SB 196 Text

Senate Bill No. 196
(By Senators Hunter, Jenkins and Unger)
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[Introduced February 15, 2005; referred to the Committee
on Pensions; and then to the Committee on Finance.]
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A BILL to amend and reenact §5-10D-1 of the C ode of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11, §5-10E-12, §5-10E-13, §5-10E-14, §5-10E-15, §5-10E-16, §5-10E-17, §5-10E-18, §5-10E-19, §5-10E-20, §5-10E-21, §5-10E-22, §5-10E-23, §5-10E-24, §5-10E-25, §5-10E-26, §5-10E-27, §5-10E-28, §5-10E-29, §5-10E-30, §5-10E-31, §5-10E-32, §5-10E-33, §5-10E-34 and §5-10E-35, all relating to the Consolidated Public Retirement Board; providing that the Board administer the Emergency Medical Services Retirement System; setting forth that each Board member has a fiduciary obligation to each retirement system and to each member of those retirement systems; clarifying that a Board member is not personally liable for any debt or obligation of the Board unless certain circumstances exist; directing Board members to discharge their duties in accordance with the law governing the retirement systems; and establishing the Emergency Medical Services Retirement System Act.

Be it enacted by the Legislature of West Virginia:
That §5-10D-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11, §5-10E-12, §5-10E-13, §5-10E-14, §5-10E-15, §5-10E-16, §5-10E-17, §5-10E-18, §5-10E-19, §5-10E-20, §5-10E-21, §5-10E-22, §5-10E-23, §5-10E-24, §5-10E-25, §5-10E-26, §5-10E-27, §5-10E-28, §5-10E-29, §5-10E-30, §5-10E-31, §5-10E-32, §5-10E-33, §5-10E-34 and §5-10E-35, all to read as follows:
ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated public retirement board continued; members; vacancies; investment of plan funds.

