STATE OF NEW YORK ________________________________________________________________________ 8071 IN SENATE June 10, 2016 ___________ Introduced by Sen. MURPHY -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the retirement and social security law, in relation to disability benefits for firefighters employed by the division of mili- tary and naval affairs The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The retirement and social security law is amended by adding 2 two new sections 63-g and 63-h to read as follows: 3 § 63-g. Performance of duty disability retirement. a. Any member of 4 the retirement system employed by the division of military and naval 5 affairs shall be eligible to retire pursuant to the provisions of this 6 section if he or she is an airport firefighter apprentice, airport fire- 7 fighter I, airport firefighter II, airport firefighter III or training 8 and safety officer. 9 b. Notwithstanding any provision of this chapter or of any general or 10 special law to the contrary, any member who becomes physically or 11 mentally incapacitated as the result of a disability from any condition 12 of impairment of health caused by: (1) diseases of the heart; or (2) any 13 (i) melanoma or (ii) condition of cancer affecting the lymphatic, diges- 14 tive, hematological, urinary, neurological, breast, reproductive or 15 prostate systems, who is presently employed and who shall have sustained 16 such disability while so employed and while actually a member of the 17 retirement system, who successfully passed a physical examination on 18 entry into service as an airport firefighter apprentice, airport fire- 19 fighter I, airport firefighter II, airport firefighter III or training 20 and safety officer, which examination failed to disclose evidence of any 21 disease or other impairment of the heart or such melanoma or condition, 22 shall be presumptive evidence that such disability or death (A) was 23 caused by the natural and proximate result of an accident, not caused by 24 such firefighter's own negligence and (B) was incurred in the perform- 25 ance and discharge of duty, unless the contrary be proven by competent 26 evidence and shall be paid a performance of duty disability retirement 27 benefit payable pursuant to this section. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15496-02-6S. 8071 2 1 c. Application for a performance of duty disability retirement allow- 2 ance for such a member may be made by: 3 1. Such member; 4 2. The head of the department in which such member is employed; or 5 3. Some person acting on behalf of and authorized by such member. 6 d. After the filing of such an application such member shall be given 7 one or more medical examinations. 8 e. If the comptroller determines that the member is physically or 9 mentally incapacitated for the performance of duty and ought to be 10 retired for performance of duty disability, such member shall be so 11 retired. Such retirement shall be effective as of a date approved by 12 the comptroller. 13 f. The retirement allowance payable upon retirement for performance of 14 duty disability shall consist of a pension of one-half of his or her 15 final average salary plus an annuity which shall be the actuarial equiv- 16 alent of such member's accumulated contributions, if any. 17 g. If the member, at the time of the filing of an application under 18 the provisions of subdivision c of this section, is eligible for a 19 service retirement benefit, then and in that event, such member may 20 simultaneously file an application for service retirement in accordance 21 with the provisions of section seventy of this article, provided that 22 the member indicates on the application for service retirement that such 23 application is filed without prejudice to the application for perform- 24 ance of duty disability retirement. 25 h. Any benefit provided pursuant to this section shall not be consid- 26 ered as an accidental disability benefit within the meaning of section 27 sixty-four of this title. Any benefit payable pursuant to the workers' 28 compensation law to a member receiving a disability allowance pursuant 29 to this section shall be in addition to such retirement for disability 30 incurred in performance of duty allowance. 31 § 63-h. Certain impairments of health; presumption. a. Any member of 32 the retirement system employed by the division of military and naval 33 affairs shall be eligible to retire pursuant to the provisions of this 34 section if he or she is an airport firefighter apprentice, airport fire- 35 fighter I, airport firefighter II, airport firefighter III or training 36 and safety officer. 37 b. Notwithstanding any provision of this chapter or of any general or 38 special law to the contrary, any condition of impairment of health 39 caused by: (1) diseases of the heart; or (2) any (i) melanoma or (ii) 40 condition of cancer affecting the lymphatic, digestive, hematological, 41 urinary, neurological, breast, reproductive or prostate systems result- 42 ing in disability to a member covered by this section, presently 43 employed and who shall have sustained such disability as the result of 44 an accident not caused by his or her own willful negligence sustained in 45 such service and while actually a member of the retirement system, who 46 successfully passed a physical examination on entry into service as an 47 airport firefighter apprentice, airport firefighter I, airport fire- 48 fighter II, airport firefighter III or training and safety officer which 49 examination failed to disclose evidence of any disease or other impair- 50 ment of the heart or such melanoma or condition, shall be presumptive 51 evidence that such disability or death (A) was caused by the natural and 52 proximate result of an accident, not caused by such firefighter's own 53 negligence and (B) was incurred in the performance and discharge of 54 duty, unless the contrary be proven by competent evidence and shall be 55 paid a performance of duty disability retirement allowance equal to thatS. 