N.Y. Retirement & Social Security Law § 102: Recovery of disability beneficiaries

§ 102. Recovery of disability beneficiaries. a. Once each year

following the retirement of a member on a disability allowance, the

comptroller may, and, upon the beneficiary's application, shall require

such disability beneficiary to undergo a medical examination. Such

examination shall be made at the place of residence of such beneficiary,

or at any other place mutually agreed upon by the comptroller and such

beneficiary. In the event that any such disability beneficiary shall

refuse to submit to a medical examination, the pension portion of his

retirement allowance, including the

pension-providing-for-increased-take-home-pay, shall be discontinued

until his withdrawal of such refusal. If such refusal shall continue for

one year, all his rights in and to his pension shall be forfeited.

b. The pension, including the pension-providing-for-increased-take-

home-pay, of a disability beneficiary shall be reduced in the event that

any such disability beneficiary is engaged in a gainful occupation

paying more than the difference between his retirement allowance, as it

would be without optional modification and if not reduced by the

actuarial equivalent of any outstanding loan and if not increased by the

actuarial equivalent of any additional contributions, and his final

salary. Such reduction shall be to a sum which, when added to an

annuity, as so computed, plus the amount so earnable by him, shall equal

his final salary. If his earning capacity thereafter changes, his

pension may be further altered. Any such altered pension shall not

exceed:

1. The pension, including the pension-providing-for-increased-take-

home-pay, originally granted to such beneficiary, nor

2. An amount which, when added to an annuity, as so computed, plus the

sum earned by him, shall equal his final salary.

In the case where an optional benefit has been selected, such

reduction shall be the same as the reduction would have been without

optional modification. Where such reduction is greater than the pension,

including the pension-providing-for-increased-take-home-pay, payable

under the option selected, the excess may be paid by the pensioner into

the funds of the system, in which case the benefit due under the option

shall be paid as if no reduction had occurred. If such excess is not

paid by the pensioner, the benefit otherwise due under the option shall

be reduced by the actuarial equivalent of such excess. In no event shall

the payment to the funds be greater than the difference between the

pension, including the pension-providing-for-increased-take-home-pay,

without optional modification and the pension, including the pension-

providing-for-increased-take-home-pay, under the option selected. The

pension, including the pension-providing-for-increased-take-home-pay of

a disability pensioner, shall not be reduced after he has attained the

mandatory retirement age applicable to him or shall have attained the

age or performed the period of service specified by applicable law for

eligibility for a service retirement benefit.

c. In the event that the comptroller shall determine that a disability

beneficiary is able to engage in a gainful occupation, he shall, if such

beneficiary so requires, certify the name of such beneficiary to the

state civil service department or appropriate civil service commission.

The state civil service department or such municipal commission shall

place the name of such beneficiary, as a preferred eligible, on the

appropriate eligible lists prepared by it for positions for which such

beneficiary is stated to be qualified in a salary grade not exceeding

that from which he was last retired. If any such beneficiary shall be

offered a position as a result of the placing of his name on any such

civil service list, the amount of his disability pension, including the

pension-providing-for-increased-take-home-pay, shall be reduced. Such

reduction shall be to an amount which, when added to the amount earned

or earnable by him in such position, shall not exceed his final salary.

A disability beneficiary restored to active service shall not be

eligible to membership in the retirement system so long as he receives

any pension, including the

pension-providing-for-increased-take-home-pay.

d. In the event that a disability beneficiary is restored to active

service of an employer, at a salary equal to or in excess of his final

salary, his retirement allowance shall cease. Such person thereupon

again shall become a member of the retirement system. He thereafter

shall contribute to the retirement system in the same manner as and at

the same rate that he paid prior to his disability retirement. The total

service credit, to which he was entitled at the time of such retirement,

again shall be credited to him. Upon his subsequent retirement, he shall

be credited, in addition, with all member service earned by him

subsequent to his last restoration to membership.

e. In the event that a disability retiree is restored to active

service of an employer, at a salary less than his final salary but equal

to or in excess of the current minimum salary for the position from

which he was last retired for disability, such person, if he so elects,

shall again become a member of the retirement system and his retirement

allowance shall cease. He thereafter shall contribute to the retirement

system in the same manner as and at the same rate that he paid prior to

his disability retirement. The total service credit, to which he was

entitled at the time of such retirement, again shall be credited to him.

Upon his subsequent retirement, he shall be credited, in addition, with

all member service earned by him subsequent to his last restoration to

membership.

e-1. Notwithstanding any other provision of this section or any other

provision of law, a retiree of any New York state police or fire

retirement system on a disability allowance who returns to gainful

employment as an elected public official shall continue to receive the

full amount of his or her retirement allowance, including the

pension-providing-for-increased-take-home-pay.

f. Notwithstanding any other provision of this article, the term

"final salary", as used in this section, shall mean the maximum salary

or compensation which the retired member currently would be receiving in

the position next higher from which he was last retired for disability,

if he had not been so retired, provided, however, that if the position

from which he was so retired has been abolished, the comptroller, upon

the basis of salary or compensation currently paid by the retired

member's last employer to persons in similar or comparable positions,

shall determine, for the purposes of this section, the maximum amount of

salary or compensation which such retired member currently would be

receiving in such position.