NY Ret & SS L § 605 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 15 - Coordinated Retirement Plan 605 - Disability Retirement.

§   605.  Disability  retirement.  a.  Application  for  a  disability retirement allowance for a member may be made by:   1. Such member, or   2. The head of the department in which such member is employed.   b. At the time of the  filing  of  an  application  pursuant  to  this section, the member must:   1. Have at least ten years of total service credit, and   2.  The  application  must  be  filed  either  (a)  by a vested member incapacitated as the result of a qualifying World Trade Center condition as defined in section two of this chapter, at any time,  or  (b)  within three months from the last date the member was being paid on the payroll or, (c) in the case of a member who was placed on a leave of absence for medical reasons without pay, either voluntarily or involuntarily, at the time he ceased being paid, application may be made not later than twelve months  after  the date the employee receives notice that his employment status has been terminated. In the case of a  member  of  the  New  York state  teachers'  retirement  system,  the application must be filed not later than twelve months after the last date the member was  being  paid on  the  payroll or, where the member was placed on leave of absence for medical reasons without pay, either voluntarily or involuntarily at  the time  the  member  ceased being paid, not later than twelve months after the date the member receives notice that the member's employment  status has been terminated.   3.  Provided,  however,  if the retirement system determines that such member was physically  or  mentally  incapacitated  for  performance  of gainful  employment  as  the natural and proximate result of an accident not caused by his own willful negligence sustained in the performance of his duties in active service while actually a member of  the  retirement system the requirement that the member should have ten years of credited service shall be inapplicable.   c.  If  the retirement system determines that the member is physically or mentally incapacitated for the performance of gainful employment, and that he was so incapacitated at the time he ceased  his  performance  of duties  and  ought to be retired for disability, he shall be so retired. Each retirement system shall be entitled to adopt appropriate procedures for making the foregoing determination, including but not limited to the conducting  of  medical  examinations,  if  any,  for  the  purpose   of determining   initial   entitlement   of  an  applicant  for  disability retirement or  to  continued  entitlement  to  a  disability  retirement allowance.  Such  retirement shall be effective as of a date approved by the head of the retirement system.   d. Upon retirement for disability  one  of  the  following  retirement allowances shall be payable:   1.  In  the case of a member of a retirement system other than the New York city employees' retirement system,  the  New  York  city  board  of education  retirement  system  or the New York city teachers' retirement system, if the member  has  attained  age  sixty  when  such  retirement becomes effective, his retirement allowance shall be equal to that which he  would receive in the case of service retirement at normal retirement age based on his credited service but in no event shall such  retirement allowance  exceed  the amount he would receive pursuant to paragraph two of this subdivision.   2. In the case of a member of a retirement system other than  the  New York  city  employees'  retirement  system,  the  New York city board of education retirement system or the New York  city  teachers'  retirement system,  if  the  member has not attained age sixty when such retirement becomes  effective,  his  retirement  allowance  shall  consist   of   a retirement allowance which shall equal one-sixtieth of his final average  salary  multiplied by the number of years of his credited service, which formula shall be used only  if  the  retirement  allowance  so  computed exceeds  one-third  of  his  final  average  salary.  If  the retirement allowance  so computed shall amount to one-third or less of the member's final average salary, his retirement allowance shall  be  computed  upon the  basis  of  the  total  service  which  he would have rendered if he continued in service until he  attained  age  sixty  provided  that  the resulting  retirement allowance computed by resort to this formula shall not exceed one-third of the member's final average salary.   3. In the case of a member of the New York city employees'  retirement system,  the  New  York city board of education retirement system or the New York city teachers'  retirement  system,  his  retirement  allowance shall be equal to the greater of:  (i) one-third of his final average salary; or  (ii) one-sixtieth of his final average salary multiplied by the number of  years  of  his  credited service; provided, however, that where such member is otherwise eligible to retire for service, and  the  retirement allowance  which  he  would receive in the case of service retirement is larger than the retirement allowance he would  otherwise  receive  under this  subparagraph or subparagraph (i) of this paragraph, his disability retirement allowance pursuant to this paragraph shall be  equal  to  the retirement allowance he would receive if he had retired for service.   4.  Notwithstanding any other law, rule or regulation to the contrary, any member who had an active membership in the New York state and  local employees'  retirement system or the New York state teachers' retirement system, when such member participated  in  World  Trade  Center  rescue, recovery,  or  cleanup  operations,  as such participation is defined in section two of this chapter,  who  incurred  a  qualifying  World  Trade Center  condition,  as  defined  in section two of this chapter, that is determined to have been incurred in the  performance  and  discharge  of duty  and  is the natural and proximate result of an accident not caused by such member's own willful negligence, shall be paid a performance  of duty  disability  retirement  allowance equal to three-quarters of final average salary. The payment of such pension  shall  be  subject  to  the provisions of section sixty-four of this chapter.   5.  Notwithstanding  the  provisions  of this subdivision, the minimum benefit payable to a member of the New York state and  local  employees' retirement  system  who has been determined to be physically or mentally incapacitated for performance of gainful employment as the  natural  and proximate  result  of  an  accident  not  caused  by  willful negligence sustained in the performance of duties in active service while  actually a  member  of  the  retirement system shall be a pension of one-third of such member's final average salary.   