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Introduced Version House Bill 2844 History

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hb2844 intr
H. B. 2844


(By Delegate Stalnaker)
[Introduced March 2, 2005; referred to the
Committee on Pensions and Retirement then Finance.]




A BILL to amend and reenact §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and §15-2-37 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §15-2-25b, §15-2-31a and §15-2-31b, all relating to the West Virginia State Police Death, Disability and Retirement Fund generally; adding general definitions; adding definitions of "law-enforcement officer," "partially disabled," "totally disabled," and "physical or mental impairment"; making technical changes; providing for probable permanent disability status; specifying that total disability now is inability to perform any substantial gainful employment and that partial disability is inability to perform law enforcement duties; specifying limitation on compensation rendered to health care providers; providing that member receiving annuity for partial disability incurred in performance of duty may be employed as an elected sheriff or appointed chief of police if it is shown to the Board that such employment is not inconsistent with the partial disability; allowing application for disability to be made by person acting on member's behalf; allowing Superintendent to petition Board for member's disability when he or she deems the member disabled; authorizing rules; judicial review; allowing Board to withhold payment pending judicial review; requiring disability recipient to file annual statement of earnings and setting forth penalty for refusal or failure to do so; and annual report of employer's disability retirement experience.

Be it enacted by the Legislature of West Virginia:
That §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and §15-2-37 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §15-2-25b, §15-2-31a and §15-2-31b, all to read as follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(a) "Board" means the Consolidated Public Retirement Board created pursuant to article ten-d, chapter five of this code.
(b) "Department" means the West Virginia State Police.
(c) "Fund," "plan," or "system," means the West Virginia Death, Disability and Retirement Fund.
(d) "Law-enforcement officer" means an individual employed or otherwise engaged in either a public or private position which involves the rendition of services relating to enforcement of federal, state or local laws for the protection of public or private safety, including but not limited to, positions as deputy sheriffs, police officers, marshals, bailiffs, court security officers or any other law-enforcement position which requires certification, but excluding positions held by elected sheriffs or appointed chiefs of police whose duties are determined by the Board to be purely administrative in nature.
(e) "Member" means an employee of the West Virginia State Police who is an active participant in the fund.
(f) "Partially disabled" means a member's inability, on a probable permanent basis, to perform the essential duties of a law-enforcement officer by reason of any medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months, but which impairment does not preclude the member from engaging in other types of nonlaw-enforcement employment.
(g) "Physical or mental impairment" means an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques.
(h) "Totally disabled" means a member's probable permanent inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. For purposes of this subsection, a member is totally disabled only if his or her physical or mental impairments are so severe that he or she is not only unable to perform his or her previous work as a member of the Department but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (1) The work exists in the immediate area in which the member lives; (2) a specific job vacancy exists; or (3) the member would be hired if he or she applied for work.
§15-2-26. Continuation of death, disability and retirement fund; designating the Consolidated Public Retirement Board as administrator of fund.

