title-162•Title 162 W. Va. C.S.R.
Consolidated Public Retirement Board Consolidated Public Retirement Board
Series 01 General Provisions
W. Va. Code R. § 162-1-1 General
1.1. Scope. -- The scope of this rule involves the enabling legislation and general administrative criteria of the Consolidated Public Retirement Board.
1.2. Authority. -- W. Va. Code §5-10D-1.
1.3. Filing Date. -- May 28, 2013.
1.4. Effective Date. -- June 1, 2013.
W. Va. Code R. § 162-1-2 Definitions
2.1. Definitions: For purposes of determining the divisibility of the annuity, refund of accumulated contributions, pre-retirement death benefit, or other payment available to a member, retirant or beneficiary of any Retirement System administered by the Board in cases of divorce or legal separation, the following definitions apply:
2.1.a. “Alternate payee” means the person designated in a Qualified Domestic Relations Order to receive all or a portion of the benefits available under one of the Retirement Systems.
2.1.b. “Domestic Relations Order” means an order, judgment, or decree which relates to the provision of marital property rights to a spouse or former spouse of a member or retirant, and which is made pursuant to a state domestic relations law.
2.1.c. “Exempt service” means all additional service credit due to non-contributory military service and accumulated sick and annual leave.
2.1.d. “Participant” means the spouse who is a member or retirant in one of the Retirement Systems administered by the Board and whose interest in a Retirement System is divided by a Qualified Domestic Relations Order in accordance with this rule.
2.1.e. “Qualified Domestic Relations Order” means a Domestic Relations Order that assigns to an alternate payee the right to receive all or a portion of the benefits payable to a person under any of the Retirement Systems administered by the Board, and which has been determined by the Board as meeting the requirements of this rule and any applicable statute. A “Qualified Domestic Relations Order” under this rule is not intended to, and shall not, mean the same as a “Qualified Domestic Relations Order” as defined in Internal Revenue Code (Code) Section 414(p), except to the extent that the provisions of Code
Section 414(p) are applicable to governmental plans.
2.1.f. “Vested Accrued Retirement Benefit” means the benefit due to the member or retirant as of the date specified by the parties in the Qualified Domestic Relations Order set out in subdivision 7.2.b. of this rule.
W. Va. Code R. § 162-1-3 Consolidated Public Retirement Board
3.1. The Board shall determine all other rules that are necessary for its administration and the administration of the Teachers Defined Contribution Retirement System (W. Va. Code §18-7B-1, et seq.); the Teachers Defined Benefit Retirement System (W. Va. Code §18-7A-1, et seq.); the Public Employees Retirement System (W. Va. Code §5-10-1, et seq.); the Judges' Retirement System (W. Va. Code §51-9-1, et seq.); the Department of Public Safety, Death, Disability and Retirement Fund (W. Va. Code §15-2 -26, et seq.); the West Virginia State Police Retirement System (W. Va. Code §15-2A-1, et seq.); the West Virginia Deputy Sheriff Retirement System (W. Va. Code §7-14D-1, et seq.); the West Virginia Emergency Medical Services Retirement System (W. Va. Code §16-5V-1, et seq.); and the Municipal Police Officers and Firefighters Retirement System (W. Va. Code §8-22A, et seq.).
W. Va. Code R. § 162-1-4 Amendments
4.1. The Board may make, alter, amend, suspend and repeal the Rules of the Board by a vote of not less than a majority of a quorum of its members at any regular meeting of the Board provided at least ten (10) days notice of such purpose is given. A quorum of the Board may make, alter, amend, suspend or repeal the Rules of the Board at any emergency meeting of the Board, provided at least ten (10) days notice of the purpose to make, amend, alter, suspend or repeal the Rules in whole or part at the meeting is given, and of the substance of the proposed action is announced. However, any action to promulgate, amend, suspend or repeal the Rules of the Board are subject to the rule-making provisions of W. Va. Code
§29A-3-1 et seq.
W. Va. Code R. § 162-1-5 General Administrative
5.1. Fiscal year. The fiscal year of the Board commences on the 1st day of July and ends on the 30th day of June the following year.
5.2. Books, records and minutes. The records of the Board are covered by the laws of the State of West Virginia and are subject to any applicable privilege and/or limitation under the Freedom of Information Act (W. Va. Code §29B-1-1). The Board shall keep all final actions of the Board in the form of minutes, and the minutes shall be open for inspection by the public at all reasonable times.
5.3. Contracts. All contracts and obligations of the Board shall be signed by the chairman or other officers or employees of the Board authorized to execute contracts or other obligations of the Board.
5.4. Indemnification. The Board shall, to the fullest extent allowed by law, indemnify and reimburse its present and future members, officers, employees or agents against loss for all expenses, including without limitation attorney fees, judgments, fines, taxes and penalties and interest thereon, for their official acts as Board members, officers, employees or agents. If the Board determines that a settlement of any action, suit or proceeding is in the best interest of the Board, all amounts paid in effecting the settlement, other than amounts paid by the Board itself, reasonably incurred by a member, officer, employee or agent in connection with or arising out of any action, suit or proceeding in which he or she may be involved by reason of his or her being or having been a member, officer, employee or agent of the Board shall be paid by the Board. Provided, that the indemnity shall not include any expenses incurred by any member, officer, employee or agent with respect to matters as to which he or she is finally adjudged in any action, suit or proceeding to have been guilty of or liable for gross negligence, willful misconduct or criminal acts in the performance of his or her duties of the Board. The right of indemnification provided in this subsection inures to the benefit of the heirs, executors or administrators of each member, officer, employee or agent and is in addition to all other rights to which the member, officer, employee or agent may be entitled as a matter of law.
5.5. Insurance. To the extent possible, the Board shall obtain necessary liability insurance coverage from the West Virginia Board of Risk and Insurance Management to cover itself, its members, officers, employees and agents in the performance of their duties as trustees for the Retirement Systems set forth in this rule.
5.6. Conflict of interest. The Board shall maintain constant vigilance against conflicts of interest, or the mere appearance of conflicts of interest. No officers, member, agent or employee of the Board shall be financially interested, directly or indirectly, in any contract with the Board, or in the sale of any property, real or personal, to or from the Board. Provided, that this section shall not apply to contracts or purchases of property, either real or personal, commodities or services between the Board and any governmental agency.
W. Va. Code R. § 162-1-6 Administrative Expenses
6.1. The Consolidated Public Retirement Board shall create an Expense Fund which shall be funded by an assessment against the Teachers Defined Benefit Retirement System, the Public Employees Retirement System, the Judges' Retirement System, the Public Safety Death, Disability and Retirement Fund, the West Virginia State Police Retirement System, the West Virginia Deputy Sheriff Retirement System, the West Virginia Emergency Medical Services Retirement System and the West Virginia Municipal Police Officers and Firefighters Retirement System, with payment out of earnings and the employers part of the Teachers Defined Contribution Plan in an amount determined by the Board, per year, for each member, retirant, beneficiary, and alternate payee receiving benefits. The Board shall deduct the fee from the vested employee account for terminated members and alternate payees of terminated members of the Teachers Defined Contribution Plan who are not vested in any employer contributions.
6.2. All administrative costs of the Board, including, but not limited to, salaries and employee benefits, shall be paid from the expense fund. However, any indemnification required pursuant to subsection 5.4 of this rule shall be paid from the particular Retirement System affected.
6.3. The administrative expense fund is not subject to satisfaction of any judgment or award against any of the Retirement Systems, and the judgment or award shall be satisfied from assets of the particular Retirement System against which it is levied.
W. Va. Code R. § 162-1-7 Non-Alienation of Benefits: Divorce and Separation
7.1. The moneys in each of the Retirement Systems and the right of a person to receive any benefit, whether it be an annuity, return of retirement contributions, or other benefit, are not subject to execution, attachment, garnishment, the operation of bankruptcy or other insolvency laws, State or municipal taxation, or any other legal process whatsoever; and are not assignable nor transferable by any employee, retirant or beneficiary: Provided, That orders entered by a court of record and enforced by the Bureau for Child Support and Enforcement may be honored by the Board.
7.2. In cases of divorce or legal separation, the annuity, refund of accumulated contributions, preretirement death benefit, or other payment available to a member, retirant or beneficiary of any Retirement System may be divisible by a Qualified Domestic Relations Order only as provided in this
rule. The Board shall not honor as a Qualified Domestic Relations Order any Domestic Relations Order seeking to divide a pension benefit of a member, retirant or beneficiary which does not meet the requirements of this rule.
7.2.a. In cases of divorce or legal separation where the member's or retirant's interest in his or her retirement account is subject to division as marital property pursuant to state domestic relation law, that portion of the member's or retirant's retirement account which constitutes marital property and which is subject to division by a Qualified Domestic Relations Order shall be determined by the Board by using the following formula, but only after the benefits are available to the member or retirant at death, refund, disability retirement or retirement: the marital property portion of a member’s or retirant’s retirement benefit which is subject to division shall be computed by the Board by multiplying the Vested Accrued Retirement Benefit, less all benefits due to Exempt Service, by a fraction, the numerator being the number of years of contributing service incurred during the marriage, and the denominator being the total number of years of contributing service towards the pension at the date of separation or the date of divorce. In determining the marital property portion of a member’s or retirant’s benefit, the numerator used by the Board in the fraction shall not include the member’s previously withdrawn service credit which was not repaid in full as of the date used by the parties as provided for in subdivision 7.2.b. of this rule.
7.2.b. In any Qualified Domestic Relations Order which meets the requirements of this rule and which seeks to divide a member’s or retirant’s state retirement benefit, the parties, by agreement, or the court having jurisdiction of the parties domestic relations proceeding, may utilize either the parties’ date of separation or the date of the divorce as their numerator in the marital share formula required by subdivision 7.2.a. of this rule.
7.2.c. For the division of state pension benefits between a member or retirant and an alternate payee by a Qualified Domestic Relations Order which meets the requirements of this rule, the Board shall use a shared payment approach, with the alternate payee being paid an agreed upon or court ordered percentage of the marital property portion of the member’s or retirant’s Vested Accrued Retirement Benefit at the same time and in the same form as the benefit elected by and paid to the member once he or she enters pay status: Provided, That for the Teachers’ Defined Contribution Plan, the Board shall use a separate payment approach, with the interest awarded to the alternate payee being divided upon acceptance of the Qualified Domestic Relations Order, and being placed into an individual account in the name of the alternate payee for further investment in accordance with the alternate payee’s direction, and for payment at the time or times that are permissible under the plan and applicable federal or state law.
7.2.d. Unless otherwise specifically agreed to by the parties in their Qualified Domestic Relations Order or ordered by the Court having jurisdiction of the parties’ domestic relation proceeding, the tax
basis and any post-retirement cost of living increases shall be applied to the benefit of both the member or retirant and the alternate payee proportionate to the division of the Vested Accrued Retirement Benefit.
7.2.e. Qualified Domestic Relations Orders shall contain all of the following in order to meet the requirements of this rule:
7.2.e.1. The name and last known address of the participant and the alternate payee;
7.2.e.2. The name of the state retirement plan to which the Qualified Domestic Relation Order applies; and
7.2.e.3. The percentage of the marital property portion of the member’s or retirant’s Vested Accrued Retirement Benefit which is to be paid to the alternate payee.
7.2.f. For a Qualified Domestic Relations Order to be acceptable and honored by the Board, the order may not require the member’s retirement plan to provide the alternate payee with any type or form of benefit, or any option, not otherwise provided under the plan; may not require the plan to provide for increased benefits determined on the basis of actuarial value; may not require the plan to pay benefits to an alternate payee which are required to be paid to another alternate payee under a prior Qualified Domestic Relations Order; may not require the plan to pay benefits to an alternate payee in the form of a qualified joint and survivor annuity for the lives of the alternate payee and his or her subsequent spouse; and may not require the plan to pay the alternate payee more than 100% of the marital property portion of the member’s benefits, as defined and calculated in accordance with subdivision 7.2.a. of this rule, except as permitted by the rules as ser forth in subdivision 7.2.g. of this rule.
7.2.g. The following additional restrictions apply:
7.2.g.1. Public Employees Retirement System and Deputy Sheriff Retirement System: A Qualified Domestic Relations Order may not require the member or retirant to elect any particular form of pre or post retirement benefit available under the plan, may not prohibit the member or retirant from changing the form of benefit if one has already been elected and such a change is otherwise permitted by the plan, and may not require the alternate payee be treated as the surviving spouse of the member or retirant for purposes of any pre or post retirement benefit if such an option has been or is elected by the member or retirant. This rule shall not be construed to prohibit a member or retirant from entering into a voluntary agreement, or being subject to an order from a state court of competent jurisdiction, which requires the member or retirant to elect a particular form of benefit available to him or her under the plan, or which prohibits the member or retirant from changing the form of benefit already elected by him or her where such a change is otherwise permitted by the plan, or which requires the member or retirant to select the alternate payee as the surviving spouse of the member or retirant for purposes of any benefit elected by the member or retirant; however, such restriction cannot be contained within a Qualified Domestic Relations Order and cannot be enforced by the Board: Provided, That a Qualified Domestic Relations Order with respect to a retirant who has already retired as of the date of entry of the order may prohibit a retirant who elected a joint and survivor annuity option upon retirement from changing said joint and survivor annuity to a life annuity upon the retirant’s divorce; and further provided that a Qualified Domestic Relations Order with respect to a retirant who has retired as of the date of entry of the order may also prohibit the retirant from naming a new spouse as an annuitant for any retirement benefit option available under the plan to a retirant who divorces and remarries after retiring.
7.2.g.2. Teachers’ Retirement System: A Qualified Domestic Relations Order may not require the member or retirant to elect any particular form of pre or post retirement benefit available under the plan, may not prohibit the member or retirant from changing the form of benefit if one has already been elected and such a change is otherwise permitted by the plan, and may not require the alternate payee to be treated as the surviving spouse of the member or retirant for purposes of any pre or post retirement benefit, if such an option has been or is elected by the member or retirant. This rule shall not be construed to prohibit a member or retirant from entering into a voluntary agreement, or being subject to an order from a state court of competent jurisdiction, which requires the member or retirant to elect a particular form of benefit available to him or her under the plan, or which prohibits the member or retirant from changing the form of benefit already elected by him or her where such a change is otherwise permitted by the plan, or which requires the member or retirant to select the alternate payee as the surviving spouse of the member or retirant for purposes of any pre or post retirement benefit available under the plan; however, such restrictions cannot be contained within a Qualified Domestic Relations Order itself or enforced by the Board: Provided, That a Qualified Domestic Relations Order with respect to a retirant who has retired as of the date of entry of the order may prohibit the retirant from naming a new spouse as an annuitant for any retirement benefit options available under the plan to a retirant who divorces and remarries after retiring.
7.2.g.3. West Virginia Municipal Police Officers and Firefighters Retirement System;
West Virginia State Police Retirement System; and Emergency Medical Services Retirement System: A Qualified Domestic Relations Order may not require the member or retirant to elect any particular form of benefit available under the plan, may not prohibit the member or retirant from changing the form of benefit if one has already been elected by the member or retirant and such a change is otherwise permitted by the plan, and may not require the alternate payee to be treated as the surviving spouse of the member or retirant for purposes of any pre or post retirement benefit, if such an option is elected by the member or retirant. This rule shall not be construed to prohibit a member or retirant from entering into a voluntary agreement, or being subject to an order from a state court of competent jurisdiction, which requires the member or retirant to elect a particular form of benefit available to him or her under the plan, or which prohibits the member or retirant from changing the form of benefit already elected by him or her, or which requires the member or retirant to select the alternate payee as the surviving spouse of the member or retirant for purposes of any pre or post retirement benefit available under the plan; however, such restrictions cannot be contained within a Qualified Domestic Relations Order itself or enforced by the Board.
7.2.g.4. West Virginia State Police Death, Disability and Retirement Fund; and Retirement System for Judges of Courts of Record: A Qualified Domestic Relations Order may not require the alternate payee to be treated as the surviving spouse of the member or retirant for purposes of any pre or post retirement benefit available under the plan.
7.2.h. In cases of divorce or legal separation in which the Court of record enters a division order in accordance with the formula and the requirements of this rule, the Board shall make separate payments to the member or retirant and the alternate payee in accordance with that order. Payments to the alternate payee shall be prospective only and shall commence upon pay status to the member or retirant and following the Board’s receipt and acceptance of the entered Qualified Domestic Relations Order.
7.2.i. In cases of divorce or legal separation, the Qualified Domestic Relations Order shall contain a prohibition against the member obtaining a loan under W. Va. Code §18-7A-34 or W. Va. Code
§7-14D-23. Provided, That, a member may borrow from that portion of his or her individual account not subject to the Qualified Domestic Relations Order.
7.2.j. Procedure: Within 30 days of receipt of a Domestic Relations Order, the Board’s staff shall notify, in writing, the parties identified in the Domestic Relations Order as the member or retirant and alternate payee, or their counsel if represented, of the receipt of the Domestic Relations Order. At this time, Board staff shall also notify said parties or counsel whether the Domestic Relations Order has been determined to meet the requirements for a Qualified Domestic Relations Order, or whether Board staff requires additional time or additional information to complete such a determination. If Board staff determines the Domestic Relations Order fails to meet the requirements for a Qualified Domestic Relations Order, said parties shall be notified in writing by mail, and such notification shall contain an explanation for the denial. In the event the Board determines the Domestic Relations Order is not a Qualified Domestic Relations Order, it shall be the duty of the member or retirant and alternate payee to cooperate and do all things reasonably necessary to devise and submit to the Board an order which is acceptable to the Board and which is consistent with this rule and applicable law. One or both parties may appeal a determination by Board staff that a Domestic Relations Order fails to meet the requirements for a Qualified Domestic Relations Order pursuant to the Board’s Benefit Determination and Appeal Rules.
W. Va. Code R. § 162-1-8 Death Benefits
8.1. The several Retirement Systems to be administered by the Board have varying and different definitions of who a survivor beneficiary may be if the member dies prior to retirement and following retirement. The Board has adopted the procedures in this section for payment of death benefits for all systems.
8.1.a. The “beneficiary” means the person who the member has designated as beneficiary in writing as of the date of his or her death. To the extent that plan provisions require the existence of an insurable interest between the named beneficiary and the member, the Board shall have the discretion to decide whether such interest exists.
8.1.b. If, upon the death of a member or retirant, a dispute arises between two (2) or more people who claim beneficiary or survivor benefits, the Board may make payment to the duly registered legal representative of the estate of the deceased member or retirant. Payment may only be made upon submission of written proof of the representative of the estate, generally incorporated in a probate court order. The Board shall accept the Last Will and Testament of the deceased member or retirant for the purposes of payment to the estate under this subdivision.
8.1.c. If the last designated beneficiaries of a member or retirant are children under the age of majority, but who reached their majority by the time of death, the Board shall always make payment pursuant to a court order or agreement entered into by the children of the member or retirant. If the designated beneficiaries are children who have not reached their majority, the Board shall only make payment to the court appointed guardian ad litem as specified in appropriate legal proceedings.
8.1.d. Except under joint and survivor options, a member or retirant may retain the right of selecting his or her designated beneficiary at any time.
W. Va. Code R. § 162-1-9 Miscellaneous
9.1. The members of the Board and any employee or agent of the Board are subject to the Governor's Travel Rules and Regulations.
9.2. If a member of a Defined Benefit System is covered by a group insurance or prepayment plan participated in by a participating public employer, and if the member is permitted to, and elects to, continue coverage as a retirant, he or she may authorize the Board to have deducted from his or her annuity the payments required of him or her to continue coverage under group insurance or prepayment plan.
9.3. A participating public employer in any Retirement System has the right of setoff for any proven claim arising from embezzlement by, or fraud of, a member, retirant or beneficiary.
Series 02 Benefit Determination and Appeal
W. Va. Code R. § 162-2-1 General
1.1. Scope. - This rule addresses the processes by which a member of the retirement systems administered by the West Virginia Consolidated Public Retirement Board may apply for and be granted disability retirement, and the manner in which appeals from the disability determinations of the Board and other appeals may be presented for administrative resolution.
1.2. Authority. - W. Va. Code § 5-10D-1.
1.3. Filing Date. - June 28, 2016.
1.4. Effective Date. - June 28, 2016.
W. Va. Code R. § 162-2-2 Disability Application
2.1. An individual or an individual's employer on behalf of the individual, if permitted, seeking disability retirement benefits shall apply to the Consolidated Public Retirement Board and, unless disability retirement is decided by the Governor of the State of West Virginia pursuant to statutory authority, the Board shall, as part of its initial review, decide the applicant's eligibility for disability retirement. The application shall be upon a form adopted by the Board. The employing agency shall, upon a form adopted by the Board, state the agency's position as to whether or not the disability is work related.
2.2. In the event that an individual or that individual's employer on behalf of the individual has applied for and been denied disability retirement by the Board, neither the individual nor the employer may file another application for disability retirement with the Board until the passage of one year from the date of the Board's last denial. Notwithstanding the minimum one year reapplication period, the Board may, in its sole discretion, agree to waive the minimum one year reapplication period for an individual or that individual's employer on behalf of the individual if waiver of the reapplication period is requested by the individual or that individual's employer on a form approved by the Board. The individual or that individual's employer shall demonstrate to the satisfaction of the Board, through medical records, reports or other reliable evidence, that the individual has suffered a new or substantial worsening of his or her medical condition since the Board's most recent denial of his or her application for disability retirement.
2.3. After a member receives either a lump sum distribution of contributions or the initial payment of a retirement benefit from the retirement system in which the member was or is a participant, the member is not eligible to apply for or receive disability retirement benefits.
2.4. When an application for disability retirement has been submitted by a member of the Public Employees Retirement System or the Teachers' Retirement System who is ultimately determined by the Consolidated Public Retirement Board to have met all the disability requirements, including an affirmative opinion by a Board approved physician, but who dies before the application is approved by the Board, the Board shall process the disability application and pay benefits as though the applicant were still alive and elected a 100% Joint & Survivor disability annuity naming his or her surviving spouse. If the member was not married at the time of his or her death, the named beneficiary or beneficiaries shall be paid in accordance with his or her pre-retirement beneficiary form.
W. Va. Code R. § 162-2-3 Disability Medical Reports
3.1. The applicant and the employing agency shall furnish all current and relevant medical reports in their possession, including a report from a physician, to the Board. The applicant shall obtain any additional information requested by the Board and shall complete any other forms and answer any other questions from the Board as may be appropriate. The Board shall only consider a medical report if the author of the report is a physician licensed in West Virginia or the jurisdiction in which he or she is located. At the request of the Board the applicant may be examined by an independent physician appropriate to the nature of the claimed disability. The cost of this examination shall be paid by the Board. These reports shall state a clear and understandable opinion as to whether or not the applicant is disabled as defined by then current applicable West Virginia law. The Board shall employ the faculty and staff of the Marshall University School of Medicine, the West Virginia University School of Medicine, or the West Virginia School of Osteopathic Medicine, whenever appropriate.
3.2. Disability Definitions
3.2.a. For members of the Public Employees Retirement System, "totally and permanently incapacitated for employment" 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 has lasted and can be expected to last for a continuous period of not less than twelve months. In order for a member of the Public Employees Retirement System to be eligible to be retired by the Board on account of the incapacity, the evidence must demonstrate that as a result of the impairment, the member's incapacity is so severe that on a probably permanent basis, he or she is not only unable to perform his or her previous state employment, 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. Evidence demonstrating that the member has been awarded disability benefits by the Social Security Administration shall be considered by any Board selected physician in his or her examination of the member.
