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42 U.S.C. § 418 — Voluntary agreements for coverage of State and local employees

submitted 91 years ago by ch. 531 to r/title-42-THE-PUBLIC-HEALTH-AND-WELFARE · 6,570 words · no verdicts yet

in plain englishAI-generated · not legal advice

This law lets a state get Social Security coverage for its state and local employees. The state and the Commissioner of Social Security sign an agreement that can later be expanded. Special rules cover employees with their own retirement systems, police, firefighters, and specific named state and tribal groups.

(a) Purpose of agreement. If a state asks, the Commissioner of Social Security must sign an agreement extending Social Security to the state's or its local governments' employees. The agreement can include whatever terms the state wants, as long as they don't conflict with this section. For Social Security purposes, "employment" then includes any work covered by that agreement. (b) Definitions. "State" does not include the District of Columbia, Guam, or American Samoa. "Political subdivision" includes an instrumentality of a state, of one or more of its subdivisions, or of both together. "Employee" includes a state or subdivision officer. "Retirement system" means a pension or similar fund a state or subdivision sets up. "Coverage group" means one of four categories: (A) state employees outside a single proprietary function, (B) subdivision employees outside a single proprietary function, (C) state employees inside one specific proprietary function, or (D) subdivision employees inside one specific proprietary function. Someone who could fit more than one group goes into only one, as the agreement specifies. National Guard technicians who chose to stay in a state or Puerto Rico retirement system count as state or Puerto Rico employees and form their own separate coverage group. Certain agricultural inspectors working under specific USDA agreements can, at the state's option, be treated as state employees forming their own separate coverage group too. (c) Services covered. The agreement applies to whatever coverage groups the state names. For each named group, it must cover all their work except what (d) or paragraphs (3), (5), or (6) below excludes. If the state asks, the agreement must exclude: (A) elective, part-time, or fee-paid positions; (B) work in positions already covered by a retirement system when coverage begins, but only for people ineligible to join that system whose work wasn't already covered under (d)(3). The Commissioner must, at the state's request, add new coverage groups or add previously excluded work to existing groups, as long as the change doesn't conflict with the rules for a first-time agreement; adding back people described in (3)(B) is allowed only if they're currently ineligible for any retirement system, or the change is made under (d)(3). If the state asks, the agreement must also exclude named farm labor or student work, but only work already excluded from "employment" under section 410(a) (except one listed exception) and pay excluded under section 409(a)(7)(B). The agreement must always exclude: (A) work by someone hired just to get them off unemployment; (B) work by a patient or inmate of a hospital, home, or institution; (C) certain transportation work; (D) work excluded from "employment" by section 410(a) (with that same exception); (E) work by someone temporarily hired for a fire, storm, snow, earthquake, flood, or similar emergency; and (F) one specific category described in section 410(a)(7)(F). An agreement can't cover people described in (3)(B) unless it also says whether their coverage continues or stops once they become eligible for a retirement system (unless that system is already covered under (d)(3)) - whichever the state wants. A state can modify its agreement anytime to exclude election officials and election workers paid less than $1,000 a year for 1995 through 1999, or an adjusted amount for later years; the change applies to work in and after the year it's filed. Starting in 2000, the Commissioner adjusts that dollar figure yearly using the same method as another Social Security cost-of-living formula, using 1997 as the base year and rounding up to the next $100, and must publish the new figure by November 1 of the prior year. (d) Positions covered by retirement systems. An agreement generally can't cover work in a position already covered by a retirement system, either on the day coverage starts or on September 1, 1954 - except positions that lost retirement coverage through state action taken before that date, and except positions excluded under (5)(A). This bar doesn't apply to someone ineligible to join that retirement system. Congress's stated policy is that extending Social Security, or laws passed in anticipation of it, must not weaken protections already given to people covered by a retirement system. Despite the general bar, an agreement can cover retirement-system positions if the governor (or a designated official) certifies that: a secret-ballot vote was held on including that system; every eligible employee could vote; they got at least 90 days' notice; the governor or a designee supervised the vote; and a majority voted yes. An "eligible employee" is someone who was a system member both when notice went out and when the vote happened, except people already covered by the agreement or in excluded positions. The vote must fall within the two years before the agreement is signed, and at least one year after any earlier vote on the same system. For coverage-group purposes, three groups always count as separate: everyone whose position the system covered on the day coverage started (except those already covered before), everyone whose position joined the system later, and everyone whose position was covered by the system earlier but who wasn't covered by Social Security yet because of it. None of this lets Social Security reach a police officer's or firefighter's position. At the state's request, a class of retirement-covered positions eligible for exclusion under (c)(3) or (c)(5), and not yet covered, can be excluded when coverage starts for that system, except this can't exclude anyone described in (3)(B); each excluded class then counts as its own separate retirement system for later changes. A retirement system covering a state and one or more of its subdivisions, or several subdivisions, can - if the state wants - be treated as a separate system for each one; a system covering several colleges, or a hospital that's part of a subdivision, can likewise be split so each institution counts separately ("institutions of higher learning" includes junior colleges and teacher's colleges). In 23 named states, a system divided into a "wants coverage" side and a "doesn't want coverage" side, with new members joining the "wants" side, counts as two separate systems, with detailed transfer rules for people who later move between them; someone eligible but not yet a member is still treated as a member. A member's position can be transferred from the "doesn't want" side to the "wants" side if the agreement is modified by set deadlines and the employee files a written request. In seven named states, a system covering employees paid from certain federal grants can, at the state's request, be split by department or by grant-funding status. The governor's certification described above is satisfied for one of these split systems if the governor certifies that all members got a written-ballot vote with 90 days' notice, supervised by the governor or a designee, and that the system was actually split as described. Once an agreement covers a retirement system after December 31, 1958, a position can't be excluded just because it's also covered by a second retirement system - except for someone who, on the day coverage starts, belongs only to the second system, not the first; this rule applies to pre-1959 agreements too, once modified to say so. Except for Utah agreements under (l) and interstate-instrumentality agreements, none of this lets coverage reach a police or firefighter position. (e) Effective date of agreement; retroactive coverage. An agreement or modification takes effect on a date it names, but never earlier than the last day of the sixth calendar year before the year it's filed. If a coverage group's agreement names an earlier effective date than the signing date, the state can ask to cover people who were group members on some date it picks, but never earlier than when the agreement was actually filed. Even so, if people already paid Social Security-equivalent taxes in good faith for that work and got no refund, the state can ask to treat them as covered from that earlier date anyway. (f) Duration of agreement. No agreement, in whole or for any coverage group, can be ended on or after April 20, 1983. (g) Instrumentalities of two or more States. At the request of an instrumentality run jointly by two or more states, the Commissioner must sign a similar agreement for its employees, following the state-agreement rules where practical. If such an instrumentality's employees are in a retirement system split into a "wants coverage" and "doesn't want coverage" division, with new members joining the "wants" side, each division counts as a separate system, under conditions like those used for states under (d)(6)(C). The agreement can also cover police and firefighter positions there, despite the usual bar, if it meets the same certification steps required under (d)(3). (h) Delegation of functions. The Commissioner can delegate duties under this section to another federal agency's staff, by agreement with that agency's head, and pay for the help either in advance or by reimbursement. (i) Wisconsin Retirement Fund. Despite (d)(1), Wisconsin's agreement can be modified to cover employees in the Wisconsin retirement fund or its successor. Everyone covered by that fund since January 1, 1951, forms its own coverage group, except people already covered some other way. The modification excludes work done before someone actually joined the fund, and, if Wisconsin asks, can also exclude all police work, all firefighter work, or both. (j) Certain positions no longer covered by retirement systems. For agreements signed before September 1, 1954, a state could, before January 1, 1958, add positions that weren't yet covered, that had been covered by a retirement system when the agreement started, and that lost that retirement coverage through state action taken before September 1, 1954. (k) Certain employees of State of Utah. Despite (d), Utah's agreement can be modified to cover a specific list of institutions - Weber Junior College, Carbon Junior College, Dixie Junior College, Central Utah Vocational School, Salt Lake Area Vocational School, Center for the Adult Blind, Union High School in Roosevelt, Utah High School Activities Association, State Industrial School, State Training School, State Board of Education, and Utah School Employees Retirement Board - each forming its own coverage group. A modification made before January 1, 1955, could be backdated, but never earlier than December 31, 1950. Renaming a group later doesn't change its coverage. (l) Policemen and firemen in certain States. Despite the usual bar, a state's agreement can be modified to cover police and firefighter positions under a retirement system in effect on or after August 1, 1956, if the state meets the same certification steps required under (d)(3). (m) Positions compensated solely on a fee basis. Coverage of fee-only positions not already covered can only be added for work after 1967, and only if the state specifically requests it. A state can instead choose, any time after 1967, to exclude fee-only positions; the change applies to work after the end of the year it's filed. Once a fee-only class is excluded this way, it can never be added back. (n) Optional medicare coverage of current employees. At a state's request, the Commissioner must extend Medicare coverage (and two related sections) to state or local employees whose work isn't "employment" under section 410(p)(3) and who aren't already covered by the state's regular agreement. Their covered work then counts as "medicare qualified government employment" for those two related sections, and the rest of this section's normal rules apply to this coverage too.
the actual law source: uscode.house.gov ↗public domain
(a) Purpose of agreement
(1)