(a) There shall be is continued the Death, Disability and Retirement Fund heretofore created for the benefit of members of the division of public safety Department and any dependent of a retired or deceased member thereof.
(b) There shall be deducted from the monthly payroll of each member of the division of public safety Department and paid into such fund six percent of the amount of his or her salary: Provided, That beginning on the first day of July, one thousand nine hundred ninety-four, there shall be deducted from the monthly payroll of each member and paid into the Fund seven and one-half percent of the amount of his or her salary: Provided, however, That, on and after the first day of July, one thousand nine hundred ninety-five, there shall be deducted from the monthly payroll of each member and paid into the Fund nine percent of the amount of his or her salary. An additional twelve percent of the monthly salary of each member of the division Department shall be paid by the State of West Virginia monthly into such fund out of the annual appropriation for the division Department: Provided further, That beginning on the first day of July, one thousand nine hundred ninety-five, the state shall pay thirteen percent of the monthly salary of each member into the Fund: And provided further, That beginning on the first day of July, one thousand nine hundred ninety-six, the state shall pay fourteen percent of the monthly salary of each member into the Fund: And provided further, That on and after the first day of July, one thousand nine hundred ninety-seven, the state shall pay fifteen percent of the monthly salary of each member into the Retirement Fund. There shall also be paid into the Fund amounts that have previously been collected by the superintendent of the division of public safety Department on account of payments to members for court attendance and mileage, rewards for apprehending wanted persons, fees for traffic accident reports and photographs, fees for criminal investigation reports and photographs, fees for criminal history record checks, fees for criminal history record reviews and challenges or from any other sources designated by the Superintendent. All moneys payable into the Fund shall be deposited in the State Treasury and the Treasurer and Auditor shall keep a separate account thereof on their respective books.
(c) Notwithstanding any other provisions of this article, forfeitures under the Fund shall not be applied to increase the benefits any member would otherwise receive under the Fund.
(d) The moneys in this Fund, and the right of a member to a retirement allowance, to the return of contributions, or to any benefit under the provisions of this article, are hereby exempt from any state or municipal tax; shall not be subject to execution, garnishment, attachment or any other process whatsoever, with the exception that the benefits or contributions under the Fund shall be subject to "qualified domestic relations orders" as that term is defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans; and shall be unassignable except as is provided in this article. The Death, Disability and Retirement Fund shall be administered by the Consolidated Public Retirement Board created pursuant to article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the Death, Disability and Retirement Fund, except such amounts as shall be designated or set aside by the awards, shall be invested by the State Board of Investments as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The Retirement Board shall retire any member of the division of public safety Department when the member has both attained the age of fifty-five years and completed twenty-five years of service as a member of the division Department, including military service credit granted under the provisions of section twenty-eight of this article.
(b) The Retirement Board shall retire any member of the division of public safety Department who has lodged with the secretary Executive Director of the Consolidated Public Retirement Board his or her voluntary petition in writing for retirement, and:
(1) Has or shall have completed twenty-five years of service as a member of the division Department (including military service credit granted under the provisions of section twenty-eight of this article);
(2) Has or shall have attained the age of fifty years and has or shall have completed twenty years of service as a member of the division Department (excluding military service credit granted under section twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have completed twenty years of service as a member of the division Department (excluding military service credit granted under section twenty-eight of this article.)
(c) When the Retirement Board retires any member under any of the provisions of this section, the Board shall, by order in writing, make an award directing that the member shall be entitled to receive annually and that there shall be paid to the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of the member while in status of retirement, one or the other of two amounts, whichever is the greater:
(1) An amount equal to five and one-half percent of the aggregate of salary paid to the member during the whole period of service as a member of the division of public safety Department; or
(2) The sum of six thousand dollars.
When a member has or shall have served twenty years or longer but less than twenty-five years as a member of the division Department and shall be retired under any of the provisions of this section before he or she shall have attained the age of fifty years, payment of monthly installments of the amount of retirement award to such member shall commence on the date he or she attains the age of fifty years. Beginning on the fifteenth day of July, one thousand nine hundred ninety-four, in no event may the provisions of section thirteen, article sixteen, chapter five of this code be applied in determining eligibility to retire with either immediate or deferred commencement of benefit.
(d) Any individual who is a leased employee shall not be eligible to participate in the Fund. For purposes of this Fund, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question arises regarding the status of an individual as a leased employee, the Board has final power to decide the question.
§15-2-27a. Retirement annual annuity adjustments.
Every member of the division of public safety Department who is fifty-five years of age or older and who is retired by the Retirement Board under the provisions of section twenty-seven of this article; every member of the division of public safety Department who is retired by the Retirement Board under the provisions of section twenty-nine or thirty of this article; and every surviving spouse or other beneficiary receiving a benefit pursuant to section thirty-three or thirty-four of this article, is eligible to receive an annual retirement annuity adjustment equal to three and seventy-five hundredths percent of his or her retirement award or surviving spouse award: Provided, That for any person retiring on and after the fifteenth day of September, one thousand nine hundred ninety-four, the annual retirement annuity adjustment shall be equal to two percent of his or her retirement award or award paid to a surviving spouse or other beneficiary. Such adjustments may not be retroactive. Yearly adjustments shall begin upon the first day of July of each year. The annuity adjustments shall be awarded and paid to the members from the Death, Disability and Retirement Fund in equal monthly installments while the member is in status of retirement. The annuity adjustments shall supplement the retirement awards and benefits as provided in this article.
Any member or beneficiary who receives a benefit pursuant to the provisions of section twenty-nine, thirty, thirty-three or thirty-four of this article shall begin to receive the annual annuity adjustment one year after the commencement of the benefit on the next July first: Provided, That if the member has been retired for less than one year when the first annuity adjustment is given on that July first, that first annuity adjustment will be a pro rata share of the full year's annuity adjustment.
§15-2-28. Credit toward retirement for member's prior military service; credit toward retirement when member has joined armed forces in time of armed conflict; qualified military service.

