hb3238 enr

ENROLLED
H. B. 3238

(By Delegate Mezzatesta)

[Passed April 14, 2001; in effect from passage.]

AN ACT to amend and reenact section twenty-one, article one-b, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections two, three, four, five, six, seven and eight, article seven, chapter eighteen-c of said code; and to further amend said article by adding thereto a new section, designated section nine, all relating to the PROMISE scholarship program; providing that the adjutant general may, in lieu of the tuition payment, pay an amount directly to members of the West Virginia National Guard who are participating in the PROMISE scholarship program; making additional findings with respect to the PROMISE scholarship program; changing definitions; abolishing the board and establishing a board of control; specifying certain elements for inclusion in residency requirements; providing for legislative rules and authorizing emergency rules; requiring submission federal student aid application/needs analysis form and an application for the PROMISE scholarship; providing for coordination of aid programs from all sources; providing that the restriction that the PROMISE scholarship in combination with aid from all other sources does not apply to members of the West Virginia National Guard, and recipients of the Underwood-Smith and engineering, science and technology scholarship programs; clarifying that advanced placement and dual credit course work are not included in the credit hour categories for determining eligibility; replacing "B" average with at least a 3.0 grade point average in required core and electives and other criteria as established by the board; replacing "B" average with appropriate academic progress toward completion of a degree as defined by the board at the undergraduate level; requiring determination and clarification of relationship with other financial aid; allocations to scholarship fund subject to legislative appropriation; providing that nothing requires specific appropriations or guarantees or entitles individuals to awards; and providing for scope and breadth of study of statewide task force on student financial aid to be expanded.

Be it enacted by the Legislature of West Virginia:

That section twenty-one, article one-b, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that sections two, three, four, five, six, seven and eight, article seven, chapter eighteen- c of said code be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section nine, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.

ARTICLE 1B. NATIONAL GUARD.

§15-1B-21. Tuition and fees for guard members at institutions of higher education.

(a) Any member of the national guard who is enrolled in a course of undergraduate study and is attending any accredited college, university, business or trade school located in West Virginia or is attending any aviation school located in West Virginia for the purpose of taking college-credit courses, may be entitled to payment of tuitions and fees at that college, university, business or trade school or aviation school during the period of his or her service in the national guard: Provided, That the adjutant general may prescribe criteria of eligibility for payment of tuition and fees at the college, university, business or trade school or aviation school: Provided, however, That such payment is contingent upon appropriations being made by the Legislature for this express purpose.

(b) The amount of the payment for members attending a state-supported school shall be determined by the adjutant general and may not exceed the actual amount of tuition and fees at the school. The amount of such payment for members attending a private school shall be determined by the adjutant general, but in no event may exceed the highest amounts payable at any state- supported school.

(c) Any member of the national guard who is enrolled in a course of postgraduate study and is attending any accredited college or university located in West Virginia, and is receiving payments under the army continuing education system, may be entitled to payment of tuition and fees at that college or university during his or her period of service in the national guard: Provided, That the sum of payments received under this subsection and the army continuing education system may not exceed the actual amount of tuition and fees at the school and in no event may exceed the highest amounts payable at any state- supported school. Such payments are contingent upon appropriations being made by the Legislature for this express purpose.

(d) The adjutant general may, in lieu of the tuition payment authorized by this section, pay an amount equal to the amount of tuition which otherwise would have been paid, directly to members of the West Virginia National Guard who are participating in the PROMISE scholarship program provided for in article seven, chapter eighteen-c of this code.

(e) The adjutant general shall administer the tuition and fee payments authorized under this section and shall propose policies to implement the provisions of this section.
CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.
ARTICLE 7. WEST VIRGINIA PROVIDING REAL OPPORTUNITIES FOR
MAXIMIZING IN-STATE STUDENT EXCELLENCE SCHOLARSHIP PROGRAM.
§18C-7-2. Legislative findings and purpose.

