121.0515 Special risk membership.
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121.0515 Special risk membership.
(1) LEGISLATIVE INTENT. In creating the Special Risk Class of membership within the Florida Retirement System, it is the intent and purpose of the Legislature to recognize that persons employed in certain categories of law enforcement, firefighting, criminal detention, and emergency medical care positions are required as one of the essential functions of their positions to perform work that is physically demanding or arduous, or work that requires extraordinary agility and mental acuity, and that such persons, because of diminishing physical and mental faculties, may find that they are not able, without risk to the health and safety of themselves, the public, or their coworkers, to continue performing such duties and thus enjoy the full career and retirement benefits enjoyed by persons employed in other positions and that, if they find it necessary, due to the physical and mental limitations of their age, to retire at an earlier age and usually with less service, they will suffer an economic deprivation therefrom. Therefore, as a means of recognizing the peculiar and special problems of this class of employees, it is the intent and purpose of the Legislature to establish a class of retirement membership that awards more retirement credit per year of service than that awarded to other employees; however, nothing contained herein shall require ineligibility for special risk membership upon reaching age 55.
(2) CRITERIA. A member, to be designated as a special risk member, must meet the following criteria:
(a) The member must be employed as a law enforcement officer and be certified, or required to be certified, in compliance with s. 943.1395; however, sheriffs and elected police chiefs shall be excluded from meeting the certification requirements of this paragraph. In addition, the member’s duties and responsibilities must include the pursuit, apprehension, and arrest of law violators or suspected law violators; or the member must be an active member of a bomb disposal unit whose primary responsibility is the location, handling, and disposal of explosive devices; or the member must be the supervisor or command officer of a member or members who have such responsibilities; provided, however, administrative support personnel, including, but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall not be included;
(b) The member must be employed as a firefighter and be certified, or required to be certified, in compliance with s. 633.35 and be employed solely within the fire department of a local government employer or an agency of state government with firefighting responsibilities. In addition, the member’s duties and responsibilities must include on-the-scene fighting of fires, fire prevention, or firefighter training; direct supervision of firefighting units, fire prevention, or firefighter training; or aerial firefighting surveillance performed by fixed-wing aircraft pilots employed by the Division of Forestry of the Department of Agriculture and Consumer Services; or the member must be the supervisor or command officer of a member or members who have such responsibilities; provided, however, administrative support personnel, including, but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall not be included and further provided that all periods of creditable service in fire prevention or firefighter training, or as the supervisor or command officer of a member or members who have such responsibilities, and for which the employer paid the special risk contribution rate, shall be included;
(c) The member must be employed as a correctional officer and be certified, or required to be certified, in compliance with s. 943.1395. In addition, the member’s primary duties and responsibilities must be the custody, and physical restraint when necessary, of prisoners or inmates within a prison, jail, or other criminal detention facility, or while on work detail outside the facility, or while being transported; or the member must be the supervisor or command officer of a member or members who have such responsibilities; provided, however, administrative support personnel, including, but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall not be included; however, wardens and assistant wardens, as defined by rule, shall participate in the Special Risk Class;
(d) The member must be employed by a licensed Advance Life Support (ALS) or Basic Life Support (BLS) employer as an emergency medical technician or a paramedic and be certified in compliance with s. 401.27. In addition, the member’s primary duties and responsibilities must include on-the-scene emergency medical care or direct supervision of emergency medical technicians or paramedics, or the member must be the supervisor or command officer of one or more members who have such responsibility. However, administrative support personnel, including, but not limited to, those whose primary responsibilities are in accounting, purchasing, legal, and personnel, shall not be included;
(e) The member must be employed as a community-based correctional probation officer and be certified, or required to be certified, in compliance with s. 943.1395. In addition, the member’s primary duties and responsibilities must be the supervised custody, surveillance, control, investigation, and counseling of assigned inmates, probationers, parolees, or community controllees within the community; or the member must be the supervisor of a member or members who have such responsibilities. Administrative support personnel, including, but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal services, and personnel management, shall not be included; however, probation and parole circuit and deputy circuit administrators shall participate in the Special Risk Class;
(f) The member must be employed in one of the following classes and must spend at least 75 percent of his or her time performing duties which involve contact with patients or inmates in a correctional or forensic facility or institution:
