H. B. 2564


(By Delegates Stalnaker, Amores, Craig, Fragale and Hall)
[Introduced ; referred to the
Committee on Pensions and Retirement then Finance.]




A BILL to amend and reenact §5-10D-1 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7, §16-5U-8, §16-5U-9, §16-5U-10, §16-5U-11, §16-5U-12, §16-5U-13, §16-5U-14, §16-5U-15, §16-5U-16, §16-5U-17, §16-5U-18, §16-5U-19, §16-5U-20, §16-5U-21, §16-5U-22, §16-5U-23, §16-5U-24, §16-5U-25, §16-5U-26, §16-5U-27, §16-5U-28, §16-5U-29, §16-5U-30, §16-5U-31, §16-5U-32, §16-5U-33 and §16-5U-34 , all relating to the Consolidated Public Retirement Board; providing that the Board administer the emergency medical services retirement system; reflecting the long-standing fiduciary obligation of Consolidated Public Retirement Board members to the plans they administer; clarifying the personal liability of board members to the retirement plans they administer; clarifying that board members shall discharge their duties in accordance with the law; establishing the emergency medical services retirement system; setting forth definitions; providing effective dates; establishing federal qualification requirements; providing for liberal construction; providing that plan is not a substitute for social security; providing for and setting membership standards; setting forth required contributions from members and employers; creating fund and providing for investments; providing for transfer from Public Employees Retirement; setting time limits; setting forth notice requirements and requiring a test case; commencement of benefits; federal law maximum benefit limitations and minimum required distributions; direct rollovers; providing for retirement credited through member's use of accrued annual or sick leave; providing for retirement benefits; setting forth annuity options; providing for refunds in certain circumstances; deferred retirement; forfeitures; awards and benefits for duty-related disability and from other causes; physical examinations; termination of disability; prior disability; awards and benefits to surviving spouse; additional death benefits and scholarships for dependent children; burial benefit; prohibiting double death benefits; loans to members; exemption from taxation, garnishment and other process; qualified domestic relation orders; fraud; criminal penalties; repayment; treatment of prior military service; pro rata reduction of annuities; effective date; starting date for benefits; limitation of county liability; and providing for no forfeiture of benefits if system terminates.

Be it enacted by the Legislature of West Virginia:
That §5-10D-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7, §16-5U-8, §16-5U-9, §16-5U-10, §16-5U-11, §16-5U-12, §16-5U-13, §16-5U-14, §16-5U-15, §16-5U-16, §16-5U-17, §16-5U-18, §16-5U-19, §16-5U-20, §16-5U-21, §16-5U-22, §16-5U-23, §16-5U-24, §16-5U-25, §16-5U-26, §16-5U-27, §16-5U-28, §16-5U-29, §16-5U-30, §16-5U-31, §16-5U-32, §16-5U-33 and §16-5U-34, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,

SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD

OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,

OFFICES, PROGRAMS, ETC.

ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated Public Retirement Board continued; members; vacancies; investment of plan funds.

