Oregon Bulletin
Rule Caption: Adopt temporary new rule on uncollectible debt owed to PERS as mandated by HB
2252.
Adm. Order No.: PERS 9-2011(Temp)
Filed with Sec. of State: 11-23-2011
Certified to be Effective: 11-23-11 thru 5-20-12
Notice Publication Date:
Rules Adopted: 459-005-0620
Subject: House Bill 2252, which became effective on June 2,
2011, provides a state agency direct authority to write off uncollectible debts
on its accounts under its own criteria (previously, the Secretary of State and
Attorney General had to approve the criteria). The new rule establishes the
criteria which are mandated by HB 2252 for PERS. As the agency’s criteria must
still be approved by the Attorney General, the new rule adopts the model
criteria that they provided.
Rules Coordinator: Daniel Rivas—(503) 603-7713
459-005-0620
Uncollectible
Debt Owed to PERS
Any debt,
including interest, penalties, or any portion of the debt, may be considered to
be uncollectible when the debtor has no money or other thing of value owing or
held by PERS that has not been credited to the debt, and it is reasonable to
conclude, after all reasonable efforts to collect the debt have been made, that
one or more of the following is true:
(1) The
debtor does not and will not for the foreseeable future own or have the right
to own assets from which PERS could collect the debt.
(2) It is
reasonably estimated that the cost of collecting the debt would equal or exceed
the amount of the debt.
(3) The
debtor is deceased, and there are no assets in the debtor’s estate from which
PERS could collect the debt.
(4) The
debtor is a corporation or a limited liability company that is not and for the
foreseeable future will not be engaged in any income-producing activity, and
there are no assets from which PERS could collect the debt.
(5) The
debt has previously been discharged in bankruptcy.
(6) The
debtor’s estate is subject to a pending bankruptcy proceeding in which it is
reasonable to conclude that the debt will be discharged and that PERS will
receive none or an insubstantial share of the assets of the bankruptcy estate.
(7) PERS is
and will be for the foreseeable future unable to collect from the debtor or
from anyone owing the debtor money or holding assets of or from the debtor.
(8) PERS is
unable to locate the debtor despite having made reasonable efforts to do so.
(9) The
debt has been liquidated by reduction to a court judgment, administrative order
or distraint warrant, which has subsequently expired.
Stat.
Auth.: ORS 238.650, 293.240 & 238A.450
Stats.
Implemented: ORS 293.240(2)
Hist.: PERS
9-2011(Temp), f. & cert. ef. 11-23-11 thru 5-20-12
Rule Caption: Repeal obsolete rule regarding continuous service.
Adm. Order No.: PERS 10-2011
Filed with Sec. of State: 11-23-2011
Certified to be Effective: 11-23-11
Notice Publication Date: 7-1-2011
Rules Repealed: 459-010-0005
Subject: OAR 459-010-0005, Continuous Service, provides a
standard for determining prior service credit for periods of employment before
an employer began participating in PERS, service credit for a political
subdivision which had withdrawn before July 1, 1956, and service credit with
the state for a period before July 1, 1946. In addition, the rule clarifies
continuity of service for employees returning to service of a participating
employer or who returned from the Armed Forces as of January 1, 1945.
This
rule is now obsolete. Any eligible employer who is not currently participating
in PERS would not be allowed to integrate into the PERS Chapter 238 Program.
Administrative rules already exist for crediting service for employees while
serving in the uniformed services or Armed Forces under OAR Chapter 459,
Division 11 - Retirement Credit.
Rules Coordinator: Daniel Rivas—(503) 603-7713
Rule Caption: Clarify disability retirement standards at the recommendation of Internal Audit
findings and make other improvements.
Adm. Order No.: PERS 11-2011
Filed with Sec. of State: 11-23-2011
Certified to be Effective: 11-23-11
Notice Publication Date: 7-1-2011
Rules Amended: 459-015-0005, 459-076-0005
Subject: In 2005, PERS adopted changes to its administrative
rules governing the disability retirement program for Tier One and Tier Two
members, and adopted new rules for the administration of OPSRP Disability
Benefits. PERS’ Internal Auditors, in Report #2011-03 dated October 12, 2010,
reviewed the agency’s periodic review and contested case process for the Tier
One/Tier Two disability program and recommended further clarifications to the
administrative rules. These modifications are in response to that audit
finding. Staff is also proposing rule modifications to the OPSRP Disability
rules to align the rules where applicable, and make other improvements.
Rules Coordinator: Daniel Rivas—(503) 603-7713
459-015-0005
Eligibility
for Disability Retirement Allowances
(1) A
member must be totally, not partially, disabled and unable to perform any work
for which qualified for an extended duration to be eligible for a disability
retirement allowance.
