Bill Text: OH SB357 | 2011-2012 | 129th General Assembly | Introduced

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Bill Title: To classify as residents of the state for higher education purposes individuals who are not citizens or permanent legal residents of the United States if they meet certain eligibility requirements.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2012-06-26 - To Finance [SB357 Detail]

Download: Ohio-2011-SB357-Introduced.html

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As Introduced

129th General Assembly Regular Session 2011-2012

S. B. No. 357

Senators Tavares, Sawyer 

Cosponsor: Senator Brown 

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A BILL

To amend sections 2743.02 and 3333.31 and to enact

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section 3333.311 of the Revised Code to classify

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as residents of the state for higher education

3

purposes individuals who are not citizens or

4

permanent legal residents of the United States if

5

they meet certain eligibility requirements.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2743.02 and 3333.31 be amended and	7
section 3333.311 of the Revised Code be enacted to read as	8
follows:	9

Sec. 2743.02.  (A)(1) The state hereby waives its immunity	10
from liability, except as provided for the office of the state	11
fire marshal in division (G)(1) of section 9.60 and division (B)	12
of section 3737.221 of the Revised Code, for state institutions of	13
higher education in division (G) of section 3333.311 of the	14
Revised Code, and subject to division (H) of this section, and	15
consents to be sued, and have its liability determined, in the	16
court of claims created in this chapter in accordance with the	17
same rules of law applicable to suits between private parties,	18
except that the determination of liability is subject to the	19
limitations set forth in this chapter and, in the case of state	20
universities or colleges, in section 3345.40 of the Revised Code,	21
and except as provided in division (A)(2) or (3) of this section.	22
To the extent that the state has previously consented to be sued,	23
this chapter has no applicability.	24

Except in the case of a civil action filed by the state,	25
filing a civil action in the court of claims results in a complete	26
waiver of any cause of action, based on the same act or omission,	27
which the filing party has against any officer or employee, as	28
defined in section 109.36 of the Revised Code. The waiver shall be	29
void if the court determines that the act or omission was	30
manifestly outside the scope of the officer's or employee's office	31
or employment or that the officer or employee acted with malicious	32
purpose, in bad faith, or in a wanton or reckless manner.	33

(2) If a claimant proves in the court of claims that an	34
officer or employee, as defined in section 109.36 of the Revised	35
Code, would have personal liability for the officer's or	36
employee's acts or omissions but for the fact that the officer or	37
employee has personal immunity under section 9.86 of the Revised	38
Code, the state shall be held liable in the court of claims in any	39
action that is timely filed pursuant to section 2743.16 of the	40
Revised Code and that is based upon the acts or omissions.	41

(3)(a) Except as provided in division (A)(3)(b) of this	42
section, the state is immune from liability in any civil action or	43
proceeding involving the performance or nonperformance of a public	44
duty, including the performance or nonperformance of a public duty	45
that is owed by the state in relation to any action of an	46
individual who is committed to the custody of the state.	47

(b) The state immunity provided in division (A)(3)(a) of this	48
section does not apply to any action of the state under	49
circumstances in which a special relationship can be established	50
between the state and an injured party. A special relationship	51
under this division is demonstrated if all of the following	52
elements exist:	53

(i) An assumption by the state, by means of promises or	54
actions, of an affirmative duty to act on behalf of the party who	55
was allegedly injured;	56

(ii) Knowledge on the part of the state's agents that	57
inaction of the state could lead to harm;	58

(iii) Some form of direct contact between the state's agents	59
and the injured party;	60

(iv) The injured party's justifiable reliance on the state's	61
affirmative undertaking.	62

(B) The state hereby waives the immunity from liability of	63
all hospitals owned or operated by one or more political	64
subdivisions and consents for them to be sued, and to have their	65
liability determined, in the court of common pleas, in accordance	66
with the same rules of law applicable to suits between private	67
parties, subject to the limitations set forth in this chapter.	68
This division is also applicable to hospitals owned or operated by	69
political subdivisions which have been determined by the supreme	70
court to be subject to suit prior to July 28, 1975.	71

