The governor, though not so required, may in his discretion deliver over to justice any person found within this state who shall be charged with having committed without the jurisdiction of the United States any crime except treason, which by the laws of this state, if committed herein, would be punishable by death or imprisonment in the penitentiary. The governor shall require such evidence of the guilt of the person so charged, as would be necessary to justify an indictment against him, had the crime charged been committed in this state. The expense of the apprehension and delivery shall be defrayed by those to whom the delivery is made.
(b) Subject to the provisions of this article, the provisions of the constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state: Provided, That the demand or application of the executive authority of such other state is accompanied by an affidavit or sworn evidence that the demand or application is made in good faith for the punishment of crime, and not for the purpose of collecting a debt or pecuniary mulct, or of removing the alleged fugitive to a foreign jurisdiction with a view to serve him there with civil process.
(c) No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under subdivision (g) of this section, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found, or by information supported by affidavit, in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate or justice there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate or justice must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.
(d) When a demand shall be made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with crime, the governor may call upon the attorney general, any prosecuting officer, or the department of public safety, in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.
(e) When it is desired to have returned to this state a person charged in this state with crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.
(f) The governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in subdivision (b) of section ten of this article, with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state voluntarily (involuntarily).
(g) The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in subdivision (c) of this section, with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this article not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.
(b) Such warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provision of this article to the duly authorized agent of the demanding state.
(c) The governor may recall the warrant of arrest or may issue another warrant whenever he deems proper.
(d) Every such peace officer or other person empowered to make the arrest, shall have the same authority, in arresting the accused, to command assistance therein, as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.
(b) Any officer who delivers to the agent for extradition of the demanding state a person in his or her custody under the governor's warrant, in willful disobedience to subdivision (a) of this section, shall be guilty of a misdemeanor and, on conviction thereof shall be fined not more than one thousand dollars or be imprisoned not more than six months, or both.
(c) The officer or persons executing the governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may, when necessary, confine the prisoner in any city, county or regional jail; and the keeper of the jail shall receive and safely keep the prisoner until the officer or person having charge of him or her is ready to proceed on his or her route, the officer or person being chargeable with the expense of keeping.
The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in the other state, and who is passing through this state with such a prisoner for the purpose of immediately returning the prisoner to the demanding state may, when necessary, confine the prisoner in any city, county or regional jail; and the keeper of the jail shall receive and safely keep the prisoner until the officer or agent having charge of him or her is ready to proceed on his or her route, the officer or agent, however, being chargeable with the expense of keeping: Provided, That the officer or agent shall produce and show to the keeper of the jail satisfactory written evidence of the fact that he or she is actually transporting a prisoner to the demanding state after a requisition by the executive authority of the demanding state. The prisoner may not be entitled to demand a new requisition while in this state.
(d) Whenever any person within this state shall be charged on the oath of any credible person before any judge or magistrate of this state with the commission of any crime in any other state and, except in cases arising under subdivision (g), section seven of this article, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation or parole, or whenever complaint has been made before any judge or magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in the state and that the accused has been charged in the state with the commission of the crime, and, except in cases arising under subdivision (g), section seven of this article, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation or parole, and is believed to be in this state, the judge or magistrate shall issue a warrant directed to any peace officer commanding him or her to apprehend the person named therein, wherever he or she may be found in this state, and to bring him or her before the same or any other judge, magistrate, or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
(e) The arrest of a person may be lawfully made also by any peace officer, or a private person, without a warrant, upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or by imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him or her under oath setting forth the ground for the arrest as in the preceding section and thereafter his or her answer shall be heard as if he or she had been arrested on a warrant. Correctional officers may, additionally, make complaint against persons in their custody for whom they have a reasonable belief stand accused of crimes, punishable by death or confinement for a term exceeding one year, in the courts of another state.
(f) If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under subdivision (g), section seven of this article, that he or she has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, commit him or her to the county or regional jail for a time not exceeding thirty days, and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in subdivision (g) of this section, or until he or she shall be legally discharged.
(g) Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond, with sufficient sureties, and in a sum as he or she considers proper, conditioned for his or her appearance before him or her at a time specified in the bond, and for his or her surrender, to be arrested upon the warrant of the governor of this state.
(h) If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or her or may recommit him or her for a further period not to exceed sixty days, or a judge or magistrate may again take bail for his or her appearance and surrender as provided in subdivision (g) of this section, but within a period not to exceed sixty days after the date of the new bond.
(i) If the prisoner is admitted to bail, and fails to appear and surrender himself or herself according to the conditions of his or her bond, the judge, or magistrate, by proper order, shall declare the bond forfeited and order his or her immediate arrest without warrant if he or she is within this state. Recovery may be had on a bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.
(j) If a criminal prosecution has been instituted against the person under the laws of this state and is still pending, the governor, in his or her discretion, either may surrender him or her on demand of the executive authority of another state or hold him or her until he or she has been tried and discharged or convicted and punished in this state: Provided, That any person under recognizance to appear as a witness in any criminal proceeding pending in this state may in the discretion of the governor be surrendered on demand of the executive authority of another state or be held until criminal proceeding pending in this state has been determined: Provided, however, That any person who was in custody upon any execution, or upon process in any suit, at the time of being apprehended for a crime charged to have been committed without the jurisdiction of this state, may not be delivered up without the consent of the plaintiff in an execution or suit, until the amount of the execution has been paid, or until the person shall be otherwise discharged from the execution or process.
(k) The guilt or innocence of the accused as to the crime for which he or she is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this article has been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.
(b) When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein, at the time the application is made, and certifying that, in the opinion of the said prosecuting attorney, the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.
When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of his bail, probation or parole, the prosecuting attorney of the county in which the offense was committed, the parole board, or the warden of the institution or sheriff of the county, from which escape was made, shall present to the governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole, the state in which he is believed to be, including the location of the person therein at the time application is made.
The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or justice, stating the offense with which the accused is charged, or the judgment of conviction or of the sentence. The prosecuting attorney, parole board, warden or sheriff may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One copy of the application, with the action of the governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the secretary of state, to remain of record in that office. The other copies of all papers shall be forwarded with the governor's requisition.
(b) Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in subsections (a) and (d), section eight of this article, and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record, within this state a writing which states that he consents to return to the demanding state: Provided, That before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights with respect to the issuance and service of a warrant of extradition and with respect to obtaining a writ of habeas corpus as provided for in subsection (a), section nine of this article.
If and when such consent has been duly executed it shall forthwith be forwarded to the office of the governor of this state and be filed by him in the office of the secretary of state. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent: Provided, That nothing in this subdivision shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights, or duties of the officers of the demanding state or of this state.
(c) Prior Waiver of Extradition. Notwithstanding any other provision of this code, a law-enforcement or correction agency in the state of West Virginia holding a person who is charged by another jurisdiction with a violation of his or her terms of probation, parole, bail or other form of conditional release in another jurisdiction which is demanding the return of such person shall immediately deliver the person to the duly authorized agent of the demanding state, and without the requirement of a governor's warrant, if such person has previously executed a waiver of extradition as a condition of his or her current terms of probation, parole, bail or other form of conditional release in the demanding state and upon receipt of the following documentation from the demanding state:
(1) A certified copy of the previously executed waiver of extradition being held by the officials in the demanding state or an electronically or electromagnetically transmitted facsimile thereof;
(2) A certified copy of an order or warrant from the demanding state seeking the return of the person or an electronically or electromagnetically transmitted facsimile thereof; and
(3) A photograph, fingerprints or other evidence which identifies the person held by the law-enforcement or correction agency as the person who signed the waiver of extradition and who is named in the order or warrant, or an electronically or electromagnetically transmitted facsimile thereof.
(d) Nothing in this article contained shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for an offense committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any offense committed within this state, nor shall any proceedings had under this article which result in, or fail to result in, extradition, be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.
(e) After a person has been brought back to this state by, or after waiver of, extradition proceedings, he may be tried in this state for any offense which he may be charged with having committed here as well as that specified in the requisition for his extradition.
(f) Nothing in this section shall be construed to limit the authority of the governor, at his or her own instance, to refuse to honor an extradition demand from another jurisdiction.
The complainant in each case is answerable for all the actual costs and charges, and for the support in prison of any person so committed; and, if the charge for his or her support in prison shall not be paid when demanded, the jailer may discharge such person from prison.
Sections seven to thirteen of this article may be cited as the "Uniform Criminal Extradition Act."
sentences; reprieves; paroles; pardons.
The governor shall have power to remit fines and penalties, in
such cases and under such regulations as now are or may be
prescribed by law; to commute capital punishment, and, except where
the prosecution was carried on by the House of Delegates, to grant
reprieves, paroles and pardons, after conviction; but he shall
record in the journal of executive proceedings and communicate to
the Legislature, at its next session, the particulars of every case
of fine or penalty remitted, of punishment commuted, and of
reprieve, parole or pardon granted, with his reasons therefor. In
any case wherein the governor has power to grant a pardon, instead
of granting the same unconditionally, he may, after sentence, grant
it upon such conditions as he may deem proper, with the assent of
the person sentenced; and, for the purpose of carrying into effect
such conditional pardon, the governor may issue his warrant
directed to any proper officer, who shall obey and execute it,
instead of the sentence originally awarded. In any case in which
the governor shall exercise the power conferred on him by the
constitution to commute capital punishment, he may issue his order
to the warden of the penitentiary, requiring him to receive and
confine (and the warden shall receive and confine) in the
penitentiary, according to such order, the person whose punishment
is commuted. To carry into effect any commutation of punishment,
the governor may issue his warrant directed to any proper officer, who shall obey and execute the same.
(a) When judgment has been rendered against any person for a contempt of court, other than for nonperformance of, or disobedience to, some order, decree or judgment; or when any fine or penalty is imposed by the sentence of a court-martial, the governor may pardon the offense and remit the fine or penalty, either in whole or in part;
(b) When any fine has been imposed, if the same or any part thereof, when collected, would be payable to the state, and has not been so paid, the governor may, on good cause shown by affidavit, or on the recommendation of the judge or a majority of the jury who tried the case, remit so much as is payable to the state and has not been so paid, or a less amount, either unconditionally, or upon such terms and conditions as may seem to him right and proper.
The issuance of such notes, revenue bonds, certificates or other evidences of indebtedness shall be authorized by an executive order, and such notes, revenue bonds, certificates or other evidences of indebtedness shall be payable in such medium of payment and at such place or places, within or without the state, and may have such other terms and conditions as the governor determines. Such notes, revenue bonds, certificates or other evidences of indebtedness shall be signed by the governor, under the great seal of the state, and attested by the secretary of state. The governor and secretary of state may sign and attest such notes, revenue bonds, certificates or other evidences of indebtedness by facsimile signature. Such notes, revenue bonds, certificates or other evidences of indebtedness may be issued at such interest rate or rates as the governor deems reasonable and necessary to serve the best interests of the state and to enhance their marketability. Such notes, revenue bonds, certificates or other evidences of indebtedness shall be sold in such manner and on such terms and conditions as the governor may determine to be in the best interests of the state. Any revenue bonds issued hereunder shall be in registered form.
The governor may enter into trust agreements with banks or trust companies, within or without the state, and in such trust agreements or the executive order authorizing the issuance of such notes, revenue bonds, certificates or other evidences of indebtedness he may enter into valid and legally binding covenants with the holders of such notes, revenue bonds, certificates or other evidences of indebtedness as to the custody, safekeeping and disposition of the moneys within the "Fiscal Responsibility Fund" hereinafter created and as to any other matters or provisions which are deemed necessary or advisable by the governor to serve the best interests of the state and to enhance the marketability of such notes, revenue bonds, certificates or other evidences of indebtedness. The governor may contract for the provision of such professional and technical services as he may deem necessary or advisable in connection with the issuance of such notes, revenue bonds, certificates or other evidences of indebtedness, including without limitation accounting, actuarial, consulting, financial and legal services. The fees and expenses of such professionals and any and all other costs associated with the issuance of such notes, revenue bonds, certificates or other evidences of indebtedness shall be payable from the proceeds of such issuance.
Such notes, revenue bonds, certificates or other evidences of indebtedness shall be and constitute negotiable instruments under the Uniform Commercial Code of this state; shall, together with the interest thereon, be exempt from all taxation by the state of West Virginia, or by any county, school district, municipality or political subdivision thereof; and such notes, revenue bonds, certificates or other evidences of indebtedness shall not be deemed to be general obligations or debts of the state within the meaning of the constitution of the state of West Virginia, and the credit or the taxing power of the state shall not be pledged therefor, but such notes, revenue bonds, certificates or other evidences of indebtedness shall be payable only from the revenue pledged therefor as provided in this section.
The proceeds of any indebtedness issued hereunder shall be paid into a special fund hereby created in the state treasury named "The Fund for Redemption of Previous Liabilities". The governor may make disbursements from this fund to pay the reasonable fees, expenses and costs associated with the issuance of the indebtedness authorized by this section, and such other disbursements as he deems necessary to redeem previous liabilities for the ordinary expenses of the state.
There is hereby created in the state treasury a special fund named the "Fiscal Responsibility Fund" into which shall be paid on and after the first day of July, one thousand nine hundred eighty-nine, the amounts as and when specified in section thirty, article fifteen, chapter eleven of this code. All moneys deposited in said fund are pledged to the repayment of principal and interest on any notes, revenue bonds, certificates or other evidences of indebtedness issued pursuant to this section. A lien on the fund shall exist in favor of the holders of any notes, revenue bonds, certificates or other evidences of indebtedness issued under this section to the extent of such indebtedness. Any moneys not needed for repayment of principal and interest on and costs associated with the notes, revenue bonds, certificates or other evidences of indebtedness authorized by this section may be used to repay principal and interest on moneys previously transferred from the occupational pneumoconiosis fund pursuant to section eight-a, article four-b, chapter twenty-three of this code. Repayment to the occupational pneumoconiosis fund, if any, shall be made into the special account created in the state treasury by said section eight-a. Any amounts remaining in the "Fiscal Responsibility Fund" after provisions for repayment of indebtedness issued pursuant to this section and not otherwise used for repayment of moneys previously transferred from the occupational pneumoconiosis fund shall be transferred to the general revenue fund of this state on or before the first day of August, one thousand nine hundred ninety-two.
(b) All state officers, boards, commissions, departments and institutions required by law to make reports to the Governor, the Legislature or any administrative board or state official shall cover fiscal year periods.
(c) Annual reports shall be submitted in typewritten form, any legible form produced by mechanical means, on electronic media, to be filed in the same manner as a printed annual report, or transmitted electronically via the internet. Any annual report filed in an electronic format shall be considered as having satisfied the filing requirements.
(d) The Governor shall by executive order prescribe the general contents of the reports to be submitted to him or her. The form and format of the reports shall be as prescribed in this code.
(e) The Governor shall transmit, and may do so electronically, copies of the report to the Legislature and provide a copy of all such reports with the Division of Archives and History where the reports shall be kept as permanent records.
(f) All annual reports to the Legislature shall be submitted, and may do so electronically, to the Legislative Librarian.
(g) The Governor may at any time require information in writing, under oath, from any officer, board, department or commission of the executive department or the principal officer or manager of any state institution, upon any subject relating to the condition, management and expense of their respective offices or institutions.
The bond, if any, required by law to be given by any officer so temporarily appointed by the governor, shall be in such penalty as is required by law of the incumbent of such office.
Any vacancy in any other office filled by appointment, or in any office hereafter created to be filled by appointment, shall be filled by the same person, court or body authorized to make appointment to such office for the full term thereof.
(b) As used herein or as used in any proclamation, order, rule or regulation issued by the governor pursuant to this section, unless the context requires a different meaning, the terms or phrases "actual metered gallons," "distributor," "producer," "gallon," "gasoline," "importer," "person," "petroleum carrier," "purchase," "receive," "retail dealer," "sale," "special fuel," "supply tank," "tank wagon" and "user" shall have the same meanings ascribed to those terms or phrases in section two, article fourteen, chapter eleven of this code.
(c) When the public peace, safety, economy, revenue, health, welfare or interest of the people of this state is impaired or imperiled because of a shortage of gasoline or special fuel, and the governor so finds, the governor is hereby empowered and authorized and it shall be his duty to issue a proclamation declaring the existence of a fuel emergency in this state or any part thereof. Upon the issuance of such proclamation by the governor, the governor is hereby granted plenary power and authority to issue, amend, suspend or revoke orders, rules and regulations to:
(1) Allocate or distribute gasoline or special fuel to the extent permitted by any federal law relating to the allocation or distribution of gasoline or special fuel and rules and regulations promulgated thereunder or to the extent permitted by the appropriate federal agency.
(2) Control, restrict and regulate the sale by distributors, producers, importers and retail dealers of gasoline and special fuel to users by any appropriate means including, but not limited to, the establishment of quotas, rationing, specifications that certain users may purchase gasoline or special fuel only on certain days, and other conditions upon the purchase of gasoline or special fuel to the extent permitted by any federal law relating to the allocation or distribution of gasoline or special fuel and rules and regulations promulgated thereunder or to the extent permitted by the appropriate federal agency.
Any such order, rule or regulation shall have such statewide, regional, county or other area application, as the governor shall specify therein. Whenever the nature and severity of a fuel emergency varies from area to area in the state, the governor shall have plenary power and authority, within the limitations of subdivisions (1) and (2) above, to establish different allocation or distribution formulae, controls, restrictions and regulations for different areas of the state at different times.
(d) Any orders, rules or regulations issued pursuant to this section shall be valid only during the period of any such fuel emergency and may be issued or promulgated without complying with the provisions of chapter twenty-nine-a of this code: Provided, That a copy of every such order, rule or regulation shall be filed in the office of the secretary of state before the same is effective and the secretary of state shall, within five days thereafter, forward a certified copy thereof to the clerk of the county court of each county and every such clerk shall forthwith admit such order, rule or regulation to record in the miscellaneous records of the county court kept in the office of each such clerk, but such filing in the office of the secretary of state shall alone constitute constructive notice to any person affected by such order, rule or regulation: Provided, however, That the county court of each county shall, when the first such order, rule or regulation is admitted to record, forthwith cause to be published a notice to the effect that such order, rule or regulation is, and that all further orders, rules and regulations or record copies thereof shall be, available for inspection in the office of the county clerk of such county. Such notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be such county. A copy of any such order, rule or regulation certified by the secretary of state shall be admissible in any court in this state as proof of the contents thereof.
(e) The governor is hereby granted plenary power and authority to enforce any order, rule or regulation issued pursuant to this section and, in so doing, may secure the assistance of any state agency, the attorney general or his designate, the prosecuting attorneys of the several counties and any state or local law-enforcement agencies or officers. Such persons shall assist the governor in enforcing the provisions of any such order, rule or regulation so issued and promulgated by the governor when called upon to do so by the governor. The governor may petition any circuit court of this state for the issuance of a temporary restraining order or injunction or for any other remedy, as may be appropriate, to compel any person to comply with any such order, rule or regulation, and it shall be the duty of the attorney general and the prosecuting attorneys of the various counties to assist and cooperate with the governor in obtaining such relief. No injunction bond shall be required, and in the event of an appeal to the West Virginia supreme court of appeals, the filing of such appeal shall not stay enforcement of the final judgment of the circuit court enforcing any such order, rule or regulation.
(f) Whenever it appears to the governor that there exists a serious, direct and immediate threat to the health and safety of any persons in this state because of the failure or refusal of a producer or distributor to comply, in a timely manner, with an order, rule or regulation issued pursuant to the provisions of subsection (c) of this section, the governor shall have the authority to distribute or cause to have distributed from the supplies of gasoline or special fuel owned, retained or possessed by such producer or distributor a sufficient amount of gasoline or special fuel as may be required to alleviate any such emergency. Such producer or distributor shall be compensated by the user, consumer or retail dealer receiving such gasoline or special fuel at the then existing average market value, either retail value or wholesale value, as the case may be: Provided, That there shall be deducted from such compensation the amount necessary to pay for the cost of distribution of such gasoline or special fuel: Provided, however, That the governor shall be required to serve written notice of his intent to exercise the powers granted by this subsection to the parties involved: Provided further, That upon the issuance of such notice, the governor shall cause to be initiated those legal proceedings relevant to the enforcement of any order, rule or regulation as required by and hereinbefore set out in subsection (e) of this section: And provided further, That such order, rule or regulation issued by the governor shall not conflict with or be contrary to any federal law relating to the allocation or distribution of gasoline or special fuel and rules and regulations promulgated thereunder or to any power granted the governor by any federal agency.
(g) Any producer or distributor violating any provision of any such order, rule or regulation of the governor issued or promulgated pursuant to this section, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than twenty-five thousand dollars, or imprisoned in the county jail for not more than one year, or both fined and imprisoned. Any retail dealer violating any provision of any such order, rule or regulation of the governor issued or promulgated pursuant to this section, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars. Each day or part thereof that any such violation shall take place, or continue to take place, shall be deemed to constitute a distinct and separate offense and shall be punishable accordingly.
(h) When the governor determines that any such fuel emergency no longer exists, he shall issue a proclamation terminating all orders, rules or regulations issued pursuant to the provisions of this section.
(i) The provisions of this section shall expire on July one, one thousand nine hundred seventy-four.
(1) The ultimate user of the proceeds of the bonds is the State of West Virginia or any of its agencies, boards, commissions or departments; or
(2) The issuance or refunding of the bonds implicates the state's credit rating.
(b) Prior to any state agency, board or commission participating in any formal presentation to any nationally recognized rating agency, with respect to the proposed issuance or refunding of bonds where the ultimate user of the proceeds of the bonds is the State of West Virginia or any of its agencies, boards, commissions or departments, or the issuance or refunding of the bonds implicates the state's credit rating, the chair or director of the state agency, board or commission shall provide written notice to the Governor, the President of the Senate and the Speaker of the House of Delegates of the date, time and place of the formal presentation at least ten days in advance.
(c) All bond sale requirements established in this code shall apply unless contrary to the provisions of this section.
Therefore, it is the purpose of this article to implement the aforementioned provisions of the constitution, to enable the Legislature to carry out its constitutional responsibility by prescribing the form and detail of the itemization and classification of the proposed appropriations of the budget bill submitted to the Legislature by the governor, and in conjunction with the provisions of this act amending certain sections of articles one and two, chapter five-a, and section three, article four, chapter twelve, to ensure that the Legislature will be furnished the information needed to discharge such responsibility.
(b) The proposed appropriations in such bill for the judicial branch shall be itemized and classified by the governor in the identical amounts, language, form and detail as certified by the auditor and transmitted to the governor.
(1) "Personal services" which shall mean salaries, wages, and other compensation paid to full-time, part-time and temporary employees of the spending unit, but shall not include fees or contractual payments paid to consultants or to independent contractors engaged by the spending unit. Unless otherwise specified in the budget bill, appropriations for personal services shall include salaries of heads of spending units. Where a salary of a head of a spending unit, including a constitutional officer, is separately stated, all other personal services for the spending unit shall be designated in the bill as "Other Personal Services."
(2) "Current expenses" which shall mean operating costs other than personal services, and shall not include equipment, repairs and alterations, buildings or lands.
(3) "Equipment" which shall mean equipment items which have an appreciable and calculable period of usefulness in excess of one year.
(4) "Repairs and alterations" which shall mean repairs to structures and improvements to property which do not increase the capital asset.
(5) "Buildings" which shall include construction and alteration of structures and the improvement of lands and shall include shelter, support, storage, protection, or the improvement of a natural condition.
(6) "Lands" which shall mean the purchase of real property or interests in real property.
Nothing in this section shall prohibit the governor from listing in the budget bill any subclassifications and subitems of proposed expenditure under any or all of the above uniform items: Provided, That a total proposed expenditure for each uniform item shall be stated, and such total shall include the proposed expenditure for each subclassification and subitem, if any, listed under such uniform item.
(b) Notwithstanding the uniform items set forth in subsection (a) of this section, when the governor deems it necessary or convenient to establish separate line items for specific programs proposed to be undertaken or continued by a spending unit, or for specific purposes which do not fall within such uniform items, such separate line items may be included in the appropriations for the spending unit, and need not be itemized in accordance with the requirements of subsection (a). In such event, there shall be a separate line item for each such specific program or purpose. All other proposed appropriations for a spending unit or account shall be included within the uniform items prescribed in subsection (a): Provided, That there may be included in the itemization for any spending unit an item designated "unclassified," in an amount not exceeding one percent of the total amount of the proposed appropriations for such spending unit.
(c) Nothing in this section shall prohibit the governor from submitting proposed appropriations for a single spending unit under more than one account number, provided that such appropriations are itemized and classified in accordance with the requirements of this article.
(1) "Debt service" which means the payment of principal and interest due on all state bonds issued for the benefit of the state road fund;
(2) "General operations" which includes all expenses of administration of the division of highways;
(3) "Federal Aid Construction -- Interstate Program";
(4) "Nonfederal Aid Construction";
(5) "Appalachian Program";
(6) "Other Federal Aid Programs";
(7) "Inventory Purchases";
(8) "Maintenance";
(9) "Claims."
Any specific purposes which do not fall within the items in the subsection may be itemized and designated separately by the governor.
(b) Proposed appropriations for "State Aid to Schools" shall be itemized separately for each allowance set forth in section three, article nine-a, chapter eighteen of this code, for each allowance mentioned elsewhere in said article and chapter, and for any other purpose mentioned in said article and chapter for which an appropriation must be made from the general revenue fund.
Acts, 2005 Reg. Sess., Ch. 200.
Acts, 2005 Reg. Sess., Ch. 200.
Acts, 2005 Reg. Sess., Ch. 200.
Acts, 2005 Reg. Sess., Ch. 200.
Acts, 2005 Reg. Sess., Ch. 200.
Acts, 2005 Reg. Sess., Ch. 200.
Acts, 2005 Reg. Sess., Ch. 200.
Acts, 2005 Reg. Sess., Ch. 200.
Acts, 2003 Reg. Sess., Ch. 197.
(2) The council shall consist of eleven members who have professional, labor or managerial knowledge in science and technology development and operations and shall be appointed as follows:
(A) The governor shall appoint five members, with the advice and consent of the Senate. No more than three of the five members may belong to the same political party. Three of the five members shall also be from different congressional districts of the state, and, shall provide a broad state geographical distribution of members of the council;
(B) The governor shall appoint one member, with the advice and consent of the Senate, from a list of two persons recommended by the speaker of the House of Delegates;
(C) The governor shall appoint one member, with the advice and consent of the Senate, from a list of two persons recommended by the president of the Senate;
(D) The governor shall appoint two members, with the advice and consent of the Senate, from a list of four persons recommended by the chancellor of the university of West Virginia system;
(E) The governor shall appoint one member, with the advice and consent of the Senate, from a list of two persons recommended by the chancellor of the state college system of West Virginia; and
(F) The governor shall appoint one member, with the advice and consent of the Senate, from a list of two persons recommended by the council for community and economic development.
(b) The terms of the council members first taking office on or after the effective date of this legislation expire as designated by the governor at the time of their appointment, with three terms expiring at the end of the first year, four terms expiring at the end of the second year, and four terms expiring at the end of the third year. As the original appointments expire, each subsequent appointment is for a full three-year term. Any member whose term has expired shall serve until a successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. In cases of any vacancy in the office of a member, the vacancy shall be filled by the governor in the same manner as the original appointment was made.
(c) Members of the council are not entitled to compensation for services performed as members, but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties. A majority of serving members constitutes a quorum for the purpose of conducting business. The governor shall designate a chair, who is not a public official, for a term to run concurrently with the term of office of the member designated as chair. The council shall conduct all meetings in accordance with the open meeting law pursuant to article nine-a, chapter six of this code.
(d) The council shall prepare and publish an annual report of its activities and accomplishments and submit it to the governor and to the legislative joint committee on government and finance on or before the fifteenth day of December of each year.
(e) Each year, the council shall submit to the governor a list of science and technology projects recommended for funding. The projects shall serve to fulfill the policies established by the science and technology strategic plan. The recommendation shall itemize the funds requested and shall identify any expenditures that will be matched by federal funds, or matched by foundation, corporate or by other funds.
(f) The chair of the council also shall serve as the executive director of the council for his or her term of office. He or she shall hold a graduate degree and have professional experience in fields involving science and technology research or development. The expenses of the executive director shall be paid from funds provided by foundation grants, in-kind contributions or other funds obtained pursuant to subsection (b), section four of this article. The executive director shall provide or obtain scientific and technical information to support the administrative work of the council, and to that end may contract with the university system, a nonprofit organization or any state spending unit for research and administrative support.
(g) The executive director of the council shall be available to the governor, the chief technology officer within the office of the governor, the speaker of the House of Delegates and the president of the Senate, to analyze and comment upon proposed legislation and rules which relate to or materially affect state scientific and technical issues.
(A) Preparation of a comprehensive strategic plan and recommendation of programs in furtherance of the comprehensive strategic plan that will support and foster state science and technology research;
(B) Cooperation with appropriate state spending units to retain and enlarge existing state industries through technology expansion; and
(C) Formulation of plans to establish science and technology research centers at state colleges and universities.
(2) The council may seek public and private research grants and contracts, matching funds and procurement arrangements from the state and federal government, private industry and other agencies, in furtherance of its mission and programs.
(3) The council shall develop an initial comprehensive strategic plan that will support and foster economic growth in science and technology research and development in the state and shall provide the initial plan to the chief technology officer within the office of the governor and the joint committee on government and finance no later than the first day of July, one thousand nine hundred ninety-seven. The initial comprehensive strategic plan shall include, but not be limited to, the following:
(A) A science and technology policy;
(B) The identification of strengths and weaknesses in the basic science resources and research capabilities in the state;
(C) The identification of methods that will coordinate and engender collaborative research efforts between research entities throughout the state, whether public or private;
(D) The designation of areas for potential scientific and technological development, including those related to and having a direct impact upon the economic development of the state;
(E) Recommendations on how to improve and strengthen the partnership between the private sector, institutions of higher education and government;
(F) Recommendations on how to improve the infrastructure for research and research training;
(G) Recommendations on a system to transfer technology to the private sector in the state;
(H) Recommendations on information systems that serve the effectiveness and efficiency of state spending units and higher education and further the overall management goals and purposes of government;
(I) Recommendations on a tracking system for special needs students enrolled in the public schools and state colleges and universities, and the programs and services provided for those students;
(J) Recommendations on legislative changes required to improve the overall science and technology environment in the state; and
(K) Other recommendations on science and technology policy and programs as appropriate.
(4) The strategic plan may be updated and refiled on or before the first day of July of each year. The council shall submit an annual work plan each year beginning the first day of July, one thousand nine hundred ninety-eight, to the chief technology officer and the joint committee on government and finance.
(b) In developing its strategic plan, the science and technology council shall utilize its resources as well as the technical support available to it through the university of West Virginia system, the state college system of West Virginia, the West Virginia development office, the West Virginia experimental program to stimulate competitive research (EPSCoR), federal and state agencies, and other appropriate organizations that have an interest in fostering science and technology research and development in West Virginia.
(c) The council shall undertake to keep abreast of state and national scientific and technological developments and work to establish, foster and successfully conclude university, college and other scientific research projects or clusters.
(d) To reduce and avoid duplication of research work and expenditures, the council shall, as a part of its comprehensive strategic plan, formulate methods that will coordinate and generate collaborative efforts between research entities throughout West Virginia, whether public or private, and foster synergistic relationships among them. Cooperating agencies may contract with the council, as provided in section four of this article, so as to participate in science and technology projects, jointly or through the programs of the council with other participating institutions, government units and private business firms.
(b) The council may receive and accept gifts or grants from private foundations, corporations, individuals, devises and bequests or from other lawful sources. The funds shall be paid into a special account in the state treasury for the use and benefit of the science and technology advisory council.
(a) "Chief risk officer" means the person appointed to the position created in section three of this article and who is vested with authority to assist state spending units in planning and coordinating fiscal risk analysis and management activities that serve the effectiveness and efficiency of the individual state spending units, state executive agencies and further the overall management goals and purposes of government.
(b) "Fiscal risk analysis and management" means issues that arise out of the day-to-day operations of state government that put at fiscal risk the people, property or other assets of the state, the overall operation of state government and its ability to carry and acceptance of fiscal risks on decisions with potential fiscal impact of an amount of at least one million dollars: Provided, That the authority shall advise and make recommendations to the public employees insurance agency, the consolidated public retirement board, workers' compensation and the board of risk and insurance management on fiscal risk analysis and management functions and decisions with potential long term fiscal impact of any increases of program costs in excess of five percent.
(c) "Fiscal impact" means any anticipated budgetary or other financial impact that may result from the proposed expenditure, decision, or undertaking.
(b) The chief risk officer may employ the personnel necessary to carry out the work of the office and may approve reimbursement of costs incurred by employees to obtain education and training.
(1) Shall develop an organized approach to fiscal risk analysis and management;
(2) Shall provide, with the assistance of certain executive branch agencies, technical assistance to the administrators of the various state spending units in the design and implementation of fiscal risk analysis and management procedures and systems;
(3) Shall evaluate, with the assistance of certain executive branch agencies, the economic justification and suitability of acceptable fiscal risk levels, the management thereof, and related services and review and make recommendations on the need for acquisition of fiscal risk analysis, management consulting and actuarial services by the state spending units;
(4) Shall develop a mechanism for identifying those instances in which the sound application of fiscal risk analysis and management principles can assist agencies in reducing their exposure to or frequency of loss;
(5) Shall create new tools to assist agencies of government in fulfilling their duties, convene conferences and develop incentive packages to encourage the use of sound fiscal risk management principles;
(6) Shall engage in any other activities reasonably related to the findings and purposes set forth in section one of this article, as directed by the governor; and
(7) Shall charge a fee to be assessed by the chief risk officer to the state spending units for evaluations performed and technical assistance provided under the provisions of this article.
(1) Shall develop a unified and integrated structure of fiscal risk management for all state executive agencies that must be completed by the first day of July, two thousand two;
(2) May establish, based on need and opportunity, priorities and time lines for addressing the fiscal risk analysis requirements of the various executive agencies of state government;
(3) Shall exercise such authority inherent to the chief executive of the state as the governor may, by executive order, delegate, to overrule and supersede decisions made by the administrators of the various executive agencies of government with respect to fiscal risk analysis and management decisions and the acquisition of fiscal risk management services, including, but not limited to, management consulting contracts and contracts for actuarial and related services: Provided, That the provisions of this subdivision do not exempt the various executive agencies from complying with the provision of this code regarding audits and actuarial studies.
(4) Shall consult and work closely with staff of other executive agencies for advice and assistance in the formulation and implementation of administrative and operational plans and policies.
(b) If the chief risk officer evaluates the suitability of the related services under the provisions of subsection (3), section four of this article and determines that the goods or services to be purchased or the price requested for the same are not suitable, he or she shall, within ten days of receiving the notice from the state spending unit, notify the state spending unit, in writing, of any recommendations he or she has regarding the proposed purchase of the goods or services. If the state spending unit receives a written notice from the chief risk officer within the time period required by this section, the state spending unit shall not put the goods or services out for bid less than fifteen days following receipt of the notice from the chief fiscal management officer.
Acts, 2010 Reg. Sess., Ch. 32.
(1) Establish a Healthy Lifestyle Coalition to assure consistency of the public health and private sector approach to dealing with programs that address the problems that affect overweight and obese individuals; to provide a forum for discussing the issues that affect healthy lifestyles and to identify best practices that can be replicated. By the first day of July, two thousand five, the Governor shall appoint thirteen members of the Coalition whose terms shall be for a period of four years, and the members may be reappointed to a second term. The terms may be staggered by the Governor to assure continuity of experience on the coalition. Members shall represent state agencies, community organizations and other entities which have an interest and expertise in obesity. Members may not be compensated but shall receive reimbursement for expenses incurred while performing the business of the coalition. The Coalition shall meet monthly for at least the first eighteen months of the Coalition to develop and implement an action plan to meet the goals established by the Coalition;
(2) Establish a clinical advisory committee to assure a unified approach using the latest research to assure consistency in program development;
(3) Establish a statewide voluntary private sector partnership and recognition program for employers, merchants, restaurants and other private sector businesses to encourage the development or further advance current programs that encourage healthy lifestyles;
(4) Coordinate higher education training programs for dietary and exercise physiology students with rural health care providers;
(5) Coordinate existing health promotion initiatives to assure clear, concise and consistent communication;
(6) Solicit, accept and expend grants, gifts, bequests, donations and other funds from any source for programs that will enable the state to accomplish the goals of this program;
(7) Develop a cross-agency series of goals to ensure consistency throughout the system of providers and agencies working in the area of improving lifestyles;
(8) Establish as a goal to increase the prevalence of healthy weight among all people in the state because obesity leads to diabetes, heart disease, strokes and kidney failure. These diseases, often arising in older age as a result of unhealthy lifestyles that began during a person's youth, place an undue financial burden on individuals, the health care industry and state health care programs;
(9) Consider the resources of the local health departments and recommend ongoing relationships, as appropriate, between local health departments, family resource networks, faith-based organizations, cooperative extension services, farm bureaus and other health care providers;
(10) Encourage the development of incentives for participation in employee wellness programs. Incentives may be based upon, but should not be limited to, the employee's completion of health questionnaires or participating in healthy lifestyles initiatives, and may use experiences of successful initiatives that have occurred in this state. The action plan should include among its targets, state government employees in this incentive program;
(11) Build upon existing initiatives that focus on any of the coalition's goals, soliciting input from these initiatives and eliminating duplication of efforts;
(12) Report its progress annually by the first of December to the Legislative Oversight Commission on Health and Human Resource Accountability.
(b) Beginning the first day of July, two thousand five, those businesses voluntarily choosing to participate in the Healthy Lifestyles Program shall submit their own detailed programs to the Office of Healthy Lifestyles for review. The programs should be creative and unique, highlighting the efforts of the business to promote healthy lifestyles to West Virginians through sensible diet and physical fitness.
(c) The West Virginia Healthy Lifestyles program will develop a recognition program for private sector enterprises that develop or advance programs that address the problems affecting overweight and obese individuals and that promote a healthy lifestyle.
(d) Any business program promoting healthy lifestyles that is recognized by the Office of Healthy Lifestyles will be issued a universally recognized logo, suitable for public display by the business.
(e) Marketing of programs recognized by the Office of Healthy Lifestyles shall take place through all state agencies. The West Virginia Public Employees Insurance Agency, the Bureau for Medical Services and the West Virginia Workers' Compensation Commission shall aggressively market this program to their members for the purposes of health promotion among their members.
(f) The Office of Healthy Lifestyles shall market recognized programs to other businesses, as models, to help create additional programs promoting healthy lifestyles.
(g) The Office of Healthy Lifestyles shall report annually by the first day of December to the Legislative Oversight Commission on Health and Human Resources Accountability: (1) The number of participants; (2) the impact on businesses as established by a survey of participating businesses; and (3) the results of consumer satisfaction surveys all designed by the Office of Healthy Lifestyles.
(b) Where a preservation duplicate, as defined in section three, article eight, chapter five-a of this code, is made of a record filed with the secretary of state by photography, microphotography, digital imaging or other electronic means which accurately reproduces and preserves the record on microfilm, microfiche, optical disks or other unalterable electronic storage medium which complies with national standards or nationally accepted practice for permanent archival storage, the secretary of state may provide for the destruction of the original paper copy when the following conditions are met:
(1) The preservation duplicate has been created, reviewed for quality, indexed in a reasonable manner as provided by the secretary of state and determined to be accessible by means of the index;
(2) An additional archive copy of the preservation duplicate has been created and stored in a fireproof, secure storage location; and
(3) The original paper copy has been preserved for at least three months following the creation of the preservation duplicate.
(c) The original copies of the papers of the governor, including executive orders, proclamations, appointments, pardons and other documents signed by the governor, shall be retained permanently, regardless of whether a preservation duplicate has been created.
(d) The secretary of state shall have authority to determine the retention period for nonessential records.
(e) The secretary of state may, upon mutual agreement with the director of the division of archives and history, transfer to the division of archives and history those records of the secretary of state as may be identified as having primarily historic value in order to make those records more available for purposes of research.
(f) Following the expiration of the required retention period, the destruction of confidential original records shall be conducted in a manner designed to protect the secrecy of those records.
(g) Nothing in this section shall be deemed to require the secretary of state to destroy original records immediately upon the expiration of the retention period.
It is also the duty of the attorney general to render to the president of the Senate and/or the speaker of the House of Delegates a written opinion or advice upon any questions submitted to the attorney general by them or either of them whenever he or she is requested in writing so to do.
Upon request of any member of the West Virginia national guard who has been named defendant in any civil action arising out of that guardsman's action while under orders from the governor relating to national guard assistance in disasters and civil disorders, the attorney general shall appear as counsel for and represent such guardsman.
(1) For the purposes of this section, "agency of government" means:
(A) A department, division, bureau, board, commission or other agency or instrumentality within the executive branch of state government which may sue or be sued; or
(B) A political subdivision of this state or any board, department, commission, district or special district, council or other agency or instrumentality thereof whose liability or potential liability arises from a claim which is covered by property or liability insurance provided by the state board of risk and insurance management of West Virginia pursuant to the provisions of article twelve, chapter twenty-nine of this code.
(2) For the purposes of this section, "action" means a civil proceeding initiated in a court of general jurisdiction and shall not mean a proceeding initiated in or before, or an appeal taken to, an administrative agency, board or commission and shall not mean an appeal taken to a court from such an administrative proceeding or appeal.
(3) For the purposes of this section, "judgment" means a judgment, order or decree of a court the entry of which would require or otherwise mandate:
(A) An expansion of, increase in, or addition to the services, duties or responsibilities of an agency of government;
(B) An increase in the expenditures of an agency of government above the level of expenditures approved or authorized before the entry of the proposed judgment;
(C) The employment or other hiring of, or the contracting with, personnel or other entities by an agency of government in addition to the personnel or other entities employed or otherwise hired by, or contracted with or by the agency of government; or
(D) Payment of a claim based upon tort or contract by an agency of government as defined in paragraph (B), subdivision (1) of this subsection.
(b) To effectuate this policy, each proposed judgment which is within the scope of paragraph (a) of this section shall be lodged with the court as early as feasible but at least sixty days before the judgment is entered by the court, and true copies of the proposed order shall be served upon the attorney general of the state, the president of the West Virginia Senate and the speaker of the West Virginia House of Delegates. When an agency of government proposes to consent to a judgment, it shall file with the secretary of state, for publication in the state register, a notice of the proposed order and include therein a request for comment on the proposed order. The notice shall fix a date, time and place for the receipt of written statements and documents bearing on the appropriateness, propriety or adequacy of the proposed consent order. At the time of filing the notice of its action, the agency of government shall also file with the secretary of state a true copy of the proposed order. If alternative draft proposals are being considered, the full text of the additional draft proposals shall also be filed with the secretary of state. The agency of government proposing to consent to the entry of judgment shall also file with the secretary of state an estimate of the cost of implementing the proposed judgment as the cost relates to this state and to persons affected by the proposed judgment.
(c) Prior to entry of the judgment, or some earlier specified date, the attorney general will receive and consider and file with the court any written comments, views or allegations relating to the proposed judgment.
(d) The attorney general shall reserve the right (1) to withdraw or withhold his or her consent to the proposed judgment if the comments, views and allegations received concerning the proposed judgment disclose facts or considerations which indicate that the proposed judgment is inappropriate, improper or inadequate or (2) to support or oppose an attempt by any person to intervene in the action. If action which could be taken by the attorney general pursuant to the provisions of this subsection may be materially adverse to the interests of an agency of government or an officer or employee thereof whom the attorney general has previously represented in the same or a substantially related matter, the attorney general shall not proceed to act without the written consent of the agency of government or the affected officer or employee. In the absence of such consent, the attorney general shall provide for an independent special assistant attorney general to be retained to consider the comments, views and allegations received concerning the proposed judgment, and to pursue such action as may be deemed appropriate, in accordance with the provisions of this subsection.
(e) The attorney general may establish procedures for implementing the policy established by this section. Where it is clear that the public interest in the policy hereby established is not compromised, the attorney general may permit an exception to this policy in a specific case where extraordinary circumstances require a period shorter than sixty days or a procedure other than stated herein.
(f) Any agency of government which agrees to a consent judgment after the thirtieth day of June, one thousand nine hundred ninety-five, shall thereafter file an annual report, on or before the first day of November, setting forth the status of the action, the fiscal impact of the consent judgment upon the resources of the state, and the manner in which any cost to the state is met or will be met by appropriations authorized in the state budget. Such report shall be filed with the president of the West Virginia Senate and the speaker of the West Virginia House of Delegates.
All laws or parts of laws inconsistent with the provisions hereof are hereby amended to be in harmony with the provisions of this section.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
Acts, 1969 Reg. Sess., Ch. 13.
(a) "Eligible employee" means:
(1) Any regular full-time employee of the state or any spending unit of the state who is eligible for membership in any state retirement system of the State of West Virginia or other retirement plan authorized by the state: Provided, That the mandatory salary increase required by this article does not apply to any employee of the state whose compensation is fixed by statute or by statutory schedule other than employees described in this section. Clerks, deputy clerks and magistrate assistants of magistrate courts are eligible for the incremental salary increases provided in this article with the increases to be allowable in addition to the maximum salaries and compensation for the employee offices under the magistrate court system statutes of article one, chapter fifty of this code. Members of the Board of Parole are eligible for the incremental salary increases provided in this article with the increases to be allowable in addition to the salaries and compensation provided in section two-a, article seven, chapter six of this code. This article may not be construed to mandate an increase in the salary of any elected or appointed officer of the state;
(2) Any classified employee as defined in section two, article nine, chapter eighteen-b of this code who is an employee of a state institution of higher education, the Higher Education Policy Commission or the Council for Community and Technical College Education; or
(3) Any full-time faculty member as defined in section one, article eight, chapter eighteen-b of this code who is an employee of a state institution of higher education, the Higher Education Policy Commission or the West Virginia Council for Community and Technical College Education.
(b) "Years of service" means full years of totaled service as an employee of the State of West Virginia. For full-time faculty as defined in this section, each nine or more months of contracted employment during a fiscal year equals one full year of service; and
(c) "Spending unit" means any state office, department, agency, board, commission, institution, bureau or other designated body authorized to hire employees.
(b) Every employee becoming newly eligible as a result of meeting the three years of service minimum requirement on the first day of July in any fiscal year is entitled to the annual salary increase equal to sixty dollars times the employee's years of service, where he or she has not in a previous fiscal year received the benefit of an increment computation. Thereafter, the employee shall receive a single annual increment increase of sixty dollars for each subsequent fiscal year.
(c) These incremental increases are in addition to any across-the-board, cost-of-living or percentage salary increases which may be granted in any fiscal year by the Legislature.
(d) This section shall not be construed to prohibit other pay
increases based on merit, seniority, promotion or other reason, if
funds are available for the other pay increases: Provided, That
the executive head of each spending unit shall first grant the
mandated increase in compensation in this section to all eligible
employees prior to the consideration of any increases based on
merit, seniority, promotion or other reason.
(b) The West Virginia Division of Personnel and the Department of Health and Human Resources jointly shall develop pay rates and employment requirements to support the recruitment and retention of physicians, physician specialists, nurses, nursing directors, health service workers, health service assistants, health service associates or other positions at Mildred Mitchell-Bateman Hospital and William R. Sharpe, Jr. Hospital. Pay rates shall reflect the regional market rates for relevant positions. The pay rates and employment requirements shall be put into effect by July 1, 2009.
(c) Funding for the pay rates and employment requirements shall be provided from the appropriation to the Department of Health and Human Resources. Due to the limits of funding, the implementation of the pay rates and employment requirements shall not be subject to the provisions of article two, chapter six-c of this code. The provisions of this section are rehabilitative in nature and it is the specific intent of the Legislature that no private cause of action, either express or implied, shall arise pursuant to the provisions or implementation of this section.
