NY State Senate Bill 2019-S5988A

Senate Bill S5988A

2019-2020 Legislative Session

Relates to the effect and rebuttal of certain medical presumptions relating to heart disease

download bill text pdf

Archive: Last Bill Status - In Senate Committee Civil Service And Pensions Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 16, 2020	print number 5988b
Mar 16, 2020	amend and recommit to civil service and pensions
Jan 08, 2020	referred to civil service and pensions
May 22, 2019	print number 5988a
May 22, 2019	amend and recommit to civil service and pensions
May 16, 2019	referred to civil service and pensions

Bill Amendments

Original

B (Active)

2019-S5988 - Details

See Assembly Version of this Bill:: A7907
Current Committee:: Senate Civil Service And Pensions
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §363-a, add §809, R & SS L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S6093, A7004
2023-2024: S5212, A5201

2019-S5988 - Summary

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.

2019-S5988 - Sponsor Memo

                                
 
BILL NUMBER: S5988

SPONSOR: GOUNARDES
 
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 appli-

cable to police officers language that expressly provided that an
impairment of health caused by diseases of the heart that results in
disability 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 appli-
cable to members of the New York State and local police, Local Fire
Retirement System and the New York State and Local Employees Retirement
System with respect to applications for an accidental disability retire-
ment allowance.

* 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, Local 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
natural and proximate result of the performance and discharge of duty.

 
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
behind the original enactment of such presumptions.  In the past 30
years, the Legislature has passed and the governor has signed into law
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 acci-
dental 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 elimi-
nate, the member's burden of establishing entitlement to the enhanced
benefit, which is usually three-quarters of final average salary. Over
the years the presumption have been interpreted differently by different
courts, with Appellate Division, Third Department, which has jurisdic-
tion 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, in spite of 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 presumption that his or her heart disease was
incurred in the performance of duty and was the result of the specific
accident.

 
PRIOR LEGISLATIVE HISTORY:

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.

2019-S5988 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5988
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Civil Service and Pensions
 
 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:
 
   Section 1. Subdivision 2 of section 363-a of the retirement and social
 security law, as amended by chapter 437 of the laws of 2016, is  amended
 to read as follows:
   2.  Notwithstanding  any  provision of this chapter or of any general,
 special, or local law to the contrary, any condition  of  impairment  of
 health caused by diseases of the heart, resulting in disability or death
 to  a  police  officer, presently employed, and who shall have sustained
 such disability while so employed, shall be presumptive evidence that it
 was incurred in the performance and discharge of duty  AND  THE  NATURAL
 AND  PROXIMATE  RESULT  OF AN ACCIDENT, unless the contrary be proved by
 competent evidence.
   § 2. The retirement and social security law is amended by adding a new
 section 809 to read as follows:
   § 809. EFFECT AND REBUTTAL OF CERTAIN MEDICAL PRESUMPTIONS  PERTAINING
 TO  DISEASES OF THE HEART. A. THIS SECTION SHALL APPLY TO CERTAIN APPLI-
 CATIONS FOR DISABILITY RETIREMENT ALLOWANCES MADE BY OR ON BEHALF  OF  A
 MEMBER  OF  THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM OR
 THE NEW YORK STATE AND LOCAL POLICE AND  FIRE  RETIREMENT  SYSTEM.    IT
 SHALL  APPLY ONLY TO APPLICATIONS THAT ARE SUBJECT UNDER THIS CHAPTER TO
 A PROVISION THAT 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11753-02-9

