43:3C-24 Funding, payment of other post-employment benefits.

66. a. Post-employment benefits other than pensions under the State Health Benefits Program, P.L.1961, c.49 (C.52:14-17.25 et seq.), for retired employees, and their dependents, of employers other than the State that are participating in the State Health Benefits Program pursuant to section 3 of P.L.1964, c.125 (C.52:14-17.34), as non-State participating employers, shall be funded and paid by means of contributions to a separate trust fund. For the purposes of this section, the term "post-employment benefits other than pensions" means post-employment benefits including, but not limited to, health, dental and vision care, which give rise to a liability under Statement No. 43 of the Governmental Accounting Standards Board, Reporting for Postemployment Benefit Plans Other Than Pension Plans, and Statement No. 45 of the Governmental Accounting Standards Board, Accounting and Financial Reporting by Employers for Postemployment Benefits Other Than Pensions, together, GASB 43/45, as amended from time to time, or any successor publication. For purposes of this section, and notwithstanding anything to the contrary, the term "non-State participating employers" is limited only to entities that are a political subdivision of the State, as defined in federal Treas. Reg. s. 1.103-1(b), or entities the income of which is excluded from gross income under section 115 of the Internal Revenue Code of 1986 (26 U.S.C. s.115), as amended. For purposes of this section, the term "dependent" or "dependents" means a dependent as defined under section 152 of the Internal Revenue Code of 1986 (26 U.S.C. s.152), as amended, without regard to subsection (b)(1), (b)(2), or (d)(1)(B) thereof, of a retired employee.

b. There is hereby established the State of New Jersey Other Post-Employment Benefits (OPEB) Fund, which is intended to qualify as an instrumentality of the State or a political subdivision of the State under section 115 of the Internal Revenue Code of 1986 (26 U.S.C. s.115), as amended. The assets of the OPEB Fund shall be used only to fund and pay post-employment benefits other than pensions, and the reasonable cost of administering such benefits, with respect to eligible retired employees, and their dependents, of non-State participating employers, and deposits and contributions to the OPEB Fund shall be irrevocable except as specifically provided in subsection i. of this section. The OPEB Fund shall be a trust, trust account or custodial account, the assets of which shall be deemed an arrangement equivalent to a trust for all legal purposes, and shall be established by means of appropriate documentation so as to be exempt from taxation under the provisions of applicable federal and State tax law, which shall contain such terms and conditions as are required to comply with all State and federal law including but not limited to the following:

(1) The OPEB Fund shall provide no guaranty that payments or reimbursements to employees, former employees, retirees, spouses or beneficiaries will be tax-free.

(2) In the event that the OPEB Fund has obtained a ruling from the Internal Revenue Service concerning only the federal tax treatment of the OPEB Fund's income, that ruling may not be cited or relied upon by any non-State participating employer as precedent concerning any matter relating to the non-State participating employer's health plans, including post-retirement health plans. In particular, that ruling shall have no effect on whether contributions to the non-State participating employer's health plans or payments from the non-State participating employer's health plans, including reimbursements of medical expenses, are excludable from the gross income of employees, former employees or retirees, under the Internal Revenue Code of 1986, as amended.

(3) The federal income tax consequences to employees, former employees and retirees shall depend on the terms and operation of the non-State participating employer's health plans.

c. The assets of the OPEB Fund shall be segregated from all other funds of the State and the non-State participating employers, including without limitation the fund described in section 48 of P.L.2007, c.103 (C.52:14-17.32a1), and shall be invested and administered solely in the interest of retired employees, and their dependents, of non-State participating employers entitled to post-employment benefits other than pensions provided by the State Health Benefits Program. However, the OPEB Fund may be invested in a group trust established pursuant to section 401(a)(24) of the Internal Revenue Code of 1986 (26 U.S.C. s.401(a)(24)), as amended. Neither the State, the State Legislature, the State Health Benefits Commission, the Treasurer of the State of New Jersey, the Division of Pensions and Benefits in the Department of the Treasury, nor any public officer, employee or agency, nor service provider to the OPEB Fund, shall use or authorize the use of assets contributed to the OPEB Fund, or the investment earnings thereon, for any purpose other than the provision of post-employment benefits other than pensions in accordance with the terms of the State Health Benefits Program applicable to retired employees, and their dependents, of non-State participating employers, and the defraying of the reasonable costs of administering the OPEB Fund and the benefits provided by means of the OPEB Fund. The assets constituting the OPEB Fund shall under no circumstances be subject to assignment or alienation in favor of the creditors of the State or any non-State participating employer, or of the individuals or entities that administer the State Health Benefits Program or the OPEB Fund. Private parties' interests shall neither materially participate in the OPEB Fund nor benefit more than incidentally from the operation or earnings of the OPEB Fund.