(b) Every eligible employee, as defined in section one of this article, who is entitled upon retirement to credit his or her accrued annual and sick leave for extended insurance coverage as provided in section thirteen, article sixteen of this chapter and who has accumulated at least sixty-five days of unused sick leave may be paid, at his or her option, for unused sick leave in an amount of days as designated by the employee not to exceed the number of sick leave days that would reduce an employee's sick leave balance to less than fifty days: Provided, That any employee who applies for payment under this section may not be paid more than a total of $25,000, either at one time or over the course of multiple payments for unused sick leave.
(c) An employee who applies for payment under this section shall be paid at a rate equal to one quarter of his or her usual rate of daily pay during that calendar year.
(1) The "daily rate of pay" of an employee paid a monthly salary is calculated by multiplying the monthly salary by twelve and dividing that number by the number of workdays for that calendar year: Provided, That for any employee that falls under the provisions of subsection (d), section thirteen, article sixteen of this chapter, the highest monthly salary that the daily rate of pay shall be calculated by is $6,700. Any employee who falls under the provisions of said subsection and is paid more than $6,700 per month shall receive payment for unused sick leave at a rate equal to one quarter of the daily rate of pay of an employee paid a monthly salary of $6,700: Provided, however, That for any employee that falls under the provisions of subsection (e), section thirteen, article sixteen of this chapter, the highest monthly salary that the daily rate of pay shall be calculated by is $4,200. Any employee who falls under the provisions of said subsection and is paid more than $4,200 per month shall receive payment for unused sick leave at a rate equal to one quarter of the daily rate of pay of an employee paid a monthly salary of $4,200: Provided further, That any employee who falls under the provisions of subsection (g), section thirteen, article sixteen of this chapter is not eligible for payment under this section.
(2) As used in this section, "workday" does not include weekends.
(3) Any payment for unused sick leave may not be a part of final average salary computation.
(d) Payment for unused sick leave may be made upon application and after the Secretary of the Department of Administration verifies that the employee is eligible for payment under this section. Payments shall be made out of the fund established in subsection (g) of this section.
(e) Any eligible employee opting to receive payment in exchange for unused sick leave must contract, in a form to be prescribed by the Department of Administration, agreeing to reimburse the fund for the amount exchanged plus twelve percent per annum if the employee elects to separate from employment within sixty months of the date of the exchange pursuant to subsection (b) of this section. The Department of Administration shall pursue collection of the obligation, either by itself, or by contracting with a collection agency. For purposes of this section, "separation" does not include separation from employment by death or retirement, but does refer to any other manner in which employment may be terminated.
(f) Payments shall be made in the order that eligible employees apply for the payments so long as funds are available. In the event the fund is insufficient to pay all employees who have applied for payment in a fiscal year, employees who do not receive payment are eligible for payment in the next fiscal year, are not required to reapply and shall receive payment in the order in which they first applied, unless the employee chooses to withdraw the application prior to the next fiscal year.
(g) The special revenue account within the State Treasury known as the State Employee Sick Leave Fund is continued. The fund shall consist of moneys appropriated by the Legislature, moneys deposited into the fund in accordance with administrative rules of the Department of Administration and any interest or other return to moneys in the fund. The fund shall be administrated by the Secretary of the Department of Administration.
(h) The secretary shall promulgate rules pursuant to article three, chapter twenty-nine-a of this code to implement the provisions of this section. The rules shall include, but not be limited to, provisions for the application process and a rule authorizing the secretary to obtain reimbursement, where available and appropriate, to the State Employee Sick Leave Fund from any spending unit for a pro rata share of payments made under the provisions of this section to any employee whose salary is paid, in whole or in part, from a funding source other than the General Revenue Fund. The rules may also include provisions to adjust, when necessary, the highest monthly salary by which the daily rate of pay is calculated.
(i) Each spending unit, as defined in section one of this article, shall verify to the secretary whether an employee is eligible for payment under this section, shall verify the funding source or sources of the employee's salary and shall verify the total number of unused sick leave days for all employees at least once per year. The secretary shall maintain sick leave records for all spending units. All sick leave days for which an employee is paid as provided in this section shall be deducted from the employee's sick leave balance by the secretary and the secretary shall verify to each spending unit the amount of days that have been deducted from an employee's sick leave balance. An employee shall not be permitted to reacquire any sick leave days for which he or she received payment under the provisions of this section.
(j) The provisions of this section are retroactive to December 1, 2008, to the extent that the provisions apply to those employees who have previously applied for payment for unused sick leave and have not been paid.
Pursuant to the provisions of article ten, chapter four of this code, the state building commission shall continue to exist until the first day of July, two thousand.
(b) The Legislature hereby further finds that the said "State Building Revenue Bonds, Series 1968" were all sold and are now outstanding in the principal amount of twenty-four million two hundred thousand dollars; that the said "State Building Revenue Bonds, Public Safety Series" were all sold and are now outstanding in the principal amount of two million five hundred thousand dollars; and that said "State Building Revenue Bonds, Science and Cultural Center Series," in the principal amount of one million five hundred thousand dollars were sold and are now outstanding.
(c) The Legislature hereby further finds that the proceeds from the issuance and sale of the aforesaid "State Building Revenue Bonds, Series 1968," the aforesaid "State Building Revenue Bonds, Public Safety Series" and the aforesaid "State Building Revenue Bonds, Science and Cultural Center Series" have been expended or obligated in and for construction of or in connection with projects undertaken pursuant to this article, which projects are owned and held in the name of the state or the commission.
(d) The Legislature hereby further finds that the acquisition and construction of the aforesaid projects have been in the best interests of the state by providing additional essential office space and other related structures which are needed for the use of the state, and the officers, departments, agencies and public corporations of the state, and the fulfillment of other public uses and purposes.
(e) The Legislature further finds and declares that the supreme court of appeals of West Virginia has held that the former provisions of this article were unconstitutional to the extent that the same contemplated that the principal of and the interest on bonds issued by the commission would be paid solely from a fund to be created and maintained from general tax revenues of the state.
(f) The Legislature further finds and declares that the amendments made by this act to this article are intended (1) to modify the provisions of this article so as to cause the same to be in full compliance with the provisions of the constitution of the state of West Virginia, which said court held were violated by the former provisions of this article, and to be in full compliance with said decision of the supreme court of appeals of West Virginia, and (2) to accord statutory recognition to existing rights, legal and equitable, of the holders of bonds heretofore issued by the commission, afford security for the payment of the obligations evidenced thereby and provide a special fund for the payment of the obligations evidenced thereby.
(1) "Commission" means the state building commission of West Virginia or, if said commission shall be abolished, any board or officer succeeding to the principal functions thereof, or to whom the powers given to said commission shall be given by law;
(2) "Bonds" means bonds issued by the commission pursuant to this article;
(3) "Project" means collectively the acquisition of land, the construction, equipping, maintaining and furnishing of a building or buildings, together with incidental approaches, structures and facilities, herein authorized to be constructed;
(4) "Cost of project" includes the cost of construction, the cost of equipping and furnishing same, the cost of all land, property, material and labor which are deemed essential thereto, the cost of improvements, financing charges, interest during construction, and all other expenses, including legal fees, trustees', engineers' and architects' fees which are necessarily or properly incidental to the project;
(5) "General tax revenues of the state" means revenues of the state derived from the exercise of the power of taxation and available for appropriation by the Legislature for general public purposes and shall not include revenues of the state, or of any officer, department or agency thereof, derived from taxes levied, collected and dedicated for a special purpose or purposes or derived from sources other than taxes such as profits, fees or charges; and
(6) "Rent" or "rental" includes all moneys received for the use of any part of a project either from the state of West Virginia or any officer, department or public corporation thereof, or from any instrumentality or political subdivision of the state, or directly or indirectly, from the United States of America or any officer, department, agency, instrumentality or public corporation thereof: Provided, That nothing in this article shall be taken to authorize the payment by or on behalf of the state of any rent in excess of the fair rental value of property used by or for such state officer or department or public corporation in the exercise of his or its statutory duties.
(1) To sue and be sued, plead and be impleaded;
(2) To have a seal and alter the same at pleasure;
(3) To contract to acquire and to acquire, in the name of the commission or of the state, by purchase, lease, lease-purchase or otherwise, real property or rights or easements necessary or convenient for its corporate purposes and to exercise the power of eminent domain to accomplish those purposes;
(4) To acquire, hold and dispose of personal property for its corporate purposes;
(5) To make bylaws for the management and regulation of its affairs;
(6) With the consent of the attorney general of the state of West Virginia, to use the facilities of his or her office, assistants and employees in all legal matters relating to or pertaining to the commission;
(7) To appoint officers, agents and employees and fix their compensation;
(8) To make contracts, and to execute all instruments necessary or convenient to effectuate the intent of, and to exercise the powers granted to it by this article;
(9) To renegotiate all contracts entered into by it whenever, due to a change in situation, it appears to the commission that its interests will be best served;
(10) To construct a building or buildings on real property, which it may acquire, or which may be owned by the state of West Virginia, in the city of Charleston, as convenient as may be to the capitol building, together with incidental approaches, structures and facilities, subject to the consent and approval of the city of Charleston in any case as may be necessary; and, in addition, to acquire or construct a warehouse, including office space in the warehouse in Kanawha County for the West Virginia alcohol beverage control commissioner, and equip and furnish the office space; and to acquire or construct, through lease, purchase, lease-purchase or bond financing, hospitals or other facilities, buildings, or additions or renovations to buildings as may be necessary for the safety and care of patients, inmates and guests at facilities under the jurisdiction of and supervision of the division of health and at institutions under the jurisdiction of the division of corrections or the regional jail and correctional facilities authority; and to formulate and program plans for the orderly and timely capital improvement of all of the hospitals and institutions and the state capitol buildings; and to construct a building or buildings in Kanawha County to be used as a general headquarters by the division of public safety to accommodate that division's executive staff, clerical offices, technical services, supply facilities and dormitory accommodations; and to develop, improve and expand state parks and recreational facilities to be operated by the division of natural resources; and to establish one or more systems or complexes of buildings and projects under control of the commission; and, subject to prior agreements with holders of bonds previously issued, to change the systems, complexes of buildings and projects from time to time, in order to facilitate the issuance and sale of bonds of different series on a parity with each other or having such priorities between series as the commission may determine; and to acquire by purchase, eminent domain or otherwise all real property or interests in the real property necessary or convenient to accomplish the purposes of this subdivision. The rights and powers set forth in this subdivision shall not be construed as in derogation of any rights and powers now vested in the West Virginia alcohol beverage control commissioner, the department of health and human resources, the division of corrections or the division of natural resources;
(11) To maintain, construct and operate a project authorized under this article;
(12) To charge rentals for the use of all or any part of a project or buildings at any time financed, constructed, acquired or improved, in whole or in part, with the proceeds of sale of bonds issued pursuant to this article, subject to and in accordance with such agreements with bondholders as may be made as provided in this article: Provided, That on and after the effective date of the amendments to this section, to charge rentals for the use of all or any part of a project or buildings at any time financed, constructed, acquired, maintained or improved, in whole or in part, with the proceeds of sale of bonds issued pursuant to this article, subject to and in accordance with such agreements with bondholders as may be made as in this section provided, or with any funds available to the state building commission, including, but not limited to, all buildings and property owned by the state of West Virginia or by the state building commission, but no rentals shall be charged to the governor, attorney general, secretary of state, state auditor, state treasurer, the Legislature and the members of the Legislature, the supreme court of appeals, nor for their offices, agencies, official functions and duties;
(13) To issue negotiable bonds and to provide for the rights of the holders of the negotiable bonds;
(14) To accept and expend any gift, grant or contribution of money to, or for the benefit of, the commission, from the state of West Virginia or any other source for any or all of the purposes specified in this article or for any one or more of such purposes as may be specified in connection with the gift, grant or contribution;
(15) To enter on any lands and premises for the purpose of making surveys, soundings and examinations;
(16) To invest in United States government obligations, on a short-term basis, any surplus funds which the commission may have on hand pending the completion of any project or projects;
(17) To issue revenue bonds in accordance with the applicable provisions of this article for the purposes set forth in section eleven-a of this article; and
(18) To do all things necessary or convenient to carry out the powers given in this article.
(19) The power and authority granted to the state building commission pursuant to this section and sections seven, eight and eleven-a of this article to initiate, acquire, construct, finance or develop projects; to issue revenue bonds; or to exercise the power of eminent domain with respect to any project, shall terminate on the effective date of this section: Provided, That nothing herein shall be construed to affect the validity of any act of the state building commission prior to the effective date of this section or to impair the rights of bondholders with respect to bonds or other evidence of indebtedness issued prior to the effective date of this section. Following the effective date of this section, the secretary of administration may exercise any power expressly granted pursuant to this article with respect to any project or facility previously constructed or acquired, any existing contractual obligations, and any outstanding bonded indebtedness. Refunding bonds for any outstanding bonded indebtedness are authorized, subject to the provisions of article two-e, chapter thirteen of this code. The West Virginia economic development authority provided for in article fifteen, chapter thirty-one of this code is designated to act as the governing body whose authorizations and determinations are required for the purpose of refunding bonds.
(b) For renewals of contracts or agreements required to be reported by this section, the Secretary of Administration shall provide a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the owner of the property.
(c) Within thirty days after receipt of the contract, agreement or report, the committee shall meet and review the contract, agreement or report.
(b) Moneys in the special revenue account shall be appropriated to the state building commission and used exclusively, in accordance with appropriations by the Legislature, to pay costs, fees and expenses incurred, or to be incurred for the following purposes: (1) The investigation and pursuit of claims against manufacturers, suppliers and installers of asbestos or asbestos containing materials; (2) all services relating to the litigation involving the state and pertaining to asbestos or asbestos containing materials; (3) the location, treatment and abatement of asbestos or asbestos containing materials by the state; (4) the development of implementation, administration and management manuals pertaining to asbestos or asbestos containing materials and the treatment and/or abatement of asbestos or asbestos containing materials; (5) the design, implementation and management of all state buildings containing asbestos and asbestos containing materials for the proper treatment and/or abatement of asbestos conditions as they arise and as are needed; (6) all other related asbestos activities designed for the location, treatment and abatement of such asbestos or asbestos containing materials as are found in state buildings, including buildings under the control of the university of West Virginia board of trustees or the board of directors of the state college system, and as determined by the secretary of the department of administration; and (7) all costs incurred in the administration of the special revenue account.
(c) Any balance remaining in the special revenue account at the end of any state fiscal year shall not revert to the general revenue fund but shall remain in the special revenue account and shall be used solely in a manner consistent with this section: Provided, That over the three succeeding fiscal years after the effective date of this section, any appropriation made to the special revenue account from general revenue shall be repaid to the general revenue fund from moneys available in the special revenue account.
(d) Disbursements from the special revenue account shall be authorized by the secretary of the department of administration or his designee. Moneys in the special revenue account shall not be available for the payment of any personal injury claims, workers' compensation claims or other types of disability claims. Payment from the special revenue account may be made for any expense incurred by the attorney general prior to the effective date of this section, including any expense incurred in prior fiscal years, if the expense is directly related to the litigation of matters pertaining to asbestos and asbestos containing materials in which the state is involved.
No contract or contracts for the construction, remodeling, renovation or repair of any building or buildings or any approaches, structures or facilities incidental thereto, or for the equipping and furnishing of any building or buildings, when the anticipated expenditure therefor will exceed the sum of five thousand dollars, shall be entered into except upon the basis of competitive sealed bids: Provided, That effective with the effective date of the amendments to this section, no contract or contracts for the construction, remodeling, renovation or repair of any building or buildings or any approaches, structures or facilities incidental thereto, or for the equipping and furnishing of any building or buildings, when the anticipated expenditure therefor will exceed the sum of ten thousand dollars, shall be entered into except upon the basis of such bids. Such bids shall be obtained by public notice soliciting such bids published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county in which any such contract is to be performed. The publication shall be completed at least fourteen days prior to the final date for the submission of bids. The commission may in addition to such publication also solicit sealed bids by sending requests by mail to prospective bidders. The contract shall be awarded to the lowest responsible bidder, unless any and all bids are rejected, in which event new bids shall be sought by again publishing notice as aforesaid. Any bid, with the name of the bidder, shall be entered on a record and each record, with the successful bid indicated thereon, shall, after the award of any contract, be open to public inspection in the office of the secretary of the commission.
For projects which are to be leased by the commission to the regional jail and correctional facilities authority, legislative approval pursuant to the provisions of this section shall not be required if the projects have otherwise been approved by the Legislature in accordance with the provisions of subsection (m), section five, article twenty, chapter thirty-one of this code, and the limitations on the amount of revenue bonds which may be issued by the commission and the project costs shall be governed by the terms of any concurrent resolution adopted pursuant to that subsection.
(b) Notwithstanding anything in this article to the contrary, the commission is authorized to issue bonds, or otherwise finance or refinance the following projects, including the costs of issuance and sale of the bonds or financing, all necessary financial and legal expenses and creation of debt service reserve funds, in an amount not to exceed twenty-one million dollars:
(1) Any or all of the state office buildings and adjoining real property being lease-purchased in Beckley, Charleston, Clarksburg, Fairmont, Huntington and Parkersburg;
(2) A facility to be obtained or constructed by the commission and leased to the division of motor vehicles; and
(3) Property and buildings needed for state spending units in an amount not to exceed three million dollars.
(c) Notwithstanding any other provision of this section, the commission is authorized to issue bonds for the purposes set forth in section eleven-a of this article in the aggregate amount of one hundred million dollars, including the renegotiation, reissuance or refinancing of any bonds issued for that purpose. If the proceeds of bonds issued under this subsection exceeds the cost of the project or projects, the surplus shall be paid into the education, arts, sciences and tourism fund established in section eleven-a of this article.
(d) The commission shall acquire the property being lease-purchased in the city of Charleston, located at 601 Morris Street, through a loan from the consolidated fund. The loan shall be under the terms and conditions set forth in section nineteen, article six, chapter twelve of this code.
(b) The state building commission shall, by resolution, in accordance with the provisions of this article, issue revenue bonds of the commission from time to time, to pay for a portion of the cost of constructing, equipping, improving or maintaining capital improvement projects under this section or to refund the bonds, at the discretion of the authority. The principal amount of the bonds issued under this section shall not exceed, in the aggregate, one hundred million dollars. Any revenue bonds issued on or after the first day of January, one thousand nine hundred ninety-six, which are secured by lottery proceeds shall mature at a time or times not exceeding twenty-five years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable solely from the special fund provided in this section for the payment.
(c) There is hereby created in the state treasury a special revenue fund named the "education, arts, sciences and tourism debt service fund" into which shall be deposited on and after the first day of July, one thousand nine hundred ninety-six, the amounts specified in section eighteen, article twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section. The commission may further provide in the resolution and in the trust agreement for priorities on the revenues paid into the education, arts, sciences and tourism debt service fund as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The bonds issued pursuant to this section shall be separate from all other bonds which may be or have been issued from time to time under the provisions of this article. The education, arts, sciences and tourism debt service fund shall be pledged solely for the repayment of bonds issued pursuant to this section. On or prior to the first day of May of each year, commencing the first day of May, one thousand nine hundred ninety-six, the commission shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the education, arts, sciences and tourism debt service fund have been pledged, or will be pledged, for repayment pursuant to this section.
After the commission has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the education, arts, sciences and tourism debt service fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.
(d) The commission shall expend twenty-five million dollars of the bond proceeds for certified capital improvement projects at state institutions of higher education. For the purposes of certifying the projects which will receive funds from the bond proceeds, a committee shall be established and comprised of the governor, or his or her designee, the secretary of the department of administration, the secretary of the department of education and the arts, the chancellor of the university of West Virginia board of trustees and the chancellor of the board of directors of the state college system. The committee shall meet as often as necessary and take recommendations from any source whatever regarding the capital improvement projects at state institutions of higher education. The committee shall meet within forty-five days of the effective date of this section. Prior to making its recommendations, the committee shall conduct at least two public hearings, one of which must be held outside of Kanawha County. Notice of the time, place, date and purpose of the hearing shall be published in at least one newspaper in each of the three congressional districts at least fourteen days prior to the date of the public hearing. On or before the fifteenth day of September, one thousand nine hundred ninety-six, the committee shall certify to the commission a list of those capital improvement projects at state institutions of higher education which will receive funds from the proceeds of bonds issued pursuant to this section. Once certified, the list may not thereafter be altered or amended other than by legislative enactment.
(e) The commission shall expend up to twenty-six million dollars from the proceeds of the bonds authorized by this section to pay a portion of the costs of projects certified under this subsection for development, maintenance or promotion of arts and sciences or constructing and equipping a center for arts and sciences of West Virginia located on a site acquired for that purpose. Any proceeds expended to pay a portion of project costs to construct and equip a center for arts and sciences of West Virginia shall not exceed forty percent of the total cost of the project and permanent endowments for operation and maintenance, and bond proceeds shall not be expended until sixty percent of the total cost has been committed from sources other than bond proceeds. For the purposes of certifying the projects which will receive funds from the bond proceeds under this subsection, a committee shall be established and comprised of the governor, or his or her designee, the secretary of the department of administration, the director of the division of natural resources, the director of the West Virginia development office and a representative of the capitol building commission, other than the secretary of the department of administration, who shall be selected by the capitol building commission. The capitol building commission shall select its representative within thirty days of the effective date of this section. The committee shall meet as often as necessary and take recommendations from any source whatever regarding which projects should be certified. The committee shall meet within forty-five days of the effective date of this section. Prior to making its determination, the committee shall conduct one public hearing on the projects to be certified under this subsection. Notice of the time, place, date and purpose of the hearing shall be published in at least one newspaper in each of the three congressional districts at least fourteen days prior to the date of the public hearing. The committee shall make its determination as to whether bond proceeds will be expended for the purposes set forth in this subsection and the amount to be expended for each project, on or before the fifteenth day of June, one thousand nine hundred ninety-six. Thereafter, the decision may not be altered or amended other than by legislative enactment. The commission is authorized to acquire by purchase or lease real property to be used as the site for a center for arts and sciences of West Virginia; and notwithstanding the provisions of section seven of this article, enter into a long-term lease agreement with a nonprofit corporation organized under the laws of this state for operation and maintenance of the center. The nonprofit corporation shall, as consideration for any long-term lease agreement, complete the construction and equipping of the center and demonstrate to the satisfaction of the commission its financial ability to operate and maintain the center during the term of the lease agreement. The nonprofit corporation shall have at least nine members on its board of directors which are appointed by the governor with the advice and consent of the Senate. Of the nine appointed members, three shall be selected from each congressional district: Provided, That none of the appointed members shall be a resident of Kanawha County. The members appointed by the governor with the advice and consent of the Senate shall serve on the board for three-year staggered terms. Of the members first appointed by the governor, one from each congressional district will serve a three-year term, one from each congressional district will serve a two-year term and one from each congressional district shall serve a one-year term.
(f) The commission shall expend the balance of the bond proceeds for certified projects at state parks, the capitol complex or other tourism sites. The committee established in subsection (e) of this section shall certify to the commission on or before the fifteenth day of September, one thousand nine hundred ninety-six, a list of those capital improvement projects at state parks, the capitol complex or other tourism sites which will receive funds from the proceeds of bonds issued pursuant to this section. The committee shall meet as often as necessary and take recommendations from any source whatever regarding the capital improvement projects at state parks, the capitol complex or other tourism sites in this state. The committee shall meet within forty-five days of the effective date of this section. Prior to making its recommendations, the committee shall conduct at least two public hearings on the projects to be certified under this subsection, one of which must be held outside of Kanawha County. Notice of the time, place, date and purpose of the hearing shall be published in at least one newspaper in each of the three congressional districts at least fourteen days prior to the date of the public hearing. Once certified, the list may not thereafter be altered or amended other than by legislative enactment.
(b) The provisions of subsection (f), section eleven-a of this article requiring public hearing do not apply to transfers of funds under subsection (a) of this section.
(c) The commission shall report all details of any transfer made pursuant to this section to the joint committee on government and finance within ten days of the date of the transfer.
(b) The provisions of subsection (f), section eleven-a of this article requiring public hearing do not apply to transfers of funds under subsection (a) of this section.
(a) The term "wages" means all remuneration for employment as defined herein, including the cash value of all remuneration paid in any medium other than cash, except that the term may not include that part of the remuneration which, even if it were paid for "employment" within the meaning of the Federal Insurance Contributions Act, would not constitute "wages" within the meaning of that act.
(b) The term "employment" means any service performed by an employee in the employ of the state, or any political subdivision thereof, or any instrumentality of either, for the employer, except service which in the absence of an agreement entered into under this article would constitute "employment" as defined in section two hundred nine of the Social Security Act.
(c) The term "employee" includes an officer of the state, or one of its political subdivisions or instrumentalities, or members of the state Legislature and part-time employees of the state Legislature.
(d) The term "state agency" means the state auditor.
(e) The term "federal agency" means in each case a federal officer, department or agency as is charged on behalf of the federal government, by or under the applicable federal law, with the particular federal functions referred to in this article in connection with that term.
(f) The term "political subdivision" includes any county, municipal corporation or school district.
(g) The term "instrumentality", when referring to an instrumentality of a state or political subdivision, includes only a legal entity which is separate and distinct from the state or the subdivision and whose employees are not by virtue of their relation to the entity employees of the state or such subdivisions.
(h) The term "applicable federal law" refers to provisions of federal law, including federal regulations and requirements issued pursuant thereto, if and when enacted, as provided for extending the benefits of Title II of the Social Security Act to employees of states, political subdivisions and their instrumentalities.
(i) The term "Social Security Act" means the act of Congress approved the fourteenth day of August, one thousand nine hundred thirty-five, chapter five hundred thirty-one, forty-nine statutes six hundred twenty, officially cited as the "Social Security Act", as the act has been and may, from time to time, be amended.
(j) The term "Federal Insurance Contributions Act" means subchapter A, chapter nine of the Federal Internal Revenue Code as the code has been and may, from time to time, be amended.
(1) Benefits will be provided for employees whose services are covered by the agreement, and their dependents and survivors, on the same basis as though such services constituted employment within the meaning of Title II of the Social Security Act.
(2) The state will pay to the federal agency, at such time or times as may be prescribed by the applicable federal law or by regulation of the federal agency, contributions with respect to wages, as defined in section two of this article, equal to the sum of the taxes which would be imposed by sections one thousand four hundred and one thousand four hundred ten of the Federal Insurance Contributions Act if the services covered by the agreement constituted employment within the meaning of that act.
(3) Such agreement shall be effective with respect to services in employment covered by the agreement performed after a date specified therein but shall in no event cover any such services performed prior to January first, one thousand nine hundred fifty-one.
(4) All services which constitute employment as defined in section two and are performed in the employ of the state by employees of the state, shall be covered by the agreement.
(5) All services which (a) constitute employment as defined in section two (b) are performed in the employ of a political subdivision or in the employ of an instrumentality of either the state or a political subdivision, and (c) are covered by a plan which is in conformity with the terms of the agreement and has been approved by the state agency under section five, shall be covered by the agreement.
(b) The state agency is hereby authorized to enter on behalf of the state into an agreement, consistent to the extent practicable with the terms and provisions of this article, with the appropriate agency or agencies of any other state or states and with the federal agency, whereby the benefits of the federal old-age and survivors insurance system shall be extended to employees of any instrumentality jointly created by this state and such other state or states.
(b) The contribution imposed by this section shall be collected by the state by deducting the amount of the contribution from wages as and when paid, but failure to make such deduction shall not relieve the employee from liability for such contribution.
(c) If more or less than the correct amount of the contribution imposed by this section is paid or deducted with respect to any remuneration, proper adjustments, or refund if adjustment is impracticable, shall be made, without interest, in such manner and at such times as the state agency shall prescribe.
(1) It is in conformity with the requirements of the applicable federal law and with the agreement entered into under section three.
(2) It provides that all services which constitute employment as defined in section two and are performed in the employ of the political subdivision or instrumentality, or in the employ of any member of a joint coverage unit submitting the plan, by any employees thereof, shall be covered by the plan.
(3) It specifies the source or sources from which the funds necessary to make the payments required by paragraph (1) of subsection (c) and by subsection (d) are expected to be derived and contains reasonable assurance that such sources will be adequate for such purpose.
(4) It provides for such methods of administration of the plan by the political subdivision or instrumentality or members of the joint coverage unit as are found by the state agency to be necessary for the proper and efficient administration of the plan.
(5) It provides that the political subdivision or instrumentality or members of the joint coverage unit will make such reports, in such form and containing such information, as the state agency may from time to time require, and comply with such provisions as the state agency or the federal agency may from time to time find necessary to assure the correctness and verification of such reports.
(6) It authorizes the state agency to terminate the plan in its entirety or, in the discretion of the state agency, as to any member of a joint coverage unit, if it finds that there has been a failure to comply substantially with any provisions contained in such plan, such termination to take effect at the expiration of such notice and on such conditions as may be provided by regulations of the state agency and be consistent with applicable federal law.
(b) The state agency shall not finally refuse to approve a plan submitted under subsection (a), and shall not terminate an approved plan, without reasonable notice and opportunity for hearing to each political subdivision or instrumentality affected thereby.
(c) (1) Each political subdivision or instrumentality as to which a plan has been approved under this section shall pay into the contribution fund, with respect to wages, as defined in section two of this article, at such time or times as the state agency may by regulation prescribe, contributions in the amounts and at the rates specified in the applicable agreement entered into by the state agency under section three.
(2) Every political subdivision or instrumentality required to make payments under paragraph (1) of this subsection is authorized, in consideration of the employee's retention in, or entry upon, employment after enactment of this article, to impose upon its employees, as to services which are covered by an approved plan, a contribution with respect to wages, as defined in section two of this article, not exceeding the amount of tax which would be imposed by section one thousand four hundred of the Federal Insurance Contributions Act if such services constituted employment within the meaning of that act, and to deduct the amount of such contribution from the wages as and when paid. Contributions so collected shall be paid into the contribution fund in partial discharge of the liability of such political subdivision or instrumentality under paragraph (1) of this subsection. Failure to deduct such contribution shall not relieve the employee or employer of liability therefor.
(d) Delinquent payments due under paragraph (1) of subsection (c) may, with interest at the rate of six per centum per annum, be recovered by action in a court of competent jurisdiction against the political subdivision or instrumentality liable therefor or may, at the request of the state agency, be deducted from any other moneys payable to such subdivision or instrumentality by any department or agency of the state.
(b) The contribution fund shall be established and held separate and apart from any other funds or moneys of the state and shall be used and administered exclusively for the purpose of this article: Provided, That amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature: Provided, however, That any other withdrawals from the fund shall be made for, and solely for (1) payment of amounts required to be paid to the federal agency pursuant to an agreement entered into under section three; (2) payment of refunds provided for in subsection (c), section four of this article; and (3) refunds of overpayments, not otherwise adjustable, made by a political subdivision or instrumentality.
(c) From the contribution fund the custodian of the fund shall pay to the federal agency such amounts and at such time or times as may be directed by the state agency in accordance with any agreement entered into under section three of this article and applicable federal law.
(d) The treasurer of the state shall be ex officio treasurer and custodian of the contribution fund and shall administer the fund in accordance with the provisions of this article and the directions of the state agency and shall pay all warrants drawn upon it in accordance with the provisions of this section and with such regulations as the state agency may prescribe pursuant thereto.
(e) (1) There are hereby authorized to be appropriated annually to the contribution fund, in addition to the contributions collected and paid into the contribution fund under sections four and five, to be available for the purposes of subsections (b) and (c) of this section until expended, such additional sums as are found to be necessary in order to make the payments to the federal agency which the state is obligated to make pursuant to an agreement entered into under section three of this article.
(2) The state agency shall submit to the governor, at least ninety days in advance of the beginning of each regular session of the Legislature, an estimate of the amounts authorized to be appropriated to the contribution fund by paragraph (1) of this subsection for the next appropriation period.
Acts, 1990 Reg. Sess., Ch. 2.
Acts, 1977 Reg. Sess., Ch. 85.
(1) "Accumulated contributions" means the sum of all amounts deducted from the compensations of a member and credited to his or her individual account in the members' deposit fund, together with regular interest on the contributions;
(2) "Accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a retired member;
(3) "Actuarial equivalent" means a benefit of equal value computed upon the basis of a mortality table and regular interest adopted by the board of trustees from time to time: Provided, That when used in the context of compliance with the federal maximum benefit requirements of Section 415 of the Internal Revenue Code, "actuarial equivalent" shall be computed using the mortality tables and interest rates required to comply with those requirements;
(4) "Annuity" means an annual amount payable by the retirement system throughout the life of a person. All annuities shall be paid in equal monthly installments, rounding to the upper cent for any fraction of a cent;
(5) "Annuity reserve" means the present value of all payments to be made to a retirant or beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other tables of experience, and regular interest, adopted by the board of trustees from time to time;
(6) "Beneficiary" means any person, except a retirant, who is entitled to, or will be entitled to, an annuity or other benefit payable by the retirement system;
(7) "Board of Trustees" or "board" means the Board of Trustees of the West Virginia Consolidated Public Retirement System;
(8) "Compensation" means the remuneration paid a member by a participating public employer for personal services rendered by the member to the participating public employer. In the event a member's remuneration is not all paid in money, his or her participating public employer shall fix the value of the portion of the remuneration which is not paid in money. Any lump sum or other payments paid to members that do not constitute regular salary or wage payments are not considered compensation for the purpose of withholding contributions for the system or for the purpose of calculating a member's final average salary. These payments include, but are not limited to, attendance or performance bonuses, one-time flat fee or lump sum payments, payments paid as a result of excess budget, or employee recognition payments. The board shall have final power to decide whether the payments shall be considered compensation for purposes of this article;
(9) "Contributing service" means service rendered by a member within this state and for which the member made contributions to a public retirement system account of this state, to the extent credited him or her as provided by this article;
(10) "Credited service" means the sum of a member's prior service credit, military service credit, workers' compensation service credit and contributing service credit standing to his or her credit as provided in this article;
(11) "Employee" means any person who serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable, in whole or in part, by any political subdivision, or an officer or employee whose compensation is calculated on a daily basis and paid monthly or on completion of assignment, including technicians and other personnel employed by the West Virginia National Guard whose compensation, in whole or in part, is paid by the federal government: Provided, That an employee of the Legislature whose term of employment is otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who has been or is employed during regular sessions or during the interim between regular sessions in seven or more consecutive calendar years, as certified by the clerk of the house in which the employee served, is an employee, any provision to the contrary in this article notwithstanding, and is entitled to credited service in accordance with provisions of section fourteen, article ten, chapter five of this code and: Provided, however, That members of the legislative body of any political subdivision and judges of the State Court of Claims are employees receiving one year of service credit for each one-year term served and pro rated service credit for any partial term served, anything contained in this article to the contrary notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the Board of Trustees shall decide the question;
(12) "Employer error" means an omission, misrepresentation, or violation of relevant provisions of the West Virginia Code or of the West Virginia Code of State Regulations or the relevant provisions of both the West Virginia Code and of the West Virginia Code of State Regulations by the participating public employer that has resulted in an underpayment or overpayment of contributions required. A deliberate act contrary to the provisions of this section by a participating public employer does not constitute employer error.
(13) "Final average salary" means either of the following: Provided, That salaries for determining benefits during any determination period may not exceed the maximum compensation allowed as adjusted for cost of living in accordance with section seven, article ten-d, chapter five of this code and Section 401(a)(17) of the Internal Revenue Code: Provided, however, That the provisions of section twenty-two-h of this article are not applicable to the amendments made to this subdivision during the 2011 Regular Session of the Legislature.
(A) The average of the highest annual compensation received by a member (including a member of the Legislature who participates in the retirement system in the year 1971 or thereafter), during any period of three consecutive years of credited service contained within the member's fifteen years of credited service immediately preceding the date his or her employment with a participating public employer last terminated; or
(B) If the member has less than five years of credited service, the average of the annual rate of compensation received by the member during his or her total years of credited service; and in determining the annual compensation, under either paragraph (A) or (B) of this subdivision, of a member of the Legislature who participates in the retirement system as a member of the Legislature in the year 1971, or in any year thereafter, his or her actual legislative compensation (the total of all compensation paid under sections two, three, four and five, article two-a, chapter four of this code), in the year 1971, or in any year thereafter, plus any other compensation he or she receives in any year from any other participating public employer including the State of West Virginia, without any multiple in excess of one times his or her actual legislative compensation and other compensation, shall be used: Provided, That "final average salary" for any former member of the Legislature or for any member of the Legislature in the year 1971, who, in either event, was a member of the Legislature on November 30, 1968, or November 30, 1969, or November 30, 1970, or on November 30 in any one or more of those three years and who participated in the retirement system as a member of the Legislature in any one or more of those years means: (I) Either (notwithstanding the provisions of this subdivision preceding this proviso) $1,500 multiplied by eight, plus the highest other compensation the former member or member received in any one of the three years from any other participating public employer including the State of West Virginia; or (ii) "final average salary" determined in accordance with paragraph (A) or (B) of this subdivision, whichever computation produces the higher final average salary (and in determining the annual compensation under subparagraph (ii) of this proviso, the legislative compensation of the former member shall be computed on the basis of $1,500 multiplied by eight, and the legislative compensation of the member shall be computed on the basis set forth in the provisions of this subdivision immediately preceding this proviso or on the basis of $1,500 multiplied by eight, whichever computation as to the member produces the higher annual compensation);
(14) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, codified at Title 26 of the United States Code;
(15) "Limited credited service" means service by employees of the West Virginia Educational Broadcasting Authority, in the employment of West Virginia University, during a period when the employee made contributions to another retirement system, as required by West Virginia University, and did not make contributions to the Public Employees Retirement System: Provided, That while limited credited service can be used for the formula set forth in subsection (e), section twenty-one of this article, it may not be used to increase benefits calculated under section twenty- two of this article;
(16) "Member" means any person who has accumulated contributions standing to his or her credit in the members' deposit fund;
(17) "Participating public employer" means the State of West Virginia, any board, commission, department, institution or spending unit, and includes any agency created by rule of the Supreme Court of Appeals having full-time employees, which for the purposes of this article is considered a department of state government; and any political subdivision in the state which has elected to cover its employees, as defined in this article, under the West Virginia Public Employees Retirement System;
(18) "Plan year" means the same as referenced in section forty-two of this article;
(19) "Political subdivision" means the State of West Virginia, a county, city or town in the state; a school corporation or corporate unit; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; and any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns: Provided, That any mental health agency participating in the Public Employees Retirement System before July 1, 1997, is considered a political subdivision solely for the purpose of permitting those employees who are members of the Public Employees Retirement System to remain members and continue to participate in the retirement system at their option after July 1, 1997: Provided, however, That the Regional Community Policing Institute which participated in the Public Employees Retirement System before July 1, 2000, is considered a political subdivision solely for the purpose of permitting those employees who are members of the Public Employees Retirement System to remain members and continue to participate in the Public Employees Retirement System after July 1, 2000;
(20) "Prior service" means service rendered prior to July 1, 1961, to the extent credited a member as provided in this article;
(21) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the Board of Trustees adopts from time to time;
(22) "Required beginning date" means April 1 of the calendar year following the later of: (A) The calendar year in which the member attains age seventy and one-half years of age; or (B) the calendar year in which a member who has attained the age seventy and one-half years of age and who ceases providing service covered under this system to a participating employer;
(23) "Retirant" means any member who commences an annuity payable by the retirement system;
(24) "Retirement" means a member's withdrawal from the employ of a participating public employer and the commencement of an annuity by the retirement system;
(25) "Retirement system" or "system" means the West Virginia Public Employees Retirement System created and established by this article;
(26) "Retroactive service" means: (1) Service between July 1, 1961, and the date an employer decides to become a participating member of the Public Employees Retirement System; (2) service prior to July 1, 1961, for which the employee is not entitled to prior service at no cost in accordance with 162 CSR 5.13; and (3) service of any member of a legislative body or employees of the State Legislature whose term of employment is otherwise classified as temporary for which the employee is eligible, but for which the employee did not elect to participate at that time;
(27) "Service" means personal service rendered to a participating public employer by an employee of a participating public employer; and
(28) "State" means the State of West Virginia.
(b) The purpose of this article is to provide a state pension plan which supplements the federal social security pension plan now in force and heretofore authorized by law for members of this retirement system.
(c) The retirement system is intended to meet the federal qualification requirements of Section 401(a) and related sections of the Internal Revenue Code as applicable to governmental plans. Notwithstanding any other provision of state law, the board shall administer the retirement system to fulfill this intent for the exclusive benefit of the members and their beneficiaries. Any provision of this article referencing or relating to such federal tax qualification requirements shall be effective as of the date required by federal law. The board may promulgate rules and amend or repeal conflicting rules in accordance with the authority granted to it pursuant to section one, article ten-d of this chapter to assure compliance with this section.
(a) The auditor of the state, by virtue of his office;
(b) The treasurer of the state, by virtue of his office;
(c) The commissioner of finance and administration, by virtue of his office;
(d) A resident of the state, who is not a member, retirant or beneficiary of the retirement system, to be appointed by the governor, by and with the advice and consent of the Senate;
(e) One member of the retirement system, who is an employee of a participating public employer other than the state of West Virginia, to be appointed by the governor, by and with the advice and consent of the Senate.
(b) The board of trustees shall appoint an executive secretary of the retirement system. The executive secretary shall be the chief administrative officer of the system; and he shall not be a member of the board. He shall perform such duties as are required of him in this article and as the board shall from time to time delegate to him. The compensation of the executive secretary shall be fixed by the board subject to the approval of the governor. He shall, with the approval of the board of trustees, employ such administrative, technical, and clerical employees as shall be required in the proper operation of the system.
(c) The state treasurer shall be treasurer of the retirement system and the custodian of its funds. All bonds and other investments purchased according to the provisions of this article shall forthwith be deposited with the state treasurer. It shall be his duty to collect the principal thereof and the interest and dividends thereon as the same become due and payable, and when so collected deposit same to the credit of the retirement system. All disbursements from the funds of the system shall be made by the state treasurer only upon written certification duly authorized by a continuing or specific resolution adopted by the board of trustees. He shall furnish the board with a statement of the retirement system securities in his safekeeping as the board shall from time to time request.
(d) The attorney general shall be the legal advisor to the board of trustees.
(e) The board of trustees shall appoint an actuary who shall be the technical advisor to the board regarding the operation of the retirement system on an actuarial basis.
(b) Beginning in one thousand nine hundred sixty-six, and in each five-year period thereafter, the actuary shall make actuarial investigations into the experiences of the members, retirants and beneficiaries of the retirement system. Based upon such investigations, the board of trustees shall adopt for the system rates of mortality, withdrawal from service, superannuation retirement and disability retirement and salary scales for final average salary.
(c) Beginning in one thousand nine hundred sixty-two, and at least once in each three-year period thereafter, the actuary shall make an actuarial valuation of the assets and liabilities of the retirement system: Provided, That until the first actuarial investigations are made, the valuations shall be based upon decrement assumptions which are, in the opinion of the actuary, applicable to the members, retirants and beneficiaries of the system.
(d) Beginning in one thousand nine hundred sixty-two, the actuary shall annually compute the annuity reserve liabilities for annuities being paid retirants and beneficiaries.
(e) The board shall specify and adopt all actuarial assumptions for the system at its first meeting of every calendar year or as soon thereafter as may be practicable, which assumptions shall become part of the terms of the system.
(1) In no event may less than ten days of service rendered by a member in any calendar month be credited as a month of service: Provided, That for employees of the State Legislature whose term of employment is otherwise classified as temporary and who are employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who have been or are so employed during regular sessions or during the interim between regular sessions in seven consecutive calendar years, service credit of one month shall be awarded for each ten days employed in the interim between regular sessions, which interim days shall be cumulatively calculated so that any ten days, regardless of calendar month or year, shall be calculated toward any award of one month of service credit;
(2) Except for hourly employees, ten or more months of service credit earned in any calendar year shall be credited as a year of service: Provided, That no more than one year of service may be credited to any member for all service rendered by him or her in any calendar year and no days may be carried over by a member from one calendar year to another calendar year where the member has received a full-year credit for that year; and
(3) Service may be credited to a member who was employed by a political subdivision if his or her employment occurred within a period of thirty years immediately preceding the date the political subdivision became a participating public employer.
(b) The Board of Trustees shall grant service credit to employees of boards of health, the Clerk of the House of Delegates and the Clerk of the State Senate or to any former and present member of the State Teachers Retirement System who have been contributing members for more than three years, for service previously credited by the State Teachers Retirement System and shall require the transfer of the member's contributions to the system and shall also require a deposit, with interest, of any withdrawals of contributions any time prior to the member's retirement. Repayment of withdrawals shall be as directed by the Board of Trustees.
(c) Court reporters who are acting in an official capacity, although paid by funds other than the county commission or State Auditor, may receive prior service credit for time served in that capacity.
(d) Active members who previously worked in CETA (Comprehensive Employment and Training Act) may receive service credit for time served in that capacity: Provided, That in order to receive service credit under the provisions of this subsection the following conditions must be met: (1) The member must have moved from temporary employment with the participating employer to permanent full-time employment with the participating employer within one hundred twenty days following the termination of the member's CETA employment; (2) the board must receive evidence that establishes to a reasonable degree of certainty as determined by the board that the member previously worked in CETA; and (3) the member shall pay to the board an amount equal to the employer and employee contribution plus interest at the amount set by the board for the amount of service credit sought pursuant to this subsection: Provided, however, That the maximum service credit that may be obtained under the provisions of this subsection is two years: Provided further, That a member must apply and pay for the service credit allowed under this subsection and provide all necessary documentation by the thirty-first day of March, two thousand three: And provided further, That the board shall exercise due diligence to notify affected employees of the provisions of this subsection.
(e)(1) Employees of the State Legislature whose terms of employment are otherwise classified as temporary and who are employed to perform services required by the Legislature for its regular sessions or during the interim time between regular sessions shall receive service credit for the time served in that capacity in accordance with the following. For purposes of this section, the term "regular session" means day one through day sixty of a sixty-day legislative session or day one through day thirty of a thirty-day legislative session. Employees of the State Legislature whose term of employment is otherwise classified as temporary and who are employed to perform services required by the Legislature for its regular sessions or during the interim time between regular sessions and who have been or are employed during regular sessions or during the interim time between regular sessions in seven consecutive calendar years, as certified by the Clerk of the House in which the employee served, shall receive service credit of six months for all regular sessions served, as certified by the Clerk of the House in which the employee served, or shall receive service credit of three months for each regular thirty-day session served prior to one thousand nine hundred seventy-one: Provided, That employees of the State Legislature whose term of employment is otherwise classified as temporary and who are employed to perform services required by the Legislature for its regular sessions and who have been or are employed during the regular sessions in thirteen consecutive calendar years as either temporary employees or full-time employees or a combination thereof, as certified by the Clerk of the House in which the employee served, shall receive a service credit of twelve months for each regular session served, as certified by the Clerk of the House in which the employee served: Provided, however, That the amendments made to this subsection during the two thousand two regular session of the Legislature only apply to employees of the Legislature who are employed by the Legislature as either temporary employees or full-time employees as of the first day of January, two thousand two, or who become employed by the Legislature as temporary or full-time employees for the first time after the first day of January, two thousand two. Employees of the State Legislature whose terms of employment are otherwise classified as temporary and who are employed to perform services required by the Legislature during the interim time between regular sessions shall receive service credit of one month for each ten days served during the interim between regular sessions, which interim days shall be cumulatively calculated so that any ten days, regardless of calendar month or year, shall be calculated toward any award of one month of service credit: Provided further, That no more than one year of service may be credited to any temporary legislative employee for all service rendered by that employee in any calendar year and no days may be carried over by a temporary legislative employee from one calendar year to another calendar year where the member has received a full year credit for that year. Service credit awarded for legislative employment pursuant to this section shall be used for the purpose of calculating that member's retirement annuity, pursuant to section twenty-two of this article, and determining eligibility as it relates to credited service, notwithstanding any other provision of this section. Certification of employment for a complete legislative session and for interim days shall be determined by the Clerk of the House in which the employee served, based upon employment records. Service of fifty-five days of a regular session constitutes an absolute presumption of service for a complete legislative session and service of twenty-seven days of a thirty-day regular session occurring prior to one thousand nine hundred seventy-one constitutes an absolute presumption of service for a complete legislative session. Once a legislative employee has been employed during regular sessions for seven consecutive years or has become a full-time employee of the Legislature, that employee shall receive the service credit provided in this section for all regular and interim sessions and interim days worked by that employee, as certified by the Clerk of the House in which the employee served, regardless of when the session or interim legislative employment occurred: And provided further, That regular session legislative employment for seven consecutive years may be served in either or both houses of the Legislature.
