CORRECTED COPY

 

Bill No.             45-10                           

Concerning:  Personnel — Disability       Retirement      - Eligibility - Total and Partial Incapacity       

Revised:   July 27, 2011 Draft No. 7      

Introduced:       July 27, 2010                

Enacted:           June 28, 2011               

Executive:         July 11, 2011                

Effective:          July 1, 2012 (Exception Section 4 – October 10, 2011                      

Sunset Date:     None                           

Ch.   13 , Laws of Mont. Co.       2011    

 

County Council

For Montgomery County, Maryland

 

By: Councilmembers Trachtenberg, Andrews, Berliner, and Council Vice President Ervin

 

AN ACT to:

            (1)        create a partial incapacity disability retirement benefit for certain employees;

(2)        create a total incapacity disability retirement benefit for certain employees;

(3)        prohibit an employee who commits certain offenses from receiving a service connected disability retirement benefit; and

(4)        generally amend County law regarding disability retirement.

 

By amending

            Montgomery County Code

            Chapter 33, Personnel and Human Resources

            Sections 33-43, 33-128, 33-129, and 33-131

 

Boldface                                             Heading or defined term.

Underlining                                          Added to existing law by original bill.

[Single boldface brackets]                  Deleted from existing law by original bill.

Double underlining                              Added by amendment.

[[Double boldface brackets]]              Deleted from existing law or the bill by amendment.

*   *   *                                                  Existing law unaffected by bill.

 
 

 

 

 

 

 

 

 


The County Council for Montgomery County, Maryland approves the following Act:

 

Clerk’s Note:  The words “Removal for cause” was changed to “termination for misconduct” on page 3, line 40 and on page 13, line 303.

 



          Sec. 1.  Sections 33-43, 33-128, 33-129, and 33-131 are amended as follows:

33-43.         Disability retirement.

*                 *                 *

(b)     Definitions. In this Section, the following words and phrases have the following meanings:

*                 *                 *

Partial incapacity means a member’s inability to perform one or more essential functions of the position the member holds because of impairment that;

(1)     is unlikely to resolve in the next 12 months;

(2)     may be permanent; and

(3)     does not prevent the member from performing any other substantial gainful activity.

*                 *                 *

Total Incapacity means the member’s inability to perform substantial gainful activity because of an impairment that;

(1)     is unlikely to resolve in the next 12 months; and

(2)     may be permanent.

*                 *                 *

(f)      Service-connected disability retirement.

(1)     A member may be retired on a service-connected disability retirement if:

(A)    the member is totally or partially incapacitated [for duty or partially and permanently incapacitated for duty] as the natural and proximate result of an accident occurring,


or an occupational disease incurred or condition aggravated, while in the actual performance of duty;

(B)     the incapacity is not due to the member's willful negligence;

(C)     the incapacity is likely to be permanent; [and]

(D)    the member is unable to perform the duties of either:

(i)      the occupational classification to which the member was assigned [at the time] when the disability occurred; or

(ii)     a position of comparable status [within] in the same department for which the member is qualified; and[.]

(E)     the member has not committed an offense that would justify [[removal for cause]] termination for misconduct.

(F)     For an accidental injury that does not cause mental impairment, the member must:

(i)      [reports] report the claimed accidental injury as soon as practicable, but no later than one year after the applicant knew or should have known that the injury is likely to be disabling; or

(ii)     [submits] submit a claim for Workers’ Compensation benefits for the accidental injury that is not dismissed as untimely.

[(F)] (G)      The time periods for reporting in subparagraphs (i) and (ii) do not begin while the member is unable to report because of incapacitating injuries.


[(G)] (H)     For an accidental injury that occurs after July 1, 2009, the member must apply for disability benefits:

(i)      within one year after separation from County service or before July 1, 2010, whichever is later; and

(ii)     if the applicant is a member of Group F, within 5 years after the date of the accident causing the impairment or before July 1, 2014, whichever is later, unless the member is in a chronic incapacity duty assignment.

*                 *                 *

(i)      Amount of pension at service-connected disability retirement.

(1)     Total incapacity.  The County must pay a member [, other than a Group G member,] who retires on service-connected disability retirement with total incapacity an annual pension calculated under Section 33-42(b)(1), [subject to the following exceptions] except that:

(A)    the County must substitute final earnings for average final earnings; and

(B)     the pension must be at least [66 2/3 percent] 70% of the member's final earnings.

(2)     [The County must pay a Group G member who retires on a service-connected disability retirement an annual pension calculated under Section 33-42(b)(1), except that the County must substitute final earnings for average final earnings.  However, if this] If the benefit calculation under Section 33-42(b)(1) is greater than any other benefit under this subsection, the County must pay a Group G member who retires on a service-connected disability retirement between June 26, 2002, and June 30, 2007, a pension based on the member’s average final earnings if that member’s average final earnings result in a greater benefit than final earnings.

