Senate Bill No. 220
(By Senators Jenkins, Oliverio and Hunter)
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[Introduced January 19, 2006; 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 Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto a new article, designated §16-5U-1, §16-5U-2,
§16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7, §16-5U-8,
§16-5U-9, §16-5U-10, §16-5U-11, §16-5U-12, §16-5U-13,
§16-5U-14, §16-5U-15, §16-5U-16, §16-5U-17, §16-5U-18,
§16-5U-19, §16-5U-20, §16-5U-21, §16-5U-22, §16-5U-23,
§16-5U-24, §16-5U-25, §16-5U-26, §16-5U-27, §16-5U-28,
§16-5U-29, §16-5U-30, §16-5U-31, §16-5U-32, §16-5U-33 and
§16-5U-34
, all relating to the Consolidated Public
Retirement Board; providing that the board administer the
Emergency Medical Services Retirement System; reflecting the
long-standing fiduciary obligation of Consolidated Public
Retirement Board members to the plans they administer;
clarifying the personal liability of board members to the retirement plans they administer; clarifying that board
members shall discharge their duties in accordance with the
law; establishing the Emergency Medical Services Retirement
System; setting forth definitions; providing effective
dates; establishing federal qualification requirements;
providing for liberal construction; providing that plan is
not a substitute for social security; providing for and
setting membership standards; setting forth required
contributions from members and employers; creating fund and
providing for investments; providing for transfer from
Public Employees Retirement System; setting time limits;
setting forth notice requirements and requiring a test case;
commencement of benefits; federal law maximum benefit
limitations and minimum required distributions; direct
rollovers; providing for retirement credited through
member's use of accrued annual or sick leave; providing for
retirement benefits; setting forth annuity options;
providing for refunds in certain circumstances; deferred
retirement; forfeitures; awards and benefits for duty-
related disability and for other causes; physical
examinations; termination of disability; prior disability;
awards and benefits to surviving spouse; additional death
benefits and scholarships for dependent children; burial
benefit; prohibiting double death benefits; loans to members; exemption from taxation, garnishment and other
process; qualified domestic relation orders; fraud; criminal
penalties; repayment; treatment of prior military service;
pro rata reduction of annuities; effective date; starting
date for benefits; limitation of county liability; and
providing for no forfeiture of benefits if system
terminates.
Be it enacted by the Legislature of West Virginia:
That §5-10D-1
of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended
by adding thereto a new article, designated §16-5U-1, §16-5U-2,
§16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7, §16-5U-8,
§16-5U-9, §16-5U-10, §16-5U-11, §16-5U-12, §16-5U-13, §16-5U-14,
§16-5U-15, §16-5U-16, §16-5U-17, §16-5U-18, §16-5U-19, §16-5U-20,
§16-5U-21, §16-5U-22, §16-5U-23, §16-5U-24, §16-5U-25, §16-5U-26,
§16-5U-27, §16-5U-28, §16-5U-29, §16-5U-30, §16-5U-31, §16-5U-32,
§16-5U-33 and §16-5U-34,
all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated Public Retirement Board continued;
members; vacancies; investment of plan funds.
(a) The Consolidated Public Retirement Board is continued to
administer all public retirement plans in this state. It shall
administer the public employees retirement system established in
article ten of this chapter; the teachers retirement system
established in article seven-a, chapter eighteen of this code;
the teachers' defined contribution retirement system created by
article seven-b of said chapter; the West Virginia State Police
Death, Disability and Retirement Fund created by article two,
chapter fifteen of this code; the West Virginia State Police
retirement system created by article two-a of said chapter; the
deputy
sheriff sheriff's death, disability and retirement fund
created by article fourteen-d, chapter seven of this code;
and
the judges' retirement system created under article nine, chapter
fifty-one of this code;
the death, disability and retirement fund
for deputy sheriffs established in article fourteen-d, chapter
seven of this code; and the Emergency Medical Services Retirement
System established in article five-u, chapter sixteen of this
code. The board is created as a public body corporate and is
established to provide prudent fiscal administration and
management of the foregoing retirement systems.