(a) For purposes of this section, the term "active military duty" means full-time active duty with the armed forces of the United States, namely, the United States Air Force, Army, Coast Guard, Marines or Navy; and service with the National Guard or reserve military forces of any of such armed forces when the member has been called to active full-time duty and has received no compensation during the period of such duty from any person other than the armed forces.
(b) Any member of the Department who has previously served on active military duty shall be entitled to and receive credit on the minimum period of service required by law for retirement pay from the service of the Department of public safety under the provisions of this article for a period equal to the active military duty not to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay awarded under section thirty of this article, he or she has actually served with the Department for twenty years exclusive of his or her active military duty.
(c) The amount of retirement pay to which any such member is entitled shall be calculated and determined as if he or she had been receiving for the period of his or her active military duty a monthly salary from the Department equal to the average monthly salary which he or she actually received from the Department for his or her total service with the Department exclusive of the active military duty. The Superintendent is authorized to transfer and pay into the Death, Disability and Retirement Fund from moneys appropriated for the Department, a sum equal to eighteen percent of the aggregate of the salaries on which the retirement pay of all such members has been calculated and determined for their periods of active military duty. In addition, any person who, while a member of the department was commissioned, enlisted or inducted into the armed forces of the United States or, being a member of the reserve officers' corps, was called to active duty in said armed forces between the first day of September, one thousand nine hundred forty, and the close of hostilities in World War II, or between the twenty-seventh day of June, one thousand nine hundred fifty, and the close of the armed conflict in Korea on the twenty-seventh day of July, one thousand nine hundred fifty-three, between the first day of August, one thousand nine hundred sixty-four and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by the Congress or by executive or other order of the President, shall be entitled to and receive credit on the minimum period of service required by law for retirement pay from the service of the Department of public safety for a period equal to the full time he or she has or shall, pursuant to such commission, enlistment, induction or call, have served with said armed forces subject to the following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That within ninety days after honorable discharge from the armed forces he or she has presented himself to the Superintendent and offered to resume service as an active member of the Department; and
(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the armed forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called.
(d) That amount of retirement pay to which any such member shall be entitled shall be calculated and determined as if the member has continued in the active service of the Department at the rank or grade to him appertaining at the time of such commission, induction, enlistment or call, during a period coextensive with the time the member served with the armed forces pursuant to the commission, induction, enlistment or call. The Superintendent of the Department is authorized to transfer and pay each month into the Death, Disability and Retirement Fund from moneys appropriated for the Department sum equal to eighteen percent of the aggregate of salary which all such members would have been entitled to receive had they continued in the active service of the Department during a period coextensive with the time such members served with the armed forces pursuant to the commission, induction, enlistment or call: Provided, That the total amount of military service credit allowable under this section shall not exceed five years.
(e) Notwithstanding any of the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. The Retirement Board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the Retirement Board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
§15-2-29. Awards and benefits for disability -- Incurred in performance of duty.

