S T A T E O F N E W Y O R K
________________________________________________________________________
5328
2015-2016 Regular Sessions
I N A S S E M B L Y
February 18, 2015
___________
Introduced by M. of A. ABBATE -- read once and referred to the Committee
on Governmental Employees
AN ACT to amend the retirement and social security law, in relation to
providing performance of duty disability retirement benefits for
members in the employ of Nassau County as chief fire marshals, assist-
ant chief fire marshals, division supervising fire marshals, supervis-
ing 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 607-i to read as follows:
S 607-I. PERFORMANCE OF DUTY DISABILITY RETIREMENT FOR MEMBERS IN THE
EMPLOY OF NASSAU COUNTY AS CHIEF FIRE MARSHALS, ASSISTANT CHIEF FIRE
MARSHALS, DIVISION SUPERVISING FIRE MARSHALS, SUPERVISING FIRE MARSHALS,
FIRE MARSHALS AND FIRE MARSHAL TRAINEES. A. A MEMBER EMPLOYED BY NASSAU
COUNTY AS A CHIEF FIRE MARSHAL, ASSISTANT CHIEF FIRE MARSHAL, DIVISION
SUPERVISING FIRE MARSHAL, SUPERVISING FIRE MARSHAL, FIRE MARSHAL OR FIRE
MARSHAL TRAINEE, WHO BECOMES PHYSICALLY OR MENTALLY INCAPACITATED FOR
THE PERFORMANCE OF DUTIES AS THE NATURAL AND PROXIMATE RESULT OF AN
INJURY, SUSTAINED AND DOCUMENTED AFTER THE ENACTMENT OF THIS SECTION,
AND SUSTAINED IN THE PERFORMANCE OR DISCHARGE OF HIS OR HER DUTIES SHALL
BE PAID PERFORMANCE OF DUTY DISABILITY RETIREMENT ALLOWANCE EQUAL TO
THREE-QUARTERS OF FINAL AVERAGE SALARY, SUBJECT TO SECTION SIXTY-FOUR OF
THIS CHAPTER.
B. NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR OF ANY GENERAL OR
SPECIAL LAW TO THE CONTRARY, A MEMBER COVERED BY THIS SECTION WHO
CONTRACTS HIV (WHERE THE MEMBER MAY HAVE BEEN EXPOSED TO A BODILY FLUID
OF A PERSON UNDER HIS OR HER CARE OR TREATMENT, OR WHILE THE MEMBER
EXAMINED, TRANSPORTED OR OTHERWISE HAD CONTACT WITH SUCH PERSON, IN THE
PERFORMANCE OF HIS OR HER DUTIES) TUBERCULOSIS OR HEPATITIS, WILL BE
PRESUMED TO HAVE CONTRACTED SUCH DISEASE IN THE PERFORMANCE OR DISCHARGE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07721-02-5
A. 5328 2
OF HIS OR HER DUTIES, UNLESS THE CONTRARY BE PROVED BY COMPETENT
EVIDENCE.
C. 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 HEAD OF EACH RETIREMENT SYSTEM IS HEREBY AUTHORIZED TO PROMUL-
GATE RULES AND REGULATIONS TO IMPLEMENT THE PROVISIONS OF THIS PARA-
GRAPH.
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
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, A PERFORMANCE OF DUTY DISABILITY RETIRE-
MENT, AND SUBSEQUENT TO SUCH RETIREMENT OR SEPARATION IS DETERMINED BY
THE COMPTROLLER TO HAVE A QUALIFYING WORLD TRADE CENTER CONDITION, AS
DEFINED IN SECTION TWO OF THIS CHAPTER, UPON SUCH DETERMINATION BY THE
HEAD OF THE RETIREMENT SYSTEM, IT SHALL BE PRESUMED THAT SUCH DISABILITY
WAS INCURRED IN THE PERFORMANCE 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 HEAD OF THE RETIREMENT SYSTEM SHALL CONSIDER A RECLASSIFICA-
TION OF THE MEMBER'S RETIREMENT OR VESTING 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 HEAD OF EACH RETIREMENT SYSTEM IS HEREBY AUTHORIZED TO PROMUL-
GATE RULES AND REGULATIONS TO IMPLEMENT THE PROVISIONS OF THIS PARA-
GRAPH.
D. 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 C OF THIS SECTION AND RETIRED ON A SERVICE OR DISABILITY
RETIREMENT, 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
A. 5328 3
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
ACCIDENTAL DEATH BENEFIT PAYMENTS TO THE ELIGIBLE BENEFICIARY WILL BE
REDUCED BY ANY AMOUNTS PAID OR PAYABLE TO ANY OTHER BENEFICIARY.
E. 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 C OF THIS SECTION; AND (2) DIES 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 RETIRE-
MENT 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. All past service costs incurred due to implementing the
provisions of this act shall be borne by Nassau county.
S 3. This act shall take effect immediately.
FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
This bill will allow any Nassau County chief fire marshal, assistant
fire marshal, division supervising fire marshal, supervising fire
marshal, fire marshal and fire marshal trainee to become eligible to
receive a disability benefit of 75% of final average salary (FAS) less
worker's compensation for a disability sustained in the performance of
duty. This would also include disabilities sustained due to hepatitis,
tuberculosis, HIV and World Trade Center related illnesses. Currently,
such members may file for an accidental disability benefit of 75% of FAS
less workers compensation, but must be able to prove that their disabil-
ity was the result of an accident. Such injuries must be sustained and
documented after the enactment of this legislation.
Further, this bill would grant that members whose health is impaired
due to a qualifying World Trade Center condition would also be eligible
for this new benefit. In addition, the beneficiaries of those who have
been retired due to a qualifying World Trade Center condition, and die
within 25 years from their date of disability retirement, will have
their benefits recalculated as 50% of pay accidental death benefits.
The number of members and retirees who could be affected by the
enhanced World Trade Center benefits of this legislation cannot be read-
ily determined.
A. 5328 4
If this legislation is enacted during the 2015 legislative session, we
anticipate that there will be an increase in the annual contributions of
Nassau County of approximately $53,000 for the fiscal year ending March
31, 2016. In future years, this cost will vary as the billing rates and
salaries of the affected members change.
In addition to the annual contributions discussed above, there will be
an immediate past service cost of approximately $353,000 which would be
borne by Nassau County as a one-time payment. This estimate is based on
the assumption that payment will be made on February 1, 2016. There
would also be a past service cost for any members or retirees who become
eligible for the enhanced World Trade center benefits of this legis-
lation.
These estimated costs above are based on 45 fire marshals employed by
Nassau County with a total estimated annual salary of approximately $4.8
million, for the fiscal year ending March 31, 2014.
Summary of relevant resources:
The membership data used in measuring the impact of the proposed
change was the same as that used in the March 31, 2014 actuarial valu-
ation. Distributions and other statistics can be found in the 2014
Report of the Actuary and the 2014 Comprehensive Annual Financial
Report.
The actuarial assumptions and methods used are described in the 2010,
2011, 2012, 2013 and 2014 Annual Report to the Comptroller on Actuarial
Assumptions, and the Codes Rules and Regulations of the State of New
York: Audit and Control.
The Market Assets and GASB Disclosures are found in the March 31, 2014
New York State and Local Retirement System Financial Statements and
Supplementary Information.
I am a member of the American Academy of Actuaries and meet the Quali-
fication Standards to render the actuarial opinions continued herein.
This estimate, dated January 29, 2015, and intended for use only
during the 2015 Legislative Session, is Fiscal Note No. 2015-49,
prepared by the Actuary for the New York State and Local Employees'
Retirement System.