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Oregon Bulletin

November 1, 2011

 

Oregon Public Employees Retirement System
Chapter 459

Rule Caption: Rule is unnecessary given specific loss of membership standard for school employees in ORS 238.095.

Adm. Order No.: PERS 7-2011

Filed with Sec. of State: 10-5-2011

Certified to be Effective: 10-5-11

Notice Publication Date: 7-1-2011

Rules Repealed: 459-010-0205

Subject: Under ORS 238.095, school district employees who are not vested and inactive for a period of five consecutive years may continue membership in the system if they meet two criteria. First, after completing a school year, the member must be inactive for the next following five school years. Secondly, the member must either be reemployed by a school district in a qualifying position at the beginning of the sixth school year, or reach earliest service retirement age before the beginning of the sixth school year. These criteria are specified in nearly identical language in ORS and OAR, therefore the OAR is unnecessary and proposed for repeal.

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 8-2011

Filed with Sec. of State: 10-5-2011

Certified to be Effective: 10-5-11

Notice Publication Date: 7-1-2011

Rules Amended: 459-015-0001, 459-015-0020, 459-015-0045, 459-015-0050, 459-076-0001, 459-076-0020, 459-076-0025, 459-076-0050, 459-076-0055

Rules Repealed: 459-076-0000

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 Auditor, in Report #2011-03 dated October 12, 2010, reviewed the agency’s periodic review and contested case process for the Tier One/Tire 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

459-015-0001

Definitions

The words and phrases used in this division have the same meaning given them in ORS Chapter 238 and OAR 459-005-0001. Additional terms are defined as follows unless the context requires otherwise.

(1) “Any work for which qualified” means a job, not necessarily the last or usual job, which the applicant for a disability retirement allowance:

(a) Is physically and psychologically capable of performing; and

(b) Has, or may obtain with reasonable training the knowledge, skills and abilities, to perform the job.

(2) “Certified vocational consultant” means a person who satisfies the criteria set forth under either of the following:

(a) A Master’s Degree in vocational rehabilitation, and one year of experience in performing vocation evaluations or developing individualized return-to-work plans; or a Bachelor’s Degree and two years of such experience. All degrees must have been earned at an accredited institution; or

(b) Accredited as a Certified Rehabilitation Counselor (CRC) by the Commission on Rehabilitation Counselor Certification; as a Certified Disability Management Specialist (CDMS) by the Certification of Disability Management Specialists Commission; or a Certified Vocational Evaluation Specialist (CVE) or a Certified Work Adjustment Specialist (CWA) by the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists.

(3) “Confidential information” means information of a personal nature such that disclosure would constitute an unreasonable invasion of privacy as defined by state law.

(4) “Date an application for disability retirement is filed” means the receipt date as determined pursuant to OAR 459-005-0220.

(5) “Date of disability” means the later of:

(a) The date an active member ceased to work because of inability to perform any work for which qualified due to injury or disease; or

(b) The date an inactive member became unable to perform any work for which qualified provided such inability occurred within six months after the date of separation from service.

(6) “Date of separation from service” means the later of: the last day worked or the last day of paid leave with a PERS participating employer.

(7) “Date of termination” means the date a member terminates from employment such that an employee/employer relationship no longer exists.

(8) “Earned income” means income that includes, but is not limited to:

(a) Salary or wages received as an employee;

(b) Self-employment income from:

(A) Services industry;

(B) Sales;

(C) Assembly or manufacturing;

(D) Consulting;

(E) Property management;

(F) Hobby income; or

(G) Book advances.

(c) “Earned income” does not include:

(A) Investment income;

(B) Rent; and

(C) Royalties.

(d) Earned income is deemed to be received by the member on the date it is issued by the payer.

(9) “Effective date of disability retirement” means the first day of the month following the date of disability in which all of the following has been met:

(a) The member is paid no salary from a participating employer, and

(b) The member does not receive paid leave from a participating employer except for any lump sum payment for accrued vacation leave or compensatory time.

(10) “Extended duration” means a period of not less than 90 consecutive calendar days, unless the disability is expected to result in the death of the disabled member in less than 90 days.

