N.Y. Comp. Codes R. & Regs. tit. 2 § 359.5
Section 803 of the Retirement and Social Security Law provides public retirement systems with the authority to grant retroactive retirement system membership in connection with service rendered prior to April 1, 1993, in appropriate cases. Assignment of a retroactive date of membership may affect an individual's tier status in the retirement system.
A member must file an application for retroactive membership on or before October 24, 1996. In order to ensure that there is no confusion between written "inquiries" and applications for benefits, applications for retroactive membership should be filed on forms provided by the retirement system for such purpose. Forms are available from the retirement system and from employers. A member may withdraw an application for retroactive transfer by requesting withdrawal in writing within 30 days following notification to the member of the member costs of retroactive membership.
In order to be eligible for retroactive membership under section 803 of the Retirement and Social Security Law, a member must have rendered "continuous service" from the membership date being sought under section 803 through the current date of membership, in a position or positions which would have entitled the individual to join a public retirement system. For the purposes of section 803 only, service will be considered "continuous" with respect to any plan year in which the individual rendered at least 20 days of retirement system eligible service. With respect to the New York State and Local Employees' Retirement System and the New York State and Local Police and Fire Retirement System, a plan year begins on April first and ends on the next following March 31st. Service which is otherwise continuous under this rule will be considered continuous despite one break in service up to one plan year, or up to two plan years if the break in service is due to the birth of a child, care for such child, or placement with the member of a child for adoption or foster care.
Under section 803 of the Retirement and Social Security Law, a member is not eligible for retroactive membership if such member was previously afforded an actual opportunity to join or decline membership in the retirement system.
The employer which employed a section 803 applicant on the date of retroactive membership being sought must file an affidavit with the retirement system on behalf of each section 803 applicant. The completed affidavit must indicate the dates of the member's employment, and whether the member:
The individual completing the affidavit shall also indicate whether the employer has instituted a procedure under which an employee may present evidence on the issue of whether he or she was afforded a previous opportunity to join or decline membership in the retirement system. An employer who determines that an individual was afforded the previous opportunity to join or decline membership in the retirement system shall explain the basis of such determination and forward all pertinent evidence to the retirement system together with the completed affidavit.
An employer shall make an annual election whether to pay any required costs on account of individuals granted retroactive membership over one year, five years or 10 years. One election shall cover all individuals granted retroactive membership during a fiscal year. Such an election must be received by the retirement system within 30 days after receipt of a request to make such an election. In the event no timely election is received, the employer will be deemed to have elected to pay the costs attributable to members granted benefits during such fiscal year over a five-year period.
Where the employer, following the employer review process, determines and advises the retirement system that the member was afforded a previous opportunity to join the retirement system, the retirement system shall notify the applicant of this determination. Upon written request from the applicant, the retirement system shall administratively review the employer determination. Both the member and his or her employer shall be entitled to provide evidence for the retirement system to consider during the administrative review process. The retirement system shall establish a review board, which shall consider such evidence and any evidence presented by the employer pursuant to subdivision (e) of this section. The retirement system review board may also request additional information from either or both of the parties. Following the conclusion of the administrative review process, the retirement system shall issue a final determination either approving or disapproving the application for retroactive membership. An applicant or an employer may request an administrative hearing and redetermination under section 74 or section 374 of the Retirement and Social Security Law, as appropriate, with respect to such final determination. Such a request must be in writing, and received within four months from the date of the final determination. The employer and applicant shall be notified of and entitled to appear as interested parties at any hearing conducted pursuant to such a request.
N.Y. Comp. Codes R. & Regs. Tit. 2 § 359.5