The Legislature hereby finds and declares that:

(a) The state's college-going rate does not compare favorably with the member states of the southern regional education board average, nor with the national average;

(b) West Virginia must have an educated work force in order to attract and retain the high wage, high skill jobs of the next century;

(c) A large percentage of West Virginia residents who graduate from the state's colleges and universities do not work in the state following graduation;

(d) The percentage of West Virginia's adult population over the age of twenty-five with at least a bachelor's degree is only fourteen percent and does not compare favorably with the member states of the southern regional education board average or with the national average;

(e) Increases in the level of education increases the income earned by an individual which enhances his or her quality of life;

(f) During the year one thousand nine hundred ninety-seven, an individual holding a bachelor's degree had an average earned income which was one hundred seventy-seven percent of the average income earned by a high school graduate;

(g) Students at all levels should have an incentive to perform at a high academic level;

(h) There is a need to provide parents with all tools possible to aid them in helping their children understand the importance of high achievement in high school and college;

(i) There is a financial need for many students who wish to attend state institutions of higher education within the state;

(j) The West Virginia higher education grant program is a vitally important source of financial assistance for needy residents of the state and should continue to receive strong financial support; and

(k) It is the intent of this article to establish a West Virginia PROMISE scholarship program to deal effectively with the findings set forth in this section.
§18C-7-3. Definitions.

(a) "Eligible institution" means:

(1) A state institution of higher education as is defined in section two, article one, chapter eighteen-b of this code;

(2) Alderson-Broaddus College, Appalachian Bible College, Bethany College, the College of West Virginia, Davis and Elkins College, Ohio Valley College, Salem International University, the University of Charleston, West Virginia Wesleyan College and Wheeling Jesuit University, all in West Virginia: Provided, That if any institution listed in this subdivision is not regionally accredited, it shall not be included as an eligible institution; or

(3) Any other regionally accredited institution in this state, public or private, approved by the board.

(b) "Board" means the West Virginia PROMISE scholarship board of control of the West Virginia PROMISE scholarship program as provided for in section four of this article.

(c) "Tuition" means the quarter, semester or term charges imposed by a state institution of higher education and all mandatory fees required as a condition of enrollment by all students.

§18C-7-4. Appointment of the PROMISE scholarship board of control; compensation; proceedings generally.

(a) On the effective date of this section, the board of the PROMISE scholarship program is abolished.

As soon as practical after the effective date of this section, the governor shall appoint the West Virginia PROMISE scholarship board of control comprised of fifteen members as follows:

(1) The chairperson of the higher education policy commission or a designee who is a member of the commission;

(2) The chancellor of the higher education policy commission or his or her designee;

(3) The state superintendent of schools or his or her designee;

(4) The secretary of education and the arts;

(5) The state treasurer or his or her designee;

(6) Two members appointed by the governor from a list of six persons nominated by the president of the Senate: Provided, That no more than two nominees may be from the same congressional district;

(7) Two members appointed by the governor from a list of six persons nominated by the speaker of the House of Delegates: Provided, That no more than two nominees may be from the same congressional district; and

(8) Six at-large private sector members representative of the state's business and economic community who have knowledge, skill and experience in an academic, business or financial field.

The ten appointed members shall be residents of the state. The ten appointed members shall be appointed by the governor with the advice and consent of the Senate. No more than six of the ten appointed members may be from the same political party. No more than four of the ten appointed members may be from the same congressional district.

(b) Appointed members shall serve a term of four years and may be reappointed at the expiration of their terms. In the event of a vacancy among appointed members, the governor shall appoint a person representing the same interests to fill the unexpired term. A person appointed to fill a vacancy shall be appointed only for the remainder of that term and is eligible for reappointment. Unless a vacancy occurs due to death, resignation or removal pursuant to subsection (e) of this section, an appointed member of the board shall continue to serve until a successor has been appointed and qualified as provided for in subsection (a) of this section. Of the initial appointments, the governor shall appoint three members to a one-year term, two members to a two-year term, three members to a three-year term and two members to a four-year term. Thereafter, all terms shall be for four years.

(c) Members of the board shall serve without compensation, but shall be reimbursed by the office of the secretary of education and the arts for expenses, including travel expenses, actually incurred by a member in the official conduct of the business of the board at the same rate as is paid the employees of the state.

(d) The secretary of education and the arts is the chairperson and presiding officer of the board. A majority of the members of the board constitute a quorum for the transaction of business.

(e) The members appointed by the governor may be removed by the governor for official misconduct, incompetence, neglect of duty or gross immorality, and then only in the manner prescribed by law for the removal by the governor of the state elective officers in accordance with section five, article six, chapter six of this code.

