NO. 38.  AN ACT RELATING TO THE RETIREMENT BOARD OF THE VERMONT EMPLOYEES’ RETIREMENT SYSTEM.

(S.85)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  3 V.S.A. § 460 is amended to read:

§ 460.  ORDINARY DISABILITY RETIREMENT

(a)  Upon the application of a member or of his or her department head not later than ninety 90 days, or longer for cause shown, after the date the member may have separated from service, any group A, group C, group D, or group F member who has had five or more years of creditable service may be retired by the retirement board on an ordinary disability retirement allowance, not less than thirty 30 nor more than ninety 90 days after filing such application; provided he or she is not eligible for accidental disability retirement; provided he or she has requested application prior to death; and provided that the medical board, after a medical examination of such member, shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity has existed since the time of the member’s separation from service and is likely to be permanent, and that he or she should be retired.  The retirement board may consider, or may ask the medical board or a certified vocational rehabilitation counselor to consider whether the individual is disabled for the purposes of from performing other types of suitable work.  However, if disability is denied because the individual is found to be suitable for other work, the member shall be advised at the time of denial of the following provisions which shall apply:

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(c)  Notwithstanding subsection (b) of this section, a group C member, upon ordinary disability retirement, shall receive an additional allowance which:

(1)  If his the member’s compensation from the state is not subject to social security Social Security withholding will,; or

(2)  If his the member’s compensation from the state is subject to social security Social Security withholding will, when added to his social security or her Social Security benefit, be equal to ten percent of his or her average final compensation for each dependent child of his, not in excess of three, who has not attained age eighteen 18 or, if a dependent student, has not attained age twenty-three 23.

Sec. 2.  3 V.S.A. § 461 is amended to read:

§ 461.  ACCIDENTAL AND OCCUPATIONALLY RELATED

            OCCUPATIONALLY‑RELATED DISABILITY RETIREMENT

(a)  Upon the application of a member or of his or her department head not later than ninety 90 days, or longer for cause shown, after the date the member may have separated from service, any member may be retired by the retirement board on an accidental disability retirement allowance, not less than thirty 30 nor more than ninety 90 days after filing such application; provided that the retirement board shall find on the basis of such evidence as may come before it, including a report by the medical board after a medical examination of such member, that the member is mentally or physically incapacitated for the further performance of duty as the natural and proximate result of an accident occurring at a definite time and place during the course of his or her performance of duty as an employee and, that such accident was not the result of his or her gross negligence or wilful misconduct, and provided that the medical board shall certify that such incapacity is likely to be permanent, and that the member should be retired.  The retirement board may consult with a certified vocational rehabilitation counselor in determining whether the individual is incapacitated for the further performance of duty. 

(b)  Upon accidental disability retirement a member shall receive a normal retirement allowance if he or she shall have reached his or her normal retirement date; otherwise such a member shall receive a retirement allowance which shall be equal to:

(1)  A normal retirement allowance payable at normal retirement date, based on his the member’s average final compensation at disability retirement and the number of years of creditable service he the member would have completed had he the member remained in service to his or her normal retirement date, multiplied by

(2)  The ratio that the number of his the member’s years of creditable service at disability bears to the number of years of such service he the member would have completed had he the member remained in service to his or her normal retirement date; provided, however, that such allowance shall not be less than twenty-five 25 percent of his the member’s average final compensation at the time of his the member’s disability retirement.

(c)  Notwithstanding subsection (b) of this section, a group C member, upon accidental disability retirement, shall receive as a minimum an allowance which:

(1)  If his or her compensation from the state is not subject to social security Social Security withholding will,; or

(2)  If his or her compensation from the state is subject to social security Social Security withholding will, when added to his social security the member’s Social Security benefit, be equal to fifty 50 percent of his the member’s average final compensation plus ten percent of his the member’s average final compensation for each dependent child of his, not in excess of three, who has not attained age eighteen 18 or, if a dependent student, has not attained age twenty-three 23.

Sec. 3.  3 V.S.A. § 462 is amended to read:

§ 462.  RE-EXAMINATION REEXAMINATION OF DISABILITY

            BENEFICIARY

(a)  Once each year during the first five years following the retirement of a member on a disability retirement allowance, and once in every three year period thereafter, the retirement board may, and upon his the member’s application shall, require any disability beneficiary who has not reached his or her normal retirement date to undergo a medical examination, by the medical board or by a physician or physicians designated by the medical board, such examination to be made at the place of residence of such beneficiary or other place mutually agreed upon.  Should any disability beneficiary who has not reached his or her normal retirement date refuse to submit to such medical examination, his the beneficiary’s allowance may be discontinued until his or her withdrawal of such refusal, and should his the beneficiary’s refusal continue for one year, all his the beneficiary’s rights in and to his or her pension may be revoked by the retirement board.