The Commissioner of Social Security shall, at the request of any State, enter into an agreement with such State for the purpose of extending the insurance system established by this subchapter to services performed by individuals as employees of such State or any political subdivision thereof. Each such agreement shall contain such provisions, not inconsistent with the provisions of this section, as the State may request.

(2)

Notwithstanding section 410(a) of this title, for the purposes of this subchapter the term “employment” includes any service included under an agreement entered into under this section.

(b) Definitions

For the purposes of this section—

(1)

The term “State” does not include the District of Columbia, Guam, or American Samoa.

(2)

The term “political subdivision” includes an instrumentality of (A) a State, (B) one or more political subdivisions of a State, or (C) a State and one or more of its political subdivisions.

(3)

The term “employee” includes an officer of a State or political subdivision.

(4)

The term “retirement system” means a pension, annuity, retirement, or similar fund or system established by a State or by a political subdivision thereof.

(5)

The term “coverage group” means (A) employees of the State other than those engaged in performing service in connection with a proprietary function; (B) employees of a political subdivision of a State other than those engaged in performing service in connection with a proprietary function; (C) employees of a State engaged in performing service in connection with a single proprietary function; or (D) employees of a political subdivision of a State engaged in performing service in connection with a single proprietary function. If under the preceding sentence an employee would be included in more than one coverage group by reason of the fact that he performs service in connection with two or more proprietary functions or in connection with both a proprietary function and a nonproprietary function, he shall be included in only one such coverage group. The determination of the coverage group in which such employee shall be included shall be made in such manner as may be specified in the agreement. Persons employed under section 709 of title 32, who elected under section 6 of the National Guard Technicians Act of 1968 to remain covered by an employee retirement system of, or plan sponsored by, a State or the Commonwealth of Puerto Rico, shall, for the purposes of this chapter, be employees of the State or the Commonwealth of Puerto Rico and (notwithstanding the preceding provisions of this paragraph), shall be deemed to be a separate coverage group. For purposes of this section, individuals employed pursuant to an agreement, entered into pursuant to section 1624 of title 7 or section 499n of title 7, between a State and the United States Department of Agriculture to perform services as inspectors of agricultural products may be deemed, at the option of the State, to be employees of the State and (notwithstanding the preceding provisions of this paragraph) shall be deemed to be a separate coverage group.

