COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 715
(By Senators Plymale and Minard)
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[Originating in the Committee on Finance;
reported February 27, 2008.]
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A BILL to amend and reenact §5-16-2 of the Code of West Virginia,
1931, as amended, relating to the participation in the Public
Employees Insurance Agency of certain retired employees;
mandatory participation in Retiree Health Benefit Trust Fund;
requiring written certification from nonstate employers who
opt out of the other post-employment benefits plan of the
fund; and providing that agency is not liable to provide
benefit where employer opted out.
Be it enacted by the Legislature of West Virginia:
That §5-16-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-2. Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
have the following meanings:
(1) "Agency" means the Public Employees Insurance Agency created by this article.
(2) "Director" means the Director of the Public Employees
Insurance Agency created by this article.
(3) "Employee" means any person, including an elected officer,
who works regularly full time in the service of the State of West
Virginia and, for the purpose of this article only, the term
"employee" also means any person, including an elected officer, who
works regularly full time in the service of a county board of
education; a county, city or town in the state; any separate
corporation or instrumentality established by one or more counties,
cities or towns, as permitted by law; any corporation or
instrumentality supported in most part by counties, cities or
towns; any public corporation charged by law with the performance
of a governmental function and whose jurisdiction is coextensive
with one or more counties, cities or towns; any comprehensive
community mental health center or comprehensive mental retardation
facility established, operated or licensed by the Secretary of
Health and Human Resources pursuant to section one, article two-a,
chapter twenty-seven of this code and which is supported in part by
state, county or municipal funds; any person who works regularly
full time in the service of the Higher Education Policy Commission,
the West Virginia Council for Community and Technical College
Education or a governing board, as defined in section two, article
one, chapter eighteen-b of this code; any person who works
regularly full time in the service of a combined city-county health
department created pursuant to article two, chapter sixteen of this code; any person designated as a 21st Century Learner Fellow
pursuant to section eleven, article three, chapter eighteen-a of
this code; and any person who works as a long-term substitute as
defined in section one, article one, chapter eighteen-a of this
code in the service of a county board of education:
Provided, That
a long-term substitute who is continuously employed for at least
one hundred thirty-three instructional days during an instructional
term, and until the end of that instructional term, is eligible for
the benefits provided in this article until the first day of
September following that instructional term:
Provided, further
however, That a long-term substitute employed fewer than one
hundred thirty-three instructional days during an instructional
term is eligible for the benefits provided in this article only
during such time as he or she is actually employed as a long-term
substitute. On and after the first day of January, one thousand
nine hundred ninety-four, and upon election by a county board of
education to allow elected board members to participate in the
Public Employees Insurance Program pursuant to this article, any
person elected to a county board of education shall be considered
to be an "employee" during the term of office of the elected
member. Upon election by the State Board of Education to allow
appointed board members to participate in the Public Employees
Insurance Program pursuant to this article, any person appointed to
the State Board of Education is considered an "employee" during the
term of office of the appointed member:
Provided further, That the
elected member of a county board of education and the appointed member of the State Board of Education shall pay the entire cost of
the premium if he or she elects to be covered under this article.
Any matters of doubt as to who is an employee within the meaning of
this article shall be decided by the director.
On or after the first day of July, one thousand nine hundred
ninety-seven, a person shall be considered an "employee" if that
person meets the following criteria:
(i) Participates in a job-sharing arrangement as defined in
section one, article one, chapter eighteen-a of this code;
(ii) Has been designated, in writing, by all other
participants in that job-sharing arrangement as the "employee" for
purposes of this section; and
(iii) Works at least one third of the time required for a
full-time employee.
(4) "Employer" means the State of West Virginia, its boards,
agencies, commissions, departments, institutions or spending units;
a county board of education; a county, city or town in the state;
any separate corporation or instrumentality established by one or
more counties, cities or towns, as permitted by law; any
corporation or instrumentality supported in most part by counties,
cities or towns; any public corporation charged by law with the
performance of a governmental function and whose jurisdiction is
coextensive with one or more counties, cities or towns; any
comprehensive community mental health center or comprehensive
mental retardation facility established, operated or licensed by
the Secretary of Health and Human Resources pursuant to section one, article two-a, chapter twenty-seven of this code and which is
supported in part by state, county or municipal funds; a combined
city-county health department created pursuant to article two,
chapter sixteen of this code; and a corporation meeting the
description set forth in section three, article twelve, chapter
eighteen-b of this code that is employing a 21st Century Learner
Fellow pursuant to section eleven, article three, chapter eighteen
of this code but the corporation is not considered an employer with
respect to any employee other than a 21st Century Learner Fellow.
Any matters of doubt as to who is an "employer" within the meaning
of this article shall be decided by the director. The term
"employer" does not include within its meaning the National Guard.
(5) "Finance board" means the Public Employees Insurance
Agency finance board created by this article.
(6) "Person" means any individual, company, association,
organization, corporation or other legal entity, including, but not
limited to, hospital, medical or dental service corporations;
health maintenance organizations or similar organization providing
prepaid health benefits; or individuals entitled to benefits under
the provisions of this article.
(7) "Plan", unless the context indicates otherwise, means the
medical indemnity plan, the managed care plan option or the group
life insurance plan offered by the agency.
(8) "Retired employee" means an employee of the state who
retired after the twenty-ninth day of April, one thousand nine
hundred seventy-one, and an employee of the Higher Education Policy Commission, the Council for Community and Technical College
Education, a state institution of higher education or a county
board of education who retires on or after the twenty-first day of
April, one thousand nine hundred seventy-two, and all additional
eligible employees who retire on or after the effective date of
this article, meet the minimum eligibility requirements for their
respective state retirement system and whose last employer
immediately prior to retirement under the state retirement system
is a participating employer
in the state retirement system and in
the Public Employees Insurance Agency: Provided, That for the
purposes of this article, the employees who are not covered by a
state retirement system, but who are covered by a state-approved or
state-contracted retirement program
or a system approved by the
director, shall, in the case of education employees, meet the
minimum eligibility requirements of the State Teachers Retirement
System and in all other cases, meet the minimum eligibility
requirements of the Public Employees Retirement System
and may
participate in the Public Employees Insurance Agency as retired
employees upon terms as the director sets by rule as authorized in
this article. Employers with employees who are, or who are
eligible to become, retired employees under this article shall be
mandatory participants in the Retiree Health Benefit Trust Fund
created pursuant to article sixteen-d of this chapter. Nonstate
employers may opt out of the West Virginia other post-employment
benefits plan of the Retiree Health Benefit Trust Fund and elect to
not provide benefits under the Public Employees Insurance Agency to retirees of the nonstate employer, but may do so only upon the
written certification, under oath, of an authorized officer of the
employer that the employer has no employees who are, or who are
eligible to become, retired employees and that the employer will
defend and hold harmless the Public Employees Insurance Agency from
any claim by one of the employer's, past, present or future
employees for eligibility to participate in the Public Employees
Insurance Agency as a retired employee. As a matter of law, the
Public Employees Insurance Agency shall not be liable in any
respect to provide plan benefits to a retired employee of a
nonstate employer which has opted out of the West Virginia other
post-employment benefits plan of the Retiree Health Benefit Trust
Fund pursuant to this section.