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

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

   2. (2) 100 Percent Effort: Employment in an ORP-eligible position on a full-time basis (i.e., 100 percent effort) for a period of at least one full semester or four and one-half months, including the 90-day waiting period for active membership in the applicable retirement system, if applicable.

      1. (A) Initial Eligibility Period. This eligibility requirement is an employee's initial ORP eligibility period, as defined in §25.3 of this title (relating to Definitions).
      2. (B) Combining of Percent Effort at Different Institutions Not Permitted. The 100 percent effort requirement shall be satisfied by employment with only one institution, unless an individual is simultaneously employed in ORP-eligible positions with more than one component institution under the same governing board that operates its ORP either as a single plan for all components or includes the applicable components in the same plan, in which case, the employee's percent effort at each component may be combined to meet the minimum 100 percent effort requirement;
   3. (3) First Election Opportunity: No previous opportunity to elect ORP in lieu of the applicable retirement system during the current or a prior period of employment at the same or another Texas public institution of higher education or the Board; and
   4. (4) Active Membership in Retirement System: Current membership or eligibility for active membership in the applicable retirement system as provided in subsection (h) of this section.
2. (b) ORP Participation after Election. Once an employee makes an election of ORP, the employee's eligibility to continue participating in ORP shall be determined in accordance with §25.5 of this title (relating to ORP Vesting and Participation).
3. (c) Non-Texas ORP Plans. Prior enrollment, participation or vested status in any plan other than the ORP plan authorized under Texas Government Code, Chapter 830, shall have no bearing on an employee's eligibility to elect ORP, except that the employee must be eligible for active membership in the applicable retirement system as provided in subsection (h) of this section.

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

   1. (1) An employee's prior election of ORP in lieu of ERS at the Board on or after September 1, 1994, shall have no bearing on that person's eligibility to elect ORP in lieu of TRS at a Texas public institution of higher education.
   2. (2) An election of ORP by a Board employee prior to September 1, 1994, was made in lieu of TRS; therefore, an institution shall treat an employee's election of ORP in lieu of TRS at the Board prior to September 1, 1994, in the same manner as if the election had been made at an institution.
   3. (3) An employee's prior election of ORP in lieu of TRS at an institution, or an employee's election of ORP in lieu of TRS at the Board prior to September 1, 1994, shall have no bearing on that person's eligibility to elect ORP in lieu of ERS at the Board.
5. (e) Opportunity to Elect. The governing board of each Texas public institution of higher education shall provide an opportunity to all eligible employees in the component institutions governed by the board to elect ORP in lieu of TRS in accordance with these rules. The Board shall provide an opportunity to all eligible employees to elect ORP in lieu of ERS in accordance with these rules.

6. (f) 90-Day ORP Election Period. An employee who meets the eligibility criteria in section (a) of this section shall be provided an ORP election period, as defined in §25.3 of this title (relating to Definitions), during which an election to participate in ORP may be made by signing and submitting the appropriate forms to the ORP employer.

   1. (1) After 90-Day TRS/ERS Waiting Period. The 90-day ORP election period shall follow the 90-day TRS/ERS membership waiting period for new employees, if applicable.

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

      1. (A) the date the employee makes an ORP election by signing and submitting the appropriate forms to the ORP employer; or
      2. (B) the 90th calendar day after the employee's initial ORP eligibility date, not including the initial ORP eligibility date and including the 90th calendar day. If the 90th calendar day after the initial ORP eligibility date falls on a weekend or holiday, the deadline shall be extended until the first working day after the 90th calendar day.

