Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
16.577,
16.583,
16.645,
61.592,
61.600,
61.610,
61.615,
61.630,
61.637,
61.559,
61.597,
61.665,
78.545,
78.5510,
78.5512,
78.5514,
78.5516,
78.5522,
78.5524,
78.5526,
78.5528,
78.5540
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
61.505(1)(g) authorizes the
Kentucky Public Pensions Authority to promulgate all administrative regulations
on behalf of the Kentucky Retirement Systems and the County Employees
Retirement System that are consistent with
KRS
16.505 to
16.652,
61.510 to
61.705, and
78.510 to
78.852.
KRS
61.610,
61.615,
78.5526, and
78.5528 provide for the
employment and medical review of a recipient of a disability retirement
allowance to determine if the recipient's disability retirement allowance
should be continued or discontinued. This administrative regulation establishes
the process for employment and medical reviews.
Section 1. Definitions.
(1) "Approved employment" means work in any
capacity found by the agency not to require the same, similar, or greater
duties, residual functional capacity, or physical exertion as the position from
which the recipient was found disabled.
(2) "Effective retirement date" means the
date upon which a member's disability, early, or normal retirement benefits
began, whichever occurs first.
(3)
"Employer" means a person, agency, company, organization, or other entity that
directs or leads a recipient's work, whether or not for pay.
(4) "Trial basis" means a period of time not
to exceed nine (9) months during which a recipient works in a non-approved
employment position to allow him or her time to determine if he or she is able
to maintain employment; employment during this time period shall not affect the
recipient's disability retirement.
Section 2. Use of Third-party Vendors.
(1)
KRS
61.505(3)(d) authorizes the
agency to contract with third-party vendors to act on its behalf throughout the
disability retirement application and review process, and throughout the
periodic review, reinstatement review, and employment review process.
(2) The agency may utilize independent,
licensed physicians provided by third-party vendors to serve as medical
examiners pursuant to
KRS
61.665 and
78.545. Third-party vendors may
provide additional persons to fulfill non-physician roles throughout the
disability retirement application, periodic review, reinstatement review, and
employment review processes.
(3)
Third-party vendors may act on behalf of the agency and the systems with all
the rights and responsibilities therein.
Section 3. Periodic Review.
(1) A recipient of a disability retirement
allowance shall have a periodic review of his or her disability status pursuant
to KRS
61.610 and
78.5526.
(2)
(a)
When provided by the agency and in accordance with
KRS
61.610 and
78.5526, a recipient shall
complete:
1. Form 8101, Employment and Medical
Staff Review Certification;
2. Form
8525, Informed Consent and Authorization: Disability Retirement Applications
and Reviews, All Plans; and
3. Form
8130, Disability Retiree Employment Reporting, for each of the following that
is applicable:
a. The recipient is currently
gainfully employed; or
b. The
recipient has gainful employment not previously reported since his or her
disability retirement benefits began or since his or her last employment
review.
(b)
1. A recipient shall file with the agency or
its third-party vendor the completed forms indicated in paragraph (a) of this
subsection, and all relevant medical and employment information, by the end of
day 180 calendar days from the day the Form 8101, Employment and Medical Staff
Review Certification, is mailed to the recipient's address on file at the
retirement office.
2. If the last
day of the 180 day time period is a Saturday, Sunday, or state or federal
holiday, then the submission shall be valid if filed with the agency or its
third-party vendor by the end of day on the next business day following the
weekend or holiday.
(3) If the recipient fails to complete the
requirements of subsection (2) of this section, his or her disability
retirement benefits shall be discontinued on the first day of the month
following the expiration of the 180 day time period.
(4) If the recipient completes the
requirements of subsection (2) of this section, the agency or its third-party
vendor shall:
(a) Review and evaluate the
medical information and documentation submitted in accordance with Section 4 of
this administrative regulation; and
(b) Review and evaluate the employment
information and documentation submitted in accordance with Section 6 of this
administrative regulation.
(5) A recipient who has reached his or her
normal retirement age shall not be subject to a periodic review.
(6) A recipient's disability retirement
status that is continued by the Teachers' Retirement System may exempt the
retiree from the agency's periodic review.
