Bill Text: NY S06061 | 2019-2020 | General Assembly | Amended


Bill Title: Includes members of the state police who drove or rode in vehicles used in cleanup operations within the definition of participation in World Trade Center rescue, recovery or cleanup operations.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-03-18 - PRINT NUMBER 6061B [S06061 Detail]

Download: New_York-2019-S06061-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         6061--B

                               2019-2020 Regular Sessions

                    IN SENATE

                                      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 and the  workers'
          compensation  law,  in relation to participation in World Trade Center
          rescue, recovery or cleanup operations by members of the state police;
          and to repeal certain provisions of the retirement and social security
          law relating thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. Subparagraph (a) of paragraph 1 of subdivision h of section
     2  363-bb  of the retirement and social security law, as amended by chapter
     3  93 of the laws of 2005, is amended to read as follows:
     4    (a) Notwithstanding any provisions of this chapter or of any  general,
     5  special or local law, charter, administrative code or rule or regulation
     6  to the contrary, any condition or impairment of health caused by a qual-
     7  ifying  condition  or  impairment of health resulting in disability to a
     8  member who participated in World Trade Center rescue, recovery or clean-
     9  up operations for a minimum of forty hours shall be presumptive evidence
    10  that it was incurred in the performance and discharge of  duty  and  the
    11  natural  and proximate result of an accident not caused by such member's
    12  own willful negligence, unless  the  contrary  be  proved  by  competent
    13  evidence.  A  member  shall be eligible for the presumption provided for
    14  under this paragraph notwithstanding the fact that the  member  did  not
    15  participate  in World Trade Center recovery and cleanup operations for a
    16  minimum of forty hours, provided that: (i) the  member  participated  in
    17  the  rescue,  recovery,  or cleanup operations at the World Trade Center

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11587-05-0

        S. 6061--B                          2

     1  site between September eleventh, two thousand one and September twelfth,
     2  two thousand one; (ii) the member sustained a documented physical injury
     3  at the World Trade Center site between September eleventh, two  thousand
     4  one  and September twelfth, two thousand one that is a qualifying condi-
     5  tion or impairment of health resulting in disability to the member  that
     6  prevented  the  member  from  continuing  to  participate in World Trade
     7  Center rescue, recovery or cleanup operations for  a  minimum  of  forty
     8  hours; and (iii) the documented physical injury that resulted in a disa-
     9  bility  to  the  member  that  prevented  the  member from continuing to
    10  participate in World Trade Center rescue, recovery or cleanup operations
    11  for a minimum of forty hours is the qualifying condition  or  impairment
    12  of  health  which  the  member  seeks to be eligible for the presumption
    13  provided for under this paragraph. A member shall also be  eligible  for
    14  the  presumption  provided  for under this paragraph notwithstanding the
    15  fact that the member did not participate in World Trade Center  recovery
    16  and  cleanup  operations for a minimum of forty hours, provided that the
    17  member drove, rode in, repaired, cleaned,  rehabilitated,  or  otherwise
    18  used  or  worked  in  vehicles or equipment, including emergency vehicle
    19  radio equipment, owned by the state of New York that was contaminated by
    20  debris in the World Trade Center site, as defined in  paragraph  (f)  of
    21  subdivision  thirty-six  of  section  two of this chapter, regardless of
    22  whether the use of or work on such vehicles and equipment was  performed
    23  within  the  World  Trade  Center  site,  and  provided such use or work
    24  occurred prior to decontamination of such vehicles or equipment.  Absent
    25  proof  to the contrary, contamination is presumed where such vehicles or
    26  equipment were in service between September eleventh, two  thousand  one
    27  and  September  eleventh,  two  thousand two and used in the World Trade
    28  Center site. Furthermore, it is presumed a member who was  a  member  of
    29  the  state  police  between  September  eleventh,  two  thousand one and
    30  September eleventh, two thousand six,  and  occupied  a  position  whose
    31  duties  would  reasonably  include  use  of or work on such contaminated
    32  vehicles and equipment, drove, rode  in,  repaired,  cleaned,  rehabili-
    33  tated,  or  otherwise  used  or worked on such contaminated vehicles and
    34  equipment.
    35    § 2. Subparagraph (d) of paragraph 1 of subdivision h of section  363-
    36  bb of the retirement and social security law is REPEALED.
    37    §  3. Subparagraph (e) of paragraph 1 of subdivision h of section 363-
    38  bb of the retirement and social security law, as amended by chapter  495
    39  of the laws of 2007, is amended to read as follows:
    40    (e)  In  order  to be eligible for consideration for such presumption,
    41  such member must file a written and sworn statement  with  the  member's
    42  retirement system on a form provided by such system indicating the dates
    43  and  locations  of  employment.  [Such statement must be filed not later
    44  than four years following the effective date of chapter one hundred four
    45  of the laws of two thousand five.]
    46    § 4. Subparagraph (a) of paragraph 2 of subdivision h of section  363-
    47  bb  of  the retirement and social security law, as amended by chapter 93
    48  of the laws of 2005, is amended to read as follows:
    49    (a) Notwithstanding the provisions of this chapter or of any  general,
    50  special or local law, charter, administrative code or rule or regulation
    51  to  the  contrary,  if  a  member who participated in World Trade Center
    52  rescue, recovery or cleanup operations for a minimum of forty hours, and
    53  subsequently retired on a service  retirement,  an  ordinary  disability
    54  retirement,  a  performance  of  duty  disability  retirement or a state
    55  police disability retirement pursuant to section  three  hundred  sixty-
    56  three-b of this title and subsequent to such retirement incurred a disa-

