[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 866 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 866
To amend title II of the Social Security Act to repeal the windfall
elimination provision and protect the retirement of public servants.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 21, 2005
Mrs. Hutchison introduced the following bill; which was read twice and
referred to the Committee on Finance
_______________________________________________________________________
A BILL
To amend title II of the Social Security Act to repeal the windfall
elimination provision and protect the retirement of public servants.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Public Servant Retirement Protection
Act of 2005''.
SEC. 2. REPEAL OF CURRENT WINDFALL ELIMINATION PROVISION.
Paragraph (7) of section 215(a) of the Social Security Act (42
U.S.C. 415(a)(7)) is repealed.
SEC. 3. REPLACEMENT OF THE WINDFALL ELIMINATION PROVISION WITH A
FORMULA EQUALIZING BENEFITS FOR CERTAIN INDIVIDUALS WITH
NON-COVERED EMPLOYMENT.
(a) Substitution of Proportional Formula for Formula Based on
Covered Portion of Periodic Benefit.--
(1) In general.--Section 215(a) of the Social Security Act
(as amended by section 2 of this Act) is amended further by
inserting after paragraph (6) the following new paragraph:
``(7)(A) In the case of an individual whose primary insurance
amount would be computed under paragraph (1) of this subsection, who--
``(i) attains age 62 after 1985 (except where he or she
became entitled to a disability insurance benefit before 1986
and remained so entitled in any of the 12 months immediately
preceding his or her attainment of age 62), or
``(ii) would attain age 62 after 1985 and becomes eligible
for a disability insurance benefit after 1985,
and who first becomes eligible after 1985 for a monthly periodic
payment (including a payment determined under subparagraph (E), but
excluding (I) a payment under the Railroad Retirement Act of 1974 or
1937, (II) a payment by a social security system of a foreign country
based on an agreement concluded between the United States and such
foreign country pursuant to section 233, and (III) a payment based
wholly on service as a member of a uniformed service (as defined in
section 210(m)) which is based in whole or in part upon his or her
earnings for service which did not constitute `employment' as defined
in section 210 for purposes of this title (hereafter in this paragraph
and in subsection (d)(3) referred to as `noncovered service'), the
primary insurance amount of that individual during his or her
concurrent entitlement to such monthly periodic payment and to old-age
or disability insurance benefits shall be computed or recomputed under
this paragraph.
``(B) The primary insurance amount of an individual described in
subparagraph (A), as computed or recomputed under this paragraph, shall
be--
``(i) in the case of an individual who first performs
noncovered service after the 12th calendar month following the
date of the enactment of the Public Servant Retirement
Protection Act of 2005, the primary insurance amount determined
under subparagraph (C), or
``(ii) in the case of an individual who has performed
noncovered service during or before the 12th calendar month
following the date of the enactment of the Public Servant
Retirement Protection Act of 2005, the larger of--
``(I) the primary insurance amount determined under
subparagraph (C), or
``(II) the primary insurance amount determined
under subparagraph (E).
``(C) An individual's primary insurance amount determined under
this subparagraph shall be the product derived by multiplying--
``(i) the individual's primary insurance amount, as
determined under paragraph (1) of this subsection and
subparagraph (D)(i) of this paragraph, by
``(ii) a fraction--
``(I) the numerator of which is the individual's
average indexed monthly earnings (determined without
regard to subparagraph (D)(i)), and
``(II) the denominator of which is an amount equal
to the individual's average indexed monthly earnings
(as determined under subparagraph (D)(i)),
rounded, if not a multiple of $0.10, to the next lower multiple of
$0.10.
``(D)(i) For purposes of determining an individual's primary
insurance amount pursuant to subparagraph (C)(i), the individual's
average indexed monthly earnings shall be determined by treating all
service performed after 1950 on which the individual's monthly periodic
payment referred to in subparagraph (A) is based (other than noncovered
service as a member of a uniformed service (as defined in section
210(m))) as `employment' as defined in section 210 for purposes of this
title (together with all other service performed by such individual
consisting of `employment' as so defined).