(2) For purposes of this section, employees of the Joint Committee on Government and Finance are entitled to the same benefits as employees of the House of Delegates or the Senate: Provided, That for joint committee employees whose terms of employment are otherwise classified as temporary, employment in preparation for regular sessions, certified by the legislative manager as required by the Legislature for its regular sessions, shall be considered the same as employment during regular sessions to meet service credit requirements for sessions served.
(f) Any employee may purchase retroactive service credit for periods of employment in which contributions were not deducted from the employee's pay. In the purchase of service credit for employment prior to the year one thousand nine hundred eighty-nine in any department, including the Legislature, which operated from the General Revenue Fund and which was not expressly excluded from budget appropriations in which blanket appropriations were made for the state's share of public employees' retirement coverage in the years prior to the year one thousand nine hundred eighty-nine, the employee shall pay the employee's share. Other employees shall pay the state's share and the employee's share to purchase retroactive service credit. Where an employee purchases service credit for employment which occurred after the year one thousand nine hundred eighty-eight, that employee shall pay for the employee's share and the employer shall pay its share for the purchase of retroactive service credit: Provided, That no legislative employee and no current or former member of the Legislature may be required to pay any interest or penalty upon the purchase of retroactive service credit in accordance with the provisions of this section where the employee was not eligible to become a member during the years for which he or she is purchasing retroactive credit or had the employee attempted to contribute to the system during the years for which he or she is purchasing retroactive service credit and such contributions would have been refused by the board: Provided, however, That a legislative employee purchasing retroactive credit under this section does so within twenty-four months of becoming a member of the system or no later than the last day of December, two thousand eight, whichever occurs last: Provided further, That once a legislative employee becomes a member of the retirement system, he or she may purchase retroactive service credit for any time he or she was employed by the Legislature and did not receive service credit. Any service credit purchased shall be credited as six months for each sixty-day session worked, three months for each thirty-day session worked or twelve months for each sixty-day session for legislative employees who have been employed during regular sessions in thirteen consecutive calendar years, as certified by the Clerk of the House in which the employee served, and credit for interim employment as provided in this subsection: And provided further, That this legislative service credit shall also be used for months of service in order to meet the sixty-month requirement for the payments of a temporary legislative employee member's retirement annuity: And provided further, That no legislative employee may be required to pay for any service credit beyond the actual time he or she worked regardless of the service credit which is credited to him or her pursuant to this section: And provided further, That any legislative employee may request a recalculation of his or her credited service to comply with the provisions of this section at any time.
(g)(1) Notwithstanding any provision to the contrary, the seven consecutive calendar years requirement and the thirteen consecutive calendar years requirement and the service credit requirements set forth in this section shall be applied retroactively to all periods of legislative employment prior to the passage of this section, including any periods of legislative employment occurring before the seven consecutive and thirteen consecutive calendar years referenced in this section: Provided, That the employee has not retired prior to the effective date of the amendments made to this section in the two thousand two regular session of the Legislature.
(2) The requirement of seven consecutive years and the requirement of thirteen consecutive years apply retroactively to all legislative employment prior to the effective date of the two thousand six amendments to this section.
(h) The Board of Trustees shall grant service credit to any former or present member of the State Police Death, Disability and Retirement Fund who has been a contributing member of this system for more than three years for service previously credited by the State Police Death, Disability and Retirement Fund if the member transfers all of his or her contributions to the State Police Death, Disability and Retirement Fund to the system created in this article, including repayment of any amounts withdrawn any time from the State Police Death, Disability and Retirement Fund by the member seeking the transfer allowed in this subsection: Provided, That there shall be added by the member to the amounts transferred or repaid under this subsection an amount which shall be sufficient to equal the contributions he or she would have made had the member been under the Public Employees Retirement System during the period of his or her membership in the State Police Death, Disability and Retirement Fund, excluding contributions on lump sum payment for annual leave, plus interest at a rate determined by the board.
(i) The provisions of section twenty-two-h of this article are not applicable to the amendments made to this section during the two thousand six regular session.
(2) In addition to any benefit provided by federal law, any member of the retirement system who has previously served in or enters the active service of the Armed Forces of the United States during any period of compulsory military service or during a period of armed conflict shall receive credited service for the time spent in the Armed Forces of the United States, not to exceed five years if the member:
(A) Has been honorably discharged from the Armed Forces; and
(B) Substantiates by appropriate documentation or evidence his or her active military service and entry into military service during any period of compulsory military service or during periods of armed conflict.
(3) Any member of the retirement system who enters the active service of the Armed Forces of the United States during any period of compulsory military service or during a period of armed conflict shall receive the credit provided by this section regardless of whether he or she was a public employee at the time of entering the military service.
(4) If a member of the Public Employees Retirement System enters the active service of the United States and serves during any period of compulsory military service or during any period of armed conflict, during the period of the armed service and until the member's return to the employ of a participating public employer, the member's contributions to the retirement system is suspended and any credit balance remaining in the member's deposit fund shall be accumulated at regular interest: Provided, That notwithstanding any provision in this article to the contrary, if an employee of a participating political subdivision serving in the military service during any period of compulsory military service or armed conflict has accumulated credited service prior to the last entry into military service, in an amount that, added to the time in active military service while an employee equals nine or more years, and the member is unable to resume employment with a participating employer upon completion of duty due to death during or as a result of active service, all time spent in active military service, up to and including a total of five years, is considered to be credited service and death benefits are vested in the member: Provided, however, That the active service during the time the member is an employee must be as a result of an order or call to duty, and not as a result of volunteering for assignment or volunteering to extend the time in service beyond the time required by order or call.
(5) No member may receive duplicate credit for service for a period of compulsory military service which falls under a period of armed conflict.
(6) In any case of doubt as to the period of service to be credited a member under the provisions of this section, the board of trustees have final power to determine the period.
(7) The Board may consider a petition by any member whose tour of duty, in a territory that would reasonably be considered hostile and dangerous, was extended beyond the period in which an armed conflict was officially recognized, if that tour of duty commenced during a period of armed conflict, and the member was assigned to duty stations within the hostile territory throughout the period for which service credit is being sought. The Board has the authority to evaluate the facts and circumstances peculiar to the petition, and rule on whether granting service credit for the extended tour of duty is consistent with the objectives of this article. In that determination, the Board may grant full credit for the period under petition subject to the limitations otherwise applicable, or to grant credit for any part of the period as the board considers appropriate, or to deny credit altogether.
(8) The Board of Trustees may propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to administer the provisions of this section.
(b) For purposes of this section, the following definitions apply:
(1) "Period of armed conflict" means the Spanish-American War, the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War and any other period of armed conflict by the United States, including, but not limited to, those periods sanctioned by a declaration of war by the United States Congress or by executive or other order of the President.
(2) "Spanish-American War" means the period beginning on the twenty-first day of April, one thousand eight hundred ninety-eight, and ending on the fourth day of July, one thousand nine hundred two, and includes the Philippine Insurrection, the Boxer Rebellion, and in the case of a veteran who served with the United States military forces engaged in hostilities in the Moro Province, means the period beginning on the twenty-first day of April, one thousand eight hundred ninety-eight, and ending on the fifteenth day of July, one thousand nine hundred three.
(3) "The Mexican border period" means the period beginning on the ninth day of May, one thousand nine hundred sixteen, and ending on the fifth day of April, one thousand nine hundred seventeen, in the case of a veteran who during the period served in Mexico, on its borders or in the waters adjacent to it.
(4) "World War I" means the period beginning on the sixth day of April, one thousand nine hundred seventeen, and ending on the eleventh day of November, one thousand nine hundred eighteen, and in the case of a veteran who served with the United States military forces in Russia, means the period beginning on the sixth day of April, one thousand nine hundred seventeen, and ending on the first day of April, one thousand nine hundred twenty.
(5) "World War II" means the period beginning on the seventh day of December, one thousand nine hundred forty-one, and ending on the thirty-first day of December, one thousand nine hundred forty-six.
(6) "Korean conflict" means the period beginning on the twenty-seventh day of June, one thousand nine hundred fifty, and ending on the thirty-first day of January, one thousand nine hundred fifty-five.
(7) "The Vietnam era" means the period beginning on the twenty-eighth day of February, one thousand nine hundred sixty-one, and ending on the seventh day of May, one thousand nine hundred seventy-five, in the case of a veteran who served in the Republic of Vietnam during that period; and the fifth day of August, one thousand nine hundred sixty-four, and ending on the seventh day of May, one thousand nine hundred seventy-five, in all other cases.
(8) "Persian Gulf War" means the period beginning on the second day of August, one thousand nine hundred ninety, and ending on the eleventh day of April, one thousand nine hundred ninety-one.
(c) Notwithstanding 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. No military service credit may be used in more than one retirement system administered by the Consolidated Public Retirement Board and once used in any system, may not be used again in any other system. The Board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the Board in section one, article ten-d of this chapter, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
Members entitled to out-of-state service credit under the provisions of this section shall make additional contribution to the retirement system equal to the actuarial equivalent of the amount which would have been contributed, together with earnings thereon, by the member and the employer, had the member been covered during the period of the retroactive service credit.
(b) In any case of doubt as to the period of service to be credited a member under the provisions of this section, the Board of Trustees has the final power to determine this period.
(a) All employees, as defined in section two of this article, who are in the employ of a political subdivision the day preceding the date it becomes a participating public employer and who continue in the employ of the participating public employer on and after that date shall become members of the retirement system; and all persons who become employees of a participating public employer on or after that date shall thereupon become members of the system; except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the Public Employees Retirement System shall not include any person who is an active contributing member of, or who has been retired by, any of the State Teachers retirement systems, the Judges Retirement System, any Retirement System of the West Virginia State Police, the Deputy Sheriff Retirement System or any municipal retirement system for either, or both, police or firefighter; and the Bureau of Employment Programs, by the Commissioner of the Bureau, may elect whether its employees will accept coverage under this article or be covered under the authorization of a separate enactment: Provided, That the exclusions of membership do not apply to any member of the State Legislature, the Clerk of the House of Delegates, the Clerk of the State Senate or to any member of the legislative body of any political subdivision provided he or she once becomes a contributing member of the retirement system: Provided, however, That any retired member of the State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System, the Deputy Sheriff Retirement System and any retired member of any municipal retirement system for either, or both, police or firefighter may on and after the effective date of this section become a member of the retirement system as provided in this article, without receiving credit for prior service as a municipal police officer or firefighter or as a member of the State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System or the Deputy Sheriff Retirement System: Provided further, That any retired member of the State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System, the Deputy Sheriff Retirement System and any retired member of any municipal retirement system for either, or both, police or firefighters, who begins participation in the retirement system established in this article on or after the first day of July, two thousand five, may not receive a combined retirement benefit in excess of one hundred five percent of the member's highest annual salary earned while either a member of the retirement system established in this article or while a member of the other retirement system or systems from which he or she previously retired when adding the retirement benefit from the retirement system created in this article to the retirement benefit received by that member from the other retirement system or systems set forth herein from which he or she previously retired: And provided further, That the membership of the retirement system does not include any person who becomes employed by the Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services or Eastern Panhandle Mental Health Center on or after the first day of July, one thousand nine hundred ninety-seven: And provided further, That membership of the retirement system does not include any person who becomes a member of the federal railroad retirement act on or after the first day of July, two thousand.
(c) Any member of the State Legislature, the Clerk of the House of Delegates, the Clerk of the State Senate and any employee of the State Legislature whose employment is otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who has been or is employed during regular sessions or during the interim between sessions in seven consecutive calendar years, as certified by the Clerk of the House in which the employee served, or any member of the legislative body of any other political subdivision shall become a member of the retirement system provided he or she notifies the retirement system in writing of his or her intention to be a member of the system and files a membership enrollment form as prescribed by the Board of Trustees, and each person, upon filing his or her written notice to participate in the retirement system, shall by that act authorize the Clerk of the House of Delegates or the Clerk of the State Senate or such person or legislative agency as the legislative body of any other political subdivision shall designate to deduct the member's contribution, as provided in subsection (b), section twenty-nine of this article, and after the deductions have been made from the member's compensation, the deductions shall be forwarded to the retirement system.
(d) If question arises regarding the membership status of any employee, the Board of Trustees has the final power to decide the question.
(e) Any individual who is a leased employee is not eligible to participate in the system. For the purposes of this article, the term "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 authority to decide the question.
(b) The Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services and Eastern Panhandle Mental Health Center, and their successors in interest, shall provide for their employees a pension plan in lieu of the Public Employees Retirement System during the existence of the named mental health centers and their successors in interest.
(c) The administrative bodies of the Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services and Eastern Panhandle Mental Health Center shall, on or before May 1, 1997, give written notice to each employee who is a member of the Public Employees Retirement System of the option to withdraw from or remain in the system. The notice shall include a copy of this section and a statement explaining the member's options regarding membership. The notice shall include a statement in plain language giving a full explanation and actuarial projection figures in support of the explanation regarding the individual member's current account balance, vested and nonvested, and his or her projected return upon remaining in the Public Employees Retirement System until retirement, disability or death, in comparison with the projected return upon withdrawing from the Public Employees Retirement System and joining a private pension plan provided by the Community Mental Health Center and remaining therein until retirement, disability or death. The administrative bodies shall keep in their respective records a permanent record of each employee's signature confirming receipt of the notice.
(d) Effective March 1, 2003, and ending December 31, 2004, any member may purchase credited service previously forfeited by him or her and the credited service shall be restored to his or her credit: Provided, That he or she returns to the members' deposit fund the amount, if any, he or she withdrew from the fund, together with interest on the withdrawn amount from the date of withdrawal to the date of repayment at a rate to be determined by the board. The repayment under this section may be made by lump sum or repaid over a period of time not to exceed sixty months. Where the member elects to repay the required amount other than by lump sum, the member is required to pay interest at the rate determined by the board until all sums are fully repaid.
(e) Effective July 1,2005, and ending December 31, 2006, any emergency services personnel may purchase service credit for the time period beginning January 1, 1990, and ending December 31, 1995: Provided, That person was employed as an emergency service person in this state for that time period: Provided, however, That any person obtaining service credit under this subsection is required to pay the employee's share and the employer's share upon his or her actual salary for the years in question plus interest at the assumed actuarial rate of return for the plan year being repurchased.
(f) Jobs for West Virginia's graduates and their successors in interest shall provide a pension plan in lieu of the Public Employees Retirement System for employees hired on or after July 1, 2005.
(g) Wetzel County Hospital and their successors in interest
shall provide a pension plan in lieu of the Public Employees Retirement System for employees hired on or after July 1, 2005.
(b) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has ten or more years of credited service in force and who has attained age fifty-five as of the date of his or her separation, may, prior to the effective date of his or her retirement, but not thereafter, elect to receive the actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on the first day of any calendar month between his or her date of separation and his or her attainment of age sixty-two years and payable throughout his or her life.
(c) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has twenty or more years of credited service in force may elect to receive the actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on the first day of any calendar month between his or her fifty-fifth birthday and his or her attainment of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this section or of this article, except sections twenty-seven-a and twenty-seven-b of this article, and pursuant to rules promulgated by the board, any member who has thirty or more years of credited service in force, at least three of which are contributing service, and who elects to take early retirement, which for the purposes of this subsection means retirement prior to age sixty, whether an active employee or a separated employee at the time of application, is entitled to the full computation of annuity according to section twenty-two of this article, as that section was in force as of the date of retirement application, but with the reduced actuarial equivalent of the annuity the member would have received if his or her benefit had commenced at age sixty when he or she would have been entitled to full computation of benefit without any reduction.
(e) Notwithstanding any of the other provisions of this section or of this article, except sections twenty-seven-a and
twenty-seven-b of this article, any member of the retirement system
may retire with full pension rights, without reduction of benefits,
if he or she is at least fifty-five years of age and the sum of his
or her age plus years of contributing service and limited credited
service, as defined in section two of this article, equals or
exceeds eighty: Provided, That on and after July 1, 2011, any
person who becomes a new member of this retirement system shall, in
qualifying for retirement under this subsection, have five or more
years of service, all of which years shall be actual, contributory
ones. The member's annuity shall begin the first day of the
calendar month immediately following the calendar month in which
his or her application for the annuity is filed with the board.
Effective Date ofPercentage of
RetirementRetirement Allowance Increase
July 1, 1961 through June 30, 1962 .........................24.00
July 1, 1962 through June 30, 1963 .........................22.00
July 1, 1963 through June 30, 1964 .........................20.00
July 1, 1964 through June 30, 1965 .........................18.00
July 1, 1965 through June 30, 1966 .........................16.00
July 1, 1966 through June 30, 1967 .........................14.00
July 1, 1967 through June 30, 1968 .........................12.00
July 1, 1968 through June 30, 1969 .........................10.00
July 1, 1969 through June 30, 1970 ..........................8.00
July 1, 1970 through June 30, 1971 ..........................6.00
July 1, 1971 through June 30, 1972 ..........................4.00
July 1, 1972 through June 30, 1973 ..........................2.00
Any additional benefit conferred herein shall not be retroactive to the time of retirement but shall become effective the first day of July, one thousand nine hundred seventy-four.
In no event, however, when the amount of an annuity is affected by this section, shall the total of the additional benefit herein provided and other retirement allowances provided elsewhere in this article exceed the sum of four thousand two hundred dollars annually.
Each such annuitant shall receive as his supplemental benefit an increased annual amount which is the product of the sum of eighteen dollars multiplied by his years of credited service: Provided, That the total annuity of any annuitant affected by the provisions of this section, together with any of the other provisions of this article, shall not exceed seven thousand five hundred dollars annually.
Any annuitant receiving the supplemental benefit provided for herein for the annuity payment period just prior to the first day of July, one thousand nine hundred eighty-five, or any annuitant made newly eligible for receipt of such supplemental benefit on such date, shall receive a nineteen percent increase in the amount of such supplemental benefit prior received or newly calculated, effective on and after the first day of July, one thousand nine hundred eighty-five, and irrespective of the maximum total annuity proviso and limitation of seven thousand five hundred dollars annually. In any fiscal year in which pay increases are granted by the Legislature to active public employees, there may also be given an increase in retirement benefits for retired public employees, if funding is available for this purpose.
For the purpose of calculating the supplemental benefit provided in this section, fractional parts of a service credit year are to be disregarded unless in excess of one half of a credited service year, in which event the same shall constitute a full year of service credit.
For the purpose of computation for determination of eligibility and for the amount of any supplemental benefit hereunder, separate computation shall be made of a retirant's own benefit and that which may be receivable as beneficiary of another, under the provisions of this article, with each such benefit being eligible for the supplemental benefit herein provided.
(a) For the purposes of this section: (1) "Contract" means any personal service agreement, not involving the sale of commodities, that cannot be performed within sixty days or that exceeds two thousand five hundred dollars in any twelve-month period. The term "contract" does not include any agreement obtained by a retirant through a bidding process and which is for the furnishing of any commodity to a government agency and that term does not include any person who retired under this section who works as a contract employee for the Legislature when such employment commences after the thirty-first day of December, one thousand nine hundred ninety-nine: Provided, That such employment may not exceed one hundred ten days; (2) "governmental entity" means the state of West Virginia; a constitutional branch or office of the state government, or any subdivision thereof; a county, city or town in the state; a county board of education; a separate corporation or instrumentality established pursuant to a state statute; any other entity currently permitted to participate in any state public retirement system or the public employees insurance agency; or any officer or official of any entity listed above who is acting in his or her official capacity; (3) "part-time elected or appointed office" means any elected or appointed office that pays annual compensation of less than two thousand five hundred dollars or requires less than sixty days of service in any twelve-month period; (4) "substitute teacher" means a teacher, public school librarian, registered professional nurse employed by the county board of education or any other person employed for counseling or instructional purposes in a public school in this state who is temporarily fulfilling the duties of an existing real person employed in a specific position who is temporarily absent from that specified position.
(b) Beginning on the first day of April, one thousand nine hundred eighty-eight, and continuing through the thirty-first day of December, one thousand nine hundred eighty-eight (or as extended by eligibility qualification requirement, as hereinafter specified), eligible members, being those active, contributing members actually and currently employed on such beginning date, retiring pursuant to this section, and from any state, county or municipal position, covered under the two divisions of this retirement system (the state division and the public employer, nonstate division) including those so employed on said beginning date and leaving the system during the incentive period and who are eligible for taking deferred retirement (but not disability retirees) may elect to participate in this incentive program and may elect any one of the three following incentive options:
(1) Retirement incentive option one:
For the purpose of computing the member's annuity, the normal final average salary shall be computed and one-eighth thereof shall be added thereto in arriving at the true final average salary for use in actual computation of retirement benefit.
(2) Retirement incentive option two:
A member may elect a lump sum payment, in addition to his or her regular retirement annuity, equal to ten percent of his or her final average salary not to exceed five thousand dollars, and in the case of a deferred retirement electing this option, such lump sum payment shall be receivable and deferred to the time of receipt of such deferred retirement annuity.
(3) Retirement incentive option three:
A person shall be credited with an additional two years of contributing service and an additional two years of age. The years credited under this option shall in no way add to a member's final average salary factor of computation.
Active, contributing members who desire to retire under this section but who are unable to retire by the thirty-first day of December, one thousand nine hundred eighty-eight, and make use of the incentive retirement program because an element of eligibility for retirement, such as age or other element, will not be met until a date after the thirty-first day of December, one thousand nine hundred eighty-eight, and before the first day of July, one thousand nine hundred eighty-nine, shall be permitted to postpone actual retirement until the date of fulfilling such element of eligibility and shall retire on such date, before the temporary retirement incentive program ends on the thirtieth day of June, one thousand nine hundred eighty-nine, with proper credit to be granted for such extended period: Provided, That they shall have made application for retirement, including choice of their respective option, and given notice to their respective employer by the thirty-first day of December, one thousand nine hundred eighty-eight, although postponing actual retirement, as aforesaid.
(c) Any member participating in this retirement incentive program is not eligible to accept further employment or accept, directly or indirectly, work on a contract basis from any governmental entity: Provided, That nothing in this section shall affect any contract entered into prior to the effective date of this section: Provided, however, That the executive director may approve, upon written request and for good cause shown, an exception allowing a retirant to perform work on a contract basis. The executive director shall report all approved exceptions to the board of trustees: Provided further, That a person may retire under this section and thereafter serve in an elective office: And provided further, That he or she shall not receive an incentive option under this section during the term of service in said office, but shall receive his or her annuity calculated on regular basis, as if originally taken not under this section but on such regular basis. At the end of such term and cessation of service in such office during which the member shall rejoin and reenter the retirement system and pay contributions therefor, such regular annuity shall be recalculated and an increased annuity due to such additional employment shall be granted and computed on regular basis and in similar manner as under section forty-eight of this article. In respect of an appointive office, as distinguished from an elective office, any person retiring under this section and thereafter serving in such appointive office shall not receive an incentive option under this section during the term of service in said office, but the same shall be suspended during such period: And provided further, That at the end of such term and cessation of service in such appointive office the incentive option provided for under this section shall be resumed: And provided further, That any person elected or appointed to office by the state or any of its political subdivisions who waives whatever salary, wage or per diem compensation he or she may be entitled to by virtue of service in such office and who does not receive any income therefrom except such reimbursement of out-of-pocket costs and expenses as may be permitted by the statutes governing such office shall continue to receive an incentive option under this section. Such service shall not be counted as contributed or credited service for purposes of computing retirement benefits.
If such elected or appointed office is a part-time elected or appointed office, a person electing retirement under this section may serve in such elected or appointed office without a loss of the benefits provided under this section.
Prior to the initiation or renewal of any contract entered into pursuant to the provisions of this section or the acceptance of any elective or appointive office by a person who has elected to retire under the early retirement provisions of this article, such person shall complete a disclosure and waiver statement executed under oath and acknowledged by a notary public. The board shall promulgate rules, pursuant to chapter twenty-nine-a, of this code regarding the form and contents of the disclosure and waiver statement. The disclosure and waiver statement shall be forwarded to the appropriate state public retirement system administrator who shall take action to ensure that the early retirement incentive benefits are reduced in accordance with the provisions of this section. The administrator shall then certify such action in writing to the appropriate governmental entity.
In any event, an eligible member may retire under this section and thereafter continue to receive his or her incentive annuity and be employed as a substitute teacher or as adjunct faculty.
Any such incentive retirants, under this section, may not thereafter receive such annuity and enter or reenter any governmental retirement system established or authorized to be established by the state, notwithstanding any provision of the code to the contrary, unless required by constitutional provision or as hereby specifically permitted to those retiring and thereafter serving in elective office, as aforesaid.
The additional annuity allowed for temporary early retirement under these options, in respect of state division retirants of this system, is intended to be paid from the retirement incentive account hereby created as a special account in the state treasury and from the funds therein established with moneys required to be transferred by heads of spending units from the unused portion of salary and fringe benefits in their budgets accruing in respect of such positions vacated and subsequently canceled under this temporary early retirement program. Salary and fringe benefit moneys actually saved in a particular fiscal year shall constitute the fund source for payment of such additional annuity, the funds of the retirement system to be used for payment of the base annuity under the early retirement incentive program: Provided, That such additional annuity shall be paid from the unused portion of both salary and fringe benefits and with any remainder of any fringe benefit moneys, as such, to remain with the spending unit and any remainder of salary, as such, to be directed as additional funding to the teachers retirement system and as a part of the assets thereof. No such additional annuity shall be disallowed even though initial receipts may not be sufficient, with funds of the system to be applied for such purpose, as for the base annuity. With respect to public employer division retirants (nonstate division retirants of the system), such incentive annuity shall be paid from the nonstate division funds of the system.
(d) The executive secretary of the retirement system shall provide forms for applicants. Such forms shall include a detailed description of the incentive plan options.
The executive secretary of the retirement system shall file a report to the Legislature no later than the fifteenth day of February, one thousand nine hundred eighty-nine, and quarterly thereafter, detailing the number of retirees who have elected to accept early retirement incentive options, the dollar cost to date by option selected, and the projected annual cost through the year two thousand.
(e) Within every spending unit, department, board, corporation, commission, or any other agency or entity wherein two or multiples of two members elect to retire either under the temporary early retirement incentives set forth above, or under regular, voluntary retirement, and countable on an agency-wide or entity-wide basis, no more than one of such vacated positions may be filled, with the second position being abolished upon the effective day of the member's retirement. The vacant position abolishment requirement shall not apply to elective positions or appointed public officers whose positions are established by state constitutional or statutory provision. The retirant's employing entity shall decide as to which of the vacated positions made available through special early retirement or through regular, voluntary retirement are to be abolished and the head of such spending unit shall immediately notify the state auditor, the legislative auditor, and the commissioner of the department of finance and administration of the decisions and shall then apply and/or transfer the remaining salary and fringe benefits as aforesaid: Provided, That this vacant position abolishment provision shall not apply to any county or municipal position except those under the authority of a county board of education, nor to any position or positions, whether designated by spending unit, department, agency, commission, entity or otherwise, which the governor in respect of the executive branch, or the chief justice of the supreme court of appeals in respect of the judicial branch, or the president of the Senate or speaker of the House of Delegates, in respect of the legislative branch, may exempt or amend, under such abolishment provision, upon his or her respective recommendation that such exemption or amendment is necessary to provide for continuity of governmental operation or to preserve the health, welfare or safety of the people of West Virginia, and with the prior concurrence of the joint committee on government and finance in such recommendation, after the chairmen thereof shall cause such committee to meet.
(f) Special rule of eighty. -- Any active, contributing member of the retirement system as of the first day of April, one thousand nine hundred eighty-eight, who selects one of the incentive options in this section, may retire under the special early retirement provisions with full pension rights, without reduction of benefits if the sum of such member's age plus years of contributing service equals or exceeds eighty: Provided, That such person has at least twenty years of contributing service; up to two years of which may be military service, or prior service, or any combination thereof not exceeding an aggregate of two years.
(g) Termination of temporary retirement incentives program. -- The right to elect, choose, select or use any of the options, special rule of eighty, or other benefits set forth in this section shall terminate on the thirtieth day of June, one thousand nine hundred eighty-nine.
(h) The board shall promulgate rules and regulations in accordance with the provisions of article three, chapter twenty-nine of this code regarding the calculation of the amount of incentive option that may be forfeited pursuant to the provisions of subsection (b) of this section.
(b) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of April, one thousand nine hundred eighty-eight, and ending on the thirty-first day of December, one thousand nine hundred ninety-two, shall be three percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four: Provided, That annuitants who retired during the period set forth in this subsection shall be required to elect between receiving the supplemental benefit provided in this section or any incentives provided in section twenty-two-c of this article or any other supplements provided in this article: Provided, however, That the consolidated public retirement board shall provide written notification to members eligible for the benefit provided in this subsection of the availability and terms of the benefit provided in this subsection and members electing to select this benefit in lieu of any other incentive the member has or is receiving shall submit an application for the benefit on the form prescribed by the board.
(c) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred eighty-five, and ending on the thirty-first day of March, one thousand nine hundred eighty-eight, shall be five percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplement provided in subsection (b) of this section.
(d) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred eighty-two, and ending on the thirtieth day of June, one thousand nine hundred eighty-five, shall be five percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplements provided in subsections (b) and (c) of this section.
(e) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred seventy-nine, and ending on the thirtieth day of June, one thousand nine hundred eighty-two, shall be sixteen percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplements provided in subsections (b), (c) and (d) of this section.
(f) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred seventy-six, and ending on the thirtieth day of June, one thousand nine hundred seventy-nine, shall be sixteen percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplements provided in subsections (b), (c), (d) and (e) of this section.
(g) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred seventy-three, and ending on the thirtieth day of June, one thousand nine hundred seventy-six, shall be sixteen percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplements provided in subsections (b), (c), (d), (e) and (f) of this section.
(h) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred seventy, and ending on the thirtieth day of June, one thousand nine hundred seventy-three, shall be twenty-four percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplements provided in subsections (b), (c), (d), (e), (f) and (g) of this section.
(i) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred sixty-seven, and ending on the thirtieth day of June, one thousand nine hundred seventy, shall be twenty-four percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplements provided in subsections (b), (c), (d), (e), (f), (g) and (h) of this section.
(j) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred sixty-four, and ending on the thirtieth day of June, one thousand nine hundred sixty-seven, shall be twenty-four percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplements provided in subsections (b), (c), (d), (e), (f), (g), (h) and (i) of this section.
(k) The total amount of the supplement due to qualified annuitants who retired during the period commencing on the first day of July, one thousand nine hundred sixty-one, and ending on the thirtieth day of June, one thousand nine hundred sixty-four, shall be twenty-four percent of their retirement benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, plus the amount of the percentage supplements provided in subsections (b), (c), (d), (e), (f), (g), (h), (i) and (j) of this section.
(l) For each annuitant, a preliminary supplement shall be computed on the basis of the original annual benefit including any supplemental benefits provided on or before the first day of July, one thousand nine hundred seventy-four, received by the original retiree as provided by subsections (b) through (k) of this section, inclusive. This preliminary supplement shall be calculated only on amounts up to, but not exceeding, the first five thousand four hundred dollars of the original annual retirement benefit paid including any supplement provided on or before the first day of July, one thousand nine hundred seventy-four.
(m) Each annuitant shall receive as that annuitant's supplement under this section an amount equal to the preliminary supplement or a supplement as calculated in subsections (n) and (o) of this section as appropriate.
(n) Each survivor beneficiary shall receive as that survivor beneficiary's supplement under this section an amount equal to that pro rata share of that survivor beneficiary's preliminary supplement, as defined above, as such survivor beneficiary's benefit, without regard to any supplements, constitutes as a pro rata share of the original benefit of the original retiree: Provided, That for any person who becomes a survivor beneficiary, after the first day of July, one thousand nine hundred ninety-four, the benefit provided under this section shall be recomputed under the provisions of this subsection.
(o) Each disabled retiree shall receive as that disabled retiree's supplement under this section that pro rata share of that disabled retiree's preliminary supplement, as defined above, as such disabled retiree's current benefit, without regard to any supplements, constitutes as a pro rata share of that disabled retiree's original benefit: Provided, That any disabled retiree scheduled under the terms of the retirement system to have a benefit recomputed at some time subsequent to the effective date of this section will, at the time of that recomputation, also have the supplemental benefit recomputed under the terms of the preceding sentence.
(p) Any supplemental benefit computed under this section shall only be paid in lieu of, and not in addition to, the payment of any prior supplemental benefit amounts or incentives provided by law after the first day of July, one thousand nine hundred seventy-four, which are currently being paid: Provided, That any annuitant receiving a supplemental benefit greater than that provided in this section shall continue to receive the current supplemental benefits.
(q) The supplement provided in this section shall be recalculated on a pro rata basis of the preliminary supplement whenever the original annuity amount is adjusted due to the death or disability of an annuitant or any other event.
(1) For retirees who, as of the first day of July, two thousand one, are at least sixty-five years of age and who have been an annuitant for at least five consecutive years, this one-time supplement shall equal five percent of his or her annuity benefit as of the effective date of this section;
(2) For retirees who, as of the first day of July, two thousand one, are at least seventy years of age and who have been an annuitant for at least five consecutive years, this one-time supplement shall equal ten percent of his or her annuity benefit as of the effective date of this section; and
(3) For any person who, as of the first day of July, two thousand one, is at least sixty-five years of age and who retired under the early retirement incentive provided in section twenty-two-c of this article, this one-time supplement shall equal three percent of his or her annuity benefit as of the effective date of this section and subdivisions (1) and (2) of this subsection do not apply.
(b) The one-time supplement provided for in this section applies only to members who have retired prior to or as of the effective date of this section or, if applicable, to beneficiaries receiving benefits under the retirement system prior to or as of the effective date of this section: Provided, That the supplement provided herein is subject to any applicable limitations thereon under Section 415 of the Internal Revenue Code of 1986, as amended.
(b) If any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in the system as calculated in the annual actuarial valuation for the plan during any fiscal year, the additional unfunded actuarial accrued liability of that pension system shall be fully amortized over no more than the six consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the six year amortization in the determination of the adequacy of the employer contribution percentage for the system.
(c) The state will not increase any existing benefits or create any new benefits for active members due to retirement, death or disability of the system unless the actuarial accrued liability of the plan is at least eighty-five percent funded as of the last day of the prior fiscal year as determined in the actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature. Any additional unfunded actuarial accrued liability due to any improvement in active members benefits shall be fully amortized over not more than ten years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the ten year amortization in the determination of the adequacy of the employer contribution percentage for the system.
(b) The one-time supplement provided in this section applies only to members who have retired at least five years prior to the first day of July, two thousand six, or, if applicable, to beneficiaries of deceased members who have been receiving benefits under the retirement system at least five years prior to the first day of July, two thousand six: Provided, That the supplement provided herein is subject to any applicable limitations thereon under Section 415 of the Internal Revenue Code of 1986, as amended.
(b) In the event that all claims to benefits payable to, or on behalf of, a retired member expire, and the accumulated contributions exceed the accumulated net benefit payments paid to or on behalf of the retired member, the balance in the retired member's account shall be paid to the person or persons as the retired member has nominated by written designation duly executed and filed with the board of trustees. If there is no designated person or persons surviving the retired member following the expiration of claims, the excess of the accumulated contributions over the accumulated net benefit, if any, shall be paid to the retired member's estate.
Option A -- Joint and survivor annuity. -- Upon the death of a retirant who elected option A, his or her reduced annuity shall be continued throughout the life of and paid to the beneficiary, having an insurable interest in the retirant's life, whom the retirant nominated by written designation duly executed and filed with the board of trustees prior to the effective date of his or her retirement; or
Option B -- Modified joint and survivor annuity. -- Upon the death of a retirant who elected option B, one half of his or her reduced annuity shall be continued throughout the life of and paid to the beneficiary, having an insurable interest in the retirant's life, whom the retirant nominated by written designation duly executed and filed with the board of trustees prior to the effective date of his or her retirement.
(b) Upon the death of a spouse, a retirant may elect any of the retirement options offered by the provisions of this section in an amount adjusted on a fair basis to be of equal actuarial value as the annuity prospectively in effect relative to the retirant at the time the new option is elected.
(c) Upon divorce, a retirant may elect to change any of the retirement benefit options offered by the provisions of this section to a life annuity in an amount adjusted on a fair basis to be of equal actuarial value of the annuity prospectively in effect relative to the retirant at the time the option is elected: Provided, That the retirant furnishes to the board satisfactory proof of entry of a final decree of divorce or annulment: Provided, however, That the retirant certifies under penalty of perjury that no qualified domestic relations order, final decree of divorce, or other court order that would restrict the election is in effect: Provided further, That no cause of action against the board may then arise or be maintained on the basis of having permitted the retirant to name a new spouse as annuitant for any of the survivorship retirement benefit options.
(d) Upon remarriage, a retirant may name the new spouse as an
annuitant for any of the retirement benefit options offered by the
provisions of this section: Provided, That the retirant shall
furnish to the board proof of marriage: Provided, however, That
the retirant certifies under penalty of perjury that no qualified
domestic relations order, final decree of divorce or other court
order that would restrict the designation is in effect: Provided
further, That no cause of action against the board may then arise or be maintained on the basis of having permitted the retirant to
name a new spouse as annuitant for any of the survivorship
retirement benefit options. The value of the new survivorship
annuity shall be the actuarial equivalent of the retirant's benefit
prospectively in effect at the time the new annuity is elected.
(b) A member with less than ten years of credited service shall have the service requirement provided in subsection (a) above (including the requirement of three years contributing service) waived in the event: (1) The board finds his or her total and permanent disability to be the natural and proximate result of a personal injury or disease arising out of and in the course of his or her actual performance of duty in the employ of a participating public employer; and (2) he or she is receiving or has received workers' compensation benefits on account of the physical or mental disability.
(c) For any member retiring and any member retired, as of
March 1, 1970, he or she shall receive a straight life annuity
computed according to section twenty-two hereof and he or she shall
have the right to elect an option provided in section twenty-four
hereof: Provided, That his or her straight life annuity payable to
his or her attainment of age sixty-five years may not be less than
fifty percent of his or her final average salary; and his or her
straight life annuity payable from and after his or her attainment
of age sixty-five years may not be less than twenty percent of his
or her final average salary: Provided, however, That his or her
annuity shall be subject to section twenty-six hereof.
(b) A disability retirant who is returned to the employ of a participating public employer shall again become a member of the retirement system and the retirant's credited service in force at the time of his or her retirement shall be restored.
(c) If a review of the disability retirant's annual statement of earnings or other financial information as required by the Board determines that the disability retirant's earned income for the preceding year exceeds the substantial gainful activity amount as defined by the United States Social Security Administration, the disability retirant's annuity shall be terminated by the Board, upon recommendation of the Board's disability review committee, on the first day of the month following the Board's action. Any person who wishes to reapply for disability retirement and whose disability retirement annuity has been terminated by the Board may do so within ninety days of the effective date of termination by requesting an examination at the applicant's expense by an appropriate medical professional chosen by the Board.
(2) In the event any member or former member, who first became a member of the Public Employees Retirement System after the effective date of amendments made to this section during the two thousand six regular legislative session and who has ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: Dies without leaving a surviving spouse; but leaves surviving him or her a child who is financially dependent on the member by virtue of a permanent mental or physical disability upon evidence satisfactory to the board; and has named the disabled child as sole beneficiary, the disabled child shall immediately receive an annuity computed in the same manner in all respects as if the member had: (A) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (B) elected option A provided in section twenty-four of this article; and (C) nominated his or her disabled child as beneficiary. A member or former member with ten or more years of credited service, who does not leave surviving him or her a spouse or a disabled child, may elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses.
(b)(1) In the event any member who has ten or more years of credited service, or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: Dies; and leaves a surviving spouse, the surviving spouse shall immediately receive an annuity computed in the same manner in all respects as if the member had: (A) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (B) elected option A provided in section twenty-four of this article; and (C) nominated his or her surviving spouse as beneficiary. However, the surviving spouse shall have the right to waive the annuity provided in this section: Provided, That he or she executes a valid and notarized waiver on a form provided by the board and that the member or former member attests to the waiver. If the waiver is presented to and accepted by the board, the member or former member, may nominate a beneficiary who has an insurable interest in the member's or former member's life. As an alternative to annuity option A, the member or former member may elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses in the event a waiver, as provided in this section, has been presented to and accepted by the board.
(2) Whenever any member or former member who first became a member of the retirement system after the effective date of the amendments to this section made during the two thousand six regular legislative session and who has ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: Dies; and leaves a surviving spouse, the surviving spouse shall immediately receive an annuity computed in the same manner in all respects as if the member had: (A) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (B) elected option A provided in section twenty-four of this article; and (C) nominated his or her surviving spouse as beneficiary. However, the surviving spouse shall have the right to waive the annuity provided in this section: Provided, That he or she executes a valid and notarized waiver on a form provided by the board and that the member or former member attests to the waiver. If the waiver is presented to and accepted by the Board, the member or former member may: (1) Elect to have the preretirement death benefit paid in a lump sum amount, rather than annuity option A provided in section twenty-four of this article, as a return of accumulated contributions to any beneficiary or beneficiaries he or she chooses; or (2) may name his or her surviving child, who is financially dependent on the member by virtue of a permanent mental or physical disability, as his or her sole beneficiary to receive an annuity computed in the same manner in all respects as if the member had: (A) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained the age of sixty or sixty-two as the case may be; (B) elected option A provided in section twenty-four of this article; and (C) nominated his or her disabled child as beneficiary.
(c) In the event any member who has ten or more years of credited service or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: (1) Dies without leaving surviving him or her a spouse; but (2) leaves surviving him or her an infant child or children; and (3) does not have a beneficiary nominated as provided in subsection (a) of this section, the infant child or children are entitled to an annuity to be calculated as follows: The annuity reserve shall be calculated as though the member had retired as of the date of his or her decease and elected a straight life annuity and the amount of the annuity reserve shall be paid in equal monthly installments to the member's infant child or children until the child or children attain age twenty-one or sooner marry or become emancipated; however, in no event shall any child or children receive more than two hundred fifty dollars per month each. The annuity payments shall be computed as of the date of the death of the member and the amount of the annuity shall remain constant during the period of payment. The annual amount of the annuities payable by this section shall not exceed sixty percent of the deceased member's final average salary.
(d) In the event any member or former member does not have ten or more years of credited service, no preretirement death annuity may be authorized, owed or awarded under this section, except as provided in subdivision (4), subsection (a), section fifteen of this article as amended during the two thousand five regular session of the Legislature.
(b) In the event a member dies and does not leave a beneficiary entitled to an annuity payable by the retirement system, his accumulated contributions standing to his credit in the members deposit fund at the time of his death shall be paid to such person or persons as he shall have nominated by written designation duly executed and filed with the board of trustees. If there be no such designated person or persons surviving the said member, his said accumulated contributions shall be paid to his estate.
(c) Refunds of a member's contributions or accumulated contributions, as the case may be, may be made in equal installments according to such rules and regulations as the board of trustees may from time to time adopt.
(d) In the event a member dies and a refund of his contributions is due to be made to an infant child or children by reason of being the person or persons nominated by written designation duly executed and filed with the retirement system, and the amount of said refund is less than one thousand dollars, then, and in said event, the board of trustees may make said refund, upon written application, to the closest relative or natural guardian for the use of said infant child or children. The board of trustees may, at its discretion, require that said relative or natural guardian post bond with the retirement system to insure that said money will be used for the benefit of said infant child or children. In any event, before said refund is made to said relative or natural guardian of the said infant or infants, said relative or natural guardian shall give the retirement system an indemnifying release of said sums so paid over.
(b) Based upon the provisions of section thirteen of this article, the participating public employers' contributions to the retirement system, as determined by the Consolidated Public Retirement Board by legislative rule promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code, shall be a percent of the members' total annual compensation related to benefits under this retirement system. In determining the amount, the Board shall give consideration to setting the amount at a sum equal to an amount which, if paid annually by the participating public employers, will be sufficient to provide for the total normal cost of the benefits expected to become payable to all members and to amortize any unfunded liability found by application of the actuarial funding method chosen for that purpose by the Consolidated Public Retirement Board, over a period of years determined actuarially appropriate. When proposing a rule for promulgation which relates to the amount of employer contribution, the Board may promulgate emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code, if the inability of the board to increase employer contributions will detrimentally affect the actuarial soundness of the retirement system. A signed statement from the state actuary shall accompany the statement of facts and circumstances constituting an emergency which shall be filed in the State Register. For purposes of this section, subdivision (2), subsection (b), section fifteen-a, article three, chapter twenty-nine-a of this code is not applicable to the Secretary of State's determination of whether an emergency rule should be approved.
(a) The participating employer, in order to provide the benefits set forth herein, shall pay an additional contribution to the retirement system as shall be the actuarial equivalent of the amount which would have been contributed, together with earnings thereon, by the employer had the employee who is to receive retroactive credit been covered during the period of the retroactive service credit. This contribution may be made by the employer either in one lump sum or, at the election of the employer, by level term payments over a period not in excess of fifteen years or by both lump sum payments and level term payments, as determined by the employer and the board of trustees under rules and regulations promulgated by the board;
(b) The additional service credit shall be applicable to employees working for the participating employer on the effective date of the change of date of participation;
(c) There shall be no increase in benefits and annuities paid to former members of the system who were retired prior to the effective date of this section;
(d) Employees entitled to such retroactive service credit under the provisions of this section shall make such additional contribution to the retirement system equal to the actuarial equivalent of the amount which would have been contributed, together with earnings thereon, by the employee had the employee been covered during the period of the retroactive service credit;
(e) Each employer and employee shall be required to pay into the retirement system in the manner hereinafter provided the amount necessary for the additional service credit provided by this section, based upon an actuarial study of each employer that elects to participate in the retirement system under this section and as determined by the board of trustees;
(f) The actuarial basis for determining the additional contributions shall be that currently in effect for the valuation of the retirement system on the effective date of the employer's election;
(g) Any new participating employer and any participating employer which is currently a participant and who began participating after the first day of July, one thousand nine hundred sixty-one, who desires additional service credit must elect to provide such service credit within one year following the effective date of this section;
(h) Any participating employer requesting additional service credit as provided by this section shall provide such employee data as may be requested from the board of trustees of the retirement system for the determination of the employer's contributions;
(i) The consulting actuary's fees for computing the additional contribution rates under this section shall be paid directly by the participating employer to the consulting actuary selected by the board of trustees of the retirement system; and
(j) For the purpose of reopening the effectiveness of the provisions of this section for a period of one year following the effective date of the amendment to this section, and for the purpose of granting, retroactively service credit to current employees of employers participating in the public employees retirement system during such period, this section is hereby renewed and reestablished; but any such credited service granted hereunder shall be on the actuarially sound basis for determining required additional contributions, of both employer and employee, required in light of benefits that would be computed in respect of such later point in time and such subsequent final average salary amount.
(b) In the case of any member whose compensation is paid out of moneys derived in whole or in part out of any special fund, or from any source other than the state, then contributions on behalf of such member in any year shall be paid out of such special fund or by such other source in proportion to that part of the member's compensation derived therefrom for that year. The governing body of each participating public employer is hereby authorized to make such contributions from funds of the participating public employer as shall be necessary to pay its proportionate share of contributions on account of each state employee whose compensation is paid by such participating public employer.
(b) If any participating public employer, other than the state, fails to make any payment due the retirement system for a period of sixty days after the payment is due, the participating public employer shall become delinquent, and such delinquency shall be certified to the state auditor by the board of trustees. If any participating public employer becomes delinquent, as provided herein, the state auditor is authorized and directed to withhold any money due such participating public employer by the state until such delinquency, together with regular interest thereon, from the date due, is satisfied. Such money so withheld by the state auditor shall be paid to the retirement system.
Acts, 1994 Reg. Sess., Ch. 133.
