NY State Senate Bill 2023-S5212

Senate Bill S5212

2023-2024 Legislative Session

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

download bill text pdf

Current Bill Status - Stricken

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
Feb 27, 2024	recommit, enacting clause stricken
Jan 03, 2024	referred to civil service and pensions
Feb 27, 2023	referred to civil service and pensions

2023-S5212 (ACTIVE) - Details

See Assembly Version of this Bill:: A5201
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §363-a, add §809, R & SS L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S5988, A7907
2021-2022: S6093, A7004

2023-S5212 (ACTIVE) - 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.

2023-S5212 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5212

SPONSOR: JACKSON
 
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:

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 3 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 4 is 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 sala-
ry. Over the years these presumptions 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.

 
LEGISLATIVE HISTORY:

2021-2022: S.6093-A - Vetoed Memo 123/A.7004 - Vetoed Memo 123

2019-2020: S.5988-B - Amend and Recommit to Civil Service and
Pensions/A.7907-B - Amend and Recommit to Governmental Employees

 
STATE AND LOCAL FISCAL IMPLICATIONS:

See fiscal note.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S5212 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5212
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 27, 2023
                                ___________
 
 Introduced  by  Sen. JACKSON -- 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.
                                                            LBD08408-02-3
 S. 5212                             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 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 (NYSLERS) and the New  York  State  and  Local  Police  and  Fire
 Retirement  System  (NYSLPFRS).  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  the
 NYSLPFRS,  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
 performance-of-duty 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 the NYSLPFRS, 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  an  eligible  beneficiary or beneficiaries.   Currently the
 death benefit would be the continuance afforded under  the  performance-
 of-duty disability retirement
   Insofar  as  this bill affects the New York State and Local Retirement
 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  any  benefit
 type  otherwise  payable. Further, we anticipate that the administrative
 costs to the NYSLRS,  required  to  process  applications  and  litigate
 anticipated disputes, will increase.
 S. 5212                             3
 
   The  number  of  members  and  retirees  who could be affected by this
 legislation cannot be readily determined. However, every  active  member
 of  the  NYSLPFRS  will  be  covered,  as well as members of the NYSLERS
 including uniformed court officers and peace officers  employed  by  the
 Unified Court System and fire marshals employed by Nassau County.
   If this bill is enacted during the 2023 legislative session, we antic-
 ipate  that  there  will  be increases of approximately $1.2 million and
 $4.3 million in the annual contributions  to  the  NYSLERS  and  to  the
 NYSLPFRS,  respectively,  for  the  fiscal  year  ending March 31, 2024.
 These costs will be shared by the State of New York (the State),  Nassau
 County,  and  other  local  participating  employers  in the NYSLPFRS as
 follows:
 
 Employer                    payment to the   payment to the
                              NYSLERS          NYSLPFRS
 the State                   $1.2 million     $900,000
 Nassau County               $11,000
 all local participating
 employers in the NYSLPFRS                    $3.4 million
 
   In future years, these annual costs will vary as  the  salary  of  the
 affected members change.
   In addition to the annual contributions discussed above, there will be
 immediate past service costs of approximately $12.5 million and $111,000
 which  will  be  borne  by the State and Nassau County, respectively, as
 one-time payments. This estimate assumes that payment will  be  made  by
 the  State  and  Nassau  County  on  March 1, 2024 and February 1, 2024,
 respectively.
   Estimated costs arising in the NYSLERS are  based  on  6,287  affected
 members with annual salary of approximately $573 million as of March 31,
 2022.
   Estimated  costs  arising in the NYSLPFRS are based on 32,169 affected
 members with annual salary of approximately $3.88 billion  as  of  March
 31, 2022.
   Summary of relevant resources:
   Membership  data as of March 31, 2022 was used in measuring the impact
 of the proposed change, the same data used in the April 1, 2022 actuari-
 al valuation.  Distributions and other statistics can be  found  in  the
 2022  Report  of the Actuary and the 2022 Annual Comprehensive Financial
 Report.
   The actuarial assumptions and methods used are described in the  2020,
 2021,  and  2022  Annual  Report to the Comptroller on Actuarial Assump-
 tions, 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, 2022
 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 February 24, 2023,  and  intended  for  use  only
 during  the  2023  Legislative  Session,  is  Fiscal  Note  No. 2023-73,
 prepared by the Actuary for the New  York  State  and  Local  Retirement
 System.

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