        S. 6061--B                          3

     1  bility  caused  by  any qualifying condition or impairment of the health
     2  which the comptroller determines to have been caused  by  such  member's
     3  having  participated  in  World Trade Center rescue, recovery or cleanup
     4  operations  for a minimum of forty hours, upon such determination by the
     5  comptroller it shall be presumed that such disability  was  incurred  in
     6  the  performance  and  discharge  of  duty  as the natural and proximate
     7  result of an accident not caused by such  member's  own  willful  negli-
     8  gence,  and that the member would have been physically or mentally inca-
     9  pacitated for the performance and discharge of duty of the position from
    10  which he or she retired had the condition been known and fully developed
    11  at the time of the member's retirement, unless the contrary is proven by
    12  competent evidence. A member  shall  be  eligible  for  the  presumption
    13  provided  for  under  this  paragraph  notwithstanding the fact that the
    14  member did not participate in World Trade  Center  rescue,  recovery  or
    15  cleanup  operations for a minimum of forty hours, provided that: (i) the
    16  member participated in the rescue, recovery, or  cleanup  operations  at
    17  the World Trade Center site between September eleventh, two thousand one
    18  and  September  twelfth,  two  thousand one; (ii) the member sustained a
    19  documented physical injury  at  the  World  Trade  Center  site  between
    20  September eleventh, two thousand one and September twelfth, two thousand
    21  one  that is a qualifying condition or impairment of health resulting in
    22  disability to the member that prevented the member  from  continuing  to
    23  participate in World Trade Center rescue, recovery or cleanup operations
    24  for  a  minimum of forty hours; and (iii) the documented physical injury
    25  that resulted in a disability to the member that  prevented  the  member
    26  from continuing to participate in World Trade Center rescue, recovery or
    27  cleanup operations for a minimum of forty hours is the qualifying condi-
    28  tion  or  impairment of health which the member seeks to be eligible for
    29  the presumption provided for under this paragraph. A member  shall  also
    30  be  eligible  for  the  presumption  provided  for  under this paragraph
    31  notwithstanding the fact that the member did not  participate  in  World
    32  Trade  Center  recovery  and  cleanup  operations for a minimum of forty
    33  hours, provided that the member drove, rode in, repaired, cleaned, reha-
    34  bilitated, or otherwise used or worked in vehicles or equipment, includ-
    35  ing emergency vehicle radio equipment, owned by the state  of  New  York
    36  that  was  contaminated  by  debris  in  the World Trade Center site, as
    37  defined in paragraph (f) of subdivision thirty-six  of  section  two  of
    38  this  chapter, regardless of whether the use of or work on said vehicles
    39  and equipment was performed within the  World  Trade  Center  site,  and
    40  provided  such  use  or  work  occurred prior to decontamination of such
    41  vehicles or equipment. Absent proof to the  contrary,  contamination  is
    42  presumed  where  such  vehicles  or  equipment  were  in service between
    43  September eleventh, two thousand one and September eleventh,  two  thou-
    44  sand  two  and  used  in the World Trade Center site. Furthermore, it is
    45  presumed that a member who was a member  of  the  state  police  between
    46  September  eleventh,  two thousand one and September eleventh, two thou-
    47  sand six, and occupied a position whose duties would reasonably  include
    48  use  of or work on such contaminated vehicles and equipment, drove, rode
    49  in, repaired, cleaned, rehabilitated, or otherwise  used  or  worked  on
    50  such contaminated vehicles and equipment.
    51    § 5. Clause (i) of subparagraph (b) of paragraph 2 of subdivision h of
    52  section  363-bb of the retirement and social security law, as amended by
    53  chapter 495 of the laws of 2007, is amended to read as follows:
    54    (i) the member files a written and sworn statement with  the  member's
    55  retirement system on a form provided by such system indicating the dates