(a) The Consolidated Public Retirement Board is continued to administer all public retirement plans in this state. It shall administer the Public Employees Retirement System established in article ten of this chapter; the Teachers Retirement System established in article seven-a, chapter eighteen of this code; the Teachers' Defined Contribution Retirement System created by article seven-b of said chapter; the West Virginia State Police Death, Disability and Retirement Fund created by article two, chapter fifteen of this code; the West Virginia State Police Retirement System created by article two-a of said chapter; the Death, Disability and Retirement Fund for deputy sheriffs created by article fourteen-d, chapter seven of this code; and the Judges' Retirement System created under article nine, chapter fifty-one of this code; the Death, Disability and Retirement Fund for deputy sheriffs established in article fourteen-d, chapter seven of this code; and the Emergency Medical Services Retirement System established in article five-u, chapter sixteen of this code. The Board is created as a public body corporate and is established to provide prudent fiscal administration and management of the foregoing retirement systems.
(b) Each member of the Board owes a fiduciary obligation to each of the retirement systems administered by the Board and to each of the members of those retirement systems, whether the member be retired or active. Members and employees of the Board are not liable personally, either jointly or severally, for any debt or obligation created by the Board:á Provided, That board members are personally liable for ultra vires acts, acts of malfeasance, acts in violation of the laws creating the various retirement systems or for gross negligence.
(b) (c) The membership of the Consolidated Public Retirement Board consists of:
(1) The Governor or his or her designee;
(2) The State Treasurer or his or her designee;
(3) The State Auditor or his or her designee;
(4) The Commissioner of the employee and insurance services Division of the Department of Administration;
(5) Four residents of the state, who are not members, retirants or beneficiaries of any of the Public Retirement Systems, to be appointed by the Governor, with the advice and consent of the Senate; and
(6) A member, annuitant or retirant of the Public Employees Retirement System who is or was a state employee; a member, annuitant or retirant of the Public Employees Retirement System who is not or was not a state employee; a member, annuitant or retirant of the Teachers Retirement System; a member, annuitant or retirant of the West Virginia State Police Death, Disability and Retirement Fund; a member, annuitant or retirant of the Deputy Sheriff's Death, Disability and Retirement Fund; and a member, annuitant or retirant of the Teachers' Defined Contribution Retirement System, all to be appointed by the Governor, with the advice and consent of the Senate.
(c) (d) The appointed members of the Board shall serve five-year terms. A member appointed pursuant to subdivision (6), subsection (b) of this section ceases to be a member of the Board if he or she ceases to be a member of the represented system. If a vacancy occurs in the appointed membership, the Governor, within sixty days, shall fill the vacancy by appointment for the unexpired term. No more than five appointees shall be of the same political party.
(d) (e) The Consolidated Public Retirement Board has all the powers, duties, responsibilities and liabilities of the Public Employees Retirement System established pursuant to article ten of this chapter; the Teachers Retirement System established pursuant to article seven-a, chapter eighteen of this code; the Teachers' Defined Contribution System established pursuant to article seven-b of said chapter eighteen of this code; the West Virginia State Police Death, Disability and Retirement Fund created pursuant to article two, chapter fifteen of this code; the Death, Disability and Retirement Fund for deputy sheriffs created pursuant to article fourteen-d, chapter seven of this code; and the Judges' Retirement System created pursuant to article nine, chapter fifty-one of this code and their appropriate governing boards. The Consolidated Public Retirement Board may propose for promulgation all rules necessary to effectuate its powers, duties and responsibilities pursuant to article three, chapter twenty-nine-a of this code: Provided, That the Board may adopt any or all of the rules, previously promulgated, of a retirement system which it administers.
(e) (f) The Consolidated Public Retirement Board shall continue to transfer all funds received for the benefit of the retirement systems within the consolidated pension plan as defined in section three-c, article six-b, chapter forty-four of this code, including, but not limited to, all employer and employee contributions, to the West Virginia Investment Management Board: Provided, That the employer and employee contributions of the Teachers' Defined Contribution System, established in section three, article seven-b, chapter eighteen of this code, and voluntary deferred compensation funds invested by the West Virginia Consolidated Public Retirement Board pursuant to section five, article ten-b of this chapter may not be transferred to the West Virginia Investment Management Board.
(f) (g) Notwithstanding any provision of this code or any legislative rule to the contrary, all assets of the public retirement plans set forth in subsection (a) of this section shall be held in trust. The Consolidated Public Retirement Board shall be a trustee for all public retirement plans, except with regard to the investment of funds: Provided, That the Consolidated Public Retirement Board shall be a trustee with regard to the investments of the Teachers' Defined Contribution System, the voluntary deferred compensation funds invested pursuant to section five, article ten-b of this chapter and any other assets of the public retirement plans administered by the Consolidated Public Retirement Board as set forth in subsection (a) of this section for which no trustee has been expressly designated in this code.
(g) (h) The Board may employ the West Virginia Investment Management Board to provide investment management consulting services for the investment of funds in the Teachers' Defined Contribution System.
(i) Board members shall discharge their duties in accordance with the laws, documents and instruments governing the retirement systems under their management, and shall discharge their duties with respect to the 401(a) plans for the exclusive purpose of providing benefits to participants and their beneficiaries.