(b) Underpayments: Any error resulting in an underpayment to the retirement system of required contributions may be corrected by the member or retirant remitting the required employee contribution and the participating public employer remitting the required employer contribution. Interest shall accumulate in accordance with the Legislative Rule 162 CSR 7 concerning retirement board refund, reinstatement and loan interest factors and any accumulating interest owed on the employee and employer contributions resulting from an employer error shall be the responsibility of the participating public employer. The participating public employer may remit total payment and the employee reimburse the participating public employer through payroll deduction over a period equivalent to the time period during which the employer error occurred. If the correction of an error involving an underpayment of required contributions to the retirement system will result in increased payments to a retirant, including increases to payments already made, any adjustments shall be made only after the board receives full payment of all required employee and employer contributions, including interest.
(c) Overpayments: (1) When mistaken or excess employer contributions, including any overpayments, have been made to the retirement system by a participating public employer, due to error or other reason, the board shall credit the participating public employer with an amount equal to the erroneous contributions, to be offset against the participating public employer's future liability for employer contributions to the system. Earnings or interest shall not be credited to the employer.
(2) When mistaken or excess employee contributions, including
any overpayments, have been made to the retirement system, due to
error or other reason, the board shall have sole authority for
determining the means of return, offset or credit to or for the
benefit of the employee of the amounts, and may use any means
authorized or permitted under the provisions of Section 401(a), et
seq. of the Internal Revenue Code and guidance issued thereunder
applicable to governmental plans. Alternatively, in its full and
complete discretion, the board may require the participating public
employer to pay the employee the amounts as wages, with the board
crediting the participating public employer with a corresponding
amount to offset against its future contributions to the plan: Provided, That the wages paid to the employee shall not be
considered compensation for any purposes under this article.
Earnings or interest shall not be returned, offset, or credited
under any of the means utilized by the board for returning mistaken
or excess employee contributions, including any overpayments, to an
employee.
(a) The Legislature finds that a compelling state interest exists in maintaining an actuarially sound retirement system and that this interest necessitates that certain limitations be placed upon an individual's ability to retire from the system and to then later return to state employment as an employee with a participating public employer while contemporaneously drawing an annuity from the system. The Legislature hereby further finds and declares that the interests of the public are served when persons having retired from public employment are permitted, within certain limitations, to render post-retirement employment in positions of public service, either in elected or appointed capacities. The Legislature further finds and declares that it has the need for qualified employees and that in many cases an employee of the Legislature will retire and be available to return to work for the Legislature as a per diem employee. The Legislature further finds and declares that in many instances these employees have particularly valuable expertise which the Legislature cannot find elsewhere. The Legislature further finds and declares that reemploying these persons on a limited per diem basis after they have retired is not only in the best interests of this state, but has no adverse effect whatsoever upon the actuarial soundness of this particular retirement system.
(b) For the purposes of this section: (1) ôRegularly employed on a full-time basisö means employment of an individual by a participating public employer, in a position other than as an elected or appointed public official, which normally requires twelve months per year service and at least one thousand forty hours of service per year in that position; (2) ôtemporary full-time employment or temporary part-time employmentö means employment of an individual on a temporary or provisional basis by a participating public employer, other than as an elected or appointed public official, in a position which does not otherwise render the individual as regularly employed; (3) ôformer employee of the Legislatureö means any person who has retired from employment with the Legislature and who has at least ten years' contributing service with the Legislature; and (4) ôreemployed by the Legislatureö means a former employee of the Legislature who has been reemployed on a per diem basis not to exceed one hundred seventy-five days per calendar year.
(c) In the event a retirant becomes regularly employed on a full-time basis by a participating public employer, payment of his or her annuity shall be suspended during the period of his or her reemployment and he or she shall become a contributing member to the retirement system. If his or her reemployment is for a period of one year or longer, his or her annuity shall be recalculated and he or she shall be granted an increased annuity due to the additional employment, the annuity to be computed according to section twenty-two of this article. A retirant may accept temporary full-time or temporary part-time employment from a participating employer without suspending his or her retirement annuity so long as he or she does not receive annual compensation in excess of $15,000: Provided, That a retirant may be employed by the Legislature on a per diem basis without suspension of the retirement annuity if the retirant's annual compensation from the Legislature does not exceed $20,000.
(d) In the event a member retires and is then subsequently elected to a public office or is subsequently appointed to hold an elected public office, or is a former employee of the Legislature who has been reemployed by the Legislature, he or she has the option, notwithstanding subsection (c) of this section, to either:
(1) Continue to receive payment of his or her annuity while holding public office or during any reemployment of a former employee of the Legislature on a per diem basis, in addition to the salary he or she may be entitled to as an office holder or as a per diem reemployed former employee of the Legislature; or
(2) Suspend the payment of his or her annuity and become a contributing member of the retirement system as provided in subsection (c) of this section. Notwithstanding the provisions of this subsection, a member who is participating in the system as an elected public official may not retire from his or her elected position and commence to receive an annuity from the system and then be elected or reappointed to the same position unless and until a continuous twelve-month period has passed since his or her retirement from the position: Provided, That a former employee of the Legislature may not be reemployed by the Legislature on a per diem basis until at least sixty days after the employee has retired: Provided, however, That the limitation on compensation provided by subsection (c) of this section does not apply to the reemployed former employee: Provided further, That in no event may reemployment by the Legislature of a per diem employee exceed one hundred seventy-five days per calendar year.
(e) A member who is participating in the system simultaneously as both a regular, full-time employee of a participating public employer and as an elected or appointed member of the legislative body of the state or any political subdivision may, upon meeting the age and service requirements of this article, elect to retire from his or her regular full-time state employment and may commence to receive an annuity from the system without terminating his or her position as a member of the legislative body of the state or political subdivision: Provided, That the retired member shall not, during the term of his or her retirement and continued service as a member of the legislative body of a political subdivision, be eligible to continue his or her participation as a contributing member of the system and shall not continue to accrue any additional service credit or benefits in the system related to the continued service.
(f) Notwithstanding the provisions of section twenty-seven-b of this article, any publicly elected member of the legislative body of any political subdivision or of the State Legislature, the Clerk of the House of Delegates and the Clerk of the Senate may elect to commence receiving in-service retirement distributions from this system upon attaining the age of seventy and one-half years: Provided, That the member is eligible to retire under the provisions of section twenty or twenty-one of this article: Provided, however, That the member elects to stop actively contributing to the system while receiving the in-service distributions.
(g) The provisions of section twenty-two-h of this article are
not applicable to the amendments made to this section during the
2006 Regular Session.
(1) City council, by appropriate ordinance, permits all of its policemen of its police department and/or all of its firemen of its fire department to withdraw from the system.
(2) Each member of its police department and/or fire department so withdrawing from the retirement system must execute a release of all claims against the West Virginia public employees retirement system.
(3) Before any such withdrawal shall be effective, the consulting actuary to the retirement system shall compute all past, present and future liabilities and the municipality shall pay the retirement system for all such liabilities before any withdrawal shall be effective; after an effective withdrawal, pursuant to the terms hereof, if additional liabilities of a municipality are discovered, the board of trustees shall certify such sums due the retirement system and the municipality shall thereafter forthwith pay said sum due the system.
(4) Compliance with rules and regulations as the board of trustees may from time to time promulgate supplementing the above conditions.
Any termination of benefits may be appealed pursuant to the state administrative procedures act in chapter twenty-nine-a of this code. The board shall promulgate rules and regulations regarding the procedure for termination of benefits and the repayment of any benefit in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(a) As an additional bonus payment to other retirement allowances provided, a one-time bonus payment to retirement benefits shall be paid to retirants of the system as provided in subsection (b) of this section. The one-time bonus payment shall equal $1,200 and shall be paid on July 27, 2011.
(b) The one-time bonus payment provided by this section applies to any retirant with at least twenty years of credited service who currently receives an annual retirement annuity of not more than $7,200. This bonus payment is subject to any applicable limitations under section 415 of the Internal Revenue Code of 1986, as amended.
(c) The one-time bonus payment provided by this section shall
be payable pro rata to any beneficiaries of a qualifying retirant
who currently receive an annuity or other benefit payable by the
system.
(a) "Retirement plan" or "plan" means the Public Employees Retirement Act pursuant to article ten of this chapter; each municipal employees retirement plan pursuant to article twenty-two, chapter eight of this code; each policemen's and firemen's pension and relief fund pursuant to article twenty-two, chapter eight of this code; the West Virginia State Police Death, Disability and Retirement Fund pursuant to article two, chapter fifteen of this code; the West Virginia State Police Retirement System pursuant to article two-a, chapter fifteen of this code; the State Teachers Retirement System pursuant to article seven-a, chapter eighteen of this code; the Teachers' Defined Contribution Retirement System pursuant to article seven-b, chapter eighteen of this code; the Deputy Sheriff Retirement System pursuant to article fourteen-d, chapter seven of this code; the higher education retirement plan and supplemental retirement plans pursuant to section four-a, article twenty-three, chapter eighteen of this code; the Judges' Retirement System pursuant to article nine, chapter fifty-one of this code; the West Virginia Emergency Medical Services Retirement System pursuant to article five-v, chapter sixteen of this code; and any other plan established pursuant to this code for the payment of pension, annuity, disability or other benefits to any person by reason of his or her service as an officer or employee of this state or of any political subdivision, agency or instrumentality thereof, whenever the plan is supported, in whole or in part, by public funds.
(b) "Beneficiary" means any person eligible for or receiving benefits on account of the service for a public employer by a participant or former participant in a retirement plan.
(c) "Benefits" means pension, annuity, disability or any other benefits granted pursuant to a retirement plan.
(d) "Conviction" means a conviction on or after the effective date of this article in any federal or state court of record whether following a plea of guilty, not guilty or nolo contendere and whether or not the person convicted was serving as an officer or employee of a public employer at the time of the conviction.
(e) "Former participant" means any person who is no longer eligible to receive any benefit under a retirement plan because full distribution has occurred.
(f) "Less than honorable service" means:
(1) Impeachment and conviction of a participant or former participant under the provisions of section nine, article four of the Constitution of West Virginia, except for a misdemeanor;
(2) Conviction of a participant or former participant of a felony for conduct related to his or her office or employment which he or she committed while holding the office or during the employment; or
(3) Conduct of a participant or former participant which constitutes all of the elements of a crime described in either subdivision (1) or (2) of this subsection but for which the participant or former participant was not convicted because:
(i) Having been indicted or having been charged in an information for the crime, he or she made a plea bargaining agreement pursuant to which he or she pleaded guilty to or nolo contendere to a lesser crime: Provided, That the lesser crime is a felony containing all the elements described in subdivision (1) or (2) of this subsection; or
(ii) Having been indicted or having been charged in an information for the crime, he or she was granted immunity from prosecution for the crime.
(g) "Participant" means any person eligible for or receiving any benefit under a retirement plan on account of his or her service as an officer or employee for a public employer.
(h) "Public employer" means the State of West Virginia and any political subdivision, agency, or instrumentality thereof for which there is established a retirement plan.
(i) "Supervisory board" or "board" means the Consolidated
Public Retirement Board; the board of trustees of any municipal
retirement fund; the board of trustees of any policemen's or
firemen's retirement plan; the governing board of any supplemental
retirement plan instituted pursuant to authority granted by section
four-a, article twenty-three, chapter eighteen of this code; and
any other board, commission or public body having the duty to
supervise and operate any retirement plan.
(1) If more than two years have elapsed since the judgment of conviction upon which the notice is based became final; or
(2) In cases described in subdivision (3), subsection (f), section two of this article, if more than two years have elapsed since, as the case may be: The plea bargaining agreement or the grant of immunity; or
(3) With respect to conduct which occurred prior to the effective date of this article.
(b) The notice shall contain a concise statement of the reasons why the board believes that the participant or former participant rendered less than honorable service and shall be made either by personal service or by certified mail, return receipt requested, to the address which the participant, former participant or beneficiary maintains for purposes of corresponding with the board. If notice is made by certified mail, service shall be considered complete upon mailing and a completed receipt constitutes proof of the receipt of the notice. The notice shall inform the participant, former participant or beneficiary that he or she has the right to demand that the board seek a determination in circuit court of his or her eligibility for benefits and membership in the retirement plan by notifying the board of the demand within forty days. The notice shall also inform the participant, former participant or beneficiary that the board will terminate the benefits in accordance with section four of this article and refund the participant's or former participant's contributions with interest, less benefits previously paid as provided in section six of this article if the participant, former participant or beneficiary either waives the right to demand that the board take the matter before the circuit court or fails to respond to the board's notice within forty days after service.
(b) Upon the filing of a petition by a supervisory board, the circuit court shall give to the affected parties notice and an opportunity to be heard consistent with the demands of due process and necessary for a fair determination of the matter. Upon completion of its hearings the court shall make such findings of fact and conclusions of law as are appropriate. Except in the case of exigent circumstances, the court shall make its determination within sixty days of the filing of the petition by the board.
(c) A determination of the circuit court shall be a final order which may be appealed to the Supreme Court of Appeals in the same manner as decisions in other civil actions.
(b) If the participant or former participant is deceased and there are two or more beneficiaries at least one of whom has given the board timely notice that he or she wishes to exercise the right to demand that the board seek a determination of eligibility in circuit court, the board shall take the action as provided in this section with respect to all the beneficiaries only upon a determination by the court that the participant or former participant has rendered less than honorable service.
(b) Notwithstanding any provision of this article to the contrary, upon being notified by an agency of the State of West Virginia or any of its political subdivisions that an employee has been charged by criminal complaint, indictment or information with an offense which constitutes less than honorable service and larceny of funds or property from a state agency or political subdivision, the retirement board shall withhold payment or refunding of any participant's or former participant's contributions until it receives an order from a court of competent jurisdiction reflecting that the charge has been dismissed, reflecting that the participant or former participant is found not guilty, ordering the release of all or part of the funds or directing restitution to the state or political subdivision.
(c) Notwithstanding any provision of the law to the contrary, any unpaid benefits which have accrued or may thereafter accrue are subject to execution, garnishment, attachment or any other legal process for collection of a judgment for the recovery of loss or damages incurred by the state or its political subdivision caused by the participant's or former participant's less than honorable service.
(a) "Board" means the Consolidated Public Retirement Board provided for in article ten of this chapter.
(b) "Deferred compensation" means the income and earnings on that income an employee may legally defer for personal income tax purposes pursuant to the Internal Revenue Code until distribution.
(c) "Deferred compensation plan" or "plan" means a trust whereby the state employer or a public employer agrees with an employee for the voluntary reduction in employee compensation for the payment of benefits by the state employer or the public employer to the employee at a later date pursuant to this article and the federal laws and regulations relating to eligible state deferred compensation plans as described in Section 457 of the Internal Revenue Code.
(d) "Deferred compensation trust fund" or "trust" means the fund in which deferred amounts and investment income of participating employees are held.
(e) "Employee" means any person, whether appointed, elected or under contract, providing services for the state employer or public employer for which compensation is paid.
(f) "Internal Revenue Code" means the Internal Revenue Code of 1986, as it has been amended.
(g) "Investment product" means any fixed or variable rate annuity, life insurance contract, savings account, certificate of deposit, money market account, bond, mutual fund or any other form of investment not prohibited under the Internal Revenue Code and authorized by the state employer or the public employer for the purpose of receiving funds under a plan.
(h) "Public employer" means counties, municipalities or political subdivisions of those governmental bodies which meet the definition of "state" as described in Internal Revenue Code Section 457 (d)(1), but which do not meet the definition of "state employer" as used in this article.
(i) "State employer" means the State of West Virginia, which includes every state board, commission, agency and instrumentality.
(j) "Treasurer" means the State Treasurer.
(k) "Vendor" means a private entity that sells investment products or provides goods and services.
(b) The state employer or any public employer may, by contract, agree with any of its employees to defer and hold in trust any portion of that employee's compensation and may subsequently purchase or acquire from vendors licensed to do business in the State of West Virginia investment products for the purpose of carrying out the objectives of the deferred compensation plan as described in this article.
(c) Employees are authorized to attend meetings called by the state employer or public employer for the purpose of explaining a plan during regular working hours.
(b) A political subdivision may establish an automatic enrollment program in a deferred compensation plan pursuant to this article. A political subdivision employee may elect to not participate in the deferred compensation plan at any time and to change the contribution amount.
(b) The responsibility for implementing the deferred compensation plan for employees of a public employer is delegated to the county commission of a county, the governing body of a municipality, as that term is defined in section two, article one, chapter eight of this code, and, in the case of any other political subdivision, the board, commission or other similar body responsible for determining the policy of such political subdivision. A county commission or a governing body of another public employer may request the Treasurer authorize its employees to participate in the state plan instead of implementing its own plan.
(c) If the governing body has adopted more than one plan, an employee electing to participate shall also elect the plan or plans in which he or she desires to participate. When a public employer has not implemented a plan, its employees may participate in the state plan.
(d) Payroll reductions shall be remitted as specified by the state employer or public employer for deposit in the trust, in each instance, by the appropriate payroll officer. The board of trustees, the Treasurer or appropriately designated local officer, board or committee of deferred compensation plan may contract with one or more vendors to provide consolidated billing and all or any other goods and services needed for a plan.
(e) Plans shall operate without cost to or contribution from the state employer or public employer except for the incidental expense of administering the payroll salary reductions and the remittance thereof.
(f) The state employer and the public employers may charge fees on plan contributions, total assets, total return or other selected method as necessary to provide for the administrative expenses of a plan.
(b) The West Virginia Deferred Compensation Trust Fund is created within the accounts held by the Treasurer or with one or more financial institutions, vendors or any other entities selected by the Treasurer for the purpose of managing and investing the trust. A public employer managing a trust shall create a trust fund and select one or more financial institutions, vendors or other entities to hold the trust.
(c) The corpus, assets and earnings of the trust do not constitute public funds of the state or public employer and are available solely for carrying out the purposes of this article. Any contract entered into by or any obligation of the state employer or a public employer in connection with a plan does not create or constitute a debt, but is solely an obligation of the trust.
(b) To qualify for participation in the matching program, a state employee shall have contributed to his or her deferred compensation account not less than ten dollars every pay period during a fiscal year.
(c) (1) Subject to the limitations provided by subdivision (2) of this subsection and subsections (e) and (f) of this section, the Treasurer shall allocate and credit a matching sum of up to twenty-five percent of the contributions a qualified state employee made to his or her deferred compensation account during a fiscal year for a period of up to five fiscal years, which contributions shall be at least ten dollars in every pay period during the fiscal year and which matching contributions for any employee shall not exceed one hundred dollars in any one fiscal year and four hundred dollars total over the life of the matching program.
(2) The Treasurer shall set the amount of funds a qualified state employee may receive as a match in accordance with this section in an amount not to exceed the amount of funds authorized by the Legislature for this purpose.
(d) The matching contribution shall be remitted annually by the Treasurer from the West Virginia Deferred Compensation Matching Fund, which is hereby created, to the employee's account in the West Virginia Deferred Compensation Trust Fund no later than the thirtieth day of September each year for the prior fiscal year.
(e) The Treasurer shall not obligate, authorize or pay any match for which funds are not available in the West Virginia Deferred Compensation Matching Fund.
(f) Operation of the matching program is contingent upon funding made available by the West Virginia Legislature and may be changed or discontinued at any time for a time certain or indefinitely, as determined by the Legislature or the Treasurer. The maximum amount of funds that may be expended from the Deferred Compensation Matching Fund in any one fiscal year is one million dollars.
(g) On or before the first day of June, two thousand eight, the unclaimed property administrator shall transfer the amount of one million dollars from the Unclaimed Property Trust Fund to the Deferred Compensation Matching Fund for operation of the matching program.
(h) Moneys in the Deferred Compensation Matching Fund may be invested, in whole or in part, with the West Virginia Board of Treasury Investments or any other entity the Treasurer selects and all earnings shall accrue to and be retained by the fund.
(i) The State of West Virginia, the Treasurer and his or her employees, agents and representatives shall not be liable for any losses incurred by the Deferred Compensation Matching Fund.
(j) Any moneys remaining in the Deferred Compensation Matching Fund at the termination of the matching program shall be transferred to the General Revenue Fund of the state no later than the thirty-first day of December, two thousand twelve.
(k) Any public employer may elect to operate its own matching program.
(b) The board shall appoint an executive director of the retirement systems. The executive director shall be the chief administrative officer of all the systems and he or she shall not be a member of the board. He or she shall perform such duties as are required of him or her in this article and as the board from time to time delegates to him or her. The compensation of the executive director shall be fixed by the board subject to the approval of the governor. The executive director shall, with the approval of the board of trustees, employ any administrative, technical and clerical employees required in the proper operation of the systems.
(c) Notwithstanding the provisions of section two, article three of this chapter, the board shall employ and be represented by an attorney licensed to practice law in the state of West Virginia who is not an active member of any of the retirement systems administered by the board.
(d) An actuary, employed by the state or the board pursuant to section four of this article, shall be the actuarial consultant to the board.
(b) The members shall serve as members without compensation for their services as such: Provided, That each member shall be reimbursed, upon approval of the board, for any necessary expenses actually incurred by him or her in carrying out his or her duties. No public employee member may suffer any loss of salary or wages on account of his or her service as trustee.
(1) Analyze each item of state retirement legislation as to cost, actuarial soundness and adherence to sound pension policy;
(2) Prepare an actuarial note to be attached to each item of state retirement legislation prior to its formal introduction. Such actuarial note shall briefly summarize the proposed legislation and set forth its anticipated fiscal and actuarial impact on the affected state retirement system or systems; and
(3) Such other duties as the board or the board of trustees of the state public retirement system may assign.
(b) The state retirement actuary or actuarial firm, if one is employed by the board, shall be compensated in an amount to be fixed by the board. He or she shall receive, in addition, the necessary expenses incident to the performance of his or her duties. In the event that the board utilizes an actuary already employed by the state to perform duties for the board, the board shall reimburse the department or agency which actually employs the actuary for expenses, including the pro rata portion of salary, that the actuary actually expends in the performance of duties for the board.
Acts, 2000 Reg. Sess., Ch. 54.
(a) Any recipient of monthly retirement benefits from any public retirement plan in this state may authorize that a deduction from his or her monthly benefits be made for the payment of membership dues or fees to a retiree association. The deductions shall be authorized on a form provided by the Consolidated Public Retirement Board and shall include: (1) The identity and social security number of the retiree; (2) the amount and frequency of the deduction; (3) the identity and address of the association to which the dues or fees shall be paid; and (4) the signature of the retiree.
(b) Any retiree association authorized by recipients of monthly benefits from any public retirement plan in this state to receive dues or fees from deductions from retirants' monthly benefits may notify the board of its monthly dues on a form provided by the board: Provided, That no increase in dues or fees will be deducted from any retirant's monthly benefit until the retirant has completed an authorization form containing the information in subsection (a) and submitted this authorization to the board. The increased monthly retiree association dues or fees will be deducted commencing the month following the receipt of the authorization form to the board.
(c) Upon execution of the authorization and its receipt by the
Consolidated Public Retirement Board, the deduction shall be made in the manner specified on the form and remitted to the designated association on the tenth day of each month: Provided, That the deduction may not be made more frequently than monthly.
(d) Deduction authorizations may be revoked at any time at least thirty days prior to the date on which the deduction is regularly made and on a form to be provided by the Consolidated Public Retirement Board.
(e) Notwithstanding the provisions of section twenty-one, article eight, chapter five-a of this code to the contrary, a retiree association representing only West Virginia public retirees may request the board to mail voluntary membership applications and dues deduction cards to any eligible retirees of any West Virginia public retirement plan administered by the board: Provided, That the retiree association shall pay all costs associated with these mailings, including, but not limited to, copying, mailing, postage, record-keeping and auditing: Provided, however, That the board may contract with a third-party to provide mailing services that agrees to maintain the confidentiality of the names, addresses and other personally identifiable information of the retirants.
(f) The board is not liable to any retirant, beneficiary or other annuitant for any action undertaken pursuant to this section. Any retiree association agrees, by requesting the board to deduct dues or fees or to provide mailings for it, to be responsible for any errors or omissions by the board in conducting these activities pursuant to this section.
(g) If any retiree association fails to timely pay to the board all costs required by this section, the board is authorized to thereafter refuse to provide the services in subsection (e).
(h) The provisions of this section shall expire July 1, 2022.
(b) The definitions of the following terms contained in Section 402(l)(4) of the Internal Revenue Code, as it may be amended from time to time, shall apply for purposes of this section:
(1)"Eligible retirement plan";
(2)"Eligible retired public safety officer";
(3)"Public safety officer"; and
(4)"Qualified health insurance premiums".
(c) The amount which a participant or member may elect to have distributed pursuant to subsection (a) of this section shall not exceed three thousand dollars per taxable year of the participant or member (or such other limitation amount as is specified in Section 402(l)(2) of the Internal Revenue Code, as it may be amended or as the limitation may be adjusted from time to time) and any amounts so elected to be distributed shall be paid by the board directly to the provider in payment of the qualified health insurance premiums. "Qualified health insurance premiums" includes premiums for certain accident or health insurance plans and certain long-term care insurance contracts.
(d) For purposes of this section, all eligible retirement plans administered by the board shall be treated as a single plan.
(b) In applying the limitations of subsection (a) of this section, the consolidated public retirement board may: (1) Adopt policies or procedures that may be necessary or appropriate in applying the compensation limitations of Section 401(a)(17) to participants, including, without limitation, the adoption and application of any transitional rules to implement the compensation limitations; and (2) to take any actions that may at any time be required by the internal revenue service regarding compliance with the requirements of Section 401(a)(17), including, without limitation, distributions, credits, set-asides or other adjustments.
Acts, 2010 Reg. Sess., Ch. 32.
(b) Differential wage payments. For years beginning on or after December 31, 2008, if a participant or member of any plan administered by the board is receiving a differential wage payment (as defined by Section 3401(h)(2) of the Internal Revenue Code), then for purposes of applying the Internal Revenue Code to the plan, all of the following shall apply: (i) The participant or member shall be treated as an employee of the employer making the payment; and (ii) the differential wage payment shall be treated as compensation of the participant or member for purposes of applying the Internal Revenue Code (but not for purposes of determining contributions and benefits under the plan, unless the plan terms explicitly so provide); (iii) the plan shall not be treated as failing to meet the requirements of any provision described in Section 414(u)(1)(C) of the Internal Revenue Code by reason of any contribution or benefit which is based on the differential wage payment.
(c) Nondiscrimination. Subsection (b)(iii) applies only if
all employees of the employer performing service in the uniformed
services described in Section 3401(h)(2)(A) of the Internal Revenue
Code are entitled to receive differential wage payments (as defined
in Section 3401(h)(2) of the Internal Revenue Code) on reasonably
equivalent terms and, if eligible to participate in a retirement
plan maintained by the employer, to make contributions based on the
payments on reasonably equivalent terms.
The denial of these rights to properly qualified persons by reason of race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status is contrary to the principles of freedom and equality of opportunity and is destructive to a free and democratic society.
(a) The term "person" means one or more individuals, partnerships, associations, organizations, corporations, labor organizations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups of persons;
(b) The term "commission" means the West Virginia human rights commission;
(c) The term "director" means the executive director of the commission;
(d) The term "employer" means the state, or any political subdivision thereof, and any person employing twelve or more persons within the state for twenty or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year: Provided, That such terms shall not be taken, understood or construed to include a private club;
(e) The term "employee" shall not include any individual employed by his or her parents, spouse or child;
(f) The term "labor organization" includes any organization which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment or for other mutual aid or protection in relation to employment;
(g) The term "employment agency" includes any person undertaking, with or without compensation, to procure, recruit, refer or place employees. A newspaper engaged in the activity of advertising in the normal course of its business shall not be deemed to be an employment agency;
(h) The term "discriminate" or "discrimination" means to exclude from, or fail or refuse to extend to, a person equal opportunities because of race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status and includes to separate or segregate;
(i) The term "unlawful discriminatory practices" includes only those practices specified in section nine of this article;
(j) The term "place of public accommodations" means any establishment or person, as defined herein, including the state, or any political or civil subdivision thereof, which offers its services, goods, facilities or accommodations to the general public, but shall not include any accommodations which are in their nature private. To the extent that any penitentiary, correctional facility, detention center, regional jail or county jail is a place of public accommodation, the rights, remedies and requirements provided by this article for any violation of subdivision (6), section nine of this article shall not apply to any person other than: (1) Any person employed at a penitentiary, correctional facility, detention center, regional jail or county jail; (2) any person employed by a law-enforcement agency; or (3) any person visiting any such employee or visiting any person detained in custody at such facility;
(k) The term "age" means the age of forty or above;
(l) For the purpose of this article, a person shall be considered to be blind only if his central visual acuity does not exceed twenty/two hundred in the better eye with correcting lenses, or if his visual acuity is greater than twenty/two hundred but is occasioned by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than twenty degrees; and
(m) The term "disability" means:
(1) A mental or physical impairment which substantially limits one or more of such person's major life activities. The term "major life activities" includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;
(2) A record of such impairment; or
(3) Being regarded as having such an impairment.
For the purposes of this article, this term does not include persons whose current use of or addiction to alcohol or drugs prevents such persons from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
Members of the commission shall be appointed for terms of three years commencing on the first day of July of the year of their appointments, except that the nine members first appointed hereunder shall be appointed for terms of from one to three years, respectively, so that the terms of three members of the commission will expire on the thirtieth day of June of each succeeding year thereafter. Upon the expiration of the initial terms, all subsequent appointments shall be for terms of three years each, except that appointments to fill vacancies shall be for the unexpired term thereof. Members shall be eligible for reappointment. Before assuming and performing any duties as a member of the commission, each commission member shall take and subscribe to the official oath prescribed by section 5, article IV of the constitution of West Virginia, which executed oath shall be filed in the office of the secretary of state.
The members of the commission shall not receive a salary, but each appointed member shall be paid fifty dollars per diem for actual time spent in the performance of duties under this article and shall be reimbursed for actual and necessary expenses incident to the performance of their duties, upon presentation of an itemized and sworn statement thereof. The foregoing per diem and reimbursement for actual and necessary expenses shall be paid from appropriations made by the Legislature to the commission.
The governor shall, by and with the advice and consent of the Senate, appoint an executive director to serve at his or her will and pleasure. The executive director shall serve as secretary of the commission. The executive director shall have a college degree. He or she shall be selected with particular reference to his or her training, experience and qualifications for the position and shall be paid an annual salary, payable in monthly installments, from any appropriations made therefor. The commission, upon recommendation of the executive director and in accordance with the requirements of the civil service law, may employ such personnel as may be necessary for the effective and orderly performance of the functions and services of the commission. The commission shall employ an administrative law judge who shall be an attorney, duly licensed to practice law in the state of West Virginia, for the conduct of the public hearings authorized in subdivision (3), subsection (d), section eight of this article.
The commission shall equip and maintain its offices at the state capitol and shall hold its annual organizational meeting there. The commission may hold other meetings during the year at such times and places within the state as may be found necessary and may maintain one branch office within the state as determined by the commission to be necessary for the effective and orderly performance of the functions and services of the commission. Any five members of the commission shall constitute a quorum for the transaction of business. Minutes of its meetings shall be kept by its secretary.
The executive director and other commission personnel shall be reimbursed for necessary and reasonable travel and subsistence expenses actually incurred in the performance of commission services upon presentation of properly verified expense accounts as prescribed by law.
(a) To cooperate and work with federal, state and local government officers, units, activities and agencies in the promotion and attainment of more harmonious understanding and greater equality of rights between and among all racial, religious and ethnic groups in this state;
(b) To enlist the cooperation of racial, religious and ethnic units, community and civic organizations, industrial and labor organizations and other identifiable groups of the state in programs and campaigns devoted to the advancement of tolerance, understanding and the equal protection of the laws of all groups and peoples;
(c) To receive, investigate and pass upon complaints alleging discrimination in employment or places of public accommodations, because of race, religion, color, national origin, ancestry, sex, age, blindness or disability, and complaints alleging discrimination in the sale, purchase, lease, rental and financing of housing accommodations or real property because of race, religion, color, national origin, ancestry, sex, blindness, disability or familial status, and to initiate its own consideration of any situations, circumstances or problems, including therein any racial, religious or ethnic group tensions, prejudice, disorder or discrimination reported or existing within the state relating to employment, places of public accommodations, housing accommodations and real property;
(d) To hold and conduct public and private hearings, in the county where the respondent resides or transacts business or where agreed to by the parties or where the acts complained of occurred, on complaints, matters and questions before the commission and, in connection therewith, relating to discrimination in employment or places of public accommodations, housing accommodations or real property and during the investigation of any formal complaint before the commission relating to employment, places of public accommodations, housing accommodations or real property to:
(1) Issue subpoenas and subpoenas duces tecum upon the approval of the executive director or the chairperson of the commission; administer oaths; take the testimony of any person under oath; and make reimbursement for travel and other reasonable and necessary expenses in connection with such attendance;
(2) Furnish copies of public hearing records to parties involved therein upon their payment of the reasonable costs thereof to the commission;
(3) Delegate to an administrative law judge who shall be an attorney, duly licensed to practice law in West Virginia, the power and authority to hold and conduct hearings, as herein provided, to determine all questions of fact and law presented during the hearing and to render a final decision on the merits of the complaint, subject to the review of the commission as hereinafter set forth.
Any respondent or complainant who shall feel aggrieved at any final action of an administrative law judge shall file a written notice of appeal with the commission by serving such notice on the executive director and upon all other parties within thirty days after receipt of the administrative law judge's decision. The commission shall limit its review upon such appeals to whether the administrative law judge's decision is:
(A) In conformity with the constitution and the laws of the state and the United States;
(B) Within the commission's statutory jurisdiction or authority;
(C) Made in accordance with procedures required by law or established by appropriate rules of the commission;
(D) Supported by substantial evidence on the whole record; or
(E) Not arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(4) To enter into conciliation agreements and consent orders.
Each conciliation agreement shall include provisions requiring the respondent to refrain from the commission of unlawful discriminatory practices in the future and shall contain such further provisions as may be agreed upon by the commission and the respondent.
If the respondent and the commission agree upon conciliation terms, the commission shall serve upon the complainant a copy of the proposed conciliation agreement. If the complainant agrees to the terms of the agreement or fails to object to such terms within fifteen days after its service upon him or her, the commission shall issue an order embodying such conciliation agreement. If the complainant objects to the agreement, he or she shall serve a specification of his or her objections upon the commission within such period. Unless such objections are met or withdrawn within ten days after service thereof, the commission shall notice the complaint for hearing.
Notwithstanding any other provisions of this section, the commission may, where it finds the terms of the conciliation agreement to be in the public interest, execute such agreement, and limit the hearing to the objections of the complainant.
If a conciliation agreement is entered into, the commission shall serve a copy of the order embodying such agreement upon all parties to the proceeding.
Not later than one year from the date of a conciliation agreement, the commission shall investigate whether the respondent is complying with the terms of such agreement. Upon a finding of noncompliance, the commission shall take appropriate action to assure compliance;
(5) To apply to the circuit court of the county where the respondent resides or transacts business for enforcement of any conciliation agreement or consent order by seeking specific performance of such agreement or consent order;
(6) To issue cease and desist orders against any person found, after a public hearing, to have violated the provisions of this article or the rules of the commission;
(7) To apply to the circuit court of the county where the respondent resides or transacts business for an order enforcing any lawful cease and desist order issued by the commission;
(e) To recommend to the governor and Legislature policies, procedures, practices and legislation in matters and questions affecting human rights;
(f) To delegate to its executive director such powers, duties and functions as may be necessary and expedient in carrying out the objectives and purposes of this article;
(g) To prepare a written report on its work, functions and services for each year ending on the thirtieth day of June and to deliver copies thereof to the governor on or before the first day of December next thereafter;
(h) To do all other acts and deeds necessary and proper to carry out and accomplish effectively the objects, functions and services contemplated by the provisions of this article, including the promulgation of legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, implementing the powers and authority hereby vested in the commission;
(i) To create such advisory agencies and conciliation councils, local, regional or statewide, as in its judgment will aid in effectuating the purposes of this article, to study the problems of discrimination in all or specific fields or instances of discrimination because of race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status; to foster, through community effort or otherwise, goodwill, cooperation and conciliation among the groups and elements of the population of this state, and to make recommendations to the commission for the development of policies and procedures, and for programs of formal and informal education, which the commission may recommend to the appropriate state agency. Such advisory agencies and conciliation councils shall be composed of representative citizens serving without pay. The commission may itself make the studies and perform the acts authorized by this subdivision. It may, by voluntary conferences with parties in interest, endeavor by conciliation and persuasion to eliminate discrimination in all the stated fields and to foster goodwill and cooperation among all elements of the population of the state;
(j) To accept contributions from any person to assist in the effectuation of the purposes of this section and to seek and enlist the cooperation of private, charitable, religious, labor, civic and benevolent organizations for the purposes of this section;
(k) To issue such publications and such results of investigation and research as in its judgment will tend to promote goodwill and minimize or eliminate discrimination: Provided, That the identity of the parties involved shall not be disclosed.
(1) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is blind or disabled: Provided, That it shall not be an unlawful discriminatory practice for an employer to observe the provisions of any bona fide pension, retirement, group or employee insurance or welfare benefit plan or system not adopted as a subterfuge to evade the provisions of this subdivision;
(2) For any employer, employment agency or labor organization, prior to the employment or admission to membership, to: (A) Elicit any information or make or keep a record of or use any form of application or application blank containing questions or entries concerning the race, religion, color, national origin, ancestry, sex or age of any applicant for employment or membership; (B) print or publish or cause to be printed or published any notice or advertisement relating to employment or membership indicating any preference, limitation, specifications or discrimination based upon race, religion, color, national origin, ancestry, sex, disability or age; or (C) deny or limit, through a quota system, employment or membership because of race, religion, color, national origin, ancestry, sex, age, blindness or disability;
(3) For any labor organization because of race, religion, color, national origin, ancestry, sex, age, blindness or disability of any individual to deny full and equal membership rights to any individual or otherwise to discriminate against such individual with respect to hire, tenure, terms, conditions or privileges of employment or any other matter, directly or indirectly, related to employment;
(4) For an employer, labor organization, employment agency or any joint labor-management committee controlling apprentice training programs to:
(A) Select individuals for an apprentice training program registered with the state of West Virginia on any basis other than their qualifications as determined by objective criteria which permit review;
(B) Discriminate against any individual with respect to his or her right to be admitted to or participate in a guidance program, an apprenticeship training program, on-the-job training program or other occupational training or retraining program;
(C) Discriminate against any individual in his or her pursuit of such programs or to discriminate against such a person in the terms, conditions or privileges of such programs;
(D) Print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for these programs or to make any inquiry in connection with a program which expresses, directly or indirectly, discrimination or any intent to discriminate unless based upon a bona fide occupational qualification;
(5) For any employment agency to fail or refuse to classify properly, refer for employment or otherwise to discriminate against any individual because of his or her race, religion, color, national origin, ancestry, sex, age, blindness or disability;
(6) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodations to:
(A) Refuse, withhold from or deny to any individual because of his or her race, religion, color, national origin, ancestry, sex, age, blindness or disability, either directly or indirectly, any of the accommodations, advantages, facilities, privileges or services of the place of public accommodations;
(B) Publish, circulate, issue, display, post or mail, either directly or indirectly, any written or printed communication, notice or advertisement to the effect that any of the accommodations, advantages, facilities, privileges or services of any such place shall be refused, withheld from or denied to any individual on account of race, religion, color, national origin, ancestry, sex, age, blindness or disability, or that the patronage or custom thereat of any individual, belonging to or purporting to be of any particular race, religion, color, national origin, ancestry, sex or age, or who is blind or disabled, is unwelcome, objectionable, not acceptable, undesired or not solicited; or
(7) For any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to:
(A) Engage in any form of threats or reprisal, or to engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss or to aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in this section;
(B) Willfully obstruct or prevent any person from complying with the provisions of this article, or to resist, prevent, impede or interfere with the commission or any of its members or representatives in the performance of a duty under this article; or
(C) Engage in any form of reprisal or otherwise discriminate against any person because he or she has opposed any practices or acts forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article.
After the filing of any complaint, or whenever there is reason to believe that an unlawful discriminatory practice has been committed, the commission shall make a prompt investigation in connection therewith.
If it shall be determined after such investigation that no probable cause exists for substantiating the allegations of the complaint, the commission shall, within ten days from such determination, cause to be issued and served upon the complainant written notice of such determination, and the said complainant or his attorney may, within ten days after such service, file with the commission a written request for a meeting with the commission to show probable cause for substantiating the allegations of the complaint. If it shall be determined after such investigation or meeting that probable cause exists for substantiating the allegations of the complaint, the commission shall immediately endeavor to eliminate the unlawful discriminatory practices complained of by conference, conciliation and persuasion. The members of the commission and its staff shall not disclose what has transpired in the course of such endeavors: Provided, That the commission may publish the facts in the case of any complaint which has been dismissed, and the terms of conciliation when the complaint has been adjusted, without disclosing the identity of the parties involved.
In case of failure so to eliminate such practice or in advance thereof, if in the judgment of the commission circumstances so warrant, the commission shall cause to be issued and served a written notice, together with a copy of such complaint as the same may have been amended, in the manner provided by law for the service of summons in civil actions, requiring the person, employer, labor organization, employment agency, owner, real estate broker, real estate salesman or financial institution named in such complaint, hereinafter referred to as respondent, to answer the charges of such complaint at a hearing before the commission in the county where the respondent resides or transacts business at a time and place to be specified in such notice: Provided, That said written notice be served at least thirty days prior to the time set for the hearing.
The case in support of the complaint shall be presented before the commission by one of its attorneys or agents. The respondent may file a written, verified answer to the complaint and appear at such hearing in person or otherwise, with or without counsel, and submit testimony and evidence. Except as provided in this article, all of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern the hearing and the administrative procedures in connection with and following such hearing, with like effect as if the provisions of said article five were set forth in extensor in this section.
If, after such hearing and consideration of all of the testimony, evidence and record in the case, the commission shall find that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this article, the commission shall issue and cause to be served on such respondent an order to cease and desist from such unlawful discriminatory practice and to take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, admission or restoration to membership in any respondent labor organization, or the admission to full and equal enjoyment of the services, goods, facilities, or accommodations offered by any respondent place of public accommodation, and the sale, purchase, lease, rental or financial assistance to any complainant otherwise qualified for the housing accommodation or real property, denied in violation of this article, as in the judgment of the commission, will effectuate the purposes of this article, and including a requirement for report of the manner of compliance. Such order shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code.
If, after such hearing and consideration of all of the testimony, evidence and record in the case, the commission shall find that a respondent has not engaged in such unlawful discriminatory practice, the commission shall state its findings of fact and conclusions of law as aforesaid and shall issue and cause to be served on the complainant an order dismissing the said complaint as to such respondent.
A copy of its order shall be delivered in all cases by the commission to the complainant, the respondent, the attorney general and to such other public officers as the commission may deem proper. Any such order shall not be enforceable except as provided in section eleven of this article.
The appeal procedure contained in this subsection shall be the exclusive means of review, notwithstanding the provisions of chapter twenty-nine-a of this code: Provided, That such exclusive means of review shall not apply to any case wherein an appeal or a petition for enforcement of a cease and desist order has been filed with a circuit court of this state prior to the first day of April, one thousand nine hundred eighty-seven.
(b) In the event that any person shall fail to obey a final order of the commission within thirty days after receipt of the same, or, if applicable, within thirty days after a final order of the circuit court or the supreme court of appeals, a party or the commission may seek an order from the circuit court for its enforcement. Such proceedings shall be initiated by filing of a petition in said court, and served upon the respondent in the manner provided by law for the service of summons in civil actions; a hearing shall be held on such petition within sixty days of the date of service. The court may grant appropriate temporary relief, and shall make and enter upon the pleadings, testimony and proceedings such order as is necessary to enforce the order of the commission or supreme court of appeals.
(b) The legislative body of any political subdivision shall have the authority to appropriate funds, in such amounts as may be deemed necessary, for the purpose of contributing to the operation of a local commission.
(c) The local commission shall have the power to appoint such employees and staff, as it may deem necessary, to fulfill its purpose.
(b) Notwithstanding the provisions of subsection (a) of this section, a complainant may institute an action against a respondent in the county wherein the respondent resides or transacts business at any time within ninety days after the complainant is given notice of a right to sue pursuant to this subsection or, if the statute of limitations on the claim has not expired at the end of such ninety-day period, then at any time during which such statute of limitations has not expired. If a suit is filed under this section the proceedings pending before the commission shall be deemed concluded.
The commission shall give a complainant who has filed a complaint a notice of a right to sue upon: (1) The dismissal of the complaint for any reason other than an adjudication of the merits of the case; or (2) the request of a complainant at any time after the timely filing of the complaint in any case which has not been determined on its merits or has not resulted in a conciliation agreement to which the complainant is a party. Upon the issuance of a right to sue letter pursuant to subdivision (1) or (2), the commission may dismiss the complaint.
Notice of right to sue shall be given immediately upon complainant being entitled thereto, by personal service or certified mail, return receipt requested, which notice shall inform the complainant in plain terms of his or her right to institute a civil action as provided in this section within ninety days of the giving of such notice. Service of the notice shall be complete upon mailing.
(c) In any action filed under this section, if the court finds that the respondent has engaged in or is engaging in an unlawful discriminatory practice charged in the complaint, the court shall enjoin the respondent from engaging in such unlawful discriminatory practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employees, granting of back pay or any other legal or equitable relief as the court deems appropriate. In actions brought under this section, the court in its discretion may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant.
(d) The provisions of this section shall be available to all complainants whose active cases are pending before the human rights commission as well as those complainants who file after the effective date of this section.
(1) Physical force or violence against him or her or any other person, or
(2) Damage to, destruction of or trespass on property,
any of which is motivated by race, color, religion, sex, ancestry, national origin, political affiliation or disability.
(b) Whenever any person, whether or not acting under the color of law, intentionally interferes or attempts to interfere with another person's exercise or enjoyment of rights secured by this article or article eleven-a of this chapter, by actual or threatened physical force or violence against that person or any other person, or by actual or threatened damage to, destruction of or trespass on property, the attorney general may bring a civil action:
(1) For injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the rights secured, or
(2) For civil penalties as specified in subsection (c) of this section, or
(3) For both equitable relief and civil penalties.
This action must be brought in the name of the state and instituted in the circuit court for the county where the alleged violator resides or has a principal place of business or where the alleged violation occurred.
(c) A civil penalty of not more than five thousand dollars per violation may be assessed against any person violating this section.
(d) Each preliminary, temporary, or permanent injunction issued under this section must include a statement describing the penalties to be imposed for a knowing violation of the order or injunction as provided in subsection (e) of this section. The clerk of the circuit court shall transmit one certified copy of each order or injunction issued under this section to the appropriate law-enforcement agency or agencies having authority over locations where the defendant was alleged to have committed the act giving rise to the action, and service of the order or injunction must be accomplished pursuant to the West Virginia rules of civil procedure.
(e) A person who knowingly violates a preliminary, temporary or permanent injunction issued under this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five thousand dollars, or imprisoned in the county or regional jail not more than one year, or both fined and imprisoned.
Acts, 2010 Reg. Sess., Ch. 32.