(a) The Consolidated Public Retirement Board is continued to administer all public retirement plans in this State. It shall administer the public employees retirement system established in article ten of this chapter; the teachers retirement system established in article seven-a, chapter eighteen of this code; the teachers' defined contribution retirement system created by article seven-b of said chapter; the West Virginia State Police death, disability and retirement fund created by article two, chapter fifteen of this code; the West Virginia State Police retirement system created by article two-a of said chapter; the death, disability and retirement fund for deputy sheriffs created by article fourteen-d, chapter seven of this code; and the judges' retirement system created under article nine, chapter fifty-one of this code; and the Emergency Medical Services Retirement System established in article ten-e, chapter five of this code. The board is created as a public body corporate and is established to provide prudent fiscal administration and management of the foregoing retirement systems.
(b) Each Board member owes a fiduciary obligation to each retirement system administered by the board and to every member of those retirement systems, whether the member be retired or active. Members and employees of the board are not liable personally, either jointly or severally, for any debt or obligation created by the board: Provided, That Board member are personally liable for ultra vires acts, acts of malfeasance, gross negligence or for any acts in violation of the laws creating the various retirement systems.
~~(b)~~ (c) The membership of the Consolidated Public Retirement Board consists of:
(1) The Governor or his or her designee;
(2) The State Treasurer or his or her designee;
(3) The State Auditor or his or her designee;
(4) The Commissioner of the Employee and Insurance Services Division of the Department of Administration;
(5) Four residents of the State, who are not members, retirants or beneficiaries of any of the public retirement systems, to be appointed by the Governor, with the advice and consent of the Senate; and
(6) A member, annuitant or retirant of the public employees retirement system who is or was a state employee; a member, annuitant or retirant of the public employees retirement system who is not or was not a state employee; a member, annuitant or retirant of the teachers retirement system; a member, annuitant or retirant of the West Virginia State Police death, disability and retirement fund; a member, annuitant or retirant of the deputy sheriff's death, disability and retirement fund; and a member, annuitant or retirant of the teachers' defined contribution retirement system, all to be appointed by the Governor, with the advice and consent of the Senate.
~~(c)~~ (d) The appointed members of the Board shall serve five-year terms. A member appointed pursuant to subdivision (6), subsection (b) of this section ceases to be a member of the Board if he or she ceases to be a member of the represented system. If a vacancy occurs in the appointed membership, the governor, within sixty days, shall fill the vacancy by appointment for the unexpired term. No more than five appointees shall be of the same political party.
~~(d)~~ (e) The Consolidated Public Retirement Board has all the powers, duties, responsibilities and liabilities of the public employees retirement system established pursuant to article ten of this chapter; the teachers retirement system established pursuant to article seven-a, chapter eighteen of this code; the teachers' defined contribution system established pursuant to article seven-b of said chapter; the West Virginia State Police death, disability and retirement fund created pursuant to article two, chapter fifteen of this code; the death, disability and retirement fund for deputy sheriffs created pursuant to article fourteen-d, chapter seven of this code; and the judges' retirement system created pursuant to article nine, chapter fifty-one of this code and their appropriate governing boards. The Consolidated Public Retirement Board may propose for promulgation all rules necessary to effectuate its powers, duties and responsibilities pursuant to article three, chapter twenty-nine-a of this code: Provided, That the board may adopt any or all of the rules, previously promulgated, of a retirement system which it administers.
~~(e)~~ (f) The Consolidated Public Retirement Board shall continue to transfer all funds received for the benefit of the retirement systems within the consolidated pension plan as defined in section three-c, article six-b, chapter forty-four of this code, including, but not limited to, all employer and employee contributions, to the West Virginia Investment Management Board: Provided, That the employer and employee contributions of the teachers' defined contribution system, established in section three, article seven-b, chapter eighteen of this code, and voluntary deferred compensation funds invested by the West Virginia Consolidated Public Retirement Board pursuant to section five, article ten-b of this chapter may not be transferred to the West Virginia Investment Management Board.
~~(f)~~ (g) Notwithstanding any provision of this code or any legislative rule to the contrary, all assets of the public retirement plans set forth in subsection (a) of this section shall be held in trust. The Consolidated Public Retirement Board shall be a trustee for all public retirement plans, except with regard to the investment of funds: Provided, That the Consolidated Public Retirement Board shall be a trustee with regard to the investments of the teachers' defined contribution system, the voluntary deferred compensation funds invested pursuant to section five, article ten-b of this chapter and any other assets of the public retirement plans administered by the Consolidated Public Retirement Board as set forth in subsection (a) of this section for which no trustee has been expressly designated in this code.
~~(g)~~ (h) The Board may employ the West Virginia Investment Management Board to provide investment management consulting services for the investment of funds in the teachers' defined contribution system.
(i) Board members shall discharge their duties in accordance with the laws, documents and instruments governing the retirement systems under their management, and shall discharge their duties with respect to the 401(a) plans for the exclusive purpose of providing benefits to participants and their beneficiaries.
(j) The changes made to this section in the two thousand five regular session of the Legislature are remedial in nature and merely constitute codification of existing case law and practices. Accordingly, these changes may be applied by a court in any lawsuit or action brought after the thirty-first day of December, two thousand four, regardless when the act complained of occurred.
ARTICLE 10E. EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.
§5-10E-1. Title.
This article is known and may be cited as the "West Virginia Emergency Medical Services Retirement System Act."
§5-10E-2. Definitions.
As used in this article, unless a federal law or regulation or the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member sixty percent of the member's final average salary after achieving twenty years of credited service. Additionally, two percent per year for twenty-one through twenty-five years and one percent for twenty-six through thirty years will be credited with a maximum of seventy-five percent. Member's accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of section nine-a of this article.
(b) "Accumulated contributions" means the sum of all amounts deducted from the compensation of a member, or paid on his or her behalf as a result of covered employment together with regular interest on the deducted amounts.
(c) "Active military duty" means full-time active duty with any branch of the armed forces of the United States, including service with the National Guard or reserve military forces when the member has been called to active full-time duty and has received no compensation during the period of that duty from any board or employer other than the armed forces.
(d) "Actuarial equivalent" means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the retirement board in accordance with the provisions of this article.
(e) "Annual compensation" means the wages paid to the member during covered employment within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard to any rules that limit the remuneration included in wages based upon the nature or location of employment or services performed during the plan year plus amounts excluded under Section 414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash or noncash fringe benefits or both, deferred compensation and welfare benefits. Annual compensation for determining benefits during any determination period may not exceed one hundred thousand dollars as adjusted for cost of living in accordance with Section 401(a)(17)(B) of the Internal Revenue Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the first period for which an amount is received as an annuity by reason of retirement. For purposes of this subsection, if retirement income payments commence after the normal retirement age, "retirement" means the later of the last day the member worked in covered employment and the normal retirement age.
(h) "Board" means the Consolidated Public Retirement Board.
(i) "County commission or political subdivision" has the meaning ascribed to it in this code.
(j) "Covered employment" means either: (1) Employment as an emergency medical technician, emergency medical technician/ paramedic, or emergency medical services/RN and the active performance of the duties required of emergency medical services officers; or (2) the period of time which active duties are not performed but disability benefits are received under this article; or (3) concurrent employment by an emergency services officer in a job or jobs in addition to his or her employment as an emergency services officer where such secondary employment requires the emergency medical services officer to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to this code: Provided, That the emergency medical services officer contribute to the fund created in this article the amount specified as an emergency medical services officer by this article.
(k) "Credited service," means the sum of a member's years of service, active military duty, disability service and annual leave service.
(l) "Emergency medical services officer" means an individual employed by the State, county, or other political subdivision as a medical professional that is qualified to respond to medical emergencies, aids the sick and injured, and arranges or transports to medical facilities, as defined by the West Virginia Office of Emergency Medical Services. This definition is construed to include ambulance providers and other services such as law enforcement, rescue, or fire department personnel who primarily perform these functions and are not provided any other credited service benefits or retirement plans. These persons may hold the rank of emergency medical technician/basic, emergency medical technician/paramedic, emergency medical services/registered nurse, or others as defined by the West Virginia Office of Emergency Medical Services and the Consolidated Public Retirement Board.
(m) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living with the member while the member was an adopting parent during any period of probation; or
(D) A stepchild of the member residing in the member's household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited college or university;
(B) Who was claimed as a dependent by the member for federal income tax purposes at the time of member's death; and
(C) Whose relationship with the member is described in subparagraph (A), (B) or (C), paragraph (1) of this subdivision.
(n) "Dependent parent" means the father or mother of the member who was claimed as a dependent by the member for federal income tax purposes at the time of the member's death.
(o) "Disability service" means service received by a member, expressed in whole years, fractions thereof or both, equal to one half of the whole years, fractions thereof, or both, during which time a member receives disability benefits under this article.
(p) "Early retirement age," means age forty or older and completion of twenty years of service.
(q) "Effective date" means the first day of July, two thousand five.
(r) "Final average salary" means the average of the highest annual compensation received for covered employment by the member during any five consecutive plan years within the member's last ten years of service. If the member did not have annual compensation for the five full plan years preceding the member's attainment of normal retirement age and during that period the member received disability benefits under this article then "final average salary" means the average of the monthly salary determined paid to the member during that period as determined under section seventeen of this article multiplied by twelve.
(s) "Fund" means the West Virginia Emergency Medical Services Retirement Fund created by this article.
(t) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to payment for covered employment during which time active duties are performed. These hours shall be credited to the member for the plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to payment for covered employment during a plan year but where no duties are performed due to vacation, holiday, illness, incapacity including disability, layoff, jury duty, military duty, leave of absence, or any combination thereof, and without regard to whether the employment relationship has terminated. Hours under this paragraph shall be calculated and credited pursuant to West Virginia division of labor rules. A member will not be credited with any hours of service for any period of time he or she is receiving benefits under section fourteen or fifteen of this article; and
(3) Each hour for which back pay is either awarded or agreed to be paid by the employing county commission, irrespective of mitigation of damages. The same hours of service shall not be credited both under paragraph (1) or (2) of this subdivision and under this paragraph. Hours under this paragraph shall be credited to the member for the plan year or years to which the award or agreement pertains, rather than the plan year in which the award, agreement or payment is made.
(u) "Member" means a person first hired as an emergency medical services officer after the effective date of this article, as defined in subsection (r) of this section, or an emergency medical services officer first hired prior to the effective date and who elects to become a member pursuant to this article. A member shall remain a member until the benefits to which he or she is entitled under this article are paid or forfeited.
(v) "Monthly salary" means the portion of a member's annual compensation, which is paid to him or her per month.
(w) "Normal form" means a monthly annuity which is one twelfth of the amount of the member's accrued benefit which is payable for the member's life. If the member dies before the sum of the payments he or she receives equals his or her accumulated contributions on the annuity starting date, the named beneficiary shall receive in one lump sum the difference between the accumulated contributions at the annuity starting date and the total of the retirement income payments made to the member.
(x) "Normal retirement age" means the first to occur of the following:
(1) Attainment of age fifty years and the completion of twenty or more years of service;
(2) While still in covered employment, attainment of at least age fifty years and when the sum of current age plus years of service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least age sixty years and completion of ten years of service; or
(4) Attainment of age sixty-two years and completion of five or more years of service.
(y) "Partially disabled" means a member's inability to engage in the duties of an emergency medical services officer by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. A member may be determined partially disabled for the purposes of this article and maintain the ability to engage in other gainful employment which exists within the state but which ability would not enable him or her to earn an amount at least equal to two thirds of the average annual compensation earned by all active members of this plan during the plan year ending as of the most recent thirtieth day of June, as of which plan data has been assembled and used for the actuarial valuation of the plan.
(z) "Public employees retirement system" means the West Virginia public employee's retirement system created by West Virginia code.
(aa) "Plan," means the West Virginia emergency medical services death, disability and retirement plan established by this article.
(bb) "Plan year" means the twelve-month period commencing on the first day of July of any designated year and ending the following thirtieth day of June.
(cc) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the board adopts in accordance with the provisions of this article.
(dd) "Retirement income payments" means the annual retirement income payments payable under the plan.
(ee) "Spouse" means the person to whom the member is legally married on the annuity starting date.
(ff) "Surviving spouse" means the person to whom the member was legally married at the time of the member's death and who survived the member.
(gg) "Totally disabled" means a member's inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months.
For purposes of this subdivision:
(1) A member is totally disabled only if his or her physical or mental impairment or impairments is so severe that he or she is not only unable to perform his or her previous work as an emergency medical services officer but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work.
(2) "Physical or mental impairment" is an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques.
A member's receipt of social security disability benefits creates a rebuttable presumption that the member is totally disabled for purposes of this plan. Substantial gainful employment rebuts the presumption of total disability.
(hh) "Year of service" A member shall, except in his or her first and last years of covered employment, be credited with year of service credit based upon the hours of service performed as covered employment and credited to the member during the plan year based upon the following schedule:
Hours of Service Year of Service Credited