§18C-7-5. Powers of the West Virginia PROMISE scholarship board of control.

In addition to the powers granted by any other provision of this article, the board has the powers necessary or convenient to carry out the purposes and provisions of this article including, but not limited to, the following express powers:

(a) To adopt and amend bylaws;

(b) To propose legislative rules for promulgation in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to effectuate the purposes of this article;

(c) To invest any of its funds at the board's discretion, with the West Virginia investment management board in accordance with the provisions of article six, chapter twelve of this code. Any investments made under this article shall be made with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. Fiduciaries shall diversify plan investments to the extent permitted by law so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so;

(d) To execute contracts and other necessary instruments;

(e) To impose reasonable requirements for residency for students applying for the PROMISE scholarship which shall include that an eligible student must have completed at least one half of the credits required for high school graduation in a public or private high school in this state or have been provided instruction in the home or other approved place under Exemption B, section one, article eight, chapter eighteen of this code for the two years immediately preceding application. However, nothing in this subdivision may be construed to establish residency requirements for matriculation or fee payment purposes at state institutions of higher education;

(f) To contract for necessary goods and services, to employ necessary personnel and to engage the services of private persons for administrative and technical assistance in carrying out the responsibilities of the scholarship program;

(g) To solicit and accept gifts, including bequests or other testamentary gifts made by will, trust or other disposition, grants, loans and other aids from any source or to participate in any other way in any federal, state or local governmental programs in carrying out the purposes of this article;

(h) To define the terms and conditions under which scholarships shall be awarded with the minimum requirements being set forth in section six of this article; and

(i) To establish other policies, procedures and criteria necessary to implement and administer the provisions of this article.

§18C-7-6. Requirements for rules on PROMISE scholarship program; recommendations by PROMISE scholarship board of control; promulgation by higher education policy commission.

(a) The board shall recommend a legislative rule to the higher education policy commission to implement the provisions of this article. The higher education policy commission shall promulgate a legislative rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code which shall include at least the following provisions:

(1) A requirement that a scholarship will not pay an amount that exceeds the cost of tuition at state institutions of higher education and may include an allowance for books and supplies;

(2) A requirement that the student shall first submit the application/needs analysis form used to apply for federal student aid programs along with an application for the PROMISE scholarship.

(3) The amount of the PROMISE scholarship awarded in combination with aid from all other sources shall not exceed the cost of education at the institution the recipient is attending: Provided, That this restriction does not apply to members of the West Virginia National Guard, recipients of an Underwood-Smith teacher scholarship, and recipients of a West Virginia engineering, science and technology scholarship;

(4) Minimum requirements for eligibility for the scholarship which include:

(A) A provision that a student is only eligible to apply for a scholarship within two years of the time he or she graduates from high school or, in the case of home school students, passes the GED examination: Provided, That if a student has entered the United States armed services within two years after he or she graduates from high school, the student is eligible to apply for a scholarship within seven years of the time he or she enters military service: Provided, however, That once discharged from the military, the student is only eligible to apply for one year from the date of discharge;

(B) For individuals with zero to fifteen credits from an institution of higher education, excluding credits earned in advanced placement and dual credit courses while the student is enrolled in high school, that the individual: (i) Maintain at least a 3.0 grade point average in the required core and elective course work necessary to prepare students for success in post- secondary education at the two-year and baccalaureate levels as determined by the board; and (ii) Meet other criteria as established by the board;

(C) For individuals with more than fifteen credits from an institution of higher education, excluding credits earned in advanced placement and dual credit courses while the student is enrolled in high school, that the individual attain and maintain appropriate academic progress toward the completion of a degree at the undergraduate education level as defined by the board; and

(D) For all individuals, additional objective standards as the board considers necessary to promote academic excellence and to maintain the financial stability of the fund;

(5) A provision requiring the student to be enrolled in or in the process of enrolling in an eligible institution as defined in section three of this article;

(6) Provisions for making the highest and best use of the PROMISE scholarship program in conjunction with the West Virginia prepaid tuition trust act set forth in article thirty, chapter eighteen of this code;

(7) A determination of whether to require scholarship recipients to repay the amount of their scholarship, in whole or in part, if they choose to work outside the state after graduation;

(8) A determination of whether to set aside a portion of the scholarship funds for targeted scholarships for applicants accepted or enrolled in an engineering program, science program, technology program or other designated programs;