(C) Any hospital, as defined in section 2305.113 of the	72
Revised Code, may purchase liability insurance covering its	73
operations and activities and its agents, employees, nurses,	74
interns, residents, staff, and members of the governing board and	75
committees, and, whether or not such insurance is purchased, may,	76
to such extent as its governing board considers appropriate,	77
indemnify or agree to indemnify and hold harmless any such person	78
against expense, including attorney's fees, damage, loss, or other	79
liability arising out of, or claimed to have arisen out of, the	80
death, disease, or injury of any person as a result of the	81
negligence, malpractice, or other action or inaction of the	82
indemnified person while acting within the scope of the	83
indemnified person's duties or engaged in activities at the	84
request or direction, or for the benefit, of the hospital. Any	85
hospital electing to indemnify such persons, or to agree to so	86
indemnify, shall reserve such funds as are necessary, in the	87
exercise of sound and prudent actuarial judgment, to cover the	88
potential expense, fees, damage, loss, or other liability. The	89
superintendent of insurance may recommend, or, if such hospital	90
requests the superintendent to do so, the superintendent shall	91
recommend, a specific amount for any period that, in the	92
superintendent's opinion, represents such a judgment. This	93
authority is in addition to any authorization otherwise provided	94
or permitted by law.	95

(D) Recoveries against the state shall be reduced by the	96
aggregate of insurance proceeds, disability award, or other	97
collateral recovery received by the claimant. This division does	98
not apply to civil actions in the court of claims against a state	99
university or college under the circumstances described in section	100
3345.40 of the Revised Code. The collateral benefits provisions of	101
division (B)(2) of that section apply under those circumstances.	102

(E) The only defendant in original actions in the court of	103
claims is the state. The state may file a third-party complaint or	104
counterclaim in any civil action, except a civil action for two	105
thousand five hundred dollars or less, that is filed in the court	106
of claims.	107

(F) A civil action against an officer or employee, as defined	108
in section 109.36 of the Revised Code, that alleges that the	109
officer's or employee's conduct was manifestly outside the scope	110
of the officer's or employee's employment or official	111
responsibilities, or that the officer or employee acted with	112
malicious purpose, in bad faith, or in a wanton or reckless manner	113
shall first be filed against the state in the court of claims,	114
which has exclusive, original jurisdiction to determine,	115
initially, whether the officer or employee is entitled to personal	116
immunity under section 9.86 of the Revised Code and whether the	117
courts of common pleas have jurisdiction over the civil action.	118
The officer or employee may participate in the immunity	119
determination proceeding before the court of claims to determine	120
whether the officer or employee is entitled to personal immunity	121
under section 9.86 of the Revised Code.	122

The filing of a claim against an officer or employee under	123
this division tolls the running of the applicable statute of	124
limitations until the court of claims determines whether the	125
officer or employee is entitled to personal immunity under section	126
9.86 of the Revised Code.	127

(G) Whenever a claim lies against an officer or employee who	128
is a member of the Ohio national guard, and the officer or	129
employee was, at the time of the act or omission complained of,	130
subject to the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28	131
U.S.C. 2671, et seq., then the Federal Tort Claims Act is the	132
exclusive remedy of the claimant and the state has no liability	133
under this section.	134

(H) If an inmate of a state correctional institution has a	135
claim against the state for the loss of or damage to property and	136
the amount claimed does not exceed three hundred dollars, before	137
commencing an action against the state in the court of claims, the	138
inmate shall file a claim for the loss or damage under the rules	139
adopted by the director of rehabilitation and correction pursuant	140
to this division. The inmate shall file the claim within the time	141
allowed for commencement of a civil action under section 2743.16	142
of the Revised Code. If the state admits or compromises the claim,	143
the director shall make payment from a fund designated by the	144
director for that purpose. If the state denies the claim or does	145
not compromise the claim at least sixty days prior to expiration	146
of the time allowed for commencement of a civil action based upon	147
the loss or damage under section 2743.16 of the Revised Code, the	148
inmate may commence an action in the court of claims under this	149
chapter to recover damages for the loss or damage.	150