        S. 6061--B                          4

     1  and  locations  of employment [within four years following the effective
     2  date of chapter one hundred four of the laws of two thousand five]; and
     3    §  6.  Subdivisions  i  and  j of section 363-bb of the retirement and
     4  social security law, subdivision i as amended and subdivision j as added
     5  by chapter 5 of the laws of 2007, are amended to read as follows:
     6    i. Notwithstanding any other provision  of  this  chapter  or  of  any
     7  general,  special  or local law, charter, administrative code or rule or
     8  regulation to the contrary, if a retiree who: (1) has met  the  criteria
     9  of  subdivision h of this section and retired on a service or disability
    10  retirement, or would have met the criteria if not already retired on  an
    11  accidental  disability; and (2) has not been retired for more than twen-
    12  ty-five years; and (3) dies from a qualifying condition or impairment of
    13  health, as defined in subparagraph (c) of paragraph one of subdivision h
    14  of this section, that is  determined  by  the  applicable  head  of  the
    15  retirement  system  or  applicable  medical board to have been caused by
    16  such retiree's participation in the World Trade Center rescue,  recovery
    17  or  cleanup operations, [as defined in subparagraph (d) of paragraph one
    18  of] or is otherwise eligible for the presumption as provided in subdivi-
    19  sion h of this section, then unless the contrary be proven by  competent
    20  evidence,  such  retiree  shall  be deemed to have died as a natural and
    21  proximate result of an accident sustained in the performance of duty and
    22  not as a result of willful negligence on his or her part. Such retiree's
    23  eligible beneficiary, as set forth in section three hundred sixty-one of
    24  this title, shall be entitled to an accidental death benefit as provided
    25  by section three hundred sixty-one  of  this  title,  however,  for  the
    26  purposes  of determining the salary base upon which the accidental death
    27  benefit is calculated, the retiree shall be deemed to have died  on  the
    28  date  of  his  or her retirement. Upon the retiree's death, the eligible
    29  beneficiary shall make a written application to the head of the  retire-
    30  ment  system within the time for filing an application for an accidental
    31  death benefit as set forth in section three hundred  sixty-one  of  this
    32  title  requesting  conversion  of  such  retiree's service or disability
    33  retirement benefit to an accidental death benefit. At the time  of  such
    34  conversion,  the eligible beneficiary shall relinquish all rights to the
    35  prospective benefits payable under the service or disability  retirement
    36  benefit,   including  any  post-retirement  death  benefits,  since  the
    37  retiree's death. If the eligible beneficiary is not the only beneficiary
    38  receiving or entitled to receive a benefit under the service or disabil-
    39  ity retirement benefit (including, but not limited  to,  post-retirement
    40  death  benefits  or  benefits  paid or payable pursuant to the retiree's
    41  option selection), the accidental death benefit payments to the eligible
    42  beneficiary will be reduced by any amounts paid or payable to any  other
    43  beneficiary.
    44    j.  Notwithstanding  any  other  provision  of  this chapter or of any
    45  general, special or local law, charter, administrative code or  rule  or
    46  regulation to the contrary, if a member who: (1) has met the criteria of
    47  subdivision  h  of  this  section; and (2) dies in active service from a
    48  qualifying condition or impairment of health, as defined in subparagraph
    49  (c) of paragraph one of subdivision h of this section,  that  is  deter-
    50  mined  by  the  applicable  head  of the retirement system or applicable
    51  medical board to have been caused by such member's participation in  the
    52  World  Trade  Center rescue, recovery or cleanup operations, [as defined
    53  in subparagraph (d) of paragraph one of] or is  otherwise  eligible  for
    54  the  presumption  as  provided  in  subdivision  h of this section, then
    55  unless the contrary be proven by competent evidence, such  member  shall
    56  be  deemed to have died as a natural and proximate result of an accident