d. The Director of the Division of Pensions and Benefits shall serve as the administrator of the OPEB Fund. The Director of the Division of Investment as trustee shall have the authority to adopt a trust agreement, to receive and hold all moneys in the OPEB Fund, and to disburse the same in accordance with instructions from the fund administrator. The Director of the Division of Investment shall have the authority to invest and reinvest the moneys in the OPEB Fund and to acquire for or on behalf of the OPEB Fund such investments in accordance with the standards governing the investment of other funds managed by the Director of the Division of Investment under the rules and regulations of the State Investment Council. The State, the Division of Pensions and Benefits, the State Treasurer, the Division of Investment, and the State Investment Council, and their respective officers and employees, shall not be liable for any loss incurred by the OPEB Fund.

e. The fund administrator or the trustee may select and contract with custodians, record keepers, actuaries and other consultants, and other service providers with respect to the administration of the OPEB Fund, and may delegate to such persons or entities, or to any person within the Department of the Treasury, any of their duties and responsibilities. The Director of the Division of Investment may select and contract with investment managers, investment advisors and other service providers with respect to the investment of the OPEB Fund, and may delegate to such persons or entities, or to any person within the Division of Investment, any of its duties and responsibilities.

f. The fund administrator shall, with the assistance of a qualified actuary, determine a funding policy for the OPEB Fund and may promulgate rules and procedures with respect to the administration and funding of the OPEB Fund. The fund administrator, with the assistance of a qualified actuary, shall annually measure and determine an amount for the annual "other post-employment benefits" cost of providing benefits for the retirees and their dependents of each non-State participating employer in the State Health Benefits Program based on the "annual required cost" (ARC) for providing such benefits determined in accordance with applicable standards under GASB 43/45. The fund administrator shall report the OPEB cost for each non-State participating employer to such employer on an annual basis.

g. The fund administrator, with the assistance of a qualified actuary, shall annually determine, and the fund administrator shall approve, the aggregate contribution to the OPEB Fund to fund post-employment benefits other than pensions under the terms of the State Health Benefits Program, which shall be the amount necessary to pay the anticipated premiums or periodic charges for the benefits for the following annual valuation period, with respect to all non-State employers participating in the OPEB Fund. The fund administrator shall determine and approve the rate or rates to be charged to non-State participating employers as contributions by such employers to the OPEB Fund, based on such allocable amounts of the above-described aggregate contribution and such other factors as the fund administrator shall determine with respect to the setting of such rates.

h. Deposits to the OPEB Fund shall be made by each non-State participating employer in the amounts specified by the fund administrator. Deposits to the OPEB Fund by each non-State participating employer shall be segregated in a separate account for recordkeeping purposes from the deposits from all other non-State participating employers in the OPEB Fund. Such deposits may be commingled for purposes of investment, but the fund administrator shall provide record keeping to establish the deposits allocable to each non-State participating employer and shall periodically report the value of the separate accounts to the applicable non-State participating employers. Investment earnings attributable to the OPEB Fund shall be determined on an aggregate basis for all non-State participating employers. A non-State participating employer shall not make a deposit to the OPEB Fund if the total amount invested with respect to that employer would exceed such employer's actuarially determined liability for post-employment benefits other than pensions due to its employees, as determined under the applicable standards of GASB 43/45.

i. In the event that, following the satisfaction in full of all liabilities for post-employment benefits other than pensions to retired employees, and their dependents, of non-State participating employers, there remain undistributed assets of the OPEB Fund, such assets shall be distributed in the manner determined by the fund administrator, provided that in no event shall such assets be distributed to, or used for the purpose of paying benefits for, the active or retired employees of an entity that is not a State, a political subdivision of the State or an entity the income of which is excluded from gross income under section 115 of the Internal Revenue Code of 1986 (26 U.S.C. s.115), as amended.

L.2011, c.78, s.66.