(a) Any member of the division Department who has not yet entered retirement status on the basis of age and service and who becomes partially been or shall become physically or mentally permanently disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division Department and incurred pursuant to or while such member was or shall be engaged in the performance of his or her duties as a member of the division Department shall, if, in the opinion of the Retirement Board, he or she is by reason of such cause probably permanently unable to perform adequately the duties required of him or her as a member of the division Department, but is able to engage in any other gainful employment in a field other than law enforcement, be retired from active service by the Retirement Board. The member thereafter shall be entitled to receive annually and there shall be paid to such member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such member; or until the member attains the age of fifty; or until such disability shall sooner terminate, one or the other of two amounts, whichever is greater:
(1) An amount equal to two thirds of the salary received in the preceding twelve-month employment period: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
(b) Upon attaining age fifty, the member shall receive the benefit provided for in subsection (c), section twenty-seven of this article as it would apply to his or her aggregate career earnings from the division Department through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty shall be deemed to be a retirement under the provisions of section twenty-seven of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article: Provided, That a member who is partially disabled under this article may not, while in receipt of benefits for partial disability, be employed as a law-enforcement officer: Provided, however, That a member retired on partial disability under this article may serve as an elected sheriff or appointed chief of police in the state without a loss of disability retirement benefits so long as such elected or appointed position is shown, to the satisfaction of the Board, to require the performance of administrative duties and functions only, as opposed to the full range of duties of a law-enforcement officer.
(c) If any member not yet in retirement status on the basis of age and service is found by the Board to be permanently and totally disabled as the result of a physical or mental impairment shall become permanently physically or mentally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division Department and incurred pursuant to or while such member was or shall be engaged in the performance of his or her duties as a member of the Department, division, to the extent that such member is or shall be incapacitated ever to engage in any gainful employment such member shall be entitled to receive annually and there shall be paid to such member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such member or until such disability shall sooner terminate, an amount equal to the amount of the salary received by the member in the preceding twelve-month employment period: Provided, That in no event may such amount be less than fifteen thousand dollars per annum, unless required by section forty of this article: Provided, however, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
(c) (d) The Superintendent is authorized to expend moneys from funds appropriated for the division Department in payment of medical, surgical, laboratory, X-ray, hospital, ambulance and dental expenses and fees, and reasonable costs and expenses incurred in the purchase of artificial limbs and other approved appliances which may be reasonably necessary for any member of the division Department who has or shall become temporarily, permanently or totally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the service required of members of the division Department and incurred pursuant to or while such member was or shall be engaged in the performance of duties as a member of the division Department. Whenever the Superintendent shall determine that any disabled member is ineligible to receive any of the aforesaid benefits at public expense, the Superintendent shall, at the request of such disabled member, refer such matter to the Consolidated Public Retirement Board for hearing and final decision. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule in use by the Workers' Compensation Commission.
(d) (e) For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
§15-2-30. Same -- Due to other causes
.
If any member while in active service of the division Department has, or shall in the opinion of the Retirement Board, become permanently partially or totally disabled to the extent that such member cannot adequately perform the duties required of a member of the division Department from any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, such member shall be retired by the Retirement Board. Such member shall be entitled to receive annually and there shall be paid to such member while in status of retirement, from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such member or until such disability shall sooner terminate, a sum equal to one-half the salary received in the preceding twelve-month period: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit. If such member, at the time of such retirement under the terms of this section, shall have served twenty years or longer as a member of the division Department, such member shall be entitled to receive annually and there shall be paid to such member from the Death, Disability and Retirement Fund in equal monthly installments, commencing on the date such member shall be retired and continuing during the lifetime of such member, until the member attains the age of fifty, while in status of retirement, an amount equal to one-half the salary received by the member in the preceding twelve-month period: Provided, however, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
Upon attaining age fifty, the member shall receive the benefit provided for in subsection (c), section twenty-seven of this article as it would apply to his or her aggregate career earnings from the division Department through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty shall be deemed to be a retirement under the provisions of section twenty-seven of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article.