(a) "Commission" means the West Virginia Human Rights Commission;
(b) "Dwelling" means any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence or sleeping place by one or more persons or families and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof;
(c) "Family" includes a single individual;
(d) "Person" includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 of the United States Code, receivers and fiduciaries;
(e) "To rent" includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant;
(f) "Discriminatory housing practice" means an act that is unlawful under section five, six, seven or nineteen of this article;
(g) "Handicap" means, with respect to a person:
(1) A physical or mental impairment which substantially limits one or more of such person's major life activities;
(2) A record of having such an impairment; or
(3) Being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance, as defined in Section 102 of the Controlled Substances Act, Title 21, United States Code, Section 802;
(h) "Aggrieved person" includes any person who:
(1) Claims to have been injured by a discriminatory housing practice; or
(2) Believes that such person will be injured by a discriminatory housing practice that is about to occur;
(i) "Complainant" means the person, including the commission, who files a complaint under section eleven of this article;
(j) "Familial status" means:
(1) One or more individuals who have not attained the age of eighteen years being domiciled with:
(A) A parent or another person having legal custody of such individual or individuals; or
(B) The designee of such parent or other person having such custody with the written permission of such parent or other person; or
(2) Any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years;
(k) "Conciliation" means the attempted resolution of issues raised by a complaint or by the investigation of such complaint through informal negotiations involving the aggrieved person, the respondent and the commission;
(l) "Conciliation agreement" means a written agreement setting forth the resolution of the issues in conciliation;
(m) "Respondent" means:
(1) The person or other entity accused in a complaint of an unfair housing practice; and
(2) Any other person or entity identified in the course of investigation and notified as required with respect to respondents so identified under subsection (a), section eleven of this article;
(n) The term "rooming house" means a house or building where there are one or more bedrooms which the proprietor can spare for the purpose of giving lodgings to such persons as he or she chooses to receive; and
(o) The term "basic universal design" means the design of products and environments to be useable by all people, to the greatest extent possible, without the need for adaptation or specialization.
(1) Any single-family house sold or rented by an owner: Provided, That such private individual owner does not own more than three such single-family houses at any one time: Provided, however, That in the case of the sale of any such single-family house by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall apply only with respect to one such sale within any twenty-four month period: Provided further, That such bona fide private individual owner does not own any interest in, nor is there owned or reserved on his behalf under any express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of more than three such single-family houses at any one time: And provided further, That the sale or rental of any such single-family house shall be excepted from the application of this article only if such house is sold or rented:
(A) Without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman or person; and
(B) Without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of subsection (c), section five of this article; but nothing in this proviso shall prohibit the use of attorneys, escrow agents, abstractors, title companies and other such professional assistance as necessary to perfect or transfer the title; or
(2) Rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.
(b) For the purposes of subsection (a) of this section, a person shall be deemed to be in the business of selling or renting dwellings if:
(1) He has within the preceding twelve months participated as principal in three or more transactions involving the sale or rental of any dwelling or any interest therein;
(2) He has within the preceding twelve months participated as agent, other than in the sale of his own personal residence, in providing sales or rental facilities or sales or rental services in two or more transactions involving the sale or rental of any dwelling or any interest therein; or
(3) He is the owner of any dwelling designed or intended for occupancy by or occupied by five or more families.
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, ancestry, sex, familial status, blindness, handicap or national origin;
(b) To discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, ancestry, sex, familial status, blindness, handicap or national origin;
(c) To make, print or publish, or cause to be made, printed or published any notice, statement or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, sex, blindness, handicap, familial status, ancestry or national origin, or an intention to make any such preference, limitation or discrimination;
(d) To represent to any person because of race, color, religion, sex, blindness, handicap, familial status, ancestry or national origin that any dwelling is not available for inspection, sale or rental when such dwelling is in fact so available;
(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, blindness, handicap, familial status, ancestry or national origin; or
(f) (1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of: (A) That buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is so sold, rented or made available; or (C) any person associated with that buyer or renter.
(2) To discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of: (A) That person; (B) a person residing in or intending to reside in that dwelling after it is so sold, rented or made available; or (C) any person associated with that person.
(3) For purposes of this subdivision, discrimination includes:
(A) A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;
(B) A refusal to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or
(C) In connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is thirty months after the date of enactment of the West Virginia fair housing act, a failure to design and construct those dwellings in such a manner that:
(i) The public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;
(ii) All the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(iii) All premises within such dwellings contain the following features of adaptive design: (I) An accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.
(4) Compliance with the appropriate requirements of the American national standard for buildings and facilities providing accessibility and usability for physically handicapped people, commonly cited as ANSI A117.1, suffices to satisfy the requirements of subparagraph (3)(C)(iii) of this subdivision.
(5)(A) If a unit of general local government has incorporated into its laws the requirements set forth in subparagraph (3)(C) of this subdivision, compliance with such laws shall be deemed to satisfy the requirements of that subparagraph.
(B) The commission or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of subparagraph (3)(C) of this subdivision are met.
(C) The commission shall encourage, but may not require, units of local government to include in their existing procedures for the review and approval of newly constructed covered multifamily dwellings, determinations as to whether the design and construction of such dwellings are consistent with subparagraph (3)(C) of this subdivision, and may provide technical assistance to units of local government and other persons to implement the requirements of such subparagraph.
(D) Nothing in this article shall be construed to require the commission to review or approve the plans, designs or construction of all covered multifamily dwellings to determine whether the design and construction of such dwellings are consistent with the requirements of subparagraph (3)(C) of this subdivision.
(6) (A) Nothing in paragraph (5) of this subdivision shall be construed to affect the authority and responsibility of the commission or a local public agency to receive and process complaints or otherwise engage in enforcement activities under this article.
(B) Determinations by a unit of general local government under subparagraphs (5)(A) and (B) of this subdivision shall not be conclusive in enforcement proceedings under this article.
(7) As used in this section, the term "covered multifamily dwellings" means: (A) Buildings consisting of four or more units if such buildings have one or more elevators; and (B) ground floor units in other buildings consisting of four or more units.
(8) Nothing in this article shall be construed to invalidate or limit any law of this state or any political subdivision hereof that requires dwellings to be designed and constructed in a manner that affords handicapped persons greater access than is required by this article.
(9) Nothing in this section requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. The burden of proving such threat to health or safety or the likelihood of such damage shall be upon the respondent.
(b) As used in this section, the term "residential real estate-related transaction" means any of the following:
(1) The making or purchasing of loans or providing other financial assistance: (A) For purchasing, constructing, improving, repairing or maintaining a dwelling; or (B) secured by residential real estate; or
(2) The selling, brokering or appraising of residential real property.
(c) Nothing in this article prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, ancestry, sex, blindness, handicap or familial status.
(b) (1) Nothing in this article limits the applicability of any reasonable local, state or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling. Nor does any provision in this article regarding familial status apply with respect to housing for older persons.
(2) As used in this section, "housing for older persons" means housing:
(A) Provided under any state or federal program that the secretary of the United States department of housing and urban development determines is specifically designed and operated to assist elderly persons, as defined in the state or federal program; or
(B) Intended for, and solely occupied by, persons sixty-two years of age or older; or
(C) Intended and operated for occupancy by at least one person fifty-five years of age or older per unit. In determining whether housing qualifies as housing for older persons under this subsection, the commission shall develop regulations which require at least the following factors: (i) The existence of significant facilities and services specifically designed to meet the physical or social needs of older persons, or if the provision of such facilities and services is not practicable, that such housing is necessary to provide important housing opportunities for older persons; (ii) that at least eighty percent of the units are occupied by at least one person fifty-five years of age or older per unit; and (iii) the publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons fifty-five years of age or older.
(3) Housing shall not fail to meet the requirements for housing for older persons by reason of: (A) Persons residing in such housing as of the date of enactment of this article who do not meet the age requirements of subdivision (2)(B) or (C) of this subsection: Provided, That new occupants of such housing meet the age requirements of such subdivisions; or (B) unoccupied units: Provided, however, That such units are reserved for occupancy by persons who meet the age requirements of subdivision (2)(B) or (C) of this subsection.
(4) Nothing in this article prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance as defined in Section 102 of the Controlled Substances Act, Title 21, United States Code, Section 802.
The commission may delegate any of its functions, duties and powers to employees of the human rights commission, including functions, duties and powers with respect to investigating, conciliating, hearing, determining, ordering, certifying, reporting or otherwise acting as to any work, business or matter under this article. The person to whom such delegations are made with respect to hearing functions, duties and powers shall be a licensed attorney. Insofar as possible, conciliation meetings shall be held in the county where the discriminatory housing practices allegedly occurred. The commission shall by rule prescribe such rights of appeal from the decisions of its administrative law judges to other administrative law judges or to other officers in the commission, to boards of officers or to itself, as shall be appropriate and in accordance with law.
All executive departments and agencies shall administer their programs and activities relating to housing, including any agency having regulatory or supervisory authority over financial institutions, in a manner affirmatively to further the purposes of this article and shall cooperate with the commission to further such purposes.
The commission may:
(1) Make studies with respect to the nature and extent of discriminatory housing practices in representative communities, urban, suburban and rural, throughout the state;
(2) Publish and disseminate reports, recommendations and information derived from such studies, including reports to the Legislature specifying the nature and extent of progress made statewide in eliminating discriminatory housing practices and furthering the purposes of this article, obstacles remaining to achieving equal housing opportunity and recommendations for further legislative or executive action;
(3) Cooperate with and execute such cooperative agreements with federal agencies as are necessary to carry out the provisions of this article; and
(4) Administer the programs and activities relating to fair housing in a manner affirmatively to further the policies of this article.
(B) Upon the filing of such complaint: (i) The commission shall serve notice upon the aggrieved person acknowledging such filing and advising the aggrieved person of the time limits and choice of forums provided under this article; (ii) the commission shall, not later than ten days after such filing or the identification of an additional respondent under paragraph (2) of this subsection, serve on the respondent a notice identifying the alleged discriminatory housing practice and advising such respondent of the procedural rights and obligations of respondents under this article, together with a copy of the original complaint; (iii) each respondent may file, not later than ten days after receipt of notice from the commission, an answer to such complaint; and (iv) unless it is impracticable to do so, the commission shall make an investigation of the alleged discriminatory housing practice and complete such investigation within one hundred days after the filing of the complaint.
(C) If the commission is unable to complete the investigation within one hundred days after the filing of the complaint, the commission shall notify the complainant and respondent in writing of the reasons for not doing so.
(D) Complaints and answers shall be under oath or affirmation and may be reasonably and fairly amended at any time.
(2) (A) A person who is not named as a respondent in a complaint, but who is identified as a respondent in the course of investigation, may be joined as an additional or substitute respondent upon written notice, under paragraph (1) of this subsection, to such person, from the commission.
(B) Such notice, in addition to meeting the requirements of paragraph (1) of this subsection, shall explain the basis for the commission's belief that the person to whom the notice is addressed is properly joined as a respondent.
(b) (1) During the period beginning with the filing of such complaint and ending with the filing of a charge or a dismissal by the commission, the commission shall, to the extent feasible, engage in conciliation with respect to such complaint.
(2) A conciliation agreement arising out of such conciliation shall be an agreement between the respondent and the complainant and shall be subject to approval by the commission.
(3) A conciliation agreement may provide for binding arbitration of the dispute arising from the complaint. Any such arbitration that results from a conciliation agreement may award appropriate relief, including monetary relief.
(4) Each conciliation agreement shall be made public unless the complainant and respondent otherwise agree and the commission determines that disclosure is not required to further the purposes of this article.
(5) (A) At the end of each investigation under this section, the commission shall prepare a final investigative report containing: (i) The names and dates of contacts with witnesses; (ii) a summary and the dates of correspondence and other contacts with the aggrieved person and the respondent; (iii) a summary description of other pertinent records; (iv) a summary of witness statements; and (v) answers to interrogatories.
(B) A final report under this paragraph may be amended if additional evidence is later discovered.
(c) Whenever the commission has reasonable cause to believe that a respondent has breached a conciliation agreement, the commission shall refer the matter to the attorney general with a recommendation that a civil action be filed under section fifteen of this article for the enforcement of such agreement.
(d) Nothing said or done in the course of conciliation under this article may be made public or used as evidence in a subsequent proceeding under this article without the written consent of the persons concerned, except the commission shall make available to the aggrieved person and the respondent, at any time, upon request following completion of the commission's investigation, information derived from an investigation and any final investigative report relating to that investigation.
(e) (1) If the commission concludes at any time following the filing of a complaint that prompt judicial action is necessary to carry out the purposes of this article, the commission may authorize a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint under this section. Upon receipt of such authorization, the attorney general shall promptly commence and maintain such an action. Any temporary injunction or other order granting preliminary or temporary relief shall be issued in accordance with the West Virginia rules of civil procedure. The commencement of a civil action under this subsection does not affect the initiation or continuation of administrative proceedings under this section and section thirteen of this article.
(2) Whenever the commission has reason to believe that a basis may exist for the commencement of proceedings against any respondent under subsections (a) and (b), section fifteen of this article or for proceedings by any governmental licensing or supervisory authorities, the commission shall transmit the information upon which such belief is based to the attorney general, or to such authorities, as the case may be.
(f) (1) The commission shall within one hundred days after the filing of the complaint determine, based on the facts, whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, unless it is impracticable to do so, or unless the commission has approved a conciliation agreement with respect to the complaint. If the commission is unable to make the determination within one hundred days after the filing of the complaint, the commission shall notify the complainant and respondent in writing of the reasons for not doing so.
(2) (A) If the commission determines that reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the commission shall, except as provided in subparagraph (C), immediately issue a charge on behalf of the aggrieved person, for further proceedings under section thirteen of this article.
(B) Such charge: (i) Shall consist of a short and plain statement of the facts upon which the commission has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur; (ii) shall be based on the final investigative report; and (iii) need not be limited to the facts or grounds alleged in the complaint filed under subsection (a) of this section.
(C) If the commission determines that the matter involves the legality of any state or local zoning or other land use law or ordinance, the commission shall immediately refer the matter to the attorney general for appropriate action under section fifteen of this article, instead of issuing such charge.
(3) If the commission determines that no reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the commission shall promptly dismiss the complaint. The commission shall make public disclosure of each such dismissal.
(4) The commission may not issue a charge under this section regarding an alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved party under an act of Congress or a state law seeking relief with respect to that discriminatory housing practice.
(g) After the commission issues a charge under this section, the commission shall cause a copy thereof, together with information as to how to make an election under subsection (a), section thirteen of this article and the effect of such an election, to be served: (1) On each respondent named in such charge, together with a notice of opportunity for a hearing at a time and place specified in the notice, unless that election is made; and (2) on each aggrieved person on whose behalf the complaint was filed.
Witnesses summoned by a subpoena under this article shall be entitled to the same witness and mileage fees as witnesses in proceedings in the circuit courts of this state. Fees payable to a witness summoned by a subpoena shall be paid by the commission, the complainant or the respondent in accordance with section one, article five, chapter twenty-nine-a of this code.
Enforcement of subpoenas may be had in the circuit courts of this state as set out in section one, article five, chapter twenty-nine-a of this code.
(b) If an election is not made under subsection (a) of this section with respect to a charge filed under section eleven of this article, the commission shall provide an opportunity for a hearing on the record with respect to a charge issued under said section. The commission shall delegate the conduct of a hearing under this section to an administrative law judge who shall be a licensed attorney. The administrative law judge shall conduct the hearing at a place in the county in which the discriminatory housing practice is alleged to have occurred or is about to occur.
(c) At a hearing under this section, each party may appear in person, be represented by counsel, present evidence, cross-examine witnesses and obtain the issuance of subpoenas under section twelve of this article. Any aggrieved person may intervene as a party in the proceeding. The rules of evidence apply to the presentation of evidence in such hearing as they would in a civil action in the circuit courts of this state. The case in support of the complaint shall be presented before the administrative law judge by the attorney general.
(d) (1) Discovery in administrative proceedings under this section shall be conducted as expeditiously and inexpensively as possible, consistent with the need of all parties to obtain relevant evidence.
(2) A hearing under this section shall be conducted as expeditiously and inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair hearing and a complete record.
(3) The commission shall, not later than one hundred eighty days after the date of enactment of this subsection, issue rules to implement this subsection.
(e) Any resolution of a charge before a final order under this section shall require the consent of the aggrieved person on whose behalf the charge is issued.
(f) An administrative law judge may not continue administrative proceedings under this section regarding any alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved party under an act of Congress or a state law seeking relief with respect to that discriminatory housing practice.
(g) (1) The administrative law judge shall commence the hearing under this section no later than one hundred twenty days following the issuance of the charge, unless it is impracticable to do so. If the administrative law judge is unable to commence the hearing within one hundred twenty days after the issuance of the charge, the administrative law judge shall notify the commission, the aggrieved person on whose behalf the charge was filed and the respondent in writing of the reasons for not doing so.
(2) The administrative law judge shall make findings of fact and conclusions of law within sixty days after the end of the hearing under this section, unless it is impracticable to do so. If the administrative law judge is unable to make findings of fact and conclusions of law within such period, or any succeeding sixty-day period thereafter, the administrative law judge shall notify the commission, the aggrieved person on whose behalf the charge was filed and the respondent in writing of the reasons for not doing so.
(3) If the administrative law judge finds that a respondent has engaged or is about to engage in a discriminatory housing practice, such administrative law judge shall promptly issue an order for such relief as may be appropriate, which may include actual damages suffered by the aggrieved person and injunctive or other equitable relief. Such order may, to vindicate the public interest, assess a civil penalty against the respondent: (A) In an amount not exceeding ten thousand dollars if the respondent has not been adjudged to have committed any prior discriminatory housing practice; (B) in an amount not exceeding twenty-five thousand dollars if the respondent has been adjudged to have committed one other discriminatory housing practice during the five-year period ending on the date of the filing of this charge; and (C) in an amount not exceeding fifty thousand dollars if the respondent has been adjudged to have committed two or more discriminatory housing practices during the seven-year period ending on the date of the filing of this charge; except that if the acts constituting the discriminatory housing practice that are the object of the charge are committed by the same natural person who has been previously adjudged to have committed acts constituting a discriminatory housing practice, then the civil penalties set forth in subparagraphs (B) and (C) may be imposed without regard to the period of time within which any subsequent discriminatory housing practice occurred.
(4) No such order shall affect any contract, sale, encumbrance or lease consummated before the issuance of such order and involving a bona fide purchaser, encumbrancer or tenant without actual notice of the charge filed under this article.
(5) In the case of an order with respect to a discriminatory housing practice that occurred in the course of a business subject to licensing or regulation by a governmental agency, the commission shall, not later than thirty days after the date of the issuance of such order or, if such order is judicially reviewed, thirty days after such order is in substance affirmed upon such review: (A) Send copies of the findings of fact, conclusions of law and the order to that governmental agency; and (B) recommend to that governmental agency appropriate disciplinary action, including, where appropriate, the suspension or revocation of the license of the respondent.
(6) In the case of an order against a respondent against whom another order was issued within the preceding five years under this section, the commission shall send a copy of each such order to the attorney general.
(7) If the administrative law judge finds that the respondent has not engaged or is not about to engage in a discriminatory housing practice, as the case may be, such administrative law judge shall enter an order dismissing the charge. The commission shall make public disclosure of each such dismissal.
(h) (1) The commission may review any finding, conclusion or order issued under subsection (g) of this section. Such review shall be completed not later than thirty days after the finding, conclusion or order is so issued; otherwise the finding, conclusion or order becomes final.
(2) The commission shall cause the findings of fact and conclusions of law made with respect to any final order for relief under this section, together with a copy of such order, to be served on each aggrieved person and each respondent in the proceeding.
(i) (1) Any party aggrieved by a final order for relief under this section granting or denying, in whole or in part, the relief sought may obtain a review of such order under section four, article five, chapter twenty-nine-a of this code.
(2) Notwithstanding chapter twenty-nine-a of this code, venue of the proceeding shall be in the judicial circuit in which the discriminatory housing practice is alleged to have occurred and filing of the petition for review shall be not later than thirty days after the order is entered.
(j) (1) The commission may petition the circuit court in the circuit in which the discriminatory housing practice is alleged to have occurred or in which any respondent resides or transacts business for the enforcement of the order of the administrative law judge and for appropriate temporary relief or injunctive relief by filing in such court a written petition praying that such order be enforced and for appropriate temporary relief or injunctive relief.
(2) The commission shall file in court with the petition the record in the proceeding. A copy of such petition shall be forthwith transmitted by the clerk of the court to the parties to the proceeding before the administrative law judge.
(k) (1) Upon the filing of a petition under subsection (i) or (j) of this section, the court may:
(A) Grant to the petitioner, or any other party, such temporary relief, injunction or other order as the court deems just and proper;
(B) Affirm the order or decision of the administrative law judge or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the administrative law judge if the substantial rights of the parties have been prejudiced because the administrative findings, inferences, conclusions, decision or order are: (i) In violation of constitutional or statutory provisions; or (ii) in excess of the statutory authority or jurisdiction of the commission; or (iii) made upon unlawful procedures; or (iv) affected by other error of law; or (v) clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; and
(C) Enforce such order to the extent that such order is affirmed or modified.
(2) Any party to the proceeding before the administrative law judge may intervene in the circuit court.
(3) No objection not made before the administrative law judge shall be considered by the court, unless the failure or neglect to urge such objection is excused because of extraordinary circumstances.
(4) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals of this state in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
(l) If no petition for review is filed under subsection (i) of this section before the expiration of forty-five days after the date the administrative law judge's order is entered, the administrative law judge's findings of fact and order shall be conclusive in connection with any petition for enforcement: (1) Which is filed by the commission under subsection (j) of this section after the end of such day; or (2) under subsection (m) of this section.
(m) If before the expiration of sixty days after the date the administrative law judge's order is entered, no petition for review has been filed under subsection (i) of this section, and the commission has not sought enforcement of the order under subsection (j) of this section, any person entitled to relief under the order may petition for a decree enforcing the order in the circuit court for the circuit in which the discriminatory housing practice is alleged to have occurred.
(n) The judge of the circuit court in which a petition for enforcement is filed under subsection (l) or (m) of this section shall forthwith enter a decree enforcing the order and shall transmit a copy of such decree to the commission, the respondent named in the petition and to any other parties to the proceeding before the administrative law judge. The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals pursuant to section one, article six, chapter twenty-nine-a of this code.
(o) (1) If an election is made under subsection (a) of this section, the commission shall authorize, and not later than thirty days after the election is made the attorney general shall commence and maintain, a civil action on behalf of the aggrieved person in the appropriate circuit court seeking relief under this subsection. Venue for such civil action shall be in the circuit court in the county in which the alleged discriminatory housing practice occurred.
(2) Any aggrieved person with respect to the issues to be determined in a civil action under this subsection may intervene as of right in that civil action.
(3) In a civil action under this subsection, if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may grant as relief any relief which a court could grant with respect to such discriminatory housing practice in a civil action under section fourteen of this article. Any relief so granted that would accrue to an aggrieved person in a civil action commenced by that aggrieved person under said section shall also accrue to that aggrieved person in a civil action under this subsection. If monetary relief is sought for the benefit of an aggrieved person who does not intervene in the civil action, the court shall not award such relief if that aggrieved person has not complied with discovery orders entered by the court.
(p) In any administrative proceeding brought under this section, or any court proceeding arising therefrom, or any civil action under section fourteen of this article, the administrative law judge or the court, as the case may be, in its discretion, may allow a prevailing complainant a reasonable attorney's fee and costs.
(B) The computation of such two-year period shall not include any time during which an administrative proceeding under this article was pending with respect to a complaint or charge under this article based upon such discriminatory housing practice. This subparagraph does not apply to actions arising from a breach of a conciliation agreement.
(2) An aggrieved person may commence a civil action under this subsection whether or not a complaint has been filed under subsection (a), section eleven of this article and without regard to the status of any such complaint, but if the commission has obtained a conciliation agreement with the consent of an aggrieved person, no action may be filed under this subsection by such aggrieved person with respect to the alleged discriminatory housing practice which forms the basis for such complaint except for the purpose of enforcing the terms of such an agreement.
(3) An aggrieved person may not commence a civil action under this subsection with respect to an alleged discriminatory housing practice which forms the basis of a charge issued by the commission if an administrative law judge has commenced a hearing on the record under this article with respect to such charge.
(b) Upon application by a person alleging a discriminatory housing practice, the court may: (1) Appoint an attorney for such person; or (2) authorize the commencement or continuation of a civil action under subsection (a) of this section without the payment of fees, costs or security, if in the opinion of the court such person is financially unable to bear the costs of such action.
(c) (1) In a civil action under subsection (a) of this section, if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may award to the complainant actual and punitive damages, and subject to subsection (d) of this section, may grant as relief, as the court deems appropriate, any permanent or temporary injunction or other order, including an order enjoining the respondent from engaging in such practice or ordering such affirmative action as may be appropriate.
(2) In a civil action under subsection (a) of this section, the court, in its discretion, may allow a prevailing complainant a reasonable attorney's fee and costs.
(d) Relief granted under this section shall not affect any contract, sale, encumbrance or lease consummated before the granting of such relief and involving a bona fide purchaser, encumbrancer or tenant without actual notice of the filing of a complaint with the commission or civil action under this section.
(e) Upon timely application, the attorney general may intervene in such civil action, if the attorney general certifies that the case is of general public importance. Upon such intervention the attorney general may obtain such relief as would be available to the attorney general under subsection (d), section fifteen of this article in a civil action to which such section applies.
(b) (1) The attorney general may commence a civil action in any appropriate circuit court for appropriate relief with respect to a discriminatory housing practice referred to the attorney general by the commission under subsection (f), section eleven of this article. A civil action under this paragraph may be commenced not later than the expiration of eighteen months after the date of the occurrence or the termination of the alleged discriminatory housing practice.
(2) The attorney general may commence a civil action in any appropriate circuit court for appropriate relief with respect to breach of a conciliation agreement referred to the attorney general by the commission under subsection (c), section eleven of this article. A civil action may be commenced under this paragraph not later than the expiration of ninety days after the referral of the alleged breach under subsection (c), section eleven of this article.
(c) The attorney general, on behalf of the commission or other party at whose request a subpoena is issued under this article, may enforce such subpoena in appropriate proceedings in the circuit court for the circuit in which the person to whom the subpoena was addressed resides, was served or transacts business.
(d) (1) In a civil action under subsection (a) or (b) of this section, the court:
(A) May award such preventive relief, including a permanent or temporary injunction or other order against the person responsible for a violation of this article as is necessary to assure the full enjoyment of the rights granted by this article;
(B) May award such other relief as the court deems appropriate, including monetary damages to persons aggrieved; and
(C) May, to vindicate the public interest, assess a civil penalty against the respondent: (i) In an amount not exceeding fifty thousand dollars for a first violation; and (ii) in an amount not exceeding one hundred thousand dollars for any subsequent violation.
(2) In a civil action under this section, the court, in its discretion, may allow a prevailing complainant a reasonable attorney's fee and costs.
(e) Upon timely application, any person may intervene in a civil action commenced by the attorney general under subsection (a) or (b) of this section which involves an alleged discriminatory housing practice with respect to which such person is an aggrieved person or a conciliation agreement to which such person is a party. The court may grant such appropriate relief to any such intervening party as is authorized to be granted to a complainant in a civil action under section fourteen of this article.
Acts, 1977 1st Ex. Sess., Ch. 7.
(a) "State system" means the West Virginia public employees retirement system and the state teachers' retirement system.
(b) "Public system" means the West Virginia public employees retirement system.
(c) "Teacher system" means the state teachers' retirement system.
(d) "Member" means a member of either the West Virginia public employees retirement system or the state teachers' retirement system. The term "member" shall not include any person who has retired under either state system.
(e) "Accumulated contributions" means the sum of the amounts deducted from the compensations of a member and credited to his individual account in a state system, together with interest, if any, credited thereto.
(f) "Public final average salary" means a member's final average salary computed according to the law governing the public system. In computing his public final average salary, the compensations, if any, received by him for services rendered in positions covered by the teacher system shall be used in the same manner as if the compensations were received for services covered by the public system.
(g) "Teacher average salary" means a member's average salary computed according to the law governing the teacher system. In computing his teacher average salary, the compensations, if any, received by him for services rendered in positions covered by the public system shall be used in the same manner as if the compensations were received for services covered by the teacher system.
(h) "Reciprocal service credit" for a member of the public system who subsequently becomes a member of the teacher system, or vice versa, means the sum of his credited service in force acquired as a member of the public system and his credit service in force acquired as a member of the teacher system.
(i) "Annuity" means the annuity payable by a state system.
(j) The masculine gender includes the feminine, and words of the singular number with respect to persons include the plural number, and vice versa.
(b) Transfer from teacher service system to public service system. -- Notwithstanding the provisions of law governing the state teachers' retirement system, in the event a member leaves a position covered by the teacher system and becomes employed in a position covered by the public system, he shall not forfeit his credited service acquired as a member of the teacher system: Provided, That he returns to the teacher system the amount of accumulated contributions he might have withdrawn therefrom, together with interest prescribed by the said teacher system: Provided, however, That he has not retired under either the public system or the teacher system: Provided further, That after the effective date of this article such subsequent employment in a position covered by the public system must occur within a period of five years from and after the date on which such person left a position covered by the teacher system. Such return of accumulated contributions shall be made in accordance with such rules and regulations as the retirement board of the teacher system shall from time to time adopt.
(a) A member's reciprocal service credit in force shall be used to satisfy the service requirements for retirement under the state system from which he retires.
(b) If a member, who has reciprocal service credit in force, retires under the public system, he shall receive an annuity payable by the public system and an annuity payable by the teacher system. His public system annuity shall be based upon (1) the portion of his reciprocal service credit acquired as a member of the public system, and (2) his public final average salary. His teacher system annuity shall be based upon (1) the portion of his reciprocal service credit acquired as a member of the teacher system, and (2) his teachers' retirement allowance as provided by the teachers' retirement act. His teacher system annuity shall begin as of the date he retires under the public system, but in no case prior to the date he would have been eligible to retire under the teacher system if all his reciprocal service credit had been acquired as a member of the teacher system.
(c) If a member, who has reciprocal service credit in force, retires under the teacher system, he shall receive an annuity payable by the teacher system and an annuity payable by the public system. His teacher system annuity shall be based upon (1) the portion of his reciprocal service credit acquired as a member of the teacher system, and (2) his teachers' retirement allowance as provided by the teachers' retirement act. His public system annuity shall be based upon (1) the portion of his reciprocal service credit acquired as a member of the public system, and (2) his public final average salary. His public system annuity shall begin as of the date he retired under the teacher system, but in no case prior to the date he would have been eligible to retire under the public system if all his reciprocal service credit had been acquired as a member of the public system.
The provisions of this section, as amended, shall be retroactive to June eleventh, one thousand nine hundred sixty-five.
(b) In the event a member of the teacher system has served in a position prior to the date the public system was created, which position would be covered under the public system as of the date of retirement had the public system been in existence at said time, the teachers' retirement board of the teacher system may grant said member prior service credit for said time worked under such rules and regulations as the teacher board may from time to time adopt.
Acts, 1974 Reg. Sess., Ch. 103.
(a) There is a need for West Virginia to adequately identify the hearing-impaired population and provide efficient and effective services to such population;
(b) Hearing-impaired people need to be more involved in the decisions and programs that affect their lives by soliciting and seriously considering their collective opinion on appropriate matters;
(c) Cooperation among state and local agencies must be facilitated in an effort to ensure that adequate and appropriate services are available and provided;
(d) In order to further the aforementioned goals it is necessary to determine what services exist and what services can be developed in order to match services to individual needs;
(e) A rubella epidemic from one thousand nine hundred sixty-three to one thousand nine hundred sixty-five caused a number of infants in West Virginia to be born hearing-impaired. These individuals are approaching the ages where they will no longer be eligible for educational services, thus requiring services as young adults. The Legislature, therefore, declares that there is an unprecedented and imperative need to plan and prepare for the multiplicity of services required in order to ensure a life-long continuum of services to this particular population;
(f) There must be more emphasis on the use of interpreters for deaf and hard-of-hearing people and on the quality control of such services;
(g) There must be more emphasis on the use of telecommunication devices for the deaf (tdds) and means to provide them for hearing-impaired people;
(h) Through the implementation of the provisions of this article, the deaf and hard-of-hearing population of West Virginia will be aided in their efforts to live independent and productive lives.
(a) "Deaf" means severe to profound impairment of the sense of hearing whereby the understanding of speech is unattainable through the ear alone with or without amplification, and visual communication is used as the primary mode of communication.
(b) "Hard of hearing" means significant impairment to the sense of hearing, but not to the extent that the person must rely primarily on visual communication.
(c) "Hearing-impaired" means persons who are either deaf or hard of hearing.
(b) The members are: The Secretary of the Department of Health and Human Resources, or his or her designee; the Commissioner of the Division of Labor, or his or her designee; the Commissioner of the Bureau for Public Health, or his or her designee; the State Superintendent of Schools, or his or her designee; the Director of the Division of Rehabilitation Services, or his or her designee; the Commissioner of the Division of Human Services, or his or her designee; the Chairman of the Advisory Council for the Education of Exceptional Children, or his or her designee; and the Superintendent of the West Virginia School for the Deaf and Blind, or his or her designee, all of whom serve ex officio with full voting privileges.
(c) The Governor shall appoint nine persons, at least five of whom are deaf or hard of hearing, one of whom is the parent of a deaf child, one of whom is a certified teacher of the hearing-impaired, one audiologist and one otolaryngologist. Of the five deaf people, at least three shall be selected from a list of five people recommended by the Board of the West Virginia Association of the Deaf.
(b) The commission shall establish, maintain and coordinate a statewide service to provide courts, state and local legislative bodies and others with a list of qualified and certified interpreters for the deaf and a list of qualified and certified teachers of American sign language.
(c) The Secretary of the Department of Health and Human Resources shall promulgate rules pursuant to article three, chapter twenty-nine-a of this code for the state quality assurance evaluation, including the establishment of required qualifications and ethical standards for interpreters, the approval of interpreters, the monitoring and investigation of interpreters and the suspension and revocation of approvals. The commission may conduct interpreter evaluations and collect and expend funds with regard thereto.
(d) The commission shall develop an outreach program to familiarize the public with the rights and needs of hearing-impaired people and of available services.
(e) The commission shall investigate the condition of the hearing-impaired in this state with particular attention to those who are aged, homeless, needy, victims of rubella and victims of abuse or neglect. It shall determine the means the state possesses for establishing group homes for its hearing-impaired citizens and the need for additional facilities. The commission shall also determine the advisability and necessity of providing services to the multihandicapped hearing-impaired.
The commission may enter into contracts with any person, firm, corporation, municipality or governmental agency to effectuate the purposes of this article.
Acts, 2010 Reg. Sess., Ch. 32.
(a) "Deaf person" means one whose sense of hearing is nonfunctional for the ordinary purposes of life;
(b) "Qualified interpreter" means an interpreter certified by the national association of the deaf (NAD) or registry of interpreters for the deaf (RID), or, in the event an interpreter so certified is not available, an interpreter whose qualifications are otherwise determined;
(c) "Oral interpreter" means a person who interprets language through facial and lip movements; and
(d) "Appointing authority" means any court, department, board, commission, agency, licensing authority, political subdivision or municipality of the state required to provide an interpreter.
(b) Efforts to obtain the services of a qualified interpreter certified with a legal skills certificate, or a comprehensive oral interpreting certificate will be made prior to accepting services of an interpreter with lesser certification. No qualified interpreter shall be appointed unless the appointing authority and the deaf person make a preliminary determination that the interpreter is able to communicate readily with the deaf person and is able to interpret accurately the statement of the deaf person and interpret the proceedings in which a deaf person may be involved.
(b) An oral interpreter shall be provided upon the request of a deaf person entitled to an interpreter under this article, but who does not communicate in sign language. The right of a deaf person to an interpreter may not be waived except by a deaf person who does not use sign language and who initiates the request for waiver in writing. The waiver is subject to approval of legal counsel for the deaf person, if any, and is subject to approval of the appointing authority.
(b) In a proceeding before any department, board, commission, agency or licensing authority of the state, in any political subdivision or municipality, wherein any deaf person is an applicant, complainant or principal witness, the department, board, commission, agency, licensing authority, political subdivision or municipality may appoint a qualified interpreter to interpret the proceedings to the deaf person and to interpret his or her testimony or statements if said deaf person requests an interpreter.
An appointing authority may require a person requesting the appointment of an interpreter to furnish reasonable proof of his or her deafness when the appointing authority has reason to believe that the person is not deaf.
(a) A "person who is blind" means a person whose central visual acuity does not exceed twenty/two hundred in the better eye with correcting lenses, or whose visual acuity is greater than twenty/two hundred but is occasioned by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than twenty degrees.
(b) A "person with a disability" means any person who has a physical or mental impairment that substantially limits one or more of the major life activities of the individual; who has a record of such an impairment or who is regarded as having such an impairment.
(c) A "service animal" means any guide dog, signal dog or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair or fetching dropped items.
(b) Any person who is blind and any person with a disability is entitled to full and equal accommodations, advantages, facilities and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motor buses, streetcars, boats or any other public conveyances or modes of transportation, hotels, lodging places, restaurants, professional offices for health or legal services, hospitals, other places of public accommodation, amusement or resort, and other places, including places of employment, to which the general public is invited, subject only to the conditions and limitations established by law and applicable alike to all persons.
(c) Every person who is blind, every person with a hearing impairment and every person with a disability shall have the right to be accompanied by a service animal in any of the places, accommodations or conveyances specified in subsection (b) of this section without being required to pay an extra charge for the admission of the service animal. The person who is blind, deaf or has a disability shall be liable for any damage done by the service animal to the premises or facilities or to persons using such premises or facilities: Provided, That the person who is blind, deaf or has a disability shall not be liable for any damage done by the service animal to any person or the property of a person who has contributed to or caused the service animal's behavior by inciting or provoking such behavior. A service animal shall not occupy a seat in any public conveyance and shall be upon a leash while using the facilities of a common carrier.
(d) The rights, privileges and responsibilities provided by this section also apply to any person who is certified as a trainer of a service animal while he or she is engaged in the training.
(e) A service animal as defined by section three of this article is not required to be licensed or certified by a state or local government, nor shall there be any requirement for the specific signage or labeling of a service animal.
(b) The driver of a vehicle approaching a pedestrian who is blind or who has a disability and who knows, or in the exercise of reasonable care should know, that the pedestrian is blind because the pedestrian is carrying a cane predominantly white or metallic in color, with or without a red tip, or is using a service animal or otherwise, shall exercise care commensurate with the situation to avoid injuring the pedestrian or the service animal.
(a) Comments upon the significance of the white cane;
(b) Calls upon the citizens of the state to observe the provisions of the white cane law and to take precautions necessary for the safety of persons who are blind;
(c) Reminds the citizens of the state of the policies with respect to persons who are blind herein declared and urges the citizens to cooperate in giving effect to them;
(d) Emphasizes the need of the citizens to be aware of the presence of persons who are blind or visually impaired in the community and to keep safe for persons who are blind or visually impaired the highways, roads, streets, sidewalks, walkways, public buildings, public facilities, other public places, places of public accommodation, amusement and resort and other places to which the public is invited, and to offer assistance to persons who are blind upon appropriate occasions.
(1) "Agency" means the Public Employees Insurance Agency created by this article.
(2) "Director" means the Director of the Public Employees Insurance Agency created by this article.
(3) "Employee" means any person, including an elected officer, who works regularly full time in the service of the State of West Virginia and, for the purpose of this article only, the term "employee" also means any person, including an elected officer, who works regularly full time in the service of a county board of education; a county, city or town in the state; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns; any comprehensive community mental health center or comprehensive mental retardation facility established, operated or licensed by the Secretary of Health and Human Resources pursuant to section one, article two-a, chapter twenty-seven of this code and which is supported in part by state, county or municipal funds; any person who works regularly full time in the service of the Higher Education Policy Commission, the West Virginia Council for Community and Technical College Education or a governing board, as defined in section two, article one, chapter eighteen-b of this code; any person who works regularly full time in the service of a combined city-county health department created pursuant to article two, chapter sixteen of this code; any person designated as a 21st Century Learner Fellow pursuant to section eleven, article three, chapter eighteen-a of this code; and any person who works as a long-term substitute as defined in section one, article one, chapter eighteen-a of this code in the service of a county board of education: Provided, That a long-term substitute who is continuously employed for at least one hundred thirty-three instructional days during an instructional term, and until the end of that instructional term, is eligible for the benefits provided in this article until the first day of September following that instructional term: Provided, however, That a long-term substitute employed fewer than one hundred thirty-three instructional days during an instructional term is eligible for the benefits provided in this article only during such time as he or she is actually employed as a long-term substitute. On and after the first day of January, one thousand nine hundred ninety-four, and upon election by a county board of education to allow elected board members to participate in the Public Employees Insurance Program pursuant to this article, any person elected to a county board of education shall be considered to be an "employee" during the term of office of the elected member. Upon election by the State Board of Education to allow appointed board members to participate in the Public Employees Insurance Program pursuant to this article, any person appointed to the State Board of Education is considered an "employee" during the term of office of the appointed member: Provided further, That the elected member of a county board of education and the appointed member of the State Board of Education shall pay the entire cost of the premium if he or she elects to be covered under this article. Any matters of doubt as to who is an employee within the meaning of this article shall be decided by the director.
On or after the first day of July, one thousand nine hundred ninety-seven, a person shall be considered an "employee" if that person meets the following criteria:
(i) Participates in a job-sharing arrangement as defined in section one, article one, chapter eighteen-a of this code;
(ii) Has been designated, in writing, by all other participants in that job-sharing arrangement as the "employee" for purposes of this section; and
(iii) Works at least one third of the time required for a full-time employee.
(4) "Employer" means the State of West Virginia, its boards, agencies, commissions, departments, institutions or spending units; a county board of education; a county, city or town in the state; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns; any comprehensive community mental health center or comprehensive mental retardation facility established, operated or licensed by the Secretary of Health and Human Resources pursuant to section one, article two-a, chapter twenty-seven of this code and which is supported in part by state, county or municipal funds; a combined city-county health department created pursuant to article two, chapter sixteen of this code; and a corporation meeting the description set forth in section three, article twelve, chapter eighteen-b of this code that is employing a 21st Century Learner Fellow pursuant to section eleven, article three, chapter eighteen of this code but the corporation is not considered an employer with respect to any employee other than a 21st Century Learner Fellow. Any matters of doubt as to who is an "employer" within the meaning of this article shall be decided by the director. The term "employer" does not include within its meaning the National Guard.
(5) "Finance board" means the Public Employees Insurance Agency finance board created by this article.
(6) "Person" means any individual, company, association, organization, corporation or other legal entity, including, but not limited to, hospital, medical or dental service corporations; health maintenance organizations or similar organization providing prepaid health benefits; or individuals entitled to benefits under the provisions of this article.
(7) "Plan", unless the context indicates otherwise, means the medical indemnity plan, the managed care plan option or the group life insurance plan offered by the agency.
(8) "Retired employee" means an employee of the state who retired after the twenty-ninth day of April, one thousand nine hundred seventy-one, and an employee of the Higher Education Policy Commission, the Council for Community and Technical College Education, a state institution of higher education or a county board of education who retires on or after the twenty-first day of April, one thousand nine hundred seventy-two, and all additional eligible employees who retire on or after the effective date of this article, meet the minimum eligibility requirements for their respective state retirement system and whose last employer immediately prior to retirement under the state retirement system is a participating employer in the state retirement system and in the Public Employees Insurance Agency: Provided, That for the purposes of this article, the employees who are not covered by a state retirement system, but who are covered by a state-approved or state-contracted retirement program or a system approved by the director, shall, in the case of education employees, meet the minimum eligibility requirements of the State Teachers Retirement System and in all other cases, meet the minimum eligibility requirements of the Public Employees Retirement System and may participate in the Public Employees Insurance Agency as retired employees upon terms as the director sets by rule as authorized in this article. Employers with employees who are, or who are eligible to become, retired employees under this article shall be mandatory participants in the Retiree Health Benefit Trust Fund created pursuant to article sixteen-d of this chapter. Nonstate employers may opt out of the West Virginia other post-employment benefits plan of the Retiree Health Benefit Trust Fund and elect to not provide benefits under the Public Employees Insurance Agency to retirees of the nonstate employer, but may do so only upon the written certification, under oath, of an authorized officer of the employer that the employer has no employees who are, or who are eligible to become, retired employees and that the employer will defend and hold harmless the Public Employees Insurance Agency from any claim by one of the employer's past, present or future employees for eligibility to participate in the Public Employees Insurance Agency as a retired employee. As a matter of law, the Public Employees Insurance Agency shall not be liable in any respect to provide plan benefits to a retired employee of a nonstate employer which has opted out of the West Virginia other post-employment benefits plan of the Retiree Health Benefit Trust Fund pursuant to this section.
(a) The Public Employees Insurance Agency consists of the Director, the Finance Board, the Advisory Board and any employees who may be authorized by law. The Director shall be appointed by the Governor, with the advice and consent of the Senate, and serves at the will and pleasure of the Governor. The Director shall have at least three years' experience in health or governmental health benefit administration as his or her primary employment duty prior to appointment as director. The Director shall receive actual expenses incurred in the performance of official business. The Director shall employ any administrative, technical and clerical employees required for the proper administration of the programs provided in this article. The Director shall perform the duties that are required of him or her under the provisions of this article and is the Chief Administrative Officer of the Public Employees Insurance Agency. The Director may employ a deputy director.
(b) Except for the Director, his or her personal secretary, the Deputy Director and the Chief Financial Officer, all positions in the agency shall be included in the classified service of the civil service system pursuant to article six, chapter twenty-nine of this code.
(c) The Director is responsible for the administration and management of the Public Employees Insurance Agency as provided in this article and in connection with his or her responsibility may make all rules necessary to effectuate the provisions of this article. Nothing in section four or five of this article limits the Director's ability to manage on a day-to-day basis the group insurance plans required or authorized by this article, including, but not limited to, administrative contracting, studies, analyses and audits, eligibility determinations, utilization management provisions and incentives, provider negotiations, provider contracting and payment, designation of covered and noncovered services, offering of additional coverage options or cost containment incentives, pursuit of coordination of benefits and subrogation or any other actions which would serve to implement the plan or plans designed by the Finance Board. The Director is to function as a benefits management professional and should avoid political involvement in managing the affairs of the Public Employees Insurance Agency.
(d) The Director should make every effort to evaluate and administer programs to improve quality, improve health status of members, develop innovative payment methodologies, manage health care delivery costs, evaluate effective benefit designs, evaluate cost sharing and benefit based programs, and adopt effective industry programs that can manage the long-term effectiveness and costs for the programs at the Public Employees Insurance Agency to include, but not be limited to:
(1) Increasing generic fill rates;
(2) Managing specialty pharmacy costs;
(3) Implementing and evaluating medical home models and health care delivery;
(4) Coordinating with providers, private insurance carriers and to the extent possible Medicare to encourage the establishment of cost effective accountable care organizations;
(5) Exploring and developing advanced payment methodologies for care delivery such as case rates, capitation and other potential risk-sharing models and partial risk-sharing models for accountable care organizations and/or medical homes;
(6) Adopting measures identified by the Centers for Medicare and Medicaid Services to reduce cost and enhance quality;
(7) Evaluating the expenditures to reduce excessive use of emergency room visits, imaging services and other drivers of the agency's medical rate of inflation;
(8) Recommending cutting-edge benefit designs to the Finance Board to drive behavior and control costs for the plans;
(9) Implementing programs to encourage the use of the most efficient and high-quality providers by employees and retired employees;
(10) Identifying employees and retired employees who have multiple chronic illnesses and initiating programs to coordinate the care of these patients;
(11) Initiating steps by the agency to adjust payment by the agency for the treatment of hospital acquired infections and related events consistent with the payment policies, operational guidelines and implementation timetable established by the Centers of Medicare and Medicaid Services. The agency shall protect employees and retired employees from any adjustment in payment for hospital acquired infections; and
(12) Initiating steps by the agency to reduce the number of employees and retired employees who experience avoidable readmissions to a hospital for the same diagnosis related group illness within thirty days of being discharged by a hospital in this state or another state consistent with the payment policies, operational guidelines and implementation timetable established by the Centers of Medicare and Medicaid Services.
(e) The Director shall issue an annual progress report to the
Joint Committee on Government and Finance on the implementation of
any reforms initiated pursuant to this section and other
initiatives developed by the agency.
(a) The Public Employees Insurance Agency Finance Board is continued and consists of the Secretary of the Department of Administration or his or her designee and ten members appointed by the Governor, with the advice and consent of the Senate, for terms of four years and each may serve until his or her successor is appointed and qualified. Members may be reappointed for successive terms. No more than six members, including the Secretary of the Department of Administration, may be of the same political party.