(j) The changes made to this section in the two thousand five regular session of the Legislature are remedial in nature and merely constitute codification of existing case law and practices. Accordingly, these changes may be applied by a court in any lawsuit or action brought after the thirty-first day of December, two thousand five, regardless of when the act complained of occurred.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 5U.á EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.
§16-5U-1. Title.
This article is known and may be cited as the "West Virginia Emergency Medical Services Retirement System Act."
§16-5U-2. Definitions.
As used in this article, unless a federal law or regulation or the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member two and six-tenths percent per year of the member's final average salary for the first twenty years of credited service. Additionally, two percent per year for twenty-one through twenty-five years and one percent for twenty-six through thirty years will be credited with a maximum of sixty-seven percent. Member's accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of section nine-a of this article.
(1) The Board may increase the employees contribution to ten and five-tenths percent should the funding of the plan not reach seventy percent funded by the first day of July, two thousand ten. The Board shall decrease the contribution rate to eight and one-half percent once the plan funding reaches the seventy percent support objective as of any latter actuarial valuation date.
(2) Upon reaching the seventy-five percent actuarial funded level, as of an actuarial valuation date, the Board shall increase the two and six-tenths percent to two and three-quarters percent for the first twenty years of service. The maximum benefit will also be increased from sixty-seven percent to seventy percent.
(b) "Accumulated contributions" means the sum of all amounts deducted from the compensation of a member, or paid on his or her behalf as a result of covered employment together with regular interest on the deducted amounts.
(c) "Active military duty" means full-time active duty with any branch of the Armed Forces of the United States, including service with the National Guard or Reserve Military Forces when the member has been called to active full-time duty and has received no compensation during the period of that duty from any board or employer other than the Armed Forces.
(d) "Actuarial equivalent" means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the Retirement Board in accordance with the provisions of this article.
(e) "Annual compensation" means the wages paid to the member during covered employment within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard to any rules that limit the remuneration included in wages based upon the nature or location of employment or services performed during the plan year plus amounts excluded under Section 414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash or noncash fringe benefits or both, deferred compensation and welfare benefits. Annual compensation for determining benefits during any determination period may not exceed one hundred thousand dollars as adjusted for cost-of-living in accordance with Section 401(a)(17)(B) of the Internal Revenue Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the first period for which an amount is received as an annuity by reason of retirement.á For purposes of this subsection, if retirement income payments commence after the normal retirement age, "retirement" means the later of the last day the member worked in covered employment and the normal retirement age.
(h) "Board" means the Consolidated Public Retirement Board.
(i) "County commission or political subdivision" has the meaning ascribed to it in this code.
(j) "Covered employment" means either: (1) Employment as an emergency medical technician, emergency medical technician/ paramedic or emergency medical services/registered nurse and the active performance of the duties required of emergency medical services officers; or (2) the period of time which active duties are not performed but disability benefits are received under this article; or (3) concurrent employment by an emergency services officer in a job or jobs in addition to his or her employment as an emergency services officer where such secondary employment requires the emergency medical services officer to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to this code: Provided, That the emergency medical services officer contribute to the Fund created in this article the amount specified as an emergency medical services officer by this article.
(k) "Credited service" means the sum of a member's years of service, active military duty, disability service and annual leave service.
(l) "Emergency medical services officer" means an individual employed by the state, county or other political subdivision as a medical professional that is qualified to respond to medical emergencies, aids the sick and injured and arranges or transports to medical facilities, as defined by the West Virginia Office of Emergency Medical Services. This definition is construed to include ambulance providers and other services such as law enforcement, rescue or fire department personnel who primarily perform these functions and are not provided any other credited service benefits or retirement plans. These persons may hold the rank of emergency medical technician/basic, emergency medical technician/paramedic, emergency medical services/registered nurse or others as defined by the West Virginia Office of Emergency Medical Services and the Consolidated Public Retirement Board.
(m) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living with the member while the member was an adopting parent during any period of probation; or
(D) A stepchild of the member residing in the member's household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited college or university;
(B) Who was claimed as a dependent by the member for federal income tax purposes at the time of member's death; and
(C) Whose relationship with the member is described in paragraph (A), (B) or (C), subdivision (1) of this subsection.
(n) "Dependent parent" means the father or mother of the member who was claimed as a dependent by the member for federal income tax purposes at the time of the member's death.
(o) "Disability service" means service received by a member, expressed in whole years, fractions thereof or both, equal to one half of the whole years, fractions thereof, or both, during which time a member receives disability benefits under this article.
