When LOSAP was first adopted in New York State, generally it was administered like a pension plan, where once a participating volunteer reached the entitlement age and collected a benefit, the volunteer was no longer able to earn benefits. In a traditional pension plan, a person generally is not "retired" and "working" at the same time. It is fully understood now that it is age discrimination to prevent volunteers over the entitlement age from participating and earning additional benefits.
While we would call this post-entitlement participation or post-EA (for entitlement age), another term has worked into the lexicon of NYS LOSAP administration - LOSAP II or Part B. The idea being the benefits earned prior to the entitlement age being the regular LOSAP or Part A, and benefits earned after the entitlement age being LOSAP II or Part B.
This distinction is generally being made because the form of payment for LOSAP II benefits is usually different, particularly for a defined benefit (DB) program. However, it is important to note that it is not a second LOSAP, but simply and extension of the benefits being provided by the total program. This is mainly important for the determination of the maximum years of service credit that can be earned. For example, if a LOSAP limits total service credit to 30 years, a volunteer who earned 20 years prior the entitlement age can only earn 10 more years of service credit after the entitlement age; or, 10 more LOSAP II benefits.
To illustrate how LOSAP II is administered, consider a DB plan that provides a $20 monthly service award payable at an entitlement age of 60, with a maximum years of service credit of 40 years. In this plan, for each year of service credit (50 points) earned, the volunteer earns a $20 lifetime monthly payment at the entitlement age. For all volunteers that are under age 60 at the time the service credit is earned, they have to wait to be paid that $20 monthly benefit.
But for anyone over age 60 at the time service credit is earned, that volunteer earns an additional $20 monthly benefit effective the January 1st following the year. Take for example a volunteer who turns age 60 and starts collecting a $700 monthly benefit on 3/1/2022 based on 35 years of service credit earned as of 12/31/2021. If that firefighter earns service credit for 2022, that volunteer then earns an additional $20 monthly payment effective January 1, 2023, which means his payments would be effectively increased to $720 on January 1, 2023. This administrative practice is how a significant majority of DB LOSAPs are administered.
What LOSAP II does differently is rather than pay the additional $20 per month, it converts that amount into a different form of payment. Therefore, the benefit being paid by LOSAP I, or the original LOSAP, or Part A (pick your favorite) does not change. The participant in our example will continue to be paid $700 for the rest of his lifetime, and that benefit will not be impacted by service credit earned after age 60.
There are generally two ways that LOSAP II are administered:
There are pros/cons to these different administrative practices, but reviewing those are not the purpose of this post. Please contact us if you'd like to have a more detailed discussion about your specific LOSAP. The examples given herein should be treated as such and may not reflect the administrative practice of your LOSAP or all LOSAPs.
Section 217(b) of the General Municipal Law is where the vesting requirement for a NY State LOSAP is found. It states:
A participant shall have a nonforfeitable right to a percentage of a service award that is not less
than the percentage determined under the following table:
Years of Nonforfeitable Firefighting Service: Less than 5, Percentage= 0
Years of Nonforfeitable Firefighting Service: 5 or More, Percentage= 100
Notwithstanding the preceding table, a participant shall have a one hundred percent nonforfeitable right to his service award upon his attainment of the entitlement age under the program [emphasis added]. Each sponsor may establish a percentage table that provides for a faster rate of becoming nonforfeitable. Any amounts attributable to forfeiture of a participant’s service award shall be used to reduce contributions for other service award program participants and shall not in any case be used to increase benefits for other participants. The preceding shall not preclude amendment of a service award program to provide for an increase in benefits.
We dealt with the entire concept in a previous blog post, which you can read HERE.
The purpose of this post is to expand on the part in italics above: Notwithstanding the preceding table, a participant shall have a one hundred percent nonforfeitable right to his service award upon his attainment of the entitlement age under the program.