(b) (1) Of the ten members appointed by the Governor with advice and consent of the Senate, one member shall represent the interests of education employees, one shall represent the interests of public employees, one shall represent the interests of retired employees, one shall represent the interests of organized labor, one shall represent the interests of a participating political subdivision and five shall be selected from the public at large. The Governor shall appoint the member representing the interests of education employees from a list of three names submitted by the largest organization of education employees in this state. The Governor shall appoint the member representing the interests of organized labor from a list of three names submitted by the state's largest organization representing labor affiliates. The five members appointed from the public shall each have experience in the financing, development or management of employee benefit programs.
(2) All appointments shall be selected to represent the different geographical areas within the state and all members shall be residents of West Virginia. No member may be removed from office by the Governor except for official misconduct, incompetence, neglect of duty, neglect of fiduciary duty or other specific responsibility imposed by this article or gross immorality.
(c) The Secretary of the Department of Administration shall serve as chair of the finance board, which shall meet at times and places specified by the call of the chair or upon the written request to the chair of at least two members. The Director of the Public Employees Insurance Agency shall serve as staff to the board. Notice of each meeting shall be given in writing to each member by the director at least three days in advance of the meeting. Six members constitute a quorum. The board shall pay each member the same compensation and expense reimbursement that is paid to members of the Legislature for their interim duties for each day or portion of a day engaged in the discharge of official duties.
(d) Upon termination of the board and notwithstanding any
provisions in this article to the contrary, the director is
authorized to assess monthly employee premium contributions and to
change the types and levels of costs to employees only in
accordance with this subsection. Any assessments or changes in
costs imposed pursuant to this subsection shall be implemented by
legislative rule proposed by the director for promulgation pursuant to the provisions of article three, chapter twenty-nine-a of this
code. Any employee assessments or costs previously authorized by
the finance board shall then remain in effect until amended by rule
of the director promulgated pursuant to this subsection.
Acts, 2010 Reg. Sess., Ch. 32.
(b) The finance board shall retain the services of an impartial, professional actuary, with demonstrated experience in analysis of large group health insurance plans, to estimate the total financial requirements of the Public Employees Insurance Agency for each fiscal year and to review and render written professional opinions as to financial plans proposed by the finance board. The actuary shall also assist in the development of alternative financing options and perform any other services requested by the finance board or the director. All reasonable fees and expenses for actuarial services shall be paid by the Public Employees Insurance Agency. Any financial plan or modifications to a financial plan approved or proposed by the finance board pursuant to this section shall be submitted to and reviewed by the actuary and may not be finally approved and submitted to the Governor and to the Legislature without the actuary's written professional opinion that the plan may be reasonably expected to generate sufficient revenues to meet all estimated program and administrative costs of the agency, including incurred but unreported claims, for the fiscal year for which the plan is proposed. The actuary's opinion on the financial plan for each fiscal year shall allow for no more than thirty days of accounts payable to be carried over into the next fiscal year. The actuary's opinion for any fiscal year shall not include a requirement for establishment of a reserve fund.
(c) All financial plans required by this section shall establish:
(1) Maximum levels of reimbursement which the Public Employees Insurance Agency makes to categories of health care providers;
(2) Any necessary cost-containment measures for implementation by the director;
(3) The levels of premium costs to participating employers; and
(4) The types and levels of cost to participating employees and retired employees.
The financial plans may provide for different levels of costs based on the insureds' ability to pay. The finance board may establish different levels of costs to retired employees based upon length of employment with a participating employer, ability to pay or other relevant factors. The financial plans may also include optional alternative benefit plans with alternative types and levels of cost. The finance board may develop policies which encourage the use of West Virginia health care providers.
In addition, the finance board may allocate a portion of the premium costs charged to participating employers to subsidize the cost of coverage for participating retired employees, on such terms as the finance board determines are equitable and financially responsible.
(d)(1) The finance board shall prepare an annual financial plan for each fiscal year during which the finance board remains in existence. The finance board chairman shall request the actuary to estimate the total financial requirements of the Public Employees Insurance Agency for the fiscal year.
(2) The finance board shall prepare a proposed financial plan designed to generate revenues sufficient to meet all estimated program and administrative costs of the Public Employees Insurance Agency for the fiscal year. The proposed financial plan shall allow for no more than thirty days of accounts payable to be carried over into the next fiscal year. Before final adoption of the proposed financial plan, the finance board shall request the actuary to review the plan and to render a written professional opinion stating whether the plan will generate sufficient revenues to meet all estimated program and administrative costs of the Public Employees Insurance Agency for the fiscal year. The actuary's report shall explain the basis of its opinion. If the actuary concludes that the proposed financial plan will not generate sufficient revenues to meet all anticipated costs, then the finance board shall make necessary modifications to the proposed plan to ensure that all actuarially determined financial requirements of the agency will be met.
(3) Upon obtaining the actuary's opinion, the finance board shall conduct one or more public hearings in each congressional district to receive public comment on the proposed financial plan, shall review the comments and shall finalize and approve the financial plan.
(4) Any financial plan shall be designed to allow thirty days or less of accounts payable to be carried over into the next fiscal year. For each fiscal year, the Governor shall provide his or her estimate of total revenues to the finance board no later than the fifteenth day of October of the preceding fiscal year: Provided, That, for the prospective financial plans required by this section, the Governor shall estimate the revenues available for each fiscal year of the plans based on the estimated percentage of growth in general fund revenues. The finance board shall submit its final, approved financial plan, after obtaining the necessary actuary's opinion and conducting one or more public hearings in each congressional district, to the Governor and to the Legislature no later than the first day of January preceding the fiscal year. The financial plan for a fiscal year becomes effective and shall be implemented by the director on the first day of July of the fiscal year. In addition to each final, approved financial plan required under this section, the finance board shall also simultaneously submit financial statements based on generally accepted accounting practices (GAAP) and the final, approved plan restated on an accrual basis of accounting, which shall include allowances for incurred but not reported claims: Provided, however, That the financial statements and the accrual-based financial plan restatement shall not affect the approved financial plan.
(e) The provisions of chapter twenty-nine-a of this code shall not apply to the preparation, approval and implementation of the financial plans required by this section.
(f) By the first day of January of each year the finance board shall submit to the Governor and the Legislature a prospective financial plan, for a period not to exceed five years, for the programs provided in this article. Factors that the board shall consider include, but are not limited to, the trends for the program and the industry; the medical rate of inflation; utilization patterns; cost of services; and specific information such as average age of employee population, active to retiree ratios, the service delivery system and health status of the population.
(g) The prospective financial plans shall be based on the estimated revenues submitted in accordance with subdivision (4), subsection (d) of this section and shall include an average of the projected cost-sharing percentages of premiums and an average of the projected deductibles and copays for the various programs. Beginning in the plan year which commences on the first day of July, two thousand two, and in each plan year thereafter, until and including the plan year which commences on the first day of July, two thousand six, the prospective plans shall include incremental adjustments toward the ultimate level required in this subsection, in the aggregate cost-sharing percentages of premium between employers and employees, including the amounts of any subsidization of retired employee benefits. Effective in the plan year commencing on the first day of July, two thousand six, and in each plan year thereafter, the aggregate premium cost-sharing percentages between employers and employees, including the amounts of any subsidization of retired employee benefits, shall be at a level of eighty percent for the employer and twenty percent for employees, except for the employers provided in subsection (d), section eighteen of this article whose premium cost-sharing percentages shall be governed by that subsection. After the submission of the initial prospective plan, the board may not increase costs to the participating employers or change the average of the premiums, deductibles and copays for employees, except in the event of a true emergency as provided in this section: Provided, That if the board invokes the emergency provisions, the cost shall be borne between the employers and employees in proportion to the cost-sharing ratio for that plan year: Provided, however, That for purposes of this section, "emergency" means that the most recent projections demonstrate that plan expenses will exceed plan revenues by more than one percent in any plan year: Provided further, That the aggregate premium cost-sharing percentages between employers and employees, including the amounts of any subsidization of retired employee benefits, may be offset, in part, by a legislative appropriation for that purpose.
(h) The finance board shall meet on at least a quarterly basis to review implementation of its current financial plan in light of the actual experience of the Public Employees Insurance Agency. The board shall review actual costs incurred, any revised cost estimates provided by the actuary, expenditures and any other factors affecting the fiscal stability of the plan and may make any additional modifications to the plan necessary to ensure that the total financial requirements of the agency for the current fiscal year are met. The finance board may not increase the types and levels of cost to employees during its quarterly review except in the event of a true emergency.
(i) For any fiscal year in which legislative appropriations differ from the Governor's estimate of general and special revenues available to the agency, the finance board shall, within thirty days after passage of the budget bill, make any modifications to the plan necessary to ensure that the total financial requirements of the agency for the current fiscal year are met.
The Finance Board may include in its financial plans a subsidy
from the Retiree Health Benefit Trust Fund created by article
sixteen-d of this chapter for the cost of coverage under the major
health care benefits plans, only for retired employees who were
hired before July 1, 2010.
There is hereby created a special revenue account in the State
Treasury, designated the Post-July 1, 2010, Employee Trust Fund,
which shall be an interest-bearing account and may be invested in
accordance with the provisions of article six, chapter twelve of
this code, with the interest income a proper credit to the fund.
The fund shall consist of moneys appropriated by the Legislature
and moneys transferred pursuant to section ninety-six, article
twenty-one, chapter eleven of this code. Expenditures from the
fund shall be for the purposes set forth by the Legislature in
furtherance of an incentive contingent on future legislative
directives for retirees who were hired on or after July 1, 2010, to
be received upon their retirement. Such incentive may be
determined by the Legislature in accordance with section seven,
article sixteen-d of this chapter.
Acts, 2009 Reg. Sess., Ch. 22.
(a) The agency shall establish a group hospital and surgical insurance plan or plans, a group prescription drug insurance plan or plans, a group major medical insurance plan or plans and a group life and accidental death insurance plan or plans for those employees herein made eligible, and to establish and promulgate rules for the administration of these plans, subject to the limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X ray and laboratory services in connection with mammograms when medically appropriate and consistent with current guidelines from the United States Preventive Services Task Force; pap smears, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists; and a test for the human papilloma virus (HPV) when medically appropriate and consistent with current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists, when performed for cancer screening or diagnostic services on a woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and over;
(3) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation;
(4) For plans that include maternity benefits, coverage for inpatient care in a duly licensed health care facility for a mother and her newly born infant for the length of time which the attending physician considers medically necessary for the mother or her newly born child: Provided, That no plan may deny payment for a mother or her newborn child prior to forty-eight hours following a vaginal delivery, or prior to ninety-six hours following a caesarean section delivery, if the attending physician considers discharge medically inappropriate;
(5) For plans which provide coverages for post-delivery care to a mother and her newly born child in the home, coverage for inpatient care following childbirth as provided in subdivision (4) of this subsection if inpatient care is determined to be medically necessary by the attending physician. Those plans may also include, among other things, medicines, medical equipment, prosthetic appliances and any other inpatient and outpatient services and expenses considered appropriate and desirable by the agency; and
(6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential care or schooling. For purposes of this section, "serious mental illness" means an illness included in the American Psychiatric Association's diagnostic and statistical manual of mental disorders, as periodically revised, under the diagnostic categories or subclassifications of: (i) Schizophrenia and other psychotic disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) anxiety disorders; and (vi) anorexia and bulimia. With regard to any covered individual who has not yet attained the age of nineteen years, "serious mental illness" also includes attention deficit hyperactivity disorder, separation anxiety disorder and conduct disorder.
(B) Notwithstanding any other provision in this section to the contrary, in the event that the agency can demonstrate that its total costs for the treatment of mental illness for any plan exceeded two percent of the total costs for such plan in any experience period, then the agency may apply whatever additional cost-containment measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan for the next experience period.
(C) The agency shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, limitations on inpatient and outpatient benefits, utilization review, implementation of cost-containment measures, preauthorization for certain treatments, setting coverage levels, setting maximum number of visits within certain time periods, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, using provider networks and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(7) Coverage for general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care if the covered person is:
(A) Seven years of age or younger or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the individual and for whom a superior result can be expected from dental care provided under general anesthesia;
(B) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
(8) (A) Any plan issued or renewed on or after January 1, 2012, shall include coverage for diagnosis, evaluation and treatment of autism spectrum disorder in individuals ages eighteen months to eighteen years. To be eligible for coverage and benefits under this subdivision, the individual must be diagnosed with autism spectrum disorder at age eight or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or prescribed by a licensed physician or licensed psychologist and in accordance with a treatment plan developed from a comprehensive evaluation by a certified behavior analyst for an individual diagnosed with autism spectrum disorder.
(B) The coverage shall include, but not be limited to, applied behavior analysis. Applied behavior analysis shall be provided or supervised by a certified behavior analyst. The annual maximum benefit for applied behavior analysis required by this subdivision shall be in an amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, coverage for applied behavior analysis required by this subdivision shall be in an amount not to exceed $2,000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual. This subdivision shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time or other publicly funded programs. Nothing in this subdivision shall be construed as requiring reimbursement for services provided by public school personnel.
(C) The certified behavior analyst shall file progress reports with the agency semiannually. In order for treatment to continue, the agency must receive objective evidence or a clinically supportable statement of expectation that:
(i) The individual's condition is improving in response to treatment; and
(ii) A maximum improvement is yet to be attained; and
(iii) There is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
(D) On or before January 1 each year, the agency shall file an annual report with the Joint Committee on Government and Finance describing its implementation of the coverage provided pursuant to this subdivision. The report shall include, but shall not be limited to, the number of individuals in the plan utilizing the coverage required by this subdivision, the fiscal and administrative impact of the implementation, and any recommendations the agency may have as to changes in law or policy related to the coverage provided under this subdivision. In addition, the agency shall provide such other information as may be required by the Joint Committee on Government and Finance as it may from time to time request.
(E) For purposes of this subdivision, the term:
(i) "Applied Behavior Analysis" means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.
(ii) "Autism spectrum disorder" means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett Syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(iii) "Certified behavior analyst" means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.
(iv) "Objective evidence" means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and after treatment is recommended to quantify progress and support justifications for continued treatment. The tools are not required, but their use will enhance the justification for continued treatment.
(F) To the extent that the application of this subdivision for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the agency may apply additional cost containment measures.
(G) To the extent that the provisions of this subdivision require benefits that exceed the essential health benefits specified under section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential health benefits shall not be required of insurance plans offered by the Public Employees Insurance Agency.
(b) The agency shall make available to each eligible employee, at full cost to the employee, the opportunity to purchase optional group life and accidental death insurance as established under the rules of the agency. In addition, each employee is entitled to have his or her spouse and dependents, as defined by the rules of the agency, included in the optional coverage, at full cost to the employee, for each eligible dependent; and with full authorization to the agency to make the optional coverage available and provide an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public institutions of higher education and county boards of education;
(3) All nonteaching employees of the Higher Education Policy Commission, West Virginia Council for Community and Technical College Education and county boards of education; or
(4) Any other categorization which would ensure the stability of the overall program.
(d) The agency shall maintain the medical and prescription
drug coverage for Medicare-eligible retirees by providing coverage through one of the existing plans or by enrolling the Medicare-
eligible retired employees into a Medicare-specific plan,
including, but not limited to, the Medicare/Advantage Prescription
Drug Plan. In the event that a Medicare specific plan would no
longer be available or advantageous for the agency and the
retirees, the retirees shall remain eligible for coverage through
the agency.
(b) A symptomatic person is defined as: (1) An individual who experiences a change in bowel habits, rectal bleeding or stomach cramps that are persistent; or (2) an individual who poses a higher than average risk for colorectal cancer because he or she has had colorectal cancer or polyps, inflammatory bowel disease, or an immediate family history of such conditions.
(c) The same deductibles, coinsurance, network restrictions and other limitations for covered services found in the policy, provision, contract, plan or agreement of the covered person may apply to colorectal cancer examinations and laboratory testing.
Acts, 2009 Reg. Sess., Ch. 108.
(1) All stages of reconstruction of the breast on which the mastectomy has been performed;
(2) Surgery and reconstruction of the other breast to produce a symmetrical appearance; and
(3) Prostheses and physical complications of mastectomy, including lymphedemas in a manner determined in consultation with the attending physician and the patient. Coverage shall be provided for a minimum stay in the hospital of not less than forty-eight hours for a patient following a radical or modified mastectomy and not less than twenty-four hours of inpatient care following a total mastectomy or partial mastectomy with lymph node dissection for the treatment of breast cancer. Nothing in this section shall be construed as requiring inpatient coverage where inpatient coverage is not medically necessary or where the attending physician in consultation with the patient determines that a shorter period of hospital stay is appropriate. Such coverage may be subject to annual deductibles and coinsurance provisions as may be deemed appropriate and as are consistent with those established for other benefits under the plan. Written notice of the availability of such coverage shall be delivered to the participant upon enrollment and annually thereafter in the summary plan description or similar document.
(b) The plan may not:
(1) Deny to a patient eligibility, or continued eligibility, to enroll or to renew coverage under the terms of the plan, solely for the purpose of avoiding the requirements of this section; and
(2) Penalize or otherwise reduce or limit the reimbursement of an attending provider, or provide incentives (monetary or otherwise) to an attending provider, to induce such provider to provide care to an individual participant or beneficiary in a manner inconsistent with this section.
(c) Nothing in this section shall be construed to prevent a health benefit plan policy or a health insurer offering health insurance coverage from negotiating the level and type of reimbursement with a provider for care provided in accordance with this section.
(d) The provisions of this section shall be included under any policy, contract or plan delivered after the first day of July, two thousand two.
(b) This section does not apply to a policy, plan or contract paid for under Title XVIII of the Social Security Act.
(c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial, as a result of:
(1) Treatment provided for a life-threatening condition; or
(2) Prevention of, early detection of or treatment studies on cancer.
(d) The coverage under subsection (c) of this section is required if:
(1)(A) The treatment is being provided or the studies are being conducted in a Phase II, Phase III or Phase IV clinical trial for cancer and has therapeutic intent; or
(B) The treatment is being provided in a Phase II, Phase III or Phase IV clinical trial for any other life-threatening condition and has therapeutic intent;
(2) The treatment is being provided in a clinical trial approved by:
(A) One of the national institutes of health;
(B) An NIH cooperative group or an NIH center;
(C) The FDA in the form of an investigational new drug application or investigational device exemption;
(D) The federal department of veterans affairs; or
(E) An institutional review board of an institution in the state which has a multiple project assurance contract approved by the office of protection from research risks of the national institutes of health;
(3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;
(4) There is no clearly superior, noninvestigational treatment alternative;
(5) The available clinical or preclinical data provide a reasonable expectation that the treatment will be more effective than the noninvestigational treatment alternative;
(6) The treatment is provided in this state: Provided, That, if the treatment is provided outside of this state, the treatment must be approved by the payor designated in subsection (a) of this section;
(7) Reimbursement for treatment is subject to all coinsurance, copayment and deductibles and is otherwise subject to all restrictions and obligations of the health plan; and
(8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no greater than that provided by an in network or contracting provider. Coverage shall not be required if the out of network or noncontracting provider will not accept this level of reimbursement.
(e) Payment for patient costs for a clinical trial is not required by the provisions of this section, if:
(1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug, or to gain approval or coverage relating to additional clinical indications for an existing drug; or
(2) The purpose of the clinical trial is designed to keep a generic version of a drug from becoming available on the market; or
(3) The purpose of the clinical trial is to gain approval of or coverage for a reformulated or repackaged version of an existing drug.
(f) Any provider billing a third party payor for services or products provided to a patient in a clinical trial shall provide written notice to the payor that specifically identifies the services as part of a clinical trial.
(g) Notwithstanding any provision in this section to the contrary, coverage is not required for Phase I of any clinical trial.
(a) A "clinical trial" is a study that determines whether new drugs, treatments or medical procedures are safe and effective on humans. To determine the efficacy of experimental drugs, treatments or procedures, a study is conducted in four phases including the following:
Phase II: The experimental drug or treatment is given to, or a procedure is performed on, a larger group of people to further measure its effectiveness and safety.
Phase III: Further research is conducted to confirm the effectiveness of the drug, treatment or procedure, to monitor the side effects, to compare commonly used treatments and to collect information on safe use.
Phase IV: After the drug, treatment or medical procedure is marketed, investigators continue testing to determine the effects on various populations and to determine whether there are side effects associated with long-term use.
(b) "Cooperative group" means a formal network of facilities that collaborate on research projects and have an established NIH-approved peer review program operating within the group.
(c) "Cooperative group" includes:
(1) The national cancer institute clinical cooperative group;
(2) The national cancer institute community clinical oncology program;
(3) The AIDS clinical trial group; and
(4) The community programs for clinical research in AIDS.
(d) "FDA" means the federal food and drug administration.
(e) "Life-threatening condition" means that the member has a terminal condition or illness that according to current diagnosis has a high probability of death within two years, even with treatment with an existing generally accepted treatment protocol.
(f) "Member" means a policyholder, subscriber, insured, certificate holder or a covered dependent of a policyholder, subscriber, insured or certificate holder.
(g) "Multiple project assurance contract" means a contract between an institution and the federal department of health and human services that defines the relationship of the institution to the federal department of health and human services and sets out the responsibilities of the institution and the procedures that will be used by the institution to protect human subjects.
(h) "NIH" means the national institutes of health.
(i) "Patient cost" means the routine costs of a medically necessary health care service that is incurred by a member as a result of the treatment being provided pursuant to the protocols of the clinical trial. Routine costs of a clinical trial include all items or services that are otherwise generally available to beneficiaries of the insurance policies. "Patient cost" does not include:
(1) The cost of the investigational drug or device;
(2) The cost of nonhealth care services that a patient may be required to receive as a result of the treatment being provided to the member for purposes of the clinical trial;
(3) Services customarily provided by the research sponsor free of charge for any participant in the trial;
(4) Costs associated with managing the research associated with the clinical trial including, but not limited to, services furnished to satisfy data collection and analysis needs that are not used in the direct clinical management of the participant; or
(5) Costs that would not be covered under the participant's policy, plan, or contract for noninvestigational treatments;
(6) Adverse events during treatment are divided into those that reflect the natural history of the disease, or its progression, and those that are unique in the experimental treatment. Costs for the former are the responsibility of the payor as provided in section two of this article, and costs for the later are the responsibility of the sponsor. The sponsor shall hold harmless any payor for any losses and injuries sustained by any member as a result of his or her participation in the clinical trial.
(1) To provide a reasonable relationship between the hospital, surgical, medical and prescription drug benefits to be included and the expected reasonable and customary hospital, surgical, medical and prescription drug expenses as established by the director to be incurred by the affected employee, his or her spouse and his or her dependents. The establishment of reasonable and customary expenses by the public employees insurance agency pursuant to the preceding sentence is not subject to the state administrative procedures act in chapter twenty-nine-a of this code;
(2) To include reasonable controls which may include deductible and coinsurance provisions applicable to some or all of the benefits, and shall include other provisions, including, but not limited to, copayments, preadmission certification, case management programs and preferred provider arrangements;
(3) To prevent unnecessary utilization of the various hospital, surgical, medical and prescription drug services available;
(4) To provide reasonable assurance of stability in future years for the plans;
(5) To provide major medical insurance for the employees covered under this article;
(6) To provide certain group life and accidental death insurance for the employees covered under this article;
(7) To include provisions for the coordination of benefits payable by the terms of the plans with the benefits to which the employee, or his or her spouse or his or her dependents may be entitled by the provisions of any other group hospital, surgical, medical, major medical, or prescription drug insurance or any combination thereof;
(8) To provide a cash incentive plan for employees, spouses and dependents to increase utilization of, and to encourage the use of, lower cost alternative health care facilities, health care providers and generic drugs. The plan shall be reviewed annually by the director and the advisory board;
(9) To provide "wellness" programs and activities which will include, but not be limited to, benefit plan incentives to discourage tobacco, alcohol and chemical abuse and an educational program to encourage proper diet and exercise. In establishing "wellness" programs, the division of vocational rehabilitation shall cooperate with the public employees insurance agency in establishing statewide wellness programs. The director of the public employees insurance agency shall contract with county boards of education for the use of facilities, equipment or any service related to that purpose. Boards of education may charge only the cost of janitorial service and increased utilities for the use of the gymnasium and related equipment. The cost of the exercise program shall be paid by county boards of education, the public employees insurance agency, or participating employees, their spouses or dependents. All exercise programs shall be made available to all employees, their spouses or dependents and shall not be limited to employees of county boards of education;
(10) To provide a program, to be administered by the director, for a patient audit plan with reimbursement up to a maximum of one thousand dollars annually, to employees for discovery of health care provider or hospital overcharges when the affected employee brings the overcharge to the attention of the plan. The hospital or health care provider shall certify to the director that it has provided, prior to or simultaneously with the submission of the statement of charges for payments, an itemized statement of the charges to the employee participant for which payment is requested of the plan;
(11) To require that all employers give written notice to each covered employee prior to institution of any changes in benefits to employees, and to include appropriate penalty for any employer not providing the required information to any employee; and
(12)(a) To provide coverage for emergency services under offered plans. For the purposes of this subsection, "emergency services" means services provided in or by a hospital emergency facility, an ambulance providing related services under the provisions of article four-c, chapter sixteen of this code or the private office of a dentist to evaluate and treat a medical condition manifesting itself by the sudden, and at the time, unexpected onset of symptoms that require immediate medical attention and for which failure to provide medical attention would result in serious impairment to bodily function, serious dysfunction to any bodily organ or part, or would place the person's health in jeopardy.
(b) From the first day of July, one thousand nine hundred ninety-eight, plans shall provide coverage for emergency services, including any prehospital services, to the extent necessary to screen and stabilize the covered person. The plans shall reimburse, less any applicable copayments, deductibles, or coinsurance, for emergency services rendered and related to the condition for which the covered person presented. Prior authorization of coverage shall not be required for the screening services if a prudent layperson acting reasonably would have believed that an emergency medical condition existed. Prior authorization of coverage shall not be required for stabilization if an emergency medical condition exists. In the event that prior authorization was obtained, the authorization may not be retracted after the services have been provided except when the authorization was based on a material misrepresentation about the medical condition by the provider of the services or the insured person. The provider of the emergency services and the plan representative shall make a good faith effort to communicate with each other in a timely fashion to expedite postevaluation or poststabilization services. Payment of claims for emergency services shall be based on the retrospective review of the presenting history and symptoms of the covered person.
(c) For purposes of this subdivision:
(A) "Emergency services" means those services required to screen for or treat an emergency medical condition until the condition is stabilized, including prehospital care;
(B) "Prudent layperson" means a person who is without medical training and who draws on his or her practical experience when making a decision regarding whether an emergency medical condition exists for which emergency treatment should be sought;
(C) "Emergency medical condition for the prudent layperson" means one that manifests itself by acute symptoms of sufficient severity, including severe pain, such that the person could reasonably expect the absence of immediate medical attention to result in serious jeopardy to the individual's health, or, with respect to a pregnant woman, the health of the unborn child; serious impairment to bodily functions; or serious dysfunction of any bodily organ or part;
(D) "Stabilize" means with respect to an emergency medical condition, to provide medical treatment of the condition necessary to assure, with reasonable medical probability that no medical deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility: Provided, That this provision may not be construed to prohibit, limit or otherwise delay the transportation required for a higher level of care than that possible at the treating facility;
(E) "Medical screening examination" means an appropriate examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists; and
(F) "Emergency medical condition" means a condition that manifests itself by acute symptoms of sufficient severity including severe pain such that the absence of immediate medical attention could reasonably be expected to result in serious jeopardy to the individual's health or with respect to a pregnant woman the health of the unborn child, serious impairment to bodily functions or serious dysfunction of any bodily part or organ.
(b) The group hospital or surgical insurance coverage and group major medical insurance coverage herein provided shall include coverages and benefits for X ray and laboratory services in connection with mammogram and pap smears when performed for cancer screening or diagnostic services and annual checkups for prostate cancer in men age fifty and over. Such benefits shall include, but not be limited to, the following:
(1) Mammograms when medically appropriate and consistent with the current guidelines from the United States Preventive Services Task Force;
(2) A pap smear, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists, for women age eighteen and over;
(3) A test for the human papilloma virus (HPV) for women age eighteen or over, when medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists for women age eighteen and over;
(4) A checkup for prostate cancer annually for men age fifty or over; and
(5) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation.
(6) Coverage for general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed healthcare individuals in conjunction with dental care if the covered person is:
(A) Seven years of age or younger or is developmentally disabled and is either an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the individual and for whom a superior result can be expected from dental care provided under general anesthesia; or
(B) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
(c) The group life and accidental death insurance herein provided shall be in the amount of $10,000 for every employee. The amount of the group life and accidental death insurance to which an employee would otherwise be entitled shall be reduced to $5,000 upon such employee attaining age sixty-five.
(d) All of the insurance coverage to be provided for under this article may be included in one or more similar contracts issued by the same or different carriers.
(e) The provisions of article three, chapter five-a of this code, relating to the Division of Purchasing of the Department of Finance and Administration, shall not apply to any contracts for any insurance coverage or professional services authorized to be executed under the provisions of this article. Before entering into any contract for any insurance coverage, as authorized in this article, the director shall invite competent bids from all qualified and licensed insurance companies or carriers, who may wish to offer plans for the insurance coverage desired: Provided, That the director shall negotiate and contract directly with health care providers and other entities, organizations and vendors in order to secure competitive premiums, prices and other financial advantages. The director shall deal directly with insurers or health care providers and other entities, organizations and vendors in presenting specifications and receiving quotations for bid purposes. No commission or finder's fee, or any combination thereof, shall be paid to any individual or agent; but this shall not preclude an underwriting insurance company or companies, at their own expense, from appointing a licensed resident agent, within this state, to service the companies' contracts awarded under the provisions of this article. Commissions reasonably related to actual service rendered for the agent or agents may be paid by the underwriting company or companies: Provided, however, That in no event shall payment be made to any agent or agents when no actual services are rendered or performed. The director shall award the contract or contracts on a competitive basis. In awarding the contract or contracts the director shall take into account the experience of the offering agency, corporation, insurance company or service organization in the group hospital and surgical insurance field, group major medical insurance field, group prescription drug field and group life and accidental death insurance field, and its facilities for the handling of claims. In evaluating these factors, the director may employ the services of impartial, professional insurance analysts or actuaries or both. Any contract executed by the director with a selected carrier shall be a contract to govern all eligible employees subject to the provisions of this article. Nothing contained in this article shall prohibit any insurance carrier from soliciting employees covered hereunder to purchase additional hospital and surgical, major medical or life and accidental death insurance coverage.
(f) The director may authorize the carrier with whom a primary contract is executed to reinsure portions of the contract with other carriers which elect to be a reinsurer and who are legally qualified to enter into a reinsurance agreement under the laws of this state.
(g) Each employee who is covered under any contract or contracts shall receive a statement of benefits to which the employee, his or her spouse and his or her dependents are entitled under the contract, setting forth the information as to whom the benefits are payable, to whom claims shall be submitted and a summary of the provisions of the contract or contracts as they affect the employee, his or her spouse and his or her dependents.
(h) The director may at the end of any contract period discontinue any contract or contracts it has executed with any carrier and replace the same with a contract or contracts with any other carrier or carriers meeting the requirements of this article.
(i) The director shall provide by contract or contracts entered into under the provisions of this article the cost for coverage of children's immunization services from birth through age sixteen years to provide immunization against the following illnesses: Diphtheria, polio, mumps, measles, rubella, tetanus, hepatitis-b, haemophilus influenzae-b and whooping cough. Additional immunizations may be required by the Commissioner of the Bureau for Public Health for public health purposes. Any contract entered into to cover these services shall require that all costs associated with immunization, including the cost of the vaccine, if incurred by the health care provider, and all costs of vaccine administration be exempt from any deductible, per visit charge and/or copayment provisions which may be in force in these policies or contracts. This section does not require that other health care services provided at the time of immunization be exempt from any deductible and/or copayment provisions.
In the event the public employees insurance agency provides the above benefits for retired employees, their spouses and dependents, the public employees insurance agency shall adopt rules and regulations prescribing the conditions under which retired employees may elect to participate in or withdraw from the plan or plans. Any contract or contracts herein provided for shall be secondary to any hospital, surgical, major medical, prescription drug or other health insurance plan administered by the United States department of health and human services to which the retired employee, spouse or dependent may be eligible under any law or regulation of the United States. If an employee, eligible to participate in the public employees insurance agency plans, is also eligible to participate in the state medicaid program, and chooses to do so, then the public employees insurance agency may transfer to the medicaid program funds to pay the required state share of such employee's participation in medicaid except that the amount transferred may not exceed the amount that would be allocated by the agency to subsidize the cost of coverage for the retired employee if he or she were enrolled in the public employee insurance agency's plans.
(b) Any person who knowingly secures or attempts to secure benefits payable under this article or any other thing of value to which the person is not entitled, or knowingly attempts to secure greater benefits than those to which the person is entitled, by willfully misrepresenting, or aiding in the misrepresentation of, any material fact relating to employment, diagnosis or services rendered is guilty of a felony and, upon conviction thereof, shall be fined not more than five thousand dollars, imprisoned for not longer than two years, or both. Errors in coding for purposes of billing shall not be presumed to be evidence of criminal conduct in the absence of other competent evidence to the contrary.
(b) Upon a determination of the director or his or her designated representative that there is probable cause to believe that fraud, abuse or other illegal activities involving transactions with the agency has occurred, the director or his or her designated representative is authorized to refer the alleged violations to the Insurance Commissioner for investigation and, if appropriate, prosecution, pursuant to article forty-one, chapter thirty-three of this code. For purposes of this section, "transactions with the agency" includes, but is not limited to, application by any insured or dependent, any employer or any type of health care provider for payment to be made to that person or any third party by the agency.
(c) Any person who violates any provision of this article for which no other penalty is specifically provided is guilty of a misdemeanor and, upon conviction thereof, is subject to a fine of not less than $100 but not more than $500, or imprisonment for a period of not less than twenty-four hours but not more than fifteen days, or both.
(b) In the absence of fraud, malice or bad faith, no person or agent, employee or designee of that person shall be subject to civil liability of any nature arising out of that person's provision of information related to suspected, anticipated or fraudulent activity in the securing of benefits payable or securing greater benefits than those to which the person or provider is entitled.
(c) Nothing in this section shall be construed to limit, abrogate or modify existing statutes or case law applicable to the duties or liabilities of persons acting in a manner that is itself fraudulent, with malice or in bad faith.
(b) Spouse and dependent coverage. -- Each employee is entitled to have his or her spouse and dependents included in any group hospital and surgical insurance, group major medical insurance or group prescription drug insurance coverage to which the employee is entitled to participate: Provided, That the spouse and dependent coverage is limited to excess or secondary coverage for each spouse and dependent who has primary coverage from any other source. For purposes of this section, the term "primary coverage" means individual or group hospital and surgical insurance coverage or individual or group major medical insurance coverage or group prescription drug coverage in which the spouse or dependent is the named insured or certificate holder. For the purposes of this section, "dependent" includes an eligible employee's unmarried child or stepchild under the age of twenty-five if that child or stepchild meets the definition of a "qualifying child" or a "qualifying relative" in Section 152 of the Internal Revenue Code. The director may require proof regarding spouse and dependent primary coverage and shall adopt rules governing the nature, discontinuance and resumption of any employee's coverage for his or her spouse and dependents.
(c) Continuation after termination. -- If an employee participating in the plan is terminated from employment involuntarily or in reduction of work force, the employee's insurance coverage provided under this article shall continue for a period of three months at no additional cost to the employee and the employer shall continue to contribute the employer's share of plan premiums for the coverage. An employee discharged for misconduct shall not be eligible for extended benefits under this section. Coverage may be extended up to the maximum period of three months, while administrative remedies contesting the charge of misconduct are pursued. If the discharge for misconduct be upheld, the full cost of the extended coverage shall be reimbursed by the employee. If the employee is again employed or recalled to active employment within twelve months of his or her prior termination, he or she shall not be considered a new enrollee and may not be required to again contribute his or her share of the premium cost, if he or she had already fully contributed such share during the prior period of employment.
(d) Conversion of accrued annual and sick leave for extended insurance coverage upon retirement for employees who elected to participate in the plan before July, 1988. -- Except as otherwise provided in subsection (g) of this section, when an employee participating in the plan, who elected to participate in the plan before July 1, 1988, is compelled or required by law to retire before reaching the age of sixty-five, or when a participating employee voluntarily retires as provided by law, that employee's accrued annual leave and sick leave, if any, shall be credited toward an extension of the insurance coverage provided by this article, according to the following formulae: The insurance coverage for a retired employee shall continue one additional month for every two days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his or her retirement. For a retired employee, his or her spouse and dependents, the insurance coverage shall continue one additional month for every three days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his or her retirement.
(e) Conversion of accrued annual and sick leave for extended insurance coverage upon retirement for employees who elected to participate in the plan after June, 1988. -- Notwithstanding subsection (d) of this section, and except as otherwise provided in subsections (g) and (l) of this section when an employee participating in the plan who elected to participate in the plan on and after July 1, 1988, is compelled or required by law to retire before reaching the age of sixty-five, or when the participating employee voluntarily retires as provided by law, that employee's annual leave or sick leave, if any, shall be credited toward one half of the premium cost of the insurance provided by this article, for periods and scope of coverage determined according to the following formulae: (1) One additional month of single retiree coverage for every two days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his or her retirement; or (2) one additional month of coverage for a retiree, his or her spouse and dependents for every three days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his or her retirement. The remaining premium cost shall be borne by the retired employee if he or she elects the coverage. For purposes of this subsection, an employee who has been a participant under spouse or dependent coverage and who reenters the plan within twelve months after termination of his or her prior coverage shall be considered to have elected to participate in the plan as of the date of commencement of the prior coverage. For purposes of this subsection, an employee shall not be considered a new employee after returning from extended authorized leave on or after July 1, 1988.
(f) Increased retirement benefits for retired employees with accrued annual and sick leave. -- In the alternative to the extension of insurance coverage through premium payment provided in subsections (d) and (e) of this section, the accrued annual leave and sick leave of an employee participating in the plan may be applied, on the basis of two days' retirement service credit for each one day of accrued annual and sick leave, toward an increase in the employee's retirement benefits with those days constituting additional credited service in computation of the benefits under any state retirement system. However, the additional credited service shall not be used in meeting initial eligibility for retirement criteria, but only as additional service credited in excess thereof.
(g) Conversion of accrued annual and sick leave for extended insurance coverage upon retirement for certain higher education employees. -- Except as otherwise provided in subsection (l) of this section, when an employee, who is a higher education full-time faculty member employed on an annual contract basis other than for twelve months, is compelled or required by law to retire before reaching the age of sixty-five, or when such a participating employee voluntarily retires as provided by law, that employee's insurance coverage, as provided by this article, shall be extended according to the following formulae: The insurance coverage for a retired higher education full-time faculty member, formerly employed on an annual contract basis other than for twelve months, shall continue beyond the effective date of his or her retirement one additional year for each three and one-third years of teaching service, as determined by uniform guidelines established by the University of West Virginia Board of Trustees and the board of directors of the state college system, for individual coverage, or one additional year for each five years of teaching service for "family" coverage.
(h) Any employee who retired prior to April 21, 1972, and who also otherwise meets the conditions of the "retired employee" definition in section two of this article, shall be eligible for insurance coverage under the same terms and provisions of this article. The retired employee's premium contribution for any such coverage shall be established by the finance board.
(i) Retiree participation. -- All retirees under the provisions of this article, including those defined in section two of this article; those retiring prior to April 21, 1972; and those hereafter retiring are eligible to obtain health insurance coverage. The retired employee's premium contribution for the coverage shall be established by the finance board.
(j) Surviving spouse and dependent participation. -- A surviving spouse and dependents of a deceased employee, who was either an active or retired employee participating in the plan just prior to his or her death, are entitled to be included in any comprehensive group health insurance coverage provided under this article to which the deceased employee was entitled, and the spouse and dependents shall bear the premium cost of the insurance coverage. The finance board shall establish the premium cost of the coverage.
(k) Elected officials. -- In construing the provisions of this section or any other provisions of this code, the Legislature declares that it is not now nor has it ever been the Legislature's intent that elected public officials be provided any sick leave, annual leave or personal leave, and the enactment of this section is based upon the fact and assumption that no statutory or inherent authority exists extending sick leave, annual leave or personal leave to elected public officials and the very nature of those positions preclude the arising or accumulation of any leave, so as to be thereafter usable as premium paying credits for which the officials may claim extended insurance benefits.
(l) Participation of certain former employees. -- An employee, eligible for coverage under the provisions of this article who has twenty years of service with any agency or entity participating in the public employees insurance program or who has been covered by the public employees insurance program for twenty years may, upon leaving employment with a participating agency or entity, continue to be covered by the program if the employee pays one hundred five percent of the cost of retiree coverage: Provided, That the employee shall elect to continue coverage under this subsection within two years of the date the employment with a participating agency or entity is terminated.
(m) Prohibition on conversion of accrued annual and sick leave for extended coverage upon retirement for new employees who elect to participate in the plan after June, 2001. -- Any employee hired on or after July 1, 2001, who elects to participate in the plan may not apply accrued annual or sick leave toward the cost of premiums for extended insurance coverage upon his or her retirement. This prohibition does not apply to the conversion of accrued annual or sick leave for increased retirement benefits, as authorized by this section: Provided, That any person who has participated in the plan prior to July 1, 2001, is not a new employee for purposes of this subsection if he or she becomes reemployed with an employer participating in the plan within two years following his or her separation from employment and he or she elects to participate in the plan upon his or her reemployment.
(n) Prohibition on conversion of accrued years of teaching service for extended coverage upon retirement for new employees who elect to participate in the plan July, 2009. -- Any employee hired on or after July 1, 2009, who elects to participate in the plan may not apply accrued years of teaching service toward the cost of premiums for extended insurance coverage upon his or her retirement.
(b) The Finance Board shall study the feasibility of an oral health benefit for children of participants.
The director shall establish the terms of the preferred provider system and the incentives therefor. The terms and incentives may include multi-year renewal options as are not prohibited by the Constitution of this state and capitated primary care arrangements which are not subject to the provisions of article twenty-five-a of chapter thirty-three of this code.
For all participants enrolling in the plan after the effective date of this section, payment shall be made for expenses incurred for or in connection with a preexisting condition: Provided, That participants may enroll or make plan selections only at the time of hire, during annual open enrollment or upon the occurrence of a "qualifying event" under section 125 of the United States Internal Revenue Code.
(b) If the general revenue appropriation for any employer, excluding county boards of education, is insufficient to cover the cost of insurance coverage for the employer's participating employees, retired employees and surviving dependents, the employer shall pay the remainder of the cost from its "personal services" or "unclassified" line items. The amount of the payments for county boards of education shall be determined by the method set forth in section twenty-four, article nine-a, chapter eighteen of this code: Provided, That local excess levy funds shall be used only for the purposes for which they were raised: Provided, however, That after approval of its annual financial plan, but in no event later than the thirty-first day of December of each year, the finance board shall notify the Legislature and county boards of education of the maximum amount of employer premiums that the county boards of education shall pay for covered employees during the following fiscal year.
(c) All other employers not operating from the state General Revenue Fund shall pay to the director their share of premium costs from their respective budgets. The finance board shall establish the employers' share of premium costs to reflect and pay the actual costs of the coverage including incurred but not reported claims.
(d) The contribution of the other employers (namely: A county, city or town) in the state; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns; any comprehensive community mental health center or comprehensive mental retardation facility established, operated or licensed by the Secretary of Health and Human Resources pursuant to section one, article two-a, chapter twenty-seven of this code, and which is supported in part by state, county or municipal funds; and a combined city-county health department created pursuant to article two, chapter sixteen of this code for their employees shall be the percentage of the cost of the employees' insurance package as the employers determine reasonable and proper under their own particular circumstances.
(e) The employee's proportionate share of the premium or cost shall be withheld or deducted by the employer from the employee's salary or wages as and when paid and the sums shall be forwarded to the director with any supporting data as the director may require.
(f) All moneys received by the Public Employees Insurance Agency shall be deposited in a special fund or funds as are necessary in the State Treasury and the Treasurer of the state is custodian of the fund or funds and shall administer the fund or funds in accordance with the provisions of this article or as the director may from time to time direct. The Treasurer shall pay all warrants issued by the State Auditor against the fund or funds as the director may direct in accordance with the provisions of this article. All funds received by the agency, including, but not limited to, basic insurance premiums, administrative expenses and optional life insurance premiums, shall be deposited, as determined by the director, in any of the investment pools with the West Virginia Investment Management Board, including, but not limited to, the equity and fixed income pools, with the interest income or other earnings a proper credit to all such funds for the benefit of the Public Employees Insurance Agency.
(g) The Public Employees Insurance Agency may recover an additional interest amount from any employer that fails to pay in a timely manner any premium or minimum annual employer payment, as defined in article sixteen-d of this chapter, which is due and payable to the Public Employees Insurance Agency or the Retiree Health Benefit Trust. The agency may recover the amount due plus an additional amount equal to two and one half percent per annum of the amount due. Accrual of interest owed by the delinquent employer commences upon the thirty-first day following the due date for the amount owed and shall continue until receipt by the Public Employees Insurance Agency of the delinquent payment. Interest shall compound every thirty days.
Those employees enrolled in the insurance program authorized under the provisions of article two-b, chapter twenty-one-a of this code may not be required to enroll in or subscribe to an insurance plan or plans authorized by the provisions of this article, and the employees of any department which has an existing insurance program for its employees to which the government of the United States contributes any part or all of the premium or cost of the premium may be exempted from the provisions of this article. Any employee or employer exempted under the provisions of this paragraph may enroll in any insurance program authorized by the provisions of this article at any time, to the same extent as any other qualified employee or employer, but employee or employer may not remain enrolled in both programs. The provisions of articles fourteen, fifteen and sixteen, chapter thirty-three of this code, relating to group life insurance, accident and sickness insurance, and group accident and sickness insurance, are not applicable to the provisions of this article whenever the provisions of articles fourteen, fifteen and sixteen, chapter thirty-three of this code are in conflict with or contrary to any provision set forth in this article or to any plan or plans established by the Public Employees Insurance Agency.
Employers, other than the State of West Virginia, its boards, agencies, commissions, departments, institutions, spending units or a county board of education are exempt from participating in the insurance program provided for by the provisions of this article unless participation by the employer has been approved by a majority vote of the employer's governing body. It is the duty of the clerk or secretary of the governing body of an employer who by majority vote becomes a participant in the insurance program to notify the director not later than ten days after the vote.
Any employer, whether the employer participates in the Public Employees Insurance Agency insurance program as a group or not, which has retired employees, their dependents or surviving dependents of deceased retired employees who participate in the Public Employees Insurance Agency insurance program as authorized by this article, shall pay to the agency the same contribution toward the cost of coverage for its retired employees, their dependents or surviving dependents of deceased retired employees as the State of West Virginia, its boards, agencies, commissions, departments, institutions, spending units or a county board of education pay for their retired employees, their dependents and surviving dependents of deceased retired employees, as determined by the finance board: Provided, That after June 30, 1996, an employer not mandated to participate in the plan is only required to pay a contribution toward the cost of coverage for its retired employees, their dependents or the surviving dependents of deceased retired employees who elect coverage when the retired employee participated in the plan as an active employee of the employer for at least five years: Provided, however, That those retired employees of an employer not participating in the plan who retire on or after July 1, 2010, who have participated in the plan as active employees of the employer for less than five years are responsible for the entire premium cost for coverage and the Public Employees Insurance Agency shall bill for and collect the entire premium from the retired employees, unless the employer elects to pay the employer share of the premium. Each employer is hereby authorized and required to budget for and make such payments as are required by this section.