(11) “Granted service” means that portion of creditable service used solely to calculate a disability retirement allowance under ORS 238.320 that is not performed or earned.

(12) “Independent medical exam” means an exam or exams conducted by a physician chosen by PERS for purposes other than treatment which results in the issuance of a report or reports based on those exams, giving an opinion regarding the claimed injury or disease.

(13) “Material contributing cause” means the efficient, dominant, and proximate cause of the disability, without which the member would not be disabled.

(14) “Monthly salary” means “salary” as defined in ORS 238.005 that is earned in the last full calendar month of employment, and includes employer payments under ORS 238A.335 and differential wage payments as defined in OAR 459-005-0001.

(a) Retroactive payments or payments made due to clerical errors, paid in accordance with ORS 238.005, are allocated to the period the salary was earned or should have been earned.

(b) Payments of salary paid within 31 days of separation are allocated to the period the salary was earned and should be considered as paid on the last date of employment.

(15) “Monthly salary received” means the greater of the monthly salary paid for the last full calendar month of:

(a) Employment before the date of disability; or

(b) Differential wage payments made before the date of disability. This subsection is effective January 1, 2009.

(16) “Normal retirement age” means the age at which a member can retire without a reduced benefit as set forth under ORS 238.005 and 238.280.

(17) “Performance of duty” means whatever an employee may be directed, required or reasonably expected to do in connection with his or her employment, and not solely the duties particular to his or her position.

(18) “Periodic review” means a review of a member receiving a disability retirement allowance to determine whether or not a continued allowance is warranted.

(19) “Physician” means a medical doctor, a doctor of osteopathy, a doctor of oral surgery, a chiropractic doctor, a naturopathic doctor, or a doctor of psychology practicing only within the purview of their license issued by the designated authority of a state.

(20) “Pre-existing condition” means a condition that was not sustained in actual performance of duty in a qualifying position with a participating employer.

(21) “Protected health information” means health information created or received by a health care provider, health plan, or health care clearinghouse, where an individual has a reasonable belief that the information can identify the individual, which relates to:

(a) The past, present, or future physical or mental health of an individual;

(b) The provision of health care to an individual; or

(c) The past, present, or future payment for the provision of health care to an individual.

(22) “Similar in compensation” means salary or other earned income, excluding overtime, equaling at least 80% of the monthly salary.

(23) “Total disability” means the inability to perform any work for which qualified for an extended duration due to physical or mental incapacitation.

(24) “Training or vocational rehabilitation program” means a comprehensive, coordinated program, usually state or federally funded, to train and assist individuals with disabilities in securing gainful employment commensurate with their abilities and capabilities.

(25) “Vocational evaluation” means an evaluation conducted by a certified vocational consultant, to determine the ability of an applicant to perform any work for which they are qualified.

(26) “Work related stress” means conditions or disabilities resulting from, but not limited to:

(a) Change of employment duties;

(b) Conflicts with supervisors;

(c) Actual or perceived threat of loss of a job, demotion, or disciplinary action;

(d) Relationships with supervisors, coworkers, or the public;

(e) Specific or general job dissatisfaction;

(f) Work load pressures;

(g) Subjective perceptions of employment conditions or environment;

(h) Loss of job or demotion for whatever reason;

(i) Fear of exposure to chemicals, radiation biohazards, or other perceived hazards;

(j) Objective or subjective stresses of employment; or

(k) Personnel decisions.

Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.320 - 238.345

Hist.: PERS 15-2005, f. & cert. ef. 10-3-05; PERS 1-2009, f. & cert. ef. 2-12-09; PERS 3-2010, f. & cert. ef. 5-28-10; PERS 8-2011, f. & cert. ef. 10-5-11

459-015-0020

Application Required

(1) Applications must be made on forms provided by PERS. PERS may require the member to provide any information that PERS considers necessary to determine the applicant’s eligibility for a disability retirement allowance.

(2) No disability retirement allowance will be paid unless the member files a timely and complete application.

(3) Application must be made by a member or the member’s authorized representative. A representative must submit to PERS written proof of the representative’s authority; such as, a power of attorney, guardianship or conservatorship appointment.

