. (7) (c) Register November 2013 No. 695, eff. 12-1-13; CR 23-023: r. (1), renum. (2) (a) to (2), r. (2) (b) Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 52.07 Disability {#sec-etf-52.07 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.07}

A participant is disabled within the meaning of s. 40.65 (4), Stats., if all of the following apply:

(1) Work-related. The participant was injured while performing his or her duty as a protective occupation participant of a participating employer or contracted a disease due to that occupation.

(2) Permanency. The disability is likely, to a reasonable degree of medical certainty, to be permanent.

(3) Severity. The disability is so severe that it causes one or more of the following:

(a) The applicant is medically required to terminate the participating employment.

(b) The employer or physician assigns the applicant to light duty regardless of whether a light duty position is available.

(c) The employer reduces the applicant’s pay. Only a reduction in regular monthly earnings meets the requirement of this subsection. Loss of shift differential payments, uniform allowances, or other collateral payments are not reductions of pay within the meaning of s. 40.65 (4) (c) 2., Stats. Receipt of temporary disability compensation under s. 102.43, Stats., in lieu of regular pay may be a reduction of pay for purposes of duty disability benefit eligibility when the employer does not make up the difference between workers’ compensation and regular monthly earnings, and if the participant terminates employment while still receiving temporary disability compensation. A situation in which the participant is not working and is not receiving any earnings would be considered a reduction in pay.

(d) The employer reduces the applicant’s position. Assigning a formerly full-time employee to a part-time position or reducing a part-time employee’s hours is considered a reduction of position for the purposes of this chapter. An employee who never returns to work after the date of their injury is also considered to have received a reduction in position for the purposes of this chapter if they do not meet any other qualifying criteria prior to or other than retirement. Assigning the applicant to a position which does not satisfy the criteria under s. 40.02 (48), Stats., defining a protective occupation participant is a reduction of position for the purposes of this chapter.

Note: See s. 40.02 (48)(b) 1. to 3., Stats., defining “police officer,” “fire fighter,” “deputy sheriff” and “county traffic police officer,” concerning their continuing protective occupation status even if temporarily assigned to other duties.

(e) The employer prohibits the applicant from promotion for which the applicant is otherwise fully qualified, solely on the basis of the applicant’s disability and under the express terms of a valid state or local employer rule, ordinance, policy, or written agreement which is not superseded by state or federal law.

(4) Temporary actions non-qualifying. Assignments to light duty, or reductions in pay or position or promotional opportunities, which are temporary in nature, such as actions taken to allow recovery, are not consistent with a permanent disability and do not qualify a participant for duty disability benefits.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; correction in (3) (c) made under s. 13.93 (2m) ((b) 7., Stats., Register January 2004 No. 577; CR 13-029: am. (3) (b) to (d), (4) Register November 2013 No. 695, eff. 12-1-13; CR 23-023: am. (3) (d) Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 52.08 Qualifying date {#sec-etf-52.08 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.08}

(1) In general. A participant’s qualifying date is the date on which he or she becomes disabled within the meaning of s. 40.65 (4), Stats., and s. ETF 52.07, as determined under this section.

(2) Retirement. If eligibility for duty disability benefits is based upon a disability which requires the employee to retire from his or her job, the termination date is the qualifying date.

(3) Reduction of pay or position; assignment to light duty. If eligibility for duty disability benefits is based upon a reduction of pay or position or assignment to light duty, then the qualifying date is the date on which the employee began the permanent reduction or assignment. For purposes of this subsection, a reduction or assignment is permanent even if initially characterized as temporary by the employer or physician, if the reduction or assignment remains continuously in effect while the participant is recovering or his or her permanent condition is being assessed and the employer or physician then determines that it is necessary, because of the participant’s disability, to make the reduction or assignment permanent, or that employment be terminated. If the participant is restored to the unreduced pay or position then a previous reduction in pay or position was not permanent. If the participant is assigned to full duty then a previous assignment to light duty was not permanent.

(4) Promotion prohibited. If eligibility for duty disability benefits is based upon a prohibition against promotion due to a disability, the qualifying date is the date on which the employee became continuously subject to the prohibition.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 13-029: am. (3) Register November 2013 No. 695, eff. 12-1-13.

Wis. Admin. Code § ETF 52.10 Effective date of duty disability benefits {#sec-etf-52.10 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.10}

The department shall establish an effective date for duty disability benefits for each participant whose application for duty disability benefits is granted. Duty disability benefits are not retroactive. The effective date for duty disability benefits is the later of:

(1) The date the participant’s application form was received, as determined under s. ETF 52.06 (2), ignoring any previous applications.

(2) The participant’s qualifying date.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; renum. (1), r. (2) Register May 2024 No. 821, eff. 6-1-24; (1) (title) repealed under s. 13.94 (4) (b) 2., Stats., Register May 2024 No. 821.

Wis. Admin. Code § ETF 52.12 Monthly salary and subsequent adjustments {#sec-etf-52.12 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.12}

(1) Initially determined by employer. A participant’s monthly salary shall be initially determined by the employer in whose service the disability occurred by adding together the regular monthly earnings, prorated cash payments, and regular and dependable overtime pay as determined pursuant to the following paragraphs:

(a) Regular monthly earnings. The participant’s monthly earnings, as defined by s. 40.02 (22), Stats., as of the qualifying date, except as provided in subds. 1. and 2.

1. ‘Exclusions.’ “Regular monthly earnings” for the purposes of this section do not include:

a. Overtime pay.

b. Any payments excluded from earnings by s. 40.02 (22) (b), Stats.

c. Any periodic payments made during any month which covered other periods of time, such as a lump sum longevity award.

d. Amounts which are not earnings reportable to the Wisconsin retirement system.

2. ‘Temporary disability compensation; effect.’ If the participant is receiving temporary disability compensation under s. 102.43, Stats., as of the qualifying date, and the qualifying date is prior to the termination of employment with the participating employer in whose employment the disabling injury occurred or the occupational disease was contracted, then the participant’s regular monthly earnings are the amount of earnings the employee would have received under s. 40.29 (1) (b), Stats., if the disability had not occurred, subject to the exclusions in subd. 1.

(b) Prorated cash payments. A prorated amount reflecting the monthly equivalent of periodic cash payments which are includable in the participant’s annual Wisconsin retirement system earnings. This includes lump sum payments for accumulated leave that are made at least once per calendar year to all employees, within a bargaining unit, specific employment category, classification or those whose job description contains the same primary job duties, regardless of whether an employee terminates employment during that year. This includes any unused compensatory time that is converted to pay in a lump sum payment if not due to termination of employment. Such payments are divided by 12 and the result is added to the participant’s regular monthly earnings. Lump sum payments may only be included as prorated cash payments if, as of the participant’s duty disability qualifying date:

1. The participant would have been in a position that was eligible for the pro-rated lump sum payment regardless of if or when paid; and

2. The participant would have received the lump sum payment in the calendar year of the participant’s duty disability qualifying date.

(c) Regular and dependable overtime pay. For the purposes of this chapter, regular and dependable overtime pay means hours that are worked or for which an employee is required to be on call or standby by the employer, above the normal work hours. For the purposes of this paragraph, normal work hours are 80 hours in a biweekly pay period unless otherwise specifically designated by union contract. As set forth in this paragraph, this amount shall be calculated by taking the number of overtime hours for which the participant was paid in the 5 calendar years preceding the calendar year of the qualifying date, dividing by 60, and multiplying the result by the hourly overtime rate to which the participant was entitled as of the qualifying date. If the participant has been employed by the employer for less than the preceding 5 years, the monthly average of all overtime hours paid shall be multiplied by the hourly overtime rate as of the qualifying date. If the participant was in a position not eligible for overtime pay on the qualifying date then no overtime pay may be included in the calculation of monthly salary. No form of compensatory time off, even if converted to pay, is overtime pay under this paragraph.

(2) Review by department. The employer’s calculation of a participant’s monthly salary will be reviewed by the department. The department shall notify the participant of the department’s determination of the monthly salary amount and shall also notify the employer if the determination made by the department differs from the amount provided by the employer.

(3) Salary index adjustment. The monthly salary of a participant receiving duty disability benefits shall be adjusted as of each January 1 after the participant’s qualifying date, using the salary index for the previous calendar year, in the manner provided by s. 40.65 (6), Stats.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 13-029: renum. (1) (a) 1. to (1) (a) 1. (intro.), a. to d. and am., renum. (1) (b) to (1) (b) (intro.), cr. (1) (b) 1., 2., renum. (1) (c) (intro.), 1., 2. to (1) (c) and am. Register November 2013 No. 695, eff. 12-1-13.