        S. 6061--B                          5

     1  sustained in the performance of duty and not  as  a  result  of  willful
     2  negligence  on  his  or her part. Such member's eligible beneficiary, as
     3  set forth in section three hundred sixty-one of  this  title,  shall  be
     4  entitled to an accidental death benefit provided he or she makes written
     5  application  to  the  head  of the retirement system within the time for
     6  filing an application for an accidental death benefit as  set  forth  in
     7  section three hundred sixty-one of this title.
     8    § 7. Subdivision 1 of section 161 of the workers' compensation law, as
     9  added by chapter 446 of the laws of 2006, is amended to read as follows:
    10    1.  "Participant  in  World  Trade Center rescue, recovery, or cleanup
    11  operations" means any (a) employee who within the course of  employment,
    12  or (b) volunteer upon presentation to the board of evidence satisfactory
    13  to the board that he or she:
    14    (i) participated in the rescue, recovery, or cleanup operations at the
    15  World Trade Center site between September eleventh, two thousand one and
    16  September twelfth, two thousand two; or
    17    (ii)  worked  at  the  Fresh  Kills Land Fill in New York city between
    18  September eleventh, two thousand one and September twelfth, two thousand
    19  two[,]; or
    20    (iii) worked at the New York city morgue or the  temporary  morgue  on
    21  pier locations on the west side of Manhattan between September eleventh,
    22  two thousand one and September twelfth, two thousand two[,]; or
    23    (iv)  worked  on the barges between the west side of Manhattan and the
    24  Fresh Kills Land Fill in New York city between September  eleventh,  two
    25  thousand one and September twelfth, two thousand two[.]; or
    26    (v)  as  a  member  of  the  state  police,  drove, rode in, repaired,
    27  cleaned, rehabilitated, or otherwise  used  or  worked  in  vehicles  or
    28  equipment,  including  emergency  vehicle  radio equipment, owned by the
    29  state of New York that was contaminated by debris  in  the  World  Trade
    30  Center  site,  as  defined in paragraph (f) of subdivision thirty-six of
    31  section two of the retirement and social  security  law,  regardless  of
    32  whether  the use of or work on said vehicles and equipment was performed
    33  within the World Trade Center site, provided such use or  work  occurred
    34  prior to decontamination of such vehicles or equipment.  Absent proof to
    35  the contrary, contamination is presumed where such vehicles or equipment
    36  were in service between September eleventh, two thousand one and Septem-
    37  ber  eleventh, two thousand two and used in the World Trade Center site.
    38  Furthermore, it is presumed a member who  was  a  member  of  the  state
    39  police  between September eleventh, two thousand one and September elev-
    40  enth, two thousand six, and  occupied  a  position  whose  duties  would
    41  reasonably  include  use  of  or  work  on the contaminated vehicles and
    42  equipment, drove, rode in, repaired, cleaned, rehabilitated,  or  other-
    43  wise used or worked on such contaminated vehicles and equipment.
    44    §  8. Notwithstanding any other provision to the contrary, none of the
    45  provisions of this act shall be subject to section 25 of the  retirement
    46  and social security law.
    47    §  9.  This  act  shall take effect immediately and shall be deemed to
    48  have been in full force and effect on  and  after  September  11,  2001;
    49  provided,  however,  that  the amendments to section 161 of the workers'
    50  compensation law made by section seven of this act shall  apply  to  all
    51  open and closed claims coming within the purview of the workers' compen-
    52  sation board.
          FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
          This bill would expand the definition of a "participant in World Trade
        Center rescue, recovery, or cleanup operations" for members of the State
        Police  by  (1)  eliminating  the requirement to have worked at specific

        S. 6061--B                          6

        covered sites, and (2) establishing the use of a State vehicle prior  to
        decontamination  as  a  qualified  form  of  participation. Unless there
        exists competent evidence to the contrary, State vehicles  used  at  the
        World  Trade  Center  site  between September 11, 2001 and September 11,
        2002 are presumed to be contaminated, and all State Police officers  who
        worked between September 11, 2001 and September 11, 2006, who could have
        reasonably  used a contaminated State vehicle, are presumed to have used
        such vehicle prior to  decontamination.  These  provisions  take  effect
        retroactively, beginning September 11, 2001.
          For  members  who meet the requirements to be considered a participant
        in the World Trade Center rescue, recovery, or cleanup  operations,  the
        onset  of  any  condition or impairment of health related to exposure in
        connection with participation serves as presumptive  evidence  that  any
        disability,  or  death as a result of such disability, was the result of
        an accident and was sustained in the performance of duty,  absent  proof
        to the contrary.
          If  this  bill  is  enacted,  it  would reclassify certain current and
        future retirement benefits. The cost of the revised benefit will  depend
        upon the applicant's age, service, salary, plan, and benefit type other-
        wise payable.
        Benefit without enactment:    None      Ordinary            Service
                                                Disability

        Cost for WTC benefit:         9 times   5 times             2 times
                                      salary    salary              salary

          This  bill  would  also lead to more deaths being classified as "acci-
        dental".  For each death classified as accidental due to this bill,  the
        cost  would depend on the age, service, salary, plan, and status at time
        of death. It is estimated that the cost  for  each  individual  affected
        would average approximately 11 times salary.
          It  is  estimated  that  the cost of providing these enhanced benefits
        will be approximately $5 billion. These costs would  be  shared  by  the
        State of New York and the participating employers in the Police and Fire
        Retirement System.
          In addition to the costs stated above, there will be an administrative
        cost to implement the provisions of this legislation.
          This  proposal  is  expected to affect 2,800 active members collecting
        $393 million in annual salary and 2,531 retirees collecting $180 million
        in annual benefits, 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.

        S. 6061--B                          7

          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.  2020-77,  prepared  by
        the Actuary for the New York State and Local Retirement System.
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