(b) Each member of the board owes a fiduciary obligation to
each of the retirement systems administered by the board and to
each of the members of those retirement systems, whether the
member be retired or active. Members and employees of the board are not liable personally, either jointly or severally, for any
debt or obligation created by the board:á Provided, That board
members are personally liable for ultra vires acts, acts of
malfeasance, acts in violation of the laws creating the various
retirement systems or for gross negligence.
(b) (c) The membership of the Consolidated Public Retirement
Board consists of:
(1) The Governor or his or her designee;
(2) The State Treasurer or his or her designee;
(3) The State Auditor or his or her designee;
(4) The Commissioner of the Employee and Insurance Services
Division of the Department of Administration;
(5) Four residents of the state, who are not members,
retirants or beneficiaries of any of the public retirement
systems, to be appointed by the Governor, with the advice and
consent of the Senate; and
(6) A member, annuitant or retirant of the Public Employees
Retirement System who is or was a state employee; a member,
annuitant or retirant of the Public Employees Retirement System
who is not or was not a state employee; a member, annuitant or
retirant of the teachers retirement system; a member, annuitant
or retirant of the West Virginia State Police Death, Disability
and Retirement Fund; a member, annuitant or retirant of the
Deputy Sheriff's Death, Disability and Retirement Fund; and a member, annuitant or retirant of the Teachers' Defined
Contribution Retirement System, all to be appointed by the
Governor, with the advice and consent of the Senate.
(c) (d) The appointed members of the board shall serve
five-year terms. A member appointed pursuant to subdivision
(6), subsection (b) of this section ceases to be a member of the
board if he or she ceases to be a member of the represented
system. If a vacancy occurs in the appointed membership, the
Governor, within sixty days, shall fill the vacancy by
appointment for the unexpired term. No more than five appointees
shall be of the same political party.
(d) (e) The Consolidated Public Retirement Board has all the
powers, duties, responsibilities and liabilities of the Public
Employees Retirement System established pursuant to article ten
of this chapter; the Teachers Retirement System established
pursuant to article seven-a, chapter eighteen of this code; the
Teachers Defined Contribution System established pursuant to
article seven-b of said chapter; the West Virginia State Police
Death, Disability and Retirement Fund created pursuant to article
two, chapter fifteen of this code; the West Virginia State Police
Retirement System created by article two-a of said chapter; the
Deputy Sheriff Sheriff's Death, Disability and Retirement Fund
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.
(e) (f) The Consolidated Public Retirement Board may propose
rules for legislative approval, in accordance with article three,
chapter twenty-nine-a of this code, necessary to effectuate its
powers, duties and responsibilities: Provided, That the board
may adopt any or all of the rules, previously promulgated, of a
retirement system which it administers.
(f) (g) 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.
(g) (h) 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
is a trustee for all public retirement plans, except with regard
to the investment of funds: Provided, That the Consolidated
Public Retirement Board is 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.
(h) (i) 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.
(j) 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.
(k) The changes made to this section in the two thousand
five regular session of the Legislature are remedial in nature
and merely constitute codification of existing case law and
practices. Accordingly, these changes may be applied by a court in any lawsuit or action brought after the thirty-first day of
December, two thousand five, regardless of when the act
complained of occurred.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5U.á EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.
§16-5U-1. Title.
This article is known and may be cited as the "West Virginia
Emergency Medical Services Retirement System Act."
§16-5U-2. Definitions.
As used in this article, unless a federal law or regulation
or the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member two and
six-tenths percent per year of the member's final average salary
for the first twenty years of credited service. Additionally,
two percent per year for twenty-one through twenty-five years and
one percent for twenty-six through thirty years will be credited
with a maximum of sixty-seven percent. Member's accrued benefit
may not exceed the limits of Section 415 of the Internal Revenue
Code and is subject to the provisions of section nine-a of this
article.
(1) The board may increase the employees contribution to
ten and five-tenths percent should the funding of the plan not
reach seventy percent funded by the first day of July, two
thousand ten. The board shall decrease the contribution rate to eight and one-half percent once the plan funding reaches the
seventy percent support objective as of any latter actuarial
valuation date.
