Relates to the effect and rebuttal of certain medical presumptions relating to heart disease; provides that, for certain members, any condition of impairment of health caused by a disease of the heart, resulting in disability, shall be presumptive evidence that such disability was incurred in the performance and discharge of duty and the natural and proximate result of an accident.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7004A
SPONSOR: Abbate TITLE OF BILL:
An act to amend the retirement and social security law, in relation to
certain medical presumptions applicable to members of the New York state
and local employees' retirement system
PURPOSE OR GENERAL IDEA OF BILL:
This bill is intended to clarify the intent of the legislature regarding
existing statutory presumptions pertaining to heart-related disabilities
suffered by members of the New York State Local Police, Fire Retirement
System and the New York State and Local Employees' Retirement System.
Clarification is necessary because a series of narrow judicial interpre-
tations has prevented the statutory presumptions from achieving their
intended purposes.
SUMMARY OF PROVISIONS:
Section 1 amends subdivision 2 of section 363-a of the Retirement and
Social Security Law to restore to the heart disease presumption applica-
ble to police officers language that expressly provided that an impair-
ment of health caused by diseases of the heart that results in disabili-
ty is also presumed to be "the natural and proximate result of an
accident, unless the contrary can be proved by competent evidence"
Section 2 adds a new section 809 to the Retirement and Social Security
Law to govern the existing statutory heart disease presumptions applica-
ble to members of the New York State Police and Fire Retirement System
and the New York State and Local Employees Retirement System with
respect to applications for an accidental disability retirement allow-
ance.
* Subdivision a of Section 2 provides that the section shall apply only
to applications for an accidental disability retirement with respect to
members of the New York State Police and Fire Retirement System and
Local Employees' Retirement System and the New York State Local Police
where applications are subject to dual presumptions that disability from
diseases of the heart are (1) incurred in the performance and discharge
of duty, and (2) the natural and proximate result of an accident.
* Subdivision b of Section 2 provides that it is not necessary for an
applicant to allege or establish an accidental disability retirement
that is subject to the dual presumptions. Subdivision b also provides
that such an applicant need not establish that notice of an accident was
filed.
* Subdivision c of Section 2 provides that the presumption may be
rebutted only by competent evidence that .the heart disease is not the
natural and proximate result of the performance and discharge of duty.
Section three provides that the provisions of this bill shall not
affect, impair, or invalidate any temporary right, privilege, or benefit
conferred under existing general, special, or local law.
Section four provides the effective date.
JUSTIFICATION:
This remedial legislation is intended to overcome judicial interpreta-
tions limiting the effectiveness of certain existing statutory heart
disease presumptions in a manner that is inconsistent with the apparent
intent behind the original enactment of such presumptions. In the past
30 years, the Legislature has passed, and the governor has signed into
law a series of "heart bills" designed to make it easier for certain
public servants at the state and local levels whose jobs put them at
high risk of injury, disease or death due to heart disease to receive an
accidental disability retirement allowance. In general, these laws
create statutory presumptions that the member's heart disease was the
result of a job-related accident.
The presumption lightens, but does not eliminate, the member's burden of
establishing entitlement to the enhanced benefit, which is usually
three-quarters of final average salary. Over the years these presump-
tions have been interpreted differently by different courts, with Appel-
late Division, Third Department, which has jurisdiction over retirement
benefit determinations by the New York State and Local Retirement System
and the New York State Local Police and Fire Retirement System taking
the strictest approach According to a series of Third Department cases,
despite the statutory presumption, the law must be interpreted narrowly
to require the member to submit proof of an actual accident and notice
to the employer of such an -accident, and if a member is found to be
permanently disabled, the member is granted only a rebuttable presump-
tion that his or her heart disease was incurred in the performance of
duty and was the result of the specific accident.
PRIOR LEGISLATIVE HISTORY:
2021: A7004 - referred to Governmental Employees
2019-2020: A7907B - Referred to Governmental Employees
2012: A3781A - Referred to Governmental Employees
2011: A3781 - Referred to Governmental Employees
2010: A7796 - Referred to Governmental Employees
2009: A7796 - Referred to Governmental Employees
2008: S8429/A11455 - Vetoed by Governor
FISCAL IMPLICATIONS:
See bill
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
7004--A
2021-2022 Regular Sessions
IN ASSEMBLY
April 19, 2021
___________
Introduced by M. of A. ABBATE -- read once and referred to the Committee
on Governmental Employees -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the retirement and social security law, in relation to
certain medical presumptions applicable to members of the New York
state and local employees' retirement system
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 2 of section 363-a of the retirement and social
2 security law, as amended by chapter 437 of the laws of 2016, is amended
3 to read as follows:
4 2. Notwithstanding any provision of this chapter or of any general,
5 special, or local law to the contrary, any condition of impairment of
6 health caused by diseases of the heart, resulting in disability or death
7 to a police officer, presently employed, and who shall have sustained
8 such disability while so employed, shall be presumptive evidence that it
9 was incurred in the performance and discharge of duty and the natural
10 and proximate result of an accident, unless the contrary be proved by
11 competent evidence.