e. The board of trustees of the New York  city  employees'  retirement system  may, consistent with the provisions of this section, adopt rules and regulations establishing a  procedure  for  the  medical  review  of determinations  made  by  such  retirement  system  on  applications for disability retirement filed pursuant to this section. Any medical review procedure adopted pursuant to this subdivision  shall  be  substantially similar  to  the  medical review procedure provided in section 13-169 of the administrative code of the city of New York, and shall provide  that where  a  request  for medical review is filed on behalf of an applicant for disability retirement, such request for medical review shall be void and of no effect unless such applicant for disability retirement,  or  a person  acting  on  his  or her behalf in accordance with such rules and regulations, executes a waiver providing that he or she waives  any  and all  rights  which  he or she might otherwise have to seek or obtain any  other disposition of such application for disability retirement by court or administrative proceedings or otherwise.   f. If the retirement system determines that such member was physically or  mentally  incapacitated for performance of gainful employment as the natural and proximate result of  an  accident  not  caused  by  his  own willful  negligence sustained in the performance of his duties in active service while actually a member of the retirement system, and the member is a teacher not within the coverage of section three  of  the  workers' compensation  law  or  an employee in group twenty of subdivision one of such section, the retirement allowance shall equal  two-thirds  of  such member's final average salary.   g.  Any  payments  made  to  a  member  who  the retirement system has determined was physically or mentally incapacitated for  performance  of gainful  employment  as  the natural and proximate result of an accident not caused by his own willful negligence sustained in the performance of his duties in active service while actually a member of  the  retirement system,  and  who  is  not  eligible  to  receive  workers' compensation benefits by operation of group twenty or  group  twenty-two  of  section three  of the workers' compensation law, shall be deemed to be a payment made in lieu of a workers' compensation benefit.   h. 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 promulgate rules and regulations to implement  the  provisions  of  this paragraph.   2.  (a)(1)  Notwithstanding  the  provisions 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 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  or  a  performance  of duty disability retirement or a state police disability retirement pursuant  to  section three  hundred  sixty-three-b  of  this  title  and  subsequent  to such retirement is determined by the head of the retirement system 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.  (2) Notwithstanding the provisions 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 participated in World Trade Center rescue, recovery or cleanup operations for a minimum of forty hours, and subsequently retired on a service  retirement,  an  ordinary  disability retirement or a performance of duty disability retirement and subsequent to  such  retirement  incurred  a  disability  caused  by any qualifying condition or impairment of the health  which  the  applicable  board  of  trustees   determines,  after  a  determination  of  disability  by  the applicable medical board, to have been caused by  such  member's  having participated   in   World  Trade  Center  rescue,  recovery  or  cleanup operations  for a minimum of forty hours, upon such determination by the applicable board of trustees, 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.  (3)  A member shall be eligible for the presumption provided for under this  paragraph  notwithstanding  the  fact  that  the  member  did  not participate in World Trade Center rescue, recovery or cleanup operations for a minimum of forty hours, provided that: (i) the member participated in the rescue, recovery, or cleanup operations at the World Trade Center site between September eleventh, two thousand one and September twelfth, two thousand one; (ii) the member sustained a documented physical injury at  the World Trade Center site between September eleventh, two thousand one and September  twelfth,  two  thousand  one  that  is  a  qualifying condition  or impairment of health resulting in disability to the member that prevented the member from continuing to participate in World  Trade Center  rescue,  recovery  or  cleanup operations for a minimum of forty hours; and (iii) the documented  physical  injury  that  resulted  in  a disability  to  the  member that prevented the member from continuing to participate in World Trade Center rescue, recovery or cleanup operations for a minimum of forty hours is the qualifying condition  or  impairment of  health  which  the  member  seeks to be eligible for the presumption provided for under this paragraph.  (b) The reclassification provided for  in  subparagraph  (a)  of  this paragraph shall not be granted, unless:  (i)  the  member  files  either a written and sworn statement with the member's retirement system on a form provided  by  such  system,  or  as allowed  by  the  member's  retirement  system, electronically submits a statement on a form provided by such  system  through  a  secure  online portal  maintained  by  the  member's  retirement  system  that has duly validated the member's identity, indicating the dates and  locations  of employment within four years following the effective date of chapter one hundred four of the laws of two thousand five; and  (ii)  the  member must have successfully passed a physical examination for entry into public service which failed to disclose evidence  of  the qualifying  condition  or impairment of health that formed the basis for the disability.  (c)  The  head   of   the   retirement   system   shall   consider   a reclassification  of the member's retirement as an accidental disability retirement effective as of the date of such reclassification.  (d) Such member's retirement option shall not be changed as  a  result of such reclassification.  (e)  The  member's  former  employer  at  the  time  of  the  member's retirement shall have  an  opportunity  to  be  heard  on  the  member's application  for  reclassification  by the head of the retirement system according to procedures developed by the head of the retirement system.  (f) The  head  of  the  retirement  system  is  hereby  authorized  to promulgate rules and regulations for their respective retirement systems to implement the provisions of this paragraph.   i.  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 h of this section and retired on a service or  disability retirement,  or would have met the criteria if not already retired on an accidental  disability;  and  (2)  has  not  been  retired for more than twenty-five years; and (3) 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,  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 beneficiary,  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 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  eligible 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 benefits 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.   j. 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 h of this section; and (2) dies in  active  service  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  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.