TN 6 (11-10)

There are a number of special provisions in Federal law that relate to individual States. Some of these provisions validate legislation; others establish special procedures.

A. Coverage of nonprofessional school employee positions under the provisions of Section 104(f)

Section 104(f) of the Social Security Amendments of 1956 authorized Florida, Hawaii, Minnesota, Nevada, New Mexico, Oklahoma, Pennsylvania, Texas, and Washington to extend Social Security coverage to nonprofessional school employees in positions under a retirement system without a referendum, and as a separate absolute coverage group. This provision did not preclude these States from covering the services of these employees as members of a retirement system coverage group through the referendum procedures. Originally, Section 104(f) of the Social Security Amendments of 1956 permitted coverage in this manner provided that any modification to include such individuals was entered into prior to July 1, 1957, but that date was subsequently extended through December 31, 1961 by Public Law 86-284, sec.1 (enacted on September 16, 1959).

1.  Nonprofessional school employee positions

Nonprofessional school employees are those employees of public school districts in the specified States who were not in positions which State law required a valid State teacher's or administrator's certificate as a prerequisite for payment for their services. (The teachers’ or administrators’ certificates referred to are those required by State law or regulations.)

Examples of nonprofessional employee positions may include:

• janitor

• bus driver

• cafeteria worker

• school nurse

• payroll supervisor

• counselor

• educational aide, etc.

unless State law specified that a teacher’s or administrator's certificate was required for the position in question.

Some of the specified States used the Section 104(f) special provision to cover the nonprofessional school employees. After 1961, Social Security coverage of such employees was obtainable only through the referendum procedures.

Although nonprofessional positions were already covered under a retirement system, Social Security extended coverage to these positions under Section 104(f), as separate absolute coverage groups. Absolute coverage policy and procedures apply to these positions, even when considering school district positions created after the applicable date of a school district’s nonprofessional modification. (For the definition of “applicable date” and how it is applied to modifications executed after August 28, 1958, see SL 30001.375B). For modifications executed before August 29, 1958, the applicable date is the date the Social Security Administration executed the modification. If the modification establishes a future effective date for Social Security coverage, the effective date then becomes the applicable date. The Section 104(f) provision also extends coverage to those school district employees in nonprofessional positions who were either not eligible to join the retirement system (retirement system ineligibles) or were given the option to join the retirement system and chose not to join (retirement system optionals).

References

• SL 30001.315 – Absolute Coverage Group (Section 218(b)(5))

• SL 30001.316 – Composition of an Absolute Coverage Group

• SL 30001.317 – Providing Coverage for Absolute Coverage Group

2. Determining status of employee positions in existence on the applicable date of the Section 104(f) nonprofessional modification

When determining which school district employee positions a Social Security nonprofessional modification covers, consult the State’s teacher and administrator certification requirements in effect on the applicable date of the modification, if obtainable. If those requirements were based on State statutes in effect at that time, the pertinent State statutes may be available in the State law libraries.

In some situations, the teacher or administrator certification requirements in effect on the applicable date of a particular nonprofessional school employee modification may no longer be available or may have changed, making it difficult to determine which nonprofessional school employee positions would be covered for Social Security under that modification.

When making such determinations, consider the following:

• Use official State certification requirements and not those certification requirements adopted only at the school district level; the language of Section 104(f) of the Social Security Amendments of 1956, as well as the resulting modifications, specifies that we refer to State law to determine if the position requires a certificate;

• If State certification requirements for a certain school district position subsequently changed, we base nonprofessional coverage status on the certification requirements in effect on the applicable date of the nonprofessional modification;

• Use documentation in existence at the time of the applicable date of the nonprofessional modification, and if such documentation is not available, use documentation as close as possible to the modification’s applicable date;

• If State law does not use the term “administrator’s certificate,” look at the duties of the position. Superintendent or principal positions would be considered “administrators” under Section 104(f) of the Social Security Amendments of 1956 and the resulting modifications if State law requires certification that is equivalent to an “administrator’s certificate”;

• Do not confuse the requirement for a license or certificate to occupy a job position with the requirement for a teacher’s or administrator’s certificate;

• Refer to the requirement for certification by job position, not whether the employee happens to have a certificate. (For example, an ROTC instructor position does not require a teacher’s certificate, but the employee occupying the position has one. We still consider the ROTC position a nonprofessional position, and the employee should be covered for Social Security.)