The rules shall provide that any employee of the state who has been compelled or required by law to retire before reaching the age of sixty-five years is eligible to participate in the public employees' health insurance program at the premium contribution established by the finance board after any extended coverage to which he or she, his or her spouse and dependents may be entitled by virtue of his or her accrued annual leave or sick leave, pursuant to the provisions of section thirteen of this article, has expired. Any employee who voluntarily retires, as provided by law, is eligible to participate in the public employees' health insurance program at the premium contribution established by the finance board after any extended coverage to which he or she, his or her spouse and dependents may be entitled by virtue of his or her accrued annual leave or sick leave, pursuant to the provisions of section thirteen of this article, has expired: Provided, That the employee's last employer is a participating employer. The dependents of any deceased retired employee are entitled to continue their participation and coverage upon payment of the premium contribution established by the finance board. In establishing the cost of health insurance coverage for retired employees and their spouses and dependents, the finance board, in its discretion, may cause the claims experience of the retired employees and their spouses and dependents to be rated separately from that of active employees and their spouses and dependents, or may cause the claims experience of retired and active employees, and their spouses and dependents, to be rated together.
Any employee who is on a medical leave of absence, approved by his or her employer, is subject to the following provisions of this paragraph, is entitled to continue his or her coverage until he or she returns to his or her employment, and the employee and employer shall continue to pay their proportionate share of premium costs as provided by this article: Provided, That the employer is obligated to pay its proportionate share of the premium cost only for a period of one year: Provided, however, That during the period of the leave of absence, the employee shall, at least once each month, submit to the employer the statement of a qualified physician certifying that the employee is unable to return to work.
Any retiree is eligible to participate in the public employees' life insurance program, including the optional life insurance coverage as already available to active employees under this article, at his or her own expense for the cost of coverage, based upon actuarial experience; and the director shall prepare, by rule, for that participation and coverages under declining term insurance and optional additional coverage for the retirees.
(a) A summary of the cost to the plan of health care claims incurred in the preceding calendar quarter;
(b) A summary of the funds accrued to the plan by legislative appropriation, employer and employee premiums or otherwise in the preceding calendar quarter for payment of health care claims;
(c) An explanation of all cost containment measures, increased premium rates and any other plan changes adopted by the director in the preceding calendar quarter and estimated cost savings and enhanced revenues resulting therefrom, and a certification that the director made a good faith effort to develop and implement all reasonable health care cost containment alternatives;
(d) Expected claim costs for the next calendar year;
(e) Such other information as the director deems appropriate; and
(f) Any other financial or other information as may be requested by the joint committee on government and finance.
Acts, 2010 Reg. Sess., Ch. 32.
Acts, 2004 Reg. Sess., Ch. 145.
(b) In developing a children's health insurance program that operates with the highest degree of simplicity and governmental efficiency, the board shall avoid duplicating functions available in existing agencies and may enter into interagency agreements for the performance of specific tasks or duties at a specific or maximum contract price.
(c) In developing benefit plans, the board may consider any cost savings, administrative efficiency or other benefit to be gained by considering existing contracts for services with state health plans and negotiating modifications of those contracts to meet the needs of the program.
(d) Upon the transfer of the functions of the children's health insurance program from the department of health and human resources to the children's health insurance agency within the department of administration, the secretary of the department of health and human resources and the secretary of the department of administration, acting jointly, are empowered to authorize and shall authorize such transfers of program funds including, but not limited to, the West Virginia children's health fund created in section seven of this article and associated investment accounts; and transfers of children's health insurance program personnel and equipment, as are necessary, to facilitate an orderly transfer of the functions of the children's health insurance program. Authority to make transfers pursuant to this subsection expires on the thirty-first day of December, two thousand.
(e) In order to enroll as many eligible children as possible in the program created by this article and to expedite the effective date of their health insurance coverage, the board shall develop and implement a plan whereby applications for enrollment may be taken at any primary care center or other health care provider, as determined by the director, and transmitted electronically to the program's offices for eligibility screening and other necessary processing. The board may use any funds available to it in the development and implementation of the plan, including grant funds or other private or public moneys.
(a) "Agency" means the children's health insurance agency within the department of administration;
(b) "Board" means the children's health insurance program board;
(c) "Director" means the director of the children's health insurance agency;
(d) "Essential community health service provider" means a health care provider that:
(1) Has historically served medically needy or medically indigent patients and demonstrates a commitment to serve low-income and medically indigent populations which constitute a significant portion of its patient population or, in the case of a sole community provider, serves medically indigent patients within its medical capability; and
(2) Either waives service fees or charges fees based on a sliding scale and does not restrict access or services because of a client's financial limitations. Essential community health service provider includes, but is not limited to, community mental health centers, school health clinics, primary care centers, pediatric health clinics or rural health clinics.
(e) "Program" means the West Virginia children's health insurance program.
(b) On a quarterly basis, the director shall provide reports to the legislative oversight commission on health and human resources accountability on the number of children served, including the number of newly enrolled children for the reporting period and current projections for future enrollees; outreach efforts and programs; statistical profiles of the families served and health status indicators of covered children; the average annual cost of coverage per child; the total cost of children served by provider type, service type and contract type; outcome measures for children served; reductions in uncompensated care; performance with respect to the financial plan; and any other information as the legislative oversight commission on health and human resources accountability may require.
(b) The purpose of the board is to develop plans for health services or health insurance that are specific to the needs of children and to bring fiscal stability to this program through development of an annual financial plan designed in accordance with the provisions of this article.
(c) Notwithstanding any other provisions of this code to the contrary, any insurance benefits offered as a part of the programs designed by the board are exempt from the minimum benefits and coverage requirements of articles fifteen and sixteen, chapter thirty-three of this code.
(d) The board may consider adopting the maximum period of continuous eligibility permitted by applicable federal law, regardless of changes in a family's economic status, so long as other group insurance does not become available to a covered child.
(e) The board shall meet at the time and place as specified by the call of the chairperson or upon the written request to the chairperson by at least two members. Notice of each meeting shall be given in writing to each member by the chairperson at least three days in advance of the meeting. Four voting members shall constitute a quorum.
(f) For each day or portion of a day spent in the discharge of duties pursuant to this article, the board shall pay each of its citizen members the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties.
Acts, 2010 Reg. Sess., Ch. 32.
(b) The director shall employ any administrative, technical and clerical employees that are required for the proper administration of the program and for the work of the board. He or she shall present recommendations and alternatives for the design of the annual plans and other actions undertaken by the board in furtherance of this article.
(c) The director is responsible for the administration and management of the program and has the power and authority to make all rules necessary to effectuate the provisions of this article. Nothing in this article may be construed as limiting the director's otherwise lawful authority to manage the program on a day-to-day basis.
(d) The director has exclusive authority to execute any contracts that are necessary to effectuate the provisions of this article: Provided, That the board shall approve all contracts for the provision of services or insurance coverage under the program. The provisions of article three, chapter five-a of this code, relating to the division of purchasing of the department of finance and administration, shall not apply to any contracts for any health insurance coverage, health services, or professional services authorized to be executed under the provisions of this article: Provided, however, That before entering into any contract the director shall invite competitive bids from all qualified entities and shall deal directly with those entities in presenting specifications and receiving quotations for bid purposes. The director shall award those contracts on a competitive basis taking into account the experience of the offering agency, corporation, insurance company or service organization. Before any proposal to provide benefits or coverage under the plan is selected, the offering agency, corporation, insurance company or service organization shall provide assurances of utilization of essential community health service providers to the greatest extent practicable. In evaluating these factors, the director may employ the services of independent, professional consultants. The director shall then award the contracts on a competitive basis.
(e) The director shall issue requests for proposals on a regional or statewide basis from essential community health service providers for defined portions of services under the children's health insurance plan and shall, to the greatest extent practicable, either contract directly with, or require participating providers to contract with, essential community health service providers to provide the services under the plan.
(f) Subject to the advice and consent of the board, the director may require reinsurance of primary contracts, as contemplated in the provisions of sections fifteen and fifteen-a, article four, chapter thirty-three of this code.
(b) Actuary requirements. -- Any financial plan, or modifications, approved or proposed by the board shall be submitted to and reviewed by an actuary before final approval. The financial plan shall be submitted to the governor and the Legislature with the actuary's written professional opinion that all estimated program and administrative costs of the agency under the plan, including incurred but unreported claims, will not exceed ninety percent of the funding available to the program for the fiscal year for which the plan is proposed and that the financial plan allows for no more than thirty days of accounts payable to be carried over into the next fiscal year. This actuarial requirement is in addition to any requirement imposed by Title XXI of the Social Security Act of 1997.
(c) Annual plans. -- The board shall review implementation of its current financial plan in light of actual experience and shall prepare an annual financial plan for each fiscal year during which the board remains in existence. For each fiscal year, the governor shall provide an estimate of requested appropriations and total funding available to the board no later than the fifteenth day of October preceding the fiscal year. The board shall afford interested and affected persons an opportunity to offer comment on the plan at a public meeting of the board and, in developing any proposed plan under this article, shall solicit comments in writing from interested and affected persons. The board shall submit its final, approved financial plan, subject to the actuarial requirements of this article, to the governor and to the Legislature no later than the first day of January preceding the fiscal year. The financial plan for a fiscal year becomes effective and shall be implemented by the director on the first day of July of that fiscal year. Annual plans developed pursuant to this subsection are subject to the provisions of subsections (a) and (b) of this section and the following guidelines:
(1) The aggregate actuarial value of the plan established as the benchmark plan should be considered as a targeted maximum or limitation in developing the benefits package;
(2) All estimated program and administrative costs, including incurred but not reported claims, shall not exceed ninety percent of the funding available to the program for the applicable fiscal year; and
(3) The state's interest in achieving health care services for all its children at less than two hundred percent of the federal poverty guideline shall take precedence over enhancing the benefits available under this program.
(d) The provisions of chapter twenty-nine-a of this code do not apply to the preparation, approval and implementation of the financial plans required by this section.
(e) The board shall meet no less than once each quarter to review implementation of its current financial plan and, using actuarial data, shall make those modifications to the plan that are necessary to ensure its fiscal stability and effectiveness of service. The board may not increase the types and levels of cost to families of covered children during its quarterly review except in the event of a true emergency. The board may not expand the population of children to whom the program is made available except in its annual plan: Provided, That upon the effective date of this article, the board may expand coverage to any child eligible under the provisions of Title XXI of the Social Security Act of 1997: Provided, however, That the board shall implement cost-sharing provisions for children who may qualify for such expanded coverage and whose family income exceeds one hundred fifty percent of the federal poverty guideline. Such cost-sharing provisions may be imposed through any one or a combination of the following: enrollment fees, premiums, copayments and deductibles.
(f) The board may develop and implement programs that provide for family coverage and/or employer subsidies within the limits authorized by the provisions of Title XXI of the Social Security Act of 1997 or the federal regulations promulgated thereunder: Provided, That any family health insurance coverage offered by or through the program shall be structured so that the board assumes no financial risk: Provided, however, That families covered by any insurance offered by or through the program shall be subject to cost-sharing provisions which may include, without limitation, enrollment fees, premiums, copayments and/or deductibles, as determined by the board, which shall be based on ability to pay: Provided further, That enrollment fees or premiums, if imposed, may be paid, in whole or in part, through employer subsidies or other private funds or public funds, subject to availability, all as allowed by applicable state and federal law.
(g) For any fiscal year in which legislative appropriations differ from the governor's estimate of general and special revenues available to the agency, the board shall, within thirty days after passage of the budget bill, make any modifications to the plan necessary to ensure that the total financial requirements of the agency for the current fiscal year are met.
(b) This section does not apply to a policy, plan or contract paid for under Title XVIII of the Social Security Act.
(c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial, as a result of:
(1) Treatment provided for a life-threatening condition; or
(2) Prevention of, early detection of or treatment studies on cancer.
(d) The coverage under subsection (c) of this section is required if:
(1)(A) The treatment is being provided or the studies are being conducted in a Phase II, Phase III or Phase IV clinical trial for cancer and has therapeutic intent; or
(B) The treatment is being provided in a Phase II, Phase III or Phase IV clinical trial for any other life-threatening condition and has therapeutic intent;
(2) The treatment is being provided in a clinical trial approved by:
(A) One of the national institutes of health;
(B) An NIH cooperative group or an NIH center;
(C) The FDA in the form of an investigational new drug application or investigational device exemption;
(D) The federal department of veterans affairs; or
(E) An institutional review board of an institution in the state which has a multiple project assurance contract approved by the office of protection from research risks of the national institutes of health;
(3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;
(4) There is no clearly superior, noninvestigational treatment alternative;
(5) The available clinical or preclinical data provide a reasonable expectation that the treatment will be more effective than the noninvestigational treatment alternative;
(6) The treatment is provided in this state: Provided, That, if the treatment is provided outside of this state, the treatment must be approved by the payor designated in subsection (a) of this section;
(7) Reimbursement for treatment is subject to all coinsurance, copayment and deductibles and is otherwise subject to all restrictions and obligations of the health plan; and
(8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no greater than that provided by an in network or contracting provider. Coverage shall not be required if the out of network or noncontracting provider will not accept this level of reimbursement.
(e) Payment for patient costs for a clinical trial is not required by the provisions of this section, if:
(1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug, or to gain approval or coverage relating to additional clinical indications for an existing drug; or
(2) The purpose of the clinical trial is designed to keep a generic version of a drug from becoming available on the market; or
(3) The purpose of the clinical trial is to gain approval of or coverage for a reformulated or repackaged version of an existing drug.
(f) Any provider billing a third party payor for services or products provided to a patient in a clinical trial shall provide written notice to the payor that specifically identifies the services as part of a clinical trial.
(g) Notwithstanding any provision in this section to the contrary, coverage is not required for Phase I of any clinical trial.
(a) A "clinical trial" is a study that determines whether new drugs, treatments or medical procedures are safe and effective on humans. To determine the efficacy of experimental drugs, treatments or procedures, a study is conducted in four phases including the following:
Phase II: The experimental drug or treatment is given to, or a procedure is performed on, a larger group of people to further measure its effectiveness and safety.
Phase III: Further research is conducted to confirm the effectiveness of the drug, treatment or procedure, to monitor the side effects, to compare commonly used treatments and to collect information on safe use.
Phase IV: After the drug, treatment or medical procedure is marketed, investigators continue testing to determine the effects on various populations and to determine whether there are side effects associated with long-term use.
(b) "Cooperative group" means a formal network of facilities that collaborate on research projects and have an established NIH-approved peer review program operating within the group.
(c) "Cooperative group" includes:
(1) The national cancer institute clinical cooperative group;
(2) The national cancer institute community clinical oncology program;
(3) The AIDS clinical trial group; and
(4) The community programs for clinical research in AIDS.
(d) "FDA" means the federal food and drug administration.
(e) "Life-threatening condition" means that the member has a terminal condition or illness that according to current diagnosis has a high probability of death within two years, even with treatment with an existing generally accepted treatment protocol.
(f) "Member" means a policyholder, subscriber, insured, certificate holder or a covered dependent of a policyholder, subscriber, insured or certificate holder.
(g) "Multiple project assurance contract" means a contract between an institution and the federal department of health and human services that defines the relationship of the institution to the federal department of health and human services and sets out the responsibilities of the institution and the procedures that will be used by the institution to protect human subjects.
(h) "NIH" means the national institutes of health.
(i) "Patient cost" means the routine costs of a medically necessary health care service that is incurred by a member as a result of the treatment being provided pursuant to the protocols of the clinical trial. Routine costs of a clinical trial include all items or services that are otherwise generally available to beneficiaries of the insurance policies. "Patient cost" does not include:
(1) The cost of the investigational drug or device;
(2) The cost of nonhealth care services that a patient may be required to receive as a result of the treatment being provided to the member for purposes of the clinical trial;
(3) Services customarily provided by the research sponsor free of charge for any participant in the trial;
(4) Costs associated with managing the research associated with the clinical trial including, but not limited to, services furnished to satisfy data collection and analysis needs that are not used in the direct clinical management of the participant; or
(5) Costs that would not be covered under the participant's policy, plan, or contract for noninvestigational treatments;
(6) Adverse events during treatment are divided into those that reflect the natural history of the disease, or its progression, and those that are unique in the experimental treatment. Costs for the former are the responsibility of the payor as provided in section two of this article, and costs for the later are the responsibility of the sponsor. The sponsor shall hold harmless any payor for any losses and injuries sustained by any member as a result of his or her participation in the clinical trial.
(1) That there exists a number of families of low to moderate income without access to affordable health insurance coverage, whose children are denied plan participation because their family income exceeds two hundred percent of the federal poverty level;
(2) That this exclusion imposes a heavy burden on many families by forcing them to elect whether to spend money on their children's health care or for their food, clothing and educational needs;
(3) That a plan should be developed and considered whereby children in families with an income between two hundred and three hundred percent of the federal poverty level would contribute approximately twenty to twenty-five percent of the actual cost of coverage resulting in no additional cost to state government; and
(4) That, while the primary goal of any plan will be the improvement of health care for these children, a successful plan for extending this coverage will benefit the state by improving the economy by allowing parents of these children to spend more for goods and services and by lowering future medical expenditures, uncompensated care and the other long-term adverse economic effects related to having a segment of the adult population which has been deprived of adequate medical care during childhood.
The board is directed to conduct a study of all available means to develop a viable, modified plan to enroll the children of those families having a level of income between two hundred and three hundred percent of the federal poverty level and to consider that such a plan should charge an affordable premium and may be phased in over a two-year period.
The board is further directed to study total program costs related to the implementation of a viable modified plan to expand coverage with the design requiring no additional state dollars and to study the long-term effect on the state budget.
The board is directed to report its findings and recommendations to the Joint Committee on Government and Finance at its monthly meeting of August, two thousand four.
(b) The benefit plans offered pursuant to this section shall include services determined to be appropriate for children, but may vary from those currently offered by the board.
(c) The board shall structure the benefit plans for this expansion to include premiums, coinsurance or copays and deductibles. The board shall develop the cost sharing features in such a manner as to keep the program fiscally stable without creating a barrier to enrollment. Such features may include different cost-sharing features within this group based upon the percentage of the federal poverty level.
(d) Provider reimbursement schedules shall be no lower than the reimbursement provided for the same services under the plans offered in article sixteen of this chapter.
(e) All provisions of this article are applicable to this expansion unless expressly addressed in this section.
(f) Nothing in this section may be construed to require any appropriation of State General Revenue Funds for the payment of any benefit provided pursuant to this section, except for the state appropriation used to match the federal financial participation funds. In the event that federal funds are no longer authorized for participation by individuals eligible at income levels above two hundred percent, the board shall take immediate steps to terminate the expansion provided for in this section and notify all enrollees of such termination. In the event federal appropriations decrease for the programs created pursuant to Title XXI of the Social Security Act of 1997, the board is directed to make those decreases in this expansion program before making changes to the programs created for those children whose family income is less than two hundred percent of the federal poverty level.
(g) The board is directed to report no less than quarterly to the Legislative Oversight Commission on Health and Human Resources Accountability on the development, implementation and progress of the expansion authorized in this section.
(a) To the extent that the diagnosis, evaluation and treatment of autism spectrum disorders are not already covered by this agency, on or after January 1, 2012, a policy, plan or contract subject to this section shall provide coverage for such diagnosis, evaluation and treatment, for individuals ages eighteen months to eighteen years. To be eligible for coverage and benefits under this section, the individual must be diagnosed with autism spectrum disorder at age eight or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or prescribed by a licensed physician or licensed psychologist and in accordance with a treatment plan developed from a comprehensive evaluation by a certified behavior analyst for an individual diagnosed with autism spectrum disorder.
(b) The coverage shall include, but not be limited to, applied behavior analysis. Applied behavior analysis shall be provided or supervised by a certified behavior analyst. The annual maximum benefit for applied behavior analysis required by this subsection shall be in an amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, coverage for applied behavior analysis required by this subsection shall be in an amount not to exceed $2,000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual. This section shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time, or other publicly funded programs. Nothing in this section shall be construed as requiring reimbursement for services provided by public school personnel.
(c) The certified behavior analyst shall file progress reports with the agency semiannually. In order for treatment to continue, the agency must receive objective evidence or a clinically supportable statement of expectation that:
(1) The individual's condition is improving in response to treatment; and
(2) A maximum improvement is yet to be attained; and
(3) There is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
(d) On or before January 1 each year, the agency shall file an annual report with the Joint Committee on Government and Finance describing its implementation of the coverage provided pursuant to this section. The report shall include, but shall not be limited to, the number of individuals in the plan utilizing the coverage required by this section, the fiscal and administrative impact of the implementation, and any recommendations the agency may have as to changes in law or policy related to the coverage provided under this section. In addition, the agency shall provide such other information as may be requested by the Joint Committee on Government and Finance as it may from time to time request.
(e) For purposes of this section, the term:
(1) "Applied Behavior Analysis" means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.
(2) "Autism spectrum disorder" means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(3) "Certified behavior analyst" means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.
(4) "Objective evidence" means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and after treatment is recommended to quantify progress and support justifications for continued treatment. The tools are not required, but their use will enhance the justification for continued treatment.
(f) To the extent that the application of this section for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the agency may apply additional cost containment measures.
(g) To the extent that the provisions of this section require
benefits that exceed the essential health benefits specified under
section 1302(b) of the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, as amended, the specific benefits that exceed
the specified essential health benefits shall not be required of
the West Virginia Children's Health Insurance Program.
(1) To provide the state's share of the children's health fund;
(2) To cover administrative costs associated with the children's health program; and
(3) To cover outreach activities.
(b) Moneys from the following sources may be placed into the fund:
(1) All public funds appropriated by the Legislature or transferred by any public agency as contemplated or permitted by applicable federal program laws;
(2) All private moneys contributed by corporations, individuals or other entities to the fund as contemplated and permitted by applicable federal and state laws;
(3) Any accrued interest; and
(4) Federal financial participation matching the amounts referred to in subdivisions (1), (2) and (3) of this subsection, in accordance with Section 1902 (a) (2) of the Social Security Act.
(c) Any balance remaining in the children's health fund at the end of any state fiscal year shall not revert to the state treasury but shall remain in this fund and shall be used only in a manner consistent with this article.
(d) Notwithstanding the provisions of section two, article two, chapter twelve of this code, funds of the West Virginia children's health fund may not be redesignated for any purpose other than those set forth in this subsection. All state and private moneys received by the program shall be deposited in the West Virginia consolidated investment pool with the West Virginia investment management board, with the interest income a proper credit to all such funds.
(1) The date of entry of a final judgment or order by a court of competent jurisdiction which disallows the program;
(2) The effective date of any reduction in annual federal funding levels below the amounts allocated and/or projected in Title XXI of the Social Security Act of 1997;
(3) The effective date of any federal rule or regulation negating the purposes or effect of this article; or
(4) For purposes of subdivisions (2) and (3) of this subsection, if a later effective date for such reduction or negation is specified, such date will control.
(b) Upon termination of the board and notwithstanding any provisions to the contrary, the director may change the levels of costs to covered families only in accordance with rules proposed to the Legislature pursuant to the provisions of chapter twenty-nine-a of this code.
If medical assistance is paid or will be paid to a provider of medical care on behalf of a recipient of medical assistance because of any sickness, injury, disease or disability, and another person is legally liable for the expense, either pursuant to contract, negligence or otherwise, the children's health insurance agency shall have a right to recover full reimbursement from any award or settlement for the medical assistance from the other person, or from the recipient of the assistance if he or she has been reimbursed by the other person. The children's health insurance agency shall be legally assigned the rights of the recipient against the person so liable, but only to the extent of the reasonable value of the medical assistance paid and attributable to the sickness, injury, disease or disability for which the recipient has received damages. When an action or claim is brought by a medical assistance recipient or by someone on his or her behalf against a third party who may be liable for the injury, disease, disability or death of a medical assistance recipient, any settlement, judgment or award obtained is subject to the claim of the children's health insurance agency for reimbursement of an amount sufficient to reimburse the children's health insurance agency the full amount of benefits paid on behalf of the recipient under the medical assistance program for the injury, disease, disability or death of the medical assistance recipient. The claim of the children's health insurance agency assigned by the recipient may not exceed the amount of medical expenses for the injury, disease, disability or death of the recipient paid by the children's health insurance agency on behalf of the recipient. The right of subrogation created in this section includes all portions of the cause of action, by either settlement, compromise, judgment or award, notwithstanding any settlement allocation or apportionment that purports to dispose of portions of the cause of action not subject to the subrogation. Any settlement, compromise, judgment or award that excludes or limits the cost of medical services or care does not preclude the children's health insurance agency from enforcing its rights under this section. The children's health insurance agency may compromise, settle and execute a release of any claim, in whole or in part.
(b) Nothing in this section shall be construed so as to prevent the recipient of medical assistance from maintaining an action for injuries received by them against any other person and from including therein, as part of the compensatory damages sought to be recovered, the amount or amounts of his or her medical expenses, even though the person received medical assistance in the payment of the medical expenses, in whole or in part.
If the action be tried by a jury, the jury is not to be informed as to the interest of the children's health insurance agency, if any, and the fact is not to be disclosed to the jury at any time. The trial judge shall, upon the entry of judgment on the verdict, direct that an amount equal to the amount of medical assistance given be withheld and paid over to the children's health insurance agency. Irrespective of whether the case be terminated by judgment or by settlement without trial, from the amount required to be paid to the children's health insurance agency there shall be deducted the attorney fees attributable to the amount in accordance with and in proportion to the fee arrangement made between the recipient and his or her attorney of record so that the children's health insurance agency shall bear the pro rata portion of the attorney fees. Nothing in this section shall preclude any person who has received medical assistance from settling any cause of action which he or she may have against another person and delivering to the children's health insurance agency, from the proceeds of the settlement, the sums received by him or her from the children's health insurance agency or paid by the children's health insurance agency for his or her medical assistance. If the other person is aware of or has been informed of the interest of the children's health insurance agency in the matter, it shall be the duty of the person to whose benefit the release inures to withhold so much of the settlement as may be necessary to reimburse the children's health insurance agency to the extent of its interest in the settlement. No judgment, award of or settlement in any action or claim by a medical assistance recipient to recover damages for injuries, disease or disability, in which the children's health insurance agency has interest, shall be satisfied without first giving the children's health insurance agency notice and reasonable opportunity to establish its interest. The children's health insurance agency shall have sixty days from receipt of written notice to advise the recipient or his or her representative in writing of the children's health insurance agency's desire to establish its interest through the assignment. If no written intent is received within the sixty-day period, then the recipient may proceed and in the event of full recovery forward to the children's health insurance agency the portion of the recovery proceeds less the children's health insurance agency's share of attorney's fees and costs expended in the matter. In the event of less than full recovery the recipient and the children's health insurance agency shall agree as to the amount to be paid to the children's health insurance agency for its claim. If there is no recovery, the children's health insurance agency shall under no circumstances be liable for any costs or attorney's fees expended in the matter. If, after being notified in writing of a subrogation claim and possible liability of the recipient, guardian, attorney or personal representative for failure to subrogate the children's health insurance agency, a recipient, his or her guardian, attorney or personal representative disposes of the funds representing the judgment, settlement or award, without the written approval of the children's health insurance agency, that person shall be liable to the children's health insurance agency for any amount that, as a result of the disposition of the funds, is not recoverable by the children's health insurance agency. In the event that a controversy arises concerning the subrogation claims by the children's health insurance agency, an attorney shall interplead, pursuant to rule twenty-two of the rules of civil procedure, the portion of the recipient's settlement that will satisfy the children's health insurance agency exclusive of attorney's fees and costs regardless of any contractual arrangement between the client and the attorney.
(c) Nothing contained herein shall authorize the children's health insurance agency to institute a class action or multiple plaintiff action against any manufacturer, distributor or vendor of any product to recover children's health insurance agency care expenditures paid for by the children's health insurance agency program.
(1) the individual's condition is improving in response to treatment, and
(2) maximum improvement is yet to be attained, and
(3) there is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
(b) Such coverage shall include, but not be limited to, applied behavioral analysis provided or supervised by a certified behavior analyst: Provided, That the annual maximum benefit for treatment required by this section shall be in amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, required coverage shall be in an amount not to exceed $2000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual. This section shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time or other publicly funded programs. Nothing in this section shall be construed as requiring reimbursement for services provided by public school personnel.
(c) On or before January 1 each year, the agency shall file an annual report with the joint committee on government and finance describing its implementation of the coverage provided pursuant to this section. The report shall include, but shall not be limited to the number of individuals in the plan utilizing the coverage required by this section, the fiscal and administrative impact of the implementation, and any recommendations the agency may have as to changes in law or policy related to the coverage provided under this section. In addition, the agency shall provide such other information as may be requested by the joint committee on government and finance as it may from time to time request.
(d) For purposes of this section, the term:
(1) "Applied Behavior Analysis" means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.
(2) "Autism spectrum disorder" means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(3) "Certified behavior analyst" means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.
(4) "Objective evidence" means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and/or after treatment is recommended to quantify progress and support justifications for continued treatment. Such tools are not required, but their use will enhance the justification for continued treatment.
(e) To the extent that the application of this section for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the agency may apply additional cost containment measures.
(f) To the extent that the provisions of this section requires
benefits that exceed the essential health benefits specified under
section 1302(b) of the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, as amended, the specific benefits that exceed
the specified essential health benefits shall not be required of
the West Virginia Children's Health Insurance Program.
(1) "Audit" means a systematic examination and collection of sufficient, competent evidential matter needed for an auditor to attest to the fairness of management's assertions in the financial statements and to evaluate whether management has sufficiently and effectively carried out its responsibilities and complied with applicable laws and regulations, conducted by an independent certified public accountant in accordance with the applicable statement on standards: Provided, That the report shall include an incurred-but-not-reported calculation, where available.
(2) "Director" means the director of the public employees insurance agency created under article sixteen of this chapter.
(3) "Finance board" means the public employees insurance agency finance board created in section four, article sixteen of this chapter.
(4) "Pharmacy benefit manager" means an entity that procures prescription drugs at a negotiated rate under a contract and which may serve as a third party prescription drug benefit administrator.
(5) "Prescription drug purchasing agreement" means a written agreement to pool all parties' prescription drug buying power in order to negotiate the best possible prices and which delegates authority to negotiate on behalf of the parties to the director.
(6) "Prescription drugs" mean substances recognized as drugs in the official "United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or National Formulary", or any supplement thereto, dispensed pursuant to a prescription issued by an authorized health care practitioner, for use in the diagnosis, cure, mitigation, treatment or prevention of disease in a human, as well as prescription drug delivery systems, testing kits and related supplies.
(1) All departments, agencies, authorities, institutions, programs, quasipublic corporations and political subdivisions of this state, including, but not limited to, the children's health insurance program, the division of corrections, the division of juvenile services, the regional jail and correctional facility authority, the workers' compensation fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the division of rehabilitation, public health departments and the bureau of medical services: Provided, That any contract or agreement executed with or on behalf of the bureau of medical services shall contain all necessary provisions to comply with the provisions of Title XIX of the Social Security Act, 42 U.S.C. §1396 et seq., dealing with pharmacy services offered to recipients under the medical assistance plan of West Virginia;
(2) Governments of other states and jurisdictions and their individual departments, agencies, authorities, institutions, programs, quasipublic corporations and political subdivisions;
(3) Regional or multistate purchasing alliances or consortia, formed for the purpose of pooling the combined purchasing power of the individual members in order to increase bargaining power; and
(4) Arrangements with entities in the private sector, including self-funded benefit plans, toward combined purchasing of health care services, health care management services, pharmacy benefits management services or pharmaceutical products: Provided, That no private entity may be compelled to participate in the prescription drug purchasing pool: Provided, however, That the director may not execute a contract with a private entity without further enactment of the Legislature specifically authorizing the agreement.
(b) The finance board shall approve each agreement before it is executed by the director and the director may not execute any agreement not approved by the finance board.
(c) The finance board may not approve and the director may not execute any agreement that does not effectively and efficiently manage rising drug costs on behalf of the parties to the agreement.
(d) The finance board may not approve and the director may not execute any agreement that grants the state's credit for the purchase of prescription drugs by any entity other than this state.
(b) The director shall provide written notice to the joint committee on government and finance before executing a prescription drug purchasing agreement or a pharmacy benefit management contract or amending an existing prescription drug contract.
(1) Enacting fair prescription drug pricing policies;
(2) Providing for discount prices or rebate programs for seniors and persons without prescription drug insurance;
(3) Coordinating programs offered by pharmaceutical manufacturers that provide prescription drugs for free or at reduced prices;
(4) Requiring prescription drug manufacturers to disclose to the state expenditures for advertising, marketing and promotion, as well as for provider incentives and research and development efforts;
(5) Establishing counter-detailing programs aimed at educating health care practitioners authorized to prescribe prescription drugs about the relative costs and benefits of various prescription drugs, with an emphasis on generic substitution for brand name drugs when available and appropriate; prescribing older, less costly drugs instead of newer, more expensive drugs, when appropriate; and prescribing lower dosages of prescription drugs, when available and appropriate;
(6) Establishing disease state management programs aimed at enhancing the effectiveness of treating certain diseases identified as prevalent among this state's population with prescription drugs;
(7) Studying the feasibility and appropriateness of executing prescription drug purchasing agreements with large private sector purchasers of prescription drugs and including those private entities in pharmacy benefit management contracts;
(8) Studying the feasibility and appropriateness of authorizing the establishment of voluntary private buying clubs, cooperatives or purchasing alliances comprised of small businesses and or individuals for the purpose of purchasing prescription drugs at optimal prices; and
(9) Other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug prices and increasing affordable access to prescription drugs for all West Virginia citizens.
(b) The director shall report to the joint committee on government and finance on a semi-annual basis regarding activities and recommendations relating to the mandates of this section.
Acts, 2010 Reg. Sess., Ch. 32.
Acts, 2010 Reg. Sess., Ch. 32.
(a) "Actuarial accrued liability" means that portion, as determined by a particular actuarial cost method, of the actuarial present value of fund obligations and administrative expenses which is not provided by future normal costs.
(b) "Actuarial cost method" means a method for determining the actuarial present value of the obligations and administrative expenses of the fund and for developing an actuarially equivalent allocation of the value to time periods, usually in the form of a normal cost and an actuarial accrued liability. Acceptable actuarial methods are the aggregate, attained age, entry age, frozen attained age, frozen entry age and projected unit credit methods.
(c) "Actuarially sound" means that calculated contributions to the fund are sufficient to pay the full actuarial cost of the fund. The full actuarial cost includes both the normal cost of providing for fund obligations as they accrue in the future and the cost of amortizing the unfunded actuarial accrued liability over a period of no more than thirty years.
(d) "Actuarial present value of total projected benefits" means the present value, at the valuation date, of the cost to finance benefits payable in the future, discounted to reflect the expected effects of the time value of money and the probability of payment.
(e) "Actuarial assumptions" means assumptions regarding the occurrence of future events affecting the fund such as mortality, withdrawal, disability and retirement; changes in compensation and offered post-employment benefits; rates of investment earnings and other asset appreciation or depreciation; procedures used to determine the actuarial value of assets; and other relevant items.
(f) "Actuarial valuation" means the determination, as of a valuation date, of the normal cost, actuarial accrued liability, actuarial value of assets and related actuarial present values for the fund.
(g) "Administrative expenses" means all expenses incurred in the operation of the fund, including all investment expenses.
(h) "Annual required contribution" means the amount employers must contribute in a given year to fully fund the trust, as determined by the actuarial valuation in accordance with requirements of generally accepted accounting principles. This amount shall represent a level of funding that if paid on an ongoing basis is projected to cover the normal cost each year and amortize any unfunded actuarial liabilities of the plan over a period not to exceed thirty years.
(i) "Board" means the Public Employees Insurance Agency Finance Board created in section four, article sixteen of this chapter.
(j) "Cost-sharing multiple employer plan" means a single plan with pooling (cost-sharing) arrangements for the participating employers. All risk, rewards, and costs, including benefit costs, are shared and not attributed individually to the employers. A single actuarial valuation covers all plan members and the same contribution rate applies for each employer.
(k) "Covered health care expenses" means all actual health care expenses paid by the health plan on behalf of fund beneficiaries. Actual health care expenses include claims payments to providers and premiums paid to intermediary entities and health care providers by the health plan.
(l) "Employer" means any employer as defined by section two, article sixteen of this chapter which has or will have retired employees in any Public Employees Insurance Agency health plan.
(m) "Employer annual required contribution" means the portion of the annual required contribution which is the responsibility of that particular employer.
(n) "Fund" means the West Virginia Retiree Health Benefit Trust Fund established under this article.
(o) "Fund beneficiaries" means all persons receiving post-employment health care benefits through the health plan.
(p) "Health plan" means the health insurance plan or plans established under article sixteen of this chapter.
(q) "Minimum annual employer payment" means the annual amount paid by employers which, when combined with the retirees' contributions on their premiums that year, provide sufficient funds such that the annual finance plan of the finance board will cover all projected retiree covered health care expenses and related administrative costs for that year. The finance board shall develop the minimum annual employer payment as part of its financial plan each year as addressed in section five, article sixteen of this chapter.
(r) "Normal cost" means that portion of the actuarial present value of the fund obligations and expenses which is allocated to a valuation year by the actuarial cost method used for the fund.
(s) "Obligations" means the administrative expenses of the fund and the cost of covered health care expenses incurred on behalf of fund beneficiaries.
(t) "Other post-employment benefits" or "retiree post-employment health care benefits" means those benefits as addressed by governmental accounting standards board statement no. 43 or any subsequent governmental standards board statement that may be applicable to the fund.
(u) "Plan for other post-employment benefits" means the fiscal funding plan for retiree post-employment health care benefits as it relates to governmental accounting standards board statement no. 43 or any subsequent governmental accounting standards board statements that may be applicable to the fund.
(v) "Retiree" means retired employee as defined by section two, article sixteen of this chapter.
(w) "Retirement system" or "system" means the West Virginia Consolidated Public Retirement Board created and established by article ten of this chapter and includes any retirement systems or funds administered or overseen by the Consolidated Public Retirement Board.
(x) "Unfunded actuarial accrued liability" means for any actuarial valuation the excess of the actuarial accrued liability over the actuarial value of the assets of the fund under an actuarial cost method used by the fund for funding purposes.
There is hereby created the West Virginia Retiree Health Benefit Trust Fund for the purpose of providing for and administering retiree post-employment health care benefits, and the respective revenues and costs of those benefits as a cost sharing multiple employer plan.
The fund shall be available without fiscal year limitations for covered health care expenses and administration costs. All contributions, appropriations, earnings, and reserves for the payment of obligations under this article shall be credited to the fund and are irrevocable.
The amounts remaining in the fund, if any, after covered health care expenses and administration costs have been paid shall be retained in the fund as a special reserve for adverse fluctuation. All assets of the fund shall be used solely for the payment of fund obligations and for no other purpose.
(b) The board shall adopt actuarial assumptions as it deems necessary and prudent.
(c) The board shall determine the annual required contribution rates sufficient to maintain the fund in accordance with the state plan for other post-employment benefits.
(d) The board may promulgate, in accordance with chapter twenty-nine-a of this code, any rules it finds necessary to properly administer the fund. The board may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code.
(e) The Public Employees Insurance Agency shall furnish reports to the board at each of the board's regularly scheduled meetings. The reports shall contain the most recent information reasonably available to the Public Employees Insurance Agency reflecting the obligations of the fund, earnings on investments, and such other information as the board deems necessary and appropriate.
(f) The Secretary of the Department of Administration, as chairman of the board, shall cause to be employed within the Public Employees Insurance Agency such personnel as may be needed to carry out the provisions of this article. The pro rata share of the costs to the Public Employees Insurance Agency of operating the fund shall be part of the administrative costs of the fund and shall be reimbursed to the Public Employees Insurance Agency.
(g) The Public Employees Insurance Agency, on the board's behalf, shall be responsible for the day-to-day operation of the fund and may employ or contract for the services of actuaries and other professionals as required to carry out the duties established by this article.
(h) The board shall contract with the West Virginia Investment Management Board for any necessary services with respect to fund investments.
(i) The Public Employees Insurance Agency, on the board's behalf, shall maintain all necessary records regarding the fund in accordance with generally accepted accounting principles.
(j) The Public Employees Insurance Agency, on the board's behalf, shall collect all moneys due to the fund and shall pay current post-employment healthcare costs and any administrative expenses necessary and appropriate for the operation of the fund from the fund. The fund's assets shall be maintained and accounted for in state funds. The state funds shall be: (1) The Other Post-Employment Benefit Contribution Accumulation Fund; (2) the Other Post-Employment Benefit Investment Fund; and (3) the Other Post-Employment Benefit Expense Fund. These funds will be maintained by the Public Employees Insurance Agency on the board's behalf.
(k) The Public Employees Insurance Agency, on the board's behalf, shall prepare an annual report of fund activities. Such report shall include, but not be limited to, independently audited financial statements in accordance with generally accepted accounting principles. The financial statements must be independently audited in accordance with auditing standards generally accepted in the United States and the standards applicable to financial audits contained in government auditing standards as issued by the Comptroller General of the United States.
(l) Notwithstanding any other provision of law to the contrary, the Public Employees Insurance Agency shall be entitled to request and receive any information that it deems necessary and appropriate from any relevant retirement system in order that the provisions of this article may be carried out.
(b) Using the actuarial assumptions most recently adopted by the board, the actuary shall, on a biannual basis, or as frequently as the board determines necessary, set actuarial valuations of normal cost, actuarial liability, actuarial value of assets, and related actuarial present values for the state plan for other post-employment benefits.
(b) Notwithstanding any provision of this code or any legislative rule to the contrary, all assets of the fund shall be held in trust. The Public Employees Insurance Agency, on behalf of the board, shall have full power to invest and reinvest the fund's assets via the West Virginia Investment Management Board, subject to all of the terms, conditions, limitations, and restrictions imposed by article six, chapter twelve of this code. Subject to the terms, conditions, limitations and restrictions, and consistent with this article, the Public Employees Insurance Agency shall have full power to hold, purchase, sell, assign, transfer, and dispose of any securities and investments in which any of the moneys are invested, including the proceeds of any investments and other moneys belonging to the fund.
(c) Except as otherwise provided in this chapter, no member of the board or employee of the Public Employees Insurance Agency shall have any personal interest in the gains or profits from any investment made by the board or use the assets of the fund in any manner, except to make such payments as may be authorized by the board or by the Secretary of the Department of Administration as the chairman of the board in accordance with this article.
(b) The board shall annually allocate to the respective employers the employer's portion of the annual required contribution, which allocated amount is the "employer annual required contribution".
(c) The board may apportion the annual required contribution into various components. These components may include the amortized unfunded actuarial accrued liability, the total normal cost, the employer annual required contribution and the lesser included minimum annual employer payment. In the board's annual apportionment of the annual required contribution, any amounts of the minimum annual employer payment apportioned to reduce the amortized unfunded actuarial accrued liability shall not be treated as premium by the board in the finance plan but, rather, shall be treated as contributions to prefund other post-employment benefits.
(d) Employers shall make annual contributions to the fund in, at least, the amount of the minimum annual employer payment rates established by the board.
(e) The Public Employees Insurance Agency shall bill each employer for the employer annual required contribution and the included minimum annual employer payment. The Public Employees Insurance Agency shall annually collect the minimum annual employer payment. The Public Employees Insurance Agency shall, in addition to the minimum annual employer payment, collect any amounts the employer elects to pay toward the employer annual required contribution. Any employer annual required contribution amount not satisfied by the respective employer shall remain the liability of that employer until fully paid.
(a) Pursuant to the authority contained in section one, article one, chapter four of this code, the presiding officers of each house of the Legislature may appoint a joint committee to be known at the Select Committee on Other Post-Employment Benefits to study other post-employment benefits, including the effects of the amendments to this code relating to other post-employment benefits made during the 2012 regular session of the Legislature.
(b) The Select Committee on Other Post-Employment Benefits in
consultation with the Director of the Public Employees Insurance
Agency and the Finance Board of the Public Employees Insurance
Agency is also authorized to study and propose to the Joint
Committee on Government and Finance an incentive for those retirees
who were hired on or after July 1, 2010. The committee shall
consider the funding available in the Post-July 1, 2010, Employee
Trust Fund created pursuant to section five-b, article sixteen of
this chapter.
Acts 1975, Ch. 134; Acts 1981, Ch. 173.
Acts, 1999 Reg. Sess., Ch. 224.
Acts, 1999 Reg. Sess., Ch. 224.
"Public agency" means the state of West Virginia, counties, municipalities, towns, boards of education, public service districts and other political subdivisions of this state.
"Public works" includes roads, highways, streets, bridges, sidewalks, sewage systems, buildings, engineering and architectural works, and any other structure, facility or improvement constructed or undertaken by a public agency.
"Aluminum, glass and steel products" means products rolled, formed, shaped, drawn, extruded, forged, cast, fabricated, or otherwise similarly processed from aluminum, glass and steel;"domestic aluminum, glass and steel products" means aluminum, glass and steel products made in the United States.
(b) The commissioner of finance and administration shall issue rules which provide that, for purposes of this article, the bid or offered price of any aluminum, glass or steel products of domestic origin, as defined in section one of this article (including any applicable duty), is not unreasonable if it does not exceed the sum of a differential of twenty percent of the bid or offered price of the aluminum, glass or steel products of foreign origin: Provided, That if such products are produced in a "substantial labor surplus area" as defined by the United States department of labor, the differential applied under this article shall be thirty percent.
(a) That on the twenty-seventh day of April, one thousand nine hundred seventy-eight, at Willow Island, in Pleasants County, West Virginia, a cooling tower then under construction collapsed, resulting in the loss of a great many lives;
(b) That every effort should be made to prevent the repetition of any similar tragic occurrence or incident in the future and, toward that end, it is proper and desirable that a complete, detailed and thorough investigation into the reasons for and causes of the collapse of such cooling tower be made; which investigation should be independent of and free from any litigation which has been or may be instituted with respect to such collapse;
(c) That toward this end, the governor, by executive order No. 15-78, dated the sixth day of October, one thousand nine hundred seventy-eight, created and established the governor's commission on Willow Island, comprised of nine members, consisting of and generally representative of the public and of various interests, bodies, groups and organizations as specified in subsection (b) of this section;
(d) That in furtherance of the intent and purposes of the aforesaid executive order it is the intent of the Legislature to continue the governor's commission on Willow Island and to expand upon its powers, duties and responsibilities in order to facilitate its investigative purposes and assure the orderly execution of its functions and duties;
(e) That it recognizes that the provisions of section 1, article V of the constitution of West Virginia prohibit any person from exercising the powers of more than one branch or department of government at the same time; however, it is the express purpose, intent and finding of the Legislature that those members of the commission who are members of the Legislature are acting as members of the Legislature while serving on the commission and in the furtherance of the Legislature's inherent right and power to investigate and inquire into and report on those matters which are legitimately within its powers, and that since the commission's role and duties are investigative and reportive in nature, the service upon the commission by its legislative members and the service of its chairman are not violative of nor inimical to the constitutional mandate with respect to the separation of governmental powers.
(a) To conduct a comprehensive and detailed investigation into the collapse of the cooling tower at Willow Island, to evaluate the facts and circumstances surrounding such collapse and, if possible, to determine the cause or causes of such collapse;
(b) To analyze and evaluate the findings and reports of the occupational health and safety administration with respect to the collapse of the cooling tower at Willow Island and to report to the governor and the Legislature with respect thereto;
(c) To administer oaths, to examine witnesses, to compel the attendance of witnesses to appear before the commission and to compel the production of such books, records, documents or other papers or tangible things as the commission may require to conduct its investigation, and to this end the commission is hereby given authority to issue subpoenas or subpoenas duces tecum. Any subpoena or subpoena duces tecum issued on behalf of the commission shall be over the signature of the chairman. If any person subpoenaed to appear before the commission or before any committee or subcommittee thereof refuses to appear or to answer inquiries propounded to such person, or fails or refuses to produce any book, record, document or other paper or tangible thing within his control when the same are demanded, the commission or its chairman shall report the fact of such failure or refusal to the circuit court of Kanawha County or any other court of competent jurisdiction and such court shall compel obedience to the subpoena or subpoena duces tecum as though the subpoena or subpoena duces tecum had been issued by such court in the first instance;
(d) To employ such legal, technical, investigative, clerical, stenographic, advisory and other personnel as it deems necessary and needful and to fix the reasonable compensation of such persons as may be so employed;
(e) To perform every other act necessary or desirable to carry out any of the other powers, duties or responsibilities enumerated in this section.