1. Dietitian (class codes 5203 and 5204);
2. Public health nutrition consultant (class code 5224);
3. Psychological specialist (class codes 5230 and 5231);
4. Psychologist (class code 5234);
5. Senior psychologist (class codes 5237 and 5238);
6. Regional mental health consultant (class code 5240);
7. Psychological Services Director DCF (class code 5242);
8. Pharmacist (class codes 5245 and 5246);
9. Senior pharmacist (class codes 5248 and 5249);
10. Dentist (class code 5266);
11. Senior dentist (class code 5269);
12. Registered nurse (class codes 5290 and 5291);
13. Senior registered nurse (class codes 5292 and 5293);
14. Registered nurse specialist (class codes 5294 and 5295);
15. Clinical associate (class codes 5298 and 5299);
16. Advanced registered nurse practitioner (class codes 5297 and 5300);
17. Advanced registered nurse practitioner specialist (class codes 5304 and 5305);
18. Registered nurse supervisor (class codes 5306 and 5307);
19. Senior registered nurse supervisor (class codes 5308 and 5309);
20. Registered nursing consultant (class codes 5312 and 5313);
21. Quality management program supervisor (class code 5314);
22. Executive nursing director (class codes 5320 and 5321);
23. Speech and hearing therapist (class code 5406); or
24. Pharmacy manager (class code 5251);
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(g) The member must be employed as a youth custody officer and be certified, or required to be certified, in compliance with s. 943.1395. In addition, the member’s primary duties and responsibilities must be the supervised custody, surveillance, control, investigation, apprehension, arrest, and counseling of assigned juveniles within the community;
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(h) Effective October 1, 2005, through June 30, 2008, the member must be employed by a law enforcement agency or medical examiner’s office in a forensic discipline recognized by the International Association for Identification and must qualify for active membership in the International Association for Identification. The member’s primary duties and responsibilities must include the collection, examination, preservation, documentation, preparation, or analysis of physical evidence or testimony, or both, or the member must be the direct supervisor, quality management supervisor, or command officer of one or more individuals with such responsibility. Administrative support personnel, including, but not limited to, those whose primary responsibilities are clerical or in accounting, purchasing, legal, and personnel, shall not be included;
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(i) Effective July 1, 2008, the member must be employed by the Department of Law Enforcement in the crime laboratory or by the Division of State Fire Marshal in the forensic laboratory in one of the following classes:
1. Forensic technologist (class code 8459);
2. Crime laboratory technician (class code 8461);
3. Crime laboratory analyst (class code 8463);
4. Senior crime laboratory analyst (class code 8464);
5. Crime laboratory analyst supervisor (class code 8466);
6. Forensic chief (class code 9602); or
7. Forensic services quality manager (class code 9603);
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(j) Effective July 1, 2008, the member must be employed by a local government law enforcement agency or medical examiner’s office and must spend at least 65 percent of his or her time performing duties that involve the collection, examination, preservation, documentation, preparation, or analysis of human tissues or fluids or physical evidence having potential biological, chemical, or radiological hazard or contamination, or use chemicals, processes, or materials that may have carcinogenic or health-damaging properties in the analysis of such evidence, or the member must be the direct supervisor of one or more individuals having such responsibility. If a special risk member changes to another position within the same agency, he or she must submit a complete application as provided in paragraph (3)(a); or
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(k) The member must have already qualified for and be actively participating in special risk membership under paragraph (a), paragraph (b), or paragraph (c), must have suffered a qualifying injury as defined in this paragraph, must not be receiving disability retirement benefits as provided in s. 121.091(4), and must satisfy the requirements of this paragraph.
1. The ability to qualify for the class of membership defined in s. 121.021(15)(f) shall occur when two licensed medical physicians, one of whom is a primary treating physician of the member, certify the existence of the physical injury and medical condition that constitute a qualifying injury as defined in this paragraph and that the member has reached maximum medical improvement after August 1, 2008. The certifications from the licensed medical physicians must include, at a minimum, that the injury to the special risk member has resulted in a physical loss, or loss of use, of at least two of the following: left arm, right arm, left leg, or right leg; and:
a. That this physical loss or loss of use is total and permanent, except in the event that the loss of use is due to a physical injury to the member’s brain, in which event the loss of use is permanent with at least 75-percent loss of motor function with respect to each arm or leg affected.
b. That this physical loss or loss of use renders the member physically unable to perform the essential job functions of his or her special risk position.
c. That, notwithstanding this physical loss or loss of use, the individual is able to perform the essential job functions required by the member’s new position, as provided in subparagraph 3.
d. That use of artificial limbs is either not possible or does not alter the member’s ability to perform the essential job functions of the member’s position.
e. That the physical loss or loss of use is a direct result of a physical injury and not a result of any mental, psychological, or emotional injury.