§15-2-31. Same - Physical examinations; termination
.
The Consolidated Public Retirement Board may require any member who has been or who shall be retired with compensation on account of disability to submit to a physical and/or mental examination by a physician or physicians selected or approved by the board and cause all costs incident to such examination including hospital, laboratory, X ray, medical and physicians' fees to be paid out of funds appropriated to defray the current expense of the division Department, and a report of the findings of such physician or physicians shall be submitted in writing to the Consolidated Public Retirement Board for its consideration. If, from such report or from such report and hearing thereon, the Retirement Board shall be of opinion and find that such disabled member shall have recovered from such disability to the extent that he or she is able to perform adequately the duties of a law-enforcement officer, a member of the division the Board shall order such member to reassume active duty as a member of the division and thereupon that all payments from the Death, Disability and Retirement Fund shall be terminated. If, from the report or the report and hearing thereon, the Board shall be of the opinion and find that the disabled member shall have recovered from the his or her previously determined probable permanent disability to the extent that he or she is able to engage in any gainful employment but remains unable to adequately perform the duties of a law-enforcement officer, required as a member of the division the Board shall order the payment, in monthly installments of an amount equal to two thirds of the salary, in the case of a member retired under the provisions of section twenty-nine of this article, or equal to one half of the salary, in the case of a member retired under the provisions of section thirty of this article, excluding any compensation paid for overtime service, for the twelve-month employment period preceding the disability: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a member or, if the member is under an incapacity, by a person acting with legal authority on the member's behalf. After receiving an application for a disability benefit from a member or a person acting with legal authority on behalf of the member, the Board shall notify the Superintendent of the Department that an application has been filed: Provided, That when, in the judgment of the Superintendent, a member is no longer physically or mentally fit for continued duty as a member of the West Virginia State Police and the member has failed or refused to make application for disability benefits under this article, the Superintendent may petition the board to retire such member on the basis of disability pursuant to rules which may be established by the Board. Within thirty days of the Superintendent's receipt of the notice from the Board or the filing of the Superintendent's petition with the Board, the Superintendent shall forward to the Board a statement certifying the duties of the member's employment, information relating to the Superintendent's position on the work relatedness of the member's alleged disability, complete copies of the member's medical file and any other information requested by the Board in its processing of the application.
(b) The Board shall adopt rules relating to the processing of applications and petitions for disability retirement under this article.
(c) A member of the Fund who has served fifteen or more years as an active member of the West Virginia State Police before filing an application for disability benefits under this article and who is found by the Board to be totally disabled as the direct and proximate result of cardiovascular disease not present at the time of the member's entry examination by the West Virginia State Police is presumed to have incurred the disability as a result of the member's duties as a member of the West Virginia State Police. This presumption is rebuttable by a preponderance of the evidence that the member's cardiovascular disease is not a direct and proximate result of the member's duties as a member of the West Virginia State Police.
(d) The Board shall notify a member and the Superintendent of its final action on the disability application or petition within ten days of the Board's final action. The notice shall be sent by certified mail, return receipt requested. If either the member or the Superintendent is aggrieved by the decision of the Board and intends to pursue judicial review of the Board's decision as provided in section four, article five, chapter twenty-nine-a of this code, the party so aggrieved shall notify the Board within twenty days of the member's or Superintendent's receipt of the Board's notice that they intend to pursue judicial review of the Board's decision. The Board retains the discretion to not commence payment of a disability retirement under the provisions of this article if either the member or the Superintendent of the West Virginia State Police has notified the Board of an intent to pursue judicial review, until the statutory time limit has expired for the filing of actions seeking judicial review, or until final judgment in any action seeking judicial review under section four, article five, chapter twenty-nine-a of this code, whichever is later.
(e) The Board may require a disability benefit recipient to file an annual statement of earnings and any other information required in rules which may be adopted by the Board. The Board may waive the requirement that a disability benefit recipient file the annual statement of earnings if the Board's physician certifies that the recipient's disability is ongoing. The Board shall annually examine the information submitted by the recipient. If a disability recipient refuses to file the statement or information, the disability benefit shall be suspended until the statement and information are filed. If the refusal continues for one year, the recipient's right to the disability benefit shall be terminated retroactive to the original suspension.
§15-2-31b. Annual report on each employer's disability retirement experience.