  See Details

  SL 30001.375B – Definition of “applicable date”

3. Determining the status of employee positions created after the applicable date of the Section 104(f) nonprofessional modification

When considering the nonprofessional status of a position created by a school district after the applicable date of the school district’s nonprofessional modification, refer to the State certification requirements that were in effect for that position on the applicable date of the school district’s nonprofessional coverage modification.

In some cases, there may have been intervening changes to the State teacher’s or administrator’s certification requirements between the applicable date of the school district’s nonprofessional coverage modification and the time the school district subsequently created the position. Regardless of its current State certification status, you must review the position in question within the context of what the State certification requirements were for the position on the applicable date of the school district’s nonprofessional coverage modification.

The basic rule is: a position is covered for Social Security pursuant to the nonprofessional coverage modification, unless the position required a State teacher's or administrator's certificate at the time of the modification or is substantially similar to a position that required a State teacher's or administrator's certificate at the time of the modification.

State certification requirements in effect as of applicable date of modification

If there were existing State teacher’s or administrator’s certification requirements for the school district position as of the applicable date of the school district’s nonprofessional modification, then consider the position a professional position and not covered for Social Security.

Position created after the applicable date of modification, but before establishment of state certification requirements

If the school district created a position after the applicable date of the nonprofessional coverage modification, but before the State established any teacher’s or administrator’s certification requirements for that position, then consider the position a nonprofessional position and covered for Social Security.

State certification requirements established after applicable date of modification but preceding school district’s creation of the position

There may be situations where the order of events concerning a school district position may follow this pattern:

• the school district’s non-professional coverage modification is executed; followed later by,

• the State instituting certification requirements for a specific school district position; followed by,

• the school district subsequently establishing the aforementioned position in its system.

In situations of this kind, the Social Security program staffs and General Counsel must review the established job duties of the school district position in effect at the time of its creation by the school district.

This review must treat the position as if it existed on the applicable date of the nonprofessional coverage modification (and before establishment of State certification requirements), and determine whether on the applicable date the position’s duties would have placed it in the category of a professional or nonprofessional position.

When making nonprofessional determinations for school district positions created after the applicable date of the Section 104(f) nonprofessional coverage modification also consider the following:

• Use official State certification requirements and not those certification requirements adopted only at the school district level; the language of Section 104(f) of the Social Security Amendments of 1956, as well as the resulting modifications, specifies that we refer to State law to determine if the position requires a certificate;

• Use documentation that existed at the time of the applicable date of the nonprofessional modification, and if such documentation is not available, use documentation as close as possible to the modification’s applicable date;

• The job description of a particular school district position should be the one in effect at the time of the job’s creation by the school district, and if a job description from that time is unavailable, obtain one that is as close as possible to the time of the job’s creation;

• If State law does not use the term “administrator’s certificate,” look at the duties of the position. Consider superintendent or principal positions as “administrators” under Section 104(f) of the Social Security Amendments of 1956, and the resulting modifications if State law requires certification that is equivalent to an “administrator’s certificate”;

• Do not confuse the requirement for a license or certificate to occupy a job position with the requirement for a teacher’s or administrator’s certificate;

• Refer to the requirement for certification by job position, not whether the employee happens to have a certificate. (For example, an ROTC instructor position does not require a teacher’s certificate, but the employee occupying the position has one. We still consider the ROTC position a nonprofessional position, and the employee should be covered for Social Security.)

  See Details

  SL 30001.375 – Effective Dates of Coverage

B. Retirement systems compensated from Title III Federal funds

The following States have additional options for determining what is a retirement system for referendum and coverage purposes for employees in positions covered by a retirement system; compensated in whole, or in part from Federal funds under title III of the Act (grants to States for unemployment compensation administration).

• Florida

• Georgia

• Hawaii

• Minnesota

• North Dakota

• Pennsylvania, and

• Washington.