(4) Upon the filing of an application for a disability retirement allowance, PERS will notify the applicant’s current or most recent employer of the filing. Additionally, PERS may request of an employer information pertaining to current or previous employment.

(5) When an employee member is disabled due to injury or disease, the member may make application immediately after the last day worked even though the member may be on a paid leave or on an official leave of absence without pay. No application will be accepted that predates the last day the member was actually on the job.

(6) An application will be considered filed in a timely manner when received by PERS as follows:

(a) For a member who is totally disabled due to injury or disease before terminating employment from all PERS qualifying positions and has not withdrawn the amount credited to the account of the member in the system, the member must file an application for a disability retirement allowance within five calendar years of the date of termination. The disabling condition must be continuous from the date of termination to the date the application is filed.

(b) For a member who is totally disabled due to injury or disease after terminating employment from all PERS qualifying positions and has not withdrawn the amount credited to the account of the member in the system, the member must file an application for a disability retirement allowance within six months (180 days) after the date of separation from service. The disabling condition must be continuous from the date of disability to the date the application is filed.

(c) A member cannot apply for disability retirement before their date of disability.

(7) In determining the effective date of a disability retirement allowance, PERS may allow up to 60 months of benefits retroactive from the date the application is filed with PERS, but in no case earlier than the first day of the month following the date of termination.

(8) When making application for a PERS disability retirement allowance, PERS will request the applicant authorize any physician, health practitioner, hospital, clinic, pharmacy, employer, employment agency, or government agency to release and disclose to PERS, or independent physicians and vocational consultants retained by PERS, any information within their records or knowledge, including that information otherwise protected under federal or state law, regarding the applicant’s health and employment which PERS determines relates to the applicant’s claim of disability and inability to perform any work for which qualified.

(9) When filing an application for disability retirement allowance, if the applicant wishes to authorize release and disclosure of protected health information, as defined in OAR 459-015-0001(17), the applicant must complete and sign a consent form which specifically authorizes the release and disclosure of such information.

(a) This authorization is voluntary. Because PERS is not a covered entity as defined in 45 C.F.R., Parts 160 and 164, the protected health information is not subject to federal and state health information privacy laws, but may be protected under Oregon State Public Record disclosure laws.

(b) This authorization may be revoked in writing at any time, except to the extent the entities named on the authorization form(s) have taken action in reliance of the authorization.

(c) If the applicant refuses to give or revokes authorization to disclose to PERS medical information that PERS determines it needs to evaluate the application, eligibility for a disability retirement allowance may be affected.

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 8-2011, f. & cert. ef. 10-5-11

459-015-0045

Return to Work

(1) The Public Employees Retirement Board allows a member who is receiving a disability allowance to return to work as follows:

(a) Returning to work in a PERS qualifying position. A member who has not been medically released for any work for which qualified, may return to work in a PERS qualifying position, as defined by OAR 459-010-0003, for a 90-day trial period without losing disability retirement status. While the member is working during this trial period:

(A) The disability retirement allowance and supplemental benefits will be suspended.

(B) Any wages earned during the trial period are excluded from the definition of salary for purposes of computing PERS contributions or determining PERS retirement benefits unless the member continues the employment beyond 90 days. If the member continues beyond the 90 days, the period will be considered qualifying as of the first day the member returned to work and retroactive contributions, without interest, are required.

(b) Returning to work in a PERS non-qualifying position. A member who has not been medically released for any work for which qualified, may return to work with a PERS participating employer in a position not qualifying for PERS active membership, as defined by OAR 459-010-0003. Unless the member has reached normal retirement age, the monthly disability retirement will be adjusted by any earned income issued during that month which, when added to the disability retirement allowance, exceeds the gross monthly salary earned at the date of disability.

(c) Returning to work in a non-PERS position. A member who has not been medically released for any work for which qualified, may be employed by other than a PERS participating employer in a position that is not similar in compensation. Unless the member has reached normal retirement age, the monthly disability retirement allowance shall be adjusted by any earned income issued during that month which, when added to the disability retirement allowance, exceeds the gross monthly salary earned at the date of disability.

(d) If a member is able to generate income that is similar in compensation for a period of three calendar months in six consecutive calendar months, PERS shall initiate a review under the periodic review standard in OAR 459-015-0050.