 S. 5988                             2
 
   B.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW TO THE CONTRARY AN
 APPLICATION FOR AN ACCIDENTAL DISABILITY RETIREMENT  ALLOWANCE  THAT  IS
 BASED  ON A PERMANENT INCAPACITY CAUSED BY A DISEASE OF THE HEART, SHALL
 NOT BE REQUIRED TO ALLEGE OR ESTABLISH:
   (1) THAT THE MEMBER SUSTAINED AN ACCIDENT OR OTHER INCIDENT RELATED TO
 THE PERFORMANCE AND DISCHARGE OF DUTY; OR
   (2) THAT NOTICE WAS PROVIDED THEREOF.
   C.  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW TO THE CONTRARY, THE
 PRESUMPTIONS REFERRED TO  IN  SUBDIVISION  A  OF  THIS  SECTION  MAY  BE
 REBUTTED  ONLY  BY  COMPETENT  EVIDENCE  THAT  THE DISABILITY IS NOT THE
 NATURAL AND PROXIMATE RESULT OF THE PERFORMANCE AND DISCHARGE OF DUTY.
   § 3. The retirement and social security law is amended by adding a new
 section 810 to read as follows:
   § 810. EFFECT AND REBUTTAL OF CERTAIN MEDICAL PRESUMPTIONS  PERTAINING
 TO  DISEASES  OF  THE HEART. A. THIS SECTION SHALL APPLY TO ALL APPLICA-
 TIONS FOR DISABILITY RETIREMENT ALLOWANCES MADE BY OR  ON  BEHALF  OF  A
 MEMBER  OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM. IT
 SHALL APPLY TO ALL APPLICATIONS THAT ARE SUBJECT UNDER THIS CHAPTER TO A
 PROVISION THAT 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.
   B. NOTWITHSTANDING ANY OTHER PROVISION  OF  LAW  TO  THE  CONTRARY  AN
 APPLICATION  FOR  AN  ACCIDENTAL DISABILITY RETIREMENT ALLOWANCE THAT IS
 BASED ON A PERMANENT INCAPACITY CAUSED BY A DISEASE OF THE HEART,  SHALL
 NOT BE REQUIRED TO ALLEGE OR ESTABLISH:
   (1) THAT THE MEMBER SUSTAINED AN ACCIDENT OR OTHER INCIDENT RELATED TO
 THE PERFORMANCE AND DISCHARGE OF DUTY; OR
   (2) THAT NOTICE WAS PROVIDED THEREOF.
   C.  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW TO THE CONTRARY, THE
 PRESUMPTIONS REFERRED TO  IN  SUBDIVISION  A  OF  THIS  SECTION  MAY  BE
 REBUTTED  ONLY  BY  COMPETENT  EVIDENCE  THAT  THE DISABILITY IS NOT THE
 NATURAL AND PROXIMATE RESULT OF THE PERFORMANCE AND DISCHARGE OF DUTY.
   § 4. The amendment made to subdivision  2  of  section  363-a  of  the
 retirement  and social security law by section one of this act shall not
 affect, impair or invalidate any temporary right, privilege  or  benefit
 conferred  pursuant to the provisions of a general, special or local law
 (other than pursuant to articles 14 and 15 of the retirement and  social
 security  law)  for  any member of a public retirement system or pension
 plan funded by the state or one of its political subdivisions, nor shall
 any amendment thereto affect  the  application  of  such  provisions  as
 extended  by  the provisions of section 480 of the retirement and social
 security law.
   § 5. This act shall take effect immediately.
   FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
   This bill would amend  the  Retirement  and  Social  Security  Law  in
 relation  to  heart  disease related disabilities 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)  who  currently
 have heart presumptions that reference an accident. It would grant acci-
 dental  disability benefits for heart cases by deeming such disabilities
 to have been sustained in the performance of duty, and the  natural  and
 proximate  result of an accident. Such presumptions may be rebutted only
 by competent evidence that the disability  is  not  the  result  of  the
 performance and discharge of duty. Further, this bill would provide that

 S. 5988                             3
 
 the  same  criteria that exist for determining accidental death benefits
 for firefighters would be extended to police officers.
   If  this bill is enacted, more accidental disability benefits would be
 granted. The estimated increase in the annual contributions to the State
 of New York would be approximately $660,000 for  its  PFRS  members  and
 approximately $1.1 million for its Unified Court Officers. The increases
 in  annual  contributions  for  the  participating employers in the PFRS
 would be approximately $2.6 million.
   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, 2018 actuarial valu-
 ation.  Distributions and other statistics can  be  found  in  the  2018
 Report  of  the  Actuary  and  the  2018  Comprehensive Annual Financial
 Report.
   The actuarial assumptions and methods used are described in the  2015,
 2016,  2017  and  2018  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, 2018
 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 May 16, 2019, and intended for  use  only  during
 the  2019  Legislative Session, is Fiscal Note No. 2019-122, prepared by
 the Actuary for the New York State and Local Retirement System.

