H. B. 4701
(By Mr. Speaker, Mr. Kiss, and Delegates Iaquinta,
Morgan, Hartman, Poling, Miley, Fragale, Trump, Perdue,
Beane and Campbell)
[Introduced February 22, 2006; referred to the
Committee on Education then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §18B-10-1d, relating
to the eligibility for in-state tuition in state institutions
of higher education; definitions; and penalties for fraud.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §18B-10-1d, to read as
follows:
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-1d. Eligibility for in-state tuition in state
institutions of higher education.
(a) For purposes of this section, the following definitions
shall apply:
(1) "Date of the alleged entitlement" means the first official
day of class within the term of the student's program.
(2) "Dependent student" means one who is listed as a dependent
on the federal or state income tax return of his or her parents or
legal guardian or who receives substantial financial support from
his or her spouse, parents or legal guardian. It shall be presumed
that a student under the age of twenty-four on the date of the
alleged entitlement receives substantial financial support from his
or her parents or legal guardian, and is dependent on his or her
parents or legal guardian, unless the student: (i) Is a veteran or
an active duty member of the U.S. Armed Forces; (ii) is a graduate
or professional student; (iii) is married; (iv) is a ward of the
court or was a ward of the court until age eighteen; (v) has no
adoptive or legal guardian when both parents are deceased; (vi) has
legal dependents other than a spouse or (vii) is able to present
clear and convincing evidence that he or she is financially
self-sufficient.
(3) "Domicile" means the present, fixed home of an individual
to which he or she returns following temporary absences and at
which he or she intends to stay indefinitely. No individual may
have more than one domicile at a time. Domicile, once established,
shall not be affected by mere transient or temporary physical
presence in another jurisdiction.
(4) "Domiciliary intent" means present intent to remain
indefinitely.
(5) "Emancipated minor" means a student under the age of eighteen on the date of the alleged entitlement whose parents or
guardians have surrendered the right to his or her care, custody
and earnings and who no longer claim him or her as a dependent for
tax purposes.
(6) "Full-time employment" means employment resulting in, at
least, an annual earned income reported for tax purposes equivalent
to fifty work weeks of forty hours at minimum wage.
(7) "Independent student" means one whose parents have
surrendered the right to his or her care, custody and earnings, do
not claim him or her as a dependent on federal or state income tax
returns, and have ceased to provide him or her substantial
financial support.
(8) "Special arrangement contract" means a contract between a
West Virginia employer or the authorities controlling a federal
installation or agency located in West Virginia and a public
institution of higher education for reduced rate tuition charges.
(9) "Substantial financial support" means financial support in
an amount which equals or exceeds that required to qualify the
individual to be listed as a dependent on federal and state income
tax returns.
(10) "Unemancipated minor" means a student under the age of
eighteen on the date of the alleged entitlement who is under the
legal control of, and is financially supported by, either of his or
her parents, legal guardian or other person having legal custody.
(11) "West Virginia employer" means any employing unit
organized under the laws of West Virginia or having income from
West Virginia sources regardless of its organizational structure,
or any public or nonprofit organization authorized to operate in
the state.
(b) To become eligible for in-state tuition, an independent
student shall establish by clear and convincing evidence that for
a period of at least one year immediately prior to the date of the
alleged entitlement, he or she was domiciled in West Virginia and
had abandoned any previous domicile, if such existed.
(c) To become eligible for in-state tuition, a dependent
student or unemancipated minor shall establish by clear and
convincing evidence that for a period of at least one year prior to
the date of the alleged entitlement, the person through whom he or
she claims eligibility was domiciled in West Virginia and had
abandoned any previous domicile, if such existed. If the person
through whom the dependent student or unemancipated minor
established such domicile and eligibility for in-state tuition
abandons his or her West Virginia domicile, the dependent student
or unemancipated minor shall be entitled to such in-state tuition
for one year from the date of such abandonment.
(d) In determining domiciliary intent, all of the following
applicable factors shall be considered:
(1) Continuous residence for at least one year prior to the date of alleged entitlement;
(2) The state to which income taxes are filed or paid;
(3) Driver's license;
(4) Motor vehicle registration;
(5) Voter registration;
(6) Employment;
(7) Property ownership;
(8) Sources of financial support;
(9) Military records;
(10) A written offer and acceptance of employment following
graduation; and
(11) Any other social or economic relationships with the state
and other jurisdictions.
Domiciliary status shall not ordinarily be conferred by the
performance of acts which are auxiliary to fulfilling educational
objectives or are required or routinely performed by temporary
residents of the state. Mere physical presence or residence
primarily for educational purposes shall not confer domiciliary
status. A matriculating student who has entered an institution and
is classified as an out-of-state student shall be required to rebut
by clear and convincing evidence the presumption that he or she is
in the state for the purpose of attending school and not as a bona
fide domiciliary.
Those factors presented in support of entitlement to in-state tuition shall have existed for the one-year period prior to the
date of the alleged entitlement:
Provided, That in determining the
domiciliary intent of active duty military personnel residing in
the state, or the domiciliary intent of their dependent spouse or
children who claim domicile through them, who voluntarily elect to
establish West Virginia as their permanent residence for
domiciliary purposes, the requirement of one year shall be waived
if all other conditions for establishing domicile are satisfied.
(e) A married person may establish domicile in the same manner
as an unmarried person. An emancipated minor may establish
domicile in the same manner as any other independent student. A
nonmilitary student whose parent or spouse is a member of the Armed
Forces may establish domicile in the same manner as any other
student.
(f) Any alien holding an immigration visa or classified as a
political refugee shall also establish eligibility for in-state
tuition in the same manner as any other student:
Provided, That
absent congressional intent to the contrary, any person holding a
student or other temporary visa shall not have the capacity to
intend to remain in West Virginia indefinitely and shall be
ineligible for West Virginia domicile and for in-state tuition
charges.
(g) The domicile of a dependent student shall be rebuttably
presumed to be the domicile of the parent or legal guardian claiming him or her as an exemption on federal or state income tax
returns currently and for the tax year prior to the date of the
alleged entitlement or providing him or her substantial financial
support.
(h) For the purposes of this section, the domicile of an
unemancipated minor or a dependent student eighteen years of age or
older may be either the domicile of the parent with whom he or she
resides, the parent who claims the student as a dependent for
federal and West Virginia income tax purposes for the tax year
prior to the date of the alleged entitlement and is currently so
claiming the student, or the parent who provides the student
substantial financial support. If there is no surviving parent or
the whereabouts of the parents are unknown, then the domicile of an
unemancipated minor shall be the domicile of the legal guardian of
such unemancipated minor unless there are circumstances indicating
that the guardianship was created primarily for the purpose of
conferring a West Virginia domicile on the unemancipated minor.
(i)It is incumbent on the student to apply for change in
domiciliary status on becoming eligible for such change. Changes
in domiciliary status shall only be granted prospectively from the
date such application is received.
(j) A student who knowingly provides erroneous information in
an attempt to evade payment of out-of-state fees shall be charged
out-of-state tuition fees for each term attended and may be subject to dismissal from the institution. All disputes related to the
veracity of information provided to establish West Virginia
domicile shall be appealable in a hearing procedure provided by the
particular institution and all due process procedure shall be
observed.
NOTE: The purpose of this bill is to establish eligibility
requirements for in-state tuition for state institutions of higher
education.
§18B-10-1d is new; therefore, strike-throughs and underscoring
have been omitted.
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