Wis. Admin. Code § ETF 52.14 Duty disability benefits for state employees {#sec-etf-52.14 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.14}

(1) Except as provided in sub. (2) or (3), the maximum monthly duty disability benefit payable to a participant who is a state employee is 80% of the participant’s monthly salary adjusted as provided in s. 40.65 (5) (b) and (6), Stats., and s. ETF 52.12. Except as provided in sub. (2) or (3), the department shall withhold an amount equal to 5% of the monthly benefits under this section until the amount payable under s. 40.65 (5) (b) 3., Stats., is determined.

(2) The treatment of s. 40.65 (5) (a) and (b) (intro.), 1985-86 Stats., by 1987 Wis. Act 363, concerning duty disability benefit amounts and withholding 5% pending resolution of worker’s compensation benefits, does not apply to a state employee covered by a collective bargaining agreement under subch. V of ch. 111, Stats., until the office of state employment relations notifies the department that the treatment was approved by the collective bargaining representative and by the joint committee on employment relations.

Note: See 1987 Wis. Act 363, section 11 (2), concerning initial applicability.

(3) The treatment of s. 40.65 (5) (a) and (b) (intro.), 1985-86 Stats., by 1987 Wis. Act 363, concerning duty disability benefit amounts and withholding 5% pending resolution of worker’s compensation benefits, does not apply to a state employee not covered by a collective bargaining agreement under subch. V of ch. 111, Stats., until the office of state employment relations notifies the department that the treatment was recommended by the director of the office of state employment relations and approved by the joint committee on employment relations.

Note: See 1987 Wis. Act 363, section 11 (3), concerning initial applicability.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98.

Wis. Admin. Code § ETF 52.15 Reduction of duty disability monthly salary based on years of service {#sec-etf-52.15 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.15}

(1) As of the date of receipt of the duty disability application, the department shall apply s. 40.65 (5) (a), Stats., as follows:

(a) If creditable service is 25 years or less, no reduction will be applied.

(b) If the participant is eligible for benefits under subchapter II of ch. 40, Stats., the reduction will be 0.5% for each month of creditable service over 25 years.

(c) If the participant is not eligible for benefits under subchapter II of ch. 40, Stats., the reduction will be 0.5% for each month of creditable service over 30 years.

(d) The duty disability monthly salary will not be reduced to less than 50% if the participant qualifies for benefits under s. 40.63, Stats., subchapter III of ch. ETF 50, or disability benefits under OASDHI.

(2) For purposes of this section, to be eligible for benefits under subchapter II of ch. 40, Stats., on the date the duty disability application is received by the department, the participant must have terminated from covered employment and the participant may not have been approved for benefits under s. 40.63, Stats., or benefits under subchapter III of ch. ETF 50.

(3) Except as otherwise provided in sub. (4), for purposes of this section, creditable service includes military service if, as of the date of receipt of the application:

(a) The service has already been credited to the participant’s WRS record; or

(b) The department has received all documentation required for crediting military service for the participant.

(4) Military service will not be considered if the documentation required for crediting military service is received by the department after the date the department receives the duty disability application.

History

• CR 13-029: cr. Register November 2013 No. 695, eff. 12-1-13.

Wis. Admin. Code § ETF 52.16 Reductions in monthly duty disability benefits {#sec-etf-52.16 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.16}

(1) In general.

(a) Income guarantee. The duty disability benefit for eligible protective occupation participants shall be administered as an income guarantee program. The amount equal to the percentage of monthly salary guaranteed under s. 40.65 (5) (a), Stats., or under s. ETF 52.14 for state employees to whom s. 40.65 (5) (a), Stats., does not apply, and adjusted under s. ETF 52.12 (3), is both the guaranteed monthly income amount and the maximum amount payable as monthly duty disability benefits. If the combined income from all sources listed in s. 40.65 (5) (b) 1. to 6., Stats., does not equal or exceed the guaranteed amount, then the difference will be made up by duty disability benefits. To determine the monthly amount of duty disability benefits payable to an eligible person, the department shall determine the dollar amount of the guaranteed percentage of monthly salary then subtract all earnings and OASDHI, unemployment compensation, worker’s compensation, disability and retirement benefits as provided in s. 40.65 (5) (b) 1. to 6., Stats., and this section.

(b) Receipt assumed. The department may assume that any benefit or amount listed s. 40.65 (5) (b) 1. to 6., Stats., is payable to a participant until it is determined to the department’s satisfaction that the participant is ineligible to receive the benefit or amount.

(c) No carryover. All amounts described in s. 40.65 (5) (b) 1. to 6., Stats., received by a person entitled to duty disability benefits after that person’s effective date shall apply to reduce the person’s maximum monthly duty disability benefit in the month in which received without any carryover to other months, except that lump sum payments of worker’s compensation benefits shall reduce duty disability benefits as provided in s. 40.65 (5) (b) 3., Stats., and sub. (4) and lump sum payments of disability or retirement benefits under s. 40.65 (5) (b) 4., Stats., shall reduce duty disability benefits as provided in that subdivision.

(d) Limit on reductions. Duty disability benefits for a particular month may not be reduced below zero.

(2) Oasdhi benefits. The reduction of monthly duty disability benefits for OASDHI benefits received shall be affected by annual increases in monthly OASDHI benefits. If OASDHI benefits are increased for a month during which the recipient is also entitled to duty disability benefits and the department is administratively unable to immediately adjust the person’s monthly duty disability benefits, then any excess duty disability benefits paid for that month as a result shall be treated as an overpayment of duty disability benefits as provided in s. ETF 52.20.

(3) Unemployment compensation. Maximum duty disability benefits shall be reduced by the amount of unemployment compensation benefit paid to the participant for that month regardless of who employed the participant or the nature or period of employment which is the basis for the benefit.

(4) Worker’s compensation.

(a) Withholding requirement. Until the worker’s compensation permanent disability benefits payable to the participant are paid or otherwise determined, the department shall withhold from each monthly payment of duty disability benefits an amount equal to 5% of the maximum monthly duty disability benefits, except as otherwise provided by s. ETF 52.14.

(b) If a person subject to 5% withholding under par. (a) subsequently receives a lump sum payment of worker’s compensation benefits, including a lump sum payment made pursuant to a compromise settlement under s. 102.16 (1), Stats., the department shall do one of the following:

1. If the participant receives a lump sum worker’s compensation payment or compromise settlement, only the portion of the lump sum which exceeds the accumulated total of the amounts then withheld under this subsection shall be treated as a lump sum under s. 40.65 (5) (b) 3., Stats., for purposes of reducing the participant’s monthly duty disability benefits.

2. If the accumulated total of the amounts withheld under this subsection exceeds the participant’s lump sum worker’s compensation payment or compromise settlement, then the difference between the duty disability benefit that was paid and the benefit that would have been paid had the 5% not been withheld shall be refunded to the participant when the participant’s worker’s compensation benefits have been determined and the lump sum payment shall not otherwise reduce monthly duty disability benefits.

(c) Payable to the participant. Worker’s compensation benefits payable to the participant, within the meaning of s. 40.65 (5) (b) 3., Stats., are all worker’s compensation benefits other than amounts expressly identified in the worker’s compensation order, or order approving a compromise settlement, as being paid as attorney fees, as medical expenses or as reimbursement for other costs, or any amounts awarded under s. 102.18 (1) (bp) or 102.22 (1), Stats.

(d) All worker’s compensation benefits apply; no carryover except for lump sum payments. Worker’s compensation benefits paid to a participant receiving duty disability benefits after the effective date shall reduce the participant’s maximum monthly duty disability benefits for the month in which paid, without regard for the nature or date of the injury or the time period covered by the benefits. Any lump sum worker’s compensation benefit shall reduce the participant’s maximum monthly duty disability benefits as provided in s. 40.65 (5) (b) 3., Stats.

(5) Disability and retirement benefits.

(a) Lump sum payments. The treatment under s. 40.65 (5) (b) 4., Stats., of the full amount received as a lump sum benefit applies only to lump sum benefits received under s. 40.25, Stats. Lump sum payments received from any other retirement system shall reduce duty disability benefits for the month in which received only.

