COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 174
(By Senators Foster, Barnes, Lanham, McCabe and Plymale)
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[Originating in the Committee on Pensions;
reported February 2, 2006.]
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A BILL to amend and reenact §15-2-31a and §15-2-37 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §15-2-52, all
relating to the State Police Death, Disability and Retirement
Fund; clarifying earnings information required; requiring
examination of certain records; clarifying substantial gainful
activity, establishing earnings limits and providing for
annual adjustment; authorizing benefit termination for and
reapplication by disability retirants terminated for failure
to maintain eligibility due to income or type of employment;
requiring medical exam at applicant's expense on
reapplication; clarifying reinstatement for reenlisting
members; and providing for termination and recovery of
benefits for misrepresentation.
Be it enacted by the Legislature of West Virginia:
That §15-2-31a 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 a new section, designated §15-2-52, all
to read as follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§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 the 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, if this information is requested
timely.
(b) The board shall propose legislative rules in accordance
with the provisions of article three, chapter twenty-nine-a of this
code relating to the processing of applications and petitions for
disability retirement under this article.
(c) The board shall notify the 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.
(d) (1) The board may shall require a each disability benefit
recipient to file an annual certified statement of earnings, to
include the amount and source of earnings, and any other
information required in legislative rules which may be adopted
proposed by the board. The board may waive or modify the
requirement that a disability benefit recipient of total disability
benefits 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 each recipient. If a disability retirant refuses to file a
statement and other information required by the board, the
disability benefit shall be suspended, after notice and opportunity
to be heard, until the statement and information are filed.
(2) The board shall annually examine any information available
from the State Tax Commissioner on all recipients of disability
benefits pursuant to article ten, chapter eleven of this code.
(e) (1) A nonblind recipient earning annual income exceeding
the equivalent of eight hundred sixty dollars per month in the year
two thousand six, after impairment-related work expenses are
substracted from earnings, has engaged in substantial gainful
activity. A statutorily blind recipient has engaged in substantial
gainful activity in the year two thousand six if the recipient has
earned annual income exceeding the equivalent of one thousand four
hundred fifty dollars per month after impairment-related work
expenses are substracted from earnings.
(2) The substantial gainful activity dollar limit shall be
automatically adjusted annually to correspond to the dollar limit
as established and published by the United States Social Security
Administration for each year in accordance with methods published
in the Federal Register (FR6582905 December 29, 2000) and similar
methods used by the Social Security Administration applying the
average annual wage index.
(3) If after review of a disability retirant's annual
statement of earnings, tax records or other financial information,
as required or otherwise obtained by the board, the board determines that earnings of the recipient of total disability
benefits in the preceding year are sufficient to show that the
recipient engaged in substantial gainful activity, the disability
retirant's disability annuity shall be terminated by the board,
upon recommendation of the board's disability review committee and
after notice and opportunity to be heard, on the first day of the
month following the board's action.
(4) If the board obtains information that a recipient of
partial disability benefits is employed as a law-enforcement
officer, upon recommendation of the board's disability review
committee and after notice and an opportunity to be heard, the
board shall terminate the recipient's disability benefits on the
first day of the month following the board's action.
(f) Any person who wishes to reapply for disability retirement
and whose disability retirement has been terminated by the board
pursuant to this section may do so within ninety days of the
effective date of termination: Provided, That any person
reapplying for disability benefits shall undergo an examination at
the applicant's expense by an appropriate medical professional
selected by the board as part of the reapplication process.
(g) Notwithstanding other provisions in this section, any
person whose disability retirement has been terminated by the board
pursuant to this section may apply for regular retirement benefits
upon meeting the eligibility requirements of age and years of
service.
§15-2-37. Refunds to certain members upon discharge or resignation; deferred retirement.
(a) Any member who is discharged by order of the
superintendent or otherwise terminates employment with the
department, at the written request of the member to the retirement
board, is 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 State Police 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
Department and who withdraws his or her contributions withdrawing
contributions who may thereafter be reenlisted as a member of the
department but may shall not receive any prior service credit on
account of former service, unless following reenlistment the member
redeposits 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
department is eligible, upon separation of employment with the
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 is 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 State
Police 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 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 a life annuity,
an annuity in reduced amount payable during the member's lifetime,
with one half of the 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.
§15-2-52. Termination of benefits; procedures.
(a) Whenever the board determines that a person seeking benefits under the provisions of this article has made false
representation of a material fact in support of applying for or
retaining benefits or has falsified or permitted to be falsified
any record or records of the retirement system in support of
benefits, the board shall terminate any present benefit approved as
a result of the false statement or record. In addition, the board
shall initiate appropriate action to recover any benefits paid by
virtue of the false representation.
(b) Any termination of benefits pursuant to this section may
be appealed pursuant to the state administrative procedures act in
chapter twenty-nine-a of this code. The board may promulgate rules
in accordance with the provisions of article three of said chapter
regarding the procedure for termination of benefits and any
repayment of benefits.
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(NOTE: The purpose of this bill is to clarify benefit
termination and reapplication procedures for disability retirants
whose benefits are terminated for excess earnings or lack of
disability. The bill explains "substantial gainful activity,"
mandates the Consolidated Public Retirement Board to require
disability recipients to provide annual income statements, and
requires the Board to check any information available from the
State Tax Division to monitor recipients' continued eligibility.
The bill also clarifies provisions for reenlisting members and adds
a new section to provide for termination and recovery of benefits
gained as a result of misrepresentation.
Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.
§15-2-52 is new and therefore all underscorings and strike-
throughs have been omitted.)