(2) In
determining a member’s eligibility for a disability retirement allowance, the
burden of proof is upon the applicant. The Board is not required to prove
whether the applicant is or is not eligible for a disability retirement
allowance.
(3)
Eligibility requirements for duty disabilities.
(a) To be
eligible for a duty disability a member must prove:
(A) The mental
or physical incapacitation arose out of and in the course of duty and was not
intentionally self-inflicted; and
(B) The on
the job injury must be the material contributing cause of the disability even
if the member has a pre-existing condition.
(b) For
work related stress to be considered the material contributing cause of the
disability all of the following criteria must be met:
(A) The
employment conditions producing the work-related stress exist in a real and
objective sense;
(B) The
employment conditions producing the work-related stress are conditions other
than conditions generally inherent in every working situation or reasonable
disciplinary, corrective or job performance evaluation actions by the employer,
or cessation of employment or employment decisions attendant upon ordinary
business or financial cycles;
(C) There
is a diagnosis of a mental or emotional disorder which is generally recognized
in the medical or psychological community; and
(D) There
is evidence that the work-related stress arose out of and in the course of
employment.
(4)
Eligibility requirements for non-duty disabilities. A member applying for
non-duty disability retirement must have a minimum of 10 years of employment in
a PERS qualifying position as calculated pursuant to ORS 238.320(6).
(5) A
member’s disability retirement allowance shall be calculated based on:
(a)
Creditable service; and
(b) Granted
service if the member had not attained:
(A) Age 55
if the last qualifying position was as a police officer or a firefighter.
(B) Age 58
if the last qualifying position was as other than a police officer or
firefighter.
(6) Granted
service is:
(a) Not
included in the calculation of increased benefits payable under ORS 238.380.
(b)
Included in the calculation of increased benefits payable under ORS 238.385.
(7)
Termination of membership. Disability retirement allowances are available only
to PERS members. Former PERS members who have terminated their membership
pursuant to ORS 238.095 are not eligible to receive PERS disability retirement
allowances.
Stat. Auth.:
ORS 238.650
Stats.
Implemented: ORS 238.320 - 238.345
Hist.: PERS
2-1992, f. & cert. ef. 1-14-92; PERS 15-2005, f. & cert. ef. 10-3-05;
PERS 3-2010, f. & cert. ef. 5-28-10; PERS 11-2011, f. & cert. ef.
11-23-11
459-076-0005
Eligibility
for Disability Benefits
(1) An
active member must be totally, not partially, disabled and unable to perform
any work for which qualified for an extended duration to be eligible for a
disability benefit.
(2) A
member with disabilities arising after the member’s date of termination from a
qualifying position(s) is not eligible for a disability benefit.
(3) In
determining a member’s eligibility for disability benefits, the burden of proof
is upon the applicant. The Board is not required to prove whether the applicant
is or is not eligible for disability benefits.
(4)
Eligibility requirements for duty disabilities.
(a) To be
eligible for a duty disability a member must prove:
(A) The
mental or physical incapacitation arose out of and in the course of duty and
was not intentionally self-inflicted; and
(B) The on
the job injury must be the material contributing cause of the disability, even
if the member has a pre-existing condition.
(b) For
work related stress to be considered the material contributing cause of the
disability all of the following criteria must be met:
(A) The
employment conditions producing the work related stress exist in a real and
objective sense;
(B) The
employment conditions producing the work related stress are conditions other
than conditions generally inherent in every working situation or reasonable
disciplinary, corrective or job performance evaluation actions by the employer,
or cessation of employment or employment decisions attendant upon ordinary
business or financial cycles;
(C) There
is a diagnosis of a mental or emotional disorder which is generally recognized
in the medical or psychological community; and
(D) There
is evidence that the work related stress arose out of and in the course of
employment.
(5)
Eligibility requirements for non-duty disabilities. A member applying for
non-duty disability benefit must meet the 10 or more years of service
requirements pursuant to ORS 238A.235(2)(a) or (b).
(6)
Termination of OPSRP membership. Disability benefits are available only to
active OPSRP Pension Program members. Former OPSRP Pension Program members who
have terminated membership pursuant to ORS 238A.110 are not eligible to receive
OPSRP disability benefit.
(7) Return
to work. If a member who is receiving a disability benefit becomes employed or
receives earned income, the member’s disability benefit will be terminated,
effective the first of the month following employment or issuance of earned
income. PERS will invoice the member for, or recover under ORS 238.715, any
overpayment of benefits.
(8) PERS
may contact other public or private agencies, such as the Oregon Employment
Department, the Oregon Department of Revenue, or the U.S. Internal Revenue
Service to obtain employment information.