Less than 500 ........................ 0

500 to 999 ........................... 1/3

1,000 to 1,499 ....................... 2/3

1,500 or more ........................ 1

During a member's first and last years of covered employment, the member shall be credited with one twelfth of a year of service for each month during the plan year in which the member is credited with an hour of service. A member is not entitled to credit for years of service for any time period during which he or she received disability payments under section fourteen or fifteen of this article. Except as specifically excluded, years of service include covered employment prior to the effective date.
Years of service which are credited to a member prior to his or her receipt of accumulated contributions upon termination of employment pursuant to section thirteen of this article or section thirty, article ten, chapter five of this code, shall be disregarded for all purposes under this plan unless the member repays the accumulated contributions with interest pursuant to section twelve of this article or had prior to the effective date made the repayment pursuant to section eighteen, article ten, chapter five of this code.
(ii) "Required beginning date" means the first day of April of the calendar year following the later of: (1) The calendar year in which the member attains age seventy and one-half; or (2) the calendar year in which he or she retires or otherwise separates from covered employment.
§5-10E-3. Meaning of terms.
Any term used in this article has the same meaning as when used in a comparable context in the laws of the United States, unless a different meaning is clearly required. Any reference in this article to the Internal Revenue Code means the Internal Revenue Code of 1986, as amended.
§5-10E-4. Creation and administration of West Virginia Emergency Medical Services Retirement System; specification of actuarial assumptions.

There is hereby created the West Virginia Emergency Medical Services Retirement System. The purpose of this system is to provide for the orderly retirement of emergency medical services personnel who become superannuated because of age or permanent disability and to provide certain survivor death benefits. The retirement system constitutes a body corporate. All business of the system shall be transacted in the name of the West Virginia Emergency Medical Services Retirement System. The board shall specify and adopt all actuarial assumptions for the plan at its first meeting of every calendar year or as soon thereafter as may be practicable, which assumptions shall become part of the plan.
§5-10E-5. Article to be liberally construed; supplements federal social security; federal qualification requirements.

