New York Codes, Rules and Regulations › Title 2 - DEPARTMENT OF AUDIT AND CONTROL › Chapter VI - New York State and Local Employees' Retirement System and New York State and Local Police and Fire Retirement System › Part 359 - Administrative Review Law Requirements And Processing Procedures › Section 359.5 - Retroactive membership under section 803

Current through Register Vol. 46, No. 28, July 10, 2024
Section 803  of the Retirement and Social Security
				  Law provides public retirement systems with the authority to grant retroactive
				  retirement system membership in connection with service rendered prior to April
				  1, 1993, in appropriate cases. Assignment of a retroactive date of membership
				  may affect an individual's tier status in the retirement system.
(a)
Filing.
A member must file an application for retroactive membership
				  on or before October 24, 1996. In order to ensure that there is no confusion
				  between written "inquiries" and applications for benefits, applications for
				  retroactive membership should be filed on forms provided by the retirement
				  system for such purpose. Forms are available from the retirement system and
				  from employers. A member may withdraw an application for retroactive transfer
				  by requesting withdrawal in writing within 30 days following notification to
				  the member of the member costs of retroactive membership.
(b) To be eligible for retroactive membership
				under section 803  of the Retirement and Social Security
				Law, an individual must be a member at the time application is made and must
				have been a member on March 31, 1993.
(c)
Continuous service.
In order to be eligible for retroactive membership under
				  section 803  of the Retirement and Social Security
				  Law, a member must have rendered "continuous service" from the membership date
				  being sought under section 803 through the current date of membership, in a
				  position or positions which would have entitled the individual to join a public
				  retirement system. For the purposes of section 803 only, service will be
				  considered "continuous" with respect to any plan year in which the individual
				  rendered at least 20 days of retirement system eligible service. With respect
				  to the New York State and Local Employees' Retirement System and the New York
				  State and Local Police and Fire Retirement System, a plan year begins on April
				  first and ends on the next following March 31st. Service which is otherwise
				  continuous under this rule will be considered continuous despite one break in
				  service up to one plan year, or up to two plan years if the break in service is
				  due to the birth of a child, care for such child, or placement with the member
				  of a child for adoption or foster care.
(d)
No previous opportunity to join the
				retirement system.
Under section 803  of the Retirement and Social Security
				  Law, a member is not eligible for retroactive membership if such member was
				  previously afforded an actual opportunity to join or decline membership in the
				  retirement system.
(e)
Employer affidavit.
The employer which employed a section 803 applicant on the
				  date of retroactive membership being sought must file an affidavit with the
				  retirement system on behalf of each section 803 applicant. The completed
				  affidavit must indicate the dates of the member's employment, and whether the
				  member:
(1) expressly declined
				membership in a form filed with that employer; or
(2) participated in a program or procedure
				explaining the option to join the retirement system in which a form, booklet,
				or other written material explaining the individual's right to join was read
				from, explained or distributed; or
(3) participated in a program or procedure
				that a reasonable person would recognize as an actual opportunity to join or
				decline membership in the retirement system.
The individual completing the affidavit shall also indicate
				  whether the employer has instituted a procedure under which an employee may
				  present evidence on the issue of whether he or she was afforded a previous
				  opportunity to join or decline membership in the retirement system. An employer
				  who determines that an individual was afforded the previous opportunity to join
				  or decline membership in the retirement system shall explain the basis of such
				  determination and forward all pertinent evidence to the retirement system
				  together with the completed affidavit.