(p) "Effective date" means the first day of July, two thousand five.
(q) "Final average salary" means the average of the highest annual compensation received for covered employment by the member during any five consecutive plan years within the member's last ten years of service while employed, prior to any disability payment. If the member did not have annual compensation for the five full plan years preceding the member's attainment of normal retirement age and during that period the member received disability benefits under this article then "final average salary" means the average of the monthly salary determined paid to the member during that period as determined under section seventeen of this article multiplied by twelve.
(r) "Fund" means the West Virginia Emergency Medical Services Retirement Fund created by this article.
(s) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to payment for covered employment during which time active duties are performed. These hours shall be credited to the member for the plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to payment for covered employment during a plan year but where no duties are performed due to vacation, holiday, illness, incapacity including disability, layoff, jury duty, military duty, leave of absence or any combination thereof, and without regard to whether the employment relationship has terminated. Hours under this paragraph shall be calculated and credited pursuant to West Virginia Division of Labor Rules. A member will not be credited with any hours of service for any period of time he or she is receiving benefits under section fourteen or fifteen of this article; and
(3) Each hour for which back pay is either awarded or agreed to be paid by the employing county commission, irrespective of mitigation of damages. The same hours of service shall not be credited both under paragraph (1) or (2) of this subdivision and under this paragraph. Hours under this paragraph shall be credited to the member for the plan year or years to which the award or agreement pertains, rather than the plan year in which the award, agreement or payment is made.
(t) "Member" means a person first hired as an emergency medical services officer after the effective date of this article, as defined in subsection (r) of this section, or an emergency medical services officer first hired prior to the effective date and who elects to become a member pursuant to this article. A member shall remain a member until the benefits to which he or she is entitled under this article are paid or forfeited.
(u) "Monthly salary" means the portion of a member's annual compensation, which is paid to him or her per month.
(v) "Normal form" means a monthly annuity which is one twelfth of the amount of the member's accrued benefit which is payable for the member's life. If the member dies before the sum of the payments he or she receives equals his or her accumulated contributions on the annuity starting date, the named beneficiary shall receive in one lump sum the difference between the accumulated contributions at the annuity starting date and the total of the retirement income payments made to the member.
(w) "Normal retirement age" means the first to occur of the following:
(1) Attainment of age fifty years and the completion of twenty or more years of regular service, excluding active military duty, disability service and annual leave service.
(2) While still in covered employment, attainment of at least age fifty years and when the sum of current age plus years of service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least age sixty years and completion of ten years of service; or
(4) Attainment of age sixty-two years and completion of five or more years of service.
(x) "Partially disabled" means a member's inability to engage in the duties of an emergency medical services officer by reason of any medically determinable 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. A member may be determined partially disabled for the purposes of this article and maintain the ability to engage in other gainful employment which exists within the state but which ability would not enable him or her to earn an amount at least equal to two thirds of the average annual compensation earned by all active members of this plan during the plan year ending as of the most recent thirtieth day of June, as of which plan data has been assembled and used for the actuarial valuation of the plan. The Board may require submission of a member's annual tax return for purposes of monitoring the earnings limitation.
(y) "Public Employees Retirement System" means the West Virginia Public Employee's Retirement System created by West Virginia code.
(z) "Plan" means the West Virginia Emergency Medical Services Death, Disability and Retirement Plan established by this article.
(aa) "Plan year" means the twelve-month period commencing on the first day of July of any designated year and ending the following thirtieth day of June.
(bb) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the Board adopts in accordance with the provisions of this article.
(cc) "Retirement income payments" means the annual retirement income payments payable under the plan.
(dd) "Spouse" means the person to whom the member is legally married on the annuity starting date.
(ee) "Surviving spouse" means the person to whom the member was legally married at the time of the member's death and who survived the member.
(ff) "Totally disabled" means a member's 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 subdivision:
(1) A member is totally disabled only if his or her physical or mental impairment or impairments is so severe that he or she is not only unable to perform his or her previous work as an emergency medical services officer 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: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work. Substantial gainful employment is defined as an excess of one third of the average annual earnings.
(2) "Physical or mental impairment" is an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques. The Board may require submission of a member's annual tax return for purposes of monitoring the earnings limitation.
(gg) "Year of service" means a member shall, except in his or her first and last years of covered employment, be credited with year of service credit based upon the hours of service performed as covered employment and credited to the member during the plan year based upon the following schedule:
Hours of Service Year of Service Credited