(2) A member’s disability retirement allowance will be terminated if the member has been medically released for any work for which qualified, whether the member returns to work or not, and PERS will invoice the member for, or recover under ORS 238.715, any overpayment of benefits.

(3) If a member returns to work as provided in sections (1) or (2) of this rule, the member must:

(a) Notify PERS in writing of the reemployment within 30 days of such reemployment; and

(b) Report monthly to PERS the amount of any earned income issued.

(4) 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.

(5) 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.

(6) The Board may require medical examination reports or vocational evaluations for any member receiving a disability retirement allowance who is reemployed.

(7) If the member is reemployed under section (1) of this rule and is unable to continue employment due to the disabling injury or disease as confirmed by medical documentation, the member or employer must notify PERS. If medical documentation substantiates that the disability prevents the completion of the trial period, the disability retirement allowance will be reinstated at the end of the 90 day period, or as of the date the member leaves the trial employment, whichever is sooner.

(8) A disability retirement allowance shall not be discontinued solely by reason of the retired member entering a training or vocational rehabilitation program as defined in OAR 459-015-0001(22).

(9) Restoration of member account after return to work. If a member returns to PERS covered employment after the 90-day trial period, or is medically released at any time for any work for which they are qualified, the disability claim will be closed.

(a) The member’s regular and variable PERS account(s) will be restored to the dollar amount of the account as of the effective date of disability retirement. If a variable account transfer was elected at the time of disability retirement, the amounts transferred from the variable account to the regular account will remain in the regular account.

(b) Earnings crediting will resume as of the first of the month following the last month for which a disability retirement allowance was paid.

(10) Creditable service. A member does not receive creditable service while drawing a disability retirement allowance. If, however, the member returns to PERS covered employment, their disability claim is closed, and they subsequently retire under a service retirement, service time for the period of disability will be restored as follows:

(a) For duty disabilities, creditable service will be granted to the member at no cost to the member.

(b) For non-duty disabilities, creditable service may be purchased by the member under the provisions of ORS 238.175.

Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.175, 238.320 – 238.345 & 238.715

Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 15-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11

459-015-0050

Periodic Reviews

(1) Members receiving a disability retirement allowance are subject to periodic reviews of their disabled status until the member reaches normal retirement age or staff determines that periodic reviews are no longer warranted.

(2) Periodic reviews will be used to determine that continued disability retirement allowances are warranted. In recommending the continuance or discontinuance of a disability retirement allowance, PERS will follow the criteria established under OAR 459-015-0005 for the original approved disabling condition or a new medical condition. PERS will also consider the Return to Work provisions of ORS 238.330(3), 238.340, and OAR 459-015-0045.

(3) For duty disability, the periodic review will not revisit the original determination that the injury or disease was duty caused, unless there is evidence of misrepresentation or fraud.

(4) PERS will establish review dates for each member subject to a periodic review depending on type of disability, extent of disability, and medical reports unique to each individual case.

(a) The reviews may be medical or vocational in nature, or both.

(b) Upon review, PERS may accept or require:

(A) New treating or consulting physician or specialist reports;

(B) Updated physician or specialist reports;

(C) Independent medical or vocational examinations; or

(D) Employment and wage information, including but not limited to, tax returns or information from the State Employment Department.

(c) PERS may immediately discontinue the disability retirement allowance of any person who refuses to provide current medical evidence or refuses to submit to an examination.

(A) If the disability claim is discontinued, the staff shall issue an Intent to Discontinue letter by regular and certified mail, return receipt requested. The discontinuation letter shall advise the applicant that additional information to substantiate the claim, or a request for an extension of 30 days to present additional information, may be submitted to the staff in writing within 30 days of the date of the Intent to Discontinue letter.

(B) Following the issuance of an Intent to Discontinue letter, staff will review any additional information which is submitted within 30 days.

(i) If the additional information results in a recommendation to approve the application, staff shall resubmit the application to the Director, or the Director’s designee, with the recommendation.

(ii) If the additional information does not result in a recommendation to approve the application, PERS will issue a final discontinuation letter by regular and certified mail, return receipt requested.