These States have additional choices for determining what is a retirement system for referendum and coverage purposes for the following positions:

• State employees compensated in whole or in part from title III funds may be deemed to be a separate retirement system.

• All employees of the State under the same retirement system in the department of the State having title III employees may be deemed to be a separate retirement system.

• State employee positions (other than the title III employees) in the department of the State that are under the same retirement system may be deemed to be a separate retirement system.

Obtain coverage through the same procedures as for other retirement system coverage groups. A retirement system established under this section may be further divided pursuant to Section 218(d)(6)(C) of the Act.

C. Alaska

Certain school districts erroneously included in the Alaska agreement as political subdivisions were deemed to be political subdivisions from the effective date of coverage for each through December 31, 1965, and reporting for the employees were validated for periods prior to 1966.

D. Arizona

Services of employees in positions under the Arizona Teachers' Retirement System were covered under the State's agreement effective January 1, 1953.

E. Arkansas

Certain agencies erroneously covered under the State's agreement as political subdivisions were deemed to be political subdivisions from the effective date of coverage established for each through December 31, 1962. This validated the coverage extended to this period.

F. California

Under the 1960 Social Security Amendments, California modified its agreement to cover services of employees in certain hospital positions, who on or after January 1, 1957, and on or before December 31, 1959, were employed by the State or any political subdivision; whose positions on September 1, 1954, were covered by a retirement system but removed from retirement system coverage before 1960; and who had been reported in error without coverage. Coverage continues after 1959.

Under the 1965 Amendments, California modified its agreement to provide coverage after 1961, for employees of the hospital in similar positions first employed after December 31, 1959, as well as for all such services performed before that date, where reporting was made without coverage.

G. Connecticut

Under Public Law 99-272, enacted April 7, 1986, Connecticut received authorization to extend coverage to services of members of the Division of the State Police within the Connecticut Department of Public Safety, hired on or after May 8, 1984, and who are members of the Tier II plan of the Connecticut State Employees Retirement System. Coverage under the State's agreement could be extended without a referendum. This provision was effective for services performed after April 7, 1986, the date of enactment of P.L. 99-272.

H. Illinois

As authorized by the 1977 Social Security Amendments, Illinois modified its agreement to cover positions of certain police officers and firefighters in positions under the Illinois Municipal Retirement Fund and validated the wages erroneously reported in the past for such individuals.

I. Iowa

• Effective January 1, 1966, as authorized, Iowa modified its agreement to exclude previously covered student services for wages paid in any calendar year if less than $50.

• Certain Iowa Police and Firefighters – Public Law 100-203, enacted December 22, 1987, provided that Iowa's Section 218 agreement could be modified at any time before January 1, 1989, to cover services in police officer or firefighters positions that required coverage by a retirement system, according to Section 410.1 of the Iowa Code, as in effect on July 1, 1953, if Iowa paid Social Security taxes to the Secretary of the Treasury before December 22, 1987 , based on wages paid on or before December 31, 1986. A referendum for such coverage was not required. Iowa was not a State listed in Section 218(l) of the Act.

  A modification under this provision had to cover all affected services performed in police officer or firefighter positions on or after January 1, 1987, or all services performed in police officer or firefighter positions, affected by this provision, before January 1, 1987. Coverage of services performed before January 1, 1987, was permitted if no refund of the Social Security taxes had been obtained, or if the refund had been obtained, Iowa repaid the refund to the Secretary of Treasury within 90 days after the date of the modification to validate the coverage was agreed to by Iowa and SSA.

J. Louisiana

The 1972 Social Security Amendments authorized Louisiana to terminate the coverage of all employees in positions under the Registrars of Voters Employees' Retirement System (RVERS) effective December 31, 1975. Louisiana may not extend coverage again under the State’s Section 218 agreement to employees in positions under RVERS.

K. Maine

Maine was authorized, after August 28, 1958, and before July 1, 1967, to divide any retirement system covering positions of teachers and other employees into two deemed retirement systems, for the purpose of holding a referendum and extending coverage; one composed of positions of teachers and the other composed of employees other than teachers. The term "teacher" defined in the law means any teacher, principal, supervisor, school nurse, school dietitian, school secretary or superintendent employed in any public school, including teachers in unorganized territory. Consider teacher assistants who perform teaching duties on a professional basis, as teachers for purposes of this special provision.