(b) Disability annuity alternatives. Monthly duty disability benefits shall be reduced by benefits received under s. ETF 50.52 (1). Notwithstanding s. 40.65 (5) (c), Stats., if the employee trust funds board determines that some or all of a disability annuity benefit provided from the Wisconsin retirement system shall instead be provided through group insurance plans established by the group insurance board, then benefits received under the insurance plan shall reduce monthly duty disability benefits as did the disability annuity benefits.

(c) Benefits payable to non-vested participants. Monthly duty disability benefits shall be reduced by benefits payable to a non-vested participant under s. 40.25 (2), Stats., at age 50.

(6) Earnings; income from therapy or rehabilitation. The department may elect not to reduce a participant’s benefit because of income related to therapy or rehabilitation, following written request by the participant.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 13-029: renum. (4) (a) (intro.) to (4) (a) and am., r. (4) (a) 1., 2., am. (4) (c) Register November 2013 No. 695, eff. 12-1-13; CR 14-055: cr. (5) (c) Register May 2015 No. 713, eff. 6-1-15; CR 19-097: am. (4) (b) 2. Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 52.18 Establishing estimated monthly reductions {#sec-etf-52.18 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.18}

(1) The department may reduce monthly duty disability benefits consistently during a year by estimating applicable reductions and correcting any resulting over- or under-payments in an annual reconciliation.

(2) The department shall provide each participant receiving duty disability benefits with a written statement showing the monthly salary amount, effective date, maximum amount of duty disability benefits and reductions to monthly benefits.

Note: “Monthly Payment and Offsets,” Form ET-5507.

(3) A participant eligible to receive duty disability benefits may request that his or her estimated reductions be adjusted to more accurately conform to anticipated income from sources specified in s. 40.65 (5) (b), Stats.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98.

Wis. Admin. Code § ETF 52.20 Collection of excess benefits paid in error {#sec-etf-52.20 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.20}

The department shall inform the participant of any overpayment of duty disability benefits as identified and determined by the department. If not immediately repaid by the participant, the department shall utilize its authority under s. 40.08 (4), Stats., to collect the amount overpaid and the interest it determines to be due.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98.

Wis. Admin. Code § ETF 52.22 Death benefits {#sec-etf-52.22 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.22}

(1) Fatalities. For purposes of paying a death benefit under s. 40.65 (7) (am), Stats., and sub. (2), a protective occupation participant who suffers fatal injury while performing the participant’s duty, or who dies due to a disease contracted due to the participant’s occupation, is deemed to have died as the result of an injury for which a benefit would be payable under s. 40.65 (4), Stats., even if there was no inability to perform the job immediately prior to death.

(2) State employee death benefits. Except as provided in par. (a) or (b), death benefits with respect to deceased state employee participants receiving duty disability benefits are determined under s. 40.65 (7), Stats.

(a) The treatment of s. 40.65 (7) (a) (intro.) and (am), 1985-86 Stats., by 1987 Wis. Act 363, affecting death benefits, does not apply to a state employee covered by a collective bargaining agreement under subch. V of ch. 111, Stats., until the office of state employment relations notifies the department that the treatment was approved by the collective bargaining representative and by the joint committee on employment relations.

Note: See 1987 Wis. Act 363, section 11 (2), concerning initial applicability.

(b) The treatment of s. 40.65 (7) (a) (intro.) and (am), 1985-86 Stats., by 1987 Wis. Act 363, affecting death benefits, does not apply to a state employee not covered by a collective bargaining agreement under subch. V of ch. 111, Stats., until the office of state employment relations notifies the department that the treatment was recommended by the director of the office of state employment relations and approved by the joint committee on employment relations.

(3) Limitations. If a protective occupation participant who was approved for duty disability benefits dies of a disease listed under s. 891.45, 891.453, or 891.455, Stats., but the benefit was not approved based on that disease, the surviving spouse, domestic partner, or surviving children of the protective occupation participant are not eligible to apply for death benefits as a result of that disease.

Note: See 1987 Wis. Act 363, section 11 (3), concerning initial applicability.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 13-029: cr. (3) Register November 2013 No. 695, eff. 12-1-13; CR 19-097: am. (3) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 52.24 Required reporting by duty disability recipients; failure to submit {#sec-etf-52.24 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.24}

(1) Monthly earnings from employment. A person receiving duty disability benefits shall keep records of all earnings received, including profits from self-employment, during each month beginning with the effective date, whether paid by the employer under whom the duty disability occurred or from any other employer. The department shall request the records at least annually and, upon request, the person shall supply the records to the department. As used in this subsection and in s. 40.65 (5) (b) 6., Stats., the terms “earnings” and “employer” have their broad, plain meaning and are not limited to the definitions in s. 40.02 (22) and (28), Stats.

(2) Duty to report receipt. A person receiving duty disability benefits shall respond within 30 days to any request for income information from the department and, regardless of any requests, shall disclose in writing, within 30 days after receipt, any retroactive or other lump sum payment of any Social Security, worker’s compensation, unemployment compensation, disability or retirement benefit or employment earnings, including sums received in lieu of earnings, such as an award for lost earnings, which is received on any date after the participant’s duty disability benefit effective date.

(3) Duty to report known errors. A person receiving duty disability benefits shall disclose in writing to the department any error known to the person with regard to the amounts by which the department is reducing the participant’s monthly duty disability benefits due to the participant’s receipt of Social Security, worker’s compensation, unemployment compensation, disability or retirement benefit or earnings, including sums received in lieu of earnings.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98.

Wis. Admin. Code § ETF 52.26 Termination of duty disability benefits {#sec-etf-52.26 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.26}

(1) The department may terminate duty disability benefits for any person who refuses to submit or fails to timely submit information requested by the department, including but not limited to income or benefit information, or information concerning a person’s marital status, or who submits false information.

(2) A person whose duty disability benefits are terminated may not reapply for duty disability benefits based upon the same disability.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98.

Wis. Admin. Code § ETF 52.28 Appeals {#sec-etf-52.28 omnilex-key=us-wi-regs-official--agency-etf--ETF 52.28}

(1) Except as provided in sub. (2) all determinations made by the department under this chapter, including, but not limited to the calculation of the applicant’s monthly salary, are subject to appeal to the Wisconsin retirement board as provided in ch. ETF 11. Both the applicant and the employer may request an appeal.

(2) Determinations made by the department under this chapter as to an applicant’s eligibility for duty disability benefits may be appealed to the division of hearings and appeals in the department of administration under s. 40.65 (2) (b) 3., Stats. The department is a necessary party.

(a) The employer may appeal a determination granting an application for duty disability benefits, including determinations based upon ss. 891.45, 891.453, and 891.455, Stats.

(b) If an application is denied based upon receipt of a qualifying medical report and a medical report which was not a qualifying medical report, and the participant appeals the denial as provided in s. 40.65 (2) (b) 3., Stats., then the administrative law judge determining eligibility may decide between the 2 conflicting medical reports to determine eligibility.

History

• Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 13-029: am. (2) (a) Register November 2013 No. 695, eff. 12-1-13; CR 23-023: am. (2) (intro.) Register May 2024 No. 821, eff. 6-1-24.

Chapter ETF 60 SURVIVOR BENEFITS

Subchapter I General Provisions

Wis. Admin. Code § ETF 60.03 Due dates {#sec-etf-60.03 omnilex-key=us-wi-regs-official--agency-etf--ETF 60.03}

A certification required in the administration of the group life insurance plan, or a written request to cancel an application under this chapter, which is due on a Saturday, Sunday or holiday when the state offices are closed shall be timely if received in the department the next working day.

History

• Cr. Register, February, 1983, No. 326, eff. 3-1-83.

Subchapter II Group Life Insurance For State And Local Employees

Wis. Admin. Code § ETF 60.31 Group life insurance coverage requirement {#sec-etf-60.31 omnilex-key=us-wi-regs-official--agency-etf--ETF 60.31}

(1) An employer who has adopted a resolution to offer a group life insurance plan under s. 40.70 (1) (a), Stats., shall certify to the department all eligibility information specified by the department for employees eligible for group life insurance coverage on the effective date of the resolution. To verify that the participation requirement established under s. 40.70 (2), Stats., has been satisfied, the employer shall indicate the number of employees who have completed an application for coverage. The resolution shall be effective on January 1 if the certification of the eligibility information and the number of employees applying for coverage is received by the department no later than the preceding December 15. An employer may withdraw a resolution before it becomes effective if written notice by the governing body of the employer is received by the department no less than 5 working days before the resolution becomes effective.