2019-S5988A - Details

See Assembly Version of this Bill:: A7907
Current Committee:: Senate Civil Service And Pensions
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §363-a, add §809, R & SS L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S6093, A7004
2023-2024: S5212, A5201

2019-S5988A - Summary

2019-S5988A - Sponsor Memo

                                
 
BILL NUMBER: S5988A

SPONSOR: GOUNARDES
 
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 appli-

cable to police officers language that expressly provided that an
impairment of health caused by diseases of the heart that results in
disability 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 appli-
cable to members of the New York State and local police, Local Fire
Retirement System and the New York State and Local Employees Retirement
System with respect to applications for an accidental disability retire-
ment allowance.

* 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, Local 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
natural and proximate result of the performance and discharge of duty.

 
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
behind the original enactment of such presumptions. In the past 30
years, the Legislature has passed and the governor has signed into law
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 acci-
dental 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 elimi-
nate, the member's burden of establishing entitlement to the enhanced
benefit, which is usually three-quarters of final average salary. Over
the years the presumption have been interpreted differently by different
courts, with Appellate Division, Third Department, which has jurisdic-
tion 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, in spite of 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 presumption that his or her heart disease was
incurred in the performance of duty and was the result of the specific
accident.

 
PRIOR LEGISLATIVE HISTORY:

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

2019-S5988A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5988--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Civil Service and Pensions
   --  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:
 
   Section 1. Subdivision 2 of section 363-a of the retirement and social
 security  law, as amended by chapter 437 of the laws of 2016, is amended
 to read as follows:
   2. Notwithstanding any provision of this chapter or  of  any  general,
 special,  or  local  law to the contrary, any condition of impairment of
 health caused by diseases of the heart, resulting in disability or death
 to a police officer, presently employed, and who  shall  have  sustained
 such disability while so employed, shall be presumptive evidence that it
 was  incurred  in  the performance and discharge of duty AND THE NATURAL
 AND PROXIMATE RESULT OF AN ACCIDENT, unless the contrary  be  proved  by
 competent evidence.
   § 2. The retirement and social security law is amended by adding a new
 section 809 to read as follows:
   §  809. EFFECT AND REBUTTAL OF CERTAIN MEDICAL PRESUMPTIONS PERTAINING
 TO DISEASES OF THE HEART. A. THIS SECTION SHALL APPLY TO CERTAIN  APPLI-
 CATIONS  FOR  DISABILITY RETIREMENT ALLOWANCES MADE BY OR ON BEHALF OF A
 MEMBER OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT  SYSTEM  OR
 THE  NEW  YORK  STATE  AND  LOCAL POLICE AND FIRE RETIREMENT SYSTEM.  IT
 SHALL APPLY ONLY TO APPLICATIONS THAT ARE SUBJECT UNDER THIS CHAPTER  TO
 A  PROVISION  THAT  ANY  CONDITION  OF  IMPAIRMENT OF HEALTH CAUSED BY A
 DISEASE OF THE HEART, RESULTING  IN  DISABILITY,  SHALL  BE  PRESUMPTIVE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11753-03-9