The director of rehabilitation and correction shall adopt	151
rules pursuant to Chapter 119. of the Revised Code to implement	152
this division.	153

Sec. 3333.31.  (A) For state subsidy and tuition surcharge	154
purposes, status as a resident of Ohio shall be defined by the	155
chancellor of the Ohio board of regents by rule promulgated	156
pursuant to Chapter 119. of the Revised Code. No adjudication as	157
to the status of any person under such rule, however, shall be	158
required to be made pursuant to Chapter 119. of the Revised Code.	159
The term "resident" for these purposes shall not be equated with	160
the definition of that term as it is employed elsewhere under the	161
laws of this state and other states, and shall not carry with it	162
any of the legal connotations appurtenant thereto. Rather, except	163
as provided in divisions (B) and (D) of this section, for such	164
purposes, the rule promulgated under this section shall have the	165
objective of excluding from treatment as residents those who are	166
present in the state primarily for the purpose of attending a	167
state-supported or state-assisted institution of higher education,	168
and may prescribe presumptive rules, rebuttable or conclusive, as	169
to such purpose based upon the source or sources of support of the	170
student, residence prior to first enrollment, evidence of	171
intention to remain in the state after completion of studies, or	172
such other factors as the chancellor deems relevant.	173

(B) The rules of the chancellor for determining student	174
residency shall grant residency status to a veteran and to the	175
veteran's spouse and any dependent of the veteran, if both of the	176
following conditions are met:	177

(1) The veteran either:

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(a) Served one or more years on active military duty and was	179
honorably discharged or received a medical discharge that was	180
related to the military service;	181

(b) Was killed while serving on active military duty or has	182
been declared to be missing in action or a prisoner of war.	183

(2) If the veteran seeks residency status for tuition	184
surcharge purposes, the veteran has established domicile in this	185
state as of the first day of a term of enrollment in an	186
institution of higher education. If the spouse or a dependent of	187
the veteran seeks residency status for tuition surcharge purposes,	188
the veteran and the spouse or dependent seeking residency status	189
have established domicile in this state as of the first day of a	190
term of enrollment in an institution of higher education, except	191
that if the veteran was killed while serving on active military	192
duty or has been declared to be missing in action or a prisoner of	193
war, only the spouse or dependent seeking residency status shall	194
be required to have established domicile in accordance with this	195
division.	196

(C) The rules of the chancellor for determining student	197
residency shall not deny residency status to a student who is	198
either a dependent child of a parent, or the spouse of a person	199
who, as of the first day of a term of enrollment in an institution	200
of higher education, has accepted full-time employment and	201
established domicile in this state for reasons other than gaining	202
the benefit of favorable tuition rates.	203

Documentation of full-time employment and domicile shall	204
include both of the following documents:	205

(1) A sworn statement from the employer or the employer's	206
representative on the letterhead of the employer or the employer's	207
representative certifying that the parent or spouse of the student	208
is employed full-time in Ohio;	209

(2) A copy of the lease under which the parent or spouse is	210
the lessee and occupant of rented residential property in the	211
state, a copy of the closing statement on residential real	212
property of which the parent or spouse is the owner and occupant	213
in this state or, if the parent or spouse is not the lessee or	214
owner of the residence in which the parent or spouse has	215
established domicile, a letter from the owner of the residence	216
certifying that the parent or spouse resides at that residence.	217