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

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

         1. (i) ORP in Lieu of TRS. An employee of a Texas public institution of higher education who does not elect ORP in lieu of TRS during the 90-day ORP election period shall never again be eligible to elect ORP in lieu of TRS, even if subsequently employed in an ORP-eligible position at the same or another Texas public institution of higher education.
         2. (ii) ORP in Lieu of ERS. An employee of the Board who does not elect ORP in lieu of ERS during the 90-day ORP election period shall never again be eligible to elect ORP in lieu of ERS, even if subsequently employed in an ORP-eligible position at the Board.
      2. (B) Irrevocable. An election of ORP shall be irrevocable. An employee who elects ORP shall remain in ORP, except as provided by subsections (f) and (g) of §25.5 of this title (relating to ORP Vesting and Participation). A default election of the applicable retirement system, as described in subparagraph (3)(A) of this subsection shall be irrevocable. An employee who fails to elect ORP during the ORP election period shall remain in the applicable retirement system in accordance with the laws and rules governing eligibility for the retirement system.
      3. (C) Separate Elections. As provided in subsection (d) of this section, an election of ORP in lieu of TRS at a Texas public institution of higher education shall be considered separate and distinct from an election of ORP in lieu of ERS at the Board; therefore, an election of ORP in lieu of one retirement system shall not preclude an eligible employee's election of ORP in lieu of the other retirement system if subsequently employed in a position that is eligible to elect ORP in lieu of the other retirement system.
   4. (4) Company Selection Required at Election. An employee who elects to participate in ORP shall select an ORP company from the ORP employer's list of authorized companies in conjunction with the election of ORP. An ORP employer shall establish a policy that failure to select an authorized company may result in disciplinary action up to and including termination of employment because retirement contributions are required by law as a condition of employment.
   5. (5) Waiver of Retirement System Benefits. An election of ORP shall be a waiver of the employee's rights to any benefits that may have accrued from prior membership in the applicable retirement system, other than benefits resulting from transfers of service credit between the applicable retirement systems and reinstatement of withdrawn service credit under the ERS/TRS service transfer law, even if the participant has met the applicable system's vesting requirement. Except as provided by subsections (f) and (g) of §25.5 of this title (relating to ORP Vesting and Participation) and the ERS/TRS service transfer law, an ORP participant shall not be eligible to become an active member of the applicable retirement system or receive any benefits from the system other than a return of employee contributions that may have been deposited with the system (and accrued interest, if any).

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

   1. (1) Election on Initial ORP Eligibility Date. The participation start date for ORP-eligible employees who elect ORP on their initial ORP eligibility date, as defined in §25.3 of this title (relating to Definitions), by signing and submitting the appropriate forms on or before their initial ORP eligibility date shall be based on whether they were subject to the 90-day TRS/ERS waiting period.

      1. (A) If 90-Day TRS/ERS Waiting Period is not Applicable.

         1. (i) New Employees. For new employees who are not subject to the 90-Day TRS/ERS waiting period because they are already members of the applicable retirement system, and who sign and submit the appropriate ORP election forms on or before their initial ORP eligibility date, the participation start date shall be the initial ORP eligibility date (i.e., first day of ORP-eligible employment).
         2. (ii) Transfers within Same ORP Employer. For employees who are not subject to the 90-day TRS/ERS waiting period because they are already members of the applicable retirement system, who transfer to an ORP-eligible position within the same ORP employer, and who sign and submit the appropriate ORP election forms on or before their initial ORP eligibility date, the participation start date shall be the initial ORP eligibility date (i.e., first day of ORP-eligible employment), unless the initial ORP eligibility date is not the first day of the month, in which case, to avoid dual contributions to both the applicable retirement system and ORP during the same month, as provided in §25.6(a)(4) of this title (relating to No Dual Contributions), the participation start date shall be the first day of the month following the month in which the initial ORP eligibility date falls, or the first day of the applicable payroll period, if payroll is not processed on a monthly basis.
      2. (B) After 90-Day TRS/ERS Waiting Period. To avoid partial month contributions for employees who are subject to the 90-day TRS/ERS waiting period, the amount of the ORP contribution for the month in which their initial ORP eligibility date falls shall be based on salary earned during that entire month, so the participation start date shall be the first day of the month in which the initial ORP eligibility date falls, or the first day of the applicable payroll period, if payroll is not processed on a monthly basis.

   2. (2) Election After Initial ORP Eligibility Date. The participation start date for ORP-eligible employees who sign and submit the appropriate ORP election forms after their initial ORP eligibility date, shall be the first day of the month following the date that the forms are signed and submitted, with the following exceptions.