(C) If no additional information is received within 30 days, PERS will issue a final discontinuation letter by regular and certified mail, return receipt requested.

(D) The final discontinuation letter will provide the applicant with notification of the right to request a contested case hearing as provided for in OAR 459-015-0030 and 459-001-0035.

(5) The member has the burden to prove continuing eligibility for a disability retirement allowance.

(6) The Director, or the Director’s designee, may approve or deny the continuance of a disability retirement allowance.

Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.320 & 238.335

Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 5-1992, f. & cert. ef. 5-4-92; PERS 15-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11

459-076-0001

Definitions

The words and phrases used in this division have the same meaning given them in ORS Chapter 238A and OAR 459-070-0001. Additional terms are defined as follows unless the context requires otherwise.

(1) “Any work for which qualified” means a job, not necessarily the last or usual job, which the applicant for disability benefits:

(a) Is physically and psychologically capable of performing; and

(b) Has, or may obtain with reasonable training, the knowledge, skills and abilities, to perform the job.

(2) “Certified vocational consultant” means a person who satisfies the criteria set forth under either of the following:

(a) A Master’s Degree in vocational rehabilitation, and one year of experience in performing vocation evaluations or developing individualized return-to-work plans; or a Bachelor’s Degree and two years of such experience. All degrees must have been earned at an accredited institution; or

(b) Accredited as a Certified Rehabilitation Counselor (CRC) by the Commission on Rehabilitation Counselor Certification; as a Certified Disability Management Specialist (CDMS) by the Certification of Disability Management Specialists Commission; or a Certified Vocational Evaluation Specialist (CVE) or a Certified Work Adjustment Specialist (CWA) by the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists.

(3) “Confidential information” means information of a personal nature such that disclosure would constitute an unreasonable invasion of privacy as defined by state law.

(4) “Date an application for a disability benefit is filed” means the receipt date as determined pursuant to OAR 459-005-0220.

(5) “Date of disability” means the date an active member ceased to work because of inability to perform any work for which qualified due to injury or disease.

(6) “Date of separation from service” means the later of: the last day worked or the last day of paid leave with a PERS participating employer.

(7) “Date of termination” means the date a member terminates from employment such that an employee/employer relationship no longer exists.

(8) “Earned income” includes, but is not limited to:

(a) Salary or wages received as an employee;

(b) Self-employment income from:

(A) Services industry;

(B) Sales;

(C) Assembly or manufacturing;

(D) Consulting;

(E) Property management;

(F) Hobby income; or

(G) Book advances.

(c) “Earned income” does not include:

(A) Investment income;

(B) Rent; and

(C) Royalties.

(d) Earned income is deemed to be received by the member on the date it is issued by the payer.

(9) “Effective date of disability benefit” means the first day of the month following the date of disability, in which:

(a) The member is paid no salary from a participating employer; and

(b) The member does not receive paid leave from a participating employer, except for any lump sum payment for accrued vacation leave or compensatory time.

(10) “Extended duration” means a period of not less than 90 consecutive calendar days unless the disability is expected to result in the death of the disabled member in less than 90 days.

(11) “Independent medical exam” means an exam or exams conducted by a physician chosen by PERS for purposes other than for treatment which results in the issuance of a report or reports based on those exams, giving an opinion regarding the claimed injury or disease.

(12) “Material contributing cause” means the efficient, dominant, and proximate cause of the disability, without which the member would not be disabled.

(13) “Monthly salary” means salary as defined in ORS 238A.005 that is earned in the last full calendar month of employment and includes a differential wage payment, as defined in OAR 459-005-0001.

(a) Retroactive payments or payments made due to clerical errors, paid in accordance with ORS 238A.005, are allocated to the period the salary was earned or should have been earned.

(b) Payments of salary paid within 31 days of separation are allocated to the period the salary was earned and should be considered as paid on the last date of employment.

(14) “Monthly salary received” means the greater of the salary paid for the last full calendar month of:

(a) Employment before the date of disability; or

(b) Differential wage payments made before the date of disability. This subsection is effective January 1, 2009.

(15) “Performance of duty” means whatever an employee may be directed, required or reasonably expected to do in connection with his or her employment, and not solely the duties particular to his or her position.