3.2.b. For members of the Teachers' Retirement System, "mentally or physically incapacitated for service" means a member's inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted and can be expected to last for a continuous period of not less than twelve months. In order for a member of the Teachers' Retirement System to be eligible to be retired by the Board on account of the incapacity, the evidence must demonstrate that the member's incapacity is so severe that he or she is likely to be permanently unable to perform the duties of the position which the member occupied immediately prior to his or her disabling illness or injury. Evidence demonstrating that the member has been awarded disability benefits by the United States Social Security Administration shall be considered by any Board selected physician in his or her examination of the member.
3.3. The member shall cooperate fully with the Board in the scheduling of the examinations, and shall appear at the time and place for scheduled examinations requested by the Board. The Board may deny the disability application if the member fails to cooperate fully in the examination process. Further, the Board shall provide advance notice to the member that should he or she fail to appear at the time and place for scheduled examinations requested by the Board, the Board may hold the member responsible for some or all fees charged by the physician's office for that scheduled exam.
W. Va. Code R. § 162-2-4 Initial Determination
4.1. The Executive Director of the Board or his or her designee, and two staff members appointed by the Executive Director, constitute the Staff Review Committee. The Staff Review Committee shall review all reports and other evidence from all sources and shall make a recommendation consistent with the evidence, the applicable Laws and Rules and the purpose of the individual retirement system to the Board Review Committee, comprised of at least three Board members and appointed by the Board. Based on information submitted by the Board Review Committee, the full Board shall then consider the recommendations of the Board Review Committee and is free to make any finding consistent with the facts.
If the applicant is not granted disability retirement benefits, the Board shall inform the applicant in writing of its decision and the basis for the decision. The notification shall state, with specificity, the action which the applicant may take to pursue an administrative appeal of the Board's denial of the disability application.
4.2. Following Board approval of a disability retirement, an applicant of a defined benefit retirement system shall submit all required forms to the Board within six (6) months to commence his or her disability retirement annuity. If the applicant fails to meet this requirement, the disability award terminates and the member shall file a new application for disability retirement. All medical examination costs associated with the new application process are the sole responsibility of the member.
W. Va. Code R. § 162-2-5 Second Review
5.1. If the Board does not grant disability retirement benefits upon the Board's initial review of the applicant's disability retirement application, the applicant has two options. Within sixty (60) days of receipt of the notice of denial from the Board, the applicant may request an additional examination by another physician chosen by the Board at the applicant's expense and thereafter submit additional medical information, or the applicant may appeal the Board's decision to a hearing officer appointed by the Board as stated in section 6 of this rule.
5.2. If additional medical information is obtained, the Staff Review Committee shall review the new information concerning disability retirement benefits. The application should include all reports and other evidence, as well as any new information. The Staff Review Committee shall make a second recommendation to the Board Review Committee either to grant or not to grant disability retirement benefits.
The Board Review Committee may adopt the new recommendation of the Staff Review Committee, remand the application for further study, or make any other recommendation consistent with the facts. Based on information submitted by the Board Review Committee, the full Board shall then consider the current recommendations and shall make any finding consistent with the facts.
W. Va. Code R. § 162-2-6 Appeal of the Decision
6.1. If the Board rejects the application on two (2) occasions, the Board shall notify the applicant in writing within ten (10) days from the date of rejection of the opportunity for a hearing before an independent hearing officer appointed by the Board.
6.2. Upon receipt of the Board's second rejection of the applicant's disability retirement application, the applicant has ninety (90) days within which to file a written request for an administrative appeal before an independent hearing officer appointed by the Board. An applicant who fails to request a timely appeal waives any further administrative appeal rights.
6.3. The Board shall not hear appeals directly, but shall appoint hearing officers who will make complete and independent reviews of the disability applications and then make recommendations to the Board. All hearing officers appointed by the Board must be attorneys licensed to practice law in the State of West Virginia.
6.3.1. Within sixty (60) days of receipt of the notice from the applicant of the desire to appeal the decision, the hearing officer shall schedule a time and place to hear the appeal and give the applicant ten (10) business days written notice of the hearing.
6.3.2. At the hearing, the applicant may appear pro se or may be represented by counsel or a lay representative. Counsel for the Board may also appear at any hearing held pursuant to this rule. Witnesses or written evidence may be submitted by both parties.
6.3.3. The rules of evidence shall not strictly apply, and the applicant has the right to any and all relevant documents, subject to any confidentiality and disclosure limitations set forth in federal and state law, in the possession of the Consolidated Public Retirement Board.
6.3.4. The hearing officer may subpoena documents and witnesses if the information is relevant and reasonable in order for the hearing officer to make a recommendation on the appeal. The interests of justice and fair play shall guide procedure before the hearing officer.
6.3.5. The Board shall cause the certified court reporter to retain but not transcribe a stenographic recording of the hearing which is the official record of the hearing. Transcripts requested by the applicant prior to appeal to circuit court shall be at the applicant's expense, with the original provided to the hearing officer and a copy to the applicant. Upon appeal to a circuit court, the recording shall be transcribed at the Board's expense.
6.3.6. The hearing officer shall, within sixty (60) days of receiving all documents, prepare formal findings, stating the reasons for the findings, in clear language, and noting all medical and other evidence considered.
6.3.7. After proper notice, the hearing officer shall present the information at the next regular meeting of the Consolidated Public Retirement Board. The staff, on behalf of the Board, shall notify the applicant of the date, time, and place that the appeal will be acted upon by the Board.
6.4. The Board, in open session, shall then make a decision based on the recommendation of the hearing officer and accept the recommendation unless there is an abuse of discretion in finding or the finding is contrary to law. The Board staff and the applicant also have the right to propose a final order.
6.5. The Board's final decision shall be sent, by certified mail, to the applicant and his or her counsel.
W. Va. Code R. § 162-2-7 Other Appeals
7.1. Any other type of appeal other than for disability retirement benefits shall be considered by the staff of the Consolidated Public Retirement Board. If the Board's staff does not grant the request, the staff shall notify the applicant in writing stating the reasons for the denial and informing him or her of his or her right to appeal to the Board.
7.2. The applicant has ninety (90) days upon receipt of the written denial within which to file a written request for an administrative appeal. If the applicant appeals the decision of the staff, the staff shall refer the appeal to a hearing officer appointed by the Board.
7.2.1.Within sixty (60) days of the receipt of notice from the applicant of the desire to appeal the denial, the hearing officer shall schedule a time and place to hear the appeal and give the applicant ten (10) business days written notice of the hearing.
7.2.2. At any hearing conducted pursuant to this rule, the applicant may appear pro se, or may be represented by counsel or by a lay representative. Counsel for the Board may also appear at any hearing held pursuant to this rule. Witnesses or written evidence may be submitted by both parties.
7.2.3. The rules of evidence shall not strictly apply and the applicant has the right to any and all relevant documents in the possession of the Consolidated Public Retirement Board subject to any confidentiality or disclosure limitations set forth in federal or state law.
7.2.4. The hearing officer may subpoena documents and witnesses if the information is relevant and reasonable in order for the hearing officer to arrive at a finding of fact and to make a recommendation on the appeal. The interest of justice and fair play shall guide proceedings before the hearing officer.
7.2.5. The Board shall cause the certified court reporter to retain but not transcribe a stenographic recording of the hearing which is the official record of the hearing. Transcripts requested by the applicant prior to appeal to circuit court shall be at the applicant's expense, with the original provided to the hearing officer and a copy to the applicant. Upon appeal to circuit court, the recording shall be transcribed at the Board's expense.
7.2.6. The hearing officer shall within sixty (60) days of receiving all documents and evidentiary testimony, prepare formal findings of fact and conclusions of law, in which he or she states the reasons for his or her findings, and noting with specificity the evidence considered in reaching a recommendation.
7.2.7. Following written notice and tender of the hearing officer's recommended decision to all parties, the hearing officer shall present his or her recommended decision to the Board at its next regularly scheduled meeting. The staff of the Board shall notify the applicant and counsel for the Board of the date, time, and place of the Board's meeting during which the appeal and the recommended decision will be presented to the Board by the hearing officer. Any party has the right to submit, in writing, a proposed final order to the hearing officer for consideration prior to presentation of the matter to the Board.
7.3. The Board shall take action, in open session, on the recommendation of the hearing officer on any appeal held pursuant to this rule. Presentation of the matter shall be made by the hearing officer, and no additional oral argument is permitted.
7.3.1. The Board shall accept the recommendation of the hearing officer unless an abuse of discretion is found to have occurred, or unless the recommendation is found to be based upon an error in facts or contrary to law. The Board's final decision shall be sent, by certified mail, to the applicant and his or her counsel.
7.4. An applicant who fails to request a timely appeal waives any further administrative appeal rights.
W. Va. Code R. § 162-2-8 Appeal Denied
8.1. If an appeal is denied in whole or in part by the Board pursuant to sections 6 or 7 of this rule and a final decision is issued, an applicant may request a transcript of the appeal hearing, with the cost to be paid by the applicant. An individual aggrieved by a final decision of the Board has a right of appeal to the Circuit Court of Kanawha County pursuant to W. Va. Code §29A-5-4.
W. Va. Code R. § 162-2-9 Reconsideration of Final Order
9.1. The Board may reconsider a final order during the meeting in which it was approved or at the next scheduled Board meeting. If the Board votes to reconsider a final order at its next scheduled Board meeting, the Board will table any action on the final order and place the final order on its agenda for its next scheduled meeting and give the applicant and his or her counsel at least ten (10) days notice prior to the Board meeting.
W. Va. Code R. § 162-2-10 Annual Statement
10.1. The Board may require a disability benefit recipient awarded a disability retirement under the provisions of this rule to file an annual statement of earnings and any other financial information required by the Board. If a disability recipient refuses to file the statement or financial information as requested by the Board, the Board shall suspend the disability benefit until the statement or financial information is filed.
If the refusal continues for one (1) year, the Board shall terminate the recipient's right to the disability benefit.
W. Va. Code R. § 162-2-11 Errors
11.1. Each level of review is presumed to cure all errors in procedure of any prior level, and no right to remand to cure procedural errors exists, but each level of review shall make an independent determination upon the facts.
Series 03 Teachers' Defined Contribution Retirement System
W. Va. Code R. § 162-3-1 General
1.1. Scope. -- The scope of this Rule is the interpretation, administration and application of the Teachers' Defined Contribution Retirement System by the Board.
1.2. Authority. -- W. Va. Code §5-10D-1.
1.3. Filing Date. -- June 28, 2016.
1.4. Effective Date. -- June 28, 2016.
W. Va. Code R. § 162-3-2 Purpose
2.1. General. The purpose of the Teachers' Defined Contribution Retirement System is to provide a mandatory defined contribution retirement program for all employees who did not select to transfer to the Teachers' Retirement System in accordance with W. Va. Code §18-7D et seq. The Teachers' Defined Contribution Retirement System is fully funded on a current basis from employer and member contributions.
2.2. Exclusive benefit. The Teachers' Defined Contribution Retirement System has been created for the exclusive benefit of the members and their beneficiaries subject to the limitations in W. Va. Code
§18-7B-11 with respect to forfeiture. The Board shall interpret the system in a manner consistent with this intent and with the intention that the System satisfy the applicable provisions of Section 401 and Section 501 of the Internal Revenue Code of 1986, as amended, with respect to governmental plans.
W. Va. Code R. § 162-3-3 Definitions
3.1. For the purposes of the Teachers' Defined Contribution Retirement System, the following definitions apply, unless the context clearly requires a different meaning:
3.1.1. "Accrued benefit" is the amount credited to the member's annuity account.
3.1.2. "Annuity account" means a two-part account established for each individual member to record the deposit of: (1) member contributions and interest, dividends or other accumulations credited on the contributions to the account on behalf of the member (the "member account"); and (2) employer contributions and interest, dividends or other accumulations credited on the contributions to the account on behalf of the member (the "employer account").
3.1.3. "Beneficiary" means any person, estate or trust who by operation of law, or under the terms of the System, or otherwise, is entitled to receive any accrued benefit of a member under the System. A "designated beneficiary" means any individual designated or determined in accordance with this Rule, except that it shall not include any person who becomes a beneficiary by virtue of the law of inheritance or intestate succession.
3.1.4. "Cash-out" is a distribution of an accrued benefit to a former member which meets the following requirements: (1) the former member has voluntarily elected to receive the distribution of contributions from the system and (2) the distribution is made on account of the employee's termination of participation in the system.
3.1.5. "Compensation" refers to all compensation paid during the plan year as wages, salary or commissions by a participating employer to a member including overtime payments and amounts contributed to any welfare benefit plans maintained by the employer or by the State through a reduction in the member's compensation which pursuant to Internal Revenue Code §125 are not included in the gross income of the member for the year in which the amounts are contributed. However, compensation does not include the value of accrued unused sick leave or vacation leave. Compensation also does not include all contributions by the employer to the plan and to any other retirement or deferred compensation plan maintained by the employer or amounts exceeding the provisions of W. Va. Code §5-10D-7.
3.1.6. "Employment day" means a day a member is paid compensation for full-time service by a participating employer.
3.1.7. "Forfeiture" means the employer contributions and investment income on such contributions held in the suspension account created pursuant to W. Va. Code §18-7B-11 that have been irrevocably forfeited by reason of lapse of time.
3.1.8. "Leave of absence" refers to that period during which the member is absent from his or her employment without compensation and for which the employer has determined the member to be on a "leave of absence" instead of having separated from his or her employment.
3.1.9. "Participating employer" means any employer who employed or employs a member of the Teachers' Defined Contribution Retirement System.
3.1.10. "Permanent and total disability" means a mental or physical incapacity from service as a teacher or other position requiring a member to be absent from employment service for at least six (6) months prior to the member's termination date. Provided, that the incapacity is shown by a physician or physicians selected by the Board in accordance with this Rule.
3.1.11. "Plan year" means the period commencing on the first day of July and ending on the thirtieth day of June, the following year.
3.1.12. "Public schools" means all publicly supported schools, including normal schools, colleges and universities in the State.
3.1.13. "Regularly employed for full-time service" means employment in a regular position or job throughout the employment term regardless of the numbers of hours worked or the method of pay.
3.1.14. "Retirement age" means at least fifty-five (55) years of age for the member.
3.1.15. "State" means the State of West Virginia, its political subdivisions and state agencies.
3.1.16. "Termination date" means the date on which the earliest of the following events occurs: (1) a member's retirement, (2) a member's termination of employment as a result of permanent and total disability, (3) a member's death or (4) a member's termination of employment for any other reason.
3.1.17. "Trust" means the trust created by State law pursuant to W. Va. Code §18-7B-1 et seq.
3.1.18. "Trust fund" consists of the employer contributions, member contributions, and money in any revenue sharing account, all of which are invested in various investment options and are held by the Teachers' Defined Contribution Retirement System, with income or appreciation on the investments.
W. Va. Code R. § 162-3-4 Contributions to the Trust
4.1. Member contributions. Each employee who is a member of the Teachers' Defined Contribution Retirement System shall contribute four and one-half percent (4 1/2%) of his or her gross compensation.
Member contributions shall be picked up by each participating employer pursuant to W. Va. Code §5-10C-1 et seq. The Teachers' Defined Contribution Retirement System is subject to United States Internal Revenue Code §414(h)(2) [25 U.S.C. §414(h)(2)]. Each participating employer shall cause the member contributions to be paid to the Teachers' Defined Contribution Retirement System within fifteen (15) days of the pay date.
Any participating employer who fails to make any payment due the Teachers' Defined Contribution Retirement System by the fifteenth (15th) day following the pay date shall be considered delinquent and may be required to pay earnings lost on the member contributions at the actuarial rate of return determined for the Teachers' Retirement System. Accrual of the loss in earnings owed by the delinquent employer commences after the fifteenth (15th) day following the pay date in which the contributions are due and continues until receipt of the delinquent member contributions.
4.2. Employer contributions. Each participating employer shall annually make a contribution equal to seven and one-half percent (7 1/2%) of each member's gross compensation. A pro-rata share of the employer contributions shall be paid upon each date that a member contribution is made. The employer contribution shall be immediately credited to the annuity account established in the name of the member and held in trust for the benefit of the member. Each participating employer has a fiduciary duty to its employees to insure that the employer contributions are timely made to the Board. In the event that any employer contribution is not timely made, it is a State debt, contracted as a deficit in State revenues, to be accorded preferred status over other expenditures. Each participating employer shall cause the employer contributions to be paid to the Teachers' Defined Contribution Retirement System within fifteen (15) days of the pay date. Any participating employer who fails to make any payment due the Teachers' Defined Contribution Retirement System by the fifteenth (15th) day following the pay date shall be considered delinquent and may be required to pay earnings lost on the employer contributions at the actuarial rate of return determined for the Teachers'
Retirement System. Accrual of the loss in earnings owed by the delinquent employer commences after the fifteenth (15th) day following the pay date in which the contributions are due and continues until receipt of the delinquent employer contributions.
W. Va. Code R. § 162-3-5 Administration of Annuity Accounts
5.1. Investments. The amounts allocated to the employer account and member account of each member's annuity account shall be invested by the Board in one or more investment options elected by the member.
Each member may elect to have the balance accumulated in his or her annuity account invested by the Board in one or more investment options made available by the Board. The investment options may include: (1) a money market fund; (2) a bond fund; (3) a stock fund, and (4) other investment options offered by the Board. If the member elects more than one investment option, the member's and employer's contributions shall be allocated to each investment option in increments of one percent (1%) of the total contribution.
5.2. Investment in a trust fund. The Board may cause all contributions paid to it by the employer and member, and any income earned on the contributions without distinction between principal and income, to be held and administered in a trust fund. The Board may adopt reasonable rules for the administration of the common fund and for the determination of the proportionate interest of each member in the fund.
5.3. Evaluation of assets and allocation of changes. The Board shall evaluate the assets of each investment fund or other investment options at the close of each business day at their fair market value. The Board shall adjust each member's annuity account, including any employer account held in suspense, for any net gain or net loss in the value of the assets of the fund.
5.4. Limitations on allocations to each member. Notwithstanding any other provisions of the Teachers'
Defined Contribution Retirement System, except the provisions of W. Va. Code §18-7B-13, the maximum annual addition for any plan year which can be made to an annuity account of an individual member is the amount specified and indexed in the United States Internal Revenue Code §415(c)(1) as in effect for the plan year. In no event shall the annual additions to any member's annuity account exceed the limitations set forth in this subsection. The annual addition for a plan year which is the limitation year for the purpose of U. S.
Internal Revenue Code §415, under this and any other defined contribution type plans maintained by the State or the employer is the sum of the following:
5.4.1. Employer contributions;
5.4.2. Forfeitures (if applicable); and
5.4.3. Member contributions.
5.5. Designation of beneficiary. Each member may designate from time to time in writing one or more beneficiaries, who will receive the member's vested account balance in the event of the member's death. If the member dies without having made a beneficiary designation, the Board shall distribute the benefits to the member's estate.
W. Va. Code R. § 162-3-6 Vesting
6.1. Member contributions one hundred percent (100%) vested. The member's portion of the annuity account is comprised of member contributions, reinstatements, rollover contributions, and earnings and is one hundred percent (100%) vested at all times.
6.2. Vesting employer contributions on death or permanent and total disability. If a member's employment with a participating employer is terminated on account of death or permanent and total disability, one hundred percent (100%) of the employer contributions, with earnings on such contributions, in the member's annuity account, is non-forfeitable and immediately vests.
6.3. Employer account vesting on termination. If a member's employment is terminated, except for death or permanent and total disability, the following percentages in the employer portion of the member's annuity account vest and the Board shall distribute to or set aside the money for the member in accordance with
Section 7 of this Rule.
Total Years of Employment Service for Vesting VESTED PERCENTAGE OF EMPLOYER CONTRIBUTIONS AND EARNINGS THEREON At least 6 completed years, but less than 9 33 1/3% At least 9 completed years, but less than 12 66 2/3% At least 12 completed years 100%
6.3.1. The employer's portion of the member's annuity account of a terminated member which is not vested as provided in this subsection shall be retained by the Board in a suspension account in accordance with W. Va. Code §18-7B-11.
6.4. Partial vesting. A member who has less than two hundred (200) employment days during a plan year is entitled to partial vesting credit for purposes of computing years of employment service based upon the actual number of employment days during the plan year. For example, if a member was a regular employee of a participating employer, but only had one hundred and fifty (150) employment days during the plan year, that individual would be given three-fourths (3/4) of one (1) year employment service (150/200 = 0.750).
6.4.1. Maximum yearly service credit. For purposes of vesting in the Teachers' Defined Contribution Retirement System, no member shall receive more than one (1) year total service credit for any fiscal year due to service being transferred from the Teachers' Defined Benefit Retirement System to the Teachers' Defined Contribution Retirement System which under the Rules of both systems could conceivably entitle him or her to more than one (1) year service credit.
6.5. Leave of absence. The Board shall consider as an approved leave of absence any leave approved by the member's participating employer, pursuant to a written policy of the participating employer, provided that the employer provides the Board on an annual basis, or a more frequent basis if directed by the Board, a list of all members who are currently on an approved leave of absence.
6.6. Reemployment with participating employer. A member of the Teachers' Defined Contribution Retirement System who terminates employment with a participating employer and becomes reemployed with a participating employer retains his or her previous years of employment service for purposes of vesting.
6.7. Workers' compensation. Members who are receiving workers' compensation benefits and who are not contributing to the Teachers' Defined Contribution Retirement System shall not receive any vesting credit until such time as they return to active employment and commence contributing to the System. The Board shall consider a member receiving workers' compensation as being on approved leave of absence therefore allowing the member's reentry into the system.
W. Va. Code R. § 162-3-7 Distribution of Benefits
7.1. Method of distribution of vested member annuity account. A terminated member shall elect in writing to receive a distribution of the vested portion of his or her annuity account in one of the following forms, to the extent not inconsistent with the applicable provisions of the Internal Revenue Code or W. Va.
Code §18-7B-12a: (1) a lump-sum distribution; (2) periodic payments as selected by the member over a period of no less than three (3) years; (3) a rollover; or (4) any other annuity forms approved by the Board.
7.2. Time of distribution. The following provisions applicable to the timing of distributions are subject to the provisions of W. Va. Code §18-7B-12a.
7.2.1. If the member dies, terminates his or her employment with a participating employer, or has been certified to be permanently and totally disabled, in accordance with the provisions of the System, then the Board shall make the first periodic or lump-sum payment upon written election of the member or beneficiary, on a form approved by the Board, of the intention to receive a distribution of benefits.
7.2.2. Distribution shall commence by the first day of April following the later of: (1) the calendar year in which the member attains the age of seventy and one-half (70 1/2), or (2) the calendar year in which the member retires or otherwise ceases employment with the participating employer.
7.2.3. If the member dies after distributions to him or her has begun but before his or her entire accrued benefit has been distributed to him or her, the Board shall distribute the remaining portion of his or her accrued benefit from the Teachers' Defined Contribution Retirement System at least as rapidly as under the method of distribution previously established for him or her, if that method is irrevocable at the time of his or her death.