      1. (A) During Month of Initial ORP Eligibility Date. ORP employers may establish a policy that employees who elect ORP by signing and submitting the appropriate forms after their initial ORP eligibility date but before the payroll has been processed for the month in which the initial ORP eligibility date falls may be treated in the same manner as the employees described in paragraph (1) of this subsection.
      2. (B) After Month of Initial ORP Eligibility Date: ORP employers may establish a policy that employees who elect ORP by signing and submitting the appropriate forms after the month in which their initial ORP eligibility date falls, but before the payroll has been processed for the month in which the forms are signed and submitted, may start participating in the month in which the forms are signed and submitted rather than the first of the following month. To avoid partial month payments, contributions for these participants shall be based on salary earned during the entire month in which the forms are signed and submitted, or during the entire pay period in which the forms are signed and submitted, if payroll is not processed on a monthly basis.
   3. (3) Retirement System Membership Before Election. As provided in subsection (i) of this section, ORP-eligible employees who elect ORP after their initial ORP eligibility date, except as provided in subparagraph (2)(A) of this subsection, shall be reported as members of the applicable retirement system for any months prior to their election of ORP. As provided in §25.6(b) of this title (relating to Withdrawal of Retirement System Funds), employee contributions that are made to the applicable retirement system after an employee becomes eligible to elect ORP but prior to an election of ORP, including the month in which the ORP election is made, if applicable, may be withdrawn from the retirement system after an election of ORP is made, and may be rolled over or transferred to the participant's ORP account, in accordance with IRS provisions regarding this type of transaction.

8. (h) Active Membership in Retirement System Requirement. Participation in ORP shall be an alternative to active membership in the applicable retirement system; therefore, a person who becomes employed in an ORP-eligible position shall not be eligible to elect ORP unless he or she is either a current member of the applicable retirement system (i.e., has employee contributions on account with the applicable retirement system) or has satisfied the 90-day waiting period for active membership in the applicable retirement system.

   1. (1) 90-Day TRS/ERS Waiting Period. Employees who are not current members of TRS when they become employed in an ORP-eligible position at a Texas public institution of higher education shall not be eligible to elect ORP in lieu of TRS until the 90-day TRS waiting period has been satisfied. Employees who are not current members of ERS when they become employed in an ORP-eligible position at the Board shall not be eligible to elect ORP in lieu of ERS until the 90-day ERS waiting period has been satisfied.
   2. (2) Retirees Not Eligible. Employees who have retired from TRS or ERS are no longer active members of the applicable retirement system; therefore, a TRS retiree shall not be eligible to elect ORP in lieu of TRS at a Texas public institution of higher education and an ERS retiree shall not be eligible to elect ORP in lieu of ERS at the Board.
9. (i) Automatic Retirement System Enrollment. A new employee at a Texas public institution of higher education who is eligible to elect ORP in lieu of TRS shall be automatically enrolled in TRS, following the 90-day TRS waiting period, if applicable, until an election to participate in ORP is made by signing and submitting the appropriate forms to the institution as provided in subsection (g) of this section. A new Board employee who is eligible to elect ORP in lieu of ERS shall be automatically enrolled in ERS, following the 90-day ERS waiting period, if applicable, until an election to participate in ORP is made by signing and submitting the appropriate forms to the Board as provided in subsection (g) of this section.

10. (j) Dual Employment in TRS/ORP Positions at Different Employers.

    1. (1) Simultaneous Retirement Plan Membership Not Permitted.

       1. (A) Dual Employment with ORP Employer and non-ORP Employer. A member of TRS who is employed in the Texas public school system (including all Texas Independent School Districts and regional educational service centers) or with any other Texas public educational institution or state agency that is covered by TRS but does not offer ORP in lieu of TRS, and who concurrently becomes employed in an ORP-eligible position with a Texas public institution of higher education and elects to participate in ORP, may not remain an active member of TRS as an employee of the non-ORP employer once ORP participation has started. TRS contributions may not be made for the participant's employment with the non-ORP employer while he or she is actively participating in ORP.
       2. (B) Dual Employment with Different ORP Employers. A member of TRS who is employed with a Texas public institution of higher education in a position that is eligible for TRS but is not ORP-eligible and who becomes concurrently employed with another Texas public institution of higher education in a position that is ORP-eligible and who elects to participate in ORP, may not remain an active member of TRS once ORP participation has started. TRS contributions may not be made for the participant's employment in the TRS-only position at the other Texas public institution of higher education while he or she is actively participating in ORP. Once the participant vests in ORP, ORP contributions shall be made based on the concurrent employment in the TRS-only position.

    2. (2) Returning to TRS.

       1. (A) If the individual described in subparagraph (1)(A) of this subsection terminates ORP participation while concurrently employed in a TRS-eligible position with a non-ORP employer, then he or she shall return to active TRS membership with the non-ORP employer and shall be ineligible for any future ORP participation in lieu of TRS.
       2. (B) If the individual described in subparagraph (1)(B) of this subsection terminates ORP participation prior to vesting in ORP while concurrently employed in a TRS-eligible position with another Texas public institution of higher education, then he or she shall return to active TRS membership and shall be ineligible for any future ORP participation in lieu of TRS.
       3. (C) If the individual described in subparagraph (1)(B) of this subsection terminates ORP participation after satisfying the ORP vesting requirement, but while concurrently employed in a TRS-eligible position with another Texas public institution of higher education, then he or she shall not return to TRS membership and shall continue to make ORP contributions based on the employment in the TRS-only position.

