S T A T E O F N E W Y O R K
________________________________________________________________________
9920--A
I N A S S E M B L Y
April 24, 2012
___________
Introduced by M. of A. ABBATE, WEISENBERG -- read once and referred to
the Committee on Governmental Employees -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the retirement and social security law, in relation to
providing accidental disability retirement benefits for chief fire
marshals, assistant fire marshals, division supervising fire marshals,
supervising fire marshals, fire marshals and fire marshal trainees
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The retirement and social security law is amended by adding
a new section 605-d to read as follows:
S 605-D. ACCIDENTAL DISABILITY RETIREMENT FOR CHIEF FIRE MARSHALS,
ASSISTANT FIRE MARSHALS, DIVISION SUPERVISING FIRE MARSHALS, SUPERVISING
FIRE MARSHALS, FIRE MARSHALS AND FIRE MARSHAL TRAINEES. A. A MEMBER
EMPLOYED AS A CHIEF FIRE MARSHAL, ASSISTANT FIRE MARSHAL, DIVISION
SUPERVISING FIRE MARSHAL, SUPERVISING FIRE MARSHAL, FIRE MARSHAL OR FIRE
MARSHAL TRAINEE SHALL BE ENTITLED TO AN ACCIDENTAL DISABILITY RETIREMENT
ALLOWANCE IF, AT THE TIME APPLICATION THEREFOR IS FILED, SUCH MEMBER IS:
1. PHYSICALLY OR MENTALLY INCAPACITATED FOR PERFORMANCE OF DUTY AS THE
NATURAL AND PROXIMATE RESULT OF AN ACCIDENT, UNLESS THE CONTRARY BE
PROVED BY COMPETENT EVIDENCE, NOT CAUSED BY HIS OWN WILLFUL NEGLIGENCE,
SUSTAINED IN SUCH SERVICE AND WHILE ACTUALLY A MEMBER OF THE RETIREMENT
SYSTEM; AND
2. ACTUALLY IN SERVICE UPON WHICH HIS OR HER MEMBERSHIP IS BASED.
HOWEVER, IN A CASE WHERE A MEMBER IS DISCONTINUED FROM SERVICE SUBSE-
QUENT TO THE ACCIDENT, EITHER VOLUNTARILY OR INVOLUNTARILY, AND PROVIDED
THAT THE MEMBER MEETS THE REQUIREMENTS OF PARAGRAPH ONE OF THIS SUBDIVI-
SION, APPLICATION MAY BE MADE EITHER (A) BY A VESTED MEMBER INCAPACI-
TATED AS THE RESULT OF A QUALIFYING WORLD TRADE CENTER CONDITION AS
DEFINED IN SECTION TWO OF THIS CHAPTER AT ANY TIME, OR (B) NOT LATER
THAN TWO YEARS AFTER THE MEMBER IS FIRST DISCONTINUED FROM SERVICE.
B. APPLICATION FOR AN ACCIDENTAL DISABILITY RETIREMENT ALLOWANCE FOR
SUCH A MEMBER MAY BE MADE BY:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15351-02-2
A. 9920--A 2
1. SUCH MEMBER; OR
2. THE HEAD OF THE DEPARTMENT IN WHICH SUCH MEMBER IS EMPLOYED; OR
3. ANY PERSON ACTING ON BEHALF OF AND AUTHORIZED BY SUCH MEMBER.
C. 1. AFTER THE FILING OF SUCH AN APPLICATION, SUCH MEMBER SHALL BE
GIVEN ONE OR MORE MEDICAL EXAMINATIONS. NO SUCH APPLICATION SHALL BE
APPROVED, HOWEVER, UNLESS THE MEMBER OR SOME OTHER PERSON ON HIS BEHALF
SHALL HAVE FILED WRITTEN NOTICE IN THE OFFICE OF THE COMPTROLLER WITHIN
NINETY DAYS AFTER THE ACCIDENT, SETTING FORTH:
(A) THE TIME WHEN AND THE PLACE WHERE SUCH ACCIDENT OCCURRED; AND
(B) THE PARTICULARS THEREOF; AND
(C) THE NATURE AND EXTENT OF THE MEMBER'S INJURIES; AND
(D) HIS OR HER ALLEGED INCAPACITY.