12 § 2. The retirement and social security law is amended by adding a new
13 section 809 to read as follows:
14 § 809. Effect and rebuttal of certain medical presumptions pertaining
15 to diseases of the heart. a. This section shall apply to certain appli-
16 cations for disability retirement allowances made by or on behalf of a
17 member of the New York state and local employees' retirement system or
18 the New York state and local police and fire retirement system. It
19 shall apply only to applications that are subject under this chapter to
20 a provision that any condition of impairment of health caused by a
21 disease of the heart, resulting in disability, shall be presumptive
22 evidence that such disability was incurred in the performance and
23 discharge of duty and the natural and proximate result of an accident.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10747-06-2
A. 7004--A 2
1 b. Notwithstanding any other provision of law to the contrary an
2 application for an accidental disability retirement allowance that is
3 based on a permanent incapacity caused by a disease of the heart, shall
4 not be required to allege or establish:
5 (1) that the member sustained an accident or other incident related to
6 the performance and discharge of duty; or
7 (2) that notice was provided thereof.
8 c. Notwithstanding any other provision of law to the contrary, the
9 presumptions referred to in subdivision a of this section may be
10 rebutted only by competent evidence that the disability is not the
11 natural and proximate result of the performance and discharge of duty.
12 § 3. The amendment made to subdivision 2 of section 363-a of the
13 retirement and social security law by section one of this act shall not
14 affect, impair or invalidate any temporary right, privilege or benefit
15 conferred pursuant to the provisions of a general, special or local law
16 (other than pursuant to articles 14 and 15 of the retirement and social
17 security law) for any member of a public retirement system or pension
18 plan funded by the state or one of its political subdivisions, nor shall
19 any amendment thereto affect the application of such provisions as
20 extended by the provisions of section 480 of the retirement and social
21 security law.
22 § 4. This act shall take effect immediately.
FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
This bill would amend the Retirement and Social Security Law (RSSL) to
1) Eliminate certain eligibility requirements for awarding accidental
disability benefits, when the disability is related to diseases of the
heart, for members in the New York State and Local Employees' Retirement
System (ERS) and the New York State and Local Police and Fire Retirement
System (PFRS). Accidental disability benefits would be granted even
where
a. the member did not sustain an accident,
b. the member's incapacitation is unrelated to any accident, or
c. the member failed to provide notice thereof.
The heart presumption could continue to be rebutted by competent
evidence that the disability is not the result of the performance and
discharge of duty.
2) Increase disability benefits payable to police officers in PFRS,
who become incapacitated due to diseases of the heart, by providing an
accidental disability benefit equal to 75% of salary less workers'
compensation. Currently, police officers are eligible for a perfor-
mance-of-duty (POD) disability benefit equal to 50% of salary less work-
ers' compensation.
3) Increase the death benefits payable on behalf of a deceased police
officer in PFRS, whose death results from diseases of the heart, by
providing the special accidental death benefit equal to more than 100%
of salary less workers' compensation and social security benefits paya-
ble to eligible beneficiary(ies). Currently the death benefit would be
the continuance afforded under the POD disability retirement.
Insofar as this bill will affect the New York State and Local Retire-
ment System (NYSLRS), more accidental disability benefits and accidental
death benefits would be granted. The cost of the revised benefit will
depend upon the applicant's age, service, salary, plan, and benefit type
otherwise payable.
The number of retirees who could be affected by this legislation
cannot be readily determined. However, every active member of PFRS will
A. 7004--A 3
be covered, as well as members of ERS who are Uniformed Court Peace
Officers in the Unified Court System.
If this bill is enacted during the 2022 legislative session, we antic-
ipate that there will be an increase of approximately $5.6 million in
the annual contributions to NYSLRS for the fiscal year ending March 31,
2023. This cost would be shared by the State of New York (the State) and
local participating employers of PFRS as follows:
a. $2.3 million borne annually by the State ($900,000 to PFRS and $1.4
million to ERS), and
b. $3.3 million borne by the local participating employers in PFRS.
In future years, these annual costs will vary as the salary of
affected members change.
In addition to the annual contributions discussed above, there will be
an immediate past service cost to ERS of approximately $13.2 million
which will be borne by the State as a one-time payment. This estimate is
based on the assumption that payment will be made on March 1, 2023.
Further, we anticipate that the number of accidental disability appli-
cations will result in a large increase in the administrative cost to
process these applications and litigate anticipated disputes.
Estimated costs arising in PFRS are based upon 31,922 members with an
approximate salary of $3.7 billion as of March 31, 2021. Estimated costs
arising in ERS are based upon 6,531 members with an approximate salary
of $608 million as of March 31, 2021.
Summary of relevant resources:
Membership data as of March 31, 2021 was used in measuring the impact
of the proposed change, the same data used in the April 1, 2021 actuari-
al valuation. Distributions and other statistics can be found in the
2021 Report of the Actuary and the 2021 Comprehensive Annual Financial
Report.
The actuarial assumptions and methods used are described in the 2020
and 2021 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, 2021
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 opinion contained herein.
This fiscal note does not constitute a legal opinion on the viability
of the proposed change nor is it intended to serve as a substitute for
the professional judgment of an attorney.
This estimate, dated January 4, 2022, and intended for use only during
the 2022 Legislative Session, is Fiscal Note No. 2022-39, prepared by
the Actuary for the New York State and Local Retirement System.
