Ability of a K-12 Public School to Have an ERISA or Non-ERISA 403(b)

Q. Can a K-12 public school elect whether to have an ERISA or non-ERISA 403(b)? 

A. A public school is never subject to ERISA and cannot elect to be covered by it. ERISA Section 3(32) exempts governmental plans including public schools from the ERISA rules. Also, there is no special rule like that for churches, in which they can “elect” to be covered.