8071 3 1 which is provided in section sixty-three of this title, subject to the 2 provisions of section sixty-four of this title. 3 c. Notwithstanding any provision of this chapter or of any general or 4 special law to the contrary, any condition of impairment of health 5 caused by diseases of the lung, resulting in disability to a member 6 covered by this section, presently employed and while actually a member 7 of the retirement system, who successfully passed a physical examination 8 on entry into service as an airport firefighter apprentice, airport 9 firefighter I, airport firefighter II, airport firefighter III or train- 10 ing and safety officer, which examination failed to disclose evidence of 11 any disease or other impairment of the lung, shall be presumptive 12 evidence that such disability or death (1) was caused by the natural and 13 proximate result of an accident, not caused by such firefighter's own 14 negligence and (2) was incurred in the performance and discharge of 15 duty, unless the contrary be proven by competent evidence and shall be 16 paid a performance of duty disability retirement allowance equal to that 17 which is provided in section sixty-three of this title, subject to the 18 provisions of section sixty-four of this title. 19 § 2. The retirement and social security law is amended by adding two 20 new sections 607-i and 607-j to read as follows: 21 § 607-i. Performance of duty disability retirement. a. Any member of 22 the retirement system employed by the division of military and naval 23 affairs shall be eligible to retire pursuant to the provisions of this 24 section if he or she is an airport firefighter apprentice, airport fire- 25 fighter I, airport firefighter II, airport firefighter III or training 26 and safety officer. 27 b. Notwithstanding any provision of this chapter or of any general or 28 special law to the contrary, any member who becomes physically or 29 mentally incapacitated as the result of a disability from any condition 30 of impairment of health caused by: (1) diseases of the heart; or (2) any 31 (i) melanoma or (ii) condition of cancer affecting the lymphatic, diges- 32 tive, hematological, urinary, neurological, breast, reproductive or 33 prostate systems, who is presently employed and who shall have sustained 34 such disability while so employed and while actually a member of the 35 retirement system, who successfully passed a physical examination on 36 entry into service as an airport firefighter apprentice, airport fire- 37 fighter I, airport firefighter II, airport firefighter III or training 38 and safety officer, which examination failed to disclose evidence of any 39 disease or other impairment of the heart or such melanoma or condition, 40 shall be presumptive evidence that such disability or death (A) was 41 caused by the natural and proximate result of an accident, not caused by 42 such firefighter's own negligence and (B) was incurred in the perform- 43 ance and discharge of duty, unless the contrary be proven by competent 44 evidence and shall be paid a performance of duty disability retirement 45 benefit payable pursuant to this section. 46 c. Application for a performance of duty disability retirement allow- 47 ance for such a member may be made by: 48 1. Such member; 49 2. The head of the department in which such member is employed; or 50 3. Some person acting on behalf of and authorized by such member. 51 d. After the filing of such an application such member shall be given 52 one or more medical examinations. 53 e. If the comptroller determines that the member is physically or 54 mentally incapacitated for the performance of duty and ought to be 55 retired for performance of duty disability, such member shall be soS. 8071 4 1 retired. Such retirement shall be effective as of a date approved by the 2 comptroller. 3 f. The retirement allowance payable upon retirement for performance of 4 duty disability shall consist of a pension of one-half of his or her 5 final average salary plus an annuity which shall be the actuarial equiv- 6 alent of such member's accumulated contributions, if any. 7 g. If the member, at the time of the filing of an application under 8 the provisions of subdivision c of this section, is eligible for a 9 service retirement benefit, then and in that event, such member may 10 simultaneously file an application for service retirement in accordance 11 with the provisions of section seventy of this chapter, provided that 12 the member indicates on the application for service retirement that such 13 application is filed without prejudice to the application for perform- 14 ance of duty disability retirement. 