(a) The provisions of this article shall be liberally construed so as to provide a general retirement system for emergency medical services personnel eligible to retire under the provisions of this plan. Nothing in this article may be construed to permit a county to substitute this plan for federal social security now in force in West Virginia.
(b) The board shall administer the plan in accordance with its terms and may construe the terms and determine all questions arising in connection with the administration, interpretation and application of the plan. The board may sue and be sued, contract and be contracted with and conduct all the business of the system in the name of the plan. The board may employ those persons it considers necessary or desirable to administer the plan. The board shall administer the plan for the exclusive benefit of the members and their beneficiaries subject to the specific provisions of the plan.
(c) The plan 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 plan to fulfill this intent for the exclusive benefit of the members and their beneficiaries. Any provision of this article referencing or relating to these federal 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 the board pursuant to section one, article ten-d of chapter five to assure compliance with the requirements of this section.
§5-10E-6. Members.
(a) Any emergency medical services officer first employed by a county or political subdivision in covered employment after the effective date of this article shall be a member of this retirement system and plan and does not qualify for membership in any other retirement system administered by the board, so long as he or she remains employed in covered employment.
(b) Any emergency medical services officer employed in covered employment on the effective date of this article shall within six months of that effective date notify in writing both the county commission in the county or officials in their political subdivision in which he or she is employed and the board of his or her desire to become a member of the plan: Provided, That this time period is extended to the thirtieth day of January, two thousand six. Any emergency medical services officer who elects to become a member of the plan ceases to be a member or have any credit for covered employment in any other retirement system administered by the board and shall continue to be ineligible for membership in any other retirement system administered by the board so long as the emergency medical services officer remains employed in covered employment in this plan: Provided, however, That any emergency medical services officer who does not affirmatively elect to become a member of the plan continues to be eligible for any other retirement system as is from time to time offered to other county employees but is ineligible for this plan regardless of any subsequent termination of employment and rehire.
(c) Any emergency medical services officer who was employed as an emergency medical services officer prior to the effective date, but was not employed on the effective date of this article, shall become a member upon rehire as an emergency medical services officer. For purposes of this section, the member's years of service and credited service prior to the effective date shall not be counted for any purposes under this plan unless: (1) The emergency medical services officer has not received the return of his or her accumulated contributions in the public employees retirement fund system pursuant to section thirty, article ten, chapter five of this code; or (2) the accumulated contributions returned to the member from the public employees retirement system have been repaid pursuant to this article. If the conditions of subdivision (1) or (2) of this subsection are met, all years of the emergency medical services officer's covered employment shall be counted as years of service for the purposes of this article. Each transferring emergency medical services officer shall be given credited service for the purposes of this article for all covered employment transferred from the public employees retirement system regardless of whether such credited service (as that term is defined in section two, article ten, chapter five of this code) was earned as an emergency medical services officer. All service in the public employees retirement system accrued by a transferring emergency medical services officer shall be transferred into the plan created by this article and the transferring emergency medical services officer shall be given the same credit for the purposes of this article for all such covered service which is transferred from the public employees retirement system as that transferring emergency medical services officer would have received from the public employees retirement system if such transfer had not occurred. In connection with each emergency medical services officer receiving credit for prior employment provided in this subsection, a transfer from public employees retirement system to this plan shall be made pursuant to the procedures described in this article.
(d) Once made, the election made under this section is irrevocable. All emergency medical services officers employed after the effective date and emergency medical services officers electing to become members as described in this section shall be members as a condition of employment and shall make the contributions required by this article.
(e) Notwithstanding any other provisions of this article, any individual who is a leased employee shall not be eligible to participate in the plan. For purposes of this plan, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final power to decide the question.
§5-10E-7. Creation of fund; investments.
(a) There is hereby created the "West Virginia emergency medical services retirement fund" for the benefit of the members of the retirement system created pursuant to this article and the dependents of any deceased or retired member of the system.
(b) All moneys paid into and accumulated in the fund, except such amounts as are designated by the board for payment of benefits as provided in this article, shall be held in trust and invested in the consolidated pension fund administered by the State Investment Management Board as provided by law.
§5-10E-8. Members' contributions; employer contributions.
There shall be deducted from the monthly salary of each member and paid into the fund an amount equal to eight and one-half percent of his or her monthly salary. Any active member who has concurrent employment in an additional job or jobs and such additional employment requires the emergency medical services officer to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to article ten-d, chapter five of this code shall contribute to the fund the sum of eight and one-half percent of his or her monthly salary earned as an emergency medical services officer as well as the sum of eight and one-half percent of his or her monthly salary earned from any additional employment which additional employment requires the emergency medical services officer to be a member of another retirement which is administered by the Consolidated Public Retirement Board pursuant to article ten-d, chapter five of this code. An additional ten and one-half percent of the monthly salary of each member shall be paid to the fund by the county commission of the county or officials of the political subdivision in which the member is employed in covered employment. If the board finds that the benefits provided by this article can be actually funded with a lesser contribution, then the board shall reduce the required member and employer contributions proportionally.
§5-10E-9. Transfer from public employees retirement system.
(a) The Consolidated Retirement Board shall, within ninety days of the effective date of the transfer of an emergency medical services officer from the public employees retirement system to the plan, transfer assets from the Public Employees Retirement System Trust Fund into the West Virginia Emergency Medical Services Trust Fund.
(b) The amount of assets to be transferred for each transferring emergency medical services officer shall be computed as of the first day of July, two thousand five, using the actuarial valuation assumptions in effect for the first day of July, two thousand four, actuarial valuation of public employees retirement system, and updated with seven and one-half percent annual interest to the date of the actual asset transfer. The market value of the assets of the transferring emergency medical services officer in the public employees retirement system shall be determined as of the end of the month preceding the actual transfer. To determine the computation of the asset share to be transferred the board shall:
(1) Compute the market value of the public employees retirement system assets;
(2) Compute the accrued liability for all public employees retirement system retirees, beneficiaries, disabled retirees and terminated inactive members;
(3) Reduce the market value of public employees retirement system assets by the accrued liability determined in subdivision (2) of this subsection;
(4) Compute the entry age method accrued liability for all active public employees retirement system members;
(5) Compute the share of accrued liability as determined pursuant to subdivision (4) of this subsection, that is attributable to those emergency medical services officers in public employees retirement system who have elected to transfer to the plan;
(6) Compute the percentage of active's accrued liability computed to the emergency medical services officer by dividing subdivision (5) by subdivision (4) of this subsection;
(7) Determine the asset share to be transferred from public employees retirement system to the plan by multiplying subdivision (3) times subdivision(6) of this subsection.
(c) Once an emergency medical services officer has elected to transfer from the public employees retirement system, transfer of that amount as calculated in accordance with the provisions of subsection (b) of this section by the public employees retirement system shall operate as a complete bar to any further liability to the transferring from the public employees retirement system, and constitutes an agreement whereby the transferring emergency medical services officer forever indemnifies and holds harmless the public employees retirement system from providing him or her any form of retirement benefit whatsoever until such time as that emergency medical services officer obtains other employment which would make him or her eligible to reenter the public employees retirement system with no credit whatsoever for the amounts transferred to the Emergency Medical Services Retirement System.
(d) The board shall cause a judicial determination to be made regarding the transfer of assets from the public employees retirement system to the Emergency Medical Services Retirement System by causing a suit to be filed in the supreme court of this state seeking a writ of mandamus on or before the thirty-first day of July, two thousand five.
(e) Any emergency medical services officer who elected, on or before the thirtieth day of January, two thousand six, to transfer to the plan created by this article, has until the first day of January, two thousand seven, to pay any amounts required by section seven of this article as a result of the emergency medical services officer's transfer to the emergency medical services retirement fund.
§5-10E-10. Notice requirements; test case.
(a) Each county shall prepare a written notice to be delivered to each emergency medical services officer employed prior to the first day of July, two thousand five. This notice shall clearly and accurately explain the benefits, financial implications and consequences to an emergency medical services officer of electing to participate in the retirement plan created in this article, including the consequences and financial implications in regard to the benefits under the public employees insurance plan as set forth in this code for those emergency medical services officers employed by a county or political subdivision which participates in that insurance plan. This notice shall be distributed to each emergency medical services officer and the county or political subdivision shall obtain a signed receipt from each emergency medical services officer acknowledging that the emergency medical services officer was provided a copy of the notice required in this subsection. If an emergency medical services officer makes the election provided in section eight of this article, he or she shall be considered to have made a voluntary, informed decision in regard to the election to participate in the retirement system created in this article.
(b) The Consolidated Retirement Board shall cause to be included in the judicial determination required in this article the issue regarding the possible loss of any rights in regard to benefits accorded the electing emergency medical services officer under the West Virginia public employees insurance act, article sixteen, chapter five of this code, and whether an emergency medical services officer, by electing to participate in the retirement plan created in this article, is being unlawfully discriminated against, or is being unlawfully deprived of a right or benefit to which he or she would otherwise be entitled.
(c) Nothing in this section may be construed to alter, affect or change any of the rights and benefits of any emergency medical services officer who has insurance coverage under article sixteen, chapter five of this code as a result of being a spouse or dependant of a participant who is the primary insured under article sixteen, chapter five of this code.
(d) Nothing contained in this section may be construed to affect or pertain to any life insurance coverage under article sixteen, chapter five of this code.
§5-10E-11. Retirement; commencement of benefits.
A member may retire and commence to receive retirement income payments on the first day of the calendar month coincident with or next following the later of the date the member ceases employment and the date the member attains early or normal retirement age, in an amount as provided under this article, by filing with the board his or her voluntary petition in writing for retirement: Provided, That retirement income payments under this plan shall be subject to the provisions of this article. Upon receipt of the petition, the Board shall promptly provide the member with an explanation of his or her optional forms of retirement benefits and upon receipt of properly executed forms from the member, the Board shall process member's request for and commence payments as soon as administratively feasible.
§5-10E-12. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state law, the Board shall administer the retirement system in compliance with the limitations of Section 415 of the Internal Revenue Code and regulations under that section to the extent applicable to governmental plans so that no annuity or other benefit provided under this system shall exceed those limitations. The extent to which any annuity or other benefit payable under this retirement system shall be reduced as compared with the extent to which an annuity, contributions or other benefits under any other defined benefit plans or defined contribution plans required to be taken into consideration under Section 415 of the Internal Revenue Code shall be reduced shall be determined by the Board in a manner that shall maximize the aggregate benefits payable to the member. If the reduction is under this retirement system, the Board shall advise affected members of any additional limitation on the annuities required by this section.
§5-10E-13. Federal law minimum required distributions.
The requirements of this section apply to any distribution of a member's or beneficiary's interest and take precedence over any inconsistent provisions of this plan. This section applies to plan years beginning after the thirty-first day of December, one thousand nine hundred eighty-six. Notwithstanding anything in the plan to the contrary, the payment of benefits under this article shall be determined and made in accordance with Section 401(a)(9) of the Internal Revenue Code and the regulations thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the plan to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under Section 401(a)(9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her beneficiary.
(b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the plan has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his or her death.
(c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the plan shall be distributed by the thirty-first day of December of the calendar year containing the fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary, distributions may be made over the life of that beneficiary or over a period certain not greater than the life expectancy of the beneficiary, commencing on or before the thirty-first day of December of the calendar year immediately following the calendar year in which the member died; or
(2) If the member's beneficiary is the surviving spouse, the date distributions are required to begin shall be no later than the later of:
(A) The thirty-first day of December of the calendar year in which the member would have attained age seventy and one-half; or
(B) The earlier of: (i) The thirty-first day of December of the calendar year following the calendar year in which the member died; or (ii) the thirty-first day of December of the calendar year following the calendar year in which the spouse died.
§5-10E-14. Direct rollovers.
(a) This section applies to distributions made on or after the first day of January, two thousand six. Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee's election under this plan, a distributee may elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution that is equal to at least five hundred dollars paid directly to an eligible retirement plan specified by the distributee in a direct rollover. For purposes of this section, the following definitions apply:
(1) "Eligible rollover distribution" means any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include any of the following: (i) Any distribution that is one of a series of substantially equal periodic payments not less frequently than annually made for the life or life expectancy of the distributee or the joint lives or the joint life expectancies of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; (ii) any distribution to the extent such distribution is required under Section 401(a)(9) of the Internal Revenue Code; (iii) the portion of any distribution that is not includable in gross income determined without regard to the exclusion for net unrealized appreciation with respect to employer securities; (iv) any hardship distribution described in Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other distribution or distributions reasonably expected to total less than two hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement account described in Section 408(a) of the Internal Revenue Code, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code or a qualified plan described in Section 401(a) of the Internal Revenue Code that accepts the distributee's eligible rollover distribution: Provided, That in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity.
(3) "Distributee" means an employee or former employee. In addition, the employee's or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans, are distributees with regard to the interest of the spouse or former spouse.
(4) "Direct rollover" means a payment by the plan to the eligible retirement plan.
(b) Nothing in this section shall be construed as permitting rollovers to this plan or any other retirement system administered by the Board.