(b)  Should the medical board report and certify to the retirement board that any disability beneficiary has a residual functional capacity which might enable the beneficiary to return to work, and should the retirement board reasonably conclude that the beneficiary is engaged in or is, as a result of specific findings made by a certified vocational counselor, able to engage in a gainful occupation paying more than the difference between his the beneficiary’s retirement allowance and his or her average final compensation at retirement, and should the retirement board concur in such report, then his the beneficiary’s pension shall be reduced to an amount which, together with his or her annuity and the amount earnable by him or her, shall equal his the beneficiary’s average final compensation at retirement, adjusted for inflation each year following retirement on the same basis as for beneficiaries as provided in section 470 of this title.  Should his the beneficiary’s earning capacity be later changed, his or her pension may be further modified; provided that the new pension shall not exceed the amount of the pension originally granted nor an amount which, when added to the amount earnable by him the beneficiary together with his or her annuity, equals his the beneficiary’s average final compensation at retirement.  For the purposes of this subsection, “retirement allowance” shall mean the allowance payable without modification as provided in section 468 of this title.

Sec. 4.  3 V.S.A. § 471 is amended to read:

§ 471.  RETIREMENT BOARD; MEDICAL BOARD; ACTUARY; RATES

            OF CONTRIBUTION; SAFEKEEPING OF SECURITIES

(a)  The general administration and responsibility for the proper operation of the retirement system and for making effective the provisions of this subchapter are hereby vested in a board of eight trustees, known as the retirement board.  The board shall consist of the governor or his or her designated representative, the state treasurer, the commissioner of personnel, the commissioner of finance and management, three members of the Vermont state employees’ association who are members of the system, each to be elected chosen by such association in accordance with its articles of association and bylaws or policies for a term of two years, and one retired state employee who is a beneficiary of the system, to be elected by the Vermont retired state employees’ association for a term of two years.  If a vacancy occurs in the office of an elected a chosen member, the vacancy shall be filled for the unexpired term in the same manner as the office was previously filled accordance with the articles of association and bylaws or policies of the association affected by the vacancy.  In the absence of an elected a member of the state employees’ association or the retired state employees’ association, the respective association may designate a deputy person who is a member of the association to attend the a meeting or meetings of the retirement board in place of the absent member.  A person so designated shall have the same voting rights and responsibilities as the absent member he or she is representing at such meeting or meetings, except that the person shall not automatically assume the trustee’s place as an officer of the board.

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(c)  Each trustee shall be entitled to one vote in the retirement board.  Four Five trustees shall constitute a quorum for the transaction of any business.  A majority vote of those present and voting shall be necessary for any resolution or action by the retirement board at any meeting of the board.  All trustees shall be notified of any meeting of the board.  The state treasurer, the commissioner of finance and management, and the commissioner of personnel each may designate in writing a person within the trustee’s office or department to attend a meeting or meetings of the retirement board in the treasurer’s or the commissioner’s place.  The designation shall be filed with the secretary of the board.  A person so designated shall have the same voting rights and responsibilities as the ex officio trustee at such meeting or meetings except that the designee shall not automatically assume the trustee’s place as an officer of the board.

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(i)  The retirement board shall designate a medical board to be composed of three physicians not eligible to participate in the retirement system.  If required, other physicians may be employed to report on special cases.  The medical board shall arrange for and pass upon all medical examinations required under the provisions of this subchapter, shall investigate all essential medical statements and certificates by or on behalf of a member in connection with an application for disability retirement a claim of disability or an accidental and occupationally related occupationally‑related death benefit, and shall report in writing to the retirement board of its conclusions and recommendations upon all such matters referred to it

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Sec. 5.  3 V.S.A. § 461a is added to read:

§ 461a.  BENEFIT DENIAL; EVIDENTIARY HEARING

(a)  An applicant for disability retirement benefits under section 460 or 461 of this title may file a request for an evidentiary hearing with the retirement board if the application for benefits is denied.

(b)  The hearing shall be conducted by a hearing officer designated by the board and in conformance with rules adopted by the board.  Rules adopted by the board shall be consistent with section 809 of this title.

(c)  The decision of the hearing officer shall constitute final administrative action.

Sec. 6.  16 V.S.A. § 1938a is added to read:

§ 1938a.  BENEFIT DENIAL; EVIDENTIARY HEARING

(a)  An applicant for disability retirement benefits under section 1938 of this title may file a request for an evidentiary hearing with the board of trustees if the application for benefits is denied.

(b)  The hearing shall be conducted by a hearing officer designated by the board and in conformance with rules adopted by the board.  Rules adopted by the board shall be consistent with section 809 of Title 3.

(c)  The decision of the hearing officer shall constitute final administrative action.

Sec. 7.  24 V.S.A. § 5056a is added to read:

§ 5056a.  BENEFIT DENIAL; EVIDENTIARY HEARING

(a)  An applicant for disability retirement benefits under section 5056 of this title may file a request for an evidentiary hearing with the retirement board if the application for benefits is denied.

(b)  The hearing shall be conducted by a hearing officer designated by the board and in conformance with rules adopted by the board.  Rules adopted by the board shall be consistent with section 809 of Title 3.

(c)  The decision of the hearing officer shall constitute final administrative action.

Approved:  May 26, 2003