(c) Services covered
(1)

An agreement under this section shall be applicable to any one or more coverage groups designated by the State.

(2)

In the case of each coverage group to which the agreement applies, the agreement must include all services (other than services excluded by or pursuant to subsection (d) or paragraph (3), (5), or (6) of this subsection) performed by individuals as members of such group.

(3)

Such agreement shall, if the State requests it, exclude (in the case of any coverage group) any one or more of the following:

(A)

All services in any class or classes of (i) elective positions, (ii) part-time positions, or (iii) positions the compensation for which is on a fee basis;

(B)

All services performed by individuals as members of a coverage group in positions covered by a retirement system on the date such agreement is made applicable to such coverage group, but only in the case of individuals who, on such date (or, if later, the date on which they first occupy such positions), are not eligible to become members of such system and whose services in such positions have not already been included under such agreement pursuant to subsection (d)(3).

(4)

The Commissioner of Social Security shall, at the request of any State, modify the agreement with such State so as to (A) include any coverage group to which the agreement did not previously apply, or (B) include, in the case of any coverage group to which the agreement applies, services previously excluded from the agreement; but the agreement as so modified may not be inconsistent with the provisions of this section applicable in the case of an original agreement with a State. A modification of an agreement pursuant to clause (B) of the preceding sentence may apply to individuals to whom paragraph (3)(B) of this subsection is applicable (whether or not the previous exclusion of the service of such individuals was pursuant to such paragraph), but only if such individuals are, on the effective date specified in such modification, ineligible to be members of any retirement system or if the modification with respect to such individuals is pursuant to subsection (d)(3).

(5)

Such agreement shall, if the State requests it, exclude (in the case of any coverage group) any agricultural labor, or service performed by a student, designated by the State. This paragraph shall apply only with respect to service which is excluded from employment by any provision of section 410(a) of this title other than paragraph (7) of such section and service the remuneration for which is excluded from wages by subparagraph (B) of section 409(a)(7) of this title.

(6)

Such agreement shall exclude—

(A)

service performed by an individual who is employed to relieve him from unemployment,

(B)

service performed in a hospital, home, or other institution by a patient or inmate thereof,

(C)

covered transportation service (as determined under section 410(k) of this title),

(D)

service (other than agricultural labor or service performed by a student) which is excluded from employment by any provision of section 410(a) of this title other than paragraph (7) of such section,

(E)

service performed by an individual as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or other similar emergency, and

(F)

service described in section 410(a)(7)(F) of this title which is included as “employment” under section 410(a) of this title.

(7)

No agreement may be made applicable (either in the original agreement or by any modification thereof) to service performed by any individual to whom paragraph (3)(B) of this subsection is applicable unless such agreement provides (in the case of each coverage group involved) either that the service of any individual to whom such paragraph is applicable and who is a member of such coverage group shall continue to be covered by such agreement in case he thereafter becomes eligible to be a member of a retirement system, or that such service shall cease to be so covered when he becomes eligible to be a member of such a system (but only if the agreement is not already applicable to such system pursuant to subsection (d)(3)), whichever may be desired by the State.

(8)
(A)

Notwithstanding any other provision of this section, the agreement with any State entered into under this section may at the option of the State be modified at any time to exclude service performed by election officials or election workers if the remuneration paid in a calendar year for such service is less than $1,000 with respect to service performed during any calendar year commencing on or after January 1, 1995, ending on or before December 31, 1999, and the adjusted amount determined under subparagraph (B) for any calendar year commencing on or after January 1, 2000, with respect to service performed during such calendar year. Any modification of an agreement pursuant to this paragraph shall be effective with respect to services performed in and after the calendar year in which the modification is mailed or delivered by other means to the Commissioner of Social Security.

(B)

For each year after 1999, the Commissioner of Social Security shall adjust the amount referred to in subparagraph (A) at the same time and in the same manner as is provided under section 415(a)(1)(B)(ii) of this title with respect to the amounts referred to in section 415(a)(1)(B)(i) of this title, except that—

(i)

for purposes of this subparagraph, 1997 shall be substituted for the calendar year referred to in section 415(a)(1)(B)(ii)(II) of this title, and

(ii)

such amount as so adjusted, if not a multiple of $100, shall be rounded to the next higher multiple of $100 where such amount is a multiple of $50 and to the nearest multiple of $100 in any other case.

The Commissioner of Social Security shall determine and publish in the Federal Register each adjusted amount determined under this subparagraph not later than November 1 preceding the year for which the adjustment is made.

(d) Positions covered by retirement systems
(1)

No agreement with any State may be made applicable (either in the original agreement or by any modification thereof) to any service performed by employees as members of any coverage group in positions covered by a retirement system either (A) on the date such agreement is made applicable to such coverage group, or (B) on September 1, 1954 (except in the case of positions which are, by reason of action by such State or political subdivision thereof, as may be appropriate, taken prior to September 1, 1954, no longer covered by a retirement system on the date referred to in clause (A), and except in the case of positions excluded by paragraph (5)(A) of this subsection). The preceding sentence shall not be applicable to any service performed by an employee as a member of any coverage group in a position (other than a position excluded by paragraph (5)(A) of this subsection) covered by a retirement system on the date an agreement is made applicable to such coverage group if, on such date (or, if later, the date on which such individual first occupies such position), such individual is ineligible to be a member of such system.