§5-10E-15. Retirement credited service through member's use, as option, of accrued annual or sick leave days.

Any member accruing annual leave or sick leave days may, after the effective date of this section, elect to use the days at the time of retirement to acquire additional credited service in this retirement system: Provided, That the accrued annual or sick leave may not be used to purchase health insurance under the public employees insurance agency until the member reaches the age of fifty-five. The days shall be applied on the basis of two workdays' credit granted for each one day of accrued annual or sick leave days, with each month of retirement service credit to equal twenty workdays and with any remainder of ten workdays or more to constitute a full month of additional credit and any remainder of less than ten workdays to be dropped and not used, notwithstanding any provisions of the code to the contrary. The credited service shall be allowed and not considered to controvert the requirement of no more than twelve months' credited service in any year's period.
§5-10E-16. Retirement benefits.
This section provides for the adjustment of a member's accrued benefit to reflect the difference in age, in years and months, between the member's annuity starting date and the date the member attains normal retirement age. This age adjustment shall be made based upon the normal form of benefit and shall be the actuarial equivalent of the accrued benefit at the member's normal retirement age. The member shall receive the age adjusted retirement income in the normal form or in an actuarial equivalent amount in an optional form as provided under this chapter. The first day of the calendar month of birth shall be used in lieu of any birth date that does not fall on the first day of a calendar month.
(a) Normal retirement. -- A member whose annuity starting date is the date the member attains normal retirement age, is entitled to his or her accrued benefit without adjustment for age at commencement. To the extent that a member's starting date is later than his or her normal retirement age, the amount of that member's retirement income benefit shall be adjusted as provided in subsection (c) of this section.
(b) Early retirement. -- A member who ceases covered employment and has attained early retirement age while in covered employment may elect to receive retirement income payments commencing on the first day of the month coincident with or following the date the member ceases covered employment. "Normal retirement age" for such a member is the first day of the calendar month coincident with or next following the month in which the member attains the age of fifty years. If the member's annuity starting date is prior to the date the member attains normal retirement age, his or her accrued benefit is reduced to the actuarial equivalent benefit amount based on the years and months by which his or her annuity starting date precedes the date he or she attains normal retirement age. If the member's annuity starting date is later than the date the member attains the age of fifty years, the accrued benefit is adjusted as provided in subsection (c) of this section.
(c) Late retirement. -- A member whose annuity starting date is later than the date the member attains normal retirement age shall receive retirement income payments in the normal form which is the actuarial equivalent of the benefit to which he or she would have been entitled had the retirement income payments commenced at the member's normal retirement age.
(d) Retirement benefits shall be paid monthly in an amount equal to one twelfth of the retirement income payments elected and at those times established by the Board. Notwithstanding any other provision of the plan, a member who is married on the annuity starting date will receive his or her retirement income payments in the form of a sixty-six and two-thirds percent joint and survivor annuity with his or her spouse unless prior to the annuity starting date the spouse waives the form of benefit.
§5-10E-17. Annuity options.
Prior to the effective date of retirement, but not thereafter, a member may elect to receive retirement income payments in the normal form, or the actuarial equivalent of the normal form from the following options:
(a) Option A -- Joint and survivor annuity. -- A life annuity payable during the joint lifetime of the member and his or her beneficiary who is a natural person with an insurable interest in the member's life. Upon the death of either the member of his or her beneficiary, the benefit shall continue as a life annuity to the survivor in an amount equal to fifty percent, sixty-six and two-thirds percent, seventy-five percent or one hundred percent of the amount paid while both were living as selected by the member. If the retiring member is married, the spouse shall sign a waiver of benefit rights if the beneficiary is to be other than the spouse.
(b) Option B -- Contingent joint and survivor annuity. -- A life annuity payable during the joint lifetime of the member and his or her beneficiary who must be a natural person with an insurable interest in the member's life. Upon the death of the member, the benefit shall continue as a life annuity to the beneficiary in an amount equal to fifty percent, sixty-six and two-thirds percent, seventy-five percent or one hundred percent of the amount paid while both were living as selected by the member. If the beneficiary dies first, the monthly amount of benefits may not be reduced, but shall be paid at the amount that was in effect before the death of the beneficiary. If the retiring member is married, the spouse shall sign a waiver of benefit rights if the beneficiary is to be other than the spouse.
(c) Option C -- Ten years certain and life annuity. -- A life annuity payable during the member's lifetime but in any event for a minimum of ten years. If the member dies before the expiration of ten years, the remaining payments shall be made to a designated beneficiary, if any, or otherwise to the member's estate.
(d) Option D -- Level income annuity. -- A life annuity payable monthly in an increased amount "A" from the time of retirement until the member is social security retirement age, and then a lesser amount "B" payable for the member's lifetime thereafter, with these amounts computed actuarially to satisfy the following two conditions:
(1) Actuarial equivalence. -- The actuarial present value at the date of retirement of the member's annuity if taken in the normal form must equal the actuarial present value of the term life annuity in amount "A" plus the actual present value of the deferred life annuity in amount "B"; and
(2) Level income. -- The amount "A" equals the amount "B" plus the amount of the member's estimated monthly social security primary insurance amount that would commence at the date amount "B" becomes payable. For this calculation, the primary insurance amount is estimated when the member applies for retirement, using social security law then in effect, using assumptions established by the board.
In the case of a member who has elected the options set forth in subdivisions (a) and (b) of this section, respectively, and whose beneficiary dies prior to the member's death, the member may name an alternative beneficiary. If an alternative beneficiary is named within eighteen months following the death of the prior beneficiary, the benefit shall be adjusted to be the actuarial equivalent of the benefit the member is receiving just after the death of the member's named beneficiary. If the election is not made until eighteen months after the death of the prior beneficiary, the amount shall be reduced so that it is only ninety percent of the actuarial equivalent of the benefit the member is receiving just after the death of the member's named beneficiary.