(2) The department may review a participating employer’s level of employee participation in the basic group life insurance plan provided under s. 40.72 (1), Stats. If in making a review of a participating employer’s level of employee participation in the basic group life insurance plan the department determines that there is no employee participation, and this is confirmed by the employer, the department may terminate the life insurance resolution adopted under s. 40.70 (1) (a), Stats. If the department determines that employee participation has decreased below the level established under s. 40.70 (2), Stats., the department shall prepare a list of those employers for submission to the group insurance board and the group insurance board shall determine which resolutions will be terminated. The termination of a resolution shall be effective either after the end of the third full month following the date the group insurance board or the department terminates coverage or the end of the calendar year, whichever occurs later. If a resolution is terminated under this subsection another resolution may be submitted under s. 40.70 (1) (a), Stats., after a lapse of 6 months from the effective date of the termination.

History

• Cr. Register, February, 1983, No. 326, eff. 3-1-83; am. Register, April, 1984, No. 340, eff. 5-1-84; am. (2), Register, November, 1985, No. 359, eff. 12-1-85; am. (1), Register, September, 1986, No. 369, eff. 10-1-86.

Wis. Admin. Code § ETF 60.32 Group life insurance coverage for employees under a private pension plan {#sec-etf-60.32 omnilex-key=us-wi-regs-official--agency-etf--ETF 60.32}

Any insured employee who becomes an annuitant under a private pension plan and who retires before attaining age 65 but who has 20 years of service for the employer, may continue to be insured under the group life insurance plan if:

(1) The employee requests the continuation of the insurance by filing a form provided by the department with the employer within 60 days after termination of employment from the employer and agrees to pay the required premiums until reaching age 65; and

(2) The employer provides confirmation, to the department, of 20 years service.

History

• Cr. Register, February, 1983, No. 326, eff. 3-1-83; r. (1), renum. (2) (intro.), (a) and (b) to be (intro.), (1) and (2), Register, September, 1986, No. 369, eff. 10-1-86.

Wis. Admin. Code § ETF 60.33 Successor employers {#sec-etf-60.33 omnilex-key=us-wi-regs-official--agency-etf--ETF 60.33}

(1) Whenever any employer is created, the territory of which includes more than one-half of the assessed valuation of an employer which was at the time of creation a participating employer, and the newly created employer assumes the functions and responsibilities of the previous employer, the newly created employer shall be a participating employer under the group life insurance program from the inception of the employer.

(2) Any person covered on the day preceding the date of creation of the successor employer shall continue to be covered under the group life insurance program on the same basis.

(3) Any person who first becomes eligible for group life insurance coverage as a result of the consolidation of employers and who desires to enroll shall apply for coverage in accordance with the contract.

(4) The amount of group life insurance coverage for an insured employee of a successor employer shall be based on the aggregate of earnings from both the predecessor and successor employers in the previous calendar year.

History

• Cr. Register, February, 1983, No. 326, eff. 3-1-83.

Subchapter III Wisconsin Retirement System Death Benefits

Wis. Admin. Code § ETF 60.51 Cancellation of death benefit and beneficiary annuity applications {#sec-etf-60.51 omnilex-key=us-wi-regs-official--agency-etf--ETF 60.51}

(1) Any lump sum death benefit or beneficiary annuity application canceled pursuant to this section shall have no force or effect, and any subsequent application shall be treated as a new application. Repayment in full of any sum paid under the application for which cancellation is sought shall be required. The employer may not make this payment on behalf of the recipient of the benefit.

(2) A request to cancel an application for a lump sum death benefit payment under s. 40.73 (1) or (2), Stats., must be in writing. The request to cancel shall be rejected unless received by the department by the close of regular office hours on the last working day preceding the date specified in s. ETF 10.633 (1) (c).

(3) A request to cancel an application for a beneficiary annuity under s. 40.73 (3), Stats., must be in writing. The request to cancel the application shall be rejected unless received by the department by the close of regular office hours on the last working day preceding the date specified in s. ETF 10.633 (1) (a).

History

• Cr. Register, April, 1983, No. 328, eff. 5-1-83; am. Register, January, 1996, No. 481, eff. 2-1-96.

Wis. Admin. Code § ETF 60.53 Death benefits — automatic distributions {#sec-etf-60.53 omnilex-key=us-wi-regs-official--agency-etf--ETF 60.53}

(1)

(a) A beneficiary of a deceased annuitant who is entitled to a continuation of the annuitant’s monthly annuity under s. 40.73 (2), Stats., may receive the benefit as a monthly annuity by filing a timely application. The application for a monthly annuity must be received by the department no later than the last day of the third full calendar month which begins after the date the department mails or otherwise provides the application to the beneficiary.

(b) If the department does not receive an application for a continuation of the monthly annuity within the deadline specified in sub. (1) the department shall pay the then present value of the death benefit to the beneficiary as a lump sum. The department may not accept a request to cancel the lump sum payment which is received after the deadline specified in sub. (1) or the deadline specified in s. ETF 60.51 (2), whichever is earlier.

(c) If the beneficiary submits a waiver of a lump sum benefit under s. 40.74 (2), Stats., and the department receives it on or before the deadline specified in s. ETF 60.51 (2), the department shall defer automatic distribution of the benefit during the waiting period before the waiver effective date. Any new beneficiary who becomes eligible for a continuation of the monthly payments as a result of a waiver shall be granted the period specified in sub. (1) to apply for continuation of the monthly payments.

Note: This rule (CR 09-057) amends ss. ETF 20.07 (6) and 60.53 (1) (c) to conform to the new effective date for waivers in s. 40.08 (3), Stats., as affected by 2007 Wis. Act 131.

(2)

(a) This subsection applies to death benefits payable from required or additional contribution accumulations that the department had not begun to distribute before the death of the participant or alternate payee.

(b) The department shall treat a distribution paid as a lump sum under s. 40.25 (2), Stats., as having begun prior to the death of the participant or alternate payee if the date of the check is on or before the date of death. The department shall treat a distribution paid as an annuity or as a lump sum in lieu of an annuity under s. 40.25 (1) or (4), Stats., as having begun prior to the death of the participant or alternate payee if all of the following apply:

1. The participant or alternate payee is living on the date the department receives the benefit application and on the effective date of the benefit;

2. The department does not receive the participant’s or alternate payee’s written request to cancel the benefit as provided under s. ETF 20.20 (4) on or before the date of death.

(c) A beneficiary may elect to receive a death benefit payable under this subsection as a monthly annuity, subject to s. 40.73 (3), Stats., provided the beneficiary applies, and the department receives the application, no later than the close of business on the last working day of September in the calendar year following the year of the participant’s or alternate payee’s death. The annuity effective date may not be later than November 1 of that year.

(d) A beneficiary may elect to receive the death benefit as a lump sum provided the beneficiary applies, and the department receives the application, no later than the close of business on the last working day of September in the fifth calendar year following the year of the participant’s or alternate payee’s death.

(e)

1. A beneficiary who was the spouse of the deceased participant at the time of death may defer application for the death benefit until the latest of the following dates:

a. For an application for a monthly annuity, the application date specified in par. (c);

b. For an application for a lump sum, the application date specified in par. (d);

c. For an application for any optional form of payment, the last working day of the year before the year in which the participant would have attained the age provided in section 401 (a) (9) of the Internal Revenue Code. The department may not accept an application for a monthly annuity under this subdivision if the department receives the application after the application date specified in par. (c), unless the beneficiary files a beneficiary designation that the department receives by that date or by September 30, 1999, whichever is later.

2. This paragraph does not apply to spouses of deceased alternate payees.

(f) During the calendar year before the year that the participant would have attained the age provided in section 401 (a) (9) of the Internal Revenue Code, a beneficiary who was the spouse of the participant at the time of death and who has filed a beneficiary designation if required under par. (e) 1. c., may apply for a death benefit with a deferred effective date which may not be later than January 1 of the year in which the participant would have attained the age provided in section 401 (a) (9) of the Internal Revenue Code.