Not later than the first day of January, two thousand six, and each first day of January thereafter, the Board shall prepare a report for the preceding fiscal year of the disability retirement experience of the State Police. The report shall specify the total number of disability applications submitted, the status of each application as of the last day of the fiscal year, total applications granted or denied, and the percentage of disability benefit recipients to the total number of State Police employees who are members of the Fund. The report shall be submitted to the Governor and the chairpersons of the standing committees of the Senate and House of Delegates with primary responsibility for retirement legislation.
§15-2-32. Retired member not to exercise police authority; retention of group insurance.

A member who has been or shall be retired shall not, while in retirement status, exercise any of the powers conferred upon active members by section twelve of this article; but shall be entitled to receive free of cost to such member and retain as his or her separate property one complete standard uniform prescribed by section nine of this article: Provided, That such uniform may be worn by a member in retirement status only on such occasions as shall be prescribed by the Superintendent. The Superintendent is authorized to maintain at public expense for the benefit of all members in retirement status that group life insurance mentioned in section ten of this article. The Superintendent, when he or she shall be of opinion that the public safety shall require, may recall to active duty during such period as the Superintendent shall determine, any member who shall be retired under the provisions of section twenty-seven of this article, provided the consent of such member to reassume duties of active membership shall first be had and obtained. When any member in retirement shall reassume status of active membership such member, during the period such member shall remain in active status, shall not be entitled to receive retirement pay or benefits, but in lieu thereof, shall be entitled to receive that rate of salary and allowance pertinent to the rank or grade held by such member when retired. When such member shall be released from active duty he or she shall reassume the status of retirement and shall thereupon be entitled to receive appropriate benefits as provided by this article: Provided, That the amount of such benefits shall in no event be less than the amount determined by the order of the Retirement Board previously made in his or her behalf.
§15-2-33. Awards and benefits to dependents of member -- When member dies in performance of duty, etc.; dependent child scholarship and amount.

The surviving spouse or the dependent child or children or dependent parent or parents of any member who has lost or shall lose his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members while such member was or shall be engaged in the performance of his or her duties as a member of the division Department, or if said member shall die from any cause after having been retired pursuant to the provisions of section twenty-nine of this article, the surviving spouse or other dependent shall be entitled to receive and shall be paid from the Death, Disability and Retirement Fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime one or the other of two amounts, which shall become immediately available and which shall be the greater of:
(1) An amount equal to seven tenths of the salary received in the preceding twelve-month employment period by the deceased member: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
In addition thereto such surviving spouse shall be entitled to receive and there shall be paid to such person one hundred dollars monthly for each dependent child or children. If such surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each such dependent child or children from the Death, Disability and Retirement Fund a sum equal to twenty-five percent of the surviving spouse's entitlement. If there are is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the Death, Disability and Retirement Fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is but one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
Any person qualified as a surviving dependent child under this section shall, in addition to any other benefits due under this or other sections of this article, be entitled to receive a scholarship to be applied to the career development education of that person. This sum up to but not exceeding seven thousand five hundred dollars shall be paid from the Death, Disability and Retirement Fund to any university or college in this state or to any trade or vocational school or other entity in this state approved by the board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of those institutions so long as the recipient makes application to the Board on an approved form and under such rules as the Board may provide, and maintains scholastic eligibility as defined by the institution or the Board. The Board may by appropriate rules define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section.
Awards and benefits for a member's surviving spouse or dependents received under any section or any of the provisions of this retirement system shall be in lieu of receipt of any such benefits for such persons under the provisions of any other state retirement system. Receipt of benefits under any other state retirement system shall be in lieu of any right to receive any benefits under this retirement system, so that only a single receipt of retirement benefits shall occur.
For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
§15-2-34. Same -- When member dies from nonservice-connected causes.

In any case where a member while in active service of the division Department, before having completed twenty years of service as a member of the division Department, has died or shall die from any cause other than those specified in this article and not due to vicious habits, intemperance or willful misconduct on his or her part, there shall be paid annually in equal monthly installments from said Death, Disability and Retirement Fund to the surviving spouse of such member during his or her lifetime, or until such time as said surviving spouse remarries, a sum equal to one half of the salary received in the preceding twelve-month employment period by the deceased member: Provided, That if the member had not been employed with the division Department for twelve months prior to his or her death, the amount of monthly salary shall be annualized for the purpose of determining the benefit. Such benefit shall become immediately available upon the death of the member. If there is no surviving spouse, or the surviving spouse dies or remarries, there shall be paid monthly to each dependent child or children, from the Death, Disability and Retirement Fund, a sum equal to twenty-five percent of the surviving spouse's entitlement. If there are is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the Fund to the dependent parents of the deceased member during their joint lifetimes, a sum equal to the amount which a surviving spouse would have been entitled to receive: Provided, however, That when there is but one dependent parent surviving, that parent shall be entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
For the purposes of this section, the term "salary" does not include compensation paid for overtime service.
§15-2-37. Refunds to certain members upon discharge or resignation; deferred retirement.