2. THE NOTICE HEREIN REQUIRED NEED NOT BE GIVEN:
(A) IF THE NOTICE OF SUCH ACCIDENT SHALL BE FILED IN ACCORDANCE WITH
THE PROVISIONS OF THE WORKERS' COMPENSATION LAW OF ANY STATE WITHIN
WHICH A PARTICIPATING EMPLOYER SHALL HAVE ITS EMPLOYEES LOCATED OR
PERFORMING FUNCTIONS AND DUTIES WITHIN THE NORMAL SCOPE OF THEIR EMPLOY-
MENT; OR
(B) IF THE APPLICATION FOR ACCIDENTAL DISABILITY RETIREMENT IS FILED
WITHIN ONE YEAR AFTER THE DATE OF SUCH ACCIDENT; OR
(C) IF A FAILURE TO FILE NOTICE HAS BEEN EXCUSED FOR GOOD CAUSE SHOWN
AS PROVIDED BY RULES AND REGULATIONS PROMULGATED BY THE COMPTROLLER.
D. IF THE COMPTROLLER DETERMINES THAT THE MEMBER IS PHYSICALLY OR
MENTALLY INCAPACITATED FOR THE PERFORMANCE OF DUTY AND OUGHT TO BE
RETIRED FOR ACCIDENTAL DISABILITY, SUCH MEMBER SHALL BE SO RETIRED. SUCH
RETIREMENT SHALL BE EFFECTIVE AS OF A DATE APPROVED BY THE COMPTROLLER.
E. THE ANNUAL RETIREMENT ALLOWANCE PAYABLE UPON ACCIDENTAL DISABILITY
RETIREMENT SHALL BE A PENSION OF THREE-QUARTERS OF HIS FINAL AVERAGE
SALARY. THE PAYMENT OF SUCH PENSION SHALL BE SUBJECT TO THE PROVISIONS
OF SECTION SIXTY-FOUR OF THIS CHAPTER.
F. IF THE MEMBER, AT THE TIME OF THE FILING OF AN APPLICATION UNDER
THE PROVISIONS OF SUBDIVISION B OF THIS SECTION, IS ELIGIBLE FOR A
SERVICE RETIREMENT BENEFIT, THEN AND IN THAT EVENT, HE MAY SIMULTANEOUS-
LY FILE AN APPLICATION FOR SERVICE RETIREMENT IN ACCORDANCE WITH THE
PROVISION OF SECTION SEVENTY OF THIS CHAPTER, PROVIDED THAT THE MEMBER
INDICATES ON THE APPLICATION FOR SERVICE RETIREMENT THAT SUCH APPLICA-
TION IS FILED WITHOUT PREJUDICE TO THE APPLICATION FOR ACCIDENTAL DISA-
BILITY RETIREMENT.
G. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THIS SECTION SHALL
APPLY TO CHIEF FIRE MARSHALS, ASSISTANT FIRE MARSHALS, DIVISION SUPER-
VISING FIRE MARSHALS, SUPERVISING FIRE MARSHALS, FIRE MARSHALS AND FIRE
MARSHAL TRAINEES WHO WERE HIRED ON OR AFTER JULY TWENTY-SEVENTH, NINE-
TEEN HUNDRED SEVENTY-SIX.
H. 1. (A) NOTWITHSTANDING ANY PROVISIONS OF THIS CHAPTER OR OF ANY
GENERAL, SPECIAL OR LOCAL LAW, CHARTER, ADMINISTRATIVE CODE OR RULE OR
REGULATION TO THE CONTRARY, IF ANY CONDITION OR IMPAIRMENT OF HEALTH IS
CAUSED BY A QUALIFYING WORLD TRADE CENTER CONDITION AS DEFINED IN
SECTION TWO OF THIS CHAPTER, IT SHALL BE PRESUMPTIVE EVIDENCE THAT IT
WAS INCURRED IN THE PERFORMANCE AND DISCHARGE OF DUTY AND THE NATURAL
AND PROXIMATE RESULT OF AN ACCIDENT NOT CAUSED BY SUCH MEMBER'S OWN
WILLFUL NEGLIGENCE, UNLESS THE CONTRARY BE PROVED BY COMPETENT EVIDENCE.