(g) Unless the account is considered abandoned as provided in s. 40.08 (8) (a) 2. or 2m., Stats., the department shall distribute the death benefit as a lump sum unless it has received an application for the death benefit within the applicable deadline specified in par. (d) or (e). If the application was due under par. (d) or (e) 1. b., the department shall make the distribution on or before the last working day of the fifth calendar year following the year of the death of the participant or alternate payee. If the application was due under par. (e) 1. c., the department shall make the distribution effective January 1 of the year in which the participant would have attained the age provided in section 401 (a) (9) of the Internal Revenue Code. Beneficiaries may not cancel distributions made under this paragraph.

(h) The department may not accept a waiver of a benefit under s. 40.74 (2), Stats., for a benefit payable under this subsection if the effective date of the waiver is on or after the application deadline specified in par. (d). If a beneficiary becomes eligible for a benefit under this subsection as a result of a waiver, the department shall base the new beneficiary’s deadlines to apply for the benefit on the participant’s or alternate payee’s date of death.

(i) Except as provided in s. 40.23 (4) (e) 4., Stats., if a beneficiary becomes eligible for a death benefit under this subsection as a result of the death of a beneficiary, the department shall base the new beneficiary’s deadlines to apply for the benefit on the participant’s or alternate payee’s date of death.

History

• Cr. Register, December, 1996, No. 492, eff. 1-1-97; renum. (1) to (3) to (1) (a) to (c), cr. (2), Register, May, 1997, No. 497, eff. 6-1-97; correction in (2) (b) (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1999, No. 523; CR 09-057: am. (1) (c) Register May 2010 No. 653, eff. 6-1-10; CR 23-023: am. (2) (e) 1. c., (f), (g) Register May 2024 No. 821, eff. 6-1-24.

Wis. Admin. Code § ETF 60.60 Conversion of life insurance coverage to pay premiums for health and long-term care insurance {#sec-etf-60.60 omnilex-key=us-wi-regs-official--agency-etf--ETF 60.60}

(1) Purpose. The purpose of this section is to interpret s. 40.72 (4r), Stats., and to establish procedures to implement this statute.

(2) Definitions. In this section:

(a) “Company” means the insurer under contract with the State of Wisconsin group insurance board to provide the life insurance program under s. 40.72 (1), Stats., and to administer the conversion accounts under s. 40.72 (4r), Stats.

(b) “Conversion” means the voluntary exchange of employer-provided group term life insurance under s. 40.72, Stats., for employer-provided health insurance or long-term care insurance, or both, administered under subch. IV of ch. 40, Stats.

(c) “Conversion account” means the account established by the company to record the balance after conversion available to pay the health or long-term care insurance premiums of the insured who has elected conversion.

(d) “Conversion effective date” means the first day of the first month for which the premium for health or long-term care insurance is fully or partially paid from the conversion account. The conversion effective date is determined as provided in sub. (4) (a) 3.

(e) “Health insurance” means insurance which is provided under s. 40.51, Stats.

(f) “Insured” means a person who has made, or who is eligible to make, the election provided in s. 40.72 (4r), Stats., and this section.

(g) “Life insurance” means insurance which is provided under s. 40.72 (1), Stats., and which has been reduced to a final amount as provided in s. 40.72 (2) and (3), Stats.

(h) “Long-term care insurance” means insurance which is provided under s. 40.55, Stats., and which qualifies as an accident and health plan under section 106 of the internal revenue code.

Note: This rule (CR 09-057) amends ss. ETF 60.60 (2) (h) and 60.60 (8) to conform to the definition of “internal revenue code” in s. 40.02 (39m), Stats., added by 2007 Wis. Act 131 by deleting the former reference to s. 71.01 (6), Stats. Section ETF 10.01 (intro.) already provides that definitions in s. 40.02, Stats., apply throughout all ETF chapters.

(i) “Policyholder” means the state of Wisconsin group insurance board.

(j) “Present value of life insurance” means the sum which, if invested on the conversion effective date, would provide a death benefit equal to the face amount of the insured’s life insurance coverage on the date of death of the insured, based on actuarial assumptions about future mortality rates and interest rates recommended by the company and approved by the department under sub. (5) (a).

(3) Election process.

(a) An insured may elect to convert the present value of his or her life insurance to pay premiums for health or long-term care insurance, or both, by filing the form prescribed by the department provided that on the conversion effective date all of the following apply:

1. The insured meets the requirements of s. 40.72 (4), Stats., to continue life insurance coverage after termination of employment.

2. The insured has life insurance and either health insurance or long-term care insurance, or both, as defined in sub. (2).

3. The face amount of the insured’s life insurance has been reduced to its final amount as provided in s. 40.72 (2) and (3), Stats.

Note: Under present law, this will occur at age 70 if the insured is a participating employee with life insurance coverage, at age 66 if the insured is a retired employee of the state or of a participating employer which elected to provide post-retirement life insurance coverage at the 50% level, or otherwise at age 67.

4. The insured is no longer required to pay life insurance premiums pursuant to s. 40.05 (6) (b), Stats.

5. The insured’s credits, if any, in the accumulated unused sick leave account established under s. 40.05 (4), Stats., are less than the insured’s current monthly health insurance premium. This subdivision does not apply to elections to convert life insurance to pay long-term care insurance premiums.

(b) The election form shall include all of the following:

1. Estimates of the face amount and the present value of the insured’s life insurance prepared by the department and based on the earliest possible conversion effective date at the time of preparation.

2. The insured’s designation of a health insurance plan or long-term care insurance plan, or both, for which premiums are to be paid from the conversion account.

3. The insured’s waiver of all benefits under the Wisconsin public employers group life insurance program based on the life insurance that is converted, in exchange for the benefits provided in this section.

4. The signature of the insured or of the insured’s representative as provided in par. (c).

(c) A person holding the insured’s durable power of attorney may sign in lieu of the insured under the provisions of s. ETF 10.75 if so authorized by the terms of the power of attorney. If a guardian or conservator of the insured’s estate has been appointed, the guardian or conservator shall sign in lieu of the insured. The election is deemed not to have a long-term effect on the insured’s rights and benefits, for purposes of s. 40.08 (9m), Stats., and express court approval of the terms of the election is not required.

(d) The entire face amount of insured’s life insurance up to $50,000 shall be included in the conversion. Insurance over $50,000 may not be converted, and shall remain in force subject to the provisions of statute and contract.

(e) As provided in s. 40.08 (1), Stats., the life insurance benefits provided under s. 40.72, Stats., and this section are not assignable and are not subject to execution, levy, attachment, garnishment, or other legal process. The Department may not honor or otherwise enforce any order which conflicts with s. 40.08 (1), Stats., specifically including but not limited to an order to convert or refrain from converting life insurance coverage, to satisfy claims of creditors other than the department, to apply for, obtain or retain a benefit or entitlement, and any order the department determines to be in violation of s. 40.08 (1), Stats.

Note: Form ET-2324, ‘‘Election to Convert Life Insurance to Pay Health or Long-Term Care Insurance Premiums,” may be obtained no charge by writing to: Department of Employee Trust Funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling (608) 266-3285 or toll free at (877) 533-5020.

(4) Approval of the election, conversion effective date.

(a) Upon receipt of the election form the department shall do all of the following:

1. Verify that the election meets the requirements under sub. (3) and reject any election which does not meet the requirements.

2. Verify the face amount of the insurance coverage.

3. Determine the conversion effective date. The conversion effective date shall be the first day of the coverage month which is the later of the following:

a. The third month which begins after the department receives the insured’s election to convert life insurance.

b. The first month in which the insured meets the requirements in sub. (3) (a).

(b) If the department determines that the conversion effective date is 5 or more full calendar months after the date the department received the election, the department may reject the election without prejudice. The insured may file a new election at a later time.

(c) The department shall provide the company with a copy of the approved election form and other necessary information including but not limited to: the insured’s name, social security number, date of birth, verified face amount of life insurance coverage, the conversion effective date, and the type, carrier, and premium amount of the applicable health or long-term care insurance plan.

(5) Conversion account. The company shall do all of the following:

(a) Recommend and provide to the department a table of conversion factors by age in years and attained months, based on mortality experience within the life insurance plan and the interest rate established by the company for valuations of the post-retirement insurance program. The company may recommend revisions to the table from time to time. The factors may not be used until approved by the department.

(b) Compute the present value of the insured’s life insurance by multiplying the verified face amount, up to $50,000, by the conversion factor for the insured’s age in years and attained months on the conversion effective date.