``(ii) For purposes of determining average indexed monthly earnings
as described in clause (i), the Commissioner of Social Security shall
provide by regulation for a method for determining the amount of wages
derived from service performed after 1950 on which the individual's
periodic benefit is based and which is to be treated as `employment'
solely for purposes of clause (i). Such method shall provide for
reliance on employment records which are provided to the Commissioner
and which, as determined by the Commissioner, constitute a reasonable
basis for treatment of service as `employment' for such purposes,
together with such other information received by the Commissioner
(including such documentary evidence of earnings derived from
noncovered service as may be provided to the Commissioner by the
individual) as the Commissioner may consider appropriate as a
reasonable basis for treatment of service as `employment' for such
purposes. The Commissioner shall enter into such arrangements as are
necessary and appropriate with the Department of the Treasury, the
Department of Labor, other Federal agencies, and agencies of States and
political subdivisions thereof so as to secure satisfactory evidence of
earnings for noncovered service described in subparagraph (A) for
purposes of this clause and clauses (iii) and (iv). The Secretary of
the Treasury, the Secretary of Labor, and the heads of all other
Federal agencies are authorized and directed to cooperate with the
Commissioner and, to the extent permitted by law, to provide such
employment records and other information as the Commissioner may
request for their assistance in the performance of the Commissioner's
functions under this clause and clauses (iii) and (iv).
``(iii) In any case in which satisfactory evidence of earnings for
noncovered service which was performed by an individual during any year
or portion of a year after 1977 is not otherwise available, the
Commissioner may, for purposes of clause (ii), accept as satisfactory
evidence of such individual's earnings for such noncovered service
during such year or portion of a year reasonable extrapolations from
available information with respect to earnings for noncovered service
of such individual for periods immediately preceding and following such
year or portion of a year.
``(iv) In any case in which satisfactory evidence of earnings for
noncovered service which was performed by an individual during any
period before 1978 is not otherwise available, the Commissioner may,
for purposes of clause (ii), accept as satisfactory evidence of such
individual's earnings for such noncovered service during such period --
``(I) the individual's written attestation of such
earnings, if such attestation is corroborated by at least 1
other individual who is knowledgeable of the relevant facts, or
``(II) available information regarding the average earnings
for noncovered service for the same period for individuals in
similar positions in the same profession in the same State or
political subdivision thereof, or, in any case in which such
information is not available for such period, reasonable
extrapolations of average earnings for noncovered service for
such individuals from periods immediately preceding and
following such period.
``(v) In any case described in subparagraph (B)(i), if the
requirements of clause (ii) of this subparagraph are not met (after
applying clauses (iii) and (iv)), the primary insurance amount of the
individual shall be, notwithstanding subparagraph (B)(i), the primary
insurance amount computed under subparagraph (E).
``(E)(i) For purposes of determining the primary insurance amount
under this subparagraph--
``(I) there shall first be computed an amount equal to the
individual's primary insurance amount under paragraph (1) of
this subsection, except that for purposes of such computation
the percentage of the individual's average indexed monthly
earnings established by subparagraph (A)(i) of paragraph (1)
shall be the percent specified in clause (ii), and
``(II) there shall then be computed (without regard to this
paragraph) a second amount, which shall be equal to the
individual's primary insurance amount under paragraph (1) of
this subsection, except that such second amount shall be
reduced by an amount equal to one-half of the portion of the
monthly periodic payment which is attributable to noncovered
service performed after 1956 (with such attribution being based
on the proportionate number of years of such noncovered
service) and to which the individual is entitled (or is deemed
to be entitled) for the initial month of his or her concurrent
entitlement to such monthly periodic payment and old-age or
disability insurance benefits.
An individual's primary insurance amount determined under this
subparagraph shall be the larger of the two amounts computed
under this clause (before the application of subsection (i)).
