Amd 363-bb, rpld 363-bb sub h 1 sub (d), R & SS L; amd 161, Work Comp L
 
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.
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.