(c) Establish a conversion account in the insured’s name from the appropriate reserve, as determined by the company and the department, held by the company for the policyholder. The company shall credit the account with the present value computed in par. (b) and debit the account periodically by the premium amount and for the prescribed period certified by the department.

(d) Notify the insured of the face amount converted and the initial conversion account balance within 20 days of receipt of the approved election form.

(e) Notify the insured of the conversion account balance annually and when the balance in the conversion account falls below 4 times the monthly premium being debited. If the company does not have current address information it may request the department to mail the notification to the insured’s current address.

(f) Remit to the department from each conversion account, by the 20th of the month preceding the coverage period, the applicable premiums for health and long-term care insurance.

(g) Annually report to the policyholder the number of conversion accounts opened and closed, the volume of premiums paid, and the amounts reverting to the reserves as provided in sub. (8) (c).

(h) Close the conversion account and restore the insured’s life insurance coverage when so directed by the department pursuant to sub. (7) (c).

(6) Interest on conversion accounts. The conversion accounts may not accrue interest on the unexpended balances.

(7) Revocation of the conversion election.

(a) An insured may not revoke an election to convert life insurance under this section unless:

1. The department receives the insured’s written request to revoke prior to the conversion effective date; or

2. The present value of the life insurance as computed by the company is less than 90% of the department’s estimate, and the department receives the insured’s written request to revoke within 21 days after the company mails notification of the initial conversion account balance to the insured.

(b) If the insured dies within 60 days after the conversion effective date, the department shall deem that a timely revocation was received.

(c) When the department determines that it received a timely revocation, the department shall do all of the following:

1. Direct the company to increase the insured’s life insurance coverage by the face amount used to compute the present value under sub. (5) (b), less any deduction made pursuant to subd. 3.

2. Recover and refund to the company the premiums which were disbursed from the conversion account. Premiums may be recovered by deduction from the insured’s Wisconsin retirement system annuity check, by payment directly by the insured, or otherwise, as the department may determine.

3. If the insured dies before the premiums are recovered, direct the company to reduce the insured’s death benefit from the life insurance program by the amount of premiums disbursed.

(8) Benefits from the conversion account.

(a) The moneys credited to the conversion account may only be used to provide health or long-term care insurance premiums or death benefits. The insured may not receive the balance in the conversion account as a living benefit or in any form which would be included in the insured’s gross income under applicable provisions of the internal revenue code.

Note: This rule (CR 09-057) amends ss. ETF 60.60 (2) (h) and 60.60 (8) to conform to the definition of “internal revenue code” in s. 40.02 (39m), Stats., added by 2007 Wis. Act 131 by deleting the former reference to s. 71.01 (6), Stats. Section ETF 10.01 (intro.) already provides that definitions in s. 40.02, Stats., apply throughout all ETF chapters.

(b) Debits to the conversion account shall cease with the premium payment for the coverage month which is the earliest of any of the following:

1. The last month for which premiums can be fully or partially paid from the balance remaining in the conversion account.

2. The month in which the insured dies.

3. The month in which insurance terminates due to an employer’s withdrawal from the health or long-term care insurance program.

4. The month in which health or long-term care insurance terminates due to cancellation by the insured.

5. The second month which begins after the month in which the department receives the insured’s written request to discontinue premium payments from the conversion account.

(c) The balance remaining in the account after premium payments cease is payable as a death benefit to the insured’s beneficiaries as determined under s. 40.02 (8), Stats. However, if payments ceased pursuant to par. (b) 4. or 5., balances of $25 or less shall revert to the reserve held by the company for the policyholder and may not be paid as death benefits.

(d) An insured surviving spouse or dependent child may not continue payment of premiums from the conversion account after the death of the insured but may elect, if otherwise eligible, to continue coverage as provided in s. ETF 40.01.

(9) Changes and adjustments.

(a) The department shall notify the company of annual changes in premium, health insurance and long-term care insurance plans made available, and other program changes at least 90 days in advance of the effective date of the change. The company shall make the required adjustments in remittances from all affected accounts.

(b) The insured may discontinue premium payments from the conversion account, resume payments which were previously discontinued or change the allocation of conversion account payments from one type of insurance to another, by filing a written request with the department. The request shall be effective in the third month which begins after the department receives the request.

(c) The department shall notify the company of an insured’s change in coverage type, carrier, family status, allocation of premiums, or other relevant data. Changes reported to the company by the fifth day of a month shall be reflected in the premium remittance for the following coverage month.

(d) If the insured reports a change of status which affects premium amounts previously paid from the conversion account, the company shall adjust the conversion account balance in cooperation with the department and the affected insurance carrier. However if all funds in the conversion account have been disbursed and the account has been closed at the time the company is notified, the department shall make the adjustments. All premium adjustments are subject to s. 40.08 (10), Stats., and applicable contractual limitations on refund of premiums.

History

• Cr. Register, December, 1994, No. 468, eff. 1-1-95; CR 09-057: am. (2) (h) and (8) (a) Register May 2010 No. 653, eff. 6-1-10; EmR0938: emerg. am. (8) (d), eff. 1-1-10; CR 10-004: am. (8) (d) Register July 2010 No. 655, eff. 8-1-10; CR 14-055: am. (5) (c), (f) Register May 2015 No. 713, eff. 6-1-15; CR 19-126: am. (8) (d) Register May 2021 No. 785, eff. 6-1-21.

Chapter ETF 70 DEFERRED COMPENSATION PLANS

Subchapter I General Provisions

Wis. Admin. Code § ETF 70.01 Statement of purpose {#sec-etf-70.01 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.01}

The purpose of this chapter is to establish a procedure for administration of a deferred compensation program as provided by s. 40.80, Stats. The procedure includes requirements and regulations for the primary deferred compensation plan and any alternate deferred compensation plan. All plans shall be monitored, evaluated and approved by the deferred compensation board. However, only the primary plan shall be supported by the board as the official state of Wisconsin deferred compensation plan.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92.

Wis. Admin. Code § ETF 70.02 Definitions {#sec-etf-70.02 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.02}

In this chapter, words and phrases shall have the following meanings:

(1) “Administrator” means any company with which the board contracts to provide administrative services for deferred compensation plans authorized under s. 40.80, Stats.

(2) “Alternate administrator” means any company with which the board contracts to provide administrative services for an alternate deferred compensation plan authorized under s. 40.80 (2m), Stats.

(3) “Alternate plan” means any deferred compensation plan authorized under s. 40.80 (2m), Stats., and offered by an alternate administrator.

(4) “Beneficiary” has the meaning given in s. 40.02 (8), Stats.

(5) The “board” means the deferred compensation board.

(6) The “department” means the department of employee trust funds.

(7) “Employee” means any person who receives earnings as payment for personal services rendered for the benefit of any employer including officers of the employer and is eligible to participate in the deferred compensation program.

(8) “Investment product” means any insurance or annuity contract, bank or credit union account, mutual or money market fund or other type of investment vehicle.

(9) “Investment provider” means any company that manages and offers investments products.

(10) “Member” means any employee electing to participate in the deferred compensation program.

(11) “Plan and trust document” means the document developed by the department and approved by the board to describe in detail the regulations of the program and ensure program compliance with section 457 of the internal revenue code which requires the availability of this document to members.

(12) “Primary administrator” means the company contracted to provide administrative services for the primary deferred compensation plan authorized under s. 40.80 (1), Stats.

(13) “Primary plan” means the deferred compensation plan authorized under s. 40.80 (1), Stats., and offered by the primary administrator.

(14) “Program” includes the primary plan and any alternate plan authorized under s. 40.80, Stats., and approved by the board for offering to eligible employees.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 08-016: cr. (4m) Register August 2008 No. 632, eff. 9-1-08; CR 11-040: renum. (1) to (4m) to be (intro.) to (4) Register July 2012 No. 679, eff. 8-1-12; CR 14-055: am. (11) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 70.03 Board responsibilities {#sec-etf-70.03 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.03}

The board shall have the following responsibilities in regard to the program:

(1) Act, at all times, in a manner consistent with that of a trustee with a fiduciary duty to the program and members.

(2) Determine and implement the most efficient and cost effective method for administration of the program consistent with high quality services to members.

(3) Establish standards by which the primary administrator shall be evaluated for initial and continued participation in the primary plan.

(4) Evaluate the performance of the primary administrator, biennially, to determine contractual compliance and compliance with standards as established under sub. (3).