§5-10E-18. Refunds to certain members upon discharge or resignation; deferred retirement; forfeitures.

(a) Any member who terminates covered employment and is not eligible to receive disability benefits under this article is, by written request filed with the board, entitled to receive from the fund the member's accumulated contributions. Except as provided in subsection (b) of this section, upon withdrawal the member shall forfeit his or her accrued benefit and cease to be a member.
(b) Any member who withdraws accumulated contributions from either this plan or the public employees retirement system and thereafter becomes reemployed in covered employment shall not receive any credited service for the prior employment unless following his or her return to covered employment, the member redeposits in the fund the amount of the accumulated contributions, together with interest on the accumulated contributions at the rate determined by the board from the date of withdrawal to the date of redeposit. Upon repayment he or she shall receive the same credit on account of his or her former service as if no refund had been made. The repayment shall be made in a lump sum within sixty months of the emergency medical services officer's reemployment or if later, within sixty months of the effective date of this article.
(c) Every member who completes sixty months of covered employment is eligible, upon cessation of covered employment, to either withdraw his or her accumulated contributions in accordance with this section, or to choose not to withdraw his or her accumulated contribution and to receive retirement income payments upon attaining early or normal retirement age.
(d) Notwithstanding any other provision of this article, forfeitures under the plan shall not be applied to increase the benefits any member would otherwise receive under the plan.
§5-10E-19. Awards and benefits for disability -- Duty related.
Any member who after the effective date of this article and during covered employment: (1) Has been or becomes either totally or partially disabled by injury, illness or disease; and (2) the disability is a result of an occupational risk or hazard inherent in or peculiar to the services required of members; or (3) the disability was incurred while performing emergency medical services functions during either scheduled work hours or at any other time; and (4) in the opinion of the board, the member is by reason of the disability unable to perform adequately the duties required of an emergency medical services officer, is entitled to receive and shall be paid from the fund in monthly installments during the lifetime of the member, or if sooner until the member attains normal retirement age or until the disability sooner terminates, the compensation under this section.
(a) If the member is totally disabled, the member shall receive ninety percent of his or her average monthly compensation for the twelve-month period preceding the member's disability, or the shorter period if the member has not worked twelve months.
(b) If the member is partially disabled, the member shall receive forty-five percent of his or her average monthly compensation for the twelve-month period preceding the member's disability, or the shorter period if the member has not worked twelve months.
If the member remains totally disabled until attaining sixty-five years of age, the member shall then receive the retirement benefit provided in this article.
If the member remains partially disabled until attaining sixty years of age the member shall then receive the retirement benefit provided in sections eleven and twelve of this article.
§5-10E-20. Same -- Due to other causes.
(a) Any member who after the effective date of this article and during covered employment: (1) Has been or becomes totally or partially disabled from any cause other than those set forth in section fourteen of this article and not due to vicious habits, intemperance or willful misconduct on his or her part; and (2) in the opinion of the board, he or she is by reason of the disability unable to perform adequately the duties required of an emergency medical services officer, is entitled to receive and shall be paid from the fund in monthly installments during the lifetime of the member, or if sooner until the member attains normal retirement age or until the disability sooner terminates the compensation set forth in, either subsection (b) or (c) of this section.
(b) If the member is totally disabled, he or she shall receive sixty-six and two-thirds percent of his or her average monthly compensation for the twelve-month period preceding the disability, or the shorter period, if the member has not worked twelve months.
(c) If the member is partially disabled, he or she shall receive thirty-three and one-third percent of his or her average monthly compensation for the twelve-month period preceding the disability, or the shorter period, if the member has not worked twelve months.
(d) If the member remains disabled until attaining sixty years of age, then the member shall receive the retirement benefit provided in sections eleven and twelve of this article.
(e) The board shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code concerning member disability payments so as to ensure that the payments do not exceed one hundred percent of the average current salary in any given county for the position last held by the member.

§5-10E-21. Same -- Physical examinations; termination of disability.