(9) A determination of what other sources of funding for higher education, if any, should be deducted from the PROMISE scholarship award;

(10) A determination and clarification of the relationship of PROMISE scholarship awards to all other aid a student may receive to provide maximum coordination. The determination shall consider the following:

(A) Methods to maximize student eligibility for federal student aid dollars;

(B) A requirement that PROMISE scholarship awards not supplant tuition and fee waivers; and

(C) Clarification of the relationship between the PROMISE scholarship program, tuition savings plans and other state student aid and loan programs;

(11) A method for the award of scholarships within the limits of available appropriations; and

(12) A method for applicants to appeal determinations of eligibility and continuation.

(b) The Legislature hereby declares that an emergency situation exists and, therefore, the policy commission may establish by emergency rule, under the procedures of article three-a, chapter twenty-nine-a of this code, a rule to implement the provisions of this section. If established, the rules shall be filed with the legislative oversight commission on education accountability and with the office of the secretary of state on or before the first day of September, two thousand one.
§18C-7-7. West Virginia PROMISE scholarship fund created.

(a) There is hereby created a special revenue fund in the state treasury which shall be designated and known as the "PROMISE scholarship fund". The fund shall consist of all appropriations to the fund from the West Virginia lottery, video lottery, taxes on amusement devices, and any other legislative appropriations, and all interest earned from investment of the fund and any gifts, grants or contributions received by the fund. The allocations to the fund shall be subject to appropriation by the Legislature. Nothing in this article shall require any specific level of funding by the Legislature nor guarantee or entitle any individual to any benefit or grant of funds.

(b) The board may expend the moneys in the fund to implement the provisions of this article.
§18C-7-8. PROMISE scholarship supplemental fund recreated, and promulgation of rules.

(a) The Legislature recognizes that the PROMISE scholarship program may lead to an increased number of individuals attending the state institutions of higher education, and therefore, it may contribute to increases in expenses greater than the additional tuition income generated by increased enrollment. Therefore, there is hereby created a special revenue fund in the state treasury which shall be designated and known as the "PROMISE scholarship supplemental fund". The fund shall consist of all appropriations to the fund and all interest earned from the investment of the fund and any gifts, grants or contributions received by the fund. The board shall expend the moneys in this fund to implement the provisions of this article and may only expend the moneys for state institutions of higher education.

(b) The board shall promulgate rules for administering the fund in accordance with article three-a, chapter twenty-nine-a of this code. The rules shall include the following:

(1) Provisions for distributing the moneys from the fund to state institutions of higher education: Provided, That the funds shall be divided among the state institutions of higher education in a reasonable manner to reflect the actual distribution of PROMISE scholarship students among the institutions; and

(2) A procedure for submitting a budget request to the governor: Provided, That nothing in this article shall require any appropriation by the Legislature.

§18C-7-9. Legislative review and determination of the scope and breadth of the charge of the statewide task force on student financial aid; legislative findings.

(a) The Legislature made findings and established goals for post-secondary education as set forth in section one-a, article one, chapter eighteen-b of this code which were enacted following an in-depth study of the needs of the state for a strong system of post-secondary education at the regular session of the Legislature, two thousand. For the state to realize its considerable potential in the twenty-first century, it must have a system for the delivery of post-secondary education which is competitive in the changing national and global environment, is affordable within the fiscal constraints of the state and for the state's residents to participate and has the capacity to deliver the programs and services necessary to meet regional and statewide needs. Among the greatest needs identified were to improve the levels of adult functional literacy, increase degree production, develop a system of comprehensive community and technical college education, expand access to graduate education and increase funding for the system of higher education generally so it has the needed capacity to pursue the state's public policy agenda.

(b) The Legislature finds that the many various programs for student financial aid, state and federal, are vital parts of a system that will enable the state to meet its objectives to expand and diversify the state's economy, increase the competitiveness of the state's workforce and the availability of professional expertise, improve the levels of post-secondary educational attainment of the state's residents and significantly improve the level of adult functional literacy in the state. Therefore, the Legislature hereby directs the statewide task force on student financial aid pursuant to section nine, article fourteen, chapter eighteen-b of this code to amend the scope and breadth of its study to adequately consider issues relevant to implementation of the PROMISE scholarship program.