7.2.4. If the member dies before full distribution of his or her interest commences, then distributions of the member's remaining accrued benefit shall be completed by the end of the fifth (5th) calendar year following the year of his or her death. However, installment distributions to a designated beneficiary which begin not later than the end of the calendar year following the death of the member comply with this five (5) year distribution requirement (even though the installment payments are not completed within five (5) years of the member's death) if the distributions are made at a rate which is not longer than that calculated (by using the rules set forth in the United States Internal Revenue Code Section 401(a)(9) and the corresponding Treasury Regulations §1.401(a)(9)) to provide payment of all member's accrued benefit during the anticipated life expectancy of the designated beneficiary. Provided that if the designated beneficiary is the surviving spouse of the deceased member, the distributions can begin as long after the member's death as the date on which the deceased member would have attained the age of seventy and one-half (70 1/2). If the surviving spouse dies before distributions to the surviving spouse have begun, the Teachers' Defined Contribution Retirement System may make distributions to the beneficiary at the times as described in this
Section as it would have if the surviving spouse had been a deceased member.
7.2.5. For purposes of this Section, any amount paid to a child of a member will be treated as if it had been paid to the surviving spouse of the member if the remaining amount becomes payable to the surviving spouse when the child reaches the age of majority.
7.3. Distribution after death of beneficiary. In the event of the death of a beneficiary (or a contingent beneficiary, if applicable) prior to the completion of payments of benefits due the beneficiary from the plan, the full amount of the unpaid benefits shall immediately vest in and become the property of the estate of the beneficiary.
7.4. Suspense account for terminated members. If a member has terminated his or her employment but his or her employer account is not one hundred percent (100%) vested, all non-vested funds in his or her employer account shall be held in suspense until the happening of the earliest of the following: (1) the Teachers' Defined Contribution Retirement System is notified the member returns to employment with a participating employer; or (2) the member fails to return to employment with a participating employer within five (5) years of the date of termination. At that time the member's employer account shall cease to be held in suspense. If a member has returned to employment with a participating employer within five (5) years of the date of termination, and providing any distribution has been repaid, his or her employer account which has been held in suspense shall be restored to his or her credit. If the member does not return to employment with a participating employer within five (5) years, the non-vested portion of the employer account held in suspense shall be irrevocably forfeited and reallocated in accordance with W. Va. Code §18-7B-11 for the plan year in which the forfeiture occurs. The suspension account shall share in any appreciation, depreciation or net income or loss as if it were not in suspense.
7.4.1. The Board may permit or require any participating employer who owes outstanding employer contributions, delinquency fees or correction of error interest to the Teachers' Defined Contribution Retirement System to use irrevocably forfeited amounts from the participating employer's suspense account to offset the delinquent or owed amounts. Using irrevocably forfeited amounts pursuant to the authority of this subsection will reduce the employer contributions in future years as required by W. Va. Code §18-7B-11.
7.5. Unable to locate member or beneficiary. If the Board is unable to locate the member or beneficiary to whom benefits are to be distributed and the Board staff has exercised due diligence to find him or her, including sending notification by certified or registered mail to his or her last known address, the Board shall allocate the member's accrued benefits to the default fund. All the funds shall be held in the default fund for distribution to the member or beneficiary when located.
7.6. Repayment of cash-out. If a member receives a cash-out distribution from the plan as a result of ceasing to be an employee, he or she may repay to the plan the cash-out distribution he or she has received from it, in full.
W. Va. Code R. § 162-3-8 Termination
8.1. One hundred percent (100%) vesting on termination of plan. Upon termination or partial termination of the Teachers' Defined Contribution Retirement System and Trust by formal action of the State or for any other reason, or if employer contributions are permanently discontinued for any reason, there shall be vested one hundred percent (100%) in each member directly affected by that action the amount allocated to the annuity account of each member, and the Board shall make payment to the member in cash as soon as practicable after liquidation of the assets of the trust.
8.2. Plan merger of consolidation. In the case of any merger or consolidation with, or transfer of any assets or liability to, any other plan, each member in this plan is entitled to receive (if the surviving plan is then terminated) a benefit immediately after the merger, consolidation or transfer which is equal to or greater than the benefit he or she would have been entitled to receive immediately before the merger, consolidation or transfer (if this plan had terminated).
W. Va. Code R. § 162-3-9 Refund of Erroneous Contributions
9.1. To the extent permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and the guidance issued thereunder, the Teachers' Defined Contribution Retirement System may refund any erroneous contributions made to the Teachers' Defined Contribution Retirement System upon proper transmittals by Board's staff. The Board's staff may request the refund if it determines it is appropriate and permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and guidance issued thereunder, after receiving from the executive officer of the payroll records of a participating employer an explanation of the reason for making the erroneous contributions and the amount of the erroneous contributions.
W. Va. Code R. § 162-3-10 Miscellaneous
10.1. Laws of the State of West Virginia to apply. This plan shall be construed according to the laws of the State of West Virginia to the extent federal laws do not control.
10.2. Filing tax returns and reports. The Board, or its duly appointed designee, shall prepare, or cause to be prepared, all tax returns, reports and related documents, except as otherwise specifically provided.
Series 04 Teachers' Retirement System
W. Va. Code R. § 162-4-1 General
1.1. Scope. - This rule establishes the eligibility for membership and the general administrative procedures in the Teachers' Retirement System.
1.2. Authority. - W. Va. Code §5-10D-1.
1.3. Filing Date. - June 28, 2016.
1.4. Effective Date. - June 28, 2016.
W. Va. Code R. § 162-4-2 Definitions
2.1. "Accumulated contributions" means all employee retirement deductions from the gross salary of a member, plus regular interest.
2.2. "Board" means the West Virginia Consolidated Public Retirement Board.
2.3. "Disabled" means the inability to substantially do all the material acts necessary in the performance of assigned duties, by reason of a total and likely to be permanent physical or mental impairment, in the usual or customary manner for a period of six (6) months beginning with the last day of service.
2.4. "Gross salary" means the fixed annual or periodic cash wages paid by a participating public employer to a member for performing duties for the participating public employer for which the member was hired. Gross salary shall also include retroactive payments made to a member to correct a clerical error, or pursuant to a court order or final order of an administrative agency charged with enforcing federal or state law pertaining to the member's rights to employment or wages, with all such retroactive salary payments to be allocated to and deemed paid in the periods in which the work was or would have been done. Gross salary shall not include lump sum payments for bonuses, early retirement incentives, severance pay, or any other fringe benefit of any kind including, but not limited to, transportation allowances, automobiles or automobile allowances, or lump sum payments for unused, accrued leave of any type or character.
2.5. "Money purchase annuity" means that portion of total monthly benefits from the member's contributions plus state matching plus interest, times the actuarial factor for attained age.
2.6. "Monthly benefit" means the total monthly payment, including a member's money purchase annuity, received by a retiree based upon the option chosen.
2.7. "Option" means the form of benefit payments to the member and the member's beneficiary which shall be the actuarial equivalent of the normal benefit payable to the member only.
2.8. "Prior service" means service performed before the date the member became eligible to make contributions.
2.9. "Retirant" means any member who commences an annuity payable by the retirement system.
2.10. "Retirement system" means the Teachers' Retirement System as provided in West Virginia Code
§18-7A-1 et seq.
2.11. "Schools" means all educational units supported by moneys appropriated by the West Virginia Legislature.
2.12. "Substitute teacher" means any teacher who is assigned (1) to fill the temporary absence of any teacher or for the unexpired school term made vacant by the resignation, transfer, death, suspension or dismissal of any teacher, (2) to fill a teaching position of a regular teacher on leave of absence or (3) to perform instructional services of any teacher who is authorized by law to be absent from class with loss of pay, providing the absence is approved by the Board of Education in accordance with the law. The substitute shall be a duly certified teacher.
W. Va. Code R. § 162-4-3 Membership Eligibility
3.1. Membership eligibility in this system closed as of July 1, 1991. Provided, That membership eligibility in this system is reopened for any individual who becomes a member of the Teachers' Retirement System for the first time on or after July 1, 2005, or any individual who becomes a member of the Teachers'
Retirement System as a result of the voluntary transfer contemplated in W. Va. Code §18-7D-1 et seq.
3.2. Membership ceases:
3.2.1. Upon death of the member;
3.2.2. Upon the effective retirement date of the member;
3.2.3. Upon withdrawal of accumulated contributions by the member;
3.2.4. Upon transfer of assets to the West Virginia Teachers' Defined Contribution Retirement System; or
3.2.5. Upon the date, if any, when after the cessation of service, the outstanding loan balance of any loan obtained by a member, plus accrued interest, equals or exceeds the member's accumulated contributions.
3.3. Beneficiary:
3.3.1. Each member may name a refund or surviving beneficiary;
3.3.2. A member may change his or her beneficiary prior to retirement by filing a proper record with the Board;
3.3.3. Beneficiary changes after retirement are subject to the terms of the retirement option chosen.
3.4. Substitute teachers, non-teaching substitutes and temporary employees are not eligible for membership in the Teachers' Retirement System, except as provided in W. Va. Code §18A-4-15.
W. Va. Code R. § 162-4-4 Service Credit
4.1. One year service credit. A member of the system shall receive one year of service credit for each school term or fiscal year completed. The Board shall determine in each case what part of a year taught constitutes a year of credit.
4.1.1. Summer teaching shall not generate additional service credit when the time taught is included in the year of service credit already granted and the member's salary is subject to regular contributions and inclusion in the member's fiscal year salary.
4.2. Prior service credit. The Board shall grant the member prior service as follows:
4.2.1. Teachers and professional employees as distinguished from non-teachers for service prior to July 1, 1941;
4.2.2. Non-teachers and former teachers for service prior to March 9, 1945;
4.2.3. Financial secretaries and county agents, agriculture extension at West Virginia University except secretaries and clerks, for service prior to March 9, 1945;
4.2.4. School nurses for services prior to June 30, 1945;
4.2.5. Non-teaching employees (except cooks) for service prior to July 1, 1947;
4.2.6. Employees of the board of school finance for service prior to October 1, 1952, if they were formerly employed as a teacher in the public school system;
4.2.7. Employees of the Department of Education, if they are classified as a present teacher, for service rendered prior to November 4, 1958; and
4.2.8. Cooks for service rendered prior to July 1, 1962, or according to the date on which the employer became responsible for the salary of the employee.
4.3. Non-teaching assignment. Any member placed on a paid special assignment after November 1, 1978, (such as a sabbatical) by an employer is considered regularly employed for the purpose of this Rule.
The employer shall collect and remit to the Board the member's contributions to ensure proper credit for a non-teaching assignment.
4.4. Credit for leave time. Any member shall be considered employed as long as the member remains on the payroll of any employer and contributes on salary earned. For purposes of determining service credit, the Board shall count annual or vacation leave or sick leave paid by the employer as service credit.
4.4.1. When computing service credit for annual or personal leave, the last day of service shall be verified as last day paid for leave. The effective date of retirement is the first day of the following month.
4.5. Maximum yearly service credit. Under no circumstances shall a member of the system receive more than one year of service credit for any one fiscal year even though he or she may have reciprocal service with both the Public Employees Retirement System and the Teachers' Retirement System or service with both the Teachers' Defined Contribution Retirement System and the Teachers' Retirement System, which under the Rules of both systems could conceivably entitle him or her to more than one year service credit.
4.6. Service credit. Fractional part of year. The Board shall give fractional credit for service as a teacher for a teacher who taught parts of school terms and who taught at least half-time throughout the term.
The fractional parts may be combined to form one (1) year's credits and all fractions shall be included in the final statement of total credits.
4.6.1. The Board shall give members absent from service for more than one month in a school year a fractional credit for service that year. The numerator of the fraction shall be the number of days paid and the denominator shall be the number of contract days, not to exceed two hundred and forty (240) days, minus twenty (20).
4.6.2. If a member renegotiates his or her contract term during the fiscal year, the Board shall prorate the twenty days referenced in subdivision 4.6.1. of this Rule and apply the prorated days to each contract term.
4.7. When service verification records or other legal documents are not available and the Board has contributions credited to the account of a member for that service, the service may be proven by affidavits from two (2) persons with knowledge of the employment; official minutes; education directories or other records showing proof of employment.
4.8. Public employee service. The Board shall grant prior service credit to a member for service in a position which would not be covered by the Public Employees Retirement System if the service was rendered prior to July 1, 1947, and the member never became a member of the Public Employees Retirement System.
4.8.1. In giving credit for service as a public employee, the Board shall consider the service "non-teaching service" as defined in W. Va. Code §18-7A-1 et seq.
4.8.2. A member shall have completed more than three (3) years of contributory service before any service from another department or agency of West Virginia covered by the Public Employees Retirement System may be transferred to the Teachers' Retirement System.
4.8.3. Members transferring service from another department or agency to the West Virginia Teachers' Retirement System shall make payments for services performed between July 1, 1947, and the date the member became a contributing member of the Public Employees Retirement System.
4.8.4. When transferring Public Employees Retirement System service which was performed prior to the establishment of the Public Employees Retirement System and for which salaries are not available, the Board shall charge contributions equal to the maximum contributions in effect at the time the services were performed.
4.9. Credit for military service.
4.9.1. Pursuant to the provisions of W. Va. Code §18-7A-17a service credit with respect to qualified military service shall be provided by the Board in accordance with Section 414(u) of the United States Internal Revenue Code.
4.9.2. Unless otherwise required by the provisions of W. Va. Code §18-7A-17a, twenty-eight (28) days in the Armed Services is considered one month of service as a "member".
4.9.3. Not more than one (1) year shall be credited for each year of service in the Armed Forces.
4.9.4. Members who are eligible for fractional credit for military service and for actual teaching within the same fiscal year shall receive credit in the following order of preference:
4.9.4.a. Credit for actual teaching; and
4.9.4.b. Military service credit.
4.9.5. Subject to the provisions of W. Va. Code §18-7A-17a, military service cannot be duplicated by the Teachers' Retirement System when it has been credited by an out-of-state Teachers' Retirement System or by any of the retirement systems administered by the Board.
4.10. Out-of-state service credit. The Board shall grant out-of-state service credit for service as a teacher performed while in the employment of federal government, or a state or territory of the United States, or a governmental subdivision of that state or territory if the member pays to the Retirement System double the amount he or she contributed during the first full year of current employment performed in West Virginia following the out-of-state service to be purchased, plus interest at a rate to be determined by the Board from the date of the first full year of current employment to the date of payment times the number of years for which credit is granted.
4.10.1. Any out-of-state service that is fully vested, eligible to be fully vested without further service or from which the member is currently receiving benefits is not subject to purchase.
4.11. Individual payments. Unless provided for by specific legislation or prohibited by law, payments, other than loans, due the system may be paid in the following manner:
4.11.1. Payment in full prior to retirement; or
4.11.2. By borrowing from the individual's account. Provided, That any teacher or non-teacher who becomes a member of the Teachers' Retirement System for the first time on or after July 1, 2005, is not eligible to borrow from his or her individual account.
4.12. Conversion of accrued unused sick and annual leave. The Board shall permit conversion of accrued unused sick and annual leave only as follows:
4.12.1. Conversion privilege. The Board shall permit a member, who is a participating employee under the West Virginia Public Employees Insurance Act at the time of retirement, to convert accrued unused sick and annual leave, standing to the credit of that member with the member's last employer, to service credit upon the basis permitted by W. Va. Code §5-16-13(f) and (m).
4.12.2. Calculation of conversion. The conversion of accrued unused sick and annual leave shall be based on the average annual length of a member's actual contract status over the entirety of the member's employment history. The calculation shall treat the accrued unused sick and annual leave as having been accrued equally over the entirety of the member's employment history, and shall be calculated as follows:
4.12.2.a. The number of days of actual accrued unused sick and annual leave shall be multiplied by two;
4.12.2.b. The number of months in each contract period shall be added and the sum thereby obtained divided by the number of contract periods to obtain the average monthly length of each year of employment;
4.12.2.c. The result of the calculation obtained in paragraph 4.12.2.b. of this subdivision shall be multiplied by twenty to obtain the number of average days for each year of employment;
4.12.2.d. The Board shall subtract twenty from the result of the calculation obtained in paragraph
4.12.2.c. of this subdivision to adjust for the provisions of W. Va. Code §18-7A-17; and
4.12.2.e. The result of the calculation obtained in paragraph 4.12.2.a. shall be divided by the result of the calculation obtained in paragraph 4.12.2.d. of this subdivision, which quotient shall be the additional service credit in years to which a member is entitled as a result of the conversion.
W. Va. Code R. § 162-4-5 Monthly Benefits
5.1. Monthly benefit options. Members who make contributions to the Retirement System, who qualify for benefits because of age, disability or service, shall select one of the following options, subject to the provisions of W. Va. Code §18-7A-1 et seq .:
5.1.1. Straight Life Annuity. Monthly benefits for the lifetime of the retirant. The retirant's death terminates this option. In the event of the retirant's death before the total benefits received equal the member's accumulated contributions at retirement, the plan shall pay a sum equal to the balance of the remaining accumulated contributions to the named beneficiary or the estate.
5.1.2. 100% Joint & Survivor Annuity. Monthly benefits payable for the lifetime of the retirant.
If the retirant dies prior to the beneficiary, the monthly benefit would be continued in the same amount to the beneficiary for the lifetime of the beneficiary. If the beneficiary dies prior to the retirant, the monthly benefit would be continued in the same amount to the retirant for the lifetime of the retirant.
5.1.3. 50% Joint & Survivor Annuity. Monthly benefits payable for the lifetime of the retirant. If the retirant dies prior to the beneficiary, the monthly benefit would be continued for half the amount to the beneficiary for the lifetime of the beneficiary. If the beneficiary dies prior to the retirant, the monthly benefit would be continued in the same amount to the retirant for the lifetime of the retirant.
5.1.4. Ten Year Certain & Life Annuity. Monthly benefits payable for the lifetime of the retirant.
If the retirant dies before having received a total of one hundred twenty (120) payments, the balance of payments continues to the retirant's named beneficiary or contingent beneficiary, if living; otherwise, the plan shall pay the present value of the payments to the retirant's estate.
5.2. Effective Retirement Date. A retirant's effective retirement date is the first day of the month following termination of employment, retirement eligibility and the Retirement System's receipt of a completed retirement application: Provided, That any member who terminates employment, has a break in service prior to retirement and submits his or her retirement application at a date after he or she meets retirement eligibility may have an effective retirement date retroactive no more than four (4) months from the first day of the month following the Retirement System's receipt of the completed retirement application as provided in W. Va. Code §18-7A-26.
5.3. Payment of monthly benefit. The Board shall pay all monthly benefits in twelve (12) monthly payments, with fractions of a cent considered a cent.
5.3.1. When an application for regular, deferred or early retirement has been submitted by a member who has met all the eligibility requirements and who dies before the application is processed by the Board, the Board shall process the application as though the applicant were still alive.
5.4. Option chosen final. When the choice of an option has been made, that choice is final and cannot after that date be changed, except as provided in W. Va. Code §18-7A-26 and §18-7A-28. A beneficiary cannot affect or change the option chosen by the member.
5.5. Change in monthly benefit. A retirant may submit new information at any time for the Board's consideration. Upon the Board's acceptance of the new data, the Board shall change the monthly benefit accordingly effective the first day of the following month.
W. Va. Code R. § 162-4-6 Retirement
6.1. A member's active membership ceases upon the retirant's effective retirement date and the status of a retirant may only be affected by an action of the Board.
6.1.1. The Board shall, if requested by the retirant or beneficiary, make those withholdings from the monthly benefit that are necessary to provide for the continuance of the insurance program carried by the member with the West Virginia Public Employees Insurance Agency.
6.1.2. The Board shall, if requested by the retirant or beneficiary or if required by law, make those withholdings from the monthly benefit that are necessary to pay federal withholding taxes.
6.1.3. The Board shall furnish, as required by state and federal law and regulations, those forms and reports related to the retirement annuity necessary for the retirant or beneficiary to comply with the laws and regulations.
6.2. Post retirement employment. Any retirant who accepts employment by a participating employer, other than as a college teacher, for a relatively short period (no more than a one hundred-forty (140) day contract) who is not considered in any way a permanent or regular employee is considered a temporary, parttime or substitute employee and shall continue to receive his or her normal monthly benefit during the temporary employment. The days may be consecutive. However, if the allowed number of employment days is exceeded, the retirant shall not receive a prior service allowance for each month during which an excess day is worked, for the balance of that fiscal year.
6.2.1. A retirant may teach college on a non-contract basis less than seven (7) hours of college credits per semester without a loss of benefits. The Board shall discontinue the payment of the prior service allowance to such retirants who teach seven (7) or more college credits hours per semester, with benefits being discontinued on the first day of the month within which employment begins. Payment of the prior service allowance shall be resumed on the first day of the month succeeding the month within which the employment ceases.
6.2.2. Any employer employing a retirant, on any basis but a day-to-day basis, shall report that employment and conditions of employment to the Board within thirty (30) days of the employment.
6.2.3. For retirants not engaged in substitute teaching, each day a retiree is paid constitutes one day worked regardless of the number of hours or the amount of pay.
6.2.4. This section applies only to employers whose employees are participants in any pension or retirement operated directly or indirectly by the State of West Virginia.
6.2.5. A member who has been retired on the basis of disability is ineligible to return to substitute, full or part time service in the same occupation which he or she occupied immediately prior to his or her disability while continuing to receive disability retirement benefits. The Board shall discontinue the payment of disability retirement benefits to retirants who return to service within the same occupation. The Board shall discontinue payment on the first day of the month within which return to service occurs.
6.2.6. A disability retirant who is able to perform an occupation other than the occupation he or she occupied immediately prior to his or her disability may not receive a prior service allowance during any period he or she is employed in another occupation with a participating public employer. The Board shall discontinue the prior service allowance on the first day of the month within which employment begins. The Board shall resume payment of the prior service allowance on the first day of the month succeeding the month within which the employment ceases.
6.2.7. For retirants who return to employment as a substitute service employee, retirement contributions shall not be withheld from gross salary.
W. Va. Code R. § 162-4-7 Termination of Membership and Withdrawal
7.1. Termination of membership by death. If a member who dies was at least fifty (50) years of age and had twenty-five (25) years of service credit, the surviving spouse shall receive a 100% Joint & Survivor Annuity, provided the surviving spouse is designated as the member's sole refund beneficiary.
7.1.1. In the event the member's spouse does not qualify for an annuitized benefit at the death of the member, the member's beneficiary shall receive the sum prescribed in W. Va. Code §18-7A-23(b)(2).
7.2. Termination of membership by withdrawal prior to retirement. Any member who ceases covered service prior to retirement may terminate membership by making written application for refund of his or her accumulated contributions, subject to offset of any outstanding loan balance, plus accrued interest, pursuant to W. Va. Code §18-7A-34 and section 8 of this rule.
7.2.1. A member who has at least five (5) years of West Virginia service may be eligible to elect to receive a retirement annuity in accordance with the provisions of W. Va. Code §18-7A-23(a)(2). The member shall notify the Board in writing of the election.