11. (k) Eligible Positions. The following positions shall be considered ORP-eligible. Only those employees who fill ORP-eligible positions and who meet the eligibility requirements established in this chapter shall be eligible to elect ORP or to continue participating in ORP prior to vesting.

    1. (1) Faculty Member--A member of the faculty whose duties include teaching and/or research as a principal activity, as defined in §25.3 of this title (relating to Definitions), and who holds the title of professor, associate professor, assistant professor, instructor, lecturer, or equivalent faculty title, including "visiting professor" if the position is at least one full semester in duration.
    2. (2) Faculty Administrator--An administrator responsible for teaching and research faculty whose principal activity, as defined in §25.3 of this title (relating to Definitions), is planning, organizing, and directing the activities of faculty and who holds the title of dean, associate dean, assistant dean, director, department chair, or head of academic department.
    3. (3) Executive Administrator--An administrator who holds the title of chancellor, deputy chancellor, vice chancellor, associate vice chancellor, assistant vice chancellor, or the equivalent, and an administrator who holds the title of president, executive vice president, provost, vice president, associate vice president, assistant vice president, or the equivalent.

    4. (4) Other Key Administrator--An administrator other than a faculty administrator or an executive administrator whose position is considered a key administrative position within the institution's organizational structure and that meets the requirements of this paragraph. The most common position titles in this category are director or associate director, but included titles may vary by institution based on differences in organizational structure, size, mission, etc. All positions in this category, including positions with the title of director or associate director, shall meet the following criteria:

       1. (A) serves as director or other administrative head of a major department or budget entity, as defined in §25.3 of this title (relating to Definitions), excluding the title of assistant director unless the assistant director position has responsibility for what is considered a major department or budget entity that is within a larger department or budget entity, as may be the case at large institutions;
       2. (B) is responsible for the preparation and administration of the budget, policies, and programs of the major department or budget entity;
       3. (C) usually reports to the office of a chancellor, president, vice chancellor, vice president, dean, or equivalent; and
       4. (D) is generally and customarily recruited from the same pool of candidates that other colleges and universities across the nation are recruiting from for this type of position by, for example, advertising in national publications such as the Chronicle of Higher Education or in newsletters or websites of national professional associations or at meetings of such associations.
       5. (E) A position shall not be considered ORP-eligible under this category unless it can be reasonably demonstrated that all of the applicable criteria have been met. If there is significant ambiguity concerning whether a position meets the criteria for this category, the default finding shall be that the position is not ORP-eligible.
    5. (5) Librarian--A professional librarian who holds, at a minimum, a master's degree in library science or information science, and whose principal activity, as defined in §25.3 of this title (relating to Definitions), is library services.

    6. (6) Athletic Coach--An athletic coach, associate athletic coach, or assistant athletic coach whose principal activity, as defined in §25.3 of this title (relating to Definitions), is coaching, excluding an athletic trainer, and excluding an athletic director or assistant athletic director unless the principal activity is coaching rather than administrative.

       1. (A) Athletic trainers may be included in the "professional" category if the position requires the trainer to be a physician.
       2. (B) Athletic directors whose principal activity is not coaching normally shall be included in one of the administrator categories.

    7. (7) Professional--An employee whose principal activity, as defined in §25.3 of this title (relating to Definitions), is performing the duties of a professional career position, including, but not necessarily limited to, physician, attorney, engineer, and architect, that meets the following criteria:

       1. (A) requires a terminal professional degree in a recognized professional career field that requires occupation-specific knowledge and appropriate professional licensure;
       2. (B) is a non-classified position; and
       3. (C) is generally and customarily recruited from the same pool of candidates that other colleges and universities across the nation are recruiting from for this type of position by, for example, advertising in national publications such as the Chronicle of Higher Education or in newsletters of national professional associations or at meetings of such associations.
       4. (D) A position shall not be considered ORP-eligible under this category unless it can be reasonably demonstrated that all of the applicable criteria have been met. If there is significant ambiguity concerning whether a position meets the criteria for this category, the default finding shall be that the position is not ORP-eligible.