(3)     [The County must pay a Group G member who retires on a service-connected disability retirement an annual pension calculated under Section 33-42(b)(1), but the benefit must be at least 70 percent of final earnings if the Chief Administrative Officer finds, based on a recommendation from the Disability Review Panel, that] The Disability Review Panel must recommend a finding of total incapacity if the member's service-connected disability is severe enough to meet the Social Security Administration's requirements for disability, meaning that the member is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment that can be expected to end in death or has lasted, or can be expected to last, for a continuous period of at least 12 months.  The member does not have to qualify for Social Security disability benefits to be eligible for benefits under this subsection.

(A)    The Panel must base its determination of whether [or not] an individual is able to engage in any substantial gainful activity on an assessment from an independent vocational expert that considers the member's age, education, work experience, transferable skills, and residual functional capacity.

(B)     The Panel must determine the member's residual functional capacity and provide this information to the independent vocational expert.

(C)     A Panel determination that the member's service-connected disability is severe enough to be considered a disability by the Social Security Administration is not a recommendation that the member is entitled to, or should be granted, a disability benefit by the Social Security Administration.

(D)    If a member has already been granted disability benefits by the [U.S.] Social Security Administration when the member applies for a service-connected disability pension, the County must pay the member a pension of at least 70% [percent] if the Disability Review Panel finds that the award of disability benefits from the Social Security Administration was based primarily on the same medically determinable physical or mental impairment on which the Disability Review Panel awards the member a service-connected disability benefit.

(4)     The County must pay a [Group G] member who retires with partial incapacity on a service-connected disability retirement an annual pension calculated under Section 33-42(b)(1), but the benefit must be at least 52½ % [percent] of final earnings if the Chief Administrative Officer finds, based on a recommendation from the Disability Review Panel, that:

(A)    the member meets the standards to receive a service-connected disability benefit under subsection (f); and

(B)     the member is not eligible to receive a benefit for total incapacity under subsection (i)(3).

(5)     (A)    The County must increase the partial incapacity service-connected disability pension benefit of a [Group G] member calculated under Section 33-42(b)(1), from a benefit of at    least 52 ½ % [percent] to a benefit of at least 70 % [percent], if:

(i)      the [U.S.] Social Security Administration awards disability benefits to the member;

(ii)     the member submits all relevant information about the award of disability benefits from the Social Security Administration to the Disability Review Panel within 60 days after the member receives the award;

(iii)    the Disability Review Panel finds that the award of disability benefits from the Social Security Administration was based primarily on the same medically determinable physical or mental impairment on which the Disability Review Panel originally awarded the member a service-connected disability benefit; and

[(a)] (iv) the member applies for disability benefits with the Social Security Administration within 90 days after the [date on which the] Chief Administrative Officer notified the member that the [amount of the] service-connected disability pension benefit would be calculated [under Section 33-42(b)(1), but at least 52 ½ percent; or] as a partial incapacity.

[(b)    the Chief Administrative Officer awards a service-connected disability pension benefit calculated under Section (b)(1), but at least 52 ½ percent to the member between March 1, 2000, and December 1, 2003, and the member applies for disability benefits with the Social Security Administration no later than February 29, 2004.]

(B)     [For] If a member [who] qualifies for an increased pension benefit under [subsection (5)] subparagraph (A) [above], the County must increase the member's service-connected pension retroactively to the date [on which] when the pension began.

*                  *                  *

(7)     The County must pay a Group F member who retires on a service-connected disability retirement on or after June 26, 2002, an annual pension calculated under subsection (i) (1) or subsection (i) (4).  However, if [the] a greater benefit results from the calculation under Section 33-42(b)(1), the County must pay a Group F member a pension based on the member’s average final earnings if that member’s average final earnings result in a greater benefit than final earnings.

(j)      Adjustment or cessation of disability pension payments.

(1)     If a member receiving service-connected disability pension payments reaches the first day of the month [following] after the member’s normal retirement date, the amount of pension then payable must not be less than the amount that would have been payable under [the provisions of] Section 33-45(c)[,] if the member had terminated service [on] when the [date] disability pension [commenced] began and had not elected a return of member contributions with credited interest.

(2)     (A)    The Chief Administrative Officer may reduce the amount of the disability pension payments of a member retired with total incapacity who:

(i)      has not reached the normal retirement date; and

(ii)     is engaged in, or is able to engage in, an occupation that pays more than the difference between the disability pension payments and the current maximum earnings of the occupational classification from which the member was disabled.