7.3. Termination of membership when loan balance equals or exceeds accumulated contributions. A member who is no longer in covered service, but has not elected to terminate membership and withdraw his or her accumulated contributions, will have his or her membership terminated, and be considered to have requested a withdrawal prior to retirement, if and when the outstanding balance of any loan obtained by the member, plus accrued interest, equals or exceeds his or her accumulated contributions. The member's withdrawal shall be offset at the time of membership termination by the outstanding loan balance, pursuant to W. Va. Code §18-7A-34 and subsection 8.2. of this rule.
W. Va. Code R. § 162-4-8 Loan Repayment
8.1. In order to comply with the provisions of section 72(p) of the United States Internal Revenue Code of 1986 as required by W. Va. Code §18-7A-34, upon the retirement of a member including retirement for disability or withdrawal prior to retirement, any unpaid loan balance including any compounded interest due shall be repaid in full by the member prior to retirement or withdrawal in one of the following manners:
8.1.1. Payment in full with personal funds;
8.1.2. Offset by means of lump sum deduction from the member's refund of accumulated contributions; or
8.1.3. Offset by means of an actuarial reduction of the member's monthly benefit. The reduction of the member's monthly benefit shall be determined by deducting from the actuarial reserve for the accrued benefit the lump sum amount of the unpaid loan balance including any compounded interest due and then converting the remainder of the reserve to a monthly benefit payable in the form elected by the member.
8.2. If, after the cessation of covered service and prior to a withdrawal of accumulated contributions or the commencement of an annuity, a member's membership in the Retirement System terminates as a result of the outstanding balance of any loan obtained by the member, plus accrued interest, equaling or exceeding the member's accumulated contributions, then as of the date of the membership termination the member will be considered to have requested a distribution from the Retirement System in the form of a withdrawal of accumulated contributions, so that offset of the outstanding loan balance may be made at that time pursuant to W. Va. Code §18-7A-34.
8.3. If a member dies prior to full repayment of any unpaid loan balance including any compounded interest due, the loan amount due shall be offset in a lump sum from either the refund benefit payable to the refund beneficiary or the annuity or death benefit otherwise payable to the survivor beneficiary, whichever is applicable. The reduction of a survivor beneficiary's monthly benefit shall be determined by deducting from the actuarial reserve for the benefit the lump sum amount of the unpaid loan balance including any compounded interest due and then converting the remainder of the reserve to a monthly benefit payable in the applicable form.
8.4. If a member's refund of accumulated contributions or the actuarial reserve for the accrued benefit, whichever is applicable, is not sufficient to repay the unpaid loan balance in full including any compounded interest, the member (or the member's estate, if deceased) shall pay the amount necessary to fully repay the amount due.
8.5. All loan payments remitted by an employer are due the Retirement System within fifteen (15) days following the end of the calendar month for which the payment is made.
8.6. All loan payments remitted by personal payment, if permitted, are due the Retirement System by the last day of the calendar month for which the payment is due.
8.7. Any term used in this section shall have the same meaning as when used in a comparable context in the laws of the United States, unless a different meaning is clearly required.
W. Va. Code R. § 162-4-9 Refunds of Contributions Where an Annuity May Be Payable
9.1. Any member of the Retirement System who terminates employment after attaining age sixty (60) and who has five (5) or more years credited service and is otherwise entitled to an annuity payable from the Retirement System, is not eligible for a refund of contributions made to the Retirement System, but, in lieu thereof, is entitled to a monthly annuity payable pursuant to W. Va. Code §18-7A-25.
9.2. Any member of the Retirement System who terminates employment before attaining age sixty (60) and who is otherwise entitled to a regular annuity payable from the Retirement System at the time of his or her application for a refund, is not eligible for a refund of contributions made to the Retirement System, but, in lieu thereof, is entitled to a monthly annuity payable pursuant to W. Va. Code §18-7A-25.
9.3. Any member of the Retirement System who terminates employment before attaining age sixty (60) and who is not immediately entitled to a regular annuity payable from the Retirement System, even though he or she may be entitled to deferred benefits, is entitled to a refund of contributions upon written application filed with the Retirement System.
W. Va. Code R. § 162-4-10 Surcharge for Delinquency of Employer and Employee Contributions
10.1. Any participating employer who fails to make any payment due the Retirement System by the fifteenth (15th) day following the end of each calendar month in which the contributions are due may be required to pay the actuarial rate of interest lost on the total employee and employer contributions owed for each day the payment is delinquent. Accrual of the loss in earnings owed by the delinquent employer commences after the fifteenth (15th) day following the end of the calendar month in which the contributions are due and continues until receipt of the delinquent employee and employer contributions. Interest compounds daily and the minimum surcharge is fifty (50) dollars.
W. Va. Code R. § 162-4-11 Refund of Erroneous Contributions
11.1. To the extent permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and the guidance issued thereunder, the State Auditor and State Treasurer may refund from the funds of the Retirement System any erroneous contributions made to the System upon proper transmittals by the Board's staff. The Board's staff may request the refund if it determines it is appropriate and permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and guidance issued thereunder, after receiving from the executive officer of the payroll records of a participating employer an explanation of the reason for making the erroneous contributions and the amount of the erroneous contributions.
Series 05 Public Employees Retirement System
W. Va. Code R. § 162-5-1 General
1.1. Scope. -- This rule establishes the eligibility for membership and the general administrative procedures in the Public Employees Retirement System.
1.2. Authority. -- W. Va. Code §5-10D-1.
1.3. Filing Date. -- April 7, 2014.
1.4. Effective Date. -- May 8, 2014.
W. Va. Code R. § 162-5-2 Definitions
2.1. Board. - The West Virginia Consolidated Public Retirement Board.
2.2. Retirement System. - The West Virginia Public Employees Retirement System.
2.3. Full-time employment. - Employment of an employee by a participating public employer in a position which normally requires twelve (12) months per calendar year service and requires at least one thousand forty (1,040) hours per calendar year service in that position.
2.4. Increment Pay. - A specific monetary amount guaranteed to be regularly paid to a full-time employee.
2.5. Insurable Interest. - Insurable Interest means an interest that arises from the ties of blood or marriage to the member that will justify a reasonable expectation or advantage or benefit from the continuance of his or her life, or that relationship where a person has a legal claim on the member for service or support from the personal relationship between them, and where he or she has a reasonable right to expect some pecuniary advantage from the continuance of the life of the member.
2.6. Part-time employment. - Employment of an employee by a participating public employer in a position which requires less than one thousand forty (1,040) hours per calendar year service in that position.
W. Va. Code R. § 162-5-3 Interest
3.1. For the purpose of calculating interest to the members deposit fund, interest is four percent (4%) per annum computed annually.
W. Va. Code R. § 162-5-4 Service Credit
4.1. In crediting service to full-time employees paid on a salary basis:
4.1.a. A day of service means a day in which an employee works or has worked four (4) or more hours for the state or other participating public employer with pay.
4.1.b. The Board shall credit a member with a calendar month of service for any calendar month in which the employee received one-half or more of the employee’s normal monthly salary. For any calendar month in which the employee received less than one-half of his or her normal monthly salary, no service credit shall be credited to the employee in that calendar month.
4.1.c. The Board shall credit ten (10) or more months of service in a calendar year as a calendar year's service.
4.2. The Board shall credit any full-time employee hired and paid by a participating public employer on an hourly basis with one month's contributing service for each one hundred twenty (120) hours of work paid by his or her employer in a calendar year.
4.3. Total service credit when combined in any calendar year shall not exceed twelve (12) months under the Retirement System.
W. Va. Code R. § 162-5-5 Final Average Salary
5.1. In computing a member's final average salary, the Board shall follow the following procedure:
5.1.a. Compensation shall not be considered for any period for which service is not credited;
5.1.b. Increment pay received by an employee at the termination of employment shall be added to the compensation of the last month in which service is credited;
5.1.c. Increment pay received by an hourly employee at the termination of employment shall be added to the last month in which compensation is received.
5.1.d. The fifteen (15) years of credited service immediately preceding the date in which the member last received service credit with a participating public employer is the one hundred seventy nine (179) months of service preceding the last month of service before retirement;
5.1.e. The three (3) consecutive years of service for which the member’s compensation was the highest is the highest aggregate of his or her compensation for the thirty-six (36) consecutive months of service contained within the one hundred seventy nine (179) months of service, plus the last month of service determined in Subsection 5.1.d. of this Rule; and
5.1.f. The member’s final average salary shall be one-third (1/3) of the aggregate salary determined in Subsection 5.1.e. of this Rule.
W. Va. Code R. § 162-5-6 Refund of Erroneous Contributions
6.1. To the extent permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and the guidance issued thereunder, the State Auditor and State Treasurer may refund from the funds of the Retirement System any erroneous contributions made to the System upon proper transmittals by the Board’s staff. The Board’s staff may request the refund if it determines it is appropriate and permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and guidance issued thereunder, after receiving from the executive officer of the payroll records of a participating public employer an explanation of the reason for making the erroneous contributions and the amount of the erroneous contributions.
W. Va. Code R. § 162-5-7 Verification of Prior Service
7.1. The Board shall accept a certificate from the executive office or the payroll records of the employer as evidence of service prior to July 1, 1961, and as evidence of the date the public employer elected to become a member of the Retirement System.
7.2. The certificate and affidavits submitted by the employer shall show the member's full name (no initials), the name of the employer and the exact dates of the prior service.
7.3. Copies of W-2 Forms furnished an employee, bona fide copies of Internal Revenue Tax Returns, or records of Health, Education and Human Services or Internal Revenue Service which show gross earnings and the employee's and the employer's name shall be considered sufficient evidence of prior service.
7.4. In the event a member cannot obtain the certificate specified in subsections 7.1. and 7.2. of this Rule, the Board may grant prior service credit to the member furnishing two (2) affidavits to the Retirement System from two (2) credible persons who worked with the member during the periods stated or who had personal knowledge of the employment.
W. Va. Code R. § 162-5-8 Employer Contributions
8.1. Each participating public employer shall contribute nine and five-tenths percent (9.5%) of each compensation payment of all its employees who are members of the Public Employees Retirement System: Provided, That beginning on the first day of July, two thousand three, each participating public employer shall contribute ten and five-tenths percent (10.5%) of each compensation payment of all its employees who are members of the Public Employees Retirement System: Provided, however, That beginning on July 1, 2009, each participating public employer shall contribute eleven percent (11.0%) of each compensation payment of all its employees who are members of the Public Employees Retirement System: Provided further, That beginning on July 1, 2010, each participating public employer shall contribute twelve and five-tenths percent (12.5%) of each compensation payment of all its employees who are members of the Public Employees Retirement System: And provided further, That beginning on July 1, 2011, each participating public employer shall contribute fourteen and five-tenths percent (14.5%) of each compensation payment of all its employees who are members of the Public Employees Retirement System: And provided further, That beginning July 1, 2012, each participating public employer shall contribute fourteen percent (14%) of each compensation payment of all its employees who are members of the Public Employees Retirement System: And provided further, That beginning July 1, 2013, each participating public employer shall contribute fourteen and five-tenths percent (14.5%) of each compensation payment of all its employees who are members of the Public Employees Retirement System: And provided further, That beginning July 1, 2014, each participating public employer shall contribute fourteen percent (14.0%) of each compensation payment of all its employees who are members of the Public Employees Retirement System.
8.2. The sums are due the Public Employees Retirement System at the end of each calendar month in arrears and shall be paid not later than fifteen (15) days following the end of the calendar month. Each remittance shall be accompanied by a detailed summary of the sums withheld from the compensation of each member and the credited service each employee was entitled to for that month on forms, either paper or electronic, provided by the Public Employees Retirement System for that purpose.
W. Va. Code R. § 162-5-9 Employee Contributions
9.1. All participating public employers shall withhold four and five-tenths percent (4.5%) from the gross compensation of each member.
9.2. The sums withheld each calendar month are due the Retirement System at the end of each calendar month and shall be paid not later than fifteen (15) days following the end of each calendar month. Each remittance shall be made by check separate from the employer remittance and shall be made payable to the West Virginia Public Employees Retirement System. Each remittance shall be accompanied by a detailed summary of the sums withheld from the compensation of each employee and the credited service each employee was entitled to for that month on forms, either paper or electronic, provided by the Public Employees Retirement System for that purpose.
W. Va. Code R. § 162-5-10 Public Corporations
10.1. In order to be accepted for membership by the Board as a participating public employer, any separate corporation or instrumentality established by one or more counties, cities or towns, or any corporation or instrumentality supported in most part by counties, cities or towns, which by a three-fifths (3/5) majority vote of its governing body elects to join the Retirement System, the public corporation or instrumentality shall pass a resolution whereby it would allow the entity from which it derives its funds to deduct from its appropriations any sums the Board finds are subsequently delinquent, and for the entity to pay the delinquent funds to the Board. In the event the entity fails to pay the delinquent funds, then the Consolidated Public Retirement Board may collect the delinquent funds, as provided in W. Va. Code §5-10-33.
W. Va. Code R. § 162-5-11 Annuity Payment Age
11.1. For the purpose of calculating annuity benefits, the Board shall use the age at the nearest birthday to the effective date of retirement of the member, retirant or beneficiary.
W. Va. Code R. § 162-5-12 Prior Service on Reemployment
12.1. The Board shall credit each member of the Retirement System with prior service before July 1, 1961 if that member was in the employ of the State of West Virginia or other participating public employer within a period of thirty (30) years immediately preceding the date the State or other participating public employer became a participating public employer: Provided, however, That the member was reemployed after July 1, 1961 by a participating public employer or the State of West Virginia within fifteen (15) years subsequent to the date that the participating public employer elected to become a participating public employer in order to receive the prior service credit with no contributions required. If the member was reemployed after July 1, 1961, by a participating public employer or the State of West Virginia later than fifteen (15) years subsequent to the date the participating public employer elected to become a participating public employer, the member may purchase the prior service.
W. Va. Code R. § 162-5-13 Employee Membership in Retirement System
13.1. Employees of boards of education, colleges or universities. -- Any employee or person whose salary or compensation is paid in whole, or substantially in part, by any college, university, county board of education, State Department of Education, State Board of Education or State Teachers’ Retirement System is not entitled to membership in the West Virginia Public Employees Retirement System while employed in that capacity unless they are a member of a legislative body of a political subdivision that is a participating public employer as provided in W. Va. Code §5-10-17. Elected members of County Commissions, City Councils, Boards of Education, and Mayors are considered members of a legislative body of a political subdivision.
13.2. Employees of cooperative associations under direction of the Department of Agriculture. -- Employees of cooperative associations under the supervision of the Department of Agriculture, whose compensation is payable by the cooperative association are not entitled to membership in the Retirement System for that employment.
13.3. Registrars of Division of Vital Statistics. -- Those employees of counties furnishing statistical information to the Department of Health and Human Services whose job is considered full-time, or whose position is considered one which normally requires twelve (12) months of service and at least one thousand forty (1,040) hours per calendar year service in that position, shall become members of the Retirement System.
13.4. Deputy Commissioners of Delinquent and Forfeited Lands. -- The various Deputy Commissioners for Delinquent and Forfeited Lands, by reason of that appointment are not entitled to membership in the Retirement System for that employment.
13.5. Other retirement system membership. -- Any employee of a participating public employer who is eligible for membership in another retirement system of a political body is not eligible for membership in the West Virginia Public Employees Retirement System, except as provided in W. Va. Code §5-10-17.
W. Va. Code R. § 162-5-14 Participating After July 1, 1961
14.1. Employees of any participating public employer, including, but not limited to, hourly employees of the State Division of Highways who were eligible to participate July 1, 1961, shall not receive service credit during the period July 1, 1961, until the date on which the employee actually commenced participation by contribution to the Retirement System; however, during that period they shall be considered to be members of the Retirement System for all other purposes.
W. Va. Code R. § 162-5-15 Employer Termination of Membership
15.1. Once an employer, whether a municipality, county or public corporation, elects to participate in the Retirement System, the action of the municipality, county or public corporation is final and it may not, at a later date, elect to terminate its participation in the Retirement System.
W. Va. Code R. § 162-5-16 Approval of Applications for Voluntary Retirement and Death Annuities by the Board
16.1. Commencement of annuity. The State Auditor and State Treasurer may pay continuing monthly annuities to retirants, beneficiaries of retirants and beneficiaries of deceased members, after the Board has:
16.1.a. Approved the date of birth of the member, retirant or beneficiary;
16.1.b. Approved the prior and contributing service the member is entitled to;
16.1.c. Approved the date of the death of a member in the event of his or her death;
16.1.d. Complied with the other provisions of this Rule; and
16.1.e. Submitted the proper transmittals to the State Auditor’s and the State Treasurer’s office.
16.2. Option chosen final. When the choice of an option has been made, that choice is final and cannot after that date be changed, except as provided in W. Va. Code §5-10-24. A beneficiary cannot affect or change the option chosen by the member.
W. Va. Code R. § 162-5-17 Reduction of Annuities on Request of Retirant
17.1. A retirant is not entitled to elect a reduced annuity except as provided for in W. Va. Code §5-10-24.
W. Va. Code R. § 162-5-18 Early Retirement
18.1. Eligibility. Any member who acquires ten (10) years or more of credited service with the Retirement System, three (3) years or more of which are contributing service, and has terminated his or her employment after attaining age fifty-five (55), but before attaining age sixty (60), may be entitled to an actuarially reduced annuity pursuant to W. Va. Code §5-10-21: Provided, That the member makes application for retirement on or before he or she attains age sixty-two (62).
18.2. Recalculation of early retirement factor after reemployment period. The Board shall treat any member who retires early pursuant to W. Va. Code §5-10-21, and is subsequently reemployed by a participating public employer of the Retirement System, and who again retires, for purposes of the determination of the newly applicable early retirement factor, as if he or she were retiring at an age calculated by adding to this original early retirement age the number of years and months during which he or she was reemployed. In the event that the artificially determined age exceeds sixty (60), the Board shall not make any reduction for early retirement.
W. Va. Code R. § 162-5-19 Effective Date for Commencement of Annuity
19.1. Deferred or Early Retirement Annuity. Any member who terminates his or her employment and who is eligible for a deferred or early retirement annuity pursuant to W. Va. Code §5-10-21 shall commence annuity payments the first day of the calendar month following eligibility, termination of employment and benefits or the month in which his or her retirement application is received by the Board, whichever occurs last. Upon receipt of all properly executed forms from the member and former employer, the Board shall process the retirement annuity as soon as administratively feasible.
19.2. Disability Retirement Annuity. Disability annuity payments will commence for any member of a participating public employer who is approved for a disability retirement annuity pursuant to W. Va. Code §5-10-25 effective the first day of the month following receipt of application or the first day of the month following termination of employment and benefits, whichever occurs last. Upon receipt of all properly executed forms submitted by the employer or former employer and the disability retirant as required pursuant to the Consolidated Public Retirement Board’s rule, Benefit Determination and Appeal, 162CSR2, the Board shall process the disability retirement annuity as soon as administratively feasible.
19.3. Regular Retirement Annuity. Any employee, age sixty (60) or older, who was eligible for a regular retirement annuity pursuant to W. Va. Code §5-10-20 upon terminating his or her employment and who files his or her retirement application within one (1) year of termination of employment shall commence annuity payments the first day of the month following the month in which he or she terminated employment and benefits with a participating public employer. Any employee, age sixty (60) or older, who was eligible for a regular retirement annuity pursuant to W. Va. Code §5-10-20 upon terminating his or her employment and who files his or her retirement application after one (1) year of termination of employment shall commence annuity payments the first day of the month following the month in which his or her application is received. Upon receipt of all properly executed forms from the member and former employer, the Board shall process the retirement annuity as soon as administratively feasible.
19.4. Survivor Annuity. If a member dies prior to retirement and a survivor annuity is payable pursuant to W. Va. Code §5-10-27, the survivor annuity payments shall commence effective the first day of the month following the death of the member. Upon receipt of all properly executed forms from the survivor and the former employer of the deceased member, the Board shall process the survivor annuity as soon as administratively feasible.
19.5. Required Minimum Distributions. Notwithstanding anything in this Rule to the contrary, distributions shall be made in accordance with the provisions of W. Va. Code §5-10-27b.
W. Va. Code R. § 162-5-20 Military Service Credit
20.1. Credit for military service shall be made in accordance with the provisions of W. Va. Code §5-10-15. Any member applying for retirement benefits who is claiming service credit pursuant to W. Va. Code §5-10-15, shall present to the Retirement System an original or copy of his or her discharge from the service or other appropriate documents required by the Board to comply with the provisions of W. Va. Code §5-10-15.
20.2. Any member who is eligible for military service credit as provided in W. Va. Code §5-10-15, shall receive one calendar month of service credit for each calendar month in which he or she served 15 days or more in active duty of the Armed Forces of the United States: Provided, That the member is not otherwise receiving service credit for that month.
W. Va. Code R. § 162-5-21 Refund of Contributions Where an Annuity May Be Payable
21.1. Any member of the Retirement System who terminates employment after attaining age sixty (60) and who has five (5) or more years contributing service, and is otherwise entitled to an annuity payable from the Retirement System, is not eligible for a refund of accumulated contributions made to the Retirement System, but, in lieu therefore, is entitled to a monthly annuity payable pursuant to W. Va. Code §5-10-20.
21.2. Any member of the Retirement System who terminates employment before attaining age sixty (60) and who is otherwise entitled to a regular annuity payable from the Retirement System at the time of his or her application for a refund, is not eligible for a refund of accumulated contributions made to the Retirement System, but, in lieu thereof, is entitled to a monthly annuity payable pursuant to W. Va. Code §5-10-20.
21.3. Any member of the Retirement System who terminates employment before attaining age sixty (60) and who is not immediately entitled to a regular annuity payable from the Retirement System, even though he or she may be entitled to deferred benefits, is entitled to a refund of accumulated contributions upon written application filed with the Retirement System.
W. Va. Code R. § 162-5-22 Refund of Contributions
22.1. A member of the Retirement System who terminates his or her employment with a participating public employer without an annuity payable is entitled to a refund of his or her contributions made to the Retirement System thirty (30) days after he or she last appeared on an official payroll of the State of West Virginia or other participating public employer, following the filing of a report from the employee’s payroll office.
22.2. Any member who terminates his or her employment with a participating public employer and accepts employment with another participating public employer within thirty (30) days from the date the member last appeared on an official payroll of any participating public employer is not entitled to a refund of contributions made to the Retirement System.
W. Va. Code R. § 162-5-23 Employer’s Election to Participate after a Member has Retired
23.1. If a retirant is employed by a non-participating employer, which subsequently elects to become a participating employer, the Board’s staff shall act in accordance with W. Va. Code §5-10-48. The retirant is not eligible to purchase retroactive service credit for the period in which the retirant was receiving a monthly annuity.
W. Va. Code R. § 162-5-24 Employment by Retirants with Participating Public Employers
24.1. Any retirant who accepts employment with a participating public employer for a limited period of time and who is not considered in any way a permanent or regular employee is a temporary employee within the meaning of W. Va. Code §5-10-2 and the employee shall not be a member of the Retirement System.
24.2. Any retirant drawing an annuity may accept temporary full-time employment, temporary part-time employment, or permanent part-time employment with a participating public employer: Provided, That his or her compensation does not exceed the limitation established by W. Va. Code §5-10-48. If the calendar year compensation limit is exceeded, the Board shall suspend the retirant’s monthly annuity for the balance of the calendar year, and accordingly shall prorate the month in which the compensation limit is exceeded.