2. For the purposes of this paragraph, “qualifying injury” means an injury sustained in the line of duty, as certified by the member’s employing agency, by a special risk member that does not result in total and permanent disability as defined in s. 121.091(4)(b). An injury is a qualifying injury when the injury is a physical injury to the member’s physical body resulting in a physical loss, or loss of use, of at least two of the following: left arm, right arm, left leg, or right leg. Notwithstanding anything in this section to the contrary, an injury that would otherwise qualify as a qualifying injury shall not be considered a qualifying injury if and when the member ceases employment with the employer for whom he or she was providing special risk services on the date the injury occurred.
3. The new position, as described in sub-subparagraph 1.c., that is required for qualification as a special risk member under this paragraph is not required to be a position with essential job functions that entitle an individual to special risk membership. Whether a new position as described in sub-subparagraph 1.c. exists and is available to the special risk member is a decision to be made solely by the employer in accordance with its hiring practices and applicable law.
4. This paragraph does not grant or create additional rights for any individual to continued employment or to be hired or rehired by his or her employer that are not already provided within the Florida Statutes, the State Constitution, the Americans with Disabilities Act, if applicable, or any other applicable state or federal law.
(3) PROCEDURE FOR DESIGNATING.
(a) Any member of the Florida Retirement System employed by a county, city, or special district who feels that he or she meets the criteria set forth in this section for membership in the Special Risk Class may request that his or her employer submit an application to the department requesting that the department designate him or her as a special risk member. If the employer agrees that the member meets the requirements for special risk membership, the employer shall submit an application to the department in behalf of the employee containing a certification that the member meets the criteria for special risk membership set forth in this section and such other supporting documentation as may be required by administrative rule. The department shall, within 90 days, either designate or refuse to designate the member as a special risk member. If the employer declines to submit the member’s application to the department or if the department does not designate the member as a special risk member, the member or the employer may appeal to the State Retirement Commission, as provided in s. 121.23, for designation as a special risk member. A member who receives a final affirmative ruling pursuant to such appeal for special risk membership shall have special risk membership retroactive to the date such member would have had special risk membership had such membership been approved by the employer and the department, as determined by the department, and the employer contributions shall be paid in full within 1 year after such final ruling.
(b)1. Applying the criteria set forth in this section, the Department of Management Services shall specify which current and newly created classes of positions under the uniform classification plan established pursuant to chapter 110 entitle the incumbents of positions in those classes to membership in the Special Risk Class. Only employees employed in the classes so specified shall be special risk members.
2. When a class is not specified by the department as provided in subparagraph 1., the employing agency may petition the State Retirement Commission for approval in accordance with s. 121.23.
(4) REMOVAL OF SPECIAL RISK MEMBERSHIP.
(a) Any member who is a special risk member on October 1, 1978, and who fails to meet the criteria for special risk membership established by this section shall have his or her special risk designation removed and thereafter shall be a regular member and shall earn only regular membership credit. The department shall have the authority to review the special risk designation of members to determine whether or not those members continue to meet the criteria for special risk membership.
(b) Any member who is a special risk member on July 1, 2008, and who became eligible to participate under paragraph (2)(h) but fails to meet the criteria for special risk membership established by paragraph (2)(i) or paragraph (2)(j) shall have his or her special risk designation removed and thereafter shall be a Regular Class member and earn only Regular Class membership credit. The department may review the special risk designation of members to determine whether or not those members continue to meet the criteria for special risk membership.
(5) CREDIT FOR PAST SERVICE. A special risk member may purchase retirement credit in the Special Risk Class based upon past service, and may upgrade retirement credit for such past service, to the extent of 2 percent of the member’s average monthly compensation as specified in s. 121.091(1)(a) for such service as follows:
(a) The member may purchase special risk credit for past service with a city or special district which has elected to join the Florida Retirement System, or with a participating agency to which a member’s governmental unit was transferred, merged, or consolidated as provided in s. 121.081(1)(f), if the member was employed with the city or special district at the time it commenced participating in the Florida Retirement System or with the governmental unit at the time of its transfer, merger, or consolidation with the participating agency. The service must satisfy the criteria set forth in subsection (2) for special risk membership as a law enforcement officer, firefighter, or correctional officer; however, no certificate or waiver of certificate of compliance with s. 943.1395 or s. 633.35 shall be required for such service.
