Bill No.
45-10
Concerning: Personnel - Disability
Retirement - Eligibility - Total and
Partial Incapacity
Revised: June
22. 2011
Draft No.
_7_
Introduced:
July
27. 2010
Enacted:
June
28. 2011
Executive: _ _ _ _ _ _ _ __
Effective: _---,_ _ _ _ _ _ __
Sunset Date:
~N=o.:..:.;ne=__~---_
Ch. _ , laws of Mont. Co. _ _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council members Trachtenberg, Andrews, Berliner, and Council Vice President Ervin
AN
ACT to:
(1)
(2)
(3)
(4)
create a partial incapacity disability retirement benefit for certain employees;
create a total incapacity disability retirement benefit for certain employees;
prohibit an employee who commits certain offenses from receiving a service
connected disability retirement benefit; and
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
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
* * *
The County Council for Montgomery County, Maryland approves the following Act:
1
 PDF to HTML - Convert PDF files to HTML files
BILL
No.4S-10
2
3
4
Sec. 1.
follows:
33-43.
Sections 33-43, 33-128, 33-129, and 33-131 are amended as
\
Disability retirement.
*
5
6
*
*
(b)
Definitions.
In this Section, the following words and phrases have the
7
following meanings:
8
9
10
11
12
13
14
*
*
*
Partial incapacity
means
~
member's inability to perform one or more
essential functions of the position the member holds because of
impairment that;
ill
ill
ill
is unlikely to resolve in the next
may be permanent; and
.u
months;
does not prevent the member from performing any other
substantial gainful activity.
15
16
17
*
*
*
Total Incapacity
means the member's inability to perform substantial
18
19
gainful activity because of an impairment that;
20
21
22
23
24
ill
ill
(f)
is unlikely to resolve in the next 12 months; and
may be permanent.
*
(1)
*
*
Service-connected disability retirement.
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,
25
26
27
-2­
 PDF to HTML - Convert PDF files to HTML files
BILL
No.4S-1 0
28
29
or an occupational disease incurred or condition
aggravated~
while in the actual perfonnance of duty;
30
31
(B)
the incapacity is not due to the member's willful
negligence;
32
33
34
(C)
(D)
the incapacity is likely to be pennanent; [and]
the member is unable to perfonn the duties of either:
(i)
the occupational classification to which the
member was assigned [at the time] when the
disability occurred; or
(ii)
35
36
37
a position of comparable status [within] in the
same department for which the member is
qualified; and[.]
38
39
40
41
42
(E)
the member has not committed an offense that would
justify removal for cause.
ill
For an accidental injury that does not cause mental
impainnent, the member must:
(i)
43
44
45
[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
46
47
48
(ii)
[submits]
submit
a
claim
for
Workers'
49
50
51
52
Compensation benefits for the accidental IllJUry
that is not dismissed as untimely.
[(F)] (Q)
The time periods for reporting in subparagraphs (i)
and (ii) do not begin while the member is unable to report
because of incapacitating injuries.
53
-3­
 PDF to HTML - Convert PDF files to HTML files
BILL
No.45-1 0
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
[(G)]
an
(i)
For an accidental injury that occurs after July 1,
2009, the member must apply for disability benefits:
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)
(1)
*
*
Amount ofpension at service-connected disability retirement.
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 earnmgs for average
final earnings; and
(B)
the pension must be at least [66 2/3 percent] 700/0 of the
member's fmal 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)(l) is greater than any other benefit under this subsection,
-4­
 PDF to HTML - Convert PDF files to HTML files
BILL N0.45-10
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
]07
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)(I), 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
S!
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 musfbase 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
expenence, transferable skills, and residual functional
capacity.
-5­
 PDF to HTML - Convert PDF files to HTML files
BILL
No.45-10
108
109
110
111
(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 servlce­
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.
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
(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 52Y2 % [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 servlce­
connected disability benefit under subsection
(f);
and
-6­
 PDF to HTML - Convert PDF files to HTML files
BIll N0.45-1 0
135
136
137
138
139
140
141
142
143
144
145
146
147
',">, .­
(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
Y2
%
[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
148
149
150
151
152
153
154
155
156
157
158
159
160
161
Administration was based primarily on the same
medically
determinable
physical
or
mental
impairment on which the Disability Review Panel
originally
awarded
the
member
a
servlce­
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),
-7­
 PDF to HTML - Convert PDF files to HTML files
BILL No.4S-10
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
but at least 52 Y2 percent; or] as
incapacity.
[(b)
~
partial
the Chief Administrative Officer awards a service­
connected disability pension benefit calculated
under Section (b)( 1), but at least 52 Y2 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
ill
ill.
However, if [the]
~
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.
U)
Adjustment or cessation ofdisability 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
-8­
 PDF to HTML - Convert PDF files to HTML files
Bill
No.4S-10
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
then payable must not be less than the amount that would have
been payable under [the provisions of] Section 33-4S(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
IS
(ii)
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
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.
which the
member was
*
(3)
*
*
212
213
If the earnings capacity of a disability retiree with
f!
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
-9­
214
215
 PDF to HTML - Convert PDF files to HTML files
BILL
No.45-10
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
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
earnmgs
of
the
occupational
classification from
disabled.
(B)
which the member was
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
disabled.