Section 4. Periodic Medical Review.
(1)
(a) The
medical examiner shall evaluate the submitted medical information and
documentation to determine whether the recipient continues to be disabled from
the condition(s) for which he or she was initially granted disability
retirement. The agency shall notify the recipient of the medical examiner's
findings.
(b) If the medical
examiner finds the documentation fails to provide evidence that the recipient
continues to be disabled from the condition(s) for which he or she was
initially granted disability retirement and recommends discontinuance of the
disability retirement allowance, the notification shall include:
1. Form 8101, Employment and Medical Staff
Review Certification; and
2. Form
8191, Authorization for Independent Medical or Psychological Examination and
Release of Medical Information, if the medical examiner recommended an
independent medical or psychological examination in accordance with
KRS
61.665(2)(j) and
78.545 or
KRS
61.665(3)(c) and
78.545.
(2)
(a) If the medical examiner recommended
discontinuance of the disability retirement allowance, the recipient shall have
sixty (60) calendar days from the date the notification in subsection (1) of
this section is mailed to file with the agency or its third-party vendor:
1. The completed Form 8101, Employment and
Medical Staff Review Certification, and additional supporting medical
information;
2. The completed Form
8191, Authorization for Independent Medical or Psychological Examination and
Release of Medical Information, if applicable; or
3. A request for a formal hearing to appeal
the findings in accordance with Section 8 of this administrative
regulation.
(b) If, at
the end of the prescribed time period, the agency or its third-party vendor
does not have on file one (1) of the options detailed in subparagraph 1., 2.,
or 3. of paragraph (a) of this subsection, the recipient's disability
retirement allowance shall be discontinued on the first day of the month
following the expiration of the prescribed time period.
(3)
(a) If
the recipient completes the requirements of subsection (2)(a)1. of this
section, the medical examiner shall review and evaluate the additional
supporting medical information.
(b)
If the recipient completes the requirements of subsection (2)(a)2. of this
section the agency shall administer the independent medical or psychological
examination in accordance with Section 5 of this administrative regulation. The
medical examiner shall review and evaluate the findings from the independent
medical or psychological examination.
(c) Once the medical examiner completes his
or her evaluation of the documentation provided from the completion of
paragraph (a) or (b) of this subsection, the agency shall notify the recipient
of the medical examiner's findings.
1. If the
medical examiner finds the documentation fails to provide evidence that the
recipient continues to be disabled from the condition(s) for which he or she
was initially granted disability retirement and recommends discontinuance, the
recipient shall have sixty (60) calendar days from the date the notification is
mailed to request a formal hearing to appeal the findings in accordance with
Section 8 of this administrative regulation.
2. If the recipient fails to file an appeal
within the prescribed time period, his or her retirement allowance shall be
discontinued on the first day of the month following the expiration of the
prescribed time period.
Section 5. Independent Medical or
Psychological Examinations.
(1) If the
recipient files the Form 8191, Authorization for Independent Medical or
Psychological Examination and Release of Medical Information, with the agency
or its third-party vendor in accordance with Section 2(2)(a)2. of this
administrative regulation, then the agency shall notify the recipient in
writing of the date, time, and location of the appointment. Records from the
examination shall be used to complete the medical review in accordance with
Section 4(3) of this administrative regulation.
(2)
(a) The
agency shall reimburse the recipient for expenses associated with the medical
or psychological examination in the same manner as prescribed in
105 KAR 1:210, Section
8.
(b) The recipient shall file at
the retirement office a completed Form 8846, Travel Voucher for Independent
Examination, within fifteen (15) calendar days of the date of the examination
or evaluation to receive reimbursement for mileage, actual parking costs, and
any actual bridge or highway toll charges as prescribed in
105 KAR 1:210, Section
8.
(3) Pursuant to
KRS
61.615(3)(h) and
78.5528(3)(h),
if the recipient fails or refuses to complete the scheduled medical or
psychological examination, the system shall send a notice of discontinuance.
The recipient shall have sixty (60) calendar days from the date of the notice
to request a formal hearing to appeal the findings in accordance with Section 8
of this administrative regulation. If the recipient fails to file an appeal
within the prescribed time period, his or her retirement allowance shall be
discontinued on the first day of the month following the expiration of the
prescribed time period.