(2) Upon reaching the seventy-five percent actuarial funded
level, as of an actuarial valuation date, the board shall
increase the two and six-tenths percent to two and three-quarter
percent for the first twenty years of service. The maximum
benefit will also be increased from sixty-seven percent to
seventy percent.
(b) "Accumulated contributions" means the sum of all amounts
deducted from the compensation of a member, or paid on his or her
behalf as a result of covered employment together with regular
interest on the deducted amounts.
(c) "Active military duty" means full-time active duty with
any branch of the armed forces of the United States, including
service with the national guard or reserve military forces when
the member has been called to active full-time duty and has
received no compensation during the period of that duty from any
board or employer other than the armed forces.
(d) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of the mortality table and interest rates
as set and adopted by the retirement board in accordance with the
provisions of this article.
(e) "Annual compensation" means the wages paid to the member during covered employment within the meaning of Section 3401(a)
of the Internal Revenue Code, but determined without regard to
any rules that limit the remuneration included in wages based
upon the nature or location of employment or services performed
during the plan year plus amounts excluded under Section
414(h)(2) of the Internal Revenue Code and less reimbursements or
other expense allowances, cash or noncash fringe benefits or
both, deferred compensation and welfare benefits. Annual
compensation for determining benefits during any determination
period may not exceed one hundred thousand dollars as adjusted
for cost-of-living in accordance with Section 401(a)(17)(B) of
the Internal Revenue Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the first
period for which an amount is received as an annuity by reason of
retirement.á For purposes of this subsection, if retirement
income payments commence after the normal retirement age,
"retirement" means the later of the last day the member worked in
covered employment and the normal retirement age.
(h) "Board" means the Consolidated Public Retirement Board.
(i) "County commission or political subdivision" has the
meaning ascribed to it in this code.
(j) "Covered employment" means either: (1) Employment as an
emergency medical technician, emergency medical technician/ paramedic or emergency medical services/registered nurse and the
active performance of the duties required of emergency medical
services officers; or (2) the period of time which active duties
are not performed but disability benefits are received under this
article; or (3) concurrent employment by an emergency services
officer in a job or jobs in addition to his or her employment as
an emergency services officer where such secondary employment
requires the emergency medical services officer to be a member of
another retirement system which is administered by the
Consolidated Public Retirement Board pursuant to this code:
Provided, That the emergency medical services officer contribute
to the Fund created in this article the amount specified as an
Emergency Medical Services Officer by this article.
(k) "Credited service," means the sum of a member's years of
service, active military duty, disability service and annual
leave service.
(l) "Emergency Medical Services Officer" means an individual
employed by the state, county or other political subdivision as a
medical professional that is qualified to respond to medical
emergencies, aids the sick and injured and arranges or transports
to medical facilities, as defined by the West Virginia Office of
Emergency Medical Services. This definition is construed to
include ambulance providers and other services such as law
enforcement, rescue, or fire department personnel who primarily perform these functions and are not provided any other credited
service benefits or retirement plans. These persons may hold the
rank of emergency medical technician/basic, emergency medical
technician/paramedic, emergency medical services/registered
nurse, or others as defined by the West Virginia Office of
Emergency Medical Services and the Consolidated Public Retirement
Board.
(m) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living
with the member while the member was an adopting parent during
any period of probation; or
(D) A stepchild of the member residing in the member's
household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited
college or university;
(B) Who was claimed as a dependent by the member for federal
income tax purposes at the time of member's death; and
(C) Whose relationship with the member is described in
subparagraph (A), (B) or (C), paragraph (1) of this subsection.
(n) "Dependent parent" means the father or mother of the member who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death.
(o) "Disability service" means service received by a member,
expressed in whole years, fractions thereof or both, equal to one
half of the whole years, fractions thereof, or both, during which
time a member receives disability benefits under this article.
(p) "Effective date" means the first day of July, two
thousand five.
(q) "Final average salary" means the average of the highest
annual compensation received for covered employment by the member
during any five consecutive plan years within the member's last
ten years of service while employed, prior to any disability
payment. If the member did not have annual compensation for the
five full plan years preceding the member's attainment of normal
retirement age and during that period the member received
disability benefits under this article then "final average
salary" means the average of the monthly salary determined paid
to the member during that period as determined under section
seventeen of this article multiplied by twelve.