W. Va. Code R. § 162-5-25 Member Receiving Workers' Compensation
25.1. Any member of the Retirement System who is injured or suffers a disease growing out of the course of his or her employment with a participating public employer and who is receiving Workers' Compensation benefits shall receive credited service toward his or her retirement: Provided, That the member physically returns to employment with a participating public employer upon recovery of his or her injury or disease.
W. Va. Code R. § 162-5-26 Deputy Assessors - Service Credit
26.1. Deputy assessors shall receive credited service for actual time for which they are compensated, however, final average salary shall be based upon their annual compensation.
W. Va. Code R. § 162-5-27 Officers of the Department of Public Safety and Municipal Police or Fire Department
27.1. Any member of the Retirement System who served as an officer of the Division of Public Safety or a municipal fire or police department and is not receiving an annuity from that system, may be granted prior service credit if he or she is otherwise entitled to the credit.
W. Va. Code R. § 162-5-28 Repayment of Withdrawals
28.1. Any former member of the Retirement System who withdrew his or her contributions and who is reemployed by a participating public employer may repay his or her withdrawals in periodic payments, together with interest as provided for in the West Virginia Consolidated Public Retirement Board’s rule Refund, Reinstatement and Loan Interest Factors, 162CSR7, et seq. The individual shall be reemployed with a participating public employer(s) for one full year before any repayment of funds are allowed and the repayment must begin within two (2) years of reemployment. All funds must be repaid within five (5) years of reemployment.
28.2. All previously withdrawn contributions shall be repaid in full in order to receive service credit.
28.3. Reinstated service credit shall be posted to the member’s account upon payment in full.
28.4. Termination or transfer of employment from one participating public employer and acceptance of employment with another participating public employer may be considered reemployment for the purposes of reinstating previously withdrawn service.
W. Va. Code R. § 162-5-29 Employee and Employer Contributions When an Employee is on Annual Leave or Compensated Sick Leave
29.1. The employee and employer shall make regular contributions to the Retirement System, notwithstanding the fact that the employee is drawing compensation for annual or sick leave.
W. Va. Code R. § 162-5-30 Insurance Premiums
30.1. The Board shall not consider premiums paid by a participating public employer for group life insurance or group health and accident insurance on its employees as compensation for retirement purposes.
W. Va. Code R. § 162-5-31 Elected Officials of the Legislature
31.1. Elected clerks, sergeants at arms and doorkeepers of the Legislature shall receive one year of service credit with the Retirement System for each calendar year served.
W. Va. Code R. § 162-5-32 Surcharge for Delinquency of Employer and Employee Contributions
32.1. Any participating public employer who fails to make any payment due the Retirement System by the fifteenth (15th) day following the end of each calendar month in which the contributions are due may be required to pay the actuarial rate of interest lost on the total employee and employer contributions owed for each day the payment is delinquent. Accrual of the loss in earnings owed by the delinquent employer commences after the fifteenth (15th) day following the end of the calendar month in which the contributions are due and continues until receipt of the delinquent employee and employer contributions. Interest compounds daily and the minimum surcharge is fifty (50) dollars.
162CSR5
162CSR5
Series 06 Appointment Of Representatives To The West Virginia Investment Management Board
W. Va. Code R. § 162-6-1 General
1.1. Scope. -- This series of rules sets forth the procedure to be followed by the West Virginia Consolidated Public Retirement Board for the appointment of representatives from each of the seven (7) defined benefit plans administered by the Consolidated Public Retirement Board to the West Virginia Investment Management Board as required by W. Va. Code §12-6-3.
1.2. Authority. -- W. Va. Code §5-10D-1.
1.3. Filing Date. -- August 14, 2008.
1.4. Effective Date. -- September 14, 2008.
W. Va. Code R. § 162-6-2 Appointment Process
2.1. Pursuant to W. Va. Code §12-6-3, the West Virginia Consolidated Public Retirement Board shall annually appoint, on or before the first day of June of each year, a representative to the West Virginia Investment Management Board from each of the seven (7) defined benefit plans administered by the Consolidated Public Retirement Board.
2.2. The West Virginia Consolidated Public Retirement Board shall make available to any interested member, or retirant, of the seven (7) defined benefit plans administered by the Consolidated Public Retirement Board an “Application for Appointment by the Consolidated Public Retirement Board to be a Representative to the West Virginia Investment Management Board,” a copy of which is attached hereto and incorporated by reference as Appendix A.
2.3. Any individual wishing to submit an Application for Appointment by the Consolidated Public Retirement Board to be a Representative to the West Virginia Investment Management Board shall do so on or before the first day of April of the year in which he or she wishes to be considered for appointment.
2.4. The chairperson of the West Virginia Consolidated Public Retirement Board shall, on or before the first day of April of each year, designate a standing committee from its members whose responsibility it shall be to evaluate the applications submitted for consideration in accordance with these rules and to make recommendations to the Board in conjunction therewith.
2.5. The standing committee charged with evaluating the applications for appointment of representatives to the West Virginia Investment Management Board shall, on or before the first day of May of each year, report to the West Virginia Consolidated Public Retirement Board its findings and recommendations with respect to the applicants, and the Board shall, with input from the standing committee, appoint one representative from each of the seven (7) defined benefit retirement plans on or before the first day of June of each year.
2.6. On or before the first day of June of each year, the West Virginia Consolidated Public Retirement Board shall submit in writing to the Investment Management Board the names of each of the representatives appointed pursuant to these rules.
W. Va. Code R. § 162-6-3 Appointment of Representative from the West Virginia State Police Death, Disability and Retirement Fund (Plan A)
3.1. The West Virginia Consolidated Public Retirement Board shall appoint a representative from the West Virginia State Police Death, Disability and Retirement Fund (Plan A) from those members of that system who shall have completed the Consolidated Public Retirement Board’s application form as set forth in section § 162-6-2 of these rules, which form must be signed by at least five (5) other members of that retirement system.
W. Va. Code R. § 162-6-4 Appointment of Representative from the West Virginia State Police Retirement System (Plan B)
4.1. The West Virginia Consolidated Public Retirement Board shall appoint a representative from the West Virginia State Police Retirement System (Plan B) from those members of that system who shall have completed the Consolidated Public Retirement Board’s application form as set forth in subsection § 162-6-2 of these rules, which form must be signed by at least five (5) other members of that retirement system.
W. Va. Code R. § 162-6-5 Appointment of Representative from the Judges Retirement System
5.1. The West Virginia Consolidated Public Retirement Board shall appoint a representative from the Judges Retirement System from those members of that system who shall have completed the Consolidated Public Retirement Board’s application form as set forth in subsection § 162-6-2 of these rules, which form must be signed by at least five (5) other members of that retirement system.
W. Va. Code R. § 162-6-6 Appointment of Representatives from the Teachers Retirement System
6.1. The West Virginia Consolidated Public Retirement Board shall appoint a representative from the Teachers Retirement System from those members of that plan who shall have completed the Consolidated Public Retirement Board’s application form as set forth in subsection § 162-6-2 of these rules, which form must be signed by at least five (5) other members of that retirement system.
W. Va. Code R. § 162-6-7 Appointment of Representative from the Public Employees Retirement System
7.1. The West Virginia Consolidated Public Retirement Board shall appoint a representative from the Public Employees Retirement System from those members of that plan who shall have completed the Consolidated Public Retirement Board’s application form as set forth in subsection § 162-6-2 of these rules, which form must be signed by at least five (5) other members of that retirement system.
W. Va. Code R. § 162-6-8 Appointment of Representative from the Deputy Sheriff Retirement System
8.1. The West Virginia Consolidated Public Retirement Board shall appoint a representative from the Deputy Sheriff Retirement System from those members of that plan who shall have completed the Consolidated Public Retirement Board’s application form as set forth in subsection § 162-6-2 of these rules, which form must be signed by at least five (5) other members of that retirement system.
W. Va. Code R. § 162-6-9 Appointment of Representative from the Emergency Medical Services Retirement System
9.1. The West Virginia Consolidated Public Retirement Board shall appoint a representative from the Emergency Medical Services Retirement System from those members of that plan who shall have completed the Consolidated Public Retirement Board’s application form as set forth in subsection § 162-6-2 of these rules, which form must be signed by at least five (5) other members of that retirement system.
W. Va. Code R. § 162-6-10 Committee Selection by Appointed Representatives
10.1. Each of the representatives appointed in accordance with these procedural rules shall, in turn and on or before July 1 of each year, appoint no more than three people to comprise a committee to represent the respective retirement funds in meetings before the Investment Management Board.
10.2. The representative appointed by the West Virginia Consolidated Public Retirement Board pursuant to these rules may serve as one of the three committee members referenced in 9.1 of these rules.
10.3. Each of the representatives appointed in accordance with these procedural rules shall submit in writing to the West Virginia Investment Management Board, on or before the first day of July of each year, the names of the three people comprising the committee appointed pursuant to §162-6-9.1 of these rules who will represent the beneficiaries of that representative’s participant plan in meetings before the West Virginia Investment Management Board.
10.4. The committee members selected by the representative appointed in accordance with these procedural rules should come from diverse backgrounds as well as diverse geographical regions of the state, and should, whenever possible, not represent the same type of employees or the same work organization as the representative or the other committee members, and should have some experience with retirement plans and/or the investment of pension assets.
W. Va. Code R. § 162-6-11 Same Procedure to be Followed for Additional Defined Benefit Plans Created by Act of Legislature
11.1. To the extent that additional defined benefit plans are created by Act of the Legislature subsequent to the effective date of these rules, for which representative appointments to the Investment Management Board must be made, the same procedure as set forth herein for representative appointments for the existing defined benefit plans administered by the West Virginia Consolidated Public Retirement Board shall be followed for the appointment of representatives from such additional defined benefit plans to the Investment Management Board.
W. Va. Code R. § 162-6-12 Procedure to be Followed in the Event of Resignation of Appointed Representatives
12.1. In the event that a representative appointed pursuant to these rules tenders his resignation to the Consolidated Public Retirement Board during the term of his appointment, the Board’s designated standing committee shall review and consider the remaining applications which were tendered for consideration for the term of appointment in question, and shall make a recommendation to the Consolidated Public Retirement Board regarding the appointment of a substitute representative at the Board’s next regularly scheduled meeting.
12.2. The Consolidated Public Retirement Board shall consider the recommendation of the standing committee regarding the appointment of a substitute representative, and shall, with input from the standing committee, appoint a substitute representative to fill the position vacated by the resigning representative for the balance of that term of appointment.
W. Va. Code R. § 162-6-13 Procedure to be Followed in the Event No Application is Received
13.1. If there are no applications received by the Consolidated Public Retirement Board within the time period contemplated by § 162-6-2.3 for any of the plans covered by this rule, the Board shall, with input from the Standing Committee, appoint a representative from such plan who is willing to serve and who, in the determination of the Board, would be capable of properly fulfilling the obligation of such an appointment.
APPLICATION FOR APPOINTMENT
BY THE CONSOLIDATED PUBLIC RETIREMENT BOARD TO BE A REPRESENTATIVE TO THE
WEST VIRGINIA INVESTMENT MANAGEMENT BOARD
Name Address City State Zip Code Home Telephone ( )
Work Telephone ( )
Home FAX ( )
Work FAX ( )
Home Email ( )
Work Email ( )
REPRESENTATIVE TO WHAT SYSTEM (Please circle one)
PERS TRS JRS Plan A Plan B DSRS EMSRS Experience for Appointment:
Applicant’s Signature _____________________________________ Date ________________________ I hereby recommend the above named individual for this appointment, and I verify that I am a participating member of the same retirement system.
Please Print Your Name Your Signature Your Employer 1. 2. 3. 4. 5.
App.WVMB.frm 162CSR6 162CSR6 162CSR6 162CSR6
Series 07 Refund, Reinstatement, Retroactive Service, Loan and Correction of Error Inerest Factors
W. Va. Code R. § 162-7-1 General
1.1. Scope. - This Rule addresses and identifies the interest rates which the Consolidated Public Retirement Board shall apply to the referenced member transactions which, from time-to-time, occur in the Board's administration of the State's several retirement systems.
1.2. Authority. - W. Va. Code §5-10D-1.
1.3. Filing Date. - June 28, 2016.
1.4. Effective Date. - June 28, 2016.
W. Va. Code R. § 162-7-2 Relationship to Prior Interest Rules
2.1. This Rule is intended to replace any and all Rules which may have been, prior to the effective date of this Rule, previously adopted or promulgated by the Board regarding the attachment of interest on the referenced plan transactions. Any and all prior Rules are hereby repealed to the extent they are inconsistent with the provisions of this Rule.
2.2. This Rule and the interest rates specified are applicable to plan transactions which occur after June 30, 2000.
2.3. To the extent that the Board determines that any provisions of this Rule are in conflict with the provisions of an analogous state retirement system statute, the statutory law prevails and shall be applied.
W. Va. Code R. § 162-7-3 Refund Interest
3.1. Refund interest shall be paid to a member as provided in this section when the member or beneficiary is eligible for and makes application for a refund of accumulated contributions in accordance with applicable plan provisions.
3.1.1. Deputy Sheriff Retirement System. In the event a member of the Deputy Sheriff Retirement System terminates covered employment and thereafter requests and is determined to be eligible to receive a refund of accumulated contributions, the interest rate applicable to the refund is four percent (4%), compounded per annum.
3.1.2. Public Employees Retirement System. In the event a member of the Public Employees Retirement System terminates covered employment and thereafter requests and is determined to be eligible to receive a refund of accumulated contributions, the interest rate applicable to the refund is four percent (4%), compounded per annum. Refund interest as provided for in this rule shall be consistent with and have the same meaning as "regular interest," as defined in W. Va. Code §5-10-2(21).
3.1.3. Teachers' Retirement System. In the event a member of the Teachers' Retirement System terminates covered employment and thereafter requests and is determined to be eligible to receive a refund of accumulated contributions, the interest rate applicable to the refund is four percent (4%), compounded per annum.
3.1.4. West Virginia State Police Death, Disability and Retirement Fund. In the event a member of the West Virginia State Police Death, Disability and Retirement Fund terminates covered employment and thereafter requests and is determined to be eligible to receive a refund of accumulated contributions, the interest rate applicable to the refund is the rate specified in W. Va. Code §15-2-37(a) at the time of the member's application for refund.
3.1.5. West Virginia State Police Retirement System. In the event a member of the West Virginia State Police Retirement System terminates covered employment and thereafter requests and is determined to be eligible to receive a refund of accumulated contributions, the interest rate applicable to the refund is the rate specified in W. Va. Code §15-2A-8(a) at the time of the member's application for refund.
3.1.6. Judges' Retirement System. In the event a member of the Judges' Retirement System terminates covered employment and thereafter requests and is determined to be eligible to receive a refund of accumulated contributions, no interest shall be payable to that member as specified in W. Va. Code §51-9- 12.
3.1.7. Emergency Medical Services Retirement System. In the event a member of the Emergency Medical Services Retirement System terminates covered employment and thereafter requests and is determined to be eligible to receive a refund of accumulated contributions, the interest rate applicable to the refund is four percent (4%), compounded per annum.
3.1.8. Municipal Police Officers and Firefighters Retirement System. In the event a member of the Municipal Police Officers and Firefighters Retirement System terminates covered employment and thereafter requests and is determined to be eligible to receive a refund of accumulated contributions, the interest rate applicable to the refund is four percent (4%), compounded per annum.
3.2. Miscellaneous refunds. In any circumstance in which the laws of the State of West Virginia and applicable Internal Revenue Code provisions permit an individual to receive a refund of retirement system contributions with interest payable, under circumstances not otherwise specified in this section, the rate of interest is four percent (4%), compounded per annum.
W. Va. Code R. § 162-7-4 Reinstatement
4.1. A member who has previously terminated covered employment and withdrawn accumulated contributions, but later returns to employment with a participating public employer, may be eligible to reinstate his or her prior retirement system service credit if reinstatement is permitted under applicable law.
The reinstatement of service credit shall in any event be contingent upon the member's repayment of contributions previously withdrawn from a state retirement system at the termination of his or her prior period of covered employment, plus interest thereon as provided for in this section.
4.1.1. Deputy Sheriff Retirement System. In the event a member of the Deputy Sheriff Retirement System requests and is determined to be eligible to restore retirement system service credit for periods of previously terminated covered employment, the member shall pay into the Deputy Sheriff Retirement System any contributions which the member may have previously withdrawn from the Deputy Sheriff Retirement System at the termination of any prior period of covered employment, plus reinstatement interest.
4.1.1.1. The rate of interest applicable to requests for reinstatement of service into the Deputy Sheriff Retirement System is, for all plan years between the date of the member's withdrawal of plan contributions and through June 30, 2000, four percent (4%) per annum. The rate of interest applicable to reinstatement requests for each plan year after June 30, 2000, shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the reinstatement request is made, compounded per annum.
4.1.2. Public Employees Retirement System. In the event a member of the Public Employees Retirement System requests and is determined to be eligible to restore retirement system service credit for periods of previously terminated employment, the member shall pay into the Public Employees Retirement System any contributions which the member may have previously withdrawn from the Public Employees Retirement System at the termination of any prior period of employment, plus reinstatement interest.
4.1.2.1. The rate of interest applicable to requests for reinstatement of service into the Public Employees Retirement System is, for all plan years between the date of the member's withdrawal of plan contributions and through June 30, 2000, four percent (4%) per annum. The rate of interest applicable to reinstatement requests for each plan year after June 30, 2000, shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the reinstatement request is made, compounded per annum. Once a member commences repayment of the reinstatement amount plus, applicable interest, specified in this subsection, the interest rate shall be based upon the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which reinstatement payments commence, and that rate applies throughout the payment period providing the member remits payments on a timely basis, compounded on a basis as set by administrative rules and procedures.
4.1.3. Teachers' Retirement System. In the event a member of the Teachers' Retirement System requests and is determined to be eligible to restore retirement system service credit for periods of previously terminated employment under the Teachers' Retirement System, the member shall pay into the Teachers'
Retirement System any contributions which the member may have previously withdrawn from the Teachers'
Retirement System at the termination of any prior period of employment, plus reinstatement interest.
4.1.3.1. The rate of interest applicable to requests for reinstatement of service into the Teachers'
Retirement System is, for all plan years between the date of the member's withdrawal of plan contributions and through June 30, 2001, six percent (6%) per annum. The rate of interest applicable to reinstatement requests for each plan year after June 30, 2001, shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the reinstatement request is made, compounded per annum.
4.1.4. Transfers of service. In the event a member of the Teachers' Retirement System requests and is determined to be eligible for a transfer of his or her credited service from the Public Employees Retirement System into the Teachers' Retirement System as provided for in W. Va. Code §18-7A-17, the member shall pay into the Teachers' Retirement System an amount equal to the difference between the contributions which the member made to the Public Employees Retirement System for the previous service, and the contributions the member would have made had he or she been a member of the Teachers' Retirement System for the period of previous service.
4.1.4.1. A member of the Teachers' Retirement System is entitled to a transfer of credited service in the Public Employees Retirement System as specified in subdivision 4.1.4. only to the extent that the member repays into the Teachers' Retirement System any amounts which the member may have previously withdrawn from the Public Employees Retirement System, plus an amount equal to the difference between the contributions which the member made to the Public Employees Retirement System for the previous service, and the contributions the member would have made had he or she been a member of the Teachers' Retirement System for the period of previous service, plus interest at the rates specified in paragraph 4.1.4.2. of this rule.
4.1.4.2. The rate of interest applicable to requests for transfer of service from the Public Employees Retirement System to the Teachers' Retirement System as provided for in W. Va. Code §18-7A- 17 is, for all plan years through March 7, 2003, six percent (6%) per annum. The rate of interest applicable to transfer of service requests for each plan year after March 7, 2003, shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the transfer of service request is paid, compounded per annum.
4.1.5. Teachers' Defined Contribution Retirement System Service in Teachers' Retirement System.
In the event a member of the Teachers' Retirement System requests and is determined to be eligible to restore retirement system service credit previously withdrawn from the Teachers' Defined Contribution Retirement System for periods of previously terminated employment as permitted pursuant to W. Va. Code §18-7D-5, the member shall pay into the Teachers' Retirement System any amount which the member may have previously withdrawn from the Teachers' Defined Contribution Retirement System and any forfeited employer contributions, if applicable, plus reinstatement interest from the date of distribution.
4.1.5.1. The rate of interest applicable to reinstate previously withdrawn service from the Teachers' Defined Contribution Retirement System into the Teachers' Retirement System shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the payment is made, compounded per annum.
4.1.6. Teachers' Defined Contribution Qualified Domestic Relations Order Service in Teachers'
Retirement System. In the event a member of the Teachers' Retirement System requests and is determined to be eligible to restore retirement system service credit previously distributed to an Alternate Payee under the Teachers' Defined Contribution Retirement System pursuant to a Qualified Domestic Relations Order as permitted pursuant to W. Va. Code §18-7D-9, the member shall pay into the Teachers' Retirement System any amount which may have been previously distributed to an Alternate Payee from the Teachers' Defined Contribution Retirement System, plus reinstatement interest from the date of distribution.
4.1.6.1. The rate of interest applicable to reinstate into the Teachers' Retirement System previously distributed service to an Alternate Payee from the Teachers' Defined Contribution Retirement System shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the payment is made, compounded per annum.
4.1.7. Emergency Medical Services Retirement System. In the event a member of the Emergency Medical Services Retirement System requests and is determined to be eligible to restore retirement system service credit for periods of previously terminated covered employment, the member shall pay into the Emergency Medical Services Retirement System any contributions which the member may have previously withdrawn from the Emergency Medical Services Retirement System at the termination of any prior period of covered employment, plus reinstatement interest from the date of distribution.
4.1.7.1. The rate of interest applicable to requests for reinstatement of service into the Emergency Medical Services Retirement System for all plan years shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the reinstatement request is made, compounded per annum.
4.1.8. Municipal Police Officers and Firefighters Retirement System. In the event a member of the Municipal Police Officers and Firefighters Retirement System requests and is determined to be eligible to restore retirement system service credit for periods of previously terminated covered employment, the member shall pay into the Municipal Police Officers and Firefighters Retirement System any contributions which the member may have previously withdrawn from the Municipal Police Officers and Firefighters Retirement System at the termination of any prior period of covered employment, plus reinstatement interest from the date of distribution.
4.1.8.1. The rate of interest applicable to requests for reinstatement of service into the Municipal Police Officers and Firefighters Retirement System for all plan years shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the reinstatement request is made, compounded per annum.
4.1.9. West Virginia State Police Retirement System. In the event a member of the West Virginia State Police Retirement System requests and is determined to be eligible to restore retirement system service credit for periods of previously terminated employment, the member shall pay into the West Virginia State Police Retirement System any contributions which the member may have previously withdrawn from the West Virginia State Police Death, Disability and Retirement Fund or the West Virginia State Police Retirement System at the termination of any prior period of employment, plus reinstatement interest at the rate specified in W. Va. Code §§15-2-37(b) and 15-2A-8(b).