L. Massachusetts

Massachusetts was authorized to modify its agreement and terminate the coverage of the employees of the Massachusetts Turnpike Authority effective July 1, 1968.

M. Mississippi

Mississippi teachers were deemed to be State employees and have the same coverage as State employees for services performed after February 28, 1951, and before October 1, 1959. This provision validated the coverage of teachers employed by the school district, but reported erroneously as State employees.

N. Nebraska

• Nebraska was authorized to modify its agreement to exclude on a statewide basis, effective September 14, 1960, services performed by justices of the peace or constables in positions compensated on a fee basis for coverage groups already included under its agreement. The State may again provide coverage under its agreement for these services either on a statewide coverage group basis or on an entity-by-entity coverage group basis at some later date.

• Although Section 35 of the 1943 Nebraska State Statutes mandated all “cities of the first class” (5,000 to 40,000 population) to have a retirement system for their firefighters, a number of the cities of the first class did not abide by the statute. When those cities obtained Social Security coverage under Nebraska’s Section 218 agreement, they mistakenly considered their firefighters to be absolute coverage positions because the firefighters were not members of a retirement system. The cities erroneously reported their firefighters for Social Security coverage. The 1967 Social Security Amendments validated Social Security coverage for services performed by the affected firefighters before January 2, 1968.

O. New Mexico

The 1972 Amendments authorized New Mexico to modify its agreement to provide Social Security coverage, as a separate absolute coverage group, for the services of employees of a hospital that is an integral part of a political subdivision not covered under the State’s Section 218 agreement. Obtaining Social Security coverage for hospital employees as a separate absolute coverage group can only occur if the hospital withdrew prior to 1966 from a retirement system previously applicable to the employees of the hospital.

P. North Dakota

North Dakota was authorized to modify its Section 218 agreement to exclude from Social Security coverage student services performed in any calendar quarter for which wages paid were less than $50. The authorization applied to coverage groups already covered under the State’s Section 218 Agreement. This provision was not used. However, the State later modified its agreement, as authorized by the 1972 Amendments, to exclude all student services on a statewide basis effective March 31, 1974.

Q. Oklahoma

• Remuneration received by engineering aides of soil and water conservation districts in Oklahoma for services performed during the period January 1, 1951, through June 30, 1962, but reported by the State as remuneration received for services performed as State employees, is deemed to have been paid for services performed by these aides, as State employees, thereby validating the coverage. Such services performed after June 30, 1962, for employees of the soil and water conservation districts are covered if the employing entity is covered.

• Before 1962, Oklahoma was authorized to modify its agreement to validate certain erroneous reports made by some political subdivisions for ineligibles in police positions covering the services as part of the absolute coverage groups of the entities involved. It applied only to those employees in police positions under a retirement system in effect on September 16, 1959, who were ineligibles on that date, or on the last day they performed such services, if earlier, and only if the State had paid contributions before January 1, 1959, with respect to any of their services. This provision did not extend coverage to services of ineligibles hired after September 16, 1959. This provision validated reporting for certain ineligibles employed by the City of Tulsa.

R. Utah

Utah received authorization to modify its agreement to provide that employees performing services for each of the following 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.

Coverage was effective January 1, 1951. The 1983 Amendments provide that a name change in any of these groups will not affect coverage.

S. West Virginia

West Virginia was authorized to modify its agreement to cover certain police and firefighters employed by a class III or IV municipal corporation in positions under a retirement system. These modifications validated wages erroneously reported in the past for such individuals.

T. Wisconsin

Federal law deems all employees in positions covered by the Wisconsin Retirement Fund who are also members of the Fund on or after January 1, 1951, as a separate coverage group. The services of employees in such positions were covered under the State's agreement effective January 1, 1951, or the date the positions were brought under the Fund, if later. This coverage group includes police in positions under the Fund, but does not include firefighters. The Wisconsin Retirement Fund includes any successor system. In the event the Wisconsin Retirement Fund changes its name or expands its coverage, the employee’s coverage will continue on the same basis as the current Wisconsin Retirement Fund coverage.