(16) “Periodic review” means a review of a member receiving a disability benefit to determine whether or not a continued benefit is warranted.

(17) “Physician” means a medical doctor, a doctor of osteopathy, a doctor of oral surgery, a chiropractic doctor, a naturopathic doctor, or a doctor of psychology practicing only within the purview of their license issued by the designated authority of a state.

(18) “Pre-existing condition” means a condition that was not sustained in actual performance of duty in a qualifying position with a participating employer.

(19) “Protected health information” means health information created or received by a health care provider, health plan, or health care clearinghouse, where an individual has a reasonable belief that the information can identify the individual, which relates to:

(a) The past, present, or future physical or mental health of an individual;

(b) The provision of health care to an individual; or

(c) The past, present, or future payment for the provision of health care to an individual.

(20) “Total disability” means the inability to perform any work for which qualified for an extended duration due to physical or mental incapacitation.

(21) “Vocational evaluation” means an evaluation conducted by a certified vocational consultant, to determine the ability of an applicant to perform any work for which they are qualified.

(22) “Work related stress” means conditions or disabilities resulting from, but not limited to:

(a) Change of employment duties;

(b) Conflicts with supervisors;

(c) Actual or perceived threat of loss of a job, demotion, or disciplinary action;

(d) Relationships with supervisors, coworkers, or the public;

(e) Specific or general job dissatisfaction;

(f) Work load pressures;

(g) Subjective perceptions of employment conditions or environment;

(h) Loss of job or demotion for whatever reason;

(i) Fear of exposure to chemicals, radiation biohazards, or other perceived hazards;

(j) Objective or subjective stresses of employment; or

(k) Personnel decisions.

Stat. Auth.: ORS 238A.450

Stats. Implemented: ORS 238A.235

Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07; PERS 1-2009, f. & cert. ef. 2-12-09; PERS 8-2011, f. & cert. ef. 10-5-11

459-076-0020

Application Required

(1) Application must be made on forms provided by PERS. PERS may require the member to provide any information that PERS considers necessary to determine the member’s eligibility for a disability benefit.

(2) No disability benefit will be paid unless the member files a timely and complete application with PERS.

(3) Application must be made by a member or the member’s authorized representative. A representative must submit to PERS written proof of the representative’s authority; such as, a power of attorney, guardianship or conservatorship appointment.

(4) A member must file a timely application for disability benefits:

(a) An active member may file the application immediately after the last day worked even though the member may be on a paid leave or on an official leave of absence without pay. No application will be accepted that predates the last day the member was actually on the job.

(b) An inactive member who was totally disabled due to injury or disease while the applicant was an active member and has not terminated membership, must file an application for a disability benefit within five calendar years of the date of separation from service. The disabling condition must have arisen while the applicant was an active member and be continuous from the date the member last worked to the date the application is filed.

(c) A member cannot apply for disability benefits before their date of disability.

(5) In determining the effective date of a disability benefit PERS may allow up to 60 months of benefits retroactive from the date the application is filed with PERS, but in no case earlier than the first day of the month following the date of termination.

(6) Upon the filing of an application for a disability benefit, PERS will notify the applicant’s current or most recent employer of the filing. Additionally, PERS may request of an employer information pertaining to current or previous employment.

(7) When making application for a PERS disability benefit, PERS will request the applicant authorize any physician, health practitioner, hospital, clinic, pharmacy, employer, employment agency, or government agency to release and disclose to PERS, or independent physicians and vocational consultants retained by PERS, any information within their records or knowledge, including that information otherwise protected under federal or state law, regarding the applicant’s health and employment which PERS determines relates to the applicant’s claim of disability and inability to perform any work for which qualified.

(8) When filing an application for disability benefit, if the applicant wishes to authorize release and disclosure of protected health information the applicant must complete and sign a consent form which specifically authorizes the release and disclosure of such information.

(a) This authorization is voluntary. Because PERS is not a covered entity as defined in 45 CFR Parts 160 and 164, the protected health information is not subject to federal and state health information privacy laws, but may be protected under Oregon State Public Record disclosure laws.

(b) This authorization may be revoked in writing at any time, except to the extent the entities named on the authorization form(s) have taken action in reliance of the authorization.

