Chapter 40

40.03(6)(j) (j) May contract with the department of health services and may contract with other public or private entities for data collection and analysis services related to health maintenance organizations and insurance companies that provide health insurance to state employees.

40.03(6)(k) (k) Shall establish health savings accounts for state employees who select a high-deductible health plan under s. 40.515 for their health care coverage plan.

40.03(6)(L) (L) In consultation with the division of personnel management in the department of administration, shall notify the joint committee on finance that it intends to execute a contract to provide self-insured group health plans on a regional or statewide basis to state employees. The group insurance board may not execute the contract unless authorized under this paragraph. If the cochairpersons of the joint committee on finance do not notify the group insurance board that the committee has scheduled a meeting for the purpose of approving the execution of the contract within 21 working days after the date of the group insurance board’s notification, the group insurance board may execute the contract. If, within 21 working days after the date of the group insurance board’s notification, the cochairpersons of the committee notify the group insurance board that the committee has scheduled a meeting for the purpose of approving the execution of the contract, the group insurance board may not execute the contract without the approval of the committee.

40.03(6)(m) (m) May not enter into, extend, modify, or renew any contract for a group insurance plan or provide a group insurance plan or other benefit on a self-insured basis that provides coverage or services for an abortion, the performance of which is ineligible for funding under s. 20.927.

40.03(7) (7) Teachers retirement board. The teachers retirement board:

40.03(7)(a) (a) Shall appoint 4 members of the employee trust funds board as provided under s. 15.16 (1).

40.03(7)(b) (b) Shall study and recommend to the secretary and the employee trust funds board alternative administrative policies and rules which will enhance the achievement of the objectives of the benefit programs for teacher participants.

40.03(7)(c) (c) Shall appoint one member of the investment board as provided under s. 15.76 (3).

40.03(7)(d) (d) Shall approve or reject all administrative rules proposed by the secretary under sub. (2) (i) that relate to teachers, except rules promulgated under s. 40.30.

40.03(7)(e) (e) Shall authorize and terminate the payment of disability annuity payments to teacher participants in accordance with this chapter.

40.03(7)(f) (f) Shall accept timely appeals of determinations made by the department regarding disability annuities for teacher participants in accordance with s. 40.63 (5) and (9) (d).

40.03(7)(g) (g) May amend any rule of the department, the Milwaukee teachers retirement board, the state teachers retirement board and the Wisconsin retirement fund board, which are in effect on January 1, 1982, in such a manner as to make it no longer applicable to teacher participants.

40.03(8) (8) Wisconsin retirement board. The Wisconsin retirement board:

40.03(8)(a) (a) Shall appoint 4 members of the employee trust funds board as provided under s. 15.16 (1).

40.03(8)(b) (b) Shall study and recommend to the secretary and the employee trust funds board alternative administrative policies and rules which will enhance the achievement of the objectives of the benefit programs for participants other than teachers.

40.03(8)(c) (c) Shall appoint one member of the investment board as provided under s. 15.76 (3).

40.03(8)(d) (d) Shall approve or reject all administrative rules proposed by the secretary under sub. (2) (i) that relate to participants other than teachers, except rules promulgated under s. 40.30.

40.03(8)(e) (e) Shall authorize and terminate the payment of disability annuity payments to participants other than teachers in accordance with this chapter.

40.03(8)(f) (f) Shall accept timely appeals of determinations made by the department regarding disability annuities for participants other than teachers in accordance with s. 40.63 (5) and (9) (d).

40.03(8)(g) (g) May amend any rule of the department, the Milwaukee teachers retirement board, the state teachers retirement board and the Wisconsin retirement fund board, which are in effect on January 1, 1982, in such a manner as to make it no longer applicable to participants other than teachers.

40.03(9) (9) Deferred compensation board. The deferred compensation board shall have the powers and duties provided under s. 40.80 (2) and (2m).

40.03 History History: 1981 c. 96 ss. 24, 32; 1981 c. 386; 1983 a. 247; 1985 a. 29; 1985 a. 332 ss. 53, 251 (1); 1987 a. 356; 1989 a. 31, 166, 323; 1991 a. 116, 141, 152, 269; 1993 a. 16; 1995 a. 302, 414; 1997 a. 27; 1999 a. 9; 2001 a. 16; 2003 a. 33; 2005 a. 25, 153; 2007 a. 20 s. 9121 (6) (a); 2007 a. 131; 2011 a. 10, 32, 258; 2013 a. 20; 2015 a. 55, 119, 187; 2017 a. 191.

40.03 Cross-reference Cross-reference: See also ETF, Wis. adm. code.

40.03 Annotation The insurance subrogation law permitting a subrogated insurer to be reimbursed only if the insured has been made whole applies to the state employee health plan. Leonard v. Dusek, 184 Wis. 2d 267, 516 N.W.2d 463 (Ct. App. 1994).

40.03 Annotation An appeal to the board was an inadequate remedy under the facts of the case because the board does not have the statutory authority to award interest on delayed benefit payments based either on a claim of unjust enrichment or a takings claim under Art. I, s. 13. The doctrine of exhaustion of administrative remedies did not require an appeal of the department’s dismissal of the claim to the board before filing a court action. Fazio v. Department of Employee Trust Funds, 2002 WI App 127, 255 Wis. 2d 801, 645 N.W.2d 618, 01-2595.

40.03 Annotation Affirmed on other grounds. 2006 WI 7, 287 Wis. 2d 106, 708 N.W.2d 326, 04-0064.

40.03 Annotation Under sub. (6) (a) 2. and s. 40.51 (7) (a), the board may offer any group insurance plan on a self–insured basis, and a municipal employer may offer a health care coverage plan through a program offered by the group insurance board. Applying these sections as written, a municipal employer may offer a self-insured plan if offered by the board. Article VIII, section 3 of the Wisconsin Constitution poses no bar because offering self-insured plans does not extend the state’s credit. OAG 3-17.

40.04 40.04 Accounts and reserves.

40.04(1) (1) The separate accounts and reserves under subs. (2) to (10) and any additional accounts and reserves determined by the department to be useful in achieving the fund’s purposes, or necessary to protect the interests of the participants or the future solvency of the fund, shall be maintained within the fund. The accounts and reserves maintained for each benefit plan shall fairly reflect the operations of that benefit plan. Any deficit occurring within the accounts of a benefit plan shall be eliminated as soon as feasible by increasing the premiums, contributions or other charges applicable to that benefit plan. Until eliminated, any deficit shall be charged with interest at the rate the funds would have earned if there had been no deficit.

40.04(2) (2) 

40.04(2)(a) (a) An administrative account shall be maintained within the fund from which administrative costs of the department shall be paid, except charges for services performed by the investment board.

40.04(2)(b) (b) Except as otherwise provided in this section, investment income of this fund and moneys received for services performed or to be performed by the department shall be credited to this account.

40.04(2)(c) (c) The secretary shall estimate the administrative costs to be incurred by the department in each fiscal year and shall also estimate the investment income which will be credited to this account in the fiscal year. The estimated administrative costs less the estimated investment income shall be equitably allocated by the secretary, with due consideration being given to the derivation and amount of the investment income, to the several benefit plans administered by the department. In determining the amount of the allocation, adjustments shall be made for any difference in prior years between the actual administrative costs and investment income from that originally estimated under this paragraph. An amount equal to the adjusted allocated costs shall be transferred to this account from the investment earnings credited to the respective benefit plan accounts and from payments by the respective insurers or employee-funded reimbursement plan providers for administrative services.

40.04(2)(d) (d) The costs of investing the assets of the benefit plans and retirement systems, including all costs due to s. 40.03 (1) (n), shall be paid from the appropriation under s. 20.515 (1) (r) and charged directly against the appropriate investment income or reserve accounts of the benefit plan or retirement system receiving the services.