(4) If the
recipient fails to appear at the medical or psychological examination, or fails
to cancel the appointment within the timeframes required in the notice of
appointment, the recipient shall be responsible for payment of any charges
associated with the medical or psychological examination.
Section 6. Employment Review.
(1) The agency may request financial
information from other local, state, or federal agencies to determine if a
recipient is gainfully employed.
(2) A recipient may at any time file with the
agency or its third-party vendor a completed Form 8130, Disability Retiree
Employment Reporting, to be reviewed for potential gainful employment. The
agency or its third-party vendor shall complete an employment review in
accordance with subsection (5) of this section. The anticipated start date of
employment indicated on the Form 8130 shall be used to determine time period
requirements indicated in subsection (5) of this section. If the start date of
employment was unknown on the Form 8130 and at any time becomes known, or if
there is a change to the date previously indicated, the recipient shall notify
the agency in writing.
(3)
(a) Pursuant to
KRS
61.615(1) and
78.5528(1), a
recipient of a disability retirement allowance shall notify the agency of any
gainful employment. When gainful employment is reported to the agency outside
of the periodic review, or if gainful employment is discovered by any other
means, the agency shall provide the recipient with a Form 8130, Disability
Retiree Employment Reporting. The recipient shall file the completed Form 8130
with the agency or its third-party vendor within sixty (60) calendar days of
beginning any gainful employment. The agency or its third-party vendor shall
use the completed Form 8130 to perform an employment review in accordance with
subsection (5) of this section.
(b)
1. If the recipient does not file with the
agency or its third-party vendor the Form 8130 or written notification that the
employment has ceased within nine (9) months of the first date of employment,
the agency shall have the authority to discontinue the disability retirement
allowance.
2. If the agency
determines the disability retirement allowance shall be discontinued, the
agency shall send notification to the recipient, and he or she shall have sixty
(60) calendar days from the date the notice is mailed to request a formal
hearing to appeal the findings in accordance with Section 8 of this
administrative regulation.
3. If
the recipient fails to file an appeal within the prescribed time period, his or
her retirement allowance shall be discontinued on the first day of the month
following the expiration of the prescribed time period.
(4)
(a) During the periodic review, a recipient
shall complete Form 8101, Employment and Medical Staff Review Certification,
indicating if he or she is gainfully employed or has any previously unreported
gainful employment. When indicated, the recipient shall file with the agency or
its third-party vendor a completed Form 8130, Disability Retiree Employment
Reporting, for each of the following:
1. His
or her current gainful employment; and
2. Any gainful employment not previously
reported since his or her disability retirement benefits began, or since his or
her last periodic review.
(b) The agency or its third-party vendor
shall complete an employment review for all employment not previously approved
in accordance with subsection (5) of this section.
(c) During the periodic medical review as
prescribed in Section 4 of this administrative regulation, the agency or its
third-party vendor shall consider the employment details when determining
whether the recipient continues to be disabled from the condition(s) for which
he or she was initially granted disability retirement, regardless of whether or
not the employment was approved employment.
(5) When gainful employment is reported
during or outside of the periodic review, or discovered by any other means, the
agency or its third-party vendor shall complete an employment review in
accordance with KRS
61.610,
61.615,
78.5526, and
78.5528. The reviewer shall
evaluate the Form 8130, Disability Retiree Employment Reporting, or any other
employment information or documentation available to determine whether the
position has similar duties or requires the same or greater physical exertion
or functional capacity as the position from which the recipient was found
disabled. The agency shall notify the recipient of the findings.
(a) If findings indicate that a recipient's
employment is not approved employment, then pursuant to
KRS
61.615(1) and
78.5528(1), the
recipient may begin or continue the employment on a trial basis and the
recipient's monthly retirement allowance shall continue during the trial basis.