(B)     If a member other than a Group F member meets the criteria in subparagraph (A), the Chief Administrative Officer may reduce the member’s disability pension payments until the disability pension payments plus the amount that the employee earned or is able to earn equals the maximum earnings of the occupational class from which the member was disabled.

*                 *                 *

(3)     If the earnings capacity of a disability retiree with a total incapacity changes, the Chief Administrative Officer may change the amount of the disability retirement pension.  [For the purpose of] In this subsection, “disability pension” is the amount of pension payable without election of a pension payment option.

(A)    For a disability retiree other than a group F member, the Chief Administrative Officer must ensure that the amount of the revised pension does not exceed:

(i)      the original disability retirement pension plus cost-of-living increases; or

(ii)     an amount that, when added to the amount the member earns or is able to earn, equals the maximum earnings of the occupational classification from which the member was disabled.

(B)     For a Group F member who receives a non-service connected disability pension, the Chief Administrative Officer must ensure that the amount of the revised pension must not exceed:

(i)      the original disability retirement pension plus cost-of-living increases; or

(ii)     an amount that, when added to the amount that the member earns or is able to earn, equals 120 percent of the maximum earnings of the occupational classification from which the member was disabled.

(4)     A member who receives a disability retirement pension for a total incapacity must submit to the Chief Administrative Officer by May 30 of each year a copy of that portion of the member’s federal income tax return which shows the member’s income.  If a member [receiving] who receives disability pension payments [fails or refuses to] does not supply the Chief Administrative Officer [whatever] any information [is determined necessary] the Chief Administrative Officer needs to [make a decision on] decide the amount of retirement pay legally due, the Chief Administrative Officer must suspend the member's pension payments [must be discontinued] until the member submits the [requested] needed information.

*                 *                 *

33-128. Definitions.

          In this Division, the following words and phrases have the following meanings:

*                 *                 *

Partial incapacity means a member’s inability to perform one or more essential functions of the position the member holds because of impairment that;

(1)     is unlikely to resolve in the next 12 months;

(2)     may be permanent; and

(3)     does not prevent the member from performing any other substantial gainful activity.

*                 *                 *

Residual functional capacity means what the individual can still do, despite the individual’s impairment.  The County must give the term residual functional capacity the same meaning as the term is given by the Social Security Administration.

Substantial gainful activity means a level of productive work that requires significant physical or mental duties, or a combination of both, performed for pay or profit on a full- time or part-time basis.  An individual is able to perform a substantial level of work if the individual is able to earn more than the Social Security Administration’s current monthly earnings limit for a disabled person.  The County must give the term substantial gainful activity the same meaning as the term is given by the Social Security Administration.

Total Incapacity means the member’s inability to perform substantial gainful activity because of an impairment that;

(1)     is unlikely to resolve in the next 12 months; and

(2)     may be permanent.

33-129. Disability benefits.

*                 *                 *

(d)     Initial service-connected disability benefits. An employee may receive disability benefits for a period of 36 consecutive months, subject to this plan, if the administrator finds that:

(A)    the employee has incurred an initial service-connected disability; and

(B)     for an accidental injury that does not cause mental impairment, the employee:

(i)      reports the claimed accidental injury as soon as practicable, but no later than one year after the applicant knew or should have known that the injury is likely to be disabling; or

(ii)     submits a claim for Workers’ Compensation benefits for the accidental injury that is not dismissed as untimely.


(C)     The time periods for reporting in subparagraphs (i) and (ii) do not begin while the applicant is unable to report because of incapacitating injuries.

(D)    For an accidental injury that occurs after July 1, 2009, the applicant must apply for disability benefits within one year after separation from County service or before July 1, 2010, whichever is later.

(E)     An employee who has committed an offense that would justify [[removal for cause]] termination for misconduct must not receive service-connected disability benefits.

*                 *                 *

(f)      The Disability Review Panel must recommend a finding of total incapacity if the member's service-connected disability is severe enough to meet the Social Security Administration's requirements for disability, meaning that the member is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment that can be expected to end in death or has lasted, or can be expected to last, for a continuous period of at least 12 months.  The member does not have to qualify for Social Security disability benefits to be eligible for benefits under this subsection.

(1)     The Panel must base its determination of whether an individual is able to engage in any substantial gainful activity on an assessment from an independent vocational expert that


          considers the member's age, education, work experience, transferable skills, and residual functional capacity.

(2)     The Panel must determine the member's residual functional capacity and provide this information to the independent vocational expert.

(3)     A Panel determination that the member's service-connected disability is severe enough to be considered a disability by the Social Security Administration is not a recommendation that the member is entitled to, or should be granted, a disability benefit by the Social Security Administration.