40.04(3) (3) A core retirement investment trust and a variable retirement investment trust shall be maintained within the fund under the jurisdiction and management of the investment board for the purpose of managing the investments of the retirement reserve accounts and of any other accounts of the fund as determined by the board, including the accounts of separate retirement systems. Within the core retirement investment trust there shall be maintained a market recognition account, and any other accounts as are established by the board or the investment board. A current income account shall be maintained in the variable retirement investment trust. All costs of owning, operating, protecting, and acquiring property in which either trust has an interest shall be charged to the current income or market recognition account of the trust having the interest in the property.

40.04(3)(a) (a) The net gain or loss of the variable retirement investment trust shall be distributed annually on December 31 to each participating account in the same ratio as each account’s average daily balance within the respective trust bears to the total average daily balance of all participating accounts in the trust. The amount to be distributed shall be the excess of the increase within the period in the value of the assets of the trust resulting from income from the investments of the trust and from the sale or appreciation in value of any investment of the trust, over the decrease within the period in the value of the assets resulting from the sale or the depreciation in value of any investments of the trust.

40.04(3)(am) (am)

40.04(3)(am)1. 1. Beginning on January 1, 2000, there shall be maintained within the core retirement investment trust a market recognition account. The department shall establish and administer the market recognition account as recommended by the actuary or actuarial firm retained under s. 40.03 (1) (d) and as approved by the board.

40.04(3)(am)2. 2. Annually, the total market value investment return earned by the core retirement investment trust during the year shall be credited to the market recognition account.

40.04(3)(am)3. 3. Annually, on December 31, the sum of all of the following shall be distributed from the market recognition account to each participating account in the core retirement investment trust in the same ratio as each account’s average daily balance bears to the total average daily balance of all participating accounts in the trust:

40.04(3)(am)3.a. a. The expected amount of investment return in the core retirement investment trust during the year based on the assumed rate.

40.04(3)(am)3.b. b. An amount equal to 20 percent of the difference between the total market value investment return earned by the core retirement investment trust and the expected amount of investment return of the core retirement investment trust during the year ending on December 31 based on the assumed rate.

40.04(3)(am)3.c. c. An amount equal to 20 percent of the sum of the differences between the total market value investment return earned by the core retirement investment trust and the expected amount of investment return of the core retirement investment trust at the end of the 4 preceding years. For the purpose of making this calculation, the amount in the market recognition account at the end of each year that occurs before the year 2000 shall be assumed to be zero.

40.04(3)(b) (b) The assets of the core retirement investment trust shall be commingled and the assets of the variable retirement investment trust shall be commingled. No particular contributing benefit plan shall have any right in any specific item of cash, investment, or other property in either trust other than an undivided interest in the whole as provided in this paragraph. The department of administration shall maintain any records as may be required to account for each contributing account’s share in the corresponding trust except that the employee accumulation reserve, the employer accumulation reserve and the annuity reserve shall be treated as a single account, except as provided in sub. (7).

40.04(3)(c) (c) The department shall advise the investment board and the secretary of administration as to the limitations on the amounts of cash to be invested from investment trusts under this subsection in order to maintain the cash balances deemed advisable to meet current annuity, benefit and expense requirements.

40.04(3)(d) (d) Notwithstanding par. (a), assets of the core retirement investment trust which are authorized to be invested in common or preferred stock may, if authorized by rule, be invested as a part of the variable retirement investment trust with that portion of the annual distributions of net gains or losses to the core retirement investment trust from the variable retirement investment trust being credited to the market recognition account.

40.04(4) (4) 

40.04(4)(a) (a) An employee accumulation reserve, within which a separate account shall be maintained for each participant, shall be maintained within the fund and:

40.04(4)(a)1. 1. Credited with all employee contributions made under s. 40.05 (1), all employer additional contributions made under s. 40.05 (2) (g) 1., all additional contributions under s. 40.05 (2) (g) 2. and all contribution accumulations reestablished under s. 40.63 (10).

