§ 402 — Recovery of disability beneficiaries

§ 402. Recovery of disability beneficiaries. a. Once each year the\ncomptroller may, and, upon his application, shall require a retiree on a\ndisability allowance, under the minimum age or period for service\nretirement elected by him, to undergo a medical examination. Such\nexamination shall be made at the place of residence of such beneficiary,\nor at any other place mutually agreed upon by the comptroller and such\nbeneficiary. In the event that any such disability beneficiary shall\nrefuse to submit to a medical examination, the pension portion of his\nretirement allowance, including the\npension-providing-for-increased-take-home-pay, shall be discontinued\nuntil his withdrawal of such refusal. If such refusal shall continue for\none year, all his rights in and to his pension shall be forfeited.\n b. The pension, including the\npension-providing-for-increased-take-home-pay, of a disability\nbeneficiary shall be reduced in the event that any such disability\nbeneficiary is engaged in a gainful occupation paying more than the\ndifference between his retirement allowance, as it would be without\noptional modification and if not reduced by the actuarial equivalent of\nany outstanding loan and if not increased by the actuarial equivalent of\nany additional contributions, and his final salary. Such reductions\nshall be to a sum which, when added to an annuity, as so computed, plus\nthe amount so earnable by him, shall equal his final salary. If his\nearning capacity thereafter changes, his pension may be further altered.\nAny such altered pension shall not exceed:\n 1. The pension, including the\npension-providing-for-increased-take-home-pay, originally granted to\nsuch beneficiary, nor\n 2. An amount which, when added to an annuity, as so computed, plus the\nsum earned by him or her, shall equal his or her final salary.\n In the case where an optional benefit has been selected, such\nreduction shall be the same as the reduction would have been without\noptional modification. Where such reduction is greater than the pension,\nincluding the pension-providing-for-increased-take-home-pay, payable\nunder the option selected, the excess may be paid by the pensioner into\nthe funds of the police and fire retirement system, in which case the\nbenefit due under the option shall be paid as if no reduction had\noccurred. If such excess is not paid by the pensioner, the benefit\notherwise due under the option shall be reduced by the actuarial\nequivalent of such excess. In no event shall the payment to the funds be\ngreater than the difference between the pension, including the\npension-providing-for-increased-take-home-pay, without optional\nmodification and the pension, including the\npension-providing-for-increased-take-home-pay, under the option\nselected. The pension, including the\npension-providing-for-increased-take-home-pay of a disability pensioner,\nshall not be reduced after he or she has attained the mandatory\nretirement age applicable to him or her or shall have attained the age\nor performed the period of service specified by applicable law for\neligibility for a service retirement benefit.\n c. In the event that the comptroller shall determine that a disability\nbeneficiary is able to engage in a gainful occupation, he or she shall,\nif such beneficiary so requires, certify the name of such beneficiary to\nthe state civil service department or appropriate civil service\ncommission. The state civil service department or such municipal\ncommission shall place the name of such beneficiary, as a preferred\neligible, on the appropriate eligible lists prepared by it for positions\nfor which such beneficiary is stated to be qualified in a salary grade\nnot exceeding that from which he or she was last retired. If any such\nbeneficiary shall be offered a position as a result of the placing of\nhis or her name on any such civil service list, the amount of his or her\ndisability pension, including the\npension-providing-for-increased-take-home-pay, shall be reduced. Such\nreduction shall be to an amount which, when added to the amount earned\nor earnable by him or her in such position, shall not exceed his or her\nfinal salary. A disability beneficiary restored to active service shall\nnot be eligible to membership in the police and fire retirement system\nso long as he or she receives any pension, including the\npension-providing-for-increased-take-home-pay.\n d. In the event that a disability beneficiary is restored to active\nservice of an employer, at a salary equal to or in excess of his or her\nfinal salary, his or her retirement allowance shall cease. Such person\nthereupon again shall become a member of the police and fire retirement\nsystem. He or she thereafter shall contribute to the police and fire\nretirement system in the same manner as and at the same rate that he or\nshe paid prior to his or her disability retirement. The total service\ncredit, to which he or she was entitled at the time of such retirement,\nagain shall be credited to him or her. Upon his or her subsequent\nretirement, he or she shall be credited, in addition, with all member\nservice earned by him or her subsequent to his or her last restoration\nto membership.\n e. In the event that a disability retiree is restored to active\nservice of an employer, at a salary less than his or her final salary\nbut equal to or in excess of the current minimum salary for the position\nfrom which he or she was last retired for disability, such person, if he\nor she so elects, shall again become a member of the police and fire\nretirement system and his or her retirement allowance shall cease. He or\nshe thereafter shall contribute to the police and fire retirement system\nin the same manner as and at the same rate that he or she paid prior to\nhis or her disability retirement. The total service credit, to which he\nor she was entitled at the time of such retirement, again shall be\ncredited to him or her. Upon his subsequent retirement, he or she shall\nbe credited, in addition, with all member service earned by him or her\nsubsequent to his or her last restoration to membership.\n f. In the case of members who have changed plans prior to the\neffective date of this subdivision, the plan providing the earliest\nminimum age or period of service shall be applied.\n f-1. Notwithstanding any other provision of this section or any other\nprovision of law, a retiree of any New York state police or fire\nretirement system on a disability allowance who returns to gainful\nemployment as an elected public official shall continue to receive the\nfull amount of his or her retirement allowance, including the\npension-providing-for-increased-take-home-pay.\n g. Notwithstanding any other provision of this article, the term\n"final salary", as used in this section, shall mean the maximum salary\nor compensation which the retired member currently would be receiving in\nthe position next higher from which he was last retired for disability,\nif he had not been so retired, provided, however, that if the position\nfrom which he was so retired has been abolished, the comptroller, upon\nthe basis of salary or compensation currently paid by the retired\nmember's last employer to persons in similar or comparable positions,\nshall determine, for the purposes of this section, the maximum amount of\nsalary or compensation which such retired member currently would be\nreceiving in such position.\n