(9) Upon
request by PERS, a member must provide PERS with a copy of the member’s federal
income tax returns, together with copies of IRS forms W-2.
Stat.
Auth.: ORS 238A.120 & 238A.450
Stats.
Implemented: ORS 238A.140 & 238A.235
Hist.: PERS
16-2005, f. & cert. ef. 10-3-05; PERS 11-2011, f. & cert. ef. 11-23-11
Rule Caption: Amend rule to reference judgments impacting disclosure of retired members’
records.
Adm. Order No.: PERS 12-2011
Filed with Sec. of State: 11-23-2011
Certified to be Effective: 11-23-11
Notice Publication Date: 10-1-2011
Rules Amended: 459-060-0020
Subject: This rulemaking conforms the agency’s administrative
rules to the circuit court judgments entered in PERS v. Oregonian Publishing
Company LLC and PERS v. Multimedia Holdings Corporation, dba Statesman
Journal and Statesman Journal Media. The judgments are a result of the
settlement of the litigation between the agency and the newspapers that began
last year, after the Oregon Attorney General issued Public Records Orders
(PROs) directing PERS to disclose data about individually identified PERS
benefit recipients.
The
amendments to OAR 459-060-0020 incorporate the judgments into the
administrative rule by specific reference. Thus, the resulting OAR makes clear
that, notwithstanding any other confidentiality provision in rule or statute,
the agency will disclose member information as set forth in the judgments.
Rules Coordinator: Daniel Rivas—(503) 603-7713
459-060-0020
Confidentiality
of Member’s Records
(1) ORS
192.502(12) unconditionally exempts from public disclosure a member’s nonfinancial
membership records and an active or inactive member’s financial records
maintained by PERS. PERS may not release such records to anyone other than the
member, an authorized representative of the member, or the member’s estate
except:
(a) Upon
the written authorization of the member, or an individual that is legally
authorized to act on behalf of the member or the member’s estate as to PERS
matters; or
(b) As
otherwise provided in OAR 459-060-0030.
(2) ORS
192.502(2) conditionally exempts from public disclosure a retired member’s
financial information maintained by PERS. PERS may not release such records to
anyone other than the member, an authorized representative of the member, or
the member’s estate unless:
(a) To do
so would not constitute an unreasonable invasion of privacy and there is clear
and convincing evidence that disclosure is in the public’s interest;
(b) PERS
receives written authorization from the member, or an individual that is
legally authorized to act on behalf of the member or the member’s estate as to
PERS matters; or
(c) Release
is provided for under OAR 459-060-0030 or as required under the judgments in
PERS v. Oregonian Publishing Company LLC and PERS v. Multimedia Holdings
Corporation, dba Statesman Journal and Statesman Journal Media.
(3)
Information distributed pursuant to the judgments referenced in section (2)(c)
of this rule will be updated not less than annually.
(4)(a)
Subject to subsection (b) of this section, PERS may provide a member’s current
or former employer with information from the member’s records that is otherwise
exempt from public disclosure to the extent necessary to enable the employer:
(A) To
determine whether a non-PERS retirement plan maintained by the employer
complies with any benefit or contribution limitations or nondiscrimination
requirement imposed by applicable federal or state law;
(B) To
apply any coordination of benefits requirement contained in any non-PERS
benefit plan maintained by the employer;
(C) To
perform any necessary account reconciliation following an integration of the
employer’s retirement plan into PERS; or
(D) To
reconcile an actuarial valuation by providing the employer with the following
member information:
(i) Salary
information;
(ii)
Employment history; or
(iii)
Contribution history.
(b) PERS
will not provide the information described in subsection (a) of this section
unless the employer demonstrates to the satisfaction of PERS that the
information is necessary to accomplish one of the purposes described in
paragraphs (A), (B), (C) and (D) of subsection (a) and the employer certifies
in writing that it will not disclose the information to any third party except
to the extent permitted under this division and ORS 192.502(10).
(5) To
enable an employer to comply with OAR 459-070-0100, PERS may disclose to the
employer an employee’s status as an active, inactive, or retired member, or a
non-member.
(6) PERS
will not provide a mailing list of its members or their dependents to any
individual or enterprise.
Stat.
Auth.: ORS 192.502 & 238.650
Stats.
Implemented: ORS 192.410-505, 237.410-520, 237.610-620, 237.950-980 & 238
Hist.: PERS
8-1996, f. & cert. ef. 11-12-96; PERS 7-2002, f. & cert. ef. 5-24-02;
PERS 16-2003, f. & cert. ef. 12-15-03; PERS 12-2010, f. & cert. ef.
11-24-10; PERS 12-2011, f. & cert. ef. 11-23-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.
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