(5) Declare the board’s official support of the primary plan to participating employers and members in the publication prepared by the department as required in s. ETF 70.04 (5) (c).

(6) Determine the initial eligibility of any potential alternate administrator that petitions the board to offer an alternate plan based on criteria established in s. ETF 70.06.

(7) Evaluate alternate administrators, annually, based on criteria established in s. ETF 70.06 to determine their continued eligibility.

(8) Define general categories of investment products to be offered under the primary plan and any alternate plan.

(9) Establish criteria by which specific investment products shall be evaluated for initial and continued participation in the primary plan or any alternate plan.

(10) Evaluate investment products offered by the administrator, annually, based on criteria established in sub. (9) to determine if the investment product continues to be acceptable for offering by the primary plan or alternate plan.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: renum. (1) to (11) to be (intro.) to (10), correction in (4), (5), (10), as renumbered, made under s. 13.92 (4) (b) 7., Stats., Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (4) Register May 2021 No. 785, eff. 6-1-21.

Wis. Admin. Code § ETF 70.04 Department responsibilities {#sec-etf-70.04 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.04}

The department shall be responsible for the following:

(1) Negotiate and implement contracts with administrators and investment companies.

(2) Monitor plan administration and ensure contract compliance.

(3) Develop and maintain a plan document that defines rules and requirements of the program regarding member enrollment in the program, member deferral amounts, distribution of account balances, and administration of the program that will be distributed, by the administrator, to new and current members by request.

(4) Provide information and recommendations to the board and its committees that shall be necessary to complete the evaluation of the primary and alternate administrator as required in s. ETF 70.03 (4) and (7) and the investment products as required in s. ETF 70.03 (10).

(5) Prepare and distribute to members an annual publication that presents a balanced and impartial overview of the primary plan and any alternate plan that includes the following:

(a) Description of investment products and corresponding investment risks.

(b) Full disclosure of all direct and indirect costs to members.

(c) Announcement of the board’s official support of the primary plan as required in s. ETF 70.03 (5).

(d) General information about deferred compensation plans including the maximum deferral amount allowed under internal revenue code section 457.

(6) Review and approve all material prepared by the primary administrator and alternate administrator to describe the primary plan and alternate plan and investment products to eligible employers, employees and members.

(7) Review and issue a determination on all requests for emergency withdrawals as defined in s. ETF 70.10.

(8) Provide reports to the board at each board meeting that detail emergency withdrawals, enrollment statistics, plan assets and any other information that may be requested by the board.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: renum. (1) to (9) to be (intro.) to (8), correction in (5), (6) (c) made under s. 13.92 (4) (b) 7., Stats., Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 70.05 Primary plan administration {#sec-etf-70.05 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.05}

(1) Based upon a request for proposal process, the board shall contract with one primary administrator to offer the primary plan that is approved and officially supported by the board. The administrator awarded the contract for the primary plan shall have:

(a) At least 5 years experience administering other section 457 deferred compensation programs. The administrator’s experience shall include administering at least one program that meets each of the following:

1. Participation level of 30,000 members or more.

2. Program involves multiple payroll reporting agencies.

3. Record keeping includes consolidated record keeping for all investment products that are offered.

(b) Marketing and enrollment services that include the following:

1. A staffed office located in Madison and field representatives to provide services to all areas of the state.

2. Contacts to each eligible employee at least annually to describe the plan being offered by this administrator.

3. Frequent enrollment opportunities at intervals established by the board.

4. Presentations to employees that include full disclosure of all direct and indirect costs to members as well as advantages and disadvantages of participating in the plan offered by this administrator.

5. Literature and forms regarding the plan to be distributed to employees and payroll personnel that are in a form approved by the department.

(c) Member services that include the following:

1. Unlimited opportunities to increase or decrease deferral amounts.

2. Unlimited opportunities to redirect deferral amounts to any other investment product offered by the administrator.

(d) Accounting procedures and consolidated record keeping for member account transactions that maintains all individual member records and submits deferrals, transfers and withdrawals to the investment companies offering investment products to the primary plan.

(2) The potential administrator shall agree to return all interest earned on idle funds of the plan that are held by the administrator to the department to offset plan costs.

(3) The potential administrator shall provide the necessary financial disclosure for assurance of its financial soundness.

(4) The investment products offered by the primary administrator shall meet the criteria in s. ETF 70.03 (9) and be approved by the board.

(5) The primary administrator shall provide an annual report to the board illustrating the investment performance of all investment products offered by the primary plan, as measured by criteria established under s. ETF 70.03 (8).

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; correction in (4), (5) made under s. 13.92 (4) (b) 7., Stats., Register July 2012 No. 679, eff. 8-1-12; CR 14-055: am. (1) (a) 1. Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 70.06 Alternate plan administration {#sec-etf-70.06 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.06}

(1) At its discretion, the board may contract with an alternate administrator to offer an alternate plan. An alternate plan shall not be officially supported by the board. Any administrator that meets the criteria set forth in s. ETF 70.05 (1), (2) and (3) may be allowed to offer an alternate plan. The board shall not contract with more than one alternate administrator at any one time.

(2) Investment products offered by an alternate administrator shall meet the criteria as established in s. ETF 70.03 (9) and be approved by the board and shall not duplicate any of the specific investment products offered by the primary administrator.

(3) The alternate administrator shall provide an annual report to the board that describes the investment performance of all investment products offered by the alternate plan, as measured by the criteria in s. ETF 70.03 (9).

(4) Potential alternate administrators who meet the minimum requirements as defined in subs. (1), (2) and (3) may petition the board for approval to participate in the program within a 30 day period beginning the day after publication of these rules in the Wisconsin Administrative Code and then from May 1 through May 31 of every other year starting in 1994 for approval to participate in the program as of the next calendar year. The board shall limit the number of alternate administrators to one through a request for proposal process should there ever be a second, or more, potential administrator that petitions the board.

(5) If the evaluation of an alternate administrator as required in s. ETF 70.03 (7) results in the termination of the alternate administrator’s participation in the program or if their contract is not renewed, members shall be instructed to redirect deferrals and transfer existing balances from investment products offered by the terminated administrator to other investment products offered by the primary administrator or any other alternate administrator within a six-month period or other time period designated by the board. At the end of the six-month period or the date designated by the board, the board shall instruct the terminated administrator to redirect any deferrals and transfer any remaining account balances with investment products offered by the terminated administrator to board designated alternative investment products offered by the primary administrator. Surrender charges that are normally assessed against funds transferred from investment products offered by one administrator to another, shall not be assessed for transactions under this subsection.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; correction in(2), (3), (5) made under s. 13.92 (4) (b) 7., Stats., Register July 2012 No. 679, eff. 8-1-12.

Wis. Admin. Code § ETF 70.07 Primary and alternate plan administration {#sec-etf-70.07 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.07}

(1) All contracts with administrators shall be approved by the board and signed by the board chair or designee. Any administrator who participates in the program shall sign a contract in which the administrator agrees to:

(a) Follow all requirements and regulations of the program as defined in the plan and trust document.

(b) Share information, such as member’s annual deferral amounts, with the department and any other administrator contracted by the board to ensure compliance with internal revenue code section 457.

(c) Provide full disclosure of all revenues received by the administrator from members and investment providers of their plan to the department at least annually.

(d) Provide quarterly reports to the department to allow adequate monitoring of program administration and compliance with internal revenue code section 457 regulations.

(e) Provide an annual independently audited financial statement of the administrator to the department within 120 days from the end of the calendar year.

(f) Submit to the department an acceptable contingency plan to address both data processing systems failures and administrative services interruptions.

(g) Provide to members, upon enrollment, full disclosure of all fees and charges that are assessed, either directly or indirectly as an offset of earnings, by the administrator or the investment providers. A memorandum of understanding detailing key aspects and restrictions of the primary plan or any alternate plan shall be presented to and signed by employees enrolling in either the primary plan or any alternate plan.

(h) Provide to members, when requested, a copy of the fund prospectus and annual report for each investment product offered by the administrator and the ability to transfer account balances from investment products offered by one administrator to those offered by another.

(i) Provide statements to members, at least quarterly, detailing member’s year to date annual deferral amounts, account balance information and disclosure of all fees and charges affecting member’s interest earnings or account balances.

(j) Provide information and counseling to members at termination of employment or retirement, regarding the options offered by the administrator for distribution of their account and timely processing of payouts. The type of distribution options offered shall include lump sum and partial lump sum payments, installment payment options and annuity options.