(b) Contributions for upgrading the additional special risk credit pursuant to this subsection shall be equal to the difference in the contributions paid and the special risk percentage rate of gross salary in effect at the time of purchase for the period being claimed, plus interest thereon at the rate of 4 percent a year compounded annually from the date of such service until July 1, 1975, and 6.5 percent a year thereafter until the date of payment. This past service may be purchased by the member or by the employer on behalf of the member.
(6) CREDIT FOR PRIOR SERVICE. A special risk member who has creditable service with an employer under chapter 122 or chapter 321, or was employed as a correctional counselor with the Department of Corrections between December 1, 1970, and September 30, 1979, in a position which satisfies the criteria provided for in subsection (2) for special risk membership except the requirement for a certificate or waiver of certificate, shall have those years of service counted towards the attainment of the normal retirement date as a special risk member under this chapter. The percentage value of each such year of creditable service under chapter 122, chapter 321, or as a correctional counselor shall not change as a result of the application of this subsection. A special risk member who has taken a refund of contributions for such creditable service under chapter 122 or chapter 321 and has reclaimed it as prior service credit under this chapter shall be permitted to have such creditable service counted towards the attainment of the normal retirement date for the Special Risk Class of membership under this chapter.
(7) RETENTION OF SPECIAL RISK NORMAL RETIREMENT DATE.
(a) A special risk member who is moved or reassigned to a nonspecial risk law enforcement, firefighting, correctional, or emergency medical care administrative support position with the same agency, or who is subsequently employed in such a position with any law enforcement, firefighting, correctional, or emergency medical care agency under the Florida Retirement System, shall participate in the Special Risk Administrative Support Class and shall earn credit for such service at the same percentage rate as that earned by a regular member. Notwithstanding the provisions of subsection (4), service in such an administrative support position shall, for purposes of s. 121.091, apply toward satisfaction of the special risk normal retirement date, as defined in s. 121.021(29)(b), provided that, while in such position, the member remains certified as a law enforcement officer, firefighter, correctional officer, emergency medical technician, or paramedic; remains subject to reassignment at any time to a position qualifying for special risk membership; and completes an aggregate of 6 or more years of service as a designated special risk member prior to retirement.
(b) Upon application by a member, the provisions of this subsection shall apply, with respect to such member, retroactively to October 1, 1978, provided that the member was removed from the Special Risk Class effective October 1, 1978, due to a change in special risk criteria as a result of the enactment of chapter 78-308, Laws of Florida, or was reassigned or employed for training or career development or to fill a critical agency need.
(c) The department shall adopt such rules as are required to administer this subsection.
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(d) Notwithstanding any provision of this subsection to the contrary, this subsection does not apply to any special risk member who qualifies for continued membership pursuant to the provisions of paragraph (2)(k).
(8) RESTORATION OF SPECIAL RISK CREDIT FOR SPECIFIED PERIOD OF EMPLOYMENT. A special risk member who was removed from the Special Risk Class effective October 1978, for the sole reason that he or she did not possess the required certificate or temporary waiver of certificate, and who obtained certification and was approved for special risk membership on or before June 30, 1982, shall be permitted to have special risk credit restored for that period upon:
(a) Certification by his or her employer that all requirements for special risk membership except the requirement for certification or temporary waiver of certification were met; and
(b) Payment of contributions equal to the difference in the contributions that were paid during the period and the contributions required for special risk members during that period, plus 6.5 percent interest thereon, compounded each June 30 from date of service until date of payment.
This credit may be purchased by the member or by the employer on behalf of the member.
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(9) CREDIT FOR UPGRADED SERVICE.
(a) Any member of the Special Risk Class who has earned creditable service in another membership class of the Florida Retirement System as an emergency medical technician or paramedic, which service is within the purview of the Special Risk Class, may purchase additional retirement credit to upgrade such service to Special Risk Class service, to the extent of the percentages of the member’s average final compensation provided in s. 121.091(1)(a)2. Contributions for upgrading such service to Special Risk Class credit under this subsection shall be equal to the difference in the contributions paid and the Special Risk Class contribution rate as a percentage of gross salary in effect for the period being claimed, plus interest thereon at the rate of 6.5 percent a year, compounded annually until the date of payment. This service credit may be purchased by the employer on behalf of the member.