The Board may require any member who has applied for or is receiving disability benefits under this article to submit to a physical examination, mental examination or both, by a physician or physicians selected or approved by the Board and may cause all costs incident to the examination and approved by the Board to be paid from the Fund. The costs may include hospital, laboratory, X ray, medical and physicians' fees. A report of the findings of any physician shall be submitted in writing to the Board for its consideration. If, from the report, independent information, or from the report and any hearing on the report, the Board is of the opinion and finds that: (1) The member has become reemployed as an emergency medical services officer; (2) two physicians who have examined the member have found that considering the opportunities for emergency medical services in West Virginia, the member could be so employed as an emergency medical services officer; or (3) other facts exist to demonstrate that the member is no longer totally disabled or partially disabled as the case may be, then the disability benefits shall cease. If the member was totally disabled and is found to have recovered, the Board shall determine whether the member continues to be partially disabled. If the Board finds that the member is no longer totally disabled but is partially disabled, then the member shall continue to receive partial disability benefits in accordance with this article. Benefits shall cease once the member has been found to be no longer either totally or partially disabled: Provided, That the Board shall require recertification for each partial or total disability at regular intervals as specified by the guidelines adopted by the public employees retirement system.
§5-10E-22. Prior disability.
Any emergency medical services officer who became totally disabled as a result of illness or injury incurred in the line of duty prior to the effective date of this article may be a member of the plan at his or her election and is entitled to disability, death and retirement benefits under this article in lieu of any other disability, death or retirement benefits provided solely in conjunction with a retirement system of this State or his or her county of employment: Provided, That the emergency medical services officer would have been eligible for disability under section fourteen of this article had that section been in effect at the time of the disability. The amounts of the benefits shall be determined as if the disability first commenced after the effective date of this article with monthly compensation equal to that average monthly compensation which the member was receiving in the plan year prior to the initial disability. For the purposes of this section, benefits paid pursuant to chapter twenty-three of this code are not death or retirement benefits provided solely in conjunction with a retirement system of this State or county of this state.

§5-10E-23. Awards and benefits to surviving spouse -- When member dies in performance of duty, etc.

(a) The surviving spouse of any member who, after the effective date of this article while in covered employment, has died or dies by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members, while the member was or is engaged in the performance of his or her duties as an emergency medical services officer, or the survivor spouse of a member who dies from any cause while receiving benefits pursuant to section fourteen of this article, is entitled to receive and shall be paid from the Fund benefits as determined in subsection (b) of this section: To the surviving spouse annually, in equal monthly installments during his or her lifetime an amount equal to the greater of: (i) Two thirds of the annual compensation received in the preceding twelve-month period by the deceased member; or (ii) if the member dies after his or her early or normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or her death, elected a one hundred percent joint and survivor annuity with the spouse as the joint annuitant, and then died.
(b) Benefits for a surviving spouse received under this section, section twenty and section twenty-one of this article are in lieu of receipt of any other benefits under this article for the spouse or any other person or under the provisions of any other state retirement system based upon the member's covered employment.

§5-10E-24. Same -- When member dies from nonservice-connected causes.

(a) In any case where a member who has been a member for at least ten years, while in covered employment after the effective date of this article, has died or dies from any cause other than those specified in section eighteen of this article and not due to vicious habits, intemperance or willful misconduct on his or her part, the fund shall pay annually in equal monthly installments to the surviving spouse during his or her lifetime, a sum equal to the greater of: (1) One half of the annual compensation received in the preceding twelve-month employment period by the deceased member; or (2) if the member dies after his or her early or normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or her death, elected a one hundred percent joint and survivor annuity with the spouse as the joint annuitant, and then died. Where the member is receiving disability benefits under this article at the time of his or her death, the most recent monthly compensation determined under section seventeen of this article shall be substituted for the annual compensation in subdivision (1) of this subsection.
(b) Benefits for a surviving spouse received under this section, or other sections of this article are in lieu of receipt of any other benefits under this article for the spouse or any other person or under the provisions of any other state retirement system based upon the member's covered employment.

§5-10E-25. Additional death benefits and scholarships -- Dependent children.

(a) In addition to the spouse death benefits in this article, the surviving spouse is entitled to receive and there shall be paid to the spouse one hundred dollars monthly for each dependent child.
(b) If the surviving spouse dies or if there is no surviving spouse, the fund shall pay monthly to each dependent child a sum equal to one fourth of the surviving spouse's entitlement under this article. If there is neither a surviving spouse nor a dependent child, the fund shall pay in equal monthly installments to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is only one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
(c) Any person qualifying as a dependent child under this, in addition to any other benefits due under this or other sections of this article, is entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding six thousand dollars per year, shall be paid from the fund to any university or college in this State or to any trade or vocational school or other entity in this State approved by the Board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the Board on an approved form and under such rules as the Board may provide, and maintains scholastic eligibility as defined by the institution or the Board. The Board may propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code which define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section.
§5-10E-26. Burial benefit.
Any member who dies as a result of any service related illness or injury after the effective date is entitled to a lump sum burial benefit of five thousand dollars. If the member is married, the burial benefit shall be paid to the member's spouse. If the member is not married, the burial benefit shall be paid to the member's estate for the purposes of paying burial expenses, settling the member's final affairs, or both. Any unspent balance shall be distributed as a part of the member's estate. If the member is not entitled to a death benefit under this article, then if greater than five thousand dollars, the amount payable to the member's estate shall be his or her accumulated contributions.
§5-10E-27. Double death benefits prohibited.
A surviving spouse is not entitled to receive simultaneous death benefits under this article as a result of the death of two or more members to whom the spouse was married. Any spouse who becomes eligible for a subsequent death benefit under this article while receiving a death benefit under this article shall receive the higher benefit, but not both.
§5-10E-28. Loans to members.
(a) A member who is not yet receiving disability or retirement income benefits from the plan may borrow from the plan no more than one time in any year an amount up to one half of his or her accumulated contributions, but not less than five hundred dollars nor more than eight thousand dollars: Provided, That the maximum amount of any loan when added to the outstanding balance of all other loans shall not exceed the lesser of the following: (1) Fifty thousand dollars reduced by the excess (if any) of the highest outstanding balance of loans to the member during the one-year period ending on the day before the date on which the loan is made, over the outstanding balance of loans to the member on the day on which the loan is made; or (2) fifty percent of his or her accumulated contributions. No loan may be made from the plan if the board determines that the loans constitute more than fifteen percent of the amortized cost value of the assets of the plan as of the last day of the preceding plan year. The board may discontinue the loans any time it determines that cash flow problems might develop as a result of the loans. Each loan shall be repaid through monthly installments over periods of six through sixty months and carry interest on the unpaid balance and an annual effective interest rate that is two hundred basis points higher than the most recent rate of interest used by the board for determining actuarial contributions levels: Provided, however, That interest charged shall be commercially reasonable in accordance with the provisions of Section 72(p)(2) of the Internal Revenue Code and federal regulations issued thereunder. Monthly loan payments shall be calculated to be as nearly equal as possible with all but the final payment being an equal amount. An eligible member may make additional loan payments or pay off the entire loan balance at any time without incurring any interest penalty. At the member's option, the monthly loan payment may include a level premium sufficient to provide declining term insurance with the plan as beneficiary to repay the loan in full upon the member's death. If a member declines the insurance and dies before the loan is repaid, the unpaid balance of the loan shall be deducted from the lump sum insurance benefits payable under this article.
(b) A member with an unpaid loan balance who wishes to retire may have the loan repaid in full by accepting retirement income payments reduced by deducting from the actuarial reserve for the accrued benefit the amount of the unpaid balance and then converting the remaining of the reserve to a monthly pension payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due thereon, shall at the option of the retirement board become due and payable without further notice or demand upon the occurrence with respect to the borrowing member of any of the following events of default: (1) Any payment of principal and accrued interest on a loan remains unpaid after the same become due and payable under the terms of the loan or after such grace period as may be established in the discretion of the retirement board; (2) the borrowing member attempts to make an assignment for the benefit of creditors of his or her benefit under the retirement system; or (3) any other event of default set forth in rules promulgated by the board pursuant to the authority granted in section one, article ten-d, chapter five of this code: Provided, That any offset of the unpaid loan balance shall be made only at a time as the member is entitled to receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and shall be made upon the additional terms as to default, prepayment, security, and otherwise as the retirement board may determine.
(e) Notwithstanding anything herein to the contrary, the loan program authorized by this section shall comply with the provisions of Section 72(p)(2) and Section 401 of the Internal Revenue Code and the federal regulations issued thereunder. The retirement board is authorized to: (1) Apply and construe the provisions of this section and administer the plan loan program in such a manner as to comply with the provisions of Sections 72(p)(2) and Section 401 of the Internal Revenue Code; (2) adopt plan loan policies or procedures consistent with these federal law provisions; and (3) take such actions as it considers necessary or appropriate to administer the plan loan program created hereunder in accordance with these federal law provisions. The retirement board is further authorized in connection with the plan loan program to take any actions that may at any time be required by the Internal Revenue Service regarding compliance with the requirements of Section 72(p)(2) or Section 401 of the Internal Revenue Code, notwithstanding any provision in this article to the contrary.