~
from
which the member was
~
(4)
A member who receives
disability retirement pension for
total incapacity must submit to the Chief Administrative Officer
.by
May 30 of each year
~
£QQY
of that portion of the member's
federal income tax return which shows the member's income.
-10­
 PDF to HTML - Convert PDF files to HTML files
BILL N0.45-10
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
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
meanmgs:
*
*
*
Partial incapacity
means
~
member's inability to perform one or more
essential functions of the position the member holds because of
impairment that;
ill
ill
ill
is unlikely to resolve in the next 12 months;
may be permanent; and
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
-11­
 PDF to HTML - Convert PDF files to HTML files
BILL
No.45-10
270
271
272
both, performed for payor 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
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
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;
ill
ill
is unlikely to resolve in the next
II
months; and
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 lllJury that does not cause mental
impairment, the employee:
(i)
reports the claimed accidental lllJUry 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
-12­
293
294
295
296
 PDF to HTML - Convert PDF files to HTML files
BILL No.45-10
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
(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.
LID
An employee who has committed an offense that would
justify removal for cause must not receive. service­
connected disability benefits.
*
(f)
*
*
The Disability Review Panel must recommend
!!
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
!!
medically determinable
physical or mental impairment that can be expected to end in death or
has lasted, or can be expected to last, for
!!
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 expenence,
transferable skills, and residual functional capacity.
312
313
314
315
316
317
318
319
320
321
-13­
 PDF to HTML - Convert PDF files to HTML files
BIll
No.45-10
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
ill
The Panel must determine the member's residual functional
capacity and provide this information to the independent
vocational expert.
ill
A Panel determination that the member's service-connected
disability is severe enough to be considered
~
disability
Qy
the
Social Security Administration is not
f!
recommendation that
the member is entitled
!Q"
or should be granted,
f!
disability
benefit
Qy
the Social Security Administration.
ill
If
~
member has already been granted disability benefits
Qy
the
Social Security Administration when the member applies for
f!
service-connected disability 'Pension, the County must give the
member
f!
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 im'Pairment on
which the Disability Review Panel awards the member
f!
service-connected disability benefit.
(g)
The Disability Review Panel must recommend
f!
finding of 'Partial
incapacity if:
ill
ill
ill
the member meets the standards to receive
disability benefit; and
the member is not eligible to receIve
incapacity under subsection
ffi
~
service-connected
~
benefit for total
The County must increase the partial incapacity service-connected
disability pension benefit of
f!
member to
~
total incapacity benefit if:
ill
the Social Security Administration awards disability benefits to
the member;
-14­
 PDF to HTML - Convert PDF files to HTML files
BILL
No.45-1 0
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
ill
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;
ill
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
benefit; and
~
service-connected disability
ill
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
partial incapacity.
~
ill
If
~
member qualifies for an increased pension benefit under
subsection
.ili1
the County must increase the member's service­
connected pension retroactively to the date when the pension
began.
ill
Role ofthe 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)J.
(t1
(g1
or
@.
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 personJ.
hy
telephone conference, or
hy
video
-15­
 PDF to HTML - Convert PDF files to HTML files
BILL N0.45-1
0
376
377
378
379
380
381
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
~
or
1
members. At least
~
members must vote in favor of
£!
decision to take any action
under this Section.
*
33-131. Amount of benefits.
(a)
*
*
382
383
Service-connected disability.
The annual amount of service-connected
384
385
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
employee's final earnings.
52~
386
387
388
389
% of the
*
Sec. 2.
*
*
390
391
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
lilly
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.
392
393
394
395
396
397
398
399
400
-16­
 PDF to HTML - Convert PDF files to HTML files
BILL
No.45-10
401
402
403
404
405
406
407
408
409
410
W
It
is the policy of Montgomery County that all County employees
should have a
multi~tier
service-connected disability retirement
system which includes a:
ill
Wrtial
incapacity
service-connected
disability
retirement
benefit for any injury or illnessthat prevents an employee from
continuing in the
employee~s
current position but does not
prevent the employee from engaging in other substantial gainful
employmem: and
ill
total incapacity service-connected disability retirement benefit
for any injury or illness that prevents an employee from
engaging in any other substantial gainful employment.
411
412
413
!lU
It
is also the policy of the County that disability benefits are a
mandatory subject of collective bargaining with each appropriate
certifi~d
414
415
416
417
418
419
420
421
422
423
424
425
426
(£J
employee representative.
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 L 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 applic..a.bk
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
-17­
 PDF to HTML - Convert PDF files to HTML files
BILL
No.45·1 0
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
Approved:
the OPT and SLT bargaining units must choose the final offer of
either party
aft~r
considering equally the following factors:
ill
service-connected disability retirement systems for similar
employees of other public employers in the Washington
Metropolitan Area and in Marvland;
ru
W
ill
best practices for service-connected disability retirement
systems for similar employees in the United States;
the interest and welfare ofthe public: and
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.
(QJ
The Executive must submit the results of any collective bargaining
process regarding this issue to the CQuncil for legislative action not
later than April 1, 2012.
444
445
446
Valerie Ervin, President, County Council
{A/~~>/--<j C~~
1
Dale
f
Approved:
447
448
Isiah Leggett, County Executive
Date
449
This is a correct copy o/Council action.
450
451
Linda M. Lauer, Clerk of the Council
Date
·18­