Opinion No. (1992)

ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION REGARDING THE INTER FRETATION OF 74 O.S. 1316.3(8) (1991) CONCERNING PARTICIPATION IN THE STATE AND EDUCATION GROUP INSURANCE PLAN BY RETIREES OF THE OKLAHOMA TEACHERS' RETIREMENT SYSTEM.

YOUR QUESTION CAN BE ANSWERED BY A CLEAR READING OF THE CONTROLLING STATUTES; THEREFORE, THIS OFFICE HAS DETERMINED YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER. THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE FOLLOWING ANALYSIS AND CONCLUSIONS, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE RAISED.

THE CONTROLLING STATUTES IN QUESTION ARE 74 O.S. 1316.3(8) AND 74 O.S. 1316.3(1) (1991). THESE TWO SECTIONS ARE PART OF THE STATE AND EDUCATION EMPLOYEES GROUP INSURANCE ACT (74 O.S. 1301 ET SEQ.), AND DO NOT APPEAR TO BE IN CONFLICT. SUBSECTION (1) PROVIDES AS FOLLOWS:

"ANY PERSON WHO RETIRES PURSUANT TO THE PROVISIONS OF THE TEACHERS' RETIREMENT SYSTEM OF OKLAHOMA OR WHO IS EMPLOYED WITH A QUALIFYING EMPLOYER PRIOR TO JULY 1, 1990, AND TERMINATES SERVICE WITH A VESTED BENEFIT, PURSUANT TO THE PROVISIONS OF THE TEACHERS' RETIREMENT SYSTEM OF OKLAHOMA MAY CONTINUE IN FORCE THE HEALTH AND DENTAL INSURANCE BENEFITS AUTHORIZED BY THE PROVISIONS OF THE STATE AND EDUCATION EMPLOYEES GROUP INSURANCE ACT OR MAY BEGIN THE HEALTH AND DENTAL INSURANCE COVERAGE IF THE EDUCATION ENTITY OF THE PERSON IS NOT A PARTICIPANT IN THE STATE AND EDUCATION EMPLOYEES GROUP INSURANCE ACT OR IF THE PERSON DID NOT PARTICIPATE WHEN THE EDUCATION ENTITY OF THE PERSON PARTICIPATED IN THE STATE AND EDUCATION EMPLOYEES GROUP INSURANCE ACT IF SUCH ELECTION TO CONTINUE IN FORCE OR BEGIN IS MADE WITHIN THIRTY (30) DAYS FROM THE DATE OF TERMINATION OF SERVICE."

SUBSECTION (1) CONTROLS THE ABILITY TO CONTINUE OR BEGIN COVERAGE UNDER THE STATE INSURANCE PLAN FOR RETIREES UNDER THE TEACHERS' RETIREMENT SYSTEM (OTRS) WHO RETIRE PRIOR TO JULY 1, 1995. THESE RETIREES MAY OPT IN OR OUT OF THE STATE PLAN AFTER RETIREMENT, EVEN IF NEITHER THEY NOR THEIR SCHOOL DISTRICT JOINED BEFORE, IF THEY ELECT TO DO SO WITHIN 30 DAYS FROM TERMINATING EMPLOYMENT.

SUBSECTION (8) APPLIES TO OTRS RETIREES WHO RETIRE AFTER JUNE 30, 1995 PROVIDING AS FOLLOWS:

"NOTWITHSTANDING ANY PROVISION IN THIS SECTION TO THE CONTRARY, ANY PERSON WHO RETIRES PURSUANT TO THE PROVISIONS OF THE TEACHERS' RETIREMENT SYSTEM OF OKLAHOMA AFTER JUNE 30, 1995, OR TERMINATES SERVICE WITH A VESTED BENEFIT, PURSUANT TO THE PROVISIONS OF THE TEACHERS' RETIREMENT SYSTEM OF OKLAHOMA AFTER JUNE 30, 1995, MAY CONTINUE TO PARTICIPATE IN THE HEALTH AND DENTAL PLANS AUTHORIZED BY THE PROVISIONS OF THE STATE AND EDUCATION EMPLOYEES GROUP INSURANCE ACT ONLY IF SAID PERSON PARTICIPATED IN SAID INSURANCE PLANS FOR A PERIOD OF AT LEAST THREE (3) CONSECUTIVE YEARS IMMEDIATELY PRIOR TO RETIREMENT OR TERMINATION OF SERVICE."

THESE RETIREES MUST HAVE BEEN ENROLLED IN THE STATE INSURANCE PLAN FOR THREE CONSECUTIVE YEARS PRIOR TO RETIREMENT IN ORDER TO CONTINUE THEIR STATE INSURANCE COVERAGE POST-RETIREMENT. FOR THIS CONDITION TO BE MET, THE INDIVIDUAL SCHOOL DISTRICTS MUST HAVE "OPTED IN" TO THE STATE INSURANCE PLAN BY JUNE 30, 1992, IN ORDER TO AFFORD CONTINUED STATE COVERAGE AT RETIREMENT FOR THOSE RETIRING ON JULY 1, 1995, THE EARLIEST RETIREMENT DATE AFFECTED BY SUBSECTION (8). IN ADDITION, THE EMPLOYEES WHO ARE PLANNING ON RETIRING AFTER JUNE 30, 1995, MUST MAKE AN ELECTION TO JOIN THE STATE INSURANCE PLAN AT LEAST THREE YEARS BEFORE THEIR SCHEDULED RETIREMENT DATE TO INSURE THEIR CONTINUED COVERAGE AT RETIREMENT.

IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT THE TWO SUBSECTIONS OF 74 O.S. 1316.3, DISCUSSED ABOVE DO NOT CONFLICT WITH EACH OTHER BECAUSE THEY TAKE EFFECT AT DIFFERENT TIMES AND CONCERN DIFFERENT RETIREES, DEPENDING ON THEIR INDIVIDUAL RETIREMENT DATES. SUBSECTION (1) ALLOWS RETIREES BEFORE JULY 1, 1995, TO OPT IN OR OUT OF THE STATE PLAN AT THE TIME OF RETIREMENT, WHETHER THEY HAVE EVER JOINED BEFORE, IF THEY MAKE AN ELECTION TO JOIN THE STATE PLAN WITHIN 30 DAYS OF ENDING THEIR EMPLOYMENT. THEY CAN JOIN THE STATE PLAN WHETHER OR NOT THEIR SCHOOL DISTRICT/EMPLOYERS HAD PREVIOUSLY JOINED THE PLAN. ON THE OTHER HAND, SUBSECTION (8) REQUIRES THAT ALL RETIREES AFTER JULY 1, 1995, MUST HAVE BEEN MEMBERS OF THE PLAN FOR THREE CONSECUTIVE YEARS PREVIOUS TO THEIR RETIREMENT TO CONTINUE THEIR STATE PLAN COVERAGE. THIS NECESSARILY REQUIRES THE SCHOOL DISTRICTS TO HAVE OPTED INTO THE STATE PLAN THREE YEARS IN ADVANCE IN ORDER TO AFFORD THEIR RETIREES AFTER JUNE 30, 1995, THE BENEFIT OF CONTINUED PARTICIPATION IN THE STATE PLAN AFTER THEIR RETIREMENT.

(GAY ABSTON TUDOR)