 S. 5988--A                          2
 
 EVIDENCE  THAT  SUCH  DISABILITY  WAS  INCURRED  IN  THE PERFORMANCE AND
 DISCHARGE OF DUTY AND THE NATURAL AND PROXIMATE RESULT OF AN ACCIDENT.
   B.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW TO THE CONTRARY AN
 APPLICATION FOR AN ACCIDENTAL DISABILITY RETIREMENT  ALLOWANCE  THAT  IS
 BASED  ON A PERMANENT INCAPACITY CAUSED BY A DISEASE OF THE HEART, SHALL
 NOT BE REQUIRED TO ALLEGE OR ESTABLISH:
   (1) THAT THE MEMBER SUSTAINED AN ACCIDENT OR OTHER INCIDENT RELATED TO
 THE PERFORMANCE AND DISCHARGE OF DUTY; OR
   (2) THAT NOTICE WAS PROVIDED THEREOF.
   C. NOTWITHSTANDING ANY OTHER PROVISION OF LAW  TO  THE  CONTRARY,  THE
 PRESUMPTIONS  REFERRED  TO  IN  SUBDIVISION  A  OF  THIS  SECTION MAY BE
 REBUTTED ONLY BY COMPETENT EVIDENCE  THAT  THE  DISABILITY  IS  NOT  THE
 NATURAL AND PROXIMATE RESULT OF THE PERFORMANCE AND DISCHARGE OF DUTY.
   §  3.  The  amendment  made  to  subdivision 2 of section 363-a of the
 retirement and social security law by section one of this act shall  not
 affect,  impair  or invalidate any temporary right, privilege or benefit
 conferred pursuant to the provisions of a general, special or local  law
 (other  than pursuant to articles 14 and 15 of the retirement and social
 security law) for any member of a public retirement  system  or  pension
 plan funded by the state or one of its political subdivisions, nor shall
 any  amendment  thereto  affect  the  application  of such provisions as
 extended by the provisions of section 480 of the retirement  and  social
 security law.
   § 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 in
 relation to heart disease related disabilities 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) who currently
 have heart presumptions that reference an accident. It would grant acci-
 dental disability benefits for heart cases by deeming such  disabilities
 to  have  been sustained in the performance of duty, and the natural and
 proximate result of an accident. Such presumptions may be rebutted  only
 by  competent  evidence  that  the  disability  is not the result of the
 performance and discharge of duty. Further, this bill would provide that
 the same criteria that exist for determining accidental  death  benefits
 for firefighters would be extended to police officers.
   If  this bill is enacted, more accidental disability benefits would be
 granted. The estimated increase in the annual contributions to the State
 of New York would be approximately $660,000 for  its  PFRS  members  and
 approximately $1.1 million for its Unified Court Officers. The increases
 in  annual  contributions  for  the  participating employers in the PFRS
 would be approximately $2.6 million.
   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, 2018 actuarial valu-
 ation.  Distributions and other statistics can  be  found  in  the  2018
 Report  of  the  Actuary  and  the  2018  Comprehensive Annual Financial
 Report.
   The actuarial assumptions and methods used are described in the  2015,
 2016,  2017  and  2018  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, 2018
 New  York  State  and  Local  Retirement System Financial Statements and
 Supplementary Information.

 S. 5988--A                          3

   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  May 16, 2019, and intended for use only during
 the 2019 Legislative Session, is Fiscal Note No. 2019-122,  prepared  by
 the Actuary for the New York State and Local Retirement System.

2019-S5988B (ACTIVE) - Details

See Assembly Version of this Bill:: A7907
Current Committee:: Senate Civil Service And Pensions
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §363-a, add §809, R & SS L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S6093, A7004
2023-2024: S5212, A5201

2019-S5988B (ACTIVE) - Summary

2019-S5988B (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5988B

SPONSOR: GOUNARDES
 
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

 
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 appli-
cable to police officers language that expressly provided that an
impairment of health caused by diseases of the heart that results in
disability 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 appli-
cable to members of the New York State and local police, Local Fire
Retirement System and the New York State and Local Employees Retirement
System with respect to applications for an accidental disability retire-
ment allowance.

* 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, Local 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
natural and proximate result of the performance and discharge of duty.

 
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 sala-
ry. Over the years these presumption have been interpreted differently
by different courts, with Appellate 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, in spite of the statutory presump-
tion, 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 presumption that his or her heart
disease was incurred in the performance of duty and was the result of
the specific accident.

 
PRIOR LEGISLATIVE HISTORY:

2019: 55988A - Referred to Civil Service & Pensions
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.