(2)

It is declared to be the policy of the Congress in enacting the succeeding paragraphs of this subsection that the protection afforded employees in positions covered by a retirement system on the date an agreement under this section is made applicable to service performed in such positions, or receiving periodic benefits under such retirement system at such time, will not be impaired as a result of making the agreement so applicable or as a result of legislative enactment in anticipation thereof.

(3)

Notwithstanding paragraph (1) of this subsection, an agreement with a State may be made applicable (either in the original agreement or by any modification thereof) to service performed by employees in positions covered by a retirement system (including positions specified in paragraph (4) of this subsection but not including positions excluded by or pursuant to paragraph (5)), if the governor of the State, or an official of the State designated by him for the purpose, certifies to the Commissioner of Social Security that the following conditions have been met:

(A)

A referendum by secret written ballot was held on the question of whether service in positions covered by such retirement system should be excluded from or included under an agreement under this section;

(B)

An opportunity to vote in such referendum was given (and was limited) to eligible employees;

(C)

Not less than ninety days’ notice of such referendum was given to all such employees;

(D)

Such referendum was conducted under the supervision of the governor or an agency or individual designated by him; and

(E)

A majority of the eligible employees voted in favor of including service in such positions under an agreement under this section.

An employee shall be deemed an “eligible employee” for purposes of any referendum with respect to any retirement system if, at the time such referendum was held, he was in a position covered by such retirement system and was a member of such system, and if he was in such a position at the time notice of such referendum was given as required by clause (C) of the preceding sentence; except that he shall not be deemed an “eligible employee” if, at the time the referendum was held, he was in a position to which the State agreement already applied, or if he was in a position excluded by or pursuant to paragraph (5). No referendum with respect to a retirement system shall be valid for purposes of this paragraph unless held within the two-year period which ends on the date of execution of the agreement or modification which extends the insurance system established by this subchapter to such retirement system, nor shall any referendum with respect to a retirement system be valid for purposes of this paragraph if held less than one year after the last previous referendum held with respect to such retirement system.

(4)

For the purposes of subsection (c) of this section, the following employees shall be deemed to be a separate coverage group—

(A)

all employees in positions which were covered by the same retirement system on the date the agreement was made applicable to such system (other than employees to whose services the agreement already applied on such date);

(B)

all employees in positions which became covered by such system at any time after such date; and

(C)

all employees in positions which were covered by such system at any time before such date and to whose services the insurance system established by this subchapter has not been extended before such date because the positions were covered by such retirement system (including employees to whose services the agreement was not applicable on such date because such services were excluded pursuant to subsection (c)(3)(B)).

(5)
(A)

Nothing in paragraph (3) of this subsection shall authorize the extension of the insurance system established by this subchapter to service in any policeman’s or fireman’s position.

(B)

At the request of the State, any class or classes of positions covered by a retirement system which may be excluded from the agreement pursuant to paragraph (3) or (5) of subsection (c), and to which the agreement does not already apply, may be excluded from the agreement at the time it is made applicable to such retirement system; except that, notwithstanding the provisions of paragraph (3)(B) of such subsection, such exclusion may not include any services to which such paragraph (3)(B) is applicable. In the case of any such exclusion, each such class so excluded shall, for purposes of this subsection, constitute a separate retirement system in case of any modification of the agreement thereafter agreed to.

(6)
(A)

If a retirement system covers positions of employees of the State and positions of employees of one or more political subdivisions of the State, or covers positions of employees of two or more political subdivisions of the State, then, for purposes of the preceding paragraphs of this subsection, there shall, if the State so desires, be deemed to be a separate retirement system with respect to any one or more of the political subdivisions concerned and, where the retirement system covers positions of employees of the State, a separate retirement system with respect to the State or with respect to the State and any one or more of the political subdivisions concerned. Where a retirement system covering positions of employees of a State and positions of employees of one or more political subdivisions of the State, or covering positions of employees of two or more political subdivisions of the State, is not divided into separate retirement systems pursuant to the preceding sentence or pursuant to subparagraph (C), then the State may, for purposes of subsection (e) only, deem the system to be a separate retirement system with respect to any one or more of the political subdivisions concerned and, where the retirement system covers positions of employees of the State, a separate retirement system with respect to the State or with respect to the State and any one or more of the political subdivisions concerned.

(B)

If a retirement system covers positions of employees of one or more institutions of higher learning, then, for purposes of such preceding paragraphs there shall, if the State so desires, be deemed to be a separate retirement system for the employees of each such institution of higher learning. For the purposes of this subparagraph, the term “institutions of higher learning” includes junior colleges and teachers colleges. If a retirement system covers positions of employees of a hospital which is an integral part of a political subdivision, then, for purposes of the preceding paragraphs there shall, if the State so desires, be deemed to be a separate retirement system for the employees of such hospital.

(C)

For the purposes of this subsection, any retirement system established by the State of Alaska, California, Connecticut, Florida, Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Dakota, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Washington, Wisconsin, or Hawaii, or any political subdivision of any such State, which, on, before, or after August 1, 1956, is divided into two divisions or parts, one of which is composed of positions of members of such system who desire coverage under an agreement under this section and the other of which is composed of positions of members of such system who do not desire such coverage, shall, if the State so desires and if it is provided that there shall be included in such division or part composed of members desiring such coverage the positions of individuals who become members of such system after such coverage is extended, be deemed to be a separate retirement system with respect to each such division or part. If, in the case of a separate retirement system which is deemed to exist by reason of subparagraph (A) and which has been divided into two divisions or parts pursuant to the first sentence of this subparagraph, individuals become members of such system by reason of action taken by a political subdivision after coverage under an agreement under this section has been extended to the division or part thereof composed of positions of individuals who desire such coverage, the positions of such individuals who become members of such retirement system by reason of the action so taken shall be included in the division or part of such system composed of positions of members who do not desire such coverage if (i) such individuals, on the day before becoming such members, were in the division or part of another separate retirement system (deemed to exist by reason of subparagraph (A)) composed of positions of members of such system who do not desire coverage under an agreement under this section, and (ii) all of the positions in the separate retirement system of which such individuals so become members and all of the positions in the separate retirement system referred to in clause (i) would have been covered by a single retirement system if the State had not taken action to provide for separate retirement systems under this paragraph.