(a) Any member who shall be discharged by order of the Superintendent or shall otherwise terminate employment with the division Department shall, at the written request of the member to the Retirement Board, be entitled to receive from the Retirement Fund a sum equal to the aggregate of the principal amount of moneys deducted from his or her salary and paid into the Death, Disability and Retirement Fund plus four percent interest compounded thereon calculated annually as provided and required by this article.
(b) Any member who has ten or more years of service with the division Department and who withdraws his or her contributions may thereafter be reenlisted as a member of the division Department, but may not receive any prior service credit on account of former service, unless following reenlistment the member shall redeposit in the Fund established in article two-a of this chapter the amount of the refund, together with interest thereon at the rate of seven and one-half percent per annum from the date of withdrawal to the date of redeposit, in which case he or she shall receive the same credit on account of his or her former service as if no refund had been made. He or she shall become a member of the Retirement System established in article two-a of this chapter.
(c) Every member who completes ten years of service with the division of public safety Department is eligible, upon separation of employment with the division Department, either to withdraw his or her contributions in accordance with subsection (a) of this section or to choose not to withdraw his or her accumulated contributions with interest. Upon attainment of age sixty-two, a member who chooses not to withdraw his or her contributions will be eligible to receive a retirement annuity. Any member choosing to receive the deferred annuity under this subsection is not eligible to receive the annual annuity adjustment provided in section twenty-seven-a of this article. When the Retirement Board retires any member under any of the provisions of this section, the Board shall, by order in writing, make an award directing that the member is entitled to receive annually and that there shall be paid to the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of the member while in status of retirement one or the other of two amounts, whichever is greater:
(1) An amount equal to five and one-half percent of the aggregate of salary paid to the member during the whole period of service as a member of the division of public safety Department; or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the member. The retiring member may choose, in lieu of such a life annuity, an annuity in reduced amount payable during the member's lifetime, with one half of such reduced monthly amount paid to his or her surviving spouse if any, for the spouse's remaining lifetime after the death of the member. Reduction of this monthly benefit amount shall be calculated to be of equal actuarial value to the life annuity the member could otherwise have chosen.

NOTE: The purpose of this bill is to enact comprehensive changes to the West Virginia State Police Death, Disability and Retirement System. The bill adds definitions of "law-enforcement officer," "partially disabled," "totally disabled" and "physical or mental impairment." The bill also makes technical changes such as updating the name of the State Police.
The bill also provides that a member receiving an annuity for partial disability incurred in performance of duty may be employed as an elected sheriff or appointed chief of police if it is shown to the Board that such employment is not inconsistent with the partial disability, but may not otherwise be employed in a law enforcement capacity. The bill specifies a limitation on compensation to be paid to health care providers to be not greater than that paid by the Workers' Compensation Commission. The bill requires that the Board receive a copy of the employment physical within thirty days following employment.
The bill adds substantial language regarding disability retirement, including, allowing an application for disability to be made by a person acting on member's behalf and allowing Superintendent to petition Board for member's disability when he or she deems the member disabled. The bill authorizes legislative rules with respect to retirement and specifies notification requirements.
The bill provides for judicial review of its decisions and allows the Board to withhold payment pending judicial review. The bill also mandates that a disability recipient file annual statement of earnings and sets forth a penalty for refusal or failure to do so. The penalty is forfeiture of benefits. Finally the bill requires an annual report of employer's disability retirement experience.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§§15-2-25b, 15-2-31a and 15-2-31b are new; therefore strike-throughs and underlining have been omitted.

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