4.2. Judges' Retirement System.
4.2.1. The interest rate applicable to the administrative request of any judge seeking to acquire retirement system service credit for prior periods of eligible service during which contributions were not withheld from the judge's salary and paid into the system shall, as provided for in W. Va. Code §51-9-5(a), be determined by the state auditor.
4.2.2. The interest rate applicable to the administrative request of any judge seeking to qualify service as a prosecuting attorney prior to 1987 as credited service in the Judges' Retirement System as provided for in W. Va. Code §51-9-4(f) shall be determined by the Board.
W. Va. Code R. § 162-7-5 Retroactive Service
5.1. Public Employees Retirement System. In the event a member of the Public Employees Retirement System requests and is determined to be eligible to purchase retroactive service as defined in W. Va. Code
§5-10-2 for periods of employment in which contributions were not deducted from the employee's compensation, the member shall pay into the plan contributions as specified in W. Va. Code §5-10-14(f), plus retroactive service interest.
5.1.1. The rate of interest applicable to requests to purchase retroactive service into the Public Employees Retirement System is, for all plan years between the date of the member's period of retroactive service and through June 30, 2000, four percent (4%) per annum. The rate of interest applicable to retroactive service purchases for each plan year after June 30, 2000, shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the retroactive service purchase is made, compounded per annum.
W. Va. Code R. § 162-7-6 Loan Interest and Payments
6.1. Loans made to members of the Deputy Sheriff Retirement System pursuant to W. Va. Code §7-14D- 23 shall carry interest on the unpaid balance, at an annual effective interest rate which is two hundred (200)
basis points higher than the most recent rate of interest used by the Board for determining actuarial contribution levels.
6.2. Loans made to members of the Teachers' Retirement System pursuant to W. Va. Code §18-7A-34 shall carry interest on the unpaid balance, at a rate commensurate with the numeric rate applied by the Board to loans made to members of the Deputy Sheriff Retirement System, or the rate of six percent (6%), whichever is higher.
6.3. All loan payments remitted by an employer are due the Teachers' Retirement System or the Deputy Sheriff Retirement System within fifteen (15) days following the end of the calendar month for which the payment is made.
6.4. All loan payments remitted by personal payment, if permitted, are due the Teachers' Retirement System or the Deputy Sheriff Retirement System by the last day of the calendar month for which the payment is due.
W. Va. Code R. § 162-7-7 Correction of Error
7.1. Deputy Sheriff Retirement System. In the event the Board determines that an error has occurred resulting in an underpayment to the Deputy Sheriff Retirement System, the member is entitled to receive retirement system service credit for the prior period of employment in which the error occurred, with receipt of service credit being contingent upon the Board's receipt of the employee and employer contributions, plus interest at the rate specified in subdivision 7.1.1. of this rule.
7.1.1. The rate of interest applicable to the correction of error computation in the Deputy Sheriff Retirement System is four percent (4%) compounded per annum for plan years through June 30, 2000. The rate of interest applicable to the correction of error computation for each plan year after June 30, 2000, shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the correction of error payment is made, compounded per annum.
7.2. Public Employees Retirement System. In the event the Board determines that an error has occurred resulting in an underpayment to the Public Employees Retirement System, the member is entitled to receive retirement system service credit for the prior period of employment in which the error occurred, with receipt of service credit being contingent upon the Board's receipt of the employee and employer contributions, plus interest at the rate specified in subdivision 7.2.1. of this rule.
7.2.1. The rate of interest applicable to the correction of error computation in the Public Employees Retirement System is four percent (4%) compounded per annum for plan years through June 30, 2000. The rate of interest applicable to the correction of error computation for each plan year after June 30, 2000, shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the correction of error payment is made, compounded per annum.
7.3. Teachers' Retirement System. In the event the Board determines that an error has occurred resulting in an underpayment to the Teachers' Retirement System, the member is entitled to receive retirement system service credit for the prior period of employment in which the error occurred, with receipt of service credit being contingent upon the Board's receipt of the employee and employer contributions, plus interest at the rate specified in subdivision 7.3.1. of this rule.
7.3.1. The rate of interest applicable to the correction of error computation in the Teachers'
Retirement System is six percent (6%) compounded per annum for plan years through June 30, 2000. The rate of interest applicable to the correction of error computation for each plan year after June 30, 2000, shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the correction of error payment is made, compounded per annum.
7.4. Emergency Medical Services Retirement System. In the event the Board determines that an error has occurred resulting in an underpayment to the Emergency Medical Services Retirement System, the member is entitled to receive retirement system service credit for the prior period of employment in which the error occurred, with receipt of service credit being contingent upon the Board's receipt of the employee and employer contributions, plus interest at the rate specified in subdivision 7.4.1. of this rule.
7.4.1. The rate of interest applicable to the correction of error computation in the Emergency Medical Services Retirement System shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the correction of error payment is made, compounded per annum.
7.5. Municipal Police Officers and Firefighters Retirement System. In the event the Board determines that an error has occurred resulting in an underpayment to the Municipal Police Officers and Firefighters Retirement System, the member is entitled to receive retirement system service credit for the prior period of employment in which the error occurred, with receipt of service credit being contingent upon the Board's receipt of the employee and employer contributions, plus interest at the rate specified in subdivision 7.5.1. of this rule.
7.5.1. The rate of interest applicable to the correction of error computation in the Municipal Police Officers and Firefighters Retirement System shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the correction of error payment is made, compounded per annum.
7.6. Judges' Retirement System. In the event the Board determines that an error has occurred resulting in an underpayment to the Judges' Retirement System, the member is entitled to receive retirement system service credit for the prior period of employment in which the error occurred. The receipt of service credit is contingent upon the Board's receipt of the employee and employer contributions, plus interest at the rate specified in subdivision 7.6.1. of this rule.
7.6.1. The rate of interest applicable to the correction of error computation in the Judges' Retirement System shall be the actuarial interest rate assumption approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the correction of error payment is made, compounded per annum.
7.7. State Police Retirement System. In the event the Board determines that an error has occurred resulting in an underpayment to the State Police Retirement System, the member is entitled to receive retirement system service credit for the prior period of employment in which the error occurred. The receipt of service credit is contingent upon the Board's receipt of the employee and employer contributions, plus interest at the rate specified in subdivision 7.7.1. of this rule.
7.7.1. The rate of interest applicable to the correction of error computation in the State Police Retirement System shall be the actuarial interest rate assumption approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the correction of error payment is made, compounded per annum.
7.8. Teachers' Defined Contribution Retirement System. In the event the Board determines that an error has occurred resulting in an underpayment to the Teachers' Defined Contribution Retirement System, the member is entitled to receive retirement system service credit for the prior period of employment in which the error occurred. The receipt of service credit is contingent upon the Board's receipt of the employee and employer contributions, plus interest at the rate specified in subdivision 7.8.1. of this rule.
7.8.1. The rate of interest applicable to the correction of error computation in the Teachers' Defined Contribution Retirement System shall be the actuarial interest rate assumption for the Teachers' Retirement System approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the correction of error payment is made, compounded per annum.
W. Va. Code R. § 162-7-8 Purchase of Service
8.1. Other Purchases of Service. Unless otherwise specified, the rate of interest applicable to requests to purchase service in any of the retirement systems administered by the Board shall be the actuarial interest rate assumption as approved by the Board for completing the Actuarial Valuation for the plan year immediately preceding the first day of the plan year in which the purchase of service is made, compounded per annum.
Series 08 Service Credit for Accrued and Unused Sick and Annual Leave
W. Va. Code R. § 162-8-1 General
1.1. Scope. - This rule governs a member's eligibility to use accrued and unused sick and annual leave for additional retirement system service credit in the Public Employees Retirement System, the Teachers' Retirement System, the Deputy Sheriff Retirement System, the West Virginia State Police Retirement System and the West Virginia Emergency Medical Services Retirement System. Employees of the judicial and legislative branches of government are exempt from this rule.
1.2. Authority. - W. Va. Code § 5-10D-1.
1.3. Filing Date. - June 28, 2016.
1.4. Effective Date. - June 28, 2016.
W. Va. Code R. § 162-8-2 Purpose
2.1. General - The purpose of this rule is to set forth guidelines to govern the conversion of a member's accrued and unused sick and annual leave to additional retirement system service credit in the Public Employees Retirement System, the Teachers' Retirement System, the Deputy Sheriff Retirement System, the West Virginia State Police Retirement System and the West Virginia Emergency Medical Services Retirement System.
2.2. Administrative Appeals - In all contested cases regarding service credit for accrued sick and annual leave, the Board shall follow its rules, Benefit Determination and Appeal, 162 CSR 2; West Virginia State Police, 162 CSR 9; and Deputy Sheriff Retirement System, 162 CSR 10; in reaching a decision on the appeal.
W. Va. Code R. § 162-8-3 Definitions
3.1. The definitions of key terms used in the Public Employees Retirement System (W. Va. Code
§ 5-10-1 et seq .; 162 CSR 5), the Teachers' Retirement System (W. Va. Code § 18-7A-1 et seq .; 162 CSR 4), the Deputy Sheriff Retirement System (W. Va. Code § 7-14D-1 et seq .; 162 CSR 10), the West Virginia State Police Retirement System (W. Va. Code § 15-2A-1 et seq .; 162 CSR 9) and the West Virginia Emergency Medical Services Retirement System (W. Va. Code §16-5V-1 et seq.) apply to this service credit
rule as the context requires.
W. Va. Code R. § 162-8-4 Public Employees Retirement System
4.1. Service Credit for Accrued Unused Sick and Annual Leave. - Members of the Public Employees Retirement System first hired prior to July 1, 2015 may elect to receive additional service credit in exchange for accrued and unused sick and annual leave at the time of retirement. Members first hired prior to July 1, 2015 who make this election are eligible for any additional service credit to which the member is entitled based upon the number of the member's accrued unused sick and annual leave days which stand to the member's credit with the member's last participating public employer at the time of retirement. In calculating a member's service credit for accrued unused sick and annual leave, the Board shall not include any accrued and unused sick and annual leave days which stand to the member's credit with any participating public employer prior to the member's last participating public employer which are not transferable to or recognized by the member's last participating public employer. In interpreting, applying and administering this rule and subject to the limitations found in subsections 4.2 and 4.3 of this rule, the Board shall accept the policy of the member's last participating public employer for the accrual of unused sick and annual leave. In order for a participating public employer's annual and sick leave policy to be recognized by the Board, the policy must be a written standard that is an accepted standard by the employer.
4.2. Limitation on the Accrual of Unused Sick and Annual Leave. - Members employed by any participating public employer with a policy for the accrual of unused sick and annual leave which is more generous than that of the State of West Virginia for its state agency employees shall receive service credit only for accrued unused sick and annual leave as provided for by the State of West Virginia for state employees who are covered by the rules of the West Virginia Division of Personnel.
4.3. Calculation of Service Credit for Accrued Unused Sick and Annual Leave. - The Consolidated Public Retirement Board may request information from the member and/or the member's last or prior participating public employer in order to determine the proper amount of retirement system service credit the member is entitled to receive for his or her accrued and unused sick and annual leave. The conversion of accrued sick and annual leave to additional service shall be based upon the information received by the Board from the member's employer.
4.4. Lump Sum Payment for Accrued Leave. - If the member is paid in a lump sum for accrued unused leave, the Board shall not consider the lump sum payment as compensation or salary in computing
W. Va. Code R. § 162-8-5 Teachers' Retirement System
5.1. Service Credit for Accrued Unused Sick and Annual Leave. - The Board shall give members of the Teachers' Retirement System first hired prior to July 1, 2015 who elect, under the provisions of W.
Va. Code § 5-16-13(f), to convert accrued and unused sick and annual leave to additional retirement system service credit any additional credit to which the member is entitled based upon the number of accrued and unused sick and annual leave days which stand to the member's credit with the member's last employer at the time of retirement. Any unused sick and annual leave days accrued and which stand to the member's credit with any participating public employer prior to the member's last participating public employer, and which are not transferable to or recognized by the member's last participating public employer, are not used to calculate service credit. In interpreting, applying and administering this rule and subject to the limitations found in subsection 5.2. of this rule, the Board shall be deferential to the policy of the member's last participating public employer for the accrual of unused sick and annual leave. In order for a participating public employee's annual and sick leave policy to be recognized by the Board, the policy shall have been formally adopted in writing by the employer.
5.2. Calculation of Service Credit for Accrued Unused Sick and Annual Leave. - The conversion of accrued leave to service credit shall be made in a manner consistent with the provisions of Teachers'
Retirement System, 162 CSR 4 and W. Va. Code § 5-16-13(f). The Consolidated Public Retirement Board may request information from the member and/or the member's last or prior employers in order to determine the proper amount of retirement system service credit the member is entitled to receive for his or her accrued sick and annual leave. The conversion of accrued sick and annual leave to additional service credit shall be based upon the information received by the Board from the member's employer.
5.3. Deferred Retirement. - A member of the Teachers' Retirement System who ceases employment prior to retirement or who takes a deferred retirement may not use accumulated unused sick and annual leave for additional retirement service credit, unless the Teachers' Retirement System member continues to be a covered employee with the West Virginia Public Employees Insurance Agency as defined in W. Va. Code § 5-16-2(3) at the time his or her retirement annuity commences.
5.4. Lump Sum Payment for Accrued Leave. - If the member is paid in a lump sum for accrued unused leave, the Board shall not consider the lump sum payment as compensation or salary in computing
W. Va. Code R. § 162-8-6 Deputy Sheriff Retirement System
6.1. Service Credit for Accrued Unused Sick and Annual Leave. - Members of the Deputy Sheriff Retirement System may elect to receive additional service credit in exchange for accrued and unused sick and annual leave at the time of retirement. Members who make this election are eligible for any additional service credit to which the member is entitled based upon the number of the member's accrued unused sick and annual leave days which stand to the member's credit with the member's last covered employment employer at the time of retirement. In calculating a member's service credit for accrued unused sick and annual leave, the Board shall not include any accrued and unused sick and annual leave days which stand to the member's credit with any participating public employer prior to the member's last covered employment employer which are not transferable to or recognized by the member's last covered employment employer. In interpreting, applying and administering this rule and subject to the limitations found in subsections 6.2. and 6.3. of this rule, the Board shall accept the policy of the member's last covered employment employer for the accrual of unused sick and annual leave. In order for a covered employment employer's annual and sick leave policy to be recognized by the Board, the policy must be a written standard that is an accepted standard by the employer.
6.2. Limitation on the Accrual of Unused Sick and Annual Leave. - Members employed by any covered employment employer with a policy for the accrual of unused sick and annual leave which is more generous than that of the State of West Virginia for its state agency employees shall receive service credit only for accrued unused sick and annual leave as provided for by the State of West Virginia for state employees who are covered by the rules of the West Virginia Division of Personnel.
6.3. Calculation of Service Credit for Accrued Unused Sick and Annual Leave. - The Consolidated Public Retirement Board may request information from the member and/or the member's last covered employment or prior participating public employer in order to determine the proper amount of retirement system service credit the member is entitled to receive for his or her accrued and unused sick and annual leave. The conversion of accrued sick and annual leave to additional service shall be based upon the information received by the Board from the member's employer.
6.4. Lump Sum Payment for Accrued Leave. - If the member is paid in a lump sum for accrued unused leave, the Board shall not consider the lump sum payment as compensation or salary in computing
W. Va. Code R. § 162-8-7 West Virginia State Police Retirement System
7.1. Service Credit for Accrued Unused Sick and Annual Leave. - Members of the West Virginia State Police Retirement System first hired prior to July 1, 2015 may elect to receive additional service credit in exchange for accrued and unused sick and annual leave at the time of retirement. Members first hired prior to July 1, 2015 who make this election are eligible for any additional service credit to which the member is entitled based upon the number of the member's accrued unused sick and annual leave days which stand to the member's credit at the time of retirement. In calculating a member's service credit for accrued unused sick and annual leave, the Board shall not include any accrued and unused sick and annual leave days which stand to the member's credit with any participating public employer prior to the member's employment at the West Virginia State Police which are not transferable to or recognized by the West Virginia State Police. In interpreting, applying and administering this rule and subject to the limitations found in subsections 7.2. and 7.3. of this rule, the Board shall accept the policy of the West Virginia State Police for the accrual of unused sick and annual leave. In order for the West Virginia State Police's annual and sick leave policy to be recognized by the Board, the policy must be a written standard that is an accepted standard by the employer.
7.2. Limitation on the Accrual of Unused Sick and Annual Leave. - If the West Virginia State Police policy for the accrual of unused sick and annual leave is more generous than that of the State of West Virginia for its state agency employees, trooper members shall receive service credit only for unused sick and annual leave as provided for by the State of West Virginia for state employees who are covered by the rules of the West Virginia Division of Personnel, except as provided in subdivision 7.2.1.
7.2.1. Except as provided in subdivision 7.2.2. of this rule, for purposes of determining service credit that may be received by a trooper member for accrued and unused annual leave, a trooper member with up to 480 hours (60 work days) accrued and unused annual leave that was carried forward from 2005 to 2006 may carry forward accrued and unused annual leave from 2006 to 2007 in an amount not to exceed either the amount of accrued and unused annual leave actually carried over from 2005 to 2006 or the amount of accrued and unused annual leave actually remaining to the trooper member at the expiration of calendar year 2006, whichever is lesser. At the end of each calendar year thereafter, the trooper member may carry over the lesser of the amount carried over the previous year or the amount actually remaining to the trooper member at the expiration of calendar year.
7.2.2. If the amount of a trooper member's unused annual leave carried over from 2005 to 2006, or from any year to the next thereafter, is less than the amount of unused annual leave permitted to be carried over as provided for by the State of West Virginia for state employees who are covered by the rules of the West Virginia Division of Personnel, the provisions of subdivision 7.2.1. of this rule do not apply and the trooper member shall thereafter be governed by the provisions of subsection 7.2. of this rule and for purposes of determining service credit that may be received by a trooper member for accrued and unused annual leave, is permitted to carry over annual leave up to but not exceeding the amounts permitted to be carried over as provided for by the State of West Virginia for state employees who are covered by the rules of the West Virginia Division of Personnel.
7.2.3. The provisions of this rule govern the determination of service credit that may be received by a trooper member for accrued and unused annual leave, and may not be construed to supersede any West Virginia State Police policy for the accrual of unused sick and annual leave applicable to contributing trooper members before retirement.
7.3. Calculation of Service Credit for Accrued Unused Sick and Annual Leave. - The Consolidated Public Retirement Board may request information from the member and/or the West Virginia State Police or prior participating public employer in order to determine the proper amount of retirement system service credit the member is entitled to receive for his or her accrued and unused sick and annual leave. The conversion of accrued sick and annual leave to additional service shall be based upon the information received by the Board from the member's employer.
7.4. Lump Sum Payment for Accrued Leave. - If the member is paid in a lump sum for accrued unused leave, the Board shall not consider the lump sum payment as compensation or salary in computing
W. Va. Code R. § 162-8-8 Emergency Medical Services Retirement System
8.1. Service Credit for Accrued Unused Sick and Annual Leave. - Members of the Emergency Medical Services Retirement System may elect to receive additional service credit in exchange for accrued and unused sick and annual leave at the time of retirement. Members who make this election are eligible for any additional service credit to which the member is entitled based upon the number of the member's accrued unused sick and annual leave days which stand to the member's credit with the member's last covered employment employer at the time of retirement. In calculating a member's service credit for accrued unused sick and annual leave, the Board shall not include any accrued and unused sick and annual leave days which stand to the member's credit with any participating public employer prior to the member's last covered employment employer which are not transferable to or recognized by the member's last covered employment employer. In interpreting, applying and administering this rule and subject to the limitations found in subsections 8.2. and 8.3. of this rule, the Board shall accept the policy of the member's last covered employment employer for the accrual of unused sick and annual leave. In order for a covered employment employer's annual and sick leave policy to be recognized by the Board, the policy must be a written standard that is an accepted standard by the employer.
8.2. Limitation on the Accrual of Unused Sick and Annual Leave. - Members employed by any covered employment employer with a policy for the accrual of unused sick and annual leave which is more generous than that of the State of West Virginia for its state agency employees shall receive service credit only for accrued unused sick and annual leave as provided for by the State of West Virginia for state employees who are covered by the rules of the West Virginia Division of Personnel.
8.3. Calculation of Service Credit for Accrued Unused Sick and Annual Leave. - The Consolidated Public Retirement Board may request information from the member and/or the member's last covered employment or prior participating public employer in order to determine the proper amount of retirement system service credit the member is entitled to receive for his or her accrued and unused sick and annual leave. The conversion of accrued sick and annual leave to additional service shall be based upon the 162CSR8 information received by the Board from the member's employer.
8.4. Lump Sum Payment for Accrued Leave. - If the member is paid in a lump sum for accrued unused leave, the Board shall not consider the lump sum payment as compensation or salary in computing
Series 09 West Virginia State Police
W. Va. Code R. § 162-9-1 General
1.1. Scope. -- This Rule addresses the general administrative procedures, the processes by which a member of the retirement plans for the West Virginia State Police may apply for and be granted state disability retirement, and the manner in which appeals from the disability determinations of the Consolidated Public Retirement Board and other appeals may be presented for administrative resolution.
1.2. Authority. -- W. Va. Code §5-10D-1.
1.3. Filing Date. -- June 28, 2016.
1.4. Effective Date. -- June 28, 2016.
W. Va. Code R. § 162-9-2 Definitions
2.1. "Active employment" means employment of a member by the West Virginia State Police during which compensation for services is actually received, other than through the receipt of regular or disability retirement benefits.
2.2. "Agency" means the West Virginia State Police.
2.3. "Board" means the West Virginia Consolidated Public Retirement Board.
2.4. "Essential duties of a law enforcement officer" means those duties which state troopers must be capable of performing in order to be capable of continuing in active employment with the West Virginia State Police, as specified in policies set forth by the Agency.
2.5. "Member" means a sworn employee of the West Virginia State Police who is a participant in any of the Agency's retirement systems, and who has not yet entered retirement status.
2.6. "Retirement systems" means the West Virginia State Police Retirement Fund, or the West Virginia State Police Death, Disability and Retirement Fund.
2.7. "Substantial gainful employment" or "gainful employment" means employment in which an individual may earn up to an amount that is determined by the United States Social Security Administration as substantial gainful activity and still receive total disability benefits.
2.8. "Vocational consultant" means consultants who possess the requisite training, skills, and professional certification to accurately evaluate a member's ability to engage in various types of substantial gainful activity, including but not limited to the member's ability to perform the essential duties of a law enforcement officer.
W. Va. Code R. § 162-9-3 Disability Applications and Petitions; Eligibility
3.1. A member of the West Virginia State Police, or a person acting with legal authority on behalf of the member, who remains in active employment, may file a disability retirement application with the Board whenever the member has reason to believe that he or she is no longer physically or mentally capable of performing the essential duties of a law enforcement officer. Application shall be made on forms approved by the Board, and the member shall cause a copy of the application to be served upon the Agency at the time of its filing with the Board.