(D)
(i)

The position of any individual which is covered by any retirement system to which subparagraph (C) is applicable shall, if such individual is ineligible to become a member of such system on August 1, 1956, or, if later, the day he first occupies such position, be deemed to be covered by the separate retirement system consisting of the positions of members of the division or part who do not desire coverage under the insurance system established under this subchapter.

(ii)

Notwithstanding clause (i), the State may, pursuant to subsection (c)(4)(B) and subject to the conditions of continuation or termination of coverage provided for in subsection (c)(7), modify its agreement under this section to include services performed by all individuals described in clause (i) other than those individuals to whose services the agreement already applies. Such individuals shall be deemed (on and after the effective date of the modification) to be in positions covered by the separate retirement system consisting of the positions of members of the division or part who desire coverage under the insurance system established under this subchapter.

(E)

An individual who is in a position covered by a retirement system to which subparagraph (C) is applicable and who is not a member of such system but is eligible to become a member thereof shall, for purposes of this subsection (other than paragraph (8) of this subsection), be regarded as a member of such system; except that, in the case of any retirement system a division or part of which is covered under the agreement (either in the original agreement or by a modification thereof), which coverage is agreed to prior to 1960, the preceding provisions of this subparagraph shall apply only if the State so requests and any such individual referred to in such preceding provisions shall, if the State so requests, be treated, after division of the retirement system pursuant to such subparagraph (C), the same as individuals in positions referred to in subparagraph (F).

(F)

In the case of any retirement system divided pursuant to subparagraph (C), the position of any member of the division or part composed of positions of members who do not desire coverage may be transferred to the separate retirement system composed of positions of members who desire such coverage if it is so provided in a modification of such agreement which is mailed, or delivered by other means, to the Commissioner of Social Security prior to 1970 or, if later, the expiration of two years after the date on which such agreement, or the modification thereof making the agreement applicable to such separate retirement system, as the case may be, is agreed to, but only if, prior to such modification or such later modification, as the case may be, the individual occupying such position files with the State a written request for such transfer. Notwithstanding subsection (e)(1), any such modification or later modification, providing for the transfer of additional positions within a retirement system previously divided pursuant to subparagraph (C) to the separate retirement system composed of positions of members who desire coverage, shall be effective with respect to services performed after the same effective date as that which was specified in the case of such previous division.

(G)

For the purposes of this subsection, in the case of any retirement system of the State of Florida, Georgia, Minnesota, North Dakota, Pennsylvania, Washington, or Hawaii which covers positions of employees of such State who are compensated in whole or in part from grants made to such State under subchapter III, there shall be deemed to be, if such State so desires, a separate retirement system with respect to any of the following:

(i)

the positions of such employees;

(ii)

the positions of all employees of such State covered by such retirement system who are employed in the department of such State in which the employees referred to in clause (i) are employed; or

(iii)

employees of such State covered by such retirement system who are employed in such department of such State in positions others than those referred to in clause (i).

(7)

The certification by the governor (or an official of the State designated by him for the purpose) required under paragraph (3) of this subsection shall be deemed to have been made, in the case of a division or part (created under subparagraph (C) of paragraph (6) of this subsection or the corresponding provision of prior law) consisting of the positions of members of a retirement system who desire coverage under the agreement under this section, if the governor (or the official so designated) certifies to the Commissioner of Social Security that—

(A)

an opportunity to vote by written ballot on the question of whether they wish to be covered under an agreement under this section was given to all individuals who were members of such system at the time the vote was held;

(B)

not less than ninety days’ notice of such vote was given to all individuals who were members of such system on the date the notice was issued;

(C)

the vote was conducted under the supervision of the governor or an agency or individual designated by him; and

(D)

such system was divided into two parts or divisions in accordance with the provisions of subparagraphs (C) and (D) of paragraph (6) of this subsection or the corresponding provision of prior law.

For purposes of this paragraph, an individual in a position to which the State agreement already applied or in a position excluded by or pursuant to paragraph (5) of this subsection shall not be considered a member of the retirement system.

(8)
(A)

Notwithstanding paragraph (1) of this subsection, if under the provisions of this subsection an agreement is, after December 31, 1958, made applicable to service performed in positions covered by a retirement system, service performed by an individual in a position covered by such a system may not be excluded from the agreement because such position is also covered under another retirement system.

(B)

Subparagraph (A) shall not apply to service performed by an individual in a position covered under a retirement system if such individual, on the day the agreement is made applicable to service performed in positions covered by such retirement system, is not a member of such system and is a member of another system.

(C)

If an agreement is made applicable, prior to 1959, to service in positions covered by any retirement system, the preceding provisions of this paragraph shall be applicable in the case of such system if the agreement is modified to so provide.

(D)

Except in the case of State agreements modified as provided in subsection (l) and agreements with interstate instrumentalities, nothing in this paragraph shall authorize the application of an agreement to service in any policeman’s or fireman’s position.

(e) Effective date of agreement; retroactive coverage
(1)

Any agreement or modification of an agreement under this section shall be effective with respect to services performed after an effective date specified in such agreement or modification; except that such date may not be earlier than the last day of the sixth calendar year preceding the year in which such agreement or modification, as the case may be, is mailed or delivered by other means to the Commissioner of Social Security.

