Clerk's Note: Correction on page
3,
line 40 and on page
13,
line 303: The words "Removal for cause"
was changed to "termination for misconduct" as approved by Council at enactment.
CORRECTED
COpy
Bill No.
45-10
Concerning: Personnel - Disability
Retirement - Eljgibility - Total and
Partial Incapacity
Revised: June 22, 2011 Draft No.
Introduced:
July 27,2010
Enacted:
June 28, 2011
Executive:
July 11, 2011
Effective:
July 1, 2012 (Exception:
Section 4 - October 10, 2011
Sunset Date: --'-'N=o.!.!Cne"'-_ _----:::-::-:-:--_
Ch.
-1.L.
Laws of Mont. Co.
2011
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:
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BILL
No.4S-10
2
3
Sec.
1.
follows:
33-43.
Sections 33-43, 33-128, 33-129, and 33-131 are amended as
4
5
Disability retirement.
*
(b)
following meanings:
*
*
6
Definitions.
In this Section, the following words and phrases have the
7
8
9
*
Partial incapacity
means
~
*
*
member's inability to perform one or more
10
11
essential functions of the position the member holds because of
impairment that;
12
13
14
15
16
17
18
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.
*
*
*
Total Incapacity
means the member's inability to perform substantial
gainful activity because of an impairment that;
19
20
21
ill
ill
(f)
is unlikely to resolve in the next
12.
months; and
may be permanent.
*
(1)
*
*
22
23
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,
24
25
26
27
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No. 45-10
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or an occupational disease incurred or condition aggravated.1
while in the actual perfonnance of duty;
(B)
the incapacity is not due to the member's willful
negligence;
(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)
a position of comparable status [within] in the
same department for which the member is
qualified~
34
35
36
37
38
39
40
and[.]
(E)
the member has not committed an offense that would
justify [[removal for cause]] tennination for misconduct.
41
42
43
44
45
(f)
For an accidental injury that does not cause mental
impainnent, 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'
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50
Compensation benefits for the accidental Injury
that is not dismissed as untimely.
[(F)]
{ill
The time periods for reporting in subparagraphs (i)
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52
53
and (ii) do not begin while the member is unable to report
because of incapacitating injuries.
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[(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 ofpension 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 earnmgs 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,
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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
~
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.
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(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
52Yz
% [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
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(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
'l'2
%
[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
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),
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but at least 52
1;2
percent; or] as
f!
partial
incapacity.
[(b)
the Chief Administrative Officer awards a service­
connected disability pension benefit calculated
under Section (b)(1), but at least 52
1;2
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
(1}.
However, if [the]
f!
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 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
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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)
(ii)
has not reached the normal retirement date; and
IS
engaged tn, or
IS
able to engage tn, 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)
*
*
~
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213
If the earntngs capacity of a disability retiree with
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
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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
classification
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
disabled.
(4)
A member who receives !!: disability retirement pension for !!:
total incapacity must submit to the Chief Administrative Officer
from
which
the
member
was
earnmgs
from
of
which
the
the
occupational
member
was
by
May 30 of each year!!:
f.QPY
of that portion of the member's
federal income tax return which shows the member's income.
-10­
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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
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No. 45-10
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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
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;
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ill
i1.}
is unlikely to resolve in the next 12 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 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
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No.45-10
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299
(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.
An employee who has committed an offense that would
justify [[removal for cause]] termination for misconduct
ttH.lst not receive service-connected disability benefits.
300
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303
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305
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*
(1)
*
*
~
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
312
313
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
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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
transferable
skills,
and
~
education, work experience,
functional
capacity.
residual
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ill
The Panel must detennine the member's residual functional
capacity and provide this infonnation to the independent
vocational expert.
ill
A Panel detennination that the member's service-connected
disability is severe enough to be considered
Social Security Administration is not
~
~
disability
Qy
the
recommendation that
~
the member is entitled
!!h
or should be granted,
benefit
Qy
the Social Security Administration.
disability
ill
If
~
member has already been granted disability benefits
Qy
the
Social Security Administration when the member applies for
~
service-connected disability pension, the County must give the
member
~
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 detenninable physical or mental impainnent on
which the Disability Review Panel awards the member
service-connected disability benefit.
(g}
The Disability Review Panel must recommend
incapacity if:
~
~
finding of partial
ill
ill
(h)
the member meets the standards to receive
disability benefit; and
the member is not eligible to receIve
incapacity under subsection
a1
~
service-connected
~
benefit for total
The County must increase the partial incapacity service-connected
disability pension benefit of
~
member to
~
total incapacity benefit if:
ill
the Social Security Administration awards disability benefits to
the member;
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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
(h1
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),.
a1
(g1
or
au.
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
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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
members must vote in favor of
under this Section.
2.
or
1
members. At least
2.
~
decision to take any action
*
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 52Y2 % 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
~ff~ctgn
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.
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No.
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401
La)
It
is the policy of Montgomery County that all County employees
402
403
404
405
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410
should have a multi-tier service-connected disability retirement
system which includes a:
ill
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
emploYJ:Ilent; and
total incapacity service-connected disability retirement benefit
for any illjury . . or illness that prevents an employee from
engaging in any other substantial gainful employment.
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412
413
au
W
It is alsQ the. policy of the County that disability benefits are a
mandatory subject of collective bargaining with each appropriate
certified 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), 2012. If in either case the parties are
unable to reach agreement on an appropriate ll1ulti-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 prQcedure. The impasse
neutral for the police bargaining unit and the mediator/arbitrator for
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Approved:
the OPT and SLT bargaining units must choose the final offer of
either party after 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 Maryland;
ill
ill
ill
best practices for service-connected disability retirement
systems for similar employees in the United States;
the interest and welfare of the 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
@
The
Executive must submit the results of any collective bargaining
process regarding this issue to the Council for legislative action not
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Valerie Ervin, President, County Council
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Approved:
Date
I
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UDate
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This is a correct copy o/Council action.
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r;2t?//
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