40.04(4)(a)2. 2. Credited as of each December 31 with interest on the prior year’s closing balance at the effective rate on all employee required contribution accumulations in the variable annuity division, on all employee required contributions in the core annuity division on December 31, 1984, on all employee required contributions in the core annuity division of participants who are not participating employees after December 31, 1984, and on all employee and employer additional contribution accumulations and with interest on the prior year’s closing balance at the assumed benefit rate on all employee required contribution accumulations in the core annuity division for participants who are participating employees after December 31, 1984, but who terminated covered employment before December 30, 1999.

40.04(4)(a)2g. 2g. Credited as of each December 31, with interest on the prior year’s closing balance at the effective rate on all employee required contribution accumulations in the core annuity division for participants who are participating employees on or after December 30, 1999.

40.04(4)(a)2m. 2m. Debited, if a participant terminates covered employment on or after January 1, 1990, but before December 30, 1999, and applies for a benefit under s. 40.25 (2), with an amount equal to the amount by which the core annuity division interest credited on or after January 1, 1990, but before December 30, 1999, to employee required contributions, exceeds the interest crediting at an annual rate of 3 percent on each prior year’s closing balance.

40.04(4)(a)3. 3. Debited by the amount available in any participant’s account for funding a benefit elected by the participant or the participant’s beneficiary. When the amount available has been applied to funding the benefit, no further right to the amounts, or to corresponding creditable service and employer contribution accumulations, shall exist other than the right to the annuity or benefit so granted except as provided in s. 40.63 (10).

40.04(4)(b) (b) Whenever a payment under s. 40.25 (4), an annuity or a death benefit is computed, the prior year’s closing balance of all employee contribution accumulations and any accounts maintained for individual participants shall be credited with interest for each full month elapsing between the first day of the calendar year and the annuity effective date or the month in which the payment of a benefit under s. 40.25 (4) is approved at one-twelfth of the assumed benefit rate. The interest so credited shall be charged to the interest earnings for the current year and shall be paid out or transferred with the amount to which it was so credited.

40.04(4)(bm) (bm) Whenever a payment under s. 40.25 (1) is computed under s. 40.23 (3), the prior year’s closing balance of all employee and employer contribution accumulations and any accounts maintained for individual participants shall be credited with interest for each full month elapsing between the first day of the calendar year and the month in which the payment under s. 40.25 (1) is approved at one-twelfth of the assumed benefit rate. The interest so credited shall be charged to the interest earnings for the current year and shall be paid out or transferred with the amount to which it was so credited.

40.04(4)(c) (c) Whenever a participant’s account is reestablished under s. 40.63 (10), in lieu of interest credits as provided in par. (a), any balances remaining in the account at the end of the calendar year in which reestablished shall be credited with interest at one-twelfth the assumed benefit rate for the year for each full month between the date the account was reestablished and the end of the calendar year.

40.04(5) (5) An employer accumulation reserve shall be maintained within the fund to which, without regard to the identity of the individual employer, shall be:

40.04(5)(a) (a) Credited all employer required contributions.

40.04(5)(b) (b) Credited, as of each December 31, all core annuity division interest not credited to other accounts and reserves under this section.

40.04(5)(c) (c) Debited the aggregate excess of the amount of each single sum benefit or in the case of an annuity the present value of the annuity over the amount equal to the accumulated credits of the participant in the employee accumulation reserve applied to provide for the benefit or annuity.

40.04(5)(d) (d) Credited as of the date of termination of any annuity under s. 40.63 (9) (c) with the excess of the then present value of the terminated annuity over the aggregate amount of credits reestablished in the accounts of the participant.

40.04(5)(e) (e) Credited all amounts waived, released or forfeited under any provision of this chapter.

40.04(6) (6) An annuity reserve shall be maintained within the fund to which shall be transferred amounts equal to the present value as of the date of commencement of annuities granted under this chapter. The reserve shall be increased by investment earnings at the effective rate and shall be reduced by the aggregate amount of annuity payments and death benefits paid with respect to the annuities and by the present value at the date of termination of annuities terminated in accordance with s. 40.08 (3) or 40.63 (9) (c).

