SOCIAL SECURITY DISABILITY & THE NEW FIREARM POSSESSION/PURCHASING RULES

SOCIAL SECURITY DISABILITY & THE NEW FIREARM POSSESSION/PURCHASING RULES

By:       Sean Patrick Riordan, Esq.

I have received several calls and inquiries regarding the “new Social Security Administration Regulations” regarding firearm possession/purchase for those receiving Social Security Disability (“SSD”) benefits. To that effect, the Social Security Administration has implemented, as of December 19, 2016, new regulations regarding gun possession/purchase by some SSD recipients. As many of my clients are retired uniformed personnel who retain weapons into retirement I certainly understand the anxiety that hearing this news has caused. HOWEVER, Social Security’s new regulations effect very few SSD recipients and will not interfere with the large majority of retired officers’ ability to retain their weapons while receiving Social Security Disability benefits.

The background of the new Social Security regulations is important to understand. The Brady Handgun Violence Prevention Act (“Brady Act”) was passed in 1994 and called for the U.S. Attorney General to set up the National Instant Criminal Background Check System (“NICS”), allowing for the immediate background check of those wishing to purchase a firearm. In 2007 Congress determined that the NICS program was not operating properly and passed the NICS Improvement Amendments Act (“NIAA”). The NIAA required federal agencies that had “any record demonstrating” that a person fits into one of the restricted categories of the Brady Act such agency must provide the Attorney General with its information.

Relevant to the Social Security Administration (“SSA”) and our discussion here, the Brady Act prohibits “a person who has been adjudicated as a mental defective or who has been admitted to a mental institution” from “possessing, shipping/transporting or receiving any firearm or ammunition.” Therefore the SSA was charged with determining whether it had any information regarding individuals who had been “adjudicated as a mental defective.” Clearly, the SSA does, within the confines of its disability programs, make decisions regarding whether individuals are capable of performing “substantial gainful activity.” Often, as part of these disability determinations, SSD applicants raise psychological impairments which they believe impact their ability to work. However, a mere finding that a psychological impairment has an impact on one’s ability to work does not mean they have been determined to be a “mentally defective” individual. Therefore the SSA came up with a reasonable system in which it meets its obligations under NIAA, while not reporting every SSD recipient with a psychological impairment to the Attorney General. That system is encapsulated in its new rules.

Under its new rules the SSA will report those individuals that meet the following criteria to the Attorney General in accordance with its mandate under the NIAA:

  • The individual is a SSD or Supplemental Security Income (“SSI”) recipient;
  • The individual was found to meet or equal a Psychological Listing under 12.00 of the Social Security Act;
  • The individual was determined by the SSA to be unable to manage his/her own economic benefit and therefore a Representative Payee has been assigned to manage the individuals benefit on their behalf.

Based on these parameters, the impact of this new reporting system on most SSD recipients is extremely limited. First, an individual has to be determined to “meet a Listing within Section 12.00” of the Social Security Act. Legally, this means that the individual’s psychological impairment, in and of itself, was determined by the SSA to be so severe that no other factor was considered during the determination of whether the individual could perform work activities. This is not applicable to the majority of SSD cases involving uniformed personnel; generally a recipient had other factors considered during the SSD adjudication process. Such factors as an applicant’s other disabilities, age, education level, previous work experience and transferable skills are commonly evaluated in order to determine the individuals work capability. Where these factors were considered in addition to the psychological impairment, these individuals are not subject to the new reporting rules. In other words, only those that have been found to suffer from such a severe psychological disability that nothing else was considered during the SSD process will be reported to the Attorney General under these new firearm possession rules.

Second, the SSA further limits the number of SSD recipients it will report to the Attorney General with the additional criteria that the individual must also have been found incapable of managing their own funds and the SSA appointed a Representative Payee to receive the economic benefit on the recipients behalf. This means that not only does the individual have to meet or equal a Social Security Act Listing but they also have to be found incapable of managing their own funds. This additional criteria further limits the amount of SSD recipients that are affected by the new rules and greatly limits the amount of uniformed personnel that should be concerned with these new provisions.

I do have one concern with the new rules, and it is a concern that is coming to fruition. The SSA has indicated that they will send out, to the SSD recipient, a notification of potential reporting to the Attorney General under the new rules when it is determining whether a SSD recipient is in need of a Representative Payee. A Representative Payee determination is sparked when the SSA has information that the SSD recipient may have a psychological illness that affects their ability to manage their own funds. It is my fear that this notice of potential reporting will go to all SSD recipients being considered for a Representative Payee, rather than those that also meet the Listing criteria noted above. Therefore, some who clearly do not meet the criteria for reporting to the Attorney General may still receive a letter saying that they might be referred to the Department of Justice. In fact, we have already fielded calls from clients saying that they received notification that they may be reported despite the fact that they clearly do not meet the criteria discussed above, so it does appear that my fear is in fact reality. This will cause undue stress for many who receive SSD benefits and retain their weapons post their retirement from their law enforcement position. If you, or any of your members, receive this letter you should immediately consult with your attorney to weigh the likelihood of being reported.

