COMMITTEE SUBSTITUTE
FOR
H. B. 4034
(By Delegates Stalnaker, Browning, Williams, Hall and Duke)
(Originating in the House Committee on Pensions and Retirement)
[January 27, 2006]
A BILL to repeal §5-10-43 of the Code of West Virginia, 1931, as
amended; and to amend and reenact §5-10-26, §5-10-44 and
§5-10-54 of said code, all relating to the Public Employees
Retirement System; removing the requirement that a no longer
disabled employee must return to his or her former job;
permitting administrative hearings before disability
retirement termination; requiring a reemployment list;
clarifying procedures for reapplication by disability
retirants whose benefits were terminated for economic
causes; correcting errors; terminating benefits for
knowingly making false statements or permitting false
records to be filed with the Consolidated Public Retirement
Board in an attempt to defraud the system; and requiring
notification to the appropriate county prosecutor.
Be it enacted by the Legislature of West Virginia:
That §5-10-43 of the Code of West Virginia, 1931, as
amended, be repealed; and that §5-10-26, §5-10-44 and §5-10-54 of
said code be amended and reenacted, all to read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-26. Reexamination of disability retirants; reemployment;
adjustment of annuity for earnings.
(a) At least once each year during the first five years
following the retirement of a member on account of disability, as
provided in section twenty-five of this article, and at least
once in each three-year period thereafter, the board may require
a disability retirant, who has not attained age sixty years, to
undergo a medical examination to be made by or under the
direction of a physician designated by the board, or to submit a
statement signed by the disability retirant's physician
certifying continued disability, or both, and a copy of the
disability retirants's retirant's annual statement of earnings.
If the retirant refuses to submit to the medical examination or
provide the certification or statement in any period, his or her
disability annuity may be discontinued by the board until the
retirant complies. If the refusal continues for one year, all
the retirant's rights in and to the annuity may be revoked by the
board. If, upon medical examination of a disability retirant,
the physician reports to the board that the retirant is
physically able and capable of resuming employment with a participating public employer, the retirant shall be returned to
the employ of the participating public employer from whose
employment he or she retired and his or her disability annuity
shall terminate: Provided, That the board concurs in the
physician's report and first offers to the disability retirant
the opportunity for an administrative appeal hearing:
Provided,
however, That the disability retirant is entitled to be placed on
a reemployment list when his or her disability annuity
terminates, which is maintained by the participating public
employer from whose employment he or she retired, and is entitled
to be allowed a first preference on that list: Provided further,
That the participating public employer shall maintain such a
retirant on the reemployment list indefinitely, or until the
retirant has declined three offers of employment at a salary
substantially similar to that of his or her position at the time
of initially qualifying for disability retirement.
(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 for exceeding the substantial
gainful activity amount may do so within ninety days of the
effective date of termination: by requesting Provided, That any
person reapplying for disability benefits must also undergo an
examination at the applicant's expense by an appropriate medical
professional chosen by the board.
§5-10-44. Correction of errors.
If any change or employer error in the records of any
participating public employer or the retirement system results in
any person receiving from the system more or less than he or she
would have been entitled to receive had the records been correct,
the board shall correct the error, and as far as is practicable
shall adjust the payment of the benefit in a manner that the
actuarial equivalent of the benefit to which the person was
correctly entitled shall be paid. Any employer error resulting
in an underpayment to the retirement system may be corrected by
the employee 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 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.
§5-10-54. Termination of early retirement benefits; termination
of retirement benefits; procedures.
(a) Whenever the board determines that: (1) Any person has
knowingly made any false statement or falsified or permitted to
be falsified any record or records of the retirement system in an
attempt to defraud the system; or (2) any person who resumes
employment with a governmental entity or accepts, directly or
indirectly, work on a contract basis from a governmental entity,
except as provided for under this article, the board shall
terminate any benefit that person has received, is receiving and
is entitled to receive under the early retirement provisions of
this article. Further, if any person taking early retirement
under this article desires to revoke his or her early retirement
incentive, he or she shall be allowed to do so if he or she is entitled to regular retirement pursuant to this article:
Provided, however, That such revocation shall be retroactive to
the date of last employment and any incentive annuity, under any
incentive option, already received by the retiree be repaid to
the retirement system. Any person who revokes his or her early
retirement incentive shall be thereafter carried upon the records
of the retirement system as a regular retiree and shall not be
entitled to any enhanced benefit by reason of the early
retirement options contained in this article: Provided, however,
That any person who chose to retire under the early retirement
provisions of this article who would not have been and is not
eligible for regular retirement but for the early retirement
incentive options must reapply for admission to a retirement
system and repay all pension benefits plus regular interest which
would have been earned by the fund in the period during which the
annuity payments were paid to him or her since the date his or
her employment ceased.
(b) Whenever the board determines that any person has
knowingly made any false statement or falsified or permitted to
be falsified any record or records of the retirement system in an
attempt to defraud the system, the board shall terminate any
retirement or disability benefits the person is receiving, in
addition to notifying the appropriate county prosecutor of the
conduct.
(c) 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. The board
shall propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code regarding the procedure for termination of benefits and the
repayment of any benefit.