40.04(7) (7) The reserves established under subs. (4), (5), and (6) shall be divided both individually and for the purposes of sub. (3) between a core annuity division and a variable annuity division. All required and additional contributions shall be credited to the core annuity division except:

40.04(7)(a) (a) As otherwise elected by a participant prior to April 30, 1980, or on or after January 1, 2001. Any participant who was a participant prior to April 30, 1980, and whose accounts on January 1, 1982, include credits segregated for a variable annuity shall have his or her required and additional contributions made on or after January 1, 1982, credited to the variable annuity division in a manner consistent with the participant’s election prior to April 30, 1980, unless prior to January 1, 1982, the participant terminated such election under s. 40.85, 1979 stats. Any participant who elects or has elected to have any of his or her credits segregated for a variable annuity on or after January 1, 2001, shall have 50 percent of his or her required and additional contributions made on or after the date of election credited to the variable annuity division. The department shall by rule provide that any participant who elects or has elected variable participation prior to April 30, 1980, or on or after January 1, 2001, may elect to cancel that variable participation as to future contributions. The department’s rules shall permit a participant who elects or has elected to cancel variable participation as to future contributions, or an annuitant, to elect to transfer previous variable contribution accumulations to the core annuity division. A transfer of variable contribution accumulations under this paragraph shall result in the participant receiving the accrued gain or loss from the participant’s variable participation. A participant may specify that election to cancel participation in the variable annuity division is conditional. If the participant so specifies the election is effective on the first date on which it may take effect on which the participant:

40.04(7)(a)1. 1. Is an annuitant and the amount of the annuity the participant or member will receive if the election is made effective is greater than or equal to the amount of the annuity the participant or member would have received if the participant or member had not elected variable participation; or

40.04(7)(a)2. 2. Is not an annuitant and the accumulated amount which is to be transferred to the core annuity division is equal to or greater than the amount which would have accumulated if the segregated contributions had been originally credited to the core annuity division.

40.04(7)(b) (b) An election under par. (a) is irrevocable and continuing except a participant or member may make a conditional election unconditional by filing written notice with the department.

40.04(7)(c) (c) Any participant whose required contributions are segregated in any portion to provide for a variable annuity may direct that any part or all of subsequent additional contributions credited to the participant’s account be segregated to provide for a variable annuity and may at any time by filing a form prescribed by the department change the portion being segregated for any future additional contributions.

40.04(8) (8) A social security account shall be maintained within the fund to which shall be credited all moneys received from employee and employer OASDHI contributions including any penalties for late transmission of moneys or reports. All disbursements under subch. III shall be charged to this account.

40.04(9) (9) Separate group health, income continuation and life insurance accounts, and additional accounts for any other type of insurance provided under this chapter shall be maintained within the fund, to which shall be credited moneys received from operations of the respective group insurance plans for insurance premiums, as dividend or premium credits arising from the operation of the respective insurance plans and from investment income on any reserves established in the fund for the respective insurance plans. Premium payments to insurers, any insurance benefit to be paid directly by the fund and reimbursements of 3rd parties for benefits paid on behalf of an insurance plan shall be charged to the corresponding account established for that benefit plan. This subsection shall not be construed to prohibit the direct payment of premiums to insurers when appropriate administrative procedures have been established for direct payments.

40.04(9m) (9m) The department shall do all of the following:

40.04(9m)(a) (a) Maintain a separate account in the fund for each employee-funded reimbursement account plan authorized under subch. VIII.

40.04(9m)(b) (b) Credit to the appropriate accounts established under par. (a) money received from employees in connection with each employee-funded reimbursement account plan and income from investment of the reserves in the account.

40.04(9m)(c) (c) Charge to the appropriate accounts established under par. (a) payments made to reimburse employee-funded reimbursement account plan providers for payments made to employees under each employee-funded reimbursement account plan under subch. VIII.