(2) The primary plan and any alternate plan shall reimburse the department for their proportionate share of the department’s costs associated with the program.

(3) The administrator, their agents and the investment products they offer shall meet all applicable state and federal regulations including section 457 of the internal revenue code, security and exchange commission regulations, and state and federal insurance laws and regulations.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 14-055: am. (1) (a), (d), (e), (i) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 70.08 Investment providers {#sec-etf-70.08 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.08}

(1) Investment providers offering an investment product through the primary plan or an alternate plan shall be selected by the board based on the investment product categories and criteria established under s. ETF 70.03 (8) and (9). All contracts with investment providers of the primary plan or an alternate plan shall be approved by the board and signed by the board chair or designee.

(2) Investment providers shall not be allowed to assess any direct or indirect costs to members.

(3) Based on the board’s review required under s. ETF 70.03 (10), the board may determine that an investment product offered by the primary plan or an alternate plan is no longer acceptable for inclusion in the program. If the board decides to remove an investment product from the plan as a result of the product’s failure to meet the criteria as established under s. ETF 70.03 (9), the product shall be phased out of the primary or alternate plan in a 2-step process over a 90-day period that shall commence on the first business day of the 3rd month following the board’s decision, as follows:

(a) Phase 1 of the investment product termination process shall last for 45 days during which time current members and employees newly enrolling in the primary or alternate plan shall be informed in writing that the terminating investment product does not meet board’s evaluation criteria and that this investment product is not open to new enrollments, and all of the following shall occur:

1. Any members already deferring to the terminating investment product shall be informed in writing that they need to redirect future deferrals from this product to an alternative investment product offered by the primary or alternate plan by notifying the administrator of their new investment choice.

2. At the end of the 45-day period, the board shall instruct the administrator to automatically redirect any member’s deferrals that have not been redirected to an alternative investment product from the terminated product into a board designated alternative investment product offered by the primary or alternate plan.

3. Existing member account balances shall be allowed to remain in the terminating investment product during this period.

(b) Phase 2 of the investment product termination process immediately follows the first 45-day period and provides an additional 45-day period during which time members shall transfer existing balances from the terminating product to another investment product offered by the primary or alternate plan, and all of the following shall occur:

1. If at the end of the additional 45-day period, any member has failed to move a remaining account balance from the terminated fund, the board shall instruct the administrator to automatically move that member’s account balance into a board designated alternative investment product offered by the primary or alternate plan.

2. During the phase out process and at any time prior to the end of the second phase, the board may re-examine the performance of the terminating investment product to determine if continued plan participation is justified.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 08-016: am. (3) (intro.) Register August 2008 No. 632, eff. 9-1-08; correction in (1), (3), made under s. 13.92 (4) (b) 7., Stats., Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (3) (intro.), (a) (intro.), 2., (b) (intro.), 1. Register May 2021 No. 785, eff. 6-1-21; correction in (3) (intro.) made under s. 35.17, Stats., Register May 2021 No. 785.

Wis. Admin. Code § ETF 70.09 Member responsibilities {#sec-etf-70.09 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.09}

(1) Employees electing to become a member of the primary or an alternate plan shall sign a memorandum of understanding prior to enrolling to certify that all program requirements and regulations have been clearly explained.

(2) A member shall select one administrator for his or her deferrals. A member may not simultaneously defer earnings to the primary plan and an alternate plan.

(3) Each member shall review information provided by the administrator and the department about the investment type and performance of the investment products offered to determine which investment products best meet the member’s individual needs and financial objectives.

(4) Each member shall monitor his or her own annual deferral amounts to ensure the amount does not exceed the maximum deferral amount allowed under internal revenue code section 457.

History

• Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 14-055: r. (5) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 70.10 Emergency withdrawals {#sec-etf-70.10 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.10}

(1) A participant or beneficiary may make emergency withdrawals in the event of an unforeseeable emergency under the following conditions and limitations:

(a) As defined in 26 USC 457 (b) (5) and 26 CFR 1.457-2 (h) (4), an unforeseeable emergency is one which causes severe financial hardship to the participant or beneficiary as a result of a sudden and unexpected illness or accident of the participant or beneficiary or of a dependent of the participant or beneficiary, loss of the participant’s or beneficiary’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the participant or beneficiary.

Note: “A dependent of the participant” as used here is defined by the secretary of the treasury as one specified in 26 USC 152 (a).

(b) The need to send a participant’s or beneficiary’s child to college or the desire to purchase a home are examples of what are not unforeseeable emergencies.

(c) The facts of each case shall be ascertained to determine if the circumstances constitute an unforeseeable emergency.

(d) Withdrawal payment may not be made to the extent that the hardship is or may be relieved:

1. Through reimbursement or compensation by insurance or otherwise,

2. By liquidation of the participant’s or beneficiary’s assets to the extent the liquidation of these assets would not itself cause severe financial hardship, or

3. By cessation of deferrals under the plan.

(e) The withdrawal, because of an unforeseeable emergency, shall be limited to an amount reasonably needed to satisfy the emergency need.

(2) The administrator shall:

(a) Receive requests from participants or beneficiaries for unforeseeable emergency withdrawals,

(b) Investigate and document the facts on a form prescribed by the department, and

(d) Within 5 working days after the receipt of the information requested from the employer or other parties, either render a decision or make a recommendation to the department on a form prescribed by the department.

(6) The department shall prepare a report on unforeseeable emergency withdrawal activity since the last meeting of the board for presentation at the following meeting of the board.

History

• Cr. Register, June, 1985, No. 354, eff. 7-1-85; renum. from ETF 10.01, Register, June, 1992, No. 438, eff. 7-1-92; CR 08-016: am. (intro.), (1) (a), (b), (d) 2. and (2) (a) Register August 2008 No. 632, eff. 9-1-08; CR 14-055: am. (2) (intro.), r. (2) (c), am. (2) (d), r. (3) to (5) Register May 2015 No. 713, eff. 6-1-15; correction in (2) (b) made under s. 35.17, Stats., Register May 2015 No. 713.

Subchapter II State Deferred Compensation Plan for Local Employees

Wis. Admin. Code § ETF 70.11 Participation in the deferred compensation plan {#sec-etf-70.11 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.11}

The governing body of any employer as defined under s. 40.02 (28), Stats., other than the state, may provide the state’s deferred compensation plan for its employees by the adoption of a resolution in the form approved by the department. The employer shall forward a certified copy of the resolution to the department and the then current administrative plan provider as defined in s. 40.02 (18s), Stats.

History

• Cr. Register, June, 1985, No. 354, eff. 7-1-85; renum. from ETF 70.10, Register, June, 1992, no. 438, eff. 7-1-92.

Wis. Admin. Code § ETF 70.12 Effective date {#sec-etf-70.12 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.12}

Local implementation of the deferred compensation plan and enrollment of eligible employees may begin immediately upon acceptance, by the department, of the resolution under s. ETF 70.11.

History

• Cr. Register, June, 1985, No. 354, eff. 7-1-85; CR 14-055: am. Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § ETF 70.15 Terminating participation in the deferred compensation plan {#sec-etf-70.15 omnilex-key=us-wi-regs-official--agency-etf--ETF 70.15}

The governing body of an employer, other than the state, may terminate participation in the state deferred compensation plan after a minimum of one year from the date the certified copy of the resolution required under s. ETF 70.11 was accepted by the department, by adopting a resolution in the form approved by the department and forwarding a copy of the resolution to the department and the then current administrative plan provider as defined in s. 40.02 (18s), Stats. Enrollment and payroll deferral activities shall cease 90 days after receipt by the department of the certified copy of a resolution to terminate participation in the state’s deferred compensation plan. Treatment of previous individual deferral investment specifications, accounts and benefits shall continue to be governed by the plan and investment plan provider contracts, unless the employer exercises its right of ownership under 26 CFR 1.457-2 (j) to provide for different treatment.

Note: Chapter ETF 70 requires several forms which are available at no charge by contacting either the department of employee trust funds or the current administrative plan provider. The forms may be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling: (608) 266-3285 or toll free at (877) 533-5020. The forms also are available on the department’s website: etf.wi.gov or on the Wisconsin deferred compensation program’s website: www.wdc457.org.

History

• Cr. Register, June, 1985, No. 354, eff. 7-1-85; CR 14-055: am. Register May 2015 No. 713, eff. 6-1-15.