3.2. If the Agency has reason to believe that a member is no longer physically or mentally capable of performing the essential duties of a law enforcement officer, and if the member has failed or refused to file an application for disability retirement, the Agency may file a petition with the Board seeking the disability retirement of the member. The Agency's petition shall be made on forms approved by the Board, and a copy of the petition shall be served by the Agency upon the member at the time of the filing of the petition with the Board. The cost of the treating physician's examination, when requested by the West Virginia State Police, shall be at the expense of the West Virginia State Police. The member shall cooperate fully with the Board in the scheduling of the examinations, and shall appear at the time and place for scheduled examinations as requested by the Board. The Board shall provide advance notice to the member that if he or she fails to appear at the time and place for scheduled examinations requested by the Board, he or she may be held responsible for some or all fees charged by the physician's office for that scheduled exam.
3.3. Once a member has commenced to receive a retirement benefit from the retirement systems, the retired member is no longer eligible to apply for disability retirement benefits.
3.4. Notwithstanding any provision of this rule to the contrary, a member who has applied for and commenced to receive a partial duty related disability award is permitted to apply to the Board for a total disability award, if the member believes that his or her condition has deteriorated to the point that he or she no longer retains the mental or physical ability to engage in any gainful employment.
3.5. In the event that an individual or the Agency on behalf of the individual has applied for and has been denied disability retirement by the Board, neither the individual nor the Agency on behalf of the individual may file another application for disability retirement with the Board until the passage of one (1) year from the date of the Board's last denial. Notwithstanding the minimum one (1) year reapplication period, the Board may, in its sole discretion, agree to waive the minimum one (1) year reapplication period for an individual or the Agency on behalf of the individual if waiver of the reapplication period is requested by the individual or the Agency on a form approved by the Board. The individual or the Agency shall demonstrate to the satisfaction of the Board, through medical records, reports or other reliable evidence, that the individual has suffered a new or substantial worsening of his or her medical condition since the Board's most recent denial of his or her application for disability retirement.
W. Va. Code R. § 162-9-4 Medical and Factual Information
4.1. Any member whose mental or physical fitness to perform the essential duties of a law enforcement officer is at issue in any application for state disability retirement shall complete any and all forms, authorizations or releases requested by the Board for the processing of the member's alleged disability application, and shall cooperate fully in the gathering of relevant medical and factual information and records that are determined necessary by the Board for its consideration of the application or petition for disability retirement.
4.2. Following the filing of an application for disability retirement, the member shall, upon request by the Board, provide the Board with copies of all current and past medical records, reports and information, including the report of the treating physician and/or other professional, which are relevant to the Board's determination of the member's physical or mental capacity to perform the essential duties of a law enforcement officer. Failure of the applicant to provide relevant records and reports as requested by the Board, or failure to cooperate fully in the disability determination process, constitutes just cause for the Board's denial of the member's application.
4.3. Following the filing of an application for disability retirement, the Agency shall provide to the Board a copy of any fitness for duty standards which relate to the nature of the member's alleged disability.
Unless the fitness for duty standards which relate to the nature of the member's alleged disability specify that corrective devices (including but not limited to hearing aids or eyeglasses) may be used to satisfy the relevant fitness standard, the Board shall presume for the purpose of its determination of the member's disability status that corrective devices may not be used to meet the standards. This presumption is rebuttable upon the presentation of clear and convincing evidence to the contrary by the member or the Agency.
4.4. The Agency shall provide the Board with any and all relevant medical and factual records and reports in its possession regarding the nature of the member's claimed disability, the duty relatedness of the member's claimed disability, and the member's fitness to perform the essential duties of a law enforcement officer as specified in policies adopted by the Agency. The Agency shall also complete such forms or reports as are considered necessary by the Board in its determination of the member's alleged disability.
W. Va. Code R. § 162-9-5 Disability Examinations
5.1. Any member whose mental or physical fitness to perform the essential duties of a law enforcement officer is at issue in any application or petition for state disability retirement shall, upon request of the Board, submit to any mental or physical examinations determined necessary by the Board, in its discretion, for proper disposition of the alleged disability application or petition. The cost of the examinations, when requested by the Board, shall be at Board expense. The member shall cooperate fully with the Board in the scheduling of the examinations, and shall appear at such time and place for scheduled examinations as requested by the Board. Failure to cooperate fully in the examination process may result, in the Board's discretion, in the denial of the disability application. Further, the Board shall provide advance notice to the member that should he or she fail to appear at the time and place for scheduled examinations requested by the Board, he or she may be held responsible for some or all fees charged by the physician's office for that scheduled exam.
5.2. Any physician who performs examinations under this rule for the purpose of determining a member's fitness to perform the essential duties of a law enforcement officer shall have access to and may review any and all medical and factual records, reports or other information pertaining to the member which have been gathered by the Board pursuant to this rule, and which are relevant to the physician's full and fair evaluation of the member's disability status.
5.3. At the conclusion of any physical or mental examination of a member under this rule, the examining physician or physicians shall furnish to the Board a report which states the physician's findings and opinions regarding the nature, extent and cause of the member's allegedly disabling injury or illness. The examining physician's report shall also state his or her opinion as to whether or not the member's disability, if any, is likely to be permanent. The Board shall only consider a medical report if the author of the report is a licensed practitioner of his or her profession in West Virginia or the jurisdiction in which he or she is located.
5.4. In the Board's discretion, the report of the examining physician and all other relevant evidence pertaining to the allegedly disabling injury, as well as information concerning the essential duties of a law enforcement officer, may thereafter be submitted for review to a vocational consultant who has been selected by the Board. In those cases, the vocational consultant shall then provide the Board with a written opinion as to whether or not the member is mentally and physically capable of performing the essential duties of a law enforcement officer and, if not, whether or not the member retains the mental and physical capability of performing other types of gainful employment.
5.5. Subject to any confidentiality and disclosure limitations set forth in state or federal law, the member and the Agency shall, upon request, be provided with a copy of the examining physician and vocational consultant reports which have been generated in the disability evaluation process under this rule.
5.6. The Agency may also require a member who intends to or who has applied for a state disability retirement to submit to an examination by a physician of its selection, either prior to or following the member's examination by a physician selected by the Board. The report of that examination shall be provided to the Board for consideration in the disability determination process, and a copy of the report shall be made available to the member upon written request to the Agency. Failure of the member to submit to an examination by a physician selected by the Agency may, in the Board's discretion, result in the denial of the disability retirement application.
5.7. The member or the Agency may pursue review by vocational consultants of their choosing following receipt of the report of the Board selected vocational consultant. If a supplemental vocational review is requested, the cost of the review shall be at the expense of the requesting party.
W. Va. Code R. § 162-9-6 Initial Determination
6.1. The Executive Director of the Board or his or her designee, and two staff members appointed by the Executive Director, constitute the Staff Review Committee. The Staff Review Committee shall review all reports and other evidence from all sources, and shall make a recommendation for disposition of the disability application or petition, consistent with this rule and laws of the member's retirement system, to the Board's Review Committee. A preponderance of the evidence standard shall be applied in the evaluation of the evidence of record.
6.2. The Board's Review Committee shall be comprised of at least three Board members who have been appointed by the Board. The Board Review Committee shall consider the recommendations of the Staff Review Committee as well as all reports and other evidence relating to the disability application or petition.
The Board Review Committee shall thereafter present its findings and position to the full Board as to whether the member is physically or mentally incapacitated from performing the essential duties of a law enforcement officer, and should be retired on the basis of the incapacity. A preponderance of the evidence standard shall apply in the evaluation of the evidence of record.
6.3. If the member's application, or the petition of the Agency as provided in subsection 3.2. of this rule, is not granted by the full Board, the Board shall notify both the member and the Agency in writing within ten (10) days of its decision and the basis for the decision. The notice shall be sent by certified mail, return receipt requested. The notification shall also state, with specificity, what action may be taken by the member or the Agency to pursue an administrative appeal of the Board's denial of the disability application or petition.
W. Va. Code R. § 162-9-7 Denial of Application; Supplemental Examination Option
7.1. If the Board does not grant the member a disability retirement upon initial review, either the member or the Agency may, within twenty (20) days of receipt of the notice of denial from the Board, request that the member be re-examined by another physician of the Board's selection, at the expense of the requesting party.
7.2. If a second examination is requested by either the member or the Agency, the physician performing the examination shall, upon completion of the examination, furnish the Board with a written report stating his or her opinion regarding the nature, extent and cause of the member's alleged disabling injury or illness, and an opinion as to whether or not the disability is likely to be permanent. Subject to any confidentiality and disclosure limitations set forth in state or federal law, copies of the supplemental physician's report shall be furnished by the Board to the member or the Agency, upon written request.
7.3. If a vocational consultant was used during the initial review, the supplemental physician's report shall thereafter be submitted by the staff of the Board to the vocational consultant for a second review and supplemental report.
7.4. The reports of the examining physician, the vocational consultant, and all of the other relevant evidence of record, shall thereafter be reviewed by the Staff Review Committee. The Staff Review Committee shall, following review of all reports and other evidence from all sources, make a recommendation consistent with the evidence and applicable law to the Board Review Committee. The Board Review Committee shall thereafter consider the Staff Review Committee's recommendation, as well as the entirety of the other evidence of record, and shall make a recommendation to the full Board as to whether or not the member should be retired on the basis of disability.
7.5. The Board shall notify the member and the Agency of its determination following the supplemental examination process, and shall state, with specificity, what action may be taken to pursue an administrative appeal of the Board's decision.
W. Va. Code R. § 162-9-8 Decisions on Initial Review; Appeals by Agency or Member
8.1. If the Board, upon review of an application or petition for disability retirement, determines that the member is mentally or physically incapable of performing the essential duties of a law enforcement officer and should therefore be retired, either the member or the Agency who may be aggrieved by the determination may, within twenty (20) days after receipt of the notice of favorable decision from the Board, request an appeal of the Board's decision to a hearing officer appointed by the Board as stated in section 9 of this rule.
8.2. If the Board, upon review of an application or petition for disability retirement, determines that the member is not mentally or physically incapable of performing the essential duties of a law enforcement officer and should therefore not be retired, either the member or the agency who may be aggrieved by such determination may, within twenty (20) days after receipt of the notice of the Board's decision, request an appeal of the Board's decision to a hearing officer appointed by the Board as stated in section 9 of this rule.
W. Va. Code R. § 162-9-9 Processes for Appeal of Board Decisions
9.1. The Board shall not hear appeals directly, but shall appoint hearing officers who shall make complete and independent reviews of the disability applications or petitions, and make recommendations to the Board. All hearing officers appointed by the Board for the hearings must be attorneys licenced to practice law in the State of West Virginia.
9.2. The hearing officer shall, within sixty (60) days of the Board's receipt of notice of an appeal request, schedule a time and place for the appeal to be heard. All parties to the appeal shall be given at least ten (10) business days written notice of the hearing.
9.3. At any hearing conducted pursuant to this rule, the applicant may appear pro se, or may be represented by counsel or by a lay representative. The Agency has the right to appear by a lay designee, or by counsel. Counsel for the Board may also appear at any hearing held pursuant to this rule. Witnesses or written evidence may be submitted by all parties.
9.4. The rules of evidence shall not strictly apply at any administrative hearing held pursuant to this rule, and the interests of justice and fair play shall guide the proceedings.
9.5. All parties to the appeal are, subject to any confidentiality or disclosure limitations of state and federal law, entitled to copies of any and all relevant medical and factual documents and reports which are in the possession of the Board, and which were previously considered by the Board in its prior decision on the disability application or petition.
9.6. The hearing officer may subpoena documents and witnesses if the information sought is relevant and necessary to a proper analysis of the disability claim and the formulation of his or her recommendation to the Board.
9.7. The Board shall cause a stenographic recording of the administrative hearing to be made which shall constitute the official record of the hearing. The recording shall not be transcribed except upon request of any party, at the requesting party's expense.
9.8. The hearing officer shall, within sixty (60) days of his or her receipt of any and all documents and evidentiary testimony, prepare formal findings of fact and conclusions of law, stating therein the reasons for his or her findings, and noting with specificity the medical and other evidence considered in reaching a recommendation.
9.9. Following written notice and tender of the hearing officer's recommended decision to all parties, the hearing officer shall present his or her recommended decision to the full Board at its next regularly scheduled meeting. The staff of the Board shall notify the member, the Agency and counsel for the Board of the date, time and place of the Board's meeting during which the appeal and the recommended decision will be presented to the Board by the hearing officer. Any party has the right to submit, in writing, a proposed final order to the hearing officer for consideration prior to presentation of the case to the Board.
9.10. The Board shall take action, in open session, on the recommendation of the hearing officer on any appeal held pursuant to this rule. Presentation of the appeal shall be made by the hearing officer, and no additional oral argument is permitted.
9.11. The Board shall accept the recommendation of the hearing officer unless an abuse of discretion is found to have occurred, or unless the recommendation is found to be based upon an error in facts or contrary to law. The Board's final decision shall be sent, by certified mail, to the member and to the Agency.
W. Va. Code R. § 162-9-10 Other Appeals
10.1. The Board's staff shall consider any other type of appeal other than for disability retirement benefits. If the Board's staff does not grant the request, the staff shall notify the applicant in writing stating the reasons for the denial and informing him of his right to appeal to the Board.
10.2. The applicant has ninety (90) days upon receipt of the written denial within which to file a written request for an administrative appeal. If the applicant appeals the decision of the staff, the staff shall refer the appeal to a hearing officer appointed by the Board.
10.2.1. Within sixty (60) days of the notice from the applicant of the desire to appeal the denial, the hearing officer shall schedule a time and place to hear the appeal and give the applicant ten (10) business days written notice of the hearing.
10.2.2. At any hearing conducted pursuant to this rule, the applicant may appear pro se, or may be represented by counsel or by a lay representative. Counsel for the Board may also appear at any hearing held pursuant to this rule. Witnesses or written evidence may be submitted by all parties.
10.2.3. The rules of evidence shall not strictly apply and the applicant has the right to any and all relevant documents in the possession of the Board, subject to any confidentiality or disclosure limitations set forth in federal or state law.
10.2.4. The hearing officer may subpoena documents and witnesses if the information is relevant and reasonable in order for the hearing officer to arrive at a finding of fact and to make a recommendation on the appeal. The interest of justice and fair play shall guide proceedings before the hearing officer.
10.2.5. The Board shall cause the certified court reporter to retain but not transcribe a stenographic recording of the hearing which is the official record of the hearing. Upon appeal to circuit court, the recording shall be transcribed.
10.2.6. The hearing officer shall within sixty (60) days of receiving all documents and evidentiary testimony, prepare formal findings of fact and conclusions of law, in which he or she states the reasons for his or her findings, and noting with specificity the evidence considered in reaching a recommendation.
10.2.7. Following written notice and tender of the hearing officer's recommended decision to all parties, the hearing officer shall present his or her recommended decision to the Board at its next regularly scheduled meeting. The staff of the Board shall notify the member and counsel for the Board of the date, time and place of the Board's meeting during which the appeal and the recommended decision will be presented to the Board by the hearing officer. Any party has the right to submit, in writing, a proposed final order to the hearing officer for consideration prior to presentation of the matter to the Board.
10.3. The Board shall take action, in open session, on the recommendation of the hearing officer on any appeal held pursuant to this rule. Presentation of the matter shall be made by the hearing officer, and no additional oral argument is permitted.
10.3.1. The Board shall accept the recommendation of the hearing officer unless an abuse of discretion is found to have occurred, or unless the recommendation is found to be based upon an error in facts or contrary to law. The Board's final decision shall be sent, by certified mail, to the member and his counsel.
10.4. An applicant who fails to request a timely appeal waives any further administrative appeal rights.
W. Va. Code R. § 162-9-11 Appeal Denied
11.1. If an appeal is denied in whole or in part by final decision of the Board pursuant to this rule, the aggrieved party may request a transcript of the administrative hearing, with cost of the preparation of the transcript being paid by the requesting party. An individual aggrieved by a final decision of the Board may pursue a judicial appeal to the Circuit Court of Kanawha County within the time limits set forth in Chapter 29A of the W. Va. Code.
W. Va. Code R. § 162-9-12 Reconsideration of Final Order
12.1. The Board may reconsider a final order during the meeting in which it was approved or at the next scheduled Board meeting. If the Board votes to reconsider a final order at its next scheduled Board meeting, the Board will table any action on the final order and place the final order on its agenda for its next scheduled meeting and give the applicant and his or her counsel at least ten (10) days notice prior to the Board meeting.
W. Va. Code R. § 162-9-13 Annual Statement
13.1. The Board may require a disability benefit recipient awarded a disability retirement under the provisions of this rule to file an annual statement of earnings and any other financial information required by the Board. If a disability recipient refuses to file the statement or financial information as requested by the Board, the Board shall suspend the disability benefit until the statement or financial information is filed.
If the refusal continues for sixty (60) days, the Board shall terminate the recipient's right to the disability benefit.
W. Va. Code R. § 162-9-14 Disability Re-certification
14.1. At least once (1) each year during the first five (5) years following the retirement of a member on account of disability, as provided in this rule, and at least once (1) in each three (3) year period thereafter, the Board may require a disability retirant, who has not attained age sixty (60) years, to undergo a medical examination to be made by or under the direction of a physician designated by the Board. If the disability retirant refuses to submit to the medical examination in any period, his or her disability annuity may be discontinued by the Board until his or her withdrawal of the refusal. If the refusal continues for one (1) year, all of his or her rights in and to his or her annuity may be revoked by the Board. If upon medical examination of a disability retirant, the physician reports to the Board that the retirant is physically able and capable of resuming employment, his or her disability annuity shall terminate: Provided, That the Staff Review Committee, the Board Review Committee and the full Board concur with the report of the physician:
Provided, however, That after the member attains age fifty (50) years, the Board may require the medical examination only once (1) in each five (5) year period thereafter.
W. Va. Code R. § 162-9-15 WV State Police Retirement System Employer Contributions
15.1. The West Virginia State Police shall contribute twelve percent (12%) of the monthly base salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System: Provided, That beginning on July 1, 2009, the West Virginia State Police shall contribute fifteen percent (15%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System: Provided, however, That beginning on July 1, 2010, the West Virginia State Police shall contribute nineteen and five-tenths percent (19.5%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System: Provided further, That beginning on July 1, 2011, the West Virginia State Police shall contribute seventeen and five-tenths percent (17.5%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System: And provided further, That beginning on July 1, 2012, the West Virginia State Police shall contribute fifteen and five-tenths percent (15.5%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System: And provided further, That beginning July 1, 2013, the West Virginia State Police shall contribute fourteen and five-tenths percent (14.5%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System: And provided further, That beginning July 1, 2014, the West Virginia State Police shall contribute thirteen and five-tenths percent (13.5%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System: And provided further, That beginning July 1, 2015, the West Virginia State Police shall contribute twelve percent (12%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System. The sums are due out of the annual appropriation for the West Virginia State Police.
W. Va. Code R. § 162-9-16 Errors
16.1. Each level of review is presumed to cure all errors in procedure of any prior level, and no right to remand in order to cure procedural errors exists. An independent determination of the facts shall, however, be made at each level of administrative review.
W. Va. Code R. § 162-9-17 Service Credit
17.1. Under no circumstances shall a member of the retirement systems receive more than one (1) year of service in any calendar year.
W. Va. Code R. § 162-9-18 Refund of Erroneous Contributions
18.1. To the extent permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and the guidance issued thereunder, the State Auditor and State Treasurer may refund from the funds of the Retirement Systems any erroneous contributions made to the Retirement Systems upon proper transmittals by the Board's staff. The Board's staff may request the refund if it determines it is appropriate and permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and guidance issued thereunder, after receiving from the executive officer of the payroll records of a participating public employer an explanation of the reason for making the erroneous contributions and the amount of the erroneous contributions.
W. Va. Code R. § 162-9-19 West Virginia State Police Retirement System Annuity Option
19.1. Any member married at the time of entering retirement status or any disability retirant married at the time of recalculation may elect a one hundred percent (100%) Joint & Survivor annuity and receive monthly payments for his or her lifetime as provided in W. Va. Code §15-2A-14. If the retirant dies prior to the spouse surviving at the date of death, the monthly benefit would be continued in the same amount to the surviving spouse for his or her lifetime or until he or she remarries. If there is no surviving spouse or if the surviving spouse remarries or dies, then payments are to be paid to the dependent children or dependent parents of the deceased retirant as provided in W. Va. Code §15-2A-14(a).
19.2. Option chosen final. When a member chooses a retirement option, that option is final. A surviving spouse cannot affect or change the option chosen by the member.
Series 10 Deputy Sheriff Retirement System
W. Va. Code R. § 162-10-1 General
1.1. Scope. -- This rule addresses general administrative criteria, outlines the processes by which a member of the Deputy Sheriff Retirement System may apply for and be granted state disability retirement, and the manner in which appeals from the disability determinations of the Consolidated Public Retirement Board and other appeals may be presented for administrative resolution.
1.2. Authority. -- W. Va. Code § 5-10D-1.
1.3. Filing Date. - June 28, 2016.
1.4. Effective Date. - June 28, 2016.
W. Va. Code R. § 162-10-2 Definitions
2.1. "Board" means the West Virginia Consolidated Public Retirement Board.
2.2. "Concurrent employment" means simultaneous employment in multiple positions that require participation in more than one retirement system administered by the Board.
2.3. "Essential duties of a law enforcement officer" means those duties which deputy sheriffs must be capable of performing in order to be eligible to continue in covered employment.
2.4. "Sheriff" means the sheriff of the county in which the deputy sheriff is employed in covered employment.
2.5. "Substantial gainful employment" or "gainful employment" means employment in which an individual may earn up to an amount that is determined by the United States Social Security Administration as substantial gainful activity and still receive total disability benefits.
2.6. "Vocational consultant" means consultants who possess the requisite training, skills, and professional certification to accurately evaluate a member's ability to engage in various types of substantial gainful activity, including but not limited to the member's ability to perform the essential duties of a law enforcement officer.
W. Va. Code R. § 162-10-3 Disability Applications and Petitions; Eligibility
3.1. A member of the Deputy Sheriff Retirement System, or a person acting with legal authority on behalf of the member, who remains in covered employment, may file a disability retirement application with the Board whenever the member has reason to believe that he or she is no longer physically or mentally capable of performing the essential duties of a law enforcement officer. Application shall be made on forms approved by the Board, and the member shall cause a copy of the application to be served upon the Sheriff at the time of its filing with the Board.
3.2. If the Sheriff has reason to believe that a member is no longer physically or mentally capable of performing the essential duties of a law enforcement officer, and if the member has failed or refused to file an application for disability retirement, the Sheriff may file a petition with the Board seeking the disability retirement of the member. The Sheriff's petition shall be made on forms approved by the Board, and a copy of the petition shall be served by the Sheriff upon the member at the time of the filing of the petition with the Board. The cost of the treating physician's examination, when requested by the Sheriff, shall be at the Sheriff's expense. The member shall cooperate fully with the Board in the scheduling of the examinations, and shall appear at the time and place for scheduled examinations as requested by the Board. The Board shall provide advance notice to the member that if he or she fails to appear at the time and place for scheduled examinations requested by the Board, he or she may be held responsible for some or all fees charged by the physician's office for that scheduled exam.
3.3. Once a member has commenced to receive a retirement benefit from the Deputy Sheriff Retirement System, the retired member is no longer eligible to apply for disability retirement benefits, unless he or she proves to the Board, by clear and convincing evidence, that his or her alleged disability is a direct and proximate result of an injury or illness sustained in the line of duty. If more than five (5) years have passed since the time a member has commenced regular retirement on the basis of age and service, there shall be a rebuttable presumption that the retired member's illness or injury is not directly and proximately related to his or her duties as a deputy sheriff. For members who have left covered employment and who have elected to defer their retirement, the five (5) year period referred to in this rule begins to run on the date the member leaves the active performance of the duties required of a deputy sheriff.