    8. (8) Board Administrative Staff--A member of the executive or professional staff of the Board, as determined by the Commissioner of Higher Education, who fills a position with the following requirements:

       1. (A) college graduation and prior experience in higher education or experience of such kind and amounts to provide a comparable background; and
       2. (B) national mobility requirements similar to those of faculty.
12. (l) Position-Required Qualifications. An employee who meets the qualifications of a "professional" or a "librarian" as defined in subsection (k) of this section shall not be considered eligible to elect ORP as a professional or librarian unless the position requires the professional or librarian qualifications, respectively, as a principal activity. For example, an attorney who fills a position that does not require that the position be filled by an attorney shall not be considered ORP-eligible based solely on the fact that the person is an attorney.

13. (m) Counselors. The eligibility of counselors shall be determined as follows.

    1. (1) Faculty. If the institution has established policies that consider and treat counselors in the same manner as faculty in such areas as, for example, employment contracts, oversight, and work schedules, then ORP eligibility for a counselor position shall be determined under the same requirements as a faculty position, except that the principal activity shall be counseling rather than teaching and/or research, and the title shall be counselor rather than the faculty titles listed in that category.
    2. (2) Staff. If the institution has established policies that consider and treat counselors in the same manner as staff rather than faculty, in such areas as, for example, employment contracts, oversight, and work schedules, then ORP eligibility for a counselor position shall not be determined under the faculty category. Depending on the duties and required qualifications, a counselor who is considered staff rather than faculty may meet the criteria for one of the non-faculty ORP-eligible positions.

14. (n) Review of Positions for ORP Eligibility.

    1. (1) Comprehensive Review. ORP employers shall periodically conduct a comprehensive review of all non-classified positions to ensure that ORP eligibility requirements are being applied fairly and consistently across all departments and divisions.
    2. (2) New Position. ORP employers shall analyze newly created non-classified positions for ORP eligibility determination and shall maintain proper documentation of the analysis and determination for future reference.

    3. (3) Re-classified Position. ORP employers shall re-classify a position as ORP-eligible if changes in the position's responsibilities or the employer's organizational structure result in a position that meets the ORP-eligibility requirements.

       1. (A) Option to Elect ORP. ORP employers shall provide the incumbent in a position that is re-classified as ORP-eligible an opportunity to elect ORP as if newly hired into the position.
       2. (B) Initial ORP Eligibility Date. The incumbent's initial ORP eligibility date, as defined by §25.3 of this title (relating to Definitions), shall be the date that the re-classification is effective, unless the re-classification is retro-active to a prior month, in which case, the initial ORP eligibility date shall be the date that the employee is notified of the re-classification.

15. (o) Administrative Errors.

    1. (1) Orientation Procedures. Each ORP employer shall develop and implement effective orientation and enrollment procedures to ensure appropriate and timely processing of newly eligible employees' retirement plan choices.
    2. (2) Rectification. In the event an administrative error occurs which prevents the normal processing of an ORP-eligible employee's election, the ORP employer shall rectify the error as soon as practicable and in a manner that results in a situation that is as close to the originally expected outcome as possible, within applicable federal and state laws and rules.

    3. (3) Documentation and Prevention. When an administrative error occurs, the ORP employer shall:

       1. (A) maintain documentation of the error and the actions taken by the ORP employer to address the problem, with a copy placed in the employee's file; and
       2. (B) immediately develop and implement appropriate administrative procedures to avoid such errors in the future.
    4. (4) Failure to Notify Error. If an ORP employer fails to notify an ORP-eligible employee of his or her eligible status on or before the employee's initial ORP eligibility date, the ORP employer shall notify the eligible employee as soon as the oversight is discovered. The 90-day ORP election period for the eligible employee shall begin on the date that the employee is notified, and the participation start date shall be determined in accordance with subsection (g) of this section.

16. (p) Texas Commissioner of Education.

    1. (1) ORP Eligibility. Notwithstanding other provisions in this chapter, the Texas Commissioner of Education shall be eligible to elect ORP in lieu of ERS.
    2. (2) Employment in Higher Education. Notwithstanding other provisions in this chapter, a Texas public institution of higher education shall, for the purpose of determining ORP eligibility for a former Texas Commissioner of Education who is subsequently employed by the institution, treat an election of ORP in lieu of ERS made by the Texas Commissioner of Education at the Texas Education Agency in the same manner as if the election of ORP had been made in lieu of TRS at another Texas public institution of higher education.

Source Note:The provisions of this §25.4 adopted to be effective May 23, 2004, 29 TexReg 5079.