(b) Any member of the Special Risk Class who has earned creditable service in another membership class of the Florida Retirement System whose responsibilities included fire prevention or firefighter training, which service is within the purview of the Special Risk Class, may purchase additional retirement credit to upgrade such service to Special Risk Class service, to the extent of the percentages of the member’s average final compensation provided in s. 121.091(1)(a)2. Contributions for upgrading such service to Special Risk Class credit under this subsection shall be equal to the difference in the contributions paid and the Special Risk Class contribution rate as a percentage of gross salary in effect for the period being claimed, plus interest thereon at the rate of 6.5 percent a year, compounded annually until the date of payment. This service credit may be purchased by the employer on behalf of the member.
(c) Any member of the Special Risk Class who has earned creditable service in another membership class of the Florida Retirement System in a position with the Department of Law Enforcement or the Division of State Fire Marshal and became covered by the Special Risk Class as described in paragraph (2)(i), or with a local government law enforcement agency or medical examiner’s office and became covered by the Special Risk Class as described in paragraph (2)(j), which service is within the purview of the Special Risk Class, and is employed in such position on or after July 1, 2008, may purchase additional retirement credit to upgrade such service to Special Risk Class service, to the extent of the percentages of the member’s average final compensation provided in s. 121.091(1)(a)2. The cost for such credit shall be an amount representing the actuarial accrued liability for the difference in accrual value during the affected period of service. The cost shall be calculated using the discount rate and other relevant actuarial assumptions that were used to value the Florida Retirement System defined benefit plan liabilities in the most recent actuarial valuation. The division shall ensure that the transfer sum is prepared using a formula and methodology certified by an enrolled actuary. The cost must be paid immediately upon notification by the division. The local government employer may purchase the upgraded service credit on behalf of the member if the member has been employed by that employer for at least 3 years.
History. s. 2, ch. 78-308; s. 1, ch. 81-153; s. 1, ch. 81-214; s. 1, ch. 82-169; s. 6, ch. 83-167; s. 35, ch. 83-217; s. 1, ch. 83-283; s. 26, ch. 84-258; s. 5, ch. 84-266; s. 8, ch. 88-382; s. 55, ch. 92-279; s. 55, ch. 92-326; s. 770, ch. 95-147; s. 3, ch. 98-138; s. 31, ch. 99-255; s. 23, ch. 99-392; s. 4, ch. 2000-161; ss. 6, 29, ch. 2000-169; s. 4, ch. 2000-347; s. 43, ch. 2001-125; ss. 3, 6, ch. 2001-235; s. 1, ch. 2001-279; s. 16, ch. 2002-273; s. 1, ch. 2005-167; s. 1, ch. 2008-77; s. 4, ch. 2010-179.
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Note. Section 11, ch. 2001-235, as amended by s. 8, ch. 2002-177, provides that “[i]t is the intent of the Legislature that the costs attributable to the additional cost-of-living increase for special risk retirees and Deferred Retirement Option Program participants as provided under section 2 shall be funded by recognition of excess actuarial assets, amortized over 30 years with the payments assumed to remain relatively stable when expressed as a percentage of payroll. For fiscal year 2001-2002, the payment shall be $9.3 million. For fiscal year 2002-2003, the payment shall be $15.1 million, and, thereafter, payments shall increase by 5 percent per year. If insufficient funds are available to fund this additional cost through recognition of excess actuarial assets in fiscal year 2002-2003 and any year thereafter, and there remains an unfunded actuarial liability attributable to the one-time cost-of-living increase provided under section 2, the payroll contribution rate for the Special Risk Class of the Florida Retirement System shall be increased by .93 percent effective July 1 of that year, unless the Legislature provides an alternative funding mechanism before that date.” Section 2, ch. 2001-235, amended s. 121.091(13)(b), relating to the Deferred Retirement Option Program to add a provision relating to elected officers. The intended reference may be to s. 10, ch. 2001-235, which provides a one-time special cost-of-living increase for members of the Special Risk Class.
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Note. Section 7, ch. 2010-179, provides that “[t]his act shall take effect upon becoming a law, and applies to firefighter deaths occurring on or after November 1, 2003.”
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Note. Section 17, ch. 2002-273, provides that “[i]t is the intent of the Legislature that any additional cost attributable to the upgrade in the retirement benefits for special risk members who have provided fire prevention or firefighter training above the contributions paid at the time of service shall be funded by recognition of the necessary amount from the excess actuarial assets of the Florida Retirement System Trust Fund.”