2019-S5988B (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5988--B
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Civil Service and Pensions
   --  committee  discharged,  bill amended, ordered reprinted as amended
   and recommitted to said committee -- recommitted to the  Committee  on
   Civil Service and Pensions in accordance with Senate Rule 6, sec. 8 --
   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:
 
   Section 1. Subdivision 2 of section 363-a of the retirement and social
 security  law, as amended by chapter 437 of the laws of 2016, is amended
 to read as follows:
   2. Notwithstanding any provision of this chapter or  of  any  general,
 special,  or  local  law to the contrary, any condition of impairment of
 health caused by diseases of the heart, resulting in disability or death
 to a police officer, presently employed, and who  shall  have  sustained
 such disability while so employed, shall be presumptive evidence that it
 was  incurred  in  the performance and discharge of duty AND THE NATURAL
 AND PROXIMATE RESULT OF AN ACCIDENT, unless the contrary  be  proved  by
 competent evidence.
   § 2. The retirement and social security law is amended by adding a new
 section 809 to read as follows:
   §  809. EFFECT AND REBUTTAL OF CERTAIN MEDICAL PRESUMPTIONS PERTAINING
 TO DISEASES OF THE HEART. A. THIS SECTION SHALL APPLY TO CERTAIN  APPLI-
 CATIONS  FOR  DISABILITY RETIREMENT ALLOWANCES MADE BY OR ON BEHALF OF A
 MEMBER OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT  SYSTEM  OR
 THE  NEW  YORK  STATE  AND  LOCAL POLICE AND FIRE RETIREMENT SYSTEM.  IT
 SHALL APPLY ONLY TO APPLICATIONS THAT ARE SUBJECT UNDER THIS CHAPTER  TO
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11753-06-0

 S. 5988--B                          2
 
 A  PROVISION  THAT  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.
   B.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW TO THE CONTRARY AN
 APPLICATION FOR AN ACCIDENTAL DISABILITY RETIREMENT  ALLOWANCE  THAT  IS
 BASED  ON A PERMANENT INCAPACITY CAUSED BY A DISEASE OF THE HEART, SHALL
 NOT BE REQUIRED TO ALLEGE OR ESTABLISH:
   (1) THAT THE MEMBER SUSTAINED AN ACCIDENT OR OTHER INCIDENT RELATED TO
 THE PERFORMANCE AND DISCHARGE OF DUTY; OR
   (2) THAT NOTICE WAS PROVIDED THEREOF.
   C. NOTWITHSTANDING ANY OTHER PROVISION OF LAW  TO  THE  CONTRARY,  THE
 PRESUMPTIONS  REFERRED  TO  IN  SUBDIVISION  A  OF  THIS  SECTION MAY BE
 REBUTTED ONLY BY COMPETENT EVIDENCE  THAT  THE  DISABILITY  IS  NOT  THE
 NATURAL AND PROXIMATE RESULT OF THE PERFORMANCE AND DISCHARGE OF DUTY.
   §  3.  The  amendment  made  to  subdivision 2 of section 363-a of the
 retirement and social security law by section one of this act shall  not
 affect,  impair  or invalidate any temporary right, privilege or benefit
 conferred pursuant to the provisions of a general, special or local  law
 (other  than pursuant to articles 14 and 15 of the retirement and social
 security law) for any member of a public retirement  system  or  pension
 plan funded by the state or one of its political subdivisions, nor shall
 any  amendment  thereto  affect  the  application  of such provisions as
 extended by the provisions of section 480 of the retirement  and  social
 security law.
   § 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 payable
 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

 S. 5988--B                          3
 
 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 members of PFRS will
 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 2020 legislative session, we antic-
 ipate  that  there  will be an increase of approximately $5.2 million in
 the annual contributions to NYSLRS for the fiscal year ending March  31,
 2021.    This  cost would be shared by the State of New York (the State)
 and local participating employers of PFRS as follows:
     a. $2.1 million borne annually by the State ($800,000  to  PFRS  and
     $1.3 million to ERS), and
     b. $3.1 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  $15.2  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, 2021.
   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 32,573 members with  an
 approximate salary of $3.6 billion as of March 31, 2019. Estimated costs
 arising  in  ERS are based upon 6,102 members with an approximate salary
 of $600 million as of March 31, 2019.
   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, 2019 actuarial valu-
 ation.  Distributions and other statistics can  be  found  in  the  2019
 Report  of  the  Actuary  and  the  2019  Comprehensive Annual Financial
 Report.
   The actuarial assumptions and methods used are described in the  2015,
 2016, 2017, 2018, and 2019 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, 2019
 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 March 12, 2020, and intended for use only during
 the 2020 Legislative Session, is Fiscal Note No.  2020-26,  prepared  by
 the Actuary for the New York State and Local Retirement System.

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