(c) If the applicant refuses to give or revokes authorization to disclose to PERS medical information that PERS determines it needs to evaluate the application, eligibility for a disability benefit may be affected.

Stat. Auth.: ORS 238A.450

Stats. Implemented: ORS 238A.235

Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07; PERS 8-2011, f. & cert. ef. 10-5-11

459-076-0025

Application Processing — Independent Examinations and Appeals

(1) Following the timely filing of a completed application, PERS may, at its discretion, request an independent medical exam or a vocational evaluation. If PERS requests one or more of these exams or evaluations, PERS will pay the reasonable associated expenses.

(a) For independent medical exams, PERS will inform the applicant in writing and postmarked not less than 10 days before a scheduled examination, of the identity of the physician(s) selected to examine applicant, together with location, date and time.

(b) For vocational evaluations, the vocational consultant or locator service shall inform the applicant of the location, date and time of the scheduled examination.

(c) If the applicant fails to meet the scheduled appointment or fails to reschedule the examination within five days of notification, PERS will not reschedule an examination at PERS’ expense unless the applicant can demonstrate good cause for having failed to meet the scheduled appointment or reschedule the appointment as required.

(d) Good cause includes, but is not limited to:

(A) Physical or mental incapacitation preventing the member from meeting or rescheduling the examination;

(B) Failure of PERS or the vocational consultant or locator service to send the member notice as described above; or

(C) A death in the member’s immediate family.

(e) Good cause does not include:

(A) A member’s refusal to attend the scheduled appointment;

(B) A member’s failure to meet the appointment with no reason provided; or

(C) A member’s failure to make appropriate transportation arrangements.

(2) When PERS requires an applicant to travel to be examined by a physician, vocational consultant, or other professional, PERS will reimburse the applicant’s reasonable transportation costs based on the least costly alternative and on availability. Travel by private vehicle will be compensated at the rate applicable to travel by unrepresented state employees on state business. Transportation by taxi, bus, rail, or other public carrier will be paid only upon presentation of receipts from the providers. Lodging and subsistence will be allowed only when a stop-over is necessary and will be paid at the rate applicable to unrepresented state employees traveling on state business. Reimbursements will be reduced by the amount of any penalty assessed PERS because of a member’s failure to meet a scheduled appointment.

(3) In the event a member fails to meet a scheduled examination in accordance with section (1) of this rule, and PERS is assessed a penalty by the service provider for the failure to meet the scheduled appointment, the disability applicant will bear the cost of the penalty as follows:

(a) If the disability application is not approved, by making direct payment to the service provider who assessed the penalty; or

(b) If the disability application is approved:

(A) By making direct payment to the service provider who assessed the penalty; or

(B) By having the amount of the penalty deducted from the monthly disability benefit, as provided for under ORS 238.715, payable to the member until the invoice is satisfied.

(4) The Director, or the Director’s designee, is hereby authorized to approve or deny a disability benefit application. Upon receipt and review of all necessary documentation, staff will present applicant’s claim to the Director, or the Director’s designee, with a recommendation to approve or to deny a disability benefit. The Director, or the Director’s designee, may accept or reject the staff’s recommendation, or refer the application back to staff for further documentation and review.

(a) If the disability claim is approved, the staff will notify the applicant and the applicant’s employer of such approval.

(b) If the disability claim is denied, the staff will issue an Intent to Deny letter by regular and certified mail, return receipt requested. The Intent to Deny letter will advise the applicant that additional information to substantiate the claim, or a request for an extension of 30 days to present additional information, may be submitted to the staff in writing within 30 days of the date of the Intent to Deny letter.

(5) Following the issuance of an Intent to Deny letter, staff will review any additional information submitted within 30 days from the issuance of the Intent to Deny letter.

(a) If the additional information results in a recommendation to approve the application, staff will resubmit the application to the Director with the recommendation.

(b) If the additional information does not result in a recommendation to approve the application, PERS will issue a final denial letter by regular and certified mail, return receipt requested.

(c) If no additional information is received, PERS will issue a final denial letter by regular and certified mail, return receipt requested.