(2)

In the case of service performed by members of any coverage group—

(A)

to which an agreement under this section is made applicable, and

(B)

with respect to which the agreement, or modification thereof making the agreement so applicable, specifies an effective date earlier than the date of execution of such agreement and such modification, respectively,

the agreement shall, if so requested by the State, be applicable to such services (to the extent the agreement was not already applicable) performed before such date of execution and after such effective date by any individual as a member of such coverage group if he is such a member on a date, specified by the State, which is earlier than such date of execution, except that in no case may the date so specified be earlier than the date such agreement or such modification, as the case may be, is mailed, or delivered by other means, to the Commissioner of Social Security.

(3)

Notwithstanding the provisions of paragraph (2) of this subsection, in the case of services performed by individuals as members of any coverage group to which an agreement under this section is made applicable, and with respect to which there were timely paid in good faith to the Secretary of the Treasury amounts equivalent to the sum of the taxes which would have been imposed by sections 3101 and 3111 of the Internal Revenue Code of 1986 had such services constituted employment for purposes of chapter 21 of such Code at the time they were performed, and with respect to which refunds were not obtained, such individuals may, if so requested by the State, be deemed to be members of such coverage group on the date designated pursuant to paragraph (2).

(f) Duration of agreement

No agreement under this section may be terminated, either in its entirety or with respect to any coverage group, on or after April 20, 1983.

(g) Instrumentalities of two or more States
(1)

The Commissioner of Social Security may, at the request of any instrumentality of two or more States, enter into an agreement with such instrumentality for the purpose of extending the insurance system established by this subchapter to services performed by individuals as employees of such instrumentality. Such agreement, to the extent practicable, shall be governed by the provisions of this section applicable in the case of an agreement with a State.

(2)

In the case of any instrumentality of two or more States, if—

(A)

employees of such instrumentality are in positions covered by a retirement system of such instrumentality or of any of such States or any of the political subdivisions thereof, and

(B)

such retirement system is (on, before, or after August 30, 1957) divided into two divisions or parts, one of which is composed of positions of members of such system who are employees of such instrumentality and who desire coverage under an agreement under this section and the other of which is composed of positions of members of such system who are employees of such instrumentality and who do not desire such coverage, and

(C)

it is provided that there shall be included in such division or part composed of the positions of members desiring such coverage the positions of employees of such instrumentality who become members of such system after such coverage is extended,

then such retirement system shall, if such instrumentality so desires, be deemed to be a separate retirement system with respect to each such division or part. An individual who is in a position covered by a retirement system divided pursuant to the preceding sentence and who is not a member of such system but is eligible to become a member thereof shall, for purposes of this subsection, be regarded as a member of such system. Coverage under the agreement of any such individual shall be provided under the same conditions, to the extent practicable, as are applicable in the case of the States to which the provisions of subsection (d)(6)(C) apply. The position of any employee of any such instrumentality which is covered by any retirement system to which the first sentence of this paragraph is applicable shall, if such individual is ineligible to become a member of such system on August 30, 1957, or, if later, the day he first occupies such position, be deemed to be covered by the separate retirement system consisting of the positions of members of the division or part who do not desire coverage under the insurance system established under this subchapter. Services in positions covered by a separate retirement system created pursuant to this subsection (and consisting of the positions of members who desire coverage under an agreement under this section) shall be covered under such agreement on compliance, to the extent practicable, with the same conditions as are applicable to coverage under an agreement under this section of services in positions covered by a separate retirement system created pursuant to subparagraph (C) of subsection (d)(6) or the corresponding provision of prior law (and consisting of the positions of members who desire coverage under such agreement).

(3)

Any agreement with any instrumentality of two or more States entered into pursuant to this chapter may, notwithstanding the provisions of subsection (d)(5)(A) and the references thereto in subsections (d)(1) and (d)(3), apply to service performed by employees of such instrumentality in any policeman’s or fireman’s position covered by a retirement system, but only upon compliance, to the extent practicable, with the requirements of subsection (d)(3). For the purpose of the preceding sentence, a retirement system which covers positions of policemen or firemen or both, and other positions shall, if the instrumentality concerned so desires, be deemed to be a separate retirement system with respect to the positions of such policemen or firemen, or both, as the case may be.

(h) Delegation of functions

The Commissioner of Social Security is authorized, pursuant to agreement with the head of any Federal agency, to delegate any of the Commissioner’s functions under this section to any officer or employee of such agency and otherwise to utilize the services and facilities of such agency in carrying out such functions, and payment therefor shall be in advance or by way of reimbursement, as may be provided in such agreement.

(i) Wisconsin Retirement Fund
(1)

Notwithstanding paragraph (1) of subsection (d), the agreement with the State of Wisconsin may, subject to the provisions of this subsection, be modified so as to apply to service performed by employees in positions covered by the Wisconsin retirement fund or any successor system.

(2)

All employees in positions covered by the Wisconsin retirement fund at any time on or after January 1, 1951, shall, for the purposes of subsection (c) only, be deemed to be a separate coverage group; except that there shall be excluded from such separate coverage group all employees in positions to which the agreement applies without regard to this subsection.

(3)

The modification pursuant to this subsection shall exclude (in the case of employees in the coverage group established by paragraph (2) of this subsection) service performed by any individual during any period before he is included under the Wisconsin retirement fund.

(4)

The modification pursuant to this subsection shall, if the State of Wisconsin requests it, exclude (in the case of employees in the coverage group established by paragraph (2) of this subsection) all service performed in policemen’s positions, all service performed in firemen’s positions, or both.