Essentially when a participant attains the entitlement age, he/she becomes 100% vested. The person does not need to earn five (5) years of service credit to be 100% vested and therefore collect a benefit. This quirk has been in the LOSAP statute since it was originally written. This is something we get frequent complaints about, and we agree it is time for the law to be amended to close this loophole. . The purpose for this is not clear, though the best guess is likely that the law was written with the understanding that a volunteer would "retire" at the entitlement age and no longer be able to participants.
A LOSAP sponsor could attempt to be creative and define the entitlement age to be an "age plus service" requirement. For example, the entitlement age is the later of age 60 or the age a participant earns five (5) years of service credit. Unfortunately, we do not believe this is allowed either given the definition of entitlement age in the law, which is: "...the age designated by the sponsor at which a program participant is entitled to begin receiving an unreduced service award. In no event shall the entitlement age under a program be earlier than age fifty-five nor later than the age at which the participant can receive an unreduced benefit under Title II of the Social Security Act (Public Law 74-271 U.S.C. 306 et seq.)."
As you can see, the statute defines the entitlement age to be "the age", which would seem to eliminate the possibility of making it an "age plus service" requirement. Furthermore, the statute states that in no event shall it be later than Social Security normal retirement age. At the time this blog post was written, the latest Social Security normal retirement age is age 70, which means an entitlement age cannot be later than age 70. If a LOSAP sponsor was comfortable defining the entitlement age as an "age plus service" requirement, it would appear the entitlement age could still not be any later than age 70 even with a five-year service requirement.
If your LOSAP is still requiring all participants to earn five (5) years of service credit before becoming 100% vested, review this blog post with your attorney.
When the 2023 State Fiscal Year Budget was adopted, the legislation included a new amendment to the General Municipal Law (GML) and Volunteer Firefighter Benefits Law (VFBL) to allow for the payment of training stipends. Chapter 55 of the Laws of 2023 accomplished two things:
1) Amend the GML to provide for the payment of a "training stipend", defined as a "payment of a nominal fee to a volunteer firefighter of a stipend for the completion of certain firefighter training, as identified and published by the office of fire prevention and control."
2) Amend the VFBL to stipulate the receipt of a training stipend would not be considered remuneration, and therefore allow a volunteer who receives this training stiped to still be covered by VFBL. In essence, this preserves the individual's status as a volunteer firefighter rather than an employee.
The exiting LOSAP legislation (GML Article 11-A) does not specifically address the topic of remuneration received by a volunteer firefighter relative to the eligibility to participate in a LOSAP. It would appear that Article 11-A simply relies on the fact that a volunteer firefighter is a bona fide volunteer as provided in the other applicable statutes. Therefore, it wasn't necessary to amend the LOSAP law for this new training stipend.
However, the Internal Revenue Code (IRC) does broach this topic, and stipulates that only bona fide volunteers can participate in a LOSAP. The IRC Section 457(e)(11)(B)(i) states: "An individual shall be treated as a bona fide volunteer for purposes of subparagraph (A)(ii) if the only compensation received by such individual for performing qualified services is in the form of — (I) reimbursement for (or a reasonable allowance for) reasonable expenses incurred in the performance of such services, or (II) reasonable benefits (including length of service awards), and nominal fees for such services, customarily paid by eligible employers in connection with the performance of such services by volunteers."
There is no specific definition in this section of the IRC that further defines a nominal fee (i.e., the dollar value that would be considered nominal). The Department of Labor has opined that any fee/compensation would be considered nominal as long as the fee does not exceed 20% of what would otherwise be paid to a full-time equivalent firefighter. It would appear that the New York State training stipends will be significantly less than 20% of the salary of a paid/career firefighter.
The new training stipend legislation was drafted to purposefully refer to the stipend as a nominal fee, which aligns perfectly with the definition of a bona fide volunteer in the IRC.
Therefore, unless additional guidance or ruling is issued by the State or the Internal Revenue Service, it appears clear that a volunteer receiving a training stipend would also be eligible to receive points for attending the training and continue to participate in the LOSAP.
This article is not intended to provide legal advice, and we suggest reviewing it with your local attorney for additional guidance.