The recipient's monthly retirement allowance shall cease effective the month
following the end of the trial basis unless within sixty (60) calendar days of
the date the notice is mailed, one (1) of the following occurs:
1. The recipient requests a formal hearing to
appeal the recommendation in accordance with Section 8 of this administrative
regulation;
2. The recipient files
with the agency or its third-party vendor additional supporting employment
information. The agency or agency's third-party vendor shall review and
evaluate the additional employment information, and shall notify the recipient
of the findings. If the findings indicate the employment is not approved
employment, the recipient shall have sixty (60) calendar days from the date the
notification is mailed to request a formal hearing to appeal the findings in
accordance with Section 8 of this administrative regulation; or
3. The recipient files a written notice with
the agency or its third-party vendor in one (1) of the following ways:
a. If the recipient has not yet begun the
employment, a written notification with the agency that he or she has elected
not to start the employment; or
b.
If the recipient begins or continues the employment on a trial basis, prior to
the conclusion of the trial basis a written notification that he or she has
ceased the employment.
(b) If the recipient fails to file an appeal
within the prescribed time period, his or her retirement allowance shall be
discontinued on the first day of the month following the end of the trial
basis, or upon the expiration of the sixty (60) day time period, whichever
occurs later.
(6)
Retired members who are reemployed with a participating employer, shall also be
subject to the requirements of
KRS
61.637,
78.5540, and
105 KAR 1:390.
Section 7. Reinstatement Review.
(1)
(a) A
recipient whose disability retirement allowance has been discontinued for any
reason other than death is eligible to apply for reinstatement and be
reevaluated by the agency or the agency's third-party vendor until his or her
normal retirement age. The recipient shall submit new objective medical
evidence that was not previously considered with his or her application for
reinstatement.
(b) A recipient
whose disability retirement allowance was discontinued based upon the
employment review findings as prescribed in Section 6 of this administrative
regulation shall also provide:
1. Employer
documentation detailing changes not previously considered that have occurred in
his or her position if he or she is still employed in the same position;
or
2. Written notification that he
or she has ceased the employment that includes the date employment
ceased.
(2)
Pursuant to KRS
61.615(6)(d) and
78.5528(6)(d),
a recipient is only eligible for reinstatement for the same bodily injuries,
mental illnesses, diseases, or conditions for which he or she was originally
approved for disability benefits. A recipient cannot be reinstated for bodily
injuries, mental illnesses, diseases, or conditions for which he or she was not
approved for disability, or that occurred or became known after his or her last
day of paid employment prior to the original retirement date.
(3) A recipient shall apply for reinstatement
by filing:
(a) A completed Form 8102,
Employment and Medical Staff Review Certification Reinstatement;
(b) A completed Form 8525, Informed Consent
and Authorization: Disability Retirement Applications and Reviews;
(c) New objective medical evidence not
previously considered;
(d) If
filing for reinstatement in accordance with subsection (1)(b) of this section,
not previously considered employer documentation detailing changes in the
position, or written notification that the employment has ceased that includes
the last date of employment; and
(e) If there is any new or previously
unreported employment, a completed Form 8130, Disability Retiree Employment
Reporting.
(4)
Reinstatement reviews shall be conducted in accordance with
KRS
61.615(6)(d) and
78.5528(6)(d),
considering only those conditions for which the recipient was granted
disability.
(5) If the agency or
the agency's third-party vendor does not recommend reinstatement of a
recipient's disability retirement benefits, the recipient may request a formal
hearing to appeal the findings in accordance with Section 8 of this
administrative regulation.
Section
8. Right to Appeal.
(1) Any
recipient whose disability benefits have been reduced, discontinued, or denied
reinstatement may file an appeal of the findings at the retirement office with
a written request for a formal hearing within sixty (60) calendar days of the
date the notification of discontinuance was mailed. The hearing shall be
conducted in accordance with KRS Chapter 13B.
(2) The written request for a formal hearing
shall include a short and plain statement of the reason the determination is
being contested.
(3)
(a) The hearing officer presiding over an
administrative hearing may allow the person who filed the appeal to introduce,
among other evidence, the determination of other state and federal agencies,
such as the Kentucky Department of Workers' Claims and the Social Security
Administration, approving the applicant for benefits only when accompanied by
underlying objective medical evidence or vocational evidence.
(b) The hearing officer presiding over an
administrative hearing shall consider only objective medical evidence and
vocational records contained within or that accompany a determination by
another state or federal agency.