Overall, the impact of the new Social Security regulations are extremely limited as they relate to our law enforcement clientele. If you or your members have any questions, please do not hesitate to reach me anytime, (212) 612-3198 or Sean@nycomplaw.com.

SSD and Gun Ownership Rights

Information for Tier 4 NYC Workers

Most employees of the City of New York are members of the New York City Employees’ Retirement System, or “NYCERS”. Most workers think of NYCERS in terms of their “Service Retirement”, when they have enough years of credited service and are the necessary age to retire from their positions. However, there is a special retirement benefit available to those that can no longer perform their full duty position as a result of an injury or illness. This “Disability Pension” is an economic life saver for many injured workers, allowing them to meet their financial obligations while facing the debilitating nature of their injury/illness. Read below for information concerning information on Tier 4 eligibility for New York City workers.

When is a Disability Retirement Available?
Disability Retirement is available to workers that that can no longer perform the full duties required of their specific title. This legal standard means that you must no longer be able to perform your job, it does not require that you be disabled from all jobs in the United States like Social Security Disability. If you, and your treating doctors, believe that your injury/illness will not allow you to return to your previous work an application for Disability Retirement should be filed.

When Should I file a Disability Retirement Application?
The Retirement & Social Security Law has various filing deadlines for disability retirement depending on the pension “Tier” the member has been assigned. Tiers are determined based on one’s original membership date with NYCERS. Although the law sets guidelines on the latest date a member can apply for a disability pension, the basic rule of thumb is that an injured worker should apply for a disability pension as soon as they and their physician determine that they are no longer able to return to their prior work, but not later than 6 months after an injured worker has been absent from work on an approved medical leave.
The need for early application in disability cases emanates from the New York State Civil Service Law (“CSL”). Section 71 of the CSL allows a municipality to “medically separate” (a nice phrase for “terminate”) an employee who has been out of work for 1 year due to a workers’ compensation injury/illness. Section 73 of the CSL allows for the medical separation of an employee when they have been out of work for that same 1 year period. This means, as soon as you miss one day of work due to an injury or illness the one year clock for return or termination begins to run. The NYCERS disability process generally takes approximately 6 months to fully adjudicate a disability application and render a decision. Therefore, in order to avoid medical separation and possible interruption of medical insurance coverage and other benefits, it is in a workers’ best interest to file as early as possible.

Statute of Limitations for filing Disability Pension Applications Tier 4 Members:
Within 3 Mons of the date a member was last paid on payroll; OR
Within 12 Mons of when the member received notification that their employment has been terminated as long as the member was on an employer approved medical leave of absence immediately prior to termination.

Do I need a Specific amount of Credited Service Time with NYCERS in order to apply for a Disability Retirement?
No, any member can apply for a disability retirement benefit if they are permanently incapacitated from the full duties of their employment. However, if a member has less than 10 years of Credited Service with NYCERS the member must establish that their injury directly results from a “legal accident.” A legal accident varies greatly from what we would generally call an “accident” in ordinary conversation and adds greater burden in establishing entitlement to this benefit.

How Does NYCERS determine if I am Disabled?
NYCERS has established a “Medical Board” to hear each application for disability retirement. This three doctor panel is charged with reviewing all the evidence a member submits in support of their claim for benefits and is also required to psychically examine the injured/ill worker. Once examined, the Medical Board will “recommend” to the NYCERS governing body, the Board of Trustees, whether to approve or deny your claim. By law the Board of Trustees cannot overturn the Medical Boards determination regarding a members fitness for duty, but must make its own determination on issues regarding the “accidental” nature of your injury and “causal relationship”, that is, whether your injury was caused by the specific accident alleged in the application.

If I am Approved, What Benefit Will I Receive from NYCERS?
Your benefit amount depends on your Tier and the benefit a member applies for.
The benefits amounts are:
Tier 4 Members Applying for Article 15, Section 605 Benefits:
1/3 of a Members Final Average Salary; OR
1/60th of a Members Final Average Salary multiplied by the Members Credited Service Time

NOTE – Tier 4 members DO NOT HAVE ¾’s Disability Pensions. Only NYC uniformed personnel have such a benefit.

If I am Approved, Will I Receive Medical Benefits from NYCERS?
Technically, the answer is No because NYCERS does not administer medical benefit coverage. Instead, medical benefit coverage is a contractual issue. Rest assured, almost all contracts today treat disability retirees the same way as “service retirees” and provide the same medical coverage in both situations.

Can I Work in Another Job as a Disability Retirement Recipient?
Yes, however you will be subject to income limitations which change annually. Whenever you decide to take new employment you should contact NYCERS to find out the current income limitation.

Can I Receive a Disability Pension, Social Security Disability and NYS Workers Compensation together, without offset?
Yes, Tier 4 Disability Pension benefits are not offset by the receipt of either SSD or NYS Workers’ Compensation and a member can receive all 3 benefits payments under the law.