(j) Certain positions no longer covered by retirement systems

Notwithstanding subsection (d), an agreement with any State entered into under this section prior to September 1, 1954 may, prior to January 1, 1958, be modified pursuant to subsection (c)(4) so as to apply to services performed by employees, as members of any coverage group to which such agreement already applies (and to which such agreement applied on September 1, 1954), in positions (1) to which such agreement does not already apply, (2) which were covered by a retirement system on the date such agreement was made applicable to such coverage group, and (3) which, by reason of action by such State or political subdivision thereof, as may be appropriate, taken prior to September 1, 1954, are no longer covered by a retirement system on the date such agreement is made applicable to such services.

(k) Certain employees of State of Utah

Notwithstanding the provisions of subsection (d), the agreement with the State of Utah entered into pursuant to this section may be modified pursuant to subsection (c)(4) so as to apply to services performed for any of the following, the employees performing services for each of which shall constitute a separate coverage group: Weber Junior College, Carbon Junior College, Dixie Junior College, Central Utah Vocational School, Salt Lake Area Vocational School, Center for the Adult Blind, Union High School (Roosevelt, Utah), Utah High School Activities Association, State Industrial School, State Training School, State Board of Education, and Utah School Employees Retirement Board. Any modification agreed to prior to January 1, 1955, may be made effective with respect to services performed by employees as members of any of such coverage groups after an effective date specified therein, except that in no case may any such date be earlier than December 31, 1950. Coverage provided for in this subsection shall not be affected by a subsequent change in the name of a group.

(l) Policemen and firemen in certain States

Any agreement with a State entered into pursuant to this section may, notwithstanding the provisions of subsection (d)(5)(A) and the references thereto in subsections (d)(1) and (d)(3), be modified pursuant to subsection (c)(4) to apply to service performed by employees of such State or any political subdivision thereof in any policeman’s or fireman’s position covered by a retirement system in effect on or after August 1, 1956, but only upon compliance with the requirements of subsection (d)(3). For the purposes of the preceding sentence, a retirement system which covers positions of policemen or firemen, or both, and other positions shall, if the State concerned so desires, be deemed to be a separate retirement system with respect to the positions of such policemen or firemen, or both, as the case may be.

(m) Positions compensated solely on a fee basis
(1)

Notwithstanding any other provision in this section, an agreement entered into under this section may be made applicable to service performed after 1967 in any class or classes of positions compensated solely on a fee basis to which such agreement did not apply prior to 1968 only if the State specifically requests that its agreement be made applicable to such service in such class or classes of positions.

(2)

Notwithstanding any other provision in this section, an agreement entered into under this section may be modified, at the option of the State, at any time after 1967, so as to exclude services performed in any class or classes of positions compensation for which is solely on a fee basis.

(3)

Any modification made under this subsection shall be effective with respect to services performed after the last day of the calendar year in which the modification is mailed or delivered by other means to the Commissioner of Social Security.

(4)

If any class or classes of positions have been excluded from coverage under the State agreement by a modification agreed to under this subsection, the Commissioner of Social Security and the State may not thereafter modify such agreement so as to again make the agreement applicable with respect to such class or classes of positions.

(n) Optional medicare coverage of current employees
(1)

The Commissioner of Social Security shall, at the request of any State, enter into or modify an agreement with such State under this section for the purpose of extending the provisions of subchapter XVIII, and sections 426 and 426–1 of this title, to services performed by employees of such State or any political subdivision thereof who are described in paragraph (2).

(2)

This subsection shall apply only with respect to employees—

(A)

whose services are not treated as employment as that term applies under section 410(p) of this title by reason of paragraph (3) of such section; and

(B)

who are not otherwise covered under the State’s agreement under this section.

(3)

For purposes of sections 426 and 426–1 of this title, services covered under an agreement pursuant to this subsection shall be treated as “medicare qualified government employment”.

(4)

Except as otherwise provided in this subsection, the provisions of this section shall apply with respect to services covered under the agreement pursuant to this subsection.