(4)     If a member has already been granted disability benefits by the Social Security Administration when the member applies for a service-connected disability pension, the County must give the member a total incapacity benefit if the Disability Review Panel finds that the award of disability benefits from the Social Security Administration was based primarily on the same medically determinable physical or mental impairment on which the Disability Review Panel awards the member a service-connected disability benefit.

(g)     The Disability Review Panel must recommend a finding of partial incapacity if:

(1)     the member meets the standards to receive a service-connected disability benefit; and

(2)     the member is not eligible to receive a benefit for total incapacity under subsection (f).

(h)     The County must increase the partial incapacity service-connected disability pension benefit of a member to a total incapacity benefit if:

(1)     the Social Security Administration awards disability benefits to the member;

(2)     the member submits all relevant information about the award of disability benefits from the Social Security Administration to the Disability Review Panel within 60 days after the member receives the award;

(3)     the Disability Review Panel finds that the award of disability benefits from the Social Security Administration was based primarily on the same medically determinable physical or mental impairment on which the Disability Review Panel originally awarded the member a service-connected disability benefit; and

(4)     the member applies for disability benefits with the Social Security Administration within 90 days after the Chief Administrative Officer notified the member that the service-connected disability pension benefit would be calculated as a partial incapacity.

(5)     If a member qualifies for an increased pension benefit under subsection (h), the County must increase the member's service-connected pension retroactively to the date when the pension began.

(i)      Role of the Disability Review Panel.

(1)     The Disability Review Panel must consider an application for disability benefits to determine if the applicant is eligible for disability benefits under subsection (a), (b), (c), (d), [or] (e), (f), (g), or (h).  The Panel may consider any information or material submitted by the applicant, the certified representative, or the County.  Within 60 days after the application is filed, the Panel must meet in person, by telephone conference, or by video conference, to review all evidence submitted to the Panel.  [An action by the Panel under this Section requires a majority vote of 3]  A Panel must include either 2 or 3 members.  At least 2 members must vote in favor of a decision to take any action under this Section.

*                 *                 *

33-131. Amount of benefits.

(a)     Service-connected disability. The annual amount of service-connected disability payments payable for total incapacity equals [66 2/3 percent] 70% of the employee's final earnings, less any reductions provided in section 33-134.  The annual amount of service-connected disability payments payable for partial incapacity equals 52½ % of the employee’s final earnings.

*                 *                 *

          Sec. 2.         Implementation.  Notwithstanding any other provision of law, including §33-80(a)(7) and §33-107(a)(7), the implementation of any amendment to County Code Chapter 33 in Section 1 of this Act concerning disability retirement is not subject to collective bargaining with a certified representative of employees in any bargaining unit.

            Sec. 3.         Effective Date.  This Act, other than Section 4, takes effect on July 1, 2012.  Section 4 takes effect 91 days after the Act becomes law.  The amendments to County Code Chapter 33 made in Section 1 of this Act apply to any [[application for]] disability [[retirement filed]] occurring on or after the date this Act takes effect.

          Sec. 4.         Collective bargaining.

(a)     It is the policy of Montgomery County that all County employees should have a multi-tier service-connected disability retirement system which includes a:

(1)     partial incapacity service-connected disability retirement benefit for any injury or illness that prevents an employee from continuing in the employee’s current position but does not prevent the employee from engaging in other substantial gainful employment; and

(2)     total incapacity service-connected disability retirement benefit for any injury or illness that prevents an employee from engaging in any other substantial gainful employment.

(b)     It is also the policy of the County that disability benefits are a mandatory subject of collective bargaining with each appropriate certified employee representative. 

(c)      Notwithstanding any County law to the contrary, the County Executive may separately negotiate the terms of an appropriate multi-tier service-connected disability retirement system with the certified employee representative for the police bargaining unit and the certified representative for the OPT and SLT bargaining units, in each case not later than March 1, 2012.  If in either case the parties are unable to reach agreement on an appropriate multi-tier system, the parties may submit this issue for resolution through the applicable impasse procedures under the County’s police labor relations law and the County collective bargaining law as a separate matter, not part of or linked to any other collective bargaining procedure.  The impasse neutral for the police bargaining unit and the mediator/arbitrator for the OPT and SLT bargaining units must choose the final offer of either party after considering equally the following factors:

(1)     service-connected disability retirement systems for similar employees of other public employers in the Washington Metropolitan Area and in Maryland;

(2)     best practices for service-connected disability retirement systems for similar employees in the United States;

(3)     the interest and welfare of the public; and

(4)     the long-term ability of the employer to finance a disability retirement system, and the effect of the cost of the system on the normal standard of public services provided by the employer.

(d)     The Executive must submit the results of any collective bargaining process regarding this issue to the Council for legislative action not later than April 1, 2012.

Approved: