N.Y. Retirement & Social Security Law § 402: Recovery of disability beneficiaries

§ 402. Recovery of disability beneficiaries. a. Once each year the

comptroller may, and, upon his application, shall require a retiree on a

disability allowance, under the minimum age or period for service

retirement elected by him, 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 reductions

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 or her, shall equal his or her 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 police and fire retirement 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 or she has attained the mandatory

retirement age applicable to him or her 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 or she 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 or she was last retired. If any such

beneficiary shall be offered a position as a result of the placing of

his or her name on any such civil service list, the amount of his or her

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 or her in such position, shall not exceed his or her

final salary. A disability beneficiary restored to active service shall

not be eligible to membership in the police and fire retirement system

so long as he or she 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 or her

final salary, his or her retirement allowance shall cease. Such person

thereupon again shall become a member of the police and fire retirement

system. He or she thereafter shall contribute to the police and fire

retirement system in the same manner as and at the same rate that he or

she paid prior to his or her disability retirement. The total service

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

again shall be credited to him or her. Upon his or her subsequent

retirement, he or she shall be credited, in addition, with all member

service earned by him or her subsequent to his or her 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 or her final salary

but equal to or in excess of the current minimum salary for the position

from which he or she was last retired for disability, such person, if he

or she so elects, shall again become a member of the police and fire

retirement system and his or her retirement allowance shall cease. He or

she thereafter shall contribute to the police and fire retirement system

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

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

or she was entitled at the time of such retirement, again shall be

credited to him or her. Upon his subsequent retirement, he or she shall

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

subsequent to his or her last restoration to membership.

f. In the case of members who have changed plans prior to the

effective date of this subdivision, the plan providing the earliest

minimum age or period of service shall be applied.

f-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.

g. 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.