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Oregon Bulletin

January 1, 2012

 

Oregon Public Employees Retirement System
Chapter 459

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.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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