3.4. Notwithstanding any provision of this rule to the contrary, a member who has applied for and commenced to receive a partial duty related disability award may apply to the Board for a total duty disability award, if the member believes that his or her condition has deteriorated to the point that he or she no longer retains the mental or physical ability to engage in any gainful employment.
3.5. Notwithstanding any provision of this rule to the contrary, a member who has applied for and commenced to receive a partial non-duty related disability award may apply to the Board for a total non-duty disability award, if the member believes that his or her condition has deteriorated to the point that he or she no longer retains the mental or physical ability to engage in any gainful employment.
3.6. In the event that a member or that member's Sheriff on behalf of the member has applied for and has been denied disability retirement by the Board, neither the member nor that member's Sheriff on behalf of the member may file another application for disability retirement with the Board until the passage of one (1) year from the date of the Board's last denial. Notwithstanding the minimum one (1) year reapplication period, the Board may, in its sole discretion, agree to waive the minimum one (1) year reapplication period for a member or that member's Sheriff on behalf of the member if waiver of the reapplication period is requested by the member or that member's Sheriff on a form approved by the Board. The member or that member's Sheriff shall demonstrate to the satisfaction of the Board, through medical records, reports or other reliable evidence, that the member has suffered a new or substantial worsening of his or her medical condition since the Board's most recent denial of his or her application for disability retirement.
W. Va. Code R. § 162-10-4 Medical and Factual Information
4.1. Any member whose mental or physical fitness to perform the essential duties of a law enforcement officer is at issue in any application for state disability retirement shall complete any and all forms, authorizations or releases requested by the Board for the processing of the member's alleged disability application, and shall cooperate fully in the gathering of relevant medical and factual information and records that are determined necessary by the Board for its consideration of the application or petition for disability retirement.
4.2. Following the filing of an application for disability retirement, the member shall, upon request by the Board, provide the Board with copies of all current and past medical records, reports and information, including the report of the treating physician and/or other professional, which are relevant to the Board's determination of the member's physical or mental capacity to perform the essential duties of a law enforcement officer. Failure of the applicant to provide relevant records and reports as requested by the Board, or failure to cooperate fully in the disability determination process, constitutes just cause for the Board's denial of the member's application.
4.3. Following the filing of an application for disability retirement, the Sheriff shall provide to the Board a copy of any fitness for duty standards which relate to the nature of the member's alleged disability. Unless the fitness for duty standards which relate to the nature of the member's alleged disability specify that corrective devices (including but not limited to hearing aids or eyeglasses) may be used to satisfy the relevant fitness standard, the Board shall presume for the purpose of its determination of the member's disability status that corrective devices may not be used to meet the standards. This presumption is rebuttable upon the presentation of clear and convincing evidence to the contrary by the member or the Sheriff.
4.4. The Sheriff shall provide the Board with any and all relevant medical and factual records and reports in his or her possession regarding the nature of the member's claimed disability, the duty relatedness of the member's claimed disability, and the member's fitness to perform the essential duties of a law enforcement officer as specified in policies adopted by the Sheriff. The Sheriff shall also complete the forms or reports that are considered necessary by the Board in its determination of the member's alleged disability.
W. Va. Code R. § 162-10-5 Disability Examinations
5.1. Any member whose mental or physical fitness to perform the essential duties of a law enforcement officer is at issue in any application or petition for state disability retirement shall, upon request of the Board, submit to any mental or physical examinations determined necessary by the Board, in its discretion, for proper disposition of the alleged disability application or petition. The cost of the examinations, when requested by the Board, shall be at the Board's expense. The member shall cooperate fully with the Board in the scheduling of the examinations, and shall appear at the time and place for scheduled examinations as requested by the Board. Failure to cooperate fully in the examination process may result, in the Board's discretion, in the denial of the disability application. Further, the Board shall provide advance notice to the member that if he or she fails to appear at the time and place for scheduled examinations requested by the Board, he or she may be held responsible for some or all fees charged by the physician's office for that scheduled exam.
5.2. Any physician who performs examinations under this rule for the purpose of determining a member's fitness to perform the essential duties of a law enforcement officer shall have access to and may review any and all medical and factual records, reports or other information pertaining to the member which have been gathered by the Board pursuant to this rule, and which are relevant to the physician's full and fair evaluation of the member's disability status.
5.3. At the conclusion of any physical or mental examination of a member under this rule, the examining physician or physicians shall furnish to the Board a report which states the physician's findings and opinions regarding the nature, extent and cause of the member's allegedly disabling injury or illness. The examining physician's report shall also state his or her opinion as to whether or not the member's disability, if any, is likely to be permanent. The Board shall only consider a medical report if the author of the report is a licensed practitioner of his or her profession in West Virginia or the jurisdiction in which he or she is located.
5.4. In the Board's discretion, the report of the examining physician and all other relevant evidence pertaining to the allegedly disabling injury, as well as information concerning the essential duties of a law enforcement officer, may thereafter be submitted for review to a vocational consultant who has been selected by the Board. In those cases, the vocational consultant shall then provide the Board with a written opinion as to whether or not the member is mentally and physically capable of performing the essential duties of a law enforcement officer and, if not, whether or not the member retains the mental and physical capability of performing other types of gainful employment.
5.5. Subject to any confidentiality and disclosure limitations set forth in state or federal law, the member and the Sheriff shall, upon request, be provided with a copy of the examining physician and vocational consultant's reports which have been generated in the disability evaluation process under this rule.
5.6. The Sheriff may also require a member who intends to or who has applied for a state disability retirement to submit to an examination by a physician of his or her selection, either prior to or following the member's examination by a physician selected by the Board. The cost of the examination, when requested by the Sheriff, shall be at the Sheriff's expense. The report of that examination shall be provided to the Board for consideration in the disability determination process, and a copy of the report shall be made available to the member upon written request to the Sheriff. Failure of the member to submit to an examination by a physician selected by the Sheriff may, in the Board's discretion, result in the denial of the disability retirement application.
5.7. The member or the Sheriff may pursue review by vocational consultants of their choosing following receipt of the report of the Board's selected vocational consultant. If a supplemental vocational review is requested, the cost of the review shall be at the expense of the requesting party.
W. Va. Code R. § 162-10-6 Initial Determination
6.1. The Executive Director of the Board or his or her designee, and two staff members appointed by the Executive Director, constitute the Staff Review Committee. The Staff Review Committee shall review all reports and other evidence from all sources, and shall make a recommendation for disposition of the disability application or petition, consistent with this rule and laws of the member's retirement system, to the Board's Review Committee. A preponderance of the evidence standard applies in the evaluation of the evidence of record.
6.2. The Board's Review Committee shall be comprised of at least three Board members who have been appointed by the Board. The Board Review Committee shall consider the recommendations of the Staff Review Committee as well as all reports and other evidence relating to the disability application or petition.
The Board Review Committee shall thereafter present its findings and position to the full Board as to whether the member is physically or mentally incapacitated from performing the essential duties of a law enforcement officer, and should be retired on the basis of the incapacity. A preponderance of the evidence standard applies in the evaluation of the evidence of record.
6.3. If the member's application, or the petition of the Sheriff as provided in subsection 3.2. of this rule, is not granted by the full Board, the Board shall notify both the member and the Sheriff in writing of its decision and the basis for the decision. The notification shall state, with specificity, what action may be taken by the member or the Sheriff to pursue an administrative appeal of the Board's denial of the disability application or petition.
W. Va. Code R. § 162-10-7 Denial of Application; Supplemental Examination Option
7.1. If the Board does not grant the member a disability retirement upon initial review, either the member or the Sheriff may, within twenty (20) days of receipt of the notice of denial from the Board, request that the member be re-examined by another physician of the Board's selection, at the expense of the requesting party.
7.2. If a second examination is requested by either the member or the Sheriff, the physician performing the examination shall, upon completion of the examination, furnish the Board with a written report stating his or her opinion regarding the nature, extent and cause of the member's alleged disabling injury or illness, and an opinion as to whether or not the disability is likely to be permanent. Subject to any confidentiality and disclosure limitations set forth in federal or state law, copies of the supplemental physician's report shall be furnished by the Board to the member or the Sheriff, upon written request.
7.3. If a vocational consultant was used during the initial review, the supplemental physician's report shall thereafter be submitted by the staff of the Board to the vocational consultant for a second review and supplemental report.
7.4. The reports of the examining physician, the vocational consultant, and all of the other relevant evidence of record, shall thereafter be reviewed by the Staff Review Committee. The Staff Review Committee shall, following review of all reports and other evidence from all sources, make a recommendation consistent with the evidence and applicable law to the Board Review Committee. The Board Review Committee shall thereafter consider the Staff Review Committee's recommendation, as well as the entirety of the other evidence of record, and shall make a recommendation to the full Board as to whether or not the member should be retired on the basis of disability.
7.5. The Board shall notify the member and the Sheriff of its determination following the supplemental examination process, and shall state, with specificity, what action may be taken to pursue an administrative appeal of the Board's decision.
W. Va. Code R. § 162-10-8 Decisions on Initial Review; Appeals by Sheriff or Member
8.1. If the Board, upon review of an application or petition for disability retirement, determines that the member is mentally or physically incapable of performing the essential duties of a law enforcement officer and should therefore be retired, either the member or the Sheriff who may be aggrieved by the determination may, within twenty (20) days after receipt of the notice of favorable decision from the Board, request an appeal of the Board's decision to a hearing officer appointed by the Board as stated in section 9 of this rule.
8.2. If the Board, upon review of an application or petition for disability retirement, determines that the member is not mentally or physically incapable of performing the essential duties of a law enforcement officer and should therefore not be retired, either the member or the Sheriff who may be aggrieved by the determination may, within twenty (20) days after receipt of the notice of the Board's decision, request an appeal of the Board's decision to a hearing officer appointed by the Board as stated in section 9 of this rule.
W. Va. Code R. § 162-10-9 Processes for Appeal of Board Decisions
9.1. The Board shall not hear appeals directly, but shall appoint hearing officers who shall make complete and independent reviews of the disability applications or petitions, and make recommendations to the Board. All hearing officers appointed by the Board for the hearings must be attorneys licenced to practice law in the State of West Virginia.
9.2. The hearing officer shall, within sixty (60) days of the Board's receipt of notice of an appeal request, schedule a time and place for the appeal to be heard. All parties to the appeal will receive at least ten (10) business days written notice of the hearing.
9.3. At any hearing conducted pursuant to this rule, the applicant may appear pro se, or may be represented by counsel or by a lay representative. The Sheriff has the right to appear by a lay designee, or by counsel. Counsel for the Board may also appear at any hearing held pursuant to this rule. Witnesses or written evidence may be submitted by all parties.
9.4. The rules of evidence shall not strictly apply at any administrative hearing held pursuant to this rule, and the interests of justice and fair play shall guide the proceedings.
9.5. All parties to the appeal are, subject to any confidentiality or disclosure limitations of federal or state law, entitled to copies of any and all relevant medical and factual documents and reports which are in the possession of the Board, and which were previously considered by the Board in its prior decision on the disability application or petition.
9.6. The hearing officer may subpoena documents and witnesses if the information sought is relevant and necessary to a proper analysis of the disability claim and the formulation of his or her recommendation to the Board.
9.7. The Board shall cause a stenographic recording of the administrative hearing to be made which constitutes the official record of the hearing. The recording shall not be transcribed except upon request of any party, at the requesting party's expense.
9.8. The hearing officer shall, within sixty (60) days of his or her receipt of any and all documents and evidentiary testimony, prepare formal findings of fact and conclusions of law, in which he or she states the reasons for his or her findings, and noting with specificity the medical and other evidence considered in reaching a recommendation.
9.9. Following written notice and tender of the hearing officer's recommended decision to all parties, the hearing officer shall present his or her recommended decision to the full Board at its next regularly scheduled meeting. The staff of the Board shall notify the member, the Sheriff and counsel for the Board of the date, time and place of the Board's meeting during which the appeal and the recommended decision will be presented to the Board by the hearing officer. Any party has the right to submit, in writing, a proposed final order to the hearing officer for consideration prior to presentation of the case to the Board.
9.10. The Board shall take action, in open session, on the recommendation of the hearing officer on any appeal held pursuant to this rule. Presentation of the appeal shall be made by the hearing officer, and no additional oral argument is permitted.
9.11. The Board shall accept the recommendation of the hearing officer unless an abuse of discretion is found to have occurred, or unless the recommendation is found to be based upon an error in facts or contrary to law. The Board's final decision shall be sent, by certified mail, to the member and to the Sheriff.
W. Va. Code R. § 162-10-10 Other Appeals
10.1. The Board's staff shall consider any other type of appeal other than for disability retirement benefits. If the Board's staff does not grant the request, the staff shall notify the applicant in writing stating the reasons for the denial and informing him of his right to appeal to the Board.
10.2. The applicant has ninety (90) days upon receipt of the written denial within which to file a written request for an administrative appeal. If the applicant appeals the decision of the staff, the staff shall refer the appeal to the hearing officer appointed by the Board.
10.2.1. Within sixty (60) days of the notice from the applicant of the desire to appeal the denial, the hearing officer shall schedule a time and place to hear the appeal and give the applicant ten (10) business days written notice of the hearing.
10.2.2. At any hearing conducted pursuant to this rule, the applicant may appear pro se, or may be represented by counsel or by a lay representative. Counsel for the Board may also appear at any hearing held pursuant to this rule. Witnesses or written evidence may be submitted by both parties at this hearing.
10.2.3. The rules of evidence shall not strictly apply and the applicant has the right to any and all relevant documents in the possession of the Board, subject to any confidentiality or disclosure limitations set forth in federal or state law.
10.2.4. The hearing officer may subpoena documents and witnesses if the information is relevant and reasonable in order for the hearing officer to arrive at a finding of fact and to make a recommendation on the appeal. The interest of justice and fair play shall guide proceedings before the hearing officer.
10.2.5. The Board shall cause the certified court reporter to retain but not transcribe a stenographic recording of the hearing which is the official record of the hearing. Upon appeal to circuit court, the recording shall be transcribed.
10.2.6. The hearing officer shall within sixty (60) days of receiving all documents and evidentiary testimony, prepare formal findings of fact and conclusions of law, in which he states the reasons for his findings, and noting with specificity the evidence considered in reaching a recommendation.
10.2.7. Following written notice and tender of the hearing officer's recommended decision to all parties, the hearing officer shall present his recommended decision to the Board at its next regularly scheduled meeting. The staff of the Board shall notify the member and counsel for the Board of the date, time and place of the Board's meeting during which the appeal and the recommended decision will be presented to the Board by the hearing officer. Any party has the right to submit, in writing, a proposed final order to the hearing officer for consideration prior to presentation of the matter to the Board.
10.3. The Board shall take action, in open session, on the recommendation of the hearing officer on any appeal held pursuant to this rule. Presentation of the matter shall be made by the hearing officer, and no additional oral argument is permitted.
10.3.1. The Board shall accept the recommendation of the hearing officer unless an abuse of discretion is found to have occurred, or unless the recommendation is found to be based upon an error in facts or contrary to law. The Board's final decision shall be sent, by certified mail, to the member and his or her counsel.
10.4. An applicant who fails to request a timely appeal waives any further administrative appeal rights.
W. Va. Code R. § 162-10-11 Appeal Denied
11.1. If an appeal is denied in whole or in part by final decision of the Board pursuant to this rule, the aggrieved party may request a transcript of the administrative hearing, with cost of the preparation of the transcript being paid by the requesting party. An individual aggrieved by a final decision of the Board may pursue a judicial appeal to the Circuit Court of Kanawha County within the time limits set forth in Chapter 29A of the W. Va. Code.
W. Va. Code R. § 162-10-12 Reconsideration of Final Order
12.1. The Board may reconsider a final order during the meeting in which it was approved or at the next scheduled Board meeting. If the Board votes to reconsider a final order at its next scheduled Board meeting, the Board will table any action on the final order and place the final order on its agenda for its next scheduled meeting and give the applicant and his or her counsel at least ten (10) days notice prior to the Board meeting.
W. Va. Code R. § 162-10-13 Annual Statement
13.1. The Board may require a disability retirant awarded a disability retirement under the provisions of this rule to file an annual statement of earnings and any other financial information required by the Board.
If a disability retirant refuses to file the statement or financial information as requested by the Board, the Board shall suspend the disability benefit until the statement or financial information is filed. If the refusal continues for sixty (60) days, the Board shall terminate the recipient's right to the disability benefit.
13.2. If the Board after a review of a partial disability retirant's annual statement of earnings and any other financial information required by the Board determines that the partial disability retirant's earned income for the preceding year exceeds two thirds of the average annual compensation earned by all active members of the Deputy Sheriff Retirement System, the partial disability retirant's annuity may be terminated by the Board, upon recommendation of the Board's Review Committee, on the first day of the month following the Board's action.
W. Va. Code R. § 162-10-14 Disability Re-certification
14.1. At least once (1) each year during the first five (5) years following the retirement of a member on account of disability, as provided in this rule, and at least once (1) in each three (3) year period thereafter, the Board may require a disability retirant, who has not attained age sixty (60) years, to undergo a medical examination to be made by or under the direction of a physician designated by the Board.
14.1.1. If the disability retirant refuses to submit to the medical examination in any period, his or her disability annuity may be discontinued by the Board until his or her withdrawal of the refusal. If the refusal continues for one (1) year, all of his or her rights in and to his or her annuity may be revoked by the Board.
14.1.2. If upon medical examination of a disability retirant, the physician reports to the Board that the retirant is physically able and capable of resuming employment, his or her disability annuity shall terminate: Provided, That the Staff Review Committee, the Board's Review Committee and the full Board concur with the report of the physician.
14.2. A disability retirant who returns to employment as a deputy sheriff shall again become a member of the Deputy Sheriff Retirement System and his or her credited service in force at the time of his or her retirement shall be restored to his or her credit.
W. Va. Code R. § 162-10-15 Member Receiving Workers' Compensation
15.1. Any member of the Deputy Sheriff Retirement System who is injured or suffers a disease growing out of the course of his or her covered employment and who is receiving temporary total Workers'
Compensation benefits shall receive credited service toward his or her retirement: Provided, That the credited service ceases when a member returns to paid employment with a covered employer or is granted a disability or regular retirement under the provisions of the Deputy Sheriff Retirement System.
W. Va. Code R. § 162-10-16 Refunds of Contributions Where an Annuity May Be Payable
16.1. Any member of the Deputy Sheriff Retirement System who terminates employment after attaining age sixty (60) and who has five (5) or more years credited service and is otherwise entitled to an annuity payable from the Deputy Sheriff Retirement System, is not eligible for a refund of contributions made to the Deputy Sheriff Retirement System, but, in lieu thereof, is entitled to a monthly annuity payable pursuant to W. Va. Code § 7-14D-11.
16.2. Any member of the Deputy Sheriff Retirement System who terminates employment before attaining age sixty (60) and who is otherwise entitled to a normal retirement annuity payable from the Deputy Sheriff Retirement System at the time of his or her application for a refund, is not eligible for a refund of contributions made to the Deputy Sheriff Retirement System, but, in lieu thereof, is entitled to a monthly annuity payable pursuant to W. Va. Code § 7-14D-11.
16.3. Any member of the Deputy Sheriff Retirement System who terminates employment before attaining age sixty (60) and who is not immediately entitled to a normal retirement annuity payable from the Deputy Sheriff Retirement System, even though he or she may be entitled to early or deferred benefits, is entitled to a refund of contributions upon written application filed with the Deputy Sheriff Retirement System.
W. Va. Code R. § 162-10-17 Final Average Salary
17.1. In computing a member's final average salary, the Board shall consider the following:
17.1.1. The member's last ten (10) years of service is the ten (10) plan years of covered employment immediately preceding the member's effective date of retirement; and
17.1.2. The five (5) consecutive plan years for which the member's compensation was the highest, is the highest aggregate of his or her annual compensation for the five (5) consecutive plan years of service contained within the member's last ten (10) plan years as determined in subdivision 17.1.1. of this rule; and
17.1.3. The member's final average salary shall be one-fifth (1/5) of the aggregate salary determined in subdivision 17.1.2. of this rule; and
17.1.4. The member's monthly salaries shall be annualized for any plan year during his or her final average salary period that contains a break in employment. Provided, that for any Sheriff member who received any payments for bonuses or commissions, those amounts shall not be annualized.
W. Va. Code R. § 162-10-18 Surcharge for Delinquency of Employer and Employee Contributions
18.1. Any participating employer who fails to pay any payment due the Deputy Sheriff Retirement System by the fifteenth (15th) day following the end of each calendar month in which the contributions are due may be required to pay the actuarial rate of interest lost on the total employee and employer contributions owed for each day the payment is delinquent. Accrual of the loss in earnings owed by the delinquent employer commences after the fifteenth (15th) day following the end of the calendar month in which the contributions should have been paid and continues until receipt of the delinquent employee and employer contributions. Interest compounds daily and the minimum surcharge is fifty (50) dollars.
W. Va. Code R. § 162-10-19 Errors
19.1. Each level of review is presumed to cure all errors in procedure of any prior level, and no right to remand in order to cure procedural errors exists. An independent determination of the facts shall, however, be made at each level of administrative review.
W. Va. Code R. § 162-10-20 Refunds of Erroneous Contributions
20.1. To the extent permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and the guidance issued thereunder, the State Auditor and State Treasurer may refund from the funds of the Deputy Sheriff Retirement System any erroneous contributions made to the System upon proper transmittals by the Board's staff. The Board's staff may request the refund if it determines it is appropriate and permissible under the provisions of section 401(a) et seq. of the Internal Revenue Code and guidance issued thereunder, after receiving from the executive officer of the payroll records of a participating employer an explanation of the reason for making the erroneous contributions and the amount of the erroneous contributions.
W. Va. Code R. § 162-10-21 Option Chosen Final
21.1. When a member chooses an option, that option is final, except as provided in W. Va. Code § 7- 14D-12. A beneficiary cannot affect or change the option chosen by the member.
W. Va. Code R. § 162-10-22 Concurrent Employment
22.1. Upon notification of a member's concurrent employment, the Board's staff shall compute the member and employer retirement contribution amounts owed the Deputy Sheriff Retirement System. If complete payment of the member and non-deputy sheriff employer contributions is not made within sixty (60) days of notice from the Board, the member and the non-deputy sheriff employer shall be required to pay the actuarial interest rate assumption approved by the Board for the actuarial valuation for the plan year immediately preceding the first day of the plan year in which the concurrent service purchase is made, compounded per annum. Accrual of the loss in earnings owed the Deputy Sheriff Retirement System continues until the concurrent member and non-deputy sheriff employer contributions are paid.
22.2. Concurrent retirement contributions and interest, if applicable, must be paid to the Deputy Sheriff Retirement System prior to the member's effective retirement date with the Deputy Sheriff Retirement System.
22.3. Overlapping employment of five (5) working days or less with more than one participating public employer in positions that require participation in more than one retirement system administered by the Board does not constitute concurrent employment.
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