15 h. Any benefit provided pursuant to this section shall not be consid- 16 ered as an accidental disability benefit within the meaning of section 17 sixty-four of this chapter. Any benefit payable pursuant to the workers' 18 compensation law to a member receiving a disability allowance pursuant 19 to this section shall be in addition to such retirement for disability 20 incurred in performance of duty allowance. 21 § 607-j. Certain impairments of health; presumption. a. Any member of 22 the retirement system employed by the division of military and naval 23 affairs shall be eligible to retire pursuant to the provisions of this 24 section if he or she is an airport firefighter apprentice, airport fire- 25 fighter I, airport firefighter II, airport firefighter III or training 26 and safety officer. 27 b. Notwithstanding any provision of this chapter or of any general or 28 special law to the contrary, any condition of impairment of health 29 caused by: (1) diseases of the heart; or (2) any (i) melanoma or (ii) 30 condition of cancer affecting the lymphatic, digestive, hematological, 31 urinary, neurological, breast, reproductive or prostate systems result- 32 ing in disability to a member covered by this section, presently 33 employed and who shall have sustained such disability as the result of 34 an accident not caused by his or her own willful negligence sustained in 35 such service and while actually a member of the retirement system, who 36 successfully passed a physical examination on entry into service as an 37 airport firefighter apprentice, airport firefighter I, airport fire- 38 fighter II, airport firefighter III or training and safety officer which 39 examination failed to disclose evidence of any disease or other impair- 40 ment of the heart or such melanoma or condition, shall be presumptive 41 evidence that such disability or death (A) was caused by the natural and 42 proximate result of an accident, not caused by such firefighter's own 43 negligence and (B) was incurred in the performance and discharge of 44 duty, unless the contrary be proven by competent evidence and shall be 45 paid a performance of duty disability retirement allowance equal to that 46 which is provided in section sixty-three of this chapter, subject to the 47 provisions of sections sixty-three and sixty-four of this chapter. 48 c. Notwithstanding any provision of this chapter or of any general or 49 special law to the contrary, any condition of impairment of health 50 caused by diseases of the lung, resulting in disability to a member 51 covered by this section, presently employed and while actually a member 52 of the retirement system, who successfully passed a physical examination 53 on entry into service as an airport firefighter apprentice, airport 54 firefighter I, airport firefighter II, airport firefighter III or train- 55 ing and safety officer, which examination failed to disclose evidence of 56 any disease or other impairment of the lung, shall be presumptiveS. 8071 5 1 evidence that such disability or death (1) was caused by the natural and 2 proximate result of an accident, not caused by such firefighter's own 3 negligence and (2) was incurred in the performance and discharge of 4 duty, unless the contrary be proven by competent evidence and shall be 5 paid a performance of duty disability retirement allowance equal to that 6 which is provided in section sixty-three of this chapter, subject to the 7 provisions of section sixty-four of this chapter. 8 § 3. This act shall take effect immediately. FISCAL NOTE.--Pursuant to Legislative Law, Section 50: This bill would grant improved disability pensions to airport fire- fighters and training and safety officers in the New York State division of military and naval affairs who sustain a disability related to heart disease, lung disease and certain forms of cancer. This bill would help individuals who sustained such disabilities to establish the presumption that they were incurred in the performance and discharge of duty, unless the contrary be proven by competent evidence. The benefit for a heart or cancer related accidental disability, or a lung disease related perform- ance of duty disability would be 75% of final average salary (FAS) minus worker's compensation (WC). The benefit for a heart or cancer related performance of duty disability benefit would be 50% of final average salary. If this bill is enacted, the disability benefits of affected members with heart, lung or certain cancer related disabilities would increase from approximately 1/3 of FAS to 50% of FAS, or 75% of FAS minus WC. The estimated increase in the annual contributions of the State of New York for the fiscal year ending March 31, 2017 would be approximately $25,000. These estimated costs are based on 69 members having an annual salary for the fiscal year ending March 31, 2015 of approximately $4 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, 2015 actuarial valu- ation. Distributions and other statistics can be found in the 2015 Report of the Actuary and the 2015 Comprehensive Annual Financial Report. The actuarial assumptions and methods used are described in the 2015 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, 2015 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 estimate, dated June 2, 2016, and intended for use only during the 2016 Legislative Session, is Fiscal Note No. 2016-104, prepared by the Actuary for the New York State and Local Retirement System.