(r) "Fund" means the West Virginia Emergency Medical
Services Retirement Fund created by this article.
(s) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to
payment for covered employment during which time active duties are performed. These hours shall be credited to the member for
the plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to
payment for covered employment during a plan year but where no
duties are performed due to vacation, holiday, illness,
incapacity including disability, layoff, jury duty, military
duty, leave of absence or any combination thereof, and without
regard to whether the employment relationship has terminated.
Hours under this paragraph shall be calculated and credited
pursuant to West Virginia Division of Labor Rules. A member will
not be credited with any hours of service for any period of time
he or she is receiving benefits under section fourteen or fifteen
of this article; and
(3) Each hour for which back pay is either awarded or agreed
to be paid by the employing county commission, irrespective of
mitigation of damages. The same hours of service shall not be
credited both under paragraph (1) or (2) of this subdivision and
under this paragraph. Hours under this paragraph shall be
credited to the member for the plan year or years to which the
award or agreement pertains, rather than the plan year in which
the award, agreement or payment is made.
(t) "Member" means a person first hired as an Emergency
Medical Services Officer after the effective date of this
article, as defined in subsection (r) of this section, or an Emergency Medical Services Officer first hired prior to the
effective date and who elects to become a member pursuant to this
article. A member shall remain a member until the benefits to
which he or she is entitled under this article are paid or
forfeited.
(u) "Monthly salary" means the portion of a member's annual
compensation, which is paid to him or her per month.
(v) "Normal form" means a monthly annuity which is one
twelfth of the amount of the member's accrued benefit which is
payable for the member's life. If the member dies before the sum
of the payments he or she receives equals his or her accumulated
contributions on the annuity starting date, the named beneficiary
shall receive in one lump sum the difference between the
accumulated contributions at the annuity starting date and the
total of the retirement income payments made to the member.
(w) "Normal retirement age" means the first to occur of the
following:
(1) Attainment of age fifty years and the completion of
twenty or more years of regular service, excluding active
military duty, disability service and annual leave service.
(2) While still in covered employment, attainment of at
least age fifty years and when the sum of current age plus years
of service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least age sixty years and completion of ten years of service; or
(4) Attainment of age sixty-two years and completion of five
or more years of service.
(x) "Partially disabled" means a member's inability to
engage in the duties of an Emergency Medical Services Officer by
reason of any medically determinable physical or mental
impairment that can be expected to result in death or that has
lasted or can be expected to last for a continuous period of not
less than twelve months. A member may be determined partially
disabled for the purposes of this article and maintain the
ability to engage in other gainful employment which exists within
the state but which ability would not enable him or her to earn
an amount at least equal to two thirds of the average annual
compensation earned by all active members of this plan during the
plan year ending as of the most recent thirtieth day of June, as
of which plan data has been assembled and used for the actuarial
valuation of the plan. The board may require submission of a
member's annual tax return for purposes of monitoring the
earnings limitation.
(y) "Public Employees Retirement System" means the West
Virginia Public Employee's Retirement System created by West
Virginia Code.
(z) "Plan" means the West Virginia Emergency Medical
Services Death, Disability and Retirement Plan established by this article.
(aa) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending the
following thirtieth day of June.
(bb) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board adopts in accordance
with the provisions of this article.
(cc) "Retirement income payments" means the annual
retirement income payments payable under the plan.
(dd) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(ee) "Surviving spouse" means the person to whom the member
was legally married at the time of the member's death and who
survived the member.
(ff) "Totally disabled" means a member's inability to engage
in substantial gainful activity by reason of any medically
determined physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve months.
For purposes of this subdivision:
(1) A member is totally disabled only if his or her physical
or mental impairment or impairments is so severe that he or she
is not only unable to perform his or her previous work as an
Emergency Medical Services Officer but also cannot, considering his or her age, education and work experience, engage in any
other kind of substantial gainful employment which exists in the
state regardless of whether: (A) The work exists in the
immediate area in which the member lives; (B) a specific job
vacancy exists; or (C) the member would be hired if he or she
applied for work. Substantial gainful employment is defined as an
excess of one third of the average annual earnings.