(6) The final denial letter will provide the applicant with notification of the right to request a contested case hearing as provided for in OAR 459-015-0030 and 459-001-0035.

(7) A contested case hearing on the denial of disability benefits shall be conducted according to OAR 459-015-0030, 459-015-0035, and 459-015-0040.

(8) PERS will notify the most recent employer of the approval or the denial of an application for a disability benefit, a request for review of the Director’s determination, and the Director’s final action. Such notification will not contain any confidential information as defined in OAR 459-076-0001(3).

Stat. Auth.: ORS 238A.450

Stats. Implemented: ORS 238A.235

Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11

459-076-0050

Periodic Reviews

(1) Members receiving a disability benefit are subject to periodic reviews of their disabled status until the member reaches normal retirement age or staff determines that periodic reviews are no longer warranted.

(2) Periodic reviews will be used to determine that continued disability benefits are warranted. In recommending the continuance or discontinuance of a disability benefit, PERS will follow the criteria established under OAR 459-076-0005 for the original approved disabling condition or a new medical condition. If a member receiving a disability benefit becomes employed, the member’s disability benefit will be terminated as provided in OAR 459-076-0005.

(3) For a duty disability, the periodic review will not revisit the original determination that the injury or disease was duty caused, unless there is evidence of misrepresentation or fraud.

(4) PERS will establish review dates for each member subject to a periodic review depending on type of disability, extent of disability, and medical reports unique to each individual case:

(a) The reviews may be medical or vocational in nature, or both;

(b) Upon review, PERS may accept or require:

(A) New treating or consulting physician or specialist reports;

(B) Updated physician or specialist reports;

(C) Independent medical or vocational examinations; or

(D) Employment and wage information, including but not limited to, tax returns or information from the State Employment Department.

(c) PERS may immediately discontinue the disability benefit of any person who refuses to provide current medical evidence or refuses to submit to an examination:

(A) If the disability claim is discontinued, the staff shall issue an Intent to Discontinue letter by regular and certified mail, return receipt requested. The discontinuation letter shall advise the applicant that additional information to substantiate the claim, or a request for an extension of 30 days to present additional information, may be submitted to the staff in writing within 30 days of the date of the Intent to Discontinue letter;

(B) Following the issuance of an Intent to Discontinue letter, staff will review any additional information which is submitted within 30 days:

(i) If the additional information results in a recommendation to approve the application, staff shall resubmit the application to the Director, or the Director’s designee, with the recommendation;

(ii) If the additional information does not result in a recommendation to approve the application, PERS will issue a final discontinuation letter by regular and certified mail, return receipt requested.

(C) If no additional information is received within 30 days, PERS will issue a final discontinuation letter by regular and certified mail, return receipt requested;

(D) The final discontinuation letter will provide the applicant with notification of the right to request a contested case hearing as provided for in OAR 459-015-0030 and 459-001-0035.

(5) The member has the burden to prove continuing eligibility for a disability benefit.

(6) The Director, or Director’s designee, may approve or deny the continuance of a disability benefit.

Stat. Auth.: ORS 238A.450

Stats. Implemented: ORS 23A8.235

Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07; PERS 8-2011, f. & cert. ef. 10-5-11

459-076-0055

Payment of Disability Benefit

(1) A disability benefit accrues from the effective date of disability benefit.

(2) Notwithstanding section (1) of this rule, disability payments may not begin until a period of extended duration following the date of disability has been completed.

(3) If PERS cannot calculate the actual disability benefit payment, an estimated payment will be made until PERS receives all the necessary information needed to calculate the actual benefit payment.

(a) If the estimated payment results in an underpayment of $10 or more a month, the member will receive interest under the provisions of OAR 459-007-0015.

(b) If the estimated payment results in an overpayment of any amount, the overpayments may be recovered by decreasing the monthly benefit amount until the difference between the amount the member received and the amount the member should have received is recovered.

(4) If a member applying for a disability benefit dies before the Director’s approval of the application the application will be considered cancelled effective on the date of the member’s death.

(5) If a member receiving disability payments dies before retiring, the disability benefit will cease the first of the month following the member’s date of death.

Stat. Auth.: ORS 238A.450

Stats. Implemented: ORS 238A.235

Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11

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, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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