Source credit: (Aug. 14, 1935, ch. 531, title II, § 218, as added Aug. 28, 1950, ch. 809, title I, § 106, 64 Stat. 514; amended June 28, 1952, ch. 483, 66 Stat. 285; Aug. 15, 1953, ch. 504, § 1, 67 Stat. 587; Sept. 1, 1954, ch. 1206, title I, § 101(a)(5), (6), (h)(1)–(8), (i)(1), (2), (j), 68 Stat. 1055–1059; Aug. 1, 1956, ch. 836, title I, §§ 103(f), (g), 104(e), (g), 70 Stat. 823, 825, 826; Pub. L. 85–226, Aug. 30, 1957, 71 Stat. 511; Pub. L. 85–227, § 1, Aug. 30, 1957, 71 Stat. 512; Pub. L. 85–229, Aug. 30, 1957, 71 Stat. 513; Pub. L. 85–787, §§ 1, 2, Aug. 27, 1958, 72 Stat. 939; Pub. L. 85–798, §§ 2, 3, Aug. 28, 1958, 72 Stat. 964, 965; Pub. L. 85–840, title III, § 315(a)–(c)(1), Aug. 28, 1958, 72 Stat. 1038–1040; Pub. L. 86–284, § 2, Sept. 16, 1959, 73 Stat. 566; Pub. L. 86–624, § 30(e), (f), July 12, 1960, 74 Stat. 420; Pub. L. 86–778, title I, §§ 102(a), (b)(1), (c)(1), (2), (d), (e), (f)(1), (g), (l), 103(i), (j)(2)(G), Sept. 13, 1960, 74 Stat. 928–930, 934, 936–938; Pub. L. 87–64, title I, §§ 106, 107, June 30, 1961, 75 Stat. 139, 140; Pub. L. 87–878, § 2, Oct. 24, 1962, 76 Stat. 1202; Pub. L. 88–350, § 2, July 2, 1964, 78 Stat. 240; Pub. L. 88–382, July 23, 1964, 78 Stat. 335; Pub. L. 89–97, title I, § 108(b), title III, §§ 314, 315, July 30, 1965, 79 Stat. 338, 385; Pub. L. 90–248, title I, §§ 116(a)–(b)(2), (c), (d), 117, 119(a), 120(a), 121, 122(d), Jan. 2, 1968, 81 Stat. 840–844; Pub. L. 90–486, § 7, Aug. 13, 1968, 82 Stat. 759; Pub. L. 92–603, title I, § 126, Oct. 30, 1972, 86 Stat. 1358; Priv. L. 93–107, § 2, Dec. 31, 1974, 88 Stat. 2386; Pub. L. 95–216, title III, §§ 319–321, 353(b), Dec. 20, 1977, 91 Stat. 1541, 1553; Pub. L. 96–265, title V, § 503(a), June 9, 1980, 94 Stat. 470; Pub. L. 98–21, title I, § 103(a), title III, §§ 325(a), 342(a), Apr. 20, 1983, 97 Stat. 71, 126, 136; Pub. L. 98–369, div. B, title VI, § 2663(a)(13), (j)(2)(A)(ii), (3)(A)(iii), July 18, 1984, 98 Stat. 1164, 1170; Pub. L. 99–272, title XII, § 12110(a), (b), title XIII, § 13205(c), Apr. 7, 1986, 100 Stat. 287, 317; Pub. L. 99–509, title IX, § 9002(c)(1), (2)(C)–(E), Oct. 21, 1986, 100 Stat. 1971, 1972; Pub. L. 99–514, title XVIII, § 1883(a)(8), Oct. 22, 1986, 100 Stat. 2916; Pub. L. 100–203, title IV, § 4009(j)(7), title IX, § 9023(c), Dec. 22, 1987, 101 Stat. 1330–59, 1330–296; Pub. L. 101–239, title X, § 10208(d)(2)(A)(v), Dec. 19, 1989, 103 Stat. 2481; Pub. L. 101–508, title XI, § 11332(c), Nov. 5, 1990, 104 Stat. 1388–470; Pub. L. 103–296, title I, § 107(a)(4), title III, §§ 303(c), (d), 305(a), (b), 321(a)(18), (c)(6)(I), Aug. 15, 1994, 108 Stat. 1478, 1519, 1521, 1537, 1538; Pub. L. 108–203, title IV, § 416(a), Mar. 2, 2004, 118 Stat. 530.)

history & why it existsrecord from the source credit
  • 1935Enacted · Act of Aug. 14, 1935, ch. 531 · 64 Stat. 514
  • 1952Amended · Act of June 28, 1952, ch. 483 · 66 Stat. 285
  • 1953Amended · Act of Aug. 15, 1953, ch. 504 · 67 Stat. 587
  • 1954Amended · Act of Sept. 1, 1954, ch. 1206 · 68 Stat. 1055
  • 1956Amended · Act of Aug. 1, 1956, ch. 836 · 70 Stat. 823, 825, 826
  • 1957Amended · Pub. L. 85-226 · 71 Stat. 511
  • 1957Amended · Pub. L. 85-227 · 71 Stat. 512
  • 1957Amended · Pub. L. 85-229 · 71 Stat. 513
  • 1958Amended · Pub. L. 85-787 · 72 Stat. 939
  • 1958Amended · Pub. L. 85-798 · 72 Stat. 964, 965
  • 1958Amended · Pub. L. 85-840 · 72 Stat. 1038
  • 1959Amended · Pub. L. 86-284 · 73 Stat. 566
  • 1960Amended · Pub. L. 86-624 · 74 Stat. 420
  • 1960Amended · Pub. L. 86-778 · 74 Stat. 928
  • 1961Amended · Pub. L. 87-64 · 75 Stat. 139, 140
  • 1962Amended · Pub. L. 87-878 · 76 Stat. 1202
  • 1964Amended · Pub. L. 88-350 · 78 Stat. 240
  • 1964Amended · Pub. L. 88-382 · 78 Stat. 335
  • 1965Amended · Pub. L. 89-97 · 79 Stat. 338, 385
  • 1968Amended · Pub. L. 90-248 · 81 Stat. 840
  • 1968Amended · Pub. L. 90-486 · 82 Stat. 759
  • 1972Amended · Pub. L. 92-603 · 86 Stat. 1358
  • 1977Amended · Pub. L. 95-216 · 91 Stat. 1541, 1553
  • 1980Amended · Pub. L. 96-265 · 94 Stat. 470
  • 1983Amended · Pub. L. 98-21 · 97 Stat. 71, 126, 136
  • 1984Amended · Pub. L. 98-369 · 98 Stat. 1164, 1170
  • 1986Amended · Pub. L. 99-272 · 100 Stat. 287, 317
  • 1986Amended · Pub. L. 99-509 · 100 Stat. 1971, 1972
  • 1986Amended · Pub. L. 99-514 · 100 Stat. 2916
  • 1987Amended · Pub. L. 100-203 · 101 Stat. 1330
  • 1989Amended · Pub. L. 101-239 · 103 Stat. 2481
  • 1990Amended · Pub. L. 101-508 · 104 Stat. 1388
  • 1994Amended · Pub. L. 103-296 · 108 Stat. 1478, 1519, 1521, 1537, 1538
  • 2004Amended · Pub. L. 108-203 · 118 Stat. 530

A history note hasn’t been published yet. The record shows enactment by ch. 531 on 1935-08-14.

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