(2) "Physical or mental impairment" is an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical
and laboratory diagnostic techniques. The board may require
submission of a member's annual tax return for purposes of
monitoring the earnings limitation.
(gg) "Year of service" means a member shall, except in his
or her first and last years of covered employment, be credited
with year of service credit based upon the hours of service
performed as covered employment and credited to the member during
the plan year based upon the following schedule:
Hours of Service Year of Service Credited
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1/3
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2/3
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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.
(hh) "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; or (3) for members who are covered under the Public Employees Retirement System, their
service shall be recognized upon transfer of asset from the
Public Employees Retirement System according to the provisions of
section nine of this article. Prior service for members not
covered under the Public Employees Retirement System shall be
recognized only upon repayment of amounts covered under the
provisions of section nine of this article.
§16-5U-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.
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§16-5U-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.
§16-5U-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 is effective as of the date required
by federal law. The board may propose rules for promulgation 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.
§16-5U-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 the
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 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 the 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 is not 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.
§16-5U-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
amounts designated by the board for payment of benefits as
provided in this article, shall be held in trust and invested in the consolidated pensions fund administered by the State
Investment Management Board as provided by law.
§16-5U-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. All required deposits shall be
remitted to the board no later than ten days following the end of the calendar month for which the deposits are required. 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.
§16-5U-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 five, actuarial valuation of the 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 the
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 the
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) Eligible officers that transfer from plans other than
the Public Employees Retirement System shall have service
recognized under this plan through the purchase of the service
through the payment of forty-five percent of the actuarial
reserve of the service. The purchase of the service must begin
within twelve months of participation and full payment must be
made within no longer thanásixty months by either equal monthly
or a one time lump sum payment.
(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.
§16-5U-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.
§16-5U-11. Retirement; commencement of benefits.
Except for duty disability retirement, no member may retire
before the first day of July, two thousand eight.
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 are 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.
§16-5U-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 maximizes 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.
§16-5U-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-seven. 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 its regulations. 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 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.
§16-5U-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 may be construed as permitting
rollovers to this plan or any other retirement system
administered by the board.
§16-5U-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.
§16-5U-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.á 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. Accrued sick
and annual leave credits are not lost at late retirement.
(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.
§16-5U-17. Annuity options.
Prior to the effective date of retirement, but not after
that date, 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-- 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.
(b)
Option B -- 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.
(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.
§16-5U-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 may 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 may not be applied to increase the
benefits any member would otherwise receive under the plan.
§16-5U-19. Awards and benefits for disability -- Duty related.
Any member who after the effective date of this article and
during covered employment: (A) Has been or becomes either
totally or partially disabled by injury, illness or disease; and
(B) the disability is a result of an occupational risk or hazard
inherent in or peculiar to the services required of members; or
(C) the disability was incurred while performing Emergency
Medical Services functions during either scheduled work hours or
at any other time; and (D) 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.
§16-5U-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.
§16-5U-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.
§16-5U-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.
§16-5U-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.
§16-5U-24. Same -- When member dies from nonservice-connected
causes.
(a) If 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: (i) One half of the annual compensation
received in the preceding twelve-month employment 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. 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 (i)
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.
§16-5U-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 hundred percent of the spouse's entitlement under
this article divided by the number of dependant children. 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.
§16-5U-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.
§16-5U-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.
§16-5U-28. 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.
§16-5U-29. 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 punished by a
fine not to exceed one thousand dollars, by confinement in jail
not to exceed one year, or by both fine and confinement. 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.
§16-5U-30. 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
theáarmed 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.
§16-5U-31. 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 said
fiscal year is more than ten percent of the sum of the balances
in the fund at the end of the said fiscal year, the said
annuities payable in the next ensuing fiscal year shall be
reduced, pro rata, so that the sum of the annuities so reduced
may 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.
§16-5U-32. 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 propose a rule for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code 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.
§16-5U-33. 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.
§16-5U-34. 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 enact a retirement
system for Emergency Medical Services Personnel.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language
that would be added.
§§16-5U is new; therefore, strike-throughs and underscoring
have been omitted.