(B) THE COMPTROLLER IS HEREBY AUTHORIZED TO PROMULGATE RULES AND REGU-
LATIONS TO IMPLEMENT THE PROVISIONS OF THIS PARAGRAPH.
2. (A) NOTWITHSTANDING THE PROVISIONS OF THIS CHAPTER OR OF ANY GENER-
AL, SPECIAL OR LOCAL LAW, CHARTER, ADMINISTRATIVE CODE OR RULE OR REGU-
LATION TO THE CONTRARY, IF A MEMBER WHO PARTICIPATED IN WORLD TRADE
A. 9920--A 3
CENTER RESCUE, RECOVERY OR CLEANUP OPERATIONS, AS DEFINED IN SECTION TWO
OF THIS CHAPTER, AND SUBSEQUENTLY RETIRED ON A SERVICE RETIREMENT, AN
ORDINARY DISABILITY RETIREMENT OR A PERFORMANCE OF DUTY DISABILITY
RETIREMENT AND SUBSEQUENT TO SUCH RETIREMENT IS DETERMINED BY THE COMP-
TROLLER TO HAVE A QUALIFYING WORLD TRADE CENTER CONDITION, AS DEFINED IN
SECTION TWO OF THIS CHAPTER, UPON SUCH DETERMINATION BY THE COMPTROLLER
IT SHALL BE PRESUMED THAT SUCH DISABILITY WAS INCURRED IN THE PERFORM-
ANCE AND DISCHARGE OF DUTY AS THE NATURAL AND PROXIMATE RESULT OF AN
ACCIDENT NOT CAUSED BY SUCH MEMBER'S OWN WILLFUL NEGLIGENCE, AND THAT
THE MEMBER WOULD HAVE BEEN PHYSICALLY OR MENTALLY INCAPACITATED FOR THE
PERFORMANCE AND DISCHARGE OF DUTY OF THE POSITION FROM WHICH HE OR SHE
RETIRED HAD THE CONDITION BEEN KNOWN AND FULLY DEVELOPED AT THE TIME OF
THE MEMBER'S RETIREMENT, UNLESS THE CONTRARY IS PROVEN BY COMPETENT
EVIDENCE.
(B) THE COMPTROLLER SHALL CONSIDER A RECLASSIFICATION OF THE MEMBER'S
RETIREMENT AS AN ACCIDENTAL DISABILITY RETIREMENT EFFECTIVE AS OF THE
DATE OF SUCH RECLASSIFICATION.
(C) SUCH MEMBER'S RETIREMENT OPTION SHALL NOT BE CHANGED AS A RESULT
OF SUCH RECLASSIFICATION.
(D) THE MEMBER'S FORMER EMPLOYER AT THE TIME OF THE MEMBER'S RETIRE-
MENT SHALL HAVE AN OPPORTUNITY TO BE HEARD ON THE MEMBER'S APPLICATION
FOR RECLASSIFICATION BY THE COMPTROLLER ACCORDING TO PROCEDURES DEVEL-
OPED BY THE COMPTROLLER.
(E) THE COMPTROLLER IS HEREBY AUTHORIZED TO PROMULGATE RULES AND REGU-
LATIONS TO IMPLEMENT THE PROVISIONS OF THIS PARAGRAPH.
I. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER OR OF ANY
GENERAL, SPECIAL OR LOCAL LAW, CHARTER, ADMINISTRATIVE CODE OR RULE OR
REGULATION TO THE CONTRARY, IF A RETIREE WHO: (1) HAS MET THE CRITERIA
OF SUBDIVISION H OF THIS SECTION AND RETIRED ON A SERVICE OR DISABILITY
RETIREMENT, OR WOULD HAVE MET THE CRITERIA IF NOT ALREADY RETIRED ON AN
ACCIDENTAL DISABILITY; AND (2) HAS NOT BEEN RETIRED FOR MORE THAN TWEN-
TY-FIVE YEARS; AND (3) DIES FROM A QUALIFYING WORLD TRADE CENTER CONDI-
TION, AS DEFINED IN SECTION TWO OF THIS CHAPTER, AS DETERMINED BY THE
APPLICABLE HEAD OF THE RETIREMENT SYSTEM OR APPLICABLE MEDICAL BOARD,
THEN UNLESS THE CONTRARY BE PROVEN BY COMPETENT EVIDENCE, SUCH RETIREE
SHALL BE DEEMED TO HAVE DIED AS A NATURAL AND PROXIMATE RESULT OF AN
ACCIDENT SUSTAINED IN THE PERFORMANCE OF DUTY AND NOT AS A RESULT OF
WILLFUL NEGLIGENCE ON HIS OR HER PART. SUCH RETIREE'S ELIGIBLE BENEFICI-
ARY, AS SET FORTH IN SECTION SIX HUNDRED ONE OF THIS ARTICLE, SHALL BE
ENTITLED TO AN ACCIDENTAL DEATH BENEFIT AS PROVIDED BY SECTION SIX
HUNDRED SEVEN OF THIS ARTICLE, HOWEVER, FOR THE PURPOSES OF DETERMINING
THE SALARY BASE UPON WHICH THE ACCIDENTAL DEATH BENEFIT IS CALCULATED,
THE RETIREE SHALL BE DEEMED TO HAVE DIED ON THE DATE OF HIS OR HER
RETIREMENT. UPON THE RETIREE'S DEATH, THE ELIGIBLE BENEFICIARY SHALL
MAKE A WRITTEN APPLICATION TO THE HEAD OF THE RETIREMENT SYSTEM WITHIN
THE TIME FOR FILING AN APPLICATION FOR AN ACCIDENTAL DEATH BENEFIT AS
SET FORTH IN SECTION SIX HUNDRED SEVEN OF THIS ARTICLE REQUESTING
CONVERSION OF SUCH RETIREE'S SERVICE OR DISABILITY RETIREMENT BENEFIT TO
AN ACCIDENTAL DEATH BENEFIT. AT THE TIME OF SUCH CONVERSION, THE ELIGI-
BLE BENEFICIARY SHALL RELINQUISH ALL RIGHTS TO THE PROSPECTIVE BENEFITS
PAYABLE UNDER THE SERVICE OR DISABILITY RETIREMENT BENEFIT, INCLUDING
ANY POST-RETIREMENT DEATH BENEFITS, SINCE THE RETIREE'S DEATH. IF THE
ELIGIBLE BENEFICIARY IS NOT THE ONLY BENEFICIARY RECEIVING OR ENTITLED
TO RECEIVE A BENEFIT UNDER THE SERVICE OR DISABILITY RETIREMENT BENEFIT
(INCLUDING, BUT NOT LIMITED TO, POST-RETIREMENT DEATH BENEFITS OR BENE-
FITS PAID OR PAYABLE PURSUANT TO THE RETIREE'S OPTION SELECTION), THE
A. 9920--A 4
ACCIDENTAL DEATH BENEFIT PAYMENTS TO THE ELIGIBLE BENEFICIARY WILL BE
REDUCED BY ANY AMOUNTS PAID OR PAYABLE TO ANY OTHER BENEFICIARY.
J. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER OR OF ANY
GENERAL, SPECIAL OR LOCAL LAW, CHARTER, ADMINISTRATIVE CODE OR RULE OR
REGULATION TO THE CONTRARY, IF A MEMBER WHO: (1) HAS MET THE CRITERIA OF
SUBDIVISION H OF THIS SECTION; AND (2) DIES IN ACTIVE SERVICE FROM A
QUALIFYING WORLD TRADE CENTER CONDITION, AS DEFINED IN SECTION TWO OF
THIS CHAPTER, AS DETERMINED BY THE APPLICABLE HEAD OF THE RETIREMENT
SYSTEM OR APPLICABLE MEDICAL BOARD TO HAVE BEEN CAUSED BY SUCH MEMBER'S
PARTICIPATION IN THE WORLD TRADE CENTER RESCUE, RECOVERY OR CLEANUP
OPERATIONS, AS DEFINED IN SECTION TWO OF THIS CHAPTER, THEN UNLESS THE
CONTRARY BE PROVEN BY COMPETENT EVIDENCE, SUCH MEMBER SHALL BE DEEMED TO
HAVE DIED AS A NATURAL AND PROXIMATE RESULT OF AN ACCIDENT SUSTAINED IN
THE PERFORMANCE OF DUTY AND NOT AS A RESULT OF WILLFUL NEGLIGENCE ON HIS
OR HER PART. SUCH MEMBER'S ELIGIBLE BENEFICIARY, AS SET FORTH IN SECTION
SIX HUNDRED ONE OF THIS ARTICLE, SHALL BE ENTITLED TO AN ACCIDENTAL
DEATH BENEFIT PROVIDED HE OR SHE MAKES WRITTEN APPLICATION TO THE HEAD
OF THE RETIREMENT SYSTEM WITHIN THE TIME FOR FILING AN APPLICATION FOR
AN ACCIDENTAL DEATH BENEFIT AS SET FORTH IN SECTION SIX HUNDRED SEVEN OF
THIS ARTICLE.
S 2. The amount specified in this section, or so much thereof as shall
be sufficient to accomplish the purpose designated, is hereby appropri-
ated and authorized to be paid as hereinafter provided, to the public
officers and for the purposes specified, which amount shall be available
for the state fiscal year beginning April 1, 2012.
MISCELLANEOUS -- ALL STATE DEPARTMENTS AND AGENCIES
GENERAL STATE CHARGES
STATE OPERATIONS 2012-13
GENERAL STATE CHARGES
General Fund
State Purposes Account
For the state's contribution to the employ-
ees' retirement system pension accumu-
lation fund and the New York state public
employees group life insurance plan, as
required by section 25 of the retirement
and social security law, to pay for the
purposes of section 605-d of the retire-
ment and social security law .................... 52,000
S 3. This act shall take effect immediately; provided, however, that
section two of this act shall be deemed to have been in full force and
effect on and after April 1, 2012.
FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
This bill would grant Tier 3, 4 and 5 chief fire marshals, assistant
fire marshals, division supervising fire marshals, supervising fire
marshals, fire marshals and fire marshal trainees an accidental disabil-
ity for injuries sustained in the performance of duty and the result of
an accident, unless the contrary be proven by competent evidence. The
benefit for an accidental disability would be 75% of final average sala-
ry less worker's compensation.
A. 9920--A 5
If this bill is enacted during the 2012 session, insofar as this bill
would affect Nassau County, there will be an estimated increase of
approximately $52,000 in the annual contributions for the fiscal year
ending March 31, 2013.
These estimated costs are based on fifty-three (53) members having an
annual salary for the fiscal year ending March 31, 2012 of approximately
$5.5 million.
There would also be a cost for any other municipality which employs
fire marshals, which would depend on the salaries of the affected fire
marshals.
Summary of relevant resources:
Data: March 31, 2011 Actuarial Year End File with distributions of
membership and other statistics displayed in the 2011 Report of the
Actuary and 2011 Comprehensive Annual Financial Report.
Assumptions and Methods: 2010 and 2011 Annual Report to the Comp-
troller on Actuarial Assumptions, Codes Rules and Regulations of the
State of New York: Audit and Control.
Market Assets and GASB Disclosures: March 31, 2011 New York State and
Local Retirement System Financial Statements and Supplementary Informa-
tion.
Valuations of Benefit Liabilities and Actuarial Assets: summarized in
the 2011 Actuarial Valuations report.
I am a member of the American Academy of Actuaries and meet the Quali-
fication Standards to render the actuarial opinion contained herein.
This estimate, dated March 15, 2012 and intended for use only during
the 2012 Legislative Session, is Fiscal Note No. 2012-90, prepared by
the Actuary for the New York State and Local Employees' Retirement
System.