(c) The hearing officer presiding over an
administrative hearing shall not consider or be bound by factual or legal
findings of other state or federal agencies.
(d) Written statements from medical providers
within the administrative record shall not themselves be objective medical
evidence but may be relied upon if accompanied by, and reviewed in concert
with, other supporting objective medical evidence.
(4) During the pendency of an appeal, the
recipient shall continue to receive his or her disability retirement
benefit.
(5) At the conclusion of
the appeal, a recipient shall be notified of the final order of the
Administrative Appeals Committee (AAC) in accordance with
KRS
61.615(3)(g) and
78.5528(3)(g).
(a)
1. If
the AAC orders that the disability retirement allowance shall be discontinued,
then it shall be discontinued on the first day of the month following the date
of the notification except as provided in subparagraph 2. of this
paragraph.
2. If the recipient's
disability retirement allowance is discontinued due to the AAC determination
that employment was not approved employment, the effective date of
discontinuance shall be the first day of the month following the end of the
nine (9) month trial basis or the first day of the month following the date of
the notification of the AAC order, whichever occurs later.
(b)
1. If
the recipient fails to notify the agency of gainful employment in accordance
with Section 6(3) or (4) of this administrative regulation, then AAC shall have
the authority to decide the period for which the agency shall recover any
disability retirement allowance payments, health insurance premiums, or both.
The earliest date of the period shall not be earlier than the first day of the
month following the end of the nine (9) month trial basis.
2. If the agency recovers the disability
retirement allowance payments, health insurance premiums paid, or both, it
shall be from the recipient or the estate of the recipient only.
Section 9.
Benefits Available After Discontinuance of a Disability Retirement Allowance.
(1) A member with a participation date on or
after January 1, 2014 in one (1) or more of the Systems whose disability
retirement allowance is discontinued pursuant to
KRS
61.615 and
78.5528:
(a) Shall begin receiving retirement benefits
for which he or she qualifies, if eligible.
(b) Shall not be eligible for early
retirement benefits.
(2)
A member with a participation date prior to January 1, 2014 in one (1) or more
of the Systems whose disability retirement allowance is discontinued pursuant
to KRS
61.615 and
78.5528:
(a) Shall begin receiving normal retirement
benefits, if eligible.
(b) If not
eligible for normal retirement benefits, shall be given the option to begin
receiving early retirement benefits, if eligible.
(3) A member who received a disability
retirement allowance shall have established an effective retirement date and,
accordingly, shall not be eligible to request a refund of any remaining
accumulated account balance if the member's disability retirement allowance is
discontinued pursuant to
KRS
61.615 and
78.5528.
Section 10. Recipient's Death During the
Periodic Review Process.
(1) If the recipient
dies during the periodic review process, the member's beneficiary may be
entitled to receive disability retirement benefits pursuant to
KRS
61.630,
78.545(6) and
105 KAR 1:240.
(2) If a recipient dies after the date of
discontinuance as enumerated in Section 3, 4, 5, or 6 of this administrative
regulation, the disability retirement allowance shall remain discontinued and
there shall be no ongoing disability benefit paid to a beneficiary. This shall
not affect any other benefits to which the beneficiary may be
entitled.
(3) The beneficiary shall
not be permitted to apply for reinstatement on behalf of the
decedent.
Section 11.
Incorporation by Reference.
(1) The following
material is incorporated by reference:
(a)
Form 8101, "Employment and Medical Staff Review Certification", February
2023;
(b) Form 8102, "Employment
and Medical Staff Review Certification Reinstatement", February 2023;
(c) Form 8130, "Disability Retiree Employment
Reporting", February 2023;
(d) Form
8191, "Authorization for Independent Medical or Psychological Examination and
Release of Medical Information", April 2023;
(e) Form 8525, "Informed Consent and
Authorization: Disability Retirement Applications and Reviews, All Plans",
February 2023; and
(f) Form 8846,
"Travel Voucher for Independent Examination", May 2008.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Kentucky Retirement
Systems, Perimeter Park West, 1260 Louisville Road, Frankfort, Kentucky 40601,
Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available on
the agency Web site at ky-ret.ky.gov.
STATUTORY AUTHORITY:
KRS
61.505(1)(g) and
(3)(d)