Residency officers may also evaluate, in accordance with the	218
chancellor's rule, requests for immediate residency status from	219
dependent students whose parents are not living and whose domicile	220
follows that of a legal guardian who has accepted full-time	221
employment and established domicile in the state for reasons other	222
than gaining the benefit of favorable tuition rates.	223

(D)(1) The rules of the chancellor for determining student	224
residency shall grant residency status to a person who, while a	225
resident of this state for state subsidy and tuition surcharge	226
purposes, graduated from a high school in this state or completed	227
the final year of instruction at home as authorized under section	228
3321.04 of the Revised Code, if the person enrolls in an	229
institution of higher education and establishes domicile in this	230
state, regardless of the student's residence prior to that	231
enrollment.	232

(2) The rules of the chancellor for determining student	233
residency shall not grant residency status to an alien if the	234
alien is not also an immigrant or a nonimmigrant.	235

(E) As used in this section:

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(1) "Dependent, "dependent," "domicile," "institution of	237
higher education," and "residency officer" have the meanings	238
ascribed in the chancellor's rules adopted under this section.	239

(2) "Alien" means a person who is not a United States citizen	240
or a United States national.	241

(3) "Immigrant" means an alien who has been granted the right	242
by the United States bureau of citizenship and immigration	243
services to reside permanently in the United States and to work	244
without restrictions in the United States.	245

(4) "Nonimmigrant" means an alien who has been granted the	246
right by the United States bureau of citizenship and immigration	247
services to reside temporarily in the United States.	248

Sec. 3333.311.  (A) As used in this section, "state	249
institution of higher education" has the same meaning as section	250
3345.011 of the Revised Code.	251

(B) For purposes of state subsidy and tuition and fee	252
surcharges, an individual who is not a citizen or permanent legal	253
resident of the United States and intends to attend a state	254
institution of higher education has resident status if all of the	255
following conditions are met:	256

(1) The individual graduated from a public or private high	257
school, or received the equivalent of a high school diploma, in	258
this state.	259

(2) The individual attended high school in this state for at	260
least three years as of the date the individual graduated from	261
high school, or the individual had resided in this state for at	262
least three years as of the date the individual received the	263
equivalent of a high school diploma.	264

(3) The individual registers as an entering student in the	265
institution not earlier than the fall term of 2012.	266

(4) The individual provides the institution of higher	267
education with an affidavit stating that the individual will file	268
an application to become a citizen or permanent legal resident of	269
the United States at the earliest opportunity the individual is	270
eligible to do so.	271

(C) An individual who is granted residency for tuition	272
purposes under this section shall continue to be classified as a	273
resident of this state until the individual establishes a	274
residence outside of this state.	275

(D) Any individual described in division (B) of this section	276
shall be eligible to receive a scholarship that is derived from	277
funds not received from the state, for the purpose of	278
scholarships, awarded by the state institution of higher education	279
at which the individual is enrolled.	280

(E) Notwithstanding any provision of the Revised Code or any	281
current appropriations act to the contrary, an individual	282
described in division (B) of this section shall be eligible to	283
receive any state-funded financial aid, including scholarships and	284
grants, for which the individual otherwise is eligible.	285

(F) The board of trustees, or the equivalent, of each state	286
institution of higher education shall establish procedures and	287
forms that enable an individual described in division (B) of this	288
section to apply for and receive all student aid programs	289
administered by the institution to the full extent permitted by	290
law.	291

(G) If a state court finds that this section is unlawful, the	292
court may order that state institutions of higher education	293
terminate compliance with this section, but no money damages,	294
instructional and general fee refund or waiver, or other	295
retroactive relief may be awarded to a claimant. In any action in	296
which the court finds that this section is unlawful, the board of	297
trustees, or equivalent, of a state institution of higher	298
education shall be immune from the imposition of any award of	299
money damages, instructional and general fee refund or waiver, or	300
other retroactive relief.	301

Section 2. That existing sections 2743.02 and 3333.31 of the	302
Revised Code are hereby repealed.	303