Other expenses of the commission, including any fees, salaries, wages and other expenses, shall be paid from the appropriations made to the governor's civil contingency fund, upon approval of the governor.
Members of the commission may receive no other compensation for their services on or with the commission.
(a) "ASHRAE" means the organization known as the American Society of Heating, Refrigerating and Air Conditioning Engineers.
(b) "Director" means the director of the governor's office of economic and community development.
Based on the state guidelines each local jurisdiction in the state having a building code shall require each permit application to be accompanied by sufficient information to determine that the energy conservation measures under the guidelines are met. A letter of certification from an architect or a registered professional engineer may provide adequate certification that the new construction or renovation is in compliance with the minimum criteria as established by the director.
The director shall provide training to local jurisdictions on the application of the state guidelines, which may include training programs developed by agencies of the federal government.
(a) Any type or class of building specifically made exempt by the local jurisdiction;
(b) Mobile homes;
(c) Any structure neither heated nor cooled, nor designed for human occupancy; and
(d) Any building specifically designated by a local jurisdiction as being of historical significance.
(a) This section and the requirements set forth in this section may be referred to as the West Virginia Fairness In Competitive Bidding Act.
(b) As used in this section:
(1) "Lowest qualified responsible bidder" means the bidder that bids the lowest price and that meets, as a minimum, all the following requirements in connection with the bidder?s response to the bid solicitation. The bidder must certify that it:
(A) Is ready, able and willing to timely furnish the labor and materials required to complete the contract;
(B) Is in compliance with all applicable laws of the State of West Virginia; and
(C) Has supplied a valid bid bond or other surety authorized or approved by the contracting public entity.
(2) "The state and its subdivisions" means the State of West Virginia, every political subdivision thereof, every administrative entity that includes such a subdivision, all municipalities and all county boards of education.
(c) The state and its subdivisions shall, except as provided in this section, solicit competitive bids for every construction project exceeding $25,000 in total cost: Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, inclusive, article three, chapter five-a of this code may not bid on or be awarded a contract under this section. All bids submitted pursuant to this chapter shall include a valid bid bond or other surety as approved by the State of West Virginia or its subdivisions.
(d) Following the solicitation of bids, the construction contract shall be awarded to the lowest qualified responsible bidder who shall furnish a sufficient performance and payment bond. The state and its subdivisions may reject all bids and solicit new bids on the project.
(e) The apparent low bidder on a contract for the construction, alteration, decoration, painting or improvement of a new or existing building or structure with the Department of Administration, Division of Purchasing, valued at more than $500,000.00 shall submit a list of all subcontractors who will perform more than $25,000.00 of work on the project including labor and materials: Provided, That this section shall not apply to any other construction projects, such as highway, mine reclamation, water or sewer projects. The list shall include the names of the bidders and the license numbers as required by article eleven, chapter twenty-one of this code. This information shall be provided to the Division of Purchasing within one business day of the opening of bids for review prior to the awarding of a construction contract. If no subcontractors are to be used to complete the project it will be so noted on the subcontractor list. Failure to submit the subcontractor list within one business day after the deadline for submitting bids shall result in disqualification of the bid.
(f) Written approval must be obtained from the Division of Purchasing before any subcontractor substitution is permitted. Substitutions are not permitted unless:
(1) The subcontractor listed in the original bid has filed for bankruptcy;
(2) The Division of Purchasing refuses to approve a subcontractor in the original bid because the subcontractor is under a debarment pursuant to section thirty-three-d, article three, chapter five-a of this code or a suspension under section thirty-two, article three, chapter five-a of this code; or
(3) The contractor certifies in writing that the subcontractor listed in the original bill fails, is unable or refuses to perform his subcontract.
(g) The amendments to this section made during the 2012 regular session of the Legislature shall expire one year from the effective date of the amendments absent further action of the Legislature.
(h) The contracting public entity may not award the contract to a bidder which fails to meet the minimum requirements set out in this section. As to any prospective low bidder which the contracting public entity determines not to have met any one or more of the requirements of this section or other requirements as determined by the public entity in the written bid solicitation, prior to the time a contract award is made, the contracting public entity shall document in writing and in reasonable detail the basis for the determination and shall place the writing in the bid file. After the award of a bid under this section, the bid file of the contracting public agency and all bids submitted in response to the bid solicitation shall be open and available for public inspection.
(i) Any public official or other person who individually or together with others knowingly makes an award of a contract under this section in violation of the procedures and requirements of this section is subject to the penalties set forth in section twenty-nine, article three, chapter five-a of the Code of West Virginia.
(j) No officer or employee of this state or of any public agency, public authority, public corporation or other public entity and no person acting or purporting to act on behalf of such officer or employee or public entity shall require that any performance bond, payment bond or surety bond required or permitted by this section be obtained from any particular surety company, agent, broker or producer.
(k) All bids shall be open in accordance with the provisions of section two of this article, except design-build projects which are governed by article twenty-two-a of this chapter and are exempt from these provisions.
(l) Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by regular full-time employees of the state or its subdivisions;
(2) Prevent students enrolled in vocational educational schools from being utilized in construction or repair projects when the use is a part of the student?s training program;
(3) Emergency repairs to building components and systems. For the purpose of this subdivision, the term emergency repairs means repairs that if not made immediately will seriously impair the use of building components and systems or cause danger to those persons using the building components and systems; and
(4) Any situation where the state or a subdivision thereof
reaches an agreement with volunteers, or a volunteer group, whereby
the governmental body will provide construction or repair
materials, architectural, engineering, technical or any other
professional services and the volunteers will provide the necessary
labor without charge to, or liability upon, the governmental body.
(a) The public entity accepting public contract bids shall, in its resolution providing for the contract or purchase and for the advertisement for bids, designate the time and place that the bids will be received and shall at that time and place publicly open the bids and read them aloud. No public entity may accept or take any bid, including receiving any hand delivered bid, after the time advertised to take bids. No bid may be opened on days which are recognized as holidays by the United States postal service. No public entity may accept or consider any bids that do not contain a valid bid bond or other surety approved by the state of West Virginia or its subdivisions.
(b) The provisions and requirements of this section, section one of article twenty-two of this chapter, the requirements stated in the advertisement for bids and the requirements on the bid form may not be waived by any public entity. The public entity may only reject an erroneous bid after the opening if all of the following conditions exist: (1) An error was made; (2) the error materially affected the bid; (3) rejection of the bid would not cause a hardship on the public entity involved, other than losing an opportunity to receive construction projects at a reduced cost; and (4) enforcement of the bid in error would be unconscionable. If a public entity rejects a bid, it shall maintain a file of documented evidence demonstrating that all the conditions set forth in this subdivision existed. If the public entity determines the bid to be erroneous, the public entity shall return the bid security to the contractor.
(c) A contractor who withdraws a bid under the provisions of this section may not resubmit a bid on the same project. If the bid withdrawn is the lowest bid, the next lowest bid may be accepted.
(a) This section and the requirements set forth in this section may be referred to as the West Virginia Fairness In Competitive Bidding Act.
(b) As used in this section:
(1) "Lowest qualified responsible bidder" means the bidder that bids the lowest price and that meets, as a minimum, all the following requirements in connection with the bidder?s response to the bid solicitation. The bidder must certify that it:
(A) Is ready, able and willing to timely furnish the labor and materials required to complete the contract;
(B) Is in compliance with all applicable laws of the State of West Virginia; and
(C) Has supplied a valid bid bond or other surety authorized or approved by the contracting public entity.
(2) "The state and its subdivisions" means the State of West Virginia, every political subdivision thereof, every administrative entity that includes such a subdivision, all municipalities and all county boards of education.
(c) The state and its subdivisions shall, except as provided in this section, solicit competitive bids for every construction project exceeding $25,000 in total cost: Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, inclusive, article three, chapter five-a of this code may not bid on or be awarded a contract under this section. All bids submitted pursuant to this chapter shall include a valid bid bond or other surety as approved by the State of West Virginia or its subdivisions.
(d) Following the solicitation of bids, the construction contract shall be awarded to the lowest qualified responsible bidder who shall furnish a sufficient performance and payment bond. The state and its subdivisions may reject all bids and solicit new bids on the project.
(e) The apparent low bidder on a contract for the construction, alteration, decoration, painting or improvement of a new or existing building or structure with the Department of Administration, Division of Purchasing, valued at more than $500,000.00 shall submit a list of all subcontractors who will perform more than $25,000.00 of work on the project including labor and materials: Provided, That this section shall not apply to any other construction projects, such as highway, mine reclamation, water or sewer projects. The list shall include the names of the bidders and the license numbers as required by article eleven, chapter twenty-one of this code. This information shall be provided to the Division of Purchasing within one business day of the opening of bids for review prior to the awarding of a construction contract. If no subcontractors are to be used to complete the project it will be so noted on the subcontractor list. Failure to submit the subcontractor list within one business day after the deadline for submitting bids shall result in disqualification of the bid.
(f) Written approval must be obtained from the Division of Purchasing before any subcontractor substitution is permitted. Substitutions are not permitted unless:
(1) The subcontractor listed in the original bid has filed for bankruptcy;
(2) The Division of Purchasing refuses to approve a subcontractor in the original bid because the subcontractor is under a debarment pursuant to section thirty-three-d, article three, chapter five-a of this code or a suspension under section thirty-two, article three, chapter five-a of this code; or
(3) The contractor certifies in writing that the subcontractor listed in the original bill fails, is unable or refuses to perform his subcontract.
(g) The amendments to this section made during the 2012 regular session of the Legislature shall expire one year from the effective date of the amendments absent further action of the Legislature.
(h) The contracting public entity may not award the contract to a bidder which fails to meet the minimum requirements set out in this section. As to any prospective low bidder which the contracting public entity determines not to have met any one or more of the requirements of this section or other requirements as determined by the public entity in the written bid solicitation, prior to the time a contract award is made, the contracting public entity shall document in writing and in reasonable detail the basis for the determination and shall place the writing in the bid file. After the award of a bid under this section, the bid file of the contracting public agency and all bids submitted in response to the bid solicitation shall be open and available for public inspection.
(i) Any public official or other person who individually or together with others knowingly makes an award of a contract under this section in violation of the procedures and requirements of this section is subject to the penalties set forth in section twenty-nine, article three, chapter five-a of the Code of West Virginia.
(j) No officer or employee of this state or of any public agency, public authority, public corporation or other public entity and no person acting or purporting to act on behalf of such officer or employee or public entity shall require that any performance bond, payment bond or surety bond required or permitted by this section be obtained from any particular surety company, agent, broker or producer.
(k) All bids shall be open in accordance with the provisions of section two of this article, except design-build projects which are governed by article twenty-two-a of this chapter and are exempt from these provisions.
(l) Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by regular full-time employees of the state or its subdivisions;
(2) Prevent students enrolled in vocational educational schools from being utilized in construction or repair projects when the use is a part of the student?s training program;
(3) Emergency repairs to building components and systems. For the purpose of this subdivision, the term emergency repairs means repairs that if not made immediately will seriously impair the use of building components and systems or cause danger to those persons using the building components and systems; and
(4) Any situation where the state or a subdivision thereof
reaches an agreement with volunteers, or a volunteer group, whereby
the governmental body will provide construction or repair
materials, architectural, engineering, technical or any other
professional services and the volunteers will provide the necessary
labor without charge to, or liability upon, the governmental body.
(a) The public entity accepting public contract bids shall, in its resolution providing for the contract or purchase and for the advertisement for bids, designate the time and place that the bids will be received and shall at that time and place publicly open the bids and read them aloud. No public entity may accept or take any bid, including receiving any hand delivered bid, after the time advertised to take bids. No bid may be opened on days which are recognized as holidays by the United States postal service. No public entity may accept or consider any bids that do not contain a valid bid bond or other surety approved by the state of West Virginia or its subdivisions.
(b) The provisions and requirements of this section, section one of article twenty-two of this chapter, the requirements stated in the advertisement for bids and the requirements on the bid form may not be waived by any public entity. The public entity may only reject an erroneous bid after the opening if all of the following conditions exist: (1) An error was made; (2) the error materially affected the bid; (3) rejection of the bid would not cause a hardship on the public entity involved, other than losing an opportunity to receive construction projects at a reduced cost; and (4) enforcement of the bid in error would be unconscionable. If a public entity rejects a bid, it shall maintain a file of documented evidence demonstrating that all the conditions set forth in this subdivision existed. If the public entity determines the bid to be erroneous, the public entity shall return the bid security to the contractor.
(c) A contractor who withdraws a bid under the provisions of this section may not resubmit a bid on the same project. If the bid withdrawn is the lowest bid, the next lowest bid may be accepted.
The provisions of this article must be used to select design-builders for authorized projects that are constructed and owned, potentially owned, or ultimately owned by any agency.
(1) "Agency" means all state departments, agencies, authorities, quasi-public corporations and all political subdivisions, including cities, counties, boards of education and public service districts and the individual representatives of the agency appointed to oversee or supervise the project.
(2) "Board" means the Design-Build Board established pursuant to section four of this article to determine whether a public project satisfies the requirements of this article.
(3) "Design-build" is defined as providing responsibility within a single contract for design, construction or alteration of a building or buildings, together with incidental approaches, structures and facilities to be constructed, in which services within the scope of the practice of professional engineering or architecture, as defined by the laws of the State of West Virginia, are performed by an engineer or architect duly licensed in the State of West Virginia and in which services within the scope of construction contracting, as defined by the laws of the State of West Virginia, are performed by a contractor qualified and licensed under the applicable statutes. The design-build method of construction may not be used for any other construction projects, such as highway, water or sewer projects.
(4) "Design-build contract" means the contract between an agency and a design-builder to furnish the architecture, engineering, and related services as required, for a given public project, and to furnish the labor, materials and other construction of services for the same public project. A design-build contract may be conditional upon subsequent refinements in scope and price, and may permit the agency to make changes in the scope of the project without invalidating the design-build contract.
(5) "Design-builder" means the entity, whether natural person, partnership, joint venture, corporation, professional corporation, business association or other legal entity, that proposes to design and construct any public project governed by the procedures of section seven, article six of this chapter and this article.
(6) "Firm" means any individual, firm, partnership, corporation, limited liability company, limited liability partnership, association, joint venture or other legal entity permitted by law to practice engineering, architecture or construction contracting in the State of West Virginia.
(7) "Invitation for proposals" means the document or publication by which an agency solicits proposals for a design-build project.
(8) "Invitation for qualifications" means the document or publication by which an agency solicits a statement of qualifications from potential design-builders in order to select three to five design-builders to respond to the agency's invitation for proposal.
(9) "Performance criteria" means the requirements for the public project, including as appropriate, aesthetics, capacity, durability, production standard, ingress and egress requirements or other criteria for the intended use of the public project, expressed in performance-oriented drawings and specifications suitable to allow the design-builder to make a proposal.
(10) "Performance criteria developer" means an architect or engineer licensed under the laws of this state and, if applicable, the architect's or engineer's employer, company, partners, joint venturers, affiliates or subcontractors retained by the agency to develop performance criteria and to serve as the agency's technical advisor.
(11) "Project" means that project described in the public announcement.
(12) "Proposal" means an offer to enter into a design-build contract, as further defined in this article.
(13) "Qualified design-builder" means one of the three to five design-builders selected by the agency to respond to the invitation for proposals.
(14) "Responsive proposal" means a proposal that scores a minimum of seventy points out of a possible one hundred points in the qualitative evaluation.
(15) "Statement of qualifications" means descriptive information or other data submitted by a design-builder indicating its ability to satisfy the requirements set forth in the invitation for qualifications.
(16) "Substantial completion" means the stage in the progress of the work when the work or designated portion thereof is sufficiently complete in accordance with the design-build contract so the agency can occupy or utilize the work for its intended use.
(17) "Technical review committee" means the group of individuals who have education and experience in the design, construction, operation, administration, and finance requirements of the project and users of the project selected by the agency to review, evaluate and score the statement of qualifications and invitation for proposal.
(18) "Work" means the design, construction and services required by the design-build contract, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the design-builder to fulfill the design-builder's obligations. The work may constitute the whole or a part of the project.
(b) An agency may not enter into a design-build contract for a public project unless:
(1) The Department of Administration promulgates and publishes legislative rules pursuant to section six of this article, and consistent with this article for the solicitation and award of design-build contracts and adheres to this article and those rules;
(2) The agency, for each public project or projects procured pursuant to this article, determines that it is in the best interest of the public to enter into a design-build contract to complete the public project or projects and adheres to this article and the rules; and
(3) The Board established pursuant to section four of this article determines that the public project is appropriate as a design-build project utilizing the mandatory criteria as provided in section five of this article.
(c) When the Design-Build Board, established pursuant to section four of this article, is terminated pursuant to the Acts of the Legislature, no agency may enter into a design-build contract: Provided, That agencies may pursue and complete any design-build projects approved by the Board prior to its termination date.
(b) Terms of office are for three years, which are staggered in accordance with the initial appointments under prior enactment of this section, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member holds office from the date of his or her appointment or until his or her successor qualifies for office. When a vacancy occurs as a result of death, resignation or removal in the membership of the Board, the Governor shall fill the vacancy by an appointment within thirty days of the vacancy for the unexpired portion of the term in the same manner as original appointments.
(c) The Board shall elect a chairperson and other necessary officers. The Board shall adopt rules for its procedures. Five members of the Board is a quorum. A majority of the total membership is necessary to act at all times. Meetings of the Board shall be held upon the call of the Secretary of the Department of Administration, the call of the chairperson or the call of any two members of the Board: Provided, That the Board shall meet at least four times each calendar year and all meetings of the Board must be held in accordance with the open governmental proceedings act as set out in article nine-a, chapter six of this code.
(b) Prior to an agency issuing an invitation for qualifications for public projects, the Board must determine that the public project is appropriate as a design-build project in accordance with all of the following:
(1) The agency has the appropriate legal authority to enter into a design-build contract;
(2) The agency requires a project design and construction time line that is faster than the traditional design-bid-build process would allow;
(3) The project requires close coordination of design and construction expertise or an extreme amount of coordination; (4) The agency requires early cost commitments;
(5) The agency provides a written plan for funding the project including, but not limited to, the funding necessary to pay for design services and construction costs; and
(6) The agency has completed and submitted a written application for approval to the Board and requested a meeting with the Board to present its request for approval from the Board.
(c) Upon project approval under subsection (b) of this section, the agency shall submit to the Board monthly reports detailing the progress of the approved project. The reports shall continue until the start of construction to ensure that the agency has complied with any requirements established by the Board in its approval of the project. If any requirement is not satisfied, the Board may withdraw its approval of the project at any time prior to the start of construction. If the Board withdraws its approval, the agency may not proceed with the project as a design-build project until the requirements set forth in the board's approval and the requirements of this article are met, as determined by the Board.
(d) On or before the first day of January of each year, the Board shall file an annual report with the Joint Committee on Government and Finance, and a copy of the report with the Legislative Librarian, setting forth a description of the projects approved during the preceding year, including copies of monthly monitoring reports submitted to the Board pursuant to subsection (c) of this section.
(1) The procedures to select or designate a performance criteria developer and prepare performance criteria;
(2) The application process for approval of a design-build project;
(3) The procedures for selecting the most qualified design-builders prior to the release of the invitation for proposals;
(4) The procedures for the preparation and contents of invitations for proposals;
(5) The procedures for preparing and submitting proposals;
(6) The procedures for evaluating proposals;
(7) The procedures for negotiations between the agency and those submitting proposals prior to the acceptance of a proposal, if any such negotiations are contemplated;
(8) The procedures for awarding and executing design-build contracts;
(9) The procedures for awarding design-build contracts in the event of public emergencies as defined in the applicable statutes; and
(10) The procedures for acting on formal protests relating to the solicitation or award of design-build contracts.
(b) Each design-builder may:
(1) Assign or sublet the responsibility for professional design services to an architect or engineer licensed in this state. The architect or engineer shall carry, at all times, professional design liability insurance in an appropriate amount as designated by the agency. The architect or engineer may be a full or part-time employee of the design-builder; and
(2) Assign or sublet responsibility for construction or other services requiring a contractor's license to persons or entities licensed or otherwise qualified to provide those services in this state.
(c) Each design-builder may contract to provide professional services or construction services to the agency that the design-builder is not licensed, registered or otherwise authorized to provide so long as those services are assigned or sublet to a firm that is registered, licensed and qualified to provide those services.
(b) The agency may use its own employees to determine whether the agency should seek to construct a project using the design-build method of construction. The agency may use an employee as its performance criteria developer on projects for which construction costs are estimated to be one million dollars or less.
(c) The performance criteria developer and his or her employer, company, partners, joint venturers, affiliates or consultants may not submit a proposal to enter into the design-build contract and may not perform services under the design-build contract.
(d) The performance criteria developer may delegate the development of specific aspects of the design criteria to an architect or engineer licensed by this state and his or her employer, company, partners, joint venturers, affiliates or other consultants.
(b) The performance criteria developer shall review the program furnished by the agency to ascertain the requirements of the project and shall arrive at a mutual understanding of such requirements with the agency.
(c) Based on the mutually agreed-upon program, schedule and construction budget requirements, the performance criteria developer shall prepare for approval by the agency documents indicating the scale and relationship of project components.
(1) A descriptive narrative of the type, scope and size of the proposed work;
(2) The evaluation criteria for selecting the three to five qualified design-builders; and
(3) A request for descriptive information or data supporting a design-builder's claim to be able to perform the work, including, but not limited to:
(A) Licensing, insurance and evidence of good standing with the State of West Virginia and the agency;
(B) Bonding ability;
(C) Experience and technical expertise;
(D) History of past performance;
(E) Qualifications, experience and licenses of key management and professional staff including contractors, architects and engineers;
(F) Staffing capabilities;
(G) Current workload;
(H) Quality control and quality assurance policies and programs; and
(I) Safety record, including employee modification rating for the past three years.
(b) The agency shall review the statements of qualifications and select not fewer than three nor more than five of the most qualified design-builders to participate in the invitation for proposals. If fewer than three design-builders are determined to be qualified, the agency shall seek approval of the Design-Build Board to continue with the selection process.
(c) The agency shall make the results of the selection available to the design-builders within ten working days of the selection.
(1) The identity of the agency which will award the design-build contract;
(2) The procedures to be followed for submitting proposals, the criteria for evaluation of proposals and their relative weight, and the procedures for making awards, including a reference to the requirements of this article, the legislative rules promulgated pursuant to section six of this article and any specific requirements of the agency;
(3) The proposed terms and conditions for the design-build contract;
(4) The performance criteria;
(5) The description of the drawings, specifications or other information to be submitted with the proposal, with guidance as to the form and level of completeness of the drawings, specifications or submittals that will be acceptable;
(6) A schedule for planned commencement and completion of the design-build contract;
(7) Budget limits for the design-build contract, if any;
(8) Requirements or restrictions for the subletting of specific portions of the design-build contract, if any; and
(9) Requirements for performance bonds, payment bonds, insurance, professional liability insurance and workers' compensation coverage: Provided, That no officer or employee of this state or of any public agency, public authority, public corporation, or other public entity, and no person acting or purporting to act on behalf of such officer or employee or public entity shall require that any performance bond, payment bond, or bid bond required or permitted by this section be obtained from any particular surety company, agent, broker, or producer.
(b) The agency shall provide, as applicable, additional information to the design-builder, including, but not limited to, surveys, soils reports, drawings or information regarding existing structures, environmental studies, photographs or references to public records, or other pertinent information.
(b) Proposals may not be opened until expiration of the time established for making proposals as set forth in the invitation for proposals.
(c) The design-builder shall furnish a bid bond not to exceed five percent of the maximum cost of the design-build contract. In the event the proposal is accepted and the design-builder fails to execute the design-build contract, the bid bond will be forfeited.
(d) To the extent required in the invitation for proposal, the design-builder shall identify each firm to whom the design-builder proposes to sublet obligations under the design-build contract. At a minimum, the design-builder shall identify each firm responsible for the design and primary construction and their affiliation to the design-builder.
(e) The design-builder shall specify in the proposal the cost of the design-build contract that will not be exceeded if the proposal is accepted without change. After award of the proposal, the maximum cost of the proposal may be converted to fixed prices by negotiated agreement between the agency and the design-builder.
(f) Prior to the award of the design-build contract, all drawings, specifications and other information submitted in the proposal shall remain the property of the design-builder submitting the proposal. Additionally, prior to the award of the design-build contract, the agency shall maintain the secrecy and confidentiality of all information contained in the proposal. Once a proposal is accepted, the disclosure of the proposal and the information in the proposal, and the ownership of the drawings, specifications and information therein, shall be determined in accordance with existing law and the terms of the design-build contract.
(g) Proposals may not be amended during the review process.
(h) At the discretion of the agency, a stipend may be paid to the design-builders not ultimately selected.
(b) In the event the agency receives fewer than three proposals, the Board shall, in consultation with the Secretary of the Department of Administration, determine whether the agency may proceed or shall start the invitations for qualifications process over.
(c) After receiving the proposals, the technical review committee shall evaluate and score the technical submissions based upon the criteria and procedures set forth in the invitation for proposals.
(d) The agency shall submit the technical submissions, including the scores of the technical submissions, to the Board. The agency shall make the scores of the technical submissions available for public review.
(e) The Board shall ascertain that the technical submissions comply with the requirements of this article and shall notify the agency of its approval. The agency shall open the cost submissions and accept the proposal that receives the best score, as set forth in the legislative rules promulgated pursuant to section six of this article.
(f) The agency shall notify the design-builder in writing that its proposal was accepted. At the same time notice of acceptance is delivered, the agency shall also inform, in writing, the design-builders whose proposals were not accepted. When a design-builder receives notification that its proposal was not accepted, the design-builder may, within three days after receipt of such notification, request in writing a copy of the scores and all other factors used or considered in the selection process.
The performance criteria developer shall assist the agency in determining whether the agency shall reject work which does not conform to the design-build contract.
The performance criteria developer shall assist the agency in conducting inspections, to determine the date or dates of substantial completion and of final completion, and shall review and approve, or take other appropriate action regarding the contractor's list of items to be completed or corrected, and shall forward the list to the agency for final disposition. The performance criteria developer shall issue to the agency a final certification in writing with respect to final acceptance of the project.
Acts, 2010 Reg. Sess., Ch. 32.
Acts, 1988 Reg. Sess., Ch. 115.
(a) That the future economic base of West Virginia is tied to the development of the forestry industry.
(b) That efforts to enhance and promote the expansion of the forestry industry should be coordinated among the several state and federal agencies, commissions, boards, committees, associations and other entities.
(c) That the development of the forestry and wood products industry will require: (1) The development of multiple-use, sustained-yield management plans for nonindustrial timber tracts; (2) the development of products and markets for the grade of materials that currently comprise a majority of the state's available resources; (3) a stable and predictable tax program for both new and existing firms; (4) a centralized protection program that will reduce risk from fire and pestilence; and (5) financial assistance for the attraction and expansion of new and existing secondary manufacturing facilities with special emphasis on assistance for smaller firms employing less than twenty persons.
(d) That the present and future welfare of the people of the state require, as a public purpose, a continuing effort toward the promotion and development of the forestry and wood products industry.
(e) In recognition of these findings and purposes, it is in the best interest of this state to create the West Virginia forest management review commission as a statutory body.
heretofore created is hereby continued for the purposes set forth in this article. This commission shall be comprised of five members from the West Virginia Senate, a co-chairman and four members to be appointed by the Senate president, and five members of the House of Delegates, a co-chairman and four members to be appointed by the speaker; four members to be representatives from the commercial forest industry in the state, and three members of the public-at-large. The seven nonlegislative members shall be appointed by the governor, with the advice and consent of the Senate. Two members shall be appointed to serve a term of two years; three members shall be appointed to serve a term of four years; and two members shall be appointed to serve a term of six years. The successor of each such appointed member shall be appointed for an overlapping term of six years, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which the predecessor was appointed shall be appointed only to the remainder of such term. Each board member shall serve until the appointment of his or her successor.
(a) Generally assist in the retention, expansion and attraction of forestry and forestry related industries by creating a climate for the development and support of the industry.
(b) Coordinate the current efforts to enhance and promote the expansion of the forestry industry among the several state and federal agencies, commissions, boards, committees, associations and other entities.
(c) Urge the development of multiple-use sustained-yield management plans for nonindustrial timber tracts.
(d) Develop products and markets for the grade of materials that currently comprise a majority of the state's resources.
(e) Recommend a stable and predictable tax program for both new and existing firms in the state.
(f) Develop a centralized and enhanced protection program that will reduce risks from fire and pestilence.
(g) Develop financial assistance for the attraction and expansion of new and existing secondary manufacturing facilities, with special emphasis on assistance for smaller firms employing less than twenty persons.
(h) Utilize recognized research expertise of appropriate existing educational, public and industrial institutions or agencies of the state. Research shall include economic development efforts in West Virginia, including silviculture, wood land management, forest management, the development of new products as well as other products designed to aid forestry development.
(i) Employ, if needed, and only with prior approval of the West Virginia Legislature's joint committee on government and finance, such staff as may be necessary. In the event an executive director may be necessary, such individual shall be a forestry graduate of a four-year college of forestry and shall, in addition, have administrative and research experience, preferably, but not mandatorily, with at least five years' experience in government.
The appalachian hardwood research center at West Virginia University is directed to establish priorities and coordinate its research functions with the governor and the Legislature. The center shall: (1) Develop and maintain a computerized inventory of all possible scientific information relating to appalachian hardwood tree species, silviculture, management, products and product development; (2) initiate research projects, including applied research, either originally or by request, designed to aid forestry economic development efforts in West Virginia, including the development of new products as well as other projects designed to increase the utility of low grade appalachian hardwoods; and (3) be generally responsible for encouraging the development of research needed by the forest industry of the state.
Acts, 1997 Reg. Sess., Ch. 58.
The administrator shall credit such money and valuables to the resident entitled thereto and shall keep an accurate record of all moneys and valuables received or disbursed. This account is subject to examination by the head of the department which controls the institution. The administrator shall deposit such fiduciary funds received into federally insured account approved by the director of the department except for those funds required to be kept locally. The local funds shall be deposited in one or more responsible banks. The accounts shall be designated "resident trustee account."
The administrator shall ensure that proper disbursements are made from the "resident trustee account" when required for the maintenance of the resident or when agreed to by the resident.
The administrator shall deliver to the resident, or to the resident's responsible representative payee when applicable, at the time the resident leaves the institution all valuables or moneys then credited to the resident or, in the case of the death of a resident before leaving the institution, the administrator shall deliver such property to the resident's representative.
The administrator of the institution shall submit a monthly report to the head of the department controlling the institution. This report shall provide a reconciliation of each resident trustee account or other fiduciary account maintained by the institution.
The director of any department who receives these monthly reports shall submit each month to the legislative auditor a record of the reconciliations for each institution.
(b) The commissioner of finance and administration shall deliver proper instructions for instituting the system of management accounting to the heads of all departments which control state institutions where funds are held in a fiduciary capacity for residents. The department heads shall institute the system of management accounting at each institution under their control.
Acts, 2007 Reg. Sess., Ch. 9.
(a) There is hereby created the Herbert Henderson Office of Minority Affairs within the office of the Governor. The office shall be charged with the following responsibilities and duties:
(1) Provide a forum for discussion of issues that affect the state's minorities;
(2) Identify and promote best practices in the provision of programs and services to minorities;
(3) Review information and research that can inform state policy as to the delivery of programs and services to minorities;
(4) Make recommendations in areas of policy and allocation of resources;
(5) Apply for grants, and accept gifts from private and public sources for research to improve and enhance minority affairs;
(6) Integrate and coordinate state grant and loan programs established specifically for minority related issues;
(7) Award grants, loans and loan guaranties for minority affairs programs and activities in this state if such funds are available from grants or gifts from public or private sources;
(8) Identify other state and local agencies and programs that provide services or assistance to minorities;
(9) Establish the appropriate program linkages with related federal, state and local agencies and programs including, but not limited to, the Office of Minority Health located within the Department of Health and Human Resources and the Economic Development Authority established pursuant to article fifteen, chapter 31 of this Code; and
(10) Provide recommendations to the Governor and the Legislature regarding the most appropriate means to provide programs and services to support minority groups in the state.
(b) On or before the first day of January of each year, the office shall submit a report to the Governor and the Joint Committee on Government and Finance. The report may include, but is not limited to, findings and recommendations regarding:
(1) The extent to which programs and services for minorities are available in the state, and to which funding for providing those programs and services is available;
(2) The most appropriate means for the planning, delivery and evaluation of existing and needed programs and services for minority groups in the manner that best promotes diversity and regional, cultural and ethnic sensitivity;
(3) Recommendations for the coordination of programs and services to minority groups throughout the state and with those of other states and the federal government;
(4) Identifications of governmental and private agencies, offices, departments or other entities in existence or recommended for creation that would, alone or in concert, most effectively improve the delivery of programs and services to minority groups throughout the state;
(5) Recommendations for changes to law that would facilitate the achievement of the objectives of the office; and
(6) Such other matters as the office may determine appropriate to its purposes.
(c) The Governor shall appoint an executive director of the office to carry out its functions, and shall provide funding and offices for those purposes. The executive director shall serve at the will and pleasure of the Governor.
(d) The executive director may hire one administrative
assistant to assist in carrying out the functions of the office.
There is hereby created in the State Treasury a Special
Revenue Fund to be known as the "Minority Affairs Fund," which
shall consist of all gifts, grants, bequests, transfers,
appropriations or other donations or payments received by the
Herbert Henderson Office of Minority Affairs from any governmental
entity or unit or any person, firm, foundation or corporation for
the purposes of this article and all interest or other return
earned from investment of the fund. Expenditures from the fund
shall be made by the Executive Director of the Herbert Henderson
Office of Minority Affairs to provide matching funds to obtain
federal funds for the delivery of programs and services to
minorities in this state, to award grants, loans and loan
guaranties for minority affairs programs and activities and for
performance of the duties of the office prescribed in this article.
Expenditures from the fund shall be for the purposes set forth in
this article and are not authorized from collections but are to be
made only in accordance with appropriation by the Legislature and
in accordance with the provisions of article two, chapter twelve of
this code and upon the fulfillment of the provisions of article
two, chapter eleven-b of this code.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2004 Reg. Sess., Ch. 126.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2004 Reg. Sess., Ch. 126.
Acts, 2007 Reg. Sess., Ch. 9.
(a) There is hereby created the Herbert Henderson Office of Minority Affairs within the office of the Governor. The office shall be charged with the following responsibilities and duties:
(1) Provide a forum for discussion of issues that affect the state's minorities;
(2) Identify and promote best practices in the provision of programs and services to minorities;
(3) Review information and research that can inform state policy as to the delivery of programs and services to minorities;
(4) Make recommendations in areas of policy and allocation of resources;
(5) Apply for grants, and accept gifts from private and public sources for research to improve and enhance minority affairs;
(6) Integrate and coordinate state grant and loan programs established specifically for minority related issues;
(7) Award grants, loans and loan guaranties for minority affairs programs and activities in this state if such funds are available from grants or gifts from public or private sources;
(8) Identify other state and local agencies and programs that provide services or assistance to minorities;
(9) Establish the appropriate program linkages with related federal, state and local agencies and programs including, but not limited to, the Office of Minority Health located within the Department of Health and Human Resources and the Economic Development Authority established pursuant to article fifteen, chapter 31 of this Code; and
(10) Provide recommendations to the Governor and the Legislature regarding the most appropriate means to provide programs and services to support minority groups in the state.
(b) On or before the first day of January of each year, the office shall submit a report to the Governor and the Joint Committee on Government and Finance. The report may include, but is not limited to, findings and recommendations regarding:
(1) The extent to which programs and services for minorities are available in the state, and to which funding for providing those programs and services is available;
(2) The most appropriate means for the planning, delivery and evaluation of existing and needed programs and services for minority groups in the manner that best promotes diversity and regional, cultural and ethnic sensitivity;
(3) Recommendations for the coordination of programs and services to minority groups throughout the state and with those of other states and the federal government;
(4) Identifications of governmental and private agencies, offices, departments or other entities in existence or recommended for creation that would, alone or in concert, most effectively improve the delivery of programs and services to minority groups throughout the state;
(5) Recommendations for changes to law that would facilitate the achievement of the objectives of the office; and
(6) Such other matters as the office may determine appropriate to its purposes.
(c) The Governor shall appoint an executive director of the office to carry out its functions, and shall provide funding and offices for those purposes. The executive director shall serve at the will and pleasure of the Governor.
(d) The executive director may hire one administrative
assistant to assist in carrying out the functions of the office.
There is hereby created in the State Treasury a Special
Revenue Fund to be known as the "Minority Affairs Fund," which
shall consist of all gifts, grants, bequests, transfers,
appropriations or other donations or payments received by the
Herbert Henderson Office of Minority Affairs from any governmental
entity or unit or any person, firm, foundation or corporation for
the purposes of this article and all interest or other return
earned from investment of the fund. Expenditures from the fund
shall be made by the Executive Director of the Herbert Henderson
Office of Minority Affairs to provide matching funds to obtain
federal funds for the delivery of programs and services to
minorities in this state, to award grants, loans and loan
guaranties for minority affairs programs and activities and for
performance of the duties of the office prescribed in this article.
Expenditures from the fund shall be for the purposes set forth in
this article and are not authorized from collections but are to be
made only in accordance with appropriation by the Legislature and
in accordance with the provisions of article two, chapter twelve of
this code and upon the fulfillment of the provisions of article
two, chapter eleven-b of this code.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2004 Reg. Sess., Ch. 126.
Acts, 2007 Reg. Sess., Ch. 9.
Acts, 2004 Reg. Sess., Ch. 126.
(a) The National and Community Service Trust Act of 1993, P. L. 103-82, was enacted to foster civic responsibility and to enable the citizens of the various states to participate in, for the benefit of their communities, various volunteer and other service programs including, but not limited to, community corps programs, youth corps programs, school and campus-based programs, professional corps programs, americorps programs, national senior service corps programs and VISTA programs.
(b) The National and Community Service Trust Act of 1993, P. L. 103-82, created the corporation for national and community service for the purpose of assisting the various states in the creation and operation of a statewide commission that would have as its purpose the encouragement, coordination and assistance of the efforts of individuals or other entities from both the public and private sectors to create or participate in local community service programs.
(c) The corporation for national and community service assists a state's commission by and through a grant to the commission that is equal to a percentage of the commission's administrative costs.
(d) The deadline for the creation of a state commission was the first day of January, one thousand nine hundred ninety-four, if the state commission was to receive an administrative grant in the corporation for national and community service's fiscal year beginning in the calendar year one thousand nine hundred ninety-four.
(e) The West Virginia commission for national and community service was created by an executive order of the governor of the state of West Virginia made on the twenty-eighth day of January, one thousand nine hundred ninety-four, but the executive order contemplated the enactment of legislation continuing the state commission in the next session of the Legislature.
(f) The West Virginia commission for national and community service has striven to develop a coordinated, unified plan in response to the National and Community Service Trust Act of 1993, P. L. 103-82, and to meet the social, environmental, educational and public safety needs of the state of West Virginia by instilling in its citizens a greater sense of pride in, and responsibility for, their communities.
(g) The Legislature intends to continue the West Virginia commission for national and community service for the purpose of complying with the provisions of the National and Community Service Trust Act of 1993, P. L. 103-82, and for the purpose of meeting the social, environmental, educational and public safety needs of the state of West Virginia by and through promotion and coordination of community outreach initiatives.
and community service; support and assistance to
commission.
(a) The West Virginia commission for national and community
service is hereby continued as a state commission within the
meaning of, and in accordance with, the provisions of the National
and Community Service Act of 1990, as amended by the National and
Community Service Trust Act of 1993, and the provisions of any
rules or regulations promulgated under the act.
(b) By executive order, the governor shall provide for any administrative support to the West Virginia commission for national and community service as the governor may deem to be necessary.
(c) All agencies of the state shall provide such assistance and information to the West Virginia commission for national and community service as is necessary to ensure a fully coordinated effort throughout the state relating to the promotion of national and community volunteer service.
(b) The voting membership of the West Virginia commission for national and community service shall include:
(1) At least one individual with expertise in the educational and developmental needs of the state's disadvantaged youth;
(2) At least one individual with experience in promoting the involvement of older adults in national or community service and volunteer programs;
(3) A representative of a community-based agency operating within the state;
(4) The secretary of the department of education and arts created pursuant to section two, article one, chapter five-f of this code or a designee;
(5) The state superintendent of schools or a designee;
(6) A representative of a county or municipal government;
(7) A representative of a local labor organization;
(8) A representative of a for-profit business operating within the state; and
(9) An individual whose age is between the age of sixteen years and twenty-five years, inclusive, who has been, or remains, a participant or a supervisor in a volunteer or service program.
(c) The membership of the West Virginia commission for national and community service shall include a representative of the corporation for national and community service who shall serve as a member in a nonvoting, ex officio capacity.
(d) No more than twenty-five percent of the voting membership of the West Virginia commission for national and community service may be individuals who are employed by the state or its agencies, except that the membership may include additional employees of the state or its agencies in a nonvoting, ex officio capacity.
(e) No member of the West Virginia commission for national and community service may vote on an issue affecting organizations for which the member has served as a staff person or as a volunteer at any time during the twelve-month period before the member's appointment to the commission.
(f) No more than fifty percent plus one of the members of the West Virginia commission for national and community service may be members of the same political party.
(g) To the extent possible, the membership of the West Virginia commission for national and community service shall reflect the diversity of the state's population.
(h) Members of the West Virginia commission for national and community service who were appointed under the executive order of the governor entered on the twenty-eighth day of January, one thousand nine hundred ninety-four, shall continue as members of the commission for a term of three years, except that the governor shall designate eight members who shall serve for a term of two years and shall also designate an additional eight members who shall serve for a term of one year. Additional appointments by the governor under the provisions of this section and appointments by the governor upon the expiration of a member's term shall be made for a term of three years. Appointments of members by the governor to serve for an unexpired term shall be for the remainder of the unexpired term. Members may be reappointed.
(i) The voting members of the West Virginia commission for national and community service shall annually elect a voting member to serve as the chair of the commission.
(j) The members of the West Virginia commission for national and community service shall meet at the call of the chair, who shall be obligated to call a meeting at the request of a simple majority of the members or as necessary to ensure that the members have met at least twice in each calendar year of the commission's operation.
(k) The members of the West Virginia commission for national and community service shall serve without compensation, except that the members of the commission who are not state employees shall be reimbursed for their actual and necessary expenses incurred in discharging their duties and responsibilities as members of the commission.
(a) Advising and assisting the governor in the development and implementation of a comprehensive statewide plan for promoting volunteer involvement and citizen participation in programs which are designed to serve the needs of the citizens of the state and its communities;
(b) Fulfilling federal program administration requirements, including the provision of health care and child care for program participants;
(c) Submitting annual state applications for the federal funding of the americorps programs that are selected by the commission;
(d) Integrating americorps programs, existing VISTA and national senior service corps programs, and K-12 learn and serve programs into the state's strategic service plan;
(e) Conducting local outreach to develop a comprehensive and inclusive state service plan;
(f) Coordinating with existing programs for service and volunteerism in order to prevent unnecessary competition for private sources of funding;
(g) Providing technical assistance to service and volunteer programs, including the development of training methods and curriculum materials;
(h) Developing a statewide recruitment and placement system for individuals who are interested in community service opportunities;
(i) Preparing quarterly reports on progress for submission to the governor and preparing an annual report for submission to the governor and the Legislature on or before the first day of January of each year which shall detail the commission's activities for the preceding year; and
(j) Serving as the state's liaison to national and state entities or other organizations which also promote national and community service and volunteerism.
(b) The West Virginia commission for national and community service shall accept on behalf of the governor any reports that relate to community service and volunteerism issues and that are required to be submitted to the governor by the provisions of the code of West Virginia.
Acts, 2010 Reg. Sess., Ch. 32.
(1) That the holocaust perpetrated by the Nazis during the period between one thousand nine hundred thirty-three and one thousand nine hundred forty-five resulted in the genocide of six million Jews and millions of non-Jews as part of a carefully orchestrated central government program;
(2) That the holocaust stands as a grim reminder and warning to all generations of genocidal crimes and atrocities committed by man based on ignorance and fear and that all people should rededicate themselves to the principles of human rights and equal protection under the laws of a democratic society;
(3) That education can ensure that citizens are knowledgeable about the events leading up to the holocaust and about the organizations and facilities that were created and used purposefully for the systematic destruction of human beings and that the lessons of holistic trust and respect for peoples of various cultures are important for the citizens of West Virginia as they enter the global marketplace and economy;
(4) That programs, workshops, institutes, seminars, exhibits and other teacher training and public awareness activities for the study of the holocaust have taken place during recent years, but a central resource for schools, churches and communities studying the holocaust is needed;
(5) That, toward that end, the governor, by executive order No. 2-98, dated the sixteenth day of April, one thousand nine hundred ninety-eight, created and established the West Virginia holocaust commission on education; and
(6) That, in furtherance of the intent and purposes of the aforesaid executive order, it is the intent of the Legislature to create a permanent state commission which, as an organized body and on a continuous basis, will survey, design, encourage and promote implementation of holocaust education and awareness programs in West Virginia and will be responsible for organizing and promoting the memorialization of the holocaust on a regular basis throughout the state.
(b) The commission is composed of eleven members: Two members currently serving on the state board of education, selected by the board; the state superintendent of schools or his or her designee; the director of the division of veterans' affairs; one attorney from the attorney general's office, civil rights division; one teacher who has completed professional development related to holocaust education teaching at the high-school level and one teacher who has completed professional development related to holocaust education teaching at the junior-high or middle-school level, each appointed by the governor with the advice and consent of the Senate; and four state residents, appointed by the governor, with the advice and consent of the Senate, who shall be: Individuals who are holocaust scholars or individuals experienced in the field of holocaust education or survivors, second generation, eye-witness/liberators or individuals recommended by the chair of the present holocaust education commission, created by executive order, who, by virtue of their interest, education or long-term involvement in human rights, prejudice reduction and holocaust education have demonstrated, through their past commitment and cooperation with the existing holocaust commission on education, their willingness to work for holocaust awareness and education in West Virginia.
(c) Members of the commission shall be appointed for terms of three years or until their prospective successors are appointed and qualified. Members are eligible for reappointment. Any member of the commission who fails to attend more than two consecutive meetings without an excuse approved by the commission may be removed from the commission. All vacancies shall be filled by appointment in the same manner as the original appointment and the individual appointed to fill the vacancy serves for the remainder of the unexpired term.
(d) The governor shall appoint a chairperson for the commission for a term of three years and until his or her successor is appointed and qualified.
(e) The speaker of the House of Delegates shall appoint a member of the House of Delegates and the president of the Senate shall appoint a member of the Senate to serve as advisors to the commission.
(f) Members of the commission are not entitled to compensation for services performed as members but may be reimbursed for actual and necessary expenses incurred for each day engaged in the performance of their official commission duties in a manner consistent with the guidelines of the travel management office of the department of administration.
(1) Provide, based upon the collective knowledge and experience of its members, assistance and advice to public and private schools, colleges and universities with respect to the implementation of holocaust education and awareness programs;
(2) Meet with appropriate education officials and other interested public and private organizations, including service organizations, for the purpose of providing information, planning, coordination or modification of courses of study or programs dealing with the subject of the holocaust;
(3) Compile a roster of individual volunteers who are willing to share their verifiable knowledge and experiences in classrooms, seminars and workshops on the subject of the holocaust. The volunteers may be survivors of the holocaust, liberators of concentration camps, scholars, members of the clergy, community relations professionals or other persons who, by virtue of their experience, education or interest, have experience with the holocaust;
(4) Coordinate events memorializing the holocaust and seek volunteers who are willing and able to participate in commemorative events that will enhance public awareness of the significance of the holocaust; and
(5) Prepare annual reports for the governor and the Legislature regarding its findings and recommendations to facilitate the inclusion of holocaust studies and special programs memorializing t
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