40.04(10) (10) An accumulated sick leave conversion account shall be maintained within the fund, to which shall be credited all money received under s. 40.05 (4) (b), (bc), (bf), (bm), (br), and (bw) for health insurance premiums, as dividends or premium credits arising from the operation of health insurance plans and from investment income on any reserves established in the fund for health insurance purposes for retired employees and their surviving dependents, and for the payment of any employer share of OASDHI contributions for sick leave credits used to pay health insurance premiums for dependents who are not tax dependents under the Internal Revenue Code. Premium payments to health insurers authorized in s. 40.05 (4) (b), (bc), (bf), (bm), and (bw) shall be charged to this account. This subsection does not prohibit the direct payment of premiums to insurers when appropriate administrative procedures have been established for direct payments.

40.04(11) (11) A health insurance premium credit account shall be maintained within the fund, to which shall be credited all moneys received under s. 40.05 (4) (by) for the payment of health insurance premiums, as dividends or premium credits arising from the operation of health insurance plans and from investment income on any reserves established in the fund for health insurance purposes for retired employees and their surviving dependents, and for the payment of any employer share of OASDHI contributions for health insurance premium credits used to pay health insurance premiums for dependents who are not tax dependents under the Internal Revenue Code. Premium payments to health insurers authorized in subch. IX may only be charged to this account after all other health insurance premium credits under s. 40.05 (4) (b), (bc), (bf), (bm) and (bw) are exhausted. This subsection does not prohibit the direct payment of premiums to insurers when appropriate administrative procedures have been established for direct payments.

40.04(12) (12) The department shall establish and maintain a separate account in the fund to which shall be credited all moneys received from employees and employers in connection with health savings accounts established under s. 40.515.

40.04 History History: 1981 c. 96, 386; 1983 a. 27, 141, 247, 504; 1987 a. 27, 83; 1989 a. 13, 14, 31, 355; 1991 a. 39, 141, 152, 269; 1995 a. 88, 89, 225, 240; 1997 a. 26, 69; 1999 a. 11; 2001 a. 16; 2003 a. 33; 2005 a. 153; 2013 a. 20; 2015 a. 187; 2019 a. 9.

40.04 Annotation An employee sick leave account cannot be considered an asset of a marital estate subject to division in a divorce action. Preiss v. Preiss, 2000 WI App 185, 238 Wis. 2d 368, 617 N.W.2d 514, 99-3261.

40.05 40.05 Contributions and premiums.

40.05(1) (1) Employee retirement contributions. For Wisconsin retirement system purposes employee contributions on earnings for service credited as creditable service shall be subject to federal annual compensation limits and shall be made as follows:

40.05(1)(a) (a) Subject to par. (b):

40.05(1)(a)1. 1. For each participating employee not otherwise specified, a percentage of each payment of earnings equal to one-half of the total actuarially required contribution rate, as approved by the board under s. 40.03 (1) (e).

40.05(1)(a)2. 2. For each participating employee whose formula rate is determined under s. 40.23 (2m) (e) 2., a percentage of each payment of earnings equal to one-half of the total actuarially required contribution rate, as approved by the board under s. 40.03 (1) (e).

40.05(1)(a)3. 3. For each participating employee whose formula rate is determined under s. 40.23 (2m) (e) 3., the percentage of earnings paid by a participating employee under subd. 1.

40.05(1)(a)4. 4. For each participating employee whose formula rate is determined under s. 40.23 (2m) (e) 4., the percentage of earnings paid by a participating employee under subd. 1.

40.05(1)(a)5. 5. Additional contributions may be made by any participant by deduction from earnings or otherwise or may be provided on behalf of any participant in any calendar year in which the participant has earnings, subject to any limitations imposed on contributions by the Internal Revenue Code, applicable regulations adopted under the Internal Revenue Code and rules of the department.

40.05(1)(a)6. 6. Under the rules promulgated under s. 40.03 (2) (r), additional contributions that are attributable to a death benefit paid under s. 40.73 may be made to the core annuity division by any participant by rollover contribution of a payment or distribution from a pension or annuity qualified under section 401 of the Internal Revenue Code, subject to any limitations imposed on contributions by the Internal Revenue Code, applicable regulations adopted under the Internal Revenue Code, and rules of the department.