§5-10E-29. Exemption from taxation, garnishment and other process; exception for certain qualified domestic relations orders.

The moneys in the Fund and the right of a member, spouse or other beneficiary to benefits under this article, to the return of contributions, or to any retirement, death or disability payments under the provisions of this article, are exempt from any state or municipal tax, are not subject to execution, garnishment, attachment or any other process whatsoever with the exception that the benefits or contributions under the system shall be subject to "qualified domestic relations orders" as that term is defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans, and are unassignable except as is provided in this article.
§5-10E-30. Fraud; penalties; and repayment.
Any person who knowingly makes any false statement or who falsifies or permits to be falsified any record of the retirement system in any attempt to defraud that system is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail not more than one year, or both fined and imprisoned. Any increased benefit received by any person as a result of the falsification or fraud shall be returned to the fund upon demand by the Board.

§5-10E-31. Credit toward retirement for member's prior military service; credit toward retirement when member has joined armed forces in time of armed conflict; qualified military service.

(a) Any member who has previously served on active military duty is entitled to receive additional years of service for the purpose of determining his or her years of credited service for a period equal to the active military duty not to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty; and
(3) That he or she is receiving no benefits from any other retirement system for his or her active military duty.
(b) In addition, any member who while in covered employment was commissioned, enlisted or inducted into the armed forces of the United States or, being a member of the reserve officers' corps, was called to active duty in the armed forces between the first day of September, one thousand nine hundred forty, and the close of hostilities in World War II, or between the twenty-seventh day of June, one thousand nine hundred fifty, and the close of the armed conflict in Korea on the twenty-seventh day of July, one thousand nine hundred fifty-three, between the first day of August, one thousand nine hundred sixty-four, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by Congress or by executive or other order of the President, is entitled to and shall receive credited service, for a period equal to the full time that he or she has or, pursuant to that commission, enlistment, induction or call, shall have served with the armed forces subject to the following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That within ninety days after honorable discharge from the armed forces, he or she presented himself or herself to the county commission or other political subdivision and offered to resume service as an emergency medical services officer; and
(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the armed forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called.
(c) The total amount of service allowable under subsections (a) and (b) of this section may not exceed five years.
(d) Any service credit allowed under this section may be credited one time only for each emergency medical services officer, regardless of any changes in job title or responsibilities.
(e) 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. The retirement board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the retirement board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
§5-10E-32. Pro rata reduction of annuities.
Any provision in this article to the contrary notwithstanding, if at the end of any fiscal year the total of the annuities paid from the retirement fund during the fiscal year is more than ten percent of the sum of the balances in the Fund at the end of the fiscal year, the annuities payable in the next ensuing fiscal year shall be reduced, pro rata, so that the sum of the annuities so reduced shall not exceed ten percent of the sum of the balances in the Fund. The pro rata reduction shall be applied to all annuities payable in the ensuing fiscal year.

§5-10E-33. Effective date; report to joint committee on government and finance; special starting date for benefits.

(a) The provisions of this article become effective the first day of July, two thousand five: Provided, That no payout of any benefits may be made to any person prior to the first day of January, two thousand six: Provided, however, That members who retired due to a disability may begin receiving the benefits at the rate and in the amount specified in this article, from this Fund after the thirtieth day of June, two thousand five: Provided further, That until the thirtieth day of June, two thousand five, those members who retired due to a disability may draw benefits from this Fund at the rate and in the amount set forth in section twenty-five, article ten, chapter five of this code.
(b) During the eighteen-month period before the payout of benefits begins, the Joint Committee on Government and Finance shall cause an interim study or studies to be conducted on potential effects of the implementation of this retirement system, including, but not limited to, potential funding mechanisms to provide health insurance coverage for retirees in the fifty to fifty-five age group: Provided, That after the effective date of this provision, the Director of the Public Employees Insurance Agency shall promulgate a rule governing the funding of health insurance coverage for retirees under the plan provided in this article who are in the fifty to fifty-five year age group, which rule may be filed as an emergency rule: Provided, however, That any rule filed as an emergency rule pursuant to this subsection shall be refiled at the earliest opportunity as a legislative rule for review and promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code.
§5-10E-34. Limitation of county liability.
No county which has timely met all of its obligations under this article is liable for any payments or contributions to the emergency medical services retirement plan which are owed to the plan by another county or counties. No county commission may deposit funds into the Emergency Medical Services Retirement Fund in excess of the amount specified in this article, the fees set forth in this code.
§5-10E-35. Benefits not forfeited if system terminates.
If the retirement system is terminated or contributions are completely discontinued, the rights of all members to benefits accrued or contributions made to the date of the termination or discontinuance, to the extent then funded, are not forfeited.

NOTE: The purpose of this bill is to establish the Emergency Medical Services Retirement System Act, and provide for administration by the Consolidated Public Retirement Board.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§5-10E is new; therefore, strike-throughs and underscoring have been omitted.

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