``(ii) For purposes of clause (i), the percent specified in this
clause is--
``(I) 80.0 percent with respect to individuals who become
eligible (as defined in paragraph (3)(B)) for old-age insurance
benefits (or became eligible as so defined for disability
insurance benefits before attaining age 62) in 1986;
``(II) 70.0 percent with respect to individuals who so
become eligible in 1987;
``(III) 60.0 percent with respect to individuals who so
become eligible in 1988;
``(IV) 50.0 percent with respect to individuals who so
become eligible in 1989; and
``(V) 40.0 percent with respect to individuals who so
become eligible in 1990 or thereafter.
``(F)(i) Any periodic payment which otherwise meets the
requirements of subparagraph (A), but which is paid on other than a
monthly basis, shall be allocated on a basis equivalent to a monthly
payment (as determined by the Commissioner of Social Security), and
such equivalent monthly payment shall constitute a monthly periodic
payment for purposes of this paragraph.
``(ii) In the case of an individual who has elected to receive a
periodic payment that has been reduced so as to provide a survivor's
benefit to any other individual, the payment shall be deemed to be
increased (for purposes of any computation under this paragraph or
subsection (d)(3)) by the amount of such reduction.
``(iii) For purposes of this paragraph, the term `periodic payment'
includes a payment payable in a lump sum if it is a commutation of, or
a substitute for, periodic payments.
``(G)(i) This paragraph shall not apply in the case of an
individual who has 30 years or more of coverage. In the case of an
individual who has more than 20 years of coverage but less than 30
years of coverage (as so defined), the percent specified in the
applicable subdivision of subparagraph (E)(ii) shall (if such percent
is smaller than the applicable percent specified in the following
table) be deemed to be the applicable percent specified in the
following table:
``If the number of such The applicable percent is:
individual's years of
coverage (as so defined)
is:
29..................................................... 85
28..................................................... 80
27..................................................... 75
26..................................................... 70
25..................................................... 65
24..................................................... 60
23..................................................... 55
22..................................................... 50
21..................................................... 45
``(ii) For purposes of clause (i), the term `year of coverage'
shall have the meaning provided in paragraph (1)(C)(ii), except that
the reference to `15 percent' therein shall be deemed to be a reference
to `25 percent'.
``(H) An individual's primary insurance amount determined under
this paragraph shall be deemed to be computed under paragraph (1) of
this subsection for the purpose of applying other provisions of this
title.
``(I) This paragraph shall not apply in the case of an individual
whose eligibility for old-age or disability insurance benefits is based
on an agreement concluded pursuant to section 233 or an individual who
on January 1, 1984--
``(i) is an employee performing service to which social
security coverage is extended on that date solely by reason of
the amendments made by section 101 of the Social Security
Amendments of 1983; or
``(ii) is an employee of a nonprofit organization which (on
December 31, 1983) did not have in effect a waiver certificate
under section 3121(k) of the Internal Revenue Code of 1954 and
to the employees of which social security coverage is extended
on that date solely by reason of the amendments made by section
102 of that Act, unless social security coverage had previously
extended to service performed by such individual as an employee
of that organization under a waiver certificate which was
subsequently (prior to December 31, 1983) terminated.''.
(2) Conforming amendments.--
(A) Section 215(d)(3) of such Act (42 U.S.C.
415(d)(3)) is amended--
(i) by striking ``subsection (a)(7)(C)''
each place it appears and inserting
``subsection (a)(7)(F)'';
(ii) by striking ``subparagraph (E)'' and
inserting ``subparagraph (I)''; and
(iii) by striking ``subparagraph (D)'' and
inserting ``subparagraph (G)(i)''.
(B) Section 215(f)(9)(A) of such Act (42 U.S.C.
415(f)(9)(A)) is amended by striking ``(a)(7)(C)'' and
inserting ``(a)(7)(F)''.
SEC. 4. EFFECTIVE DATE.
The amendments made by this Act shall apply with respect to monthly
insurance benefits for months commencing with or after the 12th
calendar month following the date of the enactment of this Act.
Notwithstanding section 215(f) of the Social Security Act, the
Commissioner of Social Security